Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Third Circuit Affirms Denial of Post-Trial Motions in a Trucking Accident Case

In the case of Sweigart v. Voyager Trucking Corp., No. 23-2397 (3d Cir. July 29, 2024 Bumb, J., Jordan, J., and Smith, J.) (Op. by Bumb, C.J.), the Third Circuit affirmed a trial court decision denying post-trial motions in a trucking accident case that resulted in verdict for the Plaintiff in the amount of $25 million.

In this case, the court ruled that there was no abuse of discretion by the trial court in denying a bifurcation of the liability and damages issues.  The defense sought bifurcation given the serious nature of the Plaintiff's injuries and the fear that that evidence would "infect" the jury's decision on the liability issues.   The court noted that many personal injury case involved serious injuries. The Third Circuit also stated that to hold that a trial court abuses its discretion in denying bifurcation just because a case involves serious personal injuries would flip the presumption against bifurcation. Under the law, the jury is presumed to be able to follow jury instructions to compartmentalize the evidence.

The court also noted that the fact that a juror fainted at trial in response to the presentation of graphic injury evidence does not require a mistrial. The appellate court found that it was not an abuse of discretion by the trial court to deny a mistrial motion where the jury questioning confirmed that the juror could continue and remain impartial.

The appellate court also found that the fact that the Plaintiff’s treating physician rendered medical help to the juror that fainted also did not support a mistrial since the physician was only a witness and to an opposing party.

The court noted that, on appeal, a trial judge’s estimation of a prospective juror’s impartiality shall not be second guessed.

Turning to other issues, the appellate court held that the trial court properly balanced the sudden emergency doctrine with an instruction on the assured clear distance rule. The court agreed that it was for the jury to decide if a sudden emergency existed.

The appellate court also found that it was not an abuse of discretion to exclude evidence of the Plaintiff’s lack of a motorcycle license. The court noted that there was no causal connection between the accident and the Plaintiff’s lack of a motorcycle license. 

The court also found that it was not an abuse of discretion to exclude videos of reckless driving by the Plaintiff at other times. The court noted that prior bad acts cannot be admitted to show a propensity to act in the same way all the time. The evidence at issue in this case did not rise to the level of habit evidence.

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


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Sudden Emergency Doctrine Not Applicable in Every Pedestrian Case

In the case of Olar v. Bennett, No. 703 WDA 2022 (Pa. Super. Dec. 29, 2023 Bender, P.J.E., Lazarus, J., and Kunselman, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court committed error at trial by giving the Defendant’s requested sudden emergency jury instruction and requested driver’s duty of care instruction in a case where the Defendant driver struck pedestrians.

The Superior Court ruled that the evidence did not support a determination that the Defendant was confronted with a sudden and unforeseeable occurrence.

According to the Opinion, the pedestrian Plaintiffs had left a party at approximately 11:30 p.m. at night and were crossing a two-lane road that was lit with streetlight to return to a parking lot and their car when the Defendant’s minivan struck them as they were crossing the road.

According to the Opinion, the Defendant driver testified that he had a clear view of the road in front of him, was going 20-25 mph in a 25 mph zone, and that he did not see the Plaintiffs until he hit them. The Defendant tested negative for any drugs or alcohol.

The Plaintiffs presented an expert accident reconstructionist who testified that the Plaintiffs would have been visible at a distance of nearly 300 feet. The expert also testified that, even if the Defendant were traveling at a higher speed of 30 mph, he still could have been able to stop his vehicle prior to striking the Plaintiffs if he had been paying attention.

Moreover, the sole eyewitness to the accident testified that he saw the Plaintiffs enter the road at a slow pace, that is, the Plantiffs did not dart out, and that he did not hear any horns, skidding or screeching tires before the Plaintiffs were hit.

The Superior Court noted that a driver’s duty of vigilance and attentiveness was required just as much during daylight, if not more, at night.

The Superior Court held that it was error for the trial court to give the requested sudden emergency instruction as night driving was not an emergency and given that a driver had a duty to adjust his or her speed based upon road conditions and visibility so as to ensure his ability to react to foreseeable events.

It was additionally emphasized that this was not a “dart out” case in terms of the actions of the Plaintiffs.

The appellate court found that the trial court’s failure to instruct the jury on the driver’s duty of care precluded a clarification of a material issue in the case for the jury.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 16, 2024).

Source of image:  Photo by Hooman R. on www.unsplash.com.

Court Finds Issues of Fact Relative to Sudden Emergency Doctrine Preclude Summary Judgment

In the case of Cox v. Cemex, Inc., No. 10132 of 2020, C.A. (C.P. Lawr. Co. March 20, 2023 Motto, P.J.), the court denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s personal injury litigation arising out of a motor vehicle accident.

According to the Opinion, the Plaintiff was a passenger in a vehicle being operated by the Defendant when the vehicle was struck by a tree located on a property next to the road. The Plaintiff sued the Defendant driver, the Defendant’s business, and the owner of the property where the tree was located, among other parties.

There was conflicting evidence about how the accident occurred.

The Defendant driver maintained that the accident happened as he was driving around a curve in the road and oncoming traffic crossed the centerline, forcing the Defendant driver to move his right in his own lane. The Defendant driver denied that his vehicle left the roadway.

However, in his 911 call and alleged statement to ambulance crew members, the Defendant driver allegedly stated that he had run off the road and that a tree had come through the door injuring the Plaintiff. There was also conflicting testimony as to whether there were any tire tracks off the roadway.

The Defendant property owner had testified that the trees on his property had been trimmed to ensure that they did not protrude over the road. Also, a local police officer who routinely patrolled the area confirmed that he did not observe any parts of a tree protruding over the road.

Additionally, the Plaintiff testified that the oncoming vehicle had moved back into its own lane of travel before encountering the Defendant’s vehicle and that the Defendant driver had approximately ten (10) seconds to respond after first seeing the other vehicle.

The court found that issues of fact, including on the issue of sudden emergency doctrine, required the court to deny the Defendant driver’s Motion for Summary Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).

Source of image:  Photo by David Lin from www.pexels.com.

ARTICLE: Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes

This article of mine was recently published in the Pennsylvania Law Weekly on January 19, 2023 and is republished here with permission.

Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes


By Daniel E. Cummins | January 19, 2023


For over the past five years or so, the plaintiffs bar has realized one important victory after another at the Pennsylvania Supreme Court level in terms of plaintiffs-friendly precedent and rule changes.

Like a well-oiled machine, after putting forth a sustained and organized effort to help to secure their favored candidates an election to the Pennsylvania Supreme Court, the plaintiffs bar has followed up by litigating issues important to plaintiffs up the appellate ladder to what has become the promised land for them in terms of repeated victories on issues important to injured parties.

With the pendulum of judicial thought at the Pennsylvania Supreme Court level having swung so far in the plaintiffs favor, it appears that the sky’s the limit for the plaintiffs bar to continue to alter the legal landscape in Pennsylvania for the benefit of injured parties for the foreseeable future, all of which is much to the dismay and chagrin of members of the defense bar.

Repeatedly Overturning Decades-Long Precedent

While the defense bar has realized some recent victories at the Pennsylvania Supreme Court level in terms of the overturning the scope of the long-arm jurisdiction statute, the limitation of discovery of peer review records in medical malpractice cases, and the limitation of attorney malpractice cases by the court’s adoption of the “occurrence” rule of liability, those victories have been blips on the radar as compared to the wealth of victories secured by plaintiffs. With this Pennsylvania Supreme Court and its judicial perspective, the plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court to overrule the long-followed and then 12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Under the prior Fagan decision there was essentially no liability on any claims against PennDOT relative to claims of negligence with respect to guide rails in state highway motor vehicle accident matters.

Ever since the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guide rail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident. This decision by the Pennsylvania Supreme Court kicked the door wide open for plaintiffs to again sue PennDOT in personal injury matters. While this decision is favorable for plaintiffs, the concern is that it will also continue to contribute to the ongoing increases of taxes and toll rates in order to pay for these additional personal injury lawsuits and awards against PennDOT.

In another reversal from a few years ago in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Pennsylvania Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In Balentine, the plaintiff’s decedent was working as a contractor on a water system project just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. A third car struck the parked, stationary government inspector’s car and propelled that stationary vehicle into the decedent, resulting in fatal injuries.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. With this ruling in favor of the plaintiff, the Pennsylvania Supreme Court eradicated 30 years of precedent going the other way and thereby exposed governmental agencies to additional litigation and liability, the costs of which will likely be passed on to citizens in the form of higher taxes.

As another example, in 2019, the plaintiffs bar finally realized success at the Pennsylvania Supreme Court level in their sustained efforts to overturn the household exclusion found in automobile insurance policies. After 20 years of failed attempts to secure a decision finding that the exclusion was invalid and therefore unenforceable, the plaintiffs bar finally prevailed in convincing this Pennsylvania Supreme Court to issue a stunning decision to overturn that long-standing precedent in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019).

In an opinion with language that was seemingly hostile toward the insurance industry, the Pennsylvania Supreme Court did not limit its decision to the facts of the case before it, but rather, in a plaintiffs-friendly fashion attempted to set up its decision in Gallagher v. GEICO as entirely eradicating the household exclusion across the board.

While federal court judges addressing the validity of the household exclusion ever since Gallagher have largely followed the Pennsylvania Supreme Court’s mandate in favor of plaintiffs in this regard, some state court appellate and trial judges have limited the Gallagher v. GEICO decision to its facts and have noted that the household exclusion still remains valid and enforceable in certain circumstances.

Yet, the Pennsylvania Supreme Court has since reiterated its plaintiffs-friendly stance in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it is invalid and, therefore, unenforceable. Whether other state and federal courts will follow this effort at the complete eradication of the exclusion or will, again, limit the Pennsylvania Supreme Court’s decision(s) to its facts, remains to be seen.

Sudden Emergency Doctrine

The plaintiffs bar rolled on to other areas of the law with additional successes at the Supreme Court level. With the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs convinced the Pennsylvania Supreme Court to somewhat limit the application of the sudden emergency rule in a manner that favors plaintiffs.

Under the long-standing sudden emergency doctrine, a defendant motorist is required to use an honest judgment in response to being faced with a sudden emergency on the roadway, such as a pedestrian negligently darting out from an area of safety and running out into the path of an oncoming vehicle without looking.

In Graham, which involved a pedestrian who was struck by the defendant motorist while the pedestrian was within a crosswalk, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine. The court stated that the evidence in the case failed to lay a foundation for the provision of that instruction to the jury.

In light of this plaintiffs-favorable decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly in the case of a pedestrian who was within a crosswalk at the time of an incident. As such, with this decision, the plaintiffs bar has been successful in securing a limitation of the application of this defense in motor vehicle accident matters.

Forum Shopping by Plaintiffs Permitted

In addition to limiting the defenses of tortfeasors and expanding the types of claims plaintiffs may seek a monetary recovery for, the plaintiffs bar has also been successful in convincing the Pennsylvania Supreme Court to repeatedly expand opportunities for plaintiffs to shop for the best forum to obtain the most liberal recovery possible.

In the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the plaintiffs bar was successful in litigating the issue of proper venue in internet defamation cases and convinced the Pennsylvania Supreme Court to rule that internet-based defamation claims can be filed anywhere that the defamatory statements were viewed and understood as defamatory.

Since the internet is anywhere and everywhere, it appears that, under this ruling by the Pennsylvania Supreme Court, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file in the most liberal courts in Pennsylvania, if desired.

As noted below, the Pennsylvania Supreme Court also supported the expansion of the plaintiffs’ ability to engage in forum shopping sprees in medical malpractice cases.

Plaintiffs-Friendly Rule Changes

In addition to securing the above-referenced plaintiffs-friendly decision on venue from the Pennsylvania Supreme Court, the plaintiffs bar has also had great success in convincing the Court to issue changes to long-standing Pennsylvania Rules of Civil Procedure on venue.

Under a Pennsylvania Supreme Court Order recently issued on Aug. 25, 2022, the court approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, that went into effect on Jan. 1, plaintiffs will now be able to go on potentially lucrative forum shopping trips in terms of where they file their medical malpractice lawsuits.

These amendments undo a 20 year old Rule of Civil Procedure. Under the old rule, plaintiffs were required in medical malpractice cases to sue their medical providers in the counties where the treatment was completed.

Under the new rules, plaintiffs will be allowed to sue providers in any of the counties where the providers regularly do business or have significant contacts. With medical systems advertising on television and on the internet all across the commonwealth of Pennsylvania and also having satellite offices in many areas, the Pennsylvania Supreme Court has opened the door for Plaintiffs to choose to file their medical malpractice claims in courts that are considered to have the most liberal, plaintiffs-friendly jurors.

Commentators have noted a concern that this Rule change may result in higher insurance premiums for medical providers, which may lead or force some doctors to leave the commonwealth to practice medicine elsewhere. There is also a concern that medical provider defendants who may not be responsible will be added to lawsuits for the sole purpose of triggering jurisdiction in a liberal venue. Another concern is that the Philadelphia County and Allegheny County Courts of Common Pleas will now again face a deluge of medical malpractice cases involving treatment that was performed elsewhere.

The Supreme Court of Pennsylvania has also recently approved other plaintiffs-friendly changes to the Pennsylvania Rules of Civil Procedure. In an order that went into effect on July 1, 2022, the Pennsylvania Supreme Court put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings.

Under the new Rule 1311.1, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” While different judicial districts have differing jurisdictional limits for arbitration, most counties have their limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

The Sky’s the Limit

With this Pennsylvania Supreme Court, it appears that the sky’s the limit for the plaintiffs bar to try to effectuate additional changes in Pennsylvania law for the benefit of plaintiffs.

What other decades long-standing precedent and rules that may be changed by the Pennsylvania Supreme Court for the benefit of plaintiffs remains to be seen. The plaintiffs bar has raised challenges to the Fair Share Act in terms of whether it should be applied to innocent plaintiffs who bear no contributory negligence with regards to the happening of an accident. The plaintiffs bar also has their sights set on overturning the regular use exclusion found in motor vehicle policies and that issue is currently pending before the Pennsylvania Supreme Court.

Relative to the current makeup and judicial perspective of the Pennsylvania Supreme Court, there certainly has never been a better time to be a plaintiff or a plaintiffs lawyer in Pennsylvania. Only time will tell what additional expansions of the avenues of recovery for injured parties and what limitations on defenses the plaintiffs bar will be able to accomplish and realize at the Supreme Court level while the pendulum remains so far over on their side of the bar.


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

THE 2021 TORT TALK TOP TEN

10.  Regular Use Exclusion

In a case of appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021), the Pennsylvania Superior Court affirmed a Northampton County Common Pleas Court decision in a declaratory judgment action and held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the Motor Vehicle Financial Responsibility Law (MVFRL). This issue appears to be on its way up to the Pennsylvania Supreme Court.

Click HERE to view the Tort Talk Blog post on this case.


9.  Attorney Malpractice

In the case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 20, 2020), the Pennsylvania Supreme Court adopted the "occurrence rule" for attorney malpractice cases and held that the statute of limitations in a legal malpractice claim begins to run when the alleged malpractice occurs.

The court rejected the "continuous representation rule" which holds that the statute of limitations in a legal malpractice claim would begin to run when the legal representation was concluded.

Please click HERE to view the Tort Talk Blog post on this case.



8.   COVID-19 Business Interruption Coverage Cases

Over the past year, many state and federal trial court judges grappled with coverage actions concerning whether the COVID-19 related governmental orders requiring businesses to close their doors supported Business Interruption coverage claims. There were mixed results, but a majority of the court decisions favored the insurance carriers with findings that the coverage provisions were not implicated and/or that exclusionary language within the policies were implicated.

To review Tort Talk Blog posts on these types of cases, please click HERE.



7.  Sudden Emergency Doctrine Still Valid in PA

In the case of Graham v. Check, 243 A.3d 153 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court reaffirmed the continuing validity of the sudden emergency doctrine for motor vehicle accident matters in Pennsylvania. However, the Supreme Court cautioned that the application should not be automatic and depends on appropriate facts being present for the doctrine to apply.

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

My Pennsylvania Law Weekly article analyzing the impact of the Graham v. Check decision can be viewed HERE.



6.  Medical Malpractice

In the case of Leadbitter v. Keystone Anesthesia Consultants, 256 A.3d 1164 (Pa. 2021), much to the surprise of many, the Pennsylvania Supreme Court issued a defense-favorable decision and held that Peer review "proceedings" or "records" were not discoverable under the Pennsylvania Peer Review Protection Act.

To view the Tort Talk Blog post on this case, please click this LINK.



5.   Internet-Based Defamation Claims Can Be Filed Anywhere

In the case of Fox v. Smith, No. 39 EAP 2019 (Pa. Nov. 17, 2021) (Op. by Saylor, J.), the Pennsylvania Supreme Court addressed whether the standards governing the selection of an appropriate venue of litigating libel or defamation claims grounded on newspaper publications should also be applied to causes of action premised upon internet-based publications.

The Court ultimately ruled that internet-based defamation claims can be filed anywhere the defamatory statements were viewed and understood as defamatory.

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



4.  Allegations of Recklessness

Over the past year, trial court judges across Pennsylvania, and some even in the same county, have split over the types of factual allegations that may or may not be necessary to support an allegation that a tortfeasor defendant acted recklessly during the course of a personal injury-causing event.

Some more liberal trial court judges allow for allegations of recklessness to be pled with reckless abandon and allow such allegations in any case whatsoever, regardless of the underlying facts involved. These judges rely upon dicta from one appellate court decision along with a tortured reading of the law to conclude that, since an allegation of recklessness is an allegation as to a defendant's state of mind and since allegations as to a party's state of mind may be generally pled under Pa.R.C.P. 1019, then it must be that allegations of recklessness may also be generally pled.

A majority of other trial court judges follow the long-standing maxim espoused in numerous Pennsylvania appellate court decisions that Pennsylvania is a fact-pleading state and that, therefore, allegations of outrageous facts are necessary to state a claim of recklessness to thereby potentially open the door to a punitive damages claim.

Look for my article in the upcoming January edition of the Pennsylvania Bar Quarterly outlining both sides of this issue and noting that further appellate guidance is needed to put the issue to rest.

To view at least 63 Tort Talk Blog posts on cases involving allegations of recklessness, please click this LINK.



3.  Household Exclusion Finally Dead?

In 2020 and 2021, there remained questions as to whether the Household Exclusion was still a valid exclusion after the Pennsylvania Supreme Court's decision in Gallagher v. GEICO.

Then in the 2021 case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court again answered questions on issues surrounding inter-policy stacking and the household exclusion.

After finding that the stacking waiver form at issue in this case was invalid as applied to inter-policy stacking claims, the Pennsylvania Supreme Court went on to rule that the policy’s household exclusion was also unenforceable absent a valid written waiver of inter-policy stacking, because the language of that exclusion was incompatible with stacking. In this regard, the court cited to its previous decision in the case of Craley v. State Farm Fire and Casualty, 895 A.2d 530 (Pa. 2006).

The court in Donovan also reiterated its previous decision in Gallagher v. GEICO and again ruled that the household exclusion provision is invalid since it acted as a de facto waiver of stacking, when Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.



2.  Spencer v. Johnson (The Fair Share Act)

The Fair Share Act was passed ten years ago in 2011 and changed the law of Pennsylvania to hold that each Defendant should only have to pay its own percentage of responsibility for causing an injury (unless a Defendant is found to be 60% or more responsible, in which case that Defendant could be made to pay the entire verdict).

For the last decade, there has not been any significant dispute or litigation over the application of that Act.

Then comes along the decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), in which the Pennsylvania Superior Court raised the question of whether the Fair Share Act applies to those cases where there is an innocent Plaintiff who bears no percentage of responsibility for the happening of the accident.

Here is a LINK to the Tort Talk post on this case.

Here is a LINK to my Pennsylvania Law Weekly article on this case.

The question has become whether, under the wording of the Fair Share Act, should an innocent Plaintiff be allowed to argue that the Fair Share Act does not apply such that he or she should therefore be able to recover the entire verdict against any Defendant, even if that Defendant is found to only be 1% responsible.

The analysis of this question in Spencer v. Johnson appears to be dicta and the result of an Advisory Opinion (only 2 of 3 Superior Court Judges on the panel participated in the decision) and, as such, this important question appears to remain to be finally answered by another appellate court.  But the tone has been set.



1.  The Continuing Impact of the COVID-19 Pandemic on the court system and practice of law

While the hope in 2021 was that the COVID-19 Pandemic would wane, it unfortunately did not. As such, Zoom depositions and court arguments remained the norm and trials proceeded under social distancing safety protocols.

Court officials at all levels have begun to talk about amending the various Rules of Court to address the ongoing use of Advanced Communication Technology (ACT) going forward and even after the Pandemic ends.







Trends to Watch in 2022:

-Continuing use of Advanced Communication Technology to keep civil litigation matters moving forward.

-Continuing disputes over the application of the Fair Share Act in cases where there is an innocent Plaintiff (i.e., a guest passenger plaintiff, a plaintiff hit in a crosswalk, a plaintiff under anesthesia).

-Continuing split of authority over whether outrageous factual allegations are required to state a claim of recklessness in a personal injury Complaint.

-Continuing use of alternative dispute resolution services to resolve matters outside of the courtroom, including by way of Zoom Arbitrations and Zoom Mediations.

Bring Your Case To A Close in 2022

(570) 319-5899

dancummins@CumminsLaw.net

ARTICLE: Plaintiffs Have Another Banner Year in Civil Litigation, Part 1

The below article of mine was published by the Pennsylvania Law Weekly on December 9, 2021 and is republished here with permission.  Part II is forthcoming.

Plaintiffs Have Another Banner Year in Civil Litigation, Part 1

By Daniel E. Cummins | December 09, 2021

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo

Where There Is a Will, There Is a Way

The year 2021 proved to be another banner year for the plaintiffs bar in terms of securing  important civil litigation court decisions that favor plaintiffs’ causes, some of which overturned decades of precedent going the other way. The concerted, and admirable, effort of the plaintiffs bar in continually fighting their good fight and in banding together to support certain judicial candidates to ensure that they make it up onto the bench continues to pay off in spades and in settlements. In essence, as confirmed by the decisions reviewed in this two-part article, where there is a will, there is indeed a way.

This first part of the article will review important decisions and trends in the automobile insurance law arena over the past year, and the forthcoming second part of the article will review the notable decisions in the area of general civil litigation law.

Household Exclusion

Back in 2019, the plaintiffs bar finally prevailed, after decades of effort, in convincing the Pennsylvania Supreme Court to rule that the household exclusion, found in automobile insurance policies, was invalid and unenforceable. The Pennsylvania Supreme Court ruled in this fashion in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), and confirmed the shift of the pendulum toward plaintiff’s causes.

The Pennsylvania Supreme Court fashioned its decision in Gallagher v. GEICO as eradicating the household exclusion across the board.  While federal court judges addressing the validity of the household exclusion thereafter largely followed the Pennsylvania Supreme Court’s mandate, some state court appellate and trial judges limited the Gallagher v. GEICO decision to its facts and noted that the household exclusion remained valid and enforceable in certain circumstances.

This year, the Pennsylvania Supreme Court had an opportunity to revisit the household exclusion again in the case of Donovan v. State Farm Mutual Automobile Insurance, 2021 Pa. Lexis 3394 (Pa. Aug. 17, 2021). In Donovan, the Pennsylvania Supreme Court answered questions certified to it by the U.S. Court of Appeals for the Third Circuit on issues surrounding inter-policy stacking and the household exclusion.

After finding that the stacking waiver form at issue in this case was invalid as applied to inter-policy stacking claims, the Pennsylvania Supreme Court went on to rule that the policy’s household exclusion was also unenforceable absent a valid written waiver of inter-policy stacking, because the language of that exclusion was incompatible with stacking. In this regard, the court cited to its previous decision in the case of Craley v. State Farm Fire and Casualty, 895 A.2d 530 (Pa. 2006).

The court in Donovan also reiterated its previous decision in Gallagher v. GEICO and again ruled that the household exclusion provision is invalid since it acted as a de facto waiver of stacking, when Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.

It remains to be seen whether the federal courts and the lower state courts will now all fall in line and find that the household exclusion is invalid regardless of the facts presented.

Regular Use Exclusion

In a case of appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021), the Pennsylvania Superior Court affirmed a Northampton County Common Pleas Court decision in a declaratory judgment action and held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the motor vehicle financial responsibility law (MVFRL).

The regular use exclusion typically holds that a carrier need not provide UM or UIM coverage to a person who, unbeknownst to the carrier, is driving a vehicle that is regularly available for the use of that person and which vehicle is not covered under that carrier’s policy.

In this Rush case, a police officer was injured while driving a police car that was regularly available for his use. After securing a recovery against the drivers of the other vehicles in the accident, the police officer turned to his own personal automobile policies for UIM coverage.

Erie responded by asserting that the Regular Use Exclusion precluded coverage under the Erie Insurance policies.

In ruling that the regular use exclusion was unenforceable, the Superior Court found that the regular use exclusion impermissibly limits the scope of UIM coverage required by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own. Interestingly, this affirmance was based upon a different reasoning than the trial court that had instead relied upon the improper de facto waiver analysis set forth in the Gallagher v. GEICO household exclusion decision noted above.

Sudden Emergency Doctrine

In the case of Graham v. Check, 243 A.3d 153 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court favored another plaintiff’s viewpoint when it addressed the standards for when the sudden emergency defense should be applied in a motor vehicle accident case.

In the majority opinion, it was reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care, the doctrine should not be applied or included in the instructions to the jury.

The court then turned to the application of the sudden emergency doctrine in cases where a plaintiff was crossing the street within a crosswalk and is hit by an approaching motorist. In this regard, the court acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.”  Accordingly, the court found that the application of the sudden emergency doctrine is to be “counterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections.

In this pedestrian versus motor vehicle accident case of Graham v. Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as the evidence in the case failed to lay a foundation for the provision of that instruction to the jury. 

In light of this decision by the Pennsylvania Supreme Court it is likely that the application of the sudden emergency doctrine will no longer be automatic in dart-out pedestrian cases, particularly in the case of a pedestrian who is within a crosswalk at the time of an incident.

Allegations of Recklessness

In recent years, there has been an increase in plaintiffs regularly pleading allegations of recklessness in personal injury cases, even in the absence of outrageous facts and circumstances.  

This has given rise to a split of authority among the trial court judges with regards to whether or not to grant preliminary objections asserted by civil litigation defendants to such claims. There are even some splits of authority on this issue within some of the same county courts.

One line of state court judges holds fast to the longstanding maxim that Pennsylvania is a fact-pleading state and that, therefore, claims of recklessness in personal injury matters must be supported by allegations of facts of an outrageous nature in order to be pursued. See Hilferding v. Zinn, No. 2020-SU-002187 (C.P. York Co. March 5, 2021 Flannelly, J.)  

These judges typically cite to the case of Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973), in support of their decisions. Research has revealed decisions from at least 18 different county courts of common pleas that have ruled that plaintiffs must support claims of recklessness with sufficient outrageous facts or risk having that claim dismissed. 

Another line of state court judges in at least 9 different county common pleas courts have gone the other way and have ruled that claims of recklessness can be pleaded with reckless abandon in any personal injury case whatsoever, regardless of the facts presented. See e.g. Clauss-Walton v. Gulbin, No. 20-CV-4860 (C.P. Lacka. Co. May 21, 2021 Nealon, J.); Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.).  

These judges allowing claims of recklessness in any case whatsoever rely upon the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).  In Archibald v. Kemble, the Superior Court noted in language that is arguably dicta, that a claim of recklessness on the part of a defendant amounts to an averment regarding the state of mind of a defendant at the time of an accident and that, under express provisions of Pa.R.C.P. 1019(b), such averments as to the state of mind of a party may be generally pleaded in a personal injury complaint.  

While the cases of Ammlung and Archibald have provided mixed signals from the appellate courts on this issue, in its most recent pronouncement, the Pennsylvania Superior Court, in the personal injury case of Valentino v. Philadelphia Triathlon, 150 A.3d 483, 488-489 (Pa. Super. 2016), affirmed a trial court’s sustaining of a defendant’s preliminary objections seeking to strike allegations of reckless conduct, outrageous acts and gross negligence in a case where the appellate court agreed that the facts pleaded in the underlying complaint were insufficient to support those types of claims.

Despite Valentino, this issue trended in 2021 and is expected to result in continued litigation in the years ahead until further appellate guidance is provided.

Advanced Communications Technology (ACT) Here to Stay

Over the past two years, the COVID-19 pandemic has also changed the face of civil litigation in Pennsylvania with the use of Advanced Communications Technology (ACT), such as Zoom, as the new normal. It appears that ACT is here to stay.

In fact, the Lackawanna County Common Pleas Court, through the efforts of Judge Terrence R. Nealon and the Lackawanna Bar Association civil rules committee, is poised to become the first county court to adopt a new local rule on the scope and parameters for continued use of ACT in that court. The new local rule has been written and awaits approval from higher on up in the Pennsylvania court system.

It remains to be seen if any amendments or additions will be made to the statewide Pennsylvania Rules of Civil Procedure regarding the extent to which ACT may continue to be used at all levels of the court system once the pandemic hopefully subsides.

Conclusion

As the above review of the highlights (and lowlights) from the past year in civil litigation shows, the pendulum has certainly swung in favor of the plaintiffs bar in terms of court decisions.  Plaintiff’s attorneys will likely continue to push their important issues up the appellate ladder in the hopes of continued success in these plaintiff-friendly times. On the defense side, in addition to continuing to litigate many of these important issues, the defense bar may be wise to also increase efforts to effectuate changes in the law through the Legislature as a means to counter the adverse rulings in the court system.

In Part 2 of this article, set to appear in next week’s edition of the Pennsylvania Law Weekly, the top cases over the past year in the general civil litigation context will be reviewed.

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

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

ARTICLE: The Defense of the Sudden Emergency Doctrine in Pa.

This article of mine was published on February 4, 2021 by the Pennsylvania Law Weekly and is republished here with permission.


The Defense of the Sudden Emergency Doctrine in Pa.


By Daniel E. Cummins | February 04, 2021

Daniel E. Cummins of Cummins Law.

In its recent decision in the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court provided guidance for when a jury should be instructed on the still viable sudden emergency doctrine in a motor vehicle accident case.

While some commentators darted out in front of the decision to sound the death knell for the doctrine in Pennsylvania, a fair reading of the Graham decision shows otherwise.

Validity of the Doctrine Reaffirmed

In his majority opinion in Graham v. Check, Justice David Wecht upheld the continuing validity of the sudden emergency doctrine by reaffirming that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.”

Wecht confirmed that when the evidence in a case suggests that a motorist was faced with a sudden emergency, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.”

While further reviewing the continuing validity of the doctrine over multiple pages of commentary in his majority opinion, Wecht also reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care by the motorist, then the doctrine should not be applied and instructed to the jury.

The sudden emergency doctrine has been on the books in Pennsylvania and applied in a wide variety of negligence cases over at least the past 137 years. See Brown v. French, 104 Pa. 604, 604 (1884) (Sudden emergency doctrine applied to the case of a captain of a steamer on the Ohio river suddenly faced with a person attempting to cross the river on a skiff immediately before the fatal impact). Now, in its decision handed down at the end of 2020, the majority in the Graham v. Check decision leaves no question that the sudden emergency doctrine remains valid law in Pennsylvania to be applied and argued in future cases where supported by the facts presented.

Court Limits Application of Doctrine in Crosswalk Cases

Although the court reaffirmed the sudden emergency doctrine as a valid topic of jury instruction in motor vehicle accident cases where a driver is faced with a sudden and unexpected emergency immediately prior to an accident, in Graham, the application of the doctrine was limited under the very specific circumstances at issue in that case, that being where a pedestrian plaintiff, wearing dark clothing under dark conditions, suddenly darts out in front of a motorist while the plaintiff is within a crosswalk.

In this regard, Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” In his opinion, Wecht reiterated that, under the specific facts at issue in this case, the application of the sudden emergency doctrine is “counterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections.

In this pedestrian versus motor vehicle accident case of Graham v. Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view for the motorist, and a lack of evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact all still did not serve to lay a proper foundation for the provision of that instruction to the jury due to the fact that a motorist has a heightened duty under Pennsylvania law to be on the lookout for pedestrians whenever approaching a crosswalk at an intersection.

 
It’s a Doctrine Not a Defense

As noted, some commentators, and even two dissenting justices in the Graham v. Check decision have attempted to portray the majority decision in Graham as holding that the sudden emergency doctrine is no longer a viable defense in Pennsylvania. A fair and proper reading of the majority’s opinion does not support this forced portrayal.

Granted, Wecht noted in his majority opinion in Graham that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and the majority finds it ill-advised to use the word ‘defense’ in sudden emergency jury instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.”

Wecht went on to explain that “properly understood, the doctrine of sudden emergency does not offer a defense,” but rather should be viewed as “one among the panoply of surrounding circumstances that a jury must take into account in assessing the reasonableness of each party’s actions or omissions” in a given accident. In other words, in terms of simple semantics and correct terminology, the Pennsylvania Supreme Court has held that the sudden emergency doctrine should not be called a “defense,” but still remains a valid doctrine that a trial judge can instruct a jury upon in a negligence case where the facts lay a foundation for the provision of the instruction.

As such, after Graham, the courts below and the litigating attorneys should consider the application of the sudden emergency doctrine to be more narrow in the context of a case of a pedestrian struck while in a crosswalk given the motorist’s heightened duty of care in such situations. Otherwise, judges and attorneys remain free, as they have for nearly the past 140 years in Pennsylvania, to continue to apply, instruct upon and/or argue the law of sudden emergency doctrine in terms of a defense against a negligence action—just don’t call it a “defense” anymore.

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