U.S. Supreme Court Fundamentally Alters Precedent
in Two Recent Employment Decisions (July 2009)

Rekun v.  Pelaez

2009 Pa. Super. 113

Decided: June 22, 2009

 

Where a private, binding arbitration found more than fifty percent negligence on the part of the decedent whose estate brought suit, and the agreement for arbitration referenced “comparative fault” as opposed to “comparative negligence”, the Pennsylvania Superior Court holds the agreement ambiguous and bars recovery completely under the Comparative Negligence Act.

 

Background:   Rekun was killed while riding a motorcycle when hit by Pelaez. The Estate and Pelaez agreed to binding arbitration before a former judge, Thomas Raup. Raup found Rekun 60% negligent, and determined the damages to be $800,000. The parties had agreed to a damages cap of $100,000 (apparently the available insurance limit). Pelaez filed a motion to confirm the award, arguing that under Pennsylvania’s Comparative Negligence Act, a plaintiff cannot recover if more than 50% negligent. The trial court denied the motion.

 

Holding:  On appeal, the Pennsylvania Superior Court reverses the trial court, finding that several factors weigh in favor of barring recovery completely. The court also noted that the entire issue could have been avoided had counsel property drafted an arbitration agreement. The agreement used the terminology of “comparative fault” as opposed to “comparative negligence.” The court noted that cases have used the terms "comparative negligence" and "comparative fault" interchangeably, intending them to mean the same thing. The court finds the arbitration agreement ambiguous, stating that if an arbitrator is to deviate from traditional principles of comparative negligence, the difference needs to be clearly spelled out. The court then looks to extrinsic evidence to give meaning to the parties’ intent. The court points to the history of negotiations was that traditional comparative negligence principles would apply, barring a plaintiff from recovery if he or she is more than 50% negligent. The court also noted that where there is an ambiguity in a contract, it should be construed against the drafter, in this case Rekun. 

 

Any questions regarding this case can be directed to Paul Walker at 717-441-7061 (pwalker@tthlaw.com).

 

Hyrcza v. West Penn Allegheny Health System, Inc. 

2009 Pa. Super 119

Decided: July 1, 2009

 

Background:  An $8.6 million dollar verdict against an attending physician and practice group was affirmed by the Superior Court in this medical malpractice action. Decedent underwent hip replacement surgery and was admitted to the hospital rehabilitation unit where her care was then managed by a physician employed by a medical professional corporation. The hospital and several physicians settled before trial and were not identified on the verdict slip. Plaintiff asserted that the attending physician was responsible for coordinating decedent’s care, should have recognized signs of gastrointestinal bleeding and discontinued medication known to cause bleeding. Claims of vicarious liability and corporate negligence were asserted against the practice group.

 

Holding:  The attending physician and practice group appealed, raising several issues frequently encountered in malpractice litigation. The Superior Court rejected the argument that the evidence was sufficient for settling defendants to remain on the verdict slip for the purposes of apportioning liability, noting that there is no absolute right and a prima facia case must be made at trial. This case also continues the trend of permitting expert testimony where the witness is familiar with the standard of care even if not practicing in the same specialty or with the same certifications. Limited use of learned treatises was affirmed where the substance of the text was basic, undisputed medical information.  

 

Importantly, the practice group’s challenge to a corporate negligence charge was rejected. The evidence indicated that the group was made up of many specialties, ran the rehabilitation unit and was responsible for the coordination and management of all medical care and therapies for the patients. The Thompson v. Nason Hospital duties can be imposed on medical professional groups based on this holding.   

 

Any questions regarding this case can be directed to Kathy Williams at 610-332-7029 or kwilliams@tthlaw.com.

Kahn v. Singh

A-73-08, 2009 N.J. LEXIS 680 (N.J. Supreme Court)

Decided July 9, 2009

 

Holding:  Where the experts do not have sufficient qualification to state that it is commonly accepted that the injury in question could not have occurred but for negligence, the court’s decision not to instruct the jury with a conditional res ipsa loquitur charge was appropriate.

 

Background:  During a radiofrequency procedure designed to heat and shrink a bulging disc, a plaintiff claims his doctor negligently burned the nerve root. Testimony differed regarding the plaintiff’s recovery from the initial procedure, but it is undisputed that a few days later, the plaintiff exhibited a foot drop. The cause was ultimately determined to be a dead nerve root, which the plaintiff claimed must have been caused by the doctor’s negligence. The doctor’s expert testified that there was a possibility that the plaintiff had a “sick nerve” that was irritated by the procedure and died not as a result of negligence, but due to a worsening condition. All experts agreed that, if the doctor had burned the nerve root, such an act would be negligent. The jury found in favor of the doctor. On appeal, the Appellate Division affirmed, but a dissenting judge opined that the conditional res ipsa charge should have been explained to the jury. The Supreme Court affirmed, finding that the trial court appropriately chose not to explain to the jury the Buckelew (87 N.J. 512 (1981)) application of res ipsa to medical malpractice actions as an alternative means of finding the doctor acted negligently, as there was insufficient foundation for such a charge based on the doctors’ experience and the “sick root” theory.

 

If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com.

 

Cassilli v. Soussou

A-5205-07T2 (App. Div.)

Decided July 6, 2009

 

Holding:  A defendant relative of an adult personal auto policyholder, although listed as an “operator” of the policyholder’s vehicles, is not a “named insured” and has no reasonable expectation of coverage under the personal auto policy when driving his own vehicle for which he has separate coverage.

 

Background:  The defendant driver of a vehicle settled with a plaintiff for the policy limits of his auto policy. The plaintiff then sought to recover additional funds from the defendant’s adult son’s personal auto policy, on which the defendant was named as an “operator” of the adult son’s vehicles, and under which the defendant would also be classified as a “family member” who shared the same household. The policy provided coverage for “family members” when using “any auto,” specifically excluding autos owned by family members and not covered by the subject policy. The plaintiff argued that the policy exclusion contradicted the coverage for the “named insured” when operating “any vehicle.” The Appellate Division determined that the defendant was a family member, not the named insured, and that the exclusion was clear, specific, and consistent with the policy. Therefore, the carrier owed no coverage other than what was clear on the face of the policy.

 

If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com.

 

Stengart v. Loving Care Agency, et al.

973 A.2d 390 (App. Div.)

Decided June 26, 2009

 

Holding:  An employer’s policy, purporting to transform all employees’ electronic communications into company property, furthers no legitimate business interest and is outweighed by the employees’ interests in maintaining privacy.

 

Background:  Plaintiff’s employer provided her a laptop computer and a work email address. Prior to plaintiff’s resignation, she communicated with her attorneys through her work-issued laptop, but utilized her personal Yahoo email account. Her employment relationship was governed by a company handbook. The handbook set forth an electronic communications policy claiming that electronic communications are not to be considered private and are considered part of the company’s business records. Plaintiff resigned and brought suit against her former employer for violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to 49. Defendant’s attorneys created a forensic image of Plaintiff’s hard drive and argued Plaintiff’s communications with counsel were not protected by the attorney-client privilege and were subject to the company’s electronic communications policy. The trial court agreed—the Appellate Division did not, remanding the matter to determine which sanctions would most appropriately address the discovery violations.

 

If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com 

Pittway Corporation, et al. and the Ryland Group v. Stephon Collins, et al

No. 128, September Term, 2007

Opinion filed on June 12, 2009 by Raker, J.

 

NEGLIGENCE - PROXIMATE CAUSE - SUPERSEDING CAUSATION

MOTION TO DISMISS - PROXIMATE CAUSE

 

Background:  This case arose out of a house fire in June 1998, at the residence of Michael Chapman and his wife, Carolyn Hill, a property rented from Mr. and Mrs. Gui-Fu Li. Samuel Juster and Stephon Collins, Jr., overnight guests of the Chapmans, died, and three Chapman children were seriously injured in the fire. The fire was caused by a burning candle in the basement, where the children were sleeping. The children lit the candle during an electrical outage caused by thunderstorms. The AC powered smoke detector, which did not have a back up battery system, was not activated by the smoke or fire. Numerous parties were involved in the ensuing litigation. The plaintiffs included the parents of the Chapman children and two of the Chapman children, and the parents of Stephon Collins, Jr. and Samuel Juster, as the personal representatives of their respective estates. The plaintiffs filed suit in the Circuit Court for Montgomery County claiming, inter alia, negligence, strict liability for manufacturing and design defects in the smoke detector, and breach of implied and express warranties pertaining to the smoke detector. Defendants included, inter alia, the landlords of the dwelling, the manufacturers of the smoke detectors in the home, the builder of the home, the electrical subcontractor who procured the smoke detectors and installed them in 1989 for the home builder, and the contractors responsible for renovating the basement of the home in 1994.

 

Before the Court of Appeals, only two defendants appeared as petitioners: (1) the manufacturers of the smoke detector, the Pittway Corporation and its subsidiary company, BRK Electronics, and successors in interest; and, (2) the home builder responsible for installing the smoke detector, the Ryland Group. The Circuit Court granted a motion to dismiss to the home builder and manufacturers of the smoke detector on the grounds that numerous acts, alleged in the Complaint filed by the plaintiffs, that transpired between the manufacture and installation of the smoke detector in 1989, and the fatal fire in 1998, constituted unforeseeable intervening acts amounting to a superseding cause of the ultimate injuries.  The Court of Appeals granted certiorari.

 

Holding:  The Court of Appeals affirmed the Court of Special Appeals, holding that a motion to dismiss should not have been granted to the home builder or manufacturer of the smoke detector. The Court of Appeals first reviewed the principles of proximate causation and superseding cause. A tortfeasor is not liable for plaintiffs’ injuries when the injuries were not a foreseeable result of the tortfeasor’s actions or omissions, or when intervening negligent acts rise to the level of a superseding cause of plaintiffs’ injuries. Sections 442 and 447 of the Restatement (Second) of Torts set forth the test for determining superseding causation. A superseding cause arises primarily when “unusual” and “extraordinary” independent intervening negligent acts occur that could not have been anticipated by the original tortfeasor.

 

The Court of Appeals noted that while foreseeability is ordinarily a question of fact, to be decided by the trier of fact, proximate cause may only be decided as a matter of law on a motion to dismiss if the facts alleged in the complaint are susceptible of but one inference that gravitates so close to the polar extreme that the issue of causation is rendered as a matter of law. The Court of Appeals concluded that a motion for summary judgment or a trial on the merits was needed to determine if the intervening acts alleged in the Complaint constituted superseding causes of the plaintiffs’ deaths and injuries, and that the Circuit Court erred in granting a motion to dismiss to the manufacturer defendants and the defendant home builder.

 

If you have any questions, or wish to discuss this case, please contact Michael Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.

 

Wooldridge v. Price

No. 45, September Term, 2008

Opinion filed on March 5, 2009 by Eyler, Deborah S., J.

 

AUTOMOBILE NEGLIGENCE - RULES OF THE ROAD - BOULEVARD RULE - LAST

CLEAR CHANCE DOCTRINE - SUMMARY JUDGMENT.

 

Background:  On July 15, 2006, at approximately 12:49 p.m., Robert H. Wooldridge, Jr. (the “decedent”) was riding a skateboard exiting a driveway when he was struck by a car in which Richard Price and Linda Price, the appellees, were traveling. The Prices were driving at 15 miles per hour, which was less than the posted speed limit of 25 miles per hour. The accident occurred when the decedent, heading westerly on his skateboard, fell in front of the Prices’ car. The car struck the decedent and he died from the injuries. According to the Prices, Mr. Price was driving the car, and Mrs. Price was sitting in the front passenger seat. According to the decedent’s mother-in-law and sister-in-law, they saw evidence after the accident that indicated that Mrs. Price was driving the car when the decedent was hit. In the Circuit Court for Montgomery County, Valerie Wooldridge, the decedent’s surviving wife and personal representative of his estate brought a wrongful death and survival action alleging that her husband’s death was the result of negligence on the part of the Prices.

 

After discovery was undertaken, the Prices moved for summary judgment. The court granted summary judgment because: 1) the boulevard rule provision of the Transportation Article governed the accident; 2) under that rule, the decedent was contributorily negligent as a matter of law; 3) the doctrine of last clear chance did not apply; and 4) whether Mr. Price or Mrs. Price was driving the car at the time of the accident was not a material fact, and therefore the parties’ dispute over that fact did not preclude the grant of summary judgment. Mrs. Wooldridge appealed.

 

Holding:  Judgment affirmed. The Court of Special Appeals held that the decedent was contributorily negligent as a matter of law, and that the last clear chance doctrine did not apply, and therefore the grant of summary judgment was appropriate. The boulevard rule states that a driver of a vehicle entering or crossing a highway from a driveway must stop and yield the right of way to any other vehicle approaching on the highway. The Court concluded that a skateboard is a vehicle within the meaning of the Maryland rules of the road, and a person entering a highway from a driveway on a skateboard is an unfavored driver under the boulevard rule. Thus, the decedent was contributorily negligent as a matter of law when he rode his skateboard into the road from the driveway without stopping or yielding the right of way to the favored drivers, the Prices. The Court further concluded that the doctrine of last clear chance did not apply, as a matter of law, because the Prices, if negligent at all, did not have a fresh opportunity to save the decedent from peril. The Court also found that the identity of the driver was not a material fact that would affect the outcome of the case, and thus the court was free to grant summary judgment even though the fact was in dispute.

 

If you have any questions, or wish to discuss this case, please contact Michael Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.

 

George McDermott et al. v. BB&T Bankcard Corp.

No. 2561, September Term, 2007

Opinion filed March 31, 2009, by Graeff,J.

 

CIVIL PROCEDURE - RIGHT TO JURY TRIAL - COUNTERCLAIMS.

 

Background:  BB&T filed a collection action for $5,885.43, plus interest, attorney’s fees, and costs, in the District Court of Maryland for Prince George’s County. The McDermotts demanded a jury trial, and the District Court transferred the case to the Circuit Court for Prince George’s County. The McDermotts subsequently filed counterclaims against BB&T, which sought damages exceeding $1,000,000. Upon motion by BB&T, the Circuit Court remanded the case to the District Court, concluding that it failed to acquire jurisdiction over the case because the amount in controversy alleged in the complaint did not exceed $10,000. The McDermotts appealed.

 

Holding:  Judgment affirmed. The Circuit Court’s order remanding this case to the District Court constituted a final appealable order because it terminated the McDermotts’ ability to litigate in the Circuit Court. There is no right to a jury trial for civil claims in the District Court that do not exceed $10,000. The McDermotts request for a jury trial did not vest jurisdiction in the Circuit Court because the amount in controversy set forth in the complaint did not exceed $10,000. Counterclaims filed after a case is improperly transferred to the Circuit Court should not be considered in determining whether the amount in controversy is sufficient to entitle a litigant to a jury trial.

 

If you have any questions, or wish to discuss this case, please contact Michael Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.