eNotes: Liability – October 2021
October 04, 2021
FEDERAL CASE SUMMARY
Cole v. Walmart Inc.
United States District Court for the Eastern District of Pennsylvania
2021 U.S. Dist. LEXIS 123371, 2021 WL 2695557
Decided: July 1, 2021
No constructive notice of the alleged hazardous condition on store floor as no record evidence of time alleged condition was on the floor.
Plaintiff slipped and fell in what she described as a “slime” substance while shopping in a Walmart store location. Plaintiff did not see the substance prior to her fall. She also did not see any employees in the general area prior to her fall, but did see several employees about thirty steps away gathered around a desk thereafter. Store personnel had completed a safety sweep of the area where Plaintiff fell sometime prior as a store employee testified that a group of children were creating “chaos” in the store. Photographs of the slime were taken, and the parties disputed whether the slime was disturbed and/or had track marks in it. The retailer moved for summary judgment arguing that the store did not have actual or constructive notice of the slime.
The District Court noted that neither party pointed to any record evidence that the store had “actual notice” of the condition and noted that the duty owed to the Plaintiff would depend on whether the store had “constructive notice” of the condition. The District Court found that (1) the mere presence of employees near the hazard did not establish constructive notice because plaintiff did not present any evidence as to how long the condition was on the floor such that an employee should have noticed it; (2) the lack of documentation pertaining to the store’s safety sweeps did not establish constructive notice because even a failure to follow store policy, by itself, would not establish a breach of the duty of care; (3) the photographs taken after the fall on the slime, depicting track marks, were immaterial because the jury would have to speculate as to whether the track marks in the slime were present prior to Plaintiff’s fall. As such, the District Court found that the record did not support a finding that the store had constructive notice of the slime and summary judgment was entered in favor of the retailer.
Questions about this case can be directed to Brook Dirlam at (412) 926-1438 or email@example.com.
PA CASE SUMMARIES
Brown v. City of Oil City
Pennsylvania Commonwealth Court
No. 337 C.D. 2020, 2021 Pa. Commw. LEXIS 534
Decided: September 1, 2021
A contractor can be liable to third persons who are injured by an artificial condition of the land created by the contractor after the possessor has accepted the work.
In 2011, the City of Oil City contracted with Additional Defendant Struxures and Additional Defendant Fred L. Burns to rebuild the concrete steps at the entrance to Oil City public library. Struxures was responsible for design and oversight of the project. Burns constructed the concrete steps and subcontracted to Additional Defendant Macon to install blue stone facing and cheek wall caps. Soon after completion, the concrete steps began to degrade. Oil City notified Struxures of the defective and dangerous condition of the steps on February 28, 2012 and subsequently notified Burns of defects in the work on September 12, 2013. Neither Oil City, nor its contractors, made any repairs to the steps or warned the public about the dangerous condition of the steps. On November 23, 2015, Plaintiff’s decedent fell on the steps and sustained severe head trauma. Decedent died six (6) days later.
Plaintiff filed a trespass Complaint against Oil City and the Oil Region Library Association alleging poor construction or maintenance of the library steps. Plaintiff later amended the Complaint to include the parties involved in the construction of the steps. Struxures and Burns each filed a Motion for summary judgment arguing that they owed no duty to Decedent as they were non-possessory contractors. The Trial Court granted the Motions and held that a contractor can be held liable in negligence to a third party after the contractor leaves the property only “if the contractor created a danger that was unlikely to be discovered by the possessor.” Plaintiff entered into a settlement Agreement with Oil City and, thereafter appealed the Court’s entry of summary judgment in favor of Struxures and Burns.
The Commonwealth Court noted that they are compelled to follow their own precedent whenever it conflicts with the precedent of the Superior Court. The Commonwealth Court precedent interpreting Section 385 of the Restatement (Second) of Torts differs from that of the Superior Court, and the Trial Court erred by applying Superior Court precedent. Commonwealth Court precedent indicates that a contractor who negligently creates an artificial condition that causes bodily injury can be liable for the injury “regardless of whether the contractor has surrendered possession of the land, and the work has been accepted.” Section 385 does not require that the defect be latent for liability to be imposed against the contractor. The fact that Oil City was aware of the defective steps was irrelevant to the liability of Burns and Struxures to third party users of the steps. The Order was reversed and remanded.
Questions about this case can be directed to Doug Keil at (412) 926-1428 or firstname.lastname@example.org.
Doe v. Bright Horizons Children’s Ctr.
Pennsylvania Superior Court
No. 1733 EDA 2020, 2021 Pa. Super. 183
Decided: September 10, 2021
Superior Court reviews transfer of negligence case pursuant to the forum non conveniens doctrine.
Parents of a Doe plaintiff brought this negligence action in Philadelphia County against a number of Bright Horizons Defendants and the Penn State University seeking damages for sexual abuse their child suffered at Creative Beginnings Child Care Center. The Child Care Center where the acts occurred was located in Berks County. The Bright Horizons Defendants moved to transfer the case to Berks County because, alongside the location of the acts and evidence, the Child Care Center would be unable to operate within state staffing requirements while nearly half of their staff named in the Amended Complaint would be needed at trial in Philadelphia. In contrast, the Berks County Courthouse is just moments from the Child Care Center, allowing for the continued operation of the facility.
The Trial Court granted the Motion and transferred the case to Berks County. The Plaintiffs timely appealed to the Superior Court.
The Superior Court affirmed the Order of the Trial Court. It held that the Trial Court operated within their discretion and appropriately considered the totality of the evidence including the residency of witnesses, the distance of travel between the two courthouses, and the impact of the travel time and teacher absence on the Child Care Center’s operation, and the children and parents who are affected by the Center’s staffing and operation. The Superior Court held that there was a reasonable evidentiary basis for the Trial Court’s Order transferring venue under Pa.R.C.P. No. 1006(d)(1), and affirmed the Order.
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or email@example.com.
Ramirez-Aguilar v. Sicinski
Pennsylvania Superior Court
No. 1476 EDA 2020, No. 1477 EDA 2020
Decided: September 9, 2021
Repeated failures to comply with discovery orders results in preclusion of evidence and dismissal of claim.
The motor vehicle accident at issue occurred in 2017, and Ramirez-Aguilar filed suit in May of 2019. Soon after, Sicinski sent Ramirez-Aguilar Interrogatories and Requests for Production of Documents. When Ramirez-Aguilar failed to respond, Sicinski filed a Motion to compel. Ramirez-Aguilar did not contest the Motion and was ordered to serve responses within 20 days. Ramirez-Aguilar did not comply, leading Sicinski to file a Motion for sanctions. The day before the scheduled hearing on the Motion for sanctions, Ramirez-Aguilar served his responses. However, Sicinski nonetheless pursued his Motion for sanctions because Ramirez-Aguilar provided few medical records with his responses, and none related to his post-accident treating physician. The parties agreed to an additional 30 days to respond, and Judge Shirdan-Harris ordered that if Ramirez-Aguilar again failed to comply, that Sicinski could seek preclusion of evidence upon further order. Ramirez-Aguilar again failed to comply. Sicinski thus filed a Motion for sanctions seeking to preclude Ramirez-Aguilar from testifying and presenting evidence at arbitration/trial. When Ramirez-Aguilar failed to appear at the hearing or otherwise respond to the Motion, Judge Shirdan-Harris granted the Motion for sanctions as uncontested and precluded Ramirez-Aguilar from presenting evidence. Sicisnki then filed a Motion for summary judgment which was assigned to Judge Patrick. Over two and half months later, Ramirez-Aguilar filed an untimely opposition to the Motion for summary judgment, along with a Motion to vacate Judge Shirdan-Harris’s preclusion Order. Judge Shirdan-Harris denied the Motion to vacate, and Judge Patrick granted the Motion for summary judgment.
On appeal, the Superior Court affirmed both Orders. As for the preclusion Order, the Court cited Pa.R.C.P. No. 4019, which permits a trial court to “make an appropriate order” if a party “fails to make discovery or to obey an order of court respecting discovery.” When determining whether to dismiss a cause of action as a discovery sanction, a court should consider: (1) the nature and severity of the violation; (2) the willfulness or bad faith of the noncomplying party; (3) the prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply. The Superior Court found that Judge Shirdan-Harris considered each of these five factors and that Ramirez-Aguilar did not show an abuse of discretion either in Judge Shirdan-Harris’s Order precluding him from introducing evidence at arbitration, or in denying his Motion to vacate. As for the Order granting Sicinski’s Motion for summary judgment, the Superior Court noted that, as it had already determined that Judge Shirdan-Harris did not abuse her discretion in denying the Motion to vacate the preclusion Order, it likewise rejected “Ramirez-Aguilar’s piggy-backed claim” that summary judgment was improperly granted on the basis of that Motion.
Questions about this case can be directed to Julia Morrison at (717) 441-7056 or firstname.lastname@example.org.
Duty v. Toyota Advanced Logistics
Pennsylvania Superior Court
No. 1453 EDA 2020
Decided: September 3, 2021
Superior Court affirms Philadelphia County Court of Common Pleas’ transfer of wrongful death case to York County on basis of forum non conveniens.
Plaintiffs’ decedent died after an HVAC unit fell from a pallet at a facility in York, Pennsylvania. Plaintiffs filed the matter in the Court of Common Pleas of Philadelphia County. Certain Defendants filed a Motion to transfer venue to York County based on forum non conveniens. The basis for transfer included: (1) the Decedent’s injury occurred in York County; (2) all 17 fact witnesses summoned to testify resided in York County; (3) all fact witnesses had been subpoenaed for depositions to take place in York or Dauphin County; (4) Decedent’s medical treatment occurred in York County; and (5) the HVAC unit was manufactured by Defendants located in York County.
The Court found the litigation to be overwhelmingly located in York County and found it not merely inconvenient, but oppressive, for Defendants to defend themselves in Philadelphia County. Thus, the Superior Court agreed with the Trial Court’s Opinion and, relying on controlling precedent, found that transfer based on forum non conveniens was appropriate because “the selection of a distant Philadelphia venue to litigate this purely York County matter [would have been] manifestly oppressive.”
Questions about this case can be directed to Michael Weinert at (610) 332-7025 or email@example.com.
Foster v. Sugarhouse Casino
Pennsylvania Superior Court
No. 1565 EDA 2020
Decided: September 2, 2021
Failure to effectuate service for 90 days after filing complaint is not a good faith effort sufficient to survive dismissal.
Plaintiff filed a writ of summons and later a Complaint seeking damages for injuries from a slip and fall accident. The action was commenced well within the statute of limitations, but the action was subsequently withdrawn without prejudice. Plaintiff then re-filed a Complaint within a week before the expiration of the limitations period. The Complaint was then reinstated three times and ultimately served after the third reinstatement. Defendant filed Preliminary Objections claiming that Plaintiff failed to provide timely notice of the new lawsuit. The Trial Court sustained the Preliminary Objections and dismissed the Complaint with prejudice, concluding that Plaintiff failed to make a good faith effort to effectuate service.
The Superior Court noted that a plaintiff must make a good faith effort to effectuate service. The Court further noted that where a plaintiff fails to establish a good faith effort at service, dismissal will only be evaded “if she can establish that the defendant had actual notice of the action; she must not have acted intentionally to stall the litigation process; and the defendant suffered no prejudice from the lack of formal service before the limitations period ended.” In the case before it, the Superior Court affirmed the Order dismissing Plaintiff’s Complaint with prejudice because the evidence clearly showed a lack of good faith effort to notify the Defendant of the commencement of the second action. The Superior Court further agreed with the Trial Court’s conclusion that the Defendant did not have actual notice of the second action. Accordingly, dismissal was warranted regardless of whether the Defendant suffered prejudice due to the untimely service.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or firstname.lastname@example.org.
Gollick v. Sycamore Creek Healthcare Group
Pennsylvania Superior Court
No. 1068 WDA 2020, 2021 Pa. Super. Unpub. LEXIS 2021
Decided: July 29, 2021
Superior Court holds that arbitration agreements signed by a Power of Attorney are valid and encompass survival actions.
Plaintiff filed an action for wrongful death, survivorship, professional negligence and corporate negligence against the nursing home in relation to the death of Decedent Gollick. Defendant filed Preliminary Objections, arguing that Plaintiff’s claim was subject to mandatory arbitration pursuant to an Arbitration Agreement signed by Plaintiff as Power of Attorney for Ms. Gollick. Plaintiff argued that the Power of Attorney agreement did not grant Plaintiff the authority to waive Ms. Gollick’s right to decide whether her case would be decided by a jury rather than through arbitration. Defendant Sycamore Creek Healthcare Group appealed, following the Trial Court’s decision denying its Preliminary Objections.
The Superior Court reversed and remanded the survival action to arbitration, holding that (1) the Arbitration Agreement entered into by the Power of Attorney was valid, and (2) Pennsylvania’s public policy favoring arbitration, in combination with the Federal Arbitration Act, permits the bifurcation of wrongful death claims and survivor actions and allows the action to be determined as two separate actions in two separate forums: the wrongful death claim being subject to a jury trial and the survivor action being subject to arbitration under a valid arbitration agreement.
Questions about this case can be directed to Katherine Prudente at (267) 861-7572 or email@example.com.
MD CASE SUMMARY
CX Reinsurance Co. v. Johnson
Maryland Court of Special Appeals
2021 Md. App. LEXIS 774
Decided: September 7, 2021
Injured tort claimants are intended third-party beneficiaries of their tortfeasors’ insurance policies and their rights to enforce the insurance policies vest at the time of their injuries.
Plaintiffs were allegedly exposed to lead paint while residing in homes owned by certain landlords in the late 1990s and early 2000s. These landlords held general liability policies from CX Reinsurance Limited Company. CX issued subsequent renewal policies through what would later become Liberty Mutual. In 2015, CX sued the landlords in Federal Court in Maryland, seeking rescission of the policies on the grounds that the landlords had made fraudulent misrepresentations in their insurance applications. Ultimately, CX and the landlords entered into the Rescission Settlement Agreements, which reduced, but did not completely eliminate the insurance coverage afforded by the policies.
Thereafter, Plaintiffs filed a Complaint in the Circuit Court for Baltimore City, seeking a declaratory judgment against the insurers. Plaintiffs sought a declaration that they were intended third-party beneficiaries of the insurance policies and that the Rescission Settlement Agreements had no legal effect on their vested rights to enforce the policies. Following a Motion and a Cross-Motion for summary judgment, the Circuit Court declared that Plaintiffs were intended third-party beneficiaries of the policies and that the Rescission Settlement Agreements did not affect Plaintiffs’ rights in the policies. The Circuit Court found that Plaintiffs’ rights in the policies vested at the time of injury, before the landlords and the insurers executed the Rescission Settlement Agreements.
The Maryland Court of Special Appeals affirmed the decision of the Circuit Court. The Appellate Court held that Plaintiffs were intended third party beneficiaries of the liability policies held by the landlords. These Plaintiffs were intended beneficiaries as a matter of law, regardless of whether they had obtained judgments or settlements. Plaintiffs’ rights to enforce these policies vested when they were injured on their landlords’ properties in the late 1990s and early 2000s. The 2015 Rescission Settlement Agreements between the landlords and the insurers did not modify Plaintiffs’ vested rights in the policies.
Questions about this case can be directed to Andrew White at (443) 641-0572 or firstname.lastname@example.org.
DC CASE SUMMARY
Selective Ins. Co. v. Moseley Constr. Group
United States District Court for the District of Columbia
2021 U.S. Dist. LEXIS 142147
Decided: July 30, 2021
The implied covenant of good faith imposes upon a surety a duty to act reasonably in the settlement of claims.
Moseley Construction Group entered a contract to construct a Housing Facility. MCG and numerous subcontractors executed an Indemnity Agreement with Selective Insurance agreeing to issue payment and performance bonds, as surety, on behalf of MCG for the project. Pursuant to the agreement, MCG and affiliates agreed to indemnify Selective for any losses that Selective sustained on the construction project. The agreement did not restrict Selective’s right to reimbursement to those payments made in “good faith” or otherwise limit Selective’s discretion to settle claims. After the project’s completion, Selective received claims against the payment bond from numerous obligees. MCG, and many affiliates, did not indemnify Selective for these payments, disputing whether Selective undertook a good-faith investigation and raised adequate defenses to payment.
Selective filed suit for contractual indemnity, and subsequently filed a Motion for summary judgment. Defendants asserted that genuine disputes of material fact exist regarding Selective’s settlement of the claims, arguing that the Indemnity Agreement contains an implied duty of good faith and fair dealing, which Selective breached by unnecessarily paying claims to which Selective had viable defenses. While Selective asserted that the Indemnity Agreement only prevents claims payments made through fraud or lack of good faith, Defendants contended that the implied covenant of good faith imposes upon a surety the duty to act reasonably in the settlement of claims.
The U. S. District Court for the District of Columbia, in the absence of controlling District of Columbia authority, looked to Maryland common law to determine that the good faith standard allows the surety a discretion limited by the bounds of reasonableness, rather than by the bounds of fraud. Under this standard, if a surety unreasonably pays for an obligee’s work that is not covered under a payment bond, then the surety should not be entitled to indemnification from the principal. In determining reasonableness, the Court looks to the obligations of the surety as provided by the terms, whether the principal has made more than generalized demands that the surety deny the claim, the cooperation, or lack thereof by the principal, and the thoroughness of the investigation performed by the surety. As a result, the Court granted summary judgement on some of Selective’s claims, where the Court judged that there was no genuine dispute of material fact that it acted reasonably.
Questions about this case can be directed to Nicholas Schaufelberger at (202) 945-9502 or email@example.com.
VA CASE SUMMARY
Estate of Lawson v. FCA US, LLC
United States District Court for the Western District of Virginia
2021 U.S. Dist. LEXIS 158808, 2021 WL 3727236
Decided: August 23, 2021
In a products liability action, an automobile was not unreasonably dangerous when its engine did not automatically shut off after the driver exited the vehicle.
Mr. Lawson owned a 2016 Dodge Journey, which was equipped with a push button ignition system activated by a key fob. On the night of July 17, 2017, Mr. Lawson parked his car in his basement garage, but left the engine running. With the key fob in his pocket, Mr. Lawson went upstairs into his home and was later overcome by carbon monoxide while he slept and died from carbon monoxide poisoning.
Mr. Lawson’s Estate filed suit against the automobile manufacturer alleging that the vehicle was unreasonably dangerous because the engine did not automatically turn off after a certain period once Mr. Lawson removed the key fob from the car. The manufacturer moved for summary judgment arguing that the Estate failed to present evidence that the vehicle was unreasonably dangerous, because it did not conform to a government standard, industry norm, or the reasonable expectations of consumers.
The Court granted the automobile manufacturer’s Motion for summary judgment and dismissed the case. The Court explained that, in a products liability case, the plaintiff must show that a product contained a defect that rendered it “unreasonably dangerous for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose and that the unreasonably dangerous condition existed when the product left the seller’s hands.” To prove that an unreasonably dangerous defect exists, a plaintiff must show a violation of industry or government standards or prove that consumer expectations have risen above such standards. The Court noted that neither the government nor industry standards required cars with keyless ignition systems to automatically shut off after a period of time once the key fob leaves the car. Further, the Court found that, while several automobile manufacturers began utilizing automatic shutoff features and that the manufacturer in this case was aware of customer complaints of keyless ignition cars running while the fob was removed, there was recent independent research that consumers did not expect their keyless ignition vehicles to shut off automatically. As such, the Court ruled that there was no genuine issue of material fact that the automobile was unreasonably dangerous when manufactured and sold.
Questions about this case can be directed to John Dunnigan at (804) 566-3571 or firstname.lastname@example.org.