Thursday, June 8, 2023
Petition To Transfer Under Doctrine of Forum Non Conveniens Denied
The trial court initially ruled that the appeal should be quashed because the Order denying the Petition to Transfer Venue for Forum Non Conveniens is not an appealable Order under the Pennsylvania Rules of Appellate Procedure.
In this regard, the trial court noted that the Order did not dispose of all parties and all claims and did not change venue or transfer the matter to another court.
The trial court stated that, while Orders granting changes in venue are interlocutory Orders that are appealable as of right, Orders denying such petitions were not appealable.
The trial court went on to review the substantive issues presented as well. The trial court stated that it denied the Motion to Transfer Venue where the Defendant had failed to carry its burden of providing detailed information to establish that the Plaintiff’s chosen forum was oppressive or vexatious. In particular, the court noted that the Defendant did not provide any Affidavits from any witnesses who would be inconvenienced.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023.).
Tuesday, June 6, 2023
Community Use of Property Doctrine Utilized to Find that a Plaintiff Was a Licensee in a Premises Liability Case
In the case of Sallum v. The Pennsylvania Conf. Assoc. of Seventh-Day Adventists, No. 2021-CV-00234 (C.P. Lehigh Co. April 13, 2023 Caffrey, J.), the court addressed a Motion for Summary Judgment in a slip and fall case.
One of the central issues addressed by the court was whether or not the Plaintiff was a licensee where he slipped and fell in a parking lot and the Defendant asserted that the Plaintiff was not authorized to park in the parking lot.
According to the record before the court, the Plaintiff was a member of a mosque that had previously occupied the property and had parked his vehicle in the parking lot in the premises for over eight (8) to nine (9) years. After the Defendants in this case purchased the property, the Plaintiff allegedly spoke with two (2) individuals about whether or not he would be permitted to continue to use the parking lot. Those individuals, who allegedly identified themselves as employees of the new owner, allegedly told the Plaintiff that he could continue to park his vehicle in the parking lot.
The Plaintiff estimated that he then continued to park in that lot on hundreds of occasions without anyone telling him that he could not park there.
The Defendants asserted that they had notified the public at large that the parking lot was not available for public parking given that the Defendants had posted a sign indicating that unauthorized vehicles would be towed. It was also indicated by the Defendant that they would periodically use chains and a padlock to secure the entrance to the parking lot. However, the Defendants also noted that, when they noticed unauthorized vehicles in the lot, they did not take steps to have those vehicles removed.
A witness who lived in the neighborhood testified that everyone in the neighborhood parked in the parking lot without any issue.
On the day of the incident, snow and ice had accumulated in the parking lot. The Plaintiff was able to enter the parking lot because it was not secured by any change or a padlock. The record also revealed that the parking lot was full of vehicles but the Plaintiff was able to find the last open space. As the Plaintiff stepped out of his vehicle, he slipped and fell.
The court denied the Defendant's motion for summary judgment after finding material issues of fact as to whether or not the Plaintiff was a licensee based upon the alleged implied consent of the use of the land by the landowner.
In so ruling, the trial court recognized the notation of “community use of a property” under the Restatement (Second) of Torts §332 as a basis for denying the Motion for Summary Judgment. Plaintiff’s counsel indicated that, based upon his research, this may be the first Pennsylvania state court in which that rationale was utilized in this context.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney Michael J. McKarski of the Bethlehem, PA law firm of Cohen, Feeley, Altemose & Rambo for bringing this case to my attention.
Source of image: Photo by Welhim Esaga on www.pexels.com.
Monday, June 5, 2023
Friday, June 2, 2023
Chief Judge Brann of Middle District Federal Court of PA Provides a Definition for Gross Negligence
In the case of Johnson v. Keane Group Holdings, LLC, No. 4:20-CV-00491 (M.D. Pa. May 3, 2023 Brann, C.J.), the court reviewed the definition of “gross negligence.”
In this matter, the court denied summary judgment in a personal injury case involving a plaintiff who was injured in at a well site in the oil and gas industry.
The court noted that the Defendant’s indemnification agreement excluded liability for “gross negligence.”
Chief Judge Brann noted that the Pennsylvania Supreme Court has never precisely defined the term of “gross negligence.”
The Court found the question before it to involve the issue of whether "gross negligence" requires a finding of recklessness on the part of the defendant. In the end, Judge Brann ruled that "gross negligence" does not required a finding of recklessness.
Judge Brann noted that the difficulty in defining gross negligence arises from the fact that the terms origin is in statutory law rather than common law, which does not recognize degrees of negligence.
Chief Judge Brann stated that gross negligence does not require the intentional indifference or conscious disregard of risks that defines recklessness.
Accordingly, gross negligence was found to require evidence that an actor’s conduct was an extreme departure from the relevant standard of care. However, evidence that the actor acted recklessly is not required for a finding of gross negligence.
The court denied summary judgment in this case given the issues of fact presented on and found that summary judgment was not appropriate on the issue of whether or not the Defendant was grossly negligent under the circumstances presented.
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 Reed Smith law firm in Philadelphia for bringing this case to my attention.
Thursday, June 1, 2023
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