eNotes: Liability – November 2022 – Federal

SIGNIFICANT CASE SUMMARIES

Federal Case Summaries

Testa v. Broomall Operating Co., L.P.
United States District Court for the Eastern District of Pennsylvania
No. 21-5148-KSM, 2022 U.S. Dist. LEXIS 147856

Decided: August 18, 2022

Claim for COVID-19 death of nursing home patient survives Motion to Dismiss.

Background

Plaintiff Testa brought this negligence suit after her mother died of COVID-19 at Broomhall Rehabilitation and Nursing Center in April 2020. Defendant Broomhall had previously been cited and fined in 2019 for 18 deficiencies related to inadequate infectious disease protocol. Plaintiff alleges that Broomhall failed to adequately prepare for a pandemic and was negligent in caring for their elderly patients in the early days of the pandemic, thus proximately causing her mother’s death. Plaintiff’s mother, a resident of the Defendant facility since February 2019, was living without a roommate in the nursing dementia unit until April 2020, when she was moved in with a roommate in another unit as her wing was cleared for a COVID unit.

Plaintiff’s mother recorded an elevated temperature on April 12, and on April 15 her roommate tested positive for COVID-19. That same day the mother had a fall and staff suspected she had COVID-19 as well. She was diagnosed COVID-positive on April 17. The mother was still allowed to leave her room and continue interacting with other residents until April 19. Plaintiff noted her mom’s condition worsened on April 20, and on April 22 her mother passed. In June 2020, Defendant was cited by the DOH for numerous infractions of federal requirements for infection control, and identified as having failed to ensure personal protective equipment were used appropriately. Plaintiff brought suit in Delaware County for Defendant’s alleged failures to prepare and maintain adequate policies, procedures, social distancing, and staffing. Defendant removed to federal court then moved to dismiss for failure to state a claim.

Holding

The District Court denied Defendant’s Motion to Dismiss. The Court held that the PREP Act only provides immunity for the use of covered countermeasures, it does not immunize a covered defendant for claims of failure to take countermeasures. Additionally, the PREP Act did not preempt Plaintiff’s state law claims because she did not raise claims for willful misconduct, but negligence, gross negligence, recklessness, and recklessly indifferent actions. Lastly, in an issue of first impression, Governor Wolf’s March 6, 2020, Proclamation of Disaster Emergency made pursuant to the Pennsylvania Emergency Management Services Code does not shield Defendant from civil liability, as the Order only protects individuals and not entities or facilities. Defendant’s Motion was denied and the claims are allowed to proceed.

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

Defrehn v. TJX Co.
United States District Court for the Eastern District of Pennsylvania
No. 20-5762

Decided: July 26, 2022

Adverse inference from spoliation of evidence precludes summary judgment.

Background

Plaintiff sustained injury when she slipped and fell on a clear, gel-like, substance in Defendant’s store. Plaintiff testified that she’d seen footprints through the substance and a mop, bucket and caution sign at the end of the aisle before she fell. Defendant’s employee testified that the mop, bucket and caution sign were retrieved after she fell. Contrary to Defendant’s “Health and Safety guidelines,” no photos of the scene were taken. Defendant’s representative initially denied the existence of surveillance footage, but later testified that he reviewed the footage and deleted it because he thought it irrelevant. He testified that such footage would have captured when an employee removed cleaning supplies from the janitor’s closet. Defendant moved for summary judgment arguing that Plaintiff failed to produce evidence of actual or constructive notice of the hazardous condition.

In denying the Motion for Summary Judgment, the Court noted that because Defendant’s testimony suggested that the discarded surveillance footage would have at least shown when the cleaning supplies were retrieved, it was relevant to whether and when Defendant had notice of the condition. Plaintiff was entitled to an adverse inference at this stage of the proceeding, because Defendant did not preserve the footage. In light of the adverse inference in Plaintiff’s favor, summary judgment was denied. Further, from Plaintiff’s testimony that she saw the cleaning supplies and footprints in the aisle before she fell, a reasonable juror could infer that the condition existed and Defendant had notice of it. The Court further reasoned that because Defendant’s testimony that the cleaning supplies were retrieved after the incident is contradictory, there is a genuine issue of material fact to be decided by a jury.

Holding

The Trial Court denied summary judgment, ruling that Defendant’s spoliation of relevant evidence afforded the Plaintiff an adverse inference which precluded summary judgment.

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