Superior Court Addresses Applicability of Immunity Afforded To Third Party Defendants In Work Injury Cases

In the case of Brown v. Gaydos, No. 1132 WDA 2021 (Pa. Super. Dec. 7, 2023 en banc) (Op. by McCaffery, J.)(Stabile, J., Dissenting), the Pennsylvania Superior Court addressed issues regarding whether or not a Defendant was statutorily immune from liability under Pennsylvania’s Workers’ Compensation Act as the Plaintiff’s employer or co-employee under the facts presented.

According to the Opinion, the Plaintiff sued the Defendant individual for injuries that the Plaintiff sustained while operating a skid loader that the Defendant owned.

At the time of the accident, the Plaintiff was an employee of a company which the Defendant partly owned.

According to the Opinion, the Plaintiff had previously made a successful claim for workers’ compensation from the company that both men worked for at the time of the incident. The Plaintiff then filed a civil lawsuit alleging that the individual Defendant failed to properly maintain the skid loader or train the Plaintiff on how to use the device.

The Defendant filed a Motion for Summary Judgment alleging that he was immune to the personal injury lawsuit under the Workers’ Compensation Act because he was the Plaintiff’s co-employee at the same company.

The court noted that, under the Workers’ Compensation Act, employees who received workers’ compensation benefit generally may not sue their employers or co-employees for work-related injuries. Relative to protections afforded to co-employees, a co-employee may secure immunity for negligent actions that caused a Plaintiff’s injuries while the co-employee and the Plaintiff were “in the same employ.”

In this case, the Plaintiff argued that he was suing the Defendant in his capacity as the owner of the skid loader, not as a co-employee and, therefore, the Defendant was not immune from suit.

The majority of the Superior Court ruled in this matter that there were genuine issues of material facts regarding the ownership and the use of the skid loader. The majority ruled that the Plaintiff’s claim with respect to the co-employee immunity issue hinged on whether or not the Plaintiff had been working in the course of his duties as an employee of the employer company at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.


Source: Article - “Workers’ Comp Immunity May Not Shield Construction Company Owner From Job Site Injury Suit, Appeals Court Rules” by Aleza Furman of Pennsylvania Law Weekly (Dec. 8, 2023).

Source of image:  Photo by Silvia Brazzoduro on www.unsplash.com.

Summary Judgment Granted for Defendant Entity Relative to Negligent Acts by Former Employee of the Defendant

In the case of Doe v. Hand & Stone Franchise Corp., Aug. Term 2019, No. 04964 (C.P. Phila. Co. Sept. 7, 2022 Foglietta, J.), the trial court issued a Rule 1925 Opinion recommending that the Superior Court affirm its Order granting the Defendant’s Motion for Summary Judgment in a case involving alleged sexual assaults by an employee of the franchise.

According to the Opinion, the allegation was that the employee allegedly assaulted three (3) Jane Doe Plaintiffs on separate occasions at his own personal massage business. The court noted that there was no evidence that the alleged assaults occurred at any Hand & Stone franchise. It was also noted that the alleged assailant was not employed by Hand & Stone when the assaults allegedly occurred.

The Defendant moved for summary judgment after finding that Defendants’ general duty of care could not be extended to find that the Defendant's alleged failure to report that a former employee was an alleged sexual predator to the authorities because there was no special relationship between the employer and the Plaintiffs, who were allegedly the predator’s future alleged victims.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 3, 2023).

Judge Nealon of Lackawanna County Notes That Direct and Vicarious Theories May Be Pursued Against Employer For Negligence by Employee

In the motor vehicle accident case of Shaver v. Levelle, No. 21-CV-2465 (C.P. Lacka. Co. May 26, 2022 Nealon, J.), the defendant-motorist’s employer filed preliminary objections seeking to dismiss plaintiff’s claims for negligent entrustment, hiring, and training as legally insufficient since the motorist admitted that he was an employee of the employer at the time of the accident. 

Judge Nealon reviewed the law on this issue in detail and noted that several federal district courts and at least one common pleas court have, in the past, dismissed claims against employers for negligent hiring, training, and supervision in cases of admitted agency, and have done so on the basis that no Pennsylvania appellate court has ever held that a plaintiff may simultaneously pursue claims against an employer for vicarious liability and direct liability in cases where an employer-employee relationship is admitted. 

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon found that those previous court decisions that have gone the other way on this issue were negated by the Pennsylvania Supreme Court's decision in Scampone v. Highland Park Care Center, LLC, 57 A.3d 582 (Pa. 2012), the Pennsylvania Supreme Court rejected the argument that a plaintiff is barred from pursuing a direct negligence claim against a corporate employer if it acknowledges that the employee was acting within the course of employment at the time of the tort.  That Court concluded that “direct and vicarious theories of liability are grounded in distinct policies and serve complementary purposes in the law of torts,” and that they may be “asserted either concomitantly or alternately” even in cases of undisputed agency. 

Judge Nealon found that, since the federal and state trial court rulings cited by the defendant-employer “are contrary to the Supreme Court reasoning in Scampone,” the Defendant's preliminary objection was overruled.

Anyone wishing to review this decision may click this LINK.

Motion To Dismiss Punitive Damages Claim Granted Where Evidence of Recklessness Was Lacking in "Run-of-the-Mill Intersectional Collision" Case

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 25, 2022 Nealon, J.), the court addressed a Motion for Partial Summary Judgment filed by a Defendant in a motor vehicle accident case seeking to dismiss punitive damages asserted against the Defendant on the ground that the evidence presented by the Plaintiff was insufficient as a matter of law to sustain the Plaintiff’s claims of recklessness.

The employer Defendant also sought to dismiss the Plaintiffs’ direct liability claim for negligent hiring, training, and supervision of the employee under an argument that the employer’s admission that the employee was acting within the scope of her employment at the time of the accident.

Relative to the punitive damages claims, after noting that there was no evidence in the record that the Defendant driver was speeding, driving while impaired or distracted by cell phone use, or otherwise engaged in unreasonable conduct manifesting a conscious disregard of a known or obvious risk posing a high probability of harm to others, the court granted the Defendant's Motion to Dismiss the claim for punitive damages.

The court additionally noted that, based upon the facts of this “run-of-the-mill intersectional collision,” the Plaintiffs’ expert was not permitted to express a legal opinion that the Defendant driver was chargeable with “reckless indifference” as defined by Pennsylvania law, particularly since the record did not contain an adequate basis in fact for that opinion.

The court also rejected the Plaintiffs’ attempt to assert that the Defendant employer’s post-accident investigation of the collision did not cause or contribute to the accident or the harm that the Plaintiff had suffered and, as such, could not serve as a basis for the Plaintiff’s punitive damages claims. Judge Nealon otherwise stated that there was no other evidence in the record that the Defendant employer acted in a willful, wanton, or reckless manner.

As such, the Motion to Dismiss the Punitive Damages Claim was granted.

On the separate claim of direct employer liability for the alleged negligence in selecting, training, and supervising employees and their activities, the court allowed this claim to proceed after finding that Pennsylvania case law provides that a Plaintiff may pursue such a claim against an employer on theories of direct and vicarious liability, either at the same time or alternately, and Plaintiffs need not surround a direct liability claim against the employer if the employer acknowledges an agency relationship with the employee. As such, the employer’s Motion for Partial Summary Judgment with regards to the independent claim for negligent hiring, training, and supervision was denied.

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

Employer Who Furnishes Alcohol At An Employee Event Considered to be a Social Host -- No Liability for Later DUI Accident By Employee

In the case of Klar v. Dairy Farmers of America, Inc., No. 1280 WDA 2020 (Dec. 17, 20221 Pa. Super. Olson, J., Nichols, J., and Musmanno, J.) (Op. by Olson, J.), the Pennsylvania Superior Court affirmed the entry of judgment on the pleadings in favor of the Defendant.

For a summary of the trial court's opinion that was affirmed (and a Link to that decision), please see this Tort Talk Blog post HERE.

The trial court had entered judgment against the Plaintiff and in favor of an employer in a case in which the trial court had ruled that an employer who collects contributions for a social event was still considered to be a social host with respect to any liability claims under the Dram Shop Act. Based upon this ruling, the trial court dismissed the Plaintiff’s negligence claims against the employer.

According to the Superior Court's Opinion, the Pennsylvania was injured in a motor vehicle accident when the vehicle operated by the Defendant driver struck the Plaintiff’s motorcycle.

The Defendant driver was an employee of Dairy Farmers of America. That employer had sponsored a golf outing and encouraged its employees to attend. The employees made a monetary contribution to offset the cost of the greens fees, food, and alcohol. After collecting the contributions from the employees, the employer paid for the event in its entirety.

The Plaintiff alleged that, at the event, the Defendant driver consumed an amount of alcohol that raised his blood alcohol level beyond the legal limit. The Defendant driver then proceeded to drive and was involved in the accident with the Plaintiff.

The Plaintiff sued the Defendant driver as well as his employer under negligence claims. The employer filed a Motion for Judgment on the Pleadings arguing that it was not liable under the Dram Shop Act because it was a social host.

The Pennsylvania Superior Court ruled that an employer who furnished alcohol at a sponsored employee social event was not a licensee or other party subject to per se Dram shop liability but was instead a social host who could not be held proximately liable for an employee causing an alleged drunk driving accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Source of image:  Photo by Steven Shircliff on unsplash.com.

Judge Nealon of Lackawanna County Addresses Admissibility of Liability Expert in Trucking Accident Case

In the case of Hand v. DiMauro, No. 15-CV-4470 (C.P. Lacka. Co. Dec. 22, 2020 Nealon, J.), the court addressed several notable issues in a rear-end collision case involving a tractor trailer. 

According to the Opinion, the Defendant driver and his employer filed motions seeking to preclude the trucking safety expert’s opinions pursuant to Pa. R.E. 702(c) and Pa. R.C.P. 207.1 on the grounds that the expert’s methodology was allegedly not generally accepted in the motor carrier industry.  In the alternative, the Defendants sought to depose the expert under Pa. R.C.P. 4003.5(a)(2) in support of their Motion to Preclude.

The court ruled that the evidence submitted by the parties did not establish that the Plaintiff’s expert relied upon any novel scientific evidence or a methodology that has failed to gain general acceptance in the commercial transportation industry. 

Rather, the court found that the Plaintiff’s expert relied upon studies conducted by transportation safety organizations along with policies adopted by large commercial transportation companies and insurance companies. The expert recognized and applied a trucking industry standard requiring the removal of a commercial driver from service based upon certain a number of prior preventable crashes and traffic violations within a certain period of time.

The court therefore found the defense's Motion to Preclude the Plaintiff’s Expert Opinion to be without merit. As such, the court saw no need for an evidentiary hearing on the validity of the expert opinion or any reason to allow for a deposition of the expert.

The Defendants had also filed a Motion for Partial Summary Judgment that was addressed in this Opinion as well. 

In that motion, the Defendants sought the dismissal of any direct negligence claims against the employer for negligent supervision or retention of its driver, and all recklessness and punitive damages claims against the driver and his employer.

Judge Nealon granted the Motion for Partial Summary Judgment with regards to the Plaintiff’s claims of recklessness and punitive damages against the driver as no evidence of any reckless conduct by the driver was produced in the record. 

However, the court noted that the record did contain sufficient evidence, including opinions of an industry expert, to allow the claims of direct negligence, recklessness, and punitive damages to proceed against the Defendant employer.

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

Source of image:  Photo by Matthew T. Rader from Pexels.com

Is Uber An Employer of Uber Drivers?

In the case of Lowman v. Unemployment Comp Bd. of Review, 41 EAP 2018 (Pa. July 24, 2020)(Op. by Donohue, J.) (Saylor, C.J. and Mundy, J., Dissenting), the Pennsylvania Supreme Court held, as a matter of first impression, that Uber “controlled and directed the performance of Lowman’s services as a driver-for-hire” and that Mr. Lowman was not engaged in an independently established business.

Essentially, the Court found that the driver's work for Uber was completed within employment with Uber and not as an independent contractor. Uber's argument that the driver was acting in self-employment was rejected.

Some commentators note that this decision may have an impact in personal injury litigation in terms of whether a ride-sharing company can be sued in a motor vehicle accident case as an employer of the defendant driver.

Anyone wishing to review the majority Opinon of the Pennsylvania Supreme Court may click this LINK.

The dissenting Opinion can be viewed HERE.

I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.

Employer Liability for Data Breach Reviewed by Pennsylvania Supreme Court

In the case of Dittman v. UPMC, No. 43 WAP 2017 (Pa. Nov. 21, 2018), the Pennsylvania Supreme Court addressed the duty of an employer to safeguard sensitive personal information of employees. 

The court ruled that an employer has a legal duty to use reasonable care to safeguard an employee’s sensitive personal information stored by the employer on internet/accessible computer systems.  

The court additionally noted that recovery in negligence for these types of purely pecuniary damages raised in this type of case are permitted under the economic loss plan since the recovery asserted is based upon an application of an existing duty to a novel factual scenario as opposed to imposing a new affirmative duty requiring consideration of other factors under Pennsylvania law.  

Anyone wishing to review a copy of the Majority Opinion written by Justice Baer may click this LINK.  Chief Justice Saylor's Concurring and Dissenting Opinion can be viewed HERE.

Source:  “Court Summaries by Timothy L. Clawges,” Pennsylvania Bar News (Dec. 17, 2018)

Liability of Employer for Negligent Supervision of Employee Who Engaged in Criminal Conduct Off Employer Premises

In his recent February 19, 2016 decision in the case of Doe v. Cruciani, No. 2012-CV-5920 (C.P. Lacka.  Co. Feb. 19, 2016 Nealon, J.), Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by a Defendant employer to a Plaintiff’s tort action seeking compensatory and punitive damages against a plumbing supply business for negligent supervision of its employee who allegedly lured the Plaintiff’s minor daughter into his company-leased vehicle and allegedly entrapped the minor in that vehicle and allegedly had indecent contact with the minor.  

The employer filed a Motion for Summary Judgment asserting that it could not be vicariously liable under Pennsylvania law for its employee’s intentional and criminal acts that were outside the scope and course of the employee’s employment.  

Judge Nealon noted that the law required that, in order to succeed with the negligent supervision claim against an employer for injuries caused by the intentional or criminal conduct of an employee committed off of the employer’s premises and outside the employee’s scope of employment, a Plaintiff must demonstrate that (1) the employee was using movable property of the employer at the time of the conduct and, (2) the employer knew or in the exercise of ordinary care had reason to know, of the necessity and opportunity to exercise control over that employee.  

Judge Nealon denied the employer Defendant’s Motion for Summary Judgment with respect to the compensatory damages claims finding that evidence in the record confirm that the employee used the employer’s vehicle during the alleged assault.   Judge Nealon also noted that the record established that the employer knew that the employee, who previously owned the plumbing supply business, had been previously convicted ten (10) years earlier of indecent assault of a minor girl in his company vehicle and had been required to register as a sexual offender for ten (10) years.  

Accordingly, Judge Nealon ruled that, although the employer contended that they did not know if the need to move closely regulate or restrict the employee’s use of the company vehicle while not on the employee’s premises, issues of fact precluded the entry of summary judgment on the compensatory damages claim where reasonably prudent employer should have known of the necessity for exercises such control due to the potential for recidivism by a sexual offender.  

Judge Nealon also noted that, while there was ample evidence to sustain the Plaintiff’s punitive damages claim against the individual employee, summary judgment was granted in favor of the employer on the punitive damages claim as the record did not contain sufficient evidence that the employer had engaged in intentional, willful, wanton, or reckless conduct based upon its subjective appreciation and conscious disregard of the risk of arm to others.  Accordingly, the employer’s Motion for Summary Judgment on the punitive damages claim was granted.  

 

Anyone desiring a copy of this Opinion by Judgment Nealon may contact me at dancummins@comcast.net.