Choice of Ways Doctrine Reviewed in Premises Liability Case

In the case of Graham v. Mohegan Sun, No. 3:14-CV-0908 (M.D. Pa. June 14, 2016 Kosik, J.), the court denied a landowner Defendant’s request for summary judgment in a trip and fall case.  

In this matter, the Plaintiff allegedly fell on a well-worn, but informal dirt path through grass on the premises.  

Judge Kosik held that it could not be held as a matter of law that the well-worn, but informal, dirt path through grass upon which the Plaintiff fell was an obviously dangerous condition so as to require dismissal under the choice of ways doctrine.

Judge Kosik reaffirmed that the choice of ways doctrine requires (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.  

In this matter, there was no evidence of any signs advising of a safer route.  

The court otherwise ruled that a construction company’s whose worker allegedly directed the Plaintiff on a path to take could also be liable under a contractual provision requiring the construction company to take reasonable precautions on the land.  

Overall, the court found that issues of fact precluded the entry of summary judgment in favor of the defense.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.

Former Luzerne County Judge Michael T. Conahan Sentenced to 17.5 Years in Prison

On Friday, September 23, 2011, former Luzerne County President Judge Michael T. Conahan, 59, was sentenced by Federal Middle District Court Judge Edwin M. Kosik to 210 months, or 17.5 years,  in federal prison for his part in the Luzerne County judicial scandal.  Conahan pled guilty to his crimes and received a sentence of almost 10 years less than co-Defendant, former Luzerne County Judge Mark A. Ciavarella.
 
Kosik additionally ordered Conahan to pay more than $874,000 in restitution, along with other fines. Judge Kosik also recommended that Conahan be sent to a prison in Delray Beach, Florida "not for convenience" but so that his family can be in close proximity
 
Before the sentence was handed down, Conahan sat as he read a prepared statement accepting responsibility for his actions and apologizing to all of those he harmed.  He told the court, "...the system was not corrupt.  I was corrupt."
 
Here's a link to a September 23, 2011 article from the Times Leader on Conahan's sentencing:  http://www.timesleader.com/news/Conahan-sentenced-to-.html
 
 

Former Judge Conahan to be Sentenced on September 23, 2011

Former Luzerne County Judge Michael T. Conahan will be sentenced by Federal Middle District Judge Edwin M. Kosik on corruption charges on Sept. 23 at 9:30 a.m. in the Federal Courthouse in Scranton.

Conahan pleaded guilty last year to a federal racketeering charge that carries with it a maximum possible sentence of twenty years in prison.

Former Judge Ciavarella Sentenced to 28 Years in Prison

This morning Federal Middle District Court Judge Edwin M. Kosik handed down the sentence against former Luzerne County Judge Mark A. Ciavarella sending him to prison for 28 years (336 months).  Ciavarella is 61 years old.  Judge Kosik also immediately remanded Ciavarella to prision as opposed to allowing him to go free on bail to put his affairs in order.

Currently, there are still no sentencing dates scheduled yet for other figures associated with this matter, including former Judge Michael Conahan and attorney Robert Powell.

Federal Middle District Judge Edwin M. Kosik Marks 25 Years on the Bench

Here's a link to a Scranton Times-Tribune article by Steve McConnell and Josh Mrozinski noting Federal Middle District Judge Kosik's reaching 25 years on the bench:  http://thetimes-tribune.com/news/judge-edwin-kosik-marks-25-years-on-federal-bench-today-1.1175733#axzz1SB1otWbP.

Judge Kosik of Federal Middle District Court Addresses IME Issue

Judge Edwin Kosik of the Federal District Court for the Middle District of Pennsylvania recently issued an interesting discovery order in the post-Koken case of Kurland v. Santiago, Civil No. 3:10-Civ-1278 (March 28, 2011).

In that case, there was apparently a dispute on whether or not the Plaintiff could have a registered nurse accompany the Plaintiff to an medical examination arranged by the defense and whether that nurse could audio tape and/or video tape the proceedings.

In his Order, Judge Kosik allowed the Plaintiff to bring a registered nurse to “witness the examination in a professional and unobtrusive manner without any oral or video recordings.”

The prevailing attorneys in this matter were Attorneys Bryon R. Kaster and C. J. Haddick of the Camp Hill, Pennsylvania law firm of Dickie, McCamey & Chilcote.

This ruling emphasizes the difference between Federal Rule of Civil Procedure 35, which pertains to "Physical and Mental Examinations," and Pennsylvania Rule of Civil Procedure 4010, pertaining to "Physical and Mental Examination of Persons."

Fed.R.C.P. 35 is silent on the ability of a party to have a representative or nurse present at an IME.  The Rule is also silent on whether or not the proceedings can be audio taped or video taped.

In contrast, the state rule PA.R.C.P. 4010 specifically expressly allows a party to bring a representative or attorney with them to the IME.  That Rule also allows for the stenographic or audio taping of the IME.   The state rule is silent as to the issue of video taping.

Anyone desiring a copy of Judge Kosik's Order may contact me at dancummins@comcast.net.

Jury Selected in Ciavarella Trial - Testimony Starts Today

Here's a link to a Scranton Times-Tribune article from today's paper by reporter Dave Janoski regarding the selection of the jury yesterday at the first day of the Ciavarella trial:

http://thetimes-tribune.com/news/ciavarella-jury-chosen-1.1101593#axzz1DNLj9OZ6


Here's an article from today's Wilkes-Barre's Citizen's Voice by Michael R. Sisak reporting on Judge Kosik's demeanor during the first day of trial. Judge Kosik moved the matter along and a jury was selected in a single day--and to think that some speculated that it would take a week to select a jury!:

http://citizensvoice.com/news/a-stern-kosik-moves-selection-along-1.1101427#axzz1DNMVDjMY

Recent Articles Updating Status of Matters in Luzerne County Scandals

Here's a link to a November 3, 2010 article by David Janoski of the Citizens Voice regarding former Judge Michael Toole's guilty plea to accepting an illegal gratuity while on the bench. In the article is an interesting note as to who Toole wishes to subpoena to testify at the hearing on his sentence:

http://citizensvoice.com/news/toole-pleads-guilty-to-accepting-illegal-gratuity-1.1058587


Here is a link to a November 5, 2010 article by Michael R. Sisak of the Citizens Voice reporting that Federal Court Judge Edwin M. Kosik has again denied former Judge Mark A. Ciavarella's request that Judge Kosik recuse himself from Ciavarella's upcoming February of 2011 trial:

http://citizensvoice.com/news/judge-stays-on-ciavarella-s-case-1.1059715

Conahan Enters Formal Plea of Guilty; Ciavarella Forges Ahead in His Own Defense

On July 23, 2010, former Luzerne County judge Michael T. Conahan entered a formal plea of guilty and, when asked point blank by Federal Middle District Judge Edwin Kosik, admitted on the record that certain charges being brought against him were "substantially correct."

Conahan is facing up to 20 years in prison, fines, and restitution orders. Judge Kosik gave no indication as to what the sentence would be an referred the matter to a pre-sentencing investigation in that regard.

So far, there has been no confirmation as to whether Conahan will be testifying against former judge Mark Ciavarella in the other related criminal case.

To review the various articles by Terrie Morgan-Besecker, Jerry Lynott, and Jennifer Learn-Andes on this topic from the July 24, 2010 Times Leader newspaper, which are the sources for this post, click on these links:

http://www.timesleader.com/news/Conahan_pleads_guilty_to_plot_07-23-2010.html

http://www.timesleader.com/news/Ciavarella_not_swayed_by_Conahan_07-23-2010.html

http://www.timesleader.com/news/Mericle_rsquo_s_role_in_scandal_begins_to_loom_larger_07-23-2010.html

Ciavarella and Conahan Pre-Trial Motions Denied

In two Orders handed down yesterday, July 6, 2010, Judge Edwin M. Kosik of the Federal Middle District Court denied pre-trial Motions filed by former Luzerne County judges Mark Ciavarella and Michael Conahan in the federal criminal case. The Order primarily affects Ciavarella since Conahan previously pled guilty.

In his Order, Judge Kosik denied Ciavarella's motion for a change of venue as well as the motion for Judge Kosik's recusal, i.e. a request that Judge Kosik not handle the case. The Order also denies Ciavarella's efforts to keep the taped recordings of the former judge and his co-Defendants from the jury.

Ciavarella awaits trial on the 48 criminal counts levied against him.

Here's a link to the July 6, 2010 Times Leader article by Terri Morgan-Besecker entitled "Judge Denies Motion To Dismiss Indictment Against Conahan and Ciavarella: http://www.timesleader.com/news/hottopics/judges/Judge-denies-motion-to-dismiss-indictment-againt-Conahan-and-Ciavarella.html


Here are links to Judge Kosik's Orders-

Memorandum and Order Denying Motion to Dismiss: http://media.timesleader.com/documents/Dismissal_ruling1.pdf


Memorandum and Order Denying Recusal Motion: http://media.kjonline.com/documents/Recusal_ruling1.pdf

Luzerne County Update: Ex-Judges Ciavarella and Conahan Withdraw Guilty Pleas

According to an August 25, 2009 front page article in the Scranton Times (www.scrantontimes.com), on Monday, August 24, 2009, Judge Edwin Kosik of the Federal Middle District Court of Pennsylvania formally rejected the requests of Mark A. Ciavarella and Michael T. Conahan for a reconsideration of the Court's prior rejection of the plea agreements entered into by the ex-judges back in January of 2009 that called for a sentence that included 87 months in prison.

As permitted, the ex-judges followed the Court's decision by choosing to withdraw their guilty pleas. The case is now back to square one and it remains to be seen whether plea negotiations will be re-instituted or the cases proceed to trial.