Friday, June 22, 2018

Claims of Parental Liability for Acts of Adult Child Against Pennsylvania State Police Officers Allowed to Proceed

In the case of Dickson v. Frein, No. 16-CV-4887 (C.P. Lacka. Co. June 1, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed issues of parental liability for their son’s act in gunning down members of the Pennsylvania State Police (PSP) during a tragic shooting that occurred in Pike County, Pennsylvania on September 12, 2014.  

In this matter, there are three (3) civil actions arising out of an incident which resulted in the death of a PSP Corporal and serious physical injuries and emotional harm to two other members of the PSP.   

The adult shooter’s parents, who are named Defendants in these cases, filed Preliminary Objections in the nature of demurrers seeking to dismiss the negligence claims against them on the grounds that they did not know any recognized duty to the shooting victims to the actions of their adult son.   The shooter’s father also filed a demurrer to one Plaintiff’s claim that the father was vicarious liable for the tortious conduct of his son.  

Applying the demurrer standard, the court denied the Defendants’ Preliminary Objections in this regard.  

Judge Nealon noted that, in cases involving firearms that are owned or controlled by parents and located on their property, Pennsylvania law recognizes a parental duty to exercise reasonable care in controlling or restricting access to those fire arms by a minor child, or even an adult child who suffers from mental illness or a cognitive disability, such that the child’s use of a firearm may create an unreasonable risk of harm to others.  

Judge Nealon also noted that, even in the absence of a special relationship between the parents and the shooter, the parents have a duty to refrain from committing an affirmative act that is likely to affect the conduct of the shooter in such a manner as to pose an unreasonable risk of harm to others.  

In this matter, the Complaints filed contained allegations that the parents knew that the shooter suffered from mental illness, cognitive disabilities, delusions, and an inability to distinguish fantasy from reality since the time that the shooter was a child.   

The Plaintiffs also alleged that, rather than seek warranty mental health treatment for their son, the parents fostered the child’s fantasies by allegedly financing their adult son’s military simulation hobby, providing him with fire arms training, and furnishing him with a text on sniper techniques.   

The Complaints also contained allegations that the parents otherwise psychologically manipulated their son’s vulnerable mental health state and compromised his cognitive condition in other ways, including positions on ending the misuse of power by police, which allegedly caused the adult son to allegedly develop a strong antipathy towards the police.   

The Plaintiffs’ Complaints also alleged that the parents knew that the adult son had been threatening to kill others who had wronged him or others. 

Overall, the Plaintiffs alleged in their Complaints that, despite their knowledge of their son’s wayward thoughts, the parents failed to contact police or any mental health professionals regarding their son’s intentions and actions and, to the contrary, granted him unfettered access to the firearms that the parents owned or controlled at their residence, including the weapons their son used during his attack on the Pennsylvania State Police.  

Given that the Defendant’s parents had not established that it was free and clear from doubt that they owed no duty of care under Pennsylvania law to the Plaintiffs, the court denied the Preliminary Objections filed by the parent Defendants.  

Judge Nealon did otherwise dismiss the separate vicarious liability claim against the father for the criminal conduct of his son as insufficient as a matter of law due to the absence of the requisite agency relationship between the father and the shooter.  

Anyone wishing to review a copy of this case may click this LINK.

Thursday, June 21, 2018

Summary Judgment Granted in Fatal Slip and Fall Case

Summary Judgment was granted by the trial court in a fatal slip and fall case under the caption of Wasnetsky v. Quinn's Market, No. 14-CV-4437 (C.P. Lacka. Co. June 15, 2018 Nealon, J.).

According to the Opinion, the Plaintiff allegedly slipped and fell as result of stepping on a liquid on the floor in the market.  The Plaintiff's decedent struck his head on the linoleum floor and allegedly tragically died from his head injuries.

In his Opinion, Judge Terrence R. Nealon thoroughly reviewed the current status of premises liability law in Pennsylvania and reaffirmed that the law requires a plaintiff to show that a he or she was caused to fall by a dangerous condition on the premises that the landowner knew or should have known about and failed to remedy.  The court additionally reviewed the law of those cases where summary judgment was granted where a Plaintiff could not point to the cause of his or her fall.

The court more specifically pointed out that the only witness to the accident was another customer in the store who confirmed that she witnessed the Plaintiff's decedent fall and that there was no liquid on the floor where the Plaintiff fell as alleged in the Plaintiff's Complaint.  This witness also confirmed that the Plaintiff was wearing loafer-like shoes with a smooth bottom that looked like a "slippery type of shoe."

The record also revealed that the store manager who reported to the scene while the Plaintiff's decedent was still on the floor also noted that there was no liquid on the floor in that area.  A produce manager also reported to the scene and likewise confirmed that there was no liquid on the floor in the area of the Plaintiff's decedent's fall.

The court also noted that liability expert testimony offered by the Plaintiff from two expert was not sufficiently based in fact in terms of how the accident occurred.  As such, the court found that this expert testimony was incompetent to defeat the summary judgment motion.

Based upon the record before the court in this matter, the court held that, even when the case was viewed in a light most favorable to the Plaintiff as required by the summary judgment standard of review, there was no admissible evidence presented of any liquid, substance, or any other dangerous condition on the floor that ostensibly caused the Plaintiff to fall.

The court additionally noted that the Plaintiff also failed to offer evidence to show actual or constructive notice on the part of the Defendants of any allegedly dangerous condition on the premises.

Based on these failures by the Plaintiffs to sustain their burden of proof, summary judgment was granted by the court.

Anyone wishing to review a copy of this decision may click this LINK.

Wednesday, June 20, 2018

Defense Counsel Ordered to Turn Over Information Pertaining to Potential Witnesses in a Civil Litigation Matter

In the case of Newsuan v. Republic Services, No. 00528 (C.P. Phila. Co. April 11, 2018 Rau, J.), the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.  

According to the Opinion, the Plaintiff filed the motion because of the alleged conduct of the defense lawyers in purportedly refusing to provide contact information for the potential fact witnesses in order that the defense lawyers could allegedly contact the witnesses first and interview them, and offer to represent them for free.   The trial court found that such alleged conduct compromised the fairness in the litigation process by obstructing the Plaintiff’s access to evidence.

As such, the Plaintiff’s Motion to Compel was granted.  

In her Opinion, Judge Rau noted that, because the Defendants’ lawyers admitted in court that the interviews with the witnesses were conducted prior to the Defendants’ lawyer offering to represent these witnesses, the court found that the interviews did not constitute attorney-client privilege communications.  

The court also noted that the Pennsylvania Rules of Professional Conduct require that the defense lawyers advised the witnesses of the potential conflict of interest in representing both the witnesses and the company being sued, nor did the lawyers obtain the informed consent from the fact witnesses in order to waive any potential conflicts.  

In her Order, the judge required that the defense provide the Plaintiff with the information regarding the current and former employees of the witnesses along with the notes of the interviews and all written communications.  

The court additionally ruled that the Defendants’ lawyers were disqualified from representing the former and current employee fact witnesses at a deposition or trial unless the attorneys secure a written waiver from the witnesses explaining the conflict of interest.  

The Defendants’ lawyers were also ordered to inform Plaintiff’s counsel as to which witnesses have or have not signed the written waivers of conflicts of interest. 

The defense lawyers were additionally ordered not to contact any witnesses that they had not succeeded in interviewing to date.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney William P. Corcoran, Esquire of the legal division of Septa for bringing this case to my attention.  

Tuesday, June 19, 2018

Superior Court Holds That Notes Created by Investigator Retained by Attorney Are Not Protected From Discovery

In its recent decision in the case of McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017 (Pa. Super. June 7, 2018 Panella, J., Olson, J., and Stevens, P.J.E.) (Op. by Panella, J.),  the Pennsylvania Superior Court addressed the following two discovery issues:

1.         Are notes and memoranda of witness interviews by a private investigator, acting at the express direction of defense counsel, protected by the attorney work-product doctrine, as defined in Pennsylvania Rules of Civil Procedure  No. 4003.3, to the same extent as if the interviews were conducted by counsel, and

2.         Whether the defense should be estopped from relying upon the attorney work-product doctrine because it pursued disclosure of the identical materials from the claimant’s attorney. 

Pennsylvania Superior Court ultimately ruled that, when an investigator is hired expressly by the attorney of the Defendant, then the investigator’s notes of witness interviews are not privileged or protected from discovery even though the investigator was acting at the express direction of the attorney.   In its decision, the court noted that Pa.R.C.P. 4003.3 sets different restrictions in terms of production of material prepared by a party’s attorney as compared to material prepared by a party’s representative.   The court noted that there is a higher bar of protection in relation to the discovery of the work product of an attorney.  

In contrast, as to materials produced by any other representative of a party, Rule 4003.3 only prohibits the disclosure of the representative’s mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.  

Here, the court found that the work product doctrine under Pennsylvania Rules of Civil Procedure  4003.3 could not be used to preclude the disclosure of notes and summaries written by an investigator as opposed to by the party’s attorney.   The court rejected the notion that the notes and memoranda completed by a private investigator acting at the expressed direction of counsel, are protected by the attorney work product doctrine to the same extent as if the documents were drafted by counsel.   The court stated that to accept such an argument would be an impermissible expansion of the language of Pa.R.C.P. 4003.3.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh law firm of Thomas, Thomas & Hafer for bringing this case to my attention.



Oftentimes, attorneys may dive into a deposition without securing basic background information to start a depositions.  There have even been depositions completed where an attorney has not even asked the deponent to state their name.

A good way to being a deposition, even before you introduce yourself or lay out the ground rules for the deposition, is to start by asking the person's name, address, and basic background information so that you have this information on the first page of the deposition transcript for your easy reference.

A suggested way to start may be, as follows:

Good morning, can you please start by stating your full name and address?

What is your date of birth?

How old are you as you sit here today?

It is my understanding that you were ____ years old back when this accident occurred?

[Ask to go off the record, and then ask for the deponent's social security number]

Once you have the above basic information, you can then review with the witness the basic ground rules of a deposition to help the proceeding flow smoothly from that point on.

Monday, June 18, 2018

Summary Judgment Granted in Products Case Based Upon Intended User Analysis

In a decision in the case of Hysick v. Razor United States, No. 1:2015-CV-00745 (M.D. Pa. Jan. 9, 2018 Jones, J.), the court granted in part and denied in part a summary judgment motion in a product’s liability case.  

The court reaffirmed the rule of law that strict liability is imposed only where the product is used by an intended user.

Here, where the Defendant manufacturer’s owner’s manual and warning stated that the product was not for use by children under 12, a 6 year old injured party was deemed not to be an intended user of the product as a matter of law.

The court otherwise held that a manufacturer cannot be held liable for failing to design a product that was safe for use by any reasonably foreseeable user.   Rather, only intended users are relevant to the strict liability analysis. 

The court additionally noted that no reasonable consumer would believe that a 6 year old was an intended user of a product that was fully equipped with explicit age recommendations for use of the product by much older children.  

The court otherwise did note that a claim for breach of warranty extend beyond the intended users of a product.   The court also noted that foreseeable unintended users might have negligence claims to present as well.

I do not have a copy of this case to provide.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  

Friday, June 15, 2018


As we are in the middle of the year, thought it would be a good time to re-run my article "A Mid-Year Tuneup: Ten Tips to Improve Your Practice and Reduce Your Stress." 

This article first appeared in the Pennsylvania Law Weekly about 10 years ago on June 30, 2008 and is republished here with permission.  The tips appear to be standing the test of time.

Here is a LINK to the article for your reading enjoyment.

Thanks for reading Tort Talk,

Dan Cummins