Assumption of Risk Found to Bar Trip and Fall Plaintiff's Recovery

In the case of Sycalik v. Hoover, No. 2016-1227-CD (C.P. Clearfield Co. April 16, 2018 Ammerman, P.J.), the court granted summary judgments filed by the Defendants in a trip and fall case after finding that the Plaintiff had voluntarily assumed the risk of her own injuries.  

According to the Opinion, the Plaintiff tripped and fell near the bottom of the steps to the outside portion of the property.   There was no dispute in the record that the bottom portion of the steps to the property, along with the berm at the bottom and adjacent to the road, were damaged.  

However, the record also established that the Plaintiff was very familiar with the premises having lived there for many years in the past and given that her father currently resided in the home for the past ten (10) years such that the Plaintiff visited the home “thousands” of times since her childhood. The court noted that this meant that she had ascended and descended the front steps thousands of times as well as the steps were the only entrance/exit from the home.  

As such, the record confirmed that the Plaintiff knew that the bottom step was damaged and problematic and that the Plaintiff had discussed the damaged step with the persons who lived on the premises.  It was also noted that the Plaintiff confirmed at her deposition that she had a habit of stepping to the left of the last damaged step, onto a grassy slope, in order to avoid the step.  

According to the Opinion, on the date of the Plaintiff’s injury, the Plaintiff had stepped to the left as usual, but missed the spot where she would usually step and instead caught her left foot on the corner of the last step, as a result of which she was caused to fall.  

Turning to the law, the court referred to the §342 of the Restatement (Second) of Torts which covers the liability of a possessor of land towards a licensee and confirms that liability applies if the possessor of land knew of the condition and realized that it involved an unreasonable risk of harm that is likely to be undiscoverable and fails to make the condition safe or provide adequate warning. 

The Restatement also indicates that, in order for liability to apply, it must be established that the licensee did not know or have reason to know of the condition and the risk involved.  

Relying on the case of Carrender v. Fitterer, 469 A.2d 120, 126 (Pa. 1983), the court in Sycalik applied the assumption of risk doctrine to bar the Plaintiff’s recovery.  

The court also rejected the Plaintiff’s assertion that the assumption of risk cases were distinguishable because the Plaintiff had no alternative route.  

The Sycalik court additionally noted that Pennsylvania law also establishes that, when a Plaintiff voluntarily chooses to walk upon an area not intended to be traversed, such as a grassy slope, the Plaintiff has not stated a valid cause of action.   By way of an example, the court cited to the case of Gilligan v. Villanova University, 584 A.2d 1005, 1008 (Pa. Super. 1991), in which judgment was entered against a Plaintiff who fell when the Plaintiff chose to walk over a grassy area instead of the nearby sidewalk..   

Given that there were no genuine issues of material fact and given that the court found that the Plaintiff had assumed the risk of her injury, summary judgment was granted. in this Sycalik case. 

 

Anyone wishing to read this decision, may click this LINK.

I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch for bringing this case to my attention.

TORT TALK IS 9 YEARS OLD TODAY

Today the Tort Talk Blog turns 9 years old.  I thank you for reading the blog and also thank all those who have sent me cases or tips on cases and trends--it is all greatly appreciated.

 

 

 

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To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

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ARTICLE: OUT OF CONTROL: Self-Driving Vehicles Will Change the Insurance and Litigation Industries

In an effort to position myself, Daniel E. Cummins, Esquire, and my law firm, Foley, Comerford & Cummins, and I as a go-to choice for the defense of auto accident and products liability matters involving Self-Driving Vehicles (SDVs) in Pennsylvania, I have continually updated my research on the technological advances as well as the impending liability issues in this emerging area of technology and law.

Part of that continuing research was utilized to put together an article of mine which has been published in the May/June 2018 edition of the Pennsylvania Lawyer Magazine.

Here is a LINK to my article entitled "Out of Control: Self-Driving Vehicles Will Change the Insurance and Litigation Industries" for your easy reference.

Please do not hesitate to contact me regarding any issues you may wish to discuss pertaining to the rise of Self-Driving Vehicles and the liability and insurance issues attendant with the use of these vehicles.  I can be reached at dancummins@comcast.net or at 570-346-0745.

Please also let me know if you hear of any Pennsylvania court decisions involving SDVs in order that they may be publicized here on Tort Talk for the benefit of all Tort Talkers who read the blog.

My firm and I are also monitoring the issues surrounding accidents involving Uber or Lyft vehicles and the insurance issues surrounding those types of accidents.  Here is a LINK to a recent article I wrote on that topic with my associate attorney Steve Kopko.  We are available to review any issues with you in this regard as well.

Thanks for reading Tort Talk.

Court Upholds Carrier's Right to Deny Coverage For Material Misrepresentations After Fire Loss

In the Western District Federal Court case of American National Property and Casualty Co. v. Felix, No. 3:16-cv-147 (April 11, 2018 Gibson, J.), the court granted the carrier Defendant’s Motion for Summary Judgment as to all claims of bad faith asserted.

According to the Opinion, this case arose out of the carrier’s denial of the insured’s claim under a homeowner’s policy after the insured’s home was damaged by fire.  

Part of the issues raised in this matter included an allegation that the insured had submitted material misrepresentations to the carrier after the fire loss in that he, in part, asserted that diamond stud earrings and a Louis Vuitton purse were lost in the fire.  During the carrier’s investigation, the carrier consulted with the insured’s ex-fiancé who confirmed that she was in possession of the diamond stud earrings and the Louis Vuitton purse that the insured claimed had been lost in the fire.  

After securing a legal opinion on whether the policy could be voided due to an alleged material misrepresentation by the insured, the carrier decided to deny the claim and to file a lawsuit against the insured for a Declaratory Judgment to seek judicial confirmation that the carrier was not required to provide coverage to the insured based upon alleged material misrepresentations.   The carrier also included a claim against the insured for civil insurance fraud in the Complaint.  

The insured responded by filing an Answer and Counterclaims for breach of contract and statutory bad faith. 

The case later came before the court on cross-Motions for Summary Judgment.  

After reviewing the current status of Pennsylvania law pertaining to Pennsylvania’s Bad Faith Statute and applying the same to the record before it, the court granted the carrier’s motion and denied the insured’s motion.  

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

I send thanks to Attorney Joseph Hudock of Summers, McDonnell, Hudock, Guthrie & Rauch, along with Attorneys Richard McMonigle and Brian Shay of Post & Schell for bringing this case to my attention.

Federal Middle District Court of Pennsylvania Allows Bad Faith Claim To Proceed Where Carrier Allowed Same Claims Rep to Handle Both Third Party and UIM Claim

In the case of Vella v. State Farm Mutual Automobile Insurance Co., Civil Action No. 17-1900 (M.D. Pa. Apr. 23, 2018 Rambo, J.), the court granted in part and denied in part a Motion to Dismiss a Bad Faith claim arising out of the handling of a UIM claim.

According to the Opinion, the insured submitted a UIM claim to its insurer following a motor vehicle accident.

The tortfeasor in the accident happened to also be insured by the same carrier for liability purposes.

The carrier assigned the same claim representative to manage both the first-party UIM claim and the third-party negligence claim. The insured eventually sued for bad faith as to the handling of both claims.

The insurer moved to dismiss aspects of the bad faith claim on the basis that Pennsylvania law precludes a third-party claimant from bringing a cause of action for bad faith against a tortfeasor’s insurer.

The Court denied the motion in part and granted in part. More specifically, the Court found the insured sufficiently pleaded facts regarding the interplay between the claims handling of first-party UIM and third-party negligence claims to make out a plausible bad faith claim.

However, the Court dismissed those allegations in the Complaint pertaining to claims asserted by the insured for bad faith against the insurer solely on the basis of the carrier’s actions regarding the handling of the third-party claim.

Anyone wishing to review this decision in the Vella case may click this LINK.

I send thanks to Attorney Lee Appelbaum of the Philadelphia bad faith defense firm of Fineman, Krekstein & Harris, and writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, for bringing this case to my attention.

 

SAVE THE DATE - JUNE 11, 2018 - LACKAWANNA PRO BONO'S GOLF TOURNAMENT