GROSS NEGLIGENCE: Court Denies Summary Judgment in Premises Case Involving Slip and Fall on Vomit

In the case of Johnson v. Penney, No. 2:22-CV-03665-RBS (E.D. Pa. Jan. 8, 2025 Surrick, J.), the court denied a Motion for Summary Judgment filed by the Defendant, J.C. Penney relative to a slip and fall event in a case in which the Plaintiff alleged that he slipped and fell on a substance he believed to be vomit while he was shopping at the Defendant store. 

According to the Opinion, just prior to the incident, the Plaintiff was walking through the children’s department of the store, primarily looking ahead while also noticing items on the surrounding display racks. He suddenly felt a slippery substance under his feet and slipped and fell.

The Plaintiff admitted that he did not see the slippery substance on the floor prior to his fall even though his view was unobstructed. The substance on the floor was described as being 1-2 feet in diameter and was a slightly brown color that was almost the same color as the floor. 

The Plaintiff testified that he was not sure that he would have seen the substance even if he had been looking down at the floor given the similarity in color between the substance and the floor. 

There were no warning signs around at the time that the Plaintiff fell.

The court also confirmed that the Defendant store conceded that it did not immediately clean up the substance once it was reported prior to the Plaintiff's fall. An employee of the store testified that she had informed a manager on duty multiple times that there was vomit on the floor prior to the Plaintiff’s fall. The store employee stated that she was advised by the manager that the priority at the time was addressing a leak in the ceiling. 

After the Plaintiff slipped and fell, the store employee reported the incident to her manager again, at which point the substance was cleaned up.

In this matter, the Defendant argued that the Plaintiff’s claims failed because the substance on the aisle floor was an open and obvious danger that the Plaintiff should have seen and avoided. The Plaintiff argued that genuine issues of material fact existed as to whether or not the substance was open and obvious condition.

The court denied the Motion for Summary Judgment and found that, drawing all inferences in a light most favorable to the non-moving party as required by the applicable standard of review, reasonable jurors could disagree as to whether or not, under the circumstances presented, the substance on the floor constituted an open and obvious danger.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: Article – “JCPenney Customer’s Slip-And-Fall From Bodily Substance Suit Best Left For a Jury to Decide, Judge Rules” by Riley Brennan of The Legal Intelligencer (Jan. 10, 2025).

Snowboarder's Estate Denied Recovery Under Skiier's Responsibility Act

In the case of Birl v. Shawnee Mountain, No. 3:22-CV-1598 (M.D. Pa. Jan. 6, 2025 Bloom, MAG. J.), the court entered summary judgment in favor of a Defendant’s ski resort after finding that the Skier’s Responsibility Act prevented the Plaintiffs from taking their case over injuries sustained by their son to trial.

According to the Opinion, the Plaintiffs sued Shawnee Mountain Ski Resort with a paralysis suffered by the then 16 year old Plaintiff who struck a light pole while snowboarding. The Plaintiffs alleged that the pole was unguarded and improperly placed.

The court noted that the law recognizes that snowboarding is a dangerous activity. The court additionally noted that the law recognizes that riding a snowboard in a terrain park to perform tricks and jumps increases the risk of injury associated with that activity.

The court ruled that, even accepting the Plaintiffs’ version of the events, that is, that the course caused the minor Plaintiff’s loss of control and, ultimately, his collision with a off-trail obstacle, the court noted that this risk was inherent to the activity undertaken by the minor Plaintiff, which was snowboarding in a terrain park.

As such, the court entered summary judgment in favor of the ski resort.

Anyone wishing to review this case may click this LINK.  The Court's companion Order can be viewed HERE.

Source of image:  Photo by Allesandro Maculotti on www.unsplash.com.

PLEASE CONSIDER VOLUNTEERING TO BE A MOCK TRIAL JUROR FOR COMPETITION IN SCRANTON

 

No Right To a New Trial Found After Trial Court Re-Opened Evidence After First Non-Jury Verdict And Then Entered Identical Second Non-Jury Verdict

In the non-precedential decision in the case of Graffia v. Thomas, No. 1497 WDA 2023 (Pa. Super. Dec. 30, 2024 Murray, J, McLaughlin, J., and King, J.) (Op. by King, J.), the court affirmed a trial court’s verdict in a non-jury case following the entry of a default judgment against the Defendant.

In this non-jury trial matter, the trial court issued a verdict prior to rendering a decision on whether the rebuttal testimony of the Plaintiff’s expert was admissible.

The trial court ultimately found that the rebuttal testimony was admissible.  As such, the trial court vacated its original verdict in order to take all of the evidence into consideration.

The trial court then issued a second verdict that was identical to the first verdict.

The Plaintiff appealed and argued that the trial court did not have the authority to vacate the first verdict after forty-three (43) days. The Plaintiff requested a new trial.

The Superior Court found that the trial court committed harmless error. The court noted that, since all of the evidence was taken into consideration prior to the rendering of the second verdict, the Plaintiff failed to demonstrate any prejudice.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney Kasey E. Cahill of the Pittsburgh, PA office of Summers, McDonell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

Court Finds No Duty Owed By Landowner Where Person Hit By Wayward Target Shooting Shot Coming From the Land

In the case of Folcomer v. Craft, No. 2018-SU-0025278 (C.P. York. Co. Jan. 8, 2025 Menges, J.), the court granted a Motion for Summary Judgment filed by certain Defendants in a tragic shooting accident matter.

According to the Opinion, one of the Defendants in this case lived on the moving Defendant’s property. On the day of the incident, certain Co-Defendants were target shooting on the property.

Nearby, the Plaintiff and the Plaintiff’s decedent left their home and began a drive.

A bullet from the shooting target area of the nearby home traveled through the target, into the nearby woods, ricochet off a roadway and struck the decedent who was a passenger in the Plaintiff’s vehicle.

The Defendants who filed the summary judgment motion in this case were the owners of the property on which the target shooting was taking place.

In this decision, the court ruled that no duty exists to control the acts of third parties unless a “special relationship exists with either the actor the victim."

In this decision, the court also addressed the Nanty-Glo rule and found that this rule did not bar summary judgment in this case as the testimony relied upon by the moving the Defendant was from adversarial Co-Defendants.

The court also referred to §318 of the Restatement (Second) of Torts and found that the moving Defendant landowners had no duty to control the conduct of the shooting Defendants as there was no evidence that the moving Defendants were aware of any continuous or dangerous use of the land that would have allowed them an opportunity to intervene. In this case, it appeared that the act of target shooting on the property was not an ordinary event.

In the end, the court granted the Motion for Summary Judgment filed by the moving Defendants who were the owners of the land in question.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Federal Court Addresses When Time Begins To Run To Determine if Removal To Federal Court Was Filed Too Late

In the case of Baucom v. Vidal, No. 2:24-CV-01818-JFM (E.D. Pa. Dec. 12, 2024 Murphy, J.), the court addressed a Plaintiff’s Motion to Remand a motor vehicle accident case from federal court back down to state court. 

The court noted that the issue before it was when the Defendant’s thirty (30) day time period to remove a case to federal court begins to run.

According to the Opinion, the Plaintiffs filed this suit in the Court of Common Pleas of Philadelphia and alleged that the damages claimed were in excess of $50,000.00.

At some point in time after the statutory thirty (30) day removal clock had expired, the Plaintiffs made it known that they were actually seeking more than $350,000.00, that is, an amount more than enough to satisfy the $75,000 amount necessary to support diversity jurisdiction.

At that point in time, the Defendants filed a Notice of Removal to the federal court. The Plaintiff then moved to remand the case back to state court, saying that the removal was too late.

The court noted that the questions before it was whether the original Complaint filed in the state court put the Defendants on notice that the amount in controversy exceeded $75,000.00.

Judge Murphy noted that the answer to this question is straightforward under the Third Circuit Court of Appeals’ bright-line test.  Under the appropriate standard of review, the court noted that, if an initial pleading does not give the Defendant notice of the right to remove the case to federal court, the Defendants shall file a Notice of Removal within thirty (30) days after receipt, by the Defendant, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has indeed become removable. In this regard, the court cited to the Third Circuit’s decision in McLaren v. UPS Store, Inc., 32 F.4th 232 (3d Cir. 2022).

This federal district court noted that the Defendants were not on notice that the amount in controversy exceeded $75,000.00 until the Plaintiffs made their $350,000.00 settlement demand. As such, the court found that the Defendant’s removal was timely. Accordingly, the Plaintiff’s Motion to Remand was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 2025).

Many Volunteer Jurors Needed For First Round Of Mock Trial Competition in Scranton on February 4, 2025

HOPING YOU CAN PLEASE CONSIDER DONATING YOUR TIME AND EXPERTISE AS A MOCK TRIAL JUROR FOR THIS YEAR'S COMPETITION IN SCRANTON, PA.