THE 2023 TORT TALK TOP TEN

THE 2023 TORT TALK TOP 10

10. Service of Process


There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this Link: http://www.torttalk.com/search/label/Service%20of%20Process

9. COVID-19 Pandemic Coverage Issues Persists


Over the summer, the Pennsylvania Supreme Court issued an Order granting allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange and the case of Ungarean v. CNA and Valley Forge Insurance. In these two cases, the Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic. It remains to be seen which way the Court will go.


To review the Tort Talk post on COVID-19 business interruption coverage cases, click this LINK.

8. Household Exclusions

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the Pennsylvania Supreme Court addressed the enforceability of two (2) household vehicle exclusions in a pair of automobile insurance policies. In the end, whereas the Pennsylvania Supreme Court previously ruled that household exclusions are unenforceable, that Court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower court correctly distinguished the Gallagher decision from the facts in this case and correctly enforced the household exclusions contained in the insured’s automobile insurance policies.


To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

7. Consent To Jurisdiction By Registering to do Business


In June of 2023, the Pennsylvania Supreme Court was overturned by the United States Supreme Court in the case of Mallory v. Norfolk Southern Railway Co., ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision.

In Mallory, the United States Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on “any cause of action” filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

Under a more recent Order, the Pennsylvania Supreme Court then punted on the issue and remanded the issue all the way back down to the trial court for consideration

To review the Tort Talk post on this case, click this LINK



6. Social Host Liability


In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court held that an organization hosting an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

5. Workers Compensation – Employer Immunity


In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the Pennsylvania Supreme Court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries. The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries. The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this dog bite action that occurred at a workplace. None of the exceptions were found to apply.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.


4. Stacking Waiver Forms


In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).

The basic rationale of the Court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, there was no requirement under the law for the carrier to secure a new waiver form.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.



3. The Dying Doctrine of Forum Non Conveniens


In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Petition for Transfer under the doctrine of forum non conveniens and denied the same.

In his Opinion, Judge Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the Plaintiff was oppressive and vexatious.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK

2. Test for Proper Venue Revised


In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the Pennsylvania Supreme Court held that a defendant company’s percentage of sales, in of itself, is no longer sufficient to determine whether or not a company has sufficient business in a particular jurisdiction for venue purposes. Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

1. Punitive Damages

In its recent Pro-Plaintiff decision in the case of Bert Company v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023) (Op. by Donohue, J.) [Numerous Concurring Opinions written by numerous Justices], the Pennsylvania Supreme Court considered United States Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

More specifically, the court addressed the ratio calculation, that is, the appropriate ratio calculation measuring the relationship between the amount of punitive damages awarded against multiple Defendants who are found to be joint tortfeasors, and the compensatory damages awarded.

The Pennsylvania Supreme Court generally endorsed the per-Defendant approach as being consistent with federal constitutional principles that require consideration of a Defendant’s due process rights.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

What to watch for in 2024:

Keep an eye out for a decision from the Pennsylvania Supreme Court on the viability of the Regular Use Exclusion in the case of Rush v. Erie Insurance Exchange.

The Pennsylvania Supreme Court is also expected to issue a decision providing guidance for COVID-19 Business Interruption coverage cases.

Company That Charged For Work Event At Which Alcohol Was Served Can't Be Held Liable Under Social Host Liability Theory

In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and entities licensed to engage in the commercial sale of alcohol while those precedents have also limited the liability of non-licensees and “social hosts.”

In this matter, Pennsylvania Supreme Court affirmed the decisions of the lower courts that held that an organization which hosted an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

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

Source: Article - “Company That Charged For Work Event Can’t Be Held Liable for Guest’s Drunken Driving, Says Pa. High Court, By: Riley Brennan of the Pennsylvania Law Weekly (Aug. 24, 2023).

Court Addresses Social Host Liability Issues For Homeowners Where Minor Allegedly Drank Alcohol in the Home and Was then Injured

Homeowner, Frank The Tank, Incurs Social Host Liability

In the case of Szydlowski v. Pusz, No. 5649-CV-2020 (C.P. Monroe Co. July 12, 2023), the court granted in part and denied in part a Motion for Summary Judgment in a case involving allegations of social host liability against homeowners for allegedly furnishing alcohol to a minor in their home.

According to the Opinion, the Plaintiff was 19 years of age when he allegedly drank two (2) alcoholic beverages while attending a party at the Defendants’ home.  In this context, under Pennsylvania law, anyone under the drinking age of 21 is considered to be a "minor."

In terms of the subject accident, another adult at the party allegedly lost control of a ATV and crashed into the Plaintiff, causing him injuries.

The Plaintiff sued and included the homeowners as Defendants on a claim of negligence, alleging that he was unable to evade the ATV because of the effects of the alcohol he had consumed at the Defendants’ home.

In this matter, the Defendant homeowners maintained that they did not agree to, or plan, an underage drinking party. However, the Plaintiff noted that a State Trooper who had investigated the accident had testified that every person attending the party was drinking.

The court held that parents who hold a party that includes minor guests and knowingly allow them to consume any amount of alcohol are subject to potential social host liability.

The court additionally noted that the separate issue of whether a minor became intoxicated as a result of drinking alcohol in the home goes to the question of causation, not liability.

Judge Zulick stated that a minor Plaintiff need not prove that the Defendant homeowners specifically served him alcohol in order to impose social host liability against those Defendants. However, there must be evidence that the homeowners did more than simply have alcohol present in their home.

The court otherwise indicated that homeowner Defendants who knowingly allow their premises to be generally used for the purpose of serving alcohol to minors is sufficient evidence for the imposition of liability, even though the alcohol may have been provided by someone other than the homeowner.

With the Defendants' Motion before the Court, the central question was whether the homeowner Defendants knowingly served alcohol to the minor Plaintiff. The court found that there were material questions of fact in this regard and that, as such, the homeowner Defendants were not entitled to summary judgment. As such, this part of the Defendants’ Motion was denied.

However, the court did grant the Defendants’ Motion for Summary Judgment relative to the Plaintiff’s punitive damages claims.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 1, 2023).

Source of video:  Old Schoool by the Montecito Picture Company (2003)

Court Finds That Plaintiff Stated Valid Cause of Action For Negligence Against Adults For Serving Alcohol To Minor in a Fatality Case

In the case of Sheik v. Morgan, No. 10244 of 2022 C.A. (C.P. Lawr. Co. Nov. 30, 2022 Motto, P.J.), the court overruled a Defendant’s Preliminary Objections in part in a case in which the Plaintiffs allege negligence against adult Defendants for allowing or encouraging underage drinking in their homes.

According to the Opinion, the case arose out of an event during which the Plaintiff’s child spent the night at a friend’s house at which she was allegedly allowed to consume alcohol at that home and two (2) other homes that were visited during the course of the evening.  While the minor was at one of the residences, the minor, in an allegedly intoxicated state, allegedly attempted to take steps leading from a garage to a basement when she allegedly fell and allegedly suffered injuries to her head. The minor tragically died from her injuries approximately six (6) days later.

The court found that the facts alleged in the Plaintiff’s Complaint were sufficient to establish a legally cognizable claim for negligence as adults owe a duty of care to minor guests in their home and the adults in this matter allegedly breached that duty by serving alcoholic beverages to minors in any event.

Anyone wishing to review a copy of this decision, which provides a thorough overview of the current status of the law relative to the service of alcohol by adults to minors, may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 10, 2023).

 

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.

Employer Running Golf Tournament Found to Be Social Host Under Dram Shop Claim (Not Liable)

In the case of Klar v. Dairy Farmers of America, Inc., No. 10863 of 2015 (C.P. Lawr. Co. Jan. 15, 2021 Cox, J.), the court issued a Rule 1925 Opinion for appellate purposes with regards to the trial court’s granting of a Motion for Judgment on the Pleadings against the Plaintiff and in favor of an employer in a case in which the court ruled that an employer who collects contributions for a social event was still considered to 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 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.

In this matter, the court followed Pennsylvania law in which other courts had declined to impose liability on non-licensed person who furnished alcohol to individuals for no renumeration. The court ruled that, in order for the Plaintiff to hold the employer liable in this situation, the Plaintiff was required to show that the employer was a person “selling” liquor.

Here, the court noted that the alcohol expense was only a portion of the expenses that the employer paid for the gold event.

While the court recognized that, under case law pertaining to the collective purchase of alcohol, social hosts could be employers or other entities as well as individuals. The court noted that, under Pennsylvania law, social host status did not disappear because the furnishing of alcohol was collective rather than gratuitous.

However, in this matter, the court held that the payment of a fee to defer the costs of the gold outing, with alcohol being only an incidental part of the fee and without any other evidence of the commercial sale of liquor, did not support a claim for either common law negligence or negligence per se against the employer.

As such, in this Rule 1925 Opinion, the trial court requested that the appellate court uphold the trial court’s decision dismissing the Plaintiff's negligence claim against the employer.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 3, 2021).

College Held Not Responsible for Acts of Inebriated Fraternity Member Under Facts Alleged

In the case of Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed Preliminary Objections filed by Gettysburg College seeking the dismissal of a Plaintiff’s personal injury claim arising out of allegations that the Plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus.  

The Plaintiff alleged that the college was responsible for the acts of its students and that the college breached its duty to supervise the actions of the fraternity.

The court dismissed the Plaintiff’s Complaint against the college based upon the case of Alumni Ass’n v. Sullivan, 572 A.2d 1209 (Pa. 1990) in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests.  As such, under that case, a college was found not to have any duties in loco parentis with respect to its students.  

The trial court in this matter rejected the Plaintiff’s efforts to get around the Sullivan case by way of the Plaintiff’s arguments that (1) the college was allegedly aware that alcohol consumption was a problem on campus, (2) that the college had previously enacted rules requiring fraternities to notify the college administration of any events involving alcohol and, (3) in that the college required the fraternities to have someone oversee conduct at such events.   The Plaintiff alleged that, by enacting these rules, the college had assumed a special duty to control the activities at the event.  

The trial court in this Rose case rejected these arguments and noted that prior case law in Pennsylvania had rejected these types of arguments.   The court noted that, by simply adopting social policies for campus activities, the college did not create an in loco parentis type of duty on the part of the college.   The court found that the college’s social policy and rules were not an assumption of a duty, but rather a policy statement that adult students should be aware of their own behavior and act accordingly.  

The court in this Rose case emphasized that the Plaintiff’s Complaint did not contain any allegations that the college itself was a social host.   

The Complaint also did not allege that representatives of the college were present at this fraternity function or that any college representative assisted in any way in procuring or distributing alcohol to the attendees of the event.

Based upon this rationale, the court sustained the Preliminary Objections asserted by the Defendant, Gettysburg College.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019). 

Judge Zulick of Monroe County Reaffirms Pennsylvania Social Host Liability

In his recent decision in the case of Cicardo v. Mangual, No. 7668-CV-2010 (C.P. Monroe Co. Jan. 22, 2015 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas reaffirmed the law in Pennsylvania that one minor (i.e., a person under 21 in this context) cannot be liable as a social host to another minor in a case involving a motor vehicle accident allegedly arising out of a Defendant driver driving under the influence after having left house parties at which alcohol was served.  

According to the Opinion, the Defendant driver was 17 years of age at the time of the accident.  

The court noted that the law concerning social host liability as it relates to minors is settled in Pennsylvania.  

More specifically, while adults have no duty as social host to another adult, the Pennsylvania Supreme Court held in Congini by Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983), that an adult social host may be liable for furnishing alcohol to a minor. 

Thereafter, in Kapres v. Heller, 640 A.2d 888 (Pa. Super. 1994), the Pennsylvania Supreme Court held that a minor cannot be liable as a social host to another minor.  

In the case before Judge Zulick in Cicardo , the minor Defendants who allegedly provided alcohol to the then 17 year old Defendant driver were both 20 years of age at the time of the collision.  

Judge Arthur L. Zulick
Monroe County

Judge Zulick rejected the Plaintiff’s argument that there should be a distinction between minors age 17 and younger, and minors between the ages of 18 and 21.  The Plaintiff argued that, even if there is no social host liability between minors, that rule should apply only to similarly situated individuals and that, in this case, individuals under the age of 18 and individuals between the ages of 18 and 21 were not similarly situated.  

Judge Zulick noted that the holding in Kapres did not distinguish between minors under 18 and minors under 21.   He additionally noted that the statutory language in 18 Pa. C.S.A. §6310.1 (selling or furnishing liquor or malt or brewed beverages to minors) likewise did not differentiate between minors’ ages.  

Rather, Judge Zulick reiterated that the “bright line rule established in Kapres is that ‘one minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol.'”   Quoting Kapres, 612 A.2d at 891.    

As there were no issues of material fact presented in this matter, and given that all of the individuals involved were minors, Judge Zulick the minor Defendant social hosts were not liable under Pennsylvania law for allegedly serving alcohol to the minor Defendant driver on the evening of the subject motor vehicle accident.  
 

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

Social Host Liability Case Out of Erie County

In the Erie County trial court case of Boyd v. Miller, 11321 - Civil - 2011 (C.P. Erie. Co. Oct. 28, 2011 Connelly, J.), the court addressed preliminary objections to a Complaint filed against a social host who provided marijuana to a guest, both of whom were under age 21.

The guest thereafter allegedly caused an accident while driving impaired resulting in alleged injuries to the plaintiff.

In response to the preliminary objections filed by the homeowner social host defendants the Court found that the plaintiff had stated a negligence cause of action based upon a violation of the Controlled Substance Act and also the Restatement (Second) Torts Section 876 (acting in concert).

In so ruling, the court rejected the Defendant host's argument that this case should be treated like an underage drinking case, and since both host and driver were underage, there should not be liability on the host under the current status of Pennsylvania law on that issue (which holds that there is no liability for a social host who provides alcohol to a guest who later gets into an accident--cases cited in the Opinion).

 Court disagreed finding that the cases cited were limited to the provision of alcohol given how the Pennsylvania Legislature has elected to treat drug offenses differently from alcohol offenses, i.e. as being "more egregious" offenses.

As such, the Court dismissed the claims asserting liability based upon the furnishing of alcohol to the guest, but overruled the preliminary objections to the allegations pertaining to the provision of controlled substances to the guest.

Anyone desiring a copy of this decision in Boyd v. Miller may contact me at dancummins@comcast.net.

I thank Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.