No Respondeat Superior Liability For Criminal Acts of Employees

In its recent decision in the case of Spitsin v. WGM Transportation, 2014 Pa.Super. 162 (Pa. Super. July 29, 2014 Ford Elliott, P.J.E., Lazarus, J., Wecht, J.) (Op. by Wecht, J.), the Pennsylvania Superior Court agreed that an employer was not liable for a cab driver’s assault of a non-paying passenger where the record revealed that the employee used excess and dangerous force in an effort to collect the fare.  

According to the Opinion, after a taxi ride, the Plaintiff attempted to flee and avoid paying a fare after a taxi ride when he was restrained by a bystander and then kicked and punched by the taxi driver.   The Plaintiff was transported to a nearby hospital where a diagnostic study revealed a hairline fracture of his jaw.  

The Plaintiff sued WGM Transportation, the employer of the taxi driver, on a theory of respondeat superior. 

The employer filed Preliminary Objections arguing that an employer was not liable for an assault and battery by an employee upon another as such conduct was beyond the scope of the employment.  The employer also noted that the employee committed an act involving the use of force which was excessive and so dangerous as to leave the employer totally without responsibility.

The trial court sustained the Preliminary Objections of the employer and dismissed the Plaintiff’s respondeat superior claim.   The Superior Court affirmed it.

Judge David N. Wecht
Pennsylvania Superior Court

In his Superior Court Opinion, Judge David N. Wecht reiterated the law of the doctrine of respondeat superior that an employer may indeed be liable for the acts of its employees committed during the course of and within the scope of employment.   The court noted, however, that where an employee commits an act involving the use of force which was excessive and so dangerous as to be totally without responsibility or reason, the employer was not responsible under such circumstances.  

According to the record, a bystander had restrained the Plaintiff as he attempted to flee and there was nothing in the record indicating that the bystander’s restraint was insufficient to keep the Plaintiff at bay until the fare could be collected by the taxi driver or until the police could be summoned to take control.  

The court agreed that, when the taxi driver punched and kicked the Plaintiff while he was being held on the ground and unable to defend himself, the taxi driver departed from the scope of his employment in that there is no evidence that the employer instructed its taxi drivers to attack restrained and vulnerable passengers who refuse to pay their fares.  

The Superior Court ultimately ruled that the trial court was correct in finding, as a matter of law, that the Plaintiff had failed to state a claim upon which relief could be granted for vicarious liability against the employer under the circumstances presented.

Anyone wishing to read this Opinion in the Spitsin case may click this LINK  

It is noted that Pennsylvania Superior Court Judge David N. Wecht will be a featured presenter at the upcoming Tort Talk Expo 2014 set to take place on September 26, 2014 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania. 


Click HERE to view the Agenda for the CLE seminar and, if interested in attending, please click HERE to Register online, or contact me at dancummins@cmcast.net.

 

Are You A Fan of Tort Talk?

Are you a fan of Tort Talk?  Need CLE credits?  Looking for a laid back way to kill a Friday afternoon and ease into a nice September, Fall weekend?

Hoping you might consider Registering for the Tort Talk Expo 2014 CLE Seminar and Cocktail Reception set for Friday, September 26, 2014 at the new Mohegan Sun Casino Hotel.

In addition to earning 3 Substantive Credits and 1 Ethics Credit, the Expo will present an opportunities to network with fellow members of the bar, claims professionals, and members of the local judiciary, as well as visit sponsor tables of a variety of companies offering litigation services (and pick up their giveaways).

As in year's past, there will also be door prizes along with raffle prizes with chances to win, TVs, tickets to sporting events, gift cards, an overnight stay at the Mohegan Sun Casino Hotel, and other enticing items.

Following the seminar will be a Cocktail Reception to kick off your weekend.  Thereafter, if desired, the restaurant, gaming, and entertainment choices at the Mohegan Sun casino can be enjoyed.

Click this LINK to Register online or contact Dan Cummins at dancummins@comcast.net or 570-346-0745 for more information.

If you are coming in from out of town, or just want an overnight out, a book of rooms have been set aside for Tort Talk attendees at a special rate.  Click HERE to book a room at the Mohegan Sun Casino Hotel for the Tort Talk Expo 2014.

The Mohegan Sun Casino and Hotel

A Supreme Victory for Residential Homebuilders

In its August 18, 2014 decision in the case of Conway v. Cutler, No. 80 MAP 2013 (Pa. Aug. 18, 2014)(Op. by McCaffery, J.), the Pennsylvania Supreme Court ruled that a subsequent purchaser of residential real estate cannot pursue a contractual claim for implied warranty of habitability as that claim is limited to original homeowners who had a direct contractual relationship with the builder/vendor. 

According to some who practice construction litigation, this case is an enormous victory for residential homebuilders in Pennsylvania who have been subjected to litigation involving water intrusion into stucco clad homes.  In the majority of these cases, the negligence claim is extinguished pursuant to the gist of the action doctrine and there is no express warranty claim for a subsequent purchaser.  Without the implied warranty claim, these remote purchasers are left with no recourse.

I send thanks to Attorney Joe Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention hot off the presses along with explaining the impact of the same in construction litigation matters.
 

Anyone wishing to review this case may click this LINK.

Another Trial Court Allows a Plaintiff To Consolidate Entirely Separate Accident Claims

In the case of Swalinski v. Forsythe, 2012-SU-1529-69 (York Co. Aug. 5, 2014), the York County Court of Common Pleas followed the prior decision of Judge Wettick in Jackson v. Drew and allowed a Plaintiff to pursue personal injury claims arising out of two separate motor vehicle accidents in a consolidated fashion.

The accidents involved in Swalinski occurred in the same county about two weeks apart and involved the similar injuries.   The Swalinski court granted a Plaintiff's motion to consolidate two cases involving the same injured Plaintiff against two different tortfeasors. 

Anyone wishing to view this Swalinski decision may click this LINK.

The prevailing Plaintiff's attorney in this matter was Abbie Trone, Esq., of the Harrisburg law firm of Schmidt Kramer.  I send thanks to Attorney Scott Cooper of the same firm for bringing this decision to my attention.


To view the Tort Talk blog post on Judge Wettick's decision on the same issue in the case of Jackson v. Drew along with a link to that case, please click HERE.


Source of image: www.click2curb.com

NOTE TO THOSE SIGNED UP FOR TORT TALK EXPO 2014: New Location for Tort Talk Expo At the Mohegan Sun Casino Hotel

For those of you who have registered for the Friday September 26th Tort Talk Expo 2014 CLE Seminar & Cocktail Reception, please note that the seminar will NOT be in the same downstairs area ballroom as in past years.


Rather, the Seminar will take place in a ballroom known as "THE CONVENTION CENTER" which is located within the NEW  MOHEGAN SUN HOTEL AREA which is adjacent to the casino.


Self-parking is available by turning right at the third Stop sign once you enter the casino complex.  You may also reach valet parking by continuing down that same road further on after you have made that right hand turn at the third Stop Sign.


Also, weather permitting, the Cocktail Reception following the Seminar will be held on an outdoor terrace complete with a fire pit.  If the weather does not permit an outside Cocktail Reception, the Reception will take place in Breakers, as usual.


Seats still remain -- please click HERE to register online or contact me at dancummins@comcast.net or 570-346-0745.

PLW Article Reports Limited Tort Lawsuits Are Down

Here is a LINK to a recent Pennsylvania Law Weekly article of note by reporter Max Mitchell on the recent trends relative to limited tort auto accident lawsuits in Pennsylvania.  As you will see, Mr. Mitchell contacted me as part of the story for my recent experiences in this area of the law.

If you are not able to access the article via the Link, please let me know (dancummins@comcast.net) and I will email you a copy.

Third Circuit Court of Appeals Tackles Sacket Waiver of Stacking Issue

In its recent decision in the case of Seiple v. Progressive Northern Ins. Co., No. 13-3213 (3d Cir. June 12, 2014 Fisher, Van Antwerpen, and Tashima, J.)(Op. by Fisher, J.), the Third Circuit Court of Appeals addressed a waiver of stacking clause case under the Sackett anaylsis. 

Ultimately, the dismissal of the claims for stacking benefits by the lower court was affirmed despite the lack of a waiver in a case where the insured signed a waiver of stacking and the vehicle was added in this matter under an after-acquired vehicle endorsement.  

Anyone wishing to try to wrap their head around this obtuse issue may read the Seiple opinion HERE.

 

Source:  “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (July 21, 2014).