Court Rules that Punitive Damages May Not Be Claimed for Post-Incident Conduct

In the case of Pavlik v. Smith, No. 2024-CV-09109 (C.P. Luz. Co. Aug. 1, 2025 Gelb, J.) the court denied a Plaintiff’s Motion for Leave to Amend the Complaint in a dog bite case.

Of note, the court denied the Plaintiff’s efforts to file an Amended Complaint that would contain a claim for punitive damages for post-incident conduct by the Defendants relative to the dog bite incident.

The court noted that punitive damages are not available for post-incident conduct of a tortfeasor. In so ruling, the court cited, with “see” signals, the cases of Bert Co. v. Turk, 298 A.3d 44, 61 (Pa. 2023) (Explaining that the fact-finder may impose punitive damages for torts, as opposed to any post-incident conduct) and Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984) (Stating that “one must look to the act itself together with all circumstances when imposing punitive damages).

Anyone wishing to review this detailed Order without Opinion may click this LINK.

Trial Court Allows Claims of Recklessness and Punitive Damages to Proceed Where Defendant Driver Took Eyes Off Road Where Something Fell to the Floor of Vehicle

In the case of Lin v. Gutowski, No. 2024-CV-5659 (C.P. Lacka. Co. Aug. 11, 2025 Powell, J.), Judge Mark Powell of the Lackawanna County Court of Common Pleas overruled a Defendant’s Preliminary Objections seeking to strike claims for recklessness, punitive damages, and negligent entrustment in an alleged distracted driver motor vehicle accident case.

Judge Mark Powell
Lackawanna County

Relative to the allegations of recklessness, Judge Powell followed the current trend of allowing allegations of recklessness to be pled generally in cases where negligence has been alleged. With regards to the claims for punitive damages, the court noted that the Plaintiff alleged that the Defendant was distracted by an item that fell to the floor which caused him to remove his eyes from the road while approaching the intersection at a speed that was allegedly too fast for the conditions and while failing to yield to traffic where the Plaintiff was attempting to make a left hand turn.

The court found that the allegations presented by the Plaintiff rendered it unclear as to whether or not a jury could find that such conduct was reckless such that the claim for punitive damages could be supported. In so ruling, Judge Powell cited to a Pennsylvania Supreme Court decision in which it was stated that a more appropriate course of action under the circumstances would be to pull to the side of the road to retrieve the item.

The court otherwise noted that the allegations that the Defendant driver diverted his eyes from the road, in combination with the allegations that the Defendant was traveling too fast for conditions and that he failed to yield to other traffic on the roadway, all served to support the Plaintiff’s potential claim for punitive damages. The court noted that it was otherwise not clear and free from doubt as to the Defendant’s subjective understanding of the risk his conduct posted to the safety of others and whether or the Defendant carelessly disregarded those risks. Accordingly, the court allowed the claim for punitive damages to proceed.

In his decision, Judge Powell also outlined the current status of the law regarding negligent entrustment claims. After applying that law to the case presented, the court noted that the Plaintiff’s claims that the Defendant owner knew or should have known that the Defendant driver had a prior history of motor vehicle violations and that the Defendant driver would allegedly fail to operate the vehicle safely, that the Defendant driver had a propensity for speeding and driving while distracted and for ignoring the law, not only stated claims for negligence, but also supported claims of recklessness for which a jury may decide to award punitive damages. As such, the court also overruled the Defendant’s Preliminary Objections to the Plaintiff’s claims of negligent entrustment.

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


I send thanks to Attorney Stephen T. Kopko of the Anzalone and Doyle law firm in Wilkes-Barre, PA for bringing this case to my attention.

Trial Court Gives Lessons on Medical Malpractice Complaint Drafting

In the case of Dawes v. The Williamsport Home, No. 2025-CV-00381 (C.P. Lyc. Co. June 6, 2025 Carlucci, J.), the court granted in part and denied in part Preliminary Objections filed against a Plaintiff’s claim in a medical malpractice case arising out of alleged negligent care regarding the Plaintiff’s thoracic surgical wound.

According to the Opinion, the court denied the Defendant’s demurrer to the Plaintiffs’ claim for punitive damages but still directed the Plaintiff to file an Amended Complaint which either deletes any claim for punitive damages or sets forth sufficient material allegations in support of the same.

Relative to any claims against any agents or employees of the medical Defendants the court directed that the Plaintiff’s Amended Complaint should limit allegations regarding the acts or omissions by a Defendant or its agent or employees to that conduct that the Plaintiff contends was a substantial factor in causing the Plaintiff’s injuries. In this regard, the court directed the Plaintiff to not include any extraneous allegations not pertinent to the causation issues. 

The court also required the Plaintiff to provide additional factual support and allegations on the claims for corporate liability.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (Aug. 7, 2025).

Court Dismisses Negligent Entrustment Claim Against Parents Relative to Use of Cell Phone by Child

In the case of JH v. Dunmore School District, No. 3:24-CV-1154 (M.D. Pa. Aug. 8, 2025 Munley, J.), Judge Julia K. Munley of the Federal Middle District Court of Pennsylvania addressed various Motions to Dismiss filed by different Defendants relative to a case involving allegations that certain middle school student allegedly recorded a minor Plaintiff who was on the autism spectrum, inside a bathroom stall at the school and then allegedly disseminating that video to other students who also allegedly shared the video with others.

Among the claims presented by the Plaintiffs were allegations of negligence entrustment and intentional infliction of emotional distress against the minor Defendants at issue and their parents. The negligent entrustment claim was that the parents had negligently entrusted a cell phone owned by the parents to their children.

The court granted in part and denied in part the request for a dismissal of the negligent entrustment claims asserted against the parents given that the Plaintiffs did not allege facts to support their conclusion that the parent Defendants knew or should have known that their children would use their cell phones in ways that would hurt people.

The court also noted that, based upon the facts alleged by the Plaintiff, which included references to school policy and state law, the Plaintiffs’ allegations actually support the proposition that the parent Defendants yielded control of the cell phones, or the use of the cell phones to the teachers and administrators when their children were at school. 

In this regard, the court pointed to the school district’s rules requiring students to refrain from utilizing their cell phone on the school ground during school hours. 

The court emphasized that the alleged negligent conduct of the students took place during the course of the school day and that there were no allegations that any of the minor Defendants in this action shared the video of the minor Plaintiff outside of the school day. 

The court in this matter did allow the Plaintiffs’ claims or intentional infliction of emotional distress to proceed against the parent Defendants.

The court otherwise dismissed a number of claims asserted against the school district and school officials but allow the Plaintiffs to file another Amended Complaint relative to the possible civil rights allegations under 42 U.S.C. §1983.

The court allowed the claims of punitive damages to remain in the case relative to the claims of intentional infliction of emotional distress.

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

Source of image:  Photo by Tracy Le Blanc on www.unsplash.com.

Court Rules That Expert Testimony Not Required To Establish Defendant's Duty to Provide a Safe Workplace

In the case of Chirdon v. 3M Company, Inc., No. G.D. 22-16244 (C.P. Allegh. Co. March 24, 2025 Kline, J.), the trial court denied the Defendant’s post-trial motions in an alleged unsafe workplace trial involving allegations of asbestos exposure to a boilermaker.

According to the Opinion, the jury awarded $2.3 million dollars in compensatory damages and $1.5 million dollars in punitive damages against the Defendant employer.

In this Rule 1925 Opinion, by the trial court, the court addressed defenses raised with regard to statute of repose, the method in which the concept of outrageous conduct may be admitted into evidence at trial, issues regarding the bifurcation of the liability and punitive damages phases of the trial and challenges by the defense to the Plaintiff’s failure to utilize an expert to explain OSHA violations.

Notably the trial court rule that expert testimony was not required to establish the Defendant's duty to provide a safe workplace.  Rather, the court ruled that the duty to provide a safe workplace, as well as the applicable OSHA regulations were within the understanding of ordinary jurors.

Overall, the trial court ruled that the Defendant failed to meet the standard of review for a judgment notwithstanding the verdict or for a new trial.  As such, the Defendant's post-trial motions were denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken Behrend of the Behrend Law Group, LLC located in Pittsburgh, Pennsylvania for bringing this case to my attention.

Source of image:  Photo by Sylvia Brazzoduro from www.unsplash.com.

Claims of Recklessness and Punitive Damages Allowed To Proceed in Premises Liability Case

In the case of K.H. v. Mill Run Campground, No. 2197 of 2023, G.D. (C.P. Fay. Co., March 10, 2025 Vernon, J.), the court denied Preliminary Objections filed by a Defendant on claims of recklessness and for punitive damages in a premises liability case. According to the Opinion, the case involved a young child who fell off a set of bleachers.

The court overruled the Defendant’s Preliminary Objections and held that, where a Plaintiff stated a cognizable negligence claim and generally averred that the Defendant acted with the state of mind necessary for an award of punitive damages, the Defendant’s challenge to these types of claims was premature such that the Preliminary Objections would be denied. The Defendant was advised that the issues could be revisited in a Motion for Summary Judgment after the close of discovery.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 14, 2025).

Superior Court Overturns Trial Court's Allowance of Amendment of Complaint During Trial To Add Claim of Punitive Damages

UPDATE:  Under a July 31, 2025 Order, the Superior Court withdrew this decision and granted an argument en banc on the issues presented.

In the case of Bernavage v. Green Ridge Healthcare Group, LLC, No. 1576 MDA 2023 (Pa. Super. May 19, 2025 Bowes, J., Olson, J., and Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court affirmed the entry of a compensatory damages award by a jury after a medical malpractice trial but vacated the jury's award of punitive damages after finding that the trial court erred by allowing the Plaintiff to amend the Complaint during the trial to add the claim for punitive damages.

According to the Opinion, the underlying case involved two (2) trials, one under compensatory damages aspect of the case and a second, later trial limited to consideration of whether punitive damages should be awarded against the Defendants.

It was noted that, during the course of the first trial, the Plaintiffs moved for a directed verdict on the issues of negligence and recklessness. At that time, the Plaintiff also made a request to file an Amended Complaint to conform the evidence elicited at trial to the pleadings. The request for a directed verdict was denied but the Plaintiff was allowed to file an Amended Complaint to add allegations of recklessness and to include a claim for punitive damages. The court also severed the issues related to the punitive damages claim to be resolved at a second, later trial with a different jury.

After the jury in the first trial entered an award in favor of the Plaintiff, the pleadings were reopened by the trial court and the parties proceeded to conduct punitive damages discovery prior to the second trial.

There was then a second trial at which the jury entered an award of punitive damages.

Following the punitive damages trial, the Defendants filed various post-trial motions and, eventually, this appeal. A central issue on appeal was whether the trial court abused its discretion in allowing, in the middle of a trial and after the expiration of the applicable statute of limitations, the Plaintiff to amend the Complaint to add allegations of recklessness and the claim for punitive damages.

The Superior Court ruled that the amendment of the Complaint to allow for claims of recklessness was not barred by the applicable statute of limitations. The main rationale for the appellate court’s decision in this regard was that recklessness and gross negligence are not to be considered distinct causes of action separate and apart from claims of ordinary negligence.

However, the appellate court did find that the trial court’s decision, during the course of trial, to allow the Plaintiff to add a claim for punitive damages was improper as that resulted in an unfair surprise to the Defendants at that late hour of the case.

The appellate court noted that the record revealed that the Plaintiffs did not pursue a claim of recklessness during the course of discovery and only introduced the concept of recklessness for the first time during the course of the trial.

The Superior Court noted that the Plaintiff’s failure to develop the specific theory of recovery in the form of recklessness during the course of discovery was not, in this case, a mere technicality subject to being cured by an amendment of the Complaint to conform to the evidence at any point.  Rather, the Superior Court noted that the record in this case revealed that the Plaintiff had developed a theory of liability at trial that was substantively different from the theory developed by the Plaintiff during the course of discovery and as alleged in the original Complaint.

The Superior Court additionally noted that the Plaintiff had solicited the word “reckless” from witnesses during the course of a trial, which witnesses, in the eyes of the Superior Court, could not be expected to understand the legal significance of that term. The Superior Court noted that the witnesses’ use of the word “reckless” in their testimony was of no legal significance until the trial court subsequently permitted the Plaintiff’s Amended Complaint in which recklessness was then alleged for the first time.

Accordingly, the appellate court found that this matter did not involve simply an amendment of the pleadings in order to conform the Complaint to the evidence produced at trial. Rather, the Superior Court viewed this matter as involving an introduction of a new theory of recovery at a late date in the proceedings, which action was of the type that is frowned upon by the courts and which often results in a violation of the statute of limitations.

While the court found that the statute of limitations did not serve to bar the addition of a claim of recklessness under this set of facts and given that recklessness is only considered a state of mind in regards to a negligence claim, the Superior Court found that the unfair surprise to the opposing party from the late amendment served as grounds that should have compelled the trial court to deny permission to amend the Complaint. 

The Superior Court concluded that unfair surprise existed in this case “where a negligence Plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” 

The court noted that, if, as the Plaintiff asserted, the facts of the Plaintiff’s original Complaint were sufficient to support a recklessness theory of recovery, then the Plaintiff should have developed that theory during the course of discovery. The Superior Court noted that, while it ascribed no motive to the Plaintiff in this case, it felt that, to reach a different conclusion, would be to invite negligence plaintiffs to withhold their theory of recovery, whether it is a negligence, gross negligence, or recklessness claim, until the last possible minute for the specific purpose of creating an unfair surprise to the opposing party. 

For these reasons, the Superior Court concluded that the trial court abused its discretion in permitting the Plaintiff to amend their Complaint during the course of trial to add a claim for punitive damages.

As such, the Superior Court affirmed the jury’s verdict relative to the award of compensatory damages but vacated the second jury’s award of punitive damages. The case was remanded for further proceedings.

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


I send thanks to Attorney Joseph T. (“Jody”) Healey of the Scranton, PA law firm of Cipriani &Werner for bringing this case to my attention.

Medical Battery Claim Dismissed From Medical Malpractice Case

In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.

In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.

The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.

The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.

However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.

The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.

Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.

The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 6, 2025).

Plaintiff's Claims For Tortious Interference with a Dead Body Kept Alive

In the case of McGee v. Bowser, No. 838 EDA 2023 (Pa. Super. Dec. 30, 2024 Olson, J., Sullivan, J., and Bender, J.)(Op. by Olson, J.), the Superior Court affirmed in part and reversed in part a trial court’s sustaining of Preliminary Objections in a case involving a Plaintiff’s decedent being moved from his original gravesite without consent.

According to the Opinion, the Plaintiff pled that the Defendant’s conspired to move the decedent from his original gravesite without consent or notice. The Plaintiff also alleged that the disinterment permit had been improperly granted.

Reviewing the claims before it, the appellate court ruled that the Plaintiff had indeed stated a valid claim for tortious interference with a dead body under the elements noted in the Restatement §868.

However, the court found that the Plaintiff’s intentional infliction of emotional distress claim failed. The court noted that such a claim requires that a Plaintiff be present when the tort occurred.

However, the appellate court did allow the Plaintiff’s negligent infliction of emotional distress claim brought against the cemetery for breach of fiduciary duty to proceed given that that claim did not require a contemporaneous observation.

Relative to a civil conspiracy claim asserted by the Plaintiff, the court confirmed that a civil conspiracy claim is a derivative claim and that, given that some of the Plaintiff’s other substantive claims were reinstated, the civil conspiracy claim would likewise be allowed to proceed.

On the issue of the Plaintiff’s claim for punitive damages, the appellate court noted that such damages are permitted on a lesser standard of outrageousness in cases involving the mistreatment of corpses.

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.

Source of Image:  Photo by Scott Rodgerson on www.unsplash.com.

Court Grants Summary Judgment on Recklessness and Punitive Damages Claims in a Trucking Accident Case

In an Opinion that is tersely worded at times in the case of Medina v. One Stop Center, Inc., No. 2:22-CV-01031-CB (Jan. 2, 2025 Bissoon, J.), the court granted a Defendant’s Motion for Summary Judgment on a claim for punitive damages in a trucking accident case. In so ruling, the court also reject the Plaintiff’s liability expert’s opinion.

As to the Plaintiff’s expert, the court found that the expert’s opinion did not meet the standards required by Federal Rules of Evidence 702. The court additionally faulted the expert for veering into areas reserved for the jury, that is, by offering opinions based on his assessment of the credibility of witnesses and parties.

Overall, reviewing then facts of the case, which involved an accident when the drivers encountered unexpected black ice on the roadway, did not support a finding of reckless indifference on the part of the Defendant driver. Accordingly, the court granted the Motion for Summary Judgment filed by one of the Defendant.

Relative to a separate decision in this Opinion on a Borrowed Servant Doctrine issue raised by a different Defendant, the Court denied that Defendant's Motion for Summary Judgment on that issue   

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

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh, PA law firm of Zimmer Kunz, PLLC, for bringing this case to my attention.

THE 2024 TORT TALK TOP TEN

THE 2024 TORT TALK TOP TEN

10.  Waiting On Supreme Court Decision Doctrine of Forum Non Conveniens

Civil litigators are awaiting a decision from the Pennsylvania Supreme Court relative to the application of the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., 303 A.3d 1070 (Pa. Super. 2023) appeal granted 367 EAL 2023 (Pa. 2024). 

At the Superior Court level, that Court had ruled Defendant did not demonstrate sufficient grounds to support the request for a transfer of venue under doctrine of forum non conveniens in an effort to move the case out of Philadelphia County.  The Court ruled, in part, that the affidavits provided by the defense from witnesses regarding whether or not Philadelphia County was an oppressive or vexatious venue from the perspective of those witnesses were not specific enough.

The primary issue for the Pennsylvania Supreme Court to decide is whether the Superior Court misapplied Doctrine of Forum Non Conveniens.

The Tort Talk post on the Superior Court’s decision in this case can be reviewed at this LINK.

9.  Supreme Court Addresses Business Interruption Coverage in Context of Covid-19 Shutdown

In the case of Ungarean v. CNA, No. 12 WAP 2023 (Pa. Sept. 26, 2024) (Op. by Brobson, J.), the court addressed issues regarding business interruption coverage in the context of the COVID-19 pandemic.

This case involved a class action that was led by a dental practice which had purchased a commercial property insurance policy from an insurance company, which policy was intended to cover business-related losses.

After the court mandated closures as a result of the COVID-19 pandemic, the insured filed a claim under the policy, which was denied by the insurance company on the grounds that there was no physical damage to the property.

The trial court had granted summary judgment in favor of the insureds. The trial court had interpreted the policy language to include loss of use of the property as a form of “direct physical loss.”

That trial court decision was affirmed by the Superior Court who also found the policy language at issue was ambiguous and should be construed in favor of the insured.

However, the Pennsylvania Supreme Court reversed the Superior Court’s decision.

The Pennsylvania Supreme Court held that the policy language was unambiguous and required a physical alteration to the insured’s property for the coverage to apply.

The court ruled that the economic losses sustained by the insured due to the government shutdown did not meet this requirement.

As such, the Supreme Court ruled that the insured was not entitled to coverage under the policy. The case was remanded to the Superior Court with instructions for summary judgment to be entered in favor of the insurance company.

The Tort Talk post on this case can be viewed at this LINK.

8. Plaintiff Can Secure Both Punitive Damages and Treble Damages in the Same Case Punitive and Treble Damages

In the case of Dwyer v. Ameriprise Financial, No. 2 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court held that a trial court may, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), award both punitive damages and treble damages.

This case involved Plaintiffs who sued Ameriprise Financial for negligent and fraudulent misrepresentation relative to a life insurance policy. The Plaintiffs alleged that the carrier misrepresented to them that their quarterly premium payments would remain the same for the life of the policy. In reality, if the Plaintiff’s premium payment had remained the same, the policy would have allegedly lapsed for insufficient funds in 2020.

The Supreme Court held that treble damages under the UTPCPL are a separate remedy available to the Plaintiffs and must be considered by the trial court without regard to a separate punitive damages award that may be issued on related common law claims.  The Pennsylvania Supreme Court noted that nullifying the availability of a statutory award because of a common law award was not a permissible exercise of discretion by the trial court.

The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.

7. Plaintiff Must Answer Questions at IME or DME

In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.) from earlier this year, the court granted a defendant’s Motion to Compel a plaintiff to provide information to the IME doctor during an independent medical examination of a plaintiff in a case arising out of a motor vehicle accident.

According to the decision, the plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that led to the plaintiff’s alleged injuries.

Judge C. Daniel Higgins, Jr. of Monroe County noted that Rule 4010 provides that the examiner is limited to inquiring into matters regarding the facts of liability that were germane to the issue of damages.  Rule 4010 itself provides that “[t]he examiner's oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.”  See Pa.R.C.P. 4010(a)(4)(i).

The court found that the plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the examining doctor.

In granting the defendant’s Motion to Compel in this regard, the Court ordered that the plaintiff was required to cooperate and answer the questions of the examining doctor.  The court noted that, as set forth under Rule 4010, the plaintiff could have her counsel or other representative present during the examination.

The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.

6. Hills and Ridges Doctrine

Over the past year, one court addressed the issue of whether the Hills and Ridges Doctrine should be applied where a Plaintiff fell in an area that was covered by an awning or a canopy.

In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), Judge Eric R. Linhardt denied a Motion for Summary Judgment in a slip and fall case that occurred when the plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.

In this case, the Plaintiff had cited to the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004) for the proposition that the Hills and Ridges Doctrine is not applicable where the incident occurred in an area that was covered by a roof or awning.  In the Heasley case, the plaintiff’s slip and fall occurred while the Plaintiff was walking in a shed that had three walls, with the fourth side open.  The shed had an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the Hills and Ridges Doctrine did not apply to a fall occurring inside an outdoor storage shed. 

The Court in Heasley reasoned that the Hills and Ridges Doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice.  The court found that the defendant did not present anything that demonstrated that keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the Hills and Ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the Hills and Ridges Doctrine to an incident that occurred in a structure covered by a roof and/or an awning.

Judge Linhardt applied the rationale of the Heasley case to this Johnson case in which the plaintiff alleged that he fell on black ice on the top step of the Defendant’s covered porch which step was allegedly covered by an awning. Judge Linhardt noted that, under the current status of Pennsylvania law, if that allegation was proven, then it appeared that the Hills and Ridges Doctrine would not be applicable to this litigation. The court therefore found that genuine issues of material fact must be resolved by the jury in this regard and, as such, the Defendant’sMotion for Summary Judgment was denied.

The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.

5. Notable Decisions on Certificates of Merit in Med Mal Cases

There were a couple of decisions of note that came down over the past year regarding Certificates of Merit that are required in medical malpractice cases in Pennsylvania.

In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a defendant’s motion to dismiss after confirming that the Certificate of Merit requirements for medical malpractice claims under Pennsylvania state law also apply in federal court.  In this case, the court also ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.

The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.

In the separate case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.), the court addressed the extent to which a plaintiff could attempt to compel one of the plaintiff’s own doctors to write a Certificate of Merit to enable the plaintiff to pursue a claim against another medical provider.

The court in Berk granted the doctors' Motion to Dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice.  The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.

The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.

The Tort Talk Blog post, which contains a link to this decision, can be viewed at this LINK.

4. Use of Exhibits in Opening Statements

A common dispute at civil litigation trials is the extent to which one party or the other may utilize demonstrative exhibits during the course of Opening Statements.  Typically, trial court judges have punted on the issues and have stated that such exhibits would only be permitted during Opening Statements if the attorneys have agreed on the same.

In what appears to be the first Opinion of its kind, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether a party may utilize demonstrative exhibits during an Opening Statement in the case of Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.).  In this decision, Judge Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an Opening Statement at a civil litigation trial.

In this medical malpractice case, the Plaintiff filed a Motion In Limine seeking leave of court to utilize admissible excerpts of videotaped depositions of unidentified defense witnesses during the course of the Opening Statement to be presented by Plaintiff’s counsel.

After reviewing the sparse law on the issue, Judge Nealon noted that the reference and showing of admissible evidence during the course of an Opening Statement can be permitted by a trial court judge under the broad discretionary powers of judges to run trials that occur before them.  

The court otherwise ordered the Plaintiff to identify which portions of what video deposition they intend to utilize during the course of the Opening Statement so that the opposing party could assert any reserved evidentiary objections to those excerpts so that any required rulings may be made prior to the Opening Statement.

The Tort Talk Blog post, which contains a link to this decision, can be viewed LINK.

3. Service of Process

Over the past year, the Pennsylvania Supreme Court provided its latest guidance on the issue of proper and timely service of process in civil litigation matters.  In the case of Ferraro v. Patterson-Erie, No. 1 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court addressed a statute of limitations argument related to service of process issues in a slip and fall case.

According to the Opinion, this case arose out of a slip and fall event.  The Plaintiff filed her Complaint within the two (2) year statute of limitations. However, the Plaintiff encountered difficulties with serving the Complaint on the Defendants due to issues with the Sheriff’s service and the COVID-19 pandemic.

The Plaintiff thereafter served the Complaint on the Defendant through a private process server. She later reinstated the Complaint and then served it through the Sheriff.  However, this service by the Sheriff occurred after the statute of limitations had elapsed.

The Defendants argued that the action was barred by the statute of limitations because the Plaintiff did not make a good faith effort to serve them in a timely manner.

On appeal to the Pennsylvania Supreme Court, the Court held that the Plaintiff had failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the Defendants.  Accordingly, the Supreme Court found that the Defendants’ informal receipt of actual notice was irrelevant.  In the end, the case was dismissed.

Check out Justice Wecht’s Dissenting Opinion in this case for an excellent overview on the current status of the law in Pennsylvania on the issue of proper service of process.

The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.

2. Regular Use Exclusion Upheld as Valid and Enforceable

At the start of the year, on January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the Regular Use Exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.).

The Pennsylvania Supreme Court has ruled that, as presented in this case, the Regular Use Exclusion contained in motor vehicle insurance policies did not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law [MVFRL].

The Plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle. The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle.  The Plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home.  Erie Insurance relied upon a Regular Use Exclusion contained in the policy to deny coverage on the UIM claim.

The Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court once again confirmed that it had previously clarified and narrowly limited its Gallagher decision in its decision in the case of Erie Insurance Exchange v. Mione.  In Mione, the Supreme Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.

The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court would maintain its continued course on this issue "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise." Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.

The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.

1. The Use of AI to Draft Court Filings

Over the past year, the trending use of AI has apparently hit the legal field with attorneys utilizing AI to draft motions and briefs to be filed with the courts.  This has led to bar associations and courts in Pennsylvania taking steps to provide guidance on the proper and responsible use of AI in this regard. 

In May of this year, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a Joint Formal Opinion providing advice on the use of Artificial Intelligence in the legal profession.  That Joint Formal Opinion can be viewed at this LINK.

The Opinion itself notes that it is an "advisory only" Opinion.  Generally speaking, the Opinion recommends that attorneys be aware of, and competent with, the use of AI in the legal profession.  The Opinion recommends that those in the legal profession check and confirm the veracity of all information generated through the use of AI, including citations to legal authority.  The Opinion also cautions that client confidentiality should be protected at all times.

In terms of steps being taken by the courts of Pennsylvania to monitor the use of AI with court filings, in the federal courts of Pennsylvania, Middle District Court Judge Karoline Mehalchick crafted and issued what appears to be the first Civil Practice Order on Use of Generative Artificial Intelligence to be issued in the Commonwealth. 

Under this Order, which can be viewed at this LINK, Judge Mehalchick ordered that if a party to any litigation pending before her has utilized AI in preparation of any filing, that filing must be accompanied with a Certificate of Use of Generative AI.

In that Certificate of Use of Generative AI, the party is required to disclose and certify the following information:

(1) The specific AI tool utilized

(2) Identification of the portions of the filing prepared by the AI program; and

(3) Certification that a person filing the document has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority

In the Order, Judge Mehalchick cautioned that failure to comply with this Civil Practice Order could result in sanctions.

At the state court level, the Pennsylvania Supreme Court has created an Advisory Committee on Artificial Intelligence.  That Committee was created to propose appropriate statewide rules to provide guidance to counsel on the use of AI with filings in the state court systems.

Source of above image: Photo by Sergei Starostin on www.pexels.com.