Sudden Emergency Doctrine Not Applicable in Every Pedestrian Case

In the case of Olar v. Bennett, No. 703 WDA 2022 (Pa. Super. Dec. 29, 2023 Bender, P.J.E., Lazarus, J., and Kunselman, J.) (Op. by Lazarus, J.), the Pennsylvania Superior Court ruled that a trial court committed error at trial by giving the Defendant’s requested sudden emergency jury instruction and requested driver’s duty of care instruction in a case where the Defendant driver struck pedestrians.

The Superior Court ruled that the evidence did not support a determination that the Defendant was confronted with a sudden and unforeseeable occurrence.

According to the Opinion, the pedestrian Plaintiffs had left a party at approximately 11:30 p.m. at night and were crossing a two-lane road that was lit with streetlight to return to a parking lot and their car when the Defendant’s minivan struck them as they were crossing the road.

According to the Opinion, the Defendant driver testified that he had a clear view of the road in front of him, was going 20-25 mph in a 25 mph zone, and that he did not see the Plaintiffs until he hit them. The Defendant tested negative for any drugs or alcohol.

The Plaintiffs presented an expert accident reconstructionist who testified that the Plaintiffs would have been visible at a distance of nearly 300 feet. The expert also testified that, even if the Defendant were traveling at a higher speed of 30 mph, he still could have been able to stop his vehicle prior to striking the Plaintiffs if he had been paying attention.

Moreover, the sole eyewitness to the accident testified that he saw the Plaintiffs enter the road at a slow pace, that is, the Plantiffs did not dart out, and that he did not hear any horns, skidding or screeching tires before the Plaintiffs were hit.

The Superior Court noted that a driver’s duty of vigilance and attentiveness was required just as much during daylight, if not more, at night.

The Superior Court held that it was error for the trial court to give the requested sudden emergency instruction as night driving was not an emergency and given that a driver had a duty to adjust his or her speed based upon road conditions and visibility so as to ensure his ability to react to foreseeable events.

It was additionally emphasized that this was not a “dart out” case in terms of the actions of the Plaintiffs.

The appellate court found that the trial court’s failure to instruct the jury on the driver’s duty of care precluded a clarification of a material issue in the case for the jury.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 16, 2024).

Source of image:  Photo by Hooman R. on www.unsplash.com.

Pennsylvania Supreme Court Upholds Validity of Regular Use Exclusion

On January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the Regular Use Exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.).

The Pennsylvania Supreme Court has ruled that, as presented in this case, the Regular Use Exclusion contained in motor vehicle insurance policies does not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law [MVFRL].

The Plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle.  

The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle.

The Plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home.  Erie Insurance relied upon a Regular Use Exclusion contained in the policy to deny coverage on the UIM claim.

The trial court and the Superior Court had ruled, in part, that the Regular Use Exclusion violated the provisions of the MVFRL, and in particular, the terms of 75 Pa.C.S.A. Section 1731.  

More specifically, the lower courts had held that the Regular Use Exclusion conflicted with the language of Section 1731's mandate of the provision of UIM coverage to insureds by limiting the scope of the coverage provided by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own.

As noted, in its decision, the Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.

In so ruling, the Pennsylvania Supreme Court pointed to prior decisions it had rendered repeatedly upholding the validity of the Regular Use Exclusion.  The Court found the Plaintiff's arguments in this case to be a mere recitation of at least one of the same arguments that had been previously rejected by the Court relative to the validity of the Regular Use Exclusion.

The Supreme Court rejected the Plaintiff's argument that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident.  The Court noted that, to accept such an argument would render all exclusions invalid.  The Supreme Court rejected this argument.

The Supreme Court also rejected the Plaintiff's reliance upon the Pennsylvania Supreme Court's decision in  Gallagher v. GEICO for the proposition that the Regular Use Exclusion should be eradicated across the board just as the Household Exclusion had been eradicated in Gallagher as a allowing for a de facto waiver of stacked coverage when the MVFRL required the carrier to secure a written waiver of coverage from its insureds.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court confirmed that it had clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  See Op. at p. 31-32.  In Mione, the Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that "[i]f the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibit exclusions from UIM coverage."  See Op. at p. 36.  

As such, the Court ruled that the terms of the UIM insurance contract between the parties still controlled relative to the scope of the UIM coverage available, or not available, and that, therefore, the Regular Use Exclusion remained enforceable.  Id.

The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court would maintain its continued course on this issue "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise."  Id. at p. 36-37.

Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.

Anyone wishing to review the Majority's Opinion may click this LINK.  Justice Wecht's Concurring Opinion can be viewed HERE.

Source of image:  Photo by d koi on www.unsplash.com.

Court Addresses Issues Arising From Accident Between Rider Mower and Passing Motorist

In the case of Barrick v. Koontz, No. 2019-SU-001700 (C.P. York Co. Jan 8, 2024 Vedder, J.), the court granted summary judgment in favor of the Defendants in a case involving a collision between a Plaintiff on a rider lawnmower and a truck that was passing on the roadway.

According to the Opinion, the Plaintiff-husband, who was on the lawnmower, did not have any memory of the accident and the Plaintiff-wife was not present to witness the accident. The only individuals with any memories of the crash were the Defendant driver and a motorist who was traveling in another vehicle behind the Defendant’s vehicle.

The record also confirmed that the Plaintiff admitted in the case that, as the Defendant driver was driving his truck past the Plaintiff’s property, the Plaintiff’s lawnmower came off a bank and from behind a bush on the property and entered the roadway.

In his Opinion, Judge Vedder addressed multiple issues on the liability question as presented by both sides of the case, including issues regarding the law of negligence, duties owed when entering roadways, expert issues, the last clear chance doctrine, the assured clear distance ahead rule and the mere happening of an accident rule. In the end, the court found that the Plaintiff failed to produce evidence to establish a prima facie case of negligence against the Defendants, specifically with respect to the alleged breach of any duty.

As noted, the court entered summary judgement in favor of the Defendant motorist.    

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

I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Mock Trial Jurors Needed for Wednesday

 

Tort Talk Has Surpassed 4,000 Blog Posts

 

Tort Talk has posted its 4,000th Blog post since beginning in May of 2009.  

Thank you to all the Tort Talkers for the continuing tips on important new decisions and for your readership.

Will try to keep 'em coming.

Mock Trial Jurors Needed Please

 

Defendant's Motion for Sanctions Regarding Inability To Complete Autopsy Denied by Court

In the case of Estate of Eddy v. Saber Healthcare Group, LLC, No. 2022-CV-1553 (C.P. Dec. 15, 2023 Nealon, J.), the court addressed a motion by medical malpractice Defendant for spoliation sanctions. In this case, the decedent’s son filed a wrongful death lawsuit against a nursing care facility alleging that his mother fell and suffered blunt forced trauma to her head due to the facilities negligence, which negligence result in the decedent’s death nine (9) days after that injury. The Plaintiff also alleged that the facility misrepresented that the decedent died from “end-stage dementia” rather than blunt force trauma.

The son maintained that the facility never advised him of his mother’s fall down event and/or head injury prior to her death and that, upon viewing his mother’s head wound and bandaging at the funeral home, which did not correlate with the cause of death explanation provided by the facility, the son contacted an attorney who recommended that the son have an autopsy completed, which was done.

The forensic pathologist who completed the autopsy authored a report identifying blunt force trauma of the head, dehydration, and malnutrition as pathological diagnoses. The decedent was then cremated shortly thereafter.

During the course of this litigation, certain Defendants filed the Motion for Spoliation Sanctions seeking to have the case dismissed with prejudice or, in the alternative, to preclude any autopsy evidence and to have an adverse inference instruction issued based upon the son’s alleged deliberate spoliation of evidence by way of cremating his mother’s body which thereby deprived the facility of its own opportunity to conduct its own autopsy.

After reviewing the record before him, Judge Nealon noted that a litigant has a duty to preserve relevant evidence if that party knows that litigation is pending or likely and it is foreseeable that spoliation of that evidence will prejudice the opposing party.

Here, the court found that the wrongful death claim against the facility did not become likely until the forensic pathologist authored the autopsy report in March of 2021, almost two (2) months after the mother’s body had been cremated.

The court noted that no evidence was offered during the evidentiary hearing on the motion which suggested that the son or his attorney knew of the forensic pathologist’s autopsy conclusions when the mother’s body was cremated.

It was additionally noted that credible evidence was presented at the hearing which established that the facility had opportunities to examine and inspect the mother’s body and head injuries, or arguably to request an autopsy, before it released the decedent’s body the funeral home after the facility had certified that the decedent had died from “end-stage dementia.”

Judge Nealon otherwise noted that there also remained other relative evidence available to the defendant facility to dispute or otherwise challenge the son’s claim that his mother instead died from blunt force trauma to the head, dehydration, and malnutrition.

Therefore, after consideration of the alleged degree of fault on the part of the son and his attorney in connection with the spoliation of the decedent’s corpse, the extent of any alleged resulting prejudice to the defendant facility, and the facility’s alleged ability to use other existing evidence to remedy any claimed disadvantage, the Motion for Spoliation Sanctions was denied.

Judge Nealon additionally ruled that the facility would be permitted to present evidence at trial pertaining to the spoliation of the evidence at issue so that the jury may assess that evidence whatever weight the jury deem it was entitled to receive.

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