Summary Judgment Granted in Trip and Fall Case Due to Lack of Evidence of Actual or Constructive Knowledge

In the case of Hendershot v. Wal-Mart, Inc., No. 5:21-CV-02422-JMG (E.D. Pa. July 11, 2022 Gallagher, J.), the court granted summary judgment in favor of the Defendant in a slip and fall case.

According to the Opinion, the Plaintiff asserted that she tripped and fell on a rolled up mat in the entryway of the Wal-Mart store.  At her deposition the Plaintiff admitted that she could only speculate as to how the mat became in a rolled up state.  The Plaintiff also admitted that she could not testify as to how long the mat had been in that condition before she encountered it.   

The court noted that the record did not establish that the Defendant had any actual or constructive notice of any alleged condition that allegedly caused the Plaintiff to fall. Moreover, the court stated that there was no evidence presented by the Plaintiff that the Defendant was responsible for the alleged condition that allegedly caused the Plaintiff to fall.

The court additionally found that the lack of any evidence that the condition was a recurring one precluded any finding of actual notice on the part of the Defendant. 

It was also emphasized by the Court that the Plaintiff had not presented any evidence of the passage of time that was sufficient to support a claim of constructive notice on the part of the Defendant.

As such, summary judgment was granted in favor of the Defendant.

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


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.

Opinions or Insults Cannot Support a Defamation Claim

In the case of Durando v. The Trustees of the U. of Penn., No. 21-756 (E.D. Pa. June 17, 2022 Beetlestone, J.), the court granted a Defendant’s Motion for Summary Judgment and dismissed a Plaintiff’s Amended Complaint in a defamation action.

The court ruled that the Plaintiff’s defamation claim failed where the alleged statements at issue constituted non-actionable opinion or hyperbolic insults. The court additionally noted that, based upon the record before the court, the Plaintiff could not prove a reputational injury or a financial loss.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 14, 2022).

Personal Injury Claim Based on COVID-19 Exposure Allowed to Proceed

In the case of Stiver v. Senior Health Care Solutions, LLC, No. 21-CV-842 (C.P. Lacka. Co. July 8, 2022 Nealon, J.), the court addressed various issues arising out of a COVID-19 personal injury claim.

In this matter, a nursing home employee, who claimed to have contracted work-related COVID-19 that allegedly caused permanent pulmonary and cardiac damage and required inpatient hospitalization, filed a corporate liability lawsuit against the owner and operator of the facility which allegedly declined to follow federal agency guidelines for the prevention and mitigation of the COVID-19 virus.

The Defendant owner/operator filed Preliminary Objections. 

In part, the Defendant asserted that it was immune from suit as the Plaintiff’s “statutory employer” under §302(a) of the Worker’s Compensation Act, 77 P.S. §46, or based upon the common law “borrowed employee” doctrine.

The court found that issues of fact prevented it from fully deciding whether the Defendant was entitled to such tort immunity. Accordingly, that argument was overruled without prejudice to the Defendant’s right to raise the issue again at this summary judgment stage of the litigation.

The Defendant owner/operator also filed a demurrer to the Plaintiff’s corporate negligence claim on the basis that the Defendant allegedly did not owe any duty of care to the Plaintiff.

Judge Nealon noted that, since the Plaintiff alleged that the Defendant owner/operator had breached its duty to formulate and implement adequate safety procedures and policies and to provide a safe work environment, this demurrer was denied.

The Defendant requested, pursuant to Pa. R.C.P. 1006(d)(1), a transfer of venue to the Cumberland County Court of Common Pleas based upon forum non conveniens grounds.

The court noted that, given that the Defendant has not submitted any affidavit from any prospective witness, or some other form of evidence, establishing that Lackawanna County is a vexatious or oppressive forum, the Defendant had not satisfied its heavy burden of proof warranting a transfer of venue from the Plaintiff’s chosen forum. As such, this petition seeking a transfer of venue under Rule 1006(d)(1) was denied.


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

Plaintiff's Failure To Uphold His End of The Bargain In An Insurance Contract Results in Dismissal of His Bad Faith Case

In the case of Guerrier v. State Farm, No. 19-2435 (E.D. Pa. June 6, 2022 Pratter, J.) (Mem. Op.), the court granted the carrier’s Motion for Summary Judgment and found that State Farm did not act in bad faith by instituting a subrogation action against its insured when the insured failed to notify the carrier about an auto accident and failed to respond to the carrier’s request for information seeking to confirm the insured’s liability coverage.  In light of this ruling the plaintiff's case was dismissed.

Judge Gene E.K. Pratter of the Eastern Federal District Court of Pennsylvania opened her Opinion by aptly stating that "[a] contract is a legal instrument designed to ensure each party holds up his end of the bargain.  When one party fails to do so, he cannot expect the other party to pick up his slack and then blame that other party for failing to do so."

Here, the Plaintiff-insured was found to have failed to uphold his end of the bargain and, as such, his case was dismissed by the court.

As noted, this matter arose out of a motor vehicle accident. At the time, the Plaintiff in this matter was insured by State Farm, although he was driving a loaner vehicle while his insured vehicle was being repaired. The carrier covering the loaner vehicle had denied coverage.

The court confirmed that, under the terms of the State Farm policy, the Plaintiff was required to give the carrier notice of the accident “as soon as reasonably possible.” The Plaintiff did not report the accident to State Farm.

However, the occupants of the other vehicle, which was also insured by State Farm did file a claim. State Farm then contacted the Plaintiff in this coverage case to confirm whether he had auto liability coverage but the Plaintiff failed to respond. As a result, State Farm initiated subrogation proceeds for the benefits it paid to the occupants of the other vehicle, and the carrier ultimately obtained a default judgment. The Plaintiff later learned of the default judgment when he was denied a renewal of his driver’s license due to nonpayment of the judgment.

The Plaintiff then filed this action for breach of contract and bad faith and other claims. The Plaintiff argued that State Farm had the information it needed to know that he was one of the companies insureds when the occupants of the other vehicle filed their insurance claim.

In this case, the court granted State Farm’s Motion for Summary Judgment. The court found that no reasonable jury could conclude that State Farm acted in bad faith.

Rather, the court held that the Plaintiff breach his obligation under the insurance policy to notify State Farm about the accident as soon as practicable.

The court also found that State Farm acted reasonably under the circumstances by contacting the Plaintiff to confirm his insurance coverage. When the Plaintiff failed to respond, State Farm assumed that he was uninsured and proceeded accordingly.

Moreover, the court noted that, once the Plaintiff did contact State Farm, the carrier promptly investigated the situation and then discontinued the subrogation action after confirming that the Plaintiff’s loaner vehicle qualified as a substitute vehicle under his policy.

Based on these findings, the court granted State Farm's motion for summary judgment and dismissed the Plaintiff's case.    

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 5, 2022).

Source of image:  Photo by Pedro de Silva on www.unsplash.com.

THANK YOU EXHIBIT A

Sending thanks to the Wilkes-Barre Law Library Association for having me present my CLE "Golf Lessons: Tips on Professionalism and the Ethical Practice of Law" on Friday at the Association's Summer Outing/Golf Tournament at Fox Hill Country Club.

Also sending out a special thanks to Joe Cardoni, JP Cardoni, and Leah Kane at Exhibit A (www.exhibitadigital.com) for helping me to put together the Powerpoint presentation and their help with the playback of the presentation.

I highly recommend Exhibit A for all of your trial presentation needs and for your video deposition and Zoom needs.

With Regards to An Insurance Policy's Definition of 'Residency,' Court Rules That An Insured May Have More Than One Residence

In the case of Isenberg v. State Farm Fire & Cas. Co., No. 21-CV-1147 (W.D. Pa. May 27, 2022 Schwab, J.) (Mem. Op.), the court addressed issues of insurance coverage in the context of a house fire.

In this case, the carrier asserted that it was entitled to summary judgment because the Plaintiff was not using the house as a residence at the time of the fire.

According to the facts of the case, the Plaintiff had purchased the house in 2018, and continued to live in her apartment during the renovations at the house, which renovations turned out to the more extensive than anticipated. Then, in 2020, a fire destroyed the home. The Plaintiff filed a claim under her homeowner’s policy.

The carrier rescinded the policy, alleging that the Plaintiff was not using the house as a residence.

The Plaintiff filed suit in state court and the carrier removed the case to federal court. After discovery was completed, the Defendant carrier moved for summary judgment.

As noted, the carrier asserted that was not using the property as a residence at the time of the fire. The insurance company additionally argued that a person could only have one “residence.”

The court ruled in favor of the Plaintiff.  In part, the court found that Pennsylvania courts and federal courts applying Pennsylvania law had agreed that a person was not limited to only being able to have one residence.

Rather, the case law suggested that residency was a question of physical fact and not the policyholder’s intention.

In this case, the record before the court revealed that the Plaintiff was physically present at house on an almost daily basis. There was also evidence that she had meals there, slept at the house on occasion, and had personal belongings in the house during the course of the renovations.

As such, the carrier’s Motion for Summary Judgment was denied.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 14, 2022).

Source of image:  Photo by Jeffrey Czum on www.pexels.com

Medical Malpractice Claim Against Defendant Doctor Dismissed For Lack of Timely Service of Process

In the case of Frye v. Wellspan Health, No. 20-SU-1116 (C.P. Adams Co. Feb. 4, 2022 George, P.J.), the trial court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice Complaint on the basis that the Plaintiff failed to effectuate proper service on that particular Defendant.

According to the Opinion, the Plaintiff filed a medical malpractice action against a medical doctor who performed a procedure placing a spinal stimulator on the Plaintiff’s thoracic spine. The Plaintiff also sued the medical facility and other Defendants.  

The Complaint was filed just five (5) days before the expiration of the statute of limitations.

According to the record before the court, the medical doctor was not an employee of the hospital where the procedure was performed but rather, was an independent contractor.  The Plaintiff served the hospital and the remaining individual Defendants but not the medical doctor who performed the actual procedure. 

After nearly nine (9) months into litigation, the doctor at issue received word from his insurance company about the lawsuit but otherwise alleged that he never was served with a copy of the Complaint.  He also asserted that he never authorized anyone else to accept service on his behalf.

The Plaintiff’s argued that they believed that the doctor was properly served when they served the hospital with the Complaint.

The Defendant doctor at issue filed Preliminary Objections asserting that he was not properly served until approximately 9 ½ months after the expiration of the applicable statute of limitations.

After applying the law of the Pennsylvania Supreme Court ruling in the case of Lamp v. Heyman, 366 A.2d 822 (Pa. 1976), and its progeny, the court found that the Plaintiff had not acted diligently to meet the Plaintiff’s requirement of making a good faith effort to complete service of process upon the Defendant. 

More specifically, the court found that the Plaintiff did not make a good faith effort to investigate the doctor’s service address. Also, although the doctor had not responded to any of pleadings for approximately nine (9) months, the Plaintiffs made no effort to investigate whether that Defendant had actually received the Complaint.

As such, the trial court dismissed the Plaintiff’s medical malpractice Complaint against that Defendant doctor with prejudice.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 12, 2022).

Source of image: Photo by Ekaterina Bolovtsova from www.pexels.com.