Recklessness and Punitive Damages Claims Allowed to Proceed in Tractor Trailer vs. Pedestrian Accident

In the case of Molina v. Timmons, No. 1:19-CV-01707 (M.D. Pa. April 2, 2020 Rambo, J.), the court denied a Defendant’s Motion to Dismiss and Strike relative to claims of recklessness and for punitive damages in a case involving a tractor trailer versus pedestrian accident.

According to the Opinion, the Defendant truck driver was allegedly backing up in a rapid fashion near an area that was used for unloading and loading materials when that driver knocked the pedestrian Plaintiff to the ground and ran over the Plaintiff’s midsection with the two right rear axles of the tractor trailer.

The Plaintiff included allegations of recklessness and request for punitive damages in the filed Complaint. The Motion before the court involved the Defendant’s Motion to Dismiss and/or Strike these claims.

The case was originally filed in Luzerne County but removed to the federal court. As such, the Defendant’s motion was decided under Federal Rule of Civil Procedure 12(b)(6).

After reviewing the Complaint, the court in this matter found that the Complaint adequately alleged reckless conduct. The court noted that the Plaintiff alleged that the Defendant tractor trailer driver backed his truck up at an alleged continuous high rate of speed without checking his mirrors, narrowly missing another vehicle, striking and knocking over the Plaintiff with the back end of his trailer, and continuing to drive in reverse over the Plaintiff’s body.

The court found that, accepting these allegations as true and drawing all reasonable inferences in favor of the Plaintiff as required by the standard of review, these allegations sufficiently pled that the Defendant driver knew or should have known that his actions posed a high degree of risk of harm to others and that he nevertheless acted indifferently to those risks.

The court also found, under the same rationale, that the Complaint sufficiently asserted a claim for punitive damages that could move forward in the case.

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

I send thanks to Attorney Clancy Boyland and Attorney Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Building Inspector Found to Be Immune From Claims of Negligence

In the case of Brown v. Taylor Construction and Demolition, No. 13-CV-2727 (C.P. Lacka. Co. April 2, 2020 Nealon, J.), the court addressed a request from a building official for a finding of immunity from claims liability relative to residential construction work.

According to the Opinion, residential property owners, who allegedly suffer damage as a result of negligent construction work by a contractor, filed suit against the contractor and the entity that was hired to act as the borough’s building construction code official to perform inspections and to grant approvals for construction activities upon request by the contractor. 

The Plaintiffs alleged that the contractor completed substandard work without requesting any inspection or obtaining the proper approvals of the work completed. 

The Plaintiffs separately asserted that the building official was allegedly negligent in conducting inspections and in failing to issue stop work orders.

The case came before the court by way of a Motion for Summary Judgment filed by the building official. The building official asserted that he was immune from liability under the International Residential Code and the Political Subdivision Tort Claims Act. 

Judge Nealon noted that, under the International Residential Code, a building construction code official is immune from liability for any act or omission in the discharge of his or her official duties for the borough which occurred while acting “in good faith and without malice.” 

The court noted that, in this matter, the records lacked any evidence to support a claim that the borough construction code official acted with any malice or bad faith. 

Accordingly, the court held that it was free and clear from doubt that the building construction code official was entitled to judgment as a matter of law. As such, summary judgment was granted.

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

Judge Zulick of Monroe County Addresses Issues of Jurisdiction Over Out-of-State Law Firm in Pennsylvania Malpractice Claim

Preliminary Objections by a NY defendant firm contesting jurisdiction in a legal malpractice case were denied in the matter of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.).

The Plaintiff brought this legal malpractice case arising out of an injury which occurred at the Kalahari Resorts Pocono Hotel on December 25, 2015.

The Plaintiff, a NY resident, retained NY counsel to pursue her claim. The defendant firm represented the Plaintiff but eventually wrote to the Plaintiff in October of 2017 terminating the representation and allegedly advising the Plaintiff in that letter that she had three years from the date of the incident to file suit.

The Plaintiff alleges that she relied upon that letter and believed that she had three years to file suit.  The Plaintiff did not file suit within two years of the date of the accident.

The Plaintiff brought this suit for legal malpractice and Defendants filed Preliminary Objections contesting personal jurisdiction, arguing that they did not have minimum contacts with PA, since they lived in NY, practice in NY, were not licensed to practice in PA, and given that the firm did not do any business in the state.

After reviewing the current status of the law on personal jurisdiction, Judge Zulick agreed that the Defendants' contacts with Pennsylvania were not significant and that, as a result, there was no support for a finding of general jurisdiction over the Defendants.

However, on the issue of specific jurisdiction, which required the application of Pennsylvania's Long-Arm Statute and the Due Process Clause of the Constitution.  Under that analysis, specific jurisdiction can be found if a defendant's tortious acts or omissions cause harm in Pennsylvania.  The Court found that the Plaintiff's loss of her right to sue was sufficient to satisfy Pennsylvania's Long-Arm statute.

Under the second part of the analysis, Judge Zulick also found that exercising jurisdiction over the case would also not run afoul of the Due Process Clause of the U.S. Constitution.  The Court found that the Defendant firm engaged in minimum contacts with Pennsylvania and purposely availed itself in the Commonwealth of Pennsylvania by seeking to represent a Plaintiff for pecuniary gain in a personal injury matter that arose in Pennsylvania.

In light of this analysis, the Court overruled the Prelminary Objections and ordered the Defendants to file their Answer to the Complaint.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Rusty Allen of the Law Offices of W. Austin Allen, II, P.C. of Warminster, PA for bringing this case to my attention.

Sloan Kettering Hospital (NY) Haled Into Court in Philadelphia

In the case of Estate of Albert v. Thomas Jefferson Univ. Hospital, Inc., June Term, No. 1122 (C.P. Phila. Co. Jan. 31, 2020 Massiah-Jackson, J.), the court ruled that it had personal jurisdiction over an out-of-state Defendant after finding that the Defendant had sufficient minimum contacts with Pennsylvania such that the Defendant could have reasonably anticipated being sued in Pennsylvania.

This matter arose out of a medical malpractice action against Sloan Kettering Hospital, which is located in New York. 

The Plaintiff’s Complaint alleged corporate negligence and vicarious liability claims against multiple Defendants with regards to their actions in providing the decedent, David Albert, with allegedly false information about his medical imaging results. The case involved the results of an MRI which the decedent had completed in New York. At all relevant times, the decedent was a resident of Pennsylvania. 

Defendant Sloan Kettering moved for summary judgment arguing that the court did not have personal jurisdiction over it. That Defendant asserted that the Plaintiff had failed to establish any action taken by Sloan Kettering or its agents that caused harm to the decedent in Pennsylvania. 

The Plaintiff responded by arguing that negligent claims involved injuries that occurred while the decedent was present in Pennsylvania. The Plaintiff stated that Sloan Kettering contacted the decedent in Pennsylvania and allegedly provided him with false information about his MRI results. Sloan Kettering then allegedly failed to timely forward those imaging results to the decedent’s physicians, who were located in Pennsylvania. The Plaintiff also alleged that Sloan Kettering promised to coordinate the decedent’s care but that it had failed to communicate with his medical providers who were located in Pennsylvania. The Plaintiff alleged that these steps, and others, allegedly resulted in harm to the decedent in Pennsylvania. 

The court noted that due process law permits specific jurisdiction over a defendant to be found where a defendant engaged in numerous contacts with a forum state. 

The court noted that Sloan Kettering had promoted a treatment program and had promised the decedent and his family to coordinate his care and monitor his medical services. The court also noted that Sloan Kettering had engaged in national marketing and recruitment for its clinical trials, including activities in Lehigh Valley, Pennsylvania. 

The court in this matter found that specific jurisdiction over the Defendant hospital was established based upon the hospital’s extensive contacts with Pennsylvania. After finding that the Plaintiff had met its burden of establishing that the hospital allegedly caused harm to the decedent in Pennsylvania its acts and omissions, the court concluded that Sloan Kettering should have reasonably anticipated being called into court in Pennsylvania. 

As such, the hospital’s Motion for Summary Judgment on jurisdictional issues was denied. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2020).

Appeal From a Default Dismissed Where Plaintiff Did Not First File Petition To Open or Strike Default

In the case of Cardona v. Buchanan, 2020 Pa. Super. 55 (Pa. Super. March 9, 2020 Olson, J., Nichols, J., Stabile, J.) (Op. by Stabile, J.), the court found that where a trial court entered a judgment of non pros due to a Plaintiff’s failure to prosecute her suit and the Plaintiff thereafter failed to file a Petition to Open the Judgment before appealing, the Plaintiff waived the single issue raised on appeal. 

This matter arose out of a slip and fall incident that occurred in 2005. The Plaintiff began the lawsuit by way of a Writ of Summons in 2007. She thereafter filed a Complaint in November of 2009. 

Nine (9) years later, in November of 2018, the Defendant filed a Motion to Dismiss the action for lack of prosecution. That motion is granted and the case was dismissed with prejudice. The Plaintiff then filed an appeal to the Superior Court without first filing a Petition to Open the Judgment. 

On appeal, the Superior Court found that the Plaintiff waived her objection to the non pros order by failing to file a Petition to Open. The court cited to Pa. R.C.P. 3051 which provides that relief from a judgment of non pros shall be sought by way of a Petition to Strike or Open the Judgment. The court also noted that Rule 3051 mandates that a Plaintiff file the Petition to Open with the trial court before appealing to the appellate court. 

The Superior Court further noted that, since Petitions to Open Default Judgments of Non Pros are mandatory, any appeal related to a judgment of non pros should be made not from the judgment itself but rather from a denial of a Petition to Open or Strike that Judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 25, 2020).

Summary Judgment Denied in Limited Tort Case

In the case of Braniff v. Hartjei, No. 11022-CV-2017 (C.P. Lawrence Co. Aug. 12, 2019 Cox, J.), the court denied a Motion for Partial Summary Judgment based upon the Plaintiff’s election of the Limited Tort option.

After reviewing the law of the case of Washington v. Baxter, the court in this Braniff case noted that the Plaintiff alleged that the accident caused bulging discs and a radiculopathy with respect to her cervical spine. It was noted that the Plaintiff’s cervical spine range of motion decreased following the accident. The Plaintiff additionally complained that she could no longer sit or stand for prolonged periods of time.

The Plaintiff also asserted that her ability to ride in a car was hampered. She additionally noted that her ability to perform the duties of her job, which required her to train other people, was limited.

At her deposition, the Plaintiff also noted that she had difficulty performing her household chores, such as doing the laundry. She additionally testified to having to give up some of her recreational activities.

The court also noted that the Plaintiff was continuing to receive treatment for her injuries from the accident and that surgery was a possibility in her future.

In denying the Defendant’s limited tort Motion for Summary Judgment, the court emphasized that the focus of the inquiry was not on the injuries themselves, but on how the injuries affected the Plaintiff’s bodily functions. The court additionally reaffirmed the rule of law that any alleged impairments did not have to be permanent in order to be considered serious in the context of a limited tort case.

As the court found that reasonable minds could differ on the issue of whether the Plaintiff had sustained a serious injury or a substantial body impairment as a result of the accident, the Motion for Summary Judgment was denied.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 11, 2020).

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CONTACT CUMMINS LAW TO DEFEND YOUR LIMITED TORT CASE
www.CumminsLaw.net

dancummins@CumminsLaw.net

A Little Humor......

This article of mine is reprinted here, with permission, from the October 22, 2007 issue of the Pennsylvania Law Weekly. 

LEARNING LESSONS FROM LAWYER JOKES:

Don’t be upset – use them as a motivator to improve, and discredit their sting

by

DANIEL E. CUMMINS, ESQUIRE

Lawyer jokes are an amusing, sometimes annoying, part of the practice. You’ve heard one, you’ve heard them all. With the negative sting of many of the lawyer jokes, it is easy to wince and give a wan smile while others laugh out loud with forced glee at the telling of such jokes.

Q: What’s the problem with lawyer jokes?

A: Lawyers don’t think they’re funny, and no one else thinks
they’re jokes.

Unfortunately, it is said that jokes in general require some modicum of truth to help make them funny. The act of getting upset at being the brunt of such jokes may lend them credence and may only serve to foster the telling of lawyer jokes. Perhaps a better way to react to lawyer jokes is not to be upset by them, but rather to use them as a motivator to better your practice and thereby contribute to improving the image of attorneys as a whole.


Q: How do you get a group of lawyers to smile for a picture?
A: Just say, “Fees!”

A main complaint by the public with lawyers is the fees charged and the manner in which they are charged. One way to avoid such criticism is to, wherever possible, politely remind the client that the result they seek, or have obtained, may not have been realized without the legal expertise provided.

In other cases where a favorable result for the client is not likely, the better practice may require an attorney to be up front with clients early in the attorney-client relationship about the futility of their claim or defense. This may serve to streamline the case, result in a quicker resolution, and save the client money in the long run, thereby improving the reputation of the attorney in terms of fees saved as a result.

Another way to avoid client complaints regarding the fees charged is to provide detailed, itemized bills that fully describe the services rendered. Clients may also be better served, as well as attorney reputations, if the clients are not unnecessarily double billed in the form of multiple attorneys or staff working on a single task.

Where a dispute arises with the client over attorney charges, it may also be the better practice to immediately attend to client questions about a bill with a willingness to compromise hopefully being present on both sides of the issue. A satisfied client obviously may be a repeat client or a source of other referrals. Therefore, a squabble over a few dollars in a present matter may not be worth the cost of other cases that could be realized in the future.

Another proactive way lawyers may offset the negative public perception regarding attorney fees may be through giving back to the community. Donations to local charities, volunteering time at local fundraisers, and participating in pro bono legal work all serve to display attorneys in a better light.


Q: Did you hear about the lawyer hurt in an accident?

A: An ambulance stopped suddenly.
There is probably no more common complaint against attorneys than their sometimes voracious pursuit of new clients. Yet, in a competitive world with a glut of attorneys, it appears that seeking out clients and attorney advertising is a necessary evil to support one’s practice.

Lawyers are commonly criticized for their rampant and sometimes crass advertisements and commercials. Perhaps a way to blunt such criticism is to instill more creativity into the advertising, maybe even humor, as opposed to the standard commercial of a somber attorney lamenting the woes of personal injuries and his or her ability to make all well again through a lawsuit.

One way to perhaps attract other clients is to include past clients in the advertising praising the positives of their experience with that attorney or firm. In this manner, rather than having the attorney patting himself on the back, the public will be hearing another member of the public speaking favorably of his or her experience.

In any event, attorneys should be mindful of the Rules of Professional Conduct 7.2 and 7.2 regarding “ambulance chasing” or direct contact with potential clients. Generally speaking, direct in-person solicitation of a prospective client by a lawyer is also frowned upon by the disciplinary board and should be avoided.

Q: What do you get when you cross a librarian with a
lawyer?

A: All the information you need, but you can’t understand a word of it.

* * * * * * *

Q: What do you get when you cross the Godfather with a
lawyer?

A: An offer you can’t understand.
Another common complaint about lawyers and legislators is their obstinate refusal to speak in plain, ordinary terms. Lawyers insist on using big words when little words would suffice [uh, when little words would do]. Legal jargon and Latin terms are still routinely used even though they should be avoided wherever possible when dealing with the public.

The problem of some lawyers refusing to utilize plain language has grown to the extent that awards are given out by the Bar when a lawyer is found to have fostered the use of plain English in his practice. So perhaps lawyer jokes in this regard can serve as a reminder to use plain English in our speech and writing whenever possible.


Q: How many lawyers does it take to change a light bulb?

A: None, they’d rather keep their clients in the dark.
Since the dawn of legal practice, clients have complained about the failure of lawyers to keep them apprised as to the status of their case. The problem had apparently more recently become so common that Rule of Professional Conduct 1.4 was promulgated which, in part, requires every attorney to “promptly comply with reasonable requests for information” and to otherwise “keep the client reasonably informed about the status of the matter.”

Perhaps if attorneys strived to keep their clients informed with a call or a letter every thirty to sixty days, there would be one less ‘how many lawyers does it take to change a light bulb’ joke.


Q: “You seem to be in some distress,” the judge said to the witness. “Is anything wrong?”

A: “Well, your Honor,” said the witness, “I swore to tell the truth, the whole truth, and nothing but the truth, but every time I try, some lawyer objects.”
The lesson to take from this joke is to keep objections to a minimum at trial. By objecting only when truly necessary, an attorney may be able to avoid the public perception, by a jury no less, that the attorney is attempting to hide something, or worse yet, is a bully.

To prevent any adverse inferences by the jury to an objection, it may also be wise to give a short explanation for the basis of the objection. Giving this short explanation may not only explain to the jury the valid reason for the objection, but may also be crucial for properly preserving the objection as a basis for an appeal.

It may also be wise, whenever possible, to keep sidebar conferences with the judge to a minimum. Despite the best of instructions to a jury from a judge that sidebar conferences are a necessary part of a trial to deal with tangential issues, a jury will likely always feel that something is being kept from them and will also grow impatient with the delays caused by the conferences. The better practice may be to anticipate issues that may arise and address them with the court before the jury is brought into the room and put into the jury box.


Q: What’s the difference between a good lawyer and a great lawyer?

A: A good lawyer knows the law. A great lawyer knows
the judge.
This joke brings to mind scenes from The Verdict with Paul Newman and Civil Action with John Travolta and Robert Duvall in both of which movies is a pivotal scene in which the underdog lawyer is called into the judge’s chambers only to find the more experienced opposing counsel already in chambers having a friendly ex parte chit-chat with the judge. While friendly and courteous relations are to be encouraged between lawyers and the bench, attorneys and judges should strive to avoid the perception of the public, and of out-of-town attorneys, of any favoritism once the matter gets underway.


Q: How many lawyer jokes are there?

A: Just three, all the rest are true.
Lawyer jokes have unfortunately been an undying breed since the time of Shakespeare. Even up to today, on any given week, Leno or Letterman will unleash a zinger against lawyers to the delight of their audiences. On the internet, a simple Google search will reveal numerous web pages devoted to lawyer jokes.

While such jokes may never become extinct, their impact can be lessened by improved attorney conduct. Unfortunately, lawyers are not always adept at displaying themselves in the best light possible which is in part due to the adversarial and competitive nature of the practice. There will also always be some bad apples who will continue to highlight and foster a negative view of lawyers as a whole.

Yet, continued efforts by all members of the bar to better the image of lawyers through open and plain communication, professional and courteous behavior in the public eye, community service, and the zealous but sensible pursuit of justice on behalf of clients can all only serve to discredit the sting of lawyer jokes.

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Clarks Summit, Pennsylvania law firm of Cummins Law (www.CumminsLaw.com). In addition to being a civil litigation columnist for the Pennsylvania Law Weekly, he also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (www.TortTalk.com).