Category Archives: Pennsylvania

Dismantling The Designated Ongoing Operations Exclusion

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In Tuscarora Wayne Ins. Co. v. Hebron, Inc., the Pennsylvania Superior Court analyzed when a policy’s Designated Ongoing Operations Exclusion may be triggered.  In brief, a fire occurred at the insured’s property, when a driver was pumping gas into a vehicle at the insured’s location.  The fire caused damage to the insured’s property, and the surrounding neighbors’ property as well.  The insured’s policy excluded coverage under its Designated Ongoing Operations Endorsement for ongoing operations including “vehicle dismantling”.  On the basis of this exclusion, the insurer commenced a declaratory judgment action seeking a declaration that the policy did not provide coverage for the claimed damages.  On summary judgment, the trial court ruled in favor of the insurer.

On appeal, the insured argued the trial court erred in finding that refueling a vehicle fell within the policy’s language of “vehicle dismantling”.  The Superior Court agreed with the insured.  As the phrase “vehicle dismantling” was not defined by the policy, the court looked to the ordinary meaning of the phrase, which generally involved stripping vehicles of their parts.  Thus, since the only connection the claimed damages had with “vehicle dismantling” was the fact that the fuel, which started the fire, was being pumped into vehicles that had been dismantled, the Superior Court believed this connection was insufficient to trigger the policy endorsement.

Accordingly, this case reveals, Pennsylvania courts will look to the actual operations being performed to determine whether there is a close enough link, as to trigger a policy’s Designated Ongoing Operations Exclusion.

Thanks to Colleen Hayes for her contribution to this post.

Insufficient Evidence on Aisle 5 (PA)

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On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim.

Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident.

Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian GIbbons with any questions.

PA Court Dismisses Supermarket Slip & Fall Suit

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The Pennsylvania Superior Court recently affirmed a trial court’s granting of summary judgment in favor of the defendant grocery store in a slip and fall case.  In Barrios v. Giant Food Stores, plaintiff Rocio Barrios appealed the December 14, 2017 order granting of Giant’s motion for summary judgment.

On June 8, 2011, Barrios claimed that she was shopping at a Giant grocery store when she slipped and fell on a transparent wet substance in the aisle.  Employees from Giant admitted that they saw an orange-sized pool of clear liquid on the floor immediately following Barrios’ fall, however they were not certain of the origin.  Barrios alleged that the liquid was the result of a meat refrigerator case that was leaking, as her fall occurred near the end of the meat aisle. Surveillance video confirmed that Barrios fell near the end of the meat aisle and that, after being alerted to her fall, Giant employees came to her assistance and cleaned the liquid with paper towels.

The Superior Court explained the standard in Pennsylvania that, in order to recover damages in a slip and fall case, the plaintiff must prove that the store owner deviated from his duty of reasonable care under the circumstances and that the store owner knew or should have known that the harmful condition existed.  Furthermore, the plaintiff must show that the store owner either helped to create the harmful condition or had actual or constructive notice of the condition.  In this case, Barrios alleged that liquid came from a leaky meat refrigerator, and also cited repair records produced by Giant which showed that the meat refrigerator had been serviced by a repair company on April 26, 2011; June 10, 2011; and June 24, 2011; as support for her assertion that Giant had actual notice of the dangerous condition.

The court reasoned that, even viewing the facts in the light most favorable to Barrios, the mere presence of water on the floor does not prove that it came from the meat refrigerator.  Furthermore, even if the water on the floor came from the meat refrigerator, Barrios did not show that Giant had notice of the dangerous condition with adequate time to correct it.  Barrios presented evidence of a repair order two months before her fall that was unrelated to any leaking issue, and also repair records for two dates after her fall.  As the court pointed out, the fact that the meat refrigerator was serviced after Barrios’ fall did not constitute evidence that Giant had notice of a leak before Barrios fell.  Thus, the court concluded that Barrios’ theory relied on conjecture and speculation, and affirmed the trial court’s granting of summary judgment in favor of Giant.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Hills and Ridges Doctrine Prompts Dismissal of Suit (PA)

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On October 15, 2018, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant Jeanne Coker in Seibert v. Coker.  The case stems from a patch of black ice on Coker’s property which allegedly caused plaintiff to slip-and-fall and injure herself.

On February 6, 2014, T. Seibert slipped on a patch of black ice as she was departing from her home visit to Coker.  In Pennsylvania, the “hills and ridges” doctrine protects landowners from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the ice and snow to unreasonably accumulate in ridges and elevations.  Thus, in order to recover for a fall on an ice or snow covered surface, a plaintiff must prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.  T. Seibert attempted to claim that Coker had constructive notice of the patch of ice, however, she produced no evidence to support this point.  As such, the trial court granted summary judgment in favor of Coker and the Plaintiffs’ subsequently appealed.

On appeal, Plaintiffs’ claimed they produced enough evidence to survive summary judgment, but the Superior Court held that no evidence had been produced to support Plaintiffs’ accusation that Coker had notice, actual or constructive. of the black ice.  As such, the Superior Court affirmed the dismissal.

This case highlights the high burden that the hills and ridges doctrine imposes on plaintiffs in Pennsylvania, and the difficulty of proving constructive notice in such cases.  As such, focusing on this particular element is crucial in determining whether a summary judgment motion is appropriate early on in a slip-and-fall case.  Thanks to Garrett Gitler for his contribution to this post.   Please contact Brian Gibbons with any questions.

PA- Policyholder Not Entitled to Uninsured or Underinsured Motorist Coverage When Injured    in Work Vehicle.  

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In Erie Insurance Grp. v. Catania, in August 2009, Jack Catania was driving a delivery truck for work when he swerved to avoid another vehicle.  In doing so, he lost control of his truck and suffered injuries.  The other vehicle fled the scene.  Catania had a personal policy with Erie at the time.  Because the other driver fled, the other vehicle was considered an uninsured motor vehicle, and Catania made a claim for uninsured motorist coverage with Erie.

Erie filed a declaratory judgment action to determine it was not obligated to provide uninsured or underinsured motorist coverage for an employee who was injured while driving a work vehicle and subsequently made a claim under his personal insurance policy.  The court held Erie did not have to provide coverage because the work vehicle fit the “regularly used non-owned vehicle” exclusion contained in that policy.   While Catania regularly used the truck, he did not own it.  As a result, it was excluded under Catania’s personal policy with Erie.

Thanks to Robert Turchick for his contribution to this post.

 

PA-No Extrinsic Evidence For You

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In Lupa v. Loan City, LLC, the Third Circuit Court of Appeals confirmed the standard upon which an insurer’s defense obligations are triggered under Pennsylvania law.

In Lupa, the insured sought coverage from its insurer for various claims asserted against it.  In response to the insured’s request for defense, the insurer denied the insured’s claim, contending the complaint against the insured did not trigger coverage under the policy.  On appeal, the insured contended that the four corners rule should not be applied to determine coverage under a policy.  The Court of Appeals disagreed.  The court held that, under Pennsylvania law, an insurer’s duty to defend could only be triggered by allegations within the four corners of the complaint.  The court continued that there were no exceptions to this rule, which would require an insurer to rely on facts introduced outside of the complaint, i.e. extrinsic evidence.

Accordingly, this case confirms that courts applying Pennsylvania law will apply the four corners test to determine whether an insurer’s obligation to defend has been triggered.

Thanks to Colleen Hayes for her contribution to this post.

 

Definition of “Premises” Defines Extent of Coverage (PA)

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A Pennsylvania federal court recently decided whether a landlord’s insurer can shift a shopping center’s responsibility in a slip and fall case to a tenant’s insurer, in Liberty Mutual Insurance Co. v. Selective Insurance Co. of America, case number 2:16-cv-00759, U.S. District Court for the Eastern District of Pennsylvania.

In this case, the plaintiff was injured while tripping on an allegedly defective sidewalk outside of Business 21 Publishing LLC, a tenant of Stoney Creek Center.  The plaintiff, an employee of Business 21, ultimately sued Stoney Creek Center and received a confidential settlement.  Stoney Creek Center’s insurer sought reimbursement from Business 21’s insurer for costs associated with defense and settlement of the suit, believing it was an additional insured under its policy.

Business 21 held a liability policy that extended additional insured status to companies that owned and operated the shopping center for claims of bodily injury involving premises owned or used by Business 21.  Stoney Creek Center believed it was an additional insured under Business 21’s policy, taking the position that “premises” included both internal offices and outside common areas.

In deciding whether additional Stoney Creek Center is owed insured status, the court turned its focus on the meaning of the word “premises” as used in the additional insured endorsement of Business 21’s policy.  The judge decided that Business 21’s lease agreement with Stoney Creek Center defines the word “premises” and not the policy.  The judge ruled that the terms of the lease agreement make a clear distinction between Business 21’s internal office space and its right to use the outside common areas, demonstrating that Business 21 intended for “premises” to solely mean its internal offices and not outside common areas such as the walkways and parking lot, thus determining that there was no additional insured coverage owed.

Thanks to Chelsea Rendelman for her contribution to this post.

Stop Signs are Self-Explanatory, Unless They Disappear (PA)

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On September 7, 2018, the Superior Court of Pennsylvania reversed an entry of summary judgment in favor of Jeff and Jolie Hine in Estate of Jeff S. Hine v. Pennsy Supply Inc.  The case stems from an automobile accident involving Mr. Hine and Michelle Dulay, in which Dulay drove her vehicle through the intersection of Parkview Circle and North Empire Court in Wilkes-Barre, PA and crashed into Mr. Hine’s car.  Following the accident, the Hine’s filed suit against Dulay and Pennsy Supply Inc. (“Pennsy”) who the Hines claimed had removed a stop sign at the intersection.

Prior to trial, the Hines and Dulay came to an out-of-court settlement and all claims against Dulay were withdrawn.  Subsequently, Pennsy filed a motion for summary judgment claiming that the record was devoid of evidence that it had removed the stop sign which would have potentially prevented Dulay from entering the intersection without stopping.  On June 5, 2017, the trial court granted Pennsy’s motion for summary judgment as it claimed the record was devoid of evidence that Pennsy had removed the stop sign.

The Hines then filed this appeal arguing that there is a genuine issue of material fact that Pennsy was negligent when it removed and then failed to replace the stop sign at the intersection.  First, the court noted that Pennsy was the prime contract for the construction work going on around the intersection and therefore if a stop sign was removed it would be responsible.  Furthermore, part of the project involved installing an ADA compliant ramp at the very spot where the stop sign was located.  This fact was backed up by testimony from Mr. Hine as well as Wilkes-Barre Police Sergeant Thomas Harding.  Finally, Attilio “Butch” Fratti, the Director of Operations for the City of Wilkes-Barre had reviewed a construction “punch list” which was prepared by PennDOT three months after the accident indicated that Pennsy had removed the stop sign.  Fratti indicated that Pennsy had never contacted the City to request removal of the stop sign per City requirements.

The Court noted that regardless of whether a stop sign existed at the intersection, Dulay still had a legal duty to yield the right-of-way to Mr. Hine under Pennsylvania law.  However, the Court felt that the record indicated that Dulay was not aware of her legal obligation to yield the right-of-way to Mr. Hine.  The stop sign at the intersection existed to ensure that drivers, who might not know all Pennsylvania traffic rules, stop at intersections and prevent accidents.  As such, the Court reversed the trial court’s entry of summary judgment.  Thanks ti Garrett Gittler for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.

Under PA Premises Law, to be an Invitee Requires an Invitation

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The Pennsylvania Superior Court recently affirmed a trial court’s defense verdict after a resident in a townhome community brought an action against the homeowners association after she tripped and fell on branches located on the steps to a common area.

In Hackett v. Indian Kings Residents Association, 2018 PA Super 240, No. 3600 EDA 2017, Hackett appealed the jury verdict that declared IKRA was not negligent following a two-day trial.  Hackett claimed that, in January 2013, she fell on branches that were on the steps of a common area leading to her townhouse in the Indian King residential community, causing her to undergo three surgeries over the next two years.  The jury returned a verdict of “no negligence” on behalf of IKRA.  On appeal, Hackett raised the issue that the trial court erred in charging the jury that she was a licensee over her objection and assertion that she was an invitee with regard to the common area.

The Superior Court began its opinion by explaining the fundamental principle under tort law, that, in order for liability to be imposed upon a defendant, the plaintiff must first establish the presence of a duty incumbent on the defendant.  Pennsylvania, in adopting the Restatement (Second) of Tort’s approach, has established that a landowner’s duty toward a third party is dependent upon whether the third party is a trespasser, licensee or invitee.  Because Hackett was a resident of the residential community, neither party argued that she was a trespasser in this scenario.  Therefore, the court analyzed the difference between the designation as a “licensee” versus a “invitee.”

A licensee is a person who is privileged to enter or remain on the land by virtue of the landowner’s consent – the entrant is there for her own purposes and the landowner has no interest in the third party’s entrance onto the land.  Essentially, a licensee is present on the property by virtue of the permission of the landowner.  An invitee on the other hand, is basically divided into two sub-categories – a business invitee or a public invitee.  A business invitee in one who is invited to enter or remain on the land for a purpose directly or indirectly connected to the business dealings of the landowner.  A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public by the landowner.

Hackett argued that she was an invitee because IKRA’s is property manager who is responsible for keeping the common areas safely maintained.  Thus, her payment of maintenance fees to IKRA rendered her an invitee.

But the Superior Court concluded that Hackett was a licensee when she entered the common area.  First, the court noted that Hackett was not a business invitee who entered the common area for the purpose of conducting business with IKRA.  Second, the court determined that Hackett was not a public invitee and in so doing the court articulated the distinction between permission and invitation which helps to highlight the difference between licensee and invitee.  The court noted that permission is different (and lesser) than invitation in this context – an invitation is conduct which justifies others in believing that the landowner desires the entrant to enter the land, whereas permission is conduct justifying others in believing that the landowner is willing that the entrant may enter the land if the entrant desires to do so.

While the line between invitation and permission may seem like a fine one, the court explained that mere permission is sufficient to make a visitor a licensee, however it is not sufficient to make the visitor an invitee.  The court noted that IKRA granted all tenants permission to enter the common area as they pleased, however nothing in the tenants’ lease agreements could be interpreted as a specific invitation to use the common area.  Furthermore, the court stated that no particular fees or dues were paid by the residents in order to enable them to use the common area. Ultimately, when Hackett fell, she was in the common area because she had longstanding permission by IKRA to come and go as she pleased; but she was not present in the common area by virtue of any invitation or specific purpose connected to IKRA.  Therefore, she was properly designated as a licensee and the trial court verdict was affirmed. Thanks to Greg Herrold for his contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.

Uber Dodges Lawsuit, For Now (PA)

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In Fusco v. Uber, three days before Christmas, Cabrini College director of public safety Joseph Fusco attended a holiday party in University City. Around 11:00pm he requested an Uber to take him to his home in Cherry Hill, New Jersey. Uber drivers do not know the destination until they pick up the passenger; therefore, it was not until Fusco got inside the vehicle that the driver learned that Fusco’s destination was in New Jersey. The driver refused to take Fusco to the destination and after an exchange of words, the driver physically removed him from the car, assaulted him, and left him unconscious on the sidewalk with multiple broken bones and teeth.

Fusco filed a Complaint against Uber Technologies in the Eastern District of Pennsylvania that included claims for negligent hiring, retention, and supervision related to the assault.  Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania dismissed Fusco’s suit stating that Fusco’s factual pleadings could not raise the inference that Uber Technologies was liable for those claims. Under the theories of negligent hiring, retention, and supervision, a plaintiff must show that the employee’s prior bad acts would have put a reasonable employer on notice of the employee’s propensity to injure others. However, Plaintiff’s Complaint did not allege any instances of past misconduct by the driver, and only generally alleged that the driver was unqualified and dangerous. These allegations were not sufficient to find that the driver was unusually prone to violence, such that an employer would have been dissuaded from hiring him.

However, Judge Goldberg did give Fusco a chance to amend his claims. Judge Goldberg also noted that at oral argument, counsel for both parties advised that, after Fusco filed his Complaint, news outlets reported that the driver had a prior criminal conviction.  But, because Fusco did not allege this in his Complaint, Judge Goldberg deferred his consideration of the driver’s past conviction until Fusco amends his Complaint.  Then, assuming discovery commences, Uber will find itself in a dubious position:  what did Uber know (about the driver) and when did Uber know it?   Thanks to Melisa Buchowiec for her contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.