eNotes: Liability – September 2020

Maas v. UPMC Presbyterian Shadyside
Pennsylvania Supreme Court
No. 7 WAP 2019
Decided: July 21, 2020

A psychiatric patient, who resided at a supported living facility, received mental health treatment from Defendant UPMC Presbyterian Shadyside.  Defendant eventually facilitated the patient’s move from the supported living facility to an apartment building, but continued to provided services.  The patient then began frequently expressing a desire to kill his neighbors and disclosed a plan to stab a “neighbor” with scissors and to “kill the next-door neighbor and everyone.”  The patient never identified the potential victims by name.

After expressing homicidal thoughts and receiving outpatient treatment, the patient was sent home by the facility’s case manager with medication.  Four days later, the patient murdered his neighbor five doors down with a pair of scissors.  The victim’s Estate then pursued a wrongful death and survival action against Defendant which moved for summary judgment arguing that the mental health professionals did not owe a duty to warn unidentified individuals.

The Supreme Court affirmed the Superior Court’s ruling which relied upon Emerich v. Phila. Ctr. For Human Dev., Inc., 720 A.2d 1032 (Pa. 1998). The Emerich Court held a medical provider’s duty is triggered when the patient communicates a “specific and immediate threat” against “a specifically identified or readily identifiable victim.”  In applying the reasoning in Emerich, the Supreme Court found that when a patient threatened to kill a neighbor, he wasn’t merely uttering an ambiguous threat against an “amorphous group” or the public at large.  Overall, the duty can be triggered not only when a specific threat is made against a single readily identifiable individual, but also when the potential targets are readily identifiable because they are members of a particular and identified group — in this case, “neighbors” in the patient’s apartment building.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

Temple v. Providence Care Ctr., LLC
Pennsylvania Supreme Court
No. 21 WAP 2019
Decided: July 20, 2020

An elderly Alzheimer’s patient fell in a nursing home, sustaining multiple fractures and a laceration.  In a negligence action, it was alleged that the facility was understaffed and failed to provide supervision and safety measures.  During the trial, three issues arose, two of which related to the admission of evidence and one of which concerned the plaintiff’s closing argument.  Although the issues were raised during the trial, the facility never requested a mistrial.  The jury found that the facility was negligent and reckless and it awarded $2,000,000 in compensatory damages.  In the second phase of the trial, it awarded $250,000 in punitive damages.

After the verdict, there was a flurry of post-trial motions from both sides.  The Trial Court granted judgment n.o.v. as to the punitive damages.  It also ordered a new trial as to the negligence and compensatory damage verdicts despite the fact that the facility had not preserved its right to request a mistrial.  On appeal, the Superior Court affirmed in part and reversed in part.  In an unpublished decision, it upheld the grant of a new trial.  It ruled that the Trial Court exercised its inherent power to grant a new trial sua sponte for an unpreserved error, explaining that whenever a trial judge believes that the trial was not fair, the judge is obliged to correct it.  The Supreme Court granted review to determine whether the Superior Court disregarded established law by affirming the grant of a new trial based upon errors that were not properly preserved at the time of trial.

The Supreme Court held that the Superior Court did commit error in affirming the new trial order.  In doing so, the Supreme Court reinforced the requirement that issues must normally be preserved by timely objections during the course of a trial in order to permit them to be considered as grounds for relief from an adverse verdict in post-trial motions or on appeal.  However, the Supreme Court went further, explaining that there are occasions that require a litigant to make a specific request for a remedy at the time when a prejudicial error took place during trial.  In this case, the facility failed to ask for a mistrial when the errors allegedly occurred.  Thus, it waived the right to seek a new trial via its post-trial motions.  That ruling did not end the inquiry, however, for the Superior Court ruled that the Court below had invoked its inherent power to grant a new trial in the interests of justice.  On that issue, the Supreme Court disagreed, holding that the Trial Court did not, in fact, use its salutary power.

While recognizing that trial courts do still have such authority, the Supreme Court cautioned that the “interests of justice” standard remains a very high threshold, the invocation of which should occur only in rare circumstances.  The Supreme Court declined to give specific guidance as to when a Trial Court can resort to its inherent powers.  Instead, the Supreme Court spoke in broad platitudes.  Under the Supreme Court’s rationale, the Trial Court can intervene and grant relief for an unpreserved error only when that error is “exceedingly clear,” and results in “manifest injustice” of a constitutional dimension or a “structural nature” (leaving the latter phrase undefined).  Moreover, the Supreme Court cautioned that trial courts should express clearly the intention to grant a new trial on this basis, rather than leaving the reviewing courts to speculate as to the foundation for the decision.

This case underscores the need for trial counsel to be diligent in identification of errors during the course of trial and in asserting specific grounds for relief.  Absent well articulated objections and specific claims for relief, litigants could be left to the vagaries of the highly subjective “interests of justice” standard.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

Pokdejko v. Dep’t of Transp.
Pennsylvania Commonwealth Court
No. 714 C.D. 2019
Decided: July 27, 2020

Plaintiffs own and operate a preschool located at the bottom of a deep embankment from State Route 6.  After a flood occurred on Route 6, the Fire Department was called to pump the water from the roadway.  Plaintiffs alleged that the Fire Department pumped water from Route 6 and shot the water into a shopping plaza parking lot and over the embankment onto the preschool’s property, causing substantial damage.  Thereafter, Plaintiffs filed an action against the Department of Transportation, the Township, and the Fire Department.  Plaintiffs maintained that the Fire Department’s actions fell within the Vehicle Liability Exception to governmental immunity found within the Tort Claims Act.  Specifically, Plaintiffs argued that the Fire Department failed to determine where the discharged water would outlet and failed to observe and detect the overflowing, thereby causing damage to their property.

The Fire Department filed a Motion for summary judgment, arguing that Plaintiffs’ theory of liability did not fall within any of the exceptions to governmental immunity.  The Trial Court granted the Motion, concluding that the vehicle exception within the Tort Claims Act did not apply, as pumping water does not require decisions relating to transporting individuals.  Plaintiffs appealed, arguing that the Trial Court erred by interpreting “in operation” as requiring transportation of individuals from one place to another, thereby adding a requirement that the General Assembly did not intend.

On appeal, the Court found that the Trial Court’s interpretation that the truck’s operation was limited to transporting an individual from one place to another was too narrow, and that the focus should be on the purpose for which the vehicle is operated.  The Court found that because the Fire Department controlled the parts of the pumper truck that moved the water from Route 6 to the pumper truck, the Fire Department operated the vehicle.  The Court reversed the Order granting summary judgment, concluding that the vehicle liability exception to governmental immunity would apply if Plaintiffs prove that the Fire Department’s negligence proximately caused their damages.

Questions about this case can be directed to Jillian Denicola, at (570) 825-5653 or jdenicola@tthlaw.com.

A.A. v. Glicken
Pennsylvania Superior Court
No. 1104 MDA 2019
Decided: August 14, 2020

In a medical malpractice matter involving claims of negligent performance of a newborn circumcision, the parties reached a settlement agreement which   included a confidentiality provision precluding Plaintiffs from disclosing any information regarding the litigation or settlement.  Defendants moved to seal the Petition at a hearing on the Petition to Compromise the minor’s settlement, arguing that sealing the record served two general interests – reduction of the chilling effect on future settlements and preservation of the parties privacy interests.  Defendants offered no evidence at the hearing in support of the Motion. The Trial Court denied Defendants’ Motion to seal the record ruling that good cause to do so was not shown.

On appeal to the Superior Court, Defendants argued that the Trial Court abused its discretion in denying an uncontested Motion to seal the record, because it was contrary to the agreement of the parties. The Court ruled that Defendants failed meet their burden, because no evidence was offered to substantiate the claim that failure to seal would chill settlement of future medical malpractice actions and the chilling effect, alone, was an insufficient basis to overcome the compelling public interest in open records.  Further, Defendants also failed to show that public disclosure would result in serious embarrassment.

In affirming the judgment of the Trial Court, the Superior Court held that the Trial Court did not err because no evidence established good cause to overcome the presumption favoring public access.

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

Krolikowski v. Ethicon Womens’ Health
Pennsylvania Superior Court
No. 2025 EDA 2019
Decided: August 11, 2020

Krolikowski brought a products liability and negligence action against various medical device companies related to a pelvic mesh implant.  She claimed that in the years following the mesh implant she began to experience complications, including fibroids and a worsening of her incontinence, which she asserted were caused by the mesh implant.  Both sides designated expert witnesses to testify at trial as to causation between the mesh implant and her injuries.  At trial, the jury was played a portion of the testimony of Dr. Arya, Krolikowski’s treating urogynecologist, who opined that the claimed increase in urinary incontinence was due to a “failure” of the mesh implant, and not as a result of any “complication.”  Dr. Arya specifically testified that a “failure was not a complication” of the mesh device.  Dr. Arya was never designated as an expert witness before the trial, nor was she qualified as an expert before her deposition.  Krolikowski’s counsel objected to her testimony as going beyond the permissible testimony of a treating physician to testify as to the specific care and treatment.  The Court overruled the objection and the case proceeded to the jury, which found that although the device manufacturers negligently marketed and sold the device, Krolikowski failed to prove it was the cause of her injuries.  Krolikowski appealed the jury’s decision, asserting that the Trial Court abused its discretion in allowing Dr. Arya to testify when: (1) she was never designated as an expert; (2) she was not qualified as an expert during the trial; and (3) she had no recollection of Krolikowski as a patient and expressed a causation opinion for the first time as part of the video deposition played to the jury.

The Superior Court determined that the Trial Court did not abuse its discretion in allowing Dr. Arya to testify as her testimony was permissible lay opinion testimony under Rule 701.  Although it disagreed with the Trial Court that Dr. Arya’s testimony as to the “failure” of the mesh implant did not require expert knowledge, it agreed that such an opinion was permissible under rule 701 as lay opinion evidence of a treating physician.  The Superior Court pointed to long standing case law that permits a treating physician to testify as to causation of the injury so long as the treating physician formed her opinion “during the course of [her] treatment relationship” and was not “acquired or developed in anticipation of litigation.”  As Dr. Arya’s opinion that the injuries were due to a mesh “failure” was formed during her treatment of Krolikowski, her testimony was proper.  The Court rejected Krolikowski’s claim of “surprise” by pointing to the fact that Krolikowski’s counsel was in possession of Dr. Arya’s treatment notes.  The Court further rejected the fact that Dr. Arya was not “qualified” as an expert witness as there was no such requirement under the case law.  The only requirement on such lay opinion testimony was that it be “formed during the course of treatment.”  The Court pointed to the contemporaneous treatment notes of Dr. Arya as meeting that requirement.

Questions about this case can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or rsember@tthlaw.com.

Franks v. State Farm Mut. Auto. Ins. Co.
Pennsylvania Superior Court
2020 Pa. Super. 181
Decided: July 31, 2020

On January 18, 2013, Robert Franks applied for automobile coverage with State Farm for two vehicles, a Nissan Xterra and a Ford Taurus.  At that time, Franks executed a form rejecting stacked underinsured motorist (“UIM”) coverage.  Thereafter, on January 22, 2014, Franks added a third vehicle, a Nissan Altima, to the policy.  Upon adding the third vehicle, Franks executed a second rejection of stacked limits of UIM coverage.

On July 23, 2014, Franks deleted the Ford Taurus from the policy, reducing the total number of vehicles insured under the policy from three to two.  At that time, no changes were made to the coverages for the Nissan Xterra or the Nissan Altima.  Another form rejecting stacked UIM coverage was not signed at that time and Franks was not charged a premium for stacked UIM coverage.  Franks would thereafter make an additional change to the policy on March 26, 2015, when he replaced the Nissan Xterra with a Nissan Frontier.  All told, from July 2014 onward, the policy continuously insured two vehicles and the declarations page of the policy provided non-stacked UIM coverage.

On August 11, 2016, Franks sustained injuries in a motor vehicle accident that was caused by the negligence of the other driver.  Franks asserted a claim for UIM benefits under the policy because the bodily injury liability coverage available to the tortfeaser was insufficient to fully compensate him for the injuries and damages sustained in the accident.  In response to his UIM claim, State Farm paid benefits in the amount of $100,000.  State Farm then filed a declaratory judgment action arguing that the $100,000 paid to Franks represents the limit of UIM coverage afforded by the policy.  Franks likewise sought declaratory relief, seeking an Order that State Farm was obligated to pay a total of $200,000 for UIM coverage.  The Trial Court agreed with State Farm and this appeal followed.

The Superior Court reversed the ruling of the Trial Court.  The Superior Court held that the entry of declaratory judgment in favor of State Farm was made in error because the insured’s removal of a vehicle from the existing policy required the insurance company to obtain a new stacking waiver under 75 Pa.C.S. § 1738(c) of the MVFRL.  The Superior Court further held that 75 Pa.C.S. § 1738(c) required a new stacking waiver whenever the stacked amount of UIM coverage changed, regardless of whether the change was an increase or decrease in the amount of stacked coverage.

Questions about this case can be directed to Christopher Gallagher, at (215) 564-2928 or cgallagher@tthlaw.com.

Monti v. Pet Supplies Plus, LLC
Pennsylvania Superior Court
No. 3210 EDA 2019, 2020 Pa. Super. Unpub. LEXIS 2274
Decided: July 21, 2020

Plaintiff, Lori Monti, tripped and fell outside of a Pet Supplies store when her walker wheel became stuck in a joint in the sidewalk.  Defendants Pet Supplies and Pocono Retail moved for summary judgment.  Pet Supplies’ motion was based on Pocono Retail’s duty to inspect and maintain the sidewalk where Plaintiff fell.  Pocono Retail’s motion was based on the fact that the defect in the sidewalk was trivial and, therefore, there was no duty to repair the defect.  Both Motions for summary judgment were granted.

The primary evidence relied upon in Pocono Retail’s argument was an affidavit supplied by Pocono Retail’s expert.  On appeal, Plaintiff argued that reliance on this affidavit violated the Nanty-Glo rule, which prohibits summary judgment where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact.  However, an exception to the Nanty-Glo rule allows the moving party to support the motion with admissions of the opposing party or that party’s own witness.  Herein, while Pocono Retail relied heavily on its expert’s affidavit, it also relied upon Plaintiff’s own statements and admissions.  As an example, the Court noted that, during her deposition, Plaintiff informed that she could not see the defect after the fall and would not have known where it was had someone not pointed it out to her.  Accordingly, the Court held that Plaintiff’s adverse statements precluded the application of the Nanty-Glo rule and the entry of summary Judgment was affirmed.

Summary judgment was proper, despite the Motion relying heavily upon the affidavit of moving party’s expert, as the Motion also relied upon Plaintiff’s adverse statements and, therefore, fell within the exception to the Nanty-Glo rule.

Questions about this case can be directed to Jonathan Danko, at (717) 441-3957 or jdanko@tthlaw.com.
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7222 Ambassador Rd., LLC v. Nat’l Ctr. on Insts. and Alts., Inc.
Maryland Court of Appeals
No. 66, September Term, 2019
Decided: July 27, 2020

7222 Ambassador Road filed suit against the National Center for Institutions and Alternatives, Inc. (NCIA).  The NCIA won in the Circuit Court for Baltimore County and Court of Special Appeals.  Before 7222 Ambassador Road filed certiorari in the Court of Appeals, it became delinquent in maintaining its status as a limited liability company (LLC) in Maryland with the State Department of Assessment and Taxation. As a result, 7222 Ambassador Road forfeited its right to do business in Maryland and failed to reverse the forfeiture.

The NCIA filed a Motion to dismiss in the Court of Appeals based on this forfeiture.  At that point, the 7222 Ambassador Road sought to rectify the forfeiture.  In addition, it argued the Corporations & Associations Article, § 4A-920, acted as a saving provision to permit it to participate in this appeal.  The Court of Appeals heard oral argument on the Motion to dismiss and the merits of the appeal.

CA § 4A-920 permits a forfeited LLC to “defend any action, suit, or proceeding in a court of this State.”  The Court of Appeals noted that 7222 Ambassador Road is not defending  an action in this case.  Rather, they are the entity initiating the litigation. The purpose of the savings provision is to protect the entities with whom an LLC does business.  In this action, 7222 Ambassador Road lacked any authority to file a Petition for writ of certiorari.  The savings provision did not preserve its right.  Therefore, 7222 Ambassador Road appeal was dismissed.

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

Berry v. Queen
Maryland Court of Appeals
Misc. No. 10 and No. 63, September Term, 2019
Decided: July 27, 2020

This opinion encompassed two matters before the Court.  The first was a certified question from the United States District Court for the District of Maryland.  The second was an appeal from the Circuit Court of Baltimore City.  In both cases, motor vehicle owners sought to receive rental car coverage while their vehicles were being repaired after uninsured motorists caused damage to their vehicles.  In both instances the insurer denied coverage for the rental cars.
The Court of Appeals considered whether “damage to property” in the uninsured motorist statute, requires an insurer to reimburse loss of use damage to the insured.  The insurer argued the words “loss of use” and “rental car coverage” had to appear in the statute to provide for coverage.  The insureds argued the liberal construction of the uninsured motorist statue should encourage inclusion of all injuries from uninsured motorists.  Most recently, H.B. 144 modified Maryland Code, Insurance § 19-509 to explicitly provide for loss of use coverage.  This statute takes effect on October 1, 2020.

The Court of Appeals held that “damage to property” includes loss of use damages.  The uninsured motorist statute is designed to restore injured insureds to the same position before injury from an uninsured motorist.  Uninsured motorist coverage must reimburse “the value of the use of the property during the time it would take to repair it.”  The new bill clarified the statute to expressly state loss of use damage is covered.  Therefore, the insured’s policies should be interpreted to provide for loss of use damages.

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

Steamfitters Local Union No. 602 v. Erie Ins. Exch.
Maryland Court of Appeals
No. 40, September Term, 2019
Decided: July 27, 2020

A fire occurred on a property owned by Steamfitters Local Union No. 602.  The fire caused damage to the properties of Steamfitter’s neighbors.  Between Steamfitters and their neighbors was a mulched strip in which patrons of Steamfitters discarded cigarette butts.  The mulched strip contained hundreds of cigarette butts.  An investigation after the fire, revealed the fire began in this mulched strip because of cigarette butts.

Steamfitters argued that it had no common law duty to neighboring properties in a Motion for summary judgment.  The Trial Court denied Steamfitter’s motion and a jury trial proceeded on negligence.  The jury found Steamfitters liable.  In the Court of Appeals, the Court considered, among other issues: (1) whether a property owner owes a duty to use reasonable care with respect to its neighbors property; and (2) whether expert testimony was required to establish this duty.

For at least the past 80 years, Maryland has recognized that the owner of property has a common law duty to use reasonable care to not cause harm to neighboring property.  The duty arises when there is a hazardous condition and the property owner is on notice of the hazardous condition.  In this case, Steamfitters owed its neighbors a common law duty to not cause an unreasonable risk of fire.  There was evidence that a jury could find that Steamfitters had knowledge of the cigarettes in the mulch, and the fire was a foreseeable consequence of the accumulation of the cigarette butts in the mulch.  Finally, the issues in this matter fell within the common knowledge of jurors and did not require expert witness testimony.

Questions about this case can be directed to Lauren Mistretta Upton, at (443) 641-0572 or lupton@tthlaw.com.
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Park v. Brahmbhatt
District of Columbia Court of Appeals
No. 18-CV-152
Decided: August 13, 2020

Shinok Park, a former World Bank employee, reported her former boss, Milan Brahmbhatt, to the World Bank Office of Ethics and Business Conduct (“EBC”) for alleged sexual assault and harassment.  Based on Ms. Park’s complaint, the EBC opened an investigation and Mr. Brahmbhatt retained Peter Hansen to represent him during the investigation.  Mr. Hansen submitted two memoranda to the EBC claiming that Mr. Brahmbhatt’s sexual relationship with Ms. Park was consensual and accusing Ms. Park of blackmail and extortion.  Ms. Park learned of the memoranda, which were confidential under the EBC’s procedures, through discovery in a separate civil action against Mr. Brahmbhatt.  After its investigation, the EBC recommended that the World Bank sanction Mr. Brahmbhatt for violating World Bank rules regarding conflicts of interest, but recommended not to sanction him for sexual assault or harassment.

The World Bank sanctioned Mr. Brahmbhatt, who appealed the sanction to the World Bank Administrative Tribunal (“WBAT”), which upheld the decision.  Ms. Park was later terminated from her job with the World Bank and subsequently sued Mr. Brahmbhatt and Mr. Hansen for defamation in the D.C. Superior Court, alleging that Brahmbhatt and Hansen had defamed her by submitting the memoranda to the EBC, which resulted in her termination.  The Superior Court granted summary judgment in favor of Brahmbhatt and Hansen and found that they were entitled to absolute immunity in the defamation suit based on the judicial-proceedings privilege. Ms. Park appealed the decision to the D.C. Court of Appeals and argued that the judicial proceedings privilege did not apply because the EBC investigation and WBAT proceedings were not judicial or quasi-judicial proceedings subject to the privilege.

The D.C. Court of Appeals affirmed the Trial Court’s entry of summary judgment, finding that the judicial proceedings privilege applied to the memoranda.  The Court of Appeals first held that the WBAT is a quasi-judicial body subject to the judicial proceedings privilege, but this did not resolve the appeal, as Mr. Hansen submitted the memoranda to the EBC, an investigative body, and not directly to the WBAT.  The Court of Appeals held that the privilege nonetheless applied because Mr. Hansen submitted the memoranda as preliminary submissions to the WBAT, which does not hear oral arguments or hold evidentiary hearings.  There was a reasonable nexus between the publication and the WBAT proceedings because Mr. Hansen submitted the memoranda in his capacity as Mr. Brahmbhatt’s attorney and because the memoranda were submitted with the intention to establish a record for the WBAT proceedings.  Thus, the judicial proceedings privilege applied.

Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.
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Erie Ins. Exch.  v. Alba
Supreme Court of Virginia
842 S.E.2d 195
Decided: May 28, 2020

A fire caused damage to a property managed by a condominium association (“Association”). The fire began in a condominium unit owned by one individual, but leased to another under a residential lease agreement.  The lease contained a Declaration from the Association, stating that each unit owner is permitted to obtain insurance, affording coverage upon his own property and for his own liability.  Further, the Association’s Declaration stated that the insurer waives its rights of subrogation to any claims against Unit owners and the Association.  The Association purchased its insurance for the property from Erie Insurance Exchange (“Erie”).  The policy stated that Erie waived any right of recovery they may have against the additional insured.  Additionally, the policy stated that Erie waived their right to recover from any unit-owner of the condominium described in the “Declarations.”

As a result of the fire, Erie paid $822,432.64 to the Association.  Erie, standing in the shoes of the Association, then brought suit against the lessee to recover the payments it made, alleging that the lessee’s negligence caused the fire.  The lessee subsequently filed a third-party complaint against the unit owner for indemnification in the event that Erie prevailed on its claim.  At trial, the Circuit Court granted the lessee’s Motion for declaratory judgment, stating that the same benefits conferred by the instruments upon the unit owner were conferred upon the lessee.  Thus, Erie could not pursue subrogation against the lessee.  Erie appealed.

Holding

The Supreme Court held the insurance policy expressly provided that the Association and the individual unit owners were the named and additional insureds covered under the insurance that the Association agreed to purchase and that Erie agreed to provide.  After identifying the individual unit owners as additional insureds, Erie waived its rights to recover from them.  The Court stated that neither waiver made any mention of tenants or other non-owner occupants.  Thus, the Association did not intend to assume liability or absolve liability for the negligent acts of a unit owner’s tenants that caused the Association to suffer a loss.  As a result, the Court reversed the Circuit Court’s judgment and remanded the case for further proceedings.

Questions about this case can be directed to Lacey Conn, at (571) 464-0433 or lconn@tthlaw.com.