Friday, February 3, 2012

Motion to Add Punitive Damages on the Eve of Trial Denied in Lackawanna County

In the case of Millan v. Pennsylvania American Water Company,, No. 2003-Civil-4332 (C.P. Lacka. Co. Jan. 26, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion to Amend her Complaint on the eve of trial, and after the statute of limitations, to include a claim for punitive damages.

According to the Opinion, this matter arises out an alleged trip and fall event that occurred in front of the Plaintiffs’ residence. The Plaintiff-wife contended that she tripped and fell on elevated water shut-off valve owned and maintained by the Defendant, Pennsylvania American Water Company. The Plaintiff also sued a Co-Defendant that allegedly performed construction work for PAWC in the neighborhood during which they allegedly installed blacktop in a manner which permitted PAWC’s valve to protrude above the sidewalk level.

The Court’s Opinion notes that the case proceeded through discovery and was certified for trial. Twenty days after the final Pre-Trial Conference and three weeks prior to the start of trial, the Plaintiff filed a Motion seeking to amend the Complaint under Pa. R.C.P. 1033 to include a claim for punitive damages.

The Plaintiff based this motion upon information that two PAWC representatives had allegedly testified in depositions in other matters involving allegedly similar incidents. The Plaintiff submitted the other deposition testimony which established that PAWC was aware of the tripping dangers and hazards to the public and also allegedly established that PAWC had acted recklessly and/or with reckless indifference to the rights of safety of persons, including the Plaintiffs with respect to this matter. Accordingly, the Plaintiff asserted that she should be permitted to amend their Complaint to include a claim for punitive damages against PAWC.

After reviewing the submissions of the parties, Judge Nealon detailed the procedural law governing the timing of this request as well as the substantive law concerning the merits of the claim for punitive damages.

Reviewing the evidence presented, the Court found that the Plaintiffs had not identified any deposition testimony or other evidence which (1) suggested that the Defendants had a subjective appreciation of any risk of harm to which the particular Plaintiff in this matter was allegedly exposed to in front of her residence and/or (2) established that the Defendants had acted or failed to act in conscious disregard of that risk. Accordingly, the court found that the Plaintiff had not identified any substantive factual or legal basis to support a granting of the Plaintiff' motion leave of court to amend the Complaint to add a claim for punitive damages.

Additionally, Judge Nealon also found the Plaintiff’s motion to be untimely. The court pointed out that the Plaintiff’s original Complaint did not allege recklessness or any facts remotely indicative of wanton, willful or reckless conduct.
Judge Nealon noted that, if a timely filed Complaint did contain such allegations but did not affirmatively and specifically demanding punitive damages, a Plaintiff may thereafter amend the Complaint to include a claim for punitive damages based upon those facts previously alleged in the original Complaint.

However, relying, in part, upon the case of Romah v. Hygienic Sanitation Co., 705 A.2d 841, 858-860 & n. 9 (Pa. Super. 1997), the court found that, where the original Complaint simply alleges negligence and a Plaintiff later seeks to amend the Complaint to assert reckless indifference and include a claim for punitive damages after the statute of limitations has expired, such requested amendment is time barred by the applicable statute of limitations.

Judge Nealon noted that, since the original Complaint in this matter only alleged ordinary negligence on the part of the Defendants, and given that the Plaintiff’s request to amend the Complaint was filed more than ten (10) years after her fall, the motion to add punitive damages was “clearly time barred.” 

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