Pennsylvania Superior Court Continues to Question the Ongoing Validity of the Assumption of Risk Doctrine

In the recent case of Zeidman v. Fisher, 2009 WL 2462563 (Pa.Super. August 13, 2009), the Superior Court elected to apply general negligence principles to a claim presented by a plaintiff injured by an errant shot on a golf course. In so ruling, the Superior Court overruled the trial court's decision that the plaintiff's claims were barred by the assumption of risk doctrine, i.e. that the plaintiff assumed the risks associated with playing on a golf course.

In so ruling, this panel of the Superior Court noted that the continuing validity of the doctrines of assumption of the risk and its near-equivalent, the “no-duty” rule, were in doubt. As such, the Superior Court vacated the trial court’s application of those doctrines to grant the defendant's motion for summary judgment. Finding instead issues of fact to exist under the application of general negligence principles, the Superior Court remanded the case back down for further proceedings.

This Zeidman case again illustrates the need for clarification from the Pennsylvania Supreme Court on whether the assumption of risk doctrine should be deemed to be alive and well in Pennsylvania. Hopefully, that clarification will come someday soon.

In the words of Pennsylvania Supreme Court Justice Stephen A. Zappala in his concise dissenting opinion found in Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) over 15 years ago: "Until such time as this Court arrives at a clear-cut majority, we will continually muddy the waters in the sensitive areas of both comparative negligence and the assumption of risk, both of which are cornerstones of the negligence law in this Commonwealth."

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.

Update on Seatbelt Defense Case

In an August 6, 2009 per curiam Order issued in the case of Gaudio v. Ford Motor Company, the Pennsylvania Superior Court denied a request to hear additional arguments regarding a defendant's right to introduce evidence concerning seat belt usage, or the lack thereof, in products liability cases involving questions about an automobile's crashworthiness.

This Order effectively upholds the Superior Court's 2-1 decision, found at ruling that the trial court should not have allowed any reference to the plaintiff's decedent's failure to wear a seatbelt in a crashworthiness case. Judge James Fitzgerald III dissented on this issue in the prior Superior Court opinion and suggested that the Courts could use guidance from the Pennsylvania Supreme Court on whether any and all evidence pertaining to the lack of seatbelt use should be precluded under all circumstances.

The original 2-1 Superior Court decision can be found on Westlaw at 2009 WL 1530669, and the Pike County trial court opinion by Judge Harold A. Thomson, Jr. can be found at 2007 WL 5077415.

It remains to be seen now whether the defense will appeal this case up to the Pennsylvania Supreme Court.

Westlaw Citations for Recent Cases of Note

I was recently provided with the following Westlaw citations for the below recent cases of note. Thanks to James Beck, Esquire of the Dechert firm in Philadelphia for his efforts in pushing for these cases to be published on Westlaw.

The recent trivial defect premises liability case has been given the following Westlaw citation:

Melchiorre v. Lords Valley Xtra Mart, 2009 WL 2430339 (Pike Co. 2009)


Some of the recent trial court post-Koken opinions have also been given Westlaw citations as well:

Decker v. Nationwide, 2008 WL 6653069 (Lacka. Co. 2008)

Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007)

Six v. Phillips, 2009 WL 2418861 (Beaver Co. 2009)

Jannone v. McCooey, 2009 WL 2418862 (Pike Co. 2009)

Gunn v. Auto. Ins. Co. of Hartford, 2008 WL 6653070 (Allegh. Co. 2008)

REMINDER: This Thursday, August 27th Civil Litigation CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA

As a reminder, this Thursday, August 27th, an informative civil litigation CLE will be held at the Mohegan Sun Casinos at the Pocono Downs in Wilkes-Barre, Pennsylvania.

I recently did a run-through with casino officials as a last minute preparation for the seminar. The cocktail hour area looks great and there are some nice restaurants to catch dinner after. Visit http://www.poconodowns.com/ to check out the casino.

The seminar is geared to provide updates to plaintiff's counsel, defense counsel, and claims professionals. The details of the seminar and a registration form are set forth below. Hope to see you there:

THE PENNSYLVANIA DEFENSE INSTITUTE
and
NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present a Continuing Legal Education Program On

“CIVIL LITIGATION DEVELOPMENTS 2009”

at the

MOHEGAN SUN CASINO at POCONO DOWNS
Thursday August 27, 2009
1 p.m. to 5 p.m.
Followed by Cocktail Hour


1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Ethical Considerations in the Insurance Relationship”

Mathew Keris, Esq., Marshall, Dennehey, Moderator
John Aponick, Esq., Marshall, Dennehey
Frank Brier, Esq., Geisinger Legal Services
Carl Gaugliardo, Esq., Selingo & Gaugliardo


2:30 – 2:45 PM Break


2:45 – 3:45 PM Breakout Sessions:

"Civil Litigation Update/ABC's of IME's
Daniel E. Cummins, Esq., Foley, Cognetti, Comerford, Cimini & Cummins

or

“Avoiding Medicare Disasters When Settling Your Case”

James Pocius, Esq., Marshall, Dennehey


3:45 – 4:00 PM Break


4:00 – 5:00 PM Breakout Sessions:

“Auto Law Update”
Robert Panowicz, Esq.

or

“Who Will Be Deciding Your Case: Suggestions for Voir Dire and Jury Selection”
Jill Huntley Taylor, Ph.D.
Director, Dispute Dynamics

2 Substantive & 1 Ethics CLE Credits


The program will be immediately followed by a reception with
the Judiciary serving Northeastern Pennsylvania.

Costs for the events:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $25.00
• CLE program for lawyers $125.00
• Cocktail Reception - an additional $65.00

For reservations, please print and complete the form below and return to PDI or e-mail us at coled01@padefense.org

Name(s)_______________________________________________

_____________________________________________________

Firm/Company__________________________________________

_____________________________________________________

Address_______________________________________________

_____________________________________________________

Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737

Humorous Court Contempt Story

Found this story on ABA website:


Loud Yawn Lands Court Spectator in Jail; 6-Month Sentence Later Reduced

Posted Aug 10, 2009, 09:42 am CDT
By Debra Cassens Weiss

Updated: A spectator in an Illinois courtroom who let out a loud yawn as his cousin was being sentenced for a felony drug charge soon found himself in jail.

Clifton Williams was sentenced to six months in jail for criminal contempt, the Chicago Tribune reports. His cousin was luckier—he received two years’ probation for his offense.

Spokesman Chuck Pelkie of the Will County State's Attorney's office told the Chicago Tribune that the yawn was not a quiet one, according to the prosecutor who observed it. "It was not a simple yawn,” Pelkie said. “It was a loud and boisterous attempt to disrupt the proceedings."

The sentencing judge was Daniel Rozak of Joliet, who has brought more than a third of contempt charges in Will County south of Chicago, even though he is one of 30 judges there, according to the story. Rozak has brought four out of five criminal contempt charges by Will County judges this year.

He is known for running well-managed trials and a strict courtroom, according to the story. Said Joliet defense lawyer David Carlson: "I think he's terrific—he understands how the world works."

Williams doesn’t agree. “I really can't believe I'm in jail," he wrote his family in a letter. "I done set in this [expletive] a week so far for nothing."

Rozak later reversed course and freed Williams after he served three weeks in jail, but not before delivering a short lecture, according to the Associated Press and the Chicago Tribune. Rozak told Williams he wasn't jailed for just yawning. Instead he was punished for making a sound "that was offensive to the court."

Updated on Aug. 14 to include news of Williams' release.


The guy should be glad he didn't break wind.

REMINDER: Upcoming August 27, 2009 CLE Seminar at Mohegan Sun Casino in Wilkes-Barre Pennsylvania

I will be presenting a civil litigation update/IME law update at an upcoming August 27th CLE to be held at the Mohegan Sun Casinos at the Pocono Downs in Wilkes-Barre, Pennsylvania. Visit http://www.poconodowns.com/ to check out the casino.

The seminar is geared to provide updates to plaintiff's counsel, defense counsel, and claims professionals. The details of the seminar and a registration form are set forth below. Hope to see you there:

THE PENNSYLVANIA DEFENSE INSTITUTE
and
NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present a Continuing Legal Education Program On

“CIVIL LITIGATION DEVELOPMENTS 2009”

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday August 27, 2009

1 p.m. to 5 p.m.

Followed by Cocktail Hour

1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Ethical Considerations in the Insurance Relationship”
Mathew Keris, Esq., Marshall, Dennehey, Moderator
John Aponick, Esq., Marshall, Dennehey
Frank Brier, Esq., Geisinger Legal Services
Carl Gaugliardo, Esq., Selingo & Gaugliardo

2:30 – 2:45 PM Break

2:45 – 3:45 PM Breakout Sessions:

"Civil Litigation Update/ABC's of IME's

Daniel E. Cummins, Esq., Foley, Cognetti, Comerford, Cimini & Cummins

or

“Avoiding Medicare Disasters When Settling Your Case”

James Pocius, Esq., Marshall, Dennehey

3:45 – 4:00 PM Break

4:00 – 5:00 PM Breakout Sessions:

“Auto Law Update”
Robert Panowicz, Esq.

or

“Who Will Be Deciding Your Case: Suggestions for Voir Dire and Jury Selection”
Jill Huntley Taylor, Ph.D.
Director, Dispute Dynamics

2 Substantive & 1 Ethics CLE Credits


The program will be immediately followed by a reception for

the Judiciary serving Northeastern Pennsylvania

Costs for the events:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $25.00
• CLE program for lawyers $125.00
• Cocktail Reception additional $65.00

For reservations, please print and complete the form below and return to PDI or e-mail us at coled01@padefense.org

Name(s)_______________________________________________

_____________________________________________________

Firm/Company__________________________________________

_____________________________________________________

Address_______________________________________________

_____________________________________________________

Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737