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Archive for the ‘Tort and Catastrophic Loss’ Category

Superior Court Erodes Pennsylvania’s Fair Share Act

Posted on: May 17th, 2021

By: Erin Lamb

In 2011, Pennsylvania enacted the “Fair Share Act,” Senate Bill 1131. The bill substantially limited the applicability of joint and several liability in civil cases. There is no question that it was the goal of the legislature and then-Gov. Corbett for the bill to do exactly that. As enacted and as applied since it went into effect, the Act rendered individual defendants who were found to be less 60% liable responsible only for their share of damages. (Individual defendants who were found to be 60% liable or more remained subject to joint and several liability.)

Now, a two-member panel of Pennsylvania’s intermediate appellate court has thrown this application of the Act into question. The opinion written by Judge Panella and joined by Judge McCaffery in the matter of Spencer v. Johnson, et al. (2040 EDA 2019) opened the door to interpreting the Act in such a way that it only applies when there is a finding that the Plaintiff is comparative negligent.

The Spencer opinion adopts the rationale that in the absence of a finding that Plaintiff is comparatively negligent, joint and several liability remains the law of the land. This theory deduces that because the Act addresses situations where a plaintiff is found more than 50% negligent (Plaintiff barred from recovery) and where a single Defendant is more than 60% negligent (joint and several liability applies), but does not address situations where a Plaintiff is not found negligent, that the Act is only intended to apply to when a Plaintiff is found comparatively negligent.

 The promotion of this rationale was not germane to the subject issues on appeal, suggesting that sections of the Court were eager to place this rationale front and center for consideration. The interpretation has great consequences for any matter where Plaintiffs are rarely, if ever, found negligent, such as medical malpractice claims.

The appellees have already applied for reargument en banc before the Superior Court, with pending applications for leave to file amicus briefs filed by no fewer than 23 industry groups and special interest groups. The Court’s decision is due June 1, 2021.

For more information, please contact Erin Lamb at [email protected].

Determining Ownership In Premises Liability Cases

Posted on: May 17th, 2021

By: Brian Goldberg

There are fewer more important preliminary inquiries in a premises liability case than determining who owns the underlying land where a plaintiff was injured. Most of the time this is a simple inquiry. But sometimes disagreements may occur concerning who the true owner of the land where the plaintiff was injured. For example, what result when a plaintiff is injured on or close to a boundary line? What should counsel do to determine ownership interests when questions such as these arise?  

First, a full or limited title examination is a good start. It is an easy method to determine ownership interests in real estate. Be aware that your title examination is only as good as the title abstractor performing the examination. Thus, you could perform the search yourself, or hire an expert you trust. Get references from real estate attorneys and request a quote upfront from the abstractor. It is good practice to let the title abstractor know exactly why you are getting title exam and to look for any relevant documents or instruments that may affect the outcome of your case. You may be surprised to learn that the title examiner reveals that the location where the plaintiff fell is not actually owned by the defendant. The title examiner may also uncover various relevant documents such as easements (with maintenance obligations), covenants and restrictions for homeowner’s associations, or rights of way and sidewalks that have been dedicated to government bodies. Such agreements sometimes (not always) contain risk-shifting provisions and indemnification agreements. It’s almost always worth it to run a title exam—even if just for peace of mind.

Second, while a title examination may aid counsel determine ownership, a boundary-line survey can assist accurately determine the location of the injury in relation to a boundary line. This type of survey is remarkably helpful when you have a metes-and-bounds legal description without reference to a plat. Usually, the best type of survey to obtain is an “as-built survey” which shows the location of buildings, roadways, and other structures on the land in relation to the boundary lines. Surveys can also reveal all types of other hidden information that is scattered across many different locations and documents. For example, locations of underground power lines, utilities, water pipes, etc. If relevant, you can also request topography and vegetation or bodies of water be included in the survey.  To be sure, inform the surveyor what you are trying to accomplish and ask for suggestions on how to achieve this. The surveyor may be aware of various types of information that you are not aware of. Provide as much detail as possible. Pictures of the location of the injury are especially helpful for this.

Once you’ve provided the information to the surveyor, they can use highly precise and sophisticated modern equipment to identify key locations on a boundary map that shows ownership interests down to the millimeter. Be aware of cost though, as the more information you request on a survey, the more expensive it will get. Only obtain as much detail on the survey as you need to accomplish your goal. Also, not every case needs a survey, but when you do need one (or think you need one) get several quotes and opt for a surveyor that is closest to the property.

These suggestions should help you pinpoint the location of an injury and determine legal rights and liabilities of parties if questions arise as to ownership. If you need more information or assistance with a premises liability matter, please contact Brian Goldberg at [email protected]

Supreme Court of Georgia Decision Sides With Amicus Arguments Authored by FMG Attorneys Regarding Duties of Employer for Criminal Conduct of Employees

Posted on: May 13th, 2021

By: Phil Savrin and Alexia Roney

In an appeal before the Supreme Court of Georgia involving two multi-million dollar judgments, the Georgia Defense Lawyers Association tapped FMG Attorneys Phil Savrin and Alexia Roney to author an amicus brief on the scope of foreseeability for injuries arising from the criminal conduct of an off-duty employee and whether that employee acted under “color of employment”. FMG’s attorneys argued that the court should exercise its inherent authority to determine as a matter of law that an injury is too remote to allow recovery and that the employee was outside the color of employment. In its decision of May 3, 2021, the Supreme Court agreed.

The two cases arose when a car washer at a car rental company named Byron Perry snuck onto the lot after it had closed and stole a vehicle, intending to sell it. Hours later, while fleeing from police in the same vehicle, Perry struck a wall and critically injured the two plaintiffs. In separate trials against the company, juries awarded $47 million and $7 million in damages which were apportioned among several parties. The trial court’s denial of a motion for judgment notwithstanding the verdict was reversed by the Court of Appeals after which the plaintiffs sought review by the Supreme Court. 

In affirming the Court of Appeals’ decision, the Supreme Court ruled that judgment should have been granted as a matter of law because “the subsequent accident caused by Perry’s criminal conduct was not a probable or foreseeable consequence that could have been reasonably foreseen by the defendants.” Separately, the Supreme Court found the defendants could not be liable under a “color of employment” theory because Perry’s theft and subsequent accident “were not connected to his employment duties and were not accomplished by virtue of his employment.” 

In so concluding, the Supreme Court agreed with FMG’s arguments that judges need to decide, in the first instance, whether an injury is too remote from a party’s conduct for a claim to proceed a jury and that Perry’s conduct was not under “color of employment.” 

The reported decision can be found at Johnson v. Avis Rent a Car System, LLC, 2021 Ga. LEXIS 199 (Ga. May 3, 2021). 

For more information, please contact Phil Savrin at [email protected] or Alexia Roney at [email protected].

One Man’s Trash: Georgia Court of Appeals Weighs in on Respondeat Superior Following Homeowner’s Altercation with Garbage Employee in Advanced Disposal Servs. Atlanta v. Marczak

Posted on: April 28th, 2021

By: Steven Grunberg

Do you ever feel like your dedication to your job is questioned? For one employee of a garbage and recycling disposal company there is little doubt surrounding the answer to this question. In March 2018, Lorenzo Bucknor was driving an Advanced Disposal Services Atlanta, LLC (“ADS”) recycling truck when he arrived at Mark Marczak’s home to retrieve Marczak’s curbside recycling. Just before Bucknor’s arrival, Marczak had placed his recycling bin on the curb of his home and placed an extra bag of recyclables on top of the bin. Prior to Bucknor stopping at Marczak’s home, the extra bag had flown off onto Marczak’s driveway where it remained.

When Bucknor pulled up in his ADS truck he collected the recyclables from Marczak’s bin but did not pick up the loose bag in the driveway as he did not consider them to be “curbside” and were not in the appropriate location for pickup. Marczak noticed the bag lying in the driveway and approached Bucknor, with bag in hand he said, “[t]his goes too,” and tossed the bag in Bucknor’s direction while Bucknor was emptying a bin at a neighboring home. Bucknor cursed at Marczak, left the bag on the ground, and returned to his truck. Marczak followed Bucknor to his truck, stating “[n]o, you take it, it’s your job,” and threw the bag into the driver’s side of the truck cab. Bucknor then jumped out of the truck and punched Marczak in the face before getting back into the cab, but immediately returned to Marczak and proceeded to strike Marczak several more times until he was lying unconscious and face-down on the driveway. Marczak and his wife sued Bucknor and ADS under the theory of respondeat superior, among others. Advanced Disposal Servs. Atlanta v. Marczak, No. A21A0180, A21A0181, 2021 Ga. App. LEXIS 191 (Ga. Ct. App. Apr. 8, 2021). The trial court denied summary judgment for ADS as to the respondeat superior claim.

On the surface, it may come as a surprise that the Marczaks’ respondeat superior claim survived summary judgment. After all, a recycling truck driver beating a customer unconscious appears to be “for reasons unrelated to that employment (e.g., for purely personal reasons disconnected from the authorized business of the master[.])” According to the court of appeals, Bucknor was clearly carrying out his duties as a ADS employee when he first encountered Marczak and the initial decision to punch Marczak was a personal reaction to having a recycling bag tossed into his cabin. However, the critical fact allowing the Marczaks’ respondeat superior claim to move forward was Bucknor’s response when asked why he re-engaged after the initial punch:  “I had got out [of the truck] initially and, you know, I had — because he hit me, so I hit him, so now he’s walking away, so — and I’m in the area, I’ve got to finish this whole neighborhood, so I was thinking that he, I don’t know, was going to get a weapon or something, honestly, and follow me or something. So yeah, I still felt like I was in danger. He’s at home, you know, and I don’t know what he’s going to get.” The court held this testimony raised “a question of fact as to whether Bucknor’s actions were purely personal or connected, at least to some extent, with his effort to finish his recycling route.” Even if beating Marczak unconscious was motivated by personal malice, Bucknor’s response, according to the court, was enough to allow a jury to conclude that he acted “within the scope of [ADS’s] business and in furtherance of its interests.”

Employers should be aware that an employee’s testimony may end up slotting their conduct, beatings included, within the scope and in furtherance of its business. Simply because an employee’s conduct is personally motivated, this alone may not absolve his employer of liability under respondeat superior.

For more information about this topic, please contact Steven Grunberg at [email protected].

Flipping the Script- Maryland Court of Special Appeals Rejects Reptile Theory and Overreaching Spoliation Instructions

Posted on: April 2nd, 2021

By: Joshua Ferguson

Maryland Court of Special Appeals discussed the emerging Reptile Theory approach favored by plaintiffs’ attorneys. Reptile Theory approach encourages jurors to favor personal safety and the protection of family and community above the law. Courts have previously ruled against similar tactics, such as the Golden Rule, as these arguments invite jurors to disregard their oaths and place themselves in the shoes of the victim taking on a non-objective view of the evidence and law. This focus on solely subjective considerations is improper. Typically, counsel will encourage jurors to act as guardians of the community and punish corporate entities for perceived wrongdoings or solely because an accident occurred on a property, which is improper. In this matter, Plaintiff’s counsel made comments in both opening and closing arguments which could be understood as encouraging the jurors to make the grocery store/property owner the insurer of its customers’ safety while on the premises, despite the trial court already ruling the premises itself did not cause plaintiff’s alleged injuries. The Court of Special Appeals was unable to fully review this matter, as it was not properly preserved during trial. However, the explanation and reference to similar precedent provides insight into the Court’s leaning and sets the stage for future matters to be decided definitively as to Reptile Theory approach.

The Court reversed this matter based upon the grocery store’s lack of vicarious liability owed to the Plaintiff through an independent contractor stocking products at the store, however, the Court noted it would have also reversed based upon the spoilation instruction provided by the trial. The trial court gave a spoliation instruction to the jury, but did not have a proper basis to do so. Plaintiff failed to demonstrate security camera footage of her fall actually existed and was not preserved or otherwise destroyed. The evidence provided by Plaintiff and stressed to the jury by Plaintiff’s counsel was speculative. Cameras were in place at the store, an incident report was created and Plaintiff sent a preservation letter following the incident, but none of the property owners’ employees saw the incident captured on video and there was no evidence presented the incident was ever caught on camera. Despite this, Plaintiff’s counsel encouraged the jury to that video footage almost always exists and it would likely be consistent with Plaintiff’s account. The Court ruled the jury was invited and permitted to engage in speculation surrounding the concealment and destruction of a piece of evidence that was never proven to exist in the first place. A trial court must now determine whether a plaintiff has proven the evidence actually existed before offering a spoliation instruction to the jury.

For more information, please contact Joshua Ferguson at [email protected].