NEGLIGENCE-BED BUGS

January 11th, 2023 by Rieders Travis in Negligence

Skillman v. Patel, Pa. No. CV-22-00444 (C.P. Lycoming December 19, 2022) (Linhardt, J.)  On May 2, 2022, Plaintiff filed a Complaint against Defendants, who collectively operate a motel ("Budget Inn") in Williamsport. Plaintiff alleges that during a twelve-day stay at Budget Inn from October 28, 2021 through November 8, 2021, he "experienced pinching sensations and itchiness," realizing on November 7, 2021 that "his motel room was infested with bed bugs." Plaintiff contends that he informed staff of the issue, but they "took no action to render medical aid," and Plaintiff checked out of the motel the following day. The facts pied are plainly insufficient to establish that Defendants had actual knowledge of bugs in Plaintiff's room and failed to warn him. In a light most favorable to Plaintiff, the allegations could establish that Defendants had notice that guests at the Budget Inn had observed a large number of insects in the past, and therefore Defendants had a continuing duty to attempt to discover, mitigate, and prevent infestations in the future, lest those infestations cause harm to guests. This duty, however, is a duty Defendants already owed to their guests as…

NEGLIGENCE-SUBROGATION

December 15th, 2022 by Rieders Travis in Negligence

Erie Ins. Exch. v. United Servs. Auto. Ass'n, 2022 Pa. Super. LEXIS 481 (December 6, 2022) (Colins, J.)  Appellant, Erie Insurance Exchange (Plaintiff), as subrogee of its insured, Bates Collision, Inc. (Bates Collision), and four other of its insureds, appeals from an order of the Court of Common Pleas of Erie County (trial court) granting summary judgment for defendant United Services Automobile Association (Defendant) in an action that Plaintiff brought against Defendant for damages from loss of evidence in a fire investigation. We affirm. Plaintiff's claim was barred by Pyeritz v. Commonwealth, 613 Pa. 80, 32 A.3d 687 (Pa. 2011), in which our Supreme Court held that Pennsylvania does not recognize a cause of action for damages for negligent spoliation of evidence. The trial court also held that Plaintiff's evidence did not satisfy the elements of promissory estoppel cause of action and that Plaintiff had no subrogation cause of action against Defendant because Defendant did not cause the fire that damaged Plaintiffs' insureds' building and vehicles. The public policy considerations that Plaintiff asserts are that practices in the insurance industry allegedly required Defendant to retain the BMW vehicle until the…

NEGLIGENCE-MOTOR VEHICLES-VICARIOUS LIABILITY-NEGLIGENT ENTRUSTMENT

December 8th, 2022 by Rieders Travis in Negligence

Shultz v. Barnes, et al., Pa. No. CV-18-01308 (Lycoming C.P. December 2, 2022) (Linhardt, J.)  The court in this case relied upon Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021).  In Spencer, In Spencer, an employer provided its employee with a company vehicle but did not institute a written policy for the use of that vehicle; two years after the employee received the vehicle, the employee's husband operated it while under the influence of alcohol, grievously injuring the plaintiff. All parties agreed that the plaintiff was not at fault and that the employee's husband was negligent in his operation of the vehicle. The employee and employer disagreed, however, over the scope of permissible use of the company vehicle and the extent to which the employer had explained this unwritten policy to the employee. The plaintiff contended that 1) the employee's husband used the vehicle with the employee's express or implied permission; 2) the employer owed a duty of care to the plaintiff "to ensure that its vehicle was operated in a non-negligent manner"; 3) the employer should have known that the employee was careless in her use of the…

DRAM SHOP ACT-PREEMPTION OF NEGLIGENCE CLAIM

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.

Negligence

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…

Appeal-Negligence

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…

NEGLIGENCE-SLIP AND FALL-INDEPENDENT CONTRACTORS-RETAINED CONTROL EXCEPTION

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…

NEGLIGENCE-CAUSATION-FACTUAL CAUSE, DEFINITION

January 10th, 2018 by Rieders Travis in Negligence

Roverano v. John Crane, 2017 Pa. Super. LEXIS 1110 (December 28, 2017) (per curiam).  This was an asbestos case in which the Superior Court affirmed in part, reversed in part and remanded for new trial to apportion damages among tortfeasors.  William Roverano was employed at PECO from 1971 until his retirement in 2001.  He developed lung cancer.  Many of the defendants filed for bankruptcy.  All of the defendants except the two that went to trial settled prior to the jury verdict.  The plaintiffs’ experts said that it was both the smoking and exposure to products that caused lung cancer.  The jury returned a verdict for Mr. Roverano and his wife.  The court apportioned the judgment equally among the 8 defendants whom the jury determined to be tortfeasors.  This resulted in a separate entry of judgment against the two remaining defendants for a reduced amount. 1. The court properly charged on factual cause.  The Court did not specifically refer to the Standard Jury Instruction, but that is what was approved.  The court rejected defendant’s request for a “but for causation” jury charge.  The Pennsylvania Supreme Court has clearly rejected such a…

NEGLIGENCE-GROUP HOME LIABILITY-CHOKING CASE

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…

NEGLIGENCE-PECULIAR RISK DOCTRINE

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).