Jean v. Bucknell Univ., 2021 U.S. Dist. LEXIS 170727 (M.D. Pa. September 9, 2021) (Brann, J.). Defendant Bucknell University moves to dismiss claims brought against it by one of its students, John Jean, relating to alleged hazing Jean suffered while seeking to join a fraternity on Bucknell’s campus. In his original Complaint, Jean named Bucknell as a defendant in three causes of action: (1) negligence; (2) “hazing”; and (3) negligence per se. The Court dismissed these claims, holding that the allegations failed to support the claims against Bucknell; however, the Court did so without prejudice, granting Jean leave to amend. Jean obliged and filed his Amended Complaint, which restated the three causes of action against Bucknell but also included additional allegations concerning other instances of hazing on Bucknell’s campus, the culture of underage drinking at Bucknell, and the school’s failure to publish a fraternity recruitment handbook. Again, Bucknell argues that the allegations fail to support the claims against it. Again, the Court agrees. For the reasons provided below, Bucknell’s motion to dismiss is GRANTED.
To date, no court has specifically addressed the question of how to define “facilitate” for purposes of Section 2804 of the Pennsylvania anti-hazing statute. Federal and Pennsylvania state courts have, in certain contexts, endorsed the broad, plain meaning definition that Jean advocates for here. However, Bucknell correctly asserts that in Pennsylvania criminal statutes, the precise terminology included in Section 2804—that is, “promotes or facilitates”—generally appears in the context of criminal accomplice or conspirator liability, both of which require some level of affirmative action by the defendant. This interpretation is consistent with the United States Supreme Court’s holding in Abuelhawa v. United States, in which the Supreme Court explicitly declined to apply the plain meaning of “facilitate” (i.e., to make easier or less difficult) in the context of Section 843(b) of the Controlled Substance Act.
As noted, the facts alleged in the Amended Complaint do not establish that Bucknell was aware or should have been aware that hazing would occur at the September 10, 2020 Iota Chapter initiation event. At most, the alleged prior instances of hazing by other organizations on Bucknell’s campus provide general notice that hazing could occur at some student organization event. That is insufficient. Absent any indication that Bucknell at the very least should have been aware that hazing would occur at this initiation event—thus, that this particular incident of hazing would have been foreseeable to a reasonable institution in Bucknell’s position—the Court cannot conclude that Bucknell consciously disregarded a substantial and unjustifiable risk that Jean would be subjected to hazing.
NEGLIGENCE-SLIP AND FALL-SHOPPING CARTS
Dahl v. Sam’s East, Inc., 2021 Pa. Super. LEXIS 369 (June 1, 2021) (Pellegrini, J.) This is a premises liability case arising out of a trip and fall that happened while Mr. Dahl was shopping at Sam’s Club. While in the produce section, he walked toward a flatbed restocking cart at the end of an aisle. He stopped at the cart and smelled strawberries that were stacked on top. After putting the strawberries back, he went to step around the cart. His right foot went past the cart but his left foot got caught underneath, causing him to trip and fall. The fall caused injuries to his knees and left elbow, as well as a fractured wrist and a torn rotator cuff. Seeking damages for those injuries, Appellants sued Sam’s Club for negligence and loss of consortium, claiming that Sam’s Club had breached its duty of care by leaving the cart in the shopping aisle.
After discovery was closed, Sam’s Club moved for summary judgment.
No trier of fact could find that Mr. Dahl exercised ordinary care when he knew that the cart was there and that a danger of tripping was present and still tripped over the cart because he expected the cart to be different than it was. Reasonable minds cannot differ in concluding that the cart was a known and obvious condition that Plaintiff failed to avoid by the exercise of ordinary care. Therefore, Sam’s Club had no duty to protect him from a dangerous condition which Mr. Dahl knew existed, where he failed to act using the ordinary care of a reasonable person.
Appellants nevertheless assert that the trial court erred because of Sam’s Club policy not to leave carts in the aisle, arguing that it anticipated the harm of the open and obvious condition. However, they fail to explain how the store’s policy negates Mr. Dahl’s awareness of the cart and failure to exercise ordinary care in walking around it.
FEDERAL TORT CLAIMS ACT-LAPARSCOPIC CHOLECYSTECTOMY
Greene v. United States, 2021 U.S. Dist. LEXIS 93781 (May 18, 2021) (Conner, J.) Bench trial before Judge Conner. This was a 56-year-old Pennsylvania resident who underwent a laparoscopic cholecystectomy. The court, in a bench trial, awarded damages of $465,000. Because of a bleed that the doctor could not control, he converted the laparoscopic procedure to open. He contained the bleed by suturing the small vessel branch shut. He observed that the cystic duct and cystic artery were in the normal anatomic position. Common bile duct was identified, and was away from the surgery site. Dr. Pan proceeded to dissect the gallbladder from the liver and discovered a tubular structure straight between the liver bed and the gallbladder body, going from the liver bed directly into the gallbladder. The doctor performed an intraoperative cholangiogram. None of the doctor’s reports mentioned employing the critical view of safety technique. The doctor’s preoperative notes documented suspicion that there was aberrant anatomy. There was 650 ml of blood lost. Dr. Pan failed to adequately dissect the tissue surrounding the gallbladder and the liver. Dr. Pan failed to take the necessary preliminary steps to identify and rule out a variant anatomy. The doctor breached the standard of care under both the critical view of safety and the infundibular standards. Failure to comply with critical view of safety inexorably caused the additional patient injury. Dr. Pan’s clipping and cutting of Greene’s common bile duct and common hepatic duct was a breach of the standard of care and the cause of the injuries. The bleeding was not properly controlled.
NEGLIGENCE-SHOOTING-SALE OF WEAPONS
George Rogers v. Thomas, 2021 Pa. Super. LEXIS 291 (May 11, 2021) (McLaughlin, J.) Lloyd Thomas (“Lloyd”) shot and killed Joshua Rogers and Gilberto Alvarez (collectively, “Decedents”) in February 2012, while they were on property belonging to Lloyd’s father, Haydn Thomas (“Haydn”). Lloyd was charged criminally and a jury found him guilty in January 2014 of voluntary manslaughter. The administrators of the Decedents’ estates — i.e., the Rogers Estate and the Alvarez Estate (collectively, “Appellants”) — brought civil suits against Lloyd, Haydn, and a gun shop on Haydn’s property, The Outdoorsman Inc. (“the Outdoorsman”) (collectively, “Appellees”). Although the suits were initially in different counties, they were ultimately coordinated in Susquehanna County, and the Susquehanna County court consolidated them. At trial, the court entered a directed verdict in favor of Haydn, and after the jury rendered a defense verdict, it entered judgment in favor of Lloyd and the Outdoorsman. This appeal followed.
We conclude that the trial court erred in submitting to the jury the question of whether Lloyd was negligent. However, it did not err in permitting the jury to determine whether the Outdoorsman was liable, directing a verdict in favor of Haydn, allowing the jury to determine whether the Decedents were comparatively negligent, making certain evidentiary rulings, or consolidating the cases. As to the coordination of the cases, Appellants waived their challenge by failing to lodge a timely appeal from the coordination order. We thus vacate the judgment entered in favor of Lloyd and the Outdoorsman, affirm the judgment entered in favor of Haydn, and remand for a new trial against Lloyd and the Outdoorsman.
The jury in the criminal case found beyond a reasonable doubt that Lloyd intentionally shot Appellants, and that he believed that he had to do so in self-defense, but that his belief was unreasonable. 18 Pa.C.S.A. § 2503(b) (“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable”). Lloyd was therefore estopped from arguing that he did not intentionally shoot Appellant and also estopped from arguing that he had a reasonable belief that such action was necessary. This would prevent a finding that he acted in a “reasonably careful manner to avoid injuring or harming or damaging others.” See N.T., 4/26/18, at 154. Accordingly, it was error to permit the jury to determine whether or not Lloyd was negligent.
To establish Haydn was liable, Appellants had to prove that Haydn had control over the firearm and knew or should have known that Lloyd intended to create an unreasonable risk of harm. See Restatement (Second) of Torts § 308. To establish the Outdoorsman was liable, Appellants had to establish that Lloyd was an employee and was acting within the scope of his employment when he shot Appellants. Costa v. Roxborough Mem. Hosp., 708 A.2d 490, 493 (Pa.Super. 1998) (noting “employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment”). Therefore, Appellants needed to prove additional facts, beyond Lloyd’s negligence, by a preponderance of the evidence to establish Haydn and/or the Outdoorsman were liable.
In a new trial, the jury will be informed that Lloyd was, in fact, negligent. With this finding, a jury could reach a different result as to the Outdoorsman, that is, it could find that Lloyd was an employee of the Outdoorsman and acting within the scope of his employment when his negligence occurred. Therefore, although we decline to find that the Outdoorsman is liable as a matter of law, we conclude that a new trial as to the Outdoorsman is required to determine whether it is vicariously liable.
We conclude the trial court did not err in entering a directed verdict in favor of Haydn. Therefore, Haydn’s liability will not be at issue in a second trial.
As noted above, the trial court concluded that the issue of comparative negligence was not before the criminal jury, and therefore the civil jury should be permitted to determine whether the Decedents were comparatively negligent. We agree.
Because causation was still at issue in the civil case, it was an open question whether the Decedents’ actions were a substantial factor in causing the harm. Hence, whether Lloyd’s liability should be reduced by any negligence of the Decedents was properly before the jury. The trial court therefore did not err in denying the motion to preclude evidence of the Decedents’ actions on the day in question.
Here, the trial court concluded that there was no evidence that Lloyd was “feebleminded” or had the mental capacity of “a young child.” 1925(a) Op. at 9. We agree. Even if the Outdoorsman owned the firearm, Appellants did not present sufficient evidence to establish Lloyd had the right to possess or use the firearm only by consent of Haydn, or that Haydn knew or should have known that Lloyd intended to or was likely to use a firearm to create an unreasonable risk of harm to others. See Restatement (Second) of Torts § 308.
We conclude the trial court did not err in excluding evidence of the Decedent’s bad acts but admitting evidence of chronic drugs use.
Judgment entered in favor of Haydn affirmed. Judgment entered in favor of Lloyd and the Outdoorsman vacated.
NEGLIGENCE-MOTOR VEHICLES-SUDDEN EMERGENCY DOCTRINE
Graham v. Check, No. 42 WAP 2019 (W.D. Pa. December 22, 2020) (Wecht, J.) Pennsylvania tort law recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm. When the evidence suggests that such “sudden emergencies” may have played a role in a case, the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately. But since the advent of the automobile, Pennsylvania law also has imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections. The case now before us involves such a scenario. Citing darkness, an obstructed view, and a want of evidence of any overtly careless behavior by the driver, the trial court in this case charged the jury on sudden emergency— the pedestrian’s ostensibly abrupt appearance in front of the driver mere moments before impact. We hold that the trial evidence failed to establish a foundation for that instruction here. The decision to charge the jury on sudden emergency was prejudicial error in this case, and the plaintiff is entitled to a new trial.
The burden of establishing a sudden emergency lies with the party asserting it.
It is undisputed that Graham entered the crosswalk when the signal was in his favor, and that he proceeded across the intersection at a more or less ordinary rate of speed. This Court repeatedly has distinguished abrupt or lunging pedestrians from pedestrians proceeding in an orderly fashion. The only evidence of “suddenness” in this case appears to arise from Check’s failure to observe Graham until he was nearly upon him. Expert testimony indicated that, had Check been looking in the right direction, Graham would have been visible at a distance of fifty-four feet. It might not be negligence under the circumstances that Check did not see him sooner, but that does not make the situation a sudden emergency, only an unfortunate one.
It is difficult to envisage a circumstance in which a pedestrian who departs the curb with the signal in his favor, moves at an ordinary pace within a crosswalk at a busy intersection, and is struck when he has crossed three of four lanes at a steady pace can present any basis for granting a driver the benefit of the sudden emergency defense.
The evidence in this case left no reasonable basis upon which a jury could have found a sudden emergency. The trial court was incorrect in charging the jury otherwise.
The sudden emergency doctrine speaks directly to the duty and reasonableness of the conduct of the proponent—and indeed, as framed in this case, was presented to the jury as “a defense” in its own right. Any conclusion regarding these considerations necessarily informs an assessment of negligence made after these considerations are introduced. They cannot be disentangled. Perhaps discrete interrogatories would have helped clarify the question of prejudice by providing insight into whether the jury relied upon the sudden emergency doctrine in concluding that Check was not liable. But we have only the jury’s finding on the question of negligence, as to which it was instructed to consider the prospect that Check faced a sudden emergency not of his own making. Given this uncertainty, and given the potential for prejudice arising from the instruction generally (especially when the instruction characterizes the doctrine as a “defense”), we have good reason to question whether the instruction confused or misled the jury to an extent that it would have reached the same verdict had it not received such license to measure Check by a different yardstick than would apply without the instruction. It appears that the trial court blurred the line between what comprises evidence of a sudden emergency and that which militates either against finding Check negligent or for finding Graham contributorily negligent. We discern a reasonable probability that the jury would have held Check to the higher standard and deemed him negligent. Accordingly, we cannot conclude that the error was harmless. Thus, Graham is entitled to a new trial untainted by the sudden emergency instruction. Accordingly, we reverse the order of the Superior Court affirming the trial court’s decision to instruct the jury on the sudden emergency doctrine, and we remand for a new trial.
The Pennsylvania Bar Association Quarterly, “Liability Unmasked: Pennsylvania’s Tort Law Applied to COVID Anti-Maskers”, January 2021, Vol. XCII, No. 1. This article discusses liability unmasked Pennsylvania tort law applied to COVID anti-maskers. The interesting article addresses applying tort law to anti-masker encounters, assault and battery, infliction of emotional distress, negligent infliction of emotional distress and negligence. Their conclusion was the law of torts, while evolving, might make the wearing of masks in public accommodations a new social duty within the context of the present pandemic.
NEGLIGENCE-NEGLIGENT ENTRUSTMENT-MOTOR VEHICLES
Al-Sharif v. Gagliordi, No. 10242 of 2020 C.A. (C.P. Lawrence October 13, 2020) (Motto, P.J.) In this case, plaintiff failed to set forth any facts in support of the allegations that defendant J&L Roofing knew or should have known that defendant Gagliordi was an unsafe driver, other than that defendant J&L Roofing failed to inquire as to defendant’s driving history. It is insufficient that plaintiffs made several other allegations that J&L Roofing negligently entrusted the vehicle because it knew or should have known that he would operate the vehicle in a negligent manner and did not properly instruct him. The complaint is devoid of any facts to indicate how J&L Roofing knew or should have known that he was an unsafe driver. The case is simply factually deficient.
NEGLIGENCE-TREES-STATUTE OF LIMITATIONS
Long v. George Reccek, 2020 Pa. Super. LEXIS 944 (November 25, 2020) (McLaughlin, J.) Appellants instituted this suit in July 2018. They asserted claims of trespass, nuisance, and negligence against Reccek, and breach of contract against Foxwood’s homeowners’ association. The parties filed motions for judgment on the pleadings, and the trial court dismissed the negligence claim against Reccek and the breach of contract claim against the homeowners’ association. Reccek filed the instant motion for summary judgment in August 2019, asserting that Appellants’ remaining nuisance and trespass claims were barred by the statute of limitations. Reccek also claimed that because Appellants had allegedly failed to respond to Reccek’s request for admissions in a timely manner, they could not establish damages. In an opinion and order dated October 23, 2019, the trial court granted Reccek’s summary judgment motion based on the statute of limitations alone. It did not rule on the damages issue.
To determine whether a trespass or nuisance constitutes a permanent or continuing cause of action, courts must consider a variety of factors, including: 1) “the character of the structure or thing which produces injury”; 2) whether “‘the consequences of the [trespass/nuisance] will continue indefinitely’”; and, 3) whether the “‘past and future damages’ may be predictably ascertained.” Cassel-Hess, 44 A.3d at 87 (quoting Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46-47 (Pa. 1964)).
We noted the “continuing” nature of the trespass that encroaching trees present:
The continuing presence of the branches and trees overhanging property lines indicates that the nature of the relief afforded to the aggrieved landowner is not limited to monetary relief. The Restatement notes that a continuing trespass is committed by the “continued presence of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.” Restatement (Second) of Torts § 161(a). An actor places branches “tortiously” on another’s property when he is subject to liability in tort, that is, when he is trespassing onto another’s property. Id., comment a. As we have noted, a trespass occurs by a mere overhang. Furthermore, given the rather unremarkable observation that trees will tend to grow, the trespass, even if remedied once, is bound to recur just as soon as the trees or shrubbery regenerate. See, Graybill v. Providence [593 A.2d 1314 (Pa.Commw.Ct, 1991)] (recurring flooding on plaintiff’s land caused by defendant’s conduct is a continuing trespass). Thus, the trespass is “continuing” and the possessor of land is entitled to pursue a proper remedy.
Jones v. Wagner, 624 A.2d 170 (Pa. Super. 1993).
Appellants’ causes of action for trespass and nuisance are continuing in nature. See Kowalski v. TOA PA V, L.P., 206 A.3d 1161 (Pa. Super. 2019).
Accordingly, we conclude that the trial court erred by dismissing on statute of limitations grounds Appellants’ causes of action for trespass and nuisance against Reccek. We do not address Reccek’s request that we affirm in part on the alternative basis that Appellants cannot establish certain damages, without prejudice to Reccek’s ability to seek such a ruling from the trial court in the first instance.
Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
NEGLIGENCE-CONFIDENTIAL MEDICAL RECORDS
Fausnaught v. UPMC Susquehanna, No. 19-1047 (C.P. Lycoming September 9, 2020) Linhardt, J. This case involved unauthorized release of confidential medical information by one employee against another at UPMC. UPMC, along with the employee, got sued for releasing the information. Preliminary objections followed. Judge Linhardt overruled the demurrer against UPMC for negligence. However, the court did dismiss the count for negligent supervision, negligence per se, and dismissed the count under the UTPCPL. The court also sustained the motion to strike punitive damages as applicable to UPMC. However, the court said that this may be reinstated based upon what discovery shows. Motion to strike all references to duties under PHCFA were sustained. PO in the nature of motion to strike for failure to plead material facts was overruled. However, plaintiffs had to file a second amended complaint complying with the court order. The court finds that dissemination of another patient’s medical records to Lori Fausnaught is outside the scope of permissible discovery. The court found that defendant UPMC’s responses to plaintiff’s request for discovery were insufficient and ordered them to give more specific information.
NEGLIGENCE-MENTAL HEALTH TREATMENT-THIRD PARTY THREAT
Maas v. UPMC Presbyterian Shadyside, 2020 Pa. LEXIS 3812 (July 21, 2020) Dougherty, J. We consider the duty of mental health treatment providers to warn individuals who may be the subject of their patient’s threats. In the present appeal, the mental health patient lived in a forty-unit apartment building and repeatedly told his doctors and therapists he would kill an unnamed “neighbor”. Tragically, he ultimately carried out his threat, killing an individual who lived in his building, a few doors away from his specific victim. The trial court rejected this argument and denied the providers’ motion for summary judgment, allowing the case to proceed to trial. On appeal, the Superior Court agreed, and we now affirm. Specifically, for five months after moving into Hampshire Hall, Andrews frequently expressed suicidal and homicidal ideation, complaining about his neighbors and others. He had verbal run-ins with the neighbors. He threatened to kill his next-door neighbor. Andrews did not identify any neighbor by name, and appellants took no measures to warn any residents of Hampshire Hall regarding these threats. Andrews murdered Lisa Maas, a 19-year-old Pennsylvania Culinary Institute student by stabbing her to death with scissors in her apartment located 5 doors away from Andrews’ own apartment on the fourth floor of Hampshire Hall. The case to look at on the subject is Emerich v. Philadelphia Center for Human Development, 720 A.2d 1032 (Pa. 1998). The Emerich court held that the circumstances in which a duty to warn a third party arises are extremely limited. The patient must communicate a “specific and immediate threat” against a “specifically identified or readily identifiable victim.” Andrews never specifically named the decedent as the object of his homicidal ideation. The trial court denied summary judgment, concluding that there was evidence from which a reasonable jury could conclude that tenants residing on Andrews’ floor in Hampshire Hall were a readily identifiable group of people to whom Appellants owed a duty to warn. The Supreme Court agreed. The record establishes that appellants had a duty to warn “readily identifiable” victims, and the present record supports a finding that Lisa Maas, who was a neighbor who resided on the same floor of Hampshire Hall as Andrews, was just such a “readily identifiable” victim. Therefore, the Order of the Superior Court is affirmed.
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 related directly to one of the elements of negligence. Ms. Jones would testify that Mr. Stover’s breach of his duty caused her harm. Hence, the testimony goes to the heart of her negligence claim. In the 40 years since earlier case law on the subject, the Supreme Court has never extended it to allow testimony on an element of negligence. Accordingly, the court rejects the Jones contention that the application of the Dead Man’s Act was overly broad. As to waiver, there is no waiver because of settlement letters. Ms. Jones may not avoid the Dead Man’s Act on waiver grounds. The lack of a handrail may go to negligence but does not necessarily prove causation. The note that the steps had no railing is legally insufficient to place the question of causation before the jury. The absence of a hand railing does not cause one to fall; its absence only makes it more difficult to catch oneself after the fall begins. The medical records do not prove the theory of causation.
NEGLIGENCE-PER SE NEGLIGENCE-MOTOR VEHICLE ACCIDENT
Grove v. Port Authority of Allegheny County, 2019 Pa. LEXIS 6124 (S. Ct. October 31, 2019) Mundy, J. This case involves a lawsuit against a municipality. A bus ran over somebody’s leg, which is amputated from the knee down. The verdict was for the plaintiff with a finding of 50% negligence on the part of the pedestrian and 50% negligence on the part of the bus driver employed by the municipality. However, the total verdict was reduced because of the cap on damages under the Political Subdivision Tort Claims Act. The ultimate verdict was $250,000. The Commonwealth Court had erroneously granted a new trial, saying that the trial judge should have charged on per se negligence. The court said that was not necessary since the plaintiff won anyway. Per se negligence goes only to duty and not to causation or damages. The court should not have granted a new trial, and therefore the Commonwealth Court was reversed.
Grove v. Port Authority of Allegheny County, 2019 Pa. LEXIS 6124 (S. Ct. October 31, 2019) Mundy, J.
NEGLIGENCE-ASSUMPTION OF THE RISK
Valentino vs. Phila. Triathlon, 2019 Pa. LEXIS 3368. Evenly divided Opinion in support of affirmance – Justice Baer. This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedents heir (“Appellant”), who was not a signatory to the agreement. The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S.§8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis. Once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while still alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).
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 to preserve only thirty-seven minutes of video prior to Ms. Marshall’s fall and approximately 20 minutes after, and permitted the remainder to be automatically overwritten after thirty days. The jury returned a verdict in favor of ShopRite, finding no negligence. In the instant case, counsel for Ms. Marshall contacted ShopRite within two weeks of her fall, advised it of impending litigation, and requested that it preserve six hours of video surveillance prior to her fall and three hours after her fall. Thus, ShopRite was on notice to retain the evidence. As we stated, in Mt. Olivet, supra. At 1269 (quoting Nation-Wide Check Corp. vs. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982)).
NEGLIGENCE-SLIP AND FALL-MEDICAL EXPERT
Wright v. Residence Inn by Marriott 2019 Pa. Super LEXIS 330 (April 9, 2019) Kunselman, J.-Superior Court reversed trial court in refusing to admit plaintiff’s sole medical expert. The objection to the testimony was that plaintiff’s expert was precluded because the case was so specialized. Marriott argued the doctor was not sufficiently qualified in orthopedic surgery since he was simply an internist. The doctor who was plaintiff’s expert practiced for 37 years and rotated through all specialties including orthopedic surgery. He had been on the staff of at least two hospitals. He had been qualified previously. It was prejudice to not let him testify. The case was sent back for trial.
NEGLIGENCE-SKIING ACCIDENT-ASSUMPTION OF THE RISK
Vu skied over the edge of a trail in order to avoid another skier. Vu landed in a pile of rocks and suffered injuries. The edge was allegedly created by the defendant’s snowmaking and snow-grooming practices. The plaintiff’s action was brought by the PSRA. The injured party was engaged in the sport of downhill skiing, but denied that the “inherent risk” prong was satisfied. Skiing off the edge of a trail 3-4 feet above natural terrain is inherent to the sport of downhill skiing. Plaintiff’s injuries were caused by risks inherent to downhill skiing. Vu v. Ski Liberty Operating Corp., 20190 U.S. App. LEXIS 4261 (3d Cir. February 12, 2019) Chagares, C.J.
NEGLIGENCE-SLIP AND FALL
Koziar v. Rayner, 2018 Pa. Super. 331 LEXIS 1312 (December 7, 2018) Strassburger, J. This case involved a cleaning lady who fell on property of the owner. The jury found negligence, but that it was not a factual cause of the harm suffered by the cleaning lady. The court granted a new trial. There was never any agreement in this case that the cleaning lady suffered any injuries at all. The homeowners vigorously challenged causation and presented ample evidence of other conflicting causes of the injury. Therefore, the jury had the right to reject factual cause.
Drivers Are Addicted to Distracting Activities – Automakers Aren’t Helping
Emerging technologies are cool and useful, but they can also take drivers down a path of distraction that leads to increased crashes. Driving while distracted is illegal in 47 states, including Pennsylvania; but people are addicted to their gadgets and technology, and new cars have more of these than ever. As a result, the AAA Foundation for Traffic Safety has been studying how to minimize the driving distractions they say kill 3,500 people and injure 390,000 in U.S. crashes every year.
According to the Washington Post the study showed that new vehicle technology involving buttons, touch screens, gesture controls, heads-up displays, and voice commands are often not safe when used while the vehicle is in motion. For example, distractions from Apple’s CarPlay and Google’s Android Auto shaved crucial seconds from the time that drivers could get their eyes back on the road.
The AAA survey found that almost half of drivers said they make calls and 35 percent sent a text or email while driving. In the less than 4.5 seconds it takes to send a text, a vehicle going 55 mph covers more than the length of a football field and can easily cause a crash.
If you or a loved one has suffered harm from a crash involving a distracted driver, you may be entitled to financial compensation to cover medical, hospital and rehabilitation expenses, past, present and future. Damages may also cover current and future lost wages, including loss of wage horizon. Property loss may be covered as well as non-economic compensation, which is often the greatest loss. Non-economic compensation may be loss of life’s pleasures during one’s life, disfigurement, pain and suffering, and other items. However, your case must be handled correctly to prove the other driver was at fault or you may never collect the compensation you are entitled to.
Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann knows the courts and the system and what you need to do to increase your chances of winning a good settlement. We offer a free consultation to carefully examine the individual facts in your case and determine the best way to handle it. Contact us today by calling or by using our online contact form to set up your free consultation.
Pennsylvania Distracted Driving
In the last five years, distraction citations in Pennsylvania have shot up dramatically, according to data by the Administrative Office of Pennsylvania Courts. There were 5,054 citations in 2017 for offenses related to texting, using a hand-held cell phone and wearing or using headphones while driving — up from 3,336 the year before, and up 172 percent from the 1,858 citations issued statewide in 2013.
Since March, 2012, Pennsylvania has had a law that prohibits all drivers from using an Interactive Wireless Communication Device to send, read or write text-based messages while their vehicle is in motion. This is a primary law, which means that a police officer has the right to pull drivers over and give them a ticket for texting while driving, without having to witness another moving violation. The law carries a $50 fine and nearly $90 in court costs.
Unfortunately, the texting ban is inadequate to protect people from drivers, especially teens, who are distracted by handheld devices, because Pennsylvania law doesn’t prohibit drivers from talking on their cell phones (even hand-held ones) while their vehicle is in motion.
DRIVERS MUST BE RESPONSIBLE
Distracted driving is any non-driving activity that has the potential to distract the driver from the primary task of driving and increases the risk of crashing. Distractions can be visual (taking eyes off the road), manual (taking hands off the wheel), or cognitive (taking mind off what you’re doing). Texting is particularly dangerous as it involves all three, but so does fiddling with controls for many of the technological features found in newer vehicles.
Anyone who gets behind the wheel of a motor vehicle is required to drive responsibly and practice safe driving habits. When drivers devote their attention to anything other than the road, they must be held responsible for any injuries they cause.
INJURED IN AN ACCIDENT? GET A FREE CONSULTATION.
If you or a loved one was involved in a crash due to someone else’s negligence caused by driving while distracted, you have a right to receive compensation for your injuries, lost wages, medical costs, loss of life’s enjoyment, and property and other damages. To protect your rights and maximize compensation, it is important to have an experienced lawyer on your side to determine the cause of the car accident and identify the responsible parties. Prompt legal consultation can ensure the collection of relevant facts and the preservation of evidence.
The skilled and experienced Pennsylvania distracted driving attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome. With our competent staff, we offer strength in numbers while providing top-notch personal service.
We have years of experience dealing with the harm that results from vehicle crashes. As a result, we have been successful in securing substantial recoveries for legitimate claims.
Pennsylvania auto laws are complex. Pennsylvania is governed by the Financial Responsibility Law. Cliff Rieders has a great deal of experience in this field of the law and was involved in its creation. Rieders wrote the book on the subject, Financial Responsibility Law Issues in Pennsylvania. This book is available at www.amazon.com. Cliff Rieders teaches the subject of motor vehicle insurance laws to experienced attorneys in Pennsylvania.Cliff Rieders is a Nationally Board-Certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude Phi Beta Kappa graduate of New York University as well as Georgetown University Law Center. Rieders is a life member of the American Law Institute, which publishes recommended legal principles utilized throughout the United States. He is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years. Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania, and he wrote the book on medical malpractice that lawyers use in the state. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States. He is a Nationally Board-Certified specialist for Civil Trial and Civil Practice and Procedure and is admitted in state and federal courts, including the Supreme Court of the United States.
If you or your loved one has suffered harm from someone else’s negligence, your next step should be to consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling or using our online contact form.
Distracted Driving Enforcement Increases in Pennsylvania; Distraction Continues to Be a Problem
Pennsylvania is cracking down on anyone caught driving while distracted, and the number of distracted driving citations is climbing. Ticketed drivers pay a $50 fine plus $90 for court costs. According to the Administrative Office of Pennsylvania Courts, citations increased by 52 percent statewide in 2017 and 172 percent since 2013.
The heightened emphasis on distracted driving is for good reason: The Pennsylvania Department of Transportation (PennDOT) reports 1,188 total deaths on Pennsylvania roads in 2016, with distracted driving a contributing factor in 61 of them.
If you or a loved one was injured or if someone has died in a crash involving distracted driving, you may have a claim for compensation for your losses. This includes medical, hospital and rehabilitation bills that are not covered by first party personal injury protection, lost wages and future wage horizon and other economic expenses. You may also have a claim for noneconomic damages such as loss of life’s pleasures, pain and suffering, and disfigurement.
Pennsylvania auto laws are complex. Pennsylvania is governed by the Financial Responsibility Law. Cliff Rieders has a great deal of experience in this field of the law and was involved in its creation. Rieders wrote the book on the subject, Financial Responsibility Law Issues in Pennsylvania. Your case must be handled correctly and competently or you may never collect the compensation you are entitled to. It makes sense to have an experienced distracted-driving attorney on your side to protect your rights and maximize the compensation you receive.
Attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann knows the courts, the insurance companies, the system, and what you need to do to increase your chances of winning a good settlement. Our attorneys have successfully represented people who have been harmed in crashes involving distracted drivers throughout Pennsylvania. Contact Rieders, Travis, Humphrey, Waters & Dohrmann today by calling for a free consultation to evaluate the circumstances of your accident, or use our online contact form.
What is Distracted Driving?
Distracted driving is any non-driving activity that has the potential to distract the driver from driving and increases the risk of a crash. Distractions can be visual (taking eyes off the road), manual (taking hands off the wheel), or cognitive (taking mind off what you’re doing). Since texting involves all three, it is particularly dangerous. Texting typically takes a driver’s eyes off the road for 5 seconds, which is like driving the length of an entire football field with eyes closed.
Pennsylvania law prohibits all drivers from texting while driving, which includes sending, reading or writing a text-based message or e-mail, and from wearing or using headphones or earphones while the car is in motion. This is a primary law, which means that a police officer has the right to pull drivers over and give them a ticket for texting while driving, without having to witness another moving violation.
The National Highway Traffic Safety Administration (NHTSA) includes activities such as talking, eating or adjusting radios or navigation devices as distracted driving. According to the AAA Foundation for Traffic Safety, talking with a passenger could be as distracting as using a phone, and using a speech-to-text system is even more dangerous than using a handheld or hands-free phone.
Your chances of receiving a ticket for distracted driving depend on what county you are driving in. Montgomery County had the highest number of distracted driving citations from 2013 to 2017, with a total of 1,695 citations over those years.
Other top counties for citations are Chester, Bucks, Delaware and Berks counties. Chester County had a total of 963 citations given over that time period, while Bucks County followed closely with 859 citations, Delaware County with 659, and Berks County with 589.
Lycoming County and North Central Pennsylvania counties are crisscrossed by interstate roads, rural roads, and sometimes very bad driving conditions. Distracted driving is exacerbated by bad roads, speeding truck drivers and unsafe drivers who frequently drink and drive.
Lawsuits Against Distracted Drivers
When drivers devote their attention to anything other than the road, they must be held responsible for any injuries they cause. Evidence that a driver was on a cell phone at the time of an accident is admissible in a lawsuit and may support an award of punitive damages against the distracted driver. For punitive damages to be awarded, there must be outrageous conduct. Sometimes punitive damages are not covered by insurance.
If you or a loved one has been injured or someone has died in a crash that you suspect was caused by a distracted driver, you should contact an attorney as soon as possible. Prompt legal consultation can ensure the collection of relevant facts and the preservation of evidence. Pennsylvania has a statute of limitations of two years after the accident for filing a personal injury or property damage lawsuit, and the sooner you file, the easier it is for your attorney to find witnesses and evidence to help your case.
Achieving Results When it Counts
The skilled and experienced Pennsylvania distracted driving accident attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to another driver’s negligence. Our attorneys offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome. With our competent staff, we offer strength in numbers while providing top-notch personal service. We have years of experience dealing with the harm that results from distracted driving crashes and have been successful in securing substantial recoveries for legitimate claims.
Cliff Rieders is a Nationally Board-Certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude Phi Beta Kappa graduate of New York University as well as Georgetown University Law Center. Rieders is a life member of the American Law Institute, which publishes recommended legal principles utilized throughout the United States.
Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years. Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders is the lawyer that other lawyers call for counsel and advice and is admitted in Pennsylvania, New York and the District of Columbia state courts and many federal courts, including the Supreme Court of the United States.
If you or your loved one has suffered harm from someone else’s driving negligence, your next step should be to consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling or using our online contact form. Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.
NEGLIGENCE-INCREASED RISK OF HARM
Straw v. Kirk A. Fair and Golon Masonry Restoration, Inc., et al., 2018 Pa. Super. 125 (May 11, 2018) Olson, J. An appeal was taken from a judgment in favor of Jennifer M. Straw and Thomas P. Straw, individually and as administrators of the Estate of Elijah C. Straw, a deceased minor, and Rowan J. Straw, a minor, by and through his parents and natural guardians, Jennifer M. Straw and Thomas P. Straw, against appellants in the amount of $35,114,122.78. The court vacated the judgment and remanded. The basic facts are that Thomas Straw was driving his Pontiac Vibe automobile in Allegheny County. Several of the Straws were passengers in the car. As the Straws were driving down the highway, their vehicle experienced a mechanical malfunction that caused Thomas Straw to reduce his speed and bring the vehicle to a controlled stop in the middle of the highway. Mr. Straw turned on his hazard flashers. Kirk Fair was driving behind the Straws in a Ford F-250 truck that his employer provided to him. Mr. Fair did not stop his truck in time and crashed into the Straws’ stationary vehicle traveling in excess of 60 miles per hour. Mr. Fair was driving under the influence of narcotics, it was alleged. There was also a claim against Golon Masonry for vicarious liability and for independent negligence in the hiring, training and supervising of Mr. Fair. There are counts against those who attempted to fix the hood of the car, the Vibe, because the hood latch failed and vehicle’s hood flew open and obstructed Mr. Straw’s vision of the road. This is what caused him to bring his vehicle to a stop. Jiffy Lube, although not in the business of fixing hoods of cars, free of charge, took a look at the hood. NAPA Auto Parts was involved in taking a look at and trying to fix the hood latch. The trial court erred when it granted summary judgment to additional defendants and to Thomas Straw. The court relied upon § 324A of the Restatement of Torts which is liability to third persons for negligent performance of undertaking.
Thomas Straw took his vehicle to Tower Auto for state inspection. Tower Auto noticed the problem with the hood latch assembly. An employee at Tower Auto used penetrating oil on the latch. A police officer who wrote a report said that penetrating oil should not have been used because it eventually dried out, causing the latch to revert back to its malfunctioning condition.
Tower Auto owed Mr. Straw a duty under § 323 of the Second Restatement of Torts and under 324A of the Second Restatement. There is a material issue of fact as to whether Tower Auto breached a duty of care to plaintiffs. The employee of Tower Auto should have realized the risk to the drivers of the vehicle. He increased the risk of physical harm by poor workmanship and the Straws relied upon his workmanship.
Viewing the expert report in the light most favorable to appellants demonstrates that Tower Auto breached the duties it owed to plaintiffs under §§ 323 and 324A of the Second Restatement at the time it serviced the hood latch.
Jiffy Lube potentially owed duties of care to plaintiffs, and Jiffy Lube breached those duties. A Jiffy Lube employee undertook for free to repair the hood latch. That employee failed to exercise reasonable care in performing work on the vehicle and to advise Mr. Straw about the car’s safety issue. A Jiffy Lube employee failed to exercise reasonable care, increasing the risk of harm to the Straws’. There was reliance upon that undertaking.
As to NAPA Auto, Mr. Straw could not remember whether the NAPA Auto employee did anything physically with the car. However, he relied upon the NAPA employee’s assurances that the hood was safe. Six weeks later, the incident occurred. The expert report said the Pontiac Vibe had been damaged for a substantial amount of time prior to the collision. The NAPA Auto Parts employee did whatever they did for free, and again, did not exercise reasonable care and there was reliance. The trial court was wrong to find that NAPA had no duty towards the Straws. Again, the court relied upon the Restatement (Second) 323 and 324A. NAPA’s argument fails.
There was evidence that if the additional defendants had not been negligent plaintiff would not have driven the car, the hood on plaintiff’s car would never have opened and plaintiff would never have stopped the vehicle on the highway. Mr. Fair would never have crashed into plaintiff’s vehicle under that scenario.
Fair’s reckless conduct was not a superseding intervening cause as a matter of law. Additional defendants knew or should have known that the foreseeable consequence of any negligence with respect to the hood latch would be that the Straws would drive their vehicle, have problems with it, and might be hit by a reckless driver.
Mr. Fair’s conduct may have been criminal, but he never acted intentionally. Criminal conduct does not act as a per se superseding force. Our Supreme Court focuses not upon the criminal nature of the act, but upon whether the act was so extraordinary as not to be reasonably foreseeable. This is a judgment to be made by a jury.
It is foreseeable that people drive dangerously drunk or intoxicated and to hit a car pulled over on the highway like this. A jury must determine if Mr. Fair’s criminal acts, and particularly whether the combination of speed, inattentive driving and alleged intoxication were so extraordinary as not to be reasonably foreseeable to the additional defendants, and whether the case falls within §§ 442B or 449 of the Second Restatement of torts.
Appellants established a jury question that additional defnedant’s negligence was a substantial factor in causing plaintiff’s injuries. It will be up to the jury to determine substantial factor.
As to the question as to whether Mr. Straw was negligent for driving a vehicle even though he knew that the hood latch was not in good operating condition, the court erred in dismissing the crossclaim against Mr. Straw. It is up to a jury to determine whether Mr. Straw’s alleged breach of duty to his occupants was the proximate cause of the accident and whether Mr. Fair’s conduct constituted a superseding cause of the harm. The trial court’s contrary holding was error.
The court also looked at § 7102(a.1) or the Uniform Contribution Among Tortfeasors Act. The court found that the Act permits apportionment and contribution between co-defendants in strict liability actions. The broad terms of the Act do not limit themselves to “negligent” conduct, but rather the terms necessarily include “liability” for reckless and negligent conduct. The plain language of 42 Pa. C.S.A. § 7102(a.1) and the UCATA permit apportionment and contribution between reckless and negligent co-defendants. Since appellant’s crossclaim against Mr. Straw rendered Mr. Straw a crossclaim defendant in the action, and since Mr. Fair’s recklessness does not preclude apportionment or potentally contribution between him and his allegedly negligent co-defendants, including Mr. Straw, the trial court erred in dismissing appellant’s crossclaim against Mr. Straw.
NEGLIGENCE-CAUSATION-INJURY OR HARM
Corvin v. Tihansky, 2018 Pa. Super. LEXIS 362 (April 20, 2018) Shogan, J. Jury answered “no” to the question as to whether there was any harm as a result of a minor rear-end automobile accident. The court said that its conscience was not shocked by the verdict. The question was whether the plaintiff had a herniated disc from the automobile accident.
This case is very similar to Maiczyk vs. Oesch, 789 A.2d 917 (Pa. Super. 2001), an en banc decision. In that case, the plaintiff was a passenger in a car that was rear-ended by the defendant’s vehicle. She alleged that the impact caused a herniated disc which required surgery to repair. The defendant’s expert conceded that the plaintiff had sustained some injury, but not a herniated disc. Instead, he opined that the plaintiff had suffered a cervical strain. The jury returned a defense verdict. The Superior Court framed the issue thusly: May a jury find for a defendant despite his or her obvious negligence where it does not believe that the plaintiff’s pain and suffering are compensable? The Superior Court first observed that not all pain and suffering is compensable, Boggavarapu vs. Ponist, 542 A.2d 516 (Pa. 1988) and then pointed out that the plaintiff was seeking compensation for a serious injury, a herniated disc and subsequent surgery, and not for a few days or weeks of discomfort. It was entirely within the jury’s province to find that the plaintiff had suffered no compensable injuries. The trial court was therefore affirmed. Here, the only evidence of [Appellant’s] cervical strain was his description of his symptoms to his doctors and Dr. Zorub. Given the fact that he kept the knowledge of the pre-accident existence of similar symptoms from all the physicians he encountered, it might be observed that he presented to the jury an issue of credibility.
The court was correct not to grant a new trial. The plaintiff driver had no problems with his neck or upper extremities prior to the accident and was never seen by any doctor and had never undergone any testing in regard to a prior accident.
NEGLIGENCE-HOLD HARMLESS CLAUSE-SKIING
Kibler v. Blue Knob All Seasons Resort, 2018 Pa. Super. LEXIS 357 (April 19, 2018) Ford Elliott, P.J.E. This case involved a skier who signed an exculpatory clause in a release which included ruts, bumps, growth, etc. The person fell in a trench while traversing from one slope to another. The court held the Pennsylvania Skier’s Responsibility Act controlled. There was no gross negligence, found the court. The release was not ambiguous. The trenches created by the all-terrain vehicles traversing the slope would be included within the release and was not gross negligence or recklessness. The actions were not improper in normal slope maintenance.
NEGLIGENCE-SLIP AND FALL-HILLS AND RIDGES
Collins v. Philadelphia Suburban Development Corporation and Ross’s Home Improvement, Inc., 2018 Pa. 17, No. 1484 EDA 2017 (Pa. Super. January 31, 2018) Stevens, P.J.E. David Collins appealed from a judgment entered in a slip and fall case. It was claimed tha the trial court erred in granting motion for summary judgment. Summary judgment was affirmed. The bottom line is that the fall occurred during a blizzard and a large amount of snow had accumulated over many hours. There was no dispute that Mr. Collins slipped and fell on ice and snow from an active blizzard. It was therefore claimed that there was no breach of duty. The court noted that to recover for a fall on ice or snow covered surface it must be shown: (1) that the snow and ice had accumulated on the sidewalk in ridges or elevations in such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling; (2) that the property owner had notice, either actual or constructive of the existence of the condition; and (3) that it was a dangerous accumulation of snow and ice which caused the plaintiff to fall. The doctrine only applies where there is an accumulation of ice and snow from an entirely natural accumulation following a recent snowfall. There was no factual dispute that Mr. Collins slipped and fell on ice and snow during an active blizzard. Generally speaking, slippery conditions prevailed in the community. A landowner has no obligation to correct conditions until a reasonable time after the winter storm has ended. Accordingly, there was no duty to remove the ice and snow, which began at approximately 8:30 a.m,. from a sidewalk at the time Mr. Collins fell between 1:30 p.m. and 2:00 p.m., particularly in light of the fact that the blizzard was still occurring at this time. Summary judgment affirmed.
NEGLIGENCE-SLIP AND FALL-INDEPENDENT CONTRACTORS-RETAINED CONTROL EXCEPTION
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 that work was to be accomplished. As a result of the extensive control that the premises owner retained with regard to the operative details of the contractor’s janitorial work, a triable issue of fact exists as to whether the requisite quantum of control was retained so as to expose the landowner’s liability. Therefore the property owner’s motion for summary judgment will be denied.
Uber Halts Project After Pedestrian Death
Self-driving cars are claimed to be safer than the average human driver as they eliminate human error, but they can and do crash. Recently, a self-driving Uber SUV struck and killed 49-year-old Elaine Herzberg who was walking her bicycle across a street in Tempe, Arizona. A test driver from Uber was behind the wheel of the car at the time, but the car was driving automatically.
While self-driving cars are revolutionizing driving, when an accident occurs, the concept raises numerous legal issues. If a driverless car causes a crash, who is liable for personal injury claims? There is no driver controlling the vehicle, so even if someone is sitting behind the wheel, that person is, in essence, a passenger. The car itself is the driver; but can you hold a car liable for an accident?
If you or a loved one has suffered harm from a crash that involved a self-driving vehicle (or any vehicle), you may be entitled to compensation for your medical bills, lost wages, and pain and suffering. However, your case must be handled correctly and competently, or you may never collect the compensation you are entitled to.
Self-Driving Cars in Pennsylvania
Pennsylvania is a proponent of highly automated vehicle (HAV) technology, and our variable climate and topography make good testing grounds for self-driving cars. Pittsburgh’s Carnegie Mellon Universityis considered to be the birthplace of the autonomous vehicle and has developed 14 HAVs to date. In late 2016, Uber began operating self-driving cars around select areas of the city.
The Pennsylvania Department of Transportation (PennDOT) has released guidelines for autonomous cars. Pennsylvania law requires that a self-driving car have a steering wheel and a person in the driver’s seat, but anticipates developments that may eliminate the need for both. HAV companies entering contracts with PennDOT must provide a testing plan, may be restricted to designated routes, and testers are required to collect and share crash data and information about the car’s operations.
What are Concerns?
There are several concerns with self-driving vehicles, including:
- Security — A concern with autonomous vehicles is the prospect of a malicious hacker breaking into an HAV’s computer system and taking control of the vehicle. All testers must provide proof of cybersecurity measures, including the ability for police and emergency responders to shut down compromised vehicles remotely.
- Technology – The technology is still evolving and not perfected. The National Highway Traffic Safety Administration recently recognized Google software as the “driver” in their self-driving cars.
- Liability — If an autonomous vehicle is at fault, who is responsible? If car problems are the reason for a crash, the manufacturer and/or software companies will probably be held liable. If parts break, the manufactures will be held responsible, but if the driverless software malfunctions, developers such as Google may be liable. In cases where there is a function in self-driving cars where a human driver can take over, drivers might still be responsible.
Lawsuits have already been filed for several incidents. One involved a Chevrolet Bolt that collided with a motorcyclist in San Francisco on December 7, 2017. The lawsuit against General Motors alleges that General Motors “owes a duty of care in having its self-driving vehicle operate in a manner in which it obeys the traffic laws and regulations,” but that the company “breached that duty in that its self-driving vehicle drove in such a negligent manner that it veered into an adjacent lane of traffic without regard for a passing motorist.”
March 11 – 17: Patient Safety Awareness Week
People going into hospitals and medical facilities do so to get better, not to get sicker; unfortunately, many wind up suffering harm that is significant and preventable. The Institute for Hospital Improvement (http://www.unitedforpatientsafety.org) states, “Most people in the U.S. are likely to experience a missed, delayed or wrong diagnosis in their lifetime.” And according to the American Association for Justice, one out of every three hospital patients will experience a medical error, which cost nearly 120,000 patients’ lives each year.
The Pennsylvania Patient Safety Authority reports a third of a million errors a year as serious events and incidents. Only about 1,400 people a year file lawsuit in Pennsylvania. Therefore, it is clear that most patients do not sue over preventable medical errors. Cliff Rieders helped to write the legislation and was one of the first appointees to Pennsylvania’s Patient Safety Authority. Cliff Rieders served for 15 years on the Patient Safety Authority and received a commendation of great respect when he decided to leave the Authority.
To bring this problem to the public attention, March 11-17, 2018, has been designated as National Patient Safety Awareness Week, with activities planned to increase patient safety.
Hospitals and health care facilities should always put patient safety first, but if this doesn’t happen and the patient suffers complications, the institution may be held financially responsible where negligence is proven.
Patient Safety Week
The Institute for Healthcare Improvement’s campaign, “United in Patient Safety,” culminates each year with Patient Safety Awareness Week, (http://www.unitedforpatientsafety.org/ ) to increase awareness and spread the message about patient safety among both health professionals and the public. Medical facilities are encouraged to get involved by doing the following activities:
1) Registering for a complimentary webcast, Engaging Patients and Providers: Speaking Up for Patient Safety, Monday, March 12, 2018 | 1:00 – 2:00 p.m. Eastern Time.
2) Planning activities for the week, with suggestions that include sharing what the organization is doing to observe Patient Safety Awareness Week on social media and via the online discussion forum. Join the Twitter Chat @TheIHI and others discussing Building a Culture of Safety, on Friday, March 16, from noon to 1:00 p.m. Eastern Time. Use the hashtag #PSAW18 to join here.
3) Health care leaders and administrators should show patients they are standing with them in striving for patient safety. Use the slogan “We are all patients,” and feel the role by:
- wearing a patient gown, taking pictures and making videos in the gown about commitment to patients’ safety, and
- sharing it on social media and the campaign website with the hashtags#patientsafety #psaw18 and tag @TheIHI.
Pennsylvania Laws for Medical Facilities
In Pennsylvania, medical facilities must act reasonably and uphold proper standards of care and safety for their patients, including:
- Maintaining safe, sanitary, and adequate facilities and equipment
- Selecting and retaining only competent physicians
- Overseeing all persons practicing medicine as to patient care
- Having and enforcing adequate rules and policies to ensure quality care for patients.
The above is sometimes referred to as corporate responsibility. Failure to adhere to these standards results in corporate negligence. When facilities do not maintain these standards, problems can occur which may be considered hospital negligence. Examples include: inadequate triage systems, inadequate supervision of individuals involved with medical care, inadequate policies for obtaining medical clearance, inadequate systems for record keeping, and inadequate sanitary procedures to prevent health care-associated infections.
Other common problems that could constitute medical malpractice are: missed or delayed diagnoses that put patients at risk, leaving surgical tools inside patients’ bodies, misreading test results, misusing medical equipment, turning away emergency room patients with serious symptoms, and not performing urgent medical interventions.
Negligence must always be proven. Negligence is the touchstone of any claim against a hospital or medical care facility. In addition to negligence, there must also be “factual cause.” This means there must be a connection between the negligence as a result of a duty owed and harm suffered by the patient.
Trust Our Firm for Honest Answers
If you or a loved one has suffered harm, or someone has died as a result of negligent care at a Pennsylvania medical facility, your next step should be to contact the experienced attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann. We know the complexities of Pennsylvania medical malpractice law and are committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.
Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award.
Cliff Rieders was a founder of the Pennsylvania Patient Safety Authority and served on same for 15 years. Rieders was a Law Clerk in the federal court system for one of the most well-known and longest serving federal judges in the country, the Honorable Malcolm Muir. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice.
Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Rieders is a Nationally Board certified specialist for Civil Trial and Civil Practice and Procedure, a cum laude graduate of New York University as well as Georgetown University Law Center.
Rieders is admitted in Pennsylvania, New York State, District of Columbia and numerous federal courts including the Supreme Court of the United States. Rieders is a life member of the American Law Institute which publishes recommended legal principles utilized throughout the United States. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical and hospital malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders does substantial work in multi-district litigation in connection with pharmaceutical products and medical devices.
Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.
Contact us today if you even suspect medical negligence by calling (570) 323-8711 or use our online contact form.
Grove v. Port Authority of Allegheny County, 2018 Pa. Commw. LEXIS 42 (January 12, 2018) Simpson, J. Before this Court are consolidated appeals following the entry of judgment after a jury verdict finding that the Port Authority of Allegheny County (Port Authority) and Joan P. Grove (Plaintiff) each bore 50% of the negligence that was the cause of Plaintiff’s injuries after she was struck by a Port Authority bus. In its appeal, the Port Authority asserts the Court of Common Pleas of Allegheny County (trial court) erred in denying its post-trial motions seeking a new trial as a result of the trial court’s failure to charge the jury on negligence per se based on certain Vehicle Code provisions relating to duties of pedestrians.1 In her appeal, Plaintiff challenges the trial court’s award of delay damages based on the molded recovery rather than the amount of compensatory damages actually awarded. After review, we are constrained to reverse and remand for a new trial based on the trial court’s failure to adequately charge the jury regarding legal principles relevant to the jury’s apportionment of comparative negligence. As a result, we dismiss Plaintiff’s appeal as moot. The testimony was conflicting as to where the pedestrian was walking and whether she was outside the crosswalk or within it. The trial court rejected the request to charge of the Authority concerning statutory duty of care pedestrians. It does not matter that the plaintiff did not receive a citation. Violation of the statute may constitute negligence per se even if there was no citation. The negligence per se instruction coupled with the duties of care for pedestrians set forth in the Vehicle Code were relevant to the jury’s apportionment of comparative negligence. The court cited the Superior Court that the jury should be informed of the consequences of its apportionment of negligence. We regard such information as essential if the jury is to be able to apply the equitable considerations and arrive at the compromises that are inherent in the system. There are no limitations on what the jury may consider in apportionment and they can consider equitable matters. The jury could consider the number and type of specific duties violated in addition to the general duty of a reasonable person to protect herself and others.
Negligence applies regardless of the nature of the negligence alleged, including a claim of negligence per se. The trial court declined to provide accurate, relevant legal instructions contained in the vehicle code with regard to the duties of care of pedestrians. The jury did not have enough guidance. The consideration of specific duties of care of pedestrians could have impacted the jury’s determination as to how to apportion the comparative negligence. The jury found that the Port Authority and plaintiff each were 50% negligent. The court sent this case back for trial.
NEGLIGENCE-CAUSATION-FACTUAL CAUSE, DEFINITION
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 standard. In an asbestos case, the question is plaintiff’s exposure to each product and whether it was “frequent, regular and proximate” to determine whether such exposure was a substantial factor. In finding factual cause, the court was correct to charge that a factual cause is a “actual real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or factor having no connection or only an insignificant connection….” That was appropriate.
- 2. It was proper for the Court not to put a specific question on smoking. If they found “no” factual cause, that was probably the smoking issue.
- 3. Unreasonably dangerous question on the verdict slip. The verdict slip did not need to use that language.
- 4. Fair Share Act. The case was reversed and remanded because the Court refused to charge on the Fair Share Act. Those who are not liable should not be included in a jury determination apportioning damages among tortfeasors. Application of the Fair Share Act in strict liability cases involving asbestos exposure is a matter of first impression. The court says the Act does apply. Damages are to be allocated in proportion to the degree of fault, including in strict liability actions. That is a change in the law. Joint and several only applies where one party is found to be 60% or more responsible. This essentially eliminates joint and several liability. Each defendant is liable for that proportion of the total dollar amount awarded in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned. Plaintiffs argued that liability among strict liable joint tortfeasors is to be apportioned on a per capita basis. The court disagreed. The fact that the Fair Share Act does not explicitly say how to allocate liability among strictly liable joint tortfeasors just means that the statute is ambiguous. The statute is silent on the manner of calculating the ratio for all kinds of tort cases, not just strict liability cases. The legislature intended that the allocation method applicable to negligence cases was merely expanded to apply to strict liability cases also. In addition, the amount of causal negligence is attributed to all defendants and other persons to whom liability is apportioned. If a defendant is held liable for more than 60% of the liability in the case, joint and several liability applies to that defendant, except where there are exceptions. This particular exception assures that those defendants who are substantially responsible for a plaintiff’s injury will have to account for the full amount of plaintiff’s harm. But if liability in a strict liability case is per capita, it is mathematically impossible for any of those defendants to reach the 60% threshold: with just two defendants, a defendant’s liability can only be 50%, and the liability percentage will decrease as the number of defendants increases. That is not the result the legislature intended. We therefore conclude that in strict liability cases allocation must be the same way as in any other tort case and not on a per capita basis. The trial court erred in holding that the jury could not apportion liability pursuant to the Fair Share Act. Of course, apportionment by the jury will require submission of appropriate evidence from which the jurors may make an allocation. Questions regarding the nature of that evidence should be resolved by the trial court in the first instance on remand.
The court also agreed with appellants/defendants that the jury on remand must be permitted to consider evidence of any settlements by plaintiffs with bankrupt entities in connection with the apportionment of liability. Settlement with bankrupt entities should be included in the calculation of allocated liability under the statute.
NEGLIGENCE-GROUP HOME LIABILITY-CHOKING CASE
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 constitute gross negligence. The court then went on to be very critical of plaintiff’s complaint and how confusing it was. The court therefore affirmed in part and reversed in part and sent the case back.
Pregnant Women in Rural America Are Not Getting Needed Medical/Hospital Care
If you are pregnant and live in rural Pennsylvania, you face a dangerous situation for both yourself and your child. There is an increasing lack of maternity care in America’s rural counties, which can lead to complications in pregnancy and childbirth.
According to a new report from the Rural Health Research Center at the University of Minnesota, obstetrical services, especially in rural areas, are in a decline. While in 2004, 45 percent of rural counties had no hospitals with obstetric services, the figure rose to 54 percent by 2014. The situation was the worst in heavily African-American counties and in states with the strictest eligibility rules for Medicaid, and it is continuing to worsen. In Pennsylvania, according to the state Department of Health’s annual hospital survey, the commonwealth lost 28 obstetric units from 2004 to 2014, a 23 percent decline.
This decrease in services has severe consequences. Rural areas have higher rates of chronic conditions and higher rates of childbirth-related hemorrhages — and higher rates of death for mothers and infants.
The doctors are not leaving the state. Nobody is driven out of practice because of lawsuits, as the medical industry sometimes claims. In fact, the opposite is true. The number of doctors and auxiliary healthcare providers has actually increased, but people do not want to be in rural areas; they want to be where the money is. Rural areas generally suffer from lack of professional expertise. Pennsylvania, for example, has loosened the requirements for healthcare “extenders”, meaning there are many physician assistants and others. Unfortunately, sometimes these “extenders” are not properly supervised which leads to even more preventable medical errors.
If you or a loved one has suffered injury or death due to maternal or infant care medical negligence, you may be entitled to compensation. The experienced Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann knows the courts and the system and how to increase your chances of winning a good settlement, with maximum benefits. We offer a free consultation to carefully examine the individual facts in your case and determine the best way to handle it. Contact us today by calling (570) 323-8711 or by using our online contact form to set up your free consultation.
Why the Problem Exists
There are several factors contributing to the problem in rural areas:
Obstetrical services are expensive, requiring availability of beds and equipment for mothers and their babies, and skilled clinicians and staff. Since many rural hospitals have a low volume of births, it does not pay for them to provide these services, and they start closing them down.
For example, Ellwood City Hospital closed its obstetric unit in 2013 due to costs of $200,000 a year to keep it running. Two nearby hospitals, the Grove City Medical Center and Jameson Hospital in New Castle, closed down obstetric units for financial and staffing reasons in 2014 and 2015, respectively.
Medicaid funding plays a big part, as Medicaid funds about half of all births in the United States and an even greater percentage of births in rural hospitals. Rural counties in states with more generous Medicaid programs are less likely to lose hospital-based obstetric services.
Doctors often do not want to live in isolated rural areas, so it can be difficult for rural areas to keep doctors.
Insurance rates for obstetrics are higher than those of other medical specialties, because if there is negligence or incompetency in connection with pregnancies leading to injuries to a newborn, the damages can be substantial. However, it should also be pointed out that the verdicts against doctors and hospitals in rural areas is extremely low. There are counties which have actually never had a successful verdict against a doctor or hospital in North Central Pennsylvania, for example. The rates even in Allegheny County, where Pittsburgh is located, are low. Statewide statistics from the administrative office of the Pennsylvania courts show something like less than 18 percent of filed medical malpractice cases being in favor of the innocent injured victim. That is a real problem. The reason why verdicts are so difficult to obtain is because the medical defense industry effectively blacklists experts who would testify against doctors, drives up the cost of litigation by frivolous practices, and frequently employs so many people in the rural counties. There are rural counties in Pennsylvania where the majority of citizens either work for or are connected with a healthcare institution.
- Low birth rates
Birth rates have been declining in Pennsylvania and are now 11 births per 1,000 residents per year, according to the Centers for Disease Control, lower than the national average of 13. In 1960 there were 21 births per 1,000 residents.
Ways to Address the Problems
While it can be challenging to improve maternity care in rural areas, there are suggestions that might help:
- Institute programs to support pregnant women and families with respect to housing and transportation needs when they live far away from obstetrical care.
- Allow midwives and nurse practitioners to play a greater role in offering prenatal and postpartum care, without having to be under a doctor’s supervision. This can cause its own problems. Non-physicians have to be properly supervised, and it has been our experience that that does not always occur.
- Institute programs to support training in emergency births in rural communities that lose obstetric care and to support the costs of providing maternity care.
- Restructure Medicaid to fund some hospitals for critical services on an ongoing basis, instead of compensating them per patient only after care has been provided.
- Institute a policy of student loan forgiveness for obstetricians and other labor and delivery professionals who relocate to remote areas.
- Focus on new methods of prenatal care, such as monitoring in outpatient facilities through the use of telemedicine. This can also cause problems. We have seen cases where remote providers have acted negligently or incompetently, and unfortunately local people may rely upon them. Proper supervision would be crucial.
Medical Professionals Must be Held Accountable
Delivery situations are often emergency situations, so it is not surprising that there is a correlation between the distance a patient must travel to care and negligent deliveries, prematurity and higher costs of neonatal care.
Nonetheless, medical professionals involved with pregnancy, childbirth, and maternal care are held accountable to a national standard of care. If preventable injuries or death to mothers and babies are caused by incompetence or negligence, the doctor, nurses, anesthesiologist, medical facility, and hospital may be liable for personal injuries that are caused as a result.
Trust Our Firm for Straightforward Answers
If you or a loved one has suffered an injury or someone has died due to maternal or neonatal care negligence, you should seek legal assistance to ensure you get the compensation you deserve. Medical malpractice cases may be complicated, as each person’s symptoms and circumstances are unique. Since symptoms change over time and evidence and witnesses disappear, it is important to contact an attorney experienced in medical malpractice as soon as possible. Medical liability claims are controlled by the Mcare Act in Pennsylvania. Cliff Rieders was President of the Pennsylvania Trial Lawyers Association the year the law was passed, and actually appointed to the negotiating committee on behalf of the trial lawyers that was involved in the writing of the law. There probably is no one in the Commonwealth of Pennsylvania who knows the law better than Cliff Rieders. Aside from having published the book on medical malpractice, Rieders also teaches the subject of medical malpractice annually to lawyers in the state. Rieders is a Board Certified Trial Advocate, Past President of the Pennsylvania Association for Justice, formerly the Pennsylvania Trial Lawyers Association, and is even involved in the legislative process.
The skilled and experienced pregnancy, childbirth, and neonatal medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome. With our highly competent staff, we offer strength in numbers while providing top-notch personal service.
Cliff Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice, and he received the Pennsylvania Patient Safety Authority recognition award. Cliff has received the George F. Douglas Amicus Curiae Award, as well as the Milton D. Rosenberg Award from the Pennsylvania Trial Lawyers. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.
If you or your loved one has been injured or someone has died due to medical malpractice, your next step should be to consult Cliff Rieders at Rieders, Travis, Humphrey, Waters & Dohrmann by calling (570) 323-8711, or by using our online contact form.
Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all personal injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.
Coughlin v. Massaquoi, 2017 Pa. LEXIS 2272 (S. Ct. September 28, 2017) Todd, J. In this appeal by allowance, we consider the admissibility of a pedestrian’s postmortem blood alcohol content (“BAC”) in a personal injury action against a motorist and, more specifically, whether independent corroborating evidence of the pedestrian’s intoxication is required, in addition to expert testimony interpreting the BAC, before the BAC evidence may be admitted. For the reasons that follow, we decline to adopt a bright-line rule predicating admissibility on the existence of independent corroborating evidence of intoxication and, instead, hold that the admissibility of BAC evidence is within the trial court’s discretion based upon general rules governing the admissibility of evidence, see Pa.R.E. 401-403, and the court’s related assessment of whether the evidence establishes the pedestrian’s unfitness to cross the street. Thus, we find that [J-9-2017] – 2 the trial court properly exercised its discretion in admitting the BAC evidence at issue in the instant case, and we affirm the order of the Superior Court.
The facts of this matter are relatively straightforward and arise out of a fatal accident involving a collision between a motor vehicle and a pedestrian. Specifically, on the evening of January 13, 2012, Appellee Ummu Massaquoi was driving southbound on Castor Avenue, a four-lane road in Philadelphia, when she struck pedestrian Thomas Coughlin near the intersection of Castor and Howell Street. Massaquoi admitted to authorities at the scene that she did not see Coughlin prior to the impact. Coughlin was later transported to the hospital, where he was pronounced dead. Shortly thereafter, the medical examiner performed an autopsy and toxicology testing, which revealed that Coughlin had a BAC of .313, as well as trace amounts of illegal substances in his blood. Notably, Coughlin’s whereabouts prior to the accident were unknown, no witnesses had observed his condition or behavior earlier that evening or immediately before the accident, and the police report for the incident did not indicate that he had appeared intoxicated or that intoxication had been a factor in causing the accident.
On July 2, 2013, Coughlin’s mother, Appellant Ann Coughlin, filed a wrongful death and survival action against Massaquoi, alleging that Massaquoi’s negligence and carelessness caused Coughlin’s death. Appellant also filed a motion in limine prior to trial in which she sought to preclude evidence pertaining to the alcohol and illegal substances that were present in Coughlin’s system at the time of his death, alleging that such evidence lacked necessary independent corroboration, was irrelevant, and would prejudice the jury. The trial court denied the motion, permitting the defense to admit evidence regarding the presence of drugs and alcohol in Coughlin’s blood, but precluding the defense from opining as to the proximate cause of Coughlin’s death.
For these reasons, we reject the standard advanced by Appellant and utilized by the Superior Court in Ackerman and its progeny that requires independent, corroborating evidence of intoxication before BAC evidence may be admitted. We emphasize, however, that a pedestrian in a case such as this one is free to challenge such evidence by thorough cross-examination, or with testimony from his or her own expert.
Accordingly, as with other evidence of the consumption of alcohol, we hold that BAC evidence is admissible if the trial court determines that it reasonably establishes a pedestrian’s unfitness to cross the street. Here, Dr. Saferstein testified in detail regarding the significant impact a .313 BAC would have had on a person’s coordination, judgment, and self-control, and he opined that a person with a .313 BAC would be unfit to cross the street. We find this evidence sufficient to establish Coughlin’s unfitness to cross the street, and so conclude that the trial court properly exercised its discretion in denying Appellant’s motion in limine and motion for a new trial on that basis. Thus, we affirm the order of the Superior Court.
Vanderklok v. United States of America, et al., No. 16-3422 (3rd Cir. August 22, 2017) Jordan, C.J. Roger Vanderklok wanted to fly from Philadelphia to Miami, where he intended to run a half-marathon. In his carry-on luggage, he had a heart monitor and watch stored inside a piece of PVC pipe that was capped on both ends. During screening at the airport security checkpoint, the pipe and electronics prompted secondary screening, supervised by Transportation Security Administration (TSA) employee Charles Kieser. According to Vanderklok, Kieser was disrespectful and aggressive, so Vanderklok stated an intent to file a complaint against him. Vanderklok claims that Kieser, in retaliation, called the Philadelphia police and falsely reported that Vanderklok had threatened to bring a bomb to the airport. Based on Kieser’s statement, Vanderklok was arrested. He was later acquitted of all criminal charges when Kieser’s testimony about Vanderklok’s behavior did not match airport surveillance footage. Vanderklok then brought this suit against Kieser and others, asserting numerous statutory and constitutional violations.
Kieser moved for summary judgment, arguing, among other things, that he was entitled to qualified immunity on Vanderklok’s First Amendment claim and that Vanderklok had failed to make out a Fourth Amendment claim on the merits. The United States District Court for the Eastern District of Pennsylvania concluded that Kieser lacked qualified immunity as to Vanderklok’s First Amendment claim and that a reasonable jury could find in Vanderklok’s favor as to his Fourth Amendment claim. It therefore denied the summary judgment motion. Kieser filed this interlocutory appeal.
Because Kieser sought and was denied summary judgment on the merits of Vanderklok’s Fourth Amendment claim, rather than on the basis of qualified immunity, that claim cannot be reviewed on interlocutory appeal. By contrast, Kieser’s appeal of the denial of qualified immunity as to Vanderklok’s First Amendment claim is properly before us. As it turns out, however, a preliminary and dispositive question must be answered first: whether a First Amendment claim against a TSA employee for retaliatory prosecution even exists in the context of airport security screenings. Because we conclude that it does not, we will vacate the District Court’s order, without reaching the issue of qualified immunity, and direct the District Court to enter judgment for Kieser on the First Amendment claim.
Ultimately, the role of the TSA in securing public safety is so significant that we ought not create a damages remedy in this context. The dangers associated with aircraft security are real and of high consequence. Cf. Chappell v. Wallace, 462 U.S. 296, 304 (1983) (refusing to imply a Bivens action where “the need for unhesitating and decisive action ․ would be undermined by a judicially created remedy”). We, of course, do not suggest that TSA screeners should act with disdain for passenger rights or that they can escape all the consequences of their bad behavior. Discipline by the government should be swift and certain, when its employees’ actions warrant it. But, when it comes to creating judicial remedies, there must be a balancing of priorities, and “[t]he proper balance is one for the Congress, not the Judiciary, to undertake.” Ziglar, 137 S. Ct. at 1863. Otherwise, in this context, there is reason to “fear that a general Bivens cure would be worse than the disease.” Wilkie, 551. U.S. at 561. Accordingly, in the specific context of airport security screeners, special factors preclude us from implying a Bivens cause of action for First Amendment retaliation.
McMunn v. Babcock & Wilcox Power Generation Group, 2017 U.S. App. LEXIS 16103 (3rd Cir. August 23, 2017) Smith, C.J., joined by Restrepo, C.J., who also joins in the concurrence. Plaintiffs assert that they developed cancer after being exposed to excessive radiation emissions from the Nuclear Material and Equipment Company (“NUMEC”) facility in Apollo, Pennsylvania (the “Apollo facility”).
Accordingly, we will affirm the judgment of the Distrrict Court.
Plaintiffs are more than seventy individuals in a group of consolidated cases who claim that excessive radiation emitted by Defendants—more specifically, radiation from uranium effluent from the Apollo facility—caused them to develop various cancers.
In addition to the evidence about emissions from the stacks or vents, Plaintiffs’ evidence of excessive emissions fits into one or more of the following three categories: (1) evidence that the monitoring of emissions was not completely comprehensive; (2) data that there was excessive radiation in the area surrounding the facility; and (3) data showing excessive radiation being released but seemingly only for specific, and short, periods of time (such as when the facility’s incinerator was being used).
We will affirm the judgment of the District Court because Plaintiffs failed to raise an issue of fact that would allow a reasonable jury to find that Defendants breached their duty and because Melius’s conclusory expert report would not allow a reasonable jury to find that Defendants’ radiation was a substantial factor in causing Plaintiffs’ cancers.
Because the license requirement was only an administrative safe harbor for NUMEC’s compliance with the emissions maximum set at the boundary of the restricted area, it does not create a tort duty here.
It is true that demanding more than evidence of “any exposure” makes it more burdensome for most plaintiffs to recover for injuries from radiation. But the evidentiary regime that must apply in these cases necessarily requires that a jury find radiation was a substantial factor in causing a plaintiff’s injury—and requires, now, at summary judgment, that we be able to hold that a reasonable jury could so find. See Gregg, 943 A.2d at 225–26 (“We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable.”); see also Fed. R. Civ. P. 56(a). We can demand no less.
Defendants are entitled to judgment as a matter of law because Plaintiffs failed to show a genuine issue of material fact with regard to duty, breach, and causation. Therefore, we will affirm the judgment of the District Court.
NEGLIGENCE-PROXIMATE CAUSE-CRIMINAL ACTS-SUPERSEDING CAUSE
Kote v. Bank of N.Y. Mellon, 2017 Pa. Super. LEXIS 648 (August 25, 2017) Shogan, J. On January 28, 2014, between 7:00pm and 8:00pm, [Kote] made a Chinese food delivery to a foreclosed and vacant property located at 6298 Kindred Street in the Oxford Circle section of Philadelphia, PA (herein, the “Property”). [Kote] made the delivery as a result of a phone order. [Kote] knocked on the front door and, after being admitted, was shot in the chest multiple times by an unknown assailant or assailants who were inside the Property. [Kote] suffered serious bodily injury as a result of the shooting.
[Appellee] BNY Mellon owned, operated, possessed, maintained and controlled the foreclosed and vacant property. BNY Mellon entered into an agreement with [Appellee] Carrington to act as ․ BNY Mellon’s agent in the sale of the Property. Carrington also maintained and controlled the Property in its capacity as an agent of BNY Mellon. [Appellee] Safeguard was hired to secure and inspect the Property.
The trial court sustained the preliminary objections, and dismissed all claims against Carrington and Safeguard. Additionally, the trial court granted BNY Mellon’s motion for judgment on the pleadings.
We agree with the trial court. Kote concedes that he was lured to the property by an unknown individual, and he cannot claim that he was invited for a purpose directly or indirectly connected with the business dealings of any Appellee.
Next, Kote avers that BNY Mellon violated its duty to business visitors under Section 344 of the Restatement. Kote’s Brief at 19. Because we concluded that Kote was not a business visitor, this claim fails.
Section 324A does not apply because [Kote] is not within the class of persons that the security services were designed to protect nor was the harm that he suffered the type of risk Carrington’s alleged agreement to secure the vacant Property was intended to avert.
We agree with the trial court that the harm suffered by Kote was not the type of harm Section 324A is intended to prevent. Kote alleged that Safeguard was hired to secure and inspect the Property, not to provide personal security for the benefit of any class of persons.
In his fourth issue, Kote claims that BNY Mellon violated its duty under Section 365 of the Restatement (Second) of Torts to make the Property reasonably safe.
In his fifth claim, Kote alleges that the trial court erred in concluding that the criminal acts of third parties were the superseding cause of Kote’s injuries under Section 448 of the Restatement (Second) of Torts.
Here, even assuming arguendo that Carrington had a duty to secure the Property, [Kote’s] claims still fail because he cannot prove that [Appellees] should have foreseen that unknown assailants would unlawfully enter the Property, conspire to lure an unsuspecting food delivery driver to the Property, and then ambush and shoot him as he delivered the food order.
Stated differently, generic allegations that violent crime occurs throughout Philadelphia and even in a particular neighborhood are not sufficient to establish that any negligence by Carrington was the proximate cause of [Kote’s] injuries.
In sum, the vacant Property “was a wholly fortuitous factor in the crimes committed against” [Kote], which crimes “would have been accomplished” whether or not [Appellees’] “property remained unsecured.”
Trial Court Opinion, 12/22/16, at 28-30, 36 (some citations omitted). We discern no error of law or abuse of discretion in the trial court’s analysis or conclusion. The unknown shooter was a superseding cause of Kote’s injuries, and if there was any negligence on the part of Appellees, it was not the proximate cause of the injuries Kote suffered.
Because it is dispositive of the issue, we reiterate that in the case at bar, there was a superseding act by a third party. Therefore, even if we were to conclude that the purpose of the Philadelphia Property Maintenance Code is to protect individuals on or near vacant properties from criminal acts committed by persons who were allowed to enter those properties due to its deteriorated condition, we would still find that Kote’s claim fails. As we concluded above, the unknown shooter was a superseding cause, and Kote has not established that any conduct or negligence on the part of Appellees was the proximate cause of his injuries.
As discussed previously, Kote has failed to establish that any duties were owed to him by BNY Mellon, Carrington, or Safeguard, and that any action or inaction on their part was the proximate cause of his injuries. As such, recovery is not possible.
Wilson v. U.S. Security Associates, 2017 Pa. Super. LEXIS 537 (July 18, 2017) Platt, J. These consolidated appeals arise out of jury verdicts finding civil liability, including punitive damages, against Appellant, U.S. Security Associates, Inc. (USSA), and Yvonne Hiller. USSA provided security guard services under contract at the bakery plant where Hiller, a suspended worker, shot and killed two co-workers, and seriously wounded a third. The underlying complaints asserted Wrongful Death and Survival Acts claims against USSA. The parties challenge various aspects of the verdicts, and assert trial court error in evidentiary and related rulings. USSA raises numerous claims, most notably several challenges to the punitive damages award of thirty-eight-and-a-half million dollars. Appellees generally seek to uphold the verdicts. However, they also challenge the denial of their motion to mold the verdict to make USSA liable for pre-shooting “fear and fright” damages. We affirm in part and reverse in part. Accordingly, we conclude that the introduction of a claim for punitive damages, particularly after it had been previously withdrawn, improperly added a new cause of action after the statute of limitations had run. Appellees’ arguments (and those of the trial court) to the contrary are unpersuasive. We are constrained to conclude that the trial court erred in granting the amendment. For the same reasons, we are constrained to conclude that the second trial on punitive damages was also in error and an abuse of discretion. Appellant is entitled to a JNOV on the award of punitive damages.
The substantial factor test for determining whether a party’s negligence was the proximate or legal cause of another’s injury is set forth in Wisniewski v. Great Atlantic & Pacific Tea Co., 226 Pa.Super. 574, 323 A.2d 744, 748 (1974):This test provides that the actor’s negligent conduct is a legal cause of harm to another if:(a) his conduct is a substantial factor in bringing about the harm, and(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm.[Id.] (citing RESTATEMENT (SECOND) OF TORTS, § 431 (1965)).The method for determining whether negligent conduct is a substantial factor in producing the injury is set forth in Willard v. Interpool, Ltd., 758 A.2d 684, 688 (Pa. Super. 2000) [, appeal denied, 775 A.2d 808 (Pa. 2001)]: The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another: (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time. [Id.] (citing RESTATEMENT (SECOND) OF TORTS § 433 (1965)).
Applying these principles to the first causation argument (escort service liability), we agree with Appellant that the negligent performance of the escort service was not a legal cause of the murders. There was certainly sufficient evidence for the jury to conclude that Harris was supposed to escort Hiller all the way to her car. However, there is no evidence of record to support the proposition that a failure to provide an escort all the way to Hiller’s car was a proximate cause or a substantial factor in the shootings.
Therefore, even viewing the evidence in the light most favorable to Appellees, we find nothing in the record to establish that escorting Hiller to her car would have ensured her permanent departure from the property, or prevented her return. (See Appellees’ Brief, at 6-7, 15-16). Accordingly, there was no evidence that an escort to Hiller’s car would have prevented the shootings. We conclude that any breach of escort service procedures was not a proximate or legal cause of the murders. See Amarhanov, supra at 810. “[W]hen a party offers a program of security, `he must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable. The duty is one of reasonable care under the circumstances.'” Kerns, supra at 1077 (quoting Feld, supra at 747) (emphasis omitted).
We discern no abuse or other error in the finding of the jury and decline to disturb it. Appellant’s second causation claim fails.
Finally, we reject, as an incorrect reading of the applicable law, Appellant’s generalized third claim-that the evidence was insufficient to establish causation as a matter of law. (See Appellant’s Brief, at 70-71). In particular, Appellant’s reliance on Eckroth v. Pa. Elec., Inc., 12 A.3d 422 (Pa. Super. 2010), appeal denied, 21 A.3d 678 (Pa. 2011) is misplaced and unavailing.
Here, the facts are markedly different. The question of causation at issue is not that USSA withheld security services from Kraft for non-payment of its bills. There was no two-day gap between the cause and the effect. Appellant fails to identify any third party action to establish an intervening cause. In fact, there was no evidence of a superseding cause comparable to the placement of a lit candle in a dangerous location.
The jury could have concluded that once the guards had let her in, reasonable care under the circumstances required that the guards immediately notify Kraft management (not merely a serendipitous passerby) of the threatening emergency situation.
Even assuming (as counsel for Appellees did) that the guards had no practical choice at gunpoint but to let Hiller in, the jury was free to conclude from the evidence that the guards could have and should have notified Kraft management by cell phone, landline telephone, two-way radio, public address system, or some combination of these communications facilities.
The jury was also free to find from the evidence that they did not do so. We discern no meaningful comparison between the attenuated circumstances in Eckroth and the risks of an immediate shooting here. Appellant fails to demonstrate from general legal principles that inaction by its guards did not contribute to the set of circumstances which allowed Hiller to proceed unimpeded with her shooting rampage. Specifically, Appellant fails to prove by implied comparisons to Eckroth that there was no legal causation “as a matter of law.” We conclude as a matter of law that the jury was free to find that inaction of the USSA guards was “a substantial factor” in contributing to the resultant harm. Therefore, the jury was free to render a verdict that Appellant, through its employees, failed to exercise reasonable care. Appellant’s fifth claim fails.
In its sixth, final claim, Appellant argues that the verdict should be molded “in accordance with the joint tortfeasor releases.” (Appellant’s Brief, at 74 (unnecessary capitalization omitted; see also id. at 74-79). We disagree.
Notably, Appellant concedes that “[t]here was no dispute that if USSA had any liability, Hiller and USSA would be joint tortfeasors.” (Appellant’s Brief, at 74) (emphasis added). Appellant argues, in effect, that as a joint tortfeasor with Hiller it is entitled to benefit from the release executed by Kraft on behalf of itself and its employees.
Appellant acknowledges that it was expressly excluded from the operation of the Kraft settlements. (See id. at 76). Nevertheless, it maintains that it is still entitled to a reduction of its liability pro rata because in the releases no rights were reserved against Hiller. (See id.). Appellant argues that “[t]he only reasonable interpretation of the releases” executed by the Appellees in favor of Kraft, “includes Hiller.” (Appellant’s Brief, at 75). Appellant posits that “Hiller is among those released” as one of Kraft’s “agents[,] servants[, or] employees.” (Id. at 76). We disagree. Appellant resolutely asserts that there was no “continued failure” of Hiller to perform her employment duties. Nevertheless, it fails to offer a single example of what duty she continued, or could continue, to perform. Appellant’s assumption that Hiller intended to murder her co-workers and remain a Kraft employee (in flat contradiction of her own acts and statements) is unsupported by the record and has no basis in the law or the facts. Accordingly, it is frivolous.
Appellant fails to prove it had a claim for contribution from Kraft by virtue of Hiller’s continued employment. Appellant’s sixth claim fails.
The only claims remaining for review are Appellees’ two cross-appeal claims:
Did the trial court improperly fail to mold the jury’s compensatory verdict so that USSA was liable for the award for pre-shooting assault damages?Did the trial court improperly strike correspondence confirming that USSA’s insurance covered punitive damages?
Even the cases otherwise cited by Appellees recognize the limitations correctly observed by the trial court. See Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), appeal granted in part sub nom. Vinciguerra v. Bayer CropScience Inc., 130 A.3d 1283 (Pa. 2016), appeal dismissed as improvidently granted sub nom. Vinciguerra v. Bayer CropScience Inc., 150 A.3d 956 (Pa. 2016) (survival damages are for pain and suffering endured by the decedent between the time of injury and death) (cited in Appellees’ Brief, at 91); Mecca v. Lukasik, 530 A.2d 1334, 1344 (Pa. Super. 1987) (instruction properly charged jury that damages were compensable “from the moment of the accident until the moment of death”). (Appellees’ Brief, at 93) (emphases added).
In short, we discern no compelling authority which would require us to disturb the ruling of the trial court. Moreover, as an intermediate court of appellate review, this Court is an “error-correcting court.” Trach v. Fellin, 817 A.2d 1102, 1119 (Pa. Super. 2003), appeal denied sub nom. Trach v. Thrift Drug, Inc., 847 A.2d 1288 (Pa. 2004) (citation omitted). We reverse the trial court’s denial of JNOV as to punitive damages. In all other respects, we affirm the judgment of the trial court.
Judgment affirmed in part and reversed in part.
What Do Hospital Rankings Show?
When you go into a Pennsylvania hospital, you expect that you will be safe and treated according to a reasonable standard of medical care. Unfortunately, this is not always the case. Too many hospitals have poor safety records that wouldn’t be tolerated in any other industry. The latest spring 2017 hospital ratings from The Leapfrog Group, giving hospitals a grade of A to F for patient safety, show that 23.5 percent of the 132 Pennsylvania hospitals graded received an A, but seven were graded a D.
Leapfrog, an organization that collects and reports hospital data, states that more than 1,000 Americans die each day from preventable hospital errors. Hospitals given a B rating by Leapfrog had a 9 percent higher risk of avoidable death than A hospitals; C hospitals had a 35 percent higher risk, and the risk in D and F hospitals was 50 percent higher. Pennsylvania hospital safety was ranked a dismal 34th in the nation, down one slot from the previous year.
Leapfrog is only one of many “report card” grading companies. Thomson Reuters, Newsweek, and others purport to rate hospitals. All of those ratings are suspect and depend upon information provided by hospitals themselves and sometimes regulators with faulty information. The Pennsylvania Patient Safety Authority receives more than a quarter million reports a year of incidents and serious events. Clearly, there is underreporting in the Pennsylvania system, especially as to “serious events.” The reason for that is, in Pennsylvania, “serious events” must be reported not only to the Patient Safety Authority and the Pennsylvania Department of Health, but also to the patient or their family. Hospitals do not like patients or their families to learn about “serious events” because the hospitals fear that the patients or their families may take legal action. This has been well known and documented. In Pennsylvania, many hospitals and doctors do not report “serious events” because they erroneously believe that if a patient has been informed about a particular risk, there is no need to report a “serious event” if that risk occurs, regardless of whether the risk occurred due to a preventable medical error or negligence.
Cliff Rieders, a founding and current member of Pennsylvania’s Patient Safety Authority, continues to push the envelope on patient safety and work hard to make sure that the Pennsylvania Patient Safety Authority does its job of making hospitals safer.
When patients suffer harm due to the medical care at a hospital and the hospital is at fault, it can be held financially responsible. If you or a loved one has been injured or someone has died due to hospital negligence, you should seek legal representation to determine if you can be compensated for your loss.
The experienced and compassionate Pennsylvania medical malpractice attorney Clifford Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to hospital negligence. Our deep sense of loyalty to each client drives us to pursue each claim vigorously.
We offer a free consultation to examine the facts of your situation and show you how we can help.
What the Hospital Ratings Mean
Leapfrog claims that it looks at medical errors, accidents, injuries and infections at hospitals and identifies hospitals where patient safety is supposed to be a top priority.
Leapfrog claims to examine both hospital safety and quality. Safety involves lack of harm, avoiding bad events, and creating an environment where preventable medical errors are less likely to occur. Quality means providing efficient, effective, purposeful care and improving the overall care experience.
Again, Leapfrog’s information is only as good as the reports they are able to receive. Hospital reporting of preventable serious events is deficient throughout the United States. It has been written that doctor “ego” is one reason why it is extremely difficult to get reliable information on serious preventable medical errors. For example, in North Central Pennsylvania, reports of serious events is higher than other places in the state when corrected for population size. Why is that? The Patient Safety Authority has never taken a firm position. It is possible that there is more serious event reporting in North Central Pennsylvania, but then again it is also possible that there are more serious medical errors in North Central Pennsylvania.
Leapfrog and other reporters of “health grades” is supposed to consider whether a hospital has a system of strong health care teams. Good teams reduce infection rates, put checks in place to prevent mistakes, and ensure strong lines of communication between hospital staff, patients, and families. Without teams that work well together with good leadership, it is difficult to catch preventable medical errors. The result can be dangerous health care consequences, slower recovery, and even death.
Pennsylvania Hospitals According to the Pennsylvania Patient Safety Authority
The Authority, an independent state agency established under the Medical Care Availability and Reduction of Error (MCARE) Act of 2002, collects and analyzes data reported through its Pennsylvania Patient Safety Reporting System (PA-PSRS) and then provides strategies and lessons learned to healthcare facilities to improve safety and help prevent patient harm.
Under the MCARE Act, healthcare facilities must report Serious Events (events that harm the patient) and Incidents or “near misses” (events that do not harm the patient) to the Authority. Facilities must notify patients or their families when a Serious Event has occurred. The Pennsylvania Department of Health also receives Serious Event reports for its regulatory role.
The Authority initiated statewide mandatory reporting in June 2004.
All reports are confidential and non-discoverable. In 2007, MCARE was amended (Act No. 2007-52: Reduction and Prevention of Health Care-Associated Infection and Long-Term Care Nursing Facilities) for nursing homes to report healthcare-associated infections (HAIs) as Serious Events to the Authority.
During 2016, more than a quarter million events were reported through the Pennsylvania Patient Safety Reporting System (PA-PSRS), with an increasing percentage of reports submitted as Incidents, rather than Serious Events. The category Error related to Procedure/ Treatment/ Test continues to be the most common category of Incident reports, and Complication of Procedure/ Treatment/ Test the most common category of Serious Events.
Pennsylvania Patient Safety Authority 2016 Annual Report (footnotes omitted). The above material from the Patient Safety Authority provides some guidance, but the entire report, which is online, should be consulted. http://patientsafetyauthority.org/PatientSafetyAuthority/documents/AR2016.pdf
Standards for Hospitals
Hospitals are required to uphold proper standards of care for their patients. The requirements mean hospitals must:
- Use reasonable care in the maintenance of safe and adequate facilities and equipment
- Select and retain only competent physicians
- Oversee all persons who practice medicine within its walls as to patient care
- Formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients.
When Can Patients Sue a Hospital for Negligence?
Whether a hospital will be liable for negligence depends mostly upon whether the hospital acted reasonably with respect to the medical services provided. When a patient suffers harm from substandard medical services, the hospital is responsible if it knew or should have known about the defects or procedures that were a factual cause in bringing about the harm.
In Pennsylvania, hospitals can be liable not only because of vicarious liability but also because of corporate liability. In other words, a hospital can be liable where there is an implied holding out that somebody is one of their employees or because they are an actual employee, and that person was negligent or failed to uphold a standard of due care. A hospital can also be liable for its own negligence.
The situation is often complicated, but no matter where you are in Pennsylvania, Attorney Cliff Rieders can provide the answers you need. Cliff Rieders wrote the book on medical malpractice in Pennsylvania.
Trust Our Attorneys for Honest Answers
Medical malpractice law is highly regulated by a complex body of rules and laws. Whether in settlement negotiations or pursuing a favorable trial verdict, the experienced Pennsylvania medical malpractice attorney Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann is familiar with the law and thoroughly prepared and committed to achieving a just outcome. With our sizeable staff, we offer strength in numbers while providing top-notch personal service.
If you or your loved one has suffered from hospital malpractice, do not delay. Consult Cliff Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann by calling 1-(570) 323-8711 for a free consultation, or use our online contact form.
Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.
Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice. He is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. He is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.
NEGLIENCE-LANDOWNERS LIABILITY-CITY OBLIGATION TO CLEAR ICE AND SNOW
Stuski v. Philadelphia Authority for Industrial Development, CBRE, et al., 2017 Pa. Commw. LEXIS 277 (May 25, 2017) Covey, J. Michael Stuski (Stuski) appeals from the Philadelphia County Common Pleas Court’s (trial court) April 11, 2016 order granting the Philadelphia Authority for Industrial Development (PAID), CBRE, Inc. (CBRE) and CB Richard Ellis, Inc.’s (collectively, Defendants) motion for summary judgment (Motion) and dismissing Stuski’s complaint (Complaint) with prejudice. The sole issue before the Court is whether the trial court erred by granting summary judgment in Defendants’ favor and dismissing Stuski’s Complaint. After review, we affirm. On February 9, 2013, at approximately 6:40 a.m., Stuski arrived for work, parked in the Parking Lot and, as he got out of his car, slipped and fell on snow and/or ice. Stuski claims that, as a result of the fall, he suffered injuries and damages. On November 5, 2014, Stuski filed the Complaint against Defendants, alleging therein that the Defendants’ negligence and/or carelessness caused his injuries. Stuski also asserted in the Complaint that PAID contracted with CBRE to provide the property management services at the Property, and CB Richard Ellis, Inc. was responsible for snow and ice removal from the Parking Lot. Defendants filed an answer and new matter to the Complaint, denying Stuski’s allegations. Based upon our review of the record, we hold that there existed no genuine issues of material fact about whether Defendants owed Stuski a duty of care. The record clearly established that the City, rather than Defendants, had control over the Parking Lot, and was responsible for maintaining it free of snow and ice at the time of Stuski’s fall. Because there are no material facts at issue, and Defendants are entitled to judgment as a matter of law, the trial court properly granted summary judgment in Defendants’ favor.
National Patient Safety Awareness Week
Cliff Rieders is a founding member of Pennsylvania’s Patient Safety Authority. In 1999, the Institute of Medicine suggested a Patient Safety Authority. No one reacted to the catastrophe of preventable medical deaths in this country. Yet Cliff Rieders fought, as President of the Pennsylvania Trial Lawyers Association, now the Pennsylvania Association for Justice, to incorporate a Patient Safety Authority within Pennsylvania’s Mcare Act. Pennsylvania thus became the first state in the union to have a Patient Safety Authority. Cliff was one of the first appointees to the Patient Safety Authority, and he has continued as an active and aggressive member.
According to the National Patient Safety Foundation (NPSF), research shows that as many as 440,000 patients die each year as a result of medical harm that is preventable, and many others suffer significant harm (www.NPSF.org). The NPSF advocates for addressing patient and health care workforce safety as a serious public health concern. To bring this problem to the public attention, the week of March 12 to 18 has been designated as National Patient Safety Awareness Week, with activities planned to increase patient safety.
Hospitals and health care facilities should always be safe places and care for patients according to the highest medical standards, but this does not always happen. According to the American Association for Justice, one out of every three hospital patients will fall victim to a medical error during their hospital stay, and these mistakes cost nearly 120,000 patients’ lives each year.
Pennsylvania’s Patient Safety Authority collects a third of 1 million reports of incidents and serious events a year. Yet, only about 400 lawsuits are filed. This is less than one-half of 1%. It is absolutely astounding that so few people sue, given the problems with preventable medical errors in hospitals. That does not even include what goes on in doctors’ offices.
If the hospital or doctor is at fault and the patient suffers complications due to the care at their facility, that institution can be held financially responsible. If you or a loved one has suffered because of medical complications, you need legal representation. The experienced medical/hospital malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann has spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. Our deep sense of loyalty to each client drives us to pursue each claim vigorously.
Many cases involve medical devices and pharmaceuticals. Cliff Rieders is extremely knowledgeable in that field as well. He has written the book that virtually every medical/hospital malpractice attorney in the state uses. Cliff teaches the subject to the most seasoned attorneys in the state at seminars and has authored many briefs for the courts dealing with medical, hospital and pharmaceutical issues.
We offer a free consultation to examine the facts of your situation and show you how we can help.
Medical Facilities Are Held to Standards
Medical facilities must act reasonably and uphold proper standards of care and safety for their patients. Typically these standards are national standards, as in the case of board certified doctors. Standards include:
- Maintaining safe and adequate facilities and equipment.
- Selecting and retaining only competent physicians.
- Overseeing all persons who practice medicine within its walls as to patient care.
- Having and enforcing adequate rules and policies to ensure quality care for patients.
How National Safety Awareness Week Can Help
According to the American Hospital Association (AHA), National Safety Awareness Week should be a time hospitals focus on and put together information on projects that will improve the safety of patient care. Suggestions include:
- The use of clinical pharmacists on rounds, computerized physician order entry, or unit dosing to reduce the chance of a patient getting the wrong drug or the wrong dose of a drug.
- Using the “sign your site surgery” program to prevent wrong-site surgery.
- Improving patient education process and materials to ensure patients know how to continue their treatment to promote complete recovery once they have been discharged.
- Promoting any of the projects patient safety committees have undertaken to address issues of concern relative to patient safety, such as medication errors and infections.
The AHA believes that patient safety takes the involvement of everyone – consumers, physicians, hospitals and other providers of care, and manufacturers – to prevent errors and improve the quality of care for all.
Pennsylvania’s Patient Safety Authority
The Pennsylvania Patient Safety Authority’s latest report to the legislature can be found on its website. Cliff was on the committee that helped to prepare the report and has many insights as to how Pennsylvania can be made a safer place for patients. It is very important that we “report card” hospitals. Cliff believes that information about hospitals and infection rates should generally be made aware to the public so that patients can choose the safest hospitals. Much of this information is available through the Health Care Quality Containment Council and the Social Security Administration. However, the information is hard to find and requires hours of work on the computer. Patients should be able to know more about the hospitals and doctors, infection rates, and other problems that are encountered in hospitals.
The Pennsylvania Patient Safety Authority has initiated a number of collaboratives, but unfortunately they are sometimes like the “fox guarding the hen house.” Whistleblower protection must be enhanced for honest employees of doctors and hospitals. Patients must be able to report problems and get prompt answers. Benchmarks must not only be established but also must be monitored in connection with Act 52, designed in Pennsylvania to cut down on the horrific rate of unnecessary hospital infections.
What Activities are Going On?
The NPSF is having its 20th anniversary in 2017, and this is the 15th year that the organization has led Patient Safety Awareness Week. During the week there will be activities including a free webcast with major speakers addressing the following themes:
- What Patients Want (and Need) to Know – This will be broadcast on Tuesday, March 14, from 1:00 to 2:00 pm Eastern Time, NPSF (@theNPSF). The NPSF will host a Twitter Chat on the topic. They will be joined by governmental, advocacy, and professional organizations and individuals to share tips, resources, and tools on patient safety. You may participate by using the hashtag #psaw17chat.
- The Voice of the Patient and the Public – Broadcast on Wednesday, March 15, from 2:00 to 3:00 PM Eastern Time. The NPSF will host a complimentary webcast, with Dr. Gandhi as moderator and a panel of speakers including Marshall Allen, reporter for ProPublica; Rosemary Gibson, senior advisor at the Hastings Center; and Martin J. Hatlie, JD, president and CEO of Project Patient Care. You can register online for this free program at http://bit.ly/psawweb17.
- Throughout the week, NPSF is encouraging a demonstration that “We are all patients.” You can participate by posting photos of yourself in hospital gowns or in patient care settings and using the hashtag#WeAreAllPatients.
The NPSF is also urging health professionals and members of the public to take a pledge in support of patient safety. If you wish to participate in Patient Safety Awareness Week, visit the website, www.unitedforpatientsafety.org, to take the pledge, share plans for the week, get ideas for activities, download campaign materials, or honor a loved one touched by medical harm.
To help plan for the week, the NPSF has suggestions for medical facilities including:
- Allowing civic groups and residents to meet the staff, visit emergency rooms, and see your facility.
- Offering a suggestion box for patients and families and encouraging them to share suggestions for improvement.
- Submitting editorials, first-person stories, and op-ed pieces for local papers and newsletters.
- Playing the educational video or Ask Me 3® video in patient waiting rooms, exams rooms and other locations for staff and patients.
For more information and activities visit npsf.org/psaw
Trust Our Firm for Honest Answers and Contact Us For Assistance
If you or your loved ones have had any problem with unsafe patient practices and suffered injury as a result, the experienced Pennsylvania medical malpractice attorney Clifford A. Rieders of Rieders, Travis, Humphrey, Waters & Dohrmann can help determine if you may be entitled to compensation. Medical malpractice law is complicated and highly regulated by a complex body of rules. Whether in settlement negotiations or pursuing a favorable trial verdict, our attorneys know the law and are thoroughly prepared and committed to achieving a just outcome. We are leaders in the field and are known for settling cases efficiently and litigating cases with maximum compensation. With our professional staff, we offer strength in numbers while providing top-notch personal service.
Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all medical malpractice matters. We are dedicated to providing the legal support you need to have a successful case, and we offer you experience, knowledge, compassion, and a long history of results.
If you or your loved one has suffered from medical malpractice, do not delay. Consult Rieders, Travis, Humphrey, Waters & Dohrmann by calling (570) 323-8711 for a free consultation, or use our online contact form.
Cliff Rieders is a Past President of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. Rieders has won numerous awards and recognition from the Pennsylvania Association for Justice. Rieders is on committees and organizations that write the law in many fields of practice. Cliff Rieders was involved in the writing of the Mcare Act, which governs medical liability actions in Pennsylvania. Cliff Rieders wrote the book on medical malpractice that lawyers use in the state. Cliff teaches the subject of medical malpractice at seminars attended by the leading lawyers in the state. Cliff Rieders is recognized as an outstanding authority in the medical malpractice field. Cliff has even testified before the legislature on medical malpractice laws. Cliff Rieders is the lawyer that other lawyers call for counsel and advice in the medical malpractice and pharmaceutical/vitamin supplement fields. Cliff Rieders is admitted in state and federal courts, including the Supreme Court of the United States.
Okeke-Henry v. Southwest Airlines, 2017 Pa. Super. LEXIS 250 (April 13, 2017) Stabile, J. Trial court erred in determining that passenger’s negligence claim against airline was preempted by Federal Aviation Act, as there is no basis for concluding that the incident, in which the passenger was struck in the head by a suitcase carried by another passenger, occurred in the course of the operation of the aircraft so as to come under the Act’s preemption umbrella. Appellant, Chinweifenu Okeke-Henry, appeals from the April 1, 2016 order entered in the Court of Common Pleas of Philadelphia County, granting judgment on the pleadings in favor of Appellee, Southwest Airlines Co. (“Southwest”). Following review, we vacate and remand.
Walking can be dangerous to your health — especially when you or someone else is not paying attention. Walkers who are distracted, usually because they are making calls or texting on mobile phones, have suffered cuts and bruises, sustained serious head injuries or even been killed. They are particularly vulnerable when walking in urban areas, crossing busy streets and negotiating traffic. They suffer injuries from walking into objects and people, and sometimes even from walking off a curb, bridge, train platform or cliff. And they may cause accidents for motorists when they unexpectedly dart out into traffic.
On the other hand, pedestrians almost always have the right of way, unless they are not walking in a crosswalk. As Justice Musmanno famously said involving an intoxicated pedestrian: A drunk pedestrian is just as entitled to a safe place as anyone else, and more in need of it. While that is a paraphrase of the great Justice’s thinking, too many drivers are completely oblivious or even resentful of pedestrians, bikers, and other people who are not in a vehicle. Sometimes this is even worse with SUV drivers, who feel that they are the king or queen of the road.
Walking, like distracted driving, is a problem as people of all ages become more dependent on electronic devices. One may be injured by a distracted pedestrian, biker or driver. In some circumstances, if somebody is injured due to people distracted by electronic devices, they may be entitled to compensation.
Negligence may also be an issue. When a plaintiff is negligent, recovery is reduced by the percentage of negligence, and if the percentage of negligence is more than 50% in Pennsylvania, plaintiff cannot recover at all.
An experienced, knowledgeable and dedicated lawyer can make all the difference. The seasoned and compassionate Pennsylvania personal injury attorneys at Rieders, Travis, Humphrey, Waters & Dohrmann are on your side. We have a long history of results and offer a free consultation to help you sort out the facts and evidence to ensure that you get the compensation you are entitled to.
Cell Phone Distracted Walking
According to Injury Facts 2015, a statistical report published by the National Safety Council (NSC):
- In 2013, 6,100 pedestrians were killed by motor vehicles and about 160,000 pedestrian injuries required medical attention.
- 23 percent of deaths and injuries result from pedestrians darting into the street, with the majority of those younger than age 15.
In addition, distracted walking incidents involving cell phones accounted for more than 11,100 injuries between 2000 and 2011.
- 52% of cell phone distracted walking injuries happen at home.
- 68% of those injured are women.
- 54% are age 40 or younger.
- Nearly 80% of the injuries were due to a fall.
Talking on the phone was the most prevalent activity at the time of injury, while texting accounted for 12 percent. Nearly 80 percent of the injuries occurred as the result of a fall, while 9 percent occurred from the pedestrian’s striking a motionless object. The most common injury types included dislocations or fractures, sprains or strains and concussions or contusions.
As a result of the rise in deaths and injuries, several state legislators have introduced bills that punish negligent pedestrians and/or bicyclists with fines, but these bills generally have failed. The main question raised is whether distracted walking laws can be enforced consistently by police officers, who usually have more pressing matters to deal with. Many believe that instead of imposing a law, the state should focus on distracted-walking education.
Some states are considering laws that would permit police to access a person’s cell phone, to see if they were using the phone for texting or other purposes at the time of an accident. Cliff Rieders at Rieders Travis Law Firm supports such legislation.
Distracted Walking Safety Tips
The Pennsylvania Department of Transportation reported 122 pedestrian fatalities in 2011. Philadelphia tried to publicize the dangers on April Fools’ Day in 2012 by jokingly marking off sidewalk “e-lanes” reserved for texting walkers. On a more serious note, U.S. Secretary of Transportation Anthony Foxx, who has acknowledged that distracted walking is a factor in increased pedestrian deaths and injuries, has granted $1.6 million to Louisville, New York City and Philadelphia for safety programs.
Here are a few tips from the National Highway Safety Administration (NHTSA) and the National Safety Council to avoid distracted walking:
- Look left, right and left again before crossing the street; looking left a second time is necessary because a car can cover a lot of distance in a short amount of time.
- Make eye contact with drivers of oncoming vehicles to make sure they see you.
- Be aware of drivers even when you’re in a crosswalk; vehicles have blind spots.
- Don’t wear headphones while walking.
- Never use a cell phone or other electronic device while walking.
- If your view is blocked, move to a place where you can see oncoming traffic.
- Never rely on a car to stop.
- Children younger than 10 should cross the street with an adult.
- Cross only at designated crosswalks.
- Wear bright and/or reflective clothing.
- Walk in groups.
Injured in a Distracted Walking Accident? Get a Free Consultation.
If you suspect your accident and subsequent injuries were caused by someone who was talking on their cell phone, texting, or was otherwise distracted, you should contact an attorney as soon as possible. Prompt legal consultation can ensure the collection of relevant facts and the preservation of evidence.
The experienced personal injury attorneys of Rieders, Travis, Humphrey, Waters & Dohrmann have spent decades honing their skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, and aggressively fight for their right to compensation. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome.
Echeverria v. Holley, 142 A.3d 29 (Pa Super. 2016). Case brought by families of decedents. There was a fire in a two-unit rental. Cause of the fire was never determined, but a claim was brought because of alleged lack of smoke alarms. The court said that this was a viable theory. Landlords have a duty to protect tenants from loss arising from negligence. Claims sound in breach of implied warranty of habitability. Although damages for personal injuries are not available under implied warranty of habitability, the Restatement of Property (Second) Section 17.6 permits consideration of statutory and regulatory duties and the implied warranty of habitability as standards for assessing whether a landlord has breached a duty to correct a dangerous condition at leased premises. The Superior Court does not agree that appellants failed to allege sufficient facts to hold defendants liable under a theory of common law negligence. Therefore, the case was reversed. The tenants would not be permitted to add a claim for per se negligence because it was outside the period of the statute of limitations.
NEGLIGENCE-PROXIMATE CAUSE-INCREASED RISK OF HARM-SICKLE CELL ANEMIA-COLLEGE ATHLETES-NCAA
Hill v. Slippery Rock University, 138 A.3d 673 (Pa. Super. 2016). Appellants pled that the NCAA had a duty to protect its student athletes from SCT, and it is evident that appellants also pled that the NCAA, in failing to discharge that duty, increased the risk of harm to Mr. Hill. Hill had actually answered a questionnaire that he did not have sickle cell anemia. However, at no point did anyone require or request a blood test to check for these diseases. This sets forth an increased risk of harm. Had NCAA’s protocols tested for sickle cell anemia at division to schools, Mr. Hill may not have suffered the event that caused his death, which was playing intense basketball in training.
Kennedy v. Robert Morris University, 133 A.3d 38 (Pa. Super. 2016). Shaye-Ashley Kennedy appeals from the trial court’s grant of summary judgment in favor of Robert Morris University (“RMU” or “University” and Universal Cheerleader Association (“UCA”). After thorough review, we affirm. The record supports the trial court’s finding that Ms. Kennedy identified no duty that RMU breached vis-à-vis stunt instruction and supervision at the UCA camp. There was no evidence that Coach Hadfield undertook to instruct or train Ms. Kennedy or other members of her squad in the performance of the stunt that resulted in injury. According to Ms. Kennedy, Coach Hadfield was merely observing the four to six RMU stunt groups. In short, we agree with RMU that Ms. Kennedy failed to identify any duty on the part of RMU that was breached when she sustained her unfortunate injury. There was no allegation that Coach Hadfield or RMU negligently selected or entrusted its cheerleaders to UCA. Coach Hadfield J-A27006-15 – 13 – maintained that, “I made the decision to go with UCA because I believe they run the best collegiate camps in the nation.” Id. at 88. The record establishes that UCA, not RMU, operated the camp and directed and supervised instruction. UCA instructors were in charge of Ms. Kennedy’s group at the time of the accident. Furthermore, it appears that RMU engaged UCA as an independent contractor. RMU contracted with UCA for the instruction and supervision of its cheerleaders at UCA’s camp. The camp was conducted at the University of Scranton and there is no evidence that RMU retained any control over the manner of instruction or supervision of stunts. Thus, RMU would not be subject to vicarious liability for the negligence of UCA, even if Ms. Kennedy had alleged that UCA was negligent. Finally, Ms. Kennedy contends that the grant of summary judgment in favor of UCA was also improper. In support thereof, however, she advances no rationale and cites no legal authority. Once RMU was granted summary judgment, no basis for potential liability remained against UCA as UCA could not be liable to Ms. Kennedy directly and summary judgment was proper.
Ramara Inc. v. Westfield Insurance Company, 814 F.3d 616 (3d Cir. 2016)
The court found it has jurisdiction to hear this case involving a situation where a worker on a job sued the subcontractor as a result of alleged negligence. At the bottom of this case is concern whether the complaint sufficiently alleges as required by the Additional Insured Endorsement that the employee’s injuries potentially were “caused, in whole or in part” by the acts or omissions of someone acting on behalf of the subcontractor. If it does, then then another subcontractor is an additional insured under the policy with respect to the personal injury action as entitled to a defense in this case. So the court really has to decide who was an additional insured and uses a but for test.
NEGLIGENCE-SLIP AND FALL-HILLS AND RIDGES-RES IPSA LOQUITUR-NOTICE, ACTUAL OR CONSTRUCTIVE
Moon v. Dauphin County, 129 A.3d 16 (Pa. Cmwlth. 2015). In adopting § 343A of the Restatement (Second) of Torts, our Supreme Court explained the relationship between the doctrine of assumption of risk and the possessor’s duty of care or lack thereof. When an invitee assumes the risk of injury from a known and avoidable danger, it is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. The hills and ridges doctrine provides that an owner or occupier of land is not liable for general slippery conditions. The duty on the owner or tenant is to act within reasonable time after notice to remove it when it is in a dangerous condition. In order to recover for a fall on ice or snow, it must be proven that there was an accumulation or elevation of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; that the property owner had notice, actual or constructive; and that the dangerous accumulation of ice and snow caused the plaintiff to fall. The testimony established that there were general slippery conditions and plaintiff Moon did not satisfy requirements of the law. To sue a local agency it must be shown that the suit falls within one of the exceptions contained in 8542(b) of the Tort Claims Act. The law requires proof of a defect of the walkway on which the pedestrian fell. The claim that a single exist constituted a dangerous condition of the real estate is without merit. Moon had testified that he fell because of slippery conditions on the walkway. The walkway itself was not defective. In light of the trial court’s determination that the county did not owe Moon any duty in the first place, the trial court was not required to reach a conclusion about whether there was a breach of that duty. Whether res ipsa loquitur applied to Moon’s design flaw claim in lieu of expert testimony was an issue the trial court was not required to address and properly disregarded. There is nothing in the record to establish that cancellation of activities was due to weather conditions or that the time it took the county to clean the walk was unreasonable under the circumstances. Summary judgment was appropriate.
Euceda v. Green, DO, No. 13 CV 3373 (C.P. Lackawanna October 19, 2015) Nealon, J.
Defendants filed a motion for partial summary judgment seeking to dismiss plaintiff mother’s claim for negligent infliction of emotional distress on the grounds that she could not demonstrate a physical manifestation of her emotional distress, nor had she received any psychiatric or psychological care for her depression. The summary judgment record contained evidence that the mother witnessed the traumatic birth of her son “with a severely misshapen and bruised head,” allegedly attributable to defendant’s negligence. She saw her son suffer post-partum seizures, and she witnessed the neonatal resuscitation and intubation. She witnessed other treatment as well, including her son’s death in her arms eight (8) days after birth. The mother contemporaneously observed the results. She complained of severe depression, bouts of hysterical sobbing, inability to breathe, nausea, insomnia, and nightmares about her son’s delivery, physical appearance at birth, and eventual death. The court denied the motion for summary judgment.
Magditch v. Lehigh County, No. 2012-C-5428 (C.P. Lehigh July 31, 2015) McGinley, P.J
The complaint alleged theories of negligence against D.O. and healthcare provider agents arising from the failure to properly assess and treat an inmate’s asthma at the Lehigh County Prison. It was also alleged that there was a failure to have appropriate policies and procedures in place at the prison with respect to prisoners with asthma. A civil rights claim was also asserted. A defense verdict was returned, and plaintiffs filed post-trial motions for relief. The jury found in favor of all defendants and that PrimeCare was negligent but that its negligence was not a factual cause of bringing about the plaintiff’s harm. Plaintiffs claimed the inability to call a crucial witness. The plaintiff wanted to call an inmate witness who was not identified in plaintiff’s pretrial. Plaintiff would testify to the difficulties experienced by decedent. The court found no unfair prejudice in denying plaintiffs the right to call the witness who was identified late.
Palmer v. Rackish, No. 15-1556 (C.P. Lycoming Aug. 20, 2015) Gray, J
The court ruled that even if the use and failure to remove internal fixations by an orthopedic surgeon was beyond the scope of the complaint, it is appropriate to grant the patient’s motion to amend because the use or failure to remove the internal fixation was an amplification of the negligence pleaded and because there is no prejudice to the defendants. The question of negligence posed by the complaint was whether the orthopedic surgeon complied with the standard of care in his initial treatment of the patient’s open fracture that occurred in the Susquehanna River, given the heightened risk for infection, and whether, in light of the examination of the patient, the orthopedic surgeon’s continued course of treatment complied with the standard of care. The expert report provided by plaintiff presented a clear picture of the negligence. The issue was discussed at pretrial and at argument in other motions. The topic was the subject deposition of the experts, including defendant orthopedic surgeon himself. There was no surprise or prejudice. The amendment was permitted. At trial, a defense verdict was returned.
NEGLIGENCE-PECULIAR RISK DOCTRINE
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)