September 26th, 2022 by Rieders Travis in Negligence

Murray v. Frick, et al., Pa. Civil No. 2021-C-1254 (C.P. Lehigh May 2, 2022) (Caffrey, J.)  There is no Pennsylvania appellate decision addressing the precise issue of whether § 4-497 of the Dram Shop Act preempts a common law negligence claim against a licensee, and there is disagreement among the Common Pleas Courts on this issue.  The Superior Court has clearly described the section as liability-limiting.  It is clearly a provision designed specifically to shield licensees, except in those instances where a patron served was visibly intoxicated.  Certain Pennsylvania trial courts have determined that the affect of this section is to limit the liability of licensees to third persons to the sale of alcohol to visibly intoxicated persons.  The court finds the reasoning employed by these common courts persuasive in view of how the Pennsylvania Superior Court has described the purpose and intent of § 4-497.  The section is limiting in that it protects the licensee from liability to third parties unless the patron was visibly intoxicated.  It operates to preempt the common law negligence action against the licensee.  Therefore, these common law sections of the complaint will be stricken.


July 23rd, 2019 by Rieders Travis in Negligence

NEGLIGENCE-COLLEGES AND UNIVERSITIES-TEAM SPORTS-SAFE PATHWAY Baumbach v. Lafayette Coll., 2022 Pa. Super. LEXIS 102 (March 4, 2022) (Dubow, J.).  In this case, plaintiff was a team athlete.  She was on the rowing team and had to go to and from the boathouse.  The plaintiff was hit by a drunk driver when she and her teammates were walking back down a dark, narrow shoulder-less stretch of Lehigh Drive to reach a remote parking lot.  The court reversed the dismissal of the case.  The court said that there were sufficient allegations that the settlement on the Dramshop action did not end the litigation.  The appeal was timely.  The negligence claim should not have been dismissed.  A person may, through affirmative conduct, assume a duty to exercise reasonable care.  Sufficient facts were alleged that Lafayette undertook the duty to act for their students’ safety and protection as a member of the team.  The college entered into a management agreement for the boathouse requiring the college to follow safety practices.  The college provided a usual parking lot next to the boathouse.  The college hired coaches, who taught the sport of the crew and supervised…


July 11th, 2019 by Rieders Travis in Negligence

Marshall vs. Brown’s IA, LLC, 2019 Pa Super. LEXIS 608.  Opinion by Bowes, J.  Harriet Marshall appeals from the July 10, 2017, judgment in favor of Appellee Brown’s IA, LLC, and alleges that she is entitled to a new trial because the trial court erred in refusing to give an adverse inference instruction based on Appellee’s spoliation of videotape evidence.   We vacate the judgment and remand for a new trial.   Brown’s IA, LLC (“ShopRite”) owns thirteen grocery stores, one being the Island Avenue ShopRite in Philadelphia.   On August 6, 2014, Ms. Marshall slipped on water, fell in the produce aisle of the store, and aggravated a preexisting injury to her hip and back.   ShopRite employees came to her aid and summoned medical assistance, and the manager completed an incident report immediately thereafter.   Approximately two weeks later, ShopRite received a letter or representation from Ms. Marshall’s counsel requesting that ShopRite retain, inter alia, surveillance video of the accident and area in question for six hours prior to the accident and three hours after the accident.   Ms. Marshall’s slip and fall was captured on the store’s video surveillance system.  However, ShopRite decided…


March 30th, 2018 by Rieders Travis in Negligence

Santiago v. Wegmans Food Market, Inc., t/d/b/a Wegmans, Wegmans Retail Service Center, Wegmans Distribution Center, No. 16-CV-1529 (C.P. Lackawanna February 2, 2018) Nealon, J.  In this slip & fall case against commercial landowner by the employee of an independent contractor that was retained by that property owner to provide janitorial services, the owner filed a motion for summary judgment.  The basis of the summary judgment is that it allegedly owed no duty of care to the employee since a landowner who retains an independent contractor cannot be vicariously liable for the negligence of an independent contractor or its employees.  Under the “retained control” exception to that theory of non-liability, a property owner who entrusts work to an independent contractor remains subject to liability if its contract with the independent contractor grants the premises owner control over the manner, method and operative details of the independent contractor’s work.  Based upon the comprehensive terms of the janitorial services contract, the landowner dictated how the contractor’s cleaning services were to be performed, what products and equipment were to be used, when designated tasks were to be completed, and the exact manner in which…


December 15th, 2017 by Rieders Travis in Negligence

Bouchon v. Citizen Care, Inc., 2017 Pa. Super. LEXIS 989 (December 6, 2017) Stabile, J.  This case involves Charles Bouchon, who is mentally challenged.  He was the occupant of a group home owned and operated by Citizen Care.  During a pizza dinner, the resident was unsupervised.  He choked on uncut pizza and a soft drink.  Efforts to help were unsuccessful.  EMS was summoned, and they were unsuccessful.  The resident was transported to the hospital and died.  The case was dismissed by the trial court.  The appellate court found that sufficient facts were pled to show a breach of duty.  There may be gross negligence even under § 4603 of the MHMR Act.  It is not clear whether any of the defendants are governmental or recognized nonprofit health or welfare organizations even entitled to immunity under the statute.  There are sufficient facts pled to constitute gross negligence rendering the grant of any immunity demurrer improper.  The EMS agency also claimed that there were insufficient allegations of gross negligence under 8151(2) of the EMSS Act.  The court said that appellant had alleged fundamental mistakes on the part of the EMS that could…


November 4th, 2015 by Rieders Travis in Negligence

The operation of a driver dropping off a handicapped person who then has to cross the street is not considered the operation of a vehicle.  Hence the exception of vehicle liability for the Political Subdivision Act does not apply.  Also the employer which was an independent contractor is not liable under the Peculiar Risk Doctrine.  The driver was an independent contractor and the company he worked for was not responsible for hiring, training or supervision.  Under the Peculiar Risk Doctrine the question is whether the risk was foreseeable to the employer of the independent contractor at the time the contract was executed and was the risk different from the usual and ordinary risk associated from the general type of work done.  The peculiar risk must be one not created solely by the contractor's negligence in performing the operative details of the work.  Guidelines established to independent contractors are not the type of control considered intrusive.  Phillips Ex Rel. Phillips vs. WCTA, 986 A.2d 925 (Pa. Cmwlth. 2009).