Thursday, May 31, 2018

Berg v. Nationwide Decision Vacated and Reargument Granted by Superior Court


In an Order handed down yesterday (May 31, 2018), the Pennsylvania Superior Court vacated its previous decision in the case of Berg v. Nationwide and granted re-argument on the issues presented. 

The Superior Court's most recent decision prior to this one erased a $21 million dollar bad faith award in favor of the Plaintiff.  Now that decision has been erased.

To review the Tort Talk entry on the decision that was vacated, click HERE

Continuing updates will be provided on this case.

Wednesday, May 30, 2018

Pennsylvania Supreme Court Rules Pennsylvania State Police Not Entitled to Subrogate Against Claimant's Tort Settlement


In the case of Pennsylvania State Police v. WCAB (Bushta), No. 14 WAP 2017 (Pa. May 29, 2018) (Op. by Todd, J.), the Pennsylvania Supreme Court affirmed the Commonwealth Court’s decision which held that the Pennsylvania State Police does not have a right of subrogation against a claimant’s tort settlement with a tortfeasor for benefits that the claimant received under the Heart and Lung Act.  

Anyone wishing to review a copy of this decision may click this LINK. 

I send thanks to the prevailing Plaintiff’s attorney, Bruce S. Zero, Esquire of the Scranton, PA firm of Powell Law for bringing this case to my attention.  


Pennsylvania Trial Court Dismisses Suit For Auto Accident That Occurred in New York

In her recent decision in the case of Ford v. Leal, No. 3471-CV-2016 (C.P. Monroe Co. Mar. 15, 2018 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas sustained the Defendants’ Preliminary Objections and dismissed a Plaintiff’s Complaint in an automobile accident case due to lack of In Personam jurisdiction over the Defendants.

According to the Opinion, the Plaintiffs were involved in a motor vehicle accident on the New York Thruway in Rockland County, New York.  

The Plaintiff filed suit in Monroe County, Pennsylvania and the Defendants filed Preliminary Objections under Pa.R.C.P. 1028(a)(1) asserting lack of jurisdiction of the Defendants.  

More specifically, the Defendants asserted that the court did not have any personal jurisdiction over the Defendants.   The Defendants asserted that they did not reside or own real property in Pennsylvania, that the subject accident did not occur in Pennsylvania, that the Defendants were not served in Pennsylvania, and that the courts of Pennsylvania lack general jurisdiction and specific personal jurisdiction under the Pennsylvania Long Arm Statute over the Defendants.  

Judge Jennifer Harlacher-Sibum
Monroe County
Judge Harlacher Sibum noted that, according to well-established Pennsylvania case law, an alleged out-of-state automobile accident alone is not enough for a Pennsylvania court to establish personal jurisdiction over a Defendant under the Long Arm Statute, even when the Plaintiff alleges a lasting injury that continues while the Plaintiff resides in Pennsylvania.   See Op. 4 citing with “See” signal DeFay v. McMeekin, 508 A.2d 324 (Pa. Super. 1986) [other citations omitted].  

On the basis of this law, the court found that the Monroe County Court of Common Pleas did not specific personal jurisdiction over the Defendants under Pennsylvania’s Long Arm Statute and, as such, the Complaint was dismissed.  


Anyone wishing to review this decision online may click this LINK.

Monday, May 28, 2018

Eastern District Court Dismisses UIM Bad Faith Claim Due to Conclusory Allegations in Complaint

In the case of Kosmalski v. Progressive Preferred Ins., No. 17-5726 (E.D. Pa. May 2, 2018 Pappert, J.), the court dismissed a Plaintiff’s bad faith claim in a UIM action with leave to amend. 

According to the Opinion, the insured was apparently dissatisfied with the carrier’s claim evaluation and alleged that the insured had failed to evaluate the claim fairly and objectively, failed to complete a prompt and thorough investigation, failed to remit benefits promptly, failed to reasonably evaluate medical documentation, and failed to keep the insured fairly advised as to the status of the claim.

The court noted that the Plaintiff offered no further detailed facts to support these conclusory allegations.  

As such, the Eastern District Court granted the carrier’s Motion to Dismiss and held that “bare-bones” conclusory allegations that are not accompanied by factual allegations are insufficient to raise the claims to a level of plausibility required to survive a Rule 12(b)(6) Motion to Dismiss.   The court further noted that a Plaintiff must provide additional facts to show how the insured’s conduct was allegedly unreasonable and reckless.

Despite granting the Motion to Dismissed filed by the Defendants, the court did grant the Plaintiff leave to file an Amended Complaint to correct the errors noted.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog and member of the Philadelphia Law Firm of Fineman, Krekstein & Harris for bringing this case to my attention.

Check out Attorney Applebaum's excellent Bad Faith Case Law Blog HERE.  It is my go-to resource for the latest Pennsylvania and New Jersey Bad Faith cases of note.

Thursday, May 24, 2018

HOPING TO BRING YOUR CASE TO A CLOSE?



I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

New Jersey Automobile Reparation Reform Act Applied To Preclude Damages in Pennsylvania Auto Accident Case

 
In the case of Williams v. Reczynski, No. C-0048-CV-2016-3019 (C.P. Northampton Co. Dec. 14, 2017 Dally, J.), the court granted the Defendant’s Motion In Limine to preclude evidence of medical expenses and non-economic damages in a motor vehicle accident case.  

This matter arose out of a motor vehicle accident that occurred in Pennsylvania.  The Defendants were Pennsylvania residents.  According the allegations in the Complaint, the Plaintiff alleged that she was a resident of New Jersey at the time of the accident.  

During the course of discovery, it was confirmed that the Plaintiff had no insurance on her automobile at the time of the accident.  

The Defendants asserted that New Jersey law should be applied in the matter and that, under New Jersey law, the Plaintiffs should be precluded from seeking economic and non-economic damages pursuant to the New Jersey Automobile Reparation Reform Act.  

According to the Opinion, although Pennsylvania’s Motor Vehicle Financial Responsibility Law does not preclude an uninsured motorist from claiming economic damages, under New Jersey law, an uninsured motorist is precluded from seeking any damages for economic or non-economic losses.  

After completing a conflicts of law analysis, the Northampton County of Court of Common Pleas ruled that New Jersey law should indeed apply on this issue.   Applying that New Jersey law, the court granted the Defendant’s motion to preclude the Plaintiff's damages claims.  

Anyone wishing to review this case may click this LINK.


I send thanks to Attorney John A. Statler and Jason Statler of the Lemoyne, Pa law firm of Johnson & Duffy for bringing this case to my attention.   

The Days of Judges Not Being In Courtroom for Voir Dire May Be Coming to An End

 
Picking a Jury:  A View from the Bench

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 reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.  

According to the Opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire, as such the trial court judge did not have any first hand perception of the juror’s demeanor.  

Accordingly, given that firsthand perception of a juror’s demeanor is the basis for a palpable error deference standard of review, decisions on jury strikes made by judges who do not attend voir dire are not accorded this palpable error deference by the Superior Court.  

The appellate court ruled in this fashion after noting that the alleged demeanor of a perceptive juror cannot be reconstructed after the fact. by attorneys attempting to relay the same to the formerly absent trial judge.  

The Superior Court ruled that "[a] judge personally witnessing the original voir dire is essential, because it justifies our -- and the losing party's -- faith in the trial court's rulings on challenges for cause."

In her Concurring Opinion, Judge Bowes also emphasized the need for trial court judges to be in the courtroom to assess a juror's demeanor in responding to voir dire questions as part of the process of properly determining whether a juror should be stricken or not.
The Superior Court also ruled that a juror with relatives who were physicians, and who alleged showed bias as a result, should have been excused for cause.  

 Overall, the Superior Court found reversible error where a party is forced to use a peremptory challenge to exclude a juror who should have been excused for cause.  


Anyone wishing to review a copy of this decision may click this LINK.  Judge Bowes's Concurring Opinion can be viewed HERE.  

 
I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.  


 

Wednesday, May 23, 2018

Summary Judgment Granted in Med Mal Case Due to Lack of Expert Testimony


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.  

Judge Terrence R. Nealon
Lackawanna County
According to the Opinion, the Plaintiff filed a medical malpractice action alleging negligent prescription and monitoring of anti-coagulation therapy that allegedly caused a right occipital hemorrhage which required emergency treatment and allegedly resulted in permanent harm.  

The Plaintiff sued, among others, a Defendant hospital on claims for vicarious liability and corporate negligence.

The Defendant hospital filed a Motion for Summary Judgment seeking to dismiss these claims on the grounds that the Plaintiff did not produce expert opinion testimony on the issues pertinent to those claims.  

According to the Opinion, the Plaintiff did produce an expert report containing opinions from a hematology expert only as to the alleged negligence of the Co-Defendant hematologist.   The court also noted that the Plaintiff’s expert did not criticize the care provided by any hospital personnel. It was further indicated that the Plaintiff’s previously stipulated that the Co-Defendant hematologist was not an actual or ostensible agent for whom the hospital could be found vicariously liable.   Nor was there any opinion in the hematologist’s expert report asserting any institutional negligence against the hospital.

Consequently, based upon the record before it, the court found that the Plaintiff’s case lacked sufficient expert opinion evidence to establish a prima facie claim for vicarious liability or corporate negligence on the part of the Defendant hospital.   As such, the hospital’s Motion for Summary Judgment was granted.

Anyone wishing to review a copy of this decision by Judge Nealon may click this LINK.

Tuesday, May 22, 2018

Request for New Trial Denied Where Defendant Driver Found Negligent But Jury Found Causation Element Not Met in Fatal MVA Case

In the case of Steudler v. Keating, No. 8795 - CV - 2013 (C.P. Monroe Co. March 20, 2018 Williamson, J.), Judge David J. Williamson ruled that Plaintiffs were not entitled to a new trial based upon the jury’s failure to find causation even though it found the Defendant driver negligent in an auto accident case. 

The court ruled in this fashion after finding that it was possible for the jury to determine that the Defendant was negligent but that his negligence was not the factual cause of a fatal accident.  

According to the Opinion, the Plaintiffs, Erika Steudler and Victor Resto, were walking along a road in Monroe County when Resto was struck by a motor vehicle driven by the Defendant.  

The court noted that the accident occurred at night on a country back road with no street lighting.   Neither Plaintiff was carrying a flashlight at the time of the accident.  

Plaintiff Steudler did not see the accident but felt Resto brush against her the darkness when he was thrown in the air.  

Steudler filed a lawsuit against the Defendant seeking emotional damages due to witnessing the accident while Resto’s estate filed a wrongful death claim.

As noted, the matters proceeded to trial where the jury found the Defendant negligent but also found that his actions were not the factual cause of the Plaintiffs’ injuries.  

In the post-trial motions, the Plaintiffs asserted that the verdict was against the weight of the evidence and shocking to one’s sense of justice.   The Plaintiffs argued that, because the jury found that the Defendant was negligent, the jury should have found that he was also the factual cause of their injuries since it was undisputed that Resto died from the accident.  

The court ruled that a verdict is not against the weight of the evidence simply because the evidence at trial was conflicting or that a reasonable fact-finder could have decided the case in favor of either party.  

The trial court distinguished this case from the line of cases which suggest that when a Defendant is found negligent and both parties admit that there was some injury, then the Defendant must be found to have caused at least some portion of the injuries alleged.   Here, the court noted that the most distinguishable factor between that line of cases and this case was the issue of the Plaintiffs’ contributory negligence.   The court noted that, in the line of cases cited the Plaintiffs, the Defendants had admitted negligence and there was no difference in opinion that the Defendants’ negligence had caused those accidents, which cause some personal injury.  

In the Steudler matter, the Defendant never admitted negligence and there were claims of contributory negligence pursued.   The defense argued that the sole cause of the accident was the Plaintiffs’ own acts or omissions.   It was the Defendant’s defense that he operated his vehicle within the posted speed limit, stayed within his lane of travel, and never saw the Plaintiffs prior to the impact.  

The court also noted that the parties presented experts with different opinions on the theory of the cause of the accident in this matter.

In the end, the court found that the jury’s verdict in this matter could have been based upon the jury’s belief that Resto was in the roadway, together with Steudler, and that, if he was not, he may not have been struck and killed. 

As such, the court denied the Plaintiff’s request for a new trial under the case presented.

Anyone wishing to review a copy of this decision may click this LINK

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (April 10, 2018).

Superior Court Gives a Primer on How To Preserve Request for JNOV

In the case of Corvin v. Tihansky, No. 2018 Pa. Super. 91 (Pa. Super. April 20, 2018 Bender, P.J.E., Shogan, J., Strassburger, J.) (Op. by Shogan, J.), the Superior Court affirmed a trial court’s denial of a Plaintiff’s request for a new trial or a judgment notwithstanding the verdict (JNOV) after the jury found that the defendant driver’s negligence in a rear-end accident was not a factual cause of any harm.  

According to the Opinion, the court ruled in this fashion after finding that the Plaintiff waived his JNOV issue where the Plaintiff’s counsel failed to move for a directed verdict, and where the Plaintiff’s counsel withdrew his request for a binding jury instruction. 

The court additionally noted that the jury's verdict may have been supported by the fact that the Plaintiff’s allegedly concealed of his pre-accident chiropractor visits from his own physicians which  presented the jury with an issue of credibility. 

The court also noted that one of the Defendant’s experts also offered an opinion that the Plaintiff had not been injured in the subject accident.  

The Superior Court found that there was no abuse of discretion in the trial court’s refusal to substitute its judgment for that of the jury with respect to the Plaintiff's request for a new trial.  


Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (May 8, 2018).  


Monday, May 21, 2018

Recklessness Allegations Allowed To Stand in MVA Case Where Plaintiff Confirms No Punitive Sought



In the recent Northampton County Court of Common Pleas decision of Nolen v. Esken, No. C-48-CV-2018-0385 (C.P. North. Co. March 28, 2018 Beltrami, J.), the court overruled a Defendant’s Preliminary Objections to allegations of recklessness contained in a Plaintiff’s motor vehicle accident Complaint.  

According to the Opinion, in their Complaint, the Plaintiffs alleged recklessness on the grounds that the Defendant was speeding at the time of the accident, ran a red light, and collided with the Plaintiff’s vehicle.  

In Preliminary Objections, the Defendant moved to strike the allegations of recklessness and other related terms from the Plaintiffs’ Complaint, arguing that the Complaint failed to set forth facts to support such allegations.   The Defendant asserted this objection under Pa.R.C.P. 1028(a)(2), which allows for Preliminary Objections on the grounds of inclusion of impertinent matter in a Complaint.   

The court noted that, under Pennsylvania law, to be impertinent, the allegations must be immaterial to the proof of the cause of the action.  The court also noted that, only where an allegation is wholly irrelevant to the action and cannot influence the result will such allegations be deemed to be impertinent.   The court also noted that the right of a trial court to strike impertinent matters should be sparingly exercise under Pennsylvania law and utilized only when a party can show prejudice.   See Op. at 2. 

In response to the Preliminary Objections, Plaintiffs argued that they had not claimed punitive damages and have only alleged “recklessness” in their Complaint in order to attempt to preclude the Defendant from raising arguments of comparative negligence in the case.   The Plaintiff was relying upon the case of Krivijanski v. Union R. Co., 515 A.2d 933, 936 (Pa. Super. 1986), in which the Pennsylvania Superior Court held “that when willful or wanton misconduct is involved, comparative negligence should not be applied.”  

Judge Beltrami ruled that, given that the Plaintiffs were not seeking punitive damages, and given that the Plaintiffs stated reason for pleading “recklessness” and other related terms under the law of the Krivijanski holding, such allegations in this matter could indeed serve to influence the case and were, therefore, not impertinent.   

The court also felt that the Defendants would not be prejudice by the allegations given that the Plaintiff had not claimed punitive damages.  

I send thanks to Attorney Ed Shaughnessy of Shaughnessy Law Office in Easton, Pennsylvania for bringing this case to my attention.  

Anyone wishing to review this case may click this LINK.

Commentary:  Defense litigators should beware of allowing allegations of recklessness to stand without challenge, even where Plaintiff asserts that they are not claiming punitive damages, as such allegations may leave the door open for the Plaintiff to amend the Complaint later in the litigation to then include punitive damages.   Apparently, this potential prospect was not argued or considered in this particular case. 

Tuesday, May 15, 2018

Limited Tort Motion for Summary Judgment Denied in Lackawanna County

In his recent Opinion in the case of Borick v. Manley, No. 2013-CV-994 (C.P. Lacka. Co. April 4, 2018 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas denied a Defendant’s Limited Tort Motion for Summary Judgment.  

According to the Opinion, the defense argued that the Plaintiff did not sustain any serious injury as a result of the accident.  In support of this argument, the defense asserted that the Plaintiff did not lose consciousness as a result of the accident and that no airbag deployed.   It was also asserted that the Plaintiff refused an ambulance at the scene of the accident.  The defense additionally noted that the Plaintiff left the scene of the accident and proceeded to drive to work, after which she subsequently had her mother drive her to the emergency room.  

The defense also asserted that the Plaintiff was diagnosed in the emergency room with only cervical and thoracic strain injuries.   Thereafter, the Plaintiff underwent diagnostic studies, including x-rays, MRIs, and an EMG test, all of which returned normal results.  

Although the defense conceded that the Plaintiff continued to assert ongoing and chronic neck and back pain, it was the defense position that the Plaintiff’s allegations alone coupled with a lack of long-term diagnosis confirmed by any medical record, rendered the Plaintiff’s case barred by her Limited Tort selection.   As additional support for its argument, the defense also pointed to its IME report.  

In opposition, the Plaintiff emphasized the injuries and treatment alleged and also asserted that the injuries sustained were serious injuries as allegedly demonstrated by the impact of the accident upon the Plaintiff’s life.   In particular, the Plaintiff asserted that, following the accident, she was unable to work in her position as a pharmacy technician and/or as a bartender, given that she was allegedly no longer able to remain on her feet for extended periods of time due to her injuries.   The Plaintiff additionally noted difficulties in driving, lifting, exercising, performing household activities, walking her dog, and other activities of daily living.  

Judge James A. Gibbons
Lackawanna County
Based upon the record before it, and viewing the evidence in a light most favorable to the non-moving party as required by the Motion for Summary Judgment standard of review, Judge Gibbons found that genuine issues of material fact existed as to whether the Plaintiff sustained a serious injury.   As such, the court denied the Defendant’s Motion for Summary Judgment and allowed the case to proceed to trial.  

Anyone wishing to review a copy of this decision may click this LINK.


    

Monday, May 14, 2018

Default Judgment Opened in Monroe County Where Elements for Relief Met


In his recent decision in the case of Brozzetti v. Liz, No. 3621-Civil-2017 (C.P. Monroe Co. Mar. 9, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted certain Defendants’ Petition to Open a Default Judgment. 

According to the Opinion, this case arose out of a motor vehicle accident.   The Plaintiff filed suit against an alleged DUI Defendant driver and various entities under a Dram Shop Act action.

The Opinion notes that the Complaint was served on the Dram Shop Defendants and, due to their failure to respond, a default judgment was eventually entered against those Defendants.  

In ruling on the Petition to Open the Default Judgment, the court noted that such a judgment may be opened by the court when the petitioning party can show that they have (1) promptly filed a Petition to Open a Default Judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the Complaint.   See Op. at p. 4 [citations omitted].  

In this matter, the issue of prompt filing and the excuse for not having filed a responsive pleading were noted by the court to be closely intertwined. 

The Dram Shop Defendants asserted that, when they were served with the Complaint, the documents were provided to their long time insurance agent, and the Dram Shop Defendants were assured that the matter was being handled.   

However, it appears that the agent never provided the information to the insurance carrier and other evidence was provided to show that the insurance agent had sold his business, and may have spent time in hospital during the time in question, and may have otherwise lost his ability to operate as a licensed insurance agent.   

The court confirmed that the record indicated that once the problems were discovered, prompt steps were taken by the Defendant to secure counsel and to have a Petition to Open the Default Judgment filed.  

Judge Williamson compared the facts before him as being similar to those cases where the courts have excused the neglect of counsel that results in the entry of default judgment through no fault of the defendants themselves.   Judge Williamson felt that the same could be said in terms of reliance upon a representation by the insurance agent that the claim and the matter were being handled.   

Overall, Judge Williamson felt that the Dram Shop Defendants had acted in a timely manner once they became aware that no insurance claim had been transmitted by their insurance agent.   The court noted that, thereafter, in a span of approximately only 17 days, a claim was then opened, an attorney was assigned, that attorney reviewed the file and entered his appearance, and filed the Petition to Open and an Answer to the Complaint.  

Under these circumstances, the court felt that the Dram Shop Defendants had provided a reasonable excuse for their failure to file a responsive pleading, i.e., that they were unaware that their insurance agent had failed to transmit the claim to the carrier for a defense in light of the agent's assurances otherwise.  

On the final element, the court found that the Dram Shop Defendants had presented meritorious defenses to the claims provided.  

Based upon the above, the court found that the Defendants had met their burden in support of their Petition to Open the Default Judgment.

Anyone wishing to review this Opinion online may click this LINK.

Friday, May 11, 2018

Parameters of Neuropsychological IME Reviewed in Dauphin County Case

Dauphin County Court of Common Pleas
In an Order only issued by the Dauphin County Court of Common Pleas in the case of Eberhard v. Pettis, No. 2014-CV-78180-CV (Jan. 31, 2018 McNally, J.), the court compelled a Plaintiff to attend an independent neuropsychological evaluation. 

In the Order, the court permitted Plaintiff’s counsel, or another representative of the Plaintiff, to attend the interview phase of the evaluation only.   The Order further prohibited the Plaintiff from recording the standardized testing portion of the evaluation.  

In its Order, the court cited to the Pennsylvania Supreme Court case of Shearer v. Hafer, No. 93 MAP 2016 (Pa. 2018) as supporting the trial court’s decision in this regard.  

Anyone wishing to review this Order only, may click this LINK.

For other Tort Talk posts on cases addressing the permissible parameters of neuropsychological examinations, please click HERE

Wednesday, May 9, 2018

Assumption of Risk Found to Bar Trip and Fall Plaintiff's Recovery

In the case of Sycalik v. Hoover, No. 2016-1227-CD (C.P. Clearfield Co. April 16, 2018 Ammerman, P.J.), the court granted summary judgments filed by the Defendants in a trip and fall case after finding that the Plaintiff had voluntarily assumed the risk of her own injuries.  

According to the Opinion, the Plaintiff tripped and fell near the bottom of the steps to the outside portion of the property.   There was no dispute in the record that the bottom portion of the steps to the property, along with the berm at the bottom and adjacent to the road, were damaged.  

However, the record also established that the Plaintiff was very familiar with the premises having lived there for many years in the past and given that her father currently resided in the home for the past ten (10) years such that the Plaintiff visited the home “thousands” of times since her childhood. The court noted that this meant that she had ascended and descended the front steps thousands of times as well as the steps were the only entrance/exit from the home.  

As such, the record confirmed that the Plaintiff knew that the bottom step was damaged and problematic and that the Plaintiff had discussed the damaged step with the persons who lived on the premises.  It was also noted that the Plaintiff confirmed at her deposition that she had a habit of stepping to the left of the last damaged step, onto a grassy slope, in order to avoid the step.  

According to the Opinion, on the date of the Plaintiff’s injury, the Plaintiff had stepped to the left as usual, but missed the spot where she would usually step and instead caught her left foot on the corner of the last step, as a result of which she was caused to fall.  

Turning to the law, the court referred to the §342 of the Restatement (Second) of Torts which covers the liability of a possessor of land towards a licensee and confirms that liability applies if the possessor of land knew of the condition and realized that it involved an unreasonable risk of harm that is likely to be undiscoverable and fails to make the condition safe or provide adequate warning. 

The Restatement also indicates that, in order for liability to apply, it must be established that the licensee did not know or have reason to know of the condition and the risk involved.  

Relying on the case of Carrender v. Fitterer, 469 A.2d 120, 126 (Pa. 1983), the court in Sycalik applied the assumption of risk doctrine to bar the Plaintiff’s recovery.  

The court also rejected the Plaintiff’s assertion that the assumption of risk cases were distinguishable because the Plaintiff had no alternative route.  

The Sycalik court additionally noted that Pennsylvania law also establishes that, when a Plaintiff voluntarily chooses to walk upon an area not intended to be traversed, such as a grassy slope, the Plaintiff has not stated a valid cause of action.   By way of an example, the court cited to the case of Gilligan v. Villanova University, 584 A.2d 1005, 1008 (Pa. Super. 1991), in which judgment was entered against a Plaintiff who fell when the Plaintiff chose to walk over a grassy area instead of the nearby sidewalk..   

Given that there were no genuine issues of material fact and given that the court found that the Plaintiff had assumed the risk of her injury, summary judgment was granted. in this Sycalik case. 

 
Anyone wishing to read this decision, may click this LINK.

I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch for bringing this case to my attention.