Summary Judgment Granted in Trip and Fall Case Due To Failure of Evidence as to Cause of Fall

In the case of Koscinski v. Ahrat’s Market, No. 5977-CV-2017 (C.P. Monroe Co. Dec. 20, 2019 Harlacher Sibum, J.), the court granted summary judgment in favor of the Defendant operator of a supermarket and the landlord who leased the property in a case where the Plaintiff failed to produce any evidence as to the cause of her slip and fall.

According to the Opinion, the Plaintiff allegedly slipped and fell while walking into the market. She alleged that she fell due to a defective condition which she simply described as "the sidewalk at the ramp." 

The market was part of a plaza of stores. 

The court noted that, where a landlord leases to multiple tenants but retains control and possession of the common walkways, it is the landlord, and not the tenants, or owes a duty to the business invitees to keep the common areas safe, unless a contrary provision is noted in a lease. 

The court noted that, in this case, the incident occurred in a common area of the property. 

Given that the market had no duty to maintain a common area under the lease or under Pennsylvania landlord/tenant law, summary judgment was entered in favor of that party. The court additionally noted that the Plaintiff failed to provide enough evidence to prove the cause of her injury. 

Given that the Plaintiff did not produce enough evidence to show the cause of her injuries, the landlord was dismissed as well. 

Judge Harlacher Sibum noted that the Plaintiff had repeatedly stated in her deposition that she did not know what caused her or her mother-in-law to fall and that she did not remember hitting anything with her foot or tripping on anything. The court also noted that the Plaintiff’s mother-in-law was also unable to provide any information regarding the cause of incident.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 11, 2020).

Summary Judgment Granted in Snow Tubing Case Based on No-Duty Rule

In the case of Hamber v. CBH2O, LP t/a Camelback Mountain Resort, No. 8778-CV-2017 (C.P. Monroe Co. Jan. 9, 2020 Harlacher Sibum, J.), the court granted the Defendant’s Motion for Summary Judgment and dismissed the Complaint with prejudiced in a case involving allegations of injuries allegedly sustained by the Plaintiff while snowtubing at Camelback Mountain Resort.

The Plaintiff alleged that, while nearing the end of a snow tube run, his tube came into contact with a deceleration mat and became airborne, causing the Plaintiff to be ejected from the snow tube and to land on his neck in an adjacent snow tubing lane. The Plaintiff alleges that the accident was caused by the improper placement of the deceleration mat.

The court ruled that the use of a deceleration mat was directly related and inherent to the sport of snow tubing as it would be a common, frequent and expected part of the activity to encounter some decelerating agent at the end of the run.

Given that contact with the deceleration mat was an inherent part of the snow tubing activity, and given that the risk of being thrown from the snow tube as an inherent part of snow tubing, the court held that the Defendant had no duty to protect the Plaintiff under Pennsylvania law from contact with the deceleration mat or the general risk of being thrown from the tube.

As such, the court found that the Plaintiff’s negligent claim was barred under the “no-duty” doctrine.

Judge Harlacher Sibum more specifically stated that, under Pennsylvania law, “the assumption of risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In this regard, the court quoted the case of Chepkevich v. Hidden Valley Resort, LP., 2 A.3d 1174, 1186 (Pa. 2010).

The court further stated, again citing Chepkevich, that “where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant… and there can be no recovery based on allegations of negligence.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 5, 2020).

Dog Bite Claims Against Landlord Dismissed in Monroe County

In the case of Gallo v. Precise Moments Academy, No. 904-Civil-2018 (C.P. Monroe Co. Jan. 4, 2019 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas ruled that a landlord was not liable under state dog law or agency principles where a tenant's dog bit a child at a leased daycare facility.  

The court found that the Plaintiff failed to allege specific facts to support any claims of negligence or punitive damages against the landlord.  

According to the Opinion, the Plaintiffs were parents of a minor child who attended a daycare facility.   A dog owned by one of the tenants who ran the facility bit the minor child while she was at the daycare resulting injuries to the child’s face. 

In addition to suing the tenants, the Plaintiffs sued the landlord who owned the property on which the daycare facility was located.   The Plaintiffs alleged that the landlord negligently and recklessly maintained dangerous dogs on the daycare premises despite the substantial risk of injury to children.  The case came before the court by way of the landlord’s Preliminary Objections.  

Initially, the landlord asserted that the dog law in Pennsylvania did not apply given that the landlord was not an “owner” of the dog as required for the application of that statute which required dog owners to confine, secure or otherwise control their dogs.  

The court agreed with the landowner Defendant in this regard and noted that prior case law had held that a landlord out-of-possession, without more, was not considered the owner of a tenant’s dog under that dog law.   The court stated that the Plaintiffs presented no other facts in support of its legal conclusion assertions in the Complaint that the landlord housed and kept the dog.  

The court also agreed with the landlord Defendant’s argument that the Plaintiffs’ allegations of agency should be stricken because there were no facts to support allegations of vicarious liability.   The court noted that the Complaint did not identify any agency relationship between the landlord and its tenants.  

Judge Harlacher Sibum additionally found that the catch-all phrasing of negligence in the Plaintiff’s Complaint against the landlords was insufficient under Pennsylvania law.  

The court also agreed with the landlord Defendants’ contention that the Plaintiffs’ claims for punitive damages should be stricken for insufficient specificity where the Plaintiff failed to allege that the landlord acted with any bad motive.   The court reiterated that the landlord did not have any control over the daycare premises or any authority to regulate the tenant's pets.   

As such, Judge Harlacher Sibum concluded that the landlord’s conduct was not reckless or wanton as a matter of law.  Accordingly, the Preliminary Objections filed by the out-of-possession landlord Defendant were sustained and the claims against it dismissed.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 5, 2019).

Summary Judgment Granted to Tenant Store Where Plaintiff Fell on Common Sidewalk

In the case Monti v. Pet Supplies Plus, LLC, No. 8681-CV-2015 (C.P. Monroe Co. Dec. 28, 2018 Harlacher Sibum, J.), the court granted summary judgment in favor of a retail store tenant in a slip and fall action where the Plaintiff fell in an area of a retail establishment comprised of common areas.

At the time of the Plaintiff's trip and fall, the Plaintiff was exiting the store when the wheel of her walker allegedly became lodged in a dip in the sidewalk.  The court found under the facts presented that sole liability for the exterior sidewalks on the leased property rested with the landlord.   

In so ruling, Judge Harlacher Sibum relied upon the Pennsylvania Supreme Court decision in Leary v. Lawrence Sales Corp., in which that court laid down the principle of law that “[w]here the owner of real estate leases various parties thereof to several tenants, but retains possession and control of the common passage-ways aisles which are to be used by business invitees of the various tenants, the obligation of keeping the common aisles safe for the business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the lease or leases.” 

In this Monti case before Judge Harlacher Sibum, the court noted that under the lease, the tenant and its customers were granted the privilege to use the common areas.  However, the lease provided that the landlord retained certain duties including maintaining those common areas of the leased property.  

Based upon this unambiguous language in the lease and the lack of any applicable lease provision to the contrary, and the application of the precedent in the Leary case, the court ruled that the landlord had sole liability for the exterior sidewalks on the leased property.  As such, the tenant was granted summary judgment on the premises liability issues presented.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 5, 2019). 

Pennsylvania Trial Court Dismisses Suit For Auto Accident That Occurred in New York

In her recent decision in the case of Ford v. Leal, No. 3471-CV-2016 (C.P. Monroe Co. Mar. 15, 2018 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas sustained the Defendants’ Preliminary Objections and dismissed a Plaintiff’s Complaint in an automobile accident case due to lack of In Personam jurisdiction over the Defendants.

According to the Opinion, the Plaintiffs were involved in a motor vehicle accident on the New York Thruway in Rockland County, New York.  

The Plaintiff filed suit in Monroe County, Pennsylvania and the Defendants filed Preliminary Objections under Pa.R.C.P. 1028(a)(1) asserting lack of jurisdiction of the Defendants.  

More specifically, the Defendants asserted that the court did not have any personal jurisdiction over the Defendants.   The Defendants asserted that they did not reside or own real property in Pennsylvania, that the subject accident did not occur in Pennsylvania, that the Defendants were not served in Pennsylvania, and that the courts of Pennsylvania lack general jurisdiction and specific personal jurisdiction under the Pennsylvania Long Arm Statute over the Defendants.  

Judge Jennifer Harlacher-Sibum
Monroe County

Judge Harlacher Sibum noted that, according to well-established Pennsylvania case law, an alleged out-of-state automobile accident alone is not enough for a Pennsylvania court to establish personal jurisdiction over a Defendant under the Long Arm Statute, even when the Plaintiff alleges a lasting injury that continues while the Plaintiff resides in Pennsylvania.   See Op. 4 citing with “See” signal DeFay v. McMeekin, 508 A.2d 324 (Pa. Super. 1986) [other citations omitted].  

On the basis of this law, the court found that the Monroe County Court of Common Pleas did not specific personal jurisdiction over the Defendants under Pennsylvania’s Long Arm Statute and, as such, the Complaint was dismissed.  


Anyone wishing to review this decision online may click this LINK.

Summary Judgment Denied in Monroe County Premises Liability Case

In the case of Brown v. Stroud Mall, No. 7599 CIVIL 2013 (C.P. Monroe Co. Aug. 23, 2016 Sibum, J.), the Plaintiff alleged injuries as a result of her foot becoming entangled in what appeared to be a wire strung across a hall of a local mall.   The Plaintiff filed a Complaint for negligence.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff had not established a duty owed to the Plaintiff and/or that the Plaintiff had failed to show actual constructive notice on the wire on the part of the Defendants.  

The Defendants argued that the presence of security staff patrolling the area within an hour of the Plaintiff’s encounter with the wire supported their argument that the wire did not exist for such a period of time that it could have been corrected through the exercise of reasonable care.  

The court denied the Motion for Summary Judgment indicating that the question of whether a landowner had constructive notice of a dangerous condition was an issue to be left to the jury to decide where reasonable minds could differ on the issue.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (May 23, 2017).  

Judge Sibum of Monroe County Grants Motion for Judgment on the Pleadings Due to Lack of Timely Service

In the case of Luisi v. Siletti, No. 3862 of 2015 (C.P. Monroe Co. March 10, 2017 Sibum, J.), the court granted a Motion for Judgment on the Pleadings under an argument that the statute of limitations barred the Plaintiff negligence case of action due to a lack of timely service.   

In this case, the court found that a delay of at least eight (8) months to effectuate service did not demonstrate good faith on the part of the Plaintiff to complete service.  

The court also rejected the Plaintiff’s argument that actual notice was provided to the Defendant because both the Defendant and the Defendant’s insurance company had received a copy of the Complaint in the mail.   The Plaintiff also asserted that no prejudice was suffered by the Defendant in the delay.  

According to the Opinion, the Defendant and his carrier both denied receiving a copy of the Complaint in the mail.   Judge Sibum indicated that, even if such mailings did occur, they were not a valid substitute for actual service under the rules in any event.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 2, 2017). 

Trespasser vs. Licensee Issue in Trip and Fall Case Left for Jury to Decide

In the premises liability slip and fall case of Heuring v. Ringmaker, PICS Case No. 16-0297 (C.P. Monroe Co. Nov. 16, 2015 Harlacher Sibum, J.), the court addressed duties owed to a trespasser and/or a licensee in a trip and fall case.  

According to the Opinion, this matter arose out a slip and fall and the Defendant asserted that the Plaintiff was a trespasser on the premises at the time of the incident.   According to the Opinion, the lease allowed the landlord to elect to treat a tenant as a trespasser, tenant by sufferance or as a holdover tenant in the event that the tenant remains in possession after a lease expiration.  

When a Plaintiff failed to vacate the premises at the end of a lease, the landlord began proceedings to have the Plaintiff vacate the premises.   During the course of these proceedings, the Plaintiff slipped and fell while on the premises.  

An issue arose over whether or not the landlord consented for the Plaintiff to remain in possession of the premises during the course of the eviction proceedings.   As such, the issue is whether or not the Plaintiff was a trespasser or a licensee at the time of the incident.  



Judge Jennifer Harlacher Sibum
Monroe County

Judge Harlacher Sibum ruled that the question presented was a jury issue and required a factual determination as to whether or not consent was given for the Plaintiff to remain on the premises up to the time of the slip and fall incident.  
The court also found in favor of the Plaintiff on the Defendant’s claims that the Plaintiff.t failed to allege willful and wanton conduct in the Complaint.  The court found that such allegations were within the allegations of negligence and recklessness pled by the Plaintiff.

Overall, the court denied the Defendant landlord’s Motion for Summary Judgment on the issues presented.  

Anyone wishing to review a copy of this decision may email me at dancummins@comcast.net.
   

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2016).

Request for Spoliation Sanction Due To Cell Phone Carrier's Destruction of Records Denied

In her recent decision in the case of Barkely v. Douglas, PICS Case No. 15-0390 (C.P. Monroe Jan. 16, 2015 Sibum, J.), Judge Jennifer Harlacher Sibum denied a Plaintiff's request for a spoliation sanction in a motor vehicle accident case relative to the Defendant's cell phone carrier having deleted certain cell phone records as part of its ordinary retention policy.

In denying the Plaintiff's request for a spoliation sanction, the court applied the factors in the case of Schroeder v. PennDOT and Schmid v.  Milwaukee Elec. Tool Corp.:  (1) the degree of fault of the party who destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether a lesser sanction was appropriate.

Here the court found that the Defendant was never in possession of the cell phone records; rather, the cell phone carrier was and the cell phone carrier destroyed the records in the ordinary course of its business.

Judge Sibum also rejected the Plaintiff's contention that the defendant had intentionally withheld information that delayed the Plaintiff's ability to secure the cell phone records.

Although it was indicated that the Defendant initially provided the incorrect name of the cell phone provider in his Answers to Interrogatories, the court noted that the Defendant's cell phone number was noted in the police report which was generated a short time after the accident.  As such, the court found that the Plaintiff had basic information to utilize in an effort to secure the cell phone records prior to their destruction.



I do not have a copy of this decision but one can be secured from the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and paying a small fee.

Judge Sibum of Monroe County Grants Summary Judgment Under Hills and Ridges Doctrine

In her recent decision in the case of Schecker v. Village Supermarkets, Inc., PICS Case No. 13-0491 (C.P. Monroe Feb. 13, 2013 Harlacher Sibum, J.), Monroe County Judge Jennifer Harlacher Sibum granted summary judgment to a defendant possessor of land in a snow and/or ice slip and fall case.

According to the opinion, the Plaintiff was dropped off at a supermarket by her husband.  She admittedly noticed that the cement walkway to the front of the store appeared wet but was not covered by snow or ice.  At the time she entered the store there was no snow otherwise in the parking lot and no precipitation was falling.

The Plaintiff exited the store about 15 minutes later pushing a shopping cart. As she walked across the cement surface outside the store she slipped and fell in an area just beyond the store's overhang.

In her Complaint, the Plaintiff alleged that she was caused to fall by a slippery walkway and due to the fact that black ice was allegedly present where she fell.  Discovery confirmed, however, that there were no areas of ice or snow present and that the area merely appeared wet.

In her Opinion, Judge Sibum reviewed the parameters of the Hills and Ridges Doctrine and the issue of actual and/or constructive notice on the part of the Defendants.

Based upon the record before it, the court found that the Plaintiff did not present any evidence that the ice on which she allegedly slipped had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger as is all required under the Hills and Ridges Doctrine.

The Court also ruled that notice to the Defendant landowners could not be inferred from an employees' mere presence near the dangerous condition at the time of the incident.  Accordingly, the Defendant's motion for summary judgment was granted.


Anyone desiring a copy of this case may call the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and give the above PICS Case No.  A small fee will be charged by the Instant Case Service.

Source:  "Case Digests." Pennsylvania Law Weekly (March 12, 2013).

Summary Judgment Granted in Monroe County Slip and Fall Case

In her recent Decision in Paybon v. Miggy’s Corp Five, PICS Case No. 12-1228 (C.P. Monroe Co., April 3, 2012, Harlacher Sibum, J.),  Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas granted summary judgment in favor of a Defendant possessor of land in a slip and fall case involving a puddle of water near an ice machine in a grocery store.  

According to a report on this case, Plaintiff entered the Defendant’s grocery store to shop.   After about 15 minutes in the store, the Plaintiff slipped and fell on water that was located approximately 12 feet from an ice machine.  

Apparently, during discovery, the Plaintiff admitted that she did not know what caused the water to be on the floor or how long it was there before she fell.   It was also reported that a store employee did not seem to know how the water became to be on the floor.  

Although the Plaintiff alleged that the water could have come from the nearby ice machine, the court observed that this was mere speculation.   The Court also reiterated that the Plaintiff did not know what caused the water to come on the floor and there was no evidence for a jury to determine the cause of the water on the floor.  

It was also noted that the Plaintiff did not establish any actual or constructive notice on the part of the Defendant that there was a puddle on the floor.  Judge Harlacher Sibum also stated that notice could not be inferred by the mere fact that an employee was allegedly in close proximity to the allegedly hazardous condition at the time of the incident.  

Accordingly, given the absence of any evidence that the Defendant caused the water to come on the floor or had notice of its presence, there is no issue to be submitted to a jury and summary judgment was granted.  

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service by calling 1-800-275-7427 and paying a small fee.  

Source:  "Case Digests" Pennsylvania Law Weekly (2012).


To view summaries of other Premises Liability cases here on Tort Talk, click this LINK.

Summary Judgment Granted in Monroe County Trip and Fall Case

In the case of Fuller v. YMCA of Monroe County, No. 2239-Civil-2011 (C.P. Monroe March 28, 2012 Harlacher-Sibum, J.), Judge Jennifer Harlacher-Sibum of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Borough of Stroudsburg, in a slip and fall accident case.

By way of background, the Plaintiff alleged that the Defendant, Borough of Stroudsburg, was negligent in planting a tree in front of a Dunkin Donuts store that, during its growth, caused the section of the sidewalk to increase in height, which increase in the height of the sidewalk caused the Plaintiff to fall.

In her Opinion, Judge Harlacher Sibum noted that the Dunkin Donuts store conceded that it was the party in possession and control of the subject property at the time of the incident.

The Court also reviewed the Plaintiff’s deposition testimony and written discovery responses in which the Plaintiff essentially admitted that she was unaware as to how long the allegedly dangerous condition existed. In her responses, the Plaintiff also admitted that the “condition is open and obvious” in an apparent effort to show that the Defendant should have been aware of the condition of the sidewalk.

In its Motion for Summary Judgment, the Defendant, Borough of Stroudsburg, argued that the Plaintiff failed to establish that that Defendant was in possession and control of the open and obvious condition of the sidewalk.

Recognizing that the mere fact that a fall occurred does not give rise to an inference of negligence, the Court stated that the Plaintiff had the burden of proving negligence on the part of each Defendant named in the suit.

In this matter, the Court accepted the Defendant, Borough of Stroudsburg’s argument that it was not in possession or control of the property where the injury occurred and that the repair and maintenance of the sidewalk, including the maintenance of a tree planted by the Defendant were the responsibility of another entity based upon a borough ordinance. As noted, the Opinion further confirmed that the Co-Defendant owner of the Dunkin Donuts store conceded that they were in control of the property at the time of the incident.

The Court ruled that, since the Borough ordinance specifically shifted the duties of the maintenance of the sidewalk to the property owner, the Defendant, Borough of Stroudsburg, was not under any obligation to the Plaintiff. Accordingly, since there was no duty owed by the Defendant to the Plaintiff, the Court granted summary judgment in favor of the Defendant, Borough of Stroudsburg. The Court further indicated that, even though the borough may have planted the tree in the vicinity of the sidewalk, under the applicable local ordinance it was still the duty of the property owner to maintain the sidewalk.

Anyone desiring a copy of this decision in the case of Fuller v. YMCA of Monroe County may click this link.

I send thanks to attorney Stephen H. Franko, IV of the Scranton office of Cipriani & Werner for bringing this case to my attention.

Summary Judgment Granted in Monroe County Slip and Fall Case

Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas recently issued a summary judgment in favor of a Defendant in the slip and fall case of Skulnik v. Tyerman, No. 836-Civil-2011 (C.P. Monroe Co. Feb. 13, 2012 Harlacher Sibum, J.).

According to the Opinion, the Plaintiff was allegedly injured as a result of a slip and fall accident that occurred on the Defendant’s driveway leading to a home. The Plaintiff claimed that the Defendants were negligent in failing to provide a safe driveway or warn of a dangerous or defective condition for business invitees.

The Defendants filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that dangerous levels of snow and ice accumulated so as to render the Defendant’s liable under the hills and ridges doctrine. The Defendants also asserted that he Plaintiff failed to connect the driveway conditions as a cause of his fall.

In her Opinion, Judge Harlacher Sibum confirmed that the Plaintiff was indeed a business invitee of the Defendants. According to the Opinion, accompanied by a professional inspector, visited the property in order to inspect its physical condition. The property at issue had been listed for sale by the Defendants who had invited individuals to come and view the property.

However, the Court found that, based upon the record presented, the Plaintiff had failed to offer evidence that the Defendants knew or should have known of any alleged dangerous condition on the premises.

According to the Opinion, the Defendant had testified that she saw no snow on the driveway on the morning of the incident. She also noted that her husband had still salted the driveway, a task he performed every morning prior to leaving to work. The record also showed that the Defendants were not even made aware of this alleged slip and fall incident until receiving a call from a claims adjuster several days after the fact.

Reviewing the Plaintiff’s testimony, the Plaintiff had asserted that there was a light snow in the driveway when he arrived at the property. The Plaintiff admitted that he did not recall having any trouble walking to the garage and did not feel any slippage of his feet. The Plaintiff also stated that he had no recollection of seeing anything on the driveway that caused him any concern. The Plaintiff additionally confirmed in his deposition testimony that he had not informed the Defendants of any dangerous conditions of the driveway prior to the time he fell.

The Court also found that the Plaintiff failed to meet the requirements of the hills and ridges doctrine. The hills and ridges doctrine provides that, given the impossible burden of requiring people to always keep their walkways free of ice and snow under the existing climatic conditions, provides that an owner or occupier of land is not liable for falls occurring on the property where generally slippery conditions exist unless the owner or possessor of land has allowed the ice and snow to unreasonably accumulate in ridges or elevations.

The Court found that the Plaintiff had failed to show any evidence of snow and ice that had accumulated in any ridges or elevations of such a nature that his travel was unreasonably obstructed or dangerous. The Plaintiff also failed to show that the possessors of land had any notice of any such alleged condition. Rather, the Plaintiff had only testified that there was a “light” snow on the driveway no more than one half in accumulations. The Court reiterated that the Plaintiff admitted that she did not recall having any problems walking up the driveway at his arrival to the premises.

In the absence of any evidence to support the same, the Court rejected the Plaintiff’s claim that he felt a “ridge” of ice under the light snow after he fell when he was pushing himself off of the ground. The Court noted that, in any event, the Plaintiff had no personal knowledge as to the length of time that that ridge allegedly existed prior to his incident. Based upon the Plaintiff’s testimony, the Court also found that, even if the Plaintiff’s testimony was accepted, the alleged accumulation of snow and ice, as described, was not in a ridge or elevation of such size in nature that travel was unreasonably obstructed or constituted a danger to pedestrians.

Lastly, the Court also found that the Plaintiff had not connected the allegedly dangerous accumulation of ice and snow to the fall that occurred.

Rather, a review of the Plaintiff’s testimony not only indicated that there was a very small accumulation of snow, that he never saw any “ridges,” and that he did not experience any slippage under his feet when he first arrived at the property. The evidence also confirmed that, with regards to the fall, the Plaintiff only testified that he was standing next to the inspector and the next thing the Plaintiff new, he had fallen to the ground. During his deposition testimony, the Plaintiff stated that he was merely standing and fell.

The Court found that the Plaintiff’s testimony describing a fall while standing in the driveway was not enough to support a claim that the driveway conditions caused the fall. The Court noted that mere speculation that the ice and snow caused the fall is not enough under the burden of proof required.

Based upon the above, the Court found that the Plaintiff’s claims were barred both by general principles of negligence as well as the hills and ridges doctrine. Accordingly, the Defendants’ Motion for Summary Judgment was granted.

Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

Summary Judgment Entered in Monroe County Single Grape Slip and Fall Case

In the case of Stagnito v. Weis Markets, Inc., PICS Case No. 12-0226 (C.P. Monroe Sept. 2, 2011 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas entered a summary judgment in favor of a Defendant grocery store in a slip and fall case where the Plaintiff alleged that she was caused to fall by a single grape on the floor.

In her Opinion, Judge Harlacher Sibum noted that the Plaintiff did not offer any evidence that the Defendant store had any actual notice of the grape or that the store had allegedly created the allegedly harmful condition.

The Court also ruled that the Plaintiff had not produced evidence to support a burden of showing that the Defendant store had constructive notice of the allegedly dangerous condition. According to the Opinion, the Plaintiff was unable to state how the grape came on the floor or how long it was there.

The store employees also testified that they did not see the grape and did not know where it came from or how long it had been on the floor. It was also noted that there was no testimony presented that any customers had previously complained about the grape before the Plaintiff’s allegedly incident.

Judge Harlacher Sibum also found that the Plaintiff did not establish that the Defendant store was negligent in failing to have a procedure in place to police the safety of the store, particularly where the Plaintiff did not establish that a reasonable inspection would have prevented the Plaintiff’s alleged injuries in any event. The Court found that this case was distinguishable from cases in which the Defendant did have procedures in place and had deviated from them.

In granting summary judgment in favor of the Defendant store, the Court held that “Plaintiffs cannot prove that defendant failed to exercise reasonable diligence in discovering this single grape, or that the grape had been permitted to remain on the floor for an unreasonably long period of time.”

I do not have a copy of this Decision but a copy can be purchased for a small fee from the Pennsylvania Law Weekly by calling 1-800-276-7487 and giving them the above PICS Case Number noted in the citation.

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (February 14, 2012).

Source of photo:  Image: Ambro / FreeDigitalPhotos.net

Judge Sibum of Monroe County Grants Defendant's Preliminary Objections in Auto Accident Case

In the case of Frailey v. Maranuk, PICS Case No. 11-1147 (Monroe Co., April 11, 2011, Sibum, J.), Judge Jennifer Sibum of the Monroe County Court of Common Pleas granted a Defendant’s Preliminary Objections in a automobile accident case against a Plaintiff’s claim in the Complaint that the Defendant was negligent in “otherwise failing to use reasonable care under the circumstances.”

The Court found that, under Pa. R.C.P. 1019(a), which requires a Plaintiff to state the material facts of a Complaint in a concise and summary form, that the above allegation failed for lack of specificity where the Complaint did not otherwise provide the Defendant with material facts necessary to build the defense against such a claim.


Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427, and pay a small fee, to secure a copy of this Opinion.

Judge Sibum of Monroe County Allows For Expert Causation Testimony on Fibromyalgia

In an August 20, 2010 Order, without Opinion, in the case of Green v. Walls, No. 3512 - Civil - 2008 (Monroe Co. Aug. 20, 2010 Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas denied a Defendant's Motion in Limine seeking to preclude a Plaintiff's medical expert from testifying as to the causation of the Plaintiff's fibromyalgia condition as an alleged result of trauma.

I thank the prevailing Plaintiff's attorney, Jeremy D. Puglia, Esquire, of the Doylestown, Pennsylvania law office of Drake, Hileman & Davis, for bringing this decision to my attention.

Anyone desiring a copy of Judge Sibum's Order, without Opinion, may contact me at dancummins@comcast.net.


Here are links to other Tort Talk posts on this issue that show that the emerging trend of the Pennsylvania trial courts is to allow this form of expert testimony on the grounds that the methodology that underlies the expert's conclusion has gained general acceptance in the relevant scientific community:

http://www.torttalk.com/2009/07/trial-courts-continue-to-struggle-with.html

http://www.torttalk.com/2009/09/expert-testimony-on-fibromyalgia.html


Here's a link to a prior Pennsylvania Law Weekly article of mine on the topic, entitled "Fibromyalgia as a Diagnosis in Personal Injury Cases":

http://www.jdsupra.com/post/documentViewer.aspx?fid=7b1fc59d-4789-4f9e-be96-f157818c6d80

Judicial Election Results Across Northeastern Pennsylvania

The Judicial Election results from across Northeastern Pennsylvania brought some surprises in some spots and met expectations in other areas.

Luzerne County

In Luzerne County, the voters elected not to retain Judge Peter Paul Olszewski, Jr. for a second 10 year term as he fell victim to the ongoing negative publicity surrounding the scandal involving former Judges Michael T. Conahan and Mark A. Ciavarella. A candidate for judicial retention is required to receive 50 percent yes votes; Judge Olsewski only secured 44.5 percent of the vote.

Meanwhile, the other Luzerne County Judge up for retention, Judge Thomas F. Burke, Jr., received 61.6 percent "yes" votes and was thereby retained to another ten year term.

In terms of new Judges being elected to the bench in Luzerne County, William Amesbury and Tina Polacheck-Gartley prevailed.

With the loss of Olszewski from the bench, there are three open seats--Olszewski's seat to be vacated in January, the seat vacated by former Judge Ciavarella, and the seat that is being held open while Judge Lokuta continues her fight in the Court of Judicial Discipline.

Hopefully, the Pennsylvania Legislature and the Governor will work swiftly to allow for an appointment to fill at least two of those seats so that the Luzerne County court system can continue to make forward steps to restoring confidence and moving its caseload ahead. I note that, currently, the trial backlog in that county is over a year.

Lackawanna County

In neighboring Lackawanna County, Judge Terrence R. Nealon and Judge Michael J. Barrasse, easily secured the necessary "yes" vote for each of them to be retained for another 10 year term.

In terms of the election to fill the open spot on the Lackawanna County Bench, Margie Bisignani-Moyle easily defeated her opponent.

The word is that Judge Bisignani-Moyle will begin her term in the family court. This is unfortunate as the civil division could use another judge to help ease the current trial backlog which, as in Luzerne County, is over a year. However, situations and positions change and, given her experience in the criminal courts (she's a former assistant district attorney) and in civil matters, perhaps Judge Bisignani-Moyle could someday go on to substantially serve in those arenas as well.

Wyoming/Sullivan Counties

District Judge Russell Shurtleff won the election for Judge of Wyoming/Sullivan Counties (one judge covers both counties). He is replacing retiring Judge Brendan Vanston.

Monroe County

In Monroe County, Judge Maggie Worthington easily secured the necessary "yes" vote to be retained for another 10 year terms as a court of common pleas judge.

Also, Jennifer Harlacher Sibum, running unopposed after having secured a victory on both sides, Republican and Democrat, in the primary, was elected to the Court of Common Pleas. Judge Sibum will be replacing retiring Judge Jerome Cheslock.

Carbon County

Palmerton attorney Steve Serfass was elected Carbon County's third judge in yesterday's election.

Northampton County

Previously appointed Judge Leonard Zito, District Judge Michael Koury, Jr., and state lawmaker Craig Dally were elected to the bench in Northampton County.


Other Judicial Elections

According to this morning's local newspapers, Republican Joan Orie Melvin has defeated Democrat Jack Panella in the election for a new Supreme Court Judge. Judge Melvin's win restores a one-seat majority for the GOP on that bench.

In the Commonwealth Court of Pennsylvania, Pittsburgh lawyer Patricia McCullough and Harrisburg lawyer Kevin Brobson were victorious.

In the Pennsylvania Superior Court, as of this morning it was being reported that Allegheny County Judge Judy Olsen and Tioga County lawyer Sallie Mundy both prevailed. However, elections for two other seats on that bench were too close to call.


For more background on the winning Judges, I suggest going to their individual campaign websites. Anyone desiring any additional information, please feel free to contact me and I can tell you what I know of the background of some of these candidates that I have worked with before.

Unofficial 2009 Judicial Primary Election Results

Lackawanna County

After the primary vote on one judicial seat, Margaret Bisignani-Moyle took the Democratic nomination and Frank Castellano took the Republican spot. Both are long-time assistant district attorneys with little civil litigation experience during their careers of fighting crime. President Judge Harhut has not indicated what types of cases the new Lackawanna County Judge will focus on, but it is clear that another civil court judge is needed as the trial date backlog is up to a year to 18 months to get a trial date in this county.

Luzerne County

In Luzerne County 17 candidates were running for two spots. District Magistrate William Amesbury took the top spot on the Democratic side with Tina Polachek-Gartley coming in second. On the Republican side, Richard Hughes took the top spot and the cross-filed William Amesbury came in second. One local news article has indicated that Judge Amesbury's dual nomination effectively matches Attorney Hughes against Attorney Gartley in the November 3 general election.

Monroe County

Dickinson Law School grad, Jennifer Harlacher Sibum, secured both the Democratic and Republican spots in the primary for Monroe County Judge.

Wyoming/Sullivan County

Attorney Russell Shurtlef secured both the Democratic and Republican top spots in the primary for common pleas court judge in Wyoming/Sullivan County, taking over the spot long and held by retiring from the bench Judge Brendan Vanston.