eNotes: Liability – March 2022 – Pennsylvania
March 01, 2022
PENNSYLVANIA CASE SUMMARIES
Lageman v. Zepp
Pennsylvania Supreme Court
No. 21 MAP 2021
Decided: December 22, 2021
The legal doctrine of res ipsa loquitor, “the thing speaks for itself,” is available in medical malpractice actions even when direct evidence is presented to support a claim for traditional negligence.
In this medical malpractice action, Plaintiff underwent an exploratory surgery for a suspected small bowel obstruction secondary to a large ventral hernia. Defendant, John Zepp, IV, D.O., an anesthesiologist, was tasked, inter alia, with monitoring Plaintiff’s vital signs while under anesthesia. During the course of the surgery, Dr. Zepp mistakenly placed a catheter (CVP) in Plaintiff’s carotid artery and Plaintiff subsequently suffered one or more strokes which left her paralyzed on the left side.
Plaintiff filed suit alleging that Dr. Zepp deviated from the standard of care when he placed the CVP in the carotid artery which was the factual cause of her resulting injuries. At the time of trial, Plaintiff submitted expert testimony that Dr. Zepp breached the standard of care by using a short-axis ultrasound method, rather than a long-axis, when placing the CVP, which did not allow him to visualize the tip of the needle. In addition to presenting direct evidence of negligence, Plaintiff requested that the jury also be charged on the doctrine of res ipsa loquitor, arguing that it could be inferred that the harm alleged was the result of Dr. Zepp’s negligence. The Trial Court denied Plaintiff’s request for a charge on res ipsa loquitor pursuant to the Restatement (Second) of Torts § 328D. However, the Trial Court did charge the jury on the distinction between direct and circumstantial evidence, leaving the jury to base its decision in whole, or in part, on the latter.
The Supreme Court reasoned that where the evidence available to the Plaintiff is equivocal, and less than conclusive on the elements of negligence, asking the Plaintiff to choose which evidentiary approach to pursue is manifestly unfair. The Court went on to note that the doctrine of res ipsa loquitor is not simply precluded when the Plaintiff has introduced enough direct evidence to potentially satisfy her burden. Moreover, if there is indirect, circumstantial evidence to cover gaps in the (more) direct evidence, and that evidence constitutes a prima facie showing under Section 328D, then the jury charge should be given. In sum, Plaintiff’s two approaches to satisfying her evidentiary burden were not mutually exclusive, nor was it analogous to submitting two incompatible claims to a jury. The Supreme Court ultimately vacated the Trial Court’s refusal to charge the jury on res ipsa loquitor and remanded the matter for a new trial.
Questions about this case can be directed to John Lucy at (717) 441-7067 or firstname.lastname@example.org.
Peters v. Workers’ Comp. Appeal Bd. (Cintas Corp.)
Pennsylvania Supreme Court
No. 1 MAP 2020, 2021 Pa. LEXIS 4002
Decided: November 17, 2021
The Court held that under the Worker’s Compensation Act, a traveling employee had to be considered in his course of employment during the entirety of work-related travel, unless the employee abandoned his employment.
Jonathan Peters (Claimant) was employed by Cintas Corporation (Employer) as a uniform sales representative. In this position, Claimant worked half-days in Employer’s Allentown, Pennsylvania branch office on Mondays, Tuesdays and Wednesdays, and traveled the remainder of those days, as well as Thursdays and Fridays, to meet with, and present products to, potential customers in the region around Reading, Pennsylvania. Following his last sales appointment on February 27, 2015, Claimant attended an Employer-sponsored event at a pub in Allentown. After leaving the event, Claimant was injured in a motor vehicle accident. Alleging that the motor vehicle accident occurred during the course of his employment with Employer, Claimant filed a claim petition seeking benefits. Employer responded by filing an Answer, in which it specifically denied that Claimant was in the course of his employment at the time of the motor vehicle accident.
Claimant’s argument was that he was a traveling employee at the time of the accident as he was returning from an employer sponsored event. Employer argued that the event was non-mandatory and non-work related and, therefore, Claimant could not be considered to be in the course and scope of his employment. The Supreme Court liberally construed the traveling employee doctrine stating that a traveling employee must be considered in the course of his employment during the entirety of work-related travel, unless the employee abandons his employment. In the instant matter, as the event included clients and socialization that would benefit the employer, the facts suggested that Claimant was in the course and scope of his employment at the time of the accident. Further, the Supreme Court stated that once the Claimant meets his burden, the burden then shifts to Employer to demonstrate that Claimant abandoned his employment prior to the accident. An Employer can demonstrate this by showing that Claimant’s actions, at some point prior to the accident, were so foreign to and removed from his usual employment that they constitute an abandonment of that employment.
A travelling employee will be considered to be in the course and scope of his employment, unless it can be shown that the employee abandoned his employment prior to an accident.
Questions about this case can be directed to Jonathan Danko at (717) 441-3957 or email@example.com.
Erie Ins. Exch. v. Wilton
Pennsylvania Superior Court
2022 Pa. Super. Unpub. LEXIS 385
Decided: February 9, 2022
Summary judgment entered in favor of insurer because damage caused by contractor’s faulty workmanship and intentional deception was not covered by the policy.
Erie Insurance Exchange issued a FiveStar Contractors Policy to Wilton. In an underlying civil action, home-owner, Brandt, brought an action against Wilton alleging that Wilton violated the Pennsylvania Home Improvement Consumer Protection Act (HICPA) and Unfair Trade Practices and Consumer Protection Law (UTPCPL). Brandt also brought claims of breach of contract, breach of expressed warranty, breach of implied warranty of fitness, and negligence. Prior to the resolution of the underlying matter, Erie filed a declaratory judgment action asserting that the policy did not provide coverage to Wilton because the claims against him were the result of faulty workmanship. After judgment was entered by the trial court against Wilton, Erie filed a motion for summary judgment that Wilton’s faulty workmanship was not an “occurrence” as defined by the policy, and, therefore, Erie had no duty to indemnify Wilton. Brandt filed a counter-motion for summary judgment, which was granted. Erie appealed.
The Superior Court held that Wilton’s faulty workmanship, including his admitted intentional disregard for the manufacturer’s recommendations on installation of the metal roof, his intentional deception of Brandt, and his delivery of a product that he knew was inferior, did not constitute “occurrences” under the policy. Rather, these acts were intentional, not by fortuity, and, thus, did not occur by accident. Therefore, the case was remanded for the Trial Court to enter an order granting summary judgment in favor of Erie.
Questions about this case can be directed to Amanda Hennessey at (717) 237-7103 or firstname.lastname@example.org.
Ferraro v. Hupp
Pennsylvania Superior Court
No. 666 MDA 2021, 2022 Pa. Super. Unpub. LEXIS 358
Decided: February 8, 2022
Summary judgment under the “hills and ridges” doctrine was proper following a slip and fall on untreated patch of ice, three to four days after storm.
Plaintiff, a Medicare consultant who was visiting the Defendant’s residence to discuss the services Plaintiff could provide, was injured when he slipped and fell on untreated patches of ice in Defendant’s driveway after exiting Defendant’s home. Plaintiff successfully walked over the driveway to enter Defendant’s home without incident. On Plaintiff’s exit and return to his car, he fell. It had not snowed or precipitated on the day of Plaintiff’s fall, but it had snowed three to four days earlier. Based upon Plaintiff’s wavering testimony as to the cause of his fall, the Trial Court granted the Defendant’s Motion for summary judgment, opining that it was impossible to ascertain from Plaintiff’s testimony how he injured himself and that a jury would be left to speculate as to the cause of Plaintiff’s fall, which is improper. Plaintiff appealed.
The Superior Court affirmed the entry of summary judgment, but on different grounds. In particular, the Superior Court found that the “hills and ridges” doctrine precluded Plaintiff’s recovery. Although it had snowed three to four days earlier and Defendant had testified to having the driveway plowed and salted, the Superior court viewed the record in the light most favorable to Plaintiff and held that Plaintiff was entitled to the inference that he slipped on an “untreated patch of ice.” In light of this inference and concession, the Superior Court noted that the record demonstrated that the slip occurred on a natural accumulation, as opposed to an artificial accumulation, and that Defendant was entitled to protection from liability for the generally slippery conditions that resulted from a natural accumulation following the recent storm.
Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or email@example.com.
Strothmann v. Chb Sports
Pennsylvania Superior Court
No. 1565 MDA 2020
Decided: February 8, 2022
Evidence which supports differing inferences precludes summary judgment.
Plaintiff filed suit against a bowling alley claiming damages resulting from a trip and fall. Plaintiff had been at the bowling alley all day for a tournament and had traversed the area of the alleged defect no less than eight times before she fell. Plaintiff testified at deposition to several different types of defects and admitted that if she had looked at the ground, she would not have seen the condition without scrutinizing it. Defendant’s architectural expert indicated that there were two concrete slabs under carpet which had a height differential of .25 inch. Defendant’s biomechanical expert reported that such a differential would not have caused a trip and fall. The Trial Court granted summary judgment in favor of Defendant ruling that Plaintiff failed to produce sufficient evidence of what caused her fall, where it occurred, or that the Defendant was aware of any defect.
On appeal, Plaintiff argued that the Trial Court erred because there were genuine issues of material fact as to the existence of the defect and Defendant’s notice. In reversing the summary judgment, the Superior Court reviewed the evidence and determined that there was testimony from Plaintiff, her daughter, and a former employee of the bowling alley which suggested the existence of a defect in the floor, albeit differing descriptions of the condition, but all suggesting an unevenness in height. The Court noted that summary judgment cannot be granted where the evidence supports conflicting inferences. Defendant’s current manager testified that he was present when the carpet was taken up following the accident and saw two uneven concrete slabs. In addition, several witnesses testified that the area where Plaintiff fell was typically covered with a ball rack, but was not on the date of the incident due to the tournament bleachers. From this, the Court ruled that there was a question of fact as to Defendant’s constructive notice of the condition.
The Superior Court reversed the Order granting summary judgment and remanded the case to the Trial Court holding that evidence showed that genuine issues of material fact existed as to the existence of the defect and Defendant’s notice of the defect.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or firstname.lastname@example.org.
Milshteyn v. Fitness Int’l, LLC
Pennsylvania Superior Court
No. 452 EDA 2021, 2022 Pa. Super. 30
Decided: February 18, 2022
Superior Court upheld an entry of summary judgment, finding that a gym membership agreement containing an exculpatory clause was valid, enforceable, and not against public policy.
Plaintiffs, husband and wife, joined L.A. Fitness facility in Philadelphia in 2011. Upon joining the gym, Plaintiffs signed a Membership Agreement, which contained an exculpatory clause. On June 11, 2017, Plaintiffs were in the pool area of the L.A. Fitness facility when a power outage occurred. While in the dark, Plaintiff Peter Milshteyn slipped and fell on the stairs descending from the pool area to the locker room. Plaintiffs filed suit on May 16, 2019, asserting claims for negligence and loss of consortium. Defendants filed a Motion of summary judgment asserting, inter alia, that the Membership Agreement precluded Plaintiffs’ claims. The Trial Court granted Defendants’ Motion. Plaintiffs’ appealed, arguing that the Membership Agreement was a contract of adhesion.
The Superior Court held that the Trial Court properly granted summary judgment for the Defendants. The Court noted that exculpatory provisions in contracts are generally enforceable if it is clear that three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons relating entirely to their own private affairs. Lastly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. The Court found that the three conditions to enforce the exculpatory clause were met. The Court followed its analysis of Toro v. Fitness Int’l LLC, 2016 PA Super 243, 150 A.3d 968 (Pa. Super. Ct. 2016), emphasizing that an exculpatory clause involving the use of a commercial facility for voluntary athletic activities is not considered a contract of adhesion, because the individual is under no compulsion, economic or otherwise, to participate, nor sign the clause, because it is not related to an essential service.
Questions about this case can be directed to Danielle Vols at (570) 825-6890 or email@example.com.