Damages

July 23rd, 2019 by Rieders Travis in Damages

PUNTIVE DAMAGES-INFORMED CONSENT-FACTUAL CAUSE

Fritz v. BNG Aesthetics, No. CV-20-0553 (C.P. Lycoming October 28, 2020) (Linhardt, J.) Lack of informed consent can lead to punitive damages if it is pled that the doctor intentionally lied to plaintiff and performed a procedure different than the procedure discussed.  This would be enough to support punitive damages.  Since this is not negligence, substantial factor does not have to be pled, although in this case it seems to be present anyway.  Plaintiff has to replead not only that the doctor provided negligent treatment (which seems like an error in the wording of the court) but that he knowingly provided a different treatment than that discussed with plaintiff.

DAMAGES-PUNITIVE-MEDICAL MALPRACTICE

Evans v. Lavallee, No. CV-20-0879 (C.P. Lycoming December 1, 2020) (Ryan, J.)  Punitive damages against plastic surgeon Dr. Lavallee and anesthesiologist Dr. Pastore and CRNA Adkins.  The allegations against Pastore and CRNA Adkins are more than a mere failure to diagnose a serious condition.  The allegations represent a serious disregard for several protocols and procedures.  The court did infer that Pastore and CRNA Adkins were subjectively aware or should have been aware of the risk of harm to plaintiff, that is, that when the oxygen level is three times higher than it was supposed to be, the likelihood of a fire starting is significantly increased.  It can reasonably infer that in spite of this appreciation, Pastore and Adkins continually failed to decrease the oxygen level in conscious disregard of the risk which caused or contributed to the harm.  In one paragraph, the court addressed the damages against Dr. Lavallee and said that the claims of what Lavallee did or failed to do was “reckless”.  There was a failure to plead a subjective appreciation of the risk, and there were no allegations included that the court could reasonably infer the same.  Amendment will be permitted as to Lavallee.

DAMAGES-NEW TRIAL-MEDICAL EXPENSES, PAST AND FUTURE

Mader v. Duquesne Light Co., 2020 Pa. LEXIS 5891 (November 18, 2020) Todd, J.  In this appeal by allowance, we consider the limits on a trial court’s discretion to order a new trial on all damages where a jury’s award on certain damages was based on stipulations or was otherwise unimpeachable. As we agree with the Superior Court that the trial court herein abused its discretion, we affirm.

In April 2013, Mader sued Appellee Duquesne Light Company (“Duquesne Light”), the owner of the power line the ladder came into contact with, in the Allegheny County Court of Common Pleas. Mader alleged that Duquesne Light’s negligence in maintaining the electric lines too close to the ground caused his injuries and that Duquesne Light acted with reckless indifference to his safety; he also sought punitive damages. At the conclusion of a trial by jury, Duquesne Light was found to be 60% negligent and Mader was found to be 40% negligent for his injuries.

Importantly, for purposes of this appeal, the jury awarded Mader $500,000 in compensatory damages, which was molded to $300,000 to account for his 40% negligence. At Mader’s request, the trial court instructed the jury that he was entitled to compensation for past medical expenses, which were stipulated to by the parties; future medical expenses; and past and future lost earnings. The jury was also instructed on, and given an itemized verdict slip for, damages for past and future pain and suffering; embarrassment and humiliation; loss of ability to enjoy the pleasures of life, and disfigurement.

Both the trial court and the Superior Court concluded that Mader is entitled to a new trial on noneconomic damages. Additionally, the courts determined, and Mader agrees, that he is entitled to a new trial on past and future earnings. While Duquesne Light contested the lower courts’ determination on past and future earnings, we denied allocatur on that issue, and, thus, it is not before our Court in this appeal. Finally, while Mader goes on at some length about a trial court’s broad discretion to award a new trial generally, the question before us is more discrete. At its core, the related questions before our Court are whether, generally, a new trial may be awarded on distinct damages, and, more specifically, whether the trial court had discretion to order a new trial on past and future medical expenses primarily because it found the jury’s determination on compensatory damages for pain and suffering and lost earnings to be defective.

We reject the notion that a per se rule exists requiring a remand for all damages whenever a new trial is awarded on certain damages. All damages may be relitigated in a new trial, or certain discrete damages may be upheld and excised from the award of a new trial on other damages. This being the case, and consistent with other areas of jury verdict error, we find that, as an initial matter, a trial court has discretion to order a new trial on certain types of damages, exclusive of other types of damages that were properly awarded by a jury in the first trial.

What seemingly has not been articulated by our Court, and, thus, is a matter of first impression, is the standard by which a trial court should make the determination of the proper scope of an award of a new trial. In the context of determining whether a new trial should be granted solely for damages, or for damages and liability, we have declared the following standard: “A new trial limited to the issue of damages will be granted where: (1) the issue of damages is not ‘intertwined’ with the issue of liability; and (2) where the issue of liability has been ‘fairly determined’ or is ‘free from doubt.’” Kiser, 648 A.2d at 8 (citations omitted).

We believe it appropriate to apply a similar standard to the question of whether a new trial should be granted for all damages, or just certain damages tainted by jury error. Thus, we hold that, when faced with the question of the full or partial granting of a new trial on damages, a trial court should discern whether the properly awarded damages in the first trial were “fairly determined,” and, if so, whether they are sufficiently independent from, and are not “intertwined” with, the erroneously determined damages.

Thus, for the above reasons, we hold that there is no per se rule with respect to the types of damages to be considered at a new trial, and that trial courts are not mandated to award a new damages trial on all damages. Furthermore, we conclude that a jury’s award of certain types of damages may be distinct and independent of the award of other types of damages, so that it is within the discretion of the trial court to award a new trial on all damages or only certain damages. In doing so, however, we stress that a trial court should consider whether the properly awarded damages were fairly determined, and, if so, the interrelatedness of the types of damages and whether the proper damages award can stand independent of the erroneously awarded (or erroneously not awarded) damages.

We hold that the trial court abused its discretion in awarding a new trial on the stipulated past medical expenses. Turning to the trial court’s grant of a new trial for future medical expenses, we first note that the jury was presented with conflicting expert testimony regarding Mader’s future medical care and needs. Specifically, Mader’s expert witness testified that he would require multiple knee and hip replacements, a part-time personal care aide until he reached the age of 65, and a full-time aide thereafter. Further, he opined that Mader would need a new house. Conversely, and in stark contrast, Duquesne Light’s expert witnesses testified that Mader’s wounds were well healed, and that he required little preventative treatment and minor equipment to assist him with his gait. They testified that any cognitive and residual physical issues, such as joint replacement, were preexisting or due to Mader’s failure to comply with his doctor’s treatment prescriptions, and were not a result of the accident. Specifically, as noted by the Superior Court, the evidence established that, despite his injuries, Mader was able to travel and lead a fairly active lifestyle; that Mader’s injuries did not place him at any greater risk for needing knee and hip replacement surgeries than someone who – like Mader – had a pre-existing arthritic condition; and that, even if he did need surgery, repeated knee and hip replacements would not be necessary. Additionally, the jury also heard testimony offered by Duquesne Light that Mader’s condition did not require him to obtain a new home or receive the assistance of a home health aide.

While both parties and the lower tribunals agree that the $0 award for noneconomic damages was in error, we disagree with the logic of condemning the jury’s calculation of future medical expenses due to its failure to award noneconomic damages. As noted, damages for medical expenses are different in nature from damages for pain and suffering. Furthermore, the record supports the jury’s award of future medical expenses, and, again, the dollar amount awarded was slightly greater than the estimates offered by Duquesne Light. That being the case, we reject the notion that, simply because the jury erred in failing to award pain and suffering damages, that resulted in an erroneous award of damages for future medical expenses. Indeed, carried to its logical conclusion, if the jury was so irrational regarding its pain and suffering award that it could not rationally render an award for medical expenses, then no aspects of the jury’s decision-making, including its finding of liability, could be allowed to stand. Not even Mader suggests this, and, indeed, he argues that the jury properly reached its liability determination. We, thus, likewise reject this reason relied upon by the trial court as a basis to award a new trial.

We hold that the trial court abused its discretion in awarding a new trial on future medical expenses. In sum, we find the record supports the jury’s award of damages for past and future medical expenses. These types of damages are discrete and are independent from noneconomic damages such as pain and suffering. Furthermore, in the circumstances of this case at least, these damages were fairly determined and are not so intertwined with the noneconomic damages (to be assessed in the new trial) as to require their being re-litigated as well. Additionally, the jury in the new trial may be entitled to hear evidence about Mader’s past and potential future treatment, but only as it relates to his pain and suffering. Nevertheless, with respect to medical expenses, in our view, Mader should not be permitted to re-litigate these damages in a new trial. Thus, we reject the trial court’s justifications for awarding a new trial on past and future medical expenses, and, thus, hold that the trial court abused its discretion in this regard. Consequently, for the abovestated reasons, we affirm the Superior Court’s order.

DAMAGES-WRONGFUL DEATH-PROOF

McMichael v. McMichael, 2020 Pa. LEXIS 5898 (S. Ct. November 18, 2020) Todd, J.  In this appeal by allowance, we consider whether the trial court abused its discretion in denying a motion for a new trial following a jury award of zero dollars in damages in a wrongful death action. Upon review, we conclude that the trial court erred in denying a new trial with respect to the non-economic damages award, and, therefore, we affirm in part and reverse in part the Superior Court’s decision.

The jury awarded Wife, as executrix of Decedent’s estate, $225,000 in survival damages, which was reduced to $135,000 to reflect the jury’s finding that Decedent was 40% negligent, and, of particular import in this appeal, zero dollars in wrongful death damages.  Wife sought a new trial on her claims for wrongful death and survival damages, and P&J sought judgment notwithstanding the verdict, or a new trial on liability. With regard to Wife’s motion, and relevant to the instant appeal, the trial court concluded, inter alia, that Wife failed to present sufficient evidence of the value of her economic and non-economic loss for wrongful death damages and, thus, the jury was free to award zero dollars in damages on the wrongful death claim.

A survival action under 42 Pa.C.S. § 8302 is brought by the administrator or executor of a decedent’s estate in order to recover damages for the decedent’s pain and suffering, the loss of gross earning power from the time of injury to death, and the loss of earning power, less personal maintenance expenses, for the estimated working life span of the decedent. Kiser, 648 A.2d at 4. By contrast, a wrongful deathful action pursuant to 42 Pa.C.S. § 8301 is designed to compensate the spouse, children, and parents of the deceased for the pecuniary loss they have sustained as a result of the decedent’s death, and damages may include the present value of services that would have been rendered to the family had the decedent lived, as well as funeral and medical expenses. Id. In each case, the burden of proving damages is on the plaintiff, and the amount and items of pecuniary damage cannot be presumed but must be proven by facts and, where possible, with certainty. See Vrabel v. Com., Dep’t of Transp., 844 A.2d 595, 601 (Pa. Cmwlth. 2004), abrogation in part recognized by Ewing v. Potkul, 171 A.3d 10 (Pa. Cmwlth. 2017).

We first consider the economic aspect of the jury’s verdict of zero dollars in damages for wrongful death. It is undisputed that Wife did not present any evidence of medical, funeral, or estate administration expenses. Thus, Wife’s potential recovery for economic damages was limited to the loss of Decedent’s services. In this regard, Wife offered her own testimony that Decedent performed home repairs, mowed the lawn, did most of the cooking, and drove her to work when the weather was bad. Neither Wife, nor her economic expert, however, testified to the estimated value of these contributions, or the cost of hiring someone to perform these tasks.

We find that Wife failed to offer sufficient evidence to support her claim for economic wrongful death damages, and thus conclude that the trial court did not err in denying her motion for a new trial on that basis, we cannot say the same with respect to the jury’s award of zero dollars for non-economic wrongful death damages.

In the case sub judice, we find that the amount of the verdict − zero dollars – with respect to non-economic wrongful death damages bears no reasonable relation to the proffered evidence of loss suffered by Wife. Wife testified that she and Decedent were happily married for 30 years, and had three children together. She testified that they enjoyed spending their leisure time together, often working on projects around the house, such as planting trees and blueberry bushes. Id. at 155Wife testified that she and Decedent planned to build a log cabin on a piece of property they owned, and intended to reside there. Id. at 161. Wife also testified that Decedent fixed her breakfast every morning, and would surprise her with spontaneous “date nights.”  Id. at 162.  As this Court has recognized, things “such as companionship, comfort, society, guidance, solace, and protection which go into the vase of family happiness [ ] are the things for which a wrongdoer must pay when he shatters the vase.” Spangler, 153 A.2d at 492. Further, in contrast to the proof required for economic damages, “[t]he fact that there is no mathematical formula whereby compassionately bestowed benefits can be converted into a precise number of bank notes does not mean that the tortfeasor will be excused from making suitable reimbursement for their loss.” Id.

Wife might have presented more extensive or detailed testimony regarding her relationship with Decedent. However, based on the testimony recounted above, and bearing in mind that, in contrast to economic damages, non-economic damages are not subject to ready proof, see Spangler, 153 A.2d at 492, we conclude that the jury’s award of zero dollars in non-economic wrongful death damages bears no reasonable relation to the loss suffered by Wife, and, therefore, that it shocks one’s sense of justice. Thus, we hold that the trial court abused its discretion in denying Wife’s motion for a new trial based on the jury’s award of zero dollars in non-economic wrongful death damages. Accordingly, for the reasons set forth above, we affirm the Superior Court’s order in part and reverse in part, and remand this matter to that court, for remand to the trial court, for a new trial on damages for wrongful death, limited to non-economic damages.

DAMAGES-PUNITIVE-MEDICAL MALPRACTICE

In this case from our office, Pittinger v. Hartzell, No. 20-0239 (C.P. Union July 27, 2020) Anderson, S.J., the court will allow punitive damages to go forward because of evidence that the doctor knew he caused a tear in the lens capsule at the time of cornea surgery, and even though the patient was seen a number of times thereafter, no one ever looked through the vitreous at the retina.  Had they done so, clearly they would have seen that capsular material had entered the vitreous with the potential of causing blindness.  In fact, the patient became blind.  The fact that the doctor knew he caused the tear and nevertheless did not do any follow-up to identify the possibility of capsule material, even though the patient was blind immediately after the surgery, could lend itself to the proof of deliberate indifference and hence punitive damages.

DAMAGES-COLLATERAL SOURCE RULE-WORKERS’ COMPENSATION PAYMENTS

DAMAGES-COLLATERAL SOURCE RULE-WORKERS’ COMPENSATION PAYMENTS- Nazarak v. Waite, 216 A.3d 1093 (Pa. Super. August 2, 2019) Stevens, P.J.E.  Plaintiff put in evidence of workers’ compensation payments, lien, and need to pay back.  Defendant objected to this as violation of the collateral source rule.  The court noted that the collateral source rule is intended to protect the plaintiff, but it was plaintiff who put in this evidence.  The evidence also did not suggest liability.  To the extent that the trial court erred in permitting the plaintiff to enter into evidence the fact that he settled his workers’ compensation claim, we agree with the trial court that the error does not constitute reversible error.  Evidence of a settlement should not go into evidence.

DAMAGES-PUNITIVE-NURSING HOME

Ponzini v. Monroe County, 2019 U.S. App. LEXIS 34731 (3d Cir. November 21, 2019) McKee, C.J., pursuant to I.O.P. 5.7 does not constitute binding precedent.  When health care institutions act or fail to act with intentional or reckless disregard for a patient’s health and welfare, they may be held liable for punitive damages.  

The record is filled with evidence of policies ignored, medical records not reviewed, medical orders not followed, medication prescribed but not given (after verification), and PrimeCare ignoring nursing staff complaints about insufficient staffing and doctors not visiting MCCF sufficiently frequently. The evidence is clearly sufficient to allow a reasonable juror to conclude that PrimeCare recklessly disregarded Barbados’s welfare; and the jury here did just that. 

Viewing the evidence in the light most favorable to Plaintiffs (as we must), we conclude that the jury could easily find that PrimeCare is a company that regularly misrepresents its operational structure, fails to properly supervise its staff, and takes affirmative steps to mislead the public and the government. Therefore, the record supports the jury’s conclusion that PrimeCare’s actions were “of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” 

As noted at the outset, the District Court should only have set the punitive damages award aside if “no reasonable inference from the facts alleged support[ed] [the] award of punitive damages.” That is simply not the case here. Therefore, we will reverse the District Court’s order vacating the award of punitive damages.

WRONGFUL DISCHARGE-DAMAGES

Carlini v. Glenn O. Hawbaker, Inc., 2019 Pa. Super. LEXIS 911 (September 13, 2019) Nichols, J. Appellant/Cross-Appellee Glenn O. Hawbaker, Inc. (Hawbaker) and Appellee/Cross-Appellant Susan Carlini (Carlini) appeal from the judgment entered in favor of Carlini in her actions for wrongful discharge and invasion of privacy. Hawbaker challenges various evidentiary rulings and the amount of damages awarded by the jury. Carlini argues that the trial court erred in refusing to instruct the jury that it could award non-economic compensatory damages for the wrongful discharge claim. We affirm the jury’s verdict as to Hawbaker’s liability for Carlini’s wrongful discharge and invasion of privacy claims. We also affirm the compensatory damages awarded for the invasion of privacy claim and the economic damages awarded for the wrongful discharge claim. Nevertheless, we vacate the judgment and remand for a new trial limited to the issues of punitive damages and the non-economic damages for the wrongful discharge claim.

On this record, Carlini did not present testimony to establish that the financial records satisfied the business record exception to the hearsay rule, and the trial court abused its discretion in permitting the admission of the financial records and testimony regarding Hawbaker’s net worth. See Maisano, 204 A.3d at 523; Brown, 202 A.3d at 708; see also Keystone Dedicated Logistics, 77 A.3d at 12 (vacating the judgment and remanding for a new trial on damages where, among other things, the trial court abused its discretion in admitting invoices that were not properly authenticated at trial). Because this evidence was the only evidence on which the jury could have based its calculation of the punitive damages, Hawbaker is entitled to a new trial limited to the issue of punitive damages for the wrongful discharge and invasion of privacy claims.

The trial court denied Carlini’s request for a jury instruction concerning non-economic damages incurred as result of the wrongful discharge, noting that “[t]he cases relied on by [Carlini] either do not directly discuss what non-economic damages are permitted in a wrongful discharge award or are not controlling in this matter since they are from different jurisdictions.” Op. and Order at 11. The trial court, however, failed to acknowledge the theoretical underpinnings for the award of non-economic damages. Based upon the foregoing, we conclude that the victim of a wrongful discharge is entitled to recover damages for emotional distress that can be reasonably expected to result from the wrongful discharge. See Kilpatrick, 632 F. Supp. at 550; Restatement (Second) of Torts § 905 cmt. a. Because the trial court committed an error of law by failing to instruct the jury that it could award non-economic damages under such circumstances, the court abused its discretion in denying Carlini’s post-trial motion. See Stalsitz, 814 A.2d at 771. Therefore, Carlini is entitled to a new trial limited to the issue of compensatory damages for the wrongful discharge claim.

Accordingly, we affirm the jury’s verdict as to Hawbaker’s liability for Carlini’s wrongful discharge and invasion of privacy claims. We also affirm the compensatory damages awarded for the invasion of privacy claim and the economic damages awarded for the wrongful discharge claim. We vacate the judgment and remand for a new trial limited to the issues of punitive damages and the non-economic damages for the wrongful discharge claim.

Judgment vacated. Case remanded with instructions. Jurisdiction is relinquished.

PUNITIVE DAMAGES-NOMINAL AWARDS 

Jester, et al. v. Hutt, et al., 3rd Cir. Nos. 18-3114 and 18-3197 (August 28, 2019).This cases discusses how to handle punitive damages when the actual damage award was nominal.  The Court discusses ratio guideposts and how the United States Supreme Court has addressed this.  How do courts evaluate constitutionality of punitive damage awards?  For starters, they have recognized that higher ratios between nominal and punitive awards “are to be expected.”  Romanski, 428 F.3d at 645; see also Saunders, 526 F.3d at 154; Fabri v. United Techs, Int’l, Inc., 387 F.3d 109, 126-27 (2d Cir. 2004); Williams, 352 F.3d at 1016.  And after acknowledging that the punitive award can exceed the single-digit ratio, courts often “compare it to punitive awards examined by courts ‘in [similar cases] to find limits and proportions.’” Romanski, 428 F.3d at 645 (quoting Lee v. Edwards, 101  F.3d 805, 811 (2d Cir. 1996)); see, e.g., Fabri, 387 F3.d at 126-127 (comparing punitive damages award to others in similar cases); Williams, 352 F.3d at 1016 n. 78 (same); see also Saunders, 526 F.3rd at 154 (comparing the punitive damages award “to other cases involving similar claims” and assessing whether a lower award would act as a meaningful deterrent). 

JURY VERDICT-GENERAL DAMAGES

Shiflett v. Lehigh Valley Health Network, Inc., 2019 Pa. LEXIS 5420 (Pa. S.Ct. September 26, 2019) Donohue, J.  The court, on special verdict form, listed each defendant separately but then had one question for damages.  The plaintiff should not have been permitted to proceed against one of the defendants because of the statute of limitations.  The Supreme Court said that the Superior Court was wrong to send the matter back for trial.  It is up to the defendant to say if they wanted damages broken down between the parties and they did not do that.  There would be no retrial on damages.  The court has adopted the “general verdict rule” which provides that when the jury returns a general verdict involving two or more issues and its verdict is supported by at least one issue, the verdict will not be reversed on appeal. We recognize the concern of the Superior Court and the hospital that without a new trial there is a possibility that the plaintiffs obtained an award that may include damages awarded on a time-barred theory of liability that should not have been submitted to the jury.  The hospital was aware of this possibility throughout the course of the trial and yet failed to request special interrogatories that could have prevented the problem.  

MARITIME LAW-PUNITIVE DAMAGES

Dutra Group vs. Batterton, 2019 U.S. LEXIS 4202.   This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel.   We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved.  In Miles, which concerned a wrongful-death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society.  498 U.S., at 23.  And in Atlantic Sounding, after examining centuries of relevant case law, we held that the award on the traditional maritime claim of maintenance and cure.  557 U.S. at 4017.  Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions.

DAMAGES-NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Murga v. Lehigh Valley Physicians Grp. 2018 Pa. Dist. & Cnty. Dec. LEXIS 3053 (November 26, 2018) Johnson, J.-Court would not grant partial summary judgment on negligent affliction of emotional distress claim. Plaintiff argued that NIED claims have evolved and broadened in Pennsylvania and that her NIED claims were appropriate under multiple theories of recovery including the duty of care arising from a special relationship, a physical impact theory and a bystander theory. The court distinguished between transitory, nonrecurring physical phenomena like fright as opposed to depression, nightmares, stress and anxiety. Plaintiff’s severe emotional and psychological injuries which were accompanied by physical injuries, pain and suffering are sufficient to satisfy the physical harm requirement. 

DAMAGES-ECONOMIC LOSS DOCTRINE-EMPLOYEE SENSITIVE PERSONAL INFORMATION STORED BY EMPLOYER ON INTERNET ACCESSIBLE COMPUTER SYSTEM

Dittman v. UPMC, 2018 Pa. LEXIS 6051 (Pa. S.Ct. November 21, 2018) Baer, J.  We granted discretionary review in this matter to determine whether an employer has a legal duty to use reasonable care to safeguard its employees’ sensitive personal information that the employer stores on an internet-accessible computer system. We also examine the scope of Pennsylvania’s economic loss doctrine, specifically whether it permits recovery in negligence for purely pecuniary damages. For the reasons discussed below, we hold that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system. We further hold that, under Pennsylvania’s economic loss doctrine, recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract. As the Superior Court came to the opposite conclusions, we now vacate its judgment.

We conclude that the lower courts erred in finding that UPMC did not owe a duty to Employees to exercise reasonable care in collecting and storing their personal and financial information on its computer systems. This conclusion notwithstanding, Employees’ claim cannot proceed if we nonetheless hold that it is barred by the economic loss doctrine.

Purely “economic loss” may be recoverable under a variety of tort theories. The question, thus, is not whether the damages are physical or economic. Rather, the question of whether the plaintiff may maintain an action in tort for purely economic loss turns on the determination of the source of the duty plaintiff claims the defendant owed. A breach of a duty which arises under the provisions of a contract between the parties must be redressed under contract, and a tort action will not lie. A breach of duty arising independently of any contract duties between the parties, however, may support a tort action.

Here, there is a claim under § 552 of the Restatement of Torts which does not require privity.  The Economic Loss Doctrine is inapplicable to negligent representation claims under § 552.

DAMAGES-INFLICTION OF EMOTIONAL DISTRESS-MEDICAL TESTIMONY

Gray v. Huntzinger, 147 A.3d 924 (Pa. Super. 2016).  The Pennsylvania Supreme Court clearly articulated in Kazatsky (Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (1987)) that to the extent the tort of intentional infliction of emotional distress is recognized in this Commonwealth, recovery is limited to those cases in which competent medical evidence of emotional distress is presented by the claimant.  It is also supported by Hackney v. Woodring, 652 A.2d 291 (1994).  Because we have determined that Gray was not entitled to recover for IIED based on the lack of medical evidence presented at trial, we need not address the remainder of Appellants’ claims.

DAMAGES-ECONOMIC LOSS DOCTRINE

Donaldson v. Davidson Brothers, Inc., 144 A.3d 93 (Pa. Super. 2016).  This case arises out of a fatal three-way motor vehicle accident.  Donnelly rear-ended Donaldson.  Donaldson was thrust into the opposite lane of oncoming traffic, where she collided head-on with LJF.  LJF settled property damage claim with Davidson, but in the release reserved any claim for loss of contract.  LJF’s contract claim was dismissed by the lower court as violating the economic loss doctrine.  The court said that the economic loss doctrine does not bar the claim since there was undoubtedly and agreeably some property damage.  The economic loss doctrine provides that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.  It is beyond dispute that some property damage occurred.  However, LJF’s claim was dismissed anyway because they did not say in their pleading what the contract was that was violated, and the claim was not sufficiently explicit.

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