Superior Court Refuses To Create a General Duty of Care To Prevent the Transmission of Contagious Diseases Such as COVID-19

In the non-precedential case of Reish v. Visiting Angels, No. 2924 EDA 2022 (Pa. Super. Sept. 21, 2023 Nichols, J., Olson, J., and McLaughlin, J.) (Op. by Nichols, J.)[Non-precedential], the Superior Court affirmed a trial court’s sustaining Preliminary Objections dismissing a case after finding that there is no general duty of care among the general public to avoid transmitting contagious diseases such as COVID-19.

The court noted that, while medical professionals may owe a duty of care to third persons to advise a patient to take precautions against spreading contagious diseases, that duty does not extend to non-medical laypersons.

The Superior Court noted that negligence cannot be invoked to create a duty where one does not exist in the first place. The court also noted that it was reluctant to create new affirmative duties under the circumstances presented in this case.

The court also noted that the risk of spreading illnesses while providing services to the elderly is a foreseeable risk. The appellate court asserted that to otherwise impose a duty in this regard would require a myriad of precautions without clear guidance from existing law.

Accordingly, the Superior Court noted that it would improper for it to treat COVID-19-related mask mandates as establishing personal liability against individuals.

The court otherwise noted that such policy determinations in this context are generally not within the purview of the judiciary and are best determined by other branches of government.

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

I thank Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Defense Verdict Upheld Where Evidence Was Disputed On Whether Plaintiff Was Injured At All

In the non-precedential decision by the Pennsylvania Superior Court in the case of Smith v. Nguyen, No. 1312 EDA 2022 (Pa. Super. March 28, 2023 Panella, J., Bender, P.J.E., and Sullivan, J.) (Op. by Sullivan, J.), the court affirmed a trial court’s denial of a Plaintiff’s post-trial motions seeking a new trial after a jury found that a Defendant driver did not cause injury to a Plaintiff in a motor vehicle accident case.

After reviewing the record before it, the appellate court found that the trial court did not err by failing to grant a new trial under an argument that the jury’s finding of no causation of any harm was against the weight of the evidence.

In so ruling, the Superior Cour noted that the jury’s finding of no liability on causation for the Plaintiff’s injuries confirmed that the jury had rejected the Plaintiff’s expert witness’ testimony.

The court noted that the Plaintiff’s experts and the Defendant’s experts disputed one another on the issue of causation.  

The court also noted that the fact that the defense radiologist expert did not dispute the Plaintiff’s “subjective” reports of pain resulting from the collision did not constitute an agreement by the defense expert that the collision caused injury.

The court otherwise found that the jury’s decision that the Defendant’s negligence did not cause harm to the Plaintiff could properly have been based upon the evidence that the collision occurred at a relatively low speed, that the Plaintiff had pre-existing similar problems and degenerative conditions and/or that the Plaintiff did not complain of neck pain until four (4) years after the collision.

Overall, the court found that the Plaintiff did not show that the trial court abused its discretion in finding that the jury’s verdict did not shock the judicial conscience given that the post-trial claim was found to lack merit, the trial court’s denial of the same was affirmed on appeal.

This decision is also notable for the court’s ruling that a party is not entitled to adverse inference related to the failure of an opposing party to call a witness at trial where that witness was equally available to each party to be called as a witness.

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


I send thanks to Attorney Paul Gambone of the King of Prussia office of the Forry Ullman law firm for bringing this decision to my attention.

Sending a Complaint to Insurance Adjuster Does Not Amount to Proper Service of Process

In the case of London-Walker v. Walgreens Family of Cos., No. 23-CV-2868 (E.D. Pa. Oct. 4, 2023, Kenney, J.), the court dismissed the trip and fall case under service of process issues raised by the defense.

According to the Opinion, the Plaintiff filed a Complaint but did not serve it for five (5) years.

The Plaintiff only served the Complaint after receiving a Notice of Proposed Termination issued by the court of common pleas.

In rejecting one of the arguments by the Plaintiff, the court pointed to the well-settled rule that informally emailing a copy of a Complaint to an insurance adjuster does not constitute valid service.

The court noted that, absent any evidence that the actual Defendant learned of the lawsuit, the action was subject to dismissal under the Lamp v. Heyman line of cases as being barred by the statute of limitations.

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

I thank Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

HAPPY THANKSGIVING

 

SENDING BEST WISHES TO YOU 

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Grateful for your readership and contributions to Tort Talk

Thank you very much

Dan Cummins

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Live-in Girlfriend Is Not Considered "Closely Related" for Negligent Infliction of Emotional Distress Claims

In the case of Lutz v. O’Connell, No. 729-CV-2023 (C.P. Col. Co. Oct. 26, 2023 Norton, J.), the court addressed the issue first impression on whether a live-in girlfriend could be considered to be “closely related” to the injured party so as to permit a recovery for the live-in girlfriend for negligent infliction of emotional distress she allegedly suffered when she observed the death of her paramour.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

In the Complaint, it was alleged that the Plaintiff's decedent, who had died in the accident, and the girlfriend had lived together prior to the accident and considered themselves to be common-law husband and wife.

The subject accident occurred when a Defendant driver allegedly was proceeding in the wrong direction on Route 11 south and collided with the vehicle being operated by the now deceased Plaintiff boyfriend and then also striking the separate vehicle that was operated by the girlfriend.

 It was noted in the Opinion that, pursuant to 23 Pa. C.S.A. §1103, “no common-law marriage contracted after January 1, 2005, shall be valid.”  Based on this statue, the court found that the couple in this matter was not married under the doctrine of common-law marriage.

Judge Gary E. Norton of the Court of Common Pleas for Columbia and Montour County issued an Opinion in which he concluded that the boyfriend’s live-in girlfriend was not “closely related” as that term is used in the negligent infliction of emotional distress context.

The Judge reasoned, in part, that, if he were to have ruled otherwise, the nebulous question in this regard would focus on how close a couple was, which could lead trials to “devolved into contest as to the quality of the relationships” and would raise more problems for the court when trying to craft an appropriate jury instruction.

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

Source: Article: “Live-In Girlfriend Can’t Sue For Negligent Infliction of Emotional Distress, PA Judge Rules in First Impression Case,” By Riley Brennan of the Pennsylvania Law Weekly (October 27, 2023).

Pennsylvania Supreme Court Rejects Typical Challenge to Venue

Philadelphia

The Pennsylvania Supreme Court has revised the test for determining proper venue by rejecting the ‘Percentage of Revenue’ venue defense.

In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the Court determined that venue was proper in Philadelphia County even though the only 0.005% of the defendant company’s national revenue was derived from that county. As such, the Pennsylvania Supreme Court held that a defendant company’s percentage of sales, in of itself, is no longer sufficient to determine whether or not a company has sufficient business in a particular jurisdiction for venue purposes.

Accordingly, under this decision by the Pennsylvania Supreme Court, there may be circumstances where a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county.

Anyone wishing to review this decision may click this LINK.  The Dissenting Opinion by Justice Brobson can be viewed HERE.

Conviction of Dog Law Violations at Summary Appeal After District Magistrate Estops Dog Owner From Denying Liability At Subsequent Personal Injury Trial

In the case of Walsh v. Toth, No. 22-CV-96 (C. P. Lacka. Co. Oct. 6, 2023 Nealon, J.), the court addressed a Plaintiff’s Motion for Partial Summary Judgment in a dog bite case.

After reviewing the case before him, Judge Nealon granted the Plaintiff’s Motion for Partial Summary Judgment against the dog owner to the extent that the Defendant, Justin Toth, was collaterally estopped from presenting evidence challenging the adjudicative findings from a previous District Magistrate hearing and/or Summary Appeal Hearing that his unconfined and unrestrained dog entered the Plaintiff’s premises and knocked her down the basement stairs. 

On this basis, the court found that the Defendant, Justin Toth, was negligent per se based upon his conviction for violating 3 P.S. §459-305(a).

The court ruled that, with respect to this particular Defendant, the jury would only be deciding the issue of damages recoverable by the Plaintiff for her injuries from the incident.

In so ruling, the court addressed whether the findings in companion criminal case collaterally estopped the Defendant dog owner from challenging liability in the civil case.

According to the Opinion, the dog’s owner was found guilty of violating §305(a) of the Dog Law, 3 P.S. §459-305(a), by a magisterial district judge. The dog owner appealed that summary offense conviction to the Court of Common Pleas for a de novo trial.

Based upon the specific defenses raised by the owner during that trial, another judge of the court of Common Pleas of Lackawanna County held that the owner’s unconfined and unsecured dog entered the Plaintiff’s home and knocked her down the steps, and that the dog owner was, therefore, found to be guilty beyond a reasonable doubt of violating the above-referenced section of the dog law.

In this companion civil action against the dog’s owner, the Plaintiff filed a Motion for Partial Summary Judgment seeking a determination that the dog’s owner was collaterally estopped from presenting evidence contrary to the Common Pleas judge’s findings. The Plaintiff also sought a ruling that the dog owner should be considered to be negligent per se based upon his conviction for a violation of the dog law.

Judge Terrence R. Nealon
Lackawanna County

According to Judge Nealon’s review of Pennsylvania law, a summary offense conviction collaterally estops a defendant from denying his adjudicated acts in a later civil suit if the defendant appeals his conviction by a magisterial district judge, participates in a de novo trial hearing before a Common Pleas judge, is afforded a full and fair opportunity to litigate his issues, and is found guilty beyond a reasonable doubt.

As such, based upon these circumstances in this case, the court found that the dog owner in this case was estopped from denying that his unrestrained dog entered the Plaintiff’s home and knocked down a staircase or that he was guilty of violating the dog law. 

The court additionally noted that, since an established violation of this portion of the Dog Law constitutes negligence per se, the only issues to be addressed by a jury in the personal injury trial with regards to that dog owner were the damages be recovered by the Plaintiff for her alleged injuries. 

Accordingly, the Plaintiff’s Motion for Partial Summary Judgment was granted to the extent that the dog’s owner was found to be estopped from presenting any evidence that his unrestricted and unleashed dog entered the Plaintiff’s premises and knocked her down a flight of stairs.

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

CUMMINS LAW SELECTED FOR INCLUSION IN BEST LAW FIRMS IN AMERICA DIRECTORY

Pleased to report that the publishers of the Best Lawyers in America National Directory have advised that CUMMINS LAW has earned the right to be included its rankings of the Best Law Firms in America.

CUMMINS LAW was recognized under the category of "Personal Injury Litigation - Defendants" for its sustained excellence in that area of the law.

Notably, Cummins Law is the only insurance defense firm located in all of Northeastern Pennsylvania to be included in this elite grouping of law firms honored from across the entire United States.

Consistent with our Mission Statement, we at CUMMINS LAW deliver our legal services in the most prompt, efficient and responsive manner possible with the goal of securing the best possible result for our clients.  At Cummins Law, we focus on the client, not the billable hour.

We thank you for your support of our law firm and welcome any opportunity to assist in any way.

Please do not hesitate to contact me at dancummins@CumminsLaw.net should you have a matter in northeastern Pennsylvania that requires a defense.  CUMMINS LAW is currently accepting new insurance company clients, retail and restaurant clients, and other business clients.

Defendants' Participation in Judicial Process Results in Waiver of Arbitration Agreement

In the case of Cooper v. Abington Senior Care, LLC, Dec. Term 2020, No. 00765 (C.P. Phila. Co. Aug. 2, 2023 Shreeves-Johns, J.), the trial court issued a Rule 1925 Opinion asking the Superior Court to affirm the trial court’s decision that, in this nursing home negligence action, the Defendants had waived their right to enforce an Arbitration agreement by participating in the judicial process.

According to the Opinion, the Defendants filed a Petition to Compel Arbitration. The trial court denied this petition after noting the other Defendants had gained advantages by participating in the judicial process, including with respect to completing discovery and motions practice. 

More specifically, the Defendants have filed three (3) separate sets of Preliminary Objections. It was only after the third set of Preliminary Objections was overruled that the Defendants finally asserted the issue of Arbitration in their Answer to the Complaint and in a Petition to Compel Arbitration.

Also, the Defendants had not raised the issue of Arbitration in the previously filed Preliminary Objections.

As such, the court ruled that, although there was a valid Arbitration agreement between the parties that may have required certain claims in this litigation to be submitted to Arbitration, the Defendants’ participation in this litigation was held to confirm an acceptance of the judicial process and a waiver of the right to arbitrate.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 23, 2023).

Source of image:  www.unsplash.com.

Motion To Dismiss Slip And Fall Case Granted Where Plaintiff Did Not Sue All of the Owners

In the case of Simone v. Alam, No. 1536 MDA 2022 (Pa. Super. Sept. 21, 2023 Panella, P. J., Murray, J., Stevens, P.J.E.)(Op. by Murray, J.), the Pennsylvania Superior Court affirmed a trial court dismissal of a Plaintiff’s slip and fall accident for failing to join an indispensable party to the action, that being the co-owner of the property. The court ruled in this fashion due to the fact that the Plaintiff’s claim was expressly premised, in part, on ownership of the property.

According to the Opinion, the Plaintiff slipped and fell at a rental property owned and maintained by the Defendant. The Plaintiff fell on an outdoor staircase allegedly as a result of ice that accumulated from leaky gutters and rain spouts.

According to the Opinion, the parties agreed that the co-owners of the property owned the properties as tenants in common.

The Plaintiff attempted to assert that the absent owner was merely a tenant in common who exercised no possession of control over the property and that his only interest in the property was his contribution to financing it.

The Superior Court noted that the failure to join an indispensable party implicated the court’s subject matter jurisdiction. The court stated that Pennsylvania case law required the joinder of tenants in common where liability arose out of the ownership of real property. Here, it was reiterated that the Plaintiff asserted premises liability arising, at least in part, out of the Defendants’ ownership of the property.

As noted, the appellate court sustained the trial court’s dismissal of the action.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 10, 2023).

 

UPS Delivery Person Deemed a Licensee Relative to a Trip and Fall Event on a Homeowner's Property

In the case of Cornfield v. Mitchell, No. 10596-CV-2021 (C.P. Erie Co. Oct. 2, 2023 Mead, J.), the trial court addressed the issue of what status a home delivery person, such as a UPS delivery person, had in the eyes of the law in a fall-down case on a homeowner’s property, i.e., whether that Plaintiff delivery person would be a business invitee, or a licensee.

In this case, the judge ruled that a UPS driver who fell on the Defendant’s property was a licensee and not a business invitee. 

In so ruling, the court cited to the case of Figueroa v. Meitzner, 2022 Pa. Super. Unpub. LEXIS 1832 *8-9 (Pa. Super. 2020) citing Sharp v. Luksa, 269 A.2d 659 (Pa. 1970), noting that “the Supreme Court of Pennsylvania adopted §342 of the THE RESTATEMENT (SECOND) OF TORTS to express the duty that landowners in this Commonwealth owed to business licensee, such as packaged deliverers….”  Under that analysis, delivery persons are deemed to be licensees in premises liability cases where the delivery driver is injured on a homeowner's property.

Anyone wishing to review a copy of this detailed Order, which does to come with any Opinion, may click this LINK.

I send thanks to Attorney William C. Wagner of the Erie, PA office of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Aaron Doucett on www.Pexels.com.

Court Addresses Coverage Issue Regarding Permissive Use in a Motor Vehicle Accident Case

In the case of Motorist Mutual Insurance Company v. Barnes, No. CV19-01-813 (C.P. Lyc. Co. Oct. 13, 2023 Linhardt, J.), the trial court reviewed a declaratory judgment action on a coverage issue of whether an Defendant motorist was owed coverage under an argument that the driver was operating a vehicle with the permission of the owner of the vehicle.

This matter involved a fatal motor vehicle accident. At the time of the accident, the Defendant driver was operating a company car that his father had from his employer.

The question presented was whether there was permissive use of the vehicle by the Defendant driver such that the insurance policy that covered the vehicle was implicated for liability coverage.

After reviewing the record before it, the trial court concluded that there was no evidence that the employer who owned a company vehicle had granted any permission to its employee to allow anyone other than the employee to drive the vehicle. As such, the court found that there was no evidence of any express permission to operate the vehicle that was granted to the Defendant driver.

The trial court additionally found that there was no evidence of any implied permissive use to operate the vehicle either.

Judge Lindhardt reviewed the law in this regard. Under Pennsylvania law, permission to drive a vehicle may be implied by virtue of the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced.

The court noted, however, that the Pennsylvania Superior Court has stated that “‘permission’ requires something more than mere sufferance or tolerance without taking steps to prevent the use of the automobile, and permission cannot be implied by possession and use of the automobile without the knowledge of the named insured.”

The Pennsylvania Superior Court has also noted that the “critical question” will always be whether the named insured said or did something that warranted the belief that the ensuing use was with his consent.

In this case, there was no evidence that the employer had impliedly allowed its company vehicle to be used by anyone other than the employee. Also, according to the record before this court, there are indications that the Defendant driver had taken his father’s vehicle while his father was sleeping or otherwise unaware of the use of the vehicle.

In the end, the court found that there was no evidence to suggest that any expressed or implied permission had been granted to the Defendant driver to be using the vehicle at the time of the subject fatal accident. As such, the trial court granted the summary judgment motion filed by the carrier given that there was no genuine issue of material fact as to whether or not the carrier had any obligation to provide insurance coverage for the accident under the insurance policy.

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

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Just the Facts: Untimely Answer To Complaint Does Not Mean Allegations of Negligence and Causation Are Admitted

In the case of Derbyshire v. Aria Health, No. 200202192 (C.P. Phila. Co. Aug. 21, 2023 Cunningham, J.), the court addressed a Plaintiff’s Motion to Post-Trial Relief in a slip and fall case.

The Plaintiff asserted that the Defendant’s failure to file a timely Answer to her Complaint constituted admissions as to the claims of negligence.

With this decision, the trial court filed an Opinion pursuant to Pa. R.A.P. 1925 requesting that the Superior Court affirm the trial court’s decision finding that the Plaintiff’s allegations of negligence and causation were allegations that constituted conclusions of law, not factual averments. The trial court asked the Superior Court to therefore find that the Defendant’s failure to answer such allegations did not constitute admissions of fact.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 17, 2023).

Source of Image:  Photo by Anastasiya Badun on www.unsplash.com.

Availability of Zoom Litigation Calls Into Question The Continuing Validity of the Doctrine of Forum Non Conveniens

In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Petition for Transfer under the doctrine of forum non conveniens and denied the same.

In this case, a Plaintiff from Chester County Pennsylvania, who was involved in an accident with a Lancaster County tractor-trailer driver in Montgomery County, filed a lawsuit against the driver and his employer, which maintains its principal place of business in Idaho and had a single facility in Lancaster County, in the Lackawanna County Court of Common Pleas.

The Defendant driver and his employer filed a forum non conveniens motion seeking to transfer the case to Montgomery County pursuant to Pa. R.C.P. 1006(d)(1).

In his Opinion, Judge Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the Plaintiff was oppressive and vexatious.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

After reviewing the latest appellate law on the issues presented, Judge Nealon noted that the affidavits in support of the Petition filed by the Defendant did not support the granting of the motion.

Judge Terrrence R. Nealon
Lackawanna County

Judge Nealon noted that, although the Defendant driver and his employer produced affidavits attempting to show undue burden and hardship with the litigation remaining in the chosen forum, the Defendants failed to furnish a general statement of the proffered testimony of a key witness to the defense. The court found that the Defendants had not established that the Defendants chosen forum was oppressive or vexatious.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

Proud to note that Judge Nealon cited and quoted from an article of mine in this regard on this topic. See Op. at p. 13.

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

Source of image:  Photo by Anna Shvets at www.pexels.com.

Defendants Holding Estate Sale Owed No Duties To Motorists Involved in Motor Vehicle Accident

In the case of Kistler v. Dietrich, No. 1694 MDA 2022 (Pa. Super. Sept. 22, 2023 Panella, J. Stevens, P.J.E., Murray, J.) (Op. by Murray, J.), the Pennsylvania Superior Court held, in a motor vehicle accident case, that the trial court properly dismissed the Plaintiff’s negligence action against Defendants who were conducting an estate sale on their property after finding that the Defendants did not owe any duty to the Plaintiff to direct traffic on the road or to restrict legal, on-street parking.

According to the Opinion, the Plaintiff alleged that he was injured in an accident while riding his motorcycle near the Defendant’s residence at the time of an estate sale. The Plaintiff alleged that many members of the public were attending the sale and had parked on the side of the road and had thereby allegedly created visual limitations and deficiencies for motorists in the area. The Plaintiff asserted that the Defendants had acted negligently in creating an unreasonable risk of harm for motorists in the area.

After discovery was completed, the Defendants filed a Motion for Summary Judgment asserting that the Plaintiff had failed to show that the Defendants owed any duty to the Plaintiff.  The Defendants asserted that they owed no duty to the Plaintiff to direct traffic. The Defendants additionally asserted that they had no duty to provide off-street parking for the sale. The Defendants otherwise noted that, in any event, parking was permitted on both sides of the street in the area of their property.

The Defendants additionally asserted that the Plaintiff did not attend the sale and there was no evidence that anyone connected to the accident attended the sale.

As noted, the court affirmed the trial court’s entry of summary judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 10, 2023).

Superior Court Reverses Trial Courts Granting of Motion To Transfer Venue Under Doctrine of Forum Non Conveniens

It's a Philly Thing.

In the case of Tranter v. Z & D Tour, Inc., No. 1746 EDA 2022 (Pa. Super. Oct. 11, 2023 Panella, P.J., Dubow, J., and Sullivan, J.) (Op. by Dubow, J.), the Pennsylvania Superior Court reversed a trial court decision and found that the Defendant did not demonstrate valid grounds to support a Petition to Transfer Venue out of Philadelphia County under the doctrine of forum non conveniens. 

This case arose out of a motor vehicle accident during which a Defendant bus driver was driving 59 passengers on a bus from New York City to Columbus, Ohio and was involved in an accident in Westmoreland County, Pennsylvania. Yet, the lawsuit was filed in Philadelphia County.

At the trial court level, the Defendants filed a Motion to Transfer Venue to Westmoreland County, which motion was granted by the trial court after the court found that potential witnesses would have to travel over 200 miles to Philadelphia to testify. The trial court found that keeping the case in Philadelphia County would have been oppressive and vexatious to certain individuals involved in the litigation.

The Superior Court reversed by finding that the trial court abused its discretion in granting the motion at issue.

The Superior Court noted that, although the defense presented affidavits in support of the claim that Philadelphia County would be oppressive and vexatious venue for certain witnesses, the Defendant’s affidavits did not have any specific statements as to what testimony the affiants would provide that was necessary to the defense of the case. The court noted that most of the affidavits provided by the Defendants were from ambulance drivers, firefighters, paramedics, a deputy coroner, and an insurance claims investigator employed by the Defendant truck company.  The court found that these witnesses were not key witnesses relative to the issues presented.

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

Lackawanna Pro Bono 15th Annual Fundraising Gala Set For This Thursday, November 9, 2023

 

Court Addresses Specificty Requirements With Respect to Federal Court Complaint

In the case of Bravo v. City of Philadelphia, No. 22-5190 (E.D. Pa. Sept. 19, 2023) (Op. by Pappert, J.), the Eastern District Federal Court declined to dismiss a Complaint for lack of specificity as to which allegations applied to specific individual Defendants where the Complaint alleged that all Defendants were aware of the decedent’s alleged mental health issues and suicidal ideation. 

The court noted that discovery could further refine the role each Defendant allegedly played in the decedent’s death and with respect to the alleged violation of his constitutional rights.

As such, the Defendant’s Motion to Dismiss was denied.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 10, 2023).

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

NEXT WEEK: Lackawanna Pro Bono 15th Annual Fundraising Gala -- Please Consider Registering to Attend or to Sponsor

 

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Plaintiff Gets Railed Off From Recovery

In the case of Jakmian v. City of Philadelphia, Case ID: 201001469 (C.P. Phila. Co. Aug. 4, 2023 Schulman, J.), the court issued a Rule 1925 Opinion on a Plaintiff’s appeal from an Order of Nonsuit entered in favor of the Defendants, SEPTA and the City of Philadelphia in a case involving an incident that allegedly occurred when the front tire of the Plaintiff’s bicycle became stuck in a SEPTA trolley track located in Philadelphia, causing the Plaintiff to be thrown from her bicycle and suffer, among other injuries, a broken arm.

According to the Opinion, the Plaintiff testified that she was riding her bicycle on a route that she often traveled between her home and a local gym. The Plaintiff testified that there were trolley tracks that ran down the middle of the street. The Plaintiff was riding in the middle of tracks, such that there was one track to her right and one to her left.

The Plaintiff moved to her right to clear the roadway for a car that was allegedly tailgating her. As she did so, one of the tires of her bike allegedly got struck in the trolley track and caused the Plaintiff to be thrown from her bike and smashed into a parked vehicle.

The court noted that the Plaintiff took pictures of an opening between the rails where the tire of her bicycle allegedly got stuck. The court noted that the Plaintiff did not identify any defect in the rails themselves.

According to the Opinion, at the time of the accident, trolley service had not been in use in the area for at least thirty (30) years and that SEPTA had no plans to change back to utilizing trolley service in that area.

The court reviewed various cases involving the real estate exception to the Sovereign Immunity Act that related to trolley rail.

The court found that the Plaintiff did not produce any evidence to support a claim that the inactivity in and of itself rendered the trolley track to become a dangerous condition.

The trial court held that no relief was due to the Plaintiff where the Plaintiff had failed to offer any evidence to support a claim that inactive trolley tracks were a dangerous condition of real estate for bicyclists.

The court rejected the Plaintiff’s argument that the fact that SEPTA had paved over some tracks in other parts of the city supported her claims of negligence against SEPTA for failing to pave over the trolley tracks where the Plaintiff’s accident occurred. The court found that the Plaintiff failed offer any evidence, by expert witness or otherwise, to show why the existence of trolley tracks presented as a dangerous condition.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 23, 2023).

Source of Image: Photo by Louis Droege on www.unsplashed.com