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Seeing Accident of Loved One on IPhone App Map Does Not Support Negligent Infliction of Emotional Distress Claim

In the case of Jenson v. St. Louis, No. 3:19-cv-00515 (M.D. Pa. Aug. 9, 2019 Munley, J.), the court granted in part and denied in part a Motion to Dismiss a Plaintiff’s negligent infliction of emotional distress claim in a fatal trucking accident matter.  

According to the Opinion, prior to the day of the accident, the decedent would always call his fiance when he arrived at work.  On the day of the accident, when the decedent did not call, his fiance used a smartphone application to locate the decedent's cellular phone.  The application displayed a map that indicated that the phone, and therefore, the decedent, were located at the scene of a crash.

The Plaintiff-fiance alleged in the Complaint that she suffered a direct and immediate shock by this contemporaneous and sensory observance of the fatal collision through her iPhone.

Judge James M. Munley of the Federal Middle District Court found that these facts did not support an allegation of the required contemporaneous perception element of a cause of action for negligent infliction of emotional distress. 

The Court emphasized that the Plaintiff did not witness the accident but only saw a reporting of the accident on her phone after the fact.  This was found to be insufficient to support the element of contemporaneous observance of an accident necessary to support a claim for negligent infliction of emotional distress.  

The court analogized this case to those cases in which this type of claim was dismissed where a plaintiff received a phone call from a hospital indicating that a loved one had been in an accident.

Given his ruling on this aspect of the claim, Judge Munley did not reach the issue of whether this Plaintiff's status as the fiance of the decedent was a close enough relationship to support the requirement under the claim of negligent infliction of emotional distress that one suffer from a contemporaneous observance of an injury to a close relative in order to present such a claim.

The court allowed the remaining claims by other Plaintiffs to proceed, including a claim of punitive damages in a case where a trucker attempted to merge back onto the Northeast Extension of the Pennsylvania Turnpike under dark conditions and with no lights illuminating the sides of the trailer portion of the tractor trailer at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order.

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

Third Circuit Holds: No Coverage, No Bad Faith

In the case of 631 M. Broad St. v. Commonwealth Land Title Ins. Co., No. 18-3094 (3d Cir. July 26, 2019 Fuentes, J., McKee, J., and Schwartz, J.), the court affirmed a district court’s entry of summary judgment in favor of a carrier in a title insurance bad faith case.

Notably, after agreeing that there was no coverage obligation and, therefore, no duty to defend under the policy, the third circuit stated, “…since the [D]istrict Court correctly concluded that [the carrier] had no duty to defend, there could be no bad faith claim against [the carrier].”  

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

I send thanks to Attorney Lee Applebaum, the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and from the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention.  

SAVE THE DATE: Lackawanna Pro Bono Fundraising Gala - October 18, 2019

Claims of Reckless Conduct Allowed to Proceed in MVA Case Involving Pedestrian

In the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. Aug. 15, 2019 Gibbons, J.), the court addressed Preliminary Objections filed against a civil litigation Complaint in which the Plaintiff alleged allegations of recklessness in addition to allegations of negligence in a motor vehicle accident case involving a pedestrian Plaintiff.

The tortfeasor Defendant filed Preliminary Objections seeking to strike the claims of recklessness that were “sprinkled” throughout the Complaint.   The tortfeasor Defendant asserted that the Plaintiff failed to allege sufficient facts to support claims of reckless conduct which, according to the court, arguably could lay a foundation for later claims for punitive damages.   The court did note that the Complaint did not seek the imposition of punitive damages at this time.  

In response to the Defendant’s demurrer, the court generally noted that claims for punitive damages must be supported by evidence sufficient to establish outrageous conduct and that the Defendant had a subjective appreciation of the risk of harm and that the Defendant acted or failed to act in conscious disregard of that risk.

However, the court also stated that, under Pa. R.C.P. 1019(b), allegations pertaining to “[m]alice, intent, knowledge and other conditions of the mind may be averred generally.”   The court noted that an example of a condition of the mind that may be averred generally involved states of mind associated with wanton conduct.  

Consistent with other decisions out of the Lackawanna County Court of Common Pleas, Judge Gibbons in this Nebesky case went on to reason that, because recklessness is also known as “wanton willful misconduct,” recklessness is a condition of the mind that may be alleged generally in a Complaint.  

As such, the court denied the Preliminary Objections filed in this regard but noted that the Defendants retained the right to revisit the validity of such claims at the Motion for Summary Judgment stage once discovery has been completed. 

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

ARTICLE: "Litigating the Zero Verdict" by Daniel E. Cummins and Stephen T. Kopko

Here is a LINK to the Pennsylvania Lawyer magazine article written by Daniel E. Cummins and Stephen T. Kopko both of the Scranton insurance defense firm of Foley, Comerford & Cummins entitled "Litigating the Zero Verdict."

The article provides an overview of the propriety or impropriety of zero verdicts by juries under different circumstances in personal injury matters.  The article also reviews the variety of arguments that can be raised by both sides in support of either affirming or overturning such a verdict based upon the facts of the case.

We thank Patricia Graybill, the editor of the Pennsylvania Lawyer magazine for selecting this article for publication.

To review additional zero verdict cases here on Tort Talk, please click HERE.

Trial Judge's Reduction of Punitive Damages Award Overturned by Third Circuit Court of Appeals

In the case of Jester v. Hutt, 2019 U.S. App. Lexis 25998 (3d Cir. Aug. 28, 2019 Hardiman, J., Porter, J., Cowen, J.), the Third Circuit Court of Appeals vacated a granting of a motion for remittitur by the trial court that served to substantially reduce an award in favor of the Plaintiff.

According to the Opinion, the trial court had found that an award of $90,000.00 for punitive damages in a defamation case was constitutionally excessive where the jury only awarded $1.00 in actual damages.  The punitive damages award was reduced to $5,500.00.

The Third Circuit overturned the trial court and ruled that the constitutional ratio test for punitive damages does not apply to awards of nominal damages.  Higher ratios between nominal awards and punitive awards are to be expected. 

The Third Circuit reiterated that the touchstone for constitutional scrutiny of punitive damages awards is reasonableness.  The Court in Jester also noted that a comparison to similar cases is an accepted method of judging excessiveness of awards.

The Jester decision may be reviewed HERE.

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.