Proper Standard of Liability for Construction Contractors Reviewed for Work Completed

In the case of Brown v. City of Oil City, No. 337 C.D. 2020 (Pa. Cmwlth. Sept. 1, 2021) (Op. by Leavitt, J.), the Pennsylvania Commonwealth Court found that a trial court erred in granting summary judgment in favor of a contractor and a subcontractor in a fatal slip and fall action. The appellate court found that the trial court failed to apply the proper standard of liability for contractors who, on behalf of the possessor of land, allegedly created a condition that caused harm after the work had been accepted by the possessor of land.

According to the Opinion, the Plaintiff’s decedent slipped and fell on library steps and died from her injuries. The Plaintiff sued the City and a library association alleging poor construction or maintenance of the steps. The Complaint was later amended to name the contractor, architectural firm and subcontractor involved in the construction of the steps.

The appellate court reviewed §385 of the Restatement (Second) of Torts along with Pennsylvania law construing that Restatement language. That Restatement governs the extent to which a contractor may be liable for work completed on behalf of a possessor of land when someone is hurt by the work completed after the work has been accepted by the possessor of land. The Commonwealth Court found that the law extends a contractor’s liability to third persons who are injured by an artificial condition of the land created by the contractor after the possessor of land has accepted the completed work.

The appellate court reversed the trial court’s entry of summary judgment in favor of the contractor Defendant and held that it was for a jury to decide whether the condition of the library steps was of a dangerous character and caused the decedent’s physical injury and death.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of image:  Photo by Greyson Joralemon on Unsplash.

Peer Review Privilege for Hospital's Documents Reviewed

In the case of Gill v. Children’s Hospital of Philadelphia, No. 180900385 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court addressed a Defendant hospital’s appeal of its Discovery Order granting the Plaintiff’s Motion to Strike the hospital’s privilege objections related to hospital documents and powerpoint presentations that were created following an outbreak of a virus in the neonatal intensive care unit.

The Defendants argued that the Peer Review Protection Act and the Medical Care and Availability and Reduction of Error (MCARE) Act served to protect from discovery the documents that the Plaintiff had requested in discovery.

In this Rule 1925 Opinion issued by the trial court, the trial court disagreed with the Defendant’s arguments.

The trial court noted that the creation date and the content of the hospital’s documents at issue indicated that they were not protected by the peer review privilege. The court also noted that the hospital had already disclosed some of the information at issue to third parties, which served to waive any claimed privilege.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).

Source of image:  Photo by National Cancer Institute on Unsplash.com.

Summary Judgment Denied in Limited Tort Case

In the case of Cialella v. Allstate Prop. & Cas. Ins. Co., No. 10469-CV-2018 (C.P. Lawr. Co. June 10, 2021 Motto, J.), the court denied a Defendant’s Motion for Summary Judgment based upon limited tort defenses in a motor vehicle accident case.

The court ultimately ruled that genuine issues of material fact existed as to whether or not the Plaintiff has sustained a serious injury.

According to the record before the court, the Plaintiff’s treating doctors diagnosed the Plaintiff with a cervical radiculopathy, cervicalgia, a lumbosacral strain, rotator cuff tendonitis, and a transient synovitis. During the course of her care, the Plaintiff received injections to treat the injuries to her cervical spine, elbow, and shoulder.

The Plaintiff’s medical expert also offered his opinion that the Plaintiff sustained permanent injuries and that she would require future treatments, including an annual radiofrequency ablation procedures and three (3) cervical epidural steroid injections every year for her cervical spine complaints.

The trial court in this matter reviewed the factors set forth under the care of Washington v. Baxter, 719 A.2d 733 (Pa. 1998).

In addition to reviewing the Plaintiff’s injuries and treatment, the court also noted that, after the accident, the Plaintiff had to quit her job as a housekeeper due to her limitations that prevented her from performing her duties. The Plaintiff did return to a part-time housekeeping job but alleged that she was limited to part-time work due to her left arm issues. The Plaintiff additionally testified that she could no longer enjoy her hobby of painting with arm pain.

As noted above, the court found that genuine issues of material fact prevented the entry of summary judgment on the limited tort defense.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).

Source of image:  Photo by Jackson Simmer on Unsplash.com.

Judge Brann of Federal Middle District Refuses to Create New Duty in Fraternity Hazing Cases

In the case of Jean v. Bucknell University, No. 4:20-CV-01722 (M.D. Pa. Sept. 9, 2021 Brann, J.), the court granted a Motion to Dismiss in a college fraternity hazing personal injury case.

Judge Brann ruled that allegations of off-campus fraternity hazing, unknown to and unsupported by the Defendant university did not justify the creation of a new tort duty to discover and halt such conduct.

As part of his ruling, the court noted that the creation of a duty to ferret out and prevent hazing would effectively require a prohibition of all student group gatherings without direct university supervision.

The court otherwise noted that institutions of higher learning do not owe any in loco parentis duty to its students.

In the end, the court found that hazing incidents involving separate, unaffiliated organizations are too attenuated to constitute facilitation or recklessness allegations.

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

Source of image:  Photo by Victor Svistunov on unsplash.com.

Superior Court Rules That Employee Who is a Certified Medical Marijuana User Can Sue For Wrongful Termination Under Medical Marijuana Act

Tort Talkers may recall the previous blog post on the decision by Lackawanna County Court of Pleas Judge Terrence R. Nealon in the of Palmiter v. Scranton Quincy Clinic Co., in which Judge Nealon ruled that an employee terminated from her employment due to her medical marijuana use as prescribed by her medical providers may sue for wrongful termination.

As an update, it is noted that the Pennsylvania Superior Court recently affirmed Judge Nealon’s decision. The Opinion can be found at Palmiter v. Scranton Quincy Clinic Co., No. 498 MDA 2020 (Pa. Super. Aug. 10, 2021 Dubow, J., Bowes, J., Stevens, P.J.E.) (Op. by Bowes, J.).

In a case of first impression upon appeal, the Pennsylvania Superior Court ruled that an employee fired for despite their status as a certified medical marijuana user may sue for wrongful termination. The court noted that the Plaintiff could pursue a claim for wrongful discharge under the Medical Marijuana Act after her hospital employer discharged her for a positive drug test.

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

Source: Article-“Employees Terminated for Medical Marijuana Use May Sue: Court.” By Aleeza Furman. Pennsylvania Law Weekly (Aug. 17, 2021).

Source: Photo by Christina Winter on Unsplash.com.

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Recent Recklessness Decisions of Note

There continues to be a split of authority in the state trial court’s across the Commonwealth of Pennsylvania relative to the issue of whether a claim for recklessness in a personal injury case must be supported by specific averments of outrageous facts or whether such a claim can be generally pled in any case whatsoever regardless of the facts presented.

According to my research, which has been included in a proposed article submitted for possible pulication in the January of 2022 edition of the Pennsylvania Bar Association Quarterly, at least 18 county courts have ruled that while a claim of recklessness may be generally stated in a Complaint such allegations must still be supported by a sufficient set of outrageous facts in order to proceed.  The research also reveals that only at least 9 county courts have ruled that a claim of recklessness may be stated in in any case whatsoever regardless of the facts alleged.  It is also noted that there are some splits of authority within certain counties.

In its most recent decision on the issue, the Pennsylvania Superior Court affirmed a trial court's granting of preliminary objections asserted against claims of recklessness where it was found that the Plaintiff had only alleged facts in support of a negligence claim and not any facts to show any outrageous behavior on the part of the defendant.  See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 488-489 (Pa.Super. 2016).   Notably, in Valentino, the Pennsylvania Superior Court did not even reference the dicta from Archibald v. Kemble as being of any moment on the question presented.

Below are some additional trial court decisions that have come to light:


Ulshafer v. Roth, No. S-711-21 (C.P. Schuyl. Co. Aug. 30, 2021 Miller, J.) (In an Order only, the court sustained a Defendant’s Preliminary Objections against allegations of recklessness in a motor vehicle accident case after the defense asserted that the Complaint did not have sufficient allegations of outrageous facts to support such claims.) (It is noted that Attorney Stephen T. Kopko of Cummins Law was defense counsel in this matter.) Click HERE to view this Court Order.

 

 

Fermin v. Sanchez, No. 1235-CV-2021 (C.P. Monroe Co. June 15, 2021 Zulick, J.) (By Order only, the court denied Defendant’s Preliminary Objections to recklessness and held that, pursuant to Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), recklessness is a state of mind which may be averred generally in a Complaint.) Click HERE to view this Court Order.


Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.) (Court overruled Defendant’s Preliminary Objections asserted against allegations of recklessness in a rear-end motor vehicle accident case; court relies upon Archibald v. Kemble for the proposition that an allegation of recklessness is an allegation as to a party’s state of mind which may be pled generally.) Click HERE to view this Court Opinion.


Heisler v. Harvey, No. 2021-CV-0-0273 (C.P. Leb. Co. Aug. 25, 2021, Jones, J.) (The court overruled a Defendant’s Preliminary Objections asserted against allegations of recklessness in a head-on motor vehicle accident case; the court relied upon, in part, Pa.R.C.P. 1019(b). The court found that the Preliminary Objections stage was too early in the matter to rule out a claim for punitive damages when the question of whether conduct is reckless or outrageous is one that is better left for after the close of discovery; as such, the court found that the Defendants attempt to rule out a punitive damages claim by requesting the court to strike language from the Complaint was premature. Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kevin P. Foley of the Foley Law Firm in Scranton for providing me with copies of the Fermin, Benedict, and Heisler cases.




Maloney v. Murray, No. 2020-SU-000629 (C.P. York Nov. 9, 2020 Menges, J.)(The court overruled a defendant’s Preliminary Objections in a car accident case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to provide the defendant with appropriate notice to defend a cause of action for recklessness.). Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Carrie McConnell of the Harrisburg, PA office of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this Maloney case to my attention.




Oathout v. Masonic Temple Assoc., No. 10892 - 2020 (C.P. Erie Co. July 15, 2020 Ridge, J.)(The court overruled a defendant’s Preliminary Objections in a slip and fall case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to support recklessness claims.).
Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Bruce L. Decker, Jr., of the Erie, PA office of MacDonald, Illig, Jones & Britton, LLP for bringing this Oathout case to my attention.

Source of image:   Photo by Brendan Church on Unsplash.com.