eNotes: Liability – October 2018
October 01, 2018
TT&H LAWYERS IN COURT
TT&H Attorney Lacey Conn wins summary judgment in connection with a dog bite claim that allegedly caused severe and permanent injuries.
The Circuit Court for Prince George’s County, Maryland granted summary judgment in a case arising out of a dog bite that occurred at the Defendant’s business. The Defendant owned two African Boerbels, one of whom had bitten before. The Defendant routinely brought the dogs to work with him. Plaintiff, who had an appointment with a different business that shared space with the Defendant, entered the Defendant’s business while the dogs were unattended. The dogs bit Plaintiff on his arm, hand and thigh, resulting in severe scarring on the arm and leg and permanent nerve damage to the arm. Plaintiff alleged that he had been unable to work since the accident and, as a result, became homeless. Plaintiff had been to the Defendant’s property a couple of days before the incident and was aware that there were dogs on the property. There was also a Beware of Dog sign on the door to the insured’s business. Arguing that Plaintiff was a trespasser as to the insured and that he assumed the risk of injury, Lacey obtained summary judgment for the Defendant.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or firstname.lastname@example.org.
Joe Cardile wins a defense verdict for a UM/UIM carrier in the Circuit Court of Baltimore City.
Following a one-day jury trial in the Circuit Court for Baltimore City, Joe Cardile won a defense verdict in a phantom vehicle case. Mr. Cardile represented the UM/UIM carrier for a vehicle in which both Plaintiffs were occupants. Plaintiffs alleged that their vehicle was struck from behind by a truck driven by a Co-Defendant. It was further alleged that prior to the collision, a phantom vehicle cut off Plaintiffs and caused Plaintiff driver to brake suddenly, resulting in injuries due to the rear-end impact from the Co-Defendant’s vehicle. Mr. Cardile successfully argued at trial that Plaintiffs had failed to establish the alleged phantom vehicle was negligent. A Baltimore City Jury returned a verdict that the phantom vehicle was not negligent and that the vehicle that rear-ended the Plaintiffs was negligent. As a result, the insurance company’s UM/UIM policy did not apply.
Questions about this case can be directed to Joe Cardile, at (410) 653-0460 or email@example.com.
David Schwalm wins summary judgment for college in civil rights action brought by club owner.
Attorney David Schwalm was awarded Summary Judgment on behalf of a college located in Northeastern Pennsylvania before the U. S. District Court for the Middle District of Pennsylvania. Plaintiff alleged that the college had coordinated with the local police department to violate the Plaintiff club owner’s civil rights. The Court held that the evidence of record was not sufficient to support a reasonable interference of the existence of a conspiracy to “shut down” that club based upon the race of its customers. In entering the ruling, the Court emphasized that crimes had certainly been occurring in and about the area near the college and the club, and that any emphasis on police presence and activity was to provide an atmosphere of safety for the college’s students and staff. Similarly, the Court found that there was no evidence that such “increased” police presence had anything to do with the racial make-up of the attendees of the club.
Questions about this case can be directed to David Schwalm, at (717) 255-7643 or firstname.lastname@example.org.
Attorneys Schwalm and Clayberger win Third Circuit appeal in a civil rights lawsuit involving a county children and youth services agency.
The U. S. Court of Appeals for the Third Circuit recently issued an Opinion affirming the District Court’s entry of summary judgment in favor of a county children and youth services agency represented by Attorneys Dave Schwalm and Matt Clayberger. The case arose out of a family safety plan that children and youth services caseworkers implemented based on evidence that the father had physically abused his child. The family filed suit against the children and youth services agency and two of its employees, arguing that the safety plan violated their procedural due process and substantive due process rights under the Fourteenth Amendment.
Accepting the arguments raised by Attorney Schwalm and Clayberger, the Third Circuit Court of Appeals issued an Opinion that upheld the entry of summary judgment in favor of the children and youth services agency and its employees. Attorneys Schwalm and Clayberger successfully argued that the District Court’s decision should be affirmed, since the evidence demonstrated that the children and youth services employees had a reasonable basis to conclude that the father had abused his child.
Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or email@example.com.
Attorney Matt Clayberger wins dismissal for police chief in defamation lawsuit arising out of cold-case murder investigation.
Attorney Matt Clayberger recently won the dismissal of his client, a local police chief, in a defamation lawsuit arising out of a cold-case murder investigation. After taking over as chief of a local police department, the police chief renewed an investigation into a 1989 cold-case murder. During the course of the investigation, which was covered heavily by local news media, the police chief made comments identifying the Plaintiff in the defamation suit as the lead suspect in the murder. In a suit against the police chief and several newspaper entities, it was alleged that the chief’s statements identifying the Plaintiff as the lead suspect in the murder investigation were defamatory and cast him in a false light.
The Northumberland County Court of Common Pleas issued an Order sustaining the police chief’s Preliminary Objections and dismissing the police chief from the lawsuit, with prejudice. The Trial Court recognized that, under Pennsylvania law, a police chief is entitled to high public official immunity that shields the chief from liability for any official statements made to the media about the course of an investigation. Since the public interest favors the flow of information from law enforcement agencies to the media during the course of a high profile investigation, the Court concluded that the chief of police was immune from suit.
Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or firstname.lastname@example.org.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Goodfellow v. Shohola, Inc.
United States District Court for the Middle District of Pennsylvania
2018 U.S. Dist. Lexis 141889
Decided: August 21, 2018
In a case where the Court also held that an overnight boys camp is not a provider of health care services vis-à-vis a camper, the Court found that Plaintiffs’ timely allegations of recklessness contained in their original pleadings provided a sufficient basis to later request punitive damages, even after the statute of limitations had expired.
Plaintiff-parents commenced an action individually and on behalf of their minor son against an overnight camp for boys, for direct and corporate negligence, and against two infirmary nurses for negligence. The Complaint and Amended Complaint sought only compensatory damages. In their Second Amended Complaint, filed after the two year statute of limitations had expired on the parents’ individual claims but before the applicable statute of limitations had expired on their son’s claim, Plaintiffs made a specific request for punitive damages.
Defendants filed motions to dismiss all three Complaints. However, Plaintiffs filed their Amended Complaint before Defendants’ first motion to dismiss was decided. The Court then dismissed the direct negligence claims against the camp since Plaintiffs Certificate of Merit was insufficient to support that claim but allowed the allegation of ‘recklessness” to proceed. Defendants’ motion to dismiss the Second Amended Complaint challenged the inclusion, for the first time, of a request for punitive damages and the inclusion of a claim for direct negligence against the camp based upon a different Certificate of Merit.
Since the Complaint and Amended Complaint contained allegations of recklessness, which were filed before the expiration of the applicable statute of limitations, Plaintiffs demand for punitive damages were permitted to proceed. However, the Court dismissed Plaintiffs’ claims of direct negligence against the camp with prejudice because the camp was not a hospital, HMO, prison or a health-care-services vendor. Moreover, Plaintiffs’ minor son was not a patient of the camp but a camper. Between camp and camper that relationship was not a provider-patient relationship.
Questions regarding this case can be directed to Joe Holko, at (610) 332-7005 or email@example.com.
PENNSYLVANIA CASE SUMMARIES
Balentine v. Chester Water Auth.
Pennsylvania Supreme Court
No. 119 MAP 2016
Decided: August 21, 2018
“Operation” of a motor vehicle for purposes of the vehicle exception to liability under the PSTCA is a “continuum of activity’’ and not merely “motion.”
The Pennsylvania Supreme Court granted discretionary review to consider whether the Commonwealth Court erred in affirming the grant of summary judgment and holding that the involuntary movement of a governmental vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity. Decedent, Medina-Flores, was working in a ditch located on the grassy strip between the sidewalk and the roadway curb in Chester, Pennsylvania, when an employee of Chester Water Authority (CWA) parked a CWA vehicle 10-15 feet from the ditch, partly in the roadway. The CWA vehicle was soon rear-ended, and as a result moved forward, striking Medina-Flores and fatally injuring him.
The Estate of Medina-Flores sued CWA alleging negligence in the operation of a CWA vehicle. CWA filed a Motion for Summary Judgment, relying on precedent that the word “operation” in the vehicle exception to governmental immunity meant to actually put a motor vehicle in motion – that preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle, were not the same as actually operating it. As such, since the CWA employee had parked his vehicle, alighted, and was standing in front of it when it was rear-ended, the vehicle was not in “operation” at the time of the accident and CWA was immune from suit.
The Supreme Court disagreed, adopting a definition of “operation” of a motor vehicle to reflect a continuum of activity, which entails a series of decisions and actions, taken together, which transport the individual from one place to another. The decisions of where and whether to park, where and whether to turn, whether to engage brake lights, whether to use appropriate signals, whether to turn lights on or off, and the like, are all part of the “operation” of a vehicle. To permit immunity based only on the random factor of motion, as defined by precedent, was an absurd or unreasonable result not intended by the General Assembly. As such, the Supreme Court reversed the summary judgment order as sufficient facts were plead to establish a prima facie case in negligence based on acts that constituted the operation of a vehicle for the liability exception for governmental immunity to apply.
Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or firstname.lastname@example.org.
Jones v. Ott
Pennsylvania Supreme Court
158 A.3d 189
Decided: August 21, 2018
A jury-charge challenge was not preserved where Plaintiff did not contemporaneously object or obtain an adverse ruling on the record.
Before trial in a personal injury action, Plaintiff filed proposed jury instructions, including regarding negligence per se. During trial, but before the jury was charged, the Court held a charging conference that was not transcribed. Ultimately, the Court did not charge the jury on negligence per se as Plaintiff requested. Later, when the Judge asked whether either party wanted to put anything on the record as to the instructions, Plaintiff’s counsel stated, “I have no issues with the charge, Your Honor.” The jury returned a defense verdict, and Plaintiff filed a post trial motion asserting error in failing to instruct the jury on negligence per se. Plaintiff argued that her proposed charges and post-trial motion preserved her objection. The Trial Court disagreed and denied Plaintiff’s motion. Plaintiff appealed, and the Superior Court affirmed the Trial Court’s order.
The Supreme Court determined that where the Plaintiff-appellant did not make a contemporaneous objection on the record, she did not preserve a jury-charge challenge under Rule 227.1, because she did not obtain an adverse ruling on the disputed instruction, even though she filed proposed points for charge and raised the failure to give the disputed instruction as error in a post-trial motion. The Court also held that regardless, Plaintiff affirmatively waived any objection by stating on the record, “I have no issues with the charge, Your Honor,” in response to the judge’s question as to whether the parties wished to raise any issues regarding the jury instructions.
Questions about this case can be directed to Matthew Ridley, at (717) 255-7239 or email@example.com.
Dunlap v. Federal Signal Corp.
Pennsylvania Superior Court
No. 1747 WDA 2016
Decided: August 20, 2018
Pennsylvania Superior Court holds that expert testimony is required to support alternative design theories in product liability cases.
Approximately 247 firefighters filed a mass product liability action claiming that the sirens on their trucks were defective and caused permanent hearing loss. In support of their claims, the firefighters produced an expert report opining that an alternative design, which would use a shroud on the siren to direct the noise to the front of the vehicle, was available and would have met industry standards. The siren manufacturer, however, argued that the shroud proposed by Plaintiffs’ expert would render its product less safe for the pedestrians and motorists it was intended to warn. The manufacturer thus moved for summary judgment, arguing that Plaintiffs had failed to offer sufficient evidence that the proposed alternative design was safe for all users. The Trial Court granted the Defendant’s motion for summary judgment.
On appeal, the Superior Court affirmed the Trial Court’s ruling. Specifically, the Superior Court held that Plaintiffs needed to have an expert testify that their proposed alternative design was safer than the Defendant’s sirens and that simply relying on the fact that the alternative design met industry standards was insufficient. Because the Plaintiffs’ expert failed to provide an opinion that the alternative design of the siren was safe for “all users,” namely pedestrians and motorists, summary judgment was appropriate.
Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or firstname.lastname@example.org.
MARYLAND CASE SUMMARIES
Burks v. Allen
Maryland Court of Special Appeals
September Term, 2016, No. 2361
Decided: August 30, 2018
When a motion to preclude the admission of scientific evidence based on Frye-Reed is filed, it is preferable, but not required, for the Court to schedule a pre-trial evidentiary hearing.
Cynthia Allen and seven of her children, individually and as the Personal Representative of the Estate of Dennis Allen, filed a complaint in the Circuit Court for Baltimore City, Maryland alleging wrongful death and survival actions against Dr. Allen Burks and the University of Maryland Medical Systems Corporation. The Allens alleged that Dr. Burks breached the standard of care by treating Mr. Allen’s elevated potassium levels with a formulation of Kayexalate combined with sorbitol and that Dr. Burks did so without Mr. Allen’s informed consent. The Allens maintained that the formulation caused Mr. Allen’s death. The Allens also alleged that UMMS was liable for Dr. Burks’s negligence under the doctrine of respondeat superior. Dr. Burks filed a pre-trial request for a Frye-Reed hearing intending to argue that the theory of Allen’s expert witness, that Kayexalate can cause ischemic colitis, was not generally accepted throughout the medical community and, therefore, was inadmissible. The Allens opposed the hearing and the Trial Court granted the opposition.
The jury returned a verdict in favor of the Allens for ten million dollars in total damages. Dr. Burks filed a motion for new trial or, in the alternative, for remittitur. The Court granted his motion for remittitur, only. It reduced the damages award to $906,250. Dr. Burks appealed, presenting a number of questions to the Court of Special Appeals; the most notable question was whether the Trial Court abused its discretion by denying his motion for a pre-trial evidentiary Frye-Reed hearing on the Allen’s causation theory.
The Court of Special Appeals held that the Trial Court did not abuse its discretion in denying Dr. Burks’s request for a Frye-Reed hearing to preclude Plaintiffs from presenting expert medical testimony, as there was no harm to him from the Court’s ruling on the Frye-Reed question, because the Trial Court held a hearing at which substantial evidence, but no live evidence, was presented. The Court explained that while a pre-trial Frye-Reed hearing is preferable, it is not required.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or email@example.com.
Heffington v. Moser
Maryland Court of Special Appeals
No. 922, September Term 2017
Decided: August 30, 2018
In a case of first impression, when plaintiff in a civil case is also a defendant in a related criminal prosecution, they are entitled to a stay in the civil case.
Plaintiffs Kristi Heffington and her husband brought an action for defamation and other torts based on reports her employer made to the police and others that Mrs. Heffington stole from the business and committed identity fraud while employed. Because of these reports, Mrs. Heffington also faced criminal prosecution for her alleged conduct. Prior to her indictment, Mrs. Heffington was deposed in the civil case. Mrs. Heffington moved to stay the civil case until the criminal case was concluded, arguing that she could not prove her civil claims without testifying at trial and could not testify without potentially incriminating herself. The Civil Court denied the motion to stay, stating that Plaintiff had already been deposed under oath. Plaintiff called no witnesses at trial and judgment was entered in favor of the employer. Plaintiffs appealed the civil judgment.
The Court of Special Appeals vacated the civil judgment holding that the stay should have been granted. The Court found that by attending the deposition, Plaintiff did not waive her Fifth Amendment right to remain silent and suffer no penalty and her Maryland Constitution Article 19 right to court access, because no criminal charges were pending at that time. That changed once she was indicted. The Court also held that the Trial Court should have weighed Mrs. Heffington’s constitutional rights against the potential prejudice to the defense. Because the civil case had been pending for less than a year and discovery was completed, there was no showing of prejudice to the defense. Further, Mrs. Heffington would suffer the penalty of losing her cause of action and access to the courts in order to protect her Fifth Amendment rights if no stay was granted.
Questions about this case can be directed to Renita Collins, at (410) 653-0460 or firstname.lastname@example.org.
NEW JERSEY CASE SUMMARY
Goldsack v. Wal-Mart Stores, Inc.
United States District Court for the District of New Jersey
Decided: September 7, 2018
District Court grants summary judgment on the basis that Plaintiff could not establish that Walmart Store had actual or constructive notice of the dangerous condition.
Plaintiff Goldsack claimed she slipped and fell on a puddle of water while walking in Walmart’s store in Secaucus, New Jersey. Goldsack claimed that Walmart breached a duty of care owed to her, as Walmart’s business invitee, by failing to monitor the floor of the store. The Court noted that it was beyond dispute that Goldsack failed to establish that Walmart had actual notice of the water on floor prior to the fall. Thus, the issue was whether Walmart had constructive notice of the alleged dangerous condition.
The Court held that Goldsack failed to establish that Walmart had constructive notice of the water on the floor. Upon entering the store, Goldsack approached the customer service counter. After completing her transaction with customer service, Goldsack walked back in the direction from which she initially came and slipped and fell on a puddle of water. The Court held that given the short time Goldsack was in the store, her failure to notice any water on the floor when she passed the area on the way to the customer service counter, and the lack of evidence that the water was on the floor for a prolonged period, a reasonable jury could not find that Walmart had constructive notice of the puddle of water on the floor. Because Walmart had no notice of the allegedly dangerous condition, Goldsack could not establish that Walmart breached its duty of care under New Jersey law.
The Court further held that Goldsack was not entitled to an inference of negligence under the mode-of-operation rule. Goldsack speculated that the closest potential source of the water was Walmart’s freezer for bagged ice. However, since Goldsack was unable to identify the source of the puddle of water, she was not able to demonstrate a nexus between Walmart’s self-service freezer and her injuries.
Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or email@example.com.
DC CASE SUMMARY
Republic of Sudan, Ministry of Internal Affairs v. Owens
District of Columbia Court of Appeals
Decided: September 20, 2018
In certain cases, presence not required for families of terrorism victims to recover for intentional infliction of emotional distress against state sponsors of terrorism.
Plaintiffs who lost family members in the August 7, 1998, al Qaeda terrorist bombings outside of the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, filed lawsuits in federal court in the District of Columbia seeking damages against Sudan, a state sponsor of terrorism. The District Court held that it had jurisdiction to hear the claims against Sudan under the “terrorism exception” to the Foreign Sovereign Immunities Act (FSIA), but found that the Plaintiffs could not rely on a cause of action created by federal law in 28 U.S.C. 1605A(c), and must rely on an independent cause of action. The District Court found that the Plaintiff’s intentional infliction of emotional distress (IIED) claims were governed by District of Columbia tort law and held Sudan liable for damages to the Plaintiffs. The cases were appealed to the United States Court of Appeals for the D.C. Circuit.
The D.C. Court of Appeals held that physical presence is not required for plaintiffs suing state sponsors of terrorism for IIED under the FSIA terrorism exception due to injury or death to family members harmed in terror attacks. Additionally, the Court of Appeals held that physical presence is required for plaintiffs in other situations, consistent with the requirements of Restatement (Second) of Torts § 46(2)(a), which addresses IIED claims brought by plaintiffs who suffer emotional distress as a result of conduct directed at a member of their family. The Court of Appeals reasoned that the typical goals of the presence requirement, which includes protecting defendants from unwarranted liability, limiting compensation only to plaintiffs with genuine claims, and providing a clear standard to avoid endless floods of IIED claims, would not be served by the presence requirement in FSIA terrorism cases.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or firstname.lastname@example.org.