eNotes: Liability – April 2020

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Dean v. Bowling Green-Brandywine

Pennsylvania Supreme Court
No. 26 MAP 2019
Decided: February 19, 2020

In a malpractice action, the Mental Health Procedures Act’s qualified immunity does not apply to all physicians and facilities that treat patients with any history of mental illness.

Background

Plaintiffs’ decedent, with a history of Bipolar Disorder and ADHD, voluntarily admitted himself for treatment of his addiction to opiates. At the time of his rehabilitation treatment, he was not under treatment for his mental illness. After receiving Methadone, he was transferred to the emergency room of a local hospital for treatment of an elevated heart rate and inability to see or move. Thereafter, he was discharged and returned to the rehabilitation facility, then later returned to the emergency room and again discharged and returned for further rehabilitation. A series of complicated symptoms, psychiatric evaluations, and several treatments with various medications culminated in the patient being found face down on the floor in his room without a pulse. After he was taken to the same emergency room for the third time, he was pronounced dead.

After Plaintiffs presented their case-in-chief asserting decedent died of a cardiac arrhythmia due to the combination of medications he received during his rehab treatments, Defendants moved for a non-suit and raised the qualified immunity under the Mental Health Procedures Act (MHPA). The MHPA’s qualified immunity insulates certain individuals from claims of ordinary negligence but not claims for willful misconduct or gross negligence. Because Plaintiffs did not establish willful misconduct or gross negligence, the Trial Court entered judgment for Defendants.

On appeal, a three-judge panel of the Superior Court affirmed the entry of nonsuit as to the rehabilitation facility and 2 doctors there. However, the entry of nonsuit in favor of the doctors who treated Plaintiff’s decedent in the emergency room was reversed. Plaintiffs appealed.

Holding

The Supreme Court interpreted the MHPA noting that its intent was to protect individuals and institutions that provide treatment to mentally ill patients from criminal and civil liability. Although the Court held that the rehabilitation facility was an “authorized person” protected by the MHPA, the treatment rendered was for drug detoxification and not for “treatment for mental illness,” as required for application of the MHPA limited immunity provision. Further, the Court held that applying the MHPA’s limited immunity to these facts “would not further the policy goals articulated by the General Assembly,” as the death was caused by the treatment he received for an elevated heart rate and blood pressure and was not coincident to any treatment for “mental illness.” Accordingly, the decision of the Superior Court was reversed and remanded to the Trial Court.

Questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

Huchko v. Blount Int’l, Inc.

Pennsylvania Superior Court
No. 1281 WDA 2019
Decided: March 13, 2020

An allegation contained in Plaintiff’s Complaint did not constitute a binding judicial admission where the allegation did not benefit the Plaintiff and was not a clear and unequivocal admission of fact.

Background

Plaintiff filed suit for personal injuries sustained when he was run over by a tractor. In the Complaint, Plaintiff included an allegation suggesting that he was run over while attempting to stop the tractor when it was in motion. At trial, however, Plaintiff testified that the tractor was not in motion before it ran him over. During this line of testimony, Defendant made an oral motion to preclude Plaintiff from testifying inconsistent with the allegation in the Complaint. Specifically, counsel argued that Plaintiff could not testify at trial that the tractor was not in motion prior to the accident, because he had made a binding judicial admission in his Complaint that he was trying to stop the moving tractor at the time of the accident. The Trial Court denied the motion, and Defendant appealed following the entry of an unfavorable jury verdict.

Holding

The Superior Court affirmed the Trial Court’s decision. The Court began its analysis by explaining the concept of judicial admissions. A judicial admission is a statement that amounts to a “clear and unequivocal admission of fact.” If the statement is ambiguous or in any way subject to interpretation, it cannot be considered a judicial admission. Furthermore, a judicial admission must be a statement that was made to provide an advantage to the admitting party. Based on a review of the record, the Court concluded that the allegation in the Complaint could not be considered a judicial admission because it was subject to interpretation and was not advantageous to the Plaintiff’s interests. Accordingly, the Trial Court’s decision was upheld on appeal.

Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

Powers v. Verizon Pa., LLC

Pennsylvania Superior Court
2020 Pa. Super. 58
Decided: March 11, 2020

Trial Court’s transfer of venue from Philadelphia County to Bucks County based on forum non conveniens was not an abuse of discretion.

Background

Plaintiff was injured when he stepped on the lid of a cable service box, causing his foot to enter the box and descend 18 inches. The cable service box was located between a curb and concrete walkway in front of a property in Bucks County. Plaintiff brought suit in Philadelphia County and Defendant filed its Petition for forum non conveniens. In support of the Petition, Defendant argued that there were travel issues for employees, eyewitnesses, lay witnesses, and medical witnesses of the Defendant. Further, Defendant argued that venue in Bucks County would provide better access to the site of the incident as well as critical evidence. The Trial Court found that Plaintiff failed to dispute the Petition with particularity, found that the Defendant sustained its burden of establishing oppressiveness, and granted Defendant’s Petition to transfer.

Holding

The Superior Court reiterated well-established case-law that a “defendant must show more than that the chosen forum is merely inconvenient” and that Pa.R.C.P. No. 1006(d)(1) only permits transfer if the chosen forum is oppressive or vexatious for the defendant. However, the Superior Court also noted that a plaintiff’s choice of venue is not absolute or unassailable. While acknowledging that the commute from Bucks County to Philadelphia County can be generalized as a “mere inconvenience”, the Superior Court also noted that oppressiveness can be shown by evidence that “trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of the premises involved in the dispute.” Given the foregoing, the Superior Court declined to find an abuse of discretion and affirmed the Trial Court’s transfer of venue to Bucks County.

Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.

Zimmerman v. One Adams Place, L.P.

Pennsylvania Superior Court
No. 1263 WDA 2019
Decided: March 11, 2020

Whether 1 ¼ inch height defect in parking lot constitutes a trivial defect is an issue for jury determination.

Background

Plaintiffs Betsy Zimmerman and her husband Glenn Sinko were tenants operating their law firm out of an office-building complex with an adjoining parking lot owned by Defendants. As Zimmerman walked through the parking lot towards her car, a cracked and raised section of the asphalt caught her foot, causing her to trip and fall and sustain injuries. Zimmerman did not see the 1 ¼ inch raised portion of the asphalt, prior to her fall, and there were no signs warning of unsafe conditions. The owners of the property did not discover the defect until after Zimmerman’s fall. Plaintiffs’ Complaint asserted negligence against the owners. Defendants filed a Motion for Summary Judgment, arguing that the “discrepancy” in the elevation of one discrete part of the lot was “trivial” as a matter of law, which was granted.

Holding

The Superior Court reversed, noting that there is a “fine line between what is considered trivial and what is considered not trivial.” When considering whether a defect is trivial, there is no definite or mathematical rule; rather, one must consider the “totality of the circumstances” including the defect’s size, location, and material. The Court held, in its non-precedential decision, that the 1 ¼ inch height difference in the lot fell within “a shadow zone where such questions must be submitted to a jury whose duty it is to take into account all the circumstances. To hold otherwise would result in the court ultimately fixing the dividing line to the fraction of an inch, a result which is absurd.”

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

Cardona v. Buchanan

Pennsylvania Superior Court
No. 1478 EDA 2019
Decided: March 9, 2020

Judgment of non pros affirmed where Plaintiff failed to file Petition to open judgment.

Background

Plaintiff commenced an action by writ of summons on November 8, 2007, seeking damages for a slip and fall accident which occurred on December 19, 2005. Plaintiff filed her complaint on November 20, 2009. Plaintiff’s deposition was taken on October 11, 2011. Defendant’s deposition was taken on March 28, 2014. There was no additional docket activity until Plaintiff’s counsel listed the case for arbitration on October 4, 2018. Defendant filed a Motion to dismiss for lack of prosecution on November 21, 2018. After Plaintiff filed an answer to the motion, the Trial Court held an evidentiary hearing and granted the motion. The Trial Court dismissed the case, with prejudice, for lack of prosecution.

Without first filing a petition to open judgment, Plaintiff appealed to the Superior Court. Plaintiff claimed that the Trial Court failed to apply the correct standard to the evidence and improperly dismissed plaintiff’s claim with prejudice. The Trial Court’s Pa.R.A.P. 1925 opinion reasoned that Plaintiff waived this argument by failing to file a petition to open judgment following the entry of the judgment non pros.

Holding

On appeal, Plaintiff claimed that the Court misunderstood the motion as a motion to dismiss, but treated it as a motion for non pros. The Superior Court, however, explained that it treats the terms “dismissal for lack of prosecution” and “judgment of non pros” synonymously. Although Defendant did not raise the issue of waiver, the Court had authority to affirm an order for dismissal on any ground. The Superior Court agreed with the Trial Court opinion that Plaintiff waived her objection because it was consistent with Supreme Court analysis in prior cases. It explained that Pa.R.C.P. No. 3051 requires that relief from a judgment of non pros be sought by petition to either strike off the judgment or to open it. Since any appeal related to a judgment of non pros lies not from the judgment itself, but from the denial of a petition to open or strike, the petition to open the judgment is mandatory. The Court affirmed the order of the Trial Court dismissing Plaintiff’s case for failing to prosecute her action because Plaintiff failed to file a petition to open before appealing to the Superior Court.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

Olson v. State Auto Prop. & Cas. Ins. Co.

Pennsylvania Superior Court
No. 737 WDA 2019, 2020 Pa. Super. Unpub. LEXIS 768
Decided: March 3, 2020

Court finds that employer’s auto coverage applied when the employee was using his individually owned vehicle for purposes of conducting work-related errands.

Background

Ms. Olson was a passenger in a vehicle driven by a third party when Mr. Sayre, who was operating his own vehicle during the course and scope of his employment, struck the vehicle in which Ms. Olson was a passenger. Following the accident, Ms. Olson and her husband filed a personal injury action against Mr. Sayre. The Olsons then filed an action for declaratory relief, asserting that there should be additional coverage available, contending that Sayre should be covered by the policy issued by State Auto to his employer, International.

Sayre, the Olsons, State Auto, and International all filed motions for summary judgment. The Court granted summary judgment in favor of Sayre and the Olsons, but denied summary judgment filed on behalf of State Auto and International. The Trial Court found that Sayre’s vehicle was not a “borrowed vehicle” at the time of the accident, rejecting the idea that an employee can borrow his own vehicle. Since the court found that the vehicle was not a borrowed vehicle, it concluded that both the vehicle and Sayre were covered under the State Auto policy. State Auto and International appealed, arguing that the Court erred in granting summary judgment in favor of the Olsons and Sayre when Sayre’s vehicle was a “borrowed vehicle” such that neither Sayre nor his vehicle were covered under International’s business policy.

Holding

The Court affirmed summary judgment in favor of the Olsons and Sayre, finding that it was bound by the Court’s previous decision in Bamber v. Lumbermens Mut. Cas. Co. This Court voiced its reservations regarding the Bamber decision, as it believed that under the International policy, the Sayre vehicle qualified as a “covered auto” because International “borrowed” it for purposes of company errands. Despite that, the Superior Court panel found that it was constrained by its prior holding until the Court granted en banc review.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com

Younkin v. Beener

Pennsylvania Superior Court
No. 1802 WDA 2018, 2020 Pa. Super. Unpub. LEXIS 708
Decided: February 27, 2020

Failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs, and using the corporate form to perpetrate a fraud leads to piercing the corporate veil.

Background

Plaintiff Dorothy Younkin sued Darlene Beener, asserting claims for conversion, breach of a bailment agreement, replevin, and unjust enrichment. Ms. Younkin, as administrator of the Estate of Edward Beener, alleged that Defendants Darlene Beener, Timothy Show, and Rita Show, in their individual capacity and trading as BTC Developments, converted and disposed of certain pieces of heavy equipment previously used in mining operations, including a 1952 Marion Model 7400 Dragline, which were the rightful property of the Estate of Edward Beener. The Trial Court found that Darlene Beener and Tri-Star Mining converted the Dragline and were unjustly enriched when the Dragline was sold for scrap, without consent of the Estate. The remaining Defendants were found not to have participated in the conversion.

At trial, the Court determined Darlene Beener had sole control over Tri-Star Mining and that Tri-Star was her alter ego. It was discovered that Ms. Beener made all decisions on behalf of Tri-Star and that the other partners were partners in name only. As such, Ms. Beener failed to adhere to corporate formalities with respect to the allocation of power among shareholders, directors, and officers. The Trial Court also determined that Ms. Beener significantly intermingled corporate and personal affairs, and used the corporate form to perpetrate a fraud. Accordingly, the trial court pierced the corporate veil. Ms. Beener appealed, inter alia, the decision to pierce the corporate veil and hold her personally liable. The Superior Court affirmed the Trial Court’s determination to pierce the corporate veil similarly finding that Ms. Beener failed to adhere to corporate formalities, intermingled corporate and personal affairs, and used the corporate form to perpetrate a fraud.

Holding

Piercing the corporate veil was appropriate where there was a failure to adhere to corporate formalities with respect to the allocation of power among shareholders, directors, and officers, there was a substantial intermingling of corporate and personal affairs, and where the corporate form was used to perpetrate a fraud.

Questions about this case can be directed to Jonathan Danko, at (717) 441-3957 or jdanko@tthlaw.com.
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MARYLAND CASE SUMMARIES

Pinner v. Pinner

Maryland Court of Appeals
No. 16, September Term 2019
Decided: March 3, 2020

The filing of an asbestos case in Maryland is insufficient to establish specific jurisdiction over a North Carolina resident under Maryland’s long arm statute.

Background

Edwin and Mona Pinner filed suit in the Circuit Court for Baltimore City seeking damages from asbestos exposure. Upon Edwin’s passing, the suit was converted to a wrongful death and survival action. Mona Pinner, a North Carolina resident, never served her step-son notice of the wrongful death action and never named him as a Plaintiff. The step-son, also a North Carolina resident, sought to intervene, but was barred by the statute of limitations. Mona settled the actions and never deposited the relevant settlement funds into Edwin’s estate. The step-son filed suit in the Circuit Court for Baltimore City alleging various counts against Mona, including some counts relying on North Carolina law and a breach of her duty as a fiduciary for the estate.

Mona failed to answer her step-son’s suit and an order of default was entered against her. Mona unsuccessfully moved to vacate the order. At the damages inquisition hearing for her step-son’s suit, the issue of personal jurisdiction was raised. The Circuit Court determined it had personal jurisdiction and entered a judgment against Mona.

Holding

Mona’s step-son conceded that Maryland courts did not have general jurisdiction over Mona. As to specific jurisdiction, the Court of Appeals noted the analysis is a fact-specific inquiry in which courts should evaluate (1) the extent to which defendant purposely availed themselves of conducting activities within the State; (2) whether the plaintiff’s claims arose out of the defendant’s activities with the State; and (3) whether jurisdiction was constitutionally reasonable. The Court of Appeals held that Mona did not purposefully avail herself of Maryland to the extent that her actions amounted to a consent by Mona to be sued in Maryland. Mona never traveled to Maryland during the civil suit in Maryland. Furthermore, it was not foreseeable that she would have to defend a breach of fiduciary action under North Carolina law, against a North Carolina resident in Maryland. Mona’s conduct was a “discrete quantum of activity” that did not permit Maryland courts to exercise personal jurisdiction over her in this matter. Therefore, the judgment entered against Mona was reversed.

Questions about this case can be directed to Lauren Upton, at (443) 641-0572 or lupton@tthlaw.com.

Stevenson v. Edgefield Holdings, LLC

Maryland Court of Special Appeals
No. 914, September Term 2018
Decided: February 28, 2020

The date of entry of a foreign judgment in Maryland is the date it is registered in Maryland, not the date the judgment was obtained in the foreign jurisdiction.

Background

On October 5, 2009, a Florida Court entered judgment of $169,550.25 against a Defendant who was the guarantor of a business loan. Defendant’s wife was not a party to the loan. In November of 2017, Plaintiff’s successor in interest sought to register the Florida judgment in Maryland to garnish bank accounts the Defendant opened with his wife in Maryland in 2013 and 2016.

Defendant objected to the garnishment, arguing that under Md. Ann. Code, Cts. & Jud. Proc. § 11-603, a judgment creditor cannot garnish a joint account if one of the joint account holders is not a judgment debtor and the account was created as a joint account prior to the date of entry of judgment permitting the garnishment. Defendant argued the date of entry of judgment is November 2017, when the judgment was registered in Maryland. Plaintiff argued the date of entry of judgment should be October 2009, the date of the original entry of judgment in Florida.

Holding

As a matter of first impression, the Court of Special Appeals held that the “date of entry of judgment giving rise to the garnishment” is the date the judgment is registered in Maryland. The Court noted that, pursuant to the Maryland Rules, judgments need to be registered in Maryland before a party is entitled to enforcement mechanism. Therefore, Plaintiff was not permitted to garnish the Defendant’s joint accounts with his wife in Maryland from 2013 and 2016.

Questions about this case can be directed to Lauren Upton, at (443) 641-0572 or lupton@tthlaw.com.

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NEW JERSEY CASE SUMMARY

Antonio v. Harrah’s Alt. City Propco, LLC

United States District Court for the District of New Jersey
2020 U.S. Dist. LEXIS 36183
Decided: March 3, 2020

In negligent security cases, “lack of prior similar incidents or other compelling evidence establishing foreseeability . . . will almost always be fatal to Plaintiff’s claim.”

Background

Plaintiff Antonio was injured when she was knocked into a pool by Third Party Defendant Ross. Plaintiff went to Defendant Harrah’s, to attend an “Epic Saturdays” pool party. The pool was located in the middle of the dance floor and patrons were permitted to swim when the club was open. No fences or barriers separate the pool from the dance floor, and no signs were posted informing dancers not to push each other in. However, a lifeguard was on duty at all times, between twenty-five and thirty-five uniformed control specialists supervise the area, and the entire club was under video surveillance. Atlantic City Police are also stationed at the club to respond to incidents when necessary. Plaintiff entered the pool area and danced near the water’s edge on two occasions. On the second occasion, she felt Third Party Defendant make contact with the middle of her back, causing her to fall into the water. Plaintiff was unsure whether Third Party Defendant intentionally pushed or accidentally knocked her into the water. Plaintiff told a security guard about the incident and identified Third Party Defendant as having pushed her into the pool. Among other claims, Plaintiff alleged that Defendant Harrah was negligent in failing to place more security near and around the pool to prevent patrons like Plaintiff from falling in when the dancing became particularly wild. Defendant Harrah moved for motion for summary judgment alleging it was unforeseeable.

Holding

In granting Defendant Harrah’s motion, the Trial Court explained by Plaintiff’s falling into Harrah’s pool due to wild dancing at the club was not reasonably foreseeable to obligate Defendant Harrah’s to provide additional security around the water. The Trial Court noted if a patron is or should be aware of the dangerous condition because a “reasonable use of [her] faculties” would reveal it, then the landowner is relieved of his duty to warn. New Jersey courts consider the totality of the circumstances to determine whether third party acts are foreseeable. Here, the Pool After Dark nightclub was known for the pool located in the club’s center and was an obvious hazard that Plaintiff, through “reasonable use of [her] faculties,” could and should have detected. On the evening of the incident, Plaintiff not once, but twice, went to dance right by the edge of the pool on a crowded dance floor with several people dancing around her. Even without warnings or added security, Plaintiff could have easily observed that dancing close to the edge of the pool on a packed dance floor surrounded by other people presented the possibility of another person bumping into her and causing her to fall into the water. Further, while Plaintiff cited eight incidents over the course of 2015 where individuals somehow ended up in the pool, there was no indication that any of these incidents arose because patrons were wildly dancing by the pool, rather many of the incidents resulted from fights or other forms of escalating violence.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com

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DC CASE SUMMARY

Frankeny v. Dist. Hosp. Partners, LP

District of Columbia Court of Appeals
No. 18-CV-629
Decided: February 27, 2020

DC Court of Appeals reverses summary judgment in favor of hospital and holds patients not required to present evidence of “entrepreneurial motive” to pursue consumer protection claims regarding misrepresentation of the characteristics or quality of medical services.

Background

Plaintiff Frankeny sought medical care for sleep apnea from Dr. Troost, a board certified otolaryngologist practicing at the George Washington University Hospital (GWUH). Dr. Troost recommended a bilateral tonsillectomy, and Frankeny had the surgery, with a first-year medical resident, Dr. Mai, performing at least a portion of the surgery under Dr. Troost’s supervision. After Frankeny experienced postoperative complications, she filed suit against the university and physicians group for medical malpractice, lack of informed consent, and battery, and the suit was settled and dismissed. Frankeny also sued GWUH for violations of the D.C. Consumer Protection Procedures Act (CPPA) in failing to disclose Dr. Mai’s involvement in the surgery, which Frankeny claimed was a material misrepresentation of the characteristics or quality of the medical services under the CPPA.

Prior to surgery, Frankeny signed two forms acknowledging that the “health care team” would include medical residents and also signed a form stating “I understand that along with my doctor and his/her assistants and designees, other Hospital personnel such as residents. . . will be involved in my procedure/operation/treatment and care.” In her CPPA suit, Frankeny argued that she did not understand these forms to mean someone other than Dr. Troost would perform the surgery. GWUH moved for summary judgment, which the Trial Court granted, finding that Frankeny did not present evidence of an “entrepreneurial motive” or that any intentional misrepresentation had a financial motivation. The Trial Court relied on two federal district court decisions from the U.S. District Court for the District of Columbia for the “entrepreneurial motive” rationale. Frankeny appealed the Trial Court’s grant of summary judgment.

Holding

The D.C. Court of Appeals reversed the entry of summary judgment and rejected the Trial Court’s application of the federal court’s “entrepreneurial motive” tests for CPPA claims regarding misrepresentations that goods or services have a certain characteristic or are of a certain standard of quality under D.C. Code § 28-3904(a) and (d). In explaining its ruling, the Court relied on its prior holding in Fort Lincoln Civic Ass’n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055 (D.C. 2008), where it held that CPPA Plaintiffs need not prove a merchant “knowingly” or “intentionally” misrepresented or failed to state material facts under sections (e) or (f) of the CPPA statute because the statute did not include such a requirement. Applying the same reasoning, the Court of Appeals held that intent and knowledge are not required to prove violations under sections (a) and (d) of the CPPA statute regarding character or quality of goods or services because the statute does not explicitly state this requirement. The case was remanded for trial on Plaintiff’s claims.

Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.