Monthly Archives: March 2014

It’s Not Over Until It’s Over After a PA Trial

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A three-judge panel of the Superior Court recently affirmed the grant of a new trial to a plaintiff whom the jury found to be at fault in the case.  The plaintiff, Gerald Remmert, was injured in a motor vehicle accident when defendant William J. Diaz’s pickup truck collided with his vehicle in the Port Richmond section of Philadelphia. The jury’s finding that Remmert was 51 percent negligent for the incident and Diaz 49 percent negligent barred Remmert from all recovery. Remmert untimely appealed the decision and requested, among other things, a new trial. His request was granted and ultimately upheld by the Superior Court.

In affirming the Philadelphia Court of Common Pleas decision to grant the plaintiff’s request for a new trial, the Superior Court rejected Diaz’s argument that the jury’s verdict was sufficiently supported by the evidence. The Superior Court reasoned that the testimony provided by the parties, as well as expert witness and accident reconstructionist Michael Berkovitz, did not support a finding that Remmert acted more negligently than Diaz.

The Superior Court was also willing to overlook the fact that Remmert’s request for a new trial was entered after the 30 day time limit specified in Rule 227.4 of the Pennsylvania Rules of Civil Procedure.  Despite the lack of a written agreement between the parties, the Superior Court permitted Remmert’s untimely request for a new trial based on an off-the-record sidebar discussion in which the parties agreed to extend the 30 day filing deadline.

Thanks to Sheri Flannery for her contribution to this post.  Please write to Mike Bono for more information.

Kentucky Fried Fall Slips Past Mode of Operation Rule (NJ)

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Defendants in premises liability actions often rely upon lack of notice of an allegedly hazardous condition as a defense.   In order to prevail, a plaintiff must prove that a commercial land owner knew or reasonably should have been aware of the existence of a hazardous condition.  However, a plaintiff need not establish notice under the  “mode of operation” rule, where the nature of the defendant’s business is such that the existence of hazards is reasonably foreseeable under the circumstances.  The recent appellate ruling in Prioleau v. Kentucky Fried Chicken, et al., further refines this controversial issue.

The plaintiff in Prioleau was a patron at a KFC restaurant on a very rainy day.  As she approached the restaurant’s restroom, she claimed to have slipped and fell on a combination of water and grease.  Over the defendant’s objection, the trial court judge charged the jury with the mode of operation rule, determining that the nature of the restaurant’s “fast food” business, which involved the use of oil fryers and heavy customer traffic, warranted the charge.  Following a verdict for the plaintiff, the defendant appealed, arguing that the jury charge was improper under the circumstances.

In granting the defendant’s appeal, the Appellate Division tracked the long history of the rule and its application.  The Court highlighted certain circumstances in prior cases where the mode of operation rule was applicable – such as string beans on the floor in the area of a self-serve produce department, grapes selected from a self-serve bin that fell in the check-out area, soda spills in a mall food court.   Central to these cases was the self-service nature of the commercial defendant’s business and the extent to which a customer was involved in the method of the defendant’s business operation.

Here, the Appellate Division found that there was no causal connection between the defendant’s status as a fast food restaurant and the nature of the plaintiff’s accident.  The Court reasoned that mode of operation liability cannot be imputed simply because a defendant is engaged in a particular type of business, but rather, each case must be determined based on the specific facts.  Importantly, the Court found that although the defendant incorporated oil in its food preparation, customers here, unlike grocery store patrons selecting produce from self-serve displays, are not involved in the essential business operation of food preparation.  The focus of the doctrine, the Court reasoned, is on the business model of the operation and the extent to which it relies upon self-service by a defendant’s patrons.

Thanks to Emily Kidder for her contribution to this post.  Please write to Mike Bono for more information.

Continuous Trigger Theory Remains Coverage Norm in PA Asbestos Cases.

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While only a non-binding trial court decision, the much publicized case of North River Insurance v. Mine Safety Appliances, et al., GD-10-7432, Allegheny County, PA, Hon. S. Wettick, is a detailed discussion of whether, in asbestos cases, the continuous-trigger coverage theory in Pennsylvania, first adopted in JH France v. Allstate, 534 pa. 29 (1993), remains good law. Specifically, in North River, Judge Wettick was asked to decide whether, since science no longer supports the idea that mesothelioma begins at first exposure to asbestos, insurance coverage should continue to attach at that first exposure and continue until disease manifestation. Judge Wettick ruled that the answer is “yes” and that, notwithstanding increased scientific understanding of mesothelioma, JH France remains good law.

In reaching this decision, Judge Wettick first discussed the four possible schools of thought as to when coverage attaches in mesothelioma cases. He described the four schools thusly:

Construction 1: Only the policies in effect on the date the claimant’s disease first manifests itself provide coverage.

Construction 2: Every policy in effect at any time the claimant was exposed to asbestos provides coverage; there is no coverage after the claimant was no longer exposed to asbestos.

Construction 3: Every policy that provides coverage at any time from the date of the initial exposure to the date of manifestation covers the entire claim

Construction 4: Same as Constructions 2 and 3 with the following modification: Each insurer is required to pay only a pro rata share of the insured’s liability to be determined by the duration of a claimant’s exposure to the insured’s products during the policy periods in relation to the entire duration of the claimant’s exposure to the insured’s product.

Consistent with JH France, Judge Wettick adopted “Construction 3” and ruled that the policy period for asbestos-related cancer extends from the date of initial exposure to manifestation of the disease. Thus, every insurer which was on the risk at any time during the development of a claimant’s asbestos-related disease has an obligation to indemnify. Judge Wettick ruled that this construction was most consistent with the insured’s reasonable expectations.

For more information about this post, please contact Bob Cosgrove at .

The More Things Change, the More They Stay the Same with the FSMA.

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Deadlines come and deadlines go and yet the new FSMA regulations (notwithstanding court orders) fail to materialize. Now, as the result of a new consent order — 2014-2-20-dkt-82-1–joint–consent-decree_26503 — (arising out of the prior litigation), new deadlines have been set. The new deadlines are:

a. Preventive Controls for Human Food (FSMA Section 103(a) and 103(c))
Final rule: August 30, 2015
b. Preventive Controls for Animal Food (FSMA Section 103(a) and 103(c))
Final rule: August 30, 2015
c. Foreign Supplier Verification Program (FSMA Section 301(a))
Final rule: October 31, 2015
d. Produce Safety Standards (FSMA Section 105(a))
Final rule: October 31, 2015
e. Accreditation of Third Party Auditors (FSMA Section 307)
Final rule: October 31, 2015
f. Sanitary Transport of Food and Feed (FSMA Section 111)
Final rule: March 31, 2016
g. Intentional Contamination (FSMA Section 106(b))
Final rule: May 31, 2016

We’ll have to see if these deadlines actually stick, but the bottom line is that, even if they do, there’s still a long way to go until the 2011 Congressional intent is realized. And, of course, there’s still that nagging issue of funding…

For more information about this post, please contact Bob Cosgrove at .