Two Recent Premises Liability Decisions of Note from Judge Zulick of Monroe County

 Koeppel v. PNC Bank, N.A.

In his recent decision in the case of Koeppel v. PNC Bank, N.A., PICS Case No. 12-2203 (C.P. Monroe Co. Oct. 11, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas found that the hills and ridges doctrine barred a Plaintiff’s negligence claim as the Plaintiff failed to present evidence that the Defendants allowed for an accumulation “in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians[.]”  As such, the Defendants’ Motion for Summary Judgment was granted.  

 By way of background the Plaintiffs alleged personal injuries after falling in the parking lot of the PNC Bank in Tannersville, Pennsylvania.   The record before the court was that an ice storm had passed through the area the evening before.  

Judge Zulick noted that the hills and ridges doctrine protects the possessor of land from liability for generally slippery conditions caused by ice and snowfall where the owner has not permitted the ice and/or snow to unreasonably accumulate into ridges and elevations.   It was also noted that, in order for the hills and ridges defense to apply, there must be generally icy or snowy conditions naturally arising in the area and the possessor of land must not have allowed the ice and/or snow to have accumulated into ridges and elevations.   The court emphasized that the accumulation at issue must be the result of an entirely natural occurrence, as opposed to any man made condition, for the defense to apply.  

 In this matter, the Plaintiff argued, relying upon Harvey v. Rouse Chamberlain, Ltd., 901 A.2d 523 (Pa. Super. 2006), that the hills and ridges doctrine did not apply because the accumulation at issue was not a natural occurrence, but rather, was allegedly due to the Defendant’s snow removal efforts prior to her accident.  

 In this matter, Judge Zulick found that the Plaintiff did not bring forth any evidence that the Defendants’ snow removal efforts led to the slippery conditions at issue.   Judge Zulick found the case before him to be more in line with the case of Beck v. Holly Tree Homeowners Ass’n., 689 F.Supp 2d 756 (E.D. Pa. 2001).  In this case, as in Beck, there was no evidence that the ice upon which the Plaintiff fell was formed as a result of any snow plowing efforts by the Defendant.  

 Accordingly, summary judgment was entered in favor of the defense.

This case has been appealed to the Superior Court.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Judge Arthur L. Zulick
Monroe County

Yohey v. Crupi

In his recent decision in the case of Yohey v. Crupi, PICS Case No. 12-2201 (C.P. Monroe Co. Oct. 16, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas entered summary judgment in favor of a Defendant after finding that a one-half inch differential in the elevation of the sidewalk where the Plaintiff fell amounted to only a trivial defect for which the Defendants were not liable under any claim of negligence.   

At the time of the incident, the Plaintiff was leaving a pizza shop under rainy conditions.   Other patrons were running towards the restaurant to escape the rain.  The Plaintiff stepped to the right in order to make room for the oncoming patrons.   As she moved, the Plaintiff stepped on to an uneven portion of the pavement and fell.    

The court noted that, during her deposition testimony, the Plaintiff admitted that she was not looking where she was stepping and did not see what caused her to fall.   However, the Plaintiff’s daughter, who was present at the time of the incident, was able to identify the location of the fall by pointing to a photograph during her deposition  testimony.   The court noted that one portion of the sidewalk was one half inch vertically lower than the surrounding sidewalk in the area of the Plaintiff's alleged fall. 

In response to the Defendant’s trivial defect defense, the Plaintiffs asserted that the Defendants’ alleged negligence was an issue to be determined by a jury.  

Judge Zulick noted the law that “[a]n elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist.”   The court also noted that there was no definite or mathematically rule that determines whether or to a defect is trivial.   Rather, each case must be determined upon its own merits. 

Judge Zulick stated that “appellate courts have found that sidewalk imperfections greater in depth and overall size than at issue here were insufficient to impose liability as a matter of law.”   citing Davis, Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963) [and other cases].  

In concluding his Opinion and granting summary judgment in favor of the defense, the court noted that “A pedestrian should not expect a perfectly level walking surface on a sidewalk in the Poconos.”  

This case has been appealed up to the Superior Court.

Anyone desiring a copy of Judge Zulick's Opinion in the case of Yohey v. Crupi may contact me at dancummins@comcast.net.



Source: "Case Digests," Pennsylvania Law Weekly (Nov. 27, 2012).

Judge Minora of Lackawanna County Allows Addition of Punitive Damages Allegations After Expiration of Statute of Limitations

In his recent decision in the case of Strain v. Cianni, PICS Case No. 12-2200 (C.P. Lacka. Co. Nov. 5, 2012 Minora, J.), Lackawanna County Court of Common Pleas Judge Carmen D. Minora allowed a Plaintiff to amend the Complaint to add punitive damages after the statute of limitations had run where the Plaintiff had already previously asserted in the original Complaint allegations of willful, wanton, and reckless conduct. 

Judge Carmen D. Minora
Lackawanna County

In the decision granting the Plaintiff’s Motion to Amend, the court ruled that the punitive damages claim in this matter was not a new cause of action and the Defendants would not be prejudice by the allowance of the amendment. 

 In this case arising out of a claim for wrongful death and survival action pertaining to the death of a decedent under allegations that her death was preventable but that the Defendants allegedly did not monitor or respond to her illness in an appropriate manner, the Plaintiff had originally filed a Complaint containing allegations of willful, wanton, and reckless conduct.   The Plaintiffs were seeking to amend their Complaint to specifically add the claim of punitive damages in an effort to avoid confusion.  

 Applying Pa. R.C.P.  1033, the court determined that there would be no statute of limitations issue regarding the addition of further allegations necessary to specifically state the claim of punitive damages where the original Complaint adequately plead the underlying averments required.  

Here, the court found that the proposed amendment did not change the cause of action but merely amplified what had already been averred.   As such, the fact that the statute of limitations had expired was of no moment under these circumstances.  

The court also noted that the Plaintiff’s amendment would not prejudice the Defendant because a request for punitive damages did not constitute a cause of action but was merely incidental to a previously stated cause of action.

Accordingly, the Plaintiff’s Motion to Amend was permitted.

Anyone desiring a copy of Judge Minora's decision in Strain v. Cianni may contact me at dancummins@comcast.net.

Source:  "Case Digests."  Pennsylvania Law Weekly (Nov. 27, 2012).

Judge Nealon Applies Attorney's Fees Statute

In his recent decision in the case of Lilac Meadows Inc. v. Panko, No. 2011-CV-4375 (C.P. Lacka. Co. Nov. 9, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s request for counsel’s fees after the Defendant’s demurrer to the Plaintiff’s Complaint was sustained. The Defendant’s request for counsel’s fees was based upon an argument that the Plaintiff had acted arbitrarily, vexatiously and in bad faith in filing the suit against the prevailing Defendant.

The court's decision was governed by the attorney’s fees statute found at 42 Pa. C.S.A. §2503(9).  Section 2503(9) of the judicial code provides for the recovery of counsel fees as part of taxable costs where “the
conduct of an other party in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith.”

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that, because §2503(9) “reads in the disjunctive,” a trial court need only finds that one of the statutory factors was present, i.e., that the action was initiated arbitrarily, vexatiously, or in bad faith. [citation omitted].

The Court noted that a litigant’s conduct could be deemed to be “arbitrary” under §2503(9) “if such conduct is based on random or convenient selection or choice rather than on reason or nature.” [citations omitted].

The Court stated that a party is considered to have brought a suit “vexatiously” if (1) the suit was filed without sufficient ground in either law or in fact, and (2) the suit served the sole purpose of causing annoyance. [citations omitted].

Judge Nealon also pointed to case law holding that a party is chargeable with filing a lawsuit in “bad faith” if the party commences suit for the purposes of fraud, dishonesty, or corruption. [citations omitted].

After applying the law to the record before it, the Court ruled that the Defendant had not satisfied its burden of establishing that the Plaintiff’s actions in filing and pursuing the claim at issue were either arbitrary, vexatious, or in bad faith. Accordingly, the Petition for Attorney’s Fees was denied.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

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Luzerne County Judge Michael T. Vough

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Another Facebook Discovery Decision

In the Indiana County case of Simms v. Lewis, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case.

According to the Opinion, the Plaintiff alleged injuries to her head, neck, and back as a result of the motor vehicle accident all of which injuries were alleged to be, or possibly be, serious and permanent in nature.

During discovery, it was determined that the Plaintiff had Facebook, myYearbook, and MySpace accounts, and that each account was active following the accident.  When Plaintiff refused the defense's requested access to the private portions of the Plaintiff's social networking accounts by way of the production of the Plaintiff's user names and passwords, a motion to compel was filed.

The court noted that, in his motion, the Defendant asserted that the front page of the Plaintiff's myYearbook account contained a reference to the Plaintiff's plan to participate in a Zumba exercise class.

In his October 10, 2012 Opinion, Judge Bianco noted that, as of that date [and as of today's date, I note], there has been no appellate decision on this particular issue.  As such, Judge Bianco noted that a number of trial court decisions from around the state have addressed this issue.  In his Opinion, Judge Bianco specifically referenced the Zimmerman v. Weis Markets, Inc. trial court decision out of Northumberland County.

Judge Bianco noted that, by virtue of her allegations in her Complaint in this personal injury matter, the Plaintiff had placed her physical condition at issue.  Accordingly, the court held that the Defendant was entitled to conduct discovery in an effort to obtain information relevant and related to the cause of action stated, which according to Judge Bianco, in today's society may include access to a party's social networking sites.

Where, as here, the defense had made a threshold showing (i.e. the reference to attending Zumba class in the public portions of the Plaintiff's social media sites), the court found that it was "reasonable to infer that the non-public portion of the Plaintiff's account may contain additional relevant evidence."

The court in this case of Simms rejected the Plaintiff's expectation of privacy argument by noting that "the purpose of social networking sites is to share information."  The court ruled that a "Plaintiff cannot maintain a reasonable expectation of privacy  when she created the account and voluntarily posted this information, knowing that the information could become publicly available."

Accordingly, the court held that the Defendant had made a proper threshold showing that access to the Plaintiff's myYearbook account could lead to the discovery of additional relevant information.  As such, access was allowed to this particular account.  The court ordered the parties to meet within 60 days at which meeting the Plaintiff would access her myYearbook account in the presence of defense counsel for a review of the content of the account.

Judge Bianco denied the Defendant's motion to compel access to the Plaintiff's Facebook and MySpace pages on account of the fact that the Defendant had not met the threshold showing for those accounts.  The court noted that, if such a threshold showing was made by the Defendant to support a request for access to the non-public portions of those other accounts, the motion to compel would then be granted.

Anyone wishing to review this Opinion in the Indiana County case of Simms v. Lewis may click HERE.

REMEMBER:  The FACEBOOK DISCOVERY SCORECARD can always be accessed down on the right hand column of Tort Talk at www.TortTalk.com.  Also, when you get to that Scorecard, you can click on the case names to access the actual opinions/orders online.

I send thanks to Attorney Mathew G. Simon of the Indiana, Pennsylvania law firm of Simpson, Kablack & Bell, LLC.


Source of image:  www.mindjumpers.com

Judge Nealon Addresses Lack of Expert in FELA Claim

In the case of Mullin v. Delaware and Hudson Railway Company, Inc., No. 2005-Civil-3088 (C.P. Lacka. Co. Nov. 15, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas dismissed a Federal Employers’ Liability Act (FELA) claim alleging occupational exposure pulmonary damage on the grounds that the proof of medical causation was insufficient as a matter of law.

In this matter, the Plaintiff filed suit against his former employer, Defendant, Delaware and Hudson Railway Company, Inc., d/b/a Canadian Pacific Railway a/k/a CP Rail System alleging permanent pulmonary damage as a result of prolonged exposure to dust during the course of his employment as a conductor. 


Judge Terrence R. Nealon
Lackawanna County

 This case came before the Court by way of a Motion for Summary Judgment filed by the Defendant in which the Defendant asserted that the Plaintiff had not produced an expert report from a medical witness opining that the Plaintiff had developed any pulmonary condition due to heavy dust exposure, and, as such, the Plaintiff was unable to satisfy his burden of proof under the FELA.

Judge Nealon noted that, in order to prevail on a claim under the FELA, Plaintiff must prove: (1) that the Defendant was a common carrier by railroad engaged in interstate commerce; (2) that the Plaintiff was employed by Defendant and assigned to perform duties that further such commerce; (3) that Plaintiff’s injuries were sustained while the Plaintiff was employed by the common carrier; and (4) that the Plaintiff’s injuries resulted from the Defendant’s negligence. [citations omitted].

The Court also noted that FELA claims are subject to a relaxed standard of causation which standard provides for a recovery if the employee’s negligence played any part, no matter how small, in bringing about the employee’s injury. [citations omitted]. Judge Nealon noted that, in light of this liberal burden of proof, a Court was justified in granting summary judgment “only in those extremely rare instances where there is 0 probability either of employer negligence or that any such negligence contributed to the injury of the employee.” [citation omitted].

After applying the record before him to the applicable law, Judge Nealon ruled that, where the Plaintiff neglected to produce an expert medical report substantiating, or even addressing, his occupational exposure claim, the Motion for Summary Judgment should be granted. The Court also noted that this particular Plaintiff had never been deposed in this matter which was consolidated with a number of other matters, and there was no record indicating that this particular Plaintiff had ever been diagnosed with a pulmonary alignment or that any such alleged condition was in any way attributable to his occupation.

Judge Nealon further noted this particular Plaintiff had “not identified a scintilla of medical proof” or “an iota of medical evidence” in support of the causation element and, as such, based upon the record before the Court there was indeed a “zero probability” that any negligence by the Defendant employer contributed to any alleged pulmonary injury allegedly suffered by the Plaintiff.

Accordingly, summary judgment was granted.

Anyone desiring a copy of this Opinion by Judge Nealon in the case of Mullin may contact me at dancummins@comcast.net.

Social Media Discovery Allowed in Monroe County Personal Injury Case

In what appears to be the latest decision on the issue of social media discovery, under a November 7, 2012 Order issued in the case of Mazzarella v. Mount Airy Casino Resort, No. 1798 Civil 2009, 2012 WL 6000678 (C.P. Monroe Co. Nov. 7, 2012 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a defendant's motion to compel the plaintiff to allow for social media discovery.

I have been advised that Mazzarella involves a premises liability slip and fall case.

In his detailed two-paged Order, Judge Williamson reasoned that the plaintiff's expectation of privacy in her social media activity was "misplaced" as "[t]hose who elect to use social media, and place things on the internet for viewing, sharing and use with others, waives an expectation of privacy."  Accordingly, the court ruled that "[a]t this point, the information requested is not a privacy violation." 

Thus, the plaintiff was ordered to respond to the defendant's discovery request in this regard.  While the Order itself does not say so, I have been advised that the discovery request called for the production of the plaintiff's user name and password and there was no time limit placed on the access granted to the plaintiff's social media sites.

This Order from Mazzarella can be viewed HERE.

I send thanks to Attorney John Bednarz, Jr., a solo practitioner in Wilkes-Barre, PA, for bringing this decision to my attention.

Please also remember that you can check out and access other Social Media Discovery decisions on the Tort Talk Facebook Discovery page at this LINK. 

The Facebook Discovery Scorecard is also always freely accessible by going to www.TortTalk.com and scrolling down the right hand side of the blog and clicking on the date under "Facebook Discovery Scorecard."  Once you get to that Scorecard, you can click on the case names of the decisions noted to access the Opinions or Orders online.