Pennsylvania Law

On August 1, 2022, the United States Department of Justice announced a settlement with Southeastern Pennsylvania Transportation Authority (SEPTA), a regional public transit company based in Philadelphia, Pennsylvania that will require SEPTA to overhaul its anti-racism policies and pay for damages caused as a result of employment inequities.

In an action captioned United States of America v. Southeastern Pennsylvania Transportation Authority, No. 2:22-CV-03004-KSM, the United States filed a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that several SEPTA employees were subject to a hostile work environment and the basis of race and religion. The complaint is based on charges of discrimination filed with the Equal Employment Opportunity Commission’s (EEOC)’s Philadelphia District Office on October 21, 2019, which were investigated. The investigated discrimination was directed at three (3) officers from the SEPTA Police Department. After investigation, the EEOC found reasonable cause that SEPTA violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, national origin, sex and religion, and prohibits retaliation against employees for opposing employment practices that are discriminatory under Title VII.

The EEOC was not able to resolve the matter between the parties, so the EEOC referred the charges to the Justice Department. The United States thereafter filed a complaint regarding these charges against SEPTA in the Eastern District of Pennsylvania. Specifically, the officers alleged that they were subjected to hostile work environment by their supervisor and subsequently experienced retaliation when they opposed this harassment. The hostile work environment claims originated from the officers’ supervisor repeatedly harassing them with racial slurs and derogatory comments about Black people and Muslims, threatening the officers and physically assaulting them.  The complaint further alleges that the Police Chief retaliated against the officers for opposing the harassment. The Police Chief and the Officers’ supervisor are no longer employed by SEPTA.

While SEPTA has denied any discriminatory conduct in violation of the Civil Rights Act, it has entered into a consent decree with the United States in an attempt to avoid further costs and litigation. The decree, initially filed August 1, 2022 and thereafter amended on August 25, 2022, required SEPTA to cease any discriminatory conduct immediately, namely, cease all conduct that has been alleged to have created a hostile work environment on the basis of race and religion. SEPTA also agreed to cease any actions that would otherwise violate the Civil Rights of any of its employees. In addition, SEPTA is charged with drafting and implementing, subject to United States approval, new anti-discrimination and anti-retaliation procedures for reporting any conduct in violation of those new procedures. These polices would be specific to Transit Police and would clearly lay out a prohibition on race and religion based discrimination, a prohibition against retaliation for reporting discriminatory conduct, appropriate descriptions of prohibited conduct, identification of employees to whom complaints can be submitted, a description of the investigation process into alleged discrimination and implementation of these procedures among several other requirements. Transit Police would be required to attend additional and specific trainings to avoid discriminatory conduct.

In addition to the need to overhaul its policies as a result of this legal action, SEPTA will also pay the complaining officers a total of $496,000 in compensatory damages. The Department of Justice explained that the decree would seek “the full and fair enforcement of Title VII” and this goal “is a top priority of the Justice Department’s Employment Litigation Section of the Civil Rights Division.”

In Moravia Motorcycle, Inc. v. Allstate Ins. Co., 2022 U.S. Dist. LEXIS 83043 (W.D. Pa. May 9, 2022), the United States District Court of the Western District of Pennsylvania dismissed an insured’s negligence claim against its insurer carrier but upheld a bad faith claim for the insurer’s sudden and unexplained denial of benefits for property damage to a motor home after previously accepting the claim causing the insurer further damage.

In April 2020, plaintiffs’ motor home was damaged after a storm caused a tree branch to fall on the motor home’s roof. The damaged roof allowed water to seep into the home. Plaintiffs notified their insurer, who sent an adjuster to evaluate the damage. The adjuster concluded that the damage was covered under plaintiffs’ policy. Allstate, the insurer, then sent a second adjuster without explanation to again inspect the damage. The second adjuster denied the claim. The motor home was not repaired resulting in additional damage including electrical issues, decay of the interior walls and mold growth. As a result of this denial, plaintiffs filed negligence and bad faith claims against Allstate.

Allstate moved pursuant to Rule 12(b)(6) to dismiss plaintiff’s negligence and bad faith claims for failing to state a claim for which relief can be granted. Plaintiffs’ negligence count argued that Allstate misrepresented the status of the policy, failed to fully advise them of the actual terms of coverage, failed to train its agents about the coverage, failed to inform its agents as to the proper manner by which policyholders should be advised about the scope and extent of insurance coverage and failed to inspect the motor home in a workmanlike manner.

Plaintiffs’ bad faith count was based upon Allstate’s alleged conduct in violation of 42 Pa. C.S. § 8371, which is Pennsylvania’s bad faith statute. To prevail on a bad faith claim under 42 Pa. C.S. § 8371, a plaintiff must demonstrate (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew or recklessly disregarded its lack of a reasonable basis in denying the claim. Nealy v. State Farm Mut. Auto. Ins. Co., 695 A.2d 790, 792 (Pa. Super. 1997).

The District Court granted Allstate’s motion as to the negligence claim but denied the motion as the bad faith claim. Allstate argued that the only relationship between the parties was the insurance contract and, therefore, the parties can only be held to their contractual obligations and not a broader tort standard. Plaintiffs relied on Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014) in which the Pennsylvania Supreme Court allowed a negligence claim to proceed against an insurance company when its adjuster and engineer found mold in the plaintiff’s basement but advised it was harmless. The plaintiff’s house ultimately became uninhabitable and the court allowed a negligence claim to proceed based on the assurances made by the insurer’s representative that were outside the scope of the contract.

The District Court distinguished Bruno from the present case as Allstate’s adjuster in the present matter did not make any representations regarding the damage. The adjuster merely denied the claim based on the terms of the policy. Plaintiffs did not allege that Allstate took any actions or made any representations outside of the contract to warrant a negligence claim.

The District Court denied Allstate’s bad faith claim despite Allstate’s arguments that plaintiffs failed to plead with specificity, name any of the adjusters personally or plead how the coverage decision was conveyed. The District Court held that plaintiffs sufficiently pled a legally cognizable claim for bad faith under 42 Pa. C.S. § 8371 since plaintiffs alleged that the first adjuster approved the claim but a second adjuster inexplicably denied the claim without explanation causing plaintiffs further damage.

While plaintiffs were ultimately not successful in pursuing a negligence action against Allstate, the District Court did state under which circumstances a negligence claim between parties of contract can proceed. Actions and words by an insurance company’s representatives can open up the insurance company to a negligence claim thereby exposing the company to different and greater damages than those contemplated by the insurance contract.

In October 2017, a Southeastern Pennsylvania Transportation Authority (SEPTA) bus struck Hayley Freilich as she was walking within the crosswalk at the intersection of Broad Street and Vine Street in Philadelphia, Pennsylvania. The collision would cause Freilich to suffer permanent bodily injuries necessitating extensive medical treatment.  Nearly five year after the collision and subsequent lawsuit filed against SEPTA, Freilich’s cause of action continues on as her originally stipulated damages of approximately $7 million dollars has been reduced to a mere $250,000 despite SEPTA’s admission of negligence.

The original dispute in Freilich v. Se. Pa. Transp. Auth. concerned whether or not SEPTA was negligent in causing Freilich’s injuries. In a stipulated verdict, the parties reached an agreement whereby SEPTA admitted that its driver was negligent in causing Plaintiff’s injuries and the parties stipulated to award Freilich $7,000,000.

However, following the award, SEPTA filed a post-trial motion to mold the verdict, citing the Sovereign Immunity Act (hereafter “the Act”). The Act provides for limitations on liability for “Commonwealth parties” when those parties have acted in a negligent manner. Notably, the Act provides that liability may be imposed on the Commonwealth and the defense of sovereign immunity is inapplicable to claims for damages caused by:

The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa. C.S.A. § 8522(b)(1)

The Act further provides that while liability may be imposed on the Commonwealth for the negligence of one of its motor vehicle operators, a plaintiff’s recovery against that Commonwealth party will be limited. 42 Pa. C.S.A. § 8528(b) specifically mandates that “damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $ 250,000 in favor of any plaintiff or $ 1,000,000 in the aggregate.” Id.

With this statutory precedent governing in Pennsylvania, in March of 2022, Judge Crumlish, the post-trial motion judge, granted SEPTA’s motion to mold the verdict and reduced Freilich’s damages to $250,000 in accordance with 42 Pa. C.S.A. § 8528(b). Despite agreeing that the reduction was a “profound economic inequality,” Judge Crumlish explained he had a “prescribed role” based on the Act and was without judicial discretion. He noted that unless and until the Pennsylvania Supreme Court accepted the case and reached a different conclusion, he was bound by precedent.

It has long been argued that Pennsylvania’s statutory damages cap for Commonwealth parties is too low and does not provide adequate redress for the negligence of Commonwealth actors. In fact, in Zauflik v. Pennsbury School District, the Pennsylvania Supreme Court invited the State legislature to review the Act and consider raising the statutory limits on damages. Again, in 2019, the Supreme Court extended this invitation following its decision in Grove v. Port Authority of Allegheny County. There, the Court recognized the difficulties presented by the $250,000 damages limit and its tendency to be inequitable and bordering on unconstitutional in some cases where damages should vastly exceed $250,000.

In an effort to increase the $250,000 limit, Freilich’s counsel sought certiorari in 2018 from the State Supreme Court, but the Court declined to grant the petition. Freilich’s counsel recently appealed to the State Supreme Court aiming to increase the current limit prescribed for all cases of this nature. Freilich’s counsel feels as though her case is the exact situation that the Pennsylvania Supreme Court in Grove feared and that her Constitutional rights have been violated leaving her without proper redress in the wake of steep medical bills and attorneys fees. For now, Freilich and all similarly situated plaintiffs can only wait patiently for the State legislature to accept the Pennsylvania Supreme Court’s invitation to act and raise the limit of statutory damages.

Carol Frie was walking from the parking lot toward the mall when she stepped onto the sidewalk from the parking lot surface. While she did not know what element of the sidewalk caused her fall, she stated that it was “unkempt.” In Frie v. Fairlane Village Mall, 2020 Pa. Super. Unpub. LEXIS 2848 (Sept. 9, 2020), the issue in the appellate court was whether Ms. Frie, who could not specifically identify the portion of the sidewalk that caused her fall, raised a genuine issue of material fact to defeat the Mall’s motion for summary judgment.

In October, 2014, Ms. Frie parked her car in the parking lot of the Fairlane Village Mall in Pottsville, Pennsylvania, and walked across the parking lot towards the Mall. She testified that she was looking straight ahead as she stepped onto the sidewalk and she fell due to, what her answers to interrogatories stated broadly stated was “unkempt property.” She reported the incident to an employee of the Mall’s manager who took photographs of the area at which Ms. Frie said she fell. Ms. Frie agreed the photos showed the area she fell. The employee said that she took photos of that specific area because that was where Ms. Frie pointed; the employee noticed a “little lip” in the sidewalk in the area where Ms. Frie pointed and she felt she needed to show how much of a lip existed by taking a close up photograph. She then stated that she wrote in an incident report that Ms. Frie had told her she “tripped over the uneven sidewalk and fell;” “uneven sidewalk” being the employee’s own words. The employee said Ms. Frie only pointed to the sidewalk in general and the employee, finding the “little lip,” assumed it was the cause of her fall. Ms. Frie agreed with this assertion.

On these facts, the trial court granted the Mall’s motion for summary judgment. The court relied on case law that states, though property owners have a duty to keep their sidewalks in a reasonably safe condition for travel for the public and business invitees, in order to establish liability, someone who falls on a sidewalk “must prove what actually caused the accident, not what might possibly have caused it.” The court found that because Ms. Frie could not identify the cause of her accident, she could not prove what actually caused her fall.

The appellate court reversed this decision. The appellate court found that the trial court failed to apply the proper standard on summary judgment, to construe the record in the light most favorable to the plaintiff, Ms. Frie. The appellate court saw that the employee’s claims that Ms. Frie showed her where she tripped, the photographs of the uneven sidewalk, the incident report that stated Ms. Frie tripped over an uneven sidewalk and, especially, Ms. Frie’s agreement with everything the employee had stated required a jury to determine whether the uneven sidewalk caused Ms. Frie’s fall or that Ms. Frie could not specifically identify the “little lip” as the cause of her fall. This is a broadly important determination because, despite case law specifically requiring a plaintiff to identify what caused their fall, a general claim can present a factual issue as to what portion of the sidewalk caused a fall in order to defeat a summary judgment motion.

Two recent trial court decisions highlight Pennsylvania’s premises liability law regarding trivial defects. Kreitzer v. Madison Acquisitions, LLC, PICS Case No. 20-0425 (C.P. Lawrence April 9, 2020) and Jenkins v. Krenitsky’s Supermarket Corp., PICS Case No. 20-0424 (C.P. Lackawanna April 15, 2020) both involved defendant-property owners who moved for summary judgment arguing lack of notice and that any alleged defect was trivial thereby negating liability. In Kreitzer, the plaintiff fell due to an uneven sidewalk. The alleged defect was a one and a half inch change in elevation in the sidewalk. In Jenkins, the plaintiff fell in a pothole near the entrance of a supermarket. The plaintiff described the pothole as approximately two feet long and deep enough that both of her feet could be in the hole.

Both motions were similar in that both defendants argued there was no actual or constructive notice of any alleged defect. Additionally, both argued that any alleged defect was so trivial as to not warrant liability. In Kreitzer, the plaintiff argued that there was construction underway around the area of the fall that should have placed the defendant on notice of the change in elevation of the sidewalk. In Jenkins, the plaintiff argued that potholes do not form overnight and that it was right by the entrance so its existence should have been known through reasonable care. Interestingly, the defendant in Jenkins admitted that they had no policy to inspect the parking lot for defects and no regular inspections were conducted. In both cases, the defendants’ motions were denied as the courts found factual issues in each case for a jury to decide liability.

In Pennsylvania, “a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing its existence.” Shaw v. Thomas Jefferson University Hospital, 80 A.3d 540, 542 (Pa. Cmwlth. 2013).  In Shaw, the plaintiff fell due to an uneven sidewalk in front of Thomas Jefferson University Hospital in Center City, Philadelphia. The change in elevation between sidewalk segments was allegedly between two and two and a half inches. The Commonwealth Court of Pennsylvania reversed the trial’s court granting of summary judgment to the hospital as it found the question whether the sidewalk defect was trivial was for a jury. Ultimately, there is no bright-line rule to determine what would constitute “trivial” to impose liability. “Each case presents a unique set of circumstances that must be evaluated on an independent basis.” Id. at 545.

In both Kreitzer and Jenkins, the trial courts held that neither circumstance could be decided at the summary judgment stage and must be submitted to a jury. Specifically, in Jenkins the court held that the defect was not obviously trivial due to its size since the plaintiff was able to place both feet in the pothole, but held that the ultimate question was still a matter for a jury.

The Pennsylvania courts have not created a hardline rule in determining what is considered trivial. There is no hardline rule regarding size, length, or depth of a defect that would absolve a property owner of liability. It may be impossible for the courts to establish any hardline rules regarding the size of a defect to be considered trivial for summary judgment purposes due to all circumstances of an incident that must be considered. Regardless, a property owner still should have proper policies and procedures in place for inspections of its property to show evidence that reasonable care was used.

In Wakil v. Birdie Properties, LLC, No. 2018-C-1674 (Lehigh County September 11, 2019), the Court of Common Pleas of Lehigh County recently granted a defendant’s motion for summary judgment in a case involving purported arson and subsequent fire damage.  Plaintiff alleged that his property was damaged by a fire that had originated in the back of a rowhome owned by the defendant.  The plaintiff then filed a lawsuit seeking damages for the happening of the fire and resulting damage.

Prior to the fire, the defendant’s tenants regularly kept trash and debris in the backyard.  In May 2017, the defendant received a property maintenance violation from the city for the accumulation of trash and debris.  The fire was ultimately started by an unknown arsonist who set fire to two old mattresses in the defendant’s backyard.  Plaintiff denied any knowledge of anyone starting fires in the neighborhood and denied calling police about any strangers around their home.

The defendant moved for summary judgment arguing 1) the plaintiff failed to establish that the defendant was the proximate cause of the fire; 2) the defendant was not liable for intervening acts of the unknown arsonist; and 3) the plaintiff’s harm was not reasonably foreseeable.  The plaintiff argued that the defendant should have been aware that the condition of its property might avail a third-party the opportunity to commit a crime.  Additionally, the plaintiff argued that the defendant was negligent per se due to the violation it received in May 2017 regarding the excess trash and debris on the property.  The plaintiff argued that the facts created a jury question and the summary judgment should be denied.

The Court ultimately granted the defendant’s motion for summary judgment.  The Court held that the defendant’s actions were not the proximate cause of the fire and that the harm suffered by the plaintiff was not reasonably foreseeable.  Specifically, the Court found no evidence to conclude that the defendant’s property fell into such a state of disrepair as to create a risk of criminal activity.  The Court concluded that it was not reasonably foreseeable that an arsonist would start a fire simply because of a mattress in the defendant’s backyard.  Last, the Court found that the plaintiff’s negligence per se argument was not viable as the defendant received a violation for property maintenance, not a fire safety violation.

In this particular case, a court found that a defendant was not responsible for a fire that started on its property.  The defendant had a legitimate defense in this case as it did not start the fire, nor did the court find that the property was in such distress as to provoke criminal activity. However, this case does open the door in finding liability against a landowner under certain circumstances.  While the court did not find this particular property was in such bad shape, it does not create an automatic defense for any property owner.  A property in worse condition with more trash and debris could open the door for liability against the property owner due to criminal activity.  This holding does not absolve all property owners of criminal activity conducted on the property if the property is in such condition as to avail itself to criminal activity.

The Superior Court of Pennsylvania has upheld the protections of the “hills and ridges” doctrine as applied to a snow removal contractor.  In a recent opinion, dated August 28, 2019 in the case, James M. Hare, Jr. v. Mark Zaffino d/b/a Mark Zaffino Snow Removal, No. 1349 WDA 2018, the Superior Court of Pennsylvania upheld a trial court’s ruling granting summary judgment in favor of the snow removal contractor.

The relevant facts of the case are as follows.  On the morning of January 5, 2015, an employee of Defendant, Mark Zaffino Snow Removal (“Zaffino”) performed snow removal services between 4:25am and 5:30am at the Cobham Park Tank Farm (“Tank Farm”) in Warren, Pennsylvania, after a substantial accumulation of snow and ice that occurred overnight.  Zaffino had entered into a contract with Tank Farm stating that Zaffino would complete all necessary snow removal services before 7:00am after an accumulation of three inches of snow.

Plaintiff, an employee of Tank Farm, arrived at the property at approximately 5:30am.  It was still snowing at the time and there was already approximately 5 ½ to 6 inches of snow on the ground.  Plaintiff fell on an unplowed area of the roadway and fractured his left leg.  Plaintiff then filed a lawsuit against Zaffino, who moved for summary judgment based on the protections of the “hills and ridges” doctrine.  The trial court granted Zaffino’s motion for summary judgment and Plaintiff’s appeal followed.

As long as an owner or occupier of land has not permitted snow and ice from accumulating unreasonably into ridges or elevations creating generally slippery conditions, the owner or occupier is protected from liability under the “hills and ridges” doctrine.  A plaintiff is required to prove the following to overcome the “hills and ridges” doctrine: 1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; 2) that the property owner had notice, either actual or constructive, of the existence of such condition; 3) that it was the dangerous condition, accumulation of snow and ice, which caused the plaintiff to fall.  Generally, a landowner or occupier has a reasonable time to remove snow and ice after notice of the dangerous condition.

In this case, Hare argued that the “hills and ridges” doctrine did not apply to a snow removal contractor.  However, Superior Court disagreed with this theory.  The Superior Court held that it is well established that an independent contractor becomes a possessor of the necessary area of land in order to complete the work that is contemplated under a contract.  Furthermore, the Superior Court held that precedent specifically states that the “hills and ridges” doctrine applies to an independent contractor.  As such, the Superior Court upheld the trial court’s decision regarding the applicability of the “hills and ridges” doctrine to a snow removal company.  The Superior Court affirmed the trial court’s ruling that Zaffino was not liable for Plaintiff’s injuries, because it was still snowing at the time of the fall.  The snow had not accumulated to “hills and ridges” to put Zaffino on notice that it had become a dangerous condition.

The United States Court of Appeals for Third Circuit recently upheld a Magistrate Judge’s ruling that held that a waiver of stacking uninsured/underinsured (“UM/UIM”) coverages did apply to a vehicle that was added to an insured’s policy after the insured had already signed a stacking waiver.

In Kuhns v. The Travelers Home and Marine Insurance Company, No. 17-3371 (3^rd Cir. January 3, 2019) the appellants, Wayne and Shannon Kuhns had an insurance policy with the appellees, The Travelers Home and Marine Insurance Company that covered three of their vehicles. The Kuhnses signed a stacking waiver at the time of obtaining the policy. The Kuhnses then obtained a fourth vehicle a few months later. This vehicle was added to the already existing policy with Travelers. No new stacking waiver was provided to the Kuhnses by Travelers at the time of adding the new vehicle.

The Kuhnses then sought to allow stacking of their UM/UIM coverages since no new stacking waiver was provided. The issue before the Magistrate Judge was whether the stacking waiver applied to the new vehicle that was added to the policy after the Kuhnses already signed a stacking waiver for that policy. The Magistrate Judge held that the waiver did apply and the Appellate Division agreed. Therefore, the Kuhnses do not get the benefit of stacking their UM/UIM coverages.

Stacking insurance is the ability to combine coverages for multiple vehicles under the same policy to provide an insured with greater coverage than that for a single vehicle. For example, an insured may have three vehicles listed under a single policy and each vehicle has $100,000 in UM/UIM benefits. The insured would be entitled to $300,000 in UM/UIM benefits ($100,000 multiplied by three vehicles) if the insured does not waive stacking. However, the insured would only be entitled to coverage under a single vehicle, or $100,000 under this example, if the insured does waive stacking.

The Magistrate Judge based her ruling on Sackett v. Nationwide Mutual Insurance Company, 919 A.2d 194 (Pa. 2007 (“Sackett I”) and Sackett v. Nationwide Mutual Insurance Company, 940 A.2d 329 (Pa. 2007) (“Sackett II”). Sackett II held that a stacking waiver that was signed before the addition of a new vehicle is applicable to the new vehicle if there is a “continuous after-acquired-vehicle clause.” An after-acquired-vehicle clause allows for coverage of an existing policy to extend to a newly added vehicle if the clause is found to be “continuous.”

The Kuhnses’s policy will automatically extend coverage to a new vehicle if the following three conditions are met: 1) The vehicle was acquired during the policy period; 2) the policy holder asks Travelers to insure it within 30 days; 3) no other insurance policy provides coverage for that vehicle. The Magistrate Judge found these conditions made the after-acquired-vehicle clause “continuous,” thereby extending the stacking waiver to the new vehicle.

The Kuhnses did not contend that they signed a valid stacking waiver, but rather contended that the new vehicle was added to the policy via an amended declaration page and not the after-acquired-vehicle clause. Additionally, the Kuhnses argued that, even if the new vehicle was added via the after-acquired-vehicle clause, this clause was not “continuous” as it required three conditions to extend coverage.

The Appellate Division held that the Magistrate Judge was correct in rejecting these arguments as Sackett II had already clearly ruled that this type of after-acquired-vehicle clause is “continuous” despite the conditions. The Appellate Division also held that the Kuhnses’s declaration page argument failed, because vehicles are generally added to policies by the after-acquired-vehicle clause according to the Pennsylvania Insurance Commissioner as opposed to an amended declaration page.

This ruling is significant as it protects an insurer by limiting coverage only to what an insured had elected. An insurer and insured can rely on a valid after-acquired-vehicle clause to quickly add a new vehicle to an insurance policy without the concern that an insured may be entitled to more coverage than the insured elected. Both parties will get the coverage that each had bargained for.

A court dismissed a plaintiff’s Complaint filed against ShopRite for a fall due to debris in the main walkway of ShopRite’s parking lot in Monroe County, Pennsylvania. Karten v. ShopRite, Inc., No. 4416 CV 2016, (C.P. Dec. 3, 2018). ShopRite’s summary judgment was granted and the case against it was dismissed. The court held that ShopRite had no actual or constructive notice of the condition to find liability as it was a transitory spill.

A possessor of land can be liable for a dangerous condition on its premises if it created the condition, knew of the condition or should have known of the condition by the exercise of reasonable care. Restatement (Second) of Torts §343. A transitory spill is one that was created only moments before causing harm. Therefore, a possessor of land may not be liable for a transitory spill that it did not create, have an opportunity to rectify, or warn invitees of the condition.

In Karten, the plaintiff had just left the ShopRite and was walking on the main walkway of its parking lot when she slipped and fell on what she described as, “dark, slippery and smelled of rotten banana.” The plaintiff was unable to state how the substance got on the ground, or how long it had been there. ShopRite moved for summary judgment arguing the condition was a transitory spill and it had neither actual nor constructive notice to warrant liability.

The plaintiff argued that ShopRite had actual notice of the condition, because it had received prior complaints regarding debris in the parking lot. The court disagreed. The court held that general knowledge of a similar condition is not akin to actual knowledge of a transitory spill.

The plaintiff then attempted to argue that ShopRite had constructive notice of the spill. The plaintiff was also unsuccessful in this argument. The court dismissed any of the plaintiff’s arguments on constructive notice. The court found that the plaintiff had no evidence of constructive notice and the argument was just manufactured in opposition to ShopRite’s motion.

Ultimately, the court granted ShopRite’s motion for summary judgment. The plaintiff was unable to identify sufficient evidence to find that ShopRite had actual or constructive notice of the transitory spill. The plaintiff failed to meet her burden and the Complaint was dismissed.

ShopRite was protected from liability, because the court held that the condition was transitory. The spill could have occurred only seconds before the plaintiff fell. Therefore, it would be unjust for ShopRite to be responsible for something it could not have had control over.

Lack of notice is a powerful defense in a slip and fall case. A possessor of land is not the ultimate insurer of any injury that occurs on its property. The law still requires that a possessor of land be aware of a potential dangerous condition, or should have been aware of it for it to be held liable. Therefore, a possessor of land may not be liable for damage caused by a transitory spill if there is no evidence that could prove how long the condition existed before causing harm. Therefore, proper questioning during discovery is necessary to determine whether a plaintiff is able to prove how long a dangerous condition existed, or if a possessor of land should have been aware of the condition by the exercise of reasonable care.

The use of a cell phone by a commercial truck driver at the time of a motor vehicle accident may subject the driver to punitive damages.  In Ehler v. Old Dominion Freight Line, No. 2018-00307 (C.P. Lebanon August 30, 2018), filed in the Court of Common Pleas, Lebanon County, Pennsylvania, a commercial truck driver was sued for causing a 64-car accident during a winter storm. The plaintiffs alleged that the truck driver was on his cell phone at the time of the accident.  The plaintiffs sought punitive damages as they alleged that the use of a cell phone by a commercial truck driver under severe weather conditions is reckless. The truck driver filed preliminary objections seeking to strike the allegations of recklessness thus eliminating the possibility of punitive damages. The court overruled the preliminary objections, thereby allowing the plaintiffs to continue to seek punitive damages pending further discovery.

Punitive damages are used to punish a defendant’s behavior and to deter such future conduct. When a plaintiff alleges that a defendant was negligent in causing damages to the plaintiff, the plaintiff is entitled to seek such compensation as lost wages, unpaid medical bills and pain and suffering.  A defendant must be found to have acted recklessly through outrageous or willful misconduct demonstrating an evil motive or reckless indifference to the rights of others in order to pursue punitive damages.  A plaintiff must allege specific facts that demonstrate this type of behavior in a complaint.  A defendant can challenge a plaintiff’s ability to seek punitive damages through preliminary objections.  Preliminary objections are used to strike portions of a plaintiff’s complaint prior to discovery to eliminate irrelevant or inappropriate allegations.

The defendant-truck driver sought to strike the claims for punitive damages by arguing that merely being on the phone while driving does not amount to reckless conduct. However, Pennsylvania’s Distracted Driving Law prohibits commercial truck drivers from using a cell phone while driving except for contacting emergency personnel.  Additionally, it is alleged that snow produced “white-out” conditions at the time of the accident. The court held that under these circumstances it was even more important for a truck driver to take extra precautions while driving in severe weather conditions.

However, since the driver’s estate is proceeding in the defense of this lawsuit, it is unknown who the driver was on the phone with at the time of the accident and even if there was any actual connection between being on the phone and the happening of the accident. Even with these unknown facts, the court held the allegations were specific enough to warrant keeping the possibility of punitive damages alive pending further discovery. The court did hint that these allegations could be stricken in the future if facts are uncovered during discovery that do not support them.

In a time when distracted driving is a major safety concern to anyone on the roads, it is important to thoroughly analyze and scrutinize a plaintiff’s complaint to determine the viability of a plaintiff’s allegations of reckless conduct that could open the door for punitive damages.  Punitive damages can lead to increased jury verdicts as it allows a jury to not only compensate a plaintiff, but to punish a defendant and deter such future behavior.  Therefore, preliminary objections must be strongly considered to challenge these types of allegations during the early stages of litigation.