Category Archives: Pennsylvania

It’s Not Enough Just to Prove Negligence – Causation is Key (PA)

Posted on by

On December 7, 2018, the Superior Court of Pennsylvania reversed a grant of post-trial relief in favor of plaintiff in Koziar v. Rayner.  

The case stems from a slip-and-fall which occurred on the property of Neal and Andrea Rayner.  Koziar worked as a house cleaner for the Universal Group, and was assigned to clean the Rayner’s home. She and her co-workers finished cleaning between 7:00 pm and 7:15 pm and proceeded through the laundry room of the house into the attached three-car garage.  She testified she was unfamiliar with the area and that she fell and injured her ankle on a lip while exiting the garage.  However, she provided conflicting stories of her accident to her treating physician all of which was documented in his reports.

At trial, the Rayner’s argued that the alleged “lip” between the garage apron and garage floor was in good condition and that they were not negligent. After hearing testimony from both parties, the jury returned a verdict that the Rayner’s were negligent, but their negligence was not a factual cause of the harm to Koziar. 

Following the verdict, Koziar filed a motion for post-trial relief which was granted as the trial court determined that once the Rayner’s were deemed negligent and only Koziar’s uncontested medical evidence was presented, the jury’s finding thatthe Rayner’s were not the factual cause of Koziar’s injuries defied logic.

As such, the Rayner’s appealed arguing that, while theyconceded that Koziar suffered an injury based on the medical evidencepresented, they did not concede that their negligence was the factual cause ofKoziar’s injury.  In reversing the trial court’s grant of post-trial relief, the court indicated that the fact that there was uncontroverted medical evidence does not relieve the plaintiff from proving that the negligence of the Rayner’s caused Koziar’s injuries.  The court noted that Koziar provided multiple accounts of how she fell and the jury could have found one or more of them credible.  Therefore, the jury’s verdict did not defy logic, but the trial court’s grant of post-trial relief in this matter certainly did.  Every element of negligence must be proven and there’s no short-cuts if there’s negligence and damages but no causal connection.

Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

 

The Customer is Sometimes Wrong (PA)

Posted on by

In Thomas v. Family Dollar, the plaintiff was shopping in the Family Dollar store when she slipped on a thick, yellow substance next to a broken glass bottle.  She filed a complaint in state court, but it was removed by the defendant to federal court.

Plaintiff alleged that the Family Dollar was negligent in breaching its duty to keep its premises clear of substances on the floor.  The Family Dollar moved for summary judgment, arguing that the substance was an open and obvious condition and it owed the plaintiff no duty of care.

In deciding on the motion for summary judgment, the court noted that it was uncontested that the plaintiff was a business invitee, and that Pennsylvania law limited the duty of care owed to business invitees.  Plaintiff acknowledged that there were no visual obstructions surrounding the liquid that would have concealed it from her view, but argued that she was otherwise focused on the products displayed on the shelves.  The Court, however, stated that it was Hornbook law in Pennsylvania that a person must look where she is going and further noted that other Pennsylvania courts have rejected plaintiff’s argument.  The Court observed that although a lesser degree of attention was required of customers in stores than those walking along sidewalks, the general rule still applies that where one is injured as a result of a failure on her part to observe and avoid an obvious condition, she would not be heard to complain.

The Court found that the substance that plaintiff slipped on posed an obvious condition and its danger should have been readily apparent to a person exercising normal perception and judgment.  Therefore, the Court found that the Family Dollar had no duty to plaintiff, and granted its summary judgment motion.  The Court further noted that the plaintiff failed to prove that the Family Dollar had adequate notice of the condition to breach a duty of care. Thanks to Alexandra Perry for her contribution to this post.  Please email Brian Gibbons with any questions.

Does An Email Exchange Constitute Enforceable Settlement Agreement? (PA)

Posted on by

In Hatchigan v. Kaplin, the Pennsylvania Court of Common Pleas analyzed whether an email exchange resulted in an enforceable settlement agreement.  In brief, the plaintiff filed a lawsuit.  Subsequently, following an exchange of telephone conversations, defense counsel sent an email to the plaintiff offering a settlement amount and also sought a general release and dismissal of the plaintiff’s lawsuit.  Plaintiff’s counsel responded to the email stating “Agreed and accepted.  Plaintiff will end, discontinue, settle accordingly to the defendants’ conditions …”.

In response to the plaintiff’s email, defense counsel drafted a release, noting that the settlement was based on the prior exchange of emails, which the plaintiff signed.  Upon receipt of the signed release, defense counsel requested that plaintiff have his signature notarized.  At which time, the plaintiff advised he no longer agreed to the settlement.  The defendants moved to enforce the settlement.  Ultimately, the court found the agreement to be enforceable.  The court reasoned that in their emails the parties agreed on the essential terms of the settlement, which formed a valid and enforceable contract.

Accordingly, this case reveals that Pennsylvania courts may look to the communications between parties to determine if an enforceable settlement has been reached.

Thanks to Collen Hayes for her contribution to this post.

 

Hills and Ridges Doctrine (PA)

Posted on by

Winter can be dreadful to some people especially with the accumulation of snow.  In Smith v. Riverside, the Court invoked the hills and ridges doctrine to disclaim liability for a slip and fall.  In Smith, the plaintiff slipped and fell on ice when he walked up the ramp at the entrance to the Riverside Rehabilitation Center.  A severe snowstorm had begun as plaintiff traveled to Riverside and was ongoing at the time of the accident.  The Plaintiff argued that the Defendant negligently allowed snow to accumulate on the property.  The Defendant filed for summary judgment based on the hills and ridges doctrine which is an exception to negligence liability.

In Pennsylvania, to establish a negligence claim the plaintiff must demonstrate: (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 travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.  Rinaldi v. Levine, 176 A.2d 623, 625 (Pa. 1962).  The hills and ridges doctrine protects the owner or occupier of land from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the snow and ice to unreasonably accumulate in the ridges or elevations. Harmotta v. Bender, 601 A.2d 837.  The rationale behind the hills and ridges doctrine is that requiring one’s walkways to be always free of snow and ice would impose an impossible burden in light of local climatic conditions during the winter.

The Court found that the hills and ridges doctrine applied because the snowfall was ongoing when the accident occurred, further, because there was no evidence that the Defendant had let the snow unreasonably accumulate.  In the winter months it is important for insureds to evaluate the weather conditions and the condition of their property to invoke this doctrine to escape liability.  Here, the Court was persuaded by the fact that the storm was still ongoing which bolstered the Defendant’s claim that it acted reasonably with regard to snow removal.

Thanks to Malik Pickett for his contribution to this post.

Appellants’ Failure to Object at Trial Costs Them Appeal (PA)

Posted on by

The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict.  In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury.

In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA.  Showers complained of right leg and knee pain, however she continued to shop.  A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee.  She underwent arthroscopic surgery for a torn meniscus.

At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk.  Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club.  The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers.

Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering.  Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering.  The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering.

Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference.  Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given.  Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion.  Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection.

It is often said that trial objections are like flags — they are either raised or “waived.”  Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Substance of Pro Se Petition Rejected by Appellate Court (PA)

Posted on by

On November 02, 2018, the Superior Court of Pennsylvania affirmed a judgment entered in the Chester County Court of Common Pleas denying a petition to vacate an arbitration award in Jenn-Ching Luo v. Lowes Home Centers LLC  The case arises out of a minor construction project gone wrong which resulted in property damage.  Jenn-Ching Luo (“Luo”) contracted with Lowe’s Home Centers, LLC (“Lowe’s”) to install a new residential roof, skylights and gutters.  Lowe’s hired Kolb Roofing Company to perform the installation, however, Luo claimed the installation did not protect against a brief rainstorm which caused damage.  Attempting to rectify the problem, Lowe’s hired Charles S. Ernst to evaluate the property damage, but Luo didn’t agree with his assessment.

Luo then proceeded to file suit in the Chester County Court of Common Pleas.  However, the original installation contract contained an arbitration provision and thus the case proceeded to arbitration.  The arbitrator found in favor of Luo and against Lowe’s and Walters in the amount of $2,034.07.  Luo was unsatisfied with this award and filed a petition pro se to vacate the award.  In doing so, Luo raised an astonishing 23 issues in her appellate brief.

In dismissing the appeal, the court cited a litany of errors and violations of the Pennsylvania Rules of Appellate Procedure.  Luo had failed to cite to any relevant legal authority, failed to divide her brief “into as many parts as there are questions to be argued,” failed to cite to the record and made a number of other errors not referenced in the opinion.  This case, while extreme, highlights the importance understanding jurisdiction-specific procedural rules and strictly adhering to them.  Failing to do so can have grave consequences including the potential for the dismissal of your case.

As anyone who does appellate work, civil or criminal, will tell you, a skilled adversary presents a challenge.  But a pro se adversary presents a more time-consuming challenge, because the attorney has to address all arguments, even nonsensical ones.  Here, Lowe’s had to oppose a 23 point appeal, on a $2,000 arbitration award.   “Judicial economy” usually takes a backseat when pro se litigants are involved.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

No Coverage for Damages from Carbon Monoxide (PA)

Posted on by

A judge in the United States District Court Eastern District of Pennsylvania ruled that an insurance company does not have to indemnify a landlord whose tenants sued over carbon monoxide poisoning,

In Foremost v. Nosam, Foremost sought declaratory judgment stating that it did not owe a duty to defend or indemnify, Nosam LLC in the state court action based on a pollution exemption in its policy.

This case arose from the state court action in which plaintiff and her two children sued their Landlord and the building owner (Nosam LLC) after suffering carbon monoxide poisoning, allegedly from a faulty furnace in Sylvestre’s apartment.

The malfunction in the furnace was allegedly caused by a neighboring chimney collapsing and falling into the plaintiff’s chimney. This allegedly caused a blockage in the heating unit at the plaintiff’s residence, causing the emission of carbon monoxide.

Foremost disclaimed citing the policy which read “We will not pay for bodily injury or property damage…[arising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation of absorption of pollutants.”  The underlying plaintiffs later claimed that the emission was caused by an accidental fire when the heating system was converted to a gas system, which would trigger the exclusion to the policy exemption.

The Court ruled, “ Although the underlying plaintiffs contend that they did not know the heating system had been converted to gas, there is no suggestion they did not knowingly and intentionally start the December 9, 2015, fire by turning on the furnace…There is no suggestion that any flames, or any part of, this controlled fire extended outside the sealed unit where it was designed to burn…Further, although the chimney collapse may have contributed to the buildup of carbon monoxide inside the residence, the unexpected collapse did not cause the fire. The fire, regardless of whether it was ignited by gas or oil, did not happen by chance or unexpectedly and was therefore not accidental. Although the buildup of carbon monoxide was accidental, it was not released by an accidental fire and the underlying plaintiff’s attempt to conflate the two requires a strained interpretation of that term.”

The salient distinction the Court makes is based on the carbon monoxide emission (obviously) being accidental, whereas the fire was started intentionally.  Because the fire was started intentionally, Formost’s policy exclusion applied, and Foremost owed no duty to defend or indemnify.  Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

UIM Coverage Does not Apply to Rented Vehicles, According to Eastern District (PA)

Posted on by

In Achenbach v. Atlantic Specialty, the plaintiff was a passenger in a rental car being driven by her co-worker, when the vehicle she was traveling in was rear-ended by a truck driver.  The rental car was rented through the plaintiff’s employer, while the plaintiff and her co-worker were on a work trip in Wisconsin.  Plaintiff suffered injuries as a result of the accident, and the truck driver was uninsured.  As a result, the plaintiff sought uninsured motorist benefits through the car rental agreement, which offered coverage of up to $25,000.00.  Plaintiff settled with the rental car insurer for the policy limit.  As the plaintiff’s claimed damages exceeded that amount, she also sought secondary coverage through her employer’s insurance policy with Atlantic Specialty.  In attempts to recover from Atlantic Specialty, plaintiff’s counsel and Atlantic Specialty exchanged email communications about her eligibility from July 2013 to October 2015.  Plaintiff then demanded payment of the full amount of Atlantic Specialty’s policy as settlement for her outstanding claim, which was denied.  Atlantic Specialty claimed she was not eligible for uninsured motorist insurance under the policy.

Plaintiff then brought suit for breach of contract, bad faith and promissory estoppel.  Atlantic Specialty removed the matter to federal court and filed a motion to dismiss.  The Court, finding that Wisconsin law applied, dismissed plaintiff’s bad faith claim, as Wisconsin law did not support a viable claim for bad faith based on failing to investigate her claim and making misrepresentations during the claim adjustment process.

Plaintiff argued that defendant breached its contract with her employer by denying the claim.  Defendant responded that the policy did not provide coverage for uninsured motorist benefits to rented vehicles.  The Court found that the plain language of the policy limited uninsured motorist coverage to owned vehicles and excluded rental vehicles.  Plaintiff’s reliance on the alleged assurances from the defendant that the policy covered rental vehicles did not change the plain and unambiguous language of the policy.  This claim was dismissed as well.

Finally, plaintiff brought a promissory estoppel claim based on the representations made by the defendant’s employees as to the availability of uninsured motorist coverage during the claim adjustment process, and that she relied on those representations to her detriment.  The Court agreed that plaintiff plead sufficient facts to support this claim, as the emails between the parties supported the assertion that the defendant made an “express promise” that the uninsured motorist coverage was available to plaintiff, which was reasonable. Therefore, this claim was allowed to proceed.

This is a cautionary tale to avoid making any promises or representations to claimants during the adjustment process before making coverage decisions.

Thanks to Alexandra Perry for her contribution to this post.

Delay Does Not Equal Default

Posted on by

State laws usually establish time limits for defendants to respond to a complaint.  Failure to adhere allows a plaintiff to file a motion for a default judgment.

In Ruggiero v. Moravian College, plaintiff sued Moravian College based on its failure to accommodate her disability while she was a student.  The complaint was filed on March 23, 2018, and counsel for Moravian College was asked to accept service on April 6, 2018.  On April 11, 2018, counsel for Moravian stated it would accept service, but requested two weeks to determine whether Moravian College’s insurance company would assign him to the case.  Moravian’s insurer stated  it would provide counsel for the case.  Counsel for Moravian then received the complaint on April 25, 2018 and forwarded it to the insurer, under the belief that the insurer was going to assign the case to another law firm.  On July 6, 2018, Plaintiff filed a motion for default after receiving no response to the complaint.  Counsel for Moravian was then assigned to the case on July 9, 2018.

Three factors must be present to grant a motion for default: plaintiff must be prejudiced if default is denied; defendant cannot have a meritorious defense; and default must be the product of defendant’s culpable conduct.  Chamberlain v. Giampapa, 210 F.3d 154 (3d. Cir. 2000).  Plaintiff argued it endured prejudice because of the delay in that  witnesses left their employment at the College, and interest on Plaintiff’s student loan was compounded.  The Court rejected both arguments finding that witnesses would still be available even if they no longer worked at Moravian College, and a future damages award could compensate any accrued interest.  Secondly, the Court found no evidence of a meritorious defense, but did not find that aspect dispositive of the case.  Lastly, the Court found that the defendant did not act culpably because its Counsel relied on the insurer’s statements that it would defend the case.  The Court found that all factors were not fulfilled and denied the motion for default.

This case offers an important lesson for insurance carriers and counsel alike.  There was an almost three-month delay in action on the case after the insurer received the complaint, and the case does not explain what happened on the insurer’s end.  Communication between counsel and insurer is key in ensuring a default motion is not filed.  Fortunately, Moravian’s counsel was proactive in initially contacting the insurer and subsequently forwarding the complaint.  That conduct seemed to inform the Court’s decision to deny the motion for default.

Thanks to Malik Pickett for his contribution to this post.

Does Discovery Rule Toll Statute of Limitations in Pennsylvania Medical Malpractice Suit? It’s up to the Jury.

Posted on by

In Nicolaou v. Martin, plaintiff was bitten by a tick in 2001 and, as a result, sought medical treatment from three different physicians between 2001 and 2008.  All three physicians ordered tests for Lyme disease, but all of the Lyme disease tests came back negative.  After an MRI, Nicolaou’s physicians diagnosed her with multiple sclerosis (“MS”) and prescribed treatment.  As a part of the treatment, Nicolaou saw a nurse practitioner, who, between July 20, 2009 and February 1, 2010, told Nicolaou that she thought she had Lyme disease.  The nurse practitioner had Nicolaou undergo another Lyme disease test, this time from a company called IGeneX, which came back positive on February 12, 2010.

On February 10, 2012, Nicolaou sued the three physicians she had consulted with between 2001 and 2008 for medical malpractice.  The physicians filed motions for summary judgment, asserting that the two-year statute of limitations already expired.  Nicolaou replied that the discovery rule tolled the statute and that she had no reason to know of her Lyme disease until she received the IGenex results on February 12, 2010.  The trial court granted the physicians’ motion.  The Pennsylvania Superior Court affirmed the trial court in a 5-3 decision.  The majority held that reasonable minds would not differ that Nicolaou should have known of her disease and its cause as early as June of 2009, three years before she filed suit.  The three-judge dissent stated that there was a question of fact as to whether Nicolaou acted diligently to determine the cause of her injuries and that it should be submitted to a jury.

The Pennsylvania Supreme Court reversed and adopted the dissent’s reasoning, holding that it was an error of law for the Superior Court to hold as a matter of law that the statute of limitations had not been tolled by the discovery rule in this particular case.  Whether or not Nicolaou should have known or had reason to know that she had Lyme disease and what caused it in 2009 was an issue of fact.  Therefore, it was the province of a jury to determine whether or not the discovery rule applied.

Thanks to Robert Turchick for his contribution to this post.