August 27, 2009
Mohegan Sun Casino
Wilkes-Barre/Scranton, Pennsylvania
The Northeast Pennsylvania Trial Lawyers Association and the Pennsylvania Defense Institute are working together to present a CLE program currently set to take place during the afternoon of Thursday, August 27, 2009 at the Mohegan Sun Casino in Wilkes-Barre/Scranton, Pennsylvania. It is hoped that members of both the plaintiff's bar and the defense bar, along with area insurance claims representatives and professionals, will be in large attendance.
Topics and presenters are currently being finalized and will likely include an ethics hour, an auto law update, tips on jury selection, info on the new Medicare Set-Asides law, and a civil litigation (non-auto) update. I plan to present the civil litigation update.
This program will be followed by a cocktail happy hour reception to which judges from all around Northeastern Pennsylvania have been invited to attend. Of course, once all is said and done, there are many nice restaurants to have a dinner followed by some gambling if you so desire. More information to follow as it comes out.
Tuesday, June 30, 2009
Sunday, June 28, 2009
Summary Judgment for Defendant Store in Slip and Fall Case
In the case of Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D.Pa. June 16, 2009), the Eastern District Federal Court granted summary judgment in favor of the defendant store on a notice defense in a slip and fall case.
The plaintiff was injured when she allegedly slipped and fell on a bit of bubble bath on the floor of the store. She sued the store on a premises liability negligence claim. After discovery, the defendant store moved for summary judgment on the grounds that the plaintiff could not produce evidence of the length of time the spill remained on the floor prior to the moment the plaintiff encountered it and fell.
In reviewing the notice defense, the court stated that in order to establish actual or constructive notice on the part of the defendant, the plaintiff had to prove that the defendant had a hand in creating the dangerous condition or that the condition existed for a sufficient amount of time that the defendant should have noticed it and cleaned it up in the exercise of reasonable care towards its customers.
The Hower court noted that the courts of Pennsylvania have "'consistently required a plaintiff to provide some proof as to the length of time a spill existed on the floor to establish constructive notice....'" The court provided a thorough review other Pennsylvania decisions granting summary judgment in the absence of such evidence and confirmed that constructive notice may not be inferred from the circumstances.
In Hower, no concrete evidence was presented as to the length of time the spill was on the floor. It was additionally noted that there was no evidence presented as to any footprints or tracking through the spill, even though the store was very busy on the day of the incident. The plaintiff also admitted that she saw no dust or dirt in the spill. Consequently, the court found no evidence to even suggest that the spill existed long enough such that the defendant, in exercise of ordinary care, should have discovered it and cleaned it up.
The court also rejected the plaintiff's contention that the store negligently failed to adhere to its "safety sweep" program of periodically checking the aisles for dangerous conditions. The court refused to allow the plaintiff to utilize evidence of the lack of safety sweeps to overcome the lack of evidence pertaining to the duration of the spill. In other words, the court noted that the defendant's alleged failure to do a safety sweep "says nothing about how long the spill was present." Accordingly, summary judgment was entered in favor of the store.
The plaintiff was injured when she allegedly slipped and fell on a bit of bubble bath on the floor of the store. She sued the store on a premises liability negligence claim. After discovery, the defendant store moved for summary judgment on the grounds that the plaintiff could not produce evidence of the length of time the spill remained on the floor prior to the moment the plaintiff encountered it and fell.
In reviewing the notice defense, the court stated that in order to establish actual or constructive notice on the part of the defendant, the plaintiff had to prove that the defendant had a hand in creating the dangerous condition or that the condition existed for a sufficient amount of time that the defendant should have noticed it and cleaned it up in the exercise of reasonable care towards its customers.
The Hower court noted that the courts of Pennsylvania have "'consistently required a plaintiff to provide some proof as to the length of time a spill existed on the floor to establish constructive notice....'" The court provided a thorough review other Pennsylvania decisions granting summary judgment in the absence of such evidence and confirmed that constructive notice may not be inferred from the circumstances.
In Hower, no concrete evidence was presented as to the length of time the spill was on the floor. It was additionally noted that there was no evidence presented as to any footprints or tracking through the spill, even though the store was very busy on the day of the incident. The plaintiff also admitted that she saw no dust or dirt in the spill. Consequently, the court found no evidence to even suggest that the spill existed long enough such that the defendant, in exercise of ordinary care, should have discovered it and cleaned it up.
The court also rejected the plaintiff's contention that the store negligently failed to adhere to its "safety sweep" program of periodically checking the aisles for dangerous conditions. The court refused to allow the plaintiff to utilize evidence of the lack of safety sweeps to overcome the lack of evidence pertaining to the duration of the spill. In other words, the court noted that the defendant's alleged failure to do a safety sweep "says nothing about how long the spill was present." Accordingly, summary judgment was entered in favor of the store.
Tuesday, June 23, 2009
Pennsylvania Supreme Court Upholds Validity of Household Exclusion--Again
On June 22, 2009, the Pennsylvania Supreme Court issued its decision in Erie Insurance v. Baker, 2009 WL 1741756 (Pa. 2009). In a 4-3 decision, the Court upheld Erie’s UIM “household exclusion.”
The case involved an injured party who was operating his motorcycle which was insured for UIM coverage by Universal Underwriters at the time of the subject 1999 accident. The injured party initially recovered from the third party tortfeasor as well as the limits of the Universal Underwriter’s UIM coverage that covered his own motorcycle.
The injured party then sought to stack UIM coverage from a policy he had with Erie Insurance covering other three vehicles, but not the motorcycle he was riding at the time of the accident. That Erie insurance policy had stacking affiliated with the available UIM coverage.
Erie filed a declaratory judgment action asserting that it did not owe UIM benefits to the injured party in light of the “household exclusion” in the Erie policy. This exclusion essentially provided that there was no UIM coverage available to the injured party under the Erie policy for incidents involving the insured being injured while occupying another motor vehicle owned by the insured but not covered under the Erie policy.
The exclusion had been upheld by the trial court and the Superior Court. The injured party attempted a "novel" argument to the Supreme Court that the household exclusion violated Section 1738 of the Motor Vehicle Financial Responsibility Law, pertaining to "Stacking of uninsured and underinsured benefits and option to waive," in that the exclusion prevented the injured party from stacking his Erie UIM benefits when he elected and paid for such stacked UIM benefits.
The majority in the Pennsylvania Supreme Court decision (Greenspan, Castille, Eakin and Saylor) held that the exclusion was a valid and unambiguous preclusion of coverage for risks that Erie had not accounted for when they determined the premium to be paid by the injured party. In other words, Erie was found not to be required to pay out UIM benefits for a vehicle that, although a vehicle in the same household, was not a vehicle covered under the Erie policy. The Court also concluded that the “application of the household exclusion in this case does not involve 'stacking' at all.”
As such the Erie Insurance Exchange v. Baker case involves yet another example of the Pennsylvania Supreme Court upholding the validity of the "household exclusion" in automobile insurance policies. This policy exclusion has been repeatedly upheld by the Supreme Court as valid and enforceable time and time again. See, e.g., Prudential Prop. & Cas. Ins. Co. v. Colbert,813 A.2d 747 (Pa. 2002); Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998). See also Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa.1994)(upholding similar "family car exclusion").
Thanks to David Cole, Executive Director of the Pennsylvania Defense Institute for bringing this decision to my attention.
The case involved an injured party who was operating his motorcycle which was insured for UIM coverage by Universal Underwriters at the time of the subject 1999 accident. The injured party initially recovered from the third party tortfeasor as well as the limits of the Universal Underwriter’s UIM coverage that covered his own motorcycle.
The injured party then sought to stack UIM coverage from a policy he had with Erie Insurance covering other three vehicles, but not the motorcycle he was riding at the time of the accident. That Erie insurance policy had stacking affiliated with the available UIM coverage.
Erie filed a declaratory judgment action asserting that it did not owe UIM benefits to the injured party in light of the “household exclusion” in the Erie policy. This exclusion essentially provided that there was no UIM coverage available to the injured party under the Erie policy for incidents involving the insured being injured while occupying another motor vehicle owned by the insured but not covered under the Erie policy.
The exclusion had been upheld by the trial court and the Superior Court. The injured party attempted a "novel" argument to the Supreme Court that the household exclusion violated Section 1738 of the Motor Vehicle Financial Responsibility Law, pertaining to "Stacking of uninsured and underinsured benefits and option to waive," in that the exclusion prevented the injured party from stacking his Erie UIM benefits when he elected and paid for such stacked UIM benefits.
The majority in the Pennsylvania Supreme Court decision (Greenspan, Castille, Eakin and Saylor) held that the exclusion was a valid and unambiguous preclusion of coverage for risks that Erie had not accounted for when they determined the premium to be paid by the injured party. In other words, Erie was found not to be required to pay out UIM benefits for a vehicle that, although a vehicle in the same household, was not a vehicle covered under the Erie policy. The Court also concluded that the “application of the household exclusion in this case does not involve 'stacking' at all.”
As such the Erie Insurance Exchange v. Baker case involves yet another example of the Pennsylvania Supreme Court upholding the validity of the "household exclusion" in automobile insurance policies. This policy exclusion has been repeatedly upheld by the Supreme Court as valid and enforceable time and time again. See, e.g., Prudential Prop. & Cas. Ins. Co. v. Colbert,813 A.2d 747 (Pa. 2002); Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998). See also Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa.1994)(upholding similar "family car exclusion").
Thanks to David Cole, Executive Director of the Pennsylvania Defense Institute for bringing this decision to my attention.
Correction
In the June 22, 2009 post below entitled "Recent Jury Verdict Entered in Pike County in Automobile Accident Case," I incorrectly listed the Plaintiff's counsel in the Beach v. Schaefers and Diaz case. The correct identity of the Plaintiff's attorney is Danielle Mulcahey, Esquire of the same law firm listed of Wright and Reihner of Scranton, Pennsylvania. The correction has been edited into the post below as well.
President Obama Nominates New Jersey U.S. District Court Judge Joseph A. Greenaway, Jr. for a seat on the Third Circuit Court of Appeals
Over this past weekend, on Saturday, June 20, 2009, President Obama nominated Judge Joseph A. Greenaway, Jr. for a seat on the United States Court of Appeals for the Third Circuit. Judge Greenaway currently sits on the United States District Court for the District of New Jersey located in Newark.
Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and also currently teaches at Cardozo School of Law.
Judge Joseph A. Greenaway, Jr., 51, has served as a U.S. District Court Judge in New Jersey for more than 12 years. Prior to coming to the federal bench as appointed by President Clinton in 1996, he was an in-house general attorney at Johnson & Johnson for six years. Before that, Judge Greenaway served as an Assistant U.S. Attorney in Newark where he worked in the Criminal Division. Prior to that he also worked in private practice and clerked for Judge Vincent Broderick in the U.S District Court for the Southern District of New York.
The Judge is a graduate of Columbia University and Harvard Law School, the law school being President Obama's alma mater.
Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and currently teaches at Cardozo School of Law. If his nomination is approved, he will fill the seat vacated when Judge Samuel A. Alito was elevated to the United States Supreme Court.
There remains one more seat to be filled on the Third Circuit. There is speculation that that vacancy will be filled by way of a nomination of a Pennsylvania Judge.
Information for this post was obtained from www.webnewswire.com/node/459055 and other news sources.
Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and also currently teaches at Cardozo School of Law.
Judge Joseph A. Greenaway, Jr., 51, has served as a U.S. District Court Judge in New Jersey for more than 12 years. Prior to coming to the federal bench as appointed by President Clinton in 1996, he was an in-house general attorney at Johnson & Johnson for six years. Before that, Judge Greenaway served as an Assistant U.S. Attorney in Newark where he worked in the Criminal Division. Prior to that he also worked in private practice and clerked for Judge Vincent Broderick in the U.S District Court for the Southern District of New York.
The Judge is a graduate of Columbia University and Harvard Law School, the law school being President Obama's alma mater.
Judge Greenaway was an adjunct professor at Rutgers School of Law in Newark from 2002 to 2006 and currently teaches at Cardozo School of Law. If his nomination is approved, he will fill the seat vacated when Judge Samuel A. Alito was elevated to the United States Supreme Court.
There remains one more seat to be filled on the Third Circuit. There is speculation that that vacancy will be filled by way of a nomination of a Pennsylvania Judge.
Information for this post was obtained from www.webnewswire.com/node/459055 and other news sources.
Monday, June 22, 2009
Recent Jury Verdict Entered in Pike County in Automobile Accident Case
According to the June 19, 2009 edition of the Pike County Legal Journal a recent jury verdict was handed down on June 12, 2009 in the Pike County automobile accident case of AURORA AND DONALD BEACH, Plaintiffs v. CHRISTINE SCHAEFERS, JESUS DIAZ, and DELBY DIAZ, Defendents, Docket No. 76-2005-Civil.
The case arose out of a car accident that occurred at around 7 p.m. on February 14, 2003 on U.S. Route 6 in Westfall Township at the light for the on-ramp to Interstate 84 around 7 p.m. The Plaintiff was a passenger in a vehicle being operated by Defendant Diaz.
Defendant Schaefers, prior attempting to make a left turn onto the I-84 on ramp, came to a stop in straight travel lane, as opposed to the left-hand turning lane. While stopped in the traffic lane, Defendant Schaefer's vehicle was rear-ended by Defendant Diaz's vehicle in which the Plaintiff, Aurora Beach, was located as a passenger. The Plaintiff alleged injuries to her to both her right knee and lower back.
It was undisputed that Defendant Schaefers was not in the left hand turning lane and was stopped in the wrong long lane of travel for such a turn. It was also undisputed that the left hand turning lane had a red light while the remaining straight lanes of travel, in which Schaefers’ vehicle was stopped, had a green light.
Both sides submitted the testimony of medical experts concerning the injuries Plaintiff sustained as a result of the accident and her need for future medical treatment. Testimony revealed Plaintiff had a herniated disc in her lower back and that she had undergone two knee surgeries and would probably need a knee replacement in the future. At the time of trial, Plaintiff was 23 years of age and had a life expectancy of 64.9 years.
Following a two-day jury trial, the jury entered a verdict in favor of the Plaintiff in the amount of $310,000. The jury found Defendant Schaeffers 80% negligent for stopping in the wrong lane of travel and found Defendant Delby Diaz 20% negligent for rear-ending the Schaefer vehicle.
The jury awarded the Plaintiff $300,000 for future medical expenses, but only $5,000 for pain and suffering, and only $5,000 for loss of enjoyment of life, for a total award of $310,000. The jury made no award for disfigurement or embarrassment and humiliation.
It appears that the Pike County jury bought into an argument that the Plaintiff may need future medical treatment, including surgery. Showing that the county is still relatively conservative when it comes to pain and suffering awards, the jury may have felt that, as long as the Plaintiff is able to treat with the medical expenses damages awarded, then the Plaintiff should have less pain and suffering. Of course, this is speculation and only a suggestion as to how the jury may have come to their decision.
The Presiding Judge at trial was the Honorable Gregory H. Chelak. Plaintiff's counsel was Danielle Mulcahey, Esquire from the Scranton law firm of Wright & Reihner. Defendant Schaefer was represented by Kevin Hayes, Esquire of the Scranton law firm of Scanlon, Howley & Doherty. Defendant Diaz was represented by the Scranton law firm of Byrne, Neyhart & Higgins.
The case arose out of a car accident that occurred at around 7 p.m. on February 14, 2003 on U.S. Route 6 in Westfall Township at the light for the on-ramp to Interstate 84 around 7 p.m. The Plaintiff was a passenger in a vehicle being operated by Defendant Diaz.
Defendant Schaefers, prior attempting to make a left turn onto the I-84 on ramp, came to a stop in straight travel lane, as opposed to the left-hand turning lane. While stopped in the traffic lane, Defendant Schaefer's vehicle was rear-ended by Defendant Diaz's vehicle in which the Plaintiff, Aurora Beach, was located as a passenger. The Plaintiff alleged injuries to her to both her right knee and lower back.
It was undisputed that Defendant Schaefers was not in the left hand turning lane and was stopped in the wrong long lane of travel for such a turn. It was also undisputed that the left hand turning lane had a red light while the remaining straight lanes of travel, in which Schaefers’ vehicle was stopped, had a green light.
Both sides submitted the testimony of medical experts concerning the injuries Plaintiff sustained as a result of the accident and her need for future medical treatment. Testimony revealed Plaintiff had a herniated disc in her lower back and that she had undergone two knee surgeries and would probably need a knee replacement in the future. At the time of trial, Plaintiff was 23 years of age and had a life expectancy of 64.9 years.
Following a two-day jury trial, the jury entered a verdict in favor of the Plaintiff in the amount of $310,000. The jury found Defendant Schaeffers 80% negligent for stopping in the wrong lane of travel and found Defendant Delby Diaz 20% negligent for rear-ending the Schaefer vehicle.
The jury awarded the Plaintiff $300,000 for future medical expenses, but only $5,000 for pain and suffering, and only $5,000 for loss of enjoyment of life, for a total award of $310,000. The jury made no award for disfigurement or embarrassment and humiliation.
It appears that the Pike County jury bought into an argument that the Plaintiff may need future medical treatment, including surgery. Showing that the county is still relatively conservative when it comes to pain and suffering awards, the jury may have felt that, as long as the Plaintiff is able to treat with the medical expenses damages awarded, then the Plaintiff should have less pain and suffering. Of course, this is speculation and only a suggestion as to how the jury may have come to their decision.
The Presiding Judge at trial was the Honorable Gregory H. Chelak. Plaintiff's counsel was Danielle Mulcahey, Esquire from the Scranton law firm of Wright & Reihner. Defendant Schaefer was represented by Kevin Hayes, Esquire of the Scranton law firm of Scanlon, Howley & Doherty. Defendant Diaz was represented by the Scranton law firm of Byrne, Neyhart & Higgins.
Sunday, June 21, 2009
Pennsylvania Supreme Court Declines Opportunity to Add Negligence Principles to Strict Liability Doctrine
Last week, in the case of Bugosh v. I.U. North America, 2009 WL 1663998, PICS Case No. 09-1010 (Pa. June 17, 2009), the Pennsylvania Supreme Court declined an opportunity to address an important issue of whether negligence concepts should be introduced into the strict liability doctrine currently employed under Pennsylvania law.
The appeal arose out of a 2005 jury verdict that held I.U. North America, a successor of a supplier that sold non-asbestos products, liable for Edward Bugosh's exposure to asbestos. Bugosh, who died while his case was in trial, worked with asbestos provided by Pittsburgh Gage, I.U. North America's predecessor, until 1966. His wife, Judith R. Bugosh, pursued the case in her own right and as administrator of her late husband's estate.
During arguments before the Supreme Court before the case was dismissed as improvidently granted, the Defendant Corporation argued that the company should be allowed to present expert testimony that mesothelioma -- the disease caused by exposure to asbestos -- was a medical unknown until 1965. The defense was raising the concept of foreseeability in this strict liability case by arguing that, since the danger was unknown and not foreseeable, blame could not be attached to the defendant for an alleged failure to warn.
Such an argument would apparently be allowed under the proposed adoption of the Third Restatement of Torts but is currently not allowed under the present status of Pennsylvania strict liability law, which does not allow for consideration of negligence principles of law; rather, if a plaintiff proves the case, a defendant is "strictly liable."
In a one-line Order and without explanation, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted." However, two justices -- Thomas G. Saylor and Chief Justice Ronald D. Castille -- dissented from the majority and wrote that "adjustments [to the state's current law] are long overdue."
One wonders why the Court, after having the issues briefed and after having heard oral argument from the attorneys, simply did not see the matter through and settle the issues presented with a decision and a reasoned opinion. Apparently, the majority of the court did not feel that the case before them properly and fully presented the issue for their full consideration.
In his lengthy dissent, noting his disagreement with that proposition, Justice Saylor reviewed the currently recognized strict product liability law under Section 402A of the Second Restatement of Torts, and why he explained why he felt the Pennsylvania courts would be better served to replace it with Section 2 of the Third Restatement of Torts, which allows for consideration of negligence concepts in strict liability cases.
According to Justice Saylor, "the court should no longer say negligence concepts have no place in 'strict-liability' doctrine in Pennsylvania, when this simply is not accurate in our tort scheme, or in any scheme purporting to recognize that manufacturers and distributors are not outright insurers for all harm involving their products."
Justice Saylor also stated that the "reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind. The Restatement would serve as a far more rational platform from which to make modest future adjustments, if necessary."
This dissenting opinion will surely assist defendants in attempting to push through this change in the law in the future. Until then products liability litigators will have to await another day for either the Court or the Legislature to update Pennsylvania law in this regard.
The appeal arose out of a 2005 jury verdict that held I.U. North America, a successor of a supplier that sold non-asbestos products, liable for Edward Bugosh's exposure to asbestos. Bugosh, who died while his case was in trial, worked with asbestos provided by Pittsburgh Gage, I.U. North America's predecessor, until 1966. His wife, Judith R. Bugosh, pursued the case in her own right and as administrator of her late husband's estate.
During arguments before the Supreme Court before the case was dismissed as improvidently granted, the Defendant Corporation argued that the company should be allowed to present expert testimony that mesothelioma -- the disease caused by exposure to asbestos -- was a medical unknown until 1965. The defense was raising the concept of foreseeability in this strict liability case by arguing that, since the danger was unknown and not foreseeable, blame could not be attached to the defendant for an alleged failure to warn.
Such an argument would apparently be allowed under the proposed adoption of the Third Restatement of Torts but is currently not allowed under the present status of Pennsylvania strict liability law, which does not allow for consideration of negligence principles of law; rather, if a plaintiff proves the case, a defendant is "strictly liable."
In a one-line Order and without explanation, the Pennsylvania Supreme Court dismissed the appeal as "improvidently granted." However, two justices -- Thomas G. Saylor and Chief Justice Ronald D. Castille -- dissented from the majority and wrote that "adjustments [to the state's current law] are long overdue."
One wonders why the Court, after having the issues briefed and after having heard oral argument from the attorneys, simply did not see the matter through and settle the issues presented with a decision and a reasoned opinion. Apparently, the majority of the court did not feel that the case before them properly and fully presented the issue for their full consideration.
In his lengthy dissent, noting his disagreement with that proposition, Justice Saylor reviewed the currently recognized strict product liability law under Section 402A of the Second Restatement of Torts, and why he explained why he felt the Pennsylvania courts would be better served to replace it with Section 2 of the Third Restatement of Torts, which allows for consideration of negligence concepts in strict liability cases.
According to Justice Saylor, "the court should no longer say negligence concepts have no place in 'strict-liability' doctrine in Pennsylvania, when this simply is not accurate in our tort scheme, or in any scheme purporting to recognize that manufacturers and distributors are not outright insurers for all harm involving their products."
Justice Saylor also stated that the "reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind. The Restatement would serve as a far more rational platform from which to make modest future adjustments, if necessary."
This dissenting opinion will surely assist defendants in attempting to push through this change in the law in the future. Until then products liability litigators will have to await another day for either the Court or the Legislature to update Pennsylvania law in this regard.
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