Friday, August 7, 2020

Split of Authority Continues on Propriety of Allegations of Recklessness and Sparks Spirited Debate

In the case of Whitney v. Albert Einstein Medical Center Philadelphia, November Term 2019, No. 03233, Control No. 20060389 (C.P. Phila. Co. July 24, 2020 Tsai, J.), the court issued a detailed Order in which it, in part, allowed claims for recklessness and punitive damages to go beyond Preliminary Objections given that the court concluded that the references to “reckless” conduct or “recklessness” “satisfy the pleadings requirements under the Pennsylvania Rules of Civil Procedure” and that it would premature to dismiss the claims for punitive damages at the pleadings stage.

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

A similar result was handed down in the Franklin County case of Ramirez v. Finn, No. 2020-439 (C.P. Franklin Co. July 30, 2020 Shank, J.).

In that motor vehicle accident case, the court likewise found that allegations of recklessness may be pled in any case whatsoever regardless of the facts as such allegations went to the Defendant's alleged state of mind and, under Rule 1019 allegations of the state of one's mind are allowed to be generally pled.

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

I send thanks to Attorney Dale G. Larrimore, Esquire of the Philadelphia law firm of Larrimore and Farnish, LLP for bringing these cases to my attention.

To review all of the Tort Talk posts on this issue, please go to, scroll down the right hand column to the "Labels" section and, alphabetically under that section, go to "Allegations of Recklessness" and click on that.

Commentary: The above cases show that the split of authority over whether allegations of recklessness require outrageous facts to be pled in a personal injury matter, or may be simply pled whenever as a condition of the mind, continues.

I outlined that split of authority in my recent July 14, 2020 Pennsylvania Law Weekly article which can be viewed HERE.  In that article, I noted the two theories followed by the courts in recent decisions, with one line of courts requiring allegations of recklessness to be supported by outrageous facts being pled in the Complaint the kind of which would support a claim for punitive damages, and the second line of cases allowing recklessness to be pled whenever as allegation of a defendant's state of mind.

Attorney Larrimore brought to my attention another line of cases that allowed for allegations of recklessness for a different reason.

Attorney Larrimore wrote:

There is still a bona fide purpose for allowing averments of "recklessness" in the Complaint. If the evidence reveals and the fact-finder finds that the Defendants acted with recklessness, then the defendants would be barred from raising the affirmative defense of contributory negligence at trial. Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943). "When willful or wanton misconduct is involved, comparative negligence should not be applied." Krivijanski v. Union R. Co., 515 A.2d 933, 936, 357 Pa. Super. 196, 203 (1986). Plaintiffs should not be barred from alleging that the Defendant acted with recklessness and thus avoid the potential affirmative defense of comparative negligence, simply based on whether or not a claim for punitive damages is allowed. Thus, an averment of recklessness is proper on its own, with or without a claim for punitive damages.

At the outset of a case, [a plaintiff's attorney] cannot know what was in the state of mind of the defendant driver just prior to a violent car crash. Did he recognize that the manner in which he was operating his vehicle (speeding, weaving in and out of traffic, tailgating etc) placed other drivers at risk of serious injury? Without taking his deposition and assessing his knowledge of the risks of aggressive driving, [a plaintiff's attorney] cannot know what [the defendant driver] was thinking, and Rule 1019(b) allows [the plaintiff's attorney] to allege that [the defendant driver] was acting with reckless indifference to the dangers [the defendant driver] was creating. [Emphasis and double emphasis in original; bracketed inserts inserted here].

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