SAVE THE DATE FOR THE LACKAWANNA PRO BONO ANNUAL GALA

 

Plaintiff Knocked Into By Dogs in Dog Park Gets Knocked Out of Court

In the case of Bushner v. Nimeh, No. 2024-C-0616 (C.P. Leh. Co. 2025 Reichley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case in which the Plaintiff was run into by two dogs in a dog park and allegedly sustained injuries. One of the dogs was a Great Dane and the other dog was a Labrador Retriever.

According to the Opinion, both dogs were wearing pronged collars and were on leashes at the park. At the Plaintiffs’ suggestion, after asking the Defendant dog owners if their two dogs were “good dogs,” all of the parties’ dogs were let off of their leashes and allowed to run and play with each other in the dog park.

The court noted that, at her deposition, the Plaintiff admitted that the dog at issue did not attack her. Also, when asked if there was anything she believed that the Defendants should have done differently before the dogs ran into her, the Plaintiff responded in the negative.

After discovery was completed, the Defendants filed their Motion for Summary Judgment at issue.

In addition to alleging negligence, the Plaintiffs asserted that, even though she invited the Defendants’ dogs to go unleashed, the Defendants still had a duty to warn the Plaintiff on whether the Defendants’ dogs would be controllable while unleashed and/or whether the dogs posed a serious threat to the safety of others in their vicinity.

The Plaintiffs further alleged that the Defendants knew that the dogs allegedly had dangerous propensities and that the dogs should not be allowed to be off-leash.  The Plaintiff based this allegation  on the fact that the Defendants knew that their dogs pulled on their leashes before and given that the Defendants used pronged collars on their dogs to help mitigate the pulling.

The court found that neither of these acts, in isolation or together, showed any tendency on the part of the Defendants’ dogs to do an act that might endanger the safety of the person and property of others. The court otherwise noted that the Plaintiff failed to produce any evidence to support allegations that the dogs in question had dangerous propensities of which the Defendants were aware.

The court also rejected the Plaintiff’s attempt to prove negligence under the Dog Law. The court noted that where proof of negligence rests upon a violation of the Dog Law, liability does not attach unless causation is also established. The court noted that the record was devoid of evidence to support a finding of negligence under the Dog Law.

Accordingly, the court rendered summary judgment in favor of the Defendants dog owners.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (Aug. 7, 2025).

Source of image:  Photo by Rui Alves on www.unsplash.com.

Commonwealth Court Rules That Trial Court Erred in Giving Comparative Negligence Jury Instruction in Dog Bite Case

In its decision, which was listed as “Opinion not Reported,” (Why write and Opinion if your not going to report it?) in the case of Coffin v. Carbon County Animal Shelter, No. 1516 C.D. 2023 (Pa. Cmwlth. July 22, 2025 McCullough, J., Cannon, J., and Hannah Leavitt, S.J.) (Mem. Op. by Leavitt, S.J.), the Commonwealth Court of Pennsylvania overruled a trial court Order denying a Plaintiff’s Motion for a New Trial in a dog bite case.

According to the Opinion, the Plaintiff arrived at an animal shelter. While there, the Plaintiff was attacked by a dog. She was bitten on her leg and was also caused to fall. In addition to the suffering the dog bites, the Plaintiff broke both of her ankles in the fall and required surgery on one of her ankles.

After a trial, a jury entered a verdict in favor of the Plaintiff and awarded $40,000.00 but also assessed 50% of comparative negligence against the Plaintiff.

The Plaintiffs filed a post-trial motion asserting that the Defendant did not prove that the Plaintiff was negligent in any way.  The Plaintiff argued that, as such, the jury should not have been provided with jury instructions on comparative negligence. The trial court denied the Plaintiff’s Motion for a New Trial and the case was appealed to the Commonwealth Court.

The Commonwealth Court reversed and remanded and held that the trial court erred in instructing the jury on comparative negligence where there was no evidence that the Plaintiff had acted negligently.  The appellate court noted that the Plaintiff did not act negligently in allegedly failing to distance herself from a leashed dog that merely jumped towards the Plaintiff as it approached, only to then attack the Plaintiff unexpectedly from behind thereafter.

The court rejected the defense argument that the Plaintiff was negligent in allowing the dog to get close to her, which allowed the dog to attack. 

The appellate court noted that, while the Plaintiff may have understood the risks posed by the dog as involving the possibility that the dog would jump at her again, there was no indication for the Plaintiff that a vicious attack would possibly occur. The court noted that the Plaintiff’s previous brief encounter with the dog was not sufficient to put the Plaintiff on notice of the dog’s vicious propensities. The court noted that the previous jump was not, according to the evidence, accompanied by a growl, a snap, or any attempt by the dog to harm the Plaintiff.

Accordingly, the court found that there was no evidence of any negligence on the part of the Plaintiff relative to the dog getting close to the Plaintiff a second time. Therefore, there was no support for the trial court to have given the jury the Comparative Negligence jury instruction.

The case was remanded back for the entry of an Order awarding the Plaintiff the total damages awarded by the jury at trial.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Aug. 19, 2025).

Source of image:  Photo by Pixabay on www.pexels.com.

NEED CLE CREDITS? UPCOMING ZOOM CLE TO CONSIDER

 

Trial Court Sheds Light On Why It Granted Summary Judgment in Allegedly Defective Street Light Case

In the case of Medina v. Zorrilla, June Term, 2023, No. 1233 (C.P. Phila. Co. June 9, 2025 Bright, J.), the court issued a Rule 1925 Opinion in a case of a pedestrian hit by a vehicle at an intersection with allegedly deficient street lighting.

The trial court assserted in its Opinion that its Order granting summary judgment in favor of the City Defendants should be affirmed where the Plaintiff did not offer up any evidence that the City had notice of an allegedly defective streetlight.  The trial court also noted that there was no evidence that the City had negligently maintained the streetlight.

The Plaintiff asserted that he had provided adequate evidence to support a claim under the Trees, Traffic Controls and Street Lighting exception to the municipal immunity afforded under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8542(b).

The trial court disagreed. The court noted that the Plaintiff never provided that any evidence that the City had notice, actual or constructive, regarding the alleged defect or malfunctioning of the streetlight where the accident happened. 

There was also no evidence in the record to suggest that, even if the City had notice, there would have been sufficient time to repair the allegedly defective streetlight before the accident happened.

The court did confirm that, once the City installed a streetlight in the area in question, it did have a duty to maintain it. However, the court found that there was no evidence in the record to show that the City failed to properly to maintain the streetlight in question.

Relative to any liability expert evidence offered by the Plaintiff, the court noted that the test completed on the streetlight by the Plaintiff’s expert were completed 1-2 years after the accident. Accordingly, the court stated that the test results did not shed any light onto the condition of the streetlight as of the day of the incident.

As such, the trial court requested the appellate court to affirm the trial court's entry of summary judgment in favor of the defendants.  

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


Source: The Legal Intelligencer Weekly Case Alert, www.Law.com (Aug. 28, 2025).

Privilege Against Producing Patient-Safety Investigation Report in a Med Mal Case Can Be Waived

In its non-precedential decision in the case of Fielding v. Robleski, No. 1340 EDA 2023 (Pa. Super. Sept. 4, 2025 Bowes, J., Nichols, J., and Sullivan, J.) (Op. by Sullivan, J.), the court reviewed a hospital’s appeal from a trial court’s Order denying the hospital’s Motion for a Protective Order concerning a patient-safety investigation report in a medical malpractice case. 

The trial court had ordered the disclosure over the report. The trial court also found that the hospital had waived any federal privilege by failing to raise it in its initial Motion to Compel.

On appeal, the Superior Court affirmed the trial court’s conclusion that the hospital had failed to timely preserve its claims of a federal law privilege. 

As such, the Pennsylvania Superior Court has ruled that a discovery protection allowed under federal law is indeed waivable in medical malpractice suits in which the Federal Patient Safety and Quality Improvement Act of 2005 is raised.

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


I send thanks to Attorney Michael J. Foley of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Federal Court Bounces Premises Liability Case Back to State Court After Finding That Store Manager Was Fraudulently Joined in the Matter

In the case of Kincaid v. Dollar Tree, Inc., No. 2:25-CV-00787 (W.D. Pa. Sept. 2, 2025 Stickman, J.), the court denied a Plaintiff’s Motion to Remand a matter to the state court and also granted the Defendant’s Motion to Dismiss the store manager as a Defendant.

This case arose out of an incident that occurred at a Dollar Tree store where the Plaintiff allegedly reached up to a top shelf to grab a coffee mug and the mug tipped over, spilling its contents onto her face, body and clothing. The Plaintiff alleged that the cup contained urine and other hazardous fluids.

The Plaintiff originally filed suit in state court. The Defendant removed the matter to federal court.

In removing the case to federal court, the Defendants asserted that the Plaintiff’s joinder of the store manager into the lawsuit was a purposeful effort to have residents from Pennsylvania on both the Plaintiffs side and the defense side of this matter so as to preclude removal on the basis that there was no diversity of citizenship.

The Plaintiff filed a Motion to Remand the case to state court.

The court held that, as pled, there were no grounds upon which the Plaintiff may maintain an action against the store manager under Pennsylvania law.  In this Opinion, the court noted that the “Plaintiff’s argument is an exercising sophistry.”  Accordingly, the court denied the Plaintiff’s Motion to Remand and granted the store manager’s Motion for a Dismissal.

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


I send thanks to Attorney Sarah E. Cobbs of the Pittsburgh office of the law firm of Thomas, Thomas & Hafer, LLP, for bringing this case to my attention.