Plaintiff Permitted to Proceed With Allegations of Recklessness At Pleadings Stage in a MVA Case

In the case of Morrisey v. Beamer, No. C-48-CV-2023-00333 (C.P. North. Co. Nov. 28, 2023 Beltrami, J.), the court overruled a Defendant’s Preliminary Objections asserted in a motor vehicle accident case relative to the claims of recklessness.

In so ruling, the court relied upon the Pennsylvania Superior Court decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785 (Pa. Super. 2022), in which that court noted that a claim of recklessness is permitted at the pleadings stage whenever a claim of negligence is asserted given that, under Pa. R.C.P. 1019(b) provides that claims regarding the “conditions of mind may be averred generally.”

The court noted that the Defendant retained the right to move for partial summary judgment on the issue of recklessness at the close of discovery if such allegations were not supported by the facts.

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

Judge Nealon Addresses Procedural and Substantive Complaint Issues Regarding a Complaint in Med Mal Case

In the case of Healey v. Scranton Hospital Company, LLC, No. 23-CV-1793 (C.P. Lacka. Co. Nov. 20, 2023 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by Defendants in a medical malpractice case.

In part, the hospital Defendant filed Preliminary Objections in the nature of a demurrer to the Plaintiff’s vicarious liability claims for failing to identify its alleged agents by name and failing to specify their agency authority.

The hospital Defendant also filed Preliminary Objections against the Plaintiff’s corporate negligence claims for (1) neglecting to allege its notice of the claimed institutional deficiencies, and (2) asserting the corporate liability claims against it and a Co-Defendant LLC in the same Count in the Complaint.

Also at issue in this case was a demurrer filed by the hospitalist and the LLC employer to the vicarious liability and corporate negligence claim asserted against those parties. 

Those Defendants also sought to strike the Plaintiff’s allegations of gross negligence as well as allegations against “Defendants” as asserted in lump sum fashion in certain paragraphs without clarifying which particular Defendant is being referenced, among other issues.

The Court issued the following decisions in this Opinion.    

Judge Nealon noted that, since it is not necessary for a Plaintiff to establish a right to recover on a vicarious liability claim based upon the negligence of a specifically named employee, the demurrers to the Plaintiff’s vicarious liability claims premised on the conduct of unnamed agents was overruled.

The court otherwise also ruled that, while the Plaintiffs had alleged a viable claim for corporate liability against the hospital and the LLC employer, the Plaintiff had failed to state a cognizable corporate negligence claim against the individual hospitalist Defendant for institutional negligence.  As such, the corporate liability claim against the hospitalist was dismissed.

The court additionally sustained the Preliminary Objections regarding the combined allegations asserted in single pleadings against multiple Defendants..  The court ruled that the corporate liability claims against the hospital and the LLC employer were required to be alleged in self-sufficient separate Counts under separate, distinct headings in the Complaint in order to comport with Pa. R.C.P. 1019(a) and 1020(a).

The court additionally ruled that, pursuant to 40 P.S. §1303.505(b) and (c), the Plaintiff’s allegations of “gross” negligence were immaterial to the Plaintiff’s malpractice burden of proof and, as such, would be stricken as impertinent matter in accordance with Pa. R.C.P. 1028(a)(2).

The court otherwise noted that blanket references to “Defendants” in lump sum fashion in certain paragraphs in the Complaint were improper.

The Plaintiff was afforded an opportunity to amend the Complaint to correct these errors and other errors identified above.

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

Superior Court Upholds Defense Verdict Reached By Jury After 14 Minutes in Med Mal Case

In the case of Corey v. Wilkes-Barre Hospital Co., LLC, No. 507 MDA 2021 (Pa. Super. Dec. 11, 2023 en banc) (Op. by King, J.) (Olson, J. Concurring) (Kunselman, J. Dissenting), the Pennsylvania Superior Court addressed numerous issues in a medical malpractice claim in which a nonsuit, in part, had been granted and in which issues were raised with regard to the verdict slip and the short length of time that the jury deliberated before announcing its defense verdict.

With respect to the Plaintiff’s post-trial challenges in regards to the identity of the parties on the verdict slip, it was noted that the trial court had confirmed that Plaintiff’s counsel failed to object to the verdict slip when the trial court had provided an opportunity to the attorneys, immediately prior to the slip being provided to the jurors, to note any objections. The trial court had indicated that, when asked if counsel was satisfied with the verdict slip, Plaintiff’s counsel answered in the affirmative.

On appeal, the Plaintiff had also complained that the jury returned a verdict within only fourteen (14) minutes after the case had been given to the jury for a decision. The Plaintiff argued that the Plaintiff did not believe that the short conference by the jury resulting the verdict should had been considered “deliberations.”

The appellate court disagreed and rejected the Plaintiff’s request that the case be remanded to the trial court for an evidentiary hearing to determine whether an improper outside influence, or other misconduct, influenced the jury’s deliberation. The appellate court found that the trial court had correctly determined that the Plaintiff failed to offer any good reason to justify further inquiry into the validity of the verdict.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Judge Olson can be viewed HERE.  The Dissenting Opinion by Judge Kunselman can be viewed HERE.


Source: Article – “Rejecting Verdict Slip and Jury Deliberation Challenges, Superior Court Affirms Nonsuit for Northeast PA Hospital” By Riley Brennan of the Pennsylvania Law Weekly (Dec. 12, 2023).

THE 2023 TORT TALK TOP TEN

THE 2023 TORT TALK TOP 10

10. Service of Process


There were many decisions handed down over the past year by trial and appellate court judges confirming that a case will be dismissed if a plaintiff does not make good faith efforts to complete service of original process on the actual defendant in the matter in accordance with the case of Lamp v. Heyman and its progeny. To access a number of these decisions as summarized on the Tort Talk Blog (www.TortTalk.com), use this Link: http://www.torttalk.com/search/label/Service%20of%20Process

9. COVID-19 Pandemic Coverage Issues Persists


Over the summer, the Pennsylvania Supreme Court issued an Order granting allocator to hear arguments in the case of MacMiles v. Erie Insurance Exchange and the case of Ungarean v. CNA and Valley Forge Insurance. In these two cases, the Superior Court reached opposite conclusions regarding whether insureds should be allowed business interruption insurance coverage for losses stemming from the COVID-19 pandemic. It remains to be seen which way the Court will go.


To review the Tort Talk post on COVID-19 business interruption coverage cases, click this LINK.

8. Household Exclusions

In the case of Erie Ins. Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023) (Op. by Wecht, J.), the Pennsylvania Supreme Court addressed the enforceability of two (2) household vehicle exclusions in a pair of automobile insurance policies. In the end, whereas the Pennsylvania Supreme Court previously ruled that household exclusions are unenforceable, that Court has now held that household exclusions do remain enforceable under Pennsylvania law in certain circumstances.

In the end, the Pennsylvania Supreme Court in Mione ultimately concluded that the lower court correctly distinguished the Gallagher decision from the facts in this case and correctly enforced the household exclusions contained in the insured’s automobile insurance policies.


To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

7. Consent To Jurisdiction By Registering to do Business


In June of 2023, the Pennsylvania Supreme Court was overturned by the United States Supreme Court in the case of Mallory v. Norfolk Southern Railway Co., ___ U.S.___ (June 27, 2023) in a 4-1-4 plurality decision.

In Mallory, the United States Supreme Court upheld the Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to submit to jurisdiction in Pennsylvania courts on “any cause of action” filed against the company, even when the alleged injury occurred outside of Pennsylvania. The lower decision by the Pennsylvania Supreme Court was vacated and remanded.

Under a more recent Order, the Pennsylvania Supreme Court then punted on the issue and remanded the issue all the way back down to the trial court for consideration

To review the Tort Talk post on this case, click this LINK



6. Social Host Liability


In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court held that an organization hosting an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

5. Workers Compensation – Employer Immunity


In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the Pennsylvania Supreme Court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries. The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries. The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this dog bite action that occurred at a workplace. None of the exceptions were found to apply.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.


4. Stacking Waiver Forms


In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).

The basic rationale of the Court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, there was no requirement under the law for the carrier to secure a new waiver form.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.



3. The Dying Doctrine of Forum Non Conveniens


In the case of Brooks v. Griffy, No. 22-CV-3250 (C.P. Lacka. Co. Oct. 18, 2023 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Petition for Transfer under the doctrine of forum non conveniens and denied the same.

In his Opinion, Judge Nealon addressed the current status of the law regarding this doctrine and noted that the law had been chipped away at by recent decisions calling into question the continued validity of the arguments made under this doctrine, especially in light of the need to show that the jurisdiction chosen by the Plaintiff was oppressive and vexatious.

The court pointed to the continued use of advanced communication technologies in litigation matters, such as Zoom, has served to substantially lessen any burdens or hardships that may be associated with participating in any given litigation at any location.

As such, the Defendant’s Motion to Transfer the case to Montgomery County based upon the doctrine of forum non conveniens was denied.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK

2. Test for Proper Venue Revised


In the case of Hangey v. Husqvarna, No. 14 EAP 2022 (Pa. Nov. 22, 2023), the Pennsylvania Supreme Court held that a defendant company’s percentage of sales, in of itself, is no longer sufficient to determine whether or not a company has sufficient business in a particular jurisdiction for venue purposes. Accordingly, under yet another plaintiff-friendly decision by the Pennsylvania Supreme Court, a business that only derives a small portion of its revenue from a particular county in Pennsylvania may still be sued in that county.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

1. Punitive Damages

In its recent Pro-Plaintiff decision in the case of Bert Company v. Turk, No. 13 WAP 2022 (Pa. July 19, 2023) (Op. by Donohue, J.) [Numerous Concurring Opinions written by numerous Justices], the Pennsylvania Supreme Court considered United States Supreme Court precedent in addressing the constitutionality of an award of punitive damages by a civil jury in Pennsylvania.

More specifically, the court addressed the ratio calculation, that is, the appropriate ratio calculation measuring the relationship between the amount of punitive damages awarded against multiple Defendants who are found to be joint tortfeasors, and the compensatory damages awarded.

The Pennsylvania Supreme Court generally endorsed the per-Defendant approach as being consistent with federal constitutional principles that require consideration of a Defendant’s due process rights.

To review the Tort Talk post on this case, along with a Link to the Opinion, click this LINK.

What to watch for in 2024:

Keep an eye out for a decision from the Pennsylvania Supreme Court on the viability of the Regular Use Exclusion in the case of Rush v. Erie Insurance Exchange.

The Pennsylvania Supreme Court is also expected to issue a decision providing guidance for COVID-19 Business Interruption coverage cases.

Superior Court Finds No Duty Owed By Methadone Clinic to Public At Large Where Client Allegedly Drove Intoxicated and Caused Injury

In the case of Ritz v. Ramsay, No. 1024 WDA 2022 (Pa. Super. Nov. 14, 2023 Bender, P.J.E., Stabile, J., and Pellegrini, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court ruled that the trial court properly dismissed and executor’s action against medical center parties that allegedly gave methadone to a driver of a car who allegedly then killed the decedent in a Christmas Eve, 2016 motor vehicle accident.  The decedent was out for a run when he was hit and killed.  

The Superior Court found that the trial court did not err in declining to impose a duty of care on the medical center parties, particularly where there was no relationship between the decedent and the medical center parties.

According to the Opinion, the decedent was struck by a car and killed after the driver, who was a patient at the Defendant medical center’s methadone clinic, had allegedly received a larger than normal dose of methadone on the day of the accident.

The records show that the driver’s post-accident blood and urine samples also showed the presence of marijuana and alprazolam in addition to the methadone.

According to the Opinion, the medical center parties were alleged to have been aware, based upon prior blood tests, that the driver repeatedly used non-prescription anti-anxiety drugs and marijuana during the course of his methadone treatment, which conduct was in violation of the directives of the methadone center.

The Plaintiffs asserted that the medical center parties knew or should have known that given the driver a larger than normal dose of methadone posed an unreasonable risk to the public. As such, the Plaintiff sued for negligence under the wrongful death statute.

The Pennsylvania Superior Court noted that there were no allegations that the medical center parties knew that the driver drove while intoxicated as a result of his ingesting of other substances along with his methadone.  As such, the appellate court agreed that the foreseeability of this tragedy was too remote to impose a duty under Pennsylvania law.

The appellate court additionally noted that imposing liability in this regard would not serve the public interest in view of the lack of foreseeability and given the strong public interest in the rehabilitation of users of elicit drugs through, in part, methadone clinics.

The Superior Court also ruled that the trial court was within its discretion not to allow the Plaintiff the right to amend given that, under the facts, circumstances, and the law of this case, any effort at filing an Amended Complaint would have been futile.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 7, 2023).

Trial Court Provides Instruction on Scope of Ability of Deponent's Attorney To Properly Interject at a Deposition

In the case of Early Bird Carwash, Inc. v. Piermattei, No.  (C.P. Lyc. Co. Sept. 18, 2023 Linhardt, J.), the court granted in part and denied in part discovery motions filed by both parties in a legal malpractice action.

Of note, the court granted the Plaintiffs’ Motion to Reconvene a Deposition after defense counsel was found to have obdurately and acrimoniously interrupted Plaintiffs’ attorney’s initial attempt at a deposition by way of the defense counsel engaging in continual, repeated objections that were found to be meant to obstruct the course of the deposition.

The court noted that a deposition is meant to be a question-and-answer conversation between the deposing attorney and the witness.

With that in mind, the court noted that the deposing lawyer is entitled to pursue a chosen line of questioning without improper interjections by the witness’s attorney.

Judge Linhardt noted that an attorney for the deposition witness should not act as an intermediary by interpreting questions, deciding which questions the witness should answer, and/or by helping the witness to formulate answers.

In this matter, the court found that the attorney for the Defendants repeatedly and continuously interrupted the deposition testimony by interposing objections, instructing the witness not to answer questions, and otherwise providing commentary on the questions presented and the exhibits being utilized.

The court admonished that the defense attorney’s clear intent was to prevent Plaintiffs’ attorney from pursing his line of inquiry and the deposition from taking its natural course.

The court found that the conduct of defense counsel was obdurate but not necessarily acrimonious, and that defense counsel’s conduct ultimately prejudiced the Plaintiffs by repeatedly and unnecessarily interrupting the deposition.

Accordingly, the court directed that the Defendants submit to a repeat deposition. Defense counsel was ordered to bear the cost of the same. The court also ordered the Defendants should present one or more witnesses properly prepared to answer questions on the designated topics. Additionally, counsel for the Defendant was told to keep interjections to a minimum. The court did decline to issue an award of attorney’s fees as a sanction.

In another Order in this decision, the court ordered the Defendant to provide responses to the Plaintiffs’ requests for discovery of an electronic records, or to explain the unavailability of the associated electronic storage media.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 21, 2023).

Plaintiff's Failure to Present Sufficient Evidence of Notice in a Slip and Fall Case Leads to Entry of Summary Judgment

In the case of Livshitz v. Designer Brands, Inc., No. 22-CV-3355 (E.D. Pa. Nov. 14, 2023 Murphy, J.), the court granted summary judgment in a slip and fall case after finding that the Plaintiff failed to present any evidence to suggest that the landowner had actual or constructive notice of an allegedly dangerous condition.

The court noted that allegations of a lack of inspections by the landowner do not amount to affirmative evidence on the issue of notice.

The court noted that, while a Defendant may have failed to follow company procedures may be evidence of a breach of a duty, there must first be a duty of care owed and, according to this court, a duty of care requires actual or constructive notice of an allegedly dangerous condition.  Given that no evidence of notice was presented, summary judgment was granted.

This decision is also notable in that court rejected the Plaintiff’s allegations of video tape spoliation as being irrelevant because there was no evidence that there were any surveillance cameras inside the restroom stall where the Plaintiff allegedly fell.

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 Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of Image:  Photo by Galen Crout on www.unsplash.com.

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