Monday, July 29, 2013

Assumption of Risk Doctrine Applied in Philadelphia County Slip and Fall Case

In his recent decision in the case of Burley v. University City Science Center, PICS Case No.  13-1424 (C.P. Phila. June 4, 2013 Tereshko, J.), Judge Allen L. Tereshko issued an Opinion in which he recommended to the Superior Court that they affirm his decision that the Plaintiff assumed the risk of an obvious danger when she walked across an icy patch in a parking garage where the evidence revealed that the Plaintiff had prior knowledge of the presence of that condition.  

This case therefore offers support for an argument that the assumption of risk doctrine remains valid in the Commonwealth of Pennsylvania.

It appears that this issue came to the court by way of a Motion for Summary Judgment.  

The Plaintiff was employed as a security guard at the parking garage.   The record before the court revealed that, prior to the beginning of her shift, the Plaintiff was advised by a supervisor that the parking garage and accumulation of ice on the surface.   The record also revealed that, in her deposition, the Plaintiff admitted that she saw the ice in the parking garage, but continued walking her rounds when she slipped while walking directly over the ice covered area.  

Judge Tereshko reasoned that the fact that the Plaintiff knew of the dangerous condition in the parking garage was dispositive on the issue of liability because the Plaintiff assumed the risk when she encountered the icy condition.  The dangerous condition was noted to be apparent and the risk was found to be inherently obvious.  

According to the summary of the Opinion, Judge Tereshko also noted in his Opinion that common knowledge dictates that ice is slippery and to walk over an icy patch is to risk falling and suffering any injuries.  

The court additionally noted that the Plaintiff had an opportunity to take an alternate route or to discontinue her patrol and avoid the danger.

Judge Tereshko further noted in his Opinion that the Plaintiff not only aware of the condition, but allegedly failed to follow company procedure by alerting a supervisor or an account manager about the hazard.

In his Opinion, Judge Tereshko also concluded that the Plaintiff was an independent contractor and that the law imposed no duty upon land owners to warn an independent contractor about obvious dangers no the land.  

Anyone wishing to secure a copy of this Opinion may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee.

Source:  "Case Digests" Pennsylvania Law Weekly (7/23/13)


Wednesday, July 24, 2013

Judge Tereshko Addresses Negligent Infliction of Emotional Distress Claim in Medical Malpractice Action

In a recent Philadelphia County Court of Common Pleas decision in the case of Hinchey v. University of Pa. Health System, PICS Case No. 13-1212 (C.P. Philadelphia Apr. 24, 2013 Tereshko, J.), Judge Tereshko granted a Defendant’s Preliminary Objections to a Plaintiff’s claim for negligent infliction of emotional distress in a medical malpractice action. 

In this matter, the Plaintiff filed a claim for a negligent infliction of emotional distress related to an incident during which her father allegedly fell from an operating table while he was undergoing surgery.  

The Court ruled that the Plaintiff could not sustain such a claim where she did not eyewitness her father fall from the operating table.  Furthermore, the Plaintiff did not establish that she had any special relationship with the Defendant to otherwise support this claim under the applicable law.

Based upon the above, the trial court recommending affirmance the Defendants’ Preliminary Objections in its Rule 1925 Opinion to the Superior Court.  

Anyone desiring a copy of this decision may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee.   

Thursday, July 18, 2013

Judge Nealon of Lackawanna County Addresses Admissibility of Late Expert Report

In the case of Boyko v. Litzy's Lounge, et al., 09 CV 5231 (C.P. Lacka. Co. July 5, 2013 Nealon, J.), Judge Terrence R. Nealon granted a Plaintiff's motion in limine to preclude a defense liability expert's
Judge Terrence R. Nealon
Lackawanna County
opinion based, in part, upon the report being produced beyond a court ordered deadline and not until the eve of trial.

The case involved a pedestrian plaintiff who was struck by an allegedly intoxicated driver in the parking lot of the lounge.  The defense sought to rely upon a liability expert report indicating that the plaintiff was intoxicated and that the injuries alleged were consistent with a fall down to the right. 

After reviewing the parameters of the law of the admissibility of late expert reports, the court noted that, while the late production of the report did not appear to be bad faith or willfulness on the part of the defense, there were no extenuating circumstances identified by the defense to show that the late production was beyond the control of the defense.  The court also noted that, with the limited time of only days remaining before the start of trial, the plaintiff would be prejudiced by the inability to secure a rebuttal report.  The court rejected the notion that a continuance of the trial be entertained.

Anyone wishing to review Judge Nealon's Opinion in the Boyko case may click this LINK.

Tuesday, July 16, 2013

ARTICLE: Lawyers, Look After Yourselves

Here's a LINK to my recent article in the Pennsylvania Lawyer magazine entitled "Lawyers, Look After Yourselves," in which tips are provided to help improve one's overall well-being.  Hope you enjoy it.

Wednesday, July 10, 2013

Judge Nealon of Lackawanna County Addresses Discovery of Electronically Stored Information (ESI)

In a recent decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the parameters of permissible discovery of electronically stored information (ESI) in the title insurance dispute case of Brogan v. Rosenn, Jenkins & Greenwald, No. 08 - CV - 6048 (C.P. Lacka. Co. July 5, 2013).

In Brogan, the Plaintiffs were seeking the discovery of electronically stored information (ESI)from the title insurance company.  The Plaintiffs, in part, questioned whether the carrier had produced all relevant documentation from its files.  Also at issue, among other areas of dispute, was the Plaintiff's request to secure ESI pertaining to certain other documents believed to be in existence by the Plaintiffs that had not been produced by the defendant.  The Plaintiff also had requests out to secure ESI on certain materials as opposed to a request for the paper form of such information.  The case came before the court by way of a motion to compel filed by the Plaintiffs.

After reviewing the prerequisites for discovery of electronically stored information set forth under Pa.R.C.P. 4009.1, the court ultimately ruled that the Plaintiff's had not established an entitlement to discovery of ESI under the facts presented as applied to the proportionality standards set forth under the Rule.  As such, the motion to compel was denied.

Anyone wishing to review this detailed Opinion in Brogan by Judge Nealon may click this LINK.

Tuesday, July 2, 2013

Common Grammatical Errors and Tips to Avoid Them

Here's a LINK to an excellent article by Beverly West of covering common grammar errors in writing (its vs. it's, etc.) with tips on how to avoid them.  I'm always tripping over these common issues and found the article helpful.  Hope it is helpful to you as well.

Monday, July 1, 2013

Judge Correale Stevens Confirmed to Pennsylvania Supreme Court

According to a July 1, 2013 article by Zack Needles entitled "Stevens Confirmed to Pa. Supreme Court" in the online edition of The Legal Intelligencer Superior Court President Judge Correale F. Stevens has been confirmed for his appointment to the Pennsylvania Supreme Court to fill the seat vacated by former Justice Joan Orie Melvin.  According to the article, the Senate vote was unanimous in favor of Judge Stevens' appointment.

Judge Correale Stevens
This appointment brings the Pennsylvania Supreme Court back up to its full complement when Justice Stevens begins his term at the end of July.

Prior to his service on the Pennsylvania Superior Court, Judge Stevens also served on the bench of the Luzerne County Court of Common Pleas.