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TT&H eNotes Liability: January 2017


TT&H adds Virginia lawyer.

Lacey U. Conn, Esquire has joined the Washington, D.C. office of Thomas, Thomas & Hafer, LLP.  Lacey is barred in Virginia and will be seeking admission to the bars of Maryland and Washington, D.C.

Prior to joining Thomas, Thomas & Hafer, Lacey worked for eight years at a large national insurer where she represented insurers and their insureds in cases mostly involving motor vehicle accidents and premises liability.  During that time, she tried over 50 jury trials and obtained her Chartered Property Casualty Underwriter (CPCU) designation.  Lacey also has defended railroads against claims brought by employees and third parties under the Federal Employers Liability Act (FELA).

While at the University of Toledo College of Law, Lacey interned for Judge Jensen in the Lucas County Court of Common Pleas in Toledo, Ohio, and was a member of the law school’s Trial Advocacy Team.  Lacey obtained her undergraduate degree from Ohio State University, where she was a member of the varsity women’s swimming team.

Lacey can be reached at (202) 558-5158 or


Eric Horst wins arbitration in the Philadelphia Court of Common Pleas.

On December 19, 2016, Attorney Eric Horst secured a victory for the defense in the Philadelphia Court of Common Pleas at arbitration.  The claim involved a slip and fall on a patch of ice in the parking lot of a day care center.  At arbitration, Eric presented testimony that the day care had not received complaints regarding snow or ice prior to the fall, while also arguing that the Plaintiff failed to avoid an open and obvious condition on the premises.

Questions about this case can be directed to Eric Horst, at (215) 564-2928 ext. 8506 or



The jurisdictional limit of D.C.’s Small Claims Court has increased from $5,000 to $10,000.  On December 14, 2016,  President Obama signed into law the “District of Columbia Judicial Financial Transparency Act.”  Before then, D.C.’s Small Claims Court only had jurisdiction over cases where the amount in controversy was $5,000 or less.  Now, D.C.’s Small Claims Court has jurisdiction over cases where the amount in controversy is $10,000 or less.  D.C.’s Small Claims Court has exclusive jurisdiction over these cases, meaning that they cannot be filed in D.C.’s jury trial level court.  The D.C. Superior Court’s Public Notice announcing the change can be found at:

With this increase to $10,000, D.C. moves closer to the jurisdictional limits for Maryland’s District Court of $30,000, and Virginia’s General District Court of $25,000.  The increase in the jurisdictional limit of D.C.’s Small Claims Court likely will result in more lawsuits.  Before the change, it may not have been economically feasible or worthwhile for claimants to pursue a lawsuit in D.C.’s jury trial level court for less than $10,000 because litigants there are subject to a plethora of discovery mechanisms and experience a longer time to resolution.  The increased jurisdictional limit makes pursuing low value claims more economically feasible and worthwhile because there is no discovery in D.C.’s Small Claims Court, and cases usually are resolved within months of filing.

Thomas, Thomas & Hafer, LLP maintains an office in D.C. with two resident attorneys, and has six attorneys licensed to practice in D.C. in both general liability and workers’ compensation.

Questions about this issue can be directed to Ben Peoples, at (202) 904-2362 or




Ioven  v. Nestel

Pennsylvania Commonwealth Court

543 C.D. 2016, ___ A.3d ___

Decided: November 30, 2016

State employees are immune from suit for claims of defamation under Pennsylvania’s Sovereign Immunity Act.


Plaintiff filed suit against the chief of police for SEPTA, claiming that the chief published a bulletin that contained false and defamatory statements about Plaintiff.  Plaintiff asserted claims for defamation, slander, libel, and intentional infliction of emotional distress.  The Trial Court sustained the police chief’s preliminary objections and dismissed the intentional infliction of emotional distress claim.  Thereafter, the Trial Court entered judgment on the pleadings in favor of the police chief on the remaining claims on the basis of sovereign immunity.  Plaintiff appealed to the Commonwealth Court.


The Commonwealth Court affirmed the trial court’s decision.  Under Pennsylvania’s Sovereign Immunity Act, state actors acting in the course of their duties are immune from suit unless one of nine exceptions to immunity applies.  Claims of defamation, libel, and slander do not fit within any of the nine exceptions to immunity.  Accordingly, because the police chief was acting in the course of his duties with SEPTA, a state agency, he was entitled to sovereign immunity from Plaintiff’s claims.  Plaintiff argued that the police chief could be held liable because his alleged actions constituted “willful misconduct,” but the Commonwealth Court explained that the “willful misconduct” exception to immunity applies only to local agency actors and not state officials.

Questions about this case can be directed to Matthew Clayberger, at (717) 237-7150 or

Petty v. Federated Mut. Ins. Co.

Pennsylvania Superior Court

2016 Pa. Super 285

Decided: December 14, 2016

Slight deviations, which the Superior Court called "inconsequential niggles" from the statutory model form, do not invalidate a rejection of UIM coverage.


Plaintiffs, five individuals who were involved in an automobile accident while passengers in a vehicle owned by McQuillen Chevrolet-Buick-Pontiac-GMC Truck,  appealed the Judgment of the Erie County Court of Common Pleas after grant of Motion for Judgment on the Pleadings filed by Federated Mutual Insurance Company. Plaintiffs had filed a Complaint for Declaratory Judgment, arguing that they were eligible for underinsured motorist coverage under McQuillen’s automobile insurance policy with Federated. Federated denied coverage, asserting McQuillen rejected UIM coverage by signing an Underinsured Motorist Protection Waiver Form. The Trial Court agreed with Federated.

On appeal, Plaintiffs argued that the Underinsured Motorist Protection Waiver Form that Federated provided McQuillen was not specifically compliant with 75 Pa.C.S. §1731(c) and thus void. Pursuant to §1731, any UIM rejection form must contain standard language as found in the statute. That standard language was included verbatim in McQuillen’s form. The issue raised was not with the language of the form, but deviations in its format that they argued rendered it void. Deviations included adding the phrase “Option 2” to the heading, replacing the term “Protection” with “Coverage” in the heading, adding an “s” to the word “motorist”, “boxing” a portion of the form, and failing to use “prominent type” and “prominent location” in the heading.


The Superior Court determined that the Trial Court’s decision to grant judgment on the pleadings was not an error of law. The Waiver specifically complied with §1731(c), and the deviations cited had “no impact on the Waiver Form’s validity and amounted to inconsequential niggles”. The differences cited were hyper-technical and did not cause confusion or result in an uninformed waiver.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or

Liberty Mut. Ins. v. Sanders

Pennsylvania Superior Court

No. 1570 WDA 2015

Decided: November 29, 2016

Superior Court upholds preclusion of evidence on causation, based on Plaintiffs’  spoliation of evidence, resulting in summary judgment


Defendant was cooking on a stove in her dorm room at the Art Institute of Pittsburgh.  The stove was provided by the school.  The stove caught fire, resulting in water damage to a number of rooms after the sprinklers engaged.  The stove was removed and destroyed.  It was never tested or examined.  Plaintiffs brought suit against Defendant, alleging that Defendant negligently caused the fire and was liable for the resulting damages.  Defendant filed a motion for summary judgment, alleging that Plaintiffs spoliated the evidence by disposing of the stove without permitting Defendant to test or inspect it, and without inspecting it themselves. The Trial Court granted the request for preclusion and summary judgment.


The Superior Court affirmed pursuant to the three-pronged test regarding spoliation.  The Court found that Plaintiffs were solely at fault for destroying the stove without any type of inspection, Defendant was significantly prejudiced by the destruction of the stove, as the stove was never inspected by any party, and there was no appropriate lesser sanction which could have been imposed. 

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or

Del Pielago v. Orwig

Pennsylvania Superior Court

No. 156 MDA 2016

Decided: November 21, 2016

Summary judgment on validity of release was precluded where Plaintiff driver, who did not speak English, was fraudulently induced into signing pre-litigation release.


Plaintiffs filed suit after the husband was injured in a car accident after the Defendant failed to stop at a stop sign and collided with their vehicle.  Plaintiffs contracted for the full tort option and Plaintiffs alleged that the husband sustained extensive injuries.  Plaintiff and his wife signed a pre-litigation release with  Defendant’s insurer for $2,857.92 prior to filing suit.  Defendant filed a Motion for Summary Judgment based on the pre-litigation release, which was granted by the York County Court of Common Pleas.                                               

On appeal, Plaintiffs alleged that twelve days after the accident, an adjuster from Defendant’s insurance company, which was the insurer for both parties, visited Plaintiffs home without an interpreter, knowing both could not speak English, and induced them to sign the release that day.  Plaintiffs alleged that they believed the release was merely an acknowledgement of the husband’s lost wages.  The Court of Common Pleas found that Plaintiffs would be unable to meet their burden that fraud existed because they could not establish that they were fraudulently induced to sign the release, in part, because of testimony that Plaintiffs daughter who spoke English was there taking notes at the time of the transaction. 


The Superior Court reversed the Court of Common Pleas grant of summary judgment.  The Superior Court held that fraud in the inducement is an issue of fact that must be decided by a jury and that the releaser’s ability to read an understand a release is crucial to that determination.  The Superior Court found that the Plaintiffs alleged inability to read or understand the release without an interpreter, the corroboration by another witness, and the presentation of the release in a hurried and confusing manner all impact the determination of alleged fraud and were questions for the jury.  The Superior Court also noted that the Plaintiffs’ daughters presence at the signing of the release was disputed by the testimony of multiple witnesses.  

Questions about this case can be directed to Eric Horst, at (215) 564-2928 or

Vincenzi v. Morgan

Pennsylvania Superior Court

2108 EDA 2015

Decided: November 18, 2016

The zone of danger test for a claim of negligent infliction of emotional distress first requires that the claimant actually be within the zone of danger of the harm before the question of whether the claimant actually feared injury will be considered.


Defendant Robert Morgan was driving a truck owned by his employer, Morgan Company, when the truck left the roadway. The truck then struck a concrete pillar, three parked vehicles, and the exterior wall of Plaintiff’s first floor kitchen. When the impact occurred, Plaintiff was above the kitchen in his second floor bedroom. Plaintiff stated that he heard the impacts and felt the building shake, though he did not see the crash occur. Plaintiff brought claims for negligent infliction of emotional distress (NIED) against Defendant Morgan and damage to his personal property against all three defendants.   

Plaintiff settled his property damage claim against the other two Defendants, and Defendant Morgan moved for summary judgment for both claims asserted against him personally. The Court of Common Pleas granted summary judgment for Defendant Morgan. Plaintiff had previously signed a release as to the property damage claim. The Trial Court granted summary judgment on the NIED claim because it found that Plaintiff was not in the zone of danger of the impact. The Court additionally held that Plaintiff could not have feared that he would be impacted by the truck as he did not know what was happening until the incident was over. Plaintiff appealed the grant of summary judgment  as to the NIED claim only.


The Superior Court held that the Trial Court correctly found that the threshold issue is whether Plaintiff was in the physical zone of danger from the impact, and that here, Plaintiff had offered no evidence to show that he was in any danger of personal injury. However, contrary to the Trial Court’s finding that Plaintiff could not have feared injury from the impact, the appellate court determined that Plaintiff’s contemporaneous observation of the impact with senses other than sight could have been sufficient to find that Plaintiff did in fact fear injury. Nonetheless, this issue was not reached on appeal as Plaintiff had failed to provide evidence sufficient to overcome the threshold inquiry of whether he was within the physical zone of danger at the time of the impact.

Questions about this case can be directed to Katelyn McCombs, at (412) 926-1438 or  Katelyn is admitted to practice in North Carolina.  She recently joined the firm’s Pittsburgh office and is working towards admission to the Pennsylvania bar.

Toro v. Fitness Int’l LLC

Pennsylvania Superior Court

No. 378 EDA 2016, 2016 PA Super 243

Decided: November 10, 2016

Waiver clause included in gym membership agreement was valid and enforceable.


As a part of his membership to Defendant’s gym, Plaintiff signed a Fitness Membership Agreemen.  Included in the agreement was a waiver provision entitled in bold capital letters: “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.”  The waiver provision released Defendant from all “accidental injuries” occurring anywhere within Defendant’s facility and the provision was “intended to be as broad and inclusive” as permitted under Pennsylvania law.     

Plaintiff slipped and fell in the locker room of Defendant’s gym. Plaintiff testified at deposition that he slipped and fell on an “unusual buildup” of “soapy water.”  The Trial Court granted Defendant’s summary judgment motion, finding that waiver provision was valid and enforceable and barred Plaintiff’s claim.  Additionally, the Trial Court held that Plaintiff failed to adduce evidence that Defendant had notice, actual or constructive, of the condition that allegedly caused Plaintiff’s fall.


On appeal, Plaintiff argued that the waiver provision contravened public policy and that the Agreement constituted a contract of adhesion.  Following PA Supreme Court precedent, the Superior Court held that the Agreement did not contravene public policy as it was between persons relating entirely to their private affairs, specifically, voluntary recreational activities.  Additionally, the Court held that the Agreement was not a contract of adhesion as Plaintiff was under no compulsion to sign the Agreement and because the Agreement did not relate to essential services.  Finally, the Court dismissed Plaintiff’s argument that the Agreement was unenforceable because he did not recall reading it and that it was not sufficiently conspicuous.

The Court also affirmed the Trial Court’s holding that Plaintiff failed to adduce evidence that Defendant had notice, actual or constructive, of the transitory condition of a wet floor.

Questions about this case can be directed to Jeff Criswell, at (412) 926-1443 or

Doman v. Atlas Am., Inc.

Pennsylvania Superior Court

2016 PA Super 233, 2016 WL 6277364

Decided: October 27, 2016

Lessee who is deemed a statutory employer for workers' compensation purposes is immune from tort liability.


In September 2006, Atlas entered into an oil and gas lease with Frieda Springer, for the purpose of drilling, operating, producing, and removing oil and gas from her property.  Atlas subsequently entered into a Drilling Bid Proposal and Footage Drilling Contract  with Gene D. Yost & Son, Inc., a drilling contractor, to drill wells.  Under the terms of the contract, Yost was required to provide the necessary equipment and labor, and to drill the wells to the contract footage depth, as specified by Atlas.  Yost began drilling in 2007, and the well reached the contract footage depth on December 2, 2007.  While Yost personnel worked overnight to remove the drilling pipe, Doman and another Yost employee inadvertently loosened the pressurized piping, causing a valve to detach, striking Doman, who fell and was fatally injured. Yost paid workers’ compensation benefits to Doman's fiancé, for the benefit of her minor child.

The Doman Estate filed a Complaint in 2009 to initiate a wrongful death and survival action, seeking damages in tort for the beneficiaries of the Doman Estate. Atlas filed for summary judgment, alleging that Atlas was a statutory employer under Section 302(a) of the Workers' Compensation Act, therefore, was immune from tort liability.  Following a hearing, the Trial Court granted summary judgment in favor of Atlas.  On appeal, the Doman Estate asserted that the Court erred in finding that Atlas, the owner of the gas well where Doman, an employee of an independent contractor, was killed, was shielded from tort liability as a statutory employer and, thus, immune from civil liability under the Act.


The Superior Court noted that there are two significant differences between the applicable provisions of the Act in Section 302(a) and Section 302(b).  Unlike Section 302(b) and Section 203, on its face, Section 302(a) does not require the primary contractor to occupy or control a worksite in order to be deemed the statutory employer of the subcontractor's employees.  Additionally, Section 302(a) sets forth a specialized definition of contractor, which, relevantly to this case, includes “a person who contracts with another to have work performed consisting of the removal, excavation or drilling of ... minerals[.]”  Because Doman was employed by Yost to perform work involving the “removal, excavation or drilling of ... minerals” (natural gas), the facts of this case implicate the specialized definition found in Section 302(a).  Atlas, as the primary contractor that subcontracted the drilling, was thus Doman's statutory employer as a matter of law and entitled to immunity from tort liability.

Questions about this case can be directed to Elizabeth Wiese, at (412) 926-1432 or

Brown v. Kinser

Pennsylvania Superior Court

No. 1633 EDA 2016

Decided: October 21, 2016

Plaintiffs claims will be barred by the assumption of risk doctrine when Plaintiff admits to knowledge of the hazardous conditions of snow and ice and persists to travel the area.


Plaintiff was on the property of Defendant Kinser for an appointment at a salon.  Although Defendant Kinser owned the property, the salon itself was leased and operated by Defendants Vernal and Shepherd.  For three days prior to Plaintiff’s appointment, there were blizzard conditions.  The precipitation had stopped more than twenty-four hours prior to the appointment.  Upon Plaintiff’s arrival for her appointment, she noted the presence of  snow or ice.  In order to enter/exit the salon, Plaintiff was forced to traverse the snow and ice covered steps leading from the sidewalk to the front door of the salon.  After the completion of the salon appointment, Plaintiff exited the salon and suffered injuries.  

Plaintiff filed suit against Defendant Kinser, who in turn, joined Defendants Vernal and Shepherd for indemnification and/or contribution.  Plaintiff filed a motion for partial summary judgment premised upon lessor liability and Defendants Vernal and Shepherd filed a motion for summary judgment premised upon assumption of the risk.  Defendant Kinser also filed a motion for summary judgment premised upon landlord out-of-possession principles, as well as assumption of the risk.  Defendant Kinser alleged it was under no duty to remove snow and ice from the property which was leased and inhabited by Defendants.  Vernal and Shepherd.  The Trial Court denied Plaintiff’s partial motion for summary judgment and granted all of the Defendants’ motions for summary judgment.  Plaintiff proceeded to file the instant appeal against Defendants Vernal and Shepherd, only.


The Superior Court affirmed the Trial Court’s ruling, that Plaintiff’s claims against Defendants Vernal and Shepherd were barred by the assumption of the risk doctrine.  Plaintiff admitted during her deposition that she observed thick ice on the steps upon her arrival at the property.  Despite observing the ice, she proceeded to navigate the steps.  Plaintiff further confirmed her awareness of the presence of ice when she agreed she was not rushing down the steps because of the presence of ice.  Lastly, Plaintiff agreed she knew the steps were covered in ice prior to her fall.  For the reasons cited, the Superior Court agreed there was no genuine issue of material fact that Plaintiff assumed the risk of her fall. 

Questions about this case can be directed to Shayne McGrady, at (570) 820-0240 ext. 8608 or


Hosmane v. Seley-Radtke

Maryland Court of Appeals

No. 19, September Term, 2016

Decided: November 22, 2016

Maryland’s Highest Appellate Court holds that the burden of proof to defeat conditional privilege in a defamation claim is the preponderance of the evidence standard.


Plaintiff and Defendant were both employees of University of Maryland, Baltimore County (UMBC) in the chemistry department. In 2013, Plaintiff left his employment at UMBC. Shortly thereafter, Plaintiff alleged that Defendant had perpetuated numerous rumors to students and employees regarding the Plaintiff.  These accusations included but were not limited to: Plaintiff’s “unbalanced mental health,” allegations of theft and violence, and contentions that the Plaintiff was purportedly banned from campus, etc.  Plaintiff filed suit in Circuit Court under claims of defamation and invasion of privacy (false light). Defendant filed an Answer and asserted a defense for conditional privilege. In Maryland, in order to prove a case of defamation, the Plaintiff must prove actual malice on the part of the Defendant.

At trial, the parties disagreed over jury instructions regarding the burden of proof for conditional privilege. Plaintiff asserted that the preponderance of the evidence standard applied. The Defendant argued that the burden for overcoming conditional privilege was the same as that for proving punitive damages, a clear and convincing evidence standard. The Trial Court agreed with the Defendant and instructed the jury based on the clear and convincing standard. The jury found for the defense.


The Court of Special Appeals reversed the Trial Court. The Court opined that despite the fact that the cases cited by the Defendant adopted a uniform definition of actual malice from punitive damages cases, those cases only adopted the definition of the term “actual malice”, but did not speak to the requisite burden of proof necessary to prove actual malice. The burden of proof to overcome a conditional privilege is the preponderance of the evidence standard, despite the heightened standard to prove punitive damages.  The Court of Appeals ruled that the Circuit Court committed reversible error and the case was been remanded for a new trial.

Questions about this case can be directed to Dana Miller, at (410) 653-0460 or

Schneider Elec. Bldgs. Critical Sys., Inc. v. Western Surety Co.

Maryland Court of Special Appeals

No. 20, Sept. Term, 2015

Decided: November 30, 2016

For a party to be bound to a mandatory arbitration clause, the contract governing the clause must evidence that party’s intent to be bound.


Schneider Electric Buildings Critical Systems entered into an agreement with National Control Services (NCS) (the Master Subcontract Agreement). The agreement contained a mandatory arbitration clause. One year later, Schneider was retained by NCS to assist in building a facility at Aberdeen Proving Ground. The two parties entered into a subcontract that provided that NCS was to perform certain work at the construction site. The subcontract required NCS to provide a performance bond, which it did. Western Surety Company issued the bond. The bond incorporated, by reference, the subcontract between Schneider and NCS which, incorporated, by reference, the Master Subcontract containing the mandatory arbitration clause.

A payment dispute between Schneider and NCS arose, and NCS declined to perform the construction required by the subcontract. Schneider filed for arbitration and named Western as a co-respondent along with NCS. Western filed a petition to stay arbitration and for declaratory judgment, arguing that it was not a party to Schneider’s and NCS’s Master Subcontract agreement and thus could not be compelled to participate in the arbitration. Western also argued that Schneider breached the performance bond and that the breach relieved Western of any liability under the bond. The Circuit Court for Harford County granted partial summary judgment in Western’s favor on the basis that Western’s performance bond did not evidence an intent to be bound by contractual obligations, only performance obligations. The Court also held that even if Western was deemed to be bound to the contractual obligations, the Master Subcontract mandated arbitration between Schneider and NCS only. Schneider noted an appeal to the Court of Special Appeals.


The Court of Special Appeals considered the sole issue whether, under Maryland contract law, Western agreed to arbitrate disputes between it and Schneider due to the performance bond issued by Western that incorporated, by reference, the subcontract between Schneider and NCS which, incorporated, by reference, the Master Subcontract containing the mandatory arbitration clause. The Court held that Western did not so agree to arbitrate disputes because: 1) the language contained in Western’s performance bond did not evince an intent to be bound by an arbitration clause as it was at least two contracts removed from it and, 2) the Master Subcontract between Schneider and NCS made no mention of Western’s obligation to arbitrate disputes with Schneider.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or


Brittingham v. Gaspari

New Jersey Superior Court, Appellate Division

2016 WL 7094160

Decided: December 6, 2016

A medical expert’s opinion that a Plaintiff’s injury is not “permanent” is not a net opinion where it is based on the expert’s examination of Plaintiff, including certain tests which demonstrate that Plaintiff is able to go about activities of daily living without significant pain or restrictions.


Plaintiff Brittingham alleged she suffered disc herniations at C7/T1 and L4/L5 as the result of being a passenger in a motor vehicle that was rear-ended by a vehicle operated by Defendant Gaspari. In advance of trial, the parties took the videotaped depositions of their respective  medical experts. Defendant’s expert, Dr. Kerness, examined the Plaintiff and reviewed her medical records and imaging studies. While Dr. Kerness agreed with Plaintiff’s expert that the Plaintiff’s MRI films revealed herniated discs, he disagreed that the Plaintiff’s injuries were permanent because the Plaintiff’s examination was normal – there was little evidence of pain or restricted range of motion. Dr. Kerness further opined that the herniations were probably pre-existing. During cross examination, Dr. Kerness admitted that he gave no explanation in his report for concluding the herniations were pre-existing, but testified regarding possible non traumatic reasons for herniation, including Plaintiff’s pregnancy at the time. Prior to trial, Plaintiff moved in limine to bar Dr. Kerness’ testimony about possible non-traumatic reasons for herniations. After argument, the Motion was denied. The jury returned a no cause verdict by determining Plaintiff did not suffer a permanent injury. After verdict, Plaintiff moved for a new trial alleging the Trial Court erred in deciding her motion in limine because Dr. Kerness’  opinion was an inadmissible net opinion and should have been excluded.                                                                                


In affirming the Trial Court’s ruling, the Superior Court explained that Plaintiff bore the burden of proving the accident caused a permanent injury; Defendant was not required to prove anything, including alternative causes of Plaintiff’s disc herniations. The Court further reasoned that “[a]n expert’s proposed testimony should not be excluded merely ‘because it fails account for some particular condition or fact which the adversary considers relevant.’”

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or  

Krzykalski v. Tindall

New Jersey Superior Court, Appellate Division

No. A-2539-14T3

Decided: December 5, 2016

Negligence of fictitious driver properly apportioned in motor vehicle accident.


Plaintiff sustained injuries in a motor vehicle accident when an unknown driver cut across the Plaintiff’s lane, resulting in the Defendant’s vehicle striking the rear of Plaintiff’s vehicle.  Plaintiff commenced this action asserting that both Defendant Tindall and the unknown driver, named John Doe, were negligent in the operation of their vehicles that caused the accident in which he was injured.  In pre-verdict motions, the Trial Court denied Plaintiff a directed verdict on liability against Defendant, and furthermore denied Plaintiff’s request that Doe’s negligence, and the apportionment of liability between Defendant and Doe, be withheld from the jury.

In allowing the jury to allocate liability between the Doe and the Defendant, the jury found the Defendant only three percent liable, and found the John Doe ninety-seven percent liable.  This resulted in ordering the Defendant to pay only $3,236.70 of the total $107,890 in damages.  Plaintiff appealed the decision, arguing that “John Doe” should not have been placed on the jury verdict sheet, because the apportionment of negligence between Defendant and a fictitious driver constituted a miscarriage of justice.


The Court held that the Trial Court properly allowed the jury to allocate liability between the known and unknown defendants.  The Court reasoned that the consideration of an alleged tortfeasor’s negligence and degree of liability is premised on whether the other tortfeasor  “will be affected by the verdict”, not whether that tortfeasor may be said to be a “party”.  The Court further reasoned that allowing the Plaintiff to receive the full amount of damages from the Defendant, who would then have to seek recovery from the unknown driver, ran the potential of resulting in a windfall. 

Questions about this case can be directed to Alicia Emili, at (610) 332-7025 or

Strumeier v. Lenard

New Jersey Superior Court, Appellate Division

No. A-5073-14T4

Decided: December 1, 2016

Expert required to support negligence claim against contractors where theory of liability involved consideration of whether heavy machinery led to creation of a hole.


Plaintiff Strumeier suffered injury from falling into a hole next to a storm drain on a public road. She brought a negligence action against Defendant contractors that previously performed road and sewer work in that vicinity. Plaintiff claimed that a machine used by the contractors to install a guide rail had exerted pressure on a sewer support plate, which caused the plate to crack and the offending hole to form. During discovery a witness for a Defendant contractor testified that the machine used was similar to a pile driver and drove the guide rail posts into the ground. A code official for the local municipality was also deposed. This municipal employee visited the site of accident after it occurred. Significantly, the code official was a licensed engineer, but was not identified as an expert witness in the case. The code official testified that he “speculated” that the hole could have been caused by the machine the contractors used to install the guide rail. He based his “speculation” on his engineering education and knowledge. He further testified that the sewer plate in the ground was cracked, which was consistent with this theory. However, the code official did not personally inspect the broken sewer plate or conduct a forensic review to determine causation. Interestingly, Plaintiff did produce an expert liability report by Wayne Nolte, P.E. However, Mr. Nolte’s report offered an opinion only against the municipality, not the contractors, and he did not opine as to the formation of the hole or the cause of the broken sewer plate. The Defendants successfully moved for summary judgment and Plaintiff appealed.


In appeal Plaintiff argued that expert testimony was not required to establish the Defendant contractors’ liability and that there was sufficient direct and circumstantial evidence for a reasonable jury to infer liability. The Appellate Court disagreed and found that “the capacities of a "pile-driver-like" machine, and the force needed to destroy a back plate and cause a hole of the size and character involved here, are esoteric matters that require expert testimony for an average juror to meaningfully comprehend.” The Court further concluded that without expert testimony, “there was simply no competent evidence establishing the standard of care that Defendants were required to conform to in performing their work, or that they breached that standard of care and, in so doing, violated a duty owed to plaintiff.” The summary judgment dismissal of the contractor Defendants was affirmed.

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or


Holiday Motor Corp. v. Walters

Virginia Supreme Court

292 Va. 461, 790 S.E.2d 447

Decided: September 8, 2016

The Virginia Supreme Court overturned a 20 million dollar verdict against a major car manufacturer, finding, among other things, that Plaintiff’s expert’s opinion lacked an adequate foundation. 


Plaintiff Walters was operating her 1995 Mazda Miata on a two-lane highway in Bedford County, Virginia.  The Miata was a soft-top convertible and Ms. Walters was operating it with the top up.  In an attempt to avoid an object obstructing the road way, Ms. Walters swerved her vehicle off the road.  The Miata went up an embankment, rolled over, and came to a rest on its hood against a tree.  A witness testified that the soft top of the convertible was separated from the windshield header and that the top was actually underneath the windshield when he approached the vehicle to render aid.   

Ms. Walters alleged that Mazda was negligent because the soft-top did not provide reasonable protection in a rollover accident while in the closed configuration.  Ms. Walters specifically pointed to the roof latching system, alleging that the latch system did not work, allowing the soft-top to separate from the windshield and resulting in her injuries.  James Mundo, an automotive engineer, qualified as an expert witness in engineer crash management and safety management, including latches.  Mr. Mundo pointed to only one general safety standard in support of his opinion, but did not rely on any automotive papers, literature or written standards.  Nor did Mr. Mundo conduct testing of any kind on the actual vehicle or similar vehicles involved.  In support of his opinion that the latches failed, causing the roof to become detached from the windshield, Mr. Mundo testified that the accident spoke for itself. 


The Court found that Mr. Mundo’s opinion was based on at least two unfounded assumptions.  As such, his testimony and opinion lacked an adequate foundation and the Trial Court erred in admitting it.  Since this opinion supplied the only support for Ms. Walters’s claim that the vehicle was unreasonably dangerous, the inadmissibility of the opinion was fatal to Ms. Walters’s claims.  The Court ultimately reversed the Trial Court’s judgment and entered final judgment for Mazda.

Questions about this case can be directed to Lacey Conn, at (202) 558-5158 or