Mock Trial Jurors Needed To Fill Jury Box for the Finals in Scranton Next Tuesday

 

Superior Court Affirms Trial Court Rulings in MVA Case Precluding Introduction of Criminal Acts by Defendant

In the non-precedential decision by the Pennsylvania Superior Court in the case of Bazzano v. Spade, No. 99 WDA 2024 (Pa. Super. Dec. 23, 2024 McLaughlin, J., King, J., and Beck, J.) (Mem. by McLaughlin, J.), the Pennsylvania Superior Court affirmed the trial court’s decisions on evidentiary rulings during the course of a motor vehicle accident trial in which the jury awarded the Plaintiff $7,500.00 in damages.

According to the Opinion, the Defendant struck the Plaintiff with his vehicle while the Plaintiff was walking through a parking lot. After the accident, in a companion criminal case, the Defendant had pled guilty to simple assault and recklessly endangering another person, which were misdemeanors of the second degree.

Among the issues raised on appeal after this personal injury trial was the Plaintiff’s desire to introduce into evidence the Defendant's guilty plea from the criminal case during the course of the civil jury trial on the personal injury claims.

Along these lines, the Plaintiff noted that the trial court had allowed the Plaintiff to amend the Complaint to assert claims of recklessness and punitive damages.

The Pennsylvania Superior Court ruled that the trial court had properly precluded the references to the Defendant’s criminal charges. In part, the court noted that the Defendant admitted liability for the happening of the accident in this civil litigation and that, therefore, the only issues present in the civil trial were the issues of damages. 

The court also noted that, given that the Defendant had pled guilty to misdemeanors, as opposed to any felonies, the use of the criminal convictions for the purposes of establishing reckless behavior in the civil trial was properly precluded by the trial court. 

The Superior Court otherwise noted that any relevance that the conviction would have had as a statement against interest by the Defendant, would have been outweighed by its prejudicial effect. 

Accordingly, the Superior Court ruled that the trial court did not abuse its discretion in keeping out this guilty plea.

The Superior Court also affirmed the trial court’s refusal to admit into evidence the Defendant’s prior DUI convictions. The Plaintiffs attempted to utilize this evidence to establish the Defendant’s habit and pattern of recklessness. The Plaintiffs argued that the Defendant's recklessness in this case was in conformity with his past actions demonstrating recklessness while driving.

The Plaintiff was relying upon Pa.R.E. 406 which provides that evidence of a person’s habit may be admitted to prove that, on a particular occasion, the person acted in accordance with that habit.

The Superior Court found that the trial court properly denied the Plaintiff’s request to admit the Defendant’s two (2) prior DUI convictions to demonstrate of recklessness. The Superior Court noted that there was no evidence that the Defendant was under the influence of alcohol at the time of the subject accident. The Superior Court agreed that the evidence was not relevant and the prejudicial impact of that evidence outweighed any potential relevance.

Based on these reasons, and other reasons, the Superior Court affirmed the trial court’s rulings. The judgment was affirmed.

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


I send thanks to Attorney Krista M. Corabi, Esquire of the Pittsburgh office of the Summers, McDonnell Hudak, Guthrie & Rauch law firm for bringing this case to my attention.

Source of image:  Photo by Kindel Media on www.pexels.com.

Liability for Skiing Accident Found to be Barred by Signed Waiver and Under the Skier's Responsibility Act

The case of Lin v. Shawnee Mountain Ski Resort, No. 4031-CV-2022 (C.P. Monroe Co. Dec. 11, 2024 Williamson, J.), the court granted the Defendant ski resort’s Motion for Summary Judgment in a case arising out of a skiing accident at the resort.

According to the Opinion, the Plaintiff was relatively a novice at skiing.  As part of the ski rental process at the resort, the Plaintiff executed a release or waiver document.

After some time on the “bunny slope,” the Plaintiff and her friend went to ski on other trails on the mountain. 

At some point during the day, when coming down one of the other trails, the Plaintiff came all the way down the hill and was unable to slow or stop allegedly due to icy conditions and missed crashing into the ski racks situated outside of the lodge but skied into the lodge itself. The Plaintiff, who was wearing a helmet, went head first through a glass window of the lodge. 

The Plaintiff alleges that, as a result of the collision, she suffered a broken pelvis and multiple stomach lacerations which have resulted in considerable scarring.

The Plaintiff sued on various theories of negligence. In part, the Plaintiff alleged that the lodge was located too close to the bottom of the trail, that the Defendants failed to provide some sort of stopping mechanism in front of the ski racks in the lodge, and that the Defendants should have installed safety glass in the lodge's windows. The Plaintiff additionally alleged that the trail she came down was mislabeled as a easier or beginner's slope.

The Defendants filed a Motion for Summary Judgment asserting that the Plaintiff’s inability to stop and result an accident where inherent risks of skiing which is deemed to be an assumed risk under the Pennsylvania Skier’s Responsibility Act.

In the alternative, the Defendants alleged that the Plaintiff's claims were barred by the release that the Plaintiff signed at the time she rented the ski equipment.

The Defendants also requested summary judgment on the punitive damages claims asserted.

Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment, holding in pertinent part, that the Plaintiff’s negligence claims were barred by both the Skier’s Responsibility Act and the liability waiver that the Plaintiff had signed before commencing her skiing activities.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 29, 2025).

Joinder of Additional Defendants Denied in Federal Court as Untimely

In the case of Cooney v. Buck Motorsports Park LLC, No. 5:23-CV-02346-MKC (E.D. Pa. Jan 15, 2025 Costello, J.), the court addressed a Plaintiff’s opposition to a Defendant’s Motion for Leave of Court to Join Additional Defendants into the case which involved allegations of personal injury after a truck allegedly struck the Plaintiff during a dirt race track event.

The Plaintiffs opposed the joinder of the proposed third party Defendants under Federal Rule 14(a) and Local Rule 14.1(a) by asserting that the Motion to Join was untimely.

The court noted that, under Federal Rules of Civil Procedure 14(a), a “defending party may, as third-party Plaintiff, serve a summons and complaint on a nonparty who is or maybe liable to it for all or part of the claim against it.” 

The court additionally noted that, under F.R.C.P. 14(a)(1), “the third-party Plaintiff must, by motion obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.”

Moreover, the court noted that the Eastern District Local Rule of Court 14.1 holds that applications pursuant to F.R.C.P. 14 for leave to join additional Defendants after the expiration of the time limit specified in that rule “will ordinarily be denied as untimely unless filed not more than 90 days after the service of the moving party’s answer.” However, the court noted that the trial court retained discretion on whether or not to apply that local rule or not.

The court additionally noted that, in this matter, the scheduled trial was only a few months away, that the discovery deadline had already been previously extended, and that the addition of the third party Defendants would not only extend the discovery period further, but would also guarantee a delay of trial and would complicate the issues at trial.

The court additionally noted that the late joinder would also likely harm the proposed third-party Defendants given how far along the original case had already proceeded. The court additionally noted that prejudice could result to the Plaintiff for the same reasons.

For all of these reasons, the court denied the Motion to Join the Third Party Defendants after finding that the motion was untimely and without sufficient justification where the original Defendants had sought the leave of court more than a year after they filed their Answer to the Complaint. 

The court also noted that the Defendants were long aware of the existence of the proposed third-party Defendants, having listed them as individuals with discoverable information in the original Defendant’s initial federal court disclosures.

The court also noted that the Defendants who wished to join the third-party Defendants failed to explain to the court why they could not have learned of their alleged claims against the third-party Defendants sooner.

As such, the Motion to Join 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: The Legal Intelligencer Federal Case Alert, www.Law.com (Feb. 6, 2025).

Federal Court Rules Just Because Experts Agree That There Was An Injury Doesn't Automatically Mean That Causation Has Been Established

In the case of Gross v. Villeneuve, No. 2:23-CV-00705-NBF (W.D. Pa. Jan. 22, 2025 Fischer, S.J.), the court granted the Plaintiff’s Motion for Partial Summary Judgment with respect to a Defendant’s negligence, which had been conceded, but otherwise denied the Plaintiff’s Motion for Summary Judgment in a case involving a motor vehicle accident.

While the court granted the Plaintiff’s Motion for Summary Judgment in terms of the liability issue in this rear-end accident, the court denied the Plaintiff’s argument that, given the Defendant's concession on liability, the Plaintiff was, therefore, entitled to a further concession on the issue of causation relative to the physical injuries and damages alleged by the Plaintiff.

The Plaintiff asserted that he was entitled to summary judgment on the “factual cause” question where both parties’ medical experts attributed some degree of injury to the accident. 

Here, citing to Pennsylvania Superior Court precedent, the federal court ruled that a defense expert’s opinion that a Plaintiff suffered an injury, based on the history given to the expert, is not an uncontroverted admission on the issue of causation by a defendant. 

The court confirmed the well-settled rule that a jury was free to render its own decision on the case presented even where the experts of the parties may agree, to some extent, that the Plaintiff sustained an injury as a result of the accident. 

More specifically, the court reasoned that “[a] medical expert report concluding that, based on the evidence provided (including a Plaintiff’s history and subjective complaints), the ‘mechanism of injury’ and clinical findings were ‘consistent with’ some of the allegedly consequent injuries (i.e., some injury could be resultant from the collision), is simply not a concession. To the contrary, it is an insufficient basis on which to usurp a trial jury’s credibility determinations and broader fact-finding role.” See Op. at 5.

As such, the court denied the Plaintiff’s Motion for Summary Judgment based on the causation issues presented.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law office of Summers, McDonnell, Hudock, Guthrie & Rauch for bringing this case to my attention.

Source of image:  Photo by Nikita Nikitin on www.pexels.com.

Summary Judgment Granted Relative To Slip and Fall That Occurred During an Active Snowstorm

In the case of King v. Hermitage Plaza, No. 2023-CV-1055 (C.P. Mercer Co. Jan. 14, 2025 Amrhein, Jr., J.), the court entered summary judgment in a slip and fall case where the Plaintiff slipped and fell in a parking lot owned by the Defendant during an ongoing snowstorm.

According to the Opinion, on the day of the incident, the Plaintiff exited her place of employment during an ongoing snowstorm, walked across the parking lot owned by the Defendant and went to her vehicle. The Plaintiff then moved her vehicle closer to her place of business by parking at the curb. When the Plaintiff then exited her vehicle again at that point, she slipped and fell on the snow and/or ice that had accumulated near the curb.

The Plaintiff alleged injuries as a result and attributed the incident to the Defendant’s failure to fully remove snow and ice from the premises. The Plaintiff sued both the landowner and a snow removal contractor.

In its decision, the court reviewed the current status of the hills and ridges doctrine in Pennsylvania. The court also cited to the case of Collins v. Phila. Suburban Dev. Corp., 179 A.3d 69, 75 (Pa. Super. 2018), for the proposition that a landowner has no obligation to address any snow and ice on the premises “until a reasonable time after the winter storm has ended.”

The court in this case, again relying on the Collins decision, ruled that a period of approximately six (6) hours (or overnight) does not constitute an unreasonable passage of time concerning a landowner’s failure to remove ice and snow, particularly when a winter storm is ongoing during that period.

The court emphasized that the record in this case demonstrated that the site of the incident experienced severe winter weather conditions before, during, and after the subject slip and fall incident. The Plaintiff noted that she had observed the Defendant snow removal contractor plowing the lot approximately one hour before her fall. The court stated that this plowing activity fell within the six hour to overnight window established in the Collins case.

The court also noted that photographs of the parking lot which were taken by the Plaintiff immediately after the fall demonstrated that the lot was actively being cleared throughout the day. There was also a continued snow fall thereafter.

The court also found here that the Plaintiff did not present evidence to show that snow and ice has unreasonably accumulated to such a degree as to unreasonably obstruct travel so as to satisfy the elements of the Hills and Ridges Doctrine, or that an unreasonable time has passed after the end of a storm. 

Consequently, the Plaintiff was unable to prove the breach of duty element essential to this negligent claim. Accordingly, the Plaintiff was not able to sustain a negligence claim and the court therefore entered summary judgment in favor of the Defendants.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh office of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Annie Niemaszyk on www.unsplash.com.

Third Circuit Affirms Trial Court's Giving Plaintiff the Boot in a Shoe Store Slip and Fall Case

In its non-precedential decision in the case of Liveshitz v. Designer Brands, Inc., No. 23-3082 (3d Cir. Jan. 13, 2025 Matey, J., Shwartz, J., and McKee, J.) (Op. by Matey, J.), the Third Circuit Court of Appeals affirmed the entry of summary judgment in a slip and fall case.

In this case, the Plaintiff alleges that she slipped and fell on a clear and odorless substance on the restroom floor of a store.

The Third Circuit reaffirmed the well-settled rule that a premises liability case requires that a defendant either created the harmful condition that caused the plaintiff to fall or had actual or constructive notice of that condition a sufficient time prior to the event to enable the defendant to address the condition.

Here, the court found that whether the Defendant exercised reasonable care was immaterial because there was no duty owed in the first place. The court found that the Plaintiff had failed to establish actual or constructive notice of the condition on the part of the Defendant.

The court also ruled that the Plaintiff's spoliation of evidence argument failed to create a genuine issue of material fact where there was no evidence of any actual or constructive notice on the part of the Defendant of the alleged condition that allegedly caused the Plaintiff to fall.  

The court ruled that a jury could only speculate on how long the substance at issue was on the floor before the Plaintiff encountered it.

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

Anyone wishing to review a copy of this non-precedential 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.

Volunteer Mock Trial Jurors Needed For Next Tuesday's Semi-Finals Trials in Lackawanna County

 

Venue of UIM Case Transferred Due To Terms of Forum Selection Clause in Policy

In the case of Winner v. Progressive Adv. Ins. Co., March Term, 2023, No. 1654 (C.P. Phila. Co. Nov. 15, 2024 Bright, J.), the trial court issued a Rule 1925 Opinion addressed to the Pennsylvania Superior Court relative to an appeal when trial court decisions in response to a Motion to Transfer UIM and Bad Claims from Philadelphia County to Chester County.

In its Opinion, the trial court asserted that it did not commit error in transferring the UIM and bad faith claims from the Philadelphia County Court of Common Pleas to the Chester County Court of Common Pleas based upon an unambiguous forum selection clause contained in the automobile insurance policy at issue.

The trial court also asserted that it did not err in deciding the Preliminary Objections at issue without ruling on discovery motions which, according to the trial court, had become moot.

The trial court also requested that the Unfair Trade Practices and Consumer Protection Law Claim be remanded to the trial court for further consideration.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 23, 2025).

Federal Court Finds No Jurisdiction Over Insurance Company Existed Under Claims Asserted

In the case of Abira Medical Laboratories, LLC v. Freedom Life Insurance Co., No. 2:24-CV-02110-JHS (E.D. Pa. Jan. 10, 2025 Slomsky, J.), the Eastern District Federal Court of Pennsylvania, addressing a question of first impression, held that a Defendant foreign insurance company did not consent to general personal jurisdiction in Pennsylvania to be sued by a private party on its own behalf for any cause of action simply based on the fact that the carrier obtained a Certificate of Authority issued pursuant to 40 Pa. C.S.A. § 46 in order to conduct business in Pennsylvania.

According to the Opinion, the Plaintiff was a medical testing laboratory that provided testing services to the Defendant insurance company’s insured members as an out-of-network provider.

When the Plaintiff had a billing dispute with the insurance company regarding services performed, the Plaintiff sued the Defendant in a Pennsylvania Court of Common Pleas.

The Defendant carrier removed the action to federal court on the basis of diversity and then filed this Motion to Dismiss. The Defendant carrier asserted, in part, that the court lacked personal jurisdiction over the insurance company.

The Plaintiff argued that the Defendant carrier had consented to general personal jurisdiction on any claim because the Defendant had applied for and received a Certificate of Authority to do insurance business in Pennsylvania pursuant to 40 Pa. C.S.A. § 46.

The court noted that the referenced statute did not provide for general jurisdiction over foreign insurance companies conducting business in Pennsylvania.

Rather, the court noted that, under the plain language of § 46 foreign insurance companies wishing to conduct business in Pennsylvania must obtain a Certificate of Authority from Pennsylvania’s Department of Insurance. The statute further provides that, upon obtaining a Certificate of Authority, § 46 allows for any action arising out of a violation of § 46 that is instituted by or on behalf of the insurance commissioner to be brought against the foreign insurance company in Pennsylvania.

Here, given that the current action was not commenced by the insurance commissioner arising out of a violation of § 46, but rather was an action brought by a private party, the grant of jurisdiction provided under § 46 over a foreign insurance company was not found not to be implicated.

The court also held that the Defendant insurance company had no otherwise consented to personal jurisdiction in Pennsylvania.

Given that the court found that it lacked general personal jurisdiction, as well as specific personal jurisdiction over the Defendant insurance company, the court granted the carrier’s Motion to Dismiss.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Jan. 30, 2025).

 

Superior Court Confirms that Parties Entitled to 30 Days to Respond to Motion for Summary Judgment

In the case of Jordan v. Lynde, No. 234 EDA 2024 (Pa. Super. Dec. 31, 2024 Kunselman, J., Nichols, J., and Beck, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court addressed certain procedural issues regarding summary judgment proceedings.

In this case, the court granted in part and reversed in part the trial court’s entry of summary judgment in a matter.

The case arose out of a medical malpractice action.

According to the Opinion, a Defendant in this medical malpractice action belatedly joined in a Co-Defendant’s summary judgment motion only a few days before the motion was actually granted.

The Superior Court noted that it was an error for the trial court to grant summary judgment in favor of that Defendant that had joined the motion late given that Pa. R.C.P. 1035.3(a) requires that a non-moving party opposing a Motion for Summary Judgment proceedings be provided with thirty (30) days to respond to any such motion. The Superior Court noted that there was no exception to this rule with respect to any joinder by any party in any previously filed Motion for Summary Judgment.

The court affirmed the summary judgment granted to all defendants in this medical malpractice case other than late joining Defendant because Plaintiffs sought an extension of their time to respond to the motion by way of an email to the judge's administrative assistant rather than by motion as required by the rules of court.

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 Schmidt law firm for bringing this case to my attention.

Allegations of Recklessness Upheld in a Case Where Negligence Was Alleged

In the case of Janes v. Charles, No. 2024-CV-409 (C.P. Lacka. Co. Jan. 28, 2025 Nealon, J.), the court overruled Preliminary Objections filed by a Defendant in the nature of a demurrer seeking to strike the allegations of gross, reckless, indifferent, wanton, willful, and outrageous conduct contained in a Complaint filed by the Plaintiffs relative to a motor vehicle accident.

Following the trend in Lackawanna County and as supported by the Pennsylvania Superior Court decision in the case of Monroe v. CB H20 LP, 286 A.3d 785 (Pa. Super. 2022) (en banc), the court overruled the demurrer asserted against the claims at issue.

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


I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Attorney's Sexual Misconduct Towards a Client Found to Constitute Viable Basis for Legal Malpractice Claim

In the case of J.C. v. Fanucci & Kolcharno, No. 2022-CV-3490 (C.P. Lacka. Co. Feb. 4, 2025 Nealon, J.), the court addressed various Preliminary Objections filed in a case where a client sued her former attorney and his law firm for wanton and reckless legal malpractice, intentional infliction of emotional distress, breach of fiduciary duty, along with claims for vicarious liability, negligent hiring, supervision, and retention relative to claims that an attorney at the law firm pressured and extorted the client to engage in sexual activity with him as a condition of his continued representation of the client relative to criminal court matters. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, in a 56 page Opinion, held, in part, that an attorney’s sexual misconduct toward a client constituted a viable basis for a legal malpractice action.

The court rejected the defense claims that the Plaintiff would need to have alleged that she had been found innocent in her underlying criminal matter in order to pursue legal malpractice claims against her attorney. The court rejected that argument, in part, because the Plaintiff did not claim that she had been wrongfully convicted relative to the underlying matter.

In this decision, the court overruled the attorney’s Preliminary Objections to the Plaintiff’s claim of malpractice, breach of fiduciary duty, and with regard to the claims of intentional infliction of emotional distress.

The court additionally overruled objections by the Defendant attorney’s law firm with respect to the Plaintiff’s claims against the firm for vicarious liability and negligent hiring.

The court additionally allowed the Plaintiff to proceed with the claims of recklessness and punitive damages. In ruling in this regard, the court cited, in part, to a Pennsylvania Bar Quarterly article by Daniel E. Cummins that provided an overview of recent Pennsylvania jurisprudence on the viability of claims of recklessness in personal injury matters based on claims of negligence.

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

In Honor of Lincoln's Birthday

In honor of President Abraham Lincoln's birthday, I provide this reprint of an article of mine that appeared in the Pennsylvania Law Weekly a few years back:

LINCOLN LOGS OF WISDOM

A Presidents' Day review of practical advice from one of our greatest lawyer-presidents

By Daniel E. Cummins
Special to the Law Weekly

January 29, 2007

On President's Day – Feb. [15th] this year – we will honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.

Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.

Whatever you are, be a good one.

Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.

Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.

It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."

Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.

As lawyers, our reputations precede us. Having a character made up of integrity, honesty, or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.

In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.

It is often said that a lawyer's word is his bond. This is more than a cliché, it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.

Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.

Give me six hours to chop down a tree and I will spend the first four sharpening the axe.

There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law, and the rules of civil procedure before completing whatever legal task lies ahead.

Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.

Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.

It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next and so litigation should not be sought out simply for the sake of litigation.

Am I not destroying my enemies when I make friends of them?

Similar to Michael Corleone's later advice in The Godfather, Part II, "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.

In today's practice of law, we are routinely faced with adversarial attorneys we much rather not have to deal with. As difficult as it may be, perhaps it is better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.

Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.

By acting in a non-confrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared to the petty and negative conduct of your opponent.

Better to remain silent and be thought a fool than to speak out and remove all doubt.

At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.

Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.

Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise, yet powerful, Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.

And in the end it's not the years in your life that count. It's the life in your years.

Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children, and otherwise attempted to live his life to the fullest.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, enjoying recreational activities or hobbies, or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.

President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity, and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us. In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today." •

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@cumminslaw.net.

This article is reprinted here, with permission, from the January 29, 2007 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC and/or ALM Global Properties. Further duplication without permission is prohibited. All rights reserved. Please contact 877-256-2472 or asset-and-logo-licensing@alm.com for permission to reprint or duplicate this article.

Mock Trial Jurors Needed In Lackawanna County for February 19th Trials

 

Superior Court Rules on Applicability of Jury Instruction On Recurrence of Medical Condition in Medical Malpractice Case

In its non-precedential decision in the case of Musika v. Abington-Jefferson Health, No. 599 EDA 2023 (Pa. Super. Jan. 9, 2025 Stabile, J., Colins, J., and McLaughlin, J.) (Op. by Stabile, J.; McLaughlin, J. concurring and dissenting), the Pennsylvania Superior Court affirmed a defense verdict in a medical malpractice case.

Of note in this matter, the court did rule that the Plaintiff was entitled to an increased risk of medical malpractice jury instruction on recurrence in a case where the Plaintiff had cancer, but had not yet suffered any recurrence.

The court noted that, under Pennsylvania law, where a Plaintiff already has a disease, its recurrence is not a separate injury that could support a later lawsuit, but rather, a matter of damages in the original lawsuit.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.  Judge McLaughlin's Concurring and Dissenting Opinion 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.

 

Superior Court Affirms Entry of Nonsuit Where Trial Court Precluded Plaintiff's Liability Expert For Giving a 'More Likely Than Not' Expert Opinion

In the case of Peterson v. Stacy’s Pizza, Inc., 315 EDA 2024 (Pa. Super. Jan. 14, 2025 Dubow, J., Sullivan, J., and Olson, J.) (Op. by Dubow, J.; Olson, J, concurring), the Pennsylvania Superior Court affirmed the entry of a nonsuit entered by the lower court after finding that the Plaintiffs did not meet their burden of proving the case presented.

According to the Opinion, the Plaintiff was allegedly injured when he was hit by a swinging door while making a delivery.  The Plaintiff retained a liability expert to testify at trial on a opinion on whether the door in question was defective.   

In this decision, the Pennsylvania Superior Court again confirmed that an expert opinion on causation to a reasonable degree of engineering certainty that the condition on the Defendant’s property “more likely than not” caused the Plaintiff’s injury was properly excluded by the trial court as not actually being an expert opinion to a reasonable degree of certainty.

The court noted that the Plaintiff’s expert’s opinion only stated that the Defendant’s improper maintenance was more likely than not the cause of the injury.

The Superior Court noted that, because the Plaintiff in this case had rested his case when it became clear that a fatal expert exclusion would cause a nonsuit, and where the Plaintiff did not thereafter present any evidence of damages, any error possibly committed by the trial court in terms of entering a nonsuit would have been harmless in any event.

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.

Superior Court Reviews Vicarious Liability of Domino's In MVA Case, And Whether Trial Court Decision on MSJ Remains Reviewable on Appeal After Entry of Verdict

In the case of Coryell v. Morris, No. 1977 EDA 2021 (Pa. Super. Jan. 31, 2025) (en banc) (Op. by Bowes, J.), the Pennsylvania Superior Court ruled that a Domino’s franchise relationship with the delivery driver’s employer created grounds for the pizza chain to be bound vicariously liable for the driver’s negligence during the course of a motor vehicle accident.

Some litigators viewed the court’s analysis in this case as setting up a framework for establishing a franchiser’s vicarious liability in cases involving alleged negligence on the part of a franchisee.

In this decision, the Superior Court found that there was sufficient evidence in the records to show that the franchiser exercised sufficient control over the franchisee to support the finding of vicarious liability.

Also of note was the fact that the Superior Court ruled that a jury’s resolution of the factual issues presented in the case, which involve, in part, factual disputes regarding Domino’s control over the franchisee, such findings by the jury rendered the propriety of the trial court’s summary judgment ruling moot. More specifically, the Superior Court in this case ruled that “[a] trial court’s denial of a fact-dependent pre-trial [motion for summary judgment] is not reviewable when the issue was subsequently resolved at trial.”

It is noted that, in the Dissenting Opinion, Judge King noted that the Superior Court should have decided that it remained capable of reviewing the trial court's denial of the pre-trial Motion for Summary Judgment given the confusion in the caselaw surrounding the issue at the time the trial court ruled on the motion.   

In the end, the Superior Court’s ruling in this case rendered Domino’s Pizza again responsible, at least in part, for the $2.3 million dollar judgment awarded to the Plaintiff motorcyclist who was struck by a Domino’s Pizza delivery driver’s vehicle.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge King can be viewed HERE.

Source: “Pa. Superior Court Rules Pizza Chain Liable For Franchisee Driver’s Crash” by Aleza Furman of the Legal Intelligencer (Feb. 4, 2025).

Superior Court Confirms That Auto Carriers Can Charge a Premium For Stacked Coverage on a Single Vehicle Policy

In the case of Higgins v. Nationwide Affin. Ins. Co., No. 752 EDA 2023 (Pa. Super. Dec. 26, 2024 Stabile, J., Dubow, J. and Sullivan, J.) (Op. by Sullivan, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of the Defendant carrier in a case where a class of Plaintiffs complained that they were charged a premium for stacked coverage on a single vehicle policy.

The Pennsylvania Superior Court found that there was no unjust enrichment or fraud arising from the carrier charging a premium for stacked coverage benefits to a single-vehicle policy for an insured who lived in a household with no other auto policy as there were circumstances that could arise where the single-vehicle policy holder could obtain stacked coverage.

The court cited to other previous Pennsylvania decisions in which it had been held that a single-vehicle policy holder could benefit from stacking where the individual is injured in a vehicle other than his or her own insured vehicle and is an insured under the non-owned vehicle’s policy, which also has uninsured or underinsured motorist coverage, such as an employer’s vehicle. Other additional scenarios were noted in the Opinion under which a single-vehicle policy holder may secure a benefit from stacking of UM/UIM coverages.

Accordingly, the Superior Court affirmed the trial court’s ruling granting summary judgment in favor of the carrier.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).

Source of image:  Photo by Vlad Deep on www.unsplash.com.

Superior Court Reviews Duty of Uninsured Motorist Plaintiff To Report the Accident To the Police

In its recent non-precedential decision in the case of Pummer v. Engelbrecht, No. 252 EDA 2024 (Pa. Super. Dec. 30, 2024 Bowes, J., Nichols, J., and Sullivan, J.) (Op. by Nichols, J.) (Bowes, J. concurring), the court addressed whether an uninsured motorist carrier must show prejudice before its denial of a UM claim due to the failure of the injured party to report the accident to the police.

In this case, the Pennsylvania Superior Court reviewed the rules surrounding the notice requirements following an uninsured motorist accident. 

The court noted that an uninsured motorist vehicle is defined under the Vehicle Code as (1) a motor vehicle for which there is no liability coverage, (2) a motor vehicle for which liability coverage has been denied by the insurance company, or (3) an unidentified motor vehicle (a hit and run motor vehicle) that causes an accident resulting in an injury, provided that the accident is reported to the police or proper governmental authority and the claimant notifies his or her insurance company within thirty (30) days, or as soon as practicable thereafter.

The Pennsylvania Superior Court cited to other cases that confirm that the notice requirement is to prevent fraud in this area of automobile insurance claims.

The Pummer court reviewed the jurisprudence in Pennsylvania as to whether or not a carrier must show prejudice in order to support a denial of uninsured motorist coverage claim based upon the fact that the claimant did not report the accident to the police.

The Superior Court noted that the most recent precedent on this case from the Supreme Court held that whether prejudice is required must be addressed on a case-by-case basis. In this regard, the court noted that a carrier can show prejudice where an insured’s delay in reporting the accident results in an inability on the part of the carrier to thoroughly investigate the claims presented.

The Pummer court noted that there can be a distinction in hit and run cases between those cases where the driver causing the accident is never identified and where the hit and run driver is identified. 

In Pummer, where the hit and run driver turned out to be a driver that was identified, the court concluded that the absence of police report being generated for the accident was not fatal to the Plaintiff’s uninsured motorist claim.

One the factors relied upon by the court in this case was the fact that the injured party was a passenger in an Uber vehicle and, as such, did not have any duty to obtain the identity of the tortfeasor driver. Moreover, the court in this case emphasized that the injured party did make numerous efforts to attempt to gather information on the identity of the tortfeasor driver through requests made to the Uber driver and that driver’s carrier.

As such, the Superior Court found that the trial court erred when it granted the UM carrier’s Motion for Summary Judgment on the basis that the Plaintiff failed to report the subject accident to the police. The appellate court overruled the trial court and denied the motion on the basis that there were issues of fact that precluded summary judgment.

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

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Plaintiff Found To Have Offered Sufficient Expert Testimony In Support of a Delayed Cancer Diagnosis

In the case of Delavern v. Health Services of Clarion, Inc., No. 858 WDA 2024 (Pa. Super. Jan. 6, 2025 Bowes, J., Beck, J., and Bender, P.J.E.) (Op. by Bowes, J.), the court affirmed the entry of judgment against a medical malpractice Defendant in which a jury entered an award of $7.3 million dollars. The case involved a medical malpractice action with allegations of a delayed diagnosis.

According to the Opinion, the Plaintiffs had claimed that a physician’s assistant affiliated with a Defendant incorrectly diagnosed the Plaintiff with a separate condition other than the cancer which was later found relative to the patient. The Plaintiffs alleged that the supervising physician signed off the on the physician’s assistant’s notes without properly reviewing them and also failed to refer the Plaintiff for further screening.

The Plaintiffs claimed that the Defendant’s negligence resulted in a 13-month delay in the Plaintiff receiving a cancer diagnosis, which thereby allegedly allowed the cancer to progress from a curable stage to an incurable one.

On appeal, the Pennsylvania Superior Court rejected a Defendant’s argument that the Plaintiffs’ oncology expert failed to show that the Plaintiff experienced a worse health outcome as a result of a delayed cancer diagnosis.

The trial court and the Superior Court both agreed that the Plaintiff’s expert offered sufficient proof of an increased risk of harm caused by the Defendant’s negligence so as to allow the issuance of causation to go to the jury.

Anyone wishing to review this non-precedential decision of the Superior Court may click this
LINK.


Source – Article: “Superior Court Rejects Pa. Hospital’s Challenge to $7.3M Med Mal Judgment,” by Aleeza Furman of The Legal Intelligencer (Jan. 6, 2025).

Court Rules That Seasoned Federal Middle District Attorneys Can Expect Hourly Rates of $375 Per Hour For Attorney's Fees Requests

In the case of Holmes v. American Homepatient, Inc., No. 4:21-CV-01683 (M.D. Pa. Jan. 28, 2025 Brann, C.J.), the court granted, in part, a Plaintiff’s Motions for Attorney’s Fees Under 42 U.S.C. §1988.

In his decision, Chief Judge Brann reviewed a Plaintiff’s law firm’s request for $2.45 Million Dollars in attorney’s fees and allowed for such fees but cut down the amount requested to just over $250,000.00. In coming to amount of fees awarded, the court reduced the hourly rates pled and the hours logged.

This attorney’s fees request came after the Plaintiff prevailed in a hostile work environment case against her former employer. According to the below cited article on this case, while the Plaintiff had originally secured a verdict that included $20 million dollars in punitive damages and $500,000.00 in compensatory damages, in another, previous decision rendered in this case, the court subsequently reduced that verdict to $1 million dollars.

After reviewing attorney's fees awards in the Federal Middle District Court of Pennsylvania for the past five (5) years, Chief Judge Matthew W. Brann determined in this matter that the district court regularly awarded attorney fee rates ranging from $100.00 to $375.00 depending upon skill, experience, the complexity of the case, and other factors.

Chief Judge Matthew W. Brann
M.D.Pa.

In this case, finding that the Plaintiff’s lead attorneys, who have been practicing for twenty-eight (28) years and twenty-four (24) years respectively, the court awarded those attorneys hourly rates of $375.00 per hour. The lesser involved attorneys with lesser experience were awarded hourly rates of $300.00 per hour and $250.00 per hour. The court also reduced the paralegal hourly rates down to $150.00 per hour and $115.00 per hour, based upon the factors noted.

The court otherwise cut down purported travel time and other hours of work on post-trial motions. Chief Judge Brann noted that many of the post-trial motions were not complex and did not propose novel questions.

The court also agreed with the Defendant’s argument that, overall, the fees requested should be slashed by 5% because of the Plaintiffs’ attorneys’ use of quarter-hour and half-hour increments for billing.

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


Source: Article – “Judge Tanks Prevailing Pittsburgh Attorneys’ $2.45M Fee Request to $250K,” by Riley Brennan, The Legal Intelligencer (Jan. 29, 2025).

Source of top image:  Photo by Towfiqu Barbhuiya on www.pexels.com.

Court Quashes Subpoena For Records As Too Broad in Scope

In the case of The Cincinnati Ins. Co. v. K&K Fire Protection Enterprises, Inc., No. 6060-CV-2021 (C.P. Monroe. Co. Nov. 20, 2024 C. Daniel Higgins, Jr., J.), the court laid out the law pertinent to a Motion to Quash a Subpoena and related Motions for Protective Orders on records sought by subpoenas.

This case arose out of a fire loss. The Plaintiff claimed that inadequate maintenance by the Defendant was the cause of the fire. 

At issue before the court was a subpoena that the Defendant had issued to another entity seeking maintenance records related to the fire protection systems on the premises.

The entity that was subpoenaed asserted that the records in question no longer existed.

The court denied that entity’s Motion to Quash the subpoena and for a Protective Order as to those records. The court noted that it expected an affidavit from that entity to confirm, under oath, that the records requested no longer existed.

The subpoena at issue also sought additional other records that the court found were not relevant to the claims against the Defendant. The court found that the subpoena requests for those other records were too broad in scope.  As such, the court quashed the subpoena for those records after find that the subpoenas submitted to the entity that was requested to produce the records amounted to unreasonable annoyance embarrassment oppression, burden, or expense.

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


Source: The Legal Intelligencer Common Pleas Case Alert. (Jan. 8, 2025).

Superior Court Affirms Trial Court's Finding that No Coverage Existed Related to a COVID-19 Shutdown of a Business

In a non-precedential decision issued by the Pennsylvania Superior Court in the case of The Scranton Club v. Tuscarora Wayne Mut. Group, No. 238 MDA 2021 (Pa. Super. Jan. 27, 2025 Panella, P.J., Olson, J., and Kunselman, J.) (Op. by Kunselman, J.), the Superior Court affirmed the trial court’s dismissal of all claims filed by The Scranton Club and found that no coverage existed to the COVID shut down of the Plaintiff’s business.  

The affirmed trial court Opinion was written by Judge Terrence R. Nealon of the Lackwanna County Court of Common Pleas.  The Tort Talk Blog post on Judge Nealon's Opinion, which contains a link to that decision can be found at this LINK.

In this case, the Superior Court followed the precedent set forth in the recent Pennsylvania Supreme Court decision on similar issues in the case of Ungarean v. CNA & Valley Forge Ins. Co., 323 A.3d 593 (Pa. 2024).

The Superior Court in this case found that the trial court properly ruled that The Scranton Club did not allege any facts to establish that it incurred a “direct physical loss of or damage to property” as required to establish coverage under the policy. The court noted that, given that there was nothing that required restoration of The Scranton Club’s property as a result of the COVID shut down, there is no coverage to be provided under the insurance policy at issue.

The Superior Court noted that it also continued to affirm the trial court’s decision to dismiss the Plaintiff’s claims for civil authority coverage. The court noted that, to assert a claim for the civil authority coverage under the policy at issue, the civil authority action prohibiting access to the premises must have been in response to “damage” caused to another property. Given that there is no evidence of any damage to any neighboring properties which resulted in the Plaintiff’s property being shut down, the Superior Court held that the trial court was correct to deny coverage on this ground as well.

Lastly, the Superior Court noted that it was now affirming the trial court’s dismissal of the claim for bad faith given that coverage was not otherwise available under the policy at issue.


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

Vehicle Damages Photos From Accident Were Not Authenticated and, Therefore, Not Allowed

In the case of Moore v. Nordland, June Term, 2020, No. 01679 (C.P. Phila. Co. Nov. 19, 2024 Turner, J.), the court issued a Rule 1925 Opinion asking the Superior Court to affirm the trial court Order denying the Defendant’s Motion for Post-Trial Relief following a motor vehicle accident.

A primary issue in this case raised by the Plaintiff was whether the court erred in precluding photographs of the vehicle that were involved in the accident.

According to the Opinion, during cross-examination, both Plaintiffs confirmed that they could not recall or remember if the photographs of the vehicles presented to them fairly and accurately depicted the condition of the vehicles following the accident. Accordingly, the court found that, based upon the testimony of the Plaintiff, the Defendant was unable to authenticate the photographs.

During the direct examination of the Defendant, defense counsel again attempted to authenticate the photographs. However, when asked whether the photographs depicted the way to the Plaintiff’s vehicle following the accident, the Defendant testified, “Yes, I mean, there’s nothing different from what I’m seeing in these pictures compared to what I saw there on Cheltenham Avenue,” where the accident happened. The Defendant also testified that the photograph of the Plaintiffs’ vehicle “looks like the exact same vehicle that I was in the accident with that afternoon–evening.”

The trial court judge wrote in her Opinion that the Defendant failed to testify that the photographs fairly and accurately depicted the vehicles following the accident. Rather, the Defendant only testified that the vehicle in the photograph was the same vehicle he was in the accident with. The court noted that the Defendant was unable to confirm that the photographs fairly and accurately depicted the damage, or lack of damage, to the vehicles following the accident.

Based upon the testimony of all of the parties, the court found that the photographs were not properly authenticated and, as such, did not allow the Defendant to admit the photographs into evidence or to publish them to the jury.

In so ruling, the court cited to “Pa. R.E. 901(a), which pertains to authentication of evidence. The court additionally cited to the case of Com. v. Loughnane, 128 A.2d 806, 814 (Pa. 2015), for the proposition that a photograph “may be authenticated by testimony from a person who has sufficient knowledge that the photograph fairly and accurately reflects what the proponent is purporting the photograph to reflect.” 

Here, the court noted that, while photographs of vehicles were certainly relevant, and may be admissible, in this case, the Defendant failed to properly authenticate the photographs. The court additionally noted that, “most importantly,” there was no testimony as to who took the photographs, when the photographs were taken, and whether any repair work had been done to the cars following the accident but before the photos were taken.

Also of note with regards to this decision, the court found that the Plaintiffs’ testimony regarding the accident, their injuries, and the residual impact of the injuries on the injured Plaintiff’s life, along with the Plaintiff’s expert testimony, provided the jury with sufficient testimony and evidence to make a determination as to whether or not the limited tort Plaintiffs’ injuries were “serious” such that the pierced the limited tort threshold.

Here, there is evidence that the Plaintiffs sustained soft tissue injuries to her cervical, thoracic, and lumbar spine regions along with disc protrusions and herniations in her neck and mid-back and low back. The court also noted that the Plaintiffs testified in detail as how the injuries impacted their everyday lives.

Accordingly, the trial court requested the appellate court to affirm the trial court’s denial of the Defendants’ Motion for Post-Trial Relief in this regard.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 16, 2025).

Source of image:  Photo by Victor Moragriega on www.pexels.com.

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