Pennsylvania

No Dram Shop Liability for Pennsylvania Employers Serving Alcohol to Intoxicated Employees (PA)

Work-sponsored outings and events are normally seen as a much-welcomed reprieve from the old “9-5”. However, when alcohol is involved, Pennsylvania employers have potential liability to third parties who are injured by suffer at the hands of an intoxicated employee. In Klar v. Dairy Farmers of America Inc., the Superior Court of Pennsylvania addressed the standard which applied to an employer in such a situation. In that case, the Dairy Farmers of America (DFA) held a golf outing for its employees who had to pay a monetary contribution to participate in the outing. An employee became intoxicated and the DFA continued to serve him even though they knew he was an alcoholic and visibly intoxicated. The employee drove home and hit plaintiff who was riding on his motorcycle, causing serious injuries. Plaintiff sued the driver and the DFA, alleging that it was liable for serving the employee when they knew he was an alcoholic and intoxicated. The DFA moved for judgment on the pleadings, arguing that it was a “social host” and not subject to Dram Shop liability because they did not qualify as a “licensee” under PA’s Liquor Code and did not obtain “licensee status.” DFA further argued that there is no liability on the part of a social host who serves alcoholic beverages to their adult guests. The trial court granted DFA’s motion for judgment and Klar appealed, arguing that an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to injured third parties. The Superior Court disagreed and affirmed, observing that “only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties.” The Court further noted that a social host is not liable for serving alcoholic beverages to a guest as “it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” The Court ruled that an employer is a non-licensee under the liquor code and is not subject to standard civil liability because it acted as a social host and was not in the business of furnishing and selling alcohol. The Klar decision makes it clear that Pennsylvania employers cannot be subject to Dram Shop liability for serving alcohol to intoxicated employees. However, the Supreme Court of Pennsylvania has agreed to hear the appeal of the Superior Court’s ruling and a decision is expected this year. WCM will monitor the appeal and provide an update once a decision is announced. Thank you to Haley Matthes for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

Supreme Court To Interpret Whether Treble Damages Under UTPCPL Necessarily Constitute A Second Bite At The Apple (PA)

With the turn of the new year in a lawsuit entitled Dwyer v. Ameriprise Financial, et al. No.: 519 WDA 2021, on January 9, 2023, the Pennsylvania Supreme Court has agreed to consider whether a court may triple the damages awarded against a defendant in a consumer protection suit in which the plaintiff already won punitive damages and attorney fees. Dwyer remains a case to watch as Pennsylvania’s highest court determines whether the heightened damages available under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) constitutes an unlawful second bite at the apple. Specifically, Dwyer arises from a universal life insurance policy dispute in which Plaintiffs claim that in issuing their life insurance policy, Ameriprise Financial engaged in deceptive trade practices and made false misrepresentations you Plaintiffs about the terms / scope of their policy. As such, Plaintiffs commenced suit and the case was tried before a jury in the Philadelphia Court of Common Pleas. After establishing claims of negligent misrepresentation, fraudulent misrepresentation, violation of the UTPCPL, breach of fiduciary duty and negligent supervision, the jury returned a judgment subject to attorney’s fees and punitive damages totaling $244,172.57. The Pennsylvania Superior Court upheld the trial court’s denial of remedial treble damages under the UTPCPL, attorney’s fees, totaling $123,175.57, in addition to the jury’s award of punitive damages totaling $75,000. Importantly, the UTPCPL affords the trial court discretion to “award up to three times the actual damages sustained.”  73 P.S. § 201-9.2(a). However, the novel question of just how much discretion a Pennsylvania judge has in awarding UTPCPL tremble damages on top of punitive damages obtained under alternate causes of action will soon be clarified by the Pennsylvania Supreme Court per its January 9, 2023 Order granting Dwyer certiorari. Dwyer remains a Pennsylvania case to watch for defense attorneys and the risk management industry alike. Often, the approach one takes to manage its risk depends significantly on what is at stake. thanks to Kendall Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Plaintiff’s Lack Of Diligence Merits Dismissal In PA

The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant’s insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Communications Decency Act Protects TikTok from Wrongful Death Suit (PA)

The Eastern District of Pennsylvania recently held that social media platform TikTok, Inc. and ByteDance, Inc.(a technology company) are immune from a mother’s wrongful death claim under the Communications Decency Act. Tawainna Anderson, the mother of a deceased 10-year-old Nylah Anderson, sued TikTok after her daughter died when she attempted to perform a viral TikTok challenge known as the “Blackout Challenge,” which encourages children to choke themselves until passing out. In her Complaint, Anderson alleged that the challenge was thrust in front of her daughter on her daughter’s TikTok “For You” Page as a result of TikTok’s algorithm. Plaintiff’s mother alleged that while the companies are not liable as publishers, they are as organizations responsible for their own independent conduct as the designers, programmers, manufacturers, sellers, and/or distributors of their dangerously defective social media products and their own independent acts of negligence. Plaintiff argued her claim fell outside of the potential protections afforded by Section 230(c) of the Communications Decency Act. Additionally, Plaintiff brought a strict liability claim against the Defendants for failure to warn. Regardless of Plaintiff’s allegations, the Court held that Congress precluded interactive service providers from being treated as the publisher of third-party content and thus immunized the providers from “decisions relating to the monitoring, screening, and deletion of content.” The Court reiterated that algorithms are not content in themselves and that Defendant simply published content. Thus, TikTok and ByteDance are shielded from liability under Section 230. Thanks to Jean Scanlan for her assistance in this post. Should you have any questions, please contact Tom Bracken.Read More

Federal Rule of Evidence 702 Standard of Care for Medical Experts Requires Sufficient, Supported, and Reliable Expert Testimony

In the recent case of M.D.R. by Rivera v. Temple University Hospital, The United States District Court for the Eastern District of Pennsylvania found that under Federal Rule of Evidence 702, for a plaintiff to prove that a hospital is liable for medical negligence, the plaintiff cannot merely provide expert testimony that shows a deviation from that expert’s subjective perception of the relevant standard of care. Rather, plaintiffs must provide sufficient and reliable expert testimony as to what the relevant standard of care actually is. In M.D.R., plaintiff, through her mother, sued Temple University Hospital (“TUH”), alleging medical malpractice resulting in a birth-related injury to her arm.  TUH moved for summary judgment, arguing that plaintiff’s experts’ opinions would be inadmissible at trial because they failed to satisfy the Daubert standard on reliability. Plaintiff’s experts both opined that M.D.R.’s brachial plexus injury could only have occurred “as a direct result of the obstetrician’s application of excessive “traction” on the baby’s head and cannot be caused by the natural forces of labor.” Accordingly, the experts opined that the existence of a  brachial plexus injury was sufficient in proving that the nurses and obstetricians had breached the standard of care.  Plaintiff’s experts both reached this opinion however  without opining on what that applicable standard of care was in this situation. The court found that plaintiff’s experts’ opinions assumed facts not in evidence and were directly contradictory to almost all current and available scientific literature on the subject, including literature cited by the experts themselves.  Moreover, the court found that as a matter of law, medical experts must establish, in a Daubert-satisfactory manner, what the standard of care is for a given case, and how that standard was or was not satisfied, as opposed to merely opining that the existence of a certain injury was sufficient proof to demonstrate the breach of an abstract and undefined standard of care.  As such the court deemed M.D.R.’s expert opinions unreliable and granted TUH’s motion for summary judgment. M.D.R. is a victory for defendants in medical malpractice suits because it reinforces the role of judges as active gatekeepers in determining whether expert testimony is reliable and therefore admissible. The case therefore limits the ability of plaintiffs to use so-called expert testimony, not truly supported by the scientific community, to satisfy the expert requirement in medical malpractice suits Thanks to Stephen Kerstein for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More

Dismissal Granted Where Claim Against Party Added After the Statue of Limitations Did Not Relate Back to Filing of Original Complaint

In Coleman v. Western Oilfields Supply Co.,, the Judge Brann of the Middle District of Pennsylvania rejected the application of the relation back doctrine and granted a Defendant’s Motion to Dismiss based on the two-year statute of limitations.  Willie Coleman was injured while setting up a gas well at Chief Oil & Gas, LLC’s well pad in Wyalusing, Pennsylvania.  Evergreen Oilfield Solutions, LLC and Western Oilfield Supply Co. were allegedly responsible for “containment” at the well pad which involves “preventing containment of the grounds by laying down a cloth or other substance that covers the grounds to prevent . . . contamination.”  Around midnight on March 19, 2019, Coleman and a coworker were carrying a heavy pipe on their shoulders and began to move it through the well pad.  Coleman’s foot fell into a hole or depression causing him to trip, resulting in a severely fractured ankle.  Because the hole or depression was covered by a containment cloth, Coleman was unable to see it before he stepped in it. Plaintiffs filed a Complaint on January 15, 2021 against Chief and Western, alleging that both entities were responsible for containment at the well site.  Chief filed a Motion to Dismiss which the court converted to a Motion to Dismiss and then granted.  With leave of Court, Plaintiffs filed an Amended Complaint on May 12, 2022, that for the first time, named Evergreen as a Defendant, alleging that it was responsible for containment at the well pad.  Evergreen filed a Motion to Dismiss based on the two-year statute of limitations.  Plaintiffs responded by arguing that their claims against Evergreen related back to original complaint, which was filed within the limitations period and was therefore timely. Federal Rule of Civil Procedure Rule 15(c) permits an amended complaint that adds a new party to relate back to the filing of the original Complaint if three requirements are meant: (1)          The claims in the amended complaint must arise out of the same occurrences set forth in the original complaint; (2)          The party to be brought in by amendment must have received notice of the action within 120 days of its institution; and (3)          The party to be brought in by amendment must have known, or should have known, that the action would have been brought against the party by for a mistake concerning its identity. Although Evergreen conceded that the first requirement had been met in that the claims in the Amended Complaint arose out of the same occurrence as the original Complaint, it disputed that it had received notice of the original action within 120 days or knew or should have known that the action would have been brought against it but for a mistake concerning its identity. Plaintiffs produced no evidence of actual notice with 120 days of the initiation of the original Complaint.  The Third Circuit has endorsed two methods of imputing notice where a plaintiff cannot demonstrate that a defendant had actual notice of the suit against it.  First is the “shared attorney” method whereby notice is imputed when the originally-named party, and the party that is being added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action.  Second is the “identity of interest” method whereby the parties are so closely related in their business operations or other activities that the institution of action against one served to provide notice of the litigation to the other.  Judge Brann held that Plaintiffs had failed to meet their burden of establishing either actual or imputed notice of the action within 120 days of filing of the original complaint.  None of the Defendants shared attorneys or law firms, and there was no evidence that there was any special relationship between any of the current of former Defendants. Having failed to establish the second prong of the relation back test, Judge Brann held the Plaintiffs’ claims against Evergreen were barred by the statute of limitations and therefore granted its Motion to Dismiss. Thanks to James Scott for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More

Plaintiff’s Comparative Negligence Not Admissible In A Strict Liability Action (PA)

In Cote v. Schnell Industries, 2022 WL 16814032 (M.D. Pa. Nov. 8. 2022), Cote was injured while working at a transfer yard moving sand used in “fracking” operations from railcars to tractor-trailers for delivery to fracking customers. When Cote reached his hand into a piece of equipment to dislodge the wet sand so the sand could be properly transported onto the conveyor belt, his co-worker simultaneously activated the machine’s “power take off” lever, which slammed a gate shut and nearly severed Cote’s hand.

The defendant equipment manufacturer argued that Cote acted negligently because “he knew of the danger posed by putting his hand through the [gate] while the machine was energized.” Defendant’s theory related directly to the alleged product. Cote argued that the equipment was defective because “it cannot isolate, deenergize and lockout its [power take off lever] so that workers can safely unload jammed sand . . . without risk of the door closing.”

The court granted Cote’s motion in limine, holding that defendant was precluded from arguing that Cote’s negligence caused the accident. The Court reasoned that because Cote’s alleged negligence “cannot be causally distinguished from the elements of the [equipment] Cote considers defective, [defendant] is unable to show ‘that none of the alleged product defects contributed in any way to the accident.’”

This case stands for the proposition that a plaintiff’s conduct in a products liability case is relevant only if the conduct was the sole cause of the accident and unrelated to the alleged defect.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.

Read More

Known Threat Creates Potential Liability For Retailer In Shoplifting Case (PA)

The Eastern District of Pennsylvania found that retailers can be found negligent when one customer attacks another and the store had reason to know that the attacker was likely to present a threat. In Cimbat v. Old Navy LLC, Rebecca Cimbat was assaulted by fellow shopper Ikea Lynch.  Prior to the incident, Cimbat had approached Lynch and accused her of shoplifting. Cimbat then informed the store of her accusations against Lynch.  Cimbat brought claims of negligence and intentional infliction of emotional distress (IIED) to adequately warn and protect Cimbat from Lynch and failed to adequately train its employees to respond to such situations. Old Navy filed for summary judgment on both claims. The Court dismissed the claims for IIED finding that the Old Navy’s conduct did not rise to the level of “sufficiently outrageous,” and that there was no evidence that acted intentionally or recklessly in failing to adequately warn, act, or train. “Cimbat’s evidence does not demonstrate that the employees proceeded with, “deliberate disregard” by failing to warn or take further precaution in the face of a substantial risk or high probability of emotional distress.” However, the Court found that a reasonable juror could conclude that Old Navy was negligent and its negligence was the proximate cause of Cimbat’s injury. Cimbat has presented enough evidence that Old Navy “had reason to know that Lynch could be dangerous” because Cimbat had reported his shoplifting and employees had observed that Lynch was likely under the influence. The Court held that Old Navy could be found to have failed to take precautions against Lynch’s behavior. Cimbat’s claim for negligence survived summary judgment. A heightened standard may exist for retailers when it comes to protecting customers against in-store third-party attacks — especially when retailers have knowledge of possible altercations and/or fail to prevent them. Thanks to Jean Scanlan for her assistance in this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Federal Court Shuts Down Plaintiff On A Products Liability Warning/Defect Case (PA)

In the recent case of Mains v. Sherwin-Williams Company, United States District Court for the Eastern District of Pennsylvania reiterated a plaintiff must actually read the product’s warning labels, or provide evidence to support a reasonable inference that additional warnings may have prevented the injury.  Plaintiffs’ suit for strict liability, negligence, and breach of implied warranty, alleged fire damage to their residence resulting from spontaneous combustion of defendants’ wood stain product.  Defendant-Sherwin-Williams moved for summary judgment, arguing plaintiffs cannot prove causation on their strict-liability-failure-to-warn claim because they admitted to not reading the product’s warning labels. Plaintiffs’ home burned the night after Defendant’s wood stain had been used to stain the home’s outdoor deck.  Plaintiffs alleged rags with the  spontaneously combustible stain on them were improperly left out in the sun after use, which caused them to heat up and catch fire.  The can of wood stain did have a small warning in the back of it, advising users of proper disposal methods, and the risk of combustion if such warning wasn’t adhered to.^[1] Court held plaintiffs must show “evidence in the record to support a reasonable inference additional reminders may have forestalled” injury.  While Plaintiff argued that “he may have read warnings on the can if they had ‘jumped out’ at him,” but he provided no expert to opine that the defective warning, or the product in general, caused the fire.  The court found Plaintiff’s statement to be purely “speculative” and therefore insufficient to establish causation. Mains case clarifies necessity of causation evidence in a claim for defective warnings, and they must demonstrate that they either read the allegedly defective warnings, or provide evidence, beyond mere speculation, to support a reasonable inference that additional reminders may have prevented the underlying injury. By establishing these prerequisite hurdles for plaintiffs looking to sustain a defective-warning cause of action, the District Court’s decision is a victory for defendants and/or potential defendants subjected to products-liability-warning-defect claims.[1] Id. at 3. Thanks to Stephen Kerstein for his assistance in this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Hidden Danger in PA

In McPeak v. Direct Outdoor Products, LLC, 2022 WL 4369966 (E.D. Pa. Sept. 20, 2022), plaintiffs brought a personal injury action against defendants after plaintiff fell twenty feet to the ground when the steel cables attached to defendants’ hunting tree stand broke beneath him. The occurring corrosion of the cables was obstructed by the black polymer coating on the entire exterior of the cable.

The Court found that plaintiffs’ design defect claim survived the consumer expectation test because a factfinder could find that the dangers of the corroded cables breaking were unknowable or unacceptable to the average ordinary consumer, considering the product’s design allowed corrosion to be hidden by the product’s opaque coating. The Court added that the consumer expectation test also does not require proof of an alternate design.

This case stands for the proposition that manufacturers of products must consider feasible solutions like prominent warnings or utilizing anti-corrosive materials to protect their products.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.

Read More