Summary Judgment Denied in Supermarket Parking Lot Pothole Case

In the case of Schwab v. Giant Food Stores, No. 2024-CV-3936 (C.P. Lacka. Co. Dec. 2, 2025 Nealon, J.), the court denied summary judgment in a supermarket parking lot slip and fall involving a pothole.

In its responsive pleadings, the supermarket denied liability and also asserted that it did not own or control the parking lot at issue.

In response to the Motion for Summary Judgment, the Plaintiff asserted that discovery was ongoing with respect to the ownership and maintenance of the parking lot at issue.

The court noted that the supermarket Defendant merely alleged in its pleadings and its Motion for Summary Judgment that it did not own or maintain the parking lot. However, the supermarket Defendant did not submit any evidence in support of that allegation.

As such, the court denied the Motion for Summary Judgment based on issues of fact and allowed the case to proceed.

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

Judge Nealon of Lackawanna County Reviews the Standard of Review Applicable to a Motion for Recusal

In the case of Correctional Care, Inc. v. Lackawanna County, PA, No. 2021-CV-3079 (C.P. Lacka. Co. Oct. 10, 2025 Nealon, J.), the trial court set out the standard of review relative to a Petition to the court requesting a recusal of a trial judge or the entire trial bench.

In this case, the provider of healthcare services to correctional facilities filed a lawsuit against the County seeking compensation for monies allegedly owed to the Plaintiff under the parties’ contract.

During summary judgment proceedings, the healthcare provider produced a testimonial affidavit from one of the County judges who served as a prison board member during the relevant time period under the contract. In that affidavit, the County judge made references to facts pertinent to the issues presented under the contract.

Following its production of that affidavit, the healthcare provider filed a Petition requesting a “full bench recusal” based upon the other judge’s status as a potential trial witness. The healthcare provider also sought a change of venue.

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, who addressed the recusal request, set out the standard of review.  Judge Nealon was not the judge who had provided the above-referenced affidavit.

Judge Nealon noted that a judge faced with a recusal request must first make a conscientious determination of the judge’s ability to assess the case in an impartial manner.

If the judge is satisfied with that subjective self-examination of objectivity, the judge must then consider whether the judge’s continued involvement in the case could reasonably create an appearance of impropriety.

The court referred to other cases in which judges of this particular court had recused themselves from matters in which a colleague was likely to testify.

The court noted that the presiding judge at the trial of this matter would have to determine whether the judge’s proffered testimony is admissible, and if that testimony is admissible, the acceptable scope of the cross-examination of the judge.

In this case, Judge Nealon noted that, although the court believed that it would decide those evidentiary issues impartially and objectively based upon the applicable law, the court’s consideration of the other factors led him to conclude that his proceeding in the matter as the judge when a colleague of his was a witness in the case could create an appearance of impropriety in reasonable minds.

Accordingly, Judge Nealon granted the request to recuse the bench from this case and directed the court administrator to reassign the pending summary judgment motions filed by parties, along with the Motion for a Venue Transfer, to another judge.

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

Source of image:  Photo by Tingey Law Office on www.unsplash.com.

HOLIDAY GIFT FROM TORT TALK: Complimentary Copy of the 2025 Tort Talk Civil Litigation Update

Here is the LINK to a complimentary copy of the 199 paged 2025 Tort Talk Civil Litigation Update booklet that was created Daniel E. Cummins, Esq.   

Tort Talk has been putting out this annual Civil Litigation Update Booklet over the past 14 years since at least 2011, whether it be at the Tort Talk Expos or here on the Blog.

The 2025 Tort Talk Civil Litigation Update is a compilation of the most notable Tort Talk posts over the past year or so and is offered here FREE OF CHARGE as a Holiday gift to all Tort Talkers.

If you wish to review the actual Opinion of any of the cases summarized in the Tort Talk 2025 Civil Litigation Update, please go to www.TortTalk.com and type the case name, or the name of the Plaintiff, into the SEARCH BOX near the upper right hand corner of the blog (not the top box, the second from the top box).  That will take you to the Tort Talk post on that case, in which post there should be a LINK to the actual Opinion.

I note that the PBI sells its annual Civil Litigation Update Booklet for approximately $79.00!  The Tort Talk Civil Litigation Update Booklet is FREE.

As such, to the extent you may have a desire to pay it forward in another way with kindness this Holiday season, I would politely propose that you please consider making a donation to a charity or a non-profit organization of your choice, or to Lackawanna Pro Bono or The Children's Advocacy Center.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight here on Tort Talk.  All is greatly appreciated.

HAPPY HOLIDAYS!

Daniel E. Cummins, Esq.

Cummins Law

Clarks Summit, PA

579-319-5899

dancummins@cumminslaw.net

Source of  top image:  Photo by Thais Araujo on www.pexels.com

Supreme Court Upholds Application of the Immunity Provisions of the Mental Health Procedures Act

In the case of Wunderly v. St. Luke’s Hosp. of Bethlehem, No. 119 MAP 2023 (Pa. Oct. 23, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court addressed issues raised in a medical malpractice case under the Mental Health Procedures Act.

In this case, the Plaintiff had filed suit against St. Luke’s Hospital of Bethlehem alleging that the Plaintiff decedent was admitted to St. Luke’s with Stage 1 pressure ulcers on his buttocks and that, during his stay at St. Luke’s he acquired pressured-related skin breakdowns, pressure wounds, and the deterioration of pre-existing pressure wounds, which allegedly caused or contributed to his death.

The trial court had dismissed the Plaintiff’s Complaint after St. Luke’s argued that the decedent was involuntarily admitted to its facility under the Mental Health Procedures Act and that, under the Act, St. Luke’s was immune from liability as the Plaintiff had failed to allege that the medical providers had engaged in willful misconduct or gross negligence that caused the decedent’s death.

The immuity provision of the Mental Health Procedures Act, 50 Pa.C.S.A. Section 7114(a), provides that "[i]n the absence of willful misconduct or gross negligence...a physician...or any other authorized person who participates in a decision that a person be examined or treated under [the MHPA]...shall not be civilly or criminally liable for such decision or for any of its consequences." 

This trial court decision dismissing the case was affirmed by the Superior Court on appeal which found that the decedent was being treated primarily for his mental health after being involuntarily admitted for aggressive behavior related to his dementia. The Superior Court also ruled that the treatment of the Plaintiff’s physical issues was consequence oh the patient's mental health treatment.

Up on the highest rung of the appellate ladder, the Pennsylvania Supreme Court affirmed the Superior Court’s decision and found that treatment for other medical issues consequent with a patient’s mental health treatment or for medical issues that may arise during a patient’s involuntary inpatient admission fell within the scope of treatment entitled to immunity under the Mental Health Procedures Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion can be viewed HERE.


Source: The Legal Intelligencer State Appellate Case Alert, (Nov. 11, 2025).

Source of image:  Photo by Ectactics Inc. on www.unsplash.com.

Judge Powell of Lackawanna County Addresses Plethora of Issues Raised in Medical Malpractice Matter

In the case of Doyle v. Keyed, No. 2024-CV-9036 (C.P. Lacka. Co. Oct. 16, 2025 Powell, J.), the court issued a decision denying various Preliminary Objections filed in a medical malpractice action arising out of the death of an infant during a complicated delivery.

Of note, Judge Powell of the Lackawanna County Court of Common Pleas overruled nearly all of the challenges submitted by the Defendants, including a request by Lehigh Valley Hospital-Pocono Defendants’ request to severe their case from the claims against the St. Luke’s Hospital Defendants.

The court additionally rejected one doctor’s claim that he could not be held vicariously liable for actions by the hospital staff that worked under him. The court noted that vicarious liability may attach in a medical malpractice case under the “captain-of-the-ship” doctrine or where the physician exercises actual control over the staff members.

The court noted that, because the Complaint in this matter alleged that the doctor at issue had directed and supervised others during the delivery, those allegations stated a viable theory of vicarious liability.

The court additionally upheld the Plaintiffs’ claims of direct and corporate negligence against various Defendants.

Judge Mark Powell
Lackawanna County

Judge Powell also overruled objections to the claim for punitive damages. The court found that the facts alleged could, if proven, constitute reckless disregard warranting punitive damages.

The court also noted that, given that mental state conditions may be alleged generally under Pa. R.C.P. 1019(b), such claims could survive the pleading stage.

The court also disagreed with the defense argument that childbirth procedures are not surgical acts requiring informed consent. The court noted that the allegations that the doctor failed to discuss surgical alternatives despite risk factors present stated a plausible informed-consent claim.

The court also allowed the Plaintiffs’ claims for negligent infliction of emotional distress to proceed. The court found that the Plaintiff-mother, having suffered a physical impact and having observed her child’s death, and the father, who witnessed the traumatic delivery and aftermath, both fit within the recognized categories of Plaintiffs permitted to pursue negligent infliction of emotional distress claims. In this regard, Judge Powell noted that observation of the results of negligent medical acts can satisfy the contemporaneous observation requirement in a medical malpractice context.

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

Source:  Lackawanna Jurist (Oct. 31, 2025).

Source of image: Photo by Samuel Ramos on www.unsplash.com.

Summary Judgment Denied in Barstool Tip Over Case

In the case of Caskey v. Outback Steakhouse, No. 24-CV-00897 (E.D. Pa. Sept. 22, 2025 Young, J.), the court denied a Defendant’s Motion for Summary Judgment in a customer’s premises liability suit.

The Plaintiff alleged that, while dining at the bar, the barstool he sat upon slid backwards as he leaned forward to eat, causing him to fall and sustain injuries.

The restaurants manager partially captioned the incident by using his phone to record a short video of the restaurant’s surveillance footage. The original surveillance video was not preserved. Also, the barstool involved in the incident was discarded before an expert site inspection could occur.

The Plaintiff provided evidence that there were multiple prior complaints of slippery and wobbly barstools reported to the Defendant’s managers. Moreover, the Plaintiff personally documented a subsequent incident where another barstool slid out from under his wife.

The Plaintiff continued that the Defendant’s failure to inspect the barstools and maintain appropriate facility inspection records reflected a breach of its duty of care owed to its customers as business invitees.

The Defendant filed a Motion for Summary Judgment asserting that there was insufficient evidence of a dangerous condition or of actual or constructive notice of that condition.

The court denied the Motion for Summary Judgment by finding that the Plaintiff had raised genuine issues of material fact regarding whether the barstool was a dangerous condition and on the issue of whether the condition was open and obvious. The court more specifically found that the evidence presented by the Plaintiff, including eyewitness and expert testimony, prior customer complaints, evidence of barstool deterioration, and inconsistences in the Defendant’s record-keeping, all gave rise to factual disputes that were appropriate for resolution by a jury.

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

Superior Court Affirms Trial Court Decision Granting Preliminary Objections To Venue

In the its Non-precedential decision in the case of Ojo v. Hanover Foods Corp., No. 2037 EDA 2024 (Pa. Super. Sept. 25, 2025 Panella, J., Nichols, J., and Ford Elliot, P.J.E.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s sustaining of Preliminary Objections asserting that venue was not proper in Philadelphia County. 

The court in this matter reviewed the record and stated that there was no evidence that the Defendants in this matter regularly conducted business in Philadelphia. The court noted that the Defendant did not have any products in Philadelphia or any physical presence in that County.

The court noted that the mere shipment of raw materials in sealed containers does not constitute conducting business in this context.

The court also ruled that the purchasing of products from Philadelphia suppliers did not constitute doing business in Philadelphia in this context.

Anyone wishing to review a copy of this Non-precedential 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.