SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARY

Pyle v. Otis Elevator Co.
Third Circuit Court of Appeals
2021 U.S. app. LEXIS 10501
Decided: April 13, 2021

The doctrine of res ipsa loquitur does not apply where there exists the possibility of a non-negligent cause of the plaintiff’s injury.

Background

Plaintiff worked as an emergency room technician at Aria-Jefferson Health Frankford, where Otis Elevator Company maintains the elevators. While working, Plaintiff wheeled an empty gurney out of an elevator. As Plaintiff was exiting the elevator, the gurney dropped and landed on Plaintiff’s foot, causing an injury. Plaintiff blamed the “misleveled elevator” for the incident, indicating that the elevator car stopped above the floor. Relying on the doctrine of res ipsa loquitur, Plaintiff filed suit against Otis Elevator Company for negligence in maintaining the elevators. After Otis moved for summary judgment, the Eastern District of Pennsylvania granted the Motion, finding the doctrine of res ipsa loquitur inapplicable because the Plaintiff failed to eliminate non-negligent causes of the incident. Plaintiff appealed to the Third Circuit Court of Appeals.

Holding

The Third Circuit Court of Appeals affirmed the Eastern District’s Order granting the Motion for summary judgment. Res ipsa loquitur allows a plaintiff to satisfy his/her burden of proving a defendant’s negligence by establishing that he/she was injured by an event that would not have occurred in the absence of the defendant’s negligence. In the subject case, the Defendant had a duty to maintain the elevators at Aria-Jefferson Health Frankford. Plaintiff’s argument was that the elevator was misleveled and thus must have been negligently maintained. Plaintiff, however, failed to eliminate non-negligent causes of the incident. Plaintiff testified that he was not sure if the elevator leveled and that he rushed out of the elevator to catch the gurney. Absent the elimination of non-negligent causes of the injury, res ipsa loquitur could not apply and the Third Circuit Court, therefore, affirmed the Eastern District’s Order.

Questions about this case can be directed to Matthew Gerarde at (267) 861-7584 or mgerarde@tthlaw.com

PA CASE SUMMARIES

Smith v. U.S. Facilities, Inc.
Pennsylvania Superior Court
2021 Pa. Super. Unpub. LEXIS 1547
Decided: June 10, 2021

The doctrine of res ipsa loquitur is not applicable when an expert opinion is required to prove causation.

Background

On August 4, 2016, Appellant was riding in one of two elevators reserved for employee use. At that time, the second elevator was also being used. That elevator ascended upward at a high rate of speed and crashed through the ceiling of the elevator shaft. The crash made a loud noise and dropped concrete onto the elevator occupied by Appellant, allegedly rocking the same. Claiming that she sustained injuries in connection with the incident, Appellant filed two separate negligence actions, asserting claims against Appellees U.S. Facilities, Inc., Otis Elevator Company, ThyssenKrupp Elevator Corporation and ThyssenKrupp Elevator Manufacturing. Appellant claimed that Appellees were negligent in their operation, maintenance and repair of the elevators.

The only expert report submitted by Appellant was in support of her alleged psychological injuries. The Appellees each filed a Motion for summary judgment advancing substantially the same argument, namely that expert testimony was necessary to establish the causal element of Appellant’s negligence claims. In response, Appellant argued that the facts necessary to establish the failure of the equipment were capable of being properly understood and determined by lay jurors. She further argued that the doctrine of res ipsa loquitur rendered expert opinion unnecessary. The Trial Court granted the Appellees’ Motions for summary judgment, concluding that res ipsa loquitur was not applicable and that Appellant’s case on liability was unsupported by any expert evidence.

Holding

On appeal, the Pennsylvania Superior Court affirmed the Trial Court’s decision. It agreed with the Trial Court that elevators are complex machines and that the operation, maintenance, rate of customary breakdown, and customary repair, are matters outside of a lay person’s life experience. Therefore, without the required expert testimony to prove the element of causation, Appellant could not establish negligence. The Court further noted that there was not “a fund of common knowledge . . . from which a layperson could reasonably draw the inference or conclusion that Appellees’ acts caused her damages.” Therefore, Appellant could not satisfy the second prong of res ipsa loquitur, which requires the sufficient elimination of other responsible causes.

Questions about this case can be directed to Amanda Hennessey at (717) 300-0421 or ahennessey@tthlaw.com.

Dahl v. Sam’s East, Inc.
Pennsylvania Superior Court
No. 767 WDA 2020, 2021 Pa. Super. Unpub. LEXIS 1459
Decided: June 1, 2021

Plaintiff’s testimony supported a finding that the condition he tripped over was open and obvious, negating any duty owed to him by the store.

Background

Plaintiff tripped and fell over an unattended flatbed cart that was at the end of an aisle and was being used by an employee to stock strawberries. The employee stepped away from the flatbed cart to assist a customer when Plaintiff and his wife approached the flatbed cart. Plaintiff tripped and fell on the end of the flatbed cart when he tried to walk around it. Plaintiff sued the store for injuries that he sustained as a result of the fall. Plaintiff claimed that the flatbed cart was a dangerous condition and that the store violated its procedure by leaving it unattended. During his deposition, Plaintiff testified that the flatbed cart was not blocking the aisle, that he was aware of its presence, and that he had actually smelled the strawberries that were on the flatbed cart, but he tripped when he misjudged the length of the cart.

At the close of discovery, and relying on Plaintiff’s own testimony, the store moved for summary judgment on the grounds that the flatbed cart was an open and obvious condition that Plaintiff appreciated and failed to avoid by the exercise of ordinary care. The Trial Court granted the store’s Motion for summary judgment and Plaintiff appealed.

Holding

The Superior Court affirmed the Trial Court’s Order dismissing Plaintiff’s claim, finding that based on Plaintiff’s own admissions at deposition, there was no dispute that Plaintiff appreciated the location of the flatbed cart and could have avoided it. The Court rejected any claim that there were facts in dispute as taking all of Plaintiff’s testimony as true, the condition was open and obvious. It also rejected any claim that the unattended cart was a violation of procedure as Plaintiff’s own testimony established that the flatbed cart was visible, due to the presence of the strawberries, and was not blocking a walking aisle.

Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or  bdirlam@tthlaw.com, or to Rebecca Sember Izsak at (412) 926-1446 or rsember@tthlaw.com. Rebecca and Brook were the attorneys who obtained this successful outcome for the store.

Almonte v. ECN Staffing, Inc.
Pennsylvania Superior Court
No. 707 MDA 2020, 2021 Pa. Super. Unpub. Lexis 1014
Decided: April 16, 2021

Superior Court addresses the “quantity” prong of the venue test relative to a corporate defendant’s percentage of total overall business.

Background

Plaintiff was injured when he fell through a hole in a machine being installed at an egg farm. He then filed suit in Luzerne County against several companies involved in the project, as well as the temporary service that employed him. The staffing service was the only defendant with a principal place of business in Luzerne County. As the staffing service was being removed from the case based upon workers’ compensation immunity, the remaining Defendants challenged venue.

Plaintiff conducted discovery related to venue, learning that one Defendant had sales and service calls in the forum county at least once every year between 2012 and 2019. Over these years, this conduct accounted for 0.18% of its total business. Conduct in the forum county in 2018 compromised 1.29% of that year’s gross revenue for that party. The Court considered these contacts and held that while they are “quality” contacts, they were not of sufficient “quantity” to sustain venue. On appeal, Plaintiff alleged that the Court erred in addressing the quantity prong of the venue test by focusing solely on the percentage of income generated by this recurring business in the forum county.

Holding

The Superior Court reversed, holding that venue was proper under the framework of the “quality-quantity” analysis. The Superior Court reasoned that the percentage of a company’s overall business in a county is not determinative of the “quantity” prong of the analysis. Looking to the totality of the circumstances, it held that the Defendant’s contacts with the forum county were habitual, despite comprising only a fraction of their total business. Thus, venue was proper and it was an abuse of discretion to transfer the case. Further, because venue was proper as to one Defendant, it was proper as to the other Defendants as well.

Questions about this case can be directed to Logan Nagle at (717) 255-7234 or  lnagle@tthlaw.com.

Mazzie v. Lehigh Valley Hosp. – Muhlenberg
Pennsylvania Superior Court
No. 473 EDA 2020
Decided: April 16, 2021

Plaintiff’s medical expert’s testimony met the “reasonable degree of medical certainty” standard and was sufficient to send the case to the jury.

Background

Plaintiff brought a medical malpractice action against the Defendants, alleging injuries resulting from a laparoscopic surgery to repair an incisional hernia. At the conclusion of trial, Defendants orally moved for compulsory non-suit, arguing that Plaintiff’s sole medical expert did not support his opinions to the requisite degree of medical certainty. The Trial Court denied Defendants’ Motion and the Defendants filed an appeal.

On appeal, the Defendants argued that the Trial Court should have granted their motion for judgment notwithstanding the verdict because the totality and substance of the Plaintiff’s expert’s testimony was that it was “more likely than not that Dr. Garcia negligently performed Plaintiff’s surgery,” and that his testimony fell below the “reasonable degree of medical certainty” standard, thereby warranting judgment notwithstanding the verdict. Plaintiff countered by arguing that the expert did testify to a reasonable degree of medical certainty in that he testified to an “absolute certainty” that the use of a Veress needle in the area of prior scarring was a violation of the standard of care.

Holding

In a medical negligence case, the plaintiff must present an expert witness who will provide testimony, to a reasonable degree of medical certainty, regarding the standard of care and the physician’s deviation from the standard of care. The expert must also opine as to proximate cause, which can be established with testimony that the physician’s conduct increased the risk of the harm actually sustained. In the subject case, the Superior Court stated that that the expert’s testimony must be examined in its entirety, and that a failure to use the words “reasonable degree of medical certainty” will not necessarily render the expert’s testimony deficient. With that, the Court found that the Plaintiff’s expert testified to a reasonable degree of medical certainty, as he was steadfast in his testimony that the Defendant physician deviated from acceptable standards when he used a Veress needle to repair the Plaintiff’s incisional and umbilical hernias, and that such deviation was the proximate cause of her post-operative injuries. Accordingly, the Court upheld the denial of Defendant’s Motion for non-suit.

Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or jdenicola@tthlaw.com.

Sylvester v. Alvin Ziegler Snow Removal
Monroe County Court of Common Pleas
No. 2933-CV-2019
Decided: April 6, 2021

Hills and ridges reasonableness standard applies to snow falling from roof.

Background

Plaintiff sought damages from his employer’s snow removal contractor for negligent failure to clear snow from the roof. Evidence revealed that when Plaintiff arrived at work on the morning of the accident, there was light snow falling. Over the course of the day, approximately 20” of snow accumulated such that several of Plaintiff’s co-workers left early due to increasingly dangerous road conditions. As he was leaving work at the end of his shift, the parking lot and walkways had not yet been cleared of the snow. While walking away from the building, Plaintiff was struck and knocked down by snow and ice falling from the roof. Plaintiff did not know whether there had been snow and ice on the roof before the snow storm that day. Weather reports showed that the last measurable snow fall had been 6 days earlier. Defendant testified that he did not have sufficient manpower to inspect the roof due to the severity of the storm. He further testified that after several hours of snow removal efforts, he called off the snow removal activities until the storm abated.

Defendant Moved for summary judgment claiming that the hills and ridges doctrine establishes a reasonableness standard to judge defendant’s duty when snow and ice prevail. Plaintiff claimed that the hills and ridges doctrine did not apply to these circumstances because that doctrine applies to sidewalk and road surfaces and Defendant had spent several hours engaged in snow removal before giving up. The Trial Court noted that landowners are given a reasonable time to clear public areas, at least while a storm is continuing as it was in this case. The Court reasoned that it was not “reasonable” to expect landowners to clear snow at their own peril during an ongoing storm. The Court held that the same reasonableness standard applies whether the snow to be removed is on the ground or on the roof.

Holding

The Trial Court granted summary judgment in favor of Defendant because it would be unreasonable to impose liability on the Defendant for not clearing rooftops during a severe, ongoing storm. Since landowners are granted a reasonable period of time to clear snow, Defendant could not be expected to have cleared snow from the roof before the time of the Plaintiff’s injury.

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

MD CASE SUMMARY

Anne Arundel County v. Reeves
Maryland Court of Appeals
2021 Md. LEXIS 259
Decided: June 7, 2021

Court of Appeals finds that owners of pets killed by the negligence of others can recover, at most, $10,000 for emotional pain and suffering.

Background

During a search for an unrelated perpetrator, an Anne Arundel County Police Officer entered Mr. Reeves’ property and encountered his dog, Vern, a Chesapeake Bay retriever, who was in the front yard of Mr. Reeves’ home. While Vern took no aggressive action, the officer, evidently believing he would be attacked, shot Vern twice, killing him. Mr. Reeves subsequently brought suit alleging that, by fatally shooting Vern, the officer committed a trespass to Mr. Reeves’ chattel and acted with gross negligence.

At trial, the jury returned a verdict in favor of Mr. Reeves and awarded $10,000 for the trespass to chattel claim. In addition, the jury awarded $500,000 in economic damages and $750,000 in noneconomic damages for the gross negligence claim. The Circuit Court reduced by damages for the negligence claim to $200,000, pursuant to the Local Government Tort Claims Act, and reduced the trespass to chattel damages to $7,500, pursuant to the then-applicable damages cap on damages for injuries to pets.

Holding

Maryland’s Court of Appeals held that the damages cap on damages for injuries to pets limits the recovery for compensatory damages to the amount specified by that statute, which at the time was $7,500. The Court based its holding on a Maryland statute limiting the recoverable amount in pet cases, its relationship to Maryland’s Wrongful Death Act, and its legislative history. The Court reduced the total damages awarded to $7,500, including the damages awarded for gross negligence, reasoning that the statutory limit applied to the entire damages award. Of note, since the incident at issue in Reeves, the applicable damages cap has been increased to $10,000, which is now the statutory limit applicable to the entire damages awarded to owners of pets killed by the negligence of others.

Questions about this case can be directed to Nicholas Schaufelberger at (202) 945-9502 or nschaufelberger@tthlaw.com.

NJ CASE SUMMARY

Gayles v. Sky Zone
New Jersey Superior Court, Appellate Division
No. A-3529-19
Decided: May 12, 2021

In parent’s negligence action against trampoline park owner, summary judgment was properly denied because the third-party who signed the park’s waiver lacked apparent authority.

Background

Joan Tongol invited friends of her minor son to attend Sky Zone Trampoline Park operated by Defendant. Tongol told the children’s parents that she would drive the children to the trampoline park. On the day of the party, Plaintiff Gayles drove her son Justin, also a minor, to the Tongol home. On arrival at Sky Zone, after she checked in and paid for the group, Tongol completed and signed an agreement. In the section of the agreement titled “Included Minors,” Tongol listed every child with his or her birthdate, which she obtained by asking the children. Tongol completed the agreement without reading it fully and without any assistance from Defendant’s staff. None of the children’s parents had executed a power of attorney in favor of Tongol. While playing on the trampolines, Justin Gayles fractured his leg.  His parents subsequently brought suit. Defendant filed for summary judgment to dismiss Plaintiff’s Complaint and to compel arbitration of the claim under the agreement. The Trial Court denied the Motion, finding the agreement void and unenforceable.

On appeal, Defendant argued the Trial Judge erred in denying summary judgment and not compelling arbitration because Tongol “had apparent authority to execute the Agreement on [Plaintiff’s] behalf.” Defendant also contended that Tongol’s apparent authority thus rendered the agreement enforceable.

Holding

The Appellate Court upheld the Trial Court’s decision because the third-party (Tongol) who signed the park’s waiver of rights, which included the arbitration provision, was not the Plaintiff minor’s parent, guardian or attorney-in-fact, and lacked apparent authority to execute the waiver regarding the minor’s personal injury claims. The owner could not rely solely on its own general admission procedure to support the reasonableness of its belief that Tongol had authority to act for the minor’s parent and execute the waiver. Also, the parents of the Plaintiff minor had no direct or indirect communication with the owner and there was no relevant “practice” or pattern of conduct between the parents and the owner Defendant to render the agreement enforceable.

Questions about this case can be directed to Michael Bishop at (908) 574-0510 or mbishop@tthlaw.com

DC CASE SUMMARY

Harris v. Wash. Metro. Area Transit Auth.
United States District Court for the District of Columbia
490 F.Supp.3d 295
Decided: September 29, 2020

Mother’s claim against subway authority for negligent failure to render aid to her deceased son survives summary judgement.

Background

On the night of April 28, 2019, the Plaintiff’s son got into a verbal altercation with some other passengers while riding a bus. Soon after the argument, he exited the bus along with other passengers, including a couple with whom he had argued while on the bus. The Plaintiff’s son went to a nearby subway station which, unknown to him, was closed, even though the station’s entrance escalators were running. Once he was on the escalator, the Plaintiff’s son was attacked from behind by a man involved in the earlier altercation. The Plaintiff’s son fell down the escalator and came to a stop at the barricaded underground subway entrance. The assailant then fought the Plaintiff’s son in front of the barricaded entrance, stabbing him multiple times throughout the fight. The man left the Plaintiff’s son on the ascending escalator and left the station. Minutes later, a patrolling station attendant walked by the barricaded entrance, but did not exit the station to render aid to the Plaintiff’s son. Sometime thereafter, subway police arrived, but were unable to revive the Plaintiff’s son, who died as a result of his injuries.

Plaintiff sued the subway authority for, among other things, negligently failing to render medical aid to her dying son. The subway authority moved for summary judgement relying on security camera footage that showed that the station was closed at the time of the attack. In addition, the footage showed the attendant in the area minutes after the man discarded the Plaintiff’s son on the ascending escalator. The Defendant argued that it owed no duty to render aid to the decedent because the station was closed.

Holding

The District Court for the District of Columbia held that, under the circumstances, a reasonable jury could find that the subway negligently failed to render aid to Plaintiff’s son, causing his death. The Court reasoned that any business open to the public owes a duty to render aid to injured persons on their property. The Court further reasoned that even though the station was closed, a jury could find that the decedent reasonably thought the station was open due to the operating escalators. The Court explained that the reasonable conclusion that the station was open could trigger the Defendant’s duty to render medical assistance, even though it was closed. As a result, the Court denied the Motion for summary judgment because a jury could find that the Defendant owed a duty to render aid and failed to do so.

Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or rstanley@tthlaw.com.

VA CASE SUMMARY

Doe v. Baker
Virginia Supreme Court
No. 200386
Decided: April 29, 2021

Virginia Supreme Court reverses dismissal of claim against church defendants for negligent retention of minister following alleged sexual assault of minor.

Background

Jane Doe, while a minor, alleged she was molested by Jonathan King, a retired, but still active, pastor of her church. King had served as a pastor with the Church of God since 1967. In 1995, he was hired to serve as the pastor of the Waynesboro Celebration congregation, where he was acquainted with Jane Doe and her family. He retired in April 2011, but continued to act as a minister and offered spiritual counseling to the church’s members, including Doe. On July 8, 2016, Doe and her mother went to King’s home to bring him and his wife tomatoes from the farmer’s market. King was left alone with Doe in the living room and the alleged molestation occurred “under the guise of offering spiritual advice and comfort.” Doe told her parents what happened several days later.

Prior to this incident, church officials had been made aware of several instances, dating back to 1996, after his hiring by Waynesboro Celebration, where King had made unwanted sexual advances on women and had engaged in nonspecific inappropriate conduct with young girls. In 2002, the church ordered King and his wife to attend a counseling and mental health facility. The counselor reported to the church that King needed “to set healthy boundaries with women” and needed to be held accountable for his inappropriate actions. Doe filed suit against the Virginia Church of God and the National Church of God for negligent hiring and negligent retention of King. The Circuit Court dismissed the case based on its review of the allegations in the Complaint. Doe appealed.

Holding

The Supreme Court held that claims for negligent hiring and retention are not viable for conduct of a former employee. Termination of employment is a logical and practical boundary for such claims, and holding an employer liable for an employee’s post-termination behavior would impose an unpredictable and potentially limitless duty of care. With no allegations regarding King’s conduct prior to 1995, the Court affirmed the dismissal of the negligent hiring claim. However, the Court reversed the dismissal of the negligent retention claim because the Complaint alleged that King, despite “retiring,” was acting as an agent, volunteer or employee of the church. The Court found that the Complaint depicted “a progressive pattern of worsening conduct, and an apparent failure of the counseling in 2002 to reform his behavior.” The case was remanded for further proceedings.

Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or nphillips@tthlaw.com.

On June 1, 2021, the Pennsylvania Superior Court affirmed the dismissal of a negligence action against Rebecca and Brook’s client.  The suit claimed that Plaintiff was injured after tripping over a flatbed cart being used for strawberries.  After getting Plaintiff to admit at deposition that he knew of the cart’s presence, and even smelled the strawberries on the cart, Rebecca and Brook successfully won summary judgment on the basis that the cart was open and obvious and could have been avoided by Plaintiff.  Plaintiff appealed and the Pennsylvania Superior Court affirmed the dismissal of the case.  A more thorough synopsis of the decision can be found in the firm’s July 2021 liability eNotes.

Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or resember@tthlaw.com, or to Brook Dirlam at (412) 926-1438 or bdirlam@tthlaw.com.

The District of Columbia City Council recently passed the Vulnerable User Collision Recovery Amendment Act of 2020.  The Vulnerable User Collision Recovery Act previously adopted the comparative negligence doctrine for roadway collisions between an automobile and a pedestrian, bicyclist or one using some other non-motorized transportation device.  The law allowed recovery for such individuals, so long as his/her negligence was not greater than the driver’s negligence.

The Amendment Act, which went into effect on March 16, 2021, expands the application of comparative negligence in two ways.  First, in addition to collisions that occur on a roadway, comparative negligence now also applies to collisions that occur on a sidewalk.  Second, the scope of plaintiffs to whom comparative negligence now applies has been expanded.  While the Act originally applied only to pedestrians, bicyclists and people on non-motorized transportation devices, comparative negligence now applies to accidents involving individuals using non-vehicular motorized transportation devices, including all-terrain vehicles, dirt bikes, motorcycles, motorized bicycles, scooters and skateboards.

Thomas, Thomas & Hafer LLP is a regional civil litigation firm with over 80 lawyers in eleven offices throughout the Mid-Atlantic region.  Questions regarding this case can be directed to Ryan Stanley, an associate in our Washington, DC office, at (202) 945-9504 or rstanley@ttlaw.com.

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Graham v. Check
Pennsylvania Supreme Court
No. 42 WAP 2019
Decided: December 22, 2020

The Pennsylvania Supreme Court declares that the sudden emergency doctrine is no longer a defense, but rather a factor in determining negligence.

Background

While it was still dark, Plaintiff-pedestrian was struck by Defendant’s car while walking at a normal pace and crossing a street within the crosswalk at a T-intersection. Defendant testified at trial that he did not see Plaintiff until he was approximately 7-10 feet away since it was dark out, Plaintiff was wearing dark clothing, and Defendant’s view was obstructed by the presence of another vehicle near the intersection. Although Defendant hit his brakes at, before, and/or after, the time he stuck Plaintiff, testimony at trial indicated that Defendant should have been able to see Plaintiff from 54 feet away. According to Defendant, he was traveling below the speed limit, but could not stop in time.

Defendant requested that the jury be charged on the sudden emergency defense. Over Plaintiff’s objection, the Court instructed the jury that they could find that Defendant was not negligent if he was confronted by a sudden emergency that was not of his making and that despite the sudden emergency, he acted reasonably in response to it. The jury returned a verdict in Defendant’s favor. Plaintiff’s Motion for post-trial relief were denied, judgment was entered in favor of the Defendant, and Plaintiff appealed. The Superior Court affirmed and Plaintiff filed a Petition for allowance of appeal to the Supreme Court, which granted allocator.

Holding

In a 5-2 decision, the Supreme Court held that the Trial Court erred in charging the jury on the sudden emergency defense since the trial record did not support the instruction. Pursuant to the Pennsylvania Motor Vehicle Code, Defendant had a higher duty to be vigilant when approaching a crosswalk under the circumstances and should have been on the lookout for a pedestrian at the location where Plaintiff eventually was struck. While Plaintiff did not request it, amicus counsel requested that the Court abolish the sudden emergency doctrine altogether, citing opinions from other jurisdictions that have rejected the defense. Although the Court deferred a ruling on that point for another time, and until it was properly raised by a party to an appeal from a fully developed trial record, the Court nevertheless opined that “a sudden emergency” is really not a defense at all, but is a factor to be considered by the jury in determining negligence in an appropriate case. The opinion of the Superior Court was reversed and the case remanded for a new trial without the taint of the sudden emergency instruction.

Questions about this case can be directed to Joe Holko at (610) 332-7005 or jholko@tthlaw.com.

Bourgeois v. Snow Time, Inc.
Pennsylvania Supreme Court
2020 Pa. LEXIS 6280
Decided: December 9, 2020

Pennsylvania Supreme Court reverses Superior Court’s affirmation of Trial Court’s grant of summary judgment because both Courts failed to view the Plaintiffs’ expert reports in the light most favorable to Plaintiffs and rejected the expert reports on the basis that they did not establish a duty and standard of care.

Background

Ray Bourgeios and his wife, Maryann, purchased Ski Roundtop snow tubing passes on February 16, 2013. As part of the purchase, each signed a release assuming all the risks of snow tubing and releasing Ski Roundtop from liability. The Bourgeoises completed several runs that same day. The next day, on February 17, 2013, Ray Bourgeios returned to Ski Roundtop. After completing several runs, he rode his snow tube in a prone position, head-first down the hill. His tube went over a flat deceleration mat (a kitchen anti-fatigue mat), which did not slow him down, before colliding with a second, folded mat, which caused his tube to stop abruptly. As a result of the collision, Mr. Bourgeios hyperextended his spinal cord, resulting in quadriplegia. The Bourgeioses filed suit against Snow Time and Ski Roundtop alleging claims for negligence, gross negligence and recklessness.

Ski Roundtop filed a Motion for summary judgment. The Trial Court granted the Motion, and, on appeal, the Superior Court affirmed. The Trial Court held that the release agreement barred the negligence claims. Plaintiffs did not produce sufficient evidence that Ski Roundtop had actual knowledge that folding the mats increased the risk of harm to its snow tubing patrons or that Ski Roundtop’s conduct was reckless or grossly negligent. The Superior Court held that the Plaintiffs did not establish a prima facie claim for recklessness or gross negligence. The Superior Court reasoned that the Plaintiffs failed to articulate an appropriate standard of care for the use of deceleration mats.

Holding

The Supreme Court found that the Superior Court erred by not viewing the Plaintiffs’ expert reports in the light most favorable to Plaintiffs. According to the Supreme Court, the expert reports presented genuine issues of material fact for a jury to resolve. Further, the Supreme Court found that the Superior Court erred by rejecting the expert reports on the basis that they did not establish a duty and standard of care. The resort had a duty to exercise reasonable care to bring its patrons to a safe stop at the end of their runs. In the reports, the experts analyzed how the resort breached its duty by failing to protect its patrons against unreasonable risks, while also increasing the risk of harm to its patrons through a number of conscious acts, including using folded deceleration mats in an inadequate run-out area under fast conditions. Accordingly, the entry of summary judgment was reversed.

Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or ahennessey@tthlaw.com.

McMichael v. McMichael
Pennsylvania Supreme Court
No. 50 WAP 2019, 2020 Pa. LEXIS 5893
Decided: November 18, 2020

Pennsylvania Supreme Court reverses jury award of zero dollars for non-economic damages which had no reasonable relation to the proffered evidence of the wife’s loss.

Background

Seth McMichael (“Decedent”) was killed by a falling tree cut by Michael Hudak while clearing a property for the installation of a natural gas pipeline. Decedent’s widow, Tina McMichael, filed a wrongful death and survival action. The jury awarded Decedent’s widow $225,000 in survival damages and zero dollars in wrongful death damages. Decedent’s widow appealed both awards. The Superior Court affirmed in part, and reversed in part, finding that the award of zero dollars for the wrongful death damages was improper as there was sufficient evidence of spousal services that were rendered by Decedent and, therefore, the services had value. As a result, the Superior Court remanded the issue of wrongful death damages. Decedent’s employer appealed to the Supreme Court.

Holding

The Supreme Court affirmed in part, and reversed in part. The Supreme Court found that, with regard to economic damages, the jury was permitted to discount spousal services provided by Decedent where Decedent’s spouse and her expert failed to provide specific values for the services. However, the Supreme Court held that non-economic damages, i.e. loss of “companionship, comfort, society, guidance, solace, and protection,” are compensable even though they do not have a mathematical formula in which to calculate their value. Therefore, the award of zero damages was improper. Accordingly, the matter was remanded for a new trial on damages for wrongful death, limited to non-economic damages.

Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or jdanko@tthlaw.com.

Heimbecker v. Trevlyn
Pennsylvania Superior Court
No. 3465 EDA 2019
Decided: December 16, 2020

After Plaintiff’s decedent was misdiagnosed after hurting his shoulder at the beach, Court affirms judgment for Defendant where some of Plaintiffs’ experts’ opinions lacked “reasonable certainty” and the jury believed Defendant’s experts.

Background

Mr. Heimbecker injured his shoulder while pulling a cart. After being told to take 2 aspirins and call back in the morning, he was referred to Dr. Trevlyn, an orthopedic surgeon, who diagnosed him with gout, prescribed Indocin, and ordered an MRI of his shoulder. A few days later, Mr. Heimbecker was found unresponsive, taken to a local hospital, then transferred to a major city hospital where he died 3 days later. At trial, Plaintiffs’ experts testified that Mr. Heimbecker was misdiagnosed by Dr. Trevlyn, who failed to properly treat a developing bacterial infection that “showered [Mr. Heimbecker’s] bloodstream and his brain and likely his heart” which ultimately caused his death less than a week later.

However, the Trial Court had earlier granted Defendant’s Motion in limine and precluded two of Plaintiffs’ experts from testifying at trial because their written opinions were not rendered with the requisite degree of medical certainty. Although other experts testified for Plaintiffs, a jury returned a verdict in favor of Dr. Trevlyn. Plaintiffs’ Motion for post-trial relief was denied and judgment was entered in favor of Dr. Trevlyn. The Trial Court explained that the jury simply believed Dr. Trevlyn’s experts regarding the appropriate standard of care and the cause of his patient’s untimely death.

Holding

In affirming the judgment entered in favor of Dr. Trevlyn, the Superior Court, in large part, adopted the opinion of the Lower Court. With regard to precluding Dr. Dorsky’s expert testimony, the Court held that his repeated use of the phrase “more likely than not” in his written report failed to express the requisite degree of medical certainty. Although the Court found that Plaintiffs had not preserved their objection to the Lower Court’s preclusion of the expert opinion of Dr. Sicherman, the Court indicated that even had the issue been preserved, Dr. Sicherman’s use of “it is more probable than not” also fell short of the hallmarks of medical certainty. Moreover, Dr. Sicherman’s testimony was duplicative of one of Plaintiffs’ other experts who was permitted to testify at trial.

Plaintiffs also complained that the Trial Court abused its discretion in precluding a 3 minute video of Mr. Heimbecker showing his “vibrancy” before his misdiagnosis. According to the Trial Court, the video consisted of “a series of photographs that [were] orchestrated or choreographed to music along with texts and some voice over top of it.” The Superior Court agreed that the video’s prejudicial effect outweighed its probative value and was offered at the end of Plaintiffs’ case in chief to “merely elicit sympathy from the jurors.” Additionally, since the jury never assessed damages, the video was irrelevant. Lastly, because Plaintiffs failed to object to the alleged demonstrated prejudicial effect of the Trial Judge’s behaviors and comments during sidebars, testimony, a snow storm, and while instructing the jury, those issues were waived.

Questions about this case can be directed to Joe Holko at (610) 332-7005 or jholko@tthlaw.com.

Zitney v. Wyeth LLC
Pennsylvania Superior Court
No. 2020 Pa. Super. 278
Decided: December 1, 2020

Court affirms summary judgment in favor of drug manufacturers, finding that Pennsylvania law does not impose a duty on drug manufacturers to convey safety warnings to prescribers in a manner other than including them in drug packaging.

Background

Plaintiff’s physician prescribed metoclopramide (Reglan) to treat nausea associated with migraines. Plaintiff took the medication for several years. Eventually, after suffering bouts of muscle spasms, she was diagnosed with tardive dyskinesia caused by her use of the drug.

Plaintiff filed suit against fifty Defendants, including the relevant drug manufacturers, arguing, inter alia, failure to warn. Plaintiff argued that the drug companies were negligent because they failed to warn Plaintiff’s physician about updates to the Reglan/metoclopramide labels. Essentially, Plaintiff based her failure to warn claim on the manner in which the drug companies notified physicians of warnings, and not the contents of the warnings themselves. Thereafter, two drug companies, PLIVA and Teva filed motions for summary judgment, arguing that they did not breach a duty to warn. The Lower Court agreed finding that Pennsylvania law does not impose a duty on drug manufacturers to convey safety warnings in any manner other than including them in a product’s package insert.

Holding

On appeal, the Court applied the learned intermediary doctrine, which provides that drug manufacturers must direct required drug safety warnings to physicians and not to patients. In applying this doctrine, the Court considered whether the warning that was given to the prescribing physician was proper and adequate. The Court noted that Plaintiff did not dispute that the relevant labels were adequate to satisfy the duty to warn; rather, she argued that the learned intermediary doctrine imposes a duty to warn physicians individually through a “Dear Health Care Provider” (“DHCP”) letter of the risks imposed by metoclopramide. Ultimately, the Court found that the drug companies fulfilled their duty to warn by including adequate safety warnings within the packaging of the drug. Additionally, the Court found that Pennsylvania law does not impose on drug manufacturers a duty to send DHCP letters to prescribing physicians.

Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or jdenicola@tthlaw.com.

Weimer v. UPMC Somerset Hosp.
Pennsylvania Superior Court
No. 151 WDA 2020
Decided: November 30, 2020

Plaintiff’s claims for malpractice, false imprisonment and punitive damages arising out of a Section 302 and/or Section 303 Involuntary Treatment Application did not overcome the immunity afforded by Pennsylvania Mental Health Procedures Act (“MHPA”).

Background

Police officers notified Plaintiff that his ex-wife, with whom he resided, had committed suicide. After being notified, Plaintiff became violent and attempted to retrieve a firearm. After a brief struggle, Plaintiff insisted that he was going to kill and/or harm himself. The responding officer thereafter completed an Application for Involuntary Emergency Examination and Treatment pursuant to Section 302 of the MHPA. Plaintiff was then transported to the hospital for further evaluation. Upon further evaluation, it was determined, by the treating physician, that Plaintiff required further treatment and a Section 303 Application for Extended Involuntary Treatment was completed. Following a hearing, the trial court entered an Order granting the Section 303 Application. On the same date, however, Plaintiff was released from care.

Thereafter, Plaintiff filed a Complaint and Amended averring causes of action against Defendants for medical malpractice, false imprisonment, and punitive damages. Following Preliminary Objections by Defendant, Plaintiff filed an Amended Complaint. The Amended Complaint again averred causes of action for medical malpractice and false imprisonment. Following a second round of Preliminary Objections, the Trial Court sustained the Preliminary Objections and dismissed the Complaint with prejudice.

Holding

In addressing the claims for medical malpractice and false imprisonment, the Superior Court reviewed Section 7114 of the MHPA which provides for specific immunities from civil and criminal liability arising out of Applications for Involuntary Emergency Examination and Treatment. Section 7114 provides immunity for any covered “facility” which engages in the diagnosis, treatment, care, or rehabilitation of mentally ill persons, whether as outpatients or inpatients, absent a showing of willful misconduct and/or gross negligence. In reviewing the facts, as plead, the Superior Court determined that Plaintiff could not overcome the immunity afforded by the MHPA. In reviewing Plaintiff’s remaining claim for punitive damages, the Superior Court determined that the cause of action arose out of the underlying actions and absent a viable cause of action, an independent claim for punitive damages could not stand. Moreover, Section 505 of the Medical Care and Reduction of Error Act precluded such a claim as there was no showing of outrageous behavior or egregious conduct. The decision by the Trial Court to dismiss Plaintiff’s Complaint with prejudice was affirmed.

Questions about this case can be directed to John Lucy at (717) 441-7067 or jlucy@tthlaw.com.

McNeill v. Global Tel-Link
Pennsylvania Superior Court
No. 50 MDA 2020
Decided: November 25, 2020

Defendants may be shielded by repetitive and frivolous claims filed by pro se litigants under Rule 233.1 of the Pennsylvania Rules of Civil Procedure.

Background

In 2019, McNeill, an inmate, filed a pro se Complaint against Global Tel-Link, the telephone service provider for the Pennsylvania Department of Corrections, in state court alleging violation of the Uniform Trade Practices and Consumer Protection Law, fraud, and unjust enrichment, stemming from his complaint that while in the custody of the DOC, he was overcharged for several calls made while using Global’s services. Prior to this, in 2015, he had filed an action against Global in the U.S. District Court for the Middle District of Pennsylvania, making the same allegations that Global had overcharged him to use their telephone services, and also alleging that Global had violated his rights under 42 U.S.C. § 1983. In the federal action, it was recommended that McNeill’s Complaint be dismissed as frivolous because Global was not a state actor for
§ 1983 purposes. McNeill was given leave to file an amended complaint, which, when filed, claimed a violation of the Federal Communications Act and unjust enrichment. The Amended Complaint was dismissed with prejudice. While McNeill filed two motions for reconsideration, both motions were denied and McNeill did not appeal.

In the subsequent state action, Global requested, pursuant to Pa.R.C.P. No. 233.1, that McNeill’s pro se Complaint be dismissed with prejudice because his claims were previously dismissed in federal court. Rule 233.1 provides:

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.

Pa.R.C.P. No. 233.1 (emphasis added).

The Trial Court granted Global’s Motion to dismiss, concluding that McNeill’s action met the requirements of Rule 233.1, and was, therefore, frivolous, and dismissed the case. McNeill appealed, arguing that the Trial Court abused its discretion and committed an error of law, particularly when it determined that McNeill’s litigation against Global was repetitive or serial.

Holding

On appeal, the Superior Court affirmed. The Court reviewed the rationale behind the adoption of Rule 233.1, noting that it was adopted because “certain litigants [were] abusing the legal system by repeatedly filing new litigation raising the same claims against the same defendant even though the claims have been previously adjudicated.” While McNeill argued that the Trial Court erred because he only filed two claims against Global, rather than “repetitive or serial” claims, the Court found that a plain reading of the rule did not require more than one prior action to trigger its application. Moreover, McNeill’s actions were both filed against the identical party, Gobal, both stemmed from McNeill’s claims that Global overcharged him for calls made while he was an inmate, and, in both, he failed to set forth sufficient facts to support his claims. Rule 233.1 squarely applied and no error was committed by the Trial Court.

Questions about this case can be directed to Julia Morrison at (717) 441-7056 or jmorrison@tthlaw.com

Matthews v. Prospect Crozer, LLC
Pennsylvania Superior Court
No. 355 EDA 2020
Decided: November 23, 2020

Summary Judgment properly entered where Plaintiff-landowner failed to establish that landscaper had a duty to inspect or maintain trees.

Background

Plaintiff was walking on a sidewalk when a large branch fell off a tree striking Plaintiff and causing serious injuries. At the time of the accident, the landowner had contracts with two landscaping companies for snow removal and landscaping, respectively, but neither contract included the inspection or maintenance of trees. Discovery revealed that the snow removal company would provide occasional ad hoc tree services, but always at the landowner’s request. Defendants filed Motions for summary judgment arguing that Plaintiff failed to prove that they owed him a duty of care. The Trial Court rejected Plaintiff’s argument that Restatement (Second) of Torts § 324(A) imposed a duty because Plaintiff failed to establish that the Defendants had “undertaken” an obligation to inspect and maintain the trees. Summary Judgment was entered for Defendants.

On appeal, Plaintiff claimed that the Trial Court erred in misapplying Section 324(A) and failed to consider Plaintiff’s expert witness testimony on the question of duty. Plaintiff argued that evidence was sufficient to establish that Defendants undertook the duty because they admitted, hypothetically, that they would alert the landowner if they noticed tree maintenance issues. However, per the Court, the fact that one of the Defendants had trimmed a tree and removed a branch ten years earlier, at the request of the landowner, was not sufficient to reasonably infer that the Defendants had gratuitously undertaken or agreed to inspect or maintain the trees for the next eight years. Even if the landowner had an expectation that they would inspect the trees, that expectation, alone, without evidence of an undertaking, was not sufficient to impose a legal obligation. Absent evidence of a duty on Defendants, Plaintiff’s expert witness testimony regarding the scope of any duty, or the breach thereof, was irrelevant.

Holding

The Superior Court affirmed the judgments in favor of the Defendants because there was no evidence that the Defendants either directly or indirectly agreed to provide tree inspection or maintenance services, and because Plaintiff could not establish that Defendants undertook a duty to do so pursuant to Section 324(A).

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

Sherry v. Sheetz, Inc.
Pennsylvania Superior Court
No. 528 WDA 2020
Decided: November 18, 2020

Summary judgment was proper where Plaintiff was unable to demonstrate that Defendant’s alleged negligence was the proximate cause of his being assaulted on Defendant’s property despite production of an expert report as to Defendant’s negligence.

Background

Robert Sherry was physically assaulted in the parking lot of the Sheetz store by Eric Hageder, who was involved in extensive criminal activity on that date. The assault took place at approximately 3:19 a.m. Plaintiff submitted an expert report that raised a number of issues of negligence on the part of Defendant Sheetz, including inadequate lighting, inadequate security/safety procedures crime risk analysis, inadequate staffing, and failure to intervene once the assault started.

Defendant Sheetz filed a Motion for summary judgment. The Trial Court, in granting Defendant’s Motion for summary judgment, found as a matter of law that Hageder’s actions were not reasonably foreseeable and were the sole proximate cause of Plaintiff’s injuries. The Trial Court focused on the time element and, in particular, that Hageder was at the Sheetz for approximately five minutes before the assault began and that the assault lasted only 33 seconds. This hardly constituted “loitering” that should have alerted the Sheetz employees that a criminal assault was about to take place. Plaintiff appealed from the entry of summary judgment.

Holding

The Superior Court affirmed noting that generally there is no duty to control the acts of a third party unless the defendant stands in some special relationship with either the person whose conduct needs to be controlled or with the intended victim which gives the intended victim a right to protection. A “special relationship” can exist between a business and its invitee. The Superior Court noted that under Restatement (Second) of Torts § 344, the possessor of land is not the insurer of the victim’s safety; he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. Applying those principles to the instant case, the Superior Court held that Plaintiff failed to establish that any of the deficiencies in the security precautions implemented by Sheetz was a proximate cause of his harm. Plaintiff also argued that the Trial Court erred in failing to consider the opinions of his security expert. The Superior Court held that an expert’s report can have no effect on a decision that is based on legal or proximate cause rather than causation and fact. The holding is consistent with recent Superior Court holdings limiting liability on the part of businesses for the criminal acts of third parties.

Questions about this case can be directed to Hugh O’Neill at (717) 255-7629 or honeill@tthlaw.com.
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MARYLAND CASE SUMMARY

Six Flags America, L.P. v. Gonzalez-Perdomo
Maryland Court of Special Appeals
No. 1620, September Term, 2019
Decided: December 16, 2020

The Trial Court erred in refusing to propound a jury instruction on the open and obvious condition defense.

Background

Plaintiff filed this matter on behalf of her minor son. The minor suffered a slip and fall injury on a pedestrian bridge near the Shipwreck Falls ride at the Six Flags Amusement Park in Upper Marlboro, Maryland. Shipwreck Falls was a water ride in the amusement park which would splash water onto the bridge and occasionally accumulate water on the floor of the walkway. There was a sign warning that the bridge was wet, but there was no non-skid material placed on the bridge.

Six Flags filed a Motion for summary judgment arguing that they owed no duty to the minor as the wet condition was open and obvious. The same arguments were presented at their Motion for judgment at the conclusion of Plaintiff’s case. The Trial Court denied both Motions. At the close of trial, the Trial Court refused to propound a jury instruction regarding the open and obvious condition. The Trial Court also denied Defendant’s request to include a question regarding this defense on the verdict sheet.

Holding

The Court of Special Appeals determined the Trial Court did not abuse its discretion in denying the Motion for summary judgment or the motion for judgment. The dangerous condition caused by the wetness was not so clearly open and obvious as to permit no reasonable factfinder to conclude otherwise. Further, the Trial Court did not abuse its discretion in denying to include a question regarding the open and obvious defense on the verdict sheet. However, the Court did abuse its discretion in refusing to propound a jury instruction on the open and obvious condition defense. The Defendants also demonstrated a probable prejudice as a result of the Trial Court’s decision. The judgment in the Trial Court was reversed and the case was remanded for a new trial.

Questions about this case can be directed to Lauren Upton at (443) 641-0572 or lupton@tthlaw.com.
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NJ CASE SUMMARY

N&S Rest., LLC v. Cumberland Mut. Fire Ins. Co.
United States District Court for the District of New Jersey
No. 20-05289
Decided: November 5, 2020

District Court upheld insurance coverage denial decision of insurer for New Jersey restaurant closed during the COVID-19 pandemic.

Background

This action arises out of an insurance coverage dispute. N&S Restaurant, the operator of the Cara Mia restaurant in Millburn, New Jersey, received property insurance from Cumberland Mutual Fire Insurance Co. N&S Restaurant was insured via Cumberland’s Business Owners Policy. On March 16, 2020, Governor Murphy issued Executive Order No. 104, suspending the operation of non-essential retail businesses in response to the ongoing COVID-19 pandemic. N&S Restaurant thereafter filed a claim with Cumberland via the Policy for loss of business income caused by the Executive Order. Cumberland denied N&S’s request for coverage, citing two primary reasons: (1) the claim was barred by the Virus Exclusion, and (2) the claim did not arise out of physical loss or damage as required by each of the applicable provisions.

N&S thereafter filed suit, seeking a declaratory judgment that Cumberland is required to provide coverage under the Business Income, Civil Authority, and Extra Expenses provisions of the Policy. N&S additionally pled a cause of action for breach of contract for failure to provide coverage under each of these provisions. Cumberland filed a Motion to Dismiss the suit.

Holding

The Court granted Cumberland’s Motion to Dismiss the suit. The Court found that the Virus Exclusion plainly applied, barring coverage. Per the opinion, the Virus Exclusion stated that “[Cumberland] will not pay for loss or damage caused directly or indirectly by . . . [a]ny virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness[,] or disease.” Additionally, the Virus Exclusion contains an “anti-concurrent causation preamble,” which states that “[s]uch loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” The Court accepted Cumberland’s argument that the Virus Exclusion “in conjunction with the anti-concurrent causation preamble, expressly excludes coverage of an otherwise covered loss that is related directly or indirectly to a virus.” Therefore, the Virus Exclusion applied because COVID-19 caused the Executive Order mandating closure of all non-essential businesses.

Questions about this case can be directed to Michael Bishop at (908) 574-0510 or mbishop@tthlaw.com.
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DC CASE SUMMARY

Robinson v. Panera, LLC
United States District Court for the District of Columbia
2019 U.S. Dist. LEXIS 178425
Decided: October 16, 2019

Excluding Plaintiff’s slip and fall expert where expert did not visit the fall location, test an exemplar, or speak to the Plaintiff.

Background

On a snowy day, Plaintiff slipped and fell inside a Panera. Plaintiff alleged that she tripped on a floor mat that was located inside the entrance. Plaintiff filed a negligence suit involving the trip and fall. Plaintiff’s expert, opined that the fall was caused by a failure to secure the mat or place the mat in a proper location. The expert, in reaching his conclusion, only consulted depositions, interrogatories, document productions, and one angle of the Panera’s surveillance footage. Defendant filed a Motion in limine seeking to exclude the expert’s testimony.

Holding

The US District Court for the District of Columbia held that the expert’s opinion lacked a factual basis. The Court reasoned that the expert’s opinion did not comport with the undisputed facts of the case and did not even comport with Plaintiff’s testimony about the fall. The Court pointed out that the expert contended the mat was likely buckled or ripped even though the Plaintiff denied either condition in her deposition. Further, the Court noted that the expert never visited the store in question, never saw the mat at issue, and never tested an exemplar of the mat. The Court granted the Defendant’s Motion in limine, excluding the expert.

Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or rstanley@tthlaw.com.
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VA CASE SUMMARY

Graves v. Shoemaker
Virginia Supreme Court
No. 191500
Decided: December 10, 2020

Evidence of a substantial relationship between an insurance company and an expert witness may be admitted at trial even if the expert’s fees are paid by a third party.

Background

Deborah Graves sued Samantha Shoemaker after Graves was injured in a rear end auto accident. After the crash, Graves alleged she experienced pain in her back, hip and neck, as well as increased depression and anxiety. Her bills for medical treatment totaled over $26,000. Shoemaker’s carrier, State Farm, hired John Cattano to represent Shoemaker. Cattano hired Dr. William Andrews as the defense’s expert witness. Dr. Andrews opined that Graves’ injuries from the crash were minor, that most of the pain she experienced was due to pre-existing conditions, and that most of the treatment she received was not necessary to treat her injuries from the crash. Dr. Andrews testified in deposition that Cattano had hired him 30-35 times over the prior 10-12 years, that State Farm had paid him $793,198.00 between 2012 and 2018, and that he was not aware State Farm would be paying his fee until his deposition.

Shoemaker admitted liability and the case was tried solely on damages. Before trial, Graves moved in limine to introduce evidence of Dr. Andrews’ relationship with State Farm and Cattano’s law firm. The Trial Court ruled that Graves could introduce evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30-35 times in the past, but that Graves could not ask about Dr. Andrews’ prior work for State Farm because there was no “direct relationship” between him and State Farm. The Court indicated its ruling was predicated on the fact that Dr. Andrews was hired by Cattano, not State Farm, and because Dr. Andrews testified he did not know that State Farm would be paying his bill. The jury’s verdict for Graves was $3,000, plus interest. Graves’ Motion for a new trial was denied and she appealed the Court’s pre-trial ruling precluding her from introducing evidence of Dr. Andrews’ relationship with State Farm.

Holding

The Supreme Court held that the Trial Court abused its discretion in denying Graves’ request to introduce evidence of Dr. Andrews’ bias based on a purported financial relationship with State Farm by requiring a “direct relationship” between him and the insurance company. For such evidence to be admitted, only a “substantial relationship,” as opposed to a direct relationship, must be shown. The fact that an attorney may have hired the expert does not shield the expert from cross-examination on possible bias resulting from such a relationship as the existence of a “substantial relationship” does not hinge solely on who retained the expert. However, an insurer’s payment of a large sum of money to an expert for prior favorable testimony standing alone can be enough to create a potential for bias justifying admission of such evidence, and any harm from the mention of insurance can be mitigated by a limiting instruction.

Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or nphillips@tthlaw.com.

VIRGINIA CLIENT ADVISORY

Change made to Virginia Legal Ethics Opinion regarding outsourcing of services by an attorney.

The Virginia State Bar Ethics Committee recently voted unanimously to revise Legal Ethics Opinion 1850, which deals with outsourcing client services. The revised portion of the Legal Ethics Opinion holds that a lawyer may ethically outsource services to an individual not associated with the firm, provided that the lawyer takes these steps:

(1) Rigorously monitors and reviews the work to ensure that the outsourced work meets the lawyer’s requirements of competency, and to avoid aiding a nonlawyer in the unauthorized practice of law;
(2) Preserves the client’s confidences;
(3) Bills for the services appropriately; and
(4) Obtains the client’s informed advance consent to outsourcing the work.

These revisions serve to streamline the analysis, clarifying what an attorney must disclose when they outsource services. Now, it is clear that an attorney who outsources work must obtain the client’s consent to disclose confidential information, and must also adequately explain how fees for those outsourced services are going to be billed to the client. This provision applies whether the individual performing the outsourced work is a lawyer or a non-lawyer. However, it does not apply if the individual performing the outsourced task is an individual who works onsite.

Questions about this advisory can be directed to Mike S. Bliley at (571) 464-0435 or mbliley@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARY

Essington v. Monroe Cty. Transit Auth.
United States District Court for the Middle District of Pennsylvania
2020 U.S. LEXIS 169534
Decided: September 15, 2020

Section 1983 civil rights claim, by passenger who exited a public transit bus and was struck and killed crossing a Pocono highway, dismissed for failure to state a cause of action.

Background

Plaintiff’s decedent was a resident of “A Pocono Country Place” located on the western side of PA-196. A northbound Monroe County Transit Authority (MCTA) bus servicing the gated community dropped him off on the eastern side of the highway at a designated bus stop at night. Plaintiff’s decedent disembarked using the rear exit, walked behind the bus, and began to cross the highway, when a southbound vehicle struck him in the southbound lane. The Complaint alleged that the driver of the striking vehicle did not see the pedestrian crossing the road at night because of the position of the bus in the northbound lane and the headlights of the bus obstructed his view. MCTA and “A Pocono Place Property Owners Association, Inc.” moved to dismiss the 42 U.S.C. § 1983 claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Holding

In order to sustain a Section 1983 claim, plaintiff must establish that defendant, acting under color of law, deprived plaintiff of a right secured by the U.S. Constitution. Here, Plaintiff relied upon the “state-created danger doctrine,” which allows a cause of action against a public actor if the state creates or enhances a danger that deprives the plaintiff of his “due process rights.” The doctrine embodies the principle that the government has an obligation under the 14th Amendment’s Due Process Clause to protect individuals against dangers that the government itself creates. Four elements must be satisfied to pursue an action under the doctrine: (1) the harm was foreseeable and fairly direct; (2) the state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s action, as opposed to a member of the public in general; and (4) the state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to the danger than had the state not acted at all. In dismissing the Section 1983 claim, the Court held that the 3rd and 4th elements were not satisfied because public transit passengers do not constitute a “discrete class” of potential plaintiffs and MCTA’s decision to place a bus stop across the street from the gated community, as opposed to some other location, was not an affirmative act specifically directed at Plaintiff’s decedent himself.

Questions about this case can be directed to Joseph A. Holko at (610) 332-7005 or jholko@tthlaw.com.

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PENNSYLVANIA CASE SUMMARIES

Allen v. Colbert
Pennsylvania Superior Court
No. 3231 EDA 2019, 2020 Pa. Super. Unpub. LEXIS 3544
Decided: November 13, 2020

Plaintiff awarded costs of appeal, including attorneys’ fees, for defense against substantively-meritless appeal brought by Defendant in an effort to delay payment on valid settlement agreement.

Background

Ms. Allen was injured in the course and scope of her employment. Her employer did not have workers’ compensation coverage, but Ms. Allen was able to obtain funds from the Uninsured Employers Guaranty Fund (UGEF). These funds were insufficient to fully compensate Ms. Allen for her injuries, so she filed a civil complaint against her employer in October 2017. The case was ultimately settled by the parties on September 7, 2018. In February 2019, Ms. Allen filed a Motion to enforce the settlement. Her employer challenged some of the release language but did not challenge the settlement. The Court ruled that the employer had four months to pay the settlement or Ms. Allen could return and request a penalty and attorneys’ fees.

Ms. Allen again returned to the court on October 1, 2019 to report that the employer still had not paid the settlement. The employer argued the settlement agreement was not enforceable, because it was immune from suit under the Workers’ Compensation Act (WCA). The Court entered an order finding the settlement agreement was valid and binding. The employer filed a Motion for reconsideration alleging that Ms. Allen had not advised UGEF of the action. The Motion was denied and the employer appealed.

Holding

On appeal, the Superior Court determined (1) the employer was not immune from tort liability because it failed to maintain coverage for WCA liability and there was no basis to conclude Ms. Allen would receive a double recovery; (2) the Trial Court had jurisdiction to adjudicate the settlement agreement; and (3) the employer had no standing to raise issues on behalf of UGEF. The Court awarded Ms. Allen costs for the appeal, namely attorney fees, because the employer agreed to settle the claim, promised again and again to pay the settlement, but forced Ms. Allen to appear for multiple enforcement proceedings and then defend a substantively-meritless appeal in an effort to delay payment.

Questions about this case can be directed to Amanda L. Hennessey at (717) 237-7103 or ahennessey@tthlaw.com.

Kornfeind v. New Werner Holding Co., Inc.
Pennsylvania Superior Court
No. 2398 EDA 2019
Decided: November 9, 2020

Summary Judgment properly entered where Plaintiff uncertain he purchased ladder from particular retailer.

Background

In a product liability and negligence action, Plaintiff claimed that a 28-foot extension ladder either slid or telescoped downward causing him to fall and sustain injuries and rendering him a quadriplegic. Plaintiff sued the manufacturer and a retailer, Home Depot, Inc., where he claimed to have purchased the ladder. At deposition, Plaintiff testified that he wasn’t sure from which of three possible retailers he’d purchased the ladder, but was “almost positive” it was Home Depot. The Trial Court denied Home Depot’s Motion for summary judgment, as well as a Motion for summary judgment from the manufacturer, who sought to apply the Illinois 12-year Statute of Repose via Pennsylvania’s borrowing statute. The Trial Court then denied Defendants’ request to certify the Order as immediately appealable, but following a Petition to the Superior Court, the appeal was allowed to proceed.

On appeal, Home Depot argued that Plaintiff failed to set forth sufficient evidence to demonstrate that he had purchased the ladder from Home Depot, citing Plaintiff’s testimony that he “wasn’t sure” where he bought it, but was “almost positive” that it was Home Depot. The Court noted a Plaintiff cannot survive summary judgment when mere speculation would be required for the jury to find in Plaintiff’s favor. The Superior Court reversed the Lower Court’s ruling on Home Depot’s Motion for summary judgment because the Trial Court had a duty to prevent questions from going to the jury which would require it to reach a verdict based upon conjecture or guess. As for the manufacturer’s Motion, the Court found that it was properly denied as Pennsylvania’s borrowing statute does not apply to statutes of repose, only statutes of limitations.

Holding

The Superior Court held that the Trial Court had erred in denying Home Depot’s Motion for summary judgment and therefore reversed the ruling on that Motion. The Superior Court affirmed the denial of summary judgment in favor of the manufacturer because the Illinois statute of repose was inapplicable in this Pennsylvania action.

Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or jswartz@tthlaw.com.

Woullard v. Sanner Concrete & Supply
Pennsylvania Superior Court
2020 Pa. Super. 263
Decided: October 30, 2020

Superior Court reviews proper measure of damages in defective construction litigation.

Background

Homeowners filed a Complaint against various Defendants claiming that each had breached their respective contracts related to the construction of Homeowners’ home and a detached garage. At the Trial Court level, the Homeowners presented claims involving defects in construction attributable to Sanner Concrete and Sanner Masonry, specifically, the defective installation of stone veneer on the exterior of the home and the defective construction of the back porch. The cost to repair the defective construction of the stone veneer was $61,000.00, which was 12% of the home’s $528,000.00 market value. The cost to repair the defective construction of the back porch was $39,700.00, which was 8% of the home’s $528,000.00 market value. The Trial Court found these two repair amounts were not grossly disproportionate on their faces when compared individually to the present market value of the home without the defects created by the Defendants. The Trial Court ordered judgment to the Homeowners for the aforementioned costs of repairs.

On appeal, the Defendants contend that the Trial Court committed an error of law by holding that the weighing of diminution in value against the cost to repair the defects is limited to cases involving a single builder-vendor defendant, and that the Trial Court committed an error by not requiring the Homeowner to present evidence of diminution of value to their property, thereby shifting the burden to the Defendants. Further, the Defendants contend the Trial Court abused its discretion in denying its request for a new trial strictly on the issue of damages thereby foreclosing Defendants’ ability to present evidence of diminution of value.

Holding

The Superior Court affirmed the ruling of the Trial Court. The Superior Court held that the two damage awards were not grossly disproportionate on their faces when compared individually to the present market value of the home and the Homeowners were not required to present evidence of diminution in value of the home attributable to the defective construction and that the burden of demonstrating any potential diminution in value shifted to the Defendants who did not present evidence of a diminution in value.

Further, the Trial Curt properly denied Defendants’ request for a new trial limited to damages because they failed to present evidence pertaining to any potential diminution at the Trial Court level and were not entitled a second chance to litigate this claim.

Questions about this case can be directed to Christopher M. Gallagher at (215) 564-2928 or cgallagher@tthlaw.com. Incoming associate, Matthew R. Gerarde, assisted in the preparation of this case summary.

DiDonato v. Ski Shawnee, Inc.
Pennsylvania Superior Court
2020 P. Super. LEXIS 892, 2020 WL 6280080
Decided: October 27, 2020

Litigant waives arbitration clause of contract where it failed to raise right to arbitration promptly, engaged in discovery, filed pre-trial motions without raising arbitration provision, and waited for adverse rulings on motions, or until case ready for trial before asserting arbitration.

Background

A student enrolled in a private boarding school sustained fatal injuries during a skiing event. Wrongful death and survival actions were brought against the school, the ski coach, and the facility that hosted the event. The school’s enrollment contract contained a provision calling for compulsory arbitration. However, the school did not raise the arbitration clause promptly in the litigation. Instead, after a year of procedural skirmishing and some discovery on a venue issue, the school filed a motion to compel arbitration. The Lower Court granted the Motion in part and it denied it in part. The Superior Court held, however, that the arbitration clause was waived and it set aside the Order compelling some aspects of the case to proceed to arbitration. It upheld the Order to the extent that it denied the motion to compel arbitration of other aspects of the case.

Holding

Although as a matter of public policy courts favor the settlement of disputes via arbitration, the right to enforce an arbitration clause can be waived. A party that avails itself of the judicial process by attempting to win favorable rulings from the court before invoking the arbitral remedy waives the right to proceed through arbitration. When deciding whether a party accepted judicial process to constitute waiver of a claim to arbitration, courts assess whether the party: (1) failed to raise the issue of arbitration promptly; (2) engaged in discovery; (3) filed pre-trial motions that do not raise the issue of arbitration; (4) waited for adverse rulings on pre-trial motions before asserting arbitration; or (5) waited until the case is ready for trial before asserting arbitration. In this case, the school waited for over a year to raise arbitration and, during that time, it made a failed attempt at removing the case to federal court, negotiated changes to the complaint, engaged in discovery on a venue issue, and successfully litigated preliminary objections as to venue.

Questions about this case can be directed to Louis C. Long at (412) 926-1424 or llong@tthlaw.com.

Witherspoon v. McDowell-Wright
Pennsylvania Superior Court
2020 Pa. Super. 254
Decided: October 23, 2020

The death of Defendant-appellee does not render an appeal moot.

Background

Plaintiff Witherspoon filed a complaint against his former paramour, McDowell-Wright, alleging that McDowell-Wright had converted his personal property after his was evicted from their shared residence. Following a two-day non-jury trial, the Trial Court found in favor of Witherspoon in the amount of $7,500. Witherspoon filed a timely appeal seeking reconsideration of the damages award. McDowell-Wright died following the appeal. A suggestion of death was filed by McDowell-Wright’s daughter, but no personal representative was appointed on McDowell-Wright’s behalf as she was proceeding pro-se.

Holding

While substitution of a personal representative for that of a deceased party is allowed under the Pennsylvania Rules of Appellate Procedure, the rule is not mandatory. Following Pennsylvania Supreme Court precedent from the case of Shiomos v. Commonwealth State Employees’ Ret. Bd., 626 A.2d 158 (Pa. 1993), the Superior Court concluded that the McDowell-Wright’s death did not render the appeal moot because the outcome of the appeal would have relevance to her estate and Witherspoon’s rights as a purported creditor of her estate. Accordingly, the Superior Court went on to address the merits of the appeal.

Questions about this case can be directed to Brook T. Dirlam at (412) 926-1438 or bdirlam@tthlaw.com.

Brownlee v. Home Depot U.S.A., Inc.
Pennsylvania Superior Court
No. 3232 EDA 2020
Decided: October 22, 2020

Trial Court erred in failing to instruct jury on factual cause where conflicting evidence as to cause of fall.

Background

Brownlee brought a negligence action against Home Depot for an incident in 2017 when he slipped and fell on a piece of wood that was lying on the floor in the lumber aisle. The Trial Court denied Home Depot’s Motion for Summary Judgment on the issues of “open and obvious” condition and lack of notice and the case proceeded to trial. At trial, Brownlee testified that the area of the fall was near a lumber saw and that three employees were standing in the vicinity before the accident occurred. Home Depot management conceded that employees were trained to detect and correct slipping hazards, there were employees in the vicinity of the fall and the employees failed to detect and/or correct the condition of the floor. Management also confirmed that only Home Depot employees were permitted to use the saw and that the saw was 12-14 feet from the site of the accident. In addition, Home Depot’s medical expert conceded that Brownlee suffered some injury as a result of the fall.

The Trial Court determined that because Home Depot’s expert had admitted that Brownlee suffered some injury, the issue of factual cause should not go to the jury, and the jury instruction as to factual cause was not given. The jury returned a verdict in favor of Brownlee for $510,500. Home Depot appealed arguing among other matters that the court erred in not granting its Motion for Summary Judgment and in not instructing the jury as to factual cause.

Holding

The Superior Court determined that it was proper for Home Depot to raise the denial of the Motion for Summary Judgment on appeal. However, the Court disagreed that the Motion for Summary Judgment should have been granted. Rather, the Court agreed with the Trial Court that there was a factual issue as to whether the wood was open and obvious, when Plaintiff testified that he did not see it prior to the fall, and that presence of the three employees near the area of the lumber saw and the fall presented “sufficient evidence” to infer actual or constructive notice. The Superior Court did, however, find the Lower Court committed reversible error by not charging the jury on factual cause. The Superior Court determined that unlike most car accident cases, slip and fall cases are not as clear as it relates to the factual cause of the accident itself, even in a case of admitted injury. The Court recognized that even when a defendant is negligent, a jury could determine that the fall in and of itself was not related to the negligence. Noting that there was conflicting evidence as to whether Brownlee slipped on the wood at all – with Brownlee saying he did, and another witness testifying the wood was not near where he fell – Home Depot should have been permitted to argue that Brownlee failed to prove that the wood was the factual cause of the slip and fall accident in the first instance. The failure to charge the jury on factual cause foreclosed this avenue of defense and required that the judgment be vacated and the case remanded for a new trial.

Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or resember@tthlaw.com.

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MARYLAND CASE SUMMARY

Antietam Battlefield KOA v. Hogan
United States District Court for the District of Maryland
No. 1:20-cv-01130-CCB
Decided: November 18, 2020

Governor Hogan’s coronavirus restrictions upheld in U.S. District Court.

Background

Maryland citizens, business owners, and religious leaders filed an action challenging the constitutionality of a series of Governor Larry Hogan’s Executive Orders pertaining to COVID-19. This was the second time the series of Executive Orders were before the Court. Initially, Plaintiffs had requested injunctive relief which the Court denied. In response, the parties filed an Amended Complaint. Defendants filed a Motion to dismiss the Amended Complaint. Plaintiffs asserted claims of violations of the First, Fifth and Fourteenth Amendments, Commerce Clause and the Maryland Constitution.

Holding

Maryland’s executive may implement measures such as quarantines and public health orders to address a public health crisis. To overturn Hogan’s Orders, the Plaintiffs must prove: (1) that the Order has “no real or substantial relation” to protecting public health or (2) that the measure is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” While the COVID-19 crisis does not give governments a “blank check” to deprive citizens of constitutional rights, courts will give wide latitude under such circumstances. The Court notes that frequently revised public health measures, as the severity of the crisis ebbs and flows is a signal that the restrictions are narrowly tailored and meeting the demands of the public health crisis.

As to the first prong, the Court finds that the Orders have substantial relations to protecting public health. The Court also finds that Plaintiffs can not satisfy the second prong, thereby dismissing the Complaint. As to the First Amendment claims and Commerce Clause, the Executive Orders are neutral, generally applicable, and relationally related to a legitimate government interest. Thus, a plain and palpable violation is not alleged. As to the Establishment Clause, Hogan’s Order applies to all gatherings of more than ten people, thus no violation is sufficiently pled. The Equal Protection claim fails because the parties could not plead that others similarly situated were receiving different treatment under the Orders. As to the Fifth Amendment, the Plaintiffs’ Complaint fails as no property was taken by the government. Finally, as to the state constitutional claims, the Eleventh Amendment precludes a federal court from granting relief against state officials on the basis of state law. Thus, Plaintiff’s state law claims are also dismissed.

Questions about this case can be directed to Lauren Mistretta Upton at (443) 641-0572 or lupton@tthlaw.com.

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DC CASE SUMMARY

Rose’s 1, LLC v. Erie Ins. Exch.
United States District Court for the District of Columbia
2020 D.C. Super. LEXIS 10
Decided: August 6, 2020

Court holds that non-essential business closure orders are not a “direct physical loss” under business interruption insurance.

Background

In March of 2020, the Mayor of the District of Columbia ordered the closure of all non-essential businesses due to the Covid-19 pandemic. Plaintiff, Rose 1, LLC, was forced to close its restaurants in Washington, DC. After the closure, Plaintiff filed a claim with its commercial property insurer. The subject insurance policy included coverage for loss of income from a business interruption that was caused by a direct physical loss. When the insurance claim was denied, Plaintiff filed a declaratory judgment action in the Superior Court for the District of Columbia, which is DC’s jury trial level court. Both parties moved for summary judgment.

Holding

The Superior Court held that the closure of restaurants due to the Mayor’s Order was not a direct physical loss under the policy. The Court reasoned that the Order was not a physical loss because it did not physically change the property. The Court granted summary judgment in favor of Erie Insurance Exchange.

Questions about this case can be directed to Charles B. Peoples at (202) 945-9501 or cpeoples@tthlaw.com.