Pennsylvania Case Summaries
Gaudio v. Ford Motor Company
2009 Pa. Super. 102; 2009 Pa. Super LEXIS 1002
June 1, 2009
The Pennsylvania Superior Court granted the Plaintiff’s appeal in this products liability action and reversed the trial court judgment in favor of Ford Motor Company on several evidentiary issues. The case was remanded for a new trial.
Background: Plaintiff’s decedent was operating a 1996 Ford F150 pickup truck near his home in Pike County when he was involved in a one vehicle accident. The evidence revealed that Mr. Gaudio applied the brakes but skidded through an intersection into a ditch, striking a dirt embankment. Emergency personnel found Mr. Gaudio dead in the passenger seat. The truck’s airbag had deployed. The decedent was not wearing a seatbelt. The case proceeded to trial resulting in a verdict in favor of Ford Motor Company. Prior to trial, Plaintiff filed several motions in limine. The Court denied Plaintiff’s motions to exclude evidence of the deceased’s non-use of a seatbelt, expert testimony regarding the deceased pre-impact conduct and risk/benefit evidence. The Superior Court held that the trial court committed reversible error in denying the motion regarding non-use of a seatbelt and that this evidence could have affected the jury’s verdict. Second, the Superior Court reversed the trial court’s ruling regarding the deceased’s pre-impact conduct as this could have affected the verdict. The Superior Court also held that the trial court’s ruling permitting evidence of compliance with Federal Motor Vehicle Safety Standard 208 (“FMVSS 208”) [49 C.F.R. §571.208] was improper. Fourth, the trial court did not commit error in permitting questioning regarding statistical evidence, including evidence regarding lack of prior claims. Finally, the Superior Court held that the trial court properly permitted Ford’s expert to testify regarding the location of airbag deployment sensors.
Holding: On appeal, the Pennsylvania Superior Court relied largely on the Pennsylvania Occupant Protection Act, 75 Pa.C.S.A. §4581(e), which provides in pertinent part that failure to use a seatbelt system is inadmissible as evidence in the trial of any civil action. The trial court permitted evidence regarding the decedent’s failure to use the Ford F150 seatbelt. The Superior Court reversed, reasoning that the language of the statute was clear and did not provide for a products liability exception to the rule. It was not the Court’s role to substitute its judgment for that of the legislature. The Superior Court likewise found that seatbelt non-use and pre-impact conduct was likewise inadmissible. On this point, the Superior Court noted the prior precedent that evidence of a Plaintiff’s contributory negligence is generally inadmissible in a products liability case. While certain exceptions to this general rule exist, none apply to the decedent’s actions. Evidence that the decedent may have been reaching for something on the floor that caused him to move out of position and did not use the seatbelt should not have been introduced at trial. This evidence could have affected the verdict. Accordingly, Plaintiff was prejudiced and entitled to a new trial. Other issues were addressed to assist the trial court on remand. The first of these issues concerned evidence of compliance with federal safety standards. The Superior Court found that references by Plaintiff’s counsel and expert to a governmental report did not open the door for evidence concerning compliance with FMVSS 208. The Superior Court held that reference to the Ford F150’s “five star” safety rating from NHTSA and “good” injury rating from the Highway Loss Data Institute was erroneously admitted. However, evidence regarding lack of prior claims was admissible. Finally, the Superior Court held that testimony offered by Ford’s expert, Dr. Brantman, regarding the location of airbag deployment sensors and Ford’s evaluation process to test various sensor locations was admissible. This testimony was in response to testimony offered by Plaintiff’s experts.
Any questions regarding this case can be directed to Hugh P. O’Neill, III, Esquire at (717) 255-7629 or honeill@tthlaw.com.
Stuart v. Decision One Mortgage Company, LLC,
2009 PA Super 103
Decided June 1, 2009
Holding: The Superior Court affirms the trial court decision refusing to allow rescission of a home mortgage under the Federal Truth In Lending Act on the basis of res judicata, after there had been a default judgment in foreclosure.
Background: A lender instituted a mortgage foreclosure action against the borrowers. The borrowers failed to answer, and default judgment was entered. Subsequently, the borrowers sought to rescind the mortgage. However, the borrowers did not petition to open or strike the default judgment. The trial court would not allow the borrowers to rescind the mortgage. The borrowers appealed to the Superior Court.
The Superior Court affirmed, stating that the borrowers could have raised the Truth in Lending Act violation claim in the foreclosure proceedings by asking for rescission. Because they failed to do so, res judicata applied to bar the claim. The borrowers had the opportunity to raise the issue before the trial court in the foreclosure proceedings, but did not do so. The borrowers could not “sit out” one cause of action (the foreclosure) and then force the lender into another action (rescission) over an issue that could have been raised in the first action. Entry of judgment in a mortgage foreclosure precludes a collateral action that would have the effect of negating that judgment, at least when such collateral action is based upon the mortgage loan transaction itself and upon events that occurred prior to the entry of the judgment in the foreclosure action.
Any questions regarding this case may be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.
Parker Oil Co. v. Mico Petro and Heating Oil, LLC
2009 Pa. Super. 105
Decided: June 3, 2009
Holding: The Superior Court holds that a long term contractual relationship with a corporation, resulting in unpaid bills after the corporation goes out of business, does not turn the contractual relationship into a tort and does not result in the personal liability of the sole corporate shareholder under a participation theory.
Background: Singh owned and operated a gasoline service station under the corporate name of Mico, which in turn had a contract for oil supplies with Parker. Parker sued and won at trial that Mico owed for unpaid-for gasoline that Parker had supplied over three years. The trial court also held that Singh was personally liable for the unpaid balance under a participation theory. Participation is where a corporate officer is held liable for a business debt when that person participates in tortious conduct which led to the liability. Singh and Mico appealed.
On appeal, the Pennsylvania Superior Court first finds that this is not a case where the creditor has any evidence to pierce the corporate veil. Singh always traded under the corporate name, not his own, and there is no evidence of fraud. The Court also finds that the evidence is not sufficient to establish conversion or other illegal act. There is also no evidence that Mico or Singh planned to take the oil and never pay for it. Rather, the Court finds that the evidence represents an ongoing commercial relationship, where the purchaser struggled and did not make full payment for gasoline delivered on a number of occasions. The Court acknowledges that the case might be different if there was one large single transaction involved and evidence that Singh knew the corporation could not pay for it. Instead, Mico knew of the corporation, knew that Mico was having financial difficulty, but allowed more gasoline to be delivered. Parker chose to take the contractual risk and made a profit for a number of year. The fact that Mico went out of business does not change the contractual relationship into a tort. The Court affirms the judgment against Mico, including the assessment of interest and finance charges.
Any questions regarding this case can be directed to Paul Walker at 717-441-7061 (pwalker@tthlaw.com).
Vinikoor v. Pedal Pennsylvania, Inc. and Department of Transportation
2009 WL 1544267 (Pa. Cmwlth.)
Decided: June 4, 2009
Holding: The Commonwealth Court held that a waiver and release of liability signed by a bicyclist is enforceable so as to absolve a tour operator from liability and that the bicyclist assumed the risk of injury by voluntarily participating in a bicycling tour.
Background: Vinikoor sought to recover damages resulting from a bicycling accident which occurred while he was participating in a tour organized by Pedal Pennsylvania (Pedal). The bicycling accident occurred when Vinikoor’s front tire became locked in a groove on a public roadway, causing him to fall and sustain an injury. Prior to the tour, Vinikoor signed a waiver, release and consent form agreeing to waive and discharge Pedal from all liability as a result of participation in the bicycling event, “whether caused by negligence or otherwise.” The release signed by Vinikoor also acknowledged that Vinikoor understood the risk of accidents and injury during bicycle touring and agreed to assume those risks and to release Pedal from liability for any injury which may occur. Vinikoor had also testified at his deposition that he had been on numerous bicycle tours and was aware of the risks associated with bicycle riding.
Holding: The Commonwealth Court held that an exculpatory clause is valid if three conditions are met: (1) the clause must not contravene public policy, (2) the contract must be between persons relating entirely to their own private affairs; and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. The Court stated that even if the exculpatory clause is determined to be valid, it will still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. The Court held that the waiver executed by Vinikoor was unambiguous and clearly reflected the intention of the parties to release Pedal from liability. The Court stated that the release signed by Vinikoor explicitly released Pedal from all liability, injuries or damages “whether caused by negligence or otherwise”. The Court held that this language was sufficient to release Pedal from all liability, even if Pedal was found to be negligent. Notwithstanding the contractual waiver, the Commonwealth Court also held that Pedal owed no common law duty to Vinikoor given Vinikoor’s testimony that he was aware of the general risks of riding a bicycle, including uneven surfaces, and voluntarily chose to participate. The Court held that the assumption of the risk by Vinikoor precluded a finding of liability against Pedal.
Any questions regarding this case can be directed to Cindy O’Donnell at 412-697-7403 (codonnell@tthlaw.com).
Gregg v. V-J Auto Parts
Superior Court
June 11, 2009
Holding: The Superior Court, on remand from the Pennsylvania Supreme Court, upheld the trial court’s entry of summary judgment in favor of the Defendant on Plaintiff's claim that his father died as the result of alleged exposure to asbestos products sold by the Defendant based on the lack of evidence
The Plaintiff alleged that his father was exposed to asbestos throughout a forty-year history of employment with telecommunications companies as a cable splicer and lineman, over a four-year period of time in which he worked as a gas station attendant, during a three-year period while serving in the Navy, and during his lifetime while installing and removing brake linings and clutches in motor vehicles. By virtue of the last set of allegations, the Plaintiff sued V-J Auto Parts, a supplier of auto parts. After the close of discovery, the Defendant filed a motion for summary judgment on the basis that the Plaintiff could not prove that his father was exposed to asbestos-containing products purchased at Defendant's store with sufficient "frequency and regularity" to meet the test set forth in Eckenrod v. GAF Corp. , i.e. whether a plaintiff could successfully get to a jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto. The issue presented to the Superior Court was whether, in a products liability suit against a manufacturer or distributor of a product containing asbestos, to survive summary judgment a plaintiff must show frequent use of, and regular close proximity to, the product, regardless of whether the plaintiff's evidence of inhalation of asbestos fibers is direct or circumstantial.
The Superior Court upheld the grant of summary judgment, finding that there was no evidence to support the conclusion that the decedent had anything more than de minimis contact with the Defendant's products and, more importantly, that there was no evidence to support the conclusion that the decedent had definite contact with Defendant's products which contained asbestos. In the latter regard, the Court noted that the type of product which the decedent purchased at Defendant's store was generally unknown and that the testimony of the decedent's daughter, son and neighbor was to the effect that they did not know whether the products purchased at Defendant's store contained asbestos.
Any questions regarding this case can be directed to C. Kent Price at (717) 255-7632 or kprice@tthlaw.com
Malt Beverages Distributors Assn. v.
Pennsylvania Liquor Control Board, Ohio Springs, Inc., Intervenor
85 MAP 2007, ___ Pa. ____
June 15, 2009
Holding: In a 5-1 decision, the Pennsylvania Supreme Court held that the holder of a “retail-dispenser” class liquor license is required to permit the consumption of beer on the premises.
A convenience store operated by Ohio Springs, Inc. (“Sheetz”), owned a retail-dispenser license and had been selling beer in a partitioned-off, fast-food-restaurant section of its store. However, Sheetz had prohibited the consumption of beer on the premises. The Malt Beverage Distributors Association (“MBDA”) brought suit, arguing that Sheetz’s prohibition against consumption on the premises transformed the Sheetz restaurant into a de facto beer distributor.
Sheetz argued that its retail-dispenser license simply allowed the license holder to permit on-premises consumption, but did not mandate that such consumption be permitted. The Supreme Court, in ruling for the MBDA, held that Sheetz's interpretation of the law would impermissibly expand the character of retail-dispenser beer licenses, and such an expansion was a policy determination within the purview of the legislature.
Berrier v. Simplicity Manufacturing, Inc.
563 F.3d 38 (3d Cir. 2009)
Decided: April 21, 2009; Update: June 17, 2009
The Third Circuit predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Torts, §1 and thereby allow bystanders to pursue a cause of action in strict products liability against a manufacturer for injuries that occur while a third-party operated or used the product.
Background: Berrier, a minor, was injured when a riding mower, manufactured by Simplicity, that was being operated by her grandfather backed up over her left foot, resulting in amputation. The blades could be disengaged by use of a lever on the side of the control panel, but the mower was not equipped with a known safety device that prevented the blades from operating when the mower was placed in reverse – called a “no mow in reverse” or NMIR feature. This feature, as well as a roller barrier at the rear of the blade deck, was not added to Simplicity mowers until some time later.
Simplicity filed a motion for summary judgment at the conclusion of discovery, contending that Pennsylvania strict products liability law does not permit recovery for injuries to anyone other than the “intended user” of a product. Because the minor was a bystander and not an “intended user” of the mower, it was argued she could not recover. The Eastern District of Pennsylvania agreed and granted summary judgment in favor of Simplicity. Plaintiff appealed.
Holding: On appeal, the Third Circuit first attempted to certify the question of whether a bystander was entitled to recover under a strict liability theory to the Pennsylvania Supreme Court. However, the Supreme Court declined the invitation to hear the issue in 2008. So, the Third Circuit pronounced that in the absence of controlling authority, it would predict how Pennsylvania’s highest court would decide the case at hand.
Since the late 1960’s when the Pennsylvania Supreme Court adopted the Restatement (Second) of Torts, §402A in the matter of Webb v. Zern, 220 A.2d 853 (Pa. 1966) and further refined the law in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), generations of practitioners have accepted two basic limitations in products cases: (1) that the class of potential plaintiffs was limited to “intended users” of a product; and (2) that negligence concepts were inappropriate in a product liability case.
The Third Circuit panel in Berrier, however, predicted that the Pennsylvania Supreme Court will abandon its longstanding adherence to §402A and adopt a negligence based concept for product liability claims as articulated in the Restatement (Third) of Torts. Thus, the Court reversed the order granting summary judgment and remanded the matter for trial.
On June 17, 2009, the Pennsylvania Supreme Court declined yet another opportunity to address the issue after it had already been argued and briefed by the parties in the case of Bugosh v. I.U. North America, No. 7 WAP 2008, PICS Case No. 09-1010 (Pa. June 17, 2009)(dismissed as improvidently granted).
As a result, and until the Pennsylvania Supreme Court finally decides this issue, we may see more cases being filed in federal court which would permit a broader range of plaintiffs to seek recovery. But Plaintiffs should be mindful that §2 of the new Restatement could potentially allow manufacturers to introduce evidence of fault on the part of the plaintiff (or others) and the manufacturer’s compliance with state or federal regulations as defenses at the time of trial.
Any questions regarding this case can be directed to Brooks Foland at 717-255-7626 or bfoland@tthlaw.com.
Grammer v. John J. Kane Regional Centers – Glen Hazel
United States Court of Appeals for the Third Circuit 07-2358
June 30, 2009
The United States Court of Appeals for the Third Circuit held for the first time that Medicaid recipients may pursue a federal civil rights claim pursuant to 42 U.S.C. §1983 against nursing homes associated with violation of their rights under the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. §1396r, et seq.
Background: Plaintiff’s decedent, Melvinteen Daniels was a resident of the John J. Kane Regional Center at Glen Hazel in Pittsburgh, Pennsylvania. The Kane Center is a residential skilled nursing home operated by Allegheny County. Plaintiff Grammer, decedent’s daughter, initiated suit in the United States District Court for the Western District of Pennsylvania bringing claims under 42 U.S.C. §1983 for wrongful death and survival against the Kane Center. Grammer alleged that the Kane Center deprived Mrs. Daniels of her civil rights by breaching a duty to insure quality care under the Omnibus Budget Reconciliation Act of 1987 (OBRA) and more specifically, the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. 1396r, et seq. The Kane Center filed a Motion to Dismiss asserting that neither the OBRA nor the FNHRA provide a right that was enforceable through §1983. The District Court, finding no right of action under the statutes, dismissed the case pursuant to F.R.C.P. 12(b)(6).
Grammer appealed to the Third Circuit alleging that the FNHRA gave Medicaid recipients like Melvinteen Daniels rights whose violation could be remedied under §1983. The Third Circuit, in a two to one decision, held that §1983 did provide a remedy for violation of a Medicaid recipient’s rights under the FNHRA.
Holding: 42 U.S.C. §1983 is a vehicle for imposing liability against anyone who, under the color of state law, deprives a person of “rights, privileges or immunities secured by the Constitution and laws.” The Third Circuit held that the FNHRA conferred a civil right on Ms. Daniels as she clearly benefited from the provisions as a Medicaid beneficiary and a nursing home resident. Second, the rights under the FNHRA were not “vague or amorphous.” The provisions “make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients.” Finally, the language of statute unambiguously binds the states and nursing homes by the repeated use of the term “must.”
The Third Circuit also analyzed the legislative history of the enactment of the FNHRA in finding that it conferred individually enforceable rights. It also found that the FNHRA general structure was sufficient to create individually enforceable rights. The language used throughout the FNHRA is explicitly and unambiguously rights-creating, despite the countervailing elements of the statute.
Additionally, the Third Circuit determined that the Kane Center did not satisfy its burden in rebutting the presumption that the rights were enforceable through §1983.
The Third Circuit reversed the Order of the District Court and remanded the case for further proceedings.
The dissent wrote that the Medicaid Act, 42 U.S.C. §1396-1396v, was spending clause legislation. The dissent concluded that he did not agree with the majority’s opinion that Congress intended to confer upon nursing home residents the right to invoke §1983 to sue individual nursing homes for alleged violations of the non-monetary service requirements set forth in §1396r and that the District Court properly dismissed the case and should have been affirmed.
It is interesting to note that the majority at footnote 3 of the opinion notes that the Courts of Appeal for the First, Fourth, Fifth and Ninth Circuits have all held that the same Medicaid provisions the Third Circuit considered in Sabri, conferred individual rights. This would seem to suggest that persons in those jurisdictions could seek to follow the Third Circuit’s holding in Grammer in seeking to bring §1983 actions against nursing homes which are acting under the color of state law.
Any questions regarding this case can be directed to Hugh P. O’Neill, III, Esquire at (717) 255-7629 or honeill@tthlaw.com or David L. Schwalm, Esquire at (717) 255-7643 or dschwalm@tthlaw.com.
Steiner v. Markel
968 A.2d 1253
(Pa. 2009)
Holding: The Pennsylvania Supreme Court holds in a legal malpractice claim that the two year statute of limitations applies where Plaintiff failed to preserve for appeal the issue of whether the Complaint contained a breach of contract claim.
The underlying cause of action arose when the Appellee/client’s attorney [Appellant] erroneously described property in a deed during the course of a land transfer. The client brought a legal malpractice suit against the attorney. The trial court granted the attorney’s motion for a judgment on the pleadings upon finding that the client’s professional malpractice claim was untimely because the claim was a tort claim and the complaint was filed after the two-year statute of limitations had run.
The Superior Court reversed the trial court after, sua sponte, determining that implicit in the client’s complaint was a claim for breach of contract (which would have been timely) despite the fact that the clients did not advance that argument in their appeal from the trial court. The Supreme Court reversed, holding that the client did not preserve for appeal the issue of whether the complaint contained a breach of contract claim, and therefore the Superior Court could not sua sponte infer one from the Complaint.
Any questions regarding this case can be directed to Jason Giurintano at 717-237-7157 or jgiurintano@tthlaw.com.
New Jersey Case Summaries
Myron Corp. v. Atlantic Mutual Insurance Corp.
A-5528-07T2 (App. Div.)
Decided June 5, 2009
Holding: Where a corporation prevails in a New Jersey insurance coverage law suit, it is entitled to counsel fees for foreign litigation which is part of the same controversy over the coverage issue.
A corporation covered by a commercial general liability policy was sued in multiple states for violations of state and federal law. After multiple filings of declaratory judgment actions in multiple venues, it was ultimately determined that New Jersey state court was the appropriate venue, with the option of removal to federal court. The court determined that coverage was owed for defense, and the determination of indemnity was deferred pending the outcome of the suits. The Appellate Division determined that the corporation should recover for attorney fees for the foreign declaratory judgment action in addition to the New Jersey declaratory judgment action and the underlying suits.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
Gonzalez v. Silver
A-2264-07T1 (App. Div.)
Decided June 9, 2009
Holding: Where the harm alleged in a medical malpractice claim is one of failing to correctly diagnose an injury, the "substantial factor/increased risk" causation instructions should be given to the jury, not "but for" causation instructions.
A plaintiff claimed that his orthopedic surgeon failed to diagnose and promptly treat his dislocated elbow, a known risk of the surgery in question. The three-week delay in diagnosis resulted in a second surgery to correct the dislocation, which would not have been otherwise necessary. There was some dispute as to whether the plaintiff and his experts claimed that the defendant surgeon caused the dislocation or simply failed to diagnose it, and the parties debated over whether "but for" causation or "substantial factor/increased risk" causation should be incorporated into the jury instructions. The Appellate Division determined that the issue was whether the surgeon properly diagnosed the dislocation, and that the failure to properly instruct the jury on "substantial factor/increased risk" causation was plain error.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com.
Bardis v. First Trenton Insurance Co.
A-110-07 (N.J. Supreme Court)
Decided June 10, 2009
Holding: Whether to deviate from the usual practice of naming the tortfeasor rather than the insurer as the defendant in a UIM trial is a matter left to the discretion of the trial judge. Further, reference to payment of PIP benefits for treatment of an injury should be excluded from such a trial as irrelevant to causation.
A plaintiff who had been involved in multiple automobile accidents requested that his insurer, rather than the tortfeasor, be named as the defendant. Information regarding the insurer's payment of PIP benefits to the plaintiff were introduced into evidence, along with a stipulation regarding why the insurance company paid the PIP benefits. The Supreme Court determined that introduction of evidence regarding the PIP benefits was improper as such benefits were irrelevant to the matter at issue; the stipulation likely caused confusion to the jury, as the insurer was not the named defendant; and whether the insurer or the tortfeasor should be the named defendant is a matter of discretion for the trial court. The matter was reversed and remanded for a new trial.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com