You're in Luck: Summary Judgment Denied in PetSmart Store Slip and Fall Case

In the case of Dominiak v. PetSmart, Inc., No. 23-4 (E.D. Pa. Dec. 20, 2023 Perez, J.), the court denied a motion for summary judgment in a slip and fall case.

This matter involved a slip and fall on  a yellowish liquid on the floor in a PetSmart store that was presumed to be urine left by a dog.  Neither the Plaintiff nor the store representatives could say how the liquid came to be on the floor or how long it was there before the Plaintiff encountered it.  However, evidence was produced by the store to show that dogs routinely urinate on the store's floor several times a day, every day.  Because dog urination occurred so frequently in the stores, the store had regular inspections schedule and several "oops stations" throughout the store for clean up purposes.    

The court found that the Plaintiff had presented disputed facts as to the issues of both actual and constructive notice on the part of the Defendant. The court noted that issues of fact were presented with regards to actual notice by virtue of the frequency that the particular type of hazard had allegedly recurred, and with respect to constructive notice possibly being able to be found by the jury due to the central location within the store where the fall occurred.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


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

Source of image:  Photo by Hannah Lim on www.unsplash.com.

Plaintiff's Trip and Fall Over Pallet of Products in Store Barred By Open and Obvious Doctrine

In the case of Ziadeh v. Wal-Mart, Inc., No. 1:22-CV-00094 (M.D. Pa. Jan. 2, 2024 Wilson, J.), the Middle District Court granted summary judgment to a store in a trip and fall case.

According to the Opinion, the Plaintiff allegedly tripped over a pallet with supplies on it that was located within an aisle of the store.    

The court ruled that the object that the Plaintiff tripped over was sufficiently large and visible as to be considered to be open and obvious. As such, the court found that the Defendant did not owe the Plaintiff any duty under the open and obvious doctrine.

The court also found that the Plaintiff’s speculation about another similar object possibly being involved in the incident, the presence of which was not supported by any evidence, was insufficient to prevent the entry of summary judgment.

The court ruled that the question of whether a condition is open and obvious is an objective analysis, and one that does not require any subjective apprehension of danger by the Plaintiff.

In this case, the court found that the Defendant was entitled to rely upon the assumption that a Plaintiff would employ ordinary care to protect herself from obvious harm.

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


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

Source of image:  Photo by Justus Menke on www.unsplash.com.

Judge Nealon of Lackawanna County Orders a Plaintiff To Produce Various Items of Discovery in a Medical Malpractice Action

In the case of Healey v. Scranton Hospital Company, LLC, No. 23-CV-1793 (C.P. Lacka. Co. Jan. 12, 2024 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a medical malpractice Defendant’s Moton to Compel a Plaintiff to provide various items in discovery.

According to the Opinion, this matter involved a medical malpractice action against a hospitalist, his employer, and a local hospital and involved allegations of the improper administration of opioid medication in the emergency room to the Plaintiff which allegedly caused the Plaintiff to suffer hypoxemic respiratory failure and cardiac arrest allegedly due to the Plaintiff’s documented history of obstructive sleep apnea.

With the Motion to Compel filed by the Defendants, the Defendants asserted that they had served discovery on the Plaintiffs seeking information and documents concerning potential witnesses and regarding Plaintiff’s past medical expenses, work history, medical treatment, health and disability insurance, income tax filings, Social Security Disability documents, documentation and information regarding Plaintiff’s past and future wage loss claims, and with respect to projected future medical expenses.

The Plaintiff responded to these inquiries by stating “to be supplied” or that the requested information and documentation would be provided “at the completion of discovery.” Certain Defendants filed a Motion to Compel more timely and complete responses from the Plaintiff.

Judge Nealon granted this motion noting that, during pre-trial discovery, litigants are obligated to provide to their adversaries relevant information and documentation that currently exist or are readily available. As such, the court ordered the Plaintiff to produce certain items of discovery at issue.

Judge Terrence R. Nealon
Lackawanna County 

However, Judge Nealon also noted that that evidence which requires expert review and formulation need not be produced until later in the discovery process and as required by Pa. R.C.P. 4003.5. Accordingly, the court ruled that, since the Plaintiff’s past loss of income, future loss of earning potential, and the projected medical expenses required expert analysis and calculations in medical malpractice actions, the Plaintiff was allowed to “seasonably provide” that information when he produced his expert witness reports in accordance with the court’s scheduling deadlines.

On a related discovery issue relative to the Defendants’ efforts to secure the Plaintiff’s Social Security Disability documentation, it was noted that an additional authorization was required from the Plaintiff to produce that information. Although the Plaintiff had previously responded in written discovery responses that he would sign the necessary authorization and that he had no objections to the Defendants securing this information, the Plaintiff refused to produce the executed authorization.

The court ordered the Plaintiff to produce an executed authorization to secure the Social Security Disability records given that the Plaintiff had previously indicated that this would be done and given that the Defendants were not seeking to obtain information privately from the Plaintiff’s treating physicians in violation of Pa. R.C.P. 4003.6.

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

Carrier Held Liable in Bad Faith Claim

In the case of Devincenzo-Gambone v. Erie Insurance Exchange, No. 2017-CV-09856 (C.P. Montg. Co. Oct. 12, 2022 Rogers, J.), the court entered a ruling against the carrier in a bad faith after finding that the carrier had recklessly disregarded a reasonable basis to pursue its petition following an Arbitration of a UIM case.

The court found fault with the carrier’s handling of issues regarding a binding Arbitration on the issues of stacking and damages.

The court found that the Plaintiff had presented clear and convincing evidence that the carrier did not act reasonably in investigating, evaluating, and arbitrating the Plaintiffs’ claims and that the carrier lacked a reasonable basis to hold a portion of the Arbitrator’s Award and to file a Petition to Modify or Correct the Award.

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

I send thanks to Attorney David B. Pizzica of the Philadelphia law firm of the Pansini Law Group/Pansini & Pizzica for bringing this case to my attention.

Mock Trial Jurors Needed For Thursday

 

Eastern Federal District Court Gives Lessons in Alternative Service of Process in Federal Court

In the case of Allstate Vehicle and Property Ins. Co. v. Top Line Builders, LLC, No. 2:23-CV-03974-TJS (E.D. Pa. Dec. 20, 2023 Savage, J.), the Federal District Court for the Eastern District of Pennsylvania ruled, in a property damage action pursued by a Plaintiff insurance company, that the Plaintiff’s request to serve a Defendant in an alternative manner by posting a copy of the Summons and the Complaint at its business premises would be denied.

The court noted that, under F.R.C.P. 4(h)(1)(B), a corporation must be served “by delivering a copy of the Summons and of the Complaint to an officer, manager, or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant....”

The court additionally noted that, under F.R.C.P. 4(h)(1)(A), a corporation may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” 

In federal court, an individual may be served by either delivering copies of the Summons and the Complaint personally to the Defendant, leaving copies with someone of suitable age who resides at the individual's dwelling or usual place abode, or by delivering copies of the Defendant’s authorized agent. F.R.C.P. 4(e)(2)(A)-(C).

The federal court noted that there is no federal civil rule providing for alternative service. However, under Rule 4(e)(1), any method of service allowed by the state in which the judicial district is located is permitted.

The court noted that, under Pennsylvania State Rule of Civil Procedure 430, alternative service is allowed if the Plaintiff makes a Motion to the Court and secures a special Order allowing for alternative method of service.

The federal court noted that Rule 430 does not explicitly identify the prerequisites for obtaining an Order for alternative service. However, it was noted that the Rule requires the Plaintiff to submit “an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the Defendant and the reasons why service cannot be made.” The federal court noted that, “implicit in this requirement is that the Plaintiff has an obligation to make a good faith effort to locate the Defendant and a practical effort to serve the Defendant.”

In this case, the court found that Allstate failed to meet its burden to demonstrate that it made a practical effort to complete service on the Defendant.

More specifically, the court noted that Allstate had not shown that personal service upon the Defendants could not be made.

According to the Opinion, Allstate searched the Pennsylvania Department of State’s Business Entity database and the Pennsylvania Office of the Attorney’s General Licensed Contractor search mechanism. Allstate additionally conducted internet searches and, through these various searches, located a street address for the particular Defendant at issue.

Allstate then attempted service at that street address but could not confirm that the particular Defendant or its primary agent was located at that address.

According to the Opinion, the process servicer retained by Allstate made three (3) attempts to serve the Defendant, all on the same day of the week in different weeks.   It was additionally noted that two (2) of the attempts were made at the same time of day, between the hours of 5 and 8 p.m. The court found that these efforts failed to demonstrate that personal service could not be made.

The court otherwise denied Allstate’s Motion to Serve the Defendant by the Alternative Method of posting a copy of the Summons and the Complaint at the business street address.

The court concluded that the Plaintiff had failed to demonstrate that it had made sufficient practical efforts to serve the Defendant in person. The court noted that the Plaintiff’s efforts to actually locate an address for the Defendant were sufficient, but that the Plaintiff's effort to complete service could have been better given that the Plaintiff had a duty to show that it made practical efforts to complete that service after identifying a location for service.

The federal court stated that, generally, this requires a showing of multiple attempts to effectuate personal service. The court stated that the timing and the days on which the attempts to complete service are made are important factors in determination of whether the attempts at service will be considered to be sufficient.

As noted above, the court found that the Plaintiff’s efforts were insufficient and the Motion for Alternative Service was, therefore, denied.

At the conclusion of its Opinion, the court did not otherwise offer any advice or indication as to how service should be completed.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 15, 2024).

Source of image:  Photo by Arturo D on www.pexels.com.

Philadelphia County Court Finds Venue Lacking in Case Where Accident Occurred in New Jersey

In the case of Davis v. Arbor Material Handling, Inc., No. 230402106 (C.P. Phila. Co. Aug. 30, 2023 Anders, J.), the trial court granted a Defendant’s Preliminary Objections with regards to venue in a negligence case in which the Plaintiff alleged that a defective forklift resulted in injury to the Plaintiff.

In granting the Preliminary Objections, the trial court noted that, despite being afforded the opportunity to conduct discovery on the issue of venue, the Plaintiff did not do so. The court ultimately noted that the Plaintiff failed to meet the burden of demonstrating that Philadelphia County was a proper venue.

In contrast, the Defendant at issue presented evidence to show that Philadelphia County was an improper venue.

More specifically, the record before the court indicated that the Defendants’ registered offices were not located in Philadelphia County. In addition, the Defendants did not regularly conduct business in Philadelphia County. Moreover, the cause of action itself arose in New Jersey.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 11, 2024).