The Northampton County Court of Common Pleas has now revisited the issue at the summary judgment stage of the same case and issued a decision dated August 1, 2016 in which the Defendant’s Motion for Partial Summary Judgment was denied and the Plaintiff’s Motion seeking an adverse inference against the Defendant for discarding her cell phone/spoliation being held in abeyance for decision by the trial judge. This summary judgment issue was decided by Judge Craig A. Dally.
In this matter, the Plaintiff demanded punitive damages in her Complaint based, in part, on the fact that the Defendant was using her cell phone at the time of the accident.
With its Motion for Partial Summary Judgment, the Defendant
argued that she had denied that she was using a cell phone at the time of the
accident and that there was no other evidence to otherwise show that she was
using her cell phone when the accident occurred. The Defendant again reasserted that, even
there was evidence that she was on her phone at the time, the use of her cell
phone would not be enough, under Pennsylvania law, to support a punitive
damages award.
In opposition, the Plaintiff asserted that the evidence of
record was sufficient for a jury to possibly conclude that the Defendant was
using her cell phone at the time of the crash and that, such evidence, taken
with other evidence in the case, such as allegations of excess speed on the
part of the Defendant, was sufficient to support a claim for punitive damages.
The Plaintiff was also seeking an adverse inference jury
instruction against the Defendant at trial for alleged spoliation of evidence,
i.e., specifically, the cell phone in her possession at the time of the
accident.
The Paszkowski
court noted that the “question of whether cell phone use is sufficient to
sustain a claim for punitive damages has never been addressed by the
Pennsylvania Appellate Courts, but it has been addressed by the Common Pleas
Courts and our Federal District Court."
The court went on to review the various decisions in this
regard from across the Commonwealth of Pennsylvania in its Opinion.
The court reiterated that, as found by the
other courts of Pennsylvania, that “where it is averred or established merely
that a driver was using a cell phone at the time of a crash, and not that the
use of the cell phone diverted the driver’s skills and/or attention or
otherwise caused him to knowingly engage in some risky behavior without regard
to the rights or welfare of others, punitive damages are not appropriate.” See Op. at 7 citing with “see” signal Rockwell v. Knott, 32 Pa. D. & C. 5th
157 (C.P. Lacka. Co. 2013 Nealon, J.) [other citations from other jurisdictions
omitted].
In this matter, the court noted that the Defendant testified at her deposition that she was traveling straight downhill on the road and there were no visual impediments in her path of travel. However, the Defendant also testified that she did not see the red traffic signal at the intersection until the time of the accident. The Defendant also admitted that she did not see any vehicles in front of her until the time of the accident. The Defendant additionally indicated that she was driving her husband’s vehicle, that her seat was not adjusted for height, and that she could not see over the hood.
The Defendant was noted to have also testified that she did
have her cell phone with her at the time of the accident and that she used it
to answer a text message while stopped at a different light controlled
intersection prior to the accident. However, the Defendant denied using her cell
phone at the time of the accident.
The court noted that telephone records from the Defendant’s
husband’s phone show incoming calls from the
Defendant’s phone at 8:34 p.m. and 8:52 p.m. The Defendant testified that these two (2)
calls occurred after the accident.
According to the court, the Plaintiff did not offer any
evidence in opposition to the motion. Rather,
the Plaintiff simply asserted that the circumstantial evidence of record,
specifically that despite a straight downhill view, the Defendant did not see
any cars or the red light in front of her, is a sufficient basis for a
reasonably jury to conclude that the Plaintiff was using her cell phone for
text communication at the time of the accident and that a claim for punitive
damages would be supported by such conduct.
The court ruled that, based upon the record before it, the
evidence of record was insufficient as a matter of law to allow a reasonable
jury to conclude that the Defendant was using her cell phone to send or receive
text messages at the time of the accident.
The court stated that there was no evidence upon which the jury could do
anything but surmise that the Defendant was using her cell phone for text
communications at the time of the crash.
The court found that the evidence was not sufficient to lift the
contention of the Plaintiff out of the realm of speculation.
However, the court still denied the
Defendant’s Motion for Partial Summary Judgment on the cell phone/punitive damages issues under the
Motion for Summary Judgment standard of review which requires the court to
resolve all doubts in favor of the Plaintiff as the non-moving party.
In this case, the court stated that, notwithstanding
the absence of evidence to demonstrate that the Defendant was sending or
receiving text messages on her cell phone at the time of the accident, there
remained a question of fact regarding the Defendant’s reckless conduct. In this regard, the court pointed to
allegations by the Plaintiff that the Defendant was traveling at high rate of
speed in heavy traffic at the time of the accident. The court also noted that the Defendant was
knowingly driving her husband’s vehicle with the driver’s seat in such a
position as to preclude the Defendant from fully seeing over the hood of the
vehicle, consistently seeing the traffic in front of her, or seeing a red light
ahead of her at the time of the accident.
The court felt that a reasonable jury could evaluate these factors and
properly conclude that, at the time of the accident, the Defendant was
affirmatively engaged in unreasonable conduct and disregard of a risk known to
her so obvious and so great as to make it highly probable that harm could
follow.
Accordingly, the court stated
that, if the Plaintiff was able to establish these facts at the time of the
accident, such evidence could probably support an award of punitive damages. As such, the court denied the Defendant’s
Motion for Partial Summary Judgment on the punitive damages issues.
As noted, the court also held in abeyance the Plaintiff’s
Motion for an Adverse Inference Instruction for Spoliation of Cell Phone
Evidence for the trial judge to decide.
Anyone wishing to secure a copy of this decision in Paszkowski v. Kleintop may click this LINK.
I send thanks to Attorney Ralph J. Bellafatto of the
Bellafatto Law Office in Easton, Pennsylvania for bringing this case to my
attention.
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