Sunday, October 2, 2011

Recklessness Allegations in a Premises Liability Case

In his recent September 27, 2011 Memorandum and Order in the case of Maloney v. Fidelity Deposit and Discount Bank, No. 11-Civil-2033 (C.P. Lacka. Co. Sept. 27, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas again addressed the propriety of allegations of gross, wanton, and reckless conduct in personal injury Complaints.

Tort Talkers may recall that I recently summarized an Opinion by Judge Nealon on this issue in the context of automobile accident matters in the case of Freethy v. Goike, No. 2011 - CV - 530 (C.P. Lacka. Co. Sept. 9, 2011 Nealon, J).

This Maloney case concerned a trip and fall and a lawsuit by a tenant against a property owner.

The Maloney case more specifically arose out of a trip and fall that occurred on May 29, 2009 in an unlit interior stairway leading to the second floor of a commercial building owned by the Defendants, Fidelity Deposit and Discount Bank, and Fidelity D&D Bancorp, Inc. [“Fidelity”]. The Plaintiff alleges that he was injured when he was caused to fall while walking down the dark stairway.

The Plaintiff alleged that he formerly owned the subject building but that the bank had pursued mortgage foreclosure litigation against him. The bank prevailed and, at one point, directed the Plaintiff to remove his remaining property from the premises.

The Plaintiff contended that the only way he could access his property was by way of a darkened staircase. Prior to the incident, Fidelity had allegedly caused the utilities, including the electricity, to be terminated at the premises, which left the stairway dark and not lit by either natural or artificial lighting.

The Plaintiff asserted in his Complaint that, although Fidelity was aware of the darkened condition of the stairway, the bank did not provide the Plaintiff with any means of lighting the stairway in order to safely use the stairway to remove his property from the premises.

As such, the Plaintiff alleged in his Complaint that Fidelity had acted with gross, wanton, recklessness, careless, and negligent conduct by requiring the Plaintiff to use the subject stairway when Fidelity knew it was in a dangerous and darkened condition.

Fidelity filed Preliminary Objections in the nature of a demurrer to the Complaint seeking to strike the Plaintiff’s references to gross, wanton, and reckless conduct. Fidelity asserted that the Complaint filed to allege specific facts in support of these allegations. The Plaintiff responded by asserting that allegations of wanton conduct, reckless conduct, and gross negligence involved conditions of the mind which could be asserted generally in the Complaint.

After reviewing the case law on the issues presented, including again relying upon (as he did in the Freethy decision) the Superior Court Opinion in the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), and after accepting as true the allegations and reasonable inferences from the facts in the Complaint as required by the standard of review, Judge Nealon held that the allegations of the Plaintiff’s Complaint were sufficient to allow the claims of gross, wanton, and reckless conduct to proceed on into discovery.

Judge Nealon noted that whether or not the Plaintiff would be able to produce sufficient evidence to support those allegations could be determined during the course of discovery.

The Court also noted that, in the event that discovery failed to yield sufficient factual support for these allegations, Fidelity had the right to move to strike the allegations from the action or attempt to secure a stipulation from the Plaintiff to remove such allegations later in the proceedings.

As such, the Court denied the Defendant’s demurrer to the allegations of wanton and reckless conduct in the Maloney case.

While it appears that these types of general allegations may now be allowed to proceed, at least in Lackawannna County, it may be advisable for the parties to focus at least a portion of their discovery efforts on any facts to support any claim of recklessness on the part of the defendant.  If a plaintiff is unwilling to stipulate such allegations out at the conclusion of discovery, a motion for summary judgment may prove necessary in order to close the door on any effort by the plaintiff to make a claim for punitive damages at trial based upon these allegations.

Legal research for law in support of such a summary judgment motion could begin here on Tort Talk with a review of decision by Judge William Amesbury of the Luzerne County Court of Common Pleas outlining the necessity of facts to support such claims of wanton and reckless conduct.  That Tort Talk post can be viewed here.

Anyone desiring a copy of Judge Nealon’s Opinion in the case of Maloney v. Fidelity Deposit and Discount Bank (premises liability case) or Freethy v. Goike (auto accident case) may conduct me at

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