Liability of Landowner to Passing Motorist for Falling Trees

In the case of Harris v. Felouzis, No. 85 WDA 2023 (Pa. Super. Feb. 10, 2025 Kunselman, J., Lazarus, J., and Bender, J.) (Op. by Kunselman, J.) (Bender, J., dissenting), the court affirmed the entry of a judgment in favor of a Plaintiff in a case involving a Plaintiff motorist who was injured when a 110 year old oak tree fell from a Defendant’s property onto an adjacent road.

The issue was, as Judge Bender aptly put it in his Dissenting Opinion, "[i]f a tree falls on a busy road and injures someone, does it automatically sound in negligence?"

In this case, the court reaffirmed Pennsylvania law that holds that a landowner that allows trees to grow on the property unchecked can be held liable in negligence to motorists injured when a tree falls onto an adjacent road. The court noted that no visible defect in the tree or expert testimony is required. Rather, the standard is reasonable care under the circumstances.

The court noted that, if the condition of the tree could have been known by the exercise of ordinary care, then the Defendant landowner must exercise reasonable care to prevent the tree from falling and injuring anyone who may be using the adjacent road. The law puts the burden on the landowners given that the landowners have access to their own property and the passing motorists do not.

The court noted that the public right of passage on roadways carries with it once the highways have been established, and obligation on occupiers of abutting land to use reasonable care to ensure that the passage way is safe.

Landowners are not allowed to simply let nature take its course.

The Court otherwise rejected the notion that all motorists who use the roadways assume the risk of trees falling upon them.  

This decision is also notable for the Superior Court’s noting that a Motion for Summary Judgment that was denied based upon the sufficiency of the evidence is superseded by the trial record and cannot be separately appealed once a verdict has been entered.

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

Judge Bender's Dissenting Opinion can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Mick Haupt on www.unsplash.com.

Abington Heights High School Mock Trial Team From Clarks Summit, PA Regional Champs and Going Back to States

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their Regional Championship Trial last night and are on their way to the State Championship.

This is the 4th Regional Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This Regional Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Below is a picture of the entire Team celebrating their win last night in Courtroom 1 of the Federal Middle District Courthouse in Scranton, PA. That's Judge Karoline Mehalchick, who presided over the trial, in the center under the Seal of the Court. Sending thanks to Judge Mehalchick for volunteering her time and expertise.

Also sending thanks to Mackenzie Wilson of Munley Law in Scranton for all of her time and effort serving as the District Coordinator and Regional Coordinator for the Competition. Also sending thanks to the Young Lawyers Divisions of both the Lackawanna Bar Association and the Pennsylvania Bar Association for running this Competition which changes students lives and helps to prepare them for their futures.

Summary Judgment Granted in Alleged Trip and Fall Case Based on Trivial Defect Doctrine

In the case of Klobusnik v. Cafaro Company, No. 2021-CV-11132 (C.P. Erie Co. Dec. 31, 2024 Walsh, J.), the court granted the Defendant mall summary judgment in a slip and fall case.

According to the Opinion, the Plaintiff was walking on the premises and alleged that her foot hit the edge of a lifted tile on the floor which allegedly caused her to fall down.

After reviewing the record before it, the court noted that the Plaintiff presented photographic evidence purportedly showing a raised tile in the area where she fell. However, the Plaintiff admitted that she did not know exactly where she fell. The Plaintiff asserted that she tripped over the tile in the photograph or a similar tile.

The record revealed that the photograph of the tile in question showed a ruler with both metric and imperial units stationed in the grout line between two (2) tiles. The imperial measurement was below the “0” inch line. The metric measurement was at the “1” millimeter line.

As such, the court granted summary judgment after finding that the Plaintiff’s claims were barred by the trivial defect doctrine. The court also found that the Plaintiff’s claims were barred by the fact that the Plaintiff could not identify the exact tile that caused her to fall. The court noted that the evidence fairly suggested that it was just as likely that the Plaintiff had tripped over the grip of her own shoe on the tile, as opposed to catching her foot on the edge of an allegedly raised tile.

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

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Mitchell Luo on www.unsplash.com.

Motion To Dismiss Granted in Favor of Lyft in Case Where Lyft Driver Assaulted Passenger

In the case of Matos v. Uber Technologies, Inc., No. 23-5038-KSM (E.D. Pa. Feb. 3, 2025 Marston, J.), the court granted a Motion to Dismiss filed by a ride share Defendant in a case where the Plaintiff passenger was assaulted by the driver.

The court noted that, under Pennsylvania law, a ride share Defendant is not automatically liable anytime a driver hired over its App commits an assault.

The Plaintiff was noted to have failed to pled prior bad acts of the driver that should have put the Defendant on notice of the driver’s alleged dangerous propensities as required to prove a claim of negligent hiring.

The court noted that evidence of prior automobile accidents by the driver are not proof of violent propensities.

The court additionally found that there was no independent action for respondeat superior under the facts alleged.

The court additionally found that the act of assault passengers was not within the scope of a ride share driver’s employment.

The court otherwise found that the Plaintiff did not allege facts sufficient to establish a duty to train a driver on something as elementary as not assaulting passengers.

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


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Superior Court Addresses Issues of Informed Consent in Medical Malpractice Cases

In the case of McAleer v. Geisinger Medical Center, No. 1542 MDA 2023 (Pa. Super. Jan. 28, 2025 Panella, P.J.E., Lane, J., and Steven, P.J.E.) (Op. by Panella P.J.E.), the court reversed a trial court’s entry of summary judgment in favor of the Defendants in a medical malpractice action.

According to the Opinion, the Plaintiffs alleged that a Defendant doctor performed a surgical procedure that was not indicated according to the standard of care.

The trial court granted summary judgment after the Defendants had argued that the only claims that were supported by the Plaintiff's experts were those concerning informed consent surgery.  The Defendants asserted that the Plaintiff had not pled informed consent claims against the Defendants.

The Superior Court noted that, essentially, the trial court had concluded that the Plaintiff's claims were in the form of a batter involving lack of informed consent regarding the surgery and treatment, and not negligence, and, on that basis, the trial court had entered summary judgment.

In reviewing the case before it, the Superior Court found issues of fact that precluded the entry of summary judgment and remanded the case for further proceedings.   

As part of its decision, the appellate court directed the trial court to revisit its determination that a gastroenterologist was to qualified to render an expert opinion on the care provided by a colorectal surgeon.  The trial court was advised to review the section of the MCARE Act outlining qualificatons of experts in medical malpractice cases as found under 40 Pa.C.S.A. Section 1303.512 ("Section 512").

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Feb. 18, 2025).

Abington Heights High School Mock Trial Team Wins Fourth District Championship in Five Years

Happy and Proud to report that the Abington Heights High School Mock Trial Team won their District Championship Trial last night and are on their way to the Regional Championship.

This is the 4th District Championship for the Abington Heights High School Mock Trial Team in the past 5 years.

This District Championship is all the more impressive given that the Abington Heights High School Mock Trial Team lost six seniors from last year's National Championship Team.

Above is a picture of the entire Team celebrating their win last night in Courtroom 3 of the Lackawanna County Court of Common Pleas. (That's my son, Christopher, in the back row, fourth person from the left).

Way to go Team -- Keep soaring through the night sky like the COMETS you are!!

Sending THANKS to the Mackenzie Wilson, the District Coordinator, and the Lackawanna Bar Association for all they do to make this program a success.  Thanks also to all the Judges and Attorneys and others who volunteered to serve as Judges and Jurors.

Federal Court Addresses Recoverability of Future Medical Expenses in a Motor Vehicle Accident Case

In the case of Morris v. Sutton, No. 2:23-CV-02806-GAM (E.D. Pa. Feb. 19, 2025 McHugh, J.), an Eastern Federal District Court judge ruled that 75 Pa. C.S.A. §1722 did not bar the recovery of future medical expenses under the Pennsylvania Motor Vehicle Financial Responsibility Law.

Judge Gerald A. McHugh noted that the Pennsylvania Supreme Court has not yet addressed this particular issue. However, the judge noted that other court decisions that he had reviewed that considered similar arguments has concluded that §1722 does not apply to future medical expenses that have not yet been incurred. As such, the judge held that §1722 has no applicability to future medical expenses.

Judge McHugh noted that §1722 provides that individuals injured in a motor vehicle accident, who have other sources of insurance to cover their medical expenses, are barred from recovering certain benefits that are “paid or payable.”

The Plaintiff argued in this case that given that the future medical bills have not yet been incurred, it was speculative as to whether or not such future medical bills will be “payable” under any applicable insurance.

The judge agreed with this speculation argument. The court noted that “[f]rom a practicable perspective, it is not just the existence of coverage for future medical expenses that is speculative, but also the terms of any such coverage and how it would apply, as changes in eligibility and changes in the terms of coverage such as deductible sand co-pays are impossible to predict.”

In rendering his decision, Judge McHugh referred to the Pennsylvania Superior Court decision in the case of Farese v. Robinson, 222 A.3d 1173, 1189 (Pa. Super. 2019). In that case, the Pennsylvania Superior Court concluded that damages for future medical care were not limited by the MVFRL’s containment provisions under a different provision of the law.

In the end, the court denied the Defendant’s Motion to Preclude the Plaintiff from introducing evidence of future medical expenses by finding that §1722 does not apply to future medical expenses as a matter of law.

As an aside here, it is noted that the court in Morris apparently was not provided by counsel, and did not find on its own, the decision of Orzel v. Morgan, No. 03-CV-4929 (C.P. Lacka. Co. 2003 Nealon, J.), by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas. In that decision, Judge Nealon addressed, in part, a defense argument that §1722 precludes the Plaintiff from recovering damages for future medical bills since those costs were payable by her then existing private health insurance. Judge Nealon noted that, instead, the Plaintiff’s future medical expenses award would only be molded to the extent that Plaintiff had first party medical benefits coverage remaining under her own automobile insurance policy.

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


Anyone wishing to review other similar decisions on this issue of whether a motor vehicle accident Plaintiff can recover future medical expenses may click this LINK to get to other Tort Talk blog posts on other such cases. Those Tort Talk blog posts should have links to those other decisions.


Source: Article: “Cost Containment Provision Doesn’t Bar Recovery For Future Medical Expense, Pa. Fed. Judge Rules” by Riley Brennan of the Pennsylvania Law Weekly (Feb. 20, 2025).

Source of image:  Photo by Jennifer Uppendahl on www.unsplash.com.