Punitive Damages Allowed to Proceed in Case Involving Alleged Driving While Intoxicated

In the case of Yzkanin v. Hammerjax, LLC, No. 18-CV-2260 (C.P. Lacka. Co. March 1, 2019 Nealon, J.), the court addressed Preliminary Objections seeking to strike allegations of reckless, willful, and wanton conduct along with a claim for punitive damages in a Dram Shop liability action.  

According to the Opinion, this matter arose out of an accident that occurred after the Plaintiff was a patron at the Defendant’s tavern and the tavern’s employees allegedly continued to serve the Plaintiff alcohol even though he was allegedly visibly intoxicated due to the fact that the Plaintiff was allegedly drinking excessively for an extended period of time.  

In other words, the Plaintiff Yzkanin alleged that he was drinking excessively on the night on question and then got into an accident after he left the tavern and then sued the tavern for continuing to serve him alcohol when he was visibly intoxicated. 

According to the Opinion, this case was also consolidated with the claim of the other Plaintiff who was in the other vehicle that was involved in the accident with Plaintiff Yzkanin.   That Plaintiff also sued the tavern Defendants under a Dram Shop action and made claims for recklessness and punitive damages.  

In his Opinion, Judge Nealon cited to the law that holds that punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

Wanton or reckless conduct was further defined to refer to those instances when an actor has intentionally completed an act of unreasonable character in disregard of a risk known to him or a risk so obvious that he must have been aware of it and so great as to make it highly probable that harm would result.   The court additionally referred to the law that a mere showing of negligence, or even gross negligence, will not support a claim for punitive damages.  

After applying the law to the facts alleged in the Plaintiff’s Complaint, the court overruled the Defendant’s Preliminary Objections filed against the Plaintiff’s allegations of wanton, willful, and reckless conduct and also overruled the Preliminary Objections to the claims for punitive damages.   In so ruling, the court noted that the Defendants remained capable of testing the viability of the punitive damages claims later by way of a Motion for Summary Judgment.  

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

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP.  

Claims for Negligent Hiring, Retention and Supervision in Trucking Accident Cases Fail Where No Punitive Damages Alleged

In what may be a case of first impression in Pennsylvania state court, Judge David J. Williamson ruled that a claim against a truck driver's employer for negligent hiring, retention, supervision or entrustment cannot stand in the absence of a related claim for punitive damages.

In the case of Sullivan v. Crete Carrier Corp., No. 8716 - CV - 2015 (C.P. Monroe Co. Jan. 18, 2019 Williamson, J.), the court granted the Defendant’s Motion for Partial Summary Judgment on the Plaintiff’s claims for negligent entrustment, hiring, and retention against the trucker’s employer arising out of a trucking accident case.  

In the Complaint, the Plaintiff sued a Defendant truck driver and the trucking company for personal injuries.  The Plaintiff asserted claims for negligent entrustment and negligent hiring

and retention.   The Plaintiff did not make a claim for punitive damages in the Complaint.  

The defense asserted in its motion for summary judgment that, since the Plaintiff had not asserted a punitive damages claim, the Plaintiff's claim for negligent entrustment, hiring and retention must be dismissed as a matter of law.

Judge Williamson noted that the courts have generally dismissed claims for negligent supervision and negligent hiring when a supervisor concedes an agency relationship with a Co-Defendant, such as was the case in this matter.   However, a recognized exception exists when a Plaintiff has made a claim for punitive damages against a supervisor.  

Judge David J. Williamson
Monroe County

Citing to unpublished Federal District Court cases in Pennsylvania, the court stated that, where no punitive damages claim has been asserted against a supervisor Defendant, under Pennsylvania law, a trial court must dismiss negligent supervision and entrustment claims.  

The stated rationale is that the employer's liability is a derivative claim fixed by a determination of the employee's negligence.  Therefore, evidence of negligent hiring, retention, or supervision become irrelevant and prejudicial if the employer has already admitted to an agency relationship and where no claim for punitive damages exists.

In the end, the court ruled that, since the trucking company admitted that the trucker was acting within the scope of his employment at the time of the accident, and given that the Plaintiff had failed to plead a punitive damages claim against the trucking company, the Defendant’s Motion for Partial Summary Judgment against the Plaintiff’s claims against the company for negligent entrustment, hiring, and retention, must be granted.  

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

New Rule Pertaining to John Doe Designations in Pleadings Recently Went Into Effect - Pa.R.C.P. 2005

On April 1, 2019, Pa.R.C.P. 2005, which governs the use of “John Doe” or “Jane Doe” designations in pleadings, took effect.

According to the Comment to the Rule, the Rules of Civil Procedure were silent as to this issue prior to the implementation of Pa.R.C.P. 2005.

The rule allows a plaintiff or a defendant joining party to designate an unknown defendant by use of a Doe designation provided certain conditions are met. Under the Rule, the Doe defendant’s actual name must be unknown to the plaintiff or the defendant joining party after the completion of a reasonable search for the person using due diligence.

According to the Comment, an effort to list as parties, “Defendants John Doe 1-10 is frowned upon.

The Rule also requires a specific allegation in the pleading confirming that the Doe designation is a designation of a fictitious person or entity.  Also included in the pleading must be a factual description of the unknown defendant which must contain sufficient particularity for identification.
 

Moreover, the plaintiff or defendant joining party must aver that a reasonable search to determine the actual name of the Doe defendant has been conducted.

Any named defendant in the action is granted authority under Rule 2005(e) to file Preliminary objections on the grounds of nonconformity with this Rule 2005 by the Plaintiff or on the grounds of prejudice.

The Rule additionally provides that once the actual name of the unknown defendant is determined, the plaintiff or joining party must file a motion to amend the Complaint pursuant to this Rule 2005 and in accordance with Pa.R.C.P. 1033, by replacing the “Doe” designation with the defendant’s actual name.  Such a motion must be supported by an affidavit explaining the nature and extent of the investigation utilized to determine the Doe defendant’s actual identity and to provide the date that the identity was determined.

Under the Rule, it is also provided that subpoenas in aid of discovery relating to an unknown Defendant may not be issued or served without leave of court.

Rule 2005 also confirms that a judgment may not be entered by the court against an unknown Defendant.

Source:  Article “New Rule of Civil Procedure Governing Unknown Defendants Took Effect April 1, 2019” by Matthew E. Salmasska, Esq. in the PBA’s Civil Litigation Sections Civil Litigation Update Newsletter at p. 13 (Spring, 2019).  See also Pa.R.C.P. 2005.

Celebrating a Decade of Tort Talk

On tomorrow, the Tort Talk blog will turn 10 years old.  Tort Talk was born one very late night a decade ago after I had read some articles on a new form of writing that was coming into vogue called blogging and I took my then regular practice of compiling a running list of notable recent cases and trends on my computer and turned that practice into a blog for the benefit of all.

Here's a LINK to my very first post.

The blog continues on, going strong nearly 2,500 blog posts later.  There are now currently almost 2,000 Email Subscribers to the blog, better known, at least to me, as Tort Talkers.  Tort Talk has won some awards and recognition over the years, and has even been cited at times in trial court opinions around the Commonwealth of Pennsylvania, particularly with respect to the Post-Koken Scorecard.

Tort Talkers - I thank you for reading.  I thank you for your tips on new cases and trends. And I hope to continue to keep you interested and informed going forward.  Thanks very much.

DAN CUMMINS

Superior Court Addresses Adverse Inference Penalty for Spoliation of Video in a Slip and Fall Case

In the case of Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. March 27, 2019 Bowes, J., Stabile, J., and McLaughlin, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court ruling after finding that the trial court erred in refusing to give an adverse inference instruction based upon the Defendant’s alleged spoliation of videotape evidence in a grocery store slip and fall case.  

According to the Opinion, the Plaintiff allegedly slipped and fell on water in the produce aisle of a ShopRite located in Philadelphia.   The ShopRite employees came to the Plaintiff’s aid immediately after the incident and summoned medical assistance.   The manager also completed an incident report at that time. 

Approximately two (2) weeks after the incident, the store received a letter of representation from the Plaintiff’s attorney requesting that the store retain any surveillance video of the accident and/or the area in question for six (6) hours prior to the incident and three (3) hours after the incident.   The court noted that the letter from the Plaintiff’s attorney also cautioned that any failure by the store to maintain that video surveillance evidence until the disposition of the claim, it would be assumed by Plaintiff that the store intentionally destroyed and/or disposed of the evidence. The attorney also advised the store that it (the store) was not permitted to decide what evidence the Plaintiff would like to review for the case.  As such, the attorney specifically indicated in the letter to the store that “discarding any of the above evidence will lead to an adverse inference against you in this matter.”  

The court confirmed in its Opinion that the Plaintiff’s slip and fall was indeed captured on the store’s video surveillance system. 

However, according to the record before the court, the store decided to preserve only 37 minutes of the video prior to the Plaintiff’s fall and approximately 20 minutes after.   The store otherwise permitted the remainder of the film to be automatically overwritten after thirty (30) days. 

The court additionally noted that, during the course of the trial, defense counsel for the store told the jury in an opening statement that, “it is impossible to tell from the video if there was water on the floor, how it got there or when it got there.”  

At trial, the store’s manager testified that it was the store’s “rule of thumb” to preserve video surveillance from twenty (20) minutes before and twenty (20) minutes after a fall.   The store’s Risk Manager also testified that, in his opinion, the video produced was sufficient to see the defective condition, if it could be seen at all.   He additionally asserted that, since the substance on the floor could not be seen on the retained portion of the video, it “would be a fool’s errand” to go back several hours as requested.  He also asserted that it was impractical and costly to retain the requested six (6) hours of pre-incident video tape.  

At trial, the Plaintiff asserted that the store’s conscious decision not to retain the video evidence constituted spoliation for which the Plaintiff should be given an adverse inference charge to the jury.   

In opposition, the store argued that there was no relevant evidence as the video did not show drops of water on the floor.   The store also asserted that it did not act in bad faith in deleting the additional video requested.  

The trial court initially found that the fact that the video was requested did not, in and of itself, make the video relevant. The trial court also concluded that there was no bad faith on the part of the store. As such, the trial court refused to give the requested adverse inference charge.   However, the trial court did allow the Plaintiff’s counsel to argue to the jury that it should infer from the store’s decision not to retain more of the video prior to the fall supported a conclusion that the video was damaging to the store.   At trial, Plaintiff’s attorney made such an argument to the jury. 

The Superior Court noted that the defense counsel countered by asserting that, under the quality of the video, there was a question as to whether there was any expectation that, if more video had been saved, something else would have been seen particularly when the video showed an obviously small spot of water that could not be readily seen and given that one could not know when it came to be on the floor.  

The jury entered a defense verdict in favor of the store, finding no negligence.

On appeal, one (1) issue was raised for the Superior Court’s review, that being whether the trial court abused its discretion by failing to give a spoliation evidence instruction to the jury at trial.  

After reviewing the current status of Pennsylvania spoliation law and the penalty of an adverse inference, the Superior Court ruled that the trial court should have given such an instruction as the store’s conduct constituted spoliation.   

The court noted that other evidence confirmed that another fifty (50) minutes of time had passed between the last time that a store employee had inspected the area and the time noted on the video.   The court also noted that there was no testimony from anyone at the store that anyone had watched the video for the six (6) hour period prior to the fall to determine that it did not contain any relevant evidence.  Rather, the Superior Court noted that the record confirmed that the store unilaterally determined that there was no relevant evidence on the deleted tape.  

The Superior Court also noted that the trial court’s finding that there was no spoliation because the store did not act in bad faith was based upon an incorrect application of the doctrine of spoliation.   The appellate court noted that spoliation may be negligent, reckless, or intentional.   

The Superior Court additionally emphasized that the party’s good faith or bad faith in the destruction of potentially relevant evidence instead goes to the type of sanction that should be imposed, not whether a sanction is warranted in the first place.  

As such, the court vacated the judgment entered below in favor of the defense and remanded the case for a new trial.  

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

I send thanks to Attorney Cheryl Wolf of the Feasterville, PA law firm of Rovner, Allen, Robner, Zimmerman, Sigman & Schmidt, as well as Attorney James Hockenberry of the office of Leon Aussprung, M.D., LLC, for bringing this case to my attention. 

Allegations Sounding in Bad Faith Stricken From Straight UIM Breach of Contract Claim

In the case of Miller-Echevarria v. LM General Insurance Company, No. 19-Civil-14 (E.D. Pa. Feb. 14, 2019 Scmehl, J.), the court granted a Defendant’s Motion to Strike Immaterial/Impertinent Matter from a breach of contract Complaint filed against a UIM carrier.

According to the detailed Order, the Complaint before the court contained one (1) count for breach of contract due to the Defendant’s alleged failure to pay underinsured motorist benefits under a policy issued to the Plaintiff. 

The court struck any and all allegations related to the Defendant’s alleged handling or investigation of the Plaintiff’s claim, or the Defendant’s non-contractual obligations, as these allegations were found to be irrelevant and immaterial to the breach of contract claim.   As such, such allegations were stricken from the Complaint with prejudice.  

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

SAVE THE DATE: June 10, 2019 Lackawanna Pro Bono Golf Tournament at Elmhurst Country Club