Wednesday, March 11, 2020

Judge Zulick of Monroe County Interprets Law of Balentine Decision



In the case of Martinez v. Swain, No. 9383-CV-2019 (C.P. Monroe Co. Feb. 6, 2020 Zulick, J.), Judge Arthur K. Zulick of the Monroe County Court of Common Pleas issued one of the first decisions since the previous Pennsylvania Supreme Court holding in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), regarding the governmental immunity afforded to municipalities and the issue of an exception applying to the “operation of a vehicle.”

 In this matter, the Complaint alleged that the Plaintiff was struck by another vehicle while she was crossing the street to gain excess to a passenger bus, which had stopped in an area outside of a destinated bus stop.

The Defendant bus company filed Preliminary Objections asserting that, since it was not the bus that hit the Plaintiff, but rather another vehicle, the ‘operation of the bus’ was not the cause of the Plaintiff’s alleged injuries and, therefore, the alleged conduct on the part of the municipality that ran the bus route could not fall within the exception to governmental immunity.

The Plaintiff argued that, by stopping the bus and inviting the Plaintiff to get onto the bus would fit with in the scope of newly defined ‘operation of a vehicle’ under the Balentine decision issued by the Pennsylvania Supreme Court, which overruled the thirty (30) years of precedent in issuing that decision.

Judge Zulick followed the rule of the Balentine case and overruled the Preliminary Objections under the facts presented since the bus driver knew, or should have known, that the Plaintiff would try to gain access to the bus, that stopping the bus in such an area would allegedly place the Plaintiff in a danger being struck be oncoming traffic, and given that the Plaintiff allegedly would not discover moving vehicles on the road as she attempting to cross the street to get to the bus.

Anyone wishing to review Judge Zulick’s detailed Order, without Opinion, may click this LINK.

I send thanks to Attorney Michael J. McKarski of the Bethlehem, Pennsylvania law office of Edward J. McKarski for bringing this case to my attention.

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