eNotes: Liability – November 2020
November 01, 2020
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Johnson v. City of Philadelphia
United States Court of Appeals for the Third Circuit
975 F.3d 394
Decided: September 22, 2020
Summary judgment was proper where Plaintiff was unable to show that the City acted with deliberate indifference. Summary judgment was also proper as Plaintiff failed to show that the actions of the operator and dispatcher amounted to a “state-created danger.”
Alita Johnson, her son Haashim Johnson, and her stepfather Horace McCouellem (“Johnson family”), died in a fire that engulfed their Philadelphia apartment. With the building already burning, Ms. Johnson called 911. A fire department operator instructed her to remain inside, promising help was on the way. A cascade of errors then followed. Firefighters initially drove to the wrong location and then, once at the scene, never learned that Ms. Johnson and her family were waiting inside. The firefighters extinguished the blaze without a search of the residence, leaving all three trapped in their home where they perished from smoke inhalation. Days would pass before firefighters returned and discovered their bodies.
Seeking answers and redress, the administratrix of the decedents’ estates sued the City and two fire department employees. Her claims rested largely on the theory that the Defendants caused the deaths by making mistake after mistake. Plaintiff claimed the actions of the operator, who provided the incorrect home address, amounted to a “state created danger.” It was further claimed that the actions of the dispatcher, who advised the Johnson family to remain in place and then failed to inform the responding firefighters of the same, also amounted to a state created danger. Finally, Plaintiff claimed that the City was negligent, both for failing to properly train the fire department and for failing to remedy long-standing code violations at the Johnson residence. The District Court found that Plaintiff failed to state a viable claim and entered summary judgment for the Defendants.
Following an appeal by the Plaintiff, the Third Circuit found that the operator was not liable under a state created danger theory because she did not affirmatively use her authority in a way that created a danger to the decedents. Further, her behavior did not show that she acted with deliberate indifference, as opposed to acting through error, omission or oversight. A similar conclusion was reached as to the dispatcher. The Court further found that a Monell claim against the City failed because there was no evidence that it was deliberately indifferent to a risk of a constitutional violation or that it failed to train its employees. The Lower Court’s decision was therefore affirmed.
Questions about this case can be directed to Jonathan Danko, at (717) 441-3957 or firstname.lastname@example.org.
PENNSYLVANIA CASE SUMMARIES
Walsh v. BASF Corp.
Pennsylvania Supreme Court
No. 15 WAP 2019
Decided: July 21, 2020
In action involving Pittsburgh area golf courses, Supreme Court grants “a Mulligan,” allowing Plaintiff’s experts to show that their conclusions were the result of applying methodologies generally accepted in the scientific community.
For almost 40 years, Walsh worked as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. His work involved the regular application of various insecticides and fungicides on the fairways and greens. After he was diagnosed with Acute Myelogenous Leukemia, he died four months later. Walsh had kept a detailed log of his activities regarding the pesticides he used and relying on the same, his estate sued nearly 20 Defendants, including BASF, Scotts, Monsanto, Dow and Bayer. Plaintiff retained experts to opine on both general and specific causation, and to set forth their methodologies in doing so, because each products’ formulation, and Walsh’s exposure to them, was different. After expert reports were exchanged, several Defendants filed Frye Motions to test the reliability of their conclusions.
Although the Lower Court did not hold a Frye hearing, the Trial Judge reviewed the expert reports and the available scientific literature. The Court then granted Defendants’ Motions, finding the Plaintiff’s experts’ opinions were not scientifically acceptable. Thereafter, the parties consented to the entry of summary judgment in favor of all of Defendants, with Plaintiff reserving the right to take an appeal from that judgment. On appeal, the Superior Court ruled in favor of Plaintiff and reversed the Lower Court’s entry of summary judgment. The Defendants then appealed to the Supreme Court.
The Court reviewed its prior decisions on the Frye standard, including the appropriate role of a trial court as “gatekeeper” when ruling on the admissibility of expert opinions involving “novel scientific evidence.” The Court held that the Trial Judge abused his discretion in reviewing the scientific literature and making his own judgment on its scientific acceptance. According to a majority of the Court, the Trial Judge should not be a “super expert” and only needs to determine whether the methodology utilized in reaching an expert’s opinion is generally acceptable in the scientific community. The Frye standard allows for differing conclusions by different experts as long as those conclusions are based upon an expert’s best exercise of professional judgment, employing the same generally accepted methodology and body of literature, and the same relevant facts.
Affirming the decision of the Superior Court, the Supreme Court agreed with the Plaintiff that the Trial Judge, “delved into an area beyond [his] training and experience . . . and substituted his analysis of the scientific literature for the analysis that was conducted by [Plaintiffs’] [e]xperts.” In remanding the case to the Lower Court to apply the Frye test appropriately, the Court agreed with the Superior Court that “we adopted the Frye test to avoid having judges try to understand the complexities of modern science, as it is better to allow the scientists to do that to ensure reliability.”
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or email@example.com.
Colton v. W. Penn Power Co.
Pennsylvania Superior Court
No. 1791 WDA 2019
Decided: October 15, 2020
Superior Court affirms Trial Court’s ruling that photographs taken by claims manager and claims representative, who were supporting the Legal Department, were not protected from disclosure by the attorney-client privilege or work product doctrine.
After a brush fire on Plaintiffs’ property was extinguished, Terry Alan Colton (“Decedent”) walked into the area of the extinguished fire and came into contact with a fallen West Penn power line. He was electrocuted and died. Plaintiffs, after learning during discovery that agents or employees of West Penn took photographs of the property following the Decedent’s death, sent discovery requests to obtain the photos. West Penn objected to Plaintiffs’ requests on the grounds of attorney-client privilege and the attorney work product doctrine. Plaintiffs filed a Motion to Compel responses to the requests. In West Penn’s opposition brief, it argued the photographs were taken at the direction of legal counsel, for the purpose of communicating information to counsel, and were therefore privileged communications. The Trial Court granted Plaintiffs’ Motion to Compel finding that the photographs were not a “communication.” West Penn appealed.
On appeal, the Superior Court examined the process through which the photographs were taken. The Claims Manager and Senior Corporate Claims Representative were both responsible for supporting Legal Department investigations concerning serious injuries involving West Penn for the defense of any future claim or litigation. Both took photographs of the property for the claim file, and to provide to legal counsel, as part of a standard investigation. The Superior Court agreed with the Trial Court’s determination that the photographs were not communications and were facts documenting the condition of the scene. Therefore, the photographs could not be protected under attorney-client privilege. Similarly, the photographs could not be protected under the attorney work product doctrine because it was not established that the photographs were taken “at the behest of the attorney” and, absent any notations by counsel or counsel’s agents, the photographs provided nothing more than factual information.
The photographs taken by the claims manager and representative who were providing support to the Legal Department were not protected from disclosure under the attorney-client privilege or work product doctrine because the photographs were not communications and provided only factual information.
Questions about this case can be directed to Amanda Hennessey, at (717) 237-7103 or firstname.lastname@example.org.
Trigg v. Children’s Hosp. of Pittsburgh of UPMC
Pennsylvania Superior Court
No. 1041 WDA 2017
Decided: September 15, 2020
Challenges to voir dire process on appeal deemed waived where timely objections were not raised at trial.
In a medical malpractice action, two of Plaintiff’s proposed voir dire questions were refused by a calendar-control judge in charge of the voir dire process. Court staff, rather than a judge, were present during voir dire. A judge later heard argument on, and denied, Plaintiff’s three challenges for cause in a courtroom, rather than the jury selection room. Plaintiff used three preemptory challenges to remove the challenged jurors. At no time before or during voir dire did Plaintiff’s counsel object to the process. After the jury returned a defense verdict, Plaintiff appealed raising, for the first time, three purported errors with the voir dire process.
On appeal, Plaintiff claimed prejudice because the Court refused to permit two of her voir dire questions and refused to strike three jurors for cause. The Court applied an abuse of discretion standard and held that Plaintiff had failed to articulate how the Trial Court abused its discretion. The Court noted that wide latitude is given to a trial judge on voir dire issues because the trial judge is better able to see and hear the prospective juror’s demeanor. In criticizing the Court’s voir dire process, Plaintiff argued that the process delineated by the calendar judge was arbitrary, not set forth in the local rules of procedure, and contained a panoply of procedural defects. While acknowledging that voir dire in the absence of a judge is unorthodox with arguable constitutional ramifications, the Superior Court ruled that the issue had been waived because Plaintiff failed to preserve the issue by objection at the time of trial or raising it in post-trial motions.
In affirming the judgment of the Trial Court, the Superior Court held that Plaintiff had waived her objections to the voir dire process by not properly preserving the issues at the time of trial.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
Scalla v. KWS, Inc.
Pennsylvania Superior Court
2020 Pa. Super. 191
Decided: August 11, 2020
Petition to open default judgment must be timely filed, demonstrate a reasonable excuse for the default, and provide a meritorious defense.
In a products liability action, an injured employee, Eric Scalla, filed suit against KWS, the manufacturer of a chain hook from which an excavation ripper detached and crushed Scalla’s leg. Scalla filed suit against KWS in Philadelphia County and served his Complaint via certified mail to KWS’ Tulsa, OK office – its only U.S. office. Ms. Roberts, registered agent for KWS, signed for the USPS return receipt. However, she set aside the package because she did not recognize the sender. When KWS did not respond to the Complaint, Scalla served a 10-day notice of intent to enter default judgment. Ms. Roberts signed for this notice as well but, likewise, did not open the package. Ten days later, Scalla filed a Praecipe to enter default judgment, which was entered in Scalla’s favor.
Upon receiving an emailed copy of the notice of default judgment, KWS attempted to remove the case to Federal Court (which was rejected). It did not file a Petition to open judgment until over 300 days after the notice of default was entered. Moreover, once filed, the Petition to open was not verified. On the issue of whether to open the default judgment, the parties filed a series of replies and sur-replies which caused the Trial Court “to endure a death by a thousand cuts from eight separate sur-reply briefs.” However, even with such extensive briefing, the Trial Court found that KWS was not able to sustain its burden to satisfy the three-part test for opening a default judgment. Under that test: (1) the Petition to open must be promptly filed; (2) the default must be reasonably explained; and (3) there must a meritorious defense to the underlying claim. The Trial Court denied the Petition to open, with prejudice. KWS appealed, arguing that the Trial Court abused its discretion and that equity compelled the opposite result.
On appeal, the Superior Court affirmed the Trial Court and held that the unverified Petition to open was properly denied. The Court found that the Petition was untimely and that there was no reasonable excuse for the default because KWS gave its registered agent the responsibility to decide whether to open mail and the power to decide whether to forward it to superiors. The Court also found that KWS’ boilerplate allegations in response to the Complaint did not establish a meritorious defense with any particularity. The Superior Court added that only when a party establishes the three-part test to open a default judgment may it also consider the “equities” of the case as an additional ground to open the judgment.
Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
Moore v. Donegal
Maryland Court of Special Appeals
No. 788, September Term, 2019
Decided: September 30, 2020
If a settlement offer does not specify a time for acceptance, it is generally an issue of fact whether that settlement offer was accepted in a reasonable time frame.
Trina Moore (“Moore”) filed an action against Donegal Mutual Insurance Company (“Donegal”) alleging breach of a settlement agreement. The underlying action involved Moore and a corporation which Donegal insured. Prior to trial, Donegal offered to pay Ms. Moore $18,000 to settle her claim. Trial began May 16, 2018. One day into trial, Moore advised she would accept $21,500.00. Donegal did not accept the counter-offer and left the $18,000 on the table. The trial continued and Moore closed her case. After the Defendant moved for judgment, Moore advised she would accept the $18,000. At this point, Donegal told Moore that she was mistakenly told that the offer was still on the table. Thereafter, the trial continued and the jury returned a verdict for Donegal.
Subsequently, Moore sought $18,000 due to Donegal’s alleged breach of the settlement agreement. Both parties filed Motions for summary judgment. Moore argued a contract was formed and that her acceptance of the offer a couple of hours later was given within a reasonable time. Donegal argued that the counter-offer nullified the original offer, that there was a lapse in time before acceptance of the offer, and since there was no release, there was no settlement agreement. The Trial Court determined that Donegal was entitled to summary judgment, finding the offer had lapsed.
The Court of Special Appeals reversed the Trial Court’s entry of summary judgment. If a settlement offer does not specify a time for acceptance, it is generally an issue of fact for the jury to determine whether that settlement offer was accepted within a reasonable time frame. In this matter, where the offer was accepted two hours after Moore was told the offer was still on the table, a jury should determine whether the offer was accepted in a reasonable time frame.
Questions about this case can be directed to Lauren Upton, at (443) 641-0572 or email@example.com.
NJ CASE SUMMARY
Flanzman v. Jenny Craig, Inc.
New Jersey Supreme Court
No. A-66 September Term 2018, 082207
Decided: September 11, 2020
Supreme Court holds arbitration agreement enforceable.
Jenny Craig, Inc. hired Marilyn Flanzman to work as a weight maintenance counselor in 1991. In 2011, Jenny Craig required Flanzman to sign a document entitled “Arbitration Agreement.” In February 2017, Flanzman was eighty-two years old. Flanzman’s managers informed her that her hours would be reduced from thirty-five hours per week to nineteen hours per week. In April 2017, Flanzman’s managers further reduced her hours to approximately thirteen hours per week. In June 2017, they reduced her hours to three hours per week, at which point she voluntarily left Jenny Craig.
Flanzman brought suit, asserting claims for age discrimination, constructive discharge, discriminatory discharge, and harassment. Jenny Craig moved to dismiss the Complaint and to compel arbitration based upon the Arbitration Agreement. Jenny Craig contended that the Agreement was enforceable and California law should apply. Flanzman argued that the Agreement was unenforceable because it did not name the arbitrator, designate an arbitration organization to conduct the proceeding, or set forth a process for the parties to choose an arbitrator. The Trial Court agreed with Jenny Craig and granted the Motion to Dismiss.
Finding no reversible error, the New Jersey Supreme Court affirmed the Trial Court’s judgment. The Trial Court granted the Motion to dismiss and ordered the parties to arbitrate Flanzman’s claims. It held that the arbitration agreement compelled arbitration of the discrimination claims, even though the agreement did not name the arbitrator, designate an arbitration organization to conduct the proceeding, or set forth a process for choosing an arbitrator. The agreement clearly and unmistakably informed the parties that final and binding arbitration would take the place of “a jury or other civil trial.” Further, the New Jersey Arbitration Act, N.J.S.A. § 2A:23B-11(a), expressly stated that the Trial Court could appoint an arbitrator on a party’s application in several settings, including circumstances in which the parties had not agreed on a method to select an arbitrator. The Court also stated that California law governed the arbitration and that the proper forum was assumed to be California.
Questions about this case can be directed to Michael Bishop, at (908) 574-0510 or firstname.lastname@example.org.
DC CASE SUMMARY
District of Columbia v. Miss Dallas Trucking
District of Columbia Court of Appeals
Decided: October 22, 2020
D.C. Court of Appeals reverses Trial Court’s decision not to impose civil penalty under water pollution control act and holds penalties are not mandatory under statute.
In March 2016, an employee of Miss Dallas Trucking (“Dallas”) lost control of a dump truck and crashed in a wooded area off Interstate 295. As a result of the crash, approximately 900 gallons of fuel and engine oil spilled into a drainage channel feeding into the Potomac River. After the crash, the D.C. Department of Energy and Environment (“DOEE”) found that the spill posed an imminent public health danger and contacted Dallas with instructions to begin cleanup efforts immediately, while also providing contact information for contractors who could assist. Dallas ignored the instructions and did not take any action to clean up the site. Thereafter, DOEE cleaned up the site on its own at a cost of approximately $31,000. The District of Columbia brought a civil enforcement action against Dallas seeking the approximately $31,000 in cleanup costs and another $50,000 in civil penalties under the D.C. Water Pollution Control Act (“WPCA”).
Dallas failed to respond to the Complaint and the Trial Court entered a default judgment for the full amount of cleanup costs, but did not award any civil penalty under the WPCA. The WPCA provides that a court should weigh four factors to determine whether civil penalties are appropriate, those being: (1) “the size” of a business; (2) ability “to continue the business despite the penalty”; (3) the “seriousness of the violation”; and (4) the “nature and extent of its success” in cleanup efforts. The Trial Court held that the District did not provide enough information as to the size of Dallas or its ability to absorb a penalty, even after the Trial Judge had requested additional briefing on the issue. The District appealed and argued that the language of the WPCA, which provides that violators “shall be subject to a civil penalty,” made imposition of a penalty mandatory. It further argued that, due to its failure to participate in discovery, Dallas was responsible for the lack of evidence as to its size or ability to pay.
The Court of Appeals held that imposition of civil penalties under the WPCA is discretionary, rather than mandatory, finding that the indeterminate nature of the term “subject to” within the quoted phrase above indicated that it was a violator’s exposure to a fine that is a certainty, not the fine itself. Thus, while courts must weigh the WPCA factors, they have discretion as to whether to assess penalties. Here, the Court of Appeals found that the Trial Court’s mistake of law in finding that evidence of all four factors is required to impose a penalty amounted to an abuse of discretion and remanded the case for consideration of whether to impose a fine, with instructions that the lack of evidence as to Dallas’ size and ability to absorb the fine should not prevent application of a penalty. While the Trial Court may again find that a penalty is inappropriate, it does not need evidence of all factors to order to impose a fine.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or email@example.com.