Friday, January 3, 2025

Link for the Marhunova v. Fitler Constr. Group Case

Here is the LINK  for the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), which was highlighted in yesterday's Tort Talk blog post.  In this case, the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

Apologies for any confusion or consternation caused by the Link not being included in yesterday's post.

Thanks for reading Tort Talk.

Seismic Change Caused By Superior Court Decision That Allows Plaintiffs To Recover Liability and UIM Coverage From the Same Policy


The year 2025 is starting off with a Pennsylvania Superior Court decision that will cause a change of seismic propotions in automobile UM/UIM litigation going forward.

In the case of Erie Insurance Exchange v. Baluch, No. 2025 Pa. Super. 2 (Pa. Super. Jan. 2, 2025 Panella, P.J.E., Lane, J., and Stevens, P.J.E.)(Op. by Panella, P.J.E.), the Pennsylvania has ruled that, in certain circumstances a Plaintiff can recover both liability and UIM coverage from the same policy.

The appellate court framed the issue in this case as whether an insured is entitled to stacked UIM benefits although another household policy excludes vehicles that are insured under the policy from the definition of “underinsured motor vehicles.”

According to the Opinion, in April 2022, the Plaintiff, while riding as a passenger on a motorcycle, suffered serious bodily injury from a single vehicle motorcycle accident.

Two insurance policies issued by Erie were relevant to this case. The Plaintiff’s stepfather and mother were named insureds on a policy that covered the motorcycle and other vehicles (“Policy 1”). As a member of her parent’s household, the Plaintiff was an insured of Policy 1. Policy 1 provided $100,000 per person in liability coverage and $100,000 per person in uninsured motorist (“UM”) and UIM coverage.

The Plaintiff also had a separate policy for her personal vehicle (“Policy 2”). Policy 2 provided $100,000 in UM/UIM coverage.

The Superior Court noted that, “[i]mportantly,” under both Policy 1 and Policy 2 the insureds had selected stacking UIM coverage.

According to the Opinion, Erie paid out to the Plaintiff the $100,000 liability coverage from Policy 1 and $100,000 in UM/UIM coverage from Policy 2. However, Erie denied the Plaintiff’s claim seeking $100,000 in UM/UIM coverage from Policy 1 through stacking.

Under Policy 1, vehicles that are insured under the policy were excluded by the language of the policy from the definition of “underinsured motor vehicle.”  It is this exclusion that Erie relied upon to deny the Plaintiff UIM benefits from Policy 1.

The Superior Court disagreed with the carrier’s position, as well as the trial court’s position, that the resolution of the issue presented was controlled by Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145 (Pa. Super. 1988) (en banc) and Newkirk v. United Servs. Auto. Ass’n, 564 A.2d 1263 (Pa. Super. 1989).

The Superior Court noted that the Wolgemuth and Newkirk decisions stand for the proposition
that liability coverage and primary underinsured motorist (“UIM”) coverage cannot come from the same, single policy. The Superior Court in this Erie Insurance v. Baluch case emphasized that the Wogelmuth and Newkirk cases addressed only a single insurance policy, not any issues of stacked coverage between two or more policies.

The Superior Court distinguished this Erie Insurance v. Baluch case by noting that this Baluch case involved secondary UIM coverage on another vehicle in the household that was stacked on top of the primary UIM coverage from a separate policy that actually covered the vehicle/motorcycle that was involved in the accident.

The Superior Court reasoned that when an insured has their own motor vehicle insurance policy that provides stacked UIM coverage, under Pennsylvania’s Motor Vehicle Financial Responsibility Law, they are entitled to stack UIM coverage from other household policies unless they expressly choose to waive stacked coverage. See 75 Pa.C.S.A. § 1738(a).

In this regard, the Superior Court cited favorably to the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019) and related cases as precedent that prevents an automobile insurance carrier from having policy language that acts as a de facto waiver of stacked coverage where the MVFRL requires carriers to secure written waivers of stacked coverage from its insureds.

Here, the Superior Court found that the insured Plaintiff elected and paid for stacked UIM coverage under her own separate policy. As such, Erie Insurance Exchange’s limited definition of “underinsured motor vehicle,” in the eyes of this Superior Court panel, acted as a disguised waiver of UIM coverage and the Court therefore found the exclusionary language under the policy to be invalid as conflicting with the requirements of the MVFRL relative to UIM coverage.

Accordingly, the Superior Court ruled that, because Erie’s policy provision prevented the Plaintiff from recovering stacked UIM benefits for which she paid, and given that the trial court had erred in concluding that the present case was controlled by Wolgemuth and Newkirk, the Superior Court reversed the trial court’s decision and entered a ruling in favor of the Plaintiff.

In the end, the Superior Court reasoned that, under Pennsylvania law, an injured party should be entitled to receive the coverage for which they paid. Here, the Plaintiff paid for stacked coverage and, in the eyes of this panel, was entitled to such coverage.

Anyone wishing to review this Opinion may click this LINK.

I send thanks to Scott Cooper, Esq. of the Harrisburg, PA law firm of Schmidt Kramer, as well as Adam T. Wolfe, Esq. and Ally Sholley, Esq. of the Enola, PA law firm of Shollenberger, Januzzi & Wolfe for bringing this notable decision to my attention.

Multi-Million Dollar Jury Verdict Upheld By Philadelphia Court


In the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

According to the Opinion, the Plaintiff's decedent fell from the fifth floor of a building to his death.  Among the claims presented was that the Plaintiff's decedent was not presented with fall protection equipment.

In reviewing post-trial motions, the trial court judge wrote in his Rule 1925 Opinion that the Plaintiff had presented sufficient evidence to support the jury's verdict.  The court noted that the Plaintiff had presented sufficient evidence to enable the jury to make a determination as to who the alleged general contractor on the job was and who, therefore, was responsible for the provision of safety equipment on the site. 

In response to the challenges to the amount of the award, the court otherwise held that there was no evidence that the jury's award resulted from bias, impartiality, prejudice or ill will.  The court instead found that the verdict was supported by the evidence presented and that the verdict was not grossly excessive under the circumstances and, therefore, did not shock the court's conscience.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Phila. Judge Upholds $68.5M Verdict Over Construction Worker's Death" by Aleeza Furman of The Legal Intelligencer (Dec. 27, 2024).

Source of above image:  Photo by Sylvia Brazzoduro on www.unsplash.com.

Monday, December 30, 2024

THE 2024 TORT TALK TOP TEN


THE 2024 TORT TALK TOP TEN


10.  Waiting On Supreme Court Decision Doctrine of Forum Non Conveniens


Civil litigators are awaiting a decision from the Pennsylvania Supreme Court relative to the application of the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., 303 A.3d 1070 (Pa. Super. 2023) appeal granted 367 EAL 2023 (Pa. 2024). 


At the Superior Court level, that Court had ruled Defendant did not demonstrate sufficient grounds to support the request for a transfer of venue under doctrine of forum non conveniens in an effort to move the case out of Philadelphia County.  The Court ruled, in part, that the affidavits provided by the defense from witnesses regarding whether or not Philadelphia County was an oppressive or vexatious venue from the perspective of those witnesses were not specific enough.


The primary issue for the Pennsylvania Supreme Court to decide is whether the Superior Court misapplied Doctrine of Forum Non Conveniens.


The Tort Talk post on the Superior Court’s decision in this case can be reviewed at this LINK.



9.  Supreme Court Addresses Business Interruption Coverage in Context of Covid-19 Shutdown


In the case of Ungarean v. CNA, No. 12 WAP 2023 (Pa. Sept. 26, 2024) (Op. by Brobson, J.), the court addressed issues regarding business interruption coverage in the context of the COVID-19 pandemic.


This case involved a class action that was led by a dental practice which had purchased a commercial property insurance policy from an insurance company, which policy was intended to cover business-related losses.


After the court mandated closures as a result of the COVID-19 pandemic, the insured filed a claim under the policy, which was denied by the insurance company on the grounds that there was no physical damage to the property.


The trial court had granted summary judgment in favor of the insureds. The trial court had interpreted the policy language to include loss of use of the property as a form of “direct physical loss.”


That trial court decision was affirmed by the Superior Court who also found the policy language at issue was ambiguous and should be construed in favor of the insured.


However, the Pennsylvania Supreme Court reversed the Superior Court’s decision.


The Pennsylvania Supreme Court held that the policy language was unambiguous and required a physical alteration to the insured’s property for the coverage to apply.


The court ruled that the economic losses sustained by the insured due to the government shutdown did not meet this requirement.


As such, the Supreme Court ruled that the insured was not entitled to coverage under the policy. The case was remanded to the Superior Court with instructions for summary judgment to be entered in favor of the insurance company.


The Tort Talk post on this case can be viewed at this LINK.



8. Plaintiff Can Secure Both Punitive Damages and Treble Damages in the Same Case Punitive and Treble Damages


In the case of Dwyer v. Ameriprise Financial, No. 2 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court held that a trial court may, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), award both punitive damages and treble damages.


This case involved Plaintiffs who sued Ameriprise Financial for negligent and fraudulent misrepresentation relative to a life insurance policy. The Plaintiffs alleged that the carrier misrepresented to them that their quarterly premium payments would remain the same for the life of the policy. In reality, if the Plaintiff’s premium payment had remained the same, the policy would have allegedly lapsed for insufficient funds in 2020.


The Supreme Court held that treble damages under the UTPCPL are a separate remedy available to the Plaintiffs and must be considered by the trial court without regard to a separate punitive damages award that may be issued on related common law claims.  The Pennsylvania Supreme Court noted that nullifying the availability of a statutory award because of a common law award was not a permissible exercise of discretion by the trial court.


The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.



7. Plaintiff Must Answer Questions at IME or DME


In the Monroe County case of Nelson v. Wilkins, No. 1381-CV-2022 (C.P. Monroe Co. Jan. 26, 2024 C. Daniel Higgins, Jr., J.) from earlier this year, the court granted a defendant’s Motion to Compel a plaintiff to provide information to the IME doctor during an independent medical examination of a plaintiff in a case arising out of a motor vehicle accident.


According to the decision, the plaintiff had appeared for an examination but refused to answer the IME doctor’s questions, asserting that the questions were allegedly outside the scope of Pa. R.C.P. 4010 about the occurrence of the accident that led to the plaintiff’s alleged injuries.


Judge C. Daniel Higgins, Jr. of Monroe County noted that Rule 4010 provides that the examiner is limited to inquiring into matters regarding the facts of liability that were germane to the issue of damages.  Rule 4010 itself provides that “[t]he examiner's oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.”  See Pa.R.C.P. 4010(a)(4)(i).


The court found that the plaintiff’s attorney’s position that the IME doctor should not ask questions regarding the history of the accident that could relate to liability and the plaintiff’s argument that the doctor could avoid the problem by reviewing depositions, police reports, Interrogatories, and other discovery materials “was untenable” because it placed too high of a burden on the examining doctor.


In granting the defendant’s Motion to Compel in this regard, the Court ordered that the plaintiff was required to cooperate and answer the questions of the examining doctor.  The court noted that, as set forth under Rule 4010, the plaintiff could have her counsel or other representative present during the examination.


The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.



6. Hills and Ridges Doctrine


Over the past year, one court addressed the issue of whether the Hills and Ridges Doctrine should be applied where a Plaintiff fell in an area that was covered by an awning or a canopy.


In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), Judge Eric R. Linhardt denied a Motion for Summary Judgment in a slip and fall case that occurred when the plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.


In this case, the Plaintiff had cited to the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004) for the proposition that the Hills and Ridges Doctrine is not applicable where the incident occurred in an area that was covered by a roof or awning.  In the Heasley case, the plaintiff’s slip and fall occurred while the Plaintiff was walking in a shed that had three walls, with the fourth side open.  The shed had an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the Hills and Ridges Doctrine did not apply to a fall occurring inside an outdoor storage shed. 


The Court in Heasley reasoned that the Hills and Ridges Doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice.  The court found that the defendant did not present anything that demonstrated that keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the Hills and Ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the Hills and Ridges Doctrine to an incident that occurred in a structure covered by a roof and/or an awning.


Judge Linhardt applied the rationale of the Heasley case to this Johnson case in which the plaintiff alleged that he fell on black ice on the top step of the Defendant’s covered porch which step was allegedly covered by an awning. Judge Linhardt noted that, under the current status of Pennsylvania law, if that allegation was proven, then it appeared that the Hills and Ridges Doctrine would not be applicable to this litigation. The court therefore found that genuine issues of material fact must be resolved by the jury in this regard and, as such, the Defendant’sMotion for Summary Judgment was denied.


The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.



5. Notable Decisions on Certificates of Merit in Med Mal Cases


There were a couple of decisions of note that came down over the past year regarding Certificates of Merit that are required in medical malpractice cases in Pennsylvania.


In the case of Rightmyer v. Philly Pregnancy Center, P.C., No. 23-1925 (E.D. Pa. March 1, 2024 Quinones Alejandro, J.), the court granted a defendant’s motion to dismiss after confirming that the Certificate of Merit requirements for medical malpractice claims under Pennsylvania state law also apply in federal court.  In this case, the court also ruled that a nurse is not qualified to execute a required Pennsylvania Certificate of Merit in a medical malpractice action against a medical doctor.


The Tort Talk Blog post, which contains a link to this decision, can be viewed HERE.



In the separate case of Berk v. Rothman Institute Orthopedic Foundation, No. 23-1437 (E.D. Pa. March 28, 2024 Murphy, J.), the court addressed the extent to which a plaintiff could attempt to compel one of the plaintiff’s own doctors to write a Certificate of Merit to enable the plaintiff to pursue a claim against another medical provider.


The court in Berk granted the doctors' Motion to Dismiss after finding that treating physicians do not owe their patients any fiduciary duty to provide them with a Certificate of Merit that would allow the patient to sue other doctors for medical malpractice.  The rationale for this decision was, in part, the general rule that potential experts may not be compelled to issue expert opinions against their will.


The court otherwise found that there is no valid cause of action for an alleged intentional deprivation of legal recourse for an alleged injury.


The Tort Talk Blog post, which contains a link to this decision, can be viewed at this LINK.



4. Use of Exhibits in Opening Statements


A common dispute at civil litigation trials is the extent to which one party or the other may utilize demonstrative exhibits during the course of Opening Statements.  Typically, trial court judges have punted on the issues and have stated that such exhibits would only be permitted during Opening Statements if the attorneys have agreed on the same.


In what appears to be the first Opinion of its kind, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether a party may utilize demonstrative exhibits during an Opening Statement in the case of Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.).  In this decision, Judge Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an Opening Statement at a civil litigation trial.


In this medical malpractice case, the Plaintiff filed a Motion In Limine seeking leave of court to utilize admissible excerpts of videotaped depositions of unidentified defense witnesses during the course of the Opening Statement to be presented by Plaintiff’s counsel.


After reviewing the sparse law on the issue, Judge Nealon noted that the reference and showing of admissible evidence during the course of an Opening Statement can be permitted by a trial court judge under the broad discretionary powers of judges to run trials that occur before them.  


The court otherwise ordered the Plaintiff to identify which portions of what video deposition they intend to utilize during the course of the Opening Statement so that the opposing party could assert any reserved evidentiary objections to those excerpts so that any required rulings may be made prior to the Opening Statement.


The Tort Talk Blog post, which contains a link to this decision, can be viewed LINK.



3. Service of Process


Over the past year, the Pennsylvania Supreme Court provided its latest guidance on the issue of proper and timely service of process in civil litigation matters.  In the case of Ferraro v. Patterson-Erie, No. 1 WAP 2023 (Pa. April 25, 2024), the Pennsylvania Supreme Court addressed a statute of limitations argument related to service of process issues in a slip and fall case.


According to the Opinion, this case arose out of a slip and fall event.  The Plaintiff filed her Complaint within the two (2) year statute of limitations. However, the Plaintiff encountered difficulties with serving the Complaint on the Defendants due to issues with the Sheriff’s service and the COVID-19 pandemic.


The Plaintiff thereafter served the Complaint on the Defendant through a private process server. She later reinstated the Complaint and then served it through the Sheriff.  However, this service by the Sheriff occurred after the statute of limitations had elapsed.


The Defendants argued that the action was barred by the statute of limitations because the Plaintiff did not make a good faith effort to serve them in a timely manner.


On appeal to the Pennsylvania Supreme Court, the Court held that the Plaintiff had failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on the Defendants.  Accordingly, the Supreme Court found that the Defendants’ informal receipt of actual notice was irrelevant.  In the end, the case was dismissed.


Check out Justice Wecht’s Dissenting Opinion in this case for an excellent overview on the current status of the law in Pennsylvania on the issue of proper service of process.


The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.



2. Regular Use Exclusion Upheld as Valid and Enforceable

At the start of the year, on January 29, 2024, the Pennsylvania Supreme Court issued its long-awaited, much anticipated decision in the Regular Use Exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.).

The Pennsylvania Supreme Court has ruled that, as presented in this case, the Regular Use Exclusion contained in motor vehicle insurance policies did not violate the express language of Pennsylvania's Motor Vehicle Financial Responsibility Law [MVFRL].

The Plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle. The Plaintiff recovered the liability limits from the tortfeasor's policy and the UIM limits on the police vehicle.  The Plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home.  Erie Insurance relied upon a Regular Use Exclusion contained in the policy to deny coverage on the UIM claim.

The Pennsylvania Supreme Court reversed the lower courts' decisions and upheld the validity and enforceability of the Regular Use Exclusion.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court once again confirmed that it had previously clarified and narrowly limited its Gallagher decision in its decision in the case of Erie Insurance Exchange v. Mione.  In Mione, the Supreme Court had confirmed that the Household Exclusion remained valid and applicable except possibly in cases where the insured was attempting to stack coverage under 75 Pa.C.S.A. Section 1738.

The Supreme Court in Rush also specifically held that the Regular Use Exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL and that, "[w]ith decades of reliance by insureds and insurers, and no justification to allow this Court to depart from decades of established law," the Court would maintain its continued course on this issue "unless and until the General Assembly or the Insurance Department acts in a way that would suggest we do otherwise." Ultimately, the Supreme Court overruled the lower court decisions and held that the Regular Use Exclusion remained valid and enforceable.

The Tort Talk Blog post on this case, which contains a link to this decision, can be viewed at this LINK.



1. The Use of AI to Draft Court Filings


Over the past year, the trending use of AI has apparently hit the legal field with attorneys utilizing AI to draft motions and briefs to be filed with the courts.  This has led to bar associations and courts in Pennsylvania taking steps to provide guidance on the proper and responsible use of AI in this regard. 

In May of this year, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a Joint Formal Opinion providing advice on the use of Artificial Intelligence in the legal profession.  That Joint Formal Opinion can be viewed at this LINK.

The Opinion itself notes that it is an "advisory only" Opinion.  Generally speaking, the Opinion recommends that attorneys be aware of, and competent with, the use of AI in the legal profession.  The Opinion recommends that those in the legal profession check and confirm the veracity of all information generated through the use of AI, including citations to legal authority.  The Opinion also cautions that client confidentiality should be protected at all times.

In terms of steps being taken by the courts of Pennsylvania to monitor the use of AI with court filings, in the federal courts of Pennsylvania, Middle District Court Judge Karoline Mehalchick crafted and issued what appears to be the first Civil Practice Order on Use of Generative Artificial Intelligence to be issued in the Commonwealth. 


Under this Order, which can be viewed at this LINK, Judge Mehalchick ordered that if a party to any litigation pending before her has utilized AI in preparation of any filing, that filing must be accompanied with a Certificate of Use of Generative AI.

In that Certificate of Use of Generative AI, the party is required to disclose and certify the following information:

(1) The specific AI tool utilized

(2) Identification of the portions of the filing prepared by the AI program; and

(3) Certification that a person filing the document has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority

In the Order, Judge Mehalchick cautioned that failure to comply with this Civil Practice Order could result in sanctions.

At the state court level, the Pennsylvania Supreme Court has created an Advisory Committee on Artificial Intelligence.  That Committee was created to propose appropriate statewide rules to provide guidance to counsel on the use of AI with filings in the state court systems.



Source of above image: Photo by Sergei Starostin on www.pexels.com.


Friday, December 27, 2024

Arbitration Clause Under an App Ruled Unenforceable

In the case of Pierce v. Floatme Corp., No. GD 24-2169 (C.P. Allegh. Co. Dec. 19, 2024 Hertzberg, J.), the trial court overruled preliminary objections filed by a loan provider called Floatme Corp. in which the loan provider sought to have the class action filed against it dismissed pursuant to an arbitration clause contained within the provisions noted in the smartphone app when customers downloaded the app. 

In so ruling, Judge Hertzberg found that the arbitration provisions were not conspicuous enough for the users of the app so as to uphold any alleged arbitration agreement.  More specifically, the court found that  a "meeting of the minds" on the issue of arbitration was lacking in the case presented.  There was no unambiguous assent to arbitration by the customers in this case.

In his decision, Judge Hertzberg referred to a split Superior Court ruling in the case of Chilutti v. Uber Technologies.  In that Chilutti case, the Superior Court ruled that a binding arbitration agreement found in the Uber app failed to provide sufficient notice to customers that they were, in fact, agreeing to arbitration in the event of disputes and thereby waiving their right to a trial.  That Chilutti case is currently up before the Pennsylvania Supreme Court on appeal.

The Tort Talk post on the Chilutti case can be viewed HERE.

A copy of the Pierce v. Floatme Corp. case summarized in this Tort Talk blog post can be viewed at this LINK.

I send thanks to Thomas J. Foley, III if the Foley Law Firm in Scranton, PA for bringing this decision to my attention.

Federal Court Addresses Exception to "No-Duty" Rule In a Slip and Fall Case


In the case of Neyman v. Sunbelt Rentals, Inc., No. 2:23-CV-00226-WSS (W.D. Pa. Dec. 13, 2024 Stickman, J.), the court denied a Defendant’s Motion for Summary Judgment in a slip and fall case.

According to the Opinion, the Plaintiff filed a lawsuit against the Defendant to recover for injuries that the Plaintiff sustained when he slipped and fell on a wet and muddy ramp while unloading a forklift from a tractor trailer.

The defense filed a Motion for Summary Judgment arguing that it had not duty to the Plaintiff because the Plaintiff knew of the dangerous conditions on the ramp and chose to voluntarily walk on the ramp and was injured as a result. Essentially, the Defendants were arguing that a “no-duty” rule arises in favor of a Defendant when a danger is known and obvious to a Plaintiff and the Plaintiff chooses to voluntarily encounter that danger.

The Plaintiffs argued that the second clause of §343A, along with comment F of that Section under the Restatement (Second) of Torts created an exception to the “no-duty” rule. The Plaintiff more specifically argued that, even if a danger is known and obvious to a Plaintiff, a Defendant may still be liable if the Defendant should expect that a business invitee will not protect themselves against the danger due to being distracted at the time of the incident.

After reviewing the law as applied to the facts presented, the court held that, although it was clear that the Plaintiff knew about the dangerous condition of the ramp based upon the Plaintiff’s testimony that the ramp was indeed muddy and wet, the court otherwise found that issues of fact remained as to whether the Defendant should have anticipated a harm to the Plaintiff despite the Plaintiff’s knowledge of the ramp conditions.

There was evidence in the case that, prior to the Plaintiff’s fall, an employee of the Defendant had slipped on the ramp. Accordingly, the court noted that a jury could reasonably determine not only that the Defendant knew that the ramp was slippery, but that its slippery condition could lead to workers falling on the ramp. The court stated that it would be up to a jury to determine whether, despite the Plaintiff’s knowledge of the dangerous condition on the ramp, the Defendant should have anticipated a harm despite such knowledge on the part of the Plaintiff or the fact that the danger was obvious.

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


I send thanks to Attorney Garrett L. Trettel and Attorney Brendan B. Lupetin of the Pittsburgh, PA law firm of Lupetin & Unatin for bringing this case to my attention.

Source of image:  Photo by Ace Cranes on www.pexels.com.

Monday, December 23, 2024

Plaintiff Found to Have Released Personal Injury By Signing a Business Termination Agreement



In the case of Werner v. 1281 King Associates, LLC, No. 1725 MDA 2023 (Pa. Super. Nov. 13, 2024 Panella, P.J.E., Lane, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court affirmed a trial court’s sustaining of Preliminary Objections by Defendants based upon a claim that the Plaintiffs had released the Defendants from liability in this tort litigation under an agreement that the Plaintiff had executed which terminated the parties’ business relationship.

According to the Opinion, the Plaintiffs filed a negligence action against the Defendants based upon injuries sustained by the Plaintiff at a property owned by the Defendants. The Plaintiff was injured when the leg of his pants caught on a jagged edge of a ramp provided for delivery drivers and caused him to fall and suffer a hip fracture which required surgery.

According to the Opinion, prior to the accident, the Plaintiff had entered into an independent distributor agreement in which the Plaintiff was designated as the exclusive distributor for the Defendants’ products in a particular territory.

After the accident, the parties entered into a termination, release, consent, and arbitration agreement that allowed the Plaintiff to assign his distribution rights to another party in return for the termination of his distribution agreement.

That termination agreement contained a comprehensive release clause that provided that the Plaintiff release the Defendants “from any and all actions, causes of action, claims… and compensation of any nature whatsoever…. in any way arising out of, relating to, or having any connection with the Distributor Agreement."

When this personal injury lawsuit was filed, the Defendants filed Preliminary Objections asserting that the Plaintiff’s negligence case should be dismissed because of the release clause in the business termination agreement.

The trial court found that the release clause was clear and unambiguous and and served to preclude the Plaintiff from also pursuing the personal injury claims at issue.  The Superior Court agreed.

On a procedural level, the Superior Court noted that the Plaintiffs had waived any arguments that the Defendants had improperly raised the doctrine of release by way of Preliminary Objections by virtue of the Plaintiff’s failure to file Preliminary Objections to these Preliminary Objections.

Turning to the merits of the Defendants' request for a dismissal, the Superior Court agreed that the release language was unambiguous and that the language showed the intent of the parties to release the Defendants from any claims with any causal connection to the Distributor Agreement or the Plaintiff’s role as a distributor or party. The Superior Court noted that the Plaintiff would not have been on the property or injured but for his duties to fulfill his contractual obligations under the Distributor Agreement.

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


Source: “The Legal Intelligencer State Appellate Case Alert.” www.law.com (Dec. 3, 2024).