eNotes: Liability – July 2023 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Brown v. City of Oil City
Pennsylvania Supreme Court
No. 6 WAP 2022

Decided: May 16, 2023

Out-of-possession contractor may be liable under Section 385 of Restatement (Second) of Torts for patent defects that cause injury to third persons.

Background

Contractor performed concrete work on stairs to hundred year old public library. Within a year of completion of the work, the stairs began to degrade and the library notified the contractor that it considered the stairs to be dangerous and defective as a result of the contractor’s work. Over the next several years, no repairs were made or warnings given to the public. The stairs continued to worsen. Four years after the completion of the work, a library user tripped on a deteriorated section of the stairs and fell striking her head. She suffered a TBI and died from her injury. Decedent’s Estate brought suit against the library and the contractor for wrongful death. Contractor obtained summary judgment from the Trial Court on the basis that it was out-of-possession and owed no duty to the third party where the defect was obvious in nature. Summary judgment was reversed on appeal and the Pennsylvania Supreme Court affirmed.

In reaching this decision, the Pennsylvania Supreme Court resolved a conflict as to whether liability to third persons under Section 385 only applies to latent defects. In rejecting this limitation, the Supreme Court found that the language in comment c only limits a contractor’s liability for latent defects to the possessor, but is irrelevant to a contractor’s liability to others. The Supreme Court found that Section 385 imposes potential liability on contractors to third persons for all defective conditions of structures on land which they are responsible for creating through their work. The Court found that a contrary conclusion would undermine a contractor’s social duty to take care in his actions, and enforces accountability for a person’s lack of elementary forethought. The Court noted that its decision does not alter a possessor of land’s liability to third parties and does not preclude the prospect of joint liability with a contractor.

Holding

A contractor who has created a dangerous condition through work performed for a possessor of land may be liable under Section 385 to all persons suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature. Liability may attach even though at the time of the injury the contractor was no longer in possession of the land, and the possessor was aware of the dangerous condition.

Questions about this case can be directed to Richard DeFrancesco at (908) 574-0516 or rdefrancesco@tthlaw.com.

Ramirez v. Lancaster Early Educ. Ctr.
Pennsylvania Superior Court
No. 568 MDA 2022

Decided: June 8, 2023

Trial Court did not err in applying the hills and ridges doctrine to an accident occurring during an ongoing storm.

Background

Plaintiff entered into a fee agreement contract with Defendant for provision of child care services which permitted either party to terminate the contract at any time with or without cause. Within days of the start of the care, Defendant notified parents of an early closure due to forecasted freezing rain. When Plaintiff arrived to pick up her child, it was not raining and she entered Defendant’s facility by stairway without incident. Upon leaving the facility, it was then raining, and Plaintiff slipped on the steps she claimed had black ice and sustained injury. Within days of the incident, Plaintiff’s counsel notified Defendant of a claim and requested preservation of any video recordings/surveillance video of the event. Shortly thereafter, Plaintiff’s child was terminated from enrollment. Plaintiff filed claims for negligence relating to the maintenance of the steps and retaliation for terminating her child from the program. The Trial Court granted summary judgment in favor of Defendant on both claims.

On appeal, Plaintiff argued that the trial court misapplied the hills and ridges doctrine on her negligence claim because there were two separate weather events. The Superior Court observed that there were generally slippery conditions throughout the community and held that because there was ongoing freezing rain at the time of her fall, the Trial Court did not err in applying the hills and ridges doctrine because Defendant had no duty to remove or treat the ice/snow until a reasonable time after the storm ceased. On Plaintiff’s retaliation claim, the Court first agreed with the Trial Court that there is no cause of action for retaliation for dismissal of a child from a daycare under a contract for daycare services. The Court held that it was not a contract of adhesion because both parties had the option of terminating the contract for any reason, although Plaintiff was required to provide notice before doing so. Further, Plaintiff was under no compulsion to enter into the contract with the Defendant in the first place.

Holding

The Court affirmed the judgment in favor of Defendant. The Trial Court properly applied the hills and ridges doctrine to find no liability on the landowner where the incident occurred during an ongoing storm. Further, because Plaintiff’s contract with Defendant was not a contract of adhesion, and both parties had the option to terminate the contract without cause, Plaintiff could not create a public policy cause of action for retaliation for dismissal from a daycare.

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

Smith v. Beckman Coulter, Inc.
Pennsylvania Superior Court
No. 2313 EDA 2021

Decided: June 6, 2023

The Trial Court properly granted a Motion to transfer the action from Philadelphia County to Cumberland County based on forum non conveniens, where venue was over 100 miles aware from the site of the alleged exposure and location of relevant witnesses and evidence.

Background

Plaintiffs filed a Complaint in the Philadelphia County Court of Common Pleas alleging that Plaintiff Smith developed mesothelioma due to asbestos exposure while attending Dickinson College in Cumberland County, Pennsylvania, from 1980 to 1984. Defendant Dickinson College filed a Petition to transfer venue to Cumberland County due to forum non conveniens, arguing that Plaintiffs chose Philadelphia County to inconvenience the defendants, and obtain a larger verdict, noting that the evidence related to Plaintiff Smith’s claim was located solely in Cumberland County. After briefing, the Trial Court granted Dickinson College’s Motion and transferred the action to Cumberland County.

Plaintiffs appealed the Trial Court’s Order, arguing that the Trial Court abused its discretion by transferring the action as Dickinson College failed to adduce any facts of record demonstrating that Philadelphia County was vexatious or oppressive, and failed to consider Plaintiffs’ argument that Philadelphia was a more convenient location for their witnesses, who resided abroad and would be traveling through the Philadelphia international airport. Plaintiffs’ lastly argued that the Trial Court improperly considered untimely Affidavits in reaching its decision.

Holding

The Superior Court, in reviewing the Trial Court’s decision for abuse of discretion, reiterated the applicable law regarding motions to transfer venue. In the Trial Court’s Opinion, it explained that Dickinson College is over 100 miles away from Philadelphia; Dickinson College is the site of the alleged asbestos exposure, and the evidence related to Plaintiff Smith’s claims is located at Dickinson College, thereby rendering the venue oppressive rather than merely inconvenient. The Trial Court noted that the Affidavits, which Plaintiffs insisted were improperly considered, were not required to establish the oppressiveness of Philadelphia given that the relevant witnesses and documents were in Cumberland County, which was also the location of the alleged exposure. The Superior Court agreed, finding the Trial Court’s decision to transfer venue was proper and not an abuse of its discretion.

Questions about this case can be directed to Laura Daube at (717) 441-3955 or ldaube@tthlaw.com.

King v. Driscoll
Pennsylvania Superior Court
2023 Pa. Super. 95

Decided: June 5, 2023

An attorney must have express authority to bind a client to a settlement agreement. Absent that authority, the settlement agreement is not enforceable.

Background

Christopher Driscoll and John King were each 50 percent owners of two LLCs that operated a restaurant near Pittsburgh. Their relationship deteriorated and Mr. Driscoll asked Mr. King if he would purchase Mr. Driscoll’s stake in the LLCs. Both parties obtained counsel for the purpose of completing the sale. The attorneys exchanged redlined versions of an agreement of sale. Eventually, counsel for Mr. Driscoll stated that Driscoll had accepted most of the redline changes and that a copy of the agreement was sent to Driscoll for review. Mr. King’s counsel stated that all redline changes were accepted by his client and requested that Mr. Driscoll sign a clean copy of the agreement and return it to him. Mr. Driscoll did not return the signed agreement, with his counsel eventually stating that no settlement agreement had been reached and that Mr. Driscoll needed additional documentation before he would sign the release.

Mr. King moved to enforce the settlement agreement. The Trial Court held an evidentiary hearing on the disputed settlement. Both Driscoll and his attorney insisted that the attorney never had express authority to enter into settlement. Both Mr. Driscoll and his counsel insisted that without the additional documentation, Mr. Driscoll would not agree to sign the agreement. Mr. King argued that the additional documentation (an RRF application) was not relevant to the settlement and was not mentioned anywhere in the agreement. The Trial Court agreed, finding that the material terms of settlement had been reached, and granted the Motion to enforce the settlement agreement. Mr. Driscoll appealed.

Holding

There is no requirement that a settlement agreement be reduced to writing in order to be enforceable in Pennsylvania. However, an attorney must have the express authority of his or her client in order to effectively settle a case or dispute. Here, the evidence was that Driscoll’s counsel sent the agreement to Driscoll “for review”. Both Driscoll and his counsel stated that counsel did not have express authority to agree to settlement, and that Driscoll needed the RRF before he would sign the agreement. The Superior Court held that where express authority for settlement was disputed, it is the burden of the party seeking to enforce the settlement to prove that express authority existed. The Superior Court cast doubt on whether such authority existed in this case, but remanded the matter back to the trial court to determine whether King had proven Driscoll’s counsel had express authority to bind his client to the agreement.

Questions about this case can be directed to William Novick at (610) 332-7029 or wnovick@tthlaw.com.

Bass Pro Outdoor World LLC v. Harrisburg Mall Ltd. P’ship
Pennsylvania Superior Court
No. 1085 MDA 2022, 2023 Pa. Super. Unpub. LEXIS 1291

Decided: May 24, 2023

Superior Court holds landlord had contractual duty to indemnify tenant.

Background

Bass Pro (Tenant) entered a lease agreement with the prior owner of the Harrisburg Mall. Harrisburg Mall Limited Partnership (Landlord) acquired the mall and assumed the rights and responsibilities of the agreement in 2012. Under the agreement, Landlord was responsible for the cost and expense of maintaining Common Areas in good and safe condition. Common Areas included the parking areas. The agreement specifically provided that, “Notwithstanding anything to the contrary contained herein, except for the negligent acts of Tenant, Landlord agrees to indemnify and hold Tenant harmless with respect to any and all claims, actions, injuries, damages, liability, costs and expense, including reasonable attorney’s fees, arising with respect to the possession, use, occupancy, management, repair, maintenance or control of [] Common Areas.” Landlord was relieved of this duty if the claim arises from negligent “acts” of Tenant.

Tenant faced a civil lawsuit in 2017 involving protruding rebar in the parking lot pavement. The Complaint alleged Tenant was, inter alia, negligent in failing to properly maintain the parking lot or failing to notify those who were responsible to repair the lot. The case was dismissed upon the entry of summary judgment for the Tenant, and at no point during that suit did Plaintiffs establish that Tenant had engaged in negligent “acts”. Tenant then began this lawsuit in 2018 asserting breach of contract seeking to enforce the indemnification provision above. Following discovery, both Tenant and Landlord moved the Trial Court for summary judgment based upon their interpretations of whether the contract required indemnification for the costs of defense of Tenant’s alleged acts of negligence. The Trial Court denied Tenant’s Motion and granted Landlord’s Motion. Tenant appealed.

Holding

The Superior Court reversed the Trial Court. The Superior Court identified that the plain language of the contract only relieves Landlord of their duty to indemnify when Tenant had actually engaged in negligent acts. The duty remains in place upon mere allegations of negligence. The Superior Court identified that covering allegations of negligence would require the Court to re-write the provision, and that they could not and would not do so. As there was never evidence proving Tenant engaged in negligent acts, the Court could not relieve Landlord of its duty. The Court reversed and remanded with instructions for a consistent judgment. Judge Olson wrote a Dissenting Opinion, arguing that a duty to defend is separate and distinct from a duty to indemnify, and because the lease agreement provided no such provision with regard to third party claims, the conditions of the requirement were not met and the award improper.

Questions about this case can be directed to Logan Nagle at (717) 255-7234 or lnagle@tthlaw.com.