Issue of an Alleged Open and Obvious Danger in a Premises Liability Case Allowed to Proceed to Jury

In the case of Pusateri v. Wal-Mart East, LP, No. 21-1137 (W.D. Pa. Dec. 20, 2022 Kelly, M.J.), the court denied a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, the Plaintiff was shopping in a Wal-Mart store during which the Plaintiff walked four (4) times passed a partially empty black pallet that held large screen televisions. The Plaintiff alleged that she did not remember the presence of the pallet during each pass, but conceded that nothing blocked her view of the pallet.

After her fourth pass, a store employee entered the aisle with a top stock shopping cart that was loaded.

In order to avoid the stock cart and permit it to pass, the Plaintiff backed up and tripped on the base of the protruding pallet that was behind her. The Plaintiff alleged injuries as a result.

The Federal Magistrate Judge that decided this case noted that, while a store owner owes no duty to invitees for an obvious danger that is avoidable by the exercise of ordinary care, the court found that the issue of whether the hazard in question was open and obvious is a question for the jury. In this case, the court also noted that the Plaintiff may have been distracted by the Defendant employee’s actions.

Given the issues of fact presented, the court denied the Motion for Summary Judgment.

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


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

Summary Judgment Denied In Case Where Plaintiff Injured by Falling Books in a Bookstore

In the case of McConn v. Dollar General, No. 2:CV-01177-MJH (W.D. Pa. Dec. 19, 2022 Horan, J.), the court denied summary judgment in a case in which the Plaintiff alleged personal injuries as a result of books falling on her at a Dollar General store. 

The Plaintiff alleged that she was attempting to remove a book entitled Duct Tape Mania from the center of a bookcase. 

The Plaintiff testified that the shelf was jammed with books and that, when she tugged on the book she wanted, the vertical rack at the end of the shelf became dislodged and books fell upon her, allegedly injuring her.

The Defendant filed a Motion for Summary Judgment asserting that the Plaintiff had not raised any issues of material fact on whether the store either created the condition that allegedly caused the jammed books on the bookshelf or that the store had prior notice of the condition.

The court denied summary judgment after finding that the Plaintiff had presented sufficient evidence such that a reasonable jury could find that Dollar General had either created the condition that allegedly resulted in jammed books on the bookshelf and/or that the Dollar General allegedly had notice of that condition.

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

Expert Precluded By Court Due to Lack of Sufficient Qualifications to Testify on the Issues Presented

In the case of McConn v. Dollar General Corporation, No. 2:-21-CV-01177-MJH (W.D. Pa. Dec. 19, 2022 Horan, J.), the court addressed a Defendant’s Motion under Daubert to preclude the opinion testimony of the Plaintiff’s purported retail safety expert in a case in which the Plaintiff was allegedly injured when a number of books allegedly fell upon her after she removed a jammed book from the bookshelf.

The court granted the F.R.E. 702 Motion in this case after finding that the Plaintiff’s expert lacked any relevant qualifications to testify as to issues of retail safety.

The court noted that the proposed expert of the Plaintiff had no academic background, no former training, and no retail work experience in the last fifty (50) years.

The court noted that the fact that the expert had reviewed the store’s manuals could not create expertise.

The court also noted that the expert failed to identify any industry standards with the shelving of books at a retail store. The “standards” referenced in the expert report were neither industry standards nor the Defendant store’s standards.

In the end, the court found that claimed experience by an expert does not make testimony admissible where the testimony lacks any independent indicia of reliability.

The court also noted that the bases that the expert cited for his opinion were contradicted by the facts of the case.

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

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

Superior Court Affirms Entry of Judgment Against a Negligent Spoliation of Evidence Claim Cloaked As A Promissory Estoppel Claim

 In the case of Erie Ins. Exch. v. United Services Auto. Assoc., 2022 Pa. Super. 207 (Pa. Super. Dec. 6, 2022 Olson, J., Colins, J., Dubow, J.) (Op. by Colins, J.), the Pennsylvania Superior Court ruled that there is no recognized cause of action in Pennsylvania for negligent spoliation of evidence.

In this matter, in which involved fire damage claims and the right to conduct an investigation as to the cause of a fire, the court granted summary judgment for the Defendant on a promissory estoppel claim which claim was brought in an effort to recover damages for the negligent spoliation based upon an agreement to indefinitely preserve evidence.   

The Superior Court affirmed the trial court's finding that the promissory estoppel claim was essentially disguised as a negligent spoliation of evidence cause of action. Since such claims are not recognized in Pennsylvania, the Court affirmed the entry of judgment against this promissory estoppel claim.

While a Link to the decision was previously provided in this post, this post was updated once that Opinion was withdrawn by the Court in light of the fact that the case was moving on to an en banc consideration.

Source:  “Court Summaries.”  by Timothy L. Clawges in the Pennsylvania Bar News (Jan. 2, 2023).

UPDATE: This decision was withdrawn by the Superior Court under an Order dated February 9, 2023 when it granted a reargument en banc.

I send thanks to Attorney Brook T. Dirlam of the Pittsburgh, PA office of Thomas, Thomas & Hafer for letting me know this update.

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Court Rules That PennDOT May Not Release Medical Records Relied Upon By PennDOT to Decide Whether to Authorize an Indiviual to Be Licensed to Drive

In the case of Puricelli v. Com., Dept. of Transp., No. 42 M.D. 2022 (Pa. Cmwlth. Jan. 4, 2023) (Op. by Wallace, J.), the Commonwealth Court sustained Preliminary Objections filed by PennDOT in opposition to a matter involving a request by a Plaintiff injured in a motor vehicle accident case for the release of medical records PennDOT had obtained as part of the decision-making process of determining whether or not the Defendant driver should be authorized to be licensed in Pennsylvania to operate a motor vehicle.

According to the Opinion, the Defendant driver had secured an injury to his eye and the Plaintiff was attempting to determine if PennDOT had authorized the Defendant driver to be operating his vehicle at the time of the accident.

The court noted that, by statute, information received by the Department of Transportation for purposes of determining the competency of automobile drivers “shall be confidential and shall be used solely for the purpose of determining the qualifications of any person to drive a motor vehicle.” The statute additionally sets forth that such information cannot be “used as evidence in any civil or criminal trial.”

As such, the Commonwealth court ruled that the Plaintiff’s automobile accident victim was not permitted to obtain the medical records from PennDOT even though the Defendant driver had consented to the production of that information. The court noted that consent is not an exception to statutory mandates of confidentiality.

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

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