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Alleged Negligence Regarding Pedestrian Crossing Sign Found to Fall Within Real Estate Exception to Sovereign Immunity

In the case of Estate of Patterson v. Rockefeller Group Int. Inc., No. 2022-CV-0060 (C.P. Leh. Co. Aug. 22, 2022 Johnson, P.J.), the court found that a Plaintiff’s wrongful death claim against PennDOT was not barred by the sovereign immunity doctrine where the Plaintiff alleged that an artificial condition in the form of an allegedly non-functioning pedestrian crossing sign along a highway that was allegedly under the control of PennDOT was the cause of the Plaintiff’s injuries.

The Preliminary Objections filed by PennDOT in his case were denied in part and sustained in part.

The Plaintiff alleged that the decedent was struck and killed by a motor vehicle while crossing an intersection on a street undergoing a road-widening project. The Plaintiff alleged that the decedent was crossing the road in an area that PennDOT was responsible for and in which the pedestrian crossing sign had inoperable flashing yellow lights that were covered.

In response to PennDOT’s efforts to have the case dismissed under the Sovereign Immunity Act, the court found that the Plaintiff’s allegations of a breach of the Defendant’s duty to properly maintain a pedestrian crossing sign was an action in negligence that satisfied the first prong for defeating the Defendant’s assertion of sovereign immunity, i.e., the statement of a valid cause of action for negligence.

The court found that the second prong under the Sovereign Immunity Act required the Plaintiff to establish that the negligent act complained of fell within any of ten (10) exceptions to sovereign immunity.

Among its claims, the Plaintiff alleged that the Defendant PennDOT installed an item as part of its real estate, namely a pedestrian crossing sign adjacent to a public highway, in a manner that created a hazardous condition.

The court found that this allegation was sufficient to invoke the real estate exception to sovereign immunity. As such, the court found that the Plaintiff had stated a valid cause of action which was not subject to dismissal.

PennDOT also asserted that the Plaintiff’s claims of recklessness and willful indifference should be stricken because the Sovereign Immunity Act only allowed claims for negligence in certain circumstances.

The court found that the Defendant was correct in arguing that the Plaintiff’s claims are recklessness and willful indifference were legally invalid. Under the express terms the Sovereign Immunity Act, sovereign immunity is only waived in actions against the Commonwealth for damages arising out of negligent acts.

The court also reviewed the remainder of the Plaintiff’s allegations which allege various failures to act on the part of PennDOT. The court found that those claims were barred as it was well-established that claims against the Commonwealth based upon a failure to act are barred by the sovereign immunity doctrine.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 11, 2023).

Source of image:  Photo by Lukas Hartman on www.pexels.com.

Eastern District Court Declines to Apply Household Exclusion in UIM Context

In the case of Mid-Century Ins. Co. v. Werley, No. 21-CV-5592 (E.D. Pa. March 30, 2023 Smith, J.), the Eastern District Federal Court addressed the issue of whether or not a household vehicle exclusion in an automobile insurance policy excluded UIM coverage for a Plaintiff in a motor vehicle accident matter.

In this case, Judge Edward G. Smith of the Eastern District Federal Court took into account, and distinguished the recent Pennsylvania Supreme Court decision in the case of Erie Ins. Exch. v. Mione, in which the Pennsylvania Supreme Court confirmed that the Household exclusion remains valid in certain scenarios.

In this matter, the injured party had UIM coverages available under other household policies.  However, he was on the family's dirt bike at the time of the accident.  The accident was allegedly caused by an allegedly underinsured motorist while the dirt bike was being operated in an off-road fashion.

The issue was whether, where the host vehicle (the dirt bike) was uninsured, was there any policy upon which the injured party could stack UM/UIM benefits?

The Court noted that it could find no case on point.

Here, the Court found that since insureds did not knowingly waive inter-policy stacking on the policy at issue, they were entitled to inter-policy stacking.

Judge Smith went on to state that he was also constrained to hold that enforcing the household vehicle exclusion in this case would have amounted to an impermissible de facto waiver of stacking in violation of the Pennsylvania Motor Vehicle Financial Responsibility Law.

As such, the court granted the injured party’s Motion for Summary Judgment, denied the carrier’s Cross-Motion for Summary Judgment, and entered a declaratory judgment in favor of the Plaintiffs and against the carrier. 

The court held that the carrier had a duty to provide UIM coverage under the applicable policy for injuries allegedly sustained in the underlying accident.

In the end, Judge Smith urged the General Assembly to reexaming the MVFRL stacking provisions in order to bring clarity to the recurring issues faced by the Courts in this context.    

Anyone wishing to review a copy of this decision may click this LINK.  Check out Judge Smith colorful opening lines of his Opinion.

The Court's companion Order can be viewed HERE


I send thanks to Attorney Peter F. Schuchman, Jr. of the Wyomissing, Pa law office of Kozloff Stoudt for bringing this case to my attention.

Does The Issuance of a New Policy Number on an Automobile Insurance Policy Constitute the Creation of a New Policy?

In the case of Shea v. Nationwide Ins. Co. and Davis, No. 3:22-CV0-00494-MEM (M.D. Pa. April 6, 2023 Mannion, J.), Judge Malachy E. Mannion of the United States District Court for the Middle District of Pennsylvania adopted the Report and Recommendation of Chief Federal Magistrate Judge Karoline Mehalchick and ordered that this declaratory judgment action be remanded to state court for review by the state court.

The legal issue presented in this matter addressed “the novel question or whether or not the issuance of a new policy number constitutes the establishment of a new policy requiring new sign down forms.”

The court determined that this issue presented a novel and unsettled issue of state law. As such, under the factors set forth in the case of Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d. Cir. 2014), the court decided to remand the case to the state court for a decision.  The case was remanded to the Luzerne County Court of Common Pleas.

Anyone wishing to review a copy of the Report and Recommendation of Judge Mehalchick and well as the decision of Judgment Mannion approving the Report and Recommendation may click this LINK.

Plaintiff's counsel in this case was Attorney Neil T. O’Donnell and Attorney Gerard Gaughan of the Kingston, PA law firm of O’Donnell Law Offices.

 

Source of image: Photo by Priscilla Piacquadio on www.pexels.com.

Real Estate Exception to Immunity to PennDOT Applied in Case Where Tree Fell on Passing Motorist

In the case of Schmidt v. Penn. Dep’t. of Transp., No. 2019-CV-12057 (C.P. Montg. Co. Feb. 27, 2023 Saltz, J.), the court denied a Motion to Dismiss filed by PennDOT in a case involving a tree that fell upon a passing vehicle on a Commonwealth owned road.

PennDOT filed a Motion to Dismiss asserting sovereign immunity.

The court reviewed the real estate exception to sovereign immunity cases involving fallen trees.

The court noted that, while the Commonwealth of Pennsylvania is generally immune from suit, the Pennsylvania legislature had waived that immunity in certain limited instances as outlined in 42 Pa. C.S.A. §8522(b).  The exception applicable in this case applied to alleged dangerous conditions on the Commonwealth’s real estate, highways, and sidewalks.

In this matter, the court found that the applicability of the real estate exception depending not on the characteristics of the portion of the tree that constituted the dangerous condition, but on the location of that portion of the tree with respect to the Commonwealth’s property.

The court determined that the Plaintiff had properly asserted that the tree fell within the Defendant’s right-of-way.  As such, the court rejected PennDOT’s argument that the exception did not apply because only a portion of the tree fell within that right-of-way.

The court additionally noted that the Plaintiff’s evidence presented to date, which included expert testimony, implicated the real estate exception to the sovereign immunity afforded to the Commonwealth of Pennsylvania in this case.

As such, the Defendant’s 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 (March 21, 2023).

The Tort Talk Blog is 14 Years Old Today

 

The Tort Talk Blog turns 14 today.

The Blog was started back in 2009 and, with over 3,800 blog posts and over 3.6 million views to date, it is still going strong thanks your readership and your contributions to the Blog.

Thank you for reading Tort Talk!

Source of image:  Photo by Florian Doppler on www.pexels.com.

Pennsylvania Superior Court Addresses the Relation Back Doctrine

In the case of Edwards v. Norfolk Southern Railway Co., No. 826 EDA 2021 (Pa. Super. March 21, 2023 Stabile, J., McCaffery, J., and Pellegrini, J.) (Op. by Pellegrini, J.)(Stabile, J., Dissenting), the court addressed the relation back doctrine which, in certain situations, has served to validate the acts of a personal representative of an estate predates their official appointment as the representative of the estate.

In this case, the court considered whether the relation back doctrine applies when a Plaintiff timely files an action on behalf of an estate but does not apply to be appointed to be the personal representative of the estate until after the statute of limitations has run.

The trial court found that the doctrine did apply in this situation and, as such, denied the Motion for Summary Judgment filed by the Defendant. 

The Pennsylvania Superior Court affirmed and held that the Plaintiff’s appointment as a personal representative of her late husband’s estate related back to her filing of the Complaint even though the Plaintiff did not apply to be the personal representative of the estate until two (2) months after the expiration of the statute of limitations.

Anyone wishing to review the Majority decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE


I send thanks to Attorney John M. Ranker of the Greensburg, PA law firm of John M. Ranker & Associates, P.C. for bringing this case to my attention.