Northampton County Court of Common Pleas Allows Cell Phone/Punitive Damages Claims to Proceed Beyond Summary Judgment (But for Non-Cell Phone Reasons)

Tort Talkers may recall that I recently reported on the trial court decision denying Preliminary Objections filed by a Defendant in the cell phone/punitive damages case of Paszkowski v. Kleintop, No. C-0048-CV-2014-11600 (C.P. North. Co. 2015).  

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.

 After reviewing the decisions, the court distinguished between the use of a cell phone as a phone and a use of cell phone to engage in activity typically associated with text messaging while driving.   The court noted that allegations that a driver was text messaging while driving, would likely cause the driver to avert his eyes from the road or his hands from the steering wheel to send or receive a text message may, without more, be sufficient to demonstrate the grossly negligent or reckless conduct necessary to support a claim for punitive damages.  See Op. at 7.  

 

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. 5^th 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.