Here is the 2018 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:
10.
FEDERAL COURT JURISDICTION ISSUES
Trending
over the past year were a number of notable Pennsylvania federal court
decisions handed down reviewing the issue of jurisdiction over foreign or out
of state Defendants.
A
common thread in a number of the decisions was an agreement that, if a foreign
business had registered to do business in Pennsylvania, that minimal contact in
and of itself was sufficient to allow for jurisdiction over that
defendant. See Mendoza v. Electrolux Home Products, Inc., No. 4:17-CV-02028
(M.D.Pa. 2018 Brann, J.).
In
a number of other decisions, the federal courts addressed whether jurisdiction
could be had under a stream of commerce theory. For example in Wylam v. Trader Joe's Co., No. 3:16-CV- 2112 (M.D.Pa. 2018 Mariani, J.),
the court noted that neither a single sale directed at the forum state nor the
fact that the Defendant's products were carried by national retailers was
sufficient to establish jurisdiction.
9.
PROPERLY PLEADING BAD FAITH COMPLAINTS
In
2018, federal court bad faith Complaints were getting bounced left and right
for being rife with conclusory allegations lacking sufficient factual
support.
Decisions
in the Western District, Eastern District and the Middle District tasked
plaintiffs with the need to offer facts to support claims of poor claims
handling, delays in payment, and lack of investigations by carriers. Lucky for the plaintiffs, in most cases leave
to amend was granted.
A number of those cases can be accessed at this LINK.
8.
UM/UIM STATUTE OF LIMITATIONS
Judge James M.
Munley of the Federal Middle District Court of Pennsylvania denied the
carrier’s Motion for Summary Judgment on a UIM statute of limitations defense
in the case of
Legos v. Travelers Cas. Ins. Co., No. 3:16-CV-1917
(M.D. Pa. Oct. 11, 2018 Munley, J.), by holding that the statute of limitations
for a UIM is four (4) years from the date of a breach of the automobile
insurance contract and not the date of the third party settlement. The
breach of contract was noted to be the carrier's denial of the request, or
settlement demand, for payment of UIM benefits.
In so ruling, the
court referenced the Pennsylvania Supreme Court case of
Erie Ins.
Exch. v. Bristol, 174 A.3d 578 (Pa. 2017), in which it was held that the
statute of limitations in an uninsured (UM) motorist case does not begin to run
until there is an alleged breach of the insurance contract,
i.e., the
denial of a claim or a refusal to arbitrate.
The
Legos decision can be viewed
HERE.
Some argue that
these cases serve to eradicate the statute of limitations in UM/UIM cases by
basing the start of the statute of limitations upon the alleged breach of the
auto insurance contract by the carrier.
When filing such Complaints, Plaintiffs typically allege that auto
insurance carriers breach the contract by not paying the Plaintiff's request
for UM or UIM benefits.
As the argument
goes, every time a carrier declines to pay a Plaintiff's settlement demand,
another breach occurs which causes the running of the statute of limitations to
start again (and again and again and again, every time a demand is rejected).
Look for the
defense bar to challenge this issue in the future.
7.
AIN'T NO LIABILITY IF IT'S STILL SNOWING
A
number of decisions handed down over the past year confirmed that there is no
liability under the Hills and Ridges Doctrine if a person slips and falls
during the course of a snowstorm.
In the case of Collins v.
Phila. Sub. Devel., No. 2018 Pa. Super. 17 (Pa. Super. Jan. 31, 2018
Panella, J., Olson, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.), the court affirmed
the entry of summary judgment in favor of a premises liability Defendant under
the Hills and Ridges Doctrine where the evidence before the trial court
confirmed that the winter storm, described in the record as a
blizzard, was still active at the time of the Plaintiff's alleged slip and
fall on ice and/or snow.
The Collins decision is also notable for the court's ruling that the
Defendant's alleged failure to pretreat a walking surface was not a basis upon
which to impose liability under Pennsylvania law.
Another
case from the past year along these lines was the case of Bless v.
Pocono Mountain Recovery Center, LLC., No. 8167 - CV - 2016 (C.P. Monroe
Co. May 17, 2018 Zulick, J.).
In Bless, which is noted to be the most
viewed case of 2018 on the Pennsylvania
Law Weekly's Instant Case Service, Judge Arthur L. Zulick, of the Monroe
County Court of Common Pleas granted the Defendants’ Motion for Summary
Judgment based upon the hills and ridges doctrine in a case where the record
contained evidence that the Plaintiff's fall occurred right after a recent
snowfall which caused slippery conditions.
Anyone wishing to review a copy of
this decision may click this
LINK.
6. EXPERT TESTIMONY IN MED MAL
CASES
In the case of Gintoff v.
Thomas, No. 2016-CV-2155 (C.P. Lacka. Co. May 4, 2018 Nealon, J.), Judge
Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a
Defendant hospital’s Motion for Summary Judgment in a medical malpractice case
given the Plaintiff’s failure to support the claims against that Defendant with
expert opinion testimony on those particular claims.
This decision was the fourth most
viewed case on the The Pennsylvania Law
Weekly's Instant Case Service in
2018.
In Gintoff, the court found that the Plaintiff's medical expert
report, which only addressed the care provided by the defendant doctor, lacked
sufficient expert opinion to establish a prima facie case for vicarious
liability or corporate negligence on the part of the defendant hospital.
As such summary granted was entered
in favor of the hospital.
Anyone wishing
to review a copy of this decision by Judge Nealon may click this
LINK.
5.
SOCIAL MEDIA DECISIONS
Notable social media discovery and
evidentiary decisions continued to trend over the past year.
Earlier this year, in the case
of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the
Pennsylvania Superior Court ruled that social media posts are inadmissible in
criminal cases unless prosecutors can present evidence of who actually authored
the commentary, that is, unless the evidence is authenticated under Pa.R.E.
901.
Both the trial court and the
appellate court in Mangel found that
merely presenting evidence that the posts and messages came from a social media
account bearing the defendant’s name was not enough to allow the evidence
in. The court noted that Facebook posts and messages must instead be
authenticated under Pa.R.E. 901 in a manner similar to how text messages and
email messages are authenticated.
The Superior Court in Mangel relied
on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996,
1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa.
2014), which dealt with the admissibility and authentication of cell phone text
messages.
It can be expected that a similar
ruling will also be handed down in the context of a civil litigation matter
should that issue come before the trial or appellate courts.
In
terms of social media discovery decisions, in Kelter
v. Flanagan, PICS Case No. 18-0266, No. 286-Civil-2017 (C.P. Monroe Co.
Feb. 19, 2018 Williamson, J.), Judge David J. Williamson granted a defendant’s
motion to compel a plaintiff to provide the defense counsel with the
plaintiff’s Instagram account log-in information.
The court ruled in this fashion
given that the defense had made a predicate showing that the
public pages on the plaintiff’s
profile showed that more information may be found on the private pages of the
same profile.
A contrary result was handed down in
the Northampton County Court of Common Pleas ruling in Allen v.
Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug.
6, 2018 Dally, J.).
This case arose out of the
plaintiff’s alleged slip-and-fall in a bathroom at the Sands Casino in
Bethlehem, Pennsylvania.
After reviewing the record before
the court, the court in Allen ruled
that the defense had failed to establish the factual predicate of showing
sufficient information on the plaintiff’s public pages to allow for discovery
of information on the plaintiff’s private pages.
In a footnote, the court also
emphasized that such a factual predicate must be established with respect to
each separate social media site the defendant wishes to access further.
For a comprehensive compilation of
social media discovery decisions, one can freely access the FACEBOOK DISCOVERY SCORECARD on the Tort Talk blog.
Many of the decisions handed down to date can be viewed and even downloaded from
that page.
4.
CELL PHONE USE - PUNITIVE DAMAGES
With the continuing absence of any
appellate authority on the issue to date, the trial courts of Pennsylvania have
developed a common law on the issue of whether punitive damages are a viable
part of an auto accident claim involving cell phone use by a defendant driver.
In the Cumberland County case
of Manning v. Barber, No. 17-7915 Civil (C.P. Cumb. Co. 2018),
preliminary objections were granted and a plaintiff’s punitive damages claim
was dismissed in a case in which the plaintiff alleged that the defendant
driver was texting while driving.
According to the opinion, the plaintiff’s
vehicle was stopped at a red light with another vehicle stopped behind it.
The plaintiff alleged that the defendant failed to stop for the traffic
light and rear-ended the second vehicle, causing it to strike to the rear of
the plaintiff’s vehicle. The plaintiff additionally alleged that, at the time
of the accident, the defendant was not looking at the roadway because she was
distracted while looking at and texting on her cell phone.
After reviewing the general law
pertaining to punitive damages, the court confirmed that there remains “a lack
of Pennsylvania appellate case law in the context of distracted driving cases
where the tortfeasor is distracted by the use of a cellular phone at the time
of the accident.”
The Manning court
concluded that the mere use of a cell phone absent additional indicia of
recklessness was not enough to sustain a claim for punitive damages. This decision can be viewed at this LINK.
3.
NON-PRECEDENTIAL OPINIONS
Over
the past year, the Pennsylvania Superior Court has continued to hand down
important decisions that are marked as "Non-Precedential" by that
Court, rendering the decisions to be of minimal or no persuasive value going
forward.
One
rationale voiced at CLE seminars for marking the decisions as
"Non-precedential" is that the Superior Court writes hundreds and hundreds of
opinions every year. Huh?
With all the room in the online world for continuing publications of
everything in this Digital Age, including numerous court decisions, the hope is that the
Pennsylvania Superior Court begins to publish all of its decisions so as to
render them precedential and, therefore, useful.
The
Superior Court internal rules or customs pertaining to marking Opinions as "Non-precedential" are as
necessary as its old, repealed rules that use to make litigators waste time needlessly looking up and citing to both the "A.2d" citation and the
"Pa.Super." citation to cases back in the day. Here's to hoping that a change is coming in 2019.
3. (Tie) THE DAWN OF UBER LITIGATION
In what may be the first reported
Pennsylvania decision in an Uber personal injury litigation matter, the court
in Fusco v. Uber Technologies, PICS No. 18-0944 (E.D. Pa.
July 27, 2018 Goldberg, J.)(Mem. Op.), conditionally granted Uber’s motion
to dismiss the plaintiff’s negligent hiring, retention and supervision claims
in a case of an Uber driver who allegedly attacked the plaintiff-customer.
In this matter, when the Uber driver
arrived to pick up the plaintiff, the driver refused to take the plaintiff to
his requested destination as it was too far. The plaintiff, apparently knowing
the rules that Uber imposes on its drivers to honor the customer's request to
be taken to a certain destination, remained seated in the car and repeated his
request to be brought home. At that point, the driver dragged the plaintiff out
of the car, kicked and beat him, leaving the plaintiff unconscious and
bleeding.
The plaintiff later filed this suit
against Uber asserting a negligent hiring claim, fraud and misrepresentation claims
and vicarious liability claims.
According to the opinion, the court
had originally granted Uber’s motion to dismiss on the negligent hiring and
related claims given that there was no record of any alleged instances of past
misconduct by the offending driver.
The court noted, however, that,
after the plaintiff filed his complaint, news outlets in the area reported that
the driver involved in the incident had a prior criminal conviction. In light
of this development, the court granted the plaintiff leave to amend
his complaint as to these claims.
Accordingly, the claim against Uber
was allowed to proceed.
Anyone
wishing to review this memorandum decision may click this LINK. The
companion Order can be viewed HERE.
And
so, with the dawn of the age of Uber and Lyft litigation arising, it may be
wise to read up on any case law you see in this regard. Please email me a copy of any decisions you
see to be posted here on Tort Talk so that all can benefit from this knowledge.
For
an article by myself and Steve Kopko, Esquire on the law pertaining to required
insurance in Uber and Lyft cases, click HERE.
2.
12 YEARS OF PRECEDENT OVERTURNED
Twelve (12) years of precedent was overturned by
the Pennsylvania Supreme Court in the case of Cagey v. PennDOT, 179
A.3d 458 (Pa. Feb. 21, 2018) (Maj. Op. by Donohue, J.)(Saylor, C.J.,
Concurring) (Wecht, J., Concurring), thereby exposing PennDOT to more litigation
relative to accidents involving guiderails along Pennsylvania state roadways.
In Cagey, the court expressly overruled the long-followed
12-year-old Commonwealth Court decision in Fagan v. PennDOT, 946
A.2d 1123 (Pa. Cmwlth. 2006), along with its progeny, which had previously held
that PennDOT is immune from liability in guiderail cases. With the Cagey
decision from the Pennsylvania Supreme Court handed down earlier this year,
PennDOT is now only immune when it fails to install a guide rail.
The Pennsylvania Supreme Court
otherwise held in the Cagey case that when PennDOT has
previously installed a guide rail, sovereign immunity is waived if the agency’s
negligent installation and design created a dangerous condition that causes or
contributes to an accident.
Although there are two
concurring opinions in the Cagey decision, it appears
that all of the justices agreed on the ultimate holding of the case.
With this reversal of many years of
legal authority that protected PennDOT from liability pertaining to guide rail
claims, it is expected that there will be a dramatic increase in litigation for
the government in defending accidents that involve alleged issues with a
guiderail.
Anyone wishing to review the
Majority Opinion written by Justice Christine Donohue may click this
LINK.
The Concurring Opinion written by
Chief Justice Thomas G. Saylor can be viewed
HERE.
The Concurring Opinion written by
Justice David Wecht can be viewd
HERE.
1.
30 YEARS OF PRECEDENT OVERTURNED
In a monumental reversal in the
case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa.
Aug. 21, 2018 Mundy, J.) (Justices Todd, Dougherty, and Wecht joined in the majority
Opinion) (Baer, J., concurring) (Saylor, dissenting, J.), the Pennsylvania
Supreme Court overturned 30 years of precedent by holding that the involuntary
movement of a vehicle can constitute the operation of a motor vehicle for
purposes of the vehicle liability exception to governmental immunity under 42
Pa. C.S.A. Section 8542(b)(1).
The plaintiff’s decedent in Balentine
was a contractor working at a site just off the side of a roadway. The Plaintiff was fatally injured when one car
struck a parked car that was running and propelled that parked car into the
pedestrian plaintiff.
The parked car was government
inspector's car which gave rise to claims being pursued against governmental
agencies that are generally protected with immunity under the Tort Claims Act. One exception to the immunity provisions is
the motor vehicle exception, for accidents involving government motor vehicles
in operation.
In this case, the appellate ladder,
the majority of the Pennsylvania Supreme Court reviewed the law behind the Tort
Claims Act and decided to overturn 30 years of precedent by holding that
movement of a vehicle, whether voluntary or involuntary, is not required by the
statutory language of the vehicle liability exception in order for that
exception to apply.
The Majority Opinion of the Court
in
Balentine can be viewed
HERE.
Justice Baer's Concurring Opinion
can be viewed
HERE.
Chief Justice Saylor's Dissenting
Opinion can be viewed
HERE.
The Pennsylvania Supreme Court's
decision in Balentine was recently
followed by Judge Julia K. Munley in the Lackawanna County case of Sands
v. Hamilton, No. 2013-CV-55 (C.P. Lacka. Co. Nov. 5, 2018 Munley, J.).
In Sands, the court addressed a defendant municipal bus company’s
Motions In Limine seeking to preclude evidence and testimony related to
negligent supervision, negligent training, and negligent retention of the bus
driver. The defense was asserting that such evidence was
irrelevant given that such evidence did not relate to the central
issue of whether the “operation” of the motor vehicle at issue
fell under an exception to the governmental immunity provided under42 Pa.
C.S.A. §8542(b)(1).
Based in part upon the Balentine decision, the court denied the
motion in limine and allowed the evidence in at trial.
Anyone wishing to review this
decision online may click this
LINK.
HONORABLE MENTIONS:
POST-KOKEN LITIGATION
Splits of authority continue to abound on many issues in Post-Koken Litigation in the continuing absence of much needed appellate guidance. Hopefully, the Superior Court will get a chance to decide some of these issues this year and issue published decisions to provide valuable precedent for the courts below.
TINCHER REVISITED
The Pennsylvania Superior Court had another chance to view the issues in Tincher as that case continued its ride up and down the appellate ladder. In this latest decision, the court again confirm that the Azzarello decision is no longer good products liability law. Yet, the plaintiff's and the defense bar continue to battle over proper language for jury instructions.
Anyone wishing to review the Pennsylvania Superior Court’s decision in Tincher may click this LINK.
JUDGES SHOULD BE ON THE BENCH FOR VOIR DIRE
In the case of Trigg v. Children’s Hospital of Pittsburgh, No. 2018 Pa. Super. 129 (Pa. Super. May 14, 2018 Kunselmen, Olson, J.J.; Bowes, J., concurring) (Op. by Kunselmen, J.), the Pennsylvania Superior Court noted that, if trial court judges want the benefit of a favorable standard of review on appeal, they better be on the bench during voir dire in order that they may assess a juror's demeanor in person when deciding whether or not to strike a juror for cause.
Anyone wishing to review a copy of this decision may click this LINK. Judge Bowes's Concurring Opinion can be viewed HERE.
A STEP FORWARD FOR CLE/CJE CREDITS FOR MOCK TRIAL PARTICIPATION
Both the Board of Governors and the House of Delegates of the Pennsylvania Bar Association have adopted a Report and Recommendation with regards to submitting a request to the Pennsylvania Supreme Court to issue a new rule allowing attorneys to earn up to 2 CLE credits a year, and judges up to 2 CJE credits a year, for their participation in the annual Mock Trial Competition.
With this adoption of the Report and Recommendation, it is now the official position of the Pennsylvania Bar Association to submit a request - on behalf of all Pennsylvania lawyers - that the Pennsylvania Supreme Court change the Rules of Continuing Education to allow for two CLE and two CJE credits for mock trial participation. That request has been submitted.
Here's to hoping the Supreme Court grants the request and thereby provides great assistance to a great program that helps high school and college students all across the Commonwealth of Pennsylvania by increasing the number of attorneys and judges who will be more willing to volunteer their time.
ALSO TRENDING IN 2018 - SHAMELESS PLUGS
In 2018, Cummins Mediation Services was launched and began to provide mediation services to assist in bringing all types of personal injury civil litigation matters to a close with much success.
Should you wish to mediate a case in the year ahead, please do not hesitate to contact me at dancummins@comcast.net or 570-346-0745 to request a CV or a proposed fee schedule.
