Court Finds Issues of Fact Relative to Sudden Emergency Doctrine Preclude Summary Judgment

In the case of Cox v. Cemex, Inc., No. 10132 of 2020, C.A. (C.P. Lawr. Co. March 20, 2023 Motto, P.J.), the court denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s personal injury litigation arising out of a motor vehicle accident.

According to the Opinion, the Plaintiff was a passenger in a vehicle being operated by the Defendant when the vehicle was struck by a tree located on a property next to the road. The Plaintiff sued the Defendant driver, the Defendant’s business, and the owner of the property where the tree was located, among other parties.

There was conflicting evidence about how the accident occurred.

The Defendant driver maintained that the accident happened as he was driving around a curve in the road and oncoming traffic crossed the centerline, forcing the Defendant driver to move his right in his own lane. The Defendant driver denied that his vehicle left the roadway.

However, in his 911 call and alleged statement to ambulance crew members, the Defendant driver allegedly stated that he had run off the road and that a tree had come through the door injuring the Plaintiff. There was also conflicting testimony as to whether there were any tire tracks off the roadway.

The Defendant property owner had testified that the trees on his property had been trimmed to ensure that they did not protrude over the road. Also, a local police officer who routinely patrolled the area confirmed that he did not observe any parts of a tree protruding over the road.

Additionally, the Plaintiff testified that the oncoming vehicle had moved back into its own lane of travel before encountering the Defendant’s vehicle and that the Defendant driver had approximately ten (10) seconds to respond after first seeing the other vehicle.

The court found that issues of fact, including on the issue of sudden emergency doctrine, required the court to deny the Defendant driver’s Motion for Summary Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).

Source of image:  Photo by David Lin from www.pexels.com.

Court Finds Jury Issues With Respect to Defense of Open and Obvious Danger

In the case of Irwin v. Neshannock Woods, Inc., No. 10457 of 2022 (C.P. Lawr. Co. May 15, 2023 Motto, P.J.), the court denied a Defendant’s Motion for Summary Judgment in a slip and fall case that occurred at an apartment complex.

In this case, the Plaintiff sued her landlord and the landlord property maintenance company after the Plaintiff allegedly sustained injuries from a slip and fall caused by a snow mound near a dumpster on the property.

In their Motion for Summary Judgment, the Defendants asserted that Plaintiff’s claim of negligence was legally insufficient because the snow mound was an open and obvious condition. 

The Defendants also asserted that the Plaintiff voluntarily assumed a risk by choosing to walk over the mound to dispose of her trash. The landlord additionally asserted that the Plaintiff failed to inform the landlord about an issue with the snow mound before the Plaintiff’s fall.

The court denied the Motion for Summary Judgment after finding that genuine issues of material fact remain to be decided by a jury.

The court otherwise noted that the Defendants had a duty to protect the Plaintiffs from the known and obvious hazard created by the snow mound and that the Defendants could have taken steps to prevent the alleged injuries.

The court additionally considered the fact that the landlord had a policy requiring residents to use the dumpster and the fact that the landlord had made a prior request to have the snow mound removed, which was not accomplished.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 20, 2023).

Court Grants Partial Motion For Summary Judgment in UIM Bad Faith Case

In the case of Childs v. Progressive Preferred Ins. Co., No. 2:22-CV-01318 M.J.H. (W. Pa. June 15, 2023 Horan, J.), the court granted a Defendant’s Motion for Partial Summary Judgment in a bad faith claim and dismissed the bad faith claim where the court found that the Plaintiff failed to present any evidence indicating that additional investigation would have changed the UIM carrier’s evaluation. The court also found that the Plaintiff failed to present any evidence that the insurance company otherwise failed to conduct a diligent investigation on the case presented.

According to the Opinion, the case arose out of a motor vehicle accident and a UIM claim against Progressive.

According to the Opinion, the tortfeasor Defendant tendered its limits. Progressive granted its consent to settle and, after reviewing the record, offered $1,000.00 to settle the Plaintiff’s UIM claim.

Progressive was later advised that the Plaintiff’s physician had recommended surgery for the Plaintiff’s right shoulder but that the Plaintiff had decided not to move forward with the surgery at that time.

Progressive obtained a medical expert to review the Plaintiff’s MRIs. That expert concluded the Plaintiff’s right shoulder complaints were not related to the accident.

Nevertheless, Progressive then increased the settlement offer to $2,500.00 in a case where Plaintiff’s counsel valued the case at $25,000.00 to $50,000.00. The Plaintiff responded with a bad faith and breach of contract lawsuit.

As noted above, the court found that the record failed to reveal evidence to support the bad faith claim which was dismissed by way of this Partial Motion for Summary Judgment. The court noted that Progressive’s expert’s opinion provided a reasonable basis for the carrier to conclude that the right shoulder complaints were not related to the accident.

The court also noted that the Plaintiff lacked a basis to contest the value of Progressive’s settlement offer given that the Plaintiff had dropped his wage loss claim and given that the Plaintiff was not pursuing recommended shoulder surgery.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 13, 2023).

Defendant's Petition To Open Default Judgment Was Too Late

In the case of Locklear v. Pocono Luxury Inc., No. 3142-CV-2020 (C.P. Monroe Co. May 8, 2023 Zulick, J.), the court denied a Defendant’s Petition to Open a Default Judgment because the Defendant’s Petition was untimely.

This case arose out of a lawsuit filed by a Plaintiff against a Defendant home improvement company.

The court noted that, in order to open the default judgment, the Defendant was required to show a prompt filing of its Petition, a reasonable explanation for the default, and a meritorious defense.

In this case, the Defendant waited over a year after the default judgment was entered before filing a Petition to Open the Default Judgment. 

The court noted that various court documents and Orders were previously served on the Defendant prior to the filing of the Petition. No explanation was provided to the court why the Defendant did not seek legal representation or otherwise act during the time even before the Complaint was filed.

Judge Zulick noted that the prompt filing of a Petition to Open a Default Judgment typically refers to a period of less than one (1) month. The court noted that delays exceeding that time frame have been deemed to be untimely in other cases.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 20, 2023).

CORRECTED LINK: Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

 

Here is the corrected LINK for the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), which was highlighted here on Tort Talk yesterday.  The case involved the Court's allowance of an amendment to a Complaint at trial to add claims of recklessness and punitive damages.

Sorry for any confusion that may have been caused.

Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

In the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), the court denied a Defendant’s Motion for an Amendment of an Order for the purpose of seeking an interlocutory appeal.  This request was made relative to the trial court’s underlying Order that had allowed an amendment to the Plaintiff’s Complaint at a trial of a negligence case involving a nursing home to add a claim of recklessness and a claim for punitive damages after the completion of the testimony of certain Defendants and even though the statute of limitations had previously expired.

In this regard, Judge Munley found that there were sufficient facts pled in the original Complaint such that the court rejected the Defendant’s argument that the claims of recklessness and punitive damages were barred by the statute of limitations.

In her decision, Judge Munley cited to previous decisions by her colleague on the Lackawanna County Court of Common Pleas, Judge Terrence R. Nealon, who had previously ruled that amendments to a Complaint are permitted after the running of the statute of limitations so long as no new causes of action are pled.

Judge Julia Munley
Lackawanna County

In this regard, Judge Munley noted that recklessness is considered an aggravated form of negligence and not a new cause of action. She also noted that, under Pennsylvania law, a request for punitive damages does not constitute a cause of action in and of itself. Rather, a request for punitive damages is merely incidental to an underlying cause of action.

Accordingly, Judge Munley ruled that an amendment to a Complaint to add a claim for punitive damages after the statute of limitations has run is permissible where the main operative facts to support such a claim have been previously alleged in the original Complaint.

Judge Munley noted that a decision was further supported by the fact that the Plaintiffs alleged facts indicative of reckless conduct in the original Complaint.  The Court pointed to those cases in which it has been held that recklessness can be pled in any case whatsoever, regardless of the facts pled.

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


I send thanks to Attorney Jamie Anzalone and Attorney Kelly Ciravolo of Anzalone Law Offices in Wilkes-Barre, Pennsylvania for bringing this case to my attention.

LACKAWANNA PRO BONO GOLF TOURNAMENT IS NEXT MONDAY -- PLEASE CONSIDER SPONSORING OR REGISTERING TO PLAY

 

Federal Court Parameters on Scope of Permissible Discovery of Prior Incidents Reviewed

In the case if Birl v. Ski Shawnee, Inc., No. 3:22-CV-1598 (M.D. Pa. May 31, 2023 Carlson, Mag. J.), the court granted in part and denied in part a Motion to Compel discovery in a skiing accident case.

More specifically, the court found that a demand for the production of all documents and communications about all prior collision accidents on the Defendant’s property for over twenty (20) years was excessive.

However, the court also noted that a restriction of discovery to only the particular object that the Plaintiff collided with was also too narrow.

The court stated that judicial discretion on discovery issues is limited by valid claims of relevance and privilege. Relevance issues are to be tempered by principles of proportionality. Proportionality, in turn, is determined based upon temporal and topical aspects of the discovery dispute.

Magistrate Judge Carlson otherwise indicated that prior accidents are relevant if they occur under similar circumstances as presented in the pending case, and where such prior accidents are also relevant to the issue of notice on the part of the Defendant.

The court otherwise indicated that five (5) years is a common temporal limit on discovery.

In the end, the court granted the Plaintiff the right to discovery five (5) year records on all collision incidents.

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 for bringing this case to my attention.

Source of Image:  Photo by Mati Mango on www.pexels.com.

Flea Market Not a Seller for Purposes of Products Liability Case

In the case of Liebig v. MTD Products, Inc., No. 22-4427 (E.D. Pa. May 25, 2023 Murphy, J.), the court denied a Motion to Remand in a products liability case.

The court reasoned that the Plaintiff’s alleged products liability claims against a non-diverse Pennsylvania flea market were not colorable such that a finding that that Defendant was fraudulently joined was appropriate.

In this case, the product was apparently purchased at a flea market.

The court noted that a flea market is not a seller of a product as that term is defined in the products liability context. Rather, flea markets are markets that merely provide space for third parties to sell ordinary household items to each other. Flea markets are not to be considered manufacturers, distributors, or sellers of products under the contexts of product liability case.

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 Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Clem Onojeghuo on www.unsplash.com.

Commonwealth Court Rejects Challenge to Pennsylvania's Liability Damages Caps for State Agencies

In the case of Freilich v. SEPTA, No. 327 C.D. 2022 (Pa. Cmwlth. July 6, 2023 Wojcik, J., Wallace, J., Leadbetter, S.J.) (Mem. Op. by Wojcik, J.) [Opinion not reported], The Pennsylvania Commonwealth Court rejected a Plaintiff’s challenge to Pennsylvania’s liability caps for state agencies.

In so ruling, the appellate court upheld a trial court Order reducing a $7 million stipulated jury verdict entered by a jury against SEPTA to the $250,000.00 liability cap required by Pennsylvania law.

In its Opinion, the Commonwealth Court held that it was bound by Pennsylvania Supreme Court precedent and thereby compelled to affirm the trial court’s Order molding the verdict to conform with the statutory caps under 42 Pa.C.S.A. §8528(b).

In an article on the issue, it was indicated that plaintiffs’ attorney plans to appeal the case up to the Pennsylvania Supreme Court.

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


Source: Article - “Appellate Judges Reject Challenge to Pennsylvania State Damages Cap” by Aleeza Furman. Pennsylvania Law Weekly (July 6, 2023).

PLEASE CONSIDER CUMMINS MEDIATION SERVICES

 Need assistance in bringing your case to a close.

Please consider Cummins Mediation Services.

(570) 319-5899

dancummins@CumminsLaw.net

Motion To Dismiss Denied Where Court Found That Plaintiff Made Good Faith Efforts to Complete Service

In the case of Plourde v. Trussel, No. 2525-CV-2021 (C.P.Monroe Co. May 15, 2023 Zulick, J.), the court denied a Defendant’s Preliminary Objections asserting improper service of process.

In this case, the court found that the Plaintiff’s attorney and the Sheriff made diligent efforts to rectify any errors of service and that there was no evidence of any intent to delay service or abuse the legal process.

The court noted that the delay in completing service was due to the failed service attempt and the need to involve a neighboring county’s Sheriff to complete service.

The court otherwise found that the Plaintiff acted in good faith and made reasonable and prompt attempts to serve the Defendant.

The court also stated that no evidence suggested that the Defendant was prejudiced due to the delay in service.

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

A Beginners Glossary of AI and ChatGPT Terms by Judge Richard B. Klein (Ret.)

AI and ChatGPT have been taking over the headlines around the world, including within the legal field.  One article goes so far as to call this new Age as part of the "the Fourth Industrial Revolution."  

The Rules of Professional Responsibility regarding competence (Rule 1.1)note that lawyers have a duty to keep up with the changing ways.

To assist in that regard, here is a LINK to an excellent article by Superior Court Judge Richard B. Klein (Ret.) entitled "A Beginner's Glossary of AI and ChatGPT Terms:  Fifteen Key Terms For Lawyers" in which Judge Klein provides plain English definitions for common terms in this new field.

This article is republished here with the permission of Judge Richard B. Klein.  I send thanks to Judge Klein for allowing the republication of the article here for the benefit of the readers of the Tort Talk Blog.

HAVE YOU REGISTERED FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT?

 

PA Superior Court Rules That 75 Pa.C.S.A. Sections 1716 and 1718 Do Not Support Award of Attorney's Fees in Peer Review Cases

In the case of Turnpaugh Chiropractic Health & Wellness Cr., P.C. v. Erie Ins. Exch., No. 1448 MDA 2021 (Pa. Super. June 8, 2023 Stevens, P.J.E., Bowes, J., McCaffery, J.) (Op. by Stevens, P.J.E.)(Bowes, J, Concurring), the Pennsylvania Superior Court affirmed in part and denied in part a trial court’s entry of judgment in favor of a chiropractor in a first party peer review case.   

In this case, the insurance company appealed a judgment in favor of the chiropractor and an award of attorney’s fees. 

According to the Opinion, the insurance company had repriced the chiropractor’s invoices and referred the chiropractor’s bills to a peer review. 

The Superior Court found that the trial court had erred in allowing the chiropractor’s expert to testify on matters outside the scope of an expert report.

In what may be a case of first impression, the Superior Court additionally found that the trial court had erred in awarding the chiropractor attorney’s fees under §1716 and §1798 because there was no statutory authorization for an award of attorney’s fees when an insurance company invokes the peer review process.   

Anyone wishing to review a copy of this decision may click this LINK. The Concurring Opinion by Judge Bowes can be read HERE.

I thank attorney Candace Edgar of the Camp Hill, PA office of Margolis Edelstein for bringing this case to my attention.

Source of image: Photo by Kenny Eliason on www.unsplash.com.

Trial Court Order Transferring Venue Under Doctrine of Forum Non Conveniens Reversed

In the case of Ehmer v. Maxim Crane Works, L.P., No. 2431 EDA 2022 (Pa. Super. June 7, 2023 DuBow, J., McLaughlin, J., and McCaffery, J.) (Op. by DuBow, J.), the Pennsylvania Superior reversed a trial court's granting of a Petition to Transfer Venue in a motor vehicle accident case that had been transferred from Philadelphia County to Columbia County.

According to the Opinion, this motor vehicle accident case involved a Columbia County Plaintiff injured in Columbia County. The Plaintiff filed suit in Philadelphia.

The Superior Court initially noted that a trial court Order transferring venue is an interlocutory Order that is appealable as of right.  

In its decision, the Pennsylvania Superior Court ruled that a Plaintiff’s choice of forum is entitled to great weight.  Here, the Plaintiff chose to file suit in Philadelphia County over Columbia County.

The court also noted that the party asserting forum non conveniens must create a record before the court demonstrating hardship.

In this matter, the court found that the Affidavit from the witnesses claiming inconvenience failed to indicate what the witnesses’ potential testimony would be.

As such, the Superior Court found that, without evidence of relevance of the potential witness testimony, the trial court abused its discretion in finding that a trial in Philadelphia would pose a hardship to the moving party.

The court additionally noted that, with the sate of modern technology, site visits are rarely the sole means of providing a fact-finder with necessary information about the site of an event. The court also noted that the technology now allows for the quick and easy transfer of medical records such that the initial location of the records is no longer an important factor.

The court additionally stated a Plaintiff’s residence is peripheral to the issues presented and are insufficient, in and of itself to warrant a granting of a Petition for Forum Non Conveniens.

In the end, the Superior Court reversed the trial court's Order transferring the case to Columbia County.    

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 for bringing this case to my attention.

Source of image:  Photo by Nick Fewings on www.unsplash.com.

Trial Court Order Transferring Case Under Doctrine of Forum Non Conveniens Affirmed [Non-Precedential]

In the case of Smith v. Beckman Coulter, Inc., No. 2313 EDA of 2021 (Pa. Super. June 6, 2023 King, J., Bowes, J. and Pellegrini, J) (Op. by King, J.)[Non-Precedential], the Pennsylvania Superior Court affirmed the trial court’s granting of a Petition to Transfer a Case under the doctrine of forum non conveniens.

This case involved an asbestos suit that was filed over an alleged exposure to asbestos at an educational institution located in Cumberland County. The case was filed in Philadelphia County.

The Superior Court ruled that the trial court properly transferred the case from Philadelphia County to Cumberland County.

The court noted that the evidence before the court confirmed that the Plaintiff’s choice of venue was either vexatious or so oppressive as to require a transfer. In this case, the site of the claimed exposure asbestos was over 100 miles from Philadelphia.

Additionally, multiple Affidavits from witnesses were provided to the court in which those witnesses confirmed that a trial in Philadelphia would be oppressive and create a great hardship because of personal, family, and job-related responsibilities.

The court ruled that, given the distance involved, the decision to transfer venue was proper even without consideration of those Affidavits.

No explanation was given as to why the Opinion was listed as Non-Predecential.  If the Superior Court takes the time and effort to write an Opinion, why not simply publish it?  

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 for bringing this case to my attention.

ARTICLE: A Primer on the Law of Liability of Homeowners' and Condominium Associations

Here is a LINK to an article of mine that was recently published in the July/August 2023 edition of the Pennsylvania Lawyer Magazine.  The article is entitled "A Primer on the Law of Liability of Homeowners' and Condominium Associations."

Given the dearth of case law and commentary on this area of the law, it is hoped that this article may provide background on how to approach liability matters involving homeowners and condominium associations and/or provide a jumpstart for any research you may have to complete on issues presented in this particular area of civil liability law.

I send thanks to the Pennsylvania Bar Association and to Patricia Graybill, the editor of the Pennsylvania Bar Association, for selecting this article for publication.

STILL TIME TO SPONSOR OR REGISTER FOR LACKAWANNA PRO BONO GOLF TOURNAMENT

 

U.S. Supreme Court Reverses Pennsylvania Supreme Court and Upholds Pennsylvania Law Conferring Jurisdiction on Corporations Who Register To Do Business in PA

In the case of Mallory v. Norfolk Southern Railway Co, ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision, the United States Supreme Court upheld the Pennsylvania law allowing state courts to hear lawsuits against out-of-state companies who had registered to conduct business in Pennsylvania, even when the alleged injury occurred outside of the Pennsylvania.  

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

Georgia Judge Vacates a Plaintiff's $1.5 Million Dollar Jury Verdict In Connection With Plaintiff's Attorney's Social Media Posts

Here is a LINK to an article that was published on Law.com on June 30, 2023 outlining a Georgia trial court's vacation of a $1.5 million dollar jury verdict in favor of a personal injury plaintiff due to the plaintiff's attorney's social media posts.

Makes for an interesting read of a cautionary and expensive tale.

(If you are not able to access the article at the Link provided, please let me know at dancummins@CumminsLaw.net and I will email you a copy.

I send thanks to Richard T. Henderson, Senior Vice President of TransRe for bringing this article to my attention.

Summary Judgment Granted Based on Hills and Ridges Doctrine

In the case of Irvin v. Wegmans Food Market, Inc., No. CV-21-00360 (C.P. Lyc. Co. April 11, 2023 Lindhardt, J.), the court granted a Defendant store’s Motion for Summary Judgment in a slip and fall case.

The court’s decision in this matter was based, in part, on the hills and ridges doctrine.

After reviewing the elements of the hills and ridges doctrine, the court found that certified weather records and video footage established the general wintry conditions that existed at the Plaintiff’s location at the time of the incident.

The court rejected the Plaintiff’s argument that the precise location of the Plaintiff’s heel at the time of the incident was a material issue in determining liability in this case.  The court noted that the evidence showed the the Plaintiff's lead foot as he was walking was in the area of the alleged wintry conditions at the time he fell.

Overall, the court found that the Plaintiff failed to produce evidence to get beyond the hills and ridges doctrine.

As such, summary judgment was entered in favor of the store.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 6, 2023).

Walking Over a Snow Covered Grassy Area is Deemed the Taking of an Open and Obvious Risk as a Matter of Law

In the case of Hinerman v. Westmoreland County Airport Auth., No. 732 C.D. 2022 (Pa. Cmwlth. June 15, 2023 Ceisler, J., Covey, J., and Leavitt, J.) (Op. by Ceisler, J.), the Pennsylvania Commonwealth Court affirmed the entry of summary judgment in a slip and fall case.

In this matter, the Plaintiff, instead of using a paved walkway or the driveway, both of which were cleared, chose to instead walk across a snow covered grassy area where the Plaintiff then fell.  The Plaintiff thereafter brought suit against the Defendant.

The court ruled than snowy area that the Plaintiff chose to walk over was an open and obvious danger. The court noted that the uncertainties inherent in walking on snow covered ground are obvious as a matter of law. The Court found that, by taking a short cut across the snow covered ground, the Plaintiff accepted the risk that the underlying ground would be less suitable for walking.

The court reiterated the general rule that landowners do not have a duty to remove any and all dangers from any and all parts of their premises involving winter conditions.

As stated, the trial court's entry of summary judgment was affirmed.    

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 for bringing this case to my attention.

Source of image:  Photo by Eberhard Grossgasteiger on www.unsplash.com.