Thursday, August 30, 2018

Judge Mariani of Federal Middle District Court Reviews Law of Personal Jurisdiction in Federal Court


In the case of Burnside v. Peterbilt Motors Co., 3:17-CV-2121 (M.D. Pa. June 28, 2018 Mariani, J.), the court granted a Defendant’s Motion to Dismiss based upon jurisdictional objections.  

This products liability claim arose out of an incident during which the Plaintiff was injured when a bobtail truck he was using began leaking propane and then caught fire.

Judge Mariani provided a detailed review of the current standards for properly finding jurisdiction over a foreign defendant in a Pennsylvania federal court matter.

In this matter, the court stated that the Plaintiffs did not allege that the Defendant directed any activities to Pennsylvania or sent the product at issue to Pennsylvania.  The court also noted that the Plaintiff did not even allege how the product came to be in Pennsylvania.  

The court ruled that a Plaintiff cannot establish personal jurisdiction over a Defendant through the stream of commerce theory under the facts of this case.  

As such, the court granted the Defendant’s Motion to Dismiss but allowed the Plaintiff to conduct limited jurisdictional discovery before the case was completely dismissed.

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

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


Wednesday, August 29, 2018

Summary Judgment Denied in Dog Bite Case, But Punitive Damages Claim Dismissed


In the case of Pollack v. Shell, No. 14-CV-8009 (C.P. Lacka. Co. Aug. 7, 2018 Nealon, J.), the court addressed theories of liability asserted against an out-of-possession landlord in a dog bite case involving a pit bull.

Judge Terrence R. Nealon
Lackawanna County
 Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law in this regard and noted that, in order for liability to rest against an out-of-possession landlord in this context, a plaintiff must prove that the out-of-possession landlord had actual knowledge of the presence of the animal on the premises and possessed the right to control or remove the animal by retaking the leased premises.

Here, the court found issues of fact prevented the entry of summary judgment on the negligence allegations asserted by the Plaintiff.  The record contained evidence of alleged knowledge on the part of the landlord of prior attacks/bites by the dog along with evidence that the landlord had the right to retake the premises from the tenant and did not do so.

However, the court did grant the Defendant's Motion for Summary Judgment against the punitive damages claims as facts only showed alleged negligence on the part of the landlord.  The record was noted to be devoid of any evidence that the landlord acted in conscious disregard of a known risk or harm to others.

Anyone wishing to review this decision may click this LINK.



Have a dog bite case you are trying to settle?  Please do not hesitate to let me know if I can assist as a Mediator.   Resume and fee schedule available by contacting me at dancummins@comcast.net.


Tuesday, August 28, 2018

Pennsylvania Superior Court Addresses Duty Of Mental Health Providers to Warn Others of Dangers Posed by Psychiatric Patient Who Threatens


In the case of Maas v. UPMC, 2018 Pa. Super. 195 (Pa. Super. June 29, 2018 Bowes, J., Stabile, J., Ford Elliot, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court denied a Defendant’s Motion for Summary Judgment involving a case on the duty of  psychiatric treatment providers to warn others of dangers posed by psychiatric patients. 

According to the Opinion, the psychiatric patient threatened to kill “neighbors” and described a sufficiently ascertainable group such that the law imposed a duty upon the treatment providers to warn those persons of the threats.  

 The court noted that a duty to warn exists under these circumstances where the target is identifiable, not just identifiable by name, such that the mental health professionals must use reasonable efforts to identify the potential victims and provide them with warnings.  

In the case, the court noted that the potential group of victims was about 20 people, which was deemed to be manageable of people to warn.  

To review this case, please click HERE. 

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

Friday, August 24, 2018

Jurisdiction Found To Lie In Pennsylvania Over Foreign Corporation


In the case of Webb-Benjamin LLC v. International Rug Group, LLC, 2018 Pa. Super. 187 (Pa. Super. June 28, 2018 Stabile, J., Musmanno, J. and Ford Elliot, P.J.E.) (Op. by Musmanno, J.), the Pennsylvania Superior Court reversed a trial court’s decision sustaining the Preliminary Objections filed by a Connecticut Defendant.  

The Superior Court ruled that the trial court erred in holding that the trial court did not have personal jurisdiction over the Defendant Connecticut company in a breach of contract action because the Defendant registered to do business in Pennsylvania as a foreign association and nothing under 42 Pa. C.S.A. §5301 limited jurisdiction over foreign associations to claims that only occurred after registration.

The Superior Court additionally found that, by registering in Pennsylvania to do business, the Connecticut Defendant consented to general personal jurisdiction.

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

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  


For an excellent analysis on this issue, check out this LINK to an article by Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP entitled "Personal Jurisdiction Over Out-of-State Corporations After Daimler - What Now?"


Updates, Thoughts and Trends Regarding Pennsylvania Civil Litigation Law by
Northeastern Pennsylvania Insurance Defense Attorney Daniel E. Cummins

Thursday, August 23, 2018

Several Notable Decisions by Pennsylvania Superior Court on Civil Litigation Issues Handed Down in a Single Case


In the case of Hammons v. Ethicon, Inc., 2018 Pa. Super. 172 (Pa. Super. June 19, 2018 Ott, J., Stabile, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court reviewed several civil litigation issues of interest in this products liability case.   In the end, the court affirmed a judgment in favor of the Plaintiffs on appeal.  

With regards to issues pertaining to personal jurisdiction over Defendants, the court reaffirmed the rule that a Defendant challenging personal jurisdiction has the burden of supporting that objection.   See Op. at 15.

The court provided a detailed summary of the current status of the law pertaining to personal jurisdiction based upon a review of several notable United States Supreme Court Opinions, the most recent of which was in the case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, __ U.S. __, 137 S. Ct. 1773 (2107).   Concisely, after the Bristol-Myers case, the following three (3) elements must be met in order for specific personal jurisdiction to lie over a defendant:  

First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state.  

Second, the plaintiff’s claim must arise out of or relate to the defendant’s activities in the forum state or directed towards to the forum state.  

Third, overall, a finding of jurisdiction over the defendant must be fair and reasonable.  

Here, the court found that the Defendant’s suit-related contacts justified jurisdiction in that the particular Defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company.  The court additionally noted that this particular Defendant also worked with a Pennsylvania physician in developing and marketing the product which, in this case, was a medical product used to treat prolapsed pelvic organs.  

In another notable decision on a separate issue, the Pennsylvania Superior Court ruled evidence of spoliation may be admitted at trial under principles of relevance and prejudice even where a spoliation-related sanction is not issued by the court.   See Op. at 56.  The court found that evidence of document destruction in this case was highly relevant under the case presented and that the probative value of that evidence outweighed any prejudice to the Defendant.  

In this decision, the court also addressed the Defendant’s Motion for Remittitur, seeking a reduction of the substantial verdict.  Applying Pennsylvania law, the Pennsylvania Superior Court affirmed the trial court’s decision denying the Defendant’s Motion in this regard.

The Superior Court reaffirmed that, under Pennsylvania law, the decision to grant a remittitur depends on whether the award of compensatory damages lies beyond “the uncertain limits of fair and reasonable compensation” or whether the verdict “so shocks the conscience as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.”  See Op. at 69.  

The Pennsylvania Superior Court in this Hammons case also reaffirmed the law of Pennsylvania that Rule 238, pertaining to the imposition of delay damages, limits the calculation of the delay damages to compensatory damages.   The court stated that, even after amendments to Rule 238 from back in 1988, Rule 238 delay damages are not to be applied to the punitive damages aspects of a jury’s verdict.  

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

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

Wednesday, August 22, 2018

Pennsylvania Supreme Court Overrules 30 Years of Precedent Pertaining to Motor Vehicle Exception to Governmental Immunity Under Tort Claims Act

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (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 addressed the issue of whether the Commonwealth Court erred in holding that the involuntary movement of a vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. §8542(b)(1).   The Supreme Court reversed the Commonwealth Court's decision and, in the process, 30 years of precedent on the issue presented.

By way of background, the Plaintiff's decedent was a contractor hired to rehabilitate a section of a water distribution system.  At the time of the accident, the decedent was working just off to the side of a two lane road.   The decedent was inside a ditch located on the grassy strip between the sidewalk and the curb when an inspector drove up to the work site and parked his vehicle, with the engine running, approximately 10-15 feet from the ditch.  

A few moments later, a vehicle operated by another person struck the inspector's parked vehicle, causing it to move forward.   The parked vehicle struck the decedent was he stood in the ditch, drug him out and pinned him under the vehicle when it came to a stop. The decedent sustained fatal injuries.  

The decedent's estate filed a lawsuit against various Defendants.  Certain governmental Defendants obtained summary judgment from the lower court under an argument that neither the motor vehicle exception nor the traffic control device exception to governmental immunity set forth in the Political Subdivision Tort Claims Act applied.   On appeal, a divided panel of the Commonwealth Court affirmed the trial court's decision.   

At the Commonwealth Court level, that court indicated that, since “no Pennsylvania case law addresses whether involuntary movement of a vehicle constitutes operation for purposes of the governmental immunity exception, this is a matter of first impression.”  

Relying upon the fact that the vehicle at issue was parked at the time of the accident, the majority in the Commonwealth Court considered itself “constrained” to conclude as a matter of law that that vehicle was no longer in operation when the accident occurred.  As such, the Commonwealth Court concluded that the involuntary movement of that vehicle did not constitute ‘operation’ for purposes of the motor vehicle exceptions to governmental immunity.  

Further up on the appellate ladder, after reviewing the law behind the Tort Claims Act, the majority of the Pennsylvania Supreme Court held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception. 

As such, the Supreme Court reversed the decisions of the lower courts and remanded the case back  the trial court.  

In reaching its decision, the Pennsylvania Supreme Court confirmed that the word “operation” was not defined in the Tort Claims Act.   As such, the Supreme Court turned to Black’s Law Dictionary and prior Pennsylvania case law addressing the proper definition of that term in this context.   The majority emphasized that the vehicle liability exception to governmental immunity only referred to “operation,” and not to “motion.”  

With its ruling, the Pennsylvania Supreme Court overturned thirty (30) years of precedent on this particular issue, including numerous prior decisions where the immunity was held to apply in accidents involving vehicles that are stopped or parked.   That is no longer the law under this decision.  

The Pennsylvania Supreme Court ruled, in this case, that “[w]here a government vehicle obstructs a roadway, in whole or in part, we can assume, absent evidence to the contrary, that a government agent operated the vehicle to arrive at that position.”  See Op. 15.  

More specifically with respect to this case, the court found that, if a Plaintiff establishes that his injury was caused by an illegally parked government vehicle, but the movement of the vehicle itself did not cause the injury, the government would not avoid liability simply because the government vehicle was not “in motion” at the time of the injury.  Id. at 15-16.  

The Pennsylvania Supreme Court adopted the definition of an operation of a vehicle voiced by Justice Newman in her Dissenting Opinion in the case of Warrick v. Pro Cor Ambulance, Inc., 739 A.2d 127, 129 (Pa. 1999) (Newman, J. dissenting).  

Justice Newman recognized in that Dissenting Opinion that the operation of a vehicle “reflects a continuum of activity,” which entails “a series of decisions and actions, taken together, which transport the individual from one place to another.   The decisions of where and whether to park, where and whether to turn, whether to engage brake lights, whether to use appropriate signals, whether to turn lights on or off, and the like, are all part of the ‘operation’ of a vehicle.”  Id. at 128. (Newman, J. dissenting). 

The Pennsylvania Supreme Court in this Balentine case adopted Justice Newman’s definition, and found that definition to represent a reasonable standard that comports with the intent of the legislature behind the Tort Claims Act and avoids what the Pennsylvania Supreme Court deemed to be illogical results over the past 30 years of precedent that flowed from the prior emphasis on the need for motion in the previous cases.  

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.

Another Court Says No Bad Faith Where No Underlying Coverage Under Policy



In the case of Campbell v. State Farm Fire & Cas. Co., No. 2:18-cv-00292 (W.D. Pa. July 18, 2018 Hornak, J.), the court granted a carrier’s Motion to Dismiss a lawsuit filed against the carrier for breach of contract for failing to pay for fire damage to the Plaintiff’s home and for bad faith related to an alleged denial of the claim for coverage without a legal basis to do so.  

The court ruled that the Plaintiff had failed to state a valid cause of action with regards to the breach of contract claim and the coverage issues presented in this fire loss case.  More specifically, the court found that the premises in question did not meet the policy definition of residential premises so as to entitle the insured to coverage under the policy.  

The court noted that, in light of the dismissal of the breach of contract claim after the finding of no coverage under the policy, the Plaintiff’s bad faith claim could not survive in the absence of any coverage under the policy.  As such, Plaintiff’s Complaint as dismissed with prejudice in its entirety.

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


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

Click HERE to check out Attorney Applebaum's bad faith case law Blog.

Monday, August 20, 2018

THE FUTURE IS NOW: PA Federal Court Addresses Personal Injury Liability Claims Against Uber



In the case of Fusco v. Uber Technologies, Inc.,  No. 17 - 00036 (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court granted Uber’s Motion for Summary Judgment as to negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the Plaintiff customer.  

The court granted the Motion 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.  As such, the court granted the Plaintiff leave to amend his Complaint as to these claims and deferred consideration of the driver’s past conviction until a later date in the proceedings.  

By way of background, the Plaintiff attended a party in the University City neighborhood of Philadelphia. Given that the Plaintiff had alcohol at the party, he contacted Uber for a ride to his home in Cherry Hill, New Jersey.  

According to the Opinion, the Uber app conceals the customer’s destination until the start of a booked trip.   Accordingly, when a driver arises to pick up the Plaintiff, he does not know the Plaintiff’s destination.  The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable.   According to the Opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.  

In this matter, when the Uber driver arrived, he refused to take the Plaintiff to his home in southern New Jersey.  The Plaintiff 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 him and beat him, leaving the Plaintiff unconscious and bleeding. The Plaintiff later filed this suit against Uber asserting a negligent hire claim, fraud and related misrepresentation claims, and vicarious liability claims.  

The court reviewed the law requiring the Plaintiff to show that the employer was on notice of an employee’s propensity for misconduct.  As there was no such information pled in the Complaint or otherwise found in the record, the court granted Uber’s Motion to Dismiss.  However, as noted, the Plaintiff was allowed to amend the Complaint given the recent news that had come out that the driver in the incident had a prior criminal conviction.

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

Source: “Digest of Recent Opinion” Pennsylvania Law Weekly (Aug. 14, 2018).



Link to Judge Williamson's Gist of the Action Decision

Here is the missing LINK to yesterday's post on Judge David J. Williamson's Monroe County decision on the Gist of the Action Doctrine in the Weiss v. Nazareth Mut. Ins. Co. case.

I apologize for forgetting to add the Link to the original post.

Thanks for reading Tort Talk.



Gist of the Action Doctrine Held to Bar Negligence Claim


In the case of Weiss v. Nazareth Mutual Insurance Company, No. 6293-Civil-2017 (C.P. Monroe Co. July 5, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted Preliminary Objections under the gist of the action doctrine in a case arising out of an insurance claim following a fire loss.  

According to the Opinion, the Plaintiff claimed that, following the fire, the Plaintiff’s property was burglarized.   As such, the Plaintiff submitted a claim to the insurance carrier with respect to the personal property that was allegedly stolen.   In his Complaint, the Plaintiff asserted that the carrier had not acted upon his claim for some of the lost personal property.  

The Complaint additionally contained claims against a remediation company who worked on the premises following the fire.   The Plaintiff alleged that the remediation company removed some of the Plaintiff’s property during the remediation project and never returned it to the Plaintiff.   That remediation company filed various Preliminary Objections to the Complaint.  

Judge David J. Williamson
Monroe County
In part, the remediation company asserted that the Plaintiff’s claims of negligence were barred by the gist of the action doctrine.   Judge Williamson agreed, finding that this case was primarily a contract action and that the allegations of the negligence claim were nearly identical to those pled in the contract claim.  As such, the negligence claim was stricken from the Complaint on the basis of the gist of the action doctrine.  

In another notable decision in this Opinion, the court dismissed the Plaintiff’s claim for negligent infliction of emotional distress after finding that the Plaintiff had failed to assert any physical harm as required by the elements of that cause of action. 

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

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  





Standards Applicable to Motion to Seal Court Documents Pertaining to a Settlement

In the case of Hughes v. Wilkes-Barre Hospital, No. 16-CV-6463 (C.P. Lacka. Co. Aug. 9, 2018 Nealon, J.), Judge Terrence R. Nealon addressed the standards applicable to a defense motion to seal informatio pertaining to a settlement in a medical malpractice case.

In general, a defendant must establish that its interest in secrecy outweighs the well-settled presumption in favor of public access to the records of the taxpayer-supported judicial system.

After weighing various factors, the Court denied the Defendants' motion to seal the record of the settlement in this matter was denied with respect to the Plaintiffs' filed petition for court approval of a minor's settlement.

Anyone wishing to review this decision may click this LINK.

Thursday, August 16, 2018

TORT TALK TIP: COURTROOM ETIQUETTE


The following Courtroom Etiquette tips are offered up to lawyers young and old who may have been lulled into bad habits by watching too many legal dramas on TV or in the movies which typically portray hotshot lawyers who think that the courtroom is theirs as opposed to the Judge's:

-Always arrive a half hour early for your argument or hearing so as to ensure that you will be on time.

-Hand your business card to the court reporter prior to the start of the proceedings; write the name of your client on your card.

-Be polite to the tipstaff and court personnel.

-Always stand when addressing the court, even if other attorneys don't.

-Try to always refer to the Judge as "Your Honor" instead of "Judge."

-Always ask permission to approach or move about in the Judge's courtroom.

-Always stop talking, even in mid-sentence, if the Judge starts to speak.

-Never interrupt a Judge while she or he is speaking.

-Never interrupt opposing counsel -- 99% of the time you will get your chance to respond.

-Don't make faces at opposing counsel's statements.  Be stoic.  Your calm, measured legal argument will win the day not your faces or sighs or shakes of the head.

-Last but not least, keep your cell phone in your pocket or briefcase and give your full attention to the proceedings.

Wednesday, August 15, 2018

CUMMINS MEDIATION SERVICES



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.



Tuesday, August 14, 2018

Eastern Federal District Court Takes a Closer Look at Interplay Between First Party Claims and Bad Faith Claims


The issue of bad faith claims in the first party benefits lawsuits was reviewed by the Eastern Federal District Court in the case of Shea v. USAA, No. 17-4455 (E.D. Pa. July 25, 2018 Surrick, J.).  The issues came before the court on the carrier's motion to dismiss.

Following the insured's involvement in a motor vehicle accident, the insured began to receive the benefit of her $100,000 in first party medical coverage under her own policy.  At some point after a peer review, the carrier stopped the payment of the benefits.  The Plaintiff filed a breach of contract claim, alleging violations of 75 Pa.C.S.A. Section 1797, and asserted bad faith conduct on the part of the carrier.

The court noted that there are conflicting Pennsylvania state and federal court decisions on the crucial issue of whether the MVFRL's provisions pertaining to peer reviews of first party medical benefits supplants claims for breach of contract, bad faith, and consumer protection law violations.  It was noted that, to date, the Pennsylvania Supreme Court has not addressed the proper interaction of these causes of action in the first party context.

In his decision in this Shea case, Judge R. Barclay Surrick of the Eastern District Federal Court lays out the issues and the law in great detail and in an easy-to-follow fashion.

The court rejected the defense contention that the MVFRL's peer review process preempts the existing common law remedy for breach of an insurance contract's implied covenant of good faith and fair dealing.  The Court ruled that 75 Pa.C.S.A. Section 1797, which lays out the framework for first party benefits, does not prohibit an action for damages arising from an alleged breach of the insurance contract's implied covenant of good faith and fair dealing where those damages are otherwise available under the facts alleged.

In reviewing the conflicting line of cases on the issue of whether a Section 1797 peer review claim can be asserted in the same case as a Section 8371 bad faith claim, the Shea court elected to side with what it termed as a growing number of cases that have fallen on the side of allowing both claims to be pled in a single action.  In the end, the court in Shea held that, where it is alleged that a carrier failed to follow the mandates of Section 1797, a plaintiff's remedies are not limited to those stated under Section 1797, but could also include the remedies allowed under the bad faith statute found at 42 Pa.C.S.A. Section 8371.

In the end, the court denied the carrier's motion to dismiss.

Anyone wishing to review this decision may click this Memorandum Opinion may click this LINK.

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

Monday, August 13, 2018

Issues of Fact Preclude Summary Judgment in Fall Down Steps; But Claims for Attorneys Fees Dismissed


In his recent decision in the decision of Gordner v. McIntosh, No. 2017-CV-6468 (C.P. Lacka. Co. July 9, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Defendant owners’ Preliminary Objections to the Plaintiff’s Complaint, including a demurrer to the Plaintiff’s negligence cause of action stated in this slip and fall case. 

In addressing the demurrer to the Complaint, the court provided a detailed description of the current status of Pennsylvania law pertaining to slip and fall matters.   In reviewing that law, the court noted that, although there are Pennsylvania cases that stand for the proposition that mere evidence of a highly polished floor, standing alone, is sufficient to sustain a negligence claim, other cases confirm that the manner in which the polish or wax was applied and maintained could give rise to a cause of action for negligence in slip and fall matters.  

The court found that the Plaintiff stated a valid cause of action when the Plaintiff alleged that the landowners’ high gloss treatment of their hardwood stairs amounted to a negligent creation and maintenance of a hazardous condition. The Plaintiff had additionally alleged that the Defendants had failed to provide adequate lighting for the slippery stairs and/or to warn all invitees of the hazardous condition of the stairs.  

The Plaintiffs additionally asserted in the Complaint that one owner stated after the fall that “[w]e usually tell people these stairs are slippery.”  

The court found that, accepting the Plaintiff’s allegations as true as required by the standard of review for a demurrer, the Plaintiff’s Complaint stated a cognizable negligence claim.  
 

The court in this matter otherwise sustained the landowner Defendants’ demurrer to the Plaintiffs’ claim for attorney’s fees given that the Complaint failed to reference any statutory, contractual, or decisional basis for the claim for counsel fees.   As such, the court found that any claim for counsel fees in this tort action is insufficient as a matter of law.  Accordingly, the demurrer to the claim for counsel fees was sustained.

The court also struck the Plaintiff’s specific claims for dollar amounts for eight (8) separate categories of damages as being improper.   Rather, the court noted that a prayer for relief should only indicate whether or not the Plaintiff is demanding compensatory damages in excess of or below the compulsory arbitration limit in the county.  

In the end, the court sustained some of the Defendants’ Preliminary Objections and overruled others.  

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

If you need assistance in resolving your premises liability case by way of a Mediation, please do not hesitate to contact me should I be able to help you bring your case to a close.  Resume and fee schedule available on request.  Thanks.

Wednesday, August 8, 2018

Pennsylvania Supreme Court to Address Application of Fair Share Act in Products Liability Cases



The Pennsylvania Supreme Court has agreed to hear the appeal in the case of Roverano v. John Crane, No. 58 EAL 2018 (Pa. July 31, 2018) to address an issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability amongst defendants in the context of this products liability case.

The Supreme Court's Order can be viewed HERE.

The Tort Talk post on the Superior Court's decision in Roverano, along with a link to that decision, can be viewed HERE.

Source:  "Pa. Justices to Consider Application of Fair Share Act in Strict Liability Cases"  by Max Mitchell, The Legal Intelligencer (Aug. 7, 2018).

Curb Deemed Open and Obvious in Trip and Fall Case

In the case of Slappy-Sutton v. Speedway, LLC, No. 16-4765 (E.D. Pa. June 22, 2018 DuBois, J.), the court granted a Defendant’s Motion for Summary Judgment in a trip and fall case involving a curb after the court found that the curb presented an open and obvious condition.  

The Plaintiff tripped and fell over a curb in a Convenient Store parking lot after refueling his vehicle.   The Plaintiff alleged a failure to make the curb a different color to distinguish the curb from a nearby cement strip.   After reviewing pictures and expert testimonies provided by the parties, the court noted that local township code provisions did not require a landowner to distinguish between the color of a curb and the pavement below.  

The court was also influenced by the fact that the Plaintiff admitted that the lighting in the area was “pretty decent” and that he could clearly “distinguish the rise and step up” as he entered the store.  

As such, summary judgment was granted.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (July 17, 2018). 
 



 

Presence of Wet Floor Signs Does Not Establish That Floor Was Wet



In the case of Rubes v. Kohl’s Department Stores, Inc., 3:17-CV-1842 (M.D. Pa. June 29, 2018 Munley, J.), the court granted summary judgment in a slip and fall case.   In his decision, Judge James M. Munley of the Federal Middle District Court of Pennsylvania confirmed the well-established law that the mere occurrence of an accident does not establish negligent conduct on the part of another.  

In his Opinion, Judge Munley provides a detailed description of the current status of Pennsylvania law on a plaintiff's burden of proof in slip and fall matters.

The court noted that, at a minimum, a slip-and-fall plaintiff must produce some evidence either that the possessor of land had a hand in creating the allegedly dangerous condition, or that he or she had actual or constructive notice of that condition.  

In this matter, the court found that the Plaintiff presented no evidence of the condition of the floor where she slipped.  The evidence revealed that the Plaintiff walked into the store from the inclement weather outside, took three or four steps into the store, and slipped and fell.

The court otherwise noted that the presence of wet floor signs in the area of the Plaintiff’s alleged fall do not establish that the floor was actually wet, since wet floor signs can be set out on a precautionary basis.  

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

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

Monday, August 6, 2018

Summary Judgment Granted in Monroe County Under Hills and Ridges Doctrine


In the case of Bless v. Pocono Mountain Recovery Center, LLC., No. 8167 - CV - 2016(C.P. Monroe Co. May 17, 2018 Zulick, J.), 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 of a recent snowfall which caused slippery conditions. 

According to the Opinion, at the time of the accident, the Plaintiff’s husband was coming to visit her at the Defendants' premises.  When the Plaintiff saw that her husband's vehicle became stuck in the ice and snow on the roadway leading up to the location, the Plaintiff began to walk towards her husband and, while doing so, slipped and fell.

The Plaintiffs attempted to avoid the summary judgment by arguing that the hills and ridges doctrine was inapplicable because conditions were not generally icy in the area at the time of the incident and that the accumulation on the road was allegedly not natural.  

Judge Arthur L. Zulick
Monroe County

After reviewing the current status of the hills and ridges doctrine law, Judge Zulick reviewed the record before him and found no evidence of any unreasonable accumulations of snow or ice such that any ridges or elevations had formed.  

The court also noted that the record confirmed that the Plaintiff knew that the road was hazardous before she stepped on to it because she had seen her husband’s car slide backwards down the roadway on the hill.  

The court also noted that, although the Plaintiffs argued that there was insufficient evidence of generally slippery conditions prevailing in the area that day, both Plaintiffs had testified that there had indeed been a recent snow fall.  

Based upon the record before the court, summary judgment was granted under the hills and ridges doctrine.

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (June 5, 2018).  

Thursday, August 2, 2018

UIM Stacking Issue Remanded Back to State Court By Federal Court for Resolution

In the case of Allstate Fire and Cas. Ins. Co. v. Archer, No. 1:17-CV-331 Erie (W.D. Pa. June 4, 2018 Hornak, J.), the Western District Federal Court declined to address a stacking issue raised in a declaratory judgment action after finding that the issue would more properly be decided by the state court given the contractual issues presented.  

As such, in this matter, the court remanded the case to the state court system for a decision.  

In so ruling, the court weighed several factors with respect to the proper exercise of federal jurisdiction primarily as set forth in the case of State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d. Cir. 2000) [citations omitted] and Reifer v. Westport, 751 F.3d 129, 145-46 (3d. Cir. 2014).  

As such, this Western District Federal Court decision raises the question as to whether the federal district courts of Pennsylvania will accept stacking declaratory judgment actions for a decision, or will continue to remand such issues back to the state court for resolution.  

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Scott Cooper, Esquire of the Harrisburg, PA office of Schmidt Kramer for bring this case to my attention. 

Validity of UIM Rejection Form Language in Commercial Auto Policy Upheld (Mem. Op.)

In a memorandum opinion in the case of Rarick v. Federal Services Ins. Co., 2:13-cv-03286-JFL (E.D. Pa. July 10, 2017 Leeson, J.), whch involved an employee who challenged the rejection form signed by his employer on a commercial motor vehicle insurance policy, the District Court held that the employee (as a third party beneficiary) had standing to challenge the validity of the rejection of UM/UIM coverage form.

The court additionally confirmed that rejection forms under Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law apply to commercial policies. 

The District Court in Rarick ultimately held that, as there were only minor deviations in the form as compared to the form language in 75 Pa.C.S.A. Section 1731, the validity of the form was upheld.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.