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Superior Court Affirms Entry of Defense Verdict Even Though Default Entered In Favor of Defendant Prior to Trial

In the case of Derbyshire v. Jefferson Frankford Hospital, No. 1409 EDA 2023 (Pa. Super. Dec. 20, 2024 Olson, J., Stabile, J. and Colins, J.) (Op. by Stabile, J.), the Superior Court found that a trial court judge did not commit any error in post-trial proceedings by denying a Plaintiff’s Motion for a New Trial limited to the issue of damages.

This matter arose out of a slip and fall event.

According to the Opinion, prior to the trial in the underlying matter, a motions court judge had stricken the Defendant’s Answer to the Complaint with prejudice due to untimeliness under Pa. R.C.P. 1029(b).

Later, another judge who presided over the trial, refused the Plaintiff’s request to direct the jury to find in the Plaintiff’s favor on the issues of negligence and causation and, instead, allowed these issues to go to the jury.

The jury then returned a verdict in favor of the Defendant on the issue of causation and awarded zero damages.

The Superior Court held that, while the Defendant’s failure to answer the Complaint resulted in a deemed admission of the facts alleged in the Plaintiff’s Complaint, at trial, the Plaintiff still had a burden to prove a legal causal connection between the Defendant’s alleged negligent conduct and the Plaintiff’s alleged damages. In its ruling, the Superior Court noted that, since the jury found the Defendant negligent, the Plaintiff suffered no prejudice from the trial court’s refusal to deem that issue admitted. The Superior Court therefore focused its attention on the issue of causation.

In ruling in the manner it did, the Superior Court found a 1984 decision from the Supreme Court of Texas to be persuasive. That court in Texas had concluded that a plaintiff who obtains a default judgment in a personal injury matter must still prove damages apart from the deemed admission of liability. 

Here, in this Derbyshire case, the court found that the striking of the Defendant’s Answer and New Matter resulted in a deemed admission of all facts but only an admission of “liability” by the Defendant. 

The Superior Court ruled that the Plaintiff still had to proceed to trial on the issue of damages and, in this regard, the Plaintiff had a burden to establish that the Defendant’s conduct caused the Plaintiff’s damages. 

As noted, in this case, the jury was not convinced that the Plaintiff’s alleged damages were related to the Defendant’s negligent conduct.

The Superior Court ruled that, based upon a review of the evidence in the record, it was within the jury’s prerogative to award zero damages.

Accordingly, the Superior Court ultimately ruled that the trial court did not err in denying the Plaintiff’s Post-Trial Motions seeking a new trial on damages.

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

Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).

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.

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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.