Tuesday, April 30, 2024

Complaint Containing Separate Counts Against Separate Defendants Allowed To Proceed Even Though Allegations Substantively Identical


In the case of Gamble v. PACCAR, Inc., No. 23-CV-2147 (W.D. Pa. Feb. 28, 2024 Schwab, J.), the court denied a Defendant’s Motion to Dismiss in which the content of a Plaintiff’s Complaint was challenged.

According to the Opinion, this lawsuit revolved around the mechanisms of a cement truck that had allegedly caused injuries to the Plaintiff.    

The court ruled that, although the Plaintiff’s allegations against three (3) different Defendants were substantively identical, the Plaintiff did not improperly “lump together” the Defendants in the Complaint given that each Defendant was separately sued in separate counts in the Complaint. The court noted that, even more than the Plaintiff, each Defendant should know what it did or did not manufacturer, sell, or distribute, or what liability it allegedly assumed under a successor liability theory.

Accordingly, the court found that the Complaint was not impractical to answer for the Defendants.  As such, the Motion to Dismiss was denied.

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


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

Friday, April 26, 2024

Court Denies Summary Judgment For Defendant Claiming Immunity Under the Mental Health Procedures Act


In the case of Redos v. UPMC Susquehanna, No. 19-00528 (C.P. Lyc. Co. Sept. 6, 2023 Carlucci, J.), the court denied Defendant medical providers’ Motion for Summary Judgment on a Plaintiff’s claim alleging professional liability regarding the treatment of a patient who was allegedly suffering from a mental illness.

According to the Opinion, the Plaintiff’s decedent sought emergency room treatment for symptoms allegedly stemming from his alleged recent drug use. The decedent was transported to another hospital for medical clearance prior to being admitted to a third facility for in-patient psychiatric treatment.

While at the Defendant’s hospital, the decedent was assessed as suffering from delirium. On his third day at that facility, the decedent exhibited bizarre behavior and jumped off the hospital’s roof, resulting in multiple injuries. The decedent died several years later from unrelated reasons.

This lawsuit was brought relative to the care provided to the decedent. After discovery, the Defendants moved for summary judgment based, in part, on the limited immunity afforded under 50 Pa. C.S.A. §7114 of the Mental Health Procedures Act.

 The court denied the Defendants’ motion where the Plaintiff’s expert opined that the Defendants acted in gross deviation from the standard of care for a patient suffering from delirium.

As a result, the court found that the Defendants could be ineligible to assert the limited immunity afforded under the Mental Health Procedures Act.

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

Wednesday, April 24, 2024

Trial Court Requests Affirmance of its Entry of Summary Judgment in a Nursing Home Slip and Fall Case



In the case of Ford v. Cheltenham Nursing and Rehab. Center, No. 2880 EDA 2023 (C.P. Phila. Co. Dec. 14, 2023 Lane, J.), the trial court asserted in its Rule 1925 Opinion to the Superior Court that its granting of a summary judgment motion in a slip and fall case involving a nursing home should be affirmed.

The court noted that the record before it showed that the Defendant had no prior notice of the alleged roof leak that allegedly caused water to puddle next to the Plaintiff’s bed at the facility.

The record before the court showed that the roof was inspected monthly. Also, the first indication in the Defendant’s records of any leak was the entry made just after the Plaintiff was discovered on the floor beside her bed.

Given that the Plaintiff had failed to prove actual or constructive notice of any defect, the court stated the Plaintiff had failed to demonstrate that the nursing facility had breached its duty of care.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 1, 2024).

SAVE THE DATE -- LACKAWANNA PRO BONO GOLF TOURNAMENT -- JUNE 10, 2024


 

Monday, April 22, 2024

DON'T FORGET - This Wednesday, April 24 is ADMINISTRATIVE ASSISTANT'S DAY


Don't forget to say "Thank you" to your Administrative Assistant(s) on Administrative Professionals' Day this Wednesday, April 24, 2024!

Friday, April 19, 2024

Summary Judgment Granted in MVA Case Where Plaintiff Had Seat Belt Off and Defendant Driver Stopped Short


In the case of Lucykanish v. Flurer, No. 2545-CV-2022 (C.P. Monroe Co. Feb. 1, 2024 Williamson, J.), Judge David J. Williamson granted summary judgment to a Defendant driver in a motor vehicle accident case in which the Plaintiff was a passenger in that Defendant’s vehicle.

According to the Opinion, the Plaintiff was a rear seat passenger in the Defendant’s truck when another passenger dropped her cell phone in the rear footwell. The Plaintiff removed her seat belt to crawl around in the footwell to look for the phone.

At the same time, another vehicle improperly passed the Defendant’s truck on the right and then cut back into the Defendant’s lane.  In order to avoid a collision, the Defendant forcefully applied the truck’s brakes, which allegedly resulted in the Plaintiff striking her head on the truck’s center console.

After discovery, the Defendant filed a Motion for Summary Judgment arguing that the Plaintiff could not demonstrate that he acted negligently in operating his vehicle and that there was no proximate causation established by the Plaintiff with respect to the Defendant’s actions and the Plaintiff’s alleged injuries.

Judge Williamson granted the Motion for Summary Judgment and held that the Plaintiff failed to demonstrate that the Defendant acted negligently or that any alleged negligence on the part of the Defendant was a proximate cause of the Plaintiff’s injuries.

The court noted that the evidence developed during discovery confirmed that the Defendant braked his truck forcefully in order to avoid a collision with another vehicle that had improperly tried to pass the Defendant on the right and then attempted to cut back into the Defendant’s lane of travel. The court noted that Defendant driver’s actions were meant to protect the entire vehicle from a potentially serious motor vehicle accident. The court found that the Plaintiff’s alleged injury, that occurred while the Plaintiff was crawling around the floor in the back seat area, unrestrained, did not impute negligence to the Defendant when the urgent need unexpectedly arose to hit the brakes in a forceful fashion.

The Plaintiff otherwise attempted to argue that the Defendant was negligence per se by speeding in a construction zone. The court noted that this argument failed because, even if the Defendant had violated the Motor Vehicle Code as alleged by the Plaintiff, the Plaintiff had still failed to show that the Defendant’s alleged speeding was a proximate cause of the injury.

The crux of the Plaintiff’s claim was that the Defendant had braked too hard or too late. The court stated, however, that the force that one applies the brakes of a vehicle is not grounds for a finding of a negligence under circumstances of this case.

Rather, Judge Wiliamson noted that, here, the Plaintiff would have not been injured if she had simply stayed in her seat with her seat belt on. The court noted that the Plaintiff failed to explain why she had to crawl around the footwell of a moving vehicle, let alone one that she would later claim was driving allegedly dangerously fast.

Overall, the court emphasized that the Defendant had acted appropriately under the circumstances in order to avoid an accident. Accordingly, the court agreed with the Defendant that the Plaintiff had failed to prove negligence or that any alleged negligence on the part of the Defendant was the alleged proximate cause of the Plaintiff’s injuries.

As noted, summary judgment was granted and the case was dismissed.

Anyone wishing to review this decision may click this LINK.

Source: “The Legal Intelligencer Common Pleas Case Alert,” at Law.com (April 4, 2024).

Wednesday, April 17, 2024

Judge Nealon Reviews Pennsylvania Law on Class Actions


In the case of Chase v. Kriger Construction, Inc., No. 2021-CV-5174 (C.P. Lacka. Co. Feb. 9, 2024 Nealon, J.)., Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law relative to certain aspects of class action.

Among the issues reviewed by the court were a request for a certification of a class action in accordance with the Pennsylvania Rules of Civil Procedure, an approval of a class action settlement, and a ruling on the attorney’s fees allowed.

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

Monday, April 15, 2024

Continuing Violations Doctrine Does Not Save Civil Rights Claim From Statute of Limitations Defense Under Facts Presented


In the case of Sharr v. City of Scranton, No. 3:23-CV-00826-JFS (M.D. Pa. March 13, 2024 Saporito, C.M.J.), Chief Magistrate Judge Joseph F. Saporito, Jr. granted a Motion to Dismiss in a civil rights action brought by three (3) retirees against their former employer, The City of Scranton, relative to issues surrounding their monthly pension benefit payments that were reduced by The City.

The Plaintiffs had presented a claim that The City had violated their Fourteenth Amendment Due Process and Equal Protection Rights and had presented a 42 U.S.C. §1983 civil rights action.

The Defendant, City of Scranton, moved to dismiss the action for failure to state a claim upon which relief may be granted under an argument that the Plaintiffs’ claims were barred by the applicable statute of limitations.

The Plaintiffs attempted to argue that the time within which they could file a lawsuit was extended by the continuing violations doctrine. 

The Plaintiff contended that each reduced monthly pension benefit payment paid by The City constituted another in a series of allegedly continuing unlawful acts, all of which, when taking together, comprised an ongoing continuing practice of allegedly violating the Plaintiffs’ constitutional rights.
Chief Mag. Judge 
Joseph F. Saporito, Jr.
M.D. Pa.

The court reviewed the law of the continuing violation doctrine and found that the Plaintiffs’ arguments did not meet the requirements of that doctrine. 

 The court found that the Plaintiffs’ claims were instead barred by the statute of limitations because the Plaintiffs were aware of their alleged injury at the time the alleged injury occurred well beyond the two (2) state of limitations applicable to civil rights actions.

As such, the court granted the Defendant’s Motion to Dismiss. Moreover, the court dismissed the action without leave to amend as the court found that it was clear from the facts alleged that any attempt to file an Amended Complaint would be futile as a matter of law.

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

Thursday, April 11, 2024

Carrier Permitted to Deny Coverage Due to Non-Permissive Use



In the case of State Farm Mutual Automobile Insurance Company v. Hamilton, No. AD 2020-10 (C.P. Crawf. Co. Feb. 12, 2024 Stevens, J.), the court ruled that State Farm was not required, based upon the facts presented, to provide coverage to a Defendant under the relevant insurance policy for an incident that occurred given that the party at issue was not authorized to be driving the insured’s vehicle on the date of the incident and, therefore, did not qualify as an insured under the liability coverage at issue. 

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

I send thanks to Attorney Joseph Hudock of the Summers McDonnell law firm in Pittsburgh for bringing this case to my attention.

Summary Judgment Denied in an Alleged Black Ice Slip and Fall Case


In the case of Hicks v. DEPG Stroud Associates, No. 0807-CV-2021 (C.P. Monroe Co. April 2, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a “black ice” slip and fall case.

According to the Opinion, the Plaintiff pursued this slip and fall litigation against a shopping center owner and its snow removal contractor.

According to the Opinion, it had snowed in the area three (3) days before the incident. The weather on the day of the incident was clear. The record before the court indicated that the snow removal contractor had completed snow removal efforts on the day of the last storm but had not returned to the site as of the day of the incident.

The Plaintiff allegedly slipped and fell on a localized patch of black ice that was near a large snow mound that had been plowed into parking spot. The Plaintiff sustained a primary injury of a broken wrist that required a surgical repair and other treatment.

The Defendants filed a Motion for Summary Judgment asserting that the Defendant was unable to establish that anyone had constructive notice of an alleged transient, isolated patch of black ice. 

The snow removal contractor additionally asserted that there was no causal connection between their work and the Plaintiff’s injuries. 

Judge Williamson noted that, while at first glance, it would appear that the Plaintiff fell on a localized patch of ice that was transient in nature, the deposition of the snow removal contractor’s employee was found to have “complicate[] a seemingly simple matter.” 

The court noted that the contract between the snow removal contractor and the shopping center required that the snow shall be plowed in a workman like manner from all paved areas. 

Accordingly, the court noted that it appeared that the snow removal contractor may have failed to abide by its contractual duties by piling the snow in a paved parking area/parking space. The court pointed to testimony from a representative of the shopping center who testified that it was not appropriate for the snow removal contactor to have piled snow in parking spots. It was also indicated by that representative that the snow removal contractor was never directed to, and never sought permission to, plow snow in the parking spaces. According to that representative, the snow should have instead been plowed into a grassy area outside of the parking lot.

The court noted that the Plaintiff contended that the location of the snow pile made both Defendants allegedly negligent as they should have known that snow melt and refreezing could be a risk for pedestrians in that location.

Given these material issues of fact, the court denied the Motion for Summary Judgment.

The court also addressed the arguments by both Defendants that they did not have any constructive notice that the black ice was present in the parking lot. Judge Williamson noted that black ice cases are not as easily analogous to other constructive notice cases because black ice conditions are very difficult to see as compared to other conditions. The court additionally noted that, under the applicable law, a landowner has the duty to protect an invitee against known dangers and also those dangers which might be discovered with reasonable care.

In this case, the court noted that both Defendants may have lacked constructive notice of any black ice because neither Defendant was regularly visiting the site at the time the Plaintiff fell.

In this regard it was noted by the Court that the snow removal contractor would only come to the premises on an as needed basis and that the Co-Defendant representatives were only sending an individual to check on the site once or twice a month. 

However, the court emphasized that the large snow pile was left on the parking lot surface in a parking space by the Defendants. The court stated that this snow pile would have been an open and obvious condition near the restaurant. It was also noted that the parking lot was sloped such that the snow melt would likely run into the area where other vehicles parked and pedestrians walked as opposed to the snow being kept in a remote location of the parking lot or separately on grass or dirt where it could be kept safely away from pedestrians walking areas.

The court stated that, as such, the Defendants should have been aware that, during winter months, there is a constant threat of melting and refreezing conditions, and that black ice is not a rare occurrence.

In this case, where the experts differed on what was reasonable under the circumstances, the court noted that there were issues of fact that required the case to go to the jury for this additional reason.

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

Source:  Photo by Egor Kamelev from www.pexels.com.

Tuesday, April 9, 2024

Chief Magistrate Judge Saporito of Federal Middle District Court Reviews Assumption of Risk Doctrine


In the case of Hazen v. Woodloch Pines Resort, No. 3:21-CV-00174 (M.D. Pa. Feb. 16, 2024 Saporito, C.M.J.) Chief Magistrate Judge Joseph F. Saporito, Jr., of the Federal Middle District Court of Pennsylvania denied a Motion for Summary Judgment by a Defendant resort in a fall down case.

According to the Opinion, the Plaintiff was engaged in a corporate team building activity on an outdoor low ropes challenge course. During one of the challenges, the Plaintiff fell, along with other members of her team, to the ground below.  The Plaintiff allegedly suffered a significant ankle injury, including an ankle dislocation and fracture.

The Defendants filed a Motion for Summary arguing that the Plaintiff’s claims were barred under the assumption of risk doctrine.

Judge Saporito reviewed the current status of the Pennsylvania law on the assumption of risk doctrine. While the court found that it was undisputed that the Plaintiff was generally aware of the risk that she might fall from the balance beam during the activity she was engaged in, the court noted that awareness of a general risk does not amount to awareness of a specific risk under the assumption of the risk doctrine under Pennsylvania law. Here, the court did not find that the potential for serious injury such as a complex ankle fracture and other injuries could have been appreciated under the circumstances presented.

Moreover, the court noted that there is factual dispute as to whether the Plaintiff’s participation in the challenge course was voluntary as that term is defined under the assumption of the risk doctrine. The Plaintiff offered testimony that she felt that her participation in this team building activity was required rather than voluntary.

Accordingly, in light of the issues of fact presented, the court denied the Motion for Summary Judgment.

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

Source:  Photo by Thomas Couillard from www.unsplash.com.

Thursday, April 4, 2024

Certificate of Merit Requirements Also Apply in Federal Court


In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a Defendant’s Motion to Dismiss after finding that the Certificate of Merit requirements for medical malpractice claims in Pennsylvania also apply in federal court.

In this case, the court ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.

The court additionally found that the Plaintiff failed to plead a claim for negligence infliction of emotional distress in this 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 Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Tuesday, April 2, 2024

Court Upholds Arbitration Agreement in a Nursing Home Malpractice Case



In the case of Dougherty v. Scranton Health Investors, LLC, No. 2014-CV-5245 (C.P. Lacka. Co. Feb. 1, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by the owner and operator of a skilled nursing home facility seeking to compel the Plaintiff to submit this litigation to binding Arbitration pursuant to an Arbitration Agreement.

According to the Opinion, the Plaintiff commenced this survival action against the facility where her mother allegedly fell and suffered a fractured hip. In the lawsuit, the Plaintiff sought to recover damages for the pain and suffering that the mother endured prior to her death due to unrelated conditions.

According to the Opinion, approximately one year before the mother’s admission to the facility, the mother and her daughter executed a Durable Power of Attorney that granted the daughter the express authority to authorize the mother’s admission to such a facility and to execute agreements related to the mother’s care.

Almost two (2) years after the mother’s admission to the facility and pursuant to the authority granted the Durable Power of Attorney, the daughter executed a “Resident Facility Arbitration Agreement” under which it was agreed that any claims against the facility or its employees for negligence or malpractice to binding arbitration and to specifically waive the right to have such claims decided by a judge or a jury.

After the Plaintiff filed this lawsuit, the facility’s owner filed Preliminary Objections seeking to compel the Plaintiffs to submit the matter to binding arbitration. 

Judge Nealon reviewed the law on the issue and ruled that a litigant’s claims are to be submitted to arbitration if a valid agreement to arbitrate exist between the parties and the claims at issue fall within the scope of that agreement. The court noted that, even if a party has not signed an Arbitration Agreement, the party can be compelled to arbitrate under such an agreement based upon the law of agency and contract. The court noted that a valid Durable Power of Attorney constituted a grant of express authority to act as another’s agent.

Here, the court found that the facility’s owner established by a preponderence of the evidence that the mother had granted her daughter the authority to execute the arbitration agreement at issue, and that the survival claims asserted in this lawsuit were within the scope of that arbitration agreement.

Consequently, the court sustained the Defendant’s Preliminary Objections and directed the parties to instead submit the claims at issue to binding arbitration.

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