Negligence

July 23rd, 2019 by Rieders Travis in Negligence

NEGLIGENCE-PHARMACEUTICAL-FENTANYL Albert v. Sheeley’s Drug Store, Inc., 2020 Pa. Super. LEXIS 537 (June 30, 2020) Stabile, J.  Dale Albert, administrator of the estate of Cody Albert, sued Sheeley’s Drug Store for permitting him to pick up a prescription for Fentanyl which had been prescribed for his mother, a cancer patient.  The court dismissed the case on summary judgment, and the Superior Court agreed citing the in pari delicto defense.  Both decedent and his mother were drug abusers.  The mother took part in the son’s scheme to obtain this deadly controlled substance.  This was a fraud perpetrated by Ross.  The trial court properly granted summary judgment.  This was a scheme to obtain Fentanyl and by illegally possessing the Fentanyl at Ross’s house in violation of statute, decedent was an active voluntary participant in the wrongful conduct or transactions for which he seeks redress. NEGLIGENCE-DEAD MAN'S ACT Jones v. Plumer, 2020 Pa. Super. LEXIS 17 (January 15, 2020) Kunselman, J.  Dead Man’s Rule applies even in negligence cases.  Here, the appellant, Jones, asked the court to carve out an exception for testimony not related to the extent of her damages but instead…

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-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).