No Duty of Care Created by Simply Giving a Thumbs Up To Proceed With Cutting Down a Tree

In the case of Miller v. Kinley, No. 22-00349 (C.P. Lyc. Co. June 18, 2024 Carlucci, J.), the court granted a Defendant summary judgment based on a finding that simply given a Plaintiff a “thumbs up” signal during the course of cutting down a tree did not create a duty of care by that Defendant when the tree that the Plaintiff was cutting fell on the Plaintiff.

In this case, the Plaintiff alleged that the Defendants had granted him permission to cut down trees on their property. The Plaintiff alleged that one Defendant, who had transported the Plaintiff to the property, agreed to assist in the removal of the trees by acting as a spotter and a safety coordinator.

The court noted that the Plaintiff failed to support this allegation with his deposition testimony.

The Defendant at issue filed a Motion for Summary Judgment. The court found that the Defendant was entitled to summary judgment because there was no genuine issue of material fact as to any duty owed by that Defendant to the Plaintiff. The court found that no reasonable jury could find that, by giving the Plaintiff a “thumbs up” signal, that Defendant assumed as duty of care to ensure that the Plaintiff safely cut down the tree and stay out of its way as it fell.

Judge Carlucci noted that, under the common law of Pennsylvania, absent a special relationship between the parties, there is no duty to control the conduct of a third party to protect another from harm.


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


Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Preliminary Objections Regarding Venue and Doctrine of Forum Non Conveniens Addressed by Superior Court

In the case of Kennedy v. Crothall Healthcare, Inc., No. 383 EDA 2023 (Pa. Super. Aug. 9, 2024 Collins, J., Stabile, J., and McLaughlin, J.) (Op. by Collins, J.) (McLaughlin, J. dissenting), the Superior Court affirmed a trial court's granting of a defendant's Preliminary Objections based upon a lack of jurisdiction and also affirmed the dismissal of remaining claims under the doctrine forum non conveniens.

Relative to the issue of jurisdiction, the court found that the Plaintiff asserted no valid basis for jurisdiction over a manufacturer for injuries sustained in a surgery that was completed in a state other than Pennsylvania. 

The court also emphasized that the Defendant was not located in Pennsylvania and the product at issue was never manufactured in the state of Pennsylvania.

The court additionally noted that the Plaintiff did not assert general jurisdiction and, as such, any arguments based upon the Pennsylvania registration of the corporation to do business were considered to be waived.  The Plaintiff attempted to request a retroactive application of a recent U.S. Supreme Court decision in the case of Mallory v. Norfolk Southern Railway Co. regarding jurisdiction over corporations that register to do business in Pennsylvania.  However, the Court found that the Plaintiff had waived this issue of general jurisdiction.

In terms of the Plaintiff's efforts to establish specific jurisdiction over the defendant, the court additionally noted that the fact that the payment for the product at issue was sent to a Pennsylvania lock box was insufficient to support a claim of specific personal jurisdiction against the Defendant. The court emphasized that the lock box had nothing to do with the product liability issue.

The court agreed that the Defendants did not otherwise purposefully direct their activities towards Pennsylvania. Also, the Plaintiff’s claims did not, in any meaningful way, arise out of the use of the lock box. Moreover, the court noted that the lock box belonged to the manufacturer’s bank and not toe the Defendant manufacturer. The court reasoned that if the presence of an independent product distributor is insufficient to support jurisdiction, then the presence of an independent lock box also cannot be sufficient.

Relative to the issues raised under the doctrine of forum non conveniens, the court found it was also proper for the trial court to have dismissed the case on these grounds as well. In this matter, it was established that every witness was located out of state as were all of the Defendant’s alleged activities related to the lawsuit. The Superior Court agreed that the Defendant had demonstrated the hardship that justified disturbing the Plaintiff’s choice of forum.

The court in Kennedy additionally ruled that the fact that a corporate Defendant had headquarters in Pennsylvania, in and of itself, was not enough to defeat a motion filed under the doctrine of forum non conveniens seeking a transfer of venue.

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


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

ARTICLE: A CAUTIONARY LESSON TO AVOID WAIVER OF ISSUES RAISED AT TRIAL

The below article of mine was published in the Summer of 2024 edition of the Civil Litigation Update (Vol. 27, No. 3) put out by the PBA Civil Litigation Section and is republished here with permission.

A CAUTIONARY LESSON TO AVOID A WAIVER OF ISSUES  RAISED AT TRIAL


By


Daniel E. Cummins, Esq.


A recent decision out of the Philadelphia County Court of Common Pleas serves as a cautionary lesson that, if heeded, will avoid a waiver of issues on appeal in a civil litigation matter.

Not All Pre-Trial Objections Are Preserved

In the case of Wingate v. McGrath, April Term 2019, No. 04637 (C.P. Phila. Co. March 28, 2024 Powell, S.J.), the trial court found that the plaintiffs in this motor vehicle accident litigation had waived their objections to the testimony of the defendant’s medical expert witness by failing to restate the objections that were previously raised plaintiff’s pre-trial motion in limine until after that expert for the defense had testified at trial.

A copy of the Wingate decision can be secured on the author’s Tort Talk blog by going to www.TortTalk.com and typing “Wingate '' into the Search box near the upper right hand corner of the home page of the blog.

According to the Opinion, during the discovery phase of this personal injury litigation, the defendant produced reports from a medical expert who offered an opinion that the plaintiff’s back problems were unrelated to the accident.

As the case approached trial, the plaintiff filed a motion in limine seeking to exclude the defendant’s expert from testifying. At that point, the trial court issued an Order deferring a decision on the pre-trial motion until the time of trial.

However, at trial, the plaintiff did not restate the issues raised in their motion in limine until after the jury had heard the testimony from the defendant’s medical expert. The case proceeded to a verdict and the defense prevailed.

Thereafter, post-trial motions were filed by the plaintiff. In its initial ruling on the post-trial motions, the trial court ruled in part that it had committed error by failing to conduct an analysis of the admissibility of the defense expert’s opinions before the presentation of that testimony at trial.

However, in its later Rule 1925 Opinion further reviewing this issue, the trial court reversed its own decision. The trial court in Wingate stated that “[t]he reason this Court failed to conduct the analysis required…prior to the start of [the defense expert’s] testimony is not because this Court was derelict in its duty; rather, this Court failed to conduct the…analysis because Plaintiffs failed to renew the issue prior to the presentation of [the defense expert’s] testimony at trial.”

In so ruling the court in Wingate relied upon the Pennsylvania Superior Court decision in the case of Blumer v. Ford Motor Co., 20 A.3d 1222 (Pa. Super. 2011), appeal denied 49 A.3d 441 (Pa. 2012). In Blumer, the Superior Court had ruled that “if the trial court defers ruling on a motion in limine until trial, the party that brought the motion must renew the objection at trial or the issue will be deemed waived on appeal.”

As a result, in its Rule 1925 Opinion addressed to the Superior Court, the trial court in Wingate requested the Superior Court to reverse the trial court’s previous decision to grant the plaintiffs a new trial.

The Lesson

The Wingate is just one of many examples of judges seeking to find a waiver of an issue that has been presented for appellate review.

Surely, the filing of pre-trial written motions in limine should ordinarily be sufficient to deem an issue as preserved for appeal. However, if a decision on the motion is deferred by the Court until the time of trial, it is only fair that the burden of making sure a decision on that motion is secured before the issue occurs at trial be placed upon the party who filed that motion.  That party is in the better position to remember to make sure the issue is decided as opposed to the judge with hundreds and hundreds of cases on her or his docket and who is presented with many other issues at the very trial taking place.

The lesson for litigators to recall here is that trial court and appellate court judges are trained to actively look, as a matter of first instance, for waivers of issues as a matter of course in the review of matters before them. Finding a waiver not only allows a judge to avoid additional work, but also serves an important purpose as another way for a judge to preserve a result such that a case does not have to be tried a second time.

Accordingly, litigators should view it as a challenge to raise and re-raise objections as many times as possible so as to make it free and clear from any doubt that the issue has been preserved for further review.

The Wingate decision confirms that issues raised in pre-trial motions that have been deferred for a decision until the time of trial must be raised again. Yet, even if a pre-trial motion limine was decided prior to trial, out of an abundance of caution, the trial attorney should reiterate any rulings therefrom on the record at trial prior to jury selection in order to emphasize favorable rulings or to confirm the plan to appeal adverse rulings. If such pre-trial issues dealt with the testimony of a particular witness, the objections should be restated again prior to the commencement of the testimony of that witness.

Closer to the end of any trial, out of an abundance of caution and with the possibility of irking the judge, a trial attorney should confirm on the record both before closing arguments, and again during that time after the presentation of the jury instructions and before the jury is excused to deliberate, that any and all verbal and written pre-trial and trial objections and issues raised are preserved for appeal.

In the end, the represented client is entitled to have their attorney go above and beyond in the effort to prevail in the case, including with respect to preserving all objections as to how the case has proceeded.

Daniel E. Cummins, Esquire is the managing partner of the Clarks Summit, PA law firm of Cummins Law. Attorney Cummins is a trial attorney who focuses on insurance defense matters.  Attorney Cummins was also one of the Attorney Advisors for the 2024 National Champion High School Mock Trial Team from Abington Heights High School (Clarks Summit, PA), a team that also won the Pennyslvania State Title three out of the last four years. 

Petition To Open Default Judgment Denied

In the case of Grit Drexel, LLC v. Crescent Abstract, LLC, April Term, 2023, No. 01466 (C.P. Phila. Co April 12, 2024 Patrick, J.), the court issued a Rule 1925 Opinion indicating that its Order granting a default judgment in favor of the Plaintiff property owner against a title company should be affirmed.

The court noted that the Defendant failed to timely file a Petition to Open a Default Judgment. According to the record, the Defendant waited 77 days to file the Petition, which the court found to be untimely.

The court also noted that the Defendant failed to plead a meritorious defense. The Defendant was also found to have failed to demonstrate any legitimate excuse for its failure to appear prior to the filing of the entry of a default judgment.

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


Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Federal Court Remands Coverage Action to State Court

In the case of Turner v. Progressive Specialty Ins. Co., No. 2:24-CV-00939-JFM (E.D. Pa. Aug. 14, 2024 Murphy, J.), the court granted a motion to remand a class action regarding UM/UIM coverage issues after finding that grounds for federal court jurisdiction were not met by the carrier.

The court noted that this case was removed by Progressive from the Court of Common Pleas of Philadelphia County to the federal district court. The court noted that the purported basis for jurisdiction in this case was the Class Action Fairness Act which requires, among other things, that the aggregate amount in controversy be at least $5 million dollars.

In an Amended Complaint, the Plaintiff dropped any claim for punitive damages and and confirmed that all that was sought was a judicial declaration of uninsured and underinsured motorist coverage for him and other proposed class members.

The court found that Progressive had not met its burden to establish the amount in controversy for federal court jurisdiction. As such, the case was remanded to the state court.

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


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

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Summary Judgment Granted in Parking Lot Case Based on Open and Obvious Doctrine

In the case of Ersick v. Joe’s Store, No. 3082-CV-2022 (C.P. Westmoreland Co. July 25, 2024 Smail, J.), the court addressed issues in a premises liability case.

According to the Opinion, this matter involved a trip and fall in the parking lot of a store. The Plaintiff allegedly fell over a black and yellow parking block that she allegedly could not see because her view was obscured by the truck from which she exited in a parking spot immediately before she fell.

The defense filed a Motion for Summary Judgment arguing that, first, the Plaintiff failed to present evidence to identify what caused her to fall and, secondly, that the parking blocks at issue were known by the Plaintiff or were otherwise open and obvious. 

The Plaintiff countered with an argument that the evidence revealed that her fall was caused by a defective parking block and that the question of a dangerous condition should be lift to a jury.

Reviewing then record before it, the court found that the Plaintiff did indeed identify which parking block allegedly caused her to fall.

However, the court agreed with the defense that the parking block at issue was an open and obvious condition that the Plaintiff admittedly observed prior to her fall down event. It was additionally indicated that the incident occurred during daylight conditions, that the Plaintiff had previously visited the store during the day, that the Plaintiff recalled attempting to step over the block, and that the Plaintiff was able to recall that the parking block had yellow or orange stripes on it.

As such, the court granted summary judgment to the defense after finding that the condition which allegedly caused the Plaintiff to fall was an open and obvious condition.

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


I send thanks to Attorney Thomas W. Summers of the Pittsburgh office of the Summers McDonnell Hudock, Guthrie & Rauch, P.C. law firm.