Thursday, August 16, 2012

A Cell Phone Punitive Damages Case Out of Crawford County

In his July 17, 2012 Memorandum and Order in the case of Leonard v. Schlabach, No. A.D. 2012-172 (C.P. Crawford Co. July 17, 2012 Vardaro, P.J.), President Judge Anthony J. Vardaro overruled in part and sustained in part a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in a motor vehicle accident case.

The Court sustained the Preliminary Objections on the Plaintiff’s claim for punitive damages in this ordinary motor vehicle accident matter.  In this regard, the Plaintiff was attempting to support a punitive damages claim based upon, in part, allegations that the Defendant was using a cell phone at the time he pulled into a Sheetz parking lot under nighttime conditions and struck a pedestrian Plaintiff.

Judge Vardaro reviewed a line of cell phone as punitive damages cases, including Pennington v. King, Piester v. Hickey, Xander v. Kiss, and Kondash v. Latimer. Judge Vardaro also reviewed cases from other jurisdictions pertaining to cell phone/punitive damages issues.
After a review of the above law, the Court noted that the “proper inquiry here is whether the allegations in Plaintiffs’ complaint constitutes the type of ‘additional indicators’ or aggravating factors that could elevate Defendant’s conduct from mere negligence to the type of willful, wanton, or reckless conduct that would justify punitive damages.”

The Court noted that, in this matter, the Plaintiffs have allege that, in addition to using his cell phone at the time of the accident, the Defendant was allegedly driving too fast for the conditions (i.e., the conditions being that he was in a parking lot at night when he knew he may encounter pedestrians), had altered the height of his vehicle so that it sat higher than it did when it was manufactured, and had modified the side door windows so that they had a darker tint then they did when the vehicle was manufactured.
The Court found that these allegations were “distinguishable” from the additional indicators found in those cases that have permitted cell phone use to serve as the basis for an award of punitive damages.  For example, there was no allegation in this case that the Defendant was driving while intoxicated, driving erratically across multiple lanes of traffic, or fleeing the scene of the accident.

The Court found that, under the facts alleged in this matter, the Defendant’s conduct, at most, was very careless. Furthermore, the Court stated that there was no malice in the Defendant’s decision to raise the profile of his vehicle or tint his windows. The Court also noted that the Defendant’s decision to tint his windows or raise the profile of his vehicle were presumably made well before the subject accident and were not a part of the same chain of events so as to support a claim for punitive damages in this matter.

The Court dismissed the Plaintiff’s claims for punitive damages noting that injuries caused by the alleged conduct of the Defendant driving too quickly through the Sheetz parking lot while using a cell phone do not compare to the egregious nature of the additional indicators noted in the above cases. Judge Vardaro also stated that the injuries caused by the Defendant’s alleged conduct were capable of being fully addressed by compensatory damages and that punishing the Defendant with punitive damages under the facts alleged would not appropriate.

Anyone desiring a copy of this Opinion in Leonard v. Schlbach may contact me at

To view other Tort Talk posts on cell phone/punitive damages cases, click HERE.

I note that the prevailing defense attorney in this case was Attorney Mark Miodusezewski of the Erie, Pennsylvania law firm of Marnen, Miodusezewski, Bordonaro, Wagner & Sinnott, LLC.  I send thanks to Attorney William C. Wagner of the same law firm for providing me with a copy of this Opinion.

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