eNotes: Liability – February 2019
January 31, 2019
TT&H LAWYERS IN COURT
Joshua Bovender successfully secures landlord’s dismissal from Cumberland County premises liability lawsuit.
Attorney Joshua Bovender obtained the dismissal of a landlord/property owner in connection with a Cumberland County civil action brought by a well-known Philadelphia law firm. The suit concerned injuries to a tenant’s boyfriend, who tripped and fell over a piece of cracked patio concrete. Arguing for dismissal, Josh cited language from the lease relinquishing the owner’s control over the patio. The two-judge panel agreed and granted summary judgment, dismissing all claims against Josh’s client, with prejudice.
Questions about this case can be directed to Joshua Bovender, at (717) 237-7153 or email@example.com.
Attorney Rebecca Sember Izsak wins defense verdict for national chain retail store.
Attorney Rebecca Sember Izsak wins defense verdict in binding summary jury trial in Westmoreland County. Plaintiff was shopping at a chain store choosing a plastic storage container when a stack of plastic totes fell and struck her on the leg. This caused a large bruise, which then developed into a blood clot, requiring debridement and wound care over a period of six months. In her suit against the store, Plaintiff claimed that the totes were improperly stored. Her expert opined that the totes were dangerously stacked and displayed, which was the cause of the accident. Arguing that the totes were displayed for sale on the lowest possible shelf, Attorney Sember Izsak convinced the jury that the store was not negligent.
Questions about the case can be directed to Rebecca Sember Izsak, at (412) 926-1446 or firstname.lastname@example.org.
Attorney Bernie Kwitowski wins defense arbitration award in connection with a Monroe County slip and fall.
Last month, Bernie Kwitowski, an attorney in the Lehigh Valley Office, won a defense award following a private arbitration. The action concerned a slip and fall on oil in the parking lot of a commercial shopping plaza. Plaintiff claimed significant neck and back injuries from the incident and underwent considerable treatment, including a cervical fusion. At the arbitration, she claimed medical expenses in excess of $200,000 and lost wages in excess of $70,000. In contesting liability, Bernie argued that the property owner had no actual or constructive notice of the condition, while also arguing that the condition was open and obvious, and that no duty was owed to the Plaintiff with respect to the condition. Agreeing that liability had not been established, the arbitrator entered an award in favor of the property owner. Notably, prior to filing suit, Plaintiff made a settlement demand of $1,000,000.
Questions about this case can be directed to Bernie Kwitowski, at (610) 332-7018 or email@example.com.
PENNSYLVANIA CLIENT ADVISORY
Gallagher v. GEICO Indem. Co.
Pennsylvania Supreme Court
No. 35 WAP 2017, 2019 Pa. LEXIS 345
Decided: January 23, 2019
Supreme Court invalidates UM/UIM household vehicle exclusion in inter-policy stacking case. The Plaintiffs’ Bar is declaring this case a landmark victory that will trigger an expansion of risk for insurance companies and, among other things, breathe new life into previously-denied UM/UIM claims. Class action litigation is already underway as a result of this case.
The Plaintiffs’ Bar contends that this case is a complete invalidation of the UM/UIM household vehicle exclusion—or, worse, all exclusions that are not expressly permitted by statute. However, the precise holding of the Pennsylvania Supreme Court was that the household exclusion of UM/UIM coverage was unenforceable where the insurer required separate policies for the policyholder’s motorcycle and his cars, but the plaintiff-policyholder did not reject stacking on either policy. While Plaintiffs’ lawyers argue that Gallagher v. GEICO renders the household exclusion invalid generally, insurers will argue that the holding is limited to those specific facts.
Gallagher was injured while riding his motorcycle. He was paid the limit of the other driver’s liability insurance. Gallagher insured his motorcycle and two cars with GEICO. GEICO required that the motorcycle be insured under a separate policy. The motorcycle policy’s UIM limit was $50,000, while the auto policy’s UIM limit was $100,000, on two cars. Gallagher did not reject stacking with respect to either policy.
GEICO paid Gallagher the $50,000 UIM coverage limit under the motorcycle policy, but denied his claim for stacked UIM benefits under the automobile policy, based on a household vehicle exclusion, which excluded coverage for injury while occupying a vehicle owned by the Named Insured or a resident relative that is not insured under that policy. The Westmoreland County Court of Common Pleas and the Pennsylvania Superior Court, following extensive precedent, agreed with GEICO that the household vehicle exclusion was valid. The Supreme Court reversed, ruling that Gallagher was entitled to a total of $250,000, in stacked coverages.
The Supreme Court reversed, holding that, in the Gallagher case, the household exclusion violated the Motor Vehicle Financial Responsibility Law (“MVFRL”). The Court, however, also specifically noted that it was “deciding the discrete issue before the Court . . . .” See id. at n.8.
Although the Court used some unnecessarily broad language—e.g., “we hold that the household vehicle exclusion violates the MVFRL”—the decision should be applied very narrowly to the factual scenario before the Court, particularly since the Court indicated that it was deciding only the “discrete issue” before the Court, while also suggesting that it was respecting the doctrine of stare decisis.
The “discrete” or precise issues before the Court were framed by Gallagher in his petition for allowance of appeal, granted by the Supreme Court:
(1) Whether the “household vehicle exclusion” violates Section 1738 of the [MVFRL] where GEICO issued all household policies and unilaterally decided to issue two separate policies, when the insured desired stacking, elected stacking, paid additional premiums for stacking and never knowingly waived stacking of underinsured motorist benefits?
(2) Whether the “household vehicle exclusion” impermissibly narrows or conflicts with the statutory mandates of the [MVFRL] and the evidence of record is that GEICO was fully aware of the risks of insuring a motorcycle in the same household as other family vehicles but unilaterally decided to write a separate motorcycle policy?
See Gallagher v. GEICO Indem. Co., 170 A.3d 974 (Pa. 2017) (granting allowance of appeal) (quoted in the Majority Opinion at 2019 Pa. LEXIS 345, at *9-10). Thus the discrete issue was whether the household vehicle exclusion was invalid when the insurer “unilaterally decided” to put the policyholder’s vehicles on separate policies and the policyholder chose stacked coverage.
In the course of the Gallagher opinion, the Court noted specifically that Gallagher purchased both policies from GEICO, that he paid extra for stacked coverage on both policies, and that it was GEICO that decided the motorcycle and the cars had to go on separate policies.
The Gallagher Court took great pains to explain that stare decisis concerns were not implicated by the Majority’s rejection of Gov’t Employees Ins. Co. v. Ayers, 955 A.2d 1025 (Pa. Super. 2008), aff’d, 18 A.3d 1093 (Pa. 2011), which upheld the validity of the exclusion in the same circumstances (insurer required separate policy for motorcycles and policyholder elected stacked coverage on both policies), because Ayers was merely a decision of the Superior Court that was deemed affirmed only because the Supreme Court was equally split. Furthermore, stare decisis was not a concern with respect to Erie Ins. Exch. v. Baker, 972 A.2d 507 (Pa. 2009) (household vehicle exclusion in stacked policy does not violate MVFRL), because Baker was a “plurality decision” without a majority agreement on any single opinion. Therefore, neither of those cases constituted “binding precedent” with respect to the Supreme Court.
The Gallagher Court’s disagreement with the Superior Court’s decision in Ayers is understandable as a matter of fundamental fairness. In Ayers, the insurer accepted premium for all the policyholder’s vehicles, unilaterally placed them on separate policies, and then excluded coverage because they were on separate policies. Indeed, that unilateral separation of policies is at the core of the Gallagher appeal, as indicated by the discrete issues presented to the Supreme Court. Unfortunately, the Gallagher majority opinion includes what appears to be inadvertently broad dicta that goes beyond the discrete facts and issue presented. As to Baker, which is plainly distinguished from Gallagher in that Erie did not insure the occupied vehicle, it should be noted that the Gallagher majority did not indicate Baker was overruled, but rather, merely that stare decisis was not implicated because there was no majority opinion in Baker.
In view of the Gallagher Court’s implicit recognition of the value of stare decisis, express limitation of the decision to the “discrete issue before the Court,” and specific indication that the Court’s “focus here is narrow,” other precedential decisions of the Supreme Court should remain valid. Specifically, in Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998), the Court held, unanimously, that the household vehicle exclusion in a family policy was valid where the motorcyclist had rejected UIM coverage on his motorcycle policy; in Prudential Prop. & Cas. Co. v Colbert, 813 A.2d 747 (Pa. 2002), a majority of the Court held that the household vehicle exclusion was valid where the plaintiff sought coverage under his parents’ policy after collecting the UIM limit on his own policy on his own car that he occupied at the time of the accident; and in Windrim v. Nationwide Ins. Co., 641 A.2d 1154 (Pa. 1994), the Court upheld the exclusion where the claimant occupied his uninsured vehicle and sought UIM benefits under his mother’s policy.
Moreover, the Supreme Court left undisturbed its decision in Williams v. GEICO, 32 A.3d 1195 (Pa. 2011), where the Court upheld the validity of a “regular use exclusion” as against a challenge that it violated the MVFRL and public policy. In that case, a Pennsylvania State Police Trooper was injured in a State Police fleet vehicle (self-insured by the State) and sought UIM coverage under his own, stacked, insurance policy. GEICO denied the UIM claim based on an exclusion that extended to vehicles, not owned by but merely “furnished for the regular use” of the insured. Of course, Williams is distinguishable from Gallagher in that GEICO did not insure the occupied vehicle. All the same, if the regular use exclusion was valid where different insurers or entities covered the vehicles (where the insured–a “first-responder,” no less–was not even involved in insuring the occupied vehicle), then the household vehicle exclusion must also be valid (where it is the insured or his family who control insurance on the occupied vehicle). The Williams decision followed an earlier Supreme Court decision also validating the exclusion. See Burstein v. Prudential Prop. and Cas. Ins. Co., 809 A.2d 204 (Pa. 2002).
Although the dissent in Gallagher warns that the Majority opinion renders “all UM/UIM exclusions . . . unenforceable,” the Majority emphasized that “we offer no opinion or comment on the enforceability of any other exclusion to UM or UIM coverage or to coverage in general . . . .” Indeed, it seems fair to assume that the Supreme Court did not intend to silently overrule its own extensive precedential decisions, including not only the five decisions discussed above, but also Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa. 1994) (validating the “family car exclusion,” which excepted family vehicles from the definition of underinsured motor vehicle), Hall v. Amica Mut. Ins. Co., 648 A.2d 755 (Pa. 1994) (territorial exclusion), and Progressive N. Ins. Co. v. Schneck, 813 A.2d 828 (Pa. 2002) (excluded driver).
It should be kept in mind that Gallagher presented but one among innumerable variable scenarios—specifically, claims by the policyholder of two policies issued by the same insurer to the same policyholder, where the insurer required separate policies and the policyholder chose stacked coverage on both policies. Any variation from that scenario (for examples, involvement of more than one insured or insurer, or rejection of UM/UIM coverage on the occupied vehicle, or rejection of stacking on any policy) justifies careful analysis before a determination of coverage. Indeed, the entire policy must be considered carefully in UM/UIM cases, including other potential exclusions, such as the “regular use” exclusion that has been upheld twice by the Supreme Court. Care should be taken to afford insureds the coverage to which they are entitled pursuant to the policy and the law—no more, no less.
Questions about this case can be directed to Pete Speaker, at (717) 255-7644 or firstname.lastname@example.org, Kevin McNamara, at (717) 237-7132 or email@example.com, or Christopher Gallagher, at (215) 564-2928 or firstname.lastname@example.org.
 The doctrine of stare decisis favors respect for prior rulings of the Court. “A statutory construction, once made and followed, should never be altered upon the changed views of new personnel of the court. . . . Stare decisis simply declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different . . . . ‘Even were it deemed a doctrine which should no longer prevail, certainly, in the face of so venerable a history, the remedy should be sought, not in the courts, but in the legislature . . . .’” Burtt Will, 44 A.2d 670, 677 (Pa. 1945) (quoting Heisler v. Thomas Colliery Co., 274 Pa. 448, 452 (Pa. 1922) and Commonwealth v. Wucherer, 351 Pa. 305 (Pa. 1945)) (some internal quotation marks omitted).
MARYLAND CLIENT ADVISORY
In 2017, the Maryland Insurance Commissioner charged 77 people with fraud, one of the most costly crimes in the country.
An article released in The Baltimore Sun on February 5, 2018 reported that the Maryland Insurance Administration (MIA) charged 77 people with fraud in 2017. The agency’s commissioner, Al Redmer, Jr., authorized civil and criminal charges totaling $466,261 in fines, penalties and restitution. More than 40 people were ordered to pay more than $200,000 in administrative penalties and restitution and another 37 were prosecuted for insurance fraud, resulting in payments of $265,747. The article reported that insurance fraud is one of the most costly crimes in the country. The agency takes measures to deter insurance fraud by requiring that all applications for insurance must state the following:
A person who knowingly and willfully presents a false or fraudulent claim for payment of a loss or benefit or who knowingly and willfully presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison.
By focusing on fraud by private individuals, the MIA is ensuring that policy holders know that insurance fraud is a crime which will be prosecuted.
As an attorney who provides insurance fraud training to insurance companies that write in Maryland, by requiring insurance companies to receive two hours of insurance fraud training every two years, the agency ensures that companies who write insurance in Maryland are educated to recognize insurance fraud, and how and where to report it.
Questions about this advisory can be directed to Salvatore Cardile, at (410) 653-0460 or email@example.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
State Farm Fire & Cas. Co. v. Motta
United States District Court for the Eastern District of Pennsylvania
2018 U.S. Dist. LEXIS 208472
Decided: December 11, 2018
Homeowners’ insurer must defend a cyberbully whose harassing text messages to a classmate caused her to commit suicide. Her resulting death was accidental from the cyberbully’s perspective.
The insured’s son had a history of engaging in cyberbullying. He launched a series of offensive texts to a classmate, who became so distraught that she committed suicide. The parents of the victim brought wrongful death and survival actions grounded in negligence. The homeowners’ insurer provided a defense under a reservation of rights and it brought a declaratory judgment action seeking to terminate the defense on the basis that the boy’s conduct was inherently non-accidental and, as such, there was no covered occurrence.
The Court rejected the insurer’s claim and held, instead, that the suicide was accidental from the boy’s perspective. The Court explained that while he may have intended to insult his classmate and, possibly, to cause her emotional distress, her suicide was not reasonably foreseeable by him. The Court distinguished a line of cases involving assaults actually committed by the insured and considered the case to be more analogous to situations in which the insured negligently failed to prevent harms inflicted by third parties.
Questions about this case can be directed to Louis Long, at (412) 926-1424 or firstname.lastname@example.org.
United States District Court for the Middle District of Pennsylvania
Decided: December 10, 2018
In alleging bad faith against Liberty Mutual, Plaintiffs plead nothing more than a disagreement as to the value of their claim. Liberty Mutual’s Motion to Dismiss was granted because Plaintiffs failed to plead adequate factual matter to support the allegation that Liberty Mutual did not act reasonably in valuing the underinsured motorist claim.
Plaintiff, while operating her private vehicle, was involved in an accident off State Route 115 in Chestnut Hill Township, Pennsylvania. As Plaintiff attempted to enter a store parking lot, a vehicle, being drive by the tortfeasor, crossed over into Plaintiff’s lane of travel, striking her vehicle and causing her injuries. Plaintiff alleged, inter alia, that she sustained headaches, pain in her hips, back, neck, and shoulders, as well as a disc protrusion. Plaintiff eventually settled with the underlying tortfeasor for the policy limits of $15,000. Plaintiff then sought additional Underinsured (UIM) benefits from her policy with Liberty Mutual. Liberty Mutual refused to provide more in benefits as the claim was not worth more than that already received in the settlement.
Plaintiffs alleged that by denying their claim for UIM benefits, Liberty Mutual breached the terms of their insurance agreement and acted in bad faith. Liberty Mutual moved for dismissal of the claim.
Plaintiffs’ subjective belief, as to the value of the claim, is not indicative of bad faith because a Defendant’s subjective belief as to value may reasonably, and permissibly, differ. The District Court held, absent additional factual allegations as to how Liberty Mutual acted unreasonably in their valuation of the claim, that Plaintiffs could not proceed on a bad faith claim on the basis of differing value only. Plaintiffs’ claim was therefore dismissed; however, the Court allowed leave to amend the Complaint to set forth additional factual allegations to support a claim for bad faith.
Questions about this case can be directed to John Lucy, at (717) 441-7067 or email@example.com.
Hunter v. Kennedy
United States District Court for the Middle District of Pennsylvania
No. 3:17-cv-00007, 2018 U.S. Dist. LEXIS 204788
Decided: December 4, 2018
A party must pay a reasonable expert witness fee to a treating physician even though the treating physician is considered a non-retained expert.
Plaintiff disclosed the identity of her treating physician as a witness who would present expert opinion evidence at trial pursuant to the Federal Rule of Civil Procedure 26(a)(2)(C), which dictates the disclosure requirements for a witness who is not specially retained to provide expert testimony. Plaintiff disclosed the subject matter on which Plaintiff’s treating physician was expected to present expert evidence and a summary of the facts and opinions to which the witness was expected to testify.
Defendants deposed Plaintiff’s treating physician and argued that they were only obligated to pay the physician as a fact witness. In support of their argument, Defendants pointed to the fact that Plaintiff’s disclosure of the physician did not adhere to the more onerous disclosure requirements for an expert witness set forth in Federal Rule of Civil Procedure 26(a)(2)(B), which requires the expert to prepare and sign a detailed, highly technical written report.
The Federal Rules of Evidence do not distinguish between lay and expert witnesses, but rather between expert and lay testimony. A treating physicians’ testimony on prognosis and causation will inherently be based on scientific, technical, or specialized knowledge, and therefore the treating physician must be identified as an expert. Notwithstanding Plaintiff’s duty to disclose the treating physician as one who will present expert opinion at trial, Plaintiff was not held to the onerous disclosure requirements as alleged by Defendants because the treating physician was a non-retained expert. In determining the reasonableness of a fee owed to a non-retained expert, the court looks at: area of expertise; education; comparable rates; complexity of discovery responses; actual fee charged to the retaining party; fees traditionally charged by an expert on related matters; and any other factor likely to assist the court in balancing interests.
Questions about this case can be directed to Chloe Gartside at (215) 564-3281 or firstname.lastname@example.org.
Natcher v. Accuride Corp.
United States District Court for the Western District of Pennsylvania
2018 U.S. Dist. LEXIS 199105
Decided: November 26, 2018
Defendant’s Motion for Summary Judgment denied as landowner/independent contractor rule inapplicable, and whether Plaintiff assumed the risk was a jury question.
Plaintiff Natcher, an employee of a non-party trucking company, was injured at Defendant Accuride’s manufacturing facility as he and an Accuride employee, Donald Hermann, were loading a conveyer onto Natcher’s flatbed trailer. Mr. Natcher was standing on the trailer bed so that he could guide the placement of the conveyer as Mr. Hermann was operating the overhead cranes to lower it onto the truck. The conveyer destabilized, which caused Mr. Natcher to either fall from or jump off of the trailer bed suffering injuries.
The Court denied Accuride’s Motion for Summary Judgment. The Court held that the jury must decide whether the danger of the conveyer becoming unstable and causing Mr. Natcher to fall was known and obvious to him. The Court further found that Mr. Natcher’s acknowledgement of danger, generally, did not relieve Accuride of responsibility for the particular danger. Additionally, the Court found that the landowner/independent contractor rule did not apply, as Mr. Natcher was claiming that Accuride was vicariously liable for the actions or omissions of its employee and directly liable for its negligence as opposed to being vicariously liable for Mr. Natcher’s actions or the actions of his employer.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or email@example.com.
PENNSYLVANIA CASE SUMMARIES
Brewington v. City of Phila.
Pennsylvania Supreme Court
No. 23 EAP 2017
Decided: December 28, 2018
School District not immune from suit where student runs into unpadded concrete wall used as the finish line during a race.
Nine year old Jarrett Brewington stumbled and fell into a concrete wall while running a relay race during gym class. Master Brewington was knocked out, suffered a cut to his head, and developed memory problems and headaches after the incident. Alleging that the unprotected concrete gym wall was a defective and dangerous condition of the premises, an action was filed asserting negligence for not having a padded mat on the concrete wall. The action was lodged against the City of Philadelphia, the School District of Philadelphia, and the Walter G. Smith Elementary School.
The defendants filed a motion for summary judgment claiming that the real estate exception to governmental immunity did not apply since padded mats were personalty and not part of the premises, as alleged in the complaint. The Lower Court granted the motion and entered judgment in favor of all defendants. After an en banc panel of the Commonwealth Court reversed the judgment in favor of the defendants, the Supreme Court granted the defendants’ petition for allowance of appeal.
The Supreme Court affirmed the Commonwealth Court and returned the case to the Trial Court for further proceedings. In doing so, the Court held that “a claim that a local agency failed to pad a gym wall constitutes an assertion of an act of negligence by a local agency concerning the care, custody, and control of real property, and, thus falls under the real property exception.” The real property exception applied to a failure to provide safety features in this instance because the concrete wall constituted real property in the possession of the local agency. The Court rejected the defendants’ argument that plaintiffs’ claims were tantamount to a claim of negligence supervision and, thus, did not fall under the real estate exception.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or firstname.lastname@example.org.
Mitchell v. Milburn
Pennsylvania Commonwealth Court
No. 344 C.D. 2017
Decided: December 6, 2018
Commonwealth Court affirms Trial Court, finding that Plaintiff failed to establish the Trial Court abused its discretion or committed an error of law in granting Defendant a non-suit and ruling that evidence offered by Plaintiff of a subsequent remedial measure undertaken by a Defendant was inadmissible.
Plaintiff was stopped in the eastbound lane of Skippack Pike in Worcester Township waiting to turn left onto Weber Road. Skippack Pike was a two-lane highway with no turning lane. While waiting to turn, Plaintiff’s vehicle was struck by a vehicle operated by Defendant Milburn. Defendant Milburn’s vehicle was traveling between 50 to 55 miles per hour and impacted Plaintiff’s vehicle at a peculiar angle. Due to the force of the impact, Plaintiff’s vehicle flipped, and it rolled over onto its roof, traveling into the opposite lane of travel. Defendant Lewis was traveling in the westbound lane of Skippack Pike at the time, and his vehicle struck Plaintiff’s overturned vehicle despite immediately taking evasive action. As a result of the crash, Plaintiff sustained serious injuries.
Plaintiff filed an Complaint against Defendants Milburn, Lewis and the PennDOT. During trial, Plaintiff settled with Defendant Milburn and agreed to enter into a pro-rata joint tortfeasor settlement agreement, whereby Milburn would remain on the verdict sheet for the jury to assess the proportionate share of liability among the Defendants. During trial, Plaintiff attempted to offer evidence of a subsequent remedial measure undertaken by PennDOT adding a left-hand turn lane where Plaintiff’s crash occurred. The Trial Court ruled that this evidence was inadmissible as a subsequent remedial measure. At the close of Plaintiff’s case-in-chief, both remaining Defendants made motions for a compulsory non-suit. The Trial Court granted Defendant Lewis’ non-suit and denied PennDOT’s non-suit. The jury returned a verdict which attributed 100% of the negligence to Defendant Milburn and awarded damages in the amount of $2,315,693. Plaintiff filed motions for post-trial relief, contending the Trial Court erred in granting Defendant Lewis’ motion for non-suit and not allowing Plaintiff’s proffered evidence concerning PennDOT’s subsequent remedial measure. The Trial Court denied Plaintiff’s post-trial motions.
The Commonwealth Court affirmed. First, the Court found that the Trial Court properly granted Defendant Lewis’ motion for non-suit, as the evidence established that the doctrine of sudden emergency applied to Defendant Lewis. This was because there was no evidence to support that Defendant Lewis breached his standard of care. The evidence showed that Defendant Lewis was traveling below the speed limit despite traveling downhill, and Plaintiff could not offer any testimony regarding Defendant Lewis’ operation of his vehicle. Next, the Court found that the Trial Court did not abuse its discretion in excluding evidence offered by Plaintiff of PennDOT installing a dedicated left-hand turn lane at the crash location. The Court noted that Pennsylvania Rule of Evidence 407 prohibits the admission of subsequent remedial measures other than to prove ownership, control or the feasibility of precautionary measures. The Court dismissed Plaintiff’s argument, as PennDOT never disputed or otherwise contested the issues of control and feasibility.
Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or email@example.com.
Leight v. Univ. of Pittsburgh
Pennsylvania Superior Court
2018 Pa. Super. 359
Decided: December 31, 2018
The Mental Health Procedure Act does not provide for a cause of action premised upon voluntary outpatient treatment.
Mrs. Leight, who worked for the Western Psychiatric Institute and Clinic (“WPIC”), was shot by a man who had been a patient of the University of Pittsburgh Medical Center (“UPMC”). Following the shooting, Mrs. Leight sued UPMC, University of Pittsburgh of the Commonwealth System of Higher Education (“Pitt”), and University of Pittsburgh Physicians (“UPP”). She alleged that that UPMC, UPP and/or Pitt provided medical services to the shooter prior to the incident. Prior to the shooting, a UPMC orthopedic and foot surgeon had identified schizophrenic symptoms exhibited by the man during a foot examination and contacted personnel for assistance to have the man involuntarily committed. The involuntary commitment process was never commenced and, about a week later, the patient entered WPIC and shot Mrs. Leight.
The Complaint against UPMC, Pitt and UPP set forth claims under the Mental Health Procedure Act (“MHPA”). The Act, however, only provides a cause of action for gross negligence and willful misconduct against a party when the alleged conduct pertains to involuntary inpatient treatment, involuntary outpatient treatment, and voluntary inpatient treatment. The Court of Common Pleas of Allegheny County dismissed Mrs. Leight’s claims because the shooter had not undergone any of the three treatments specified under the MHPA. Mrs. Leight appealed the decision.
The Superior court affirmed, finding that treatment decisions on a voluntary outpatient basis do not establish a duty under the MHPA. Therefore, the Lower Court properly dismissed Mrs. Leight’s Complaint. UPMC, UPP and Pitt did not owe a duty to Mrs. Leight because there were no allegations that UPMC, UPP, or Pitt were negligent in the examination or treatment of the shooter while he was an involuntary inpatient or outpatient, or a voluntary inpatient, at any facility, nor were there allegations of a decision regarding discharge to outpatient care.
Questions about this case can be directed to Chloe Gartside, at (215) 564-3281 or firstname.lastname@example.org.
Brock v. Turkey Hill Minit Mkts.
Pennsylvania Superior Court
No. 3461 EDA 2017
Decided: January 24, 2018
Trial Court properly applied the hills and ridges doctrine where evidence demonstrated that ongoing precipitation created generally slippery conditions prevailing in the community, and Plaintiff could not show that ice was anything other than a natural accumulation.
Plaintiff arrived at a Turkey Hill and exited her vehicle to walk towards the store entrance. There was a “light mist” at the time. After Plaintiff fell, she noted that the parking lot was covered with smooth, shiny ice, such that the asphalt appeared wet. Police and EMTs slid on the ice while trying to help her. Turkey Hill’s manager testified that she observed conditions on her way to work 30 minutes earlier which were “horrible”, and the weather was cold, rainy and snowy. Defendants offered a report of a certified meteorologist who explained that, immediately prior to Plaintiff’s fall, there had been 3 hours of sleet/freezing rain in the area, and there had been 45 consecutive hours of air temperature at or below 20ºF and 98 consecutive hours of sub-freezing temperatures. He opined that such conditions cause raindrops to freeze upon contact with the sub-freezing ground, leading to rapid accumulation of ice.
In granting summary judgment in favor of Defendants, the Court concluded that the Plaintiff could not establish that the ice in the area where she fell was caused by anything other than a natural accumulation, and conditions were generally slippery due to an ongoing weather event.
In affirming the Trial Court, the Superior Court agreed that even when viewing the evidence in the light most favorable to the non-moving party, it was clear that there were no genuine issues of material fact. The Court specifically noted that Defendants’ meteorologist concluded that the weather conditions that day provided an “ideal design for the instantaneous freezing of liquid precipitation falling” on the parking lot. It further noted that Plaintiff had not offered any evidence to rebut Defendants’ expert report.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
Kozier v. Rayner
Pennsylvania Superior Court
No. 3883 EDA 2017
Decided: December 7, 2018
Trial Court erred in vacating defense verdict after jury’s finding of negligence, but not causation, where jury was given several versions of how slip and fall occurred.
Plaintiff was working as a housecleaner for a cleaning company and had been assigned to Defendants’ home. Upon completion of her work, Plaintiff followed her co-workers out through an unlit garage. Plaintiff claimed to have tripped on a lip between the garage floor and the driveway and fallen fracturing her ankle. At trial, Plaintiff testified through a Ukrainian translator. The jury heard six different versions of how Plaintiff fell, stemming from her Complaint, Amended Complaint, Answers to Interrogatories, medical records, deposition testimony and trial testimony. Plaintiff dismissed the differing versions as translation errors. The jury was instructed on the separate questions of negligence and factual cause. The jury found Defendants negligent, but did not find that the negligence was a factual cause of Plaintiff’s injury.
In vacating the verdict and granting a new trial, the Trial Court determined that once the jury found negligence, and only uncontested medical evidence of injury was admitted, the jury’s finding that the negligence was not a factual cause of the injury was so disparate and inconsistent as to defy logic. In reaching this conclusion, the Trial Court also found that the medical report prepared by Defendants’ expert, but which was not introduced at trial and the author of which did not testify, constituted a judicial admission.
In reversing the Trial Court, the Superior Court held that the Trial Court erred in vacating the verdict and awarding a new trial. It reasoned that the fact that there was uncontested medical evidence of injury did not relieve Plaintiff of her burden of proving that it was Defendants’ negligence which caused the injury. Defendants demonstrated ample evidence of the conflicting causes of injury. It ruled that based upon the evidence in the case, the jury could properly have determined that Defendants’ negligence did not produce the harm because it was within the jury’s province to assess Plaintiff’s credibility. The Court also held that not only was the un-introduced medical report of Defendants’ expert irrelevant to the issue of causation, but also that statements in a medical report are opinions of an expert, subject to debate and contradiction, and do not amount to “clear and unequivocal” admissions of fact.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
Cagle v. State of Maryland
Maryland Court of Appeals
No. 15, September Term 2018
Decided: December 13, 2018
A Trial Court has discretion to allow or refuse the use of video taped trial testimony to be used during closing arguments.
The criminal Defendant is a former police officer charged with shooting an unarmed man. Prior to closing arguments, the Trial Judge reviewed a Powerpoint presentation prepared by defense counsel that included video recorded excerpts of trial testimony as well as a video recording of the victim’s pretrial statement. The Trial Court allowed the attorney to use the pretrial statement as well as surveillance video already introduced into evidence, but not the video recorded trial testimony. Defendant was found guilty.
The Court of Appeals found that a party holds great discretion when presenting their closing arguments; however that discretion is not unlimited. The Trial Court has broad discretion when determining the scope of a closing argument. There is no hard and fast rule that requires or forbids the use of videotaped testimony for use during a closing argument. Here, the Trial Court articulated the reasons for denying use of the video including, waste of time and juror confusion, and there was no abuse of discretion.
Questions about this case can be directed to Renita Collins, at (410) 653-0460 or email@example.com.
NEW JERSEY CASE SUMMARIES
J.Z. v. E.R.
New Jersey Superior Court, Appellate Division
No. A-2581-17T2, 2019 N.J. Super. Unpub. LEXIS 113
Decided: January 15, 2019
Defendant did not have a duty to protect her boyfriend from an attack in her home by her other boyfriend where the other boyfriend was not previously violent.
Plaintiff had a dating relationship with Defendant. Defendant also maintained a dating relationship with E.R., who knew she kept her home unlocked. Several years earlier, Defendant had obtained a temporary restraining order against E.R., but E.R. had never struck her. E.R. was acquainted with Plaintiff and knew that Plaintiff stayed at Defendant’s home several evenings per week. Late one evening, E.R. drove to Defendant’s home and found Plaintiff’s car parked in the driveway. He texted and telephoned Defendant and informed her he was going to enter her home. E.R. entered the home and went to Defendant’s bedroom, where he found both Plaintiff and Defendant. E.R. began to argue with Defendant and struck her. Plaintiff intervened to protect Defendant, and E.R. struck Plaintiff, resulting in the loss of Plaintiff’s eye.
Plaintiff filed a personal injury action against Defendant. The Trial Court granted summary judgment in favor of Defendant, finding that Defendant did not owe a duty to warn or protect Plaintiff from E.R., despite the fact that Defendant may have known that E.R. could enter her home, because Defendant had no reasonable expectation that E.R. would start a fight with her or that Plaintiff would intervene to protect her.
The Appellate Division affirmed the Trial Court’s ruling that there was no duty of care in these circumstances. The Appellate Court noted that E.R. did not have a history of violence. Further, Plaintiff failed to identify any actions Defendant should or should not have taken to exercise greater care, observing that it was unclear whether Defendant’s purported negligence consisted in engaging in a sexual relationship with two men simultaneously, not locking her doors, failing to instruct Plaintiff to leave the home, or some other action or inaction. In short, the Court concluded, “[t]he possibilities related to defendant’s ability and opportunity to exercise care in this case are so varied as to make identification of the duty impossible.”
Questions about this case can be directed to Charles Skriner, at (908) 574-0513 or firstname.lastname@example.org.
Spigai v. Live Nation Worldwide, Inc.
New Jersey Superior Court, Appellate Division
No. A-4242-16T4, 2019 N.J. Super. Unpub. LEXIS 81
Decided: January 11, 2019
A wet, grassy slope at an outdoor concert venue was not a “dangerous condition of public property” under the Tort Claims Act.
Plaintiff Spigai and her friends had lawn seats for a concert at the PNC Bank Art Center, which is owned by the New Jersey Turnpike Authority and operated by Live Nation. Spagai parked in a commuter lot and took a courtesy shuttle bus to the venue. Rain, which had started early in the day, continued through the concert. After the concert, Spigai elected not to wait for the shuttle bus and walked with a crowd of people toward the commuter lot, which was at the foot of a grassy hill. A sidewalk along the top of the hill leads to a staircase down to the lot. Spigai did not use the staircase, but instead decided to walk down the wet, grassy slope. “Wearing flip-flops and carrying a chair, her tote bag and a tarp while talking to her husband on her cell phone, Spigai slipped on the wet grass and broke her leg.”
The Trial Court granted summary judgment in favor of Defendants the Turnpike Authority and Live Nation. As to the Turnpike Authority, the Court found that it was entitled to immunity as no reasonable juror could conclude that the wet, grassy hill was a “dangerous condition of public property” under the Tort Claims Act. As to Live Nation, the Court observed that the Plaintiff could have taken the stairs and “the fact that grass is slippery when wet is matter of common knowledge, and it goes against a sense of basic fairness to impose a duty to warn that grass is slippery when wet.”
The Appellate Division affirmed the Trial Court’s ruling, agreeing that the grassy slope, even wet with rain, was not a “dangerous condition” under the Tort Claims Act. The Appellate Court also agreed that the obvious nature of the wet grass on the hill made it impossible for Plaintiff to recover against Live Nation, a Defendant without statutory immunities. “Live Nation’s duty of care did not extend to warning plaintiff that grass is slippery when wet or to taking steps to prevent her from walking down the hill to her car in the rain instead of using the staircase provided.”
Questions about this case can be directed to Charles Skriner, at (908) 574-0513 or email@example.com.
Paschall v. Norfolk Square Apts.
New Jersey Superior Court, Appellate Division
2018 N.J. Super. Unpub. Lexis 2832
Decided: December 28, 2018
A property owner does not have a duty of care to protect stranger (i.e., trespassers) from random acts of violence like a drive-by shooting.
Plaintiff Najee Paschall was returning home after visiting a friend who lived a few blocks from Norfolk Apartments which was owned by Defendant Norfolk Square Apartments and managed by Defendant Wingate Management. As he was walking near 159 Norfolk Street, Plaintiff noticed a white van driving down the street and then saw the rear doors of the van open and a person begin shooting. Plaintiff ran inside 159 Norfolk Street, through a hallway in the Norfolk Apartments and exited the rear of the building. At his deposition, Plaintiff testified that he had no intention or plan to enter Norfolk Apartments on the day of the incident. Further, Plaintiff did not live at Norfolk Apartments and did not need to cut through the complex to get home. When the shooting began, Plaintiff was crossing the street in front of the complex. After the van appeared, Plaintiff continued walking on Norfolk Street and felt something hit him. After hearing 5-6 shots fired, Plaintiff ran inside the Norfolk Apartments. Plaintiff was shot in the back and taken to the hospital for treatment.
The Trial Court granted the Defendants’ motion for summary judgment finding Plaintiff was not on the Defendants’ property when he was shot, and no duty of care was owed to protect strangers from random acts of violence.
The Appellate Court affirmed and agreed with the Trial Court’s evaluation of the totality of the circumstances, as well as the concepts of fairness and consideration of public policy that no duty of care was owed to the Plaintiff. In their decision, the Appellate Court reiterating the Hopkins factors which were used by the Trial Court to determine whether an individual owes a duty of care to another: (1) “the relationship of the parties;” (2) “the nature of the attendant risk;” (3) “the opportunity and ability to exercise care;” and (4) “the public interest in the proposed solution.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993).
Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or firstname.lastname@example.org.
DC CASE SUMMARY
Proulx v. 1400 Pennsylvania Avenue, SE, LLC
District of Columbia Court of Appeals
Decided: January 10, 2019
D.C. Court of Appeals affirms Trial Court ruling which upheld liquidated damages provision in commercial contract for sale of property.
Tahmina Proulx and 1400 Pennsylvania Avenue, SE entered into a commercial Contract of Purchase and Sale (Contract) for Proulx to purchase a first floor retail space and basement from 1400 for $550,000. The parties negotiated the terms of the Contract through experienced real estate brokers and also agreed to include a Commercial Pre-Occupancy Agreement, under which Proulx would take possession of the property between March 15 and 26, 2012, before the final settlement of the sale, which would occur sometime between March 2013 and March 2014. From the time of possession until settlement, Proulx agreed to pay $4,000 monthly rent. The Contract required a $150,000 non-refundable deposit that would be credited toward the purchase price, and a liquidated damages clause setting the deposit as 1400’s damages in the event of Proulx’s breach of the contract.
Proulx fell behind on the monthly payments and was unable to close on the purchase under the terms of the Contract. The property then lay vacant for one month before 1400 changed the locks on May 1, 2014. In June 2014, Proulx filed a Complaint alleging that the Contract should be rescinded and that the liquidated damages provision was an unenforceable penalty. 1400 filed a Counter-Claim alleging that Proulx breached the Pre-occupancy Agreement and owed $24,000 in past due rent. After a bench trial, the Trial Court ruled in 1400’s favor on Proulx’s Complaint and Counterclaim, upheld the liquidated damages clause, and ordered Proulx to pay the unpaid rent, monies for insurance 1400 had purchased, and attorney’s fees and costs.
The Court of Appeals upheld the Trial Court’s decision and found that the Contract was not a contract of adhesion and the liquidated damages clause was enforceable. Whether a contract is a contract of adhesion depends on a fact-specific inquiry to determine the parties’ relative bargaining power, and the Court of Appeals found no error in the Trial Court’s determination that the Contract was a negotiated deal between parties of equivalent bargaining power where oral negotiations between the parties took place, multiple drafts of the Contract were exchanged between the parties, and Proulx and her representatives had extensive business experience. The Court of Appeals also upheld the Trial Court’s finding that the liquidated damages clause was reasonable at the time of its execution given uncertainties in the real estate market, two year delay in closing, and the absence of evidence of unequal bargaining power.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or email@example.com.
VIRGINIA CASE SUMMARY
Erie Ins. Exch. v. EPC MD 15, LLC
Virginia Supreme Court
Decided: January 17, 2019
Control of a subsidiary does not create an ownership interest in the subsidiary’s property for the purpose of coverage if the subsidiary is not a named insured.
The insured had a commercial policy with a carrier and suffered a fire loss at the property of a subsidiary company not listed as an additional insured. No provisions in the policy included subsidiaries within the definition of named insured. However, the policy did include a provision extending coverage to newly acquired property, business personal property acquired by the insured, and personal property of others located in the insured’s newly acquired property after the issuance of the policy. Nothing in the policy expressly covered buildings of others. Shortly after acquiring the subsidiary, a fire damaged the subsidiary’s building and the insured made a demand for coverage which the carrier denied.
The insured sued and won based on the theory that the insured’s control over the subsidiary meant for coverage purposes it acquired all of the subsidiary’s property under these coverage extension provisions in the policy. The insured asserted that the meaning of “acquired” was ambiguous, and therefore had to be construed against the carrier.
The Court reversed, finding that, as the carrier argued, the coverage extension language could not fairly be read to extend coverage to newly acquired property of a subsidiary not named as an additional insured, or that the mere formation of a parent-subsidiary relationship meant the parent acquired the subsidiaries property. Virginia courts interpret the full context of insurance contracts, interpreting words with the meaning a reasonable insurer and insured would likely have attributed at the time they entered into the contract. Only where plain meaning is undiscoverable will courts construe ambiguities against the drafter; hypothetical ambiguities do not create genuine ambiguity simply because the parties disagree as to the meaning of the language.
Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or firstname.lastname@example.org.