Standards for Damages in a Civil Trespass Action Reviewed by Judge Nealon of Lackawanna County

In the case of Huffsmith v. PPL Electric Utilities Corp., No. 11-CV-1012 (C.P. Lacka. Co. Nov. 3, 2018 Nealon, J.), the court addressed the appropriate standard for the assessment of damages in a trespass action.  

This case arose out of a trespass action filed by the Plaintiff against various Defendants seeking to recover damages for the allegedly intentional removal of fully-grown evergreen trees along the Plaintiffs’ property.   In this decision, the court addressed various Motions In Limine filed by the Defendant, PPL, which motions were joined in by the certain other Defendants as well.

In his Opinion, Judge Nealon reaffirmed the rule of law in Pennsylvania that a person is subject to liability for trespass on land in accordance with the provisions of the Restate (Second) of Torts §158.

Under that Restatement (Second) of Torts §158, a party is subject to liability to another for trespass if that party intentionally enters another’s land or causes a thing or a third person to do so.  

The court also noted that a person who authorizes or directs another to trespass upon another person’s land is also liable himself or herself as a trespasser to the extent if the trespass was committed directly by the person directing the activity.   Judge Nealon noted that this rule of law applies even if the authority or direction is given to one who is an independent contractor.   

Based upon the allegations of the Plaintiff that the subcontractor intentionally entered their land and unlawfully removed trees at the direction of PPL, the court found that liability for trespass may also be imposed upon PPL under the circumstances presented.   The court also rejected the contention of PPL that the Plaintiffs were barred from offering evidence of damages at trial as the Plaintiff’s never produced an expert report to document their damages.   The Plaintiffs countered with an argument that all landowners are competent to testify as to the value of their property.

In ruling on this issue, Judge Nealon noted that the proper measure of damages in trespass actions seeking to recover damages to injuries for land is well settled.   Under this settled rule of law, if the land is repairable, the measure of damage is the lesser of: (1) the cost of repair, or (2) the market value of the damage property (before it suffered the damage, of course).  

If the land is not repairable, the measure of damages is the decline in market value as a result of the harm.  

In this Huffsmith case, the trees removed were at least 70 feet tall and that it would take several decades before newly planted trees could become full grown to that height.   Given that the Plaintiffs were unable to find comparable affordable replacement for the twelve (12) trees that were removed that were 60-70 feet in height, the court found that the claimed damage to the Plaintiffs’ property by the removal of the trees was irreparable and that the proper measure of damages would be the decline in the market value as a result of the harm.   Judge Nealon additionally ordered that the Plaintiffs would be allowed to offer their lay opinions at trial as to the decline in the value of their property that was allegedly caused by the removal of the trees.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that any objection to that testimony by the Defendants would relate to the weight of that testimony rather than its competency or admissibility.  

On another issue, the court also ruled that, under Pennsylvania law, a tortfeasor’s actions in intentionally removing another party’s trees has been deemed sufficient to warrant the imposition of punitive damages in a trespass case.   Moreover, in this matter, the Plaintiffs allege that PPL directed the removal of their trees in retaliation for the Plaintiffs’ earlier objections to a PPL project, thereby arguably evidencing a state of mind to support a claim for punitive damages. 

Therefore, based upon the record before the court, Judge Nealon allowed the Plaintiffs’ punitive damages claims to proceed.  

This decision can be viewed online at this LINK.

Summary Judgment Denied In Lackawanna County Premises Liability Case

In his recent Opinion in the case of Gunsior v. K Investments, et.al., No. 2011-CV-4742 (C.P. Lacka. Co. May 25, 2016 Minora, S.J.), Lackawanna County Senior Judge Carmen D. Minora addressed a summary judgment motion filed by Defendant Quaker Steak and Lube restaurant in a slip and fall matter.  

Defendant Quaker Steak first asserted that it was entitled to summary judgement in that the injured Plaintiff, initially a business invitee, should be legally determined to be a trespasser after improperly exiting premises over a guardrail and through landscaping.   The Defendant asserted that, as such conduct was not authorized, the only duty owed to the alleged Plaintiff was that the landowner avoid willful or wanton misconduct towards alleged trespassers.    

After reviewing premises liability law regarding the status of the injured party plaintiffs (trespasser, licensee, invitee) and the duty of care owed to different types of plaintiffs, Judge Minora noted that, generally speaking, the determination of whether or not a person is a trespasser, licensee, or a business invitee, is one of fact typically left for a jury’s determination.   The court found that issues of fact in this regard precluded the court from entering summary judgment.  

As a second basis for its Motion for Summary Judgment, Quaker Steak asserted that the Plaintiff chose a route to the parking lot which was unsafe as opposed to the safer alternative route that the Plaintiff had previously used to enter the premises earlier.   In this regard, Quaker Steak asserted the Plaintiff’s comparative negligence as a result of this choice of route barred the Plaintiff recovery.  

The court likewise found that issues of fact prevented it from entering summary judgment in this regard. 

Anyone wishing to review this decision may click this LINK.

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

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

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

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

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



Judge Jennifer Harlacher Sibum
Monroe County

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

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

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

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

Premises Liability Standard Towards Trespassers Reaffirmed by Pennsylvania Superior Court

In its recent "non-precedential" decision in the case of Fisher v. Mallard Contracting Co., Inc., No. 2249 MDA 2012 (Pa.Super. Nov. 25, 2013 Mundy, Olson, Strassburger, J.) (mem.op. by Strassburger)(Mundy, J., dissenting), the Pennsylvania Superior Court affirmed a trial court's granting of summary judgment in favor of a defendant landowner and lessee and against a trespasser in a premises liability case.

In Fisher, the plaintiff was allegedly trespassing on the defendants' land while riding an ATV.  The plaintiff rode the ATV over a berm and into a mining pit.

The Court reiterated the rule of law in Pennsylvania that a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct.

The Superior Court in Fisher rejected the plaintiff's argument that, because they were foreseeable trespassers, that an ordinary negligence standard should have been applied.

The trial court in Fisher had ruled that the ordinary negligence standard applies when dangerous activity is being carried out on the land and not when, as here, the injuries were due to a dangerous condition existing on the land.

The court also  noted that, in any event, with respect to foreseeable trespassers, landowners and possessors of land are only liable for injuries sustained by the trespasser if the injured party establishes that the defendant had acted willfully or with wanton misconduct.

Despite plaintiffs' production of a mining expert opinion that the landowner defendants failed to correct hazardous conditions created by lack of guard rails or berms, the Superior Court in Fisher found that the plaintiffs encountered a mining pit that was generally made inaccessible to the public and was an obvious danger to anyone.

The appellate court found no evidence that the landowner and mining operator recklessly disregarded a risk to trespassers such that there was a willingness to inflict injury.

Anyone wishing to review the Majority Opinion in Fisher may click HERE.  Judge Mundy's Dissenting Opinion can be viewed HERE.