PLEASE SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Johnson v. Parderlikes, No. 5920-CV-2023 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 20, 2025).

Organizer of Sports Tournament Who Required Attendees To Stay At a Hotel Dismissed as a Defendant in Premises Liability Case

In the case of E.Z. v. JSKLD Hospitality Enterprise, LLC, No. 2-23-CV-835-RJC (W.D. Pa. March 14, 2025 Colville, J.), a federal district court granted a Motion to for Judgment on the Pleadings in favor of a certain Defendant sued by a Plaintiff in a premises liability case.

In this matter, the Plaintiff sued the owner of the hotel where the accident happened along with a Defendant entity that ran ice hockey tournaments and who required the participants in the tournament to stay at the hotel.

The entity that ran the ice hockey tournaments filed a Motion for Judgment on the Pleadings seeking to be dismissed on the grounds that it had no duty to maintain the premises where the accident happened.   

In this matter, the district court reaffirmed the general rule of law that premises liability does not extend to parties who are not in control of the relevant premises. Rather, the premises liability is focused on the relationship between the individual or entity in control of the premises and the business invitee who ventured on the premises.

The court ruled that the Plaintiffs cannot impute a premises liability duty upon a third-party who is not affiliated with the property.

More specifically, the court ruled that the fact that the organizer of the tournament merely place a hotel on an approved list for the attendees of the tournament did not impose a duty on the organizer of the tournament to inspect that hotel. Furthermore, any such alleged duties were entirely duplicative of the duties already imposed upon the hotel operator itself.

The court offered the additional rationale in support of its Motion to Dismiss by asserting that extending duties to persons without control over the property has no social utility and would, instead, reduce the safety incentives for the actual property owner.

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 office in Philadelphia for bringing this case to my attention.

Co-Owner of Premises Not an Indispensable Party to a Slip and Fall Lawsuit Where that Co-Owner Does Not Exercise Control Over the Premises

In the case of Simone v. Alam, No. 35 MAP 2024 (Pa. March 20, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court, in a slip and fall concluded that a tenant in common who did not exercise possession or control over the property is not an indispensable party in a premises liability action.

According to the Opinion, the Plaintiff was a resident in a multi-tenant building, who slipped and fell on ice in a common area.

The Plaintiff sued the owner of the premises and asserted that he was responsible for the common areas.

The trial court had dismissed the Plaintiff’s Complaint for failure to join an indispensable party, that being the owner’s brother, who was a co-owner of the property. The trial court had held that all co-owners must be joined in a premises liability action. The Superior Court affirmed.

As noted above, the Pennsylvania Supreme Court reversed. The Supreme Court found that liability in premises liability cases is based upon possession and control, not mere ownership. The court noted that, since the record revealed that the owner who was sued was the sole manager who controlled the property, the owner’s brother was not an indispensable party under the circumstances.

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


I thank the Plaintiff’s attorney, Jacqueline Morgan, as well as Michael W. Landis, of the same law firm of Lowenthal & Abrams, P.C. in Bala Cynwyd, PA for brining this case to my attention.

Court Rejects Forum Non Conveniens Argument Relative to Claims Arising Out of a Stay at a Mexican Resort

In the case of Dent v. Amresorts, L.P., No. 2:24-CV-06354-MAK (E.D. Pa. Jan. 31, 2025 Kearney, J.), the court addressed a Motion to Dismiss a wrongful death claim arising out of a Plaintiff’s death at an all-inclusive resort in Mexico. The Plaintiffs sued the United States owners and managers of the all-inclusive resort for their negligence in ensuring the safety of their guest.

According to the Opinion, prior to traveling to the all-inclusive resort in Mexico owned and operated by the American Defendants, the Plaintiffs allegedly contacted the resort to inquire about its medical services. According to the Plaintiffs, the resort represented that it had a doctor available 24-hours a day, an ambulance located on site, and a staff that was certified in CPR. The resort also claimed that it was located thirty (30) minutes away from the cities of Cancun and Playa del Carmen.

While visiting the resort, the Plaintiff’s husband began to complain of chest pains and requested aspirin. The Plaintiff went to the resort’s clinic and was notified by the on-site physician that the resort did not have any aspirin. The physician went to the Plaintiff’s room and diagnosed the husband as suffering a heart attack. The physician arranged for an ambulance that arrived thirty (30) minutes later.

The ambulance then took the Plaintiff’s husband to a private hospital an hour away.

Then, the hospital staff at that hospital demanded that the Plaintiff pay $3,000.00 for her husband to even enter the hospital. The hospital then demanded $41,000.00 to provide medical care and refused to treat the Plaintiff’s husband until that amount was paid. That hospital also refused to transfer the Plaintiff’s husband to a public hospital.

While trying to arrange a wire transfer for the $41,000.00, the Plaintiff’s husband passed away.

The hospital in Mexico then refused to release the Plaintiff’s husband’s body until the Plaintiff paid the $41,000.00 that was demanded. According to the Opinion, that Mexico hospital later billed the Plaintiff’s health insurance company over a $100,000.00 for services that was not performed.

The Plaintiff sued the American Defendants in this case for negligent medical assistance. The Plaintiff more specifically alleged that the Defendants negligently failed to have aspirin or an ambulance on site and negligently transported her husband to a private hospital further away from the public hospitals that were presumably located in Cancun or Playa de Carmen.

The Plaintiffs asserted that the American Defendants knew or should have known that the private hospital would charge guests exorbitant fees before agreeing to render medical care. There were further allegations that the American Defendants profited by sending guests to the hospital that the Plaintiff’s husband was sent to.

The Defendant filed a Motion to Dismiss and asserted that the Plaintiff had failed to name necessary parties, including hotel manager, the on-site physician, the ambulance company, the EMTs, and the private hospital and its staff.

The Defendants further sought to dismiss the case under a forum non conveniens argument, arguing that the case would be more appropriately heard in Mexico.

The court denied that the Defendants’ Motion to Dismiss and found that the Plaintiff did not fail to join indispensable parties. The court found that the parties suggested by the named Defendants were not necessary to resolve the Plaintiff’s claims and that the Defendants did not provide any explanation as to why those other proposed Defendants would be required to be a part of this case.

The court additionally emphasized that the Plaintiff was not alleging a medical negligence claim but rather, was focusing on an alleged managerial and supervisory negligence claims unrelated to the private hospital’s medical care.

The court further held that the Defendants had failed to show why the case should be dismissed under the doctrine of forum non conveniens. The court found that the Defendants did not demonstrate the availability of an alternative forum as they had not shown that they were subject to service of process in Mexico or that they would consent to settle service.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Feb. 20, 2025).

Superior Court Addresses When Auto Insurance Carrier Must Present Insured With New UIM Coverage Selection Forms

In the case of Goodville Mut. Cas. Co. v. McNear, No. 861 MDA 2023 (Pa. Super. Feb. 26, 2025 Nichols, J., King, J., and Sullivan, J.), the court affirmed a trial court decision that an insurance company was not obligated to obtain new UIM coverage selection forms whenever an insured added vehicles to their policy.

According to the Opinion, back in 2012, the insured initially signed an election form for less than full UIM coverage. More specifically, the insured selected benefits of $50,000.00 per person, $100,000.00 per accident stacked across three (3) vehicles covered by the policy.

The insured then renewed their policy ever six (6) months and, between 2012 and 2018, the added and removed vehicles, with policy covering as many as four (4) and as few as two (2) vehicles.

The carrier did not obtain new limited UIM election forms whenever the insureds added vehicles to the policy. The court also noted that the insureds never affirmatively requested any changes to their benefits.

By the year 2018, the insured’s policy again covered three (3) vehicles. In 2018, one of the insureds was involved in an accident.

The insureds covered the policy limits from the tortfeasor’s vehicle. The insured then filed a UIM claim. The carrier paid the UIM benefits of $50,000.00 stacked on the three (3) vehicles covered on the policy.

The insured disputed the amount paid and asserted that the addition of vehicles to their policy constituted “new purchases” coverage which required the carrier to obtain new UIM elections each time. The Plaintiffs attempted to assert that, because the carrier failed to obtain new UIM election forms, the carrier should be forced to pay full UIM benefits up to the bodily injury limits of their policy, i.e., $250,000.00 stacked across three (3) vehicles, or $750,000.00.

The carrier rejected that claim and commenced this declaratory judgment action. 

As noted, the Superior Court affirmed the trial court’s decision rejecting the Plaintiff’s arguments. The Pennsylvania Superior Court noted that 75 Pa. C.S.A. §1734 requires only that the carrier “issue” UIM coverage in the amount selected by a named insured in writing signed by a named insured.

The court also noted that 75 Pa. C.S.A. §1791 permits the carrier to rely upon the elections and notices regarding the availability of UIM benefits at the time of the application for original coverage.

Here, because it was undisputed that the insured had completed a “sign-down” form selecting limited UIM coverage, and given that neither named insured on the policy affirmatively reflected any change, in writing, to the UIM coverage, and given that the insureds did not object to any alleged defects in the §1791 notices they received at the time the insured applied for the coverage, the appellate court ruled that the original “sign-down” form remained effective at the time the Plaintiff was involved in the subject accident.

The court additionally noted that, pursuant to §1791, the insurance company was under no obligation to provide additional notices regarding the limited UIM benefits the insured had originally selected. In the end, the court ruled that, once the insured elected limited UIM benefits when applying for the original policy, the insurance company was entitled to presume that the insured selection remained effective until affirmatively changed by a named insured.

Accordingly, the Superior Court affirmed the entry of a declaratory judgment in favor of the carrier.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (March 18, 2025).

PLEASE SAVE THE DATE -- UPCOMING CLE PRESENTED BY HARRIS BOCK, ESQ. AND DISPUTE RESOLUTION INSTITUTE

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Federal Court Addresses Jurisdiction Over Claims of Defamation Over the Internet

In the case of Rhodes v. Azeff, No. 2:22-CV-00101-WSH (W.D. Pa. Jan. 29, 2025 Hardy, J.), the court addressed issues of personal jurisdiction that were based upon alleged defamatory statements that were published online.

In this case, the court granted a Defendant’s Motion to Dismiss this case for lack of personal jurisdiction and also granted the Motion to Dismiss the counterclaims.

In this decision, the court provided an excellent overview as to the standard of review relative to the issue of personal jurisdiction over a Defendant.

The court reiterated Third Circuit law that publishing statements on the internet does not subject the author to personal jurisdiction anywhere in the world from which a user could access the internet.

The court noted that an out-of-state person does not expressly target Pennsylvania nearly by publishing statements on the internet that are accessible from Pennsylvania.

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


I send thanks to Attorney Thomas McDonnell of the Pittsburgh office of the Summers, McDonnell, Hudak, Guthrie & Rauch, P.C. law firm for bringing this case to my attention.

Federal Court Addresses Section 1983 and Whistleblower Law Issues in Employment Law Case

In the case of Krug v. Bloomsburg University, No. 4:18-CV-1669 (M.D. Pa. March 11, 2025 Wilson, J.), the court denied the Defendant’s Motion for Judgment as a matter of law and a new trial following the entry of a verdict in favor of the Plaintiff in a §1983, Title VII, Title IX, Whistleblower Law and PHRC case.

According to the Opinion, the Plaintiff, a former Bloomburg University Dean, brought a lawsuit claiming that he faced retaliation and was fired for helping an administrative assistant file a sexual harassment report against another employee of the school. The Plaintiff prevailed at trial and the motions at issue followed.

After reviewing the pertinent law, Judge Wilson denied the motions.

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


I send thanks to Attorney Barry Dyller, Esquire of the Wilkes-Barre, PA law firm of Dyller & Solomon, LLC for bringing this case to my attention.

Pennsylvania Supreme Court Rules that NJ Transit is Entitled to Sovereign Immunity

In the case of Galette v. New Jersey Transit, No. 4 EAP 2024 (Pa. March 12, 2025) (Op. by Brobson, J.), the Pennsylvania Supreme Court addressed a denial of a Motion to Dismiss filed by Defendant, New Jersey Transit, based upon a claim of interstate sovereign immunity.

According to the Opinion, the Plaintiff commenced a lawsuit against certain Defendants that included New Jersey Transit in the Court of Common Pleas of Philadelphia County.

The Plaintiff alleged that he was injured when a vehicle he was in was struck by a New Jersey Transit vehicle during an accident that occurred in Philadelphia.

After the lawsuit was filed, New Jersey Transit, as an instrumentality of the State of New Jersey, filed a Motion to Dismiss the suit and invoked interstate sovereign immunity.

The trial court denied the motion. On appeal to the Superior Court, the Superior Court affirmed the trial court’s decision after finding that New Jersey Transit was not instrumentality or arm of the State of New Jersey and, therefore, was not entitled to sovereign immunity protections.

The Pennsylvania Supreme Court reversed and found that New Jersey Transit was indeed an arm of the State of New Jersey and, therefore, an instrumentality of that state. The court noted the statutory classification of New Jersey Transit as an instrumentality of the State of New Jersey, the degree of control that the state exercised over New Jersey transit, and the Defendant’s core function of providing public transportation, which is a governmental function.

The case was remanded for further proceedings.

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


I send thanks to Attorney Michael Cognetti and Kristin Mutzig for bringing this case to my attention.

SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Court Addresses Proper Pleading of Negligent Entrustment Claim in a Motor Vehicle Accident Case

In the case of Uslu v. Evans, No. 24-CV-5482 (E.D. Pa. Jan. 31, 2025 Sitarski, Mag. J.), the court granted a Motion to Dismiss a negligent entrustment claim in a motor vehicle accident case.

In this case, the court provided a thorough review of the current status of the law on the proper pleading of a negligent entrustment claim.   

The court noted that a Plaintiff may not assume that any entrustment of a vehicle was negligent. Rather, a Complaint must allege specific facts showing that, at the time the vehicle was entrusted to the driver, the Defendant vehicle owner knew, or reasonably should have known, that the driver was incapable of safely operating the vehicle or was otherwise unlikely to do so.

The court found that the allegations in the Plaintiff’s Complaint in this case were generic. The court otherwise noted that whether or not a Defendant concedes vicarious liability for negligent entrustment has nothing to do with whether the claim was properly pled.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order in the case 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 Thirdman on www.pexels.com.

NEED CLE CREDITS? CHECK OUT THIS UPCOMING EVENT (LIVE AND VIRTUAL)

I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom or live and in-person in Philadelphia on April 24, 2025.

Thanks for considering -- hope to see you there.

 

Link To Decision Corrected for Yesterday's Post: Court Rules that Plaintiff Can't Wing It In Terms of Expert Testimony

The Link to the court decision in yesterday's post has been fixed.  Sorry about that error.  You can view yesterday's Tort Talk post here at this LINK and click the corrected Link to the case therein.

Thanks for reading Tort Talk.

Court Rules That Plaintiff Can't Wing It In Terms of Expert Testimony

In the case of Boruch v. Catty Corner Neighborhood Pub & Pie, 2025 Pa. D. & C. Dec. Lexis 6 (C.P. Leh. Co. Jan. 2, 2025 Reichley, J.), the court granted summary judgment in an alleged food poisoning case involving Buffalo Wings.

In this case, the court noted that the Plaintiff’s expert’s report only addressed the fact of the happening of the alleged food poisoning and did not contain a causation opinion linking the Plaintiff’s illness to the Plaintiff’s consuming the Defendant’s food.

The court recognized that, absent an obvious causal relationship, a personal injury Plaintiff must have expert testimony to establish causation. 

The court generally agreed that such an obvious relationship can arise from an immediate and direct injury or as a natural probable result following alleged negligence.

However, the court found that becoming ill several hours after consuming food is not such a relationship of cause and effect as noted above. Here, the court noted that the causal connection would require guesswork and/or conjecture on the part of a jury.

Given the failures of the Plaintiff’s expert report, summary judgment was granted.

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


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 Sergio Arreola on www.pexels.com.

Court Denies Carrier's Motion For Summary Judgment on Residency Issue in Fire Loss Coverage Claim

In the case of Jackson v. Spinnaker Ins. Co., No. 2:22-CV-012244-NBF (W.D. Pa. Jan. 28, 2025 Fischer, J.), the court addressed a Motion for Summary Judgment filed by the defendant insurance carrier against claim for breach of contract and bad faith asserted by the Plaintiff relative to an homeowner’s policy and a fire loss. The court granted the defense motion as to the Plaintiff’s claim of bad faith but otherwise denied the motion.

The central question in this case was whether the Defendant insurance company had wrongfully refused to pay coverage for losses sustained by the Plaintiff’s after the Plaintiff's property was damaged in a fire.

The Defendant carrier had denied coverage on the grounds that the property was not the Plaintiff’s “residence,” and that the policy was void due to the Plaintiff’s material misrepresentation during the defense investigation. 

More specifically, the carrier asserted that the carrier falsely represented that the property was his primary residence and that it was not vacant and unoccupied. The Defendant carrier noted that the property lacked any electricity of sewer service.

The court denied the Motion for Summary Judgment on the breach of contract claims after finding, in part, that the policy in question did not restrict coverage to the Plaintiff’s primary residence. Rather, the court found that the policy expressly insured the identified property.

The court held that there was an issue of material fact as to whether or not the property was the Plaintiff’s residence. The Plaintiff had noted that he was sporadically sleeping at the property while completing renovations.

The court also found that the Defendant carrier had failed to establish that the Plaintiff made any statements regarding his residence at the property with knowledge of their alleged falsity or under an alleged deliberate intent to deceive.

The court otherwise denied the Defendant carrier’s Motion for Summary Judgment on the bad faith claim after finding that the Defendant had a reasonable basis for denying coverage.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (Feb. 20, 2025).

Source of image:  Photo by Andrew Gaines on www.unsplash.com.

PLEASE MARK YOUR CALENDAR FOR THE JUNE 9, 2025 LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Court Denies Plaintiff's Motion to Preclude Defendant From Utilizing Second Expert After First Expert Died

In the case of Roubert v. Amazon, No. 2:21-CV-03091-CMR (E.D. Pa. Feb. 24, 2025 Rufe, J.), the court addressed issues involving the death of a Defendant’s expert during the course of a personal injury civil litigation matter.

According to the Opinion, when the Defendant’s first medical expert passed away, the Plaintiff filed a Motion In Limine to preclude the medical testimony of the Defendant’s second expert as inadmissible under Federal Rule of Evidence 703 and/or to preclude that second expert from referencing or relying upon the expert report of the first expert.

The court ruled that a deceased physician’s expert opinion was still permitted to be utilized by subsequent experts in their testimony.

The court reasoned that it was common standard and practice for a doctor to review medical records and other reports when rendering their own diagnoses. Accordingly, the court found that it was proper for the Defendant’s new expert to rely upon the deceased expert’s report which was issued after the deceased expert had personally examined the Plaintiff. The court noted that this was proper given that the evaluation of medical records and reports is a liable method for an expert to form an expert opinion regarding a party’s medical condition.

The court also noted that the Plaintiff would not be prejudiced by the second expert’s testimony given that there was nothing improper about a medical report prepared solely for litigation.

The judge additionally confirmed that FRE 703 does not require that a party be able to cross-examine every author of a record upon which the testifying expert relies upon at trial. Any potential prejudice resulting from their new expert testifying regarding the deceased expert’s report could be mitigated by cross-examination of the testifying doctor as to the basis of his opinion, by presenting contrary expert testimony, or by way of the presentation of careful instructions to the jury on the burden of proof.

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


Source: Article – “Fed. Court OKs Use Of Deceased Expert’s Report In Medical Testimony,” by Riley Brennan of the Legal Intelligencer (Feb. 25, 2025).

Liability of Landowner to Passing Motorist for Falling Trees

In the case of Harris v. Felouzis, No. 85 WDA 2023 (Pa. Super. Feb. 10, 2025 Kunselman, J., Lazarus, J., and Bender, J.) (Op. by Kunselman, J.) (Bender, J., dissenting), the court affirmed the entry of a judgment in favor of a Plaintiff in a case involving a Plaintiff motorist who was injured when a 110 year old oak tree fell from a Defendant’s property onto an adjacent road.

The issue was, as Judge Bender aptly put it in his Dissenting Opinion, "[i]f a tree falls on a busy road and injures someone, does it automatically sound in negligence?"

In this case, the court reaffirmed Pennsylvania law that holds that a landowner that allows trees to grow on the property unchecked can be held liable in negligence to motorists injured when a tree falls onto an adjacent road. The court noted that no visible defect in the tree or expert testimony is required. Rather, the standard is reasonable care under the circumstances.

The court noted that, if the condition of the tree could have been known by the exercise of ordinary care, then the Defendant landowner must exercise reasonable care to prevent the tree from falling and injuring anyone who may be using the adjacent road. The law puts the burden on the landowners given that the landowners have access to their own property and the passing motorists do not.

The court noted that the public right of passage on roadways carries with it once the highways have been established, and obligation on occupiers of abutting land to use reasonable care to ensure that the passage way is safe.

Landowners are not allowed to simply let nature take its course.

The Court otherwise rejected the notion that all motorists who use the roadways assume the risk of trees falling upon them.  

This decision is also notable for the Superior Court’s noting that a Motion for Summary Judgment that was denied based upon the sufficiency of the evidence is superseded by the trial record and cannot be separately appealed once a verdict has been entered.

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

Judge Bender's Dissenting Opinion 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 Mick Haupt on www.unsplash.com.

Abington Heights High School Mock Trial Team From Clarks Summit, PA Regional Champs and Going Back to States

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their Regional Championship Trial last night and are on their way to the State Championship.

This is the 4th Regional Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This Regional Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Below is a picture of the entire Team celebrating their win last night in Courtroom 1 of the Federal Middle District Courthouse in Scranton, PA. That's Judge Karoline Mehalchick, who presided over the trial, in the center under the Seal of the Court. Sending thanks to Judge Mehalchick for volunteering her time and expertise.

Also sending thanks to Mackenzie Wilson of Munley Law in Scranton for all of her time and effort serving as the District Coordinator and Regional Coordinator for the Competition. Also sending thanks to the Young Lawyers Divisions of both the Lackawanna Bar Association and the Pennsylvania Bar Association for running this Competition which changes students lives and helps to prepare them for their futures.

Summary Judgment Granted in Alleged Trip and Fall Case Based on Trivial Defect Doctrine

In the case of Klobusnik v. Cafaro Company, No. 2021-CV-11132 (C.P. Erie Co. Dec. 31, 2024 Walsh, J.), the court granted the Defendant mall summary judgment in a slip and fall case.

According to the Opinion, the Plaintiff was walking on the premises and alleged that her foot hit the edge of a lifted tile on the floor which allegedly caused her to fall down.

After reviewing the record before it, the court noted that the Plaintiff presented photographic evidence purportedly showing a raised tile in the area where she fell. However, the Plaintiff admitted that she did not know exactly where she fell. The Plaintiff asserted that she tripped over the tile in the photograph or a similar tile.

The record revealed that the photograph of the tile in question showed a ruler with both metric and imperial units stationed in the grout line between two (2) tiles. The imperial measurement was below the “0” inch line. The metric measurement was at the “1” millimeter line.

As such, the court granted summary judgment after finding that the Plaintiff’s claims were barred by the trivial defect doctrine. The court also found that the Plaintiff’s claims were barred by the fact that the Plaintiff could not identify the exact tile that caused her to fall. The court noted that the evidence fairly suggested that it was just as likely that the Plaintiff had tripped over the grip of her own shoe on the tile, as opposed to catching her foot on the edge of an allegedly raised tile.

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

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Mitchell Luo on www.unsplash.com.

Motion To Dismiss Granted in Favor of Lyft in Case Where Lyft Driver Assaulted Passenger

In the case of Matos v. Uber Technologies, Inc., No. 23-5038-KSM (E.D. Pa. Feb. 3, 2025 Marston, J.), the court granted a Motion to Dismiss filed by a ride share Defendant in a case where the Plaintiff passenger was assaulted by the driver.

The court noted that, under Pennsylvania law, a ride share Defendant is not automatically liable anytime a driver hired over its App commits an assault.

The Plaintiff was noted to have failed to pled prior bad acts of the driver that should have put the Defendant on notice of the driver’s alleged dangerous propensities as required to prove a claim of negligent hiring.

The court noted that evidence of prior automobile accidents by the driver are not proof of violent propensities.

The court additionally found that there was no independent action for respondeat superior under the facts alleged.

The court additionally found that the act of assault passengers was not within the scope of a ride share driver’s employment.

The court otherwise found that the Plaintiff did not allege facts sufficient to establish a duty to train a driver on something as elementary as not assaulting passengers.

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


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.

Superior Court Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 2025).

Abington Heights High School Mock Trial Team Wins Fourth District Championship in Five Years

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their District Championship Trial last night and are on their way to the Regional Championship.

This is the 4th District Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This District Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Above is a picture of the entire Team celebrating their win last night in Courtroom 3 of the Lackawanna County Court of Common Pleas. (That's my son, Christopher, in the back row, fourth person from the left).

Way to go Team -- Keep soaring through the night sky like the COMETS you are!!

Sending THANKS to the Mackenzie Wilson, the District Coordinator, and the Lackawanna Bar Association for all they do to make this program a success.  Thanks also to all the Judges and Attorneys and others who volunteered to serve as Judges and Jurors.

Federal Court Addresses Recoverability of Future Medical Expenses in a Motor Vehicle Accident Case

In the case of Morris v. Sutton, No. 2:23-CV-02806-GAM (E.D. Pa. Feb. 19, 2025 McHugh, J.), an Eastern Federal District Court judge ruled that 75 Pa. C.S.A. §1722 did not bar the recovery of future medical expenses under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Judge Gerald A. McHugh noted that the Pennsylvania Supreme Court has not yet addressed this particular issue. However, the judge noted that other court decisions that he had reviewed that considered similar arguments has concluded that §1722 does not apply to future medical expenses that have not yet been incurred. As such, the judge held that §1722 has no applicability to future medical expenses.

Judge McHugh noted that §1722 provides that individuals injured in a motor vehicle accident, who have other sources of insurance to cover their medical expenses, are barred from recovering certain benefits that are “paid or payable.”

The Plaintiff argued in this case that given that the future medical bills have not yet been incurred, it was speculative as to whether or not such future medical bills will be “payable” under any applicable insurance.

The judge agreed with this speculation argument. The court noted that “[f]rom a practicable perspective, it is not just the existence of coverage for future medical expenses that is speculative, but also the terms of any such coverage and how it would apply, as changes in eligibility and changes in the terms of coverage such as deductible sand co-pays are impossible to predict.”

In rendering his decision, Judge McHugh referred to the Pennsylvania Superior Court decision in the case of Farese v. Robinson, 222 A.3d 1173, 1189 (Pa. Super. 2019). In that case, the Pennsylvania Superior Court concluded that damages for future medical care were not limited by the MVFRL’s containment provisions under a different provision of the law.

In the end, the court denied the Defendant’s Motion to Preclude the Plaintiff from introducing evidence of future medical expenses by finding that §1722 does not apply to future medical expenses as a matter of law.

As an aside here, it is noted that the court in Morris apparently was not provided by counsel, and did not find on its own, the decision of Orzel v. Morgan, No. 03-CV-4929 (C.P. Lacka. Co. 2003 Nealon, J.), by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas. In that decision, Judge Nealon addressed, in part, a defense argument that §1722 precludes the Plaintiff from recovering damages for future medical bills since those costs were payable by her then existing private health insurance. Judge Nealon noted that, instead, the Plaintiff’s future medical expenses award would only be molded to the extent that Plaintiff had first party medical benefits coverage remaining under her own automobile insurance policy.

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


Anyone wishing to review other similar decisions on this issue of whether a motor vehicle accident Plaintiff can recover future medical expenses may click this LINK to get to other Tort Talk blog posts on other such cases. Those Tort Talk blog posts should have links to those other decisions.


Source: Article: “Cost Containment Provision Doesn’t Bar Recovery For Future Medical Expense, Pa. Fed. Judge Rules” by Riley Brennan of the Pennsylvania Law Weekly (Feb. 20, 2025).

Source of image:  Photo by Jennifer Uppendahl on www.unsplash.com.

Trial Court Addresses Parameters for Completion of IME of a Plaintiff Who Resides Out of State

In the case of Seifert v. Whitfield, [Docket Number Not Provided in Decision] (C.P. Chester Co. May 16, 2024 Binder, J.), the court addressed a Defendant’s Motion to Compel a Plaintiff, who was a resident of Florida, to attend an independent medical examination to be performed by a physician located in Pennsylvania. The parties disputed whether the Defendant should bear the costs related to the travel to complete the IME.

The court noted that Pa. R.C.P. 4010 permits a party to require another party to attend an IME under appropriate circumstances. The Rule, however, is silent as to which party bears the cost related to traveling for an IME.

Relying upon case law from other similar situations, the court in this case ordered that the Defendants could require a Plaintiff to attend an IME within one hundred (100) miles of her own residence without having to pay the Plaintiff's costs related thereto.

The court found that the Defendant could also elect to require the Plaintiff to attend an IME in Pennsylvania, in which case, the Defendants would have to pay for the Plaintiff’s reasonable costs for flights, lodging and ground transportation.

The court also noted that the Defendants could require the Plaintiff to attend an IME in Pennsylvania on the day before trial, or on a day that the Plaintiff is visiting Pennsylvania, in which case, the Defendants would not have to pay for the Plaintiff’s cost related to attending the IME.

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

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 13, 2025).

Source of image:  Photo by Cottonbro on www.pexels.com.

A Good Day For Allegedly Bad Lawyers

In the case of Office of Disciplinary Counsel v. Anonymous Attorney, [Docket No. Withheld by Court] (Pa. Feb. 12, 2025) (Op. by Donohue, J.) (concurring Opinion by Wecht, J.), the Pennsylvania Supreme Court clarified the standard of proof in a disciplinary hearing for attorney misconduct and opted for a higher burden.

According to the Opinion, prior to this ruling, the previously accepted standard of proof of the disciplinary cases against attorneys was “a preponderance of the evidence through clear and satisfactory evidence.”

In this case, the Pennsylvania Supreme Court held that the burden of proof of disciplinary cases going forward should be “clear and convincing evidence.”

In ruling in this fashion, the court noted that “[a]ttorney disciplinary proceedings are not civil disputes for money damages, and the public’s and the attorney’s interests are not clearly minimal.” The court otherwise noted that “[d]isciplinary proceedings are not strictly civil nor criminal in nature, but rather have been styled as ‘quasi criminal.’”

Anyone wishing to review a copy of this decision may click this LINK.  A copy of Justice Wecht's Concurring Opinion can be viewed HERE.


Source: “Pa. High Court Rules in Favor of Higher Standard for Proving Attorney Misconduct,” By Aleeza Furman of The Legal Intelligencer (Feb. 26, 2025).

BRING YOUR CASE TO A CLOSE

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What Constitutes The "Record" To Be Reviewed On Summary Judgment?

In the case of L.T. v. Kubota Manufacturing, No. 1310 MDA 2023 (Pa. Super. Feb. 14, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Supeiror court overruled a trial court’s entry of summary judgment in a products liability case.

According to the Opinion, the case arose out of a rider mower accident in which a grandmother accidentally ran over her 7 year old grandson who had come into the yard and slipped on the grass behind her. The Plaintiff alleged that the mower lacked appropriate rear guarding and was negligently designed such that the blades remained engaged even when the tractor was in reverse. The minor’s lower leg eventually had to be amputated.

On appeal, the Pennsylvania Superior Court noted that the trial court erred by not reviewing certain expert reports offered by the Plaintiff which were attached to the Plaintiff’s Brief which were filed of record.

The Superior Court, citing Pa. R.C.P. 1035.1, confirmed in its Opinion that the Rules of Civil Procedure define “record” for purposes of summary judgment as including pleadings, depositions, Answers to Interrogatories, admissions and affidavits, and reports signed by an expert witness that would, “if filed,” comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to Interrogatories

The court noted that the language of the rule suggest that expert reports need only be submitted to the court, not filed, in order to be considered in Motion for Summary Judgment proceedings.

As such, the appellate court noted that the trial court should have considered the Plaintiff’s expert report, which would have created issues of fact for the jury’s resolution.

In this decision, the Pennsylvania Superior Court also provided a thorough recitation of the current status of products liability law in Pennsylvania, including the law as altered by the case of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014). In reviewing that law, the court reiterated that there were indeed issues of fact that needed to be decided by a jury.

As such, the trial court’s entry of summary judgment was overruled.

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