Summary Judgment Denied in Parking Lot Slip and Fall Case

In the case of Coolbaugh v. Sonesta Select Allentown Bethlehem Airport, No. 2023-C-1548 (C.P. Leh. Co. Nov. 13, 2024 Reichley, J.), the court denied a Defendant’s Motion for Summary Judgment in a case involving an alleged slip and fall in the Defendants’ parking lot.

In denying the motion, the court held that there were genuine issues of material fact regarding the application of the hills and ridges doctrine where a de-icing of the parking lot had occurred approximately twenty-four (24) hours before the Plaintiff’s accident.

According to the record before the court, there was evidence that the Plaintiff fell when temperatures were around freezing and where it had snowed three or four days earlier. The court noted that, where the evidence also indicated that the parking lot had been de-iced approximately twenty-four (24) hours before the Plaintiff’s accident, there was an issue of fact on whether the alleged accumulation of the ice upon which the Plaintiff had slipped was a natural accumulation or not.

Given these issues of fact, the court denied the Motion for Summary Judgment.

The court also denied the Motion for Summary Judgment on the basis of rejecting the Defendants’ argument that they had delegated the snow and ice removal duties to a third party under a contract. The court stated that the record was silent as to whether the moving Defendants had relinquished possession and control of the parking lot during or after the third party had performed snow removal services.

The court additionally noted that there were factual questions regarding the Defendants’ notice of the parking lot’s condition where snowy and ice conditions had been observed in the lot for days or weeks leading up to the Plaintiff’s accident.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

Source of image:  Photo by Wolfgang Lutzgendorf on www.pexels.com.

WARNING - NEW LAW - Put That Cell Phone Away While Driving or Face Getting Ticketed

While texting while driving has been banned in Pennsylvania since 2012, a new law that went into effect yesterday, June 5, 2025, bans all cell phone use while driving on the roads of Pennsylvania.

The law, known as “Paul Miller’s Law” (Senate Bill 37), makes it illegal to use a cell phone in your hands while driving. This includes holding your phone to do calls, emails, and texts. The law also prohibits having a cell phone in your hand for browsing the internet or for taking pictures or videos while you are driving.

The law prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of pushing buttons on the cell phone.

Under the law, for the first 12 months, the penalty will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. The violation carries no points against your license and it is not recorded on the driver’s record for noncommercial drivers. It will be recorded on a commercial driver’s record as a non-sanction violation.

Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.

Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

Here is a LINK to the summary of the law on PennDOT's website.

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Claims of Fraudulent and Negligent Misrepresentations Asserted Against Dentist Who Claimed Treatments Were Perfect Dismissed

In the case of Marcus v. Hazzouri, No. 2023-CV-5092 (C.P. Lacka. Co. May 27, 2025 Nealon, J.), the court sustained certain Preliminary Objections filed by a Defendant in a dental malpractice case.

According to the Opinion, the Plaintiff sued her former dentist alleging malpractice and lack of informed consent related to the alleged negligent installation of contra indicated mini-implants that later had to be removed and replaced with conventional implants.

The Plaintiff alleged that the dentist falsely stated that the mini-implants and his dental treatments were “perfect” and “going smoothly.” Based on these allegations, the Plaintiff additionally asserted claims of fraudulent and negligent misrepresentation, as a result of which misrepresentations the Plaintiff was reportedly unable to discovery her injury or the dentist’s negligence until she consulted with and treated with a different dental practice.

The Defendant dentist filed a demurrer to the fraudulent and negligent misrepresentation causes of action on the basis that those claims were duplicative of the Plaintiff’s malpractice claims and informed consent claims and were also unsupported by claims of separate damages.

The court granted the demurrer and noted that the only consequence alleged by the Plaintiff relative to the dentist’s representation involved the Plaintiff’s inability to discovery that the implants had failed due to the dentist’s conduct until the Plaintiff sought and received treatment from another dental group. Accordingly, the court ruled that the Plaintiff’s fraudulent and negligent misrepresentation claims were dismissed as legally insufficient due to the absence of any resultant damages.

However, the court noted that the statements allegedly made by the dentist would remain relevant to the matter in terms of any statute of limitations determination under the discovery rule and the fraudulent concealment doctrine.

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

Source of image:  Photo by Enis Yavuz on www.unsplash.com.

Trial Court Addresses Use of Hearsay Evidence During a Medical Malpractice Trial

In the case of Koesterer v. Thomas Jeffersons Univ. Hosp., Feb. Term 2021, No. 01051 (C.P. Phila. Co. Feb. 13, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion in a medical malpractice case and held, in part, that a judgment in favor of the Plaintiff should be affirmed given that the medical malpractice Defendant did not suffer any prejudice to the point of warranting a new trial where the Plaintiff’s attorney was permitted to briefly cross-examine a Defendant physician with the expert opinions of the Plaintiff’s non-testifying expert in violation of the hearsay rule.

According to the Opinion, the Plaintiff sued the medical Defendants for professional liability after the Plaintiff’s mother died allegedly as a result of a pulmonary embolism after hip surgery.

At trial, the Plaintiff’s attorney was permitted, over the Defendants’ hearsay objection, to cross-examine a Defendant doctor and the Defendant doctor’s expert with the expert opinions issued by one of the Plaintiff’s non-testifying expert.

In this regard, the trial court pointed out that, immediately before the questioning at issue, the Defendant physician testified that there was a disagreement in the field of medicine regarding the issues raised in the non-testifying expert’s opinion.

Accordingly, the court stated that, while the questioning from the Plaintiff’s attorney briefly drew in an outside hearsay opinion from a non-testifying expert, the trial court found that it was impossible to conclude that the momentary reference would have had an significant impact on the jury’s decision. 

The court also noted that this was essentially the only reference to the opinions of the Plaintiff’s non-testifying expert at trial. Accordingly, in this Rule 1925 Opinion, the trial court asserted that it did not err or abuse its discretion in denying the medical Defendants’ request for a new trial based upon the alleged prejudice in this regard.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 30, 2025).

ARTICLE (REPRINT): A Mid-Year Tuneup

As we are already at the mid-point of the year, I thought I would republish the below article of mine from the June 30, 2008  edition of the Pennsylvania Law Weekly:

A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress

By

Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.

ANTICIPATE

By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.

A MONTHLY GLANCE

Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.

RETURN CALLS PROMPTLY

A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.

RESPOND TO MAIL

Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.

READ UPDATES

Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.

ARRIVE EARLY

Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.

DON'T TAKE IT PERSONALLY

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.

VOLUNTEER

In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.

SCHEDULE 'ME' TIME

It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.

VACATION

Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.''

Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law.  He additionally provides mediation services through Cummins Mediation.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com. 

Source of top image:  Photo by Matheus Bertelli on www.pexels.com.

Reprinted with permission from the July 26, 2024 edition of the Pennsylvania Law Weekly (c) 2024 ALM Global Properties, LLC.  All rights reserved.  Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.