Summary Judgment Denied in Barstool Tip Over Case

In the case of Caskey v. Outback Steakhouse, No. 24-CV-00897 (E.D. Pa. Sept. 22, 2025 Young, J.), the court denied a Defendant’s Motion for Summary Judgment in a customer’s premises liability suit.

The Plaintiff alleged that, while dining at the bar, the barstool he sat upon slid backwards as he leaned forward to eat, causing him to fall and sustain injuries.

The restaurants manager partially captioned the incident by using his phone to record a short video of the restaurant’s surveillance footage. The original surveillance video was not preserved. Also, the barstool involved in the incident was discarded before an expert site inspection could occur.

The Plaintiff provided evidence that there were multiple prior complaints of slippery and wobbly barstools reported to the Defendant’s managers. Moreover, the Plaintiff personally documented a subsequent incident where another barstool slid out from under his wife.

The Plaintiff continued that the Defendant’s failure to inspect the barstools and maintain appropriate facility inspection records reflected a breach of its duty of care owed to its customers as business invitees.

The Defendant filed a Motion for Summary Judgment asserting that there was insufficient evidence of a dangerous condition or of actual or constructive notice of that condition.

The court denied the Motion for Summary Judgment by finding that the Plaintiff had raised genuine issues of material fact regarding whether the barstool was a dangerous condition and on the issue of whether the condition was open and obvious. The court more specifically found that the evidence presented by the Plaintiff, including eyewitness and expert testimony, prior customer complaints, evidence of barstool deterioration, and inconsistences in the Defendant’s record-keeping, all gave rise to factual disputes that were appropriate for resolution by a jury.

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.

Superior Court Affirms Trial Court Decision Granting Preliminary Objections To Venue

In the its Non-precedential decision in the case of Ojo v. Hanover Foods Corp., No. 2037 EDA 2024 (Pa. Super. Sept. 25, 2025 Panella, J., Nichols, J., and Ford Elliot, P.J.E.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s sustaining of Preliminary Objections asserting that venue was not proper in Philadelphia County. 

The court in this matter reviewed the record and stated that there was no evidence that the Defendants in this matter regularly conducted business in Philadelphia. The court noted that the Defendant did not have any products in Philadelphia or any physical presence in that County.

The court noted that the mere shipment of raw materials in sealed containers does not constitute conducting business in this context.

The court also ruled that the purchasing of products from Philadelphia suppliers did not constitute doing business in Philadelphia in this context.

Anyone wishing to review a copy of this Non-precedential 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.

Federal Court Motion To Transfer Denied

In the case of Bryne v. Terex USA, LLC, No. 2:25-CV-00586-GAM (E.D. Pa. McHugh, J. Oct. 28, 2025), the court denied a Motion by a Defendant to Transfer a case from the Eastern District to the Middle District, where the alleged accident occurred.

In so ruling, the court noted that, under 28 U.S.C. §1404(a), District Courts may transfer a case to another district where venue is proper “for the convenience of parties and witnesses or in the interests of justice.”

The court applied the various factors set forth in the case of Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995) to support the denial of the Motion to Transfer.

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


Source: Article – “Fed. Judge Rejects Manufacturer’s Attempt to Move Product Liability Suit to Middle District,” By Riley Brennan of The Legal Intelligencer (Oct. 30, 2025).

Court Finds That Defendant Failed To Produce Evidence in Support of Improper Venue Argument

In the case of Barnowski v. CBRE Global Investors, LLC, No. 2023-CV-2568 (C.P. Lacka. Co. Oct. 2, 2025 Nealon, J.), the court addressed venue issues in a premises liability action.

According to the Opinion, the Plaintiff commenced this premises liability lawsuit against two (2) owners of a property that was located in Montgomery County where the Plaintiff allegedly fell. 

The Plaintiff asserted that venue was proper in Lackawanna County under Pa. R.C.P. 1006(c) and 2179(a)(2) since he alleged joint and several liability and given that one of the Defendants allegedly regularly conducted business in Lackawanna County.

The Defendants filed Preliminary Objections asserting improper venue. 

Given that the Defendant’s Preliminary Objections were not supported by affidavits or evidence, the parties were initially directed to conduct venue-related discovery pursuant to Pa. R.C.P. 1028(c)(2) and to, thereafter, resubmit the issue to the court.

During the course of that discovery, the Defendants produced a corporate designee who testified under oath that she did not know whether the Defendant’s conducted any business in Lackawanna County or owned any property or employed any workers in this county.

Judge Terrence R. Nealon
Lackawanna County

The court noted that the Defendant’s Preliminary Objections asserting improper venue was resubmitted to the court for a decision based upon the limited evidentiary record noted above.

In his decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reaffirmed well-settled law of Pennsylvania that a Plaintiff’s choice of forum is entitled to “great weight.” 

The court also noted that the Defendants had the burden of producing evidence to establish that venue was improper in the chosen forum and that a change of venue was warranted.

The court found that the Defendants, despite being afforded a reasonable opportunity to produce evidence to support their improper venue argument, had failed to do so. As such, Judge Nealon ruled that, given that the Plaintiff had asserted joint and several liability against the Defendants, venue is proper as to both Defendants and the Preliminary Objections asserting improper venue with respect to Lackawanna County was overruled.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

Summary Judgment Denied in Case Involving Trip and Fall on Jogging Trail

In the case of Sember v. Lackawanna Heritage Valley Auth., No. 2024-CV-3255 (C.P. Lacka. Co. Oct. 22, 2025 Powell, J.), the court addressed a Motion for Judgment on the Pleadings filed by the Defendants claiming immunity under the Recreational Use of Land and Water Act relative to a trip and fall incident that occurred while the Plaintiff was jogging on the Lackawanna Heritage Trail.

The City of Scranton, which was a Co-Defendant, additionally asserted that it was entitled to immunity under the Political Subdivision Tort Claims Act.

Both Defendants asserted that they were entitled to immunity under the Recreational Use of Land and Water Act given that the trail was on recreational land that was open to the public without charge. 

The Defendants asserted that the Act provided that owners owe no duty to recreational uses to maintain safety or to warn of dangers, including with respect to paved and unpaved trails. The Defendants claimed that the Lackawanna Heritage Valley Authority and the City of Scranton both constituted owners under the Act. 

Here, however, the Plaintiff alleged a man-made hazard, that is, a raised concrete base, and also asserted that the Defendants knew of that condition but failed to repair it or warn the persons entering the land about the condition. 

Judge Mark Powell
Lackawanna County

As such, Judge Mark Powell of the Lackawanna County Court of Common Pleas held that there were issues of fact and that it could not determine from the pleadings alone whether the RULWA applied at this early stage of the litigation.  The court more specifically found that factual development was required to assess whether the condition at issue was part of the trial’s recreational use or an artificial structure beyond the protection of the Act.

Relative to The City’s claim of governmental immunity under the Political Subdivision Tort Claims Act, the City asserted that it was immune because the trail was maintained by the Lackawanna Heritage Valley Authority and was not under The City’s “care, custody, or control.” The City of Scranton also argued that the Plaintiff’s claim did not fall under any of the exceptions to the grant of immunity.

The court found that the record was insufficient to determine the extent of each Defendant's control or whether the defect constituted a dangerous condition of real property that might trigger an exception to immunity. In light of these questions of fact, the court denied the Motion for these additional reasons.

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


Source: Lackawanna Jurist (Oct. 31, 2025).

CORRECTION OF TITLE OF YESTERDAY'S POST

 

The title of yesterday's post indicated that the court in the premises liability case had "granted" the summary judgment motion.  That was incorrect.  As confirmed in the synopsis of the case provided, the court had actually denied the motion for summary judgment.

I think I must have just wanted to see what a title like that would have looked like.

Sorry for any confusion caused.

You may say I'm a Dreamer.....

Imagine by John Lennon

Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Shea v. Kalahari Resorts & Conventions – Poconos, No. 3:23-CV-814 (M.D. Pa. Sept. 22, 2025, Mariani, J.), the court denied a Motion for Summary Judgment in a slip and fall matter involving ice and snow on sidewalks.

In this matter Judge Mariani initially overrulled the Defendant's Motion in Limine to preclude the Plaintiff's engineering expert from testifying at trial.

The court also noted that it could not state, from the information in the record, that the winter conditions in the parking lot of the Defendant's premises amounted to an open and obvious condition.   

The court found that there were genuine issues of material fact as to whether or not the hills and ridges doctrine applied. In this regard, the court noted that the storm at issue had ended eleven (11) hours prior to the accident.

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.

Court Denies Motion For Summary Judgment in Store Trip and Fall Case

 In the case of Vargas v. Wal-Mart Supercenter, No. 3:22-CV-01642 (M.D. Pa. Oct. 7, 2025 Latella, Mag. J.), the court denied a Defendant’s Motion for Summary Judgment in a premises liability case. 

The Defendant was attempting to rely upon surveillance videotape evidence that showed the Plaintiff's actions at the time of the incident.  The Defendant also asserted that the video confirmed that the conditin that the Plaintiff encountered was open and obvious.

Federal Mag. Judge Leo Latella

Federal Middle District Court Magistrate Judge Leo Latella ruled that the Defendant’s surveillance videotape evidence did not reach the level of an irrefutable physical fact that could support summary judgment in this slip and fall matter.  

With regards to the Defendant’s argument that the interpretation of the video established the assumption of the risk defense as a matter of law, the court noted that it was for the jury to decide whether the Plaintiff’s account of the events leading to the fall down event was believable.  

The court additionally noted that the Defendant should have taken customer distraction into account in maintaining safety on the premises. 

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.  

BOOK PUBLISHED: RAISING THE BAR - A Practical Guide to the Practice of Law by Daniel E. Cummins

The Pennsylvania Bar Institute recently published my book entitled Raising the Bar: A Practical Guide to the Practice of Law.  This book has been published as an e-book.

To the extent you may be interested in the same, here is a LINK to the Book cover, the Table of Contents so that you can get a sense of the content, and an excerpt from the article entitled "Lessons from The Godfather."

The book compiles my articles from over the past two decades providing a wide variety of tips and encouragement to help young lawyers and experienced lawyers alike improve their practice of law.

Here is the LINK to the webpage on the PBI's website where the book can be purchased if you are interested.

Thank you for your consideration.

Pennsylvania Supreme Court Reaffirms the Statutory Employer Doctrine

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025) (Op. by Brobson, J.)(McCaffery, J., concurring), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the Plaintiff seeking to abolish this doctrine.

According to the Opinion, the Plaintiff suffered a workplace injury when he fell through a hole during roofing work. The Plaintiff was an employee of a subcontractor.

The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930.

That long-standing law provides that, under the Workers’ Compensation Act (Act), a general contractor that hires a subcontractor to perform work on a jobsite is deemed an “employer” that is secondarily liable to the injured employee of the subcontractor for the payment of compensation under the Act, provided that the subcontractor—the one primarily liable—fails to make payment. Section 302(b) of the Act, 77 P.S. § 462.

In exchange for this imposition of secondary liability, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker.

At the Supreme Court level in this Yoder case, the court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that such immunity should be deemed to be waivable in certain circumstances. As noted, the Court rejected these arguments and instead reaffirmed that the statutory employer doctrine remains a valid part of Pennsylvania worker’s compensation law.

The case was remanded back to the trial court for further proceedings to determine whether the general contractor satisfied the elements of the five (5) part statutory employer test as formulated back in 1930 in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Justice McCaffery can be viewed HERE.


I send thanks to Attorney Glen Ricketti of the Philadelphia office of the Margolis Edelstein law firm for bringing this case to my attention.

Summary Judgment Still Entered For Trucker Where GPS Confirmed Speed Contradicts Witness's Testimony on Speed

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-288 (M.D. Pa. Sept. 30, 2025 Mannion, J.), the court granted a partial Motion for Summary Judgment on a claim for punitive damages in a trucking accident case.

The court noted that the undisputed GPS data in the record established that the Defendant’s driver was not speeding at the time of the accident.

However, the court also noted that a witness testified at a deposition that the tractor trailer driver had been speeding moments before the accident.

Nevertheless, the court found that the witness's testimony did not establish a factual dispute sufficient to defeat the Defendant's summary judgment motion.

The court noted that where one party’s or witnesses’ version of events is blatantly contradicted by the record, such that no reasonable jury could believe it, a court should not accept or adopt that version of the facts for purposes of ruling on a Motion for Summary Judgment.

In addition to the GPS data confirming that the driver was traveling at or around 55 mph in a 65 mph speed limit zone at the time of the accident, the court stated that there was no other credible evidence of speeding.

The court additionally found that the "clean" road conditions did not support the Plaintiffs’ claims that even driving below the speed limit was too fast for the conditions. The court also noted that there was no reduced speed limit in effect at the time the accident occurred.

Accordingly, the court found that, given that there was no credible evidence of speeding on the part of the Defendants, the Plaintiffs had no factual basis for seeking punitive damages.

The court also ruled that, therefore, there was also no vicarious basis for punitive damages against the driver’s employer.

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 Le Minh on www.pexels.com.

Superior Court Clarifies Calculation of Interest and Attorney Fees in Bad Faith Cases

In the case of DiVincenzo-Gambone v. Erie Insurance, No. 1699 MDA 2024 (Pa. Super. Oct. 17, 2025 Olson, J., Beck, J., Dubow, J.) (Op. by Olson, J.), the Pennsylvania Superior Court clarified how interest and attorney fees should be calculated in bad faith insurance cases. 

In this decision, the appellate court also ruled in favor of the insured who had asserted that the carrier had wrongly withheld part of an Arbitration Award entered on the case presented. 

In this decision, the Superior Court vacated part of the trial court’s judgment by holding that the trial court miscalculated damages under the Pennsylvania bad baith statute when that court awarded compound interest instead of simple interest. 

The court also noted that the trial court had erred by basing attorney’s fees on a contingency rather than the lodestar method. Under the lodestar method, hours spent on a case by an attorney are multiplied by a reasonable hourly rate.

The Superior Court also ruled that interest should be calculated from the date that the underlying insurance claim was made.

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


Source: Article – “Pennsylvania Superior Court Clarifies State’s Bad Faith Law In Precedential Opinion,” By Tristin Hoffman The Legal Intelligencer (Oct. 21, 2025).

Superior Court Reinstates Personal Injury Case That Trial Court Terminated for Lack of Activity

In the case of Eisenhart v. WellSpan Health, No. 1681 MDA 2024 (Pa. Super. Oct. 1, 2025 Bowes, J., Stabile, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court reinstated a premises liability case that had been terminated by the trial court for lack of activity.

The Superior Court noted that there was insufficient evidence in the record to establish that notice of a proposed termination that was sent out by the court, or that the termination order itself, was duly served by mail in accordance with Pa. R.C.P. 230.2.

The court noted that the rule is not satisfied when the Prothonotary fails to indicate anywhere in the record that notice was sent in the manner required by Pa. R.C.P. 236(b).

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


Source: “Court Summaries” By Timothy L. Clawges in The Pennsylvania Bar News (Nov. 3, 2025).

TORT TALK PASSES 4,500 MARK

 

4,500 Posts

Tort Talk, which has been in existence 

over the past 16 years since 2009, 

recently published its 4,500th post.

Sending thanks to all the Tort Talkers 

who read and contribute to the blog.

THANK YOU VERY MUCH

Daniel E. Cummins

Cummins Law

Clarks Summit, PA

BOOK PUBLISHED!! -- RAISING THE BAR: A Practical Guide to the Practice of Law -- by Daniel E. Cummins, Esq.

Proud to note that the Pennsylvania Bar Institute (PBI) has published my book entitled Raising the Bar:  A Practical Guide to the Practice of Law.  

The book, which is in e-book format, compiles my articles from over the past two decades on tips to improve your practice of law.

Remember those articles taking themes from The Godfather or Ferris Bueller's Day Off?  How about those articles applying holiday traditions to offer tips to improve your practice?  Or those other articles that simply provided tips to improve your depositions? And don't forget those articles that encourage you to take vacations and to take the time to develop your interests outside the practice of law.

These articles have all been compiled in a single book and can be purchased from the PBI at this LINK.

IT'S THAT TIME OF YEAR THAT CARRIERS ARE LOOKING TO CLOSE FILES --- CONSIDER UTILIZING CUMMINS MEDIATION

 BRING YOUR CASE TO A CLOSE

DANIEL E. CUMMINS, ESQ.

570-319-5899

dancummins@CumminsLaw.net

Contact CUMMINS MEDIATION SERVICES to set up your Mediation to bring your case to a close.

Who better to get an insurance company to increase their award

than the writer of Tort Talk and

an insurance defense attorney trusted by carriers to get them out of trouble?

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LAW OFFICES OF JAMES D. FAMIGLIO

FOLEY LAW FIRM

NEEDLE LAW

OSTROFF GODSHALL

FISHER & FISHER

BLAKE & WALSH

CAPUTO & MARRIOTTI

HAGGERTY, HINTON & COSGROVE

SLUSSER LAW

VINSKO & ASSOCIATES

BISCONTINI LAW FIRM

MECADON LAW

LAW OFFICES OF LEO JACKSON

SOBO & SOBO

MARKS O'NEILL, O'BRIEN, DOHERTY & KELLY

RAWLE & HENDERSON

POST & SCHELL

SWARTZ CAMPBELL

BENNETT BRICKLIN & SALTZBURG

CIPRIANI & WERNER

MINTZER SAROWITZ, ZERIS, LEDVA & MEYERS

SHAY, SANTEE, KELHART & DESCHLER, LLC

McCORMICK & PRIORE

THOMAS, THOMAS & HAFER

SCANLON, HOWLEY & DOHERTY

MARGOLIS EDELSTEIN

MARSHALL DENNEHEY

ELLIOTT GREENLEAF

COLEMAN LAW OFFICES

PennDOT

SELECTIVE INSURANCE IN-HOUSE COUNSEL OFFICE

NATIONWIDE INSURANCE IN-HOUSE COUNSEL

TRAVELERS INSURANCE IN-HOUSE COUNSEL

LACKAWANNA PRO BONO ANNUAL FUNDRAISING GALA -- PLEASE CONSIDER ATTENDING OR SPONORING