eNotes: Liability – August 2021
August 02, 2021
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
White v. Bush
United States District Court for the Eastern District of Pennsylvania
Decided: June 3, 2021
After plaintiff discovered new facts, Court granted Plaintiff’s Motion for leave to amend Complaint to add allegations of recklessness, punitive damages and negligent hiring.
The matter before Judge Marston was whether Plaintiff should be granted leave to file a Second Amended Complaint in a motor vehicle accident in which the Defendant driver “blew through a red light” while operating a MJB freightliner. Plaintiff alleged that Defendant-driver Bush was driving in excess of the speed limit, was distracted, and was operating a cellular device. Plaintiff sought to add additional allegations, not previously known, related to Defendant Bush’s conduct at the time of the accident, and his employer, MJB’s, policies and procedures related to hiring, training, and supervising employees.
Defendant-driver Bush began working for Defendant MJB a couple months before the accident. Michael Brooks, who owns MJB, oversees the hiring process at MJB. MJB’s hiring process (normally all performed by Brooks), including background checks and compliance with federal laws regarding hiring commercial drivers, was very poor. The Court noted how MJB’s hiring process was insufficient. The Court also outlined how MJB’s employee training, supervision and disciplinary procedures were wholly insufficient. This information related to MJB’s poor organizational policies and procedures was discovered by Plaintiff during depositions and document production.
The Court had to perform a two step analysis because Plaintiff filed his Motion for leave to file a Second Amended Complaint after the Court’s deadline for filing amended pleadings. First, the Court had to review Fed. R. Civ. P. 16’s “good cause” standard because the Motion is, tangentially, also asking the Court to modify the Scheduling Order. Second, the Court must then review the Motion under Fed. R. Civ. P. 15, which controls leave to amend. As to Rule 16, the Court found that the harmful information against Bush and MJB could not have been discovered by Plaintiff before the deadline, thus the “good cause” standard was satisfied. As to Rule 15, which is the same standard as Rule 12(b)(6) motion to dismiss, the Court found the new allegations not to be futile and would survive a motion to dismiss at this stage of the proceedings.
Questions about this case can be directed to Michael Weinert at (610) 332-7025 or firstname.lastname@example.org.
Nixon v. Family Dollar Stores of Pa.
United States District Court for the Middle District of Pennsylvania
No. 4:20-CV-00404, 2021 U.S. Dist. LEXIS 95826, 2021 WL 2015188
Decided: May 20, 2021
Failure to save video recording precluded the entry of summary judgment, leading to permissive adverse inference in Middle District slip and fall case.
Plaintiff began this personal injury suit against Family Dollar Stores in October 2019, after suffering a slip and fall in April 2018. Plaintiff testified that she did not see a large puddle while scanning the aisle, but ultimately slipped on the wet floor. While Plaintiff was on the ground, her friend who had been walking with Plaintiff went and notified an employee who was mopping with a wet floor sign in the next aisle. Several facts of the case are in dispute, including the presence/absence of a wet floor sign, the time Plaintiff was in the store before the fall, the puddle’s source, and the location of other store employees. There were video cameras working within this store. The store’s video system records and saves data for thirty days before it is automatically deleted and rewritten. When requested to do so by police, the store’s loss prevention, or the store’s insurers, copies of videos are routinely made and saved.
Plaintiff’s family attorney sent Family Dollar a request to preserve footage of the fall on April 19, 2018 – the day after the fall. Despite this request, no footage of the day of the fall exists anywhere, and the data was recorded over consistent with routine. After discovery, Family Dollar sought to dismiss Plaintiff’s claims of negligence, by asserting that the puddle of water was an open and obvious hazard, and that they were not presented with any evidence that Family Dollar had actual or constructive notice of the puddle.
The District Court denied both of Family Dollar’s arguments to dismiss the case. The Court concluded that reasonable minds could differ on the potential open and obvious nature of the puddle. On the second argument, the Court denied the motion and sanctioned Family Dollar with a permissive adverse inference on the question of notice due to Family Dollar’s spoliation of the video evidence. Family Dollar’s failure to preserve the evidence which was within their control, after a request to preserve put them on notice the day after the accident, constituted bad faith. Therefore, the jury will be allowed, but not required, to infer that Family Dollar and its employees had notice of the puddle in question should this case reach trial.
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or email@example.com.
Elansari v. First Liberty Ins. Corp.
United States District Court for the Eastern District of Pennsylvania
2021 U.S. Dist. LEXIS 86858
Decided: May 6, 2021
Plaintiff’s breach of contract claim was dismissed because Plaintiff failed to establish that the carrier had a duty to process his claim within a specific timeframe.
Plaintiff Elansari, proceeding pro se, asserted breach of contract and statutory bad faith claims against The First Liberty Insurance Company. He alleged that First Liberty failed to provide him with benefits under his auto insurance policy after he was in a “moderate vehicle accident.” First Liberty issued a check in April 2019 and informed Plaintiff in July 2019 that it would not issue any additional payments. However, in April 2020, after Plaintiff filed suit, First Liberty issued an additional payment. Plaintiff alleged First Liberty breach its insurance contract and acted in bad faith when it denied him additional compensation and delayed sending him the additional payment. He sought to recover his premiums, additional loss income payments, and special and punitive damages.
After First Liberty removed the case to Federal Court, it filed a Motion to Dismiss. The Motion to Dismiss was granted allowing Plaintiff leave to file an Amended Complaint, which he filed. First Liberty again sought to dismiss the Amended Complaint. Plaintiff obtained counsel and sought leave to file a Second Amended Complaint. Even though Plaintiff obtained counsel subsequent to filing the Amended Complaint, the Court used the more liberal and less stringent pro se standard to decide the Motion to Dismiss.
Plaintiff’s argument that First Liberty breached the contract by withholding the additional payment was dismissed with prejudice as Plaintiff did not plead enough facts or cite to any contractual language that established a duty to process the claim within a specific timeframe. As to the bad faith claim, without additional factual allegations, the court could not infer recklessness based on only a nine-month delay of an additional payment. As such, the Motion to Dismiss was granted and Plaintiff was granted leave to file an Amended Complaint. However, Plaintiff’s motion to file the Second Amended Complaint was denied, because his proposed amendments did not cure the deficiencies.
Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or firstname.lastname@example.org.
PA CASE SUMMARIES
Wise v. Huntington Cty. Housing Dev. Corp.
Pennsylvania Supreme Court
No. 97 MAP 2019
Decided: April 28, 2021
Insufficient outdoor lighting constitutes a dangerous condition of the property for purposes of the real estate exception to sovereign immunity.
Plaintiff filed a negligence action against the Housing Authority of the County of Huntington (HACH) alleging that she tripped and fell at approximately 12:10 am while walking on a sidewalk in the Chestnut Terrace public housing complex in Mount Union, Pennsylvania. She alleged that insufficient outdoor lighting on the sidewalk area, purportedly due to the location of a pole light and a tree obstructing the light, caused her to fall. Plaintiff asserted that at the time of her fall, HACH was responsible for maintenance, control and supervision of the dangerous condition of the sidewalk, that it knew or should have known of the dangerous condition, and that it failed to take corrective action.
HACH filed a Motion for summary judgment asserting that sovereign immunity barred Plaintiff’s claim. HACH argued that the only exception to immunity that was potentially applicable in this case was the real estate exception in Section 8522(b)(4) of the Sovereign Immunity Act, which requires that a dangerous condition “derive, originate from or have as its source the Commonwealth realty.” In this regard, HACH argued that allegedly insufficient lighting is not a condition or defect on the land itself, therefore precluding Plaintiff’s claim from serving as a basis to waive sovereign immunity. The Trial Court granted HACH’s Motion for summary judgment. Thereafter, a three-judge panel of the Commonwealth Court affirmed the Trial Court’s decision. Plaintiff then filed a Petition for allowance of appeal to the Pennsylvania Supreme Court.
On appeal, the Court considered whether, in concluding that sovereign immunity barred Plaintiff’s claim, the Commonwealth Court properly applied the real estate exception. In reviewing this issue, the Court found that to be “of” the Commonwealth realty as the word is used in Section 8522(b)(4), the dangerous condition must “derive, originate from or have as its source the Commonwealth realty.” Additionally, a dangerous condition resulting from “a defect in the property or in its construction, maintenance, repair or design” will preclude application of immunity. Further, the dangerous condition must be artificial or a defect on the land itself. In applying these principles, the Court held that the claim was sufficient to invoke the real estate exception. Specifically, the Court pointed to Plaintiff’s claim that the insufficient outdoor lighting stemmed from the existence and position of the pole light and tree in relation to the sidewalk area. In other words, she identified a dangerous condition that resulted from a defect in the property or in its construction, maintenance, repair or design. Accordingly, the Court reversed the order of the Commonwealth Court.
Questions about this case can be directed to Jillian Denicola at (570) 825-5653 or email@example.com.
Jack Lehr Electric v. Unemployment Comp. Bd. of Review
Pennsylvania Commonwealth Court
No. 913 C.D. 2020
Decided: June 8, 2021
In a published opinion, the Commonwealth Court held that an employee that tested positive for marijuana was eligible for unemployment benefits because he had acquired a medical marijuana card beforehand, he disclosed such information to the Employer, he was not under the influence of marijuana during working hours, and the Employer’s Drug Policy contained an exemption for proper use of prescription medications.
The Claimant, employed as a warehouse assistant, was terminated after failing a drug test administered under the Employer’s Drug Policy. As part of his duties, the Claimant had to operate vehicles, equipment, and climb ladders. Before being randomly selected for drug testing, the Claimant had informed the Employer of his medical marijuana patient identification card. The Claimant credibly testified that he did not take marijuana during work hours and that he was not under the influence of marijuana at the time of testing. Upon testing, the Claimant’s results were positive for marijuana, and he was discharged.
The Claimant applied for unemployment benefits. The Referee denied benefits explaining that the Claimant was ineligible under Section 402(e.1). Section 402(e.1) mandates ineligibility for unemployment benefits when the discharge from employment is due to a failure to pass a drug test conducted pursuant to the Employer’s policy. On appeal, the Unemployment Compensation Board of Review (UCBR) reversed. The Employer appealed to the Commonwealth Court.
On appeal to the Commonwealth Court, the Employer argued that the time that the Claimant ingested the marijuana was irrelevant because the drug remained detectable upon testing. The Employer also argued that the existence of the medical marijuana card does negate the fact that the Claimant failed the drug test.
Using a substantial evidence analysis, the Court held that the record contained enough evidence to support the UCBR’s holding that the Employer failed to demonstrate that the Claimant violated its Drug Policy. Specifically, the Employer’s Drug Policy prohibited employees from working while taking prescription medications and required employees to report such medications. The Employer’s Drug Policy also created an exemption for the proper use of prescription medications but explicitly prohibited any use of marijuana during working hours or immediately before working hours.
The Court noted that the Claimant had reported his prescription for marijuana and that he did not use marijuana during working hours. Additionally, the Employer had conceded by stipulation that the Claimant was not under the influence of marijuana at the time of testing. Lastly, the test results did not establish that the Claimant consumed marijuana immediately before work or that he was impaired on the day of the test. The Court held that neither the evidence on record nor the Claimant’s positive marijuana test established a violation of the Employer’s Drug Policy. Therefore, the Court affirmed the UCBR’s holding that the Claimant was not ineligible for unemployment benefits.
In an era of medical marijuana identification cards, particular importance should be given to drafting the Employer’s Drug Policy. This Court’s holding demonstrates that a positive marijuana test result, by itself, will not be enough to disqualify an employee from receiving unemployment benefits.
Questions about this case can be directed to Marjorie Moreno at (717) 237-7157 or firstname.lastname@example.org.
Robinson v. Mercy Fitzgerald Hosp.
Pennsylvania Superior Court
No. 3498 EDA 2019
Decided: July 7, 2021
Plaintiff’s introduction of ADA standards and regulations at the time of trial was permissible as the evidence was not used to establish, as a matter of law, that Defendants breached a duty, but was relevant in assessing Defendants’ standard of care in management of the property.
Plaintiff, a wheelchair bound paraplegic, crashed onto the pavement at a parking lot while exiting her minivan which was fitted with an exit ramp. The parking lot was owned and managed by Defendants Mercy Fitzgerald Hospital and Trinity Health. As a result of the accident, Plaintiff sustained multiple orthopedic injuries. In her complaint, Plaintiff alleged that the designated handicapped parking space at issue was situated on a significant slope to allow for water drainage and, therefore, created a dangerous condition for physically disabled individuals to enter and exit their vehicles. The matter ultimately went to trial and the jury found in favor of the Plaintiff in the amount of $473,888.76 which included past and future economic losses and non-economic losses. On appeal, Defendants raised several evidentiary challenges which included, inter alia, the introduction of ADA standards and regulations at the time of trial.
On appeal, Defendants argued that a violation of an ADA regulation “may not be used as evidence of negligence per se in a personal injury action.” Defendants also contended that since the ADA was enacted in 1990, and the construction lot at issue was constructed before 1990, the ADA was inapplicable and should have been precluded. Finally, Defendants argued that the ADA addresses issues of discrimination, not safety, and, therefore, compensatory damages were not available absent a showing of intentional discrimination. No such evidence was presented at trial.
The Superior Court reasoned that contrary to the Defendants’ argument, the case was not about construction of the parking lot but rather Defendants placement of handicapped parking spaces in certain spots on its property and whether that decision fell below the standard of care. The ADA evidence submitted at the time of trial was not used to establish that the Defendants had breached a duty to Plaintiff under a negligence per se standard. Instead, the introduction of such evidence was relevant to assessing the Defendants standard of care in its management of the property. The Superior Court went on to note that Plaintiff was an invitee at the time of the incident, and Defendants owed her “the highest duty owed to any entrant upon the land” and had an affirmative duty to protect Plaintiff from not only known dangers but also against those which might be discovered with reasonable care. In sum, the ADA evidence was relevant to the question of whether the Defendants should have known that the slope of the parking lot was dangerous as it did not comply with ADA standards.
Questions about this case can be directed to John Lucy at (717) 441-7067 or email@example.com.
Schweigart v. Schmalenberger
Pennsylvania Superior Court
No. 1226 MDA 2020, 2021 Pa. Super. Unpub. LEXIS 1766
Decided: July 2, 2021
The Trial Court’s entry of summary judgment was affirmed as Plaintiff failed to allege sufficient evidence to proceed on her professional negligence claim, her breach of physician-patient confidentiality claim, her intentional infliction of emotional distress claim, and her gross negligence/punitive damage claim.
Plaintiff alleged that she was harmed when the Defendant anesthesiologist allegedly took a photograph of Plaintiff prior to Plaintiff’s procedure and then subsequently texted the photograph to Plaintiff. Upon completion of the procedure, Plaintiff did not remember posing for the picture and/or asking for a copy of the photograph to be sent to her. As a result, Plaintiff allegedly suffered mental distress, anxiety, and other claimed ailments as a result of her “shock.”
Plaintiff did not produce expert testimony to support her claimed injuries, but rather, argued that her injuries were clear and obvious and, thus, did not require expert testimony to establish, despite her extensive pre-accident medical history. Plaintiff also made a claim for punitive damages without offering sufficient facts to support the finding of punitive damages. Further, Plaintiff alleged claims of negligent infliction of emotional distress and invasion of privacy. Defendants moved for summary judgment on all issues raised. The Trial Court agreed with Defendants’ arguments and granted the Motion for summary judgment in its entirety. Plaintiff appealed to the Superior Court and argued that the dismissal was improper. After a lengthy appeal process, the Superior Court affirmed the Trial Court’s Opinion and dismissed the case.
Plaintiff failed to present sufficient evidence to proceed on her claims for professional negligence as she did not produce expert testimony in support of her alleged injuries, and the court found that her injuries were not “so obvious as to not require medical expert testimony.” Plaintiff further failed to produce sufficient evidence in support of her breach of physician-patient confidentiality claim, her gross negligence/punitive damages claim, and her invasion of privacy claim.
Questions about this case can be directed to Daniel Grill at (717) 237-7115 or firstname.lastname@example.org, or to Jonathan Danko at (717) 441-3957 or email@example.com. Daniel and Jonathan were the attorneys who obtained this successful outcome.
Williams v. Shannon
Pennsylvania Superior Court
No. 2083 MDA 2019
Decided: May 21, 2021
Notification of action to defendant’s insurer not a good faith effort at effecting original service because it did not notify Defendant of action.
Three days before the statute of limitations was to run, Plaintiff filed a Writ of Summons in an action seeking damages for personal injuries from an automobile accident. The Writ of Summons was forwarded to a representative of Defendant’s insurance company who, in turn, advised Defendant that a lawsuit may be filed against him. There was no evidence that the Writ sent to the insurer was ever actually sent to Defendant. Plaintiff reissued the Writ seven months later and then filed a Complaint. Plaintiff admitted during discovery that the writ was never sent to the sheriff for service. In opposition to Defendant’s Motion for summary judgment, Plaintiff argued that Defendant had actual notice of the suit because Defendant’s insurer advised Defendant of the potential for litigation. The Trial Court ruled that Plaintiff’s efforts to effectuate original service were not a good faith effort because Plaintiff only notified the insurer within thirty days of the Writ’s issuance and not the Defendant.
On appeal, the Superior Court analyzed the history of the Lamp/McCreesh line of cases. The purpose of the statute of limitations is to supply the Defendant with actual notice that an action has been commenced. Where a plaintiff’s improper actions in serving original process put a defendant on actual notice of the commencement of the action, trial courts dismiss only those claims where the plaintiff has demonstrated intent to stall the judicial machinery or where the plaintiff’s failure to comply with the rules of civil procedure has prejudiced defendant. Without actual notice, the Court did not need to determine whether Defendant suffered prejudice from the non-compliance with the procedural rules, or whether Plaintiff demonstrated intent to stall the judicial machinery. The determination of what constitutes “good faith” is assessed on a case by case basis and lies within the discretion of the Trial Court. Here, there was no attempt at ever complying with the rules. Consequently, the Trial Court properly dismissed Plaintiff’s Complaint because the Defendant never received actual notice of the commencement of the action until well after the statute of limitations had run.
The Superior Court affirmed the summary judgment in favor of Defendant because Plaintiff made no attempt to comply with the procedural rules and Defendant was never actually notified of the commencement of the action until after the statute of limitations had run.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or firstname.lastname@example.org.
MD CASE SUMMARY
Ford v. Edmondson Village Ctr. Holdings, LLC
Maryland Court of Special Appeals
2021 Md. App. LEXIS 538
Decided: July 2, 2021
Where a decedent killed at a store during a robbery was found to be a tenant, not a business invitee, the extent of the landlord’s duty was a question of fact, not law.
A store manager was killed during a robbery inside a retail store while he was working at a strip mall in Baltimore, where there was a long history of criminal activity on the parking lot including a murder committed the month before. The decedent’s family brought survival and wrongful death claims in negligence against the owner of the shopping center, alleging that it knew about the criminal activity and had a duty to hire security guards and take other measures on common areas of the shopping center to protect occupants of leased premises from foreseeable criminal acts of third persons committed inside those premises.
The shopping center filed a Motion to dismiss asserting that it did not owe a duty of care to the decedent, as a matter of law. The Circuit Court granted the Motion, ruling that the decedent occupied the status of tenant (not business invitee) at the time of the murder and that the shopping center did not owe a duty to protect him from the criminal acts of third persons committed on the store’s leased premises.
Maryland’s Court of Special Appeals held that when working inside the Dollar General store, the decedent occupied the status of tenant, not the status of business invitee. The Court further ruled that the determination whether a duty of care arose on the part of a landlord to protect a tenant from the criminal acts of third persons revolves around questions of fact. The factual record must be developed before the legal question of duty can be answered because whether such a duty arose will depend upon the factual circumstances, and in particular upon whether similar crimes had been committed and the landlord’s knowledge of such crimes. Thus, the case was reversed and remanded.
Questions about this case can be directed to Nicholas Schaufelberger at (202) 945-9502 or email@example.com.
DC CASE SUMMARY
Cobb v. Wash. Metro. Area Transit Auth.
United States District Court for the District of Columbia
2021 U.S. Dist. LEXIS 129809
Decided: July 13, 2021
Slip and fall suit against metro survives Motion to Dismiss.
Plaintiff and his friend descended into an underground metro station. As Plaintiff and his friend approached the turnstiles, Plaintiff slipped on an unknown substance and landed on the floor in “a hurdler’s position with one leg extended forward” and his other leg deposited under himself. Plaintiff and his friend were unable to find help within the metro station, including at a nearby station kiosk, which was vacant at the time of the accident. After approximately fifteen minutes, a metro employee arrived, but stated that he could not help and would call for help. A metro supervisor soon arrived, but reportedly looked at Plaintiff, then went into a nearby office without interacting with Plaintiff. Eventually, Plaintiff’s friend called for help using her cellphone and authorities arrived. Plaintiff filed suit against the metro alleging negligence and negligent infliction of emotional distress. The metro moved to dismiss both claims, alleging that neither was supported by the facts in the Complaint.
The District Court held that, under the circumstances, a reasonable jury could find that the metro negligently failed to render aid and negligently inflicted emotional distress to Plaintiff. The Court reasoned that the negligent infliction of emotional distress claim was supported by the fact that Plaintiff laid on the floor for several minutes, in pain, fearing that the lack of prompt medical attention was aggravating his injury. The Court reasoned that the negligence claim is properly supported by the fact that medical authorities did not arrive until after Plaintiff’s friend called for help. The Court stated that any business open to the public owes a duty to render aid or call for help when a customer is injured. The Court clarified that the metro could have complied with this duty if the employees called for help. The Court reasoned that the employees’ failure to call for help after seeing Plaintiff laying on the floor was a breach of the metro’s duty to render aid. As a result, the Court denied the Motion to dismiss.
Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or firstname.lastname@example.org.
VA CASE SUMMARY
Lucas v. Riverhill Poultry, Inc.
Virginia Supreme Court
Decided: July 1, 2021
Virginia Supreme Court affirms Trial Court’s exclusion of medical examiner’s opinions bearing on liability in wrongful death action.
A tractor-trailer owned by Riverhill Poultry left its lane of travel on Interstate 81 southbound in Rockbridge County and rolled down an embankment, killing Mark Lucas and Gerald Hilliard. Riverhill employed Hilliard as a truck driver. The administrator of Lucas’s estate filed a lawsuit against Riverhill and Amy Goode, the administrator of Hilliard’s estate for wrongful death. The Administrator alleged that Lucas was a passenger in the tractor-trailer and that Hilliard failed to exercise reasonable care in its operation; failed to keep it under proper control; and fell asleep, due to lack of proper rest, while operating the vehicle causing it to leave the roadway and roll over. Riverhill disputed that Hilliard was driving the tractor-trailer and contended instead that Lucas was driving. Alternatively, Riverhill asserted that if Hilliard was driving the tractor-trailer, he was not negligent.
Dr. Sara Ohanessian, the Assistant Chief Medical Examiner, performed an autopsy on Hilliard, and concluded his death was an “accident” caused by “blunt force trauma of head.” The “Summary of Circumstances” in her report stated that Hilliard was driving. Hilliard’s toxicology report showed that medications, typically taken as sleep aids, were in his system. In her deposition, Dr. Ohanessian testified she relied on the police report to tell her who was driving. The Trial Court granted a defense motion to exclude this testimony and the medical examiner’s materials. Lucas contends that the circuit court erred in excluding the Summary of Circumstances and toxicology report because doing so was contrary to a statute that states, “[r]eports of investigations of [medical examiners] shall be received as evidence in any court or other proceeding.” The jury returned a defense verdict and Lucas appealed.
The Supreme Court rejected the argument that the statute should be construed as a mandate to admit expressions of opinion because they are included in a medical examiner’s report, regardless of any other rule of evidence. The Court, citing its interpretation of a nearly identical statute applicable to criminal matters, opined that the effect of the statute “is to make reports of investigations of the medical examiner ‘admissible as prima facie evidence of the facts stated therein, thus obviating the necessity of summoning as witnesses those persons performing the particular tests or investigations at issue.’” The statute does not “provide an exception authorizing admission of expressions of opinion in a report that are derived from evidence, such as here, that the jury is just as well-equipped as the medical examiner to consider and draw its own conclusions.” The Supreme Court affirmed the judgment entered on the jury’s verdict.
Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or email@example.com.