Friday, September 28, 2018

CUMMINS MEDIATION SERVICES



I welcome the opportunity to assist you in bringing your case to a close 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.

Thursday, September 27, 2018

Application of Discovery Rule Compels Court To Grant Summary Judgment Based Upon Statute of Limitations


The discovery rule pertinent to the statute of limitations was reviewed by the court in the case of Adams v. Zimmer US, Inc., No. 17-621 (E.D. Pa. Aug. 14, 2018 Smith, J.). 

In this matter, the Plaintiff had undergone a hip replacement surgery in 2011 and had continuing pain and complications thereafter.  She had a repeat surgery in 2015 to remove and replace the prosthesis.  She filed a products liability suit against the manufacturer for an allegedly defective prosthesis.

The court noted that it felt constrained to grant summary judgment in this matter under the rationale that the Plaintiff’s claims were barred by the statute of limitations and the application of the discovery rule.   In so ruling, the court found that Pennsylvania’s narrow discovery rule tolls the statute of limitations only until the injured party discovers, or by reasonable efforts should discover, the injury and that it was caused by another party’s negligent conduct. 

The court reaffirmed the principle of law that the discovery rule does not require knowledge of tortious conduct, precise cause, or the full extent of injury.  

In this matter, the Plaintiff knew that she had some form of injury before undergoing her replacement surgery.    The Plaintiff’s denial that her doctor told her what appears in his notes is insufficient.  The court stated that insufficient memory does not create a genuine dispute because “I don’t recall” does not rebut affirmative testimony to the contrary on the issues presented.  

The court additionally noted that the Plaintiff’s signed informed consent form mentioning “metallosis” more than two (2) years before the Plaintiff brought suit, satisfied the mandates discovery rule even if the Plaintiff allegedly did not read the consent form.  

The court otherwise held that the discovery rule takes an objective view of what a person in the injured party’s situation knew or should have known under the circumstances presented.   Consistent with the above law, the court held that knowledge that a product is defective is not necessary.  

Anyone wishing to review a copy of this Opinion may click this LINK.  The Court's Order 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.





Tuesday, September 25, 2018

A Primer on Joining Additional Defendants

In the case of Kessock v. Conestoga Title Ins. Co., 2018 Pa.Super. 226 (Pa.Super. Aug. 9, 2018 Shogan, J., Lazarus, J., Dubow, J.)(Op. by Shogan, J.), the Pennsylvania Superior Court affirmed the joinder of an additional defendant in the matter where the court found that the additional defendants were not prejudiced by the untimely joinder motion and where the applicable statute of limitations had not yet begun to run on crossclaims for indemnification where no underlying judgment had been entered yet in the case.

In its decision, the Court provides a nice overview of the Rules of Civil Procedure pertaining to the joinder of additional defendants in a civil litigation matter.

This Opinion can be viewed online HERE.

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

Monday, September 24, 2018

Voting Open for the Expert Institute's Annual Best Legal Blog Contest

The Fourth Annual Expert Institute Best Legal Blog Contest has opened the voting.  If you are interested in voting for Tort Talk, please click this LINK.

Thank you for your support of Tort Talk!



Thursday, September 20, 2018

Motion to Sever and Stay Bad Faith Claim Denied in Blair County Case


In the case of Blair County case of Fisher v. Erie Insurance Exchange, No. 2016-GN-298 (C.P. Blair Co. May 9, 2018 Bernard, J.), the trial court denied the insurance company’s Motion to Sever the UIM and bad faith claims and further denied the carrier’s Motion to Stay the bad faith case.

This matter arose out of a motor vehicle accident and a UIM claim pursued by the injured party Plaintiff.  

In its decision, the court reviewed the split of authority and case law in the various state and federal courts on the issues of severance and stay of bad faith claims in post-Koken matters. The courts noted that the federal courts in Pennsylvania tend to deny such motions and that the state trial courts have varying results, including conflicts within some same counties.  

In Blair County, where this case is pending, there were previous decisions in which such motions to sever were denied and bad faith discovery was allowed to proceed.   In this regard, the court cited the case of Swan v. Moorefield, No. 2014-GN-2606 (C.P. Blair Co. Nov. 9, 2017).  

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

I send thanks to Attorney Scott Cooper of the Harrisburg, Pennsylvania law firm of Schmidt Kramer for sending this case to my attention.  



Limited Deposition of Claims Rep Allowed in Luzerne County Post-Koken Case


In her recent Order in the case of Simonetti v. Lalko and Depositors Ins. Co., No. 2018-CV-02421 (C.P. Luz. Co. Aug. 27, 2018 Gelb, J.), the court denied the carrier’s Motion for a Protective and to Stay a Deposition of its Adjuster but confirmed that the Plaintiff may not inquire into areas of the adjuster’s mental impressions or conclusions or opinions respecting the value or merit of the claim or with respect to defenses of the claim or strategy or tactics in the defense of the claim by the carrier.   

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


 

 

Tuesday, September 18, 2018

PA Eastern Federal District Court Finds Long Arm Statute for Personal Jurisdiction Not Abrogated



In the case of Allstate Insurance Company v. Electrolux Home Products, Inc., No. 5:18-00699(E.D. Pa. Aug. 3, 2018 Leeson, J.), the court granted a Motion to Sever and Transfer a portion of the case.

The court ruled that the Plaintiff’s Complaint, joining together 86 separate subrogated incidents from many different states, could not stand before the Eastern District Federal Court.  

This decision is notable in that the court reaffirmed the rule that registration to do business in Pennsylvania, without more, is sufficient to establish general personal jurisdiction over a corporate Defendant.

Judge Leeson also reaffirmed the precedent holding that cases interpreting the Pennsylvania long arm statute in this regard have not be abrogated by more recent United States Supreme Court precedent.  

Relative to the claims in this matter, which arose under different states’ laws, the court felt that the claims should be severed.   After severance, the cases are considered to be separate cases, and many of them in this matter were found to fail to satisfy the diversity amount in controversy requirement, which necessitated the dismissal of those claims.   The remaining valid non-Pennsylvania cases  were ordered to be transferred to a more appropriate forum. 

Anyone wishing to review a copy of this case may click this LINK.  The Court's Order 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.

Personal Jurisdiction Issues Reviewed by Judge Brann in PA Federal Middle District Court Case


In the  products liability case of Mendoza v. Electrolux Home Products, Inc., No. 4:17-02028 (M.D. Pa. Aug. 20, 2018 Brann, J.), the court reviewed various personal jurisdiction issues and denied a Plaintiff’s Motion for a Re-transfer of a Case.  

Of note, the court ruled that, since an argument of a lack of personal jurisdiction is waivable, and given that the Defendants had consciously waived personal jurisdiction issues in this matter, the Plaintiffs could not rely upon the lack of such jurisdiction to support a re-transfer of this action.  

Judge Brann otherwise held that Defendants that have registered to do business in Pennsylvania thereby consent to the exercise of personal jurisdiction by Pennsylvania courts.  

Judge Brann additionally reviewed Pennsylvania cases in this context and found that cases interpreting Pennsylvania’s long arm statute have not been abrogated by more recent United States Supreme Court precedent. 

Anyone wishing to review a copy of this case may click this   The court's Order 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.




Punitive Damages and Corporate Negligence Claims Against a Summer Camp Addressed By Judge Mannion


In the case of Goodfellow v. Shohola, Inc., No. 3:16-1521 (M.D. Pa. Aug. 21, 2018 Mannion, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving alleged negligent medical care provided by a summer camp to the Plaintiff's child..    

Judge Malachy E. Mannion
M.D. Pa.
In part, the court ruled that, where the Plaintiffs’ original Complaint pled a plausible factual basis for punitive damages, even though the original Complaint did not request such damages.  Later punitive damages allegations asserted by the Plaintiff were deemed to relate back and were, therefore, not barred by the statute of limitations.

In another notable decision in this matter, the court ruled that an overnight camp is not the type of entity that can be held liable on a corporate negligence medical malpractice claim.   The court found only that a comprehensive health center with responsibility for arranging and coordinating the total health of its patients can be subject to such corporate negligence liability.  

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm, and writer of the excellent Drug and Device Law Blog, for bringing this case to my attention.






Monday, September 17, 2018

Judge Caputo of Federal Middle District Addresses Proper Pleadings for a UIM Breach of Contract Claim


In the case of Swientisky v. American States Insurance Company, No. 3:18-cv-1159 (M.D. Pa. Aug. 8, 2018 Caputo, J.), the court granted in part and denied in part the UIM carrier’s Motion to Dismiss relative to a UIM claim asserted by the Plaintiff. 

According to the Opinion, this matter involved a UIM claim in which bad faith was not pled.   Rather, this was a breach of contract claim that included allegations of generic violations of the Motor Vehicle Responsibility Law in support of a claim for UIM benefits.  

The UIM carrier filed a Motion to Dismiss asserting that allegations of improper claim handling should be stricken from the Complaint because such alleged improper claim handling was not relevant to a cause of action in which bad faith has not been pled.

The court disagreed and found that improper claim handling could be relevant to a contract claim, even in the absence of bad faith, because the decision-making during the claims handling could go to the reasoning behind the denial of the contract claim.  

On another issue, the UIM carrier asserted that the court should dismiss, or order a more definite statement, with respect to the insured’s unidentified statutory violations given that the Plaintiff had failed to allege any bad faith violation or identify the provisions of the MVFRL that the carrier allegedly violated.

Judge A. Richard Caputo
Pa. M.D. Ct.
Judge Caputo dismissed this statutory count in the Complaint given that the Plaintiff had failed to plead an alleged statutory violation with any detail and given that the facts pled did not set forth such alleged wrongdoing. 

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

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

Friday, September 14, 2018

TORT TALK PRACTICE TIP


PUT YOUR SUMMARY LETTERS INTO CONTEXT

When writing a letter summarizing medical records or other documents to a client or a claims representative overburdened with hundreds of files to manage, it may help the reader to put the case into context.  A suggested way to do this may be to start all letters in the following fashion:

Dear __________:

Please allow this letter to serve as a status report in the above matter.

We recently received the enclosed records from Dr. John Jones, the Plaintiff's family doctor.  What follows is a concise summarization of the same.

As you may recall, this matter arises out of a September 1, 2016 rear end motor vehicle accident that occurred on Main Street in Scranton, Lackawanna County, Pennsylvania.  The Plaintiff primarily alleges neck and back injuries.


With these introductory paragraphs in the letter, the reader can refer back to see the date of the accident as they follow along the chronology of the treatment history contained in the summary letter.

Also, if the summary letter reviews an extensive prior medical history along with a lengthy post-accident treatment history, be sure to include a one line paragraph in the appropriate spot in the chronology that reads:

As stated, the rear end subject accident occurred on September 1, 2016.

Again, this will put the history of the case into context for the reader for his or her ease of understanding.





Wednesday, September 12, 2018

Summary Judgment Granted in Claim That Employee Was Driving Drunk


In the case of Huff v. Moser, No. Civil 14-S-773(C.P. Adams Co. May 14, 2018 George, J.), Judge Michael A. George of the Adams County Court of Common Pleas issued a Rule 1925 Opinion requesting the Superior Court to affirm his entry of summary judgment in a fatal motor vehicle accident case.     

In his trial court decision, Judge George concluded that the Plaintiff’s Complaint failed to allege a viable claim for vicarious liability on the part of a Defendant employer for actions of the employee who allegedly struck and killed a victim while driving the company car under the influence of alcohol. 

The court ruled in this fashion as none of the negligence allegations involved conduct committed during the course and scope of the driver’s employment.   The court emphasized that there were no specific allegations in the Complaint that the Defendant driver was working or acting within the course and scope of his employment at the time of the accident.   

The court additionally noted that, even if the Plaintiff had properly pled a claim for vicarious liability on the part of the employer for the actions of the driver, there was a lack of any factual dispute that would entitle the case to proceed to a jury on the liability issues presented.  

More specifically, the court noted that it appeared to the Plaintiff’s claim that the employer had a duty to secure a vehicle from being operated by an unlicensed driver who had been expressly prohibited from operating the vehicle. Judge George stated that he had not located any case law which placed a duty upon one to take affirmative steps to avoid criminal acts of another where there was no obvious known risk of such criminal acts.  

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

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




Tuesday, September 11, 2018

Expert Testimony Needed on Alternative Design Theories in Products Cases

In the case of Dunlap v. Fed. Signal Corp., 2018 Pa. Super. 231 (Pa. Super. Aug. 20, 2018 Bowes, J., Lazaurs, J., Ott, J.) (Op. by Bowes, J.)(Lazarus, J., Dissenting), the Pennsylvania Superior Court affirmed the entry of summary judgment for a Defendant in a products liability case in which it was asserted that the design of the siren caused the hearing loss of a class of firefighters.   The court ruled that an alternative product design’s compliance with governmental or industries standards, in the absence of expert testimony, was insufficient to establish that an alleged defective product was unreasonable dangerous.  

More specifically, the Superior Court agreed with the trial court’s finding that the Plaintiffs required expert testimony to establish that an alternative design of the siren just as an effective warning device for all persons, such as pedestrians, as the Plaintiff’s reference to the industry standard was not an acceptable substitute for such required expert testimony.   

Ultimately, the Superior Court affirmed the finding that the Plaintiffs’ expert’s failure to opine on the alternative design of the siren for the safety for pedestrians and motorists was fatal to the Plaintiff’s claim that the alternative design was an acceptable alternative design that would render the Defendant’s currently designed siren unreasonably dangerous.  

 Anyone wishing to review a copy of  Majority Opinion for this decision may click this LINK.  The Dissenting Opinion can be viewed HERE   

Sources:  “Court Summaries by the Clawges of the Pennsylvania Bar News (Sept. 10, 2018).   I also send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas, Thomas & Hafer for bringing this case to my attention.

Monday, September 10, 2018

"Snap" Removal of Case to Federal Court Approved by Third Circuit Court of Appeals

In what some are calling the first federal appellate court decision on the issue, the Third Circuit Court of Appeals approved the practice of "snap" removals, the process by which Defendants remove cases filed in state court to federal court even before the Defendant has been served.  

The decision came down in the case of Encompass Insurance v. Stone Mansion  Restaurant, No. 17-CV-1749 (3d Cir. Aug. 22, 2018) (Op. by Chagares, J.).  

According to an article entitled “‘Snap’ Removal Given Green Light by Third Circuit” by Max Mitchell in the August 30, 2018 edition of the Pennsylvania Law Weekly, snap removals most often occur in cases where there are no multiple Defendants.   Such snap removals occur when Defendants get wind of a lawsuit that has been filed before they have been fully served by the Plaintiffs. This is typically accomplished by the Defendant by monitoring the electronic dockets.   Once they learn of the suit, Defendants then seek to remove the case to federal court arguing that, since they have not yet been “properly served,” they are not yet barred from removing the case.   
 
As noted, this procedural strategy has been approved by the Third Circuit in this decision, which can be viewed online HERE.
 

Sunday, September 9, 2018

Judge Gartley of Luzerne County County Grants Severance of Post-Koken Bad Faith Claim But Denies Stay of Discovery Efforts

Hurricane Koken continues to swirl through Pennsylvania.

In her recent Order in the case of McLaughlin v. State Auto Property and Cas. Ins. Co., No. 2017-CV-08471 (Aug. 29, 2018 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas granted in part and denied in part the UIM carrier’s Motion to Sever and Stay the Plaintiffs’ statutory and common law bad faith claims in a Post-Koken litigation.

The Court agreed to sever the bad faith claims from the breach of contract claims for trial purposes but denied the motion for a stay of any bad faith discovery.  

The Order additionally noted that any bad faith discovery disputes should be submitted to the court for a determination as to whether the information at issue is protected from discovery or warrants a redaction until the breach of contract/UIM claims have been submitted to the jury for final disposition.  

The court further ordered that the UIM carrier shall deliver any and all unredacted or withheld copies of bad faith discovery when the case is sent to the jury for deliberations on the breach of contract/UIM case.  

The court additionally noted that, upon receipt and review of the bad faith discovery, the Plaintiff may request an immediate non-jury trial on the bad faith claim or seek a continuance to conduct pre-trial preparation of that bad faith claim.   

Commentary:
 
The court’s Order in this regard follows, without citation, the decision of Judge Terrence R. Nealon in the Lackawanna County Court of Common Pleas case of Fertig v. Kelley , which followed, in part, decisions by Judge R. Stanton Wettick of the Allegheny Court of Common Pleas in the cases of Gunn v. The Automobile Ins. Co. of Hartford and Wutz v. Smith.  

It is noted, however, that other county courts have ruled to instead sever and/or stay bad faith claims from the UIM claims such that there remains a split of authority among the county trial courts of Pennsylvania without any appellate guidance to date. 


Anyone wishing to review this Order by Judge Gartley may click this LINK.

Thursday, September 6, 2018

Pennsylvania Supreme Court Provides Guidance on Preserving Appellate Issues on Jury Instructions

In the case of Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018) (Op. by Wecht, J.), the Pennsylvania Supreme Court clarified the steps necessary to preserve for appeal any objections with regards to the trial court’s instructions to the jury at trial.  

This case arose out of a motor vehicle accident negligence case.


Prior to trial, the Plaintiff filed proposed Points for Charge with the court. Within those proposed Points for Charge were three (3) proposed instructions related to the Doctrine of Negligence Per Se.  

After trial commenced, but before the case was sent to the jury, the court held a charge conference with the attorneys involved.   Thereafter, the trial court provided its instructions to the court and did not include any instructions concerning negligence per se.  

In the courtroom, after charging the jurors, the trial court judge asked counsel whether there was anything with respect to the charge that either party wanted to put on the record.   The Plaintiff’s lawyer responded “I have no issues with the charge, Your Honor.”  

The jury returned a defense verdict.

The Plaintiff filed post-trial motions asserting, in part, that the trial court erred in failing to instruct the jury as to negligence per se.   The defense asserted that the Plaintiff had waived that issue by failing to lodge a timely objection at trial. The Plaintiff responded that the issue had been preserved by filing the written Proposed Points for Charge with the court and by raising the issue in a pre-trial motion.

The trial court denied the Plaintiff’s post-trial motion and the case went up the appellate ladder, eventually reaching this decision by the Pennsylvania Supreme Court.  

The Pennsylvania Supreme Court had granted review of the case, in part, in order to clarify the steps one may take to preserve a challenge to the trial court’s jury instructions in accordance with Pennsylvania Rules of Civil Procedure  227.1.  

Ultimately, the Pennsylvania Supreme Court ruled that, since the Plaintiff failed to lodge a contemporaneous objection to the trial court’s instruction at trial or to state any objection when invited to do so by the court at the conclusion of the instructions, the Plaintiff’s challenge to the instructions was deemed to have been waived.  Accordingly, the lower court decisions were affirmed. 

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

HERE is the Concurring Opinion by Chief Justice Saylor.

HERE is the Dissenting Opinion by Justice Dougherty.  

HERE is the Dissenting Opinion by Justice Mundy.

Commentary: The lesson here is to, at a minimum, raise to file Proposed Points for Charge with the instructions you desire prior to the start of the trial, make your voice heard on instructions desired at the Charge Conference, and place your position on the record at the conclusion of the jury instructions when the court invites you to do so.

Berks County Court Addresses UIM Credits for Non-Auto Liability Policies


In the case of Adams v. GEICO, No. 15 - 18880 (C.P. Berks Co. Aug. 7, 2017 Fudeman, J.), the Berks County Court of Common Pleas addressed issues pertaining to offsets and credits due in a UIM matter.

By way of background, the Plaintiff was working as part of a construction crew on a road project when a motorist ran over his foot.

The Plaintiff sued the driver and Traffic Control Services/Flagger Force on his third party claims, and GEICO on his UIM claim.

The Plaintiff settled his claim against the tortfeasor driver for her $100,000 liability limits.  He settled his claim against Traffic Control Services/Flagger Force for $75,000 of that company's $2 million dollar limits.

The UIM carrier asserted that any payout of UIM limits should be offset by the amount of $2.1 million dollars, the combined amount of liability coverage possessed by both tortfeasors.  The carrier asserted that, assuming that the Plaintiff's damages were below that credit, the carrier should be entitled to summary judgment.

The Plaintiff asserted that the carrier was not entitled to any set-off relative to the payment made by the flagging company's liability carrier.

The court initially rejected the Plaintiff's contention that, under the MVFRL, only motor vehicle liability policies should be considered in calculating to credits due to a UIM carrier.  In that regard, the court pointed to the case of D'Adamo v. Erie Ins., 4 A.3d 1090, 1098 (Pa. Super. 2010), in which that court held that an umbrella policy could be factored into the credit due even though it was not an auto liability policy.

The court also rejected the Plaintiff's contention that set-offs in the UIM context are void as against public policy.

Under these rulings the court held that the UIM carrier was entitled to a credit of the $100,000 paid by the driver and the $75,000 paid by the flagger company's carrier so as to prevent any double recovery by the Plaintiff for the same damages.

Under the particular UIM policy language at issue in this case, the court went on to reject the carrier's assertion that it was entitled to a credit of the flagging company's $2 million dollars in liability limits.  The applicable clause in the GEICO UIM policy at issue in this case provided that the UIM payments paid under the policy would be "reduced by all amounts...paid by or for all persons or organizations liable for the injury."

The court noted that the policy did not contain the typical exhaustion clause which typically enables a UIM carrier to claim a credit for the liability limits of all tortfeasors involved.

As such, the court ruled in this case that the UIM carrier was only entitled to a credit or offset in the amount of the sum of the payments by the tortfeasors, not the amount of their liability limits contained in their respective policies.

In the end, the carrier's motion for summary judgment was denied under the above analysis and given that the Plaintiff's entitlement to UIM benefits had not yet been determined.

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

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

Tuesday, September 4, 2018

Summary Judgment Granted in Stepping Off a Curb Trip and Fall Case


In the case of Slappy-Sutton v. Speedway, LLC, No. 16-CV-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 after misjudging the step down from a curb while exiting a Convenient Store and attempting to go back to his car in the parking lot after refueling his vehicle.   The Plaintiff alleged a failure to make the curb a different color in order for patrons 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 found that the curb was not a dangerous condition and one that a pedestrian should ordinarily expect to encounter.

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. 

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

One Possessor of Land Owes No Duty to Another Possessor of the Same Land Under Premises Liability Principles


In the case of Cholewka v. Gelso, 2018 Pa.Super. 216 (Pa. Super. July 27, 2018 Ott, J., Stabile, J., Musmanno, J.) (Op. by Ott, J.), the court affirmed a trial court’s entry of summary judgment in favor of a Defendant in a slip and fall case after finding that one possessor of land owes no duty of care to another possessor of land on the same premises. 

By way of background, the Plaintiffs and the Defendants at issue leased a residential property together from the Defendant-owner of the premises.  

More specifically, the leased property was rented by the Dawn and Ronald Cholewka, as well as their daughter, Heather, and the daughter’s boyfriend.  All four (4) tenants signed the Lease and had agreed to rent the property as is and agreed to make all necessary repairs.  

At some point during the course of the Lease, the boyfriend-tenant installed a gravel parking pad next to an existing asphalt driveway so that he would have a place to park his work truck.

One night, Dawn Cholewka was walking around the premises and tripped in the area of the driveway and the parking pad.   

The Plaintiff sued the Defendant landlords and later joined the Defendant boyfriend-tenant and his landscaping company in as Additional Defendants.  

The boyfriend-tenant filed a Motion for Summary Judgment and the trial court granted that motion after finding that the boyfriend-tenant owed no duty of care to the Plaintiff because all of the parties were co-possessors of the same land.  

 The Superior Court affirmed noting that its “research has uncovered no decision in which one possessor of land owed a duty of care to another possessor of land under premises liability principles.”  

The court otherwise also affirmed the summary judgment entered in favor of the boyfriend-tenant under general negligence principles given that the Plaintiff admitted that she was aware of the “lip” between the driveway and the gravel parking pad before she fell. The court agreed that no reasonable minds could differ as to the conclusion that the boyfriend tenant’s construction of the parking pad did not create an unreasonable risk of harm to others.

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

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

Selected For Inclusion in Best Lawyers in America

Hoping you will please indulge me in a professional announcement.

The publication Best Lawyers in America recently wrote to me advising that I have been selected to appear in their guide in recognition for high caliber work in the practice area of Personal Injury Litigation - Defendants.  I have been selected for this distinction every year since 2016 and it appears that I am the only civil litigation defense attorney from Northeastern Pennsylvania to be listed in this category.

The Best Lawyers in America publication emphasizes that the selections for inclusion in the guide is based upon peer-review surveys completed by fellow attorneys and that no fee or payment to participate is allowed.

My firm, Foley, Comerford & Cummins, is currently accepting new defense clients and new assignments to defend civil litigation matters.  Please contact me at dancummins@comcast.net for a firm resume, my personal CV, or to schedule our visit to your office to discuss how we may assist you in the defense of your civil litigation matters. 

Here is a LINK to our law firm website.

Here is a LINK to my online Avvo.com profile.


Thank you for your time and consideration in this regard,

Dan Cummins