eNotes: Liability – October 2019
September 27, 2019
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Jester v. Hutt
United States Court of Appeals for the Third Circuit
2019 U.S. App. Lexis 25998, __ F.3d __, 2019 WL 4050434
Decided: August 28, 2019
After a jury returned a verdict of $1 and $89,999 in punitive damages, the Third Circuit declared that the amount of punitive damages may be substantially larger than a single digit multiplier of a nominal award when an egregious act results in a small amount of damages and the amount awarded is reasonable when compared to similar cases.
Fantasy Lane Thoroughbred Racing Stables, LLC, owners of several horses including a stallion named Uptowncharleybrown, was sued by Penn Ridge Farms, LLC, a horse boarding and breeding facility, for breach of contract, defamation and punitive damages. The jury returned a verdict for Penn Ridge in the amount of $110,000 for breach of contract, $1 for defamation and $89,999 for punitive damages. Fantasy Lane’s counterclaims for negligence, breach of contract, and breach of fiduciary duty were unsuccessful. Fantasy Lane filed a motion seeking, in the alternative, a new trial, a reduction of the damages, or an amendment of the judgment. After the District Court only reduced the punitive damage award to $5,500, both Fantasy Lane and Penn Ridge appealed the District Court’s rulings to the Third Circuit Court of Appeals.
Although the Third Circuit affirmed the District Court’s denial of Fantasy Lane’s motions for a new trial and amendment of the judgment, it reversed the Lower Court’s reduction of the punitive damage award from $89,999 to $5,500. In reviewing the U.S. Supreme Court’s guidance on an appropriate award of punitive damages vis-à-vis the award of compensatory damages, the Court noted that the $1 verdict below was a nominal verdict and not a compensatory award. In relying on sister jurisdictions that had already addressed the issue, the Court held that the amount of punitive damages may be substantially larger than a single digit multiplier of a nominal award when an egregious act results in a small amount of damages and is reasonable when compared to similar cases. The Court vacated the Trial Court’s reduction of the punitive damage award and remanded the case to the District Court to reevaluate the award and consider the “reprehensibility of the [defendant’s] conduct and compare the $89,999 award to those defamation . . . cases that do not involve physical harm.”
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or firstname.lastname@example.org.
PENNSYLVANIA CASE SUMMARIES
Dupell v. Walmart Stores East, LP
United States District Court for the Eastern District of Pennsylvania
Decided: August 28, 2019
Court grants Motion for summary judgment, finding that Plaintiff failed to present evidence of a dangerous condition which caused her fall.
Plaintiff fell while in the self-checkout area of Walmart, injuring her right leg. Surveillance video depicts Plaintiff collapsing. In answers to Interrogatories, Plaintiff claimed that she slipped on an M&M candy. However, in her deposition, she testified that she did not know what caused her fall. She noted that she relied on her husband’s observation of an M&M on the floor when he arrived at Walmart, although he did not specify how many he saw or their location on the floor. The incident report included Plaintiff’s statement that her leg or ankle suddenly buckled, rolled, or gave out. Notably, she had sustained a right knee injury three months prior to the Walmart incident. In fact, she advised a Walmart employee that her “leg was hurt and that her leg’s been hurting her for a while, so it caused her to fall and hit the ground.”
Plaintiff sued Walmart, claiming that it allowed a dangerous condition, loose candy on the ground, resulting in her injuries. Walmart filed a motion for summary judgment, asserting that Plaintiff offered no evidence of a harmful condition.
The Court granted Walmart’s motion for summary judgment, finding that Plaintiff failed to proffer any evidence of a harmful condition. Moreover, she failed to present evidence that Walmart had notice of the condition or its duration on the floor, thereby, precluding a finding of constructive notice.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or email@example.com.
Safe Auto Ins. Co. v. Oriental-Guillermo
Pennsylvania Supreme Court
2019 Pa. LEXIS 4605
Decided: August 20, 2019
An unlisted resident driver exclusion contained in a motor vehicle insurance policy is valid and enforceable.
An automobile liability policy contained an exclusion that eliminated coverage for any drivers who resided with the named insured, but who were not listed in the declarations as a driver of a covered auto. The named insured was aware of the exclusion, but he chose not to add his live-in girlfriend to the policy. He nonetheless allowed her to drive his covered auto. While driving the covered auto, she was involved in an accident that injured a passenger in the other vehicle. The insurer denied coverage for the passenger’s subsequent suit.
The insurer also brought a declaratory judgment action to establish the validity and applicability of the unlisted resident driver exclusion. The Common Pleas Court upheld the exclusion. A divided Superior Court panel affirmed. The passenger and her husband appealed to the Supreme Court, which also upheld the exclusion.
The unlisted resident driver exclusion does not violate the compulsory insurance provisions of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1786(a), (f). That section speaks to the duties of the vehicle owner, not the scope of the insurer’s obligations to provide coverage for all conceivable permissive users of the auto. Further, the exclusion does not violate public policy. For a public policy challenge to an unambiguous policy provision to be successful, the proponent must rely upon some provision in the law, not simply upon general considerations of public interest. Considerations of cost containment remain a valid goal, but they need to be juxtaposed with the remedial objectives of the auto insurance legislation. The policyholder had the opportunity to add his girlfriend to the policy, but he opted for reduced premiums, and he is not entitled to receive gratis coverage. Moreover, in the absence of provisions in the MVFRL to the contrary, the insurer was not compelled to underwrite unknown and uncompensated risks.
Questions about this case can be directed to Louis Long, at (412) 926-1424 or firstname.lastname@example.org.
Knudsen v. Brownstein
Pennsylvania Superior Court
No. 2260 EDA 2018 (non-precedential decision)
Decided: September 9, 2019
Following a default judgment, a plaintiff is still required to provide evidence of causation between a defendant’s tortious conduct and the damages sought.
Plaintiff sustained a laceration to his leg while moving furniture in his apartment. Plaintiff subsequently sought medical advice from Defendant Khushman, a co-worker who had previously identified himself as a medical doctor and resident at Presbyterian Hospital Medical Center. Plaintiff alleged that upon Defendant Khushman’s advice, he did not seek medical treatment because the wound would heal naturally. Approximately 4 weeks after the injury, Plaintiff underwent a partial amputation of his foot, which he alleged was a result of following Defendant Khushman’s advice not to seek treatment. Plaintiff subsequently brought suit against Defendant Khushman, among others, and learned that this Defendant was not a physician licensed to practice medicine anywhere in the United States or abroad. Plaintiff obtained a default judgment against Khushman. (All other Defendants were dismissed). A trial went forward to determine damages as to Khushman. Plaintiff was the only witness to testify at the damages trial. He did not introduce any medical records, expert medical reports, or medical testimony. The Trial Court awarded Plaintiff no damages, as it determined that Plaintiff did not provide medical evidence to establish, which, if any, of Plaintiff’s injuries were the proximate cause of Defendant’s conduct. Plaintiff appealed.
The Superior Court agreed that “a plaintiff who obtains a default judgment in a tort action is not relieved of his obligation to provide evidence of casual connection between the defendant’s tortious conduct and the damages for which he seeks relief.” The Superior Court further noted that the facts of this case required expert medical testimony as to Plaintiff’s damages as it related to his initial injury and the subsequent amputation. However, the Superior Court did find that the Plaintiff had sufficiently presented evidence of his pain and suffering as it related to the progression of his leg injury and his delay in seeking professional medical treatment. The Superior Court remanded for a hearing on damages, narrowly limited to pain and suffering related to the advancement of the leg injury caused by Defendant Khushman’s advice to delay seeking additional treatment.
Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or email@example.com.
Hare v. Zaffino
Pennsylvania Superior Court
No. 1349 WDA 2018
Decided: August 28, 2019
“Hills and Ridges” doctrine applicable to snow removal contractor and heightened contractual duty owed to land owner does not create higher duty to Plaintiff.
Plaintiff Hare slipped and fell on the property of his employer during an active snow storm. There was a severe snowstorm the night before the fall. Pursuant to a snow removal contract, Zaffino was required to remove snow before 7:00 a.m. or when there was an accumulation of 3” or more. On the morning of the fall, Zaffino’s employee arrived and removed snow from 4:25a.m.-5:30 a.m., but left a portion of an unpaved cinder road unplowed. When Plaintiff arrived the snow was still falling, and he estimated that 5 ½ – 6” of snow was on the ground. When he walked on the unplowed section of the unpaved road, he fell and broke his leg. Plaintiff claimed that Zaffino was negligent in performing the snow removal duties.
On Motion for Summary jJudgment, Zaffino raised the doctrine of “hills and ridges”. Plaintiff argued that the “hills and ridges” doctrine was not applicable to the snow removal contractor, as it was not the land owner or occupier of the property and, alternatively, the contract between the snow removal contractor and land owner established a higher standard of care that Zaffino breached and which caused Plaintiff’s fall. The Trial Court held that the “hills and ridges” defense could be asserted by the snow removal contractor and was applicable to the facts of the case. The Court further determined that the contractual duty between Zaffino and the land owner did not obviate the applicability of the hills and ridges doctrine to plaintiff’s claim of negligence. The Court granted summary judgment to Zaffino.
The Superior Court summarily determined that the doctrine of “hills and ridges” was applicable as the snow removal contractor was considered the “occupier” of the land in the performance of the snow removal duties. The Superior Court further rejected the argument that the contract between the land owner and Zaffino established a higher duty of care to Plaintiff. The Superior Court explained that because Plaintiff was not a party to the snow removal contract, there was no legal basis to apply the alleged heightened duty in the contract upon Zaffino vis-a-vis Plaintiff. Without a legal basis to impose a heightened duty, the “hills and ridges” doctrine was applicable. Since it was undisputed that snow was falling and had not accumulated in “hills and ridges”, summary judgment was proper.
Questions about this case can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
St. Luke Inst., Inc. v. Andre Jones
Maryland Court of Special Appeals
September Term, 2018, No. 3331
Decided: September 12, 2019
When seeking a plaintiff’s confidential medical health records, the party seeking the records must show some connection between the records sought, the issue before the court, and the likelihood that information relevant to trial will be discovered.
In 2017, Andre Jones filed suit in the Massachusetts Superior Court, alleging, in part, that Brother Holmes repeatedly sexually assaulted and abused Jones while he was a child at the Nazareth Child Care Center in Massachusetts. Discovery revealed that in the 1990’s Brother Holmes underwent psychotherapy at St. Luke Institute, Inc. (SLI), located in Maryland. Psychiatric evaluations from SLI cautioned that Holmes exhibited signs of risk that should not be lightly dismissed and that he had not worked through his experience of being molested as a child.
Jones filed a request for an Order to Produce Mental Health Records. SLI opposed the request, arguing that the Circuit Court first needed to review the records to determine whether Holmes’ mental condition was at issue and whether this evidence was relevant. The Circuit Court ordered that the records be produced. It reasoned that evidence of Holmes’ propensity to sexually assault was known by Nazareth and was likely within the records sought. SLI filed a Motion for Reconsideration, which was denied. SLI filed a timely appeal with the Court of Special Appeals, requesting that the production of the mental health records be stayed pending the appeal. The stay was granted.
The Court of Special Appeals held that the Circuit Court did not err or abuse its discretion in ordering SLI to produce Holmes’ confidential mental health records. However, the Court stated that the Circuit Court was required to perform an in-camera review to ensure the production of only those portions of records the Court deemed relevant. It explained that records “not even arguably relevant and usable” should remain confidential and not subject to discovery.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or email@example.com.
NEW JERSEY CASE SUMMARY
Rowe v. Bell & Gassett Co.
New Jersey Supreme Court
No. A-16 September Term 2018, 081602
Decided: September 11, 2019
Supreme Court holds that evidence of non-party liability in asbestos litigation, including use at trial of non-party answers to interrogatories and deposition testimony, properly admitted for apportionment of non-party liability.
Plaintiffs filed an asbestos product liability suit alleging that Plaintiff Ronald Rowe contracted mesothelioma due to exposure to asbestos-containing products sold by each of the multiple Defendants. Defendant Bell & Gossett Co. asserted cross-claims against all other Defendants for contribution and indemnification. Plaintiffs settled their claims with the other Defendants, with only B&G as the remaining party for trial. Defendant B&G moved to admit excerpts from the settling Defendants’ answers to interrogatories and depositions. The Trial Court admitted the interrogatory answers as statements by a party and admitted some deposition testimony as statements by witnesses unavailable for trial. After reading the statements to the Jury, the Trial Court concluded that B&G had submitted sufficient proof to warrant allocation of fault to the settling Defendants. The Jury returned a verdict for Plaintiffs but allocated only 20 percent of the fault to B&G. The Trial Court denied Plaintiff’s Motion for Judgment Not Withstanding the Verdict (JNOV).
The Appellate Division reversed and remanded for a new trial on the issue of apportionment of fault, holding that admission of the settling Defendants’ statements was improper because the statements were not used against the settling Defendants nor was there evidence that the declarants were unavailable. B&G appealed.
The NJ Supreme Court reversed the Appellate Division and reinstated the Trial Court’s judgment. The Supreme Court ruled that excerpts from the settling Defendants’ interrogatories and from their corporate representative depositions were admissible as statements against interests. The Court found that these excerpts, in combination with other evidence at trial, was sufficient to establish a prima facie case that the settling Defendants bore some fault for Plaintiffs’ injuries. Accordingly, the Supreme Court held that the Trial Court properly submitted the issue of apportionment of fault to the Jury.
Questions about this case can be directed to Michael Bishop, at (908) 574-0557 or firstname.lastname@example.org.
DC CASE SUMMARY
Edwards v. Safeway, Inc.
District of Columbia Court of Appeals
Decided: September 19, 2019
D.C. Court of Appeals holds that admission of liability does not preclude introduction of evidence concerning how an incident occurred where the evidence is material and relevant to the question of punitive damages.
Fiona Edwards sued Safeway for various intentional torts alleging that she was detained, physically assaulted, and falsely accused of shoplifting on March 9, 2014, at a Safeway grocery store at the Hechinger Mall in Northeast Washington, D.C. After Safeway was granted summary judgment on several of Edwards’ claims, Edwards moved to amend her complaint to add a claim of negligence. The Trial Court denied Edwards’ Motion to Amend as untimely, leaving only one claim of conversion for trial. Prior to trial, Safeway admitted liability for the conversion claim and moved to exclude a surveillance video of the encounter between Edwards and store security. At the pretrial conference, Edwards requested a jury instruction on punitive damages. The Trial Court denied Edwards’ request for a punitive damages instruction and granted Safeway’s Motion in Limine, finding that the admission of liability made the manner of conversion irrelevant.
At trial, the Court prevented Edwards from presenting the surveillance video or any other evidence of how the incident occurred. The Trial Court also precluded Edwards from presenting any other evidence of punitive damage. The Jury awarded Edwards compensatory damages for her conversion claim. Edwards appealed the Trial Court’s decisions denying her Motion for Leave to Amend and precluding her from presenting the video and other evidence in support of her request for punitive damages.
The Court of Appeals affirmed the denial of Edwards’ Motion to Amend her complaint as untimely, but reversed the Trial Court’s rulings denying Edwards the right to present evidence(including the surveillance video) in support of recovery for punitive damages. The Court of Appeals found that the Trial Court erred in its opinion that “how [Safeway] converted these items . . . doesn’t matter,” and had abused its discretion in excluding the video. D.C. law has long allowed for recovery of punitive damages for conversion, and the Court of Appeals held that admitting liability should not result in the exclusion of evidence which would prevent a plaintiff from demonstrating how an incident happened where such evidence is material and relevant to the question of punitive damages.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or email@example.com.
VIRGINIA CASE SUMMARY
A.H. v. Church of God in Christ, Inc.
Virginia Supreme Court
2019 Va. LEXIS 92, 2019 WL 3821906
Decided: August 15, 2019
Plaintiff’s allegations of an employment relationship creates a rebuttable presumption that an employee was acting within the scope of his employment.
A church deacon was convicted of sexually abusing minors over the span of several years, including Plaintiff A.H. Plaintiff filed suit against multiple Defendants, including Defendant Church of God in Christ. Among the allegations against the Church was that it knew of a prior sexual abuse allegation against the Deacon and had done nothing to warn or protect A.H. The Church filed demurrers as to all counts asserted against it. Only the count of vicarious liability is addressed here. The Trial Court sustained the demurrer as to vicarious liability without leave to amend and Plaintiff filed an appeal.
As a general rule, there is no duty to warn or protect against acts of criminal assault by third parties. One exception to this rule is where a special relationship exists between the defendant and the third person which imposes a duty upon the defendant to control the third person’s conduct, such as in am employer-employee relationship. This duty is not absolute and exists only when the defendant could have foreseen the need to take affirmative action to protect the plaintiff from harm. The duty to protect arises if the danger is known or reasonable foreseeable; however, in no event is the employer an insurer of the plaintiff’s safety.
A rebuttable presumption that an employee was acting within the scope of his employment arises when the plaintiff alleges an employment relationship. This presumption shifts the burden of production to the employer to present facts sufficient to permit the factfinder to conclude that the employee was not acting within the scope of his employment. The tortious act must occur while the employee was performing a specific job-related service for the employer and must be within the scope of the duties of the employment and in the execution of the service for which the employee was engaged. The Virginia Supreme Court has not, to date, recognized a duty on the part of the employer to control his employee so as to prevent the employee from harming third parties and declines to recognize such a duty here. However, here, there were sufficient facts pled to survive the demurrer, and so the Trial Court’s decision on the vicarious liability count was reversed and remanded.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or firstname.lastname@example.org.