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BISEL'S
E-REPORTER |
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Issue #12 |
This reporter is
published monthly by the George T. Bisel Company, Inc, and is written by Arthur
S. Zanan, Esquire. Its purpose is to
provide
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TABLE OF CONTENTS
Vehicle Code DUI Suppression of Evidence Evidence That
Defendant's Vehicle Momentarily "Drifted" across Traffic Lines
Commonwealth v. Nelson, 60 Cumberland Co. L. J. 331 (C.C.P. October 11, 2011).
Vehicle Code DUI Validity of Breath Test
Commonwealth v. Konetsco, 60 Cumberland Co. L. J. 340 (C.C.P. June 22, 2011).
Vehicle
Code New Legislation Motorcycles
Act 2011-103, November 22, 2011, P.L. 416, No.
103, effective in 60 days.
Vehicle
Code New Legislation Motorcycles Automated Red Light Enforcement Systems
in First-Class Cities
Act 2011-129, December 22, 2011, P.L. ___, No.
129.
Vehicle
Code New Regulations Approved Prearrest and Evidential Breath Testing
Devices
Vehicle
Code New Regulations Minimum Levels of Controlled Substances Or Their
Metabolites in Blood to Establish Presence of Controlled Substance
Vehicle
Code Reasonable Grounds for Chemical Testing
Sisinni v. PennDOT, ___ A.3d ___, No. 482 C.D. 2011
(Pa.Cmwlth. December 2, 2011).
Vehicle
Insurance Bad Faith Discovery of Insurer's Claims Manuals
Vehicle
Insurance ERISA Reimbursement of Paid Medical Expenses
US Airways, Inc. v. McCutchen, ___ F.3d ___, 2011 WL 5557411
(3d Cir. November 16, 2011).
Vehicle Insurance Medical Expenses ERISA Plan
Vehicle Negligence Discovery Social Network Profile and
Information
Largent v. Reed,
29 Franklin Co. L.J. 128 (C.C.P. November 8, 2011).
Arcq
v. Fields, C.P. Franklin
County, No. 2008-2430 (C.C.P. December 7, 2011).
Vehicle Negligence Negligence Per Se Vehicle Code
Violations
Sodders v. Fry,
___ A.3d ___, No. 403 C.D. 2011 (Pa.Cmwlth. December 9, 2011).
Vehicle Negligence Permissive Use of Vehicle Vicarious
Liability
Price v. Leibfried and Riviera Tavern, ___ A.3d ___, 2011 PA Super 274 (Pa.Super. December
22, 2011).
Vehicle Negligence SEPTA Sovereign Immunity Real Estate
Exception Slip and Fall on Icy Platform
Nardella v. SEPTA, ___ A.3d ___, No. 123 C.D. 2011 (Pa.Cmwlth. November 30, 2011).
Vehicle Negligence SEPTA Sovereign Immunity Vehicle and
Real Estate Exceptions Assault on Subway Platform
Derrickson v. SEPTA, C.P. Philadelphia, September Term 2010, No. 1067 (C.C.P.
December 1, 2011).
Vehicle Negligence Specificity of Pleadings
SUMMARIES
Vehicle Code DUI Suppression of Evidence Evidence That
Defendant's Vehicle Momentarily "Drifted" across Traffic Lines
In Commonwealth v. Nelson, the trial court ruled that the defendants pre-trial motion to suppress evidence obtained as a result of a traffic stop should be granted. Defendants constitutional rights were violated due to the fact that the traffic stop was without probable cause and/or reasonable suspicion.
In the early morning hours of
The trial court agreed with defendant and granted his motion to suppress the evidence gathered as a result of this traffic stop. The court explained that to show a proper finding of probable cause for a violation of §3309(1), there would need to be instances that would include some type of serious and dangerous driving infraction. The court cited Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010), as an example. In that case, the trooper observed defendant cross the double yellow center lane and then drift over the white fog line all while oncoming traffic was visible. The court found that, in the current case, where defendant's vehicle did not jerk one direction or another or weave between the white fog line and the yellow dividing lines and where there existed a minor and momentary infraction of the proper lanes of travel, defendant's vehicle did not exhibit the serious and dangerous type of driving infraction that would warrant a proper finding of probable cause.
The court also agreed with the defendant that the trooper did not have reasonable suspicion to believe that the defendant was DUI at the time of the traffic stop. Citing Commonwealth v. Anthony, 977 A2d. 1182 (Pa. Super. 2009), the court stated that an officer would only be justified in conducting a stop of a person if the officer can point to specific facts that would lead him to believe that there was criminal activity. Though the trooper was highly experienced in the field of DUI, the court found that there was nothing more than the defendants momentary touching of the roadways fog line and yellow lines. There was no evidence given that the roadway was a common location for drunk driving or any similar evidence. The court found that the troopers observations and the circumstances of the traffic stop were not sufficient to support a finding of reasonable suspicion of DUI.
Commonwealth v. Nelson, 60 Cumberland Co. L. J. 331 (C.C.P. October 11, 2011). Hess, J.
Vehicle Code DUI Validity of Breath Test
In Commonwealth v. Konetsco, the trial court ruled that the breath test results were valid in this case, even though defendant argued that the results should be invalid on the ground that the observation period prior to the breath test had been conducted by two different individuals.
The incident occurred in the late evening hours of
The trial court rejected with defendants argument. The court explained that the breath test procedures contained in §77.24(a) of Title 67 of the Pennsylvania Code (breath test procedure) specifically provides that custody of the person may be transferred to another officer or certified breath test operator during the twenty minute observation period as long as the person to be tested is under observation for at least twenty consecutive minutes prior to the initial administration of the alcohol breath test. The purpose of this procedure is to preclude the possibility that the test will be affected by irrelevant factors. The court found that the observation procedures were followed correctly in this case, and accordingly, defendant's argument that the breath test result in his case should be deemed invalid on the ground that the 20 minute observation period had been conducted by two persons acting in succession was not accepted.
Commonwealth v. Konetsco, 60 Cumberland Co. L. J. 340 (C.C.P. June 22, 2011). Oler, J.
Vehicle
Code New Legislation Motorcycles
On
This legislation
will create an exemption for land owners who authorized the use of their
property for the purpose of an approved motorcycle safety education program.
Such owners shall not be held civilly liable for any injury or death to persons
that might occur during the course of instruction or training except where
there is willful or malicious failure to warn against a dangerous condition,
use, structure or activity by the landowner.
The legislation amends 75 Pa.C.S. §7911
Motorcycle Safety Education Program.
Act 2011-103, November 22, 2011, P.L. 416, No.
103, effective in 60 days.
Vehicle
Code New Legislation Motorcycles Automated Red Light Enforcement Systems
in First-Class Cities
On
This legislation
amends 75 Pa.C.S. §102 to permit a motorcycle to add two additional stabilizing
wheels without losing its definition as a motorcycle. The legislation also
amends 75 Pa.C.S. §3116 to extend the expiration date of the Philadelphia
Automatic Red Light Enforcement until
The amendment of
the definition of "motorcycle" in §102 will take effect in 60 days,
and the remainder of the act shall take effect immediately.
Act 2011-129, December 22, 2011, P.L. ___, No.
129.
Vehicle
Code New Regulations Approved Prearrest and Evidential Breath Testing
Devices
On
Prearrest breath
testing devices approved under this authority may be used by police officers
and officers enforcing the Vehicle Code in conducting preliminary
determinations of the alcohol content of blood of persons suspected of driving
while under the influence of alcohol. Officers and patrolman use these devices
to assist them in determining whether or not a person should be placed under
arrest for violation of 75 Pa.C.S. §3802.
Vehicle
Code New Regulations Minimum Levels of Controlled Substances Or Their
Metabolites in Blood to Establish Presence of Controlled Substance
On
Although there are
hundreds of controlled substances in Schedules I, II, and III, quantitation
limits are listed only for commonly abused controlled substances for which
testing procedures are readily available.
Vehicle
Code Reasonable Grounds for Chemical Testing
In
Sisinni v. PennDOT, the Commonwealth
Court held that glassy eyes, a slight odor of alcohol and defendant's admission
that he had two drinks constituted reasonable grounds for a police officer to
demand that defendant submit to a chemical test.
A police officer
observed defendant drive through a red light and he conducted a traffic stop.
The officer detected a "slight odor" of alcohol on defendant and
noticed that his eyes were red and glassy. The officer conducted several field
sobriety test, which defendant passed with a problem. Defendant admitted to the
officer when questioned that he had two drinks. The officer testified that
defendant had no balance difficulty, was not uncooperative and was not
disheveled.
The officer
indicated that defendant was a "borderline case" and wanted to assess
whether he was over the legal limit. Defendant refused to take a preliminary
breath tests, pursuant to 75 Pa.C.S. §1547(k), was arrested and taken to a
police station for a post-arrest chemical test pursuant to 75 Pa.C.S. §1547(a).
Defendant refused the post-arrest chemical test.
PennDOT notified
defendant by letter that is operating privilege was being suspended for a
period of one year pursuant to 75 Pa.C.S. §1547. Defendant appealed.
The trial court
denied defendant's appeal, holding that there were reasonable grounds to
request a chemical test based on the odor of alcohol, glassy eyes, the
officer's experience and defendant's admission he had been drinking. Therefore,
it was reasonable to require defendant to submit to chemical testing and his
refusal justified the suspension of his operating privileges for one year.
Defendant appealed,
arguing that the officer did not have reasonable grounds to believe he was
operating the vehicle while under the influence of alcohol. Defendant argued
that reasonable grounds did not exist because he passed the field sobriety
tests, did not have balance issues and had only a slight odor of alcohol.
Defendant also argued that because the officer was unsure whether he was
intoxicated and viewed him as a "borderline case," the officer's
suspicions did not rise to the level of reasonable grounds.
The Commonwealth
Court disagreed and affirmed, finding that the trial court, based on the
totality of evidence, properly determined that the officer had reasonable
grounds to require a chemical test. The standard for reasonable grounds
requires only that an officer could
have concluded that licensee was operating a vehicle while under the influence
of alcohol. While there is no set list of behaviors or conditions that a person
must exhibit for an officer to have reasonable grounds for making an arrest,
case law has provided examples of what has been accepted as reasonable grounds,
such as: staggering, swaying, falling down, belligerent or uncooperative
behavior, slurred speech, and the odor of alcohol.
The court
determined that there was enough evidence to conclude that defendant could have been operating his vehicle
while under the influence of alcohol. The standard for reasonable grounds
merely requires that, when looking at the evidence as a whole, an officer could have concluded that licensee was
operating the vehicle while under the influence of intoxicating liquor. A
police officer need not be correct in his belief that the motorist had been
driving while intoxicated.
Here, the court
held, the officer's indefiniteness did not negate reasonable grounds, but
rather supported his belief that, based on his observations, defendant could have been operating his vehicle
under the influence. "Nothing in the statute requires an officer to be
absolutely certain of intoxication prior to requesting a chemical test."
In addition, a motorist does not have to fail a field sobriety test for a
police officer to have reasonable grounds. Thus, defendant did not have to be
obviously intoxicated to find reasonable grounds to request a chemical test.
Sisinni v.
PennDOT, ___ A.3d ___, No.
482 C.D. 2011 (Pa.Cmwlth. December 2, 2011).
Brobson, J.
Vehicle
Insurance Bad Faith Discovery of Insurer's Claims Manuals
In
Platt v. Firemen's Fund Insurance Company,
the Eastern District Federal Court of Pennsylvania ruled that claims manuals
and other materials used to process plaintiff's claims may be relevant to the
bad-faith counts in a complaint against an insurance carrier and were thus
discoverable.
Plaintiff filed
suit against her insurance carrier for insurance benefits and for statutory
bad-faith under 42 Pa.C.S. §8371. As part of discovery, plaintiff requested the
production of claims manuals as well as any other material which pertained to
instructions and procedures for adjusting claims. The insurance company
objected, arguing that the materials were not relevant and also privileged and
confidential.
The District Court
reviewed prior case law as well as the Federal Rules of Civil Procedure and
ordered defendant to produce any material pertaining to instructions and
procedures for adjusting claims which were given to adjusters who worked on
plaintiff's claim. The court found that the claims manuals and other materials
used to process plaintiff's claims may be relevant to the bad-faith counts,
citing Kaufman v. Nationwide Mutual
Insurance Co., No. Civ. A. 97-1114, 1997 WL 703175 (E.D. Pa.
In order to make
sure the request was not overbroad, the court limited its Order to
"instructions and procedures for adjusting claims and which was
given to adjusters who worked on [plaintiff's] claim." Plaintiff was also
ordered to keep such information confidential.
Vehicle
Insurance ERISA Reimbursement of Paid Medical Expenses
In
US Airways, Inc. v. McCutchen, the
United States Court of Appeals for the Third Circuit held that an insurer is
not entitled to 100% reimbursement of paid medical expenses when an injured
employee has recovered only a fraction of his damages from a third-party.
A mechanic for US
Airways sustained serious injuries as a result of a head-on collision that left
him permanently disabled. US Airways' health insurer paid $66,866 for his
medical expenses. The injured party thereafter recovered only a portion of his
total alleged damages from third parties, $110,000, including the driver who
caused the accident.
The health insurer
thereafter filed suit against the injured party for all of the money the health
insurer had paid out for the injured party's medical treatment, i.e., the
carrier sought an ERISA reimbursement. It had not asserted any claim for
reimbursement during the pendency of the litigation. The health insurer relied
on contract language in the insurance plan to argue that it was entitled to all
of its money regardless of how much a plaintiff had recovered from third
parties. The health insurer refused a request to reduce its claim by the amount
of attorney's fees and costs involved.
The Western
District Federal Court of Pennsylvania held that the health insurer's lien had
to be paid with no reduction for fees and costs, and ordered the injured party
to reimburse the entire payment.
The Third Circuit
Court of Appeals reversed, rejecting the health insurer's position under
equitable principles of law. The court ruled that although the benefit plan
administered by US Airways required beneficiaries to reimburse it for any money
recovered by a third-party, the District Court erred in ordering the injured
party to reimburse the insurer where the Order did not constitute appropriate
equitable relief under ERISA. The court observed that the relief available
under §502(a)(3) of ERISA is limited to "appropriate" equitable
relief. The court found that Congress had intended to limit the equitable
relief available under this section through the application of equitable
defenses and principles that were typically available in equity.
Accordingly, the
Third Circuit concluded that the District Court's ruling constituted
inappropriate and inequitable relief, and remanded the case back to the
District Court for a further hearing on the appropriate amount of the
reimbursement in light of this decision.
Vehicle Insurance Medical Expenses ERISA Plan
In Bieber v.
Nace, the federal Middle District Court ruled that ERISA preempts the MVFRL
from operating to bar or reduce recovery of medical expenses by plaintiffs. The
MVFRL cannot reduce or bar plaintiff's recovery of medical expenses paid by an
ERISA plan.
Plaintiffs filed suit arising out of a motor vehicle accident and
injuries. Defendants filed affirmative defenses including claims that
plaintiffs' recovery was reduced or barred by the provisions of the
Pennsylvania Motor Vehicle Financial Responsibility Law. Plaintiffs filed a
Motion in Limine, arguing that the defenses should be stricken since the
medical bills were paid by a self-funded ERISA plan which was making a claim
for reimbursement.
The District Court granted the motion. The court reviewed the pertinent
statutes and case law and found that the MVFRL cannot serve to reduce or bar
plaintiff's recovery of medical expenses paid for by ERISA.
Vehicle Negligence Discovery Social Network Profile and
Information
In Largent v.
Reed, the trial court ruled that information contained on plaintiff's
Facebook profile was discoverable because it was relevant, not covered by any
privilege and the request was reasonable.
This case arose out of the chain-reaction automobile accident. Plaintiffs
filed suit, claiming serious, permanent physical and mental injuries, as well
as pain and suffering. During the deposition of plaintiff-wife, defendant
discovered that she had a Facebook profile that she used regularly and had
accessed it the night before her deposition. Defendant filed a motion to compel
when plaintiff would not voluntarily turn over information about her Facebook
username and password. Defendant alleged that plaintiff's Facebook profile was
public and certain posts contradicted her claims of serious and severe injury.
The trial court granted defendant's motion to compel, finding that a
request for a party to turn over login information to their social networking
website profiles is not overbroad, if the requesting party has a good-faith
belief that investigation of that data will lead to the discovery of relevant
information.
The court declared that defendant had asserted a good faith basis for
seeking material on plaintiff's Facebook account. The information she sought
was relevant and might prove that plaintiff's injuries did not exist or were
exaggerated. The court also determined that there was no confidential social
networking privilege in Pennsylvania and no reasonable expectation of privacy
in material posted on Facebook because almost all information is shared with
third parties. Making a Facebook page private does not shield it from discovery
because even "private" Facebook posts are shared with others.
Finally, the court determined that defendant's discovery request was not
overbroad. The reasonableness of the discovery request is made on a
case-by-case basis. The court noted that photographs posted on Facebook are not
private and Facebook postings are not the same as personal mail. The court
declared: "Facebook posts are not truly private and there is little harm
in disclosing that information in discovery," citing McMillen v. Hummingbird Speedway, Inc., C.P. Jefferson County, No.
113-2010 CD, 2010 WL 4403285 (C.C.P.
The court did not believe that allowing defendant access would cause
plaintiff unreasonable annoyance. Here, defendant established a good-faith
basis for requesting access to plaintiff's private Facebook page because the
information was available on the public page a status update about going to
the gym and pictures of plaintiff enjoying life with her family.
Largent v. Reed, 29 Franklin Co. L.J. 128 (C.C.P.
November 8, 2011). Walsh, J.
Vehicle Negligence Discovery Social Network Profile and
Information
In Arcq v.
Fields, the trial court denied defendants' motion to compel information
about plaintiff from social networking websites, as defendants failed to show
any reasonable basis for believing that access to plaintiff's profiles would
yield any information relevant to the case.
Plaintiff and defendant were involved in a motor vehicle accident and
plaintiff filed a negligence action against defendant and his employer.
Defendant moved to compel information from plaintiff's social networking
website profiles, seeking information about plaintiff contained in his social
networking profiles such as MySpace, Facebook, LinkedIn and Twitter.
Plaintiff objected to interrogatories seeking the social network
information and argued that the materials were not relevant and plaintiff had a
reasonable expectation of privacy to such information. Defendants countered
that under other trial court cases, and one from the same court, the
information was discoverable. Defendants' motion alleged that plaintiff had
placed his medical, physical, mental and social conditions at issue in the
case.
The trial court denied defendants' motion to compel. The court emphasized
that in the cases cited by defendants, the parties had viewed the public
portion of the opposing parties' social networking profile, which contain
relevant information and, thus, had some reason to believe that the private
portion might contain relevant information as well. The requests at issue in
those cases where reasonably calculated to yield information that would lead to
admissible evidence.
Here, however, the court noted that defendants had not alleged any basis
for believing that plaintiff's social networking profiles contained any
information relevant to this case. The court stated that there was still a
question as to whether or not plaintiff even had a Facebook page or other
social media pages. The court also emphasized that defendant in this case had
not established that it had even viewed any public pages of any alleged
Facebook page for the plaintiff containing any information relevant to the
litigation.
The court declared: "While it is not an absolute necessity that a
plaintiff have a public profile before a defendant can be given access to the
private portion, it is necessary that defendant have some good faith belief
that the private profile may contain information."
The court also distinguished its holding from that in Largent v. Reed, wherein the court in
that case held that since the defendant had viewed a public portion of the
profile, then a good faith basis existed for the request to access the private
portion. "In essence, viewing relevant information on the public profile
acts as a gateway to the private profile."
Arcq v. Fields, C.P. Franklin County, No.
2008-2430 (C.C.P. December 7, 2011).
Herman, J.
Vehicle Negligence Negligence Per Se Vehicle Code
Violations
In Sodders v.
Fry, the Commonwealth Court ruled that plaintiff was entitled to a new trial
where the trial court failed to specifically instruct the jury on negligence
per se even though both parties admittedly violated separate provisions of the
Vehicle Code.
Plaintiff was traveling eastbound approaching an intersection waiting to
make a left turn. Three police vehicles were approaching from the opposite
direction. The officers were admittedly traveling 35 mph in a 25 mph zone while
responding to a disturbance call and none of the officers were using their
lights or sirens in violation of 75 Pa.C.S. §3105(c). After the first two
vehicles passed, plaintiff made a left turn and was struck by the third police
vehicle, operated by Officer Fry. Plaintiff was injured and filed a complaint
alleging negligence on the part of Officer Fry, Ohioville Borough and Ohioville
Borough Police Department.
At trial, plaintiff testified that he believed he had ample time to make
the turn given the posted 25 mph speed limit and his claim that the third
vehicle was approximately half a block away when he began to make his turn.
Plaintiff testified he was all the way or almost all the way through the
intersection when the collision occurred.
Officer Fry testified that he was dispatched for a disturbance at a local
bar and that it was standard procedure for officers to respond to disturbance
calls in excess of the speed limit without lights or sirens. Officer Fry claimed
he was two car lengths behind the police vehicle in front of him when plaintiff
began his turn and he was unable to avoid a collision. However, Officer Fry
admitted that he was required to use emergency lights and sirens when
responding to an emergency and that if he failed to do so, he was not entitled
to the privileges afforded to emergency responders under 75 Pa.C.S. §3105.
Officer Fry admitted that at the time of the accident, he was operating his
vehicle in violation of §3105 (emergency responder privileges) and §3362
(maximum posted speed limits).
Both plaintiff and defendants requested that the trial court instruct the
jury on the issue of negligence per se. Plaintiff argued that Officer Fry was
negligent as a matter of law because he admitted he violated §3362. Defendants
argued that plaintiff was negligent per se for violating 75 Pa.C.S. §3322
because he turned left at an intersection and failed to yield the right-of-way
to Officer Fry's oncoming vehicle. Defendants requested a jury charge regarding
negligence per se, specifically that if the jury found that plaintiff violated
§3322, then it had to find him negligent as a matter of law.
The trial court denied both requests and charged the jury on negligence,
contributory negligence, factual cause and the applicable sections of the
Vehicle Code. Six questions were submitted to the jury. The jury found that
Officer Fry was not negligent and did not answer the remaining questions as it
was instructed. The jury thus did not reach the question regarding factual
cause, whether plaintiff was contributorily negligent and the percentage of
causal negligence that was attributable to both parties.
Plaintiff filed a Motion for New Trial, which was granted by the trial
court. The trial court determined that it had erred in not specifically
instructing the jury on negligence per se as to both plaintiff and Officer Fry.
Defendants appealed the grant of a new trial, arguing that the failure to
charge the jury that Officer Fry was negligent per se did not cause plaintiff
any prejudice and the charge, as a whole, was correct.
The Commonwealth Court affirmed, finding that the trial court did not
abuse its discretion in granting plaintiff's motion for a new trial. The court
explained that the term negligence per se applies when an individual violates
any applicable statute, regulation or ordinance designed to prevent a public
harm. The court noted that once a plaintiff proves negligence per se, he still
cannot recover unless such negligence is proven to be the proximate cause of
the injury.
Here, Officer Fry did not use his lights and siren and thus failed to
comply with §3105 and was speeding in violation of §3362. Because Officer Fry
did not qualify for the privileges found in §3105, he was required to abide by
the posted speed limit. Plaintiff clearly proved violation of an applicable
statute and the jury should have been instructed on negligence per se. The failure
to do so resulted in an inaccurate description of the relative duties of care
in this case. It also prejudiced plaintiff because the jury found that Officer
Fry was not negligent and never reached any other issues including proximate
cause. Even if both Officer Fry and plaintiff were negligent per se, the jury
would still have to reach the issue of factual causation, and potentially
damages as well. "The trial court admittedly committed an error because
it's charge to the jury did not accurately reflect the law regarding negligence
per se or the duties of care.
We agree with the trial court that it was error
not to instruct the jury on the issue of negligence per se as to both parties,
and the trial court did not abuse its discretion in granting [plaintiff's]
motion for a new trial."
Sodders v. Fry, ___ A.3d ___, No. 403 C.D. 2011
(Pa.Cmwlth. December 9, 2011).
Pellegrini, J.
Vehicle Negligence Permissive Use of Vehicle Vicarious
Liability
In Price v.
Leibfried and Riviera Tavern, the Superior Court held that plaintiff
violated 75 Pa.C.S. §1574(a) by permitting an unauthorized and unlicensed
driver to operate her vehicle and was therefore vicariously liable for
defendant's negligence and could not recover damages from him.
Plaintiff and defendant Leibfried were involved in an automobile accident
where plaintiff was a passenger and defendant Leibfried the driver. Leibfried
rear-ended a tractor-trailer. Plaintiff was the owner of the vehicle, and
defendant Leibfried was unlicensed and also intoxicated. Just prior to the
accident, plaintiff and Leibfried had been drinking alcohol at defendant
Riviera Tavern. The blood alcohol content of Leibfried exceeded 0.21%.
Plaintiff filed suit against Leibfried and Riviera Tavern. Defendant
Leibfried filed a motion for summary judgment, averring that plaintiff was
vicariously liable for her own injuries.
The trial court granted summary judgment and held that plaintiff could
not recover from Leibfried because she was vicariously liable for her own
injuries for knowingly permitting an unauthorized/unlicensed person to drive
her vehicle and thus violated §1574 of the Vehicle Code.
The Superior Court affirmed, holding that summary judgment was proper by
the trial court because there was a "complete absence of evidence
suggesting that [plaintiff] did not give Leibfried permission to drive her
car." Consequently, as a matter of law, plaintiff violated 75 Pa.C.S.
§1574(a) and therefore was vicariously liable for Leibfried 's negligence. The
court noted that in her deposition, plaintiff stated that she knew, prior to
the accident, that Leibfried did not have a valid driver's license and knew
that he had been drinking. Plaintiff admitted that she felt impaired after
drinking at several bars with Leibfried and gave him the car keys.
The court found it was clear that there was no genuine issue of material
fact with respect to plaintiff's knowledge that Leibfried was unlicensed and
that she authorized him to drive her car. As a matter of law, plaintiff
violated §1574(a) and was vicariously liable for Leibfried's negligence. As one
vicariously liable for Leibfried 's actions, plaintiff could not recover damages
from him.
Vehicle Negligence SEPTA Sovereign Immunity Real Estate
Exception Slip and Fall on Icy Platform
In Nardella v.
SEPTA, the Commonwealth Court ruled that the real estate exception to
sovereign immunity in 42 Pa.C.S. §8522(b)(4) did not apply when plaintiff fell
on ice on a train boarding platform where the accumulation of ice on the SEPTA
platform did not constitute a defective condition derived or originating from
the real estate.
Plaintiff sustained injuries when she slipped and fell "upon ice
and/or other underlying defective conditions" on a SEPTA platform while
attempting to board a train. Plaintiff alleged in her complaint that SEPTA
owned, managed, possessed, controlled, and was otherwise responsible for the
maintenance of the platform, including the removal of ice and snow from the
platform, and SEPTA was responsible for keeping the platform in good and safe
condition so that the platform would not constitute a menace or danger to those
lawfully using the platform. Plaintiff averred that the accident was the sole
result of SEPTA's recklessness and negligence and that this negligence was the
sole and proximate cause of her injuries.
SEPTA filed its Answer in which it claimed it was entitled to the defense
of sovereign immunity under 42 Pa.C.S. §8521. SEPTA acknowledged that it had
sole responsibility for the station and its platforms, but asserted it was
entitled to summary judgment because ice on a platform did not constitute a
defective condition derived or originating from the real estate. Therefore,
plaintiff's claim did not fall within any exception to sovereign immunity.
The trial court agreed and granted summary judgment in favor of SEPTA.
The trial court explained that the dangerous condition ice on the platform
did not derive, originate or have as its source the Commonwealth's realty
itself. Rather, the court noted that the condition derived from precipitation
and freezing temperatures. The trial court held that this matter was
substantially similar to Lingo v.
Philadelphia Housing Authority, 820 A.2d 859 (Pa.Cmwlth. 2003) (holding
that debris on a stairway did not fall within the real estate exception as it
did not derive, originate or have the Commonwealth's realty as its source) and Kahres v. Henry, 801 A.2d 650
(Pa.Cmwlth. 2002) (concluding that sovereign immunity was not waived where the
plaintiff did not allege or present evidence that the dangerous condition, a
snow mound that encroached on a portion of the roadway, had derived,
originated, or had the Commonwealth's realty as the source of the condition).
Plaintiff appealed, arguing that (1) the trial court erred in granting
summary judgment because it improperly relied on the "on/off
distinction" to determine whether the ice on the platform was a dangerous
condition of SEPTA's real estate, and (2) that SEPTA's improper maintenance of
the platform precluded the grant of summary judgment under Jones v. SEPTA, 772 A.2d 435 (Pa. 2001).
The Commonwealth Court affirmed the trial court's Order granting summary
judgment to SEPTA. The court held that Jones
did not stand for the proposition that any failure to maintain the real estate
falls within the real estate exception to sovereign immunity. Allegations of
improper maintenance must result from a defect in the real property itself in
order to fall within the real estate exception. Thus, in order for a party to
assert a claim under this exception for injuries caused by a substance or an
object on Commonwealth real estate, the party must allege that the dangerous
condition derived, originated or had as its source the Commonwealth realty
itself.
The court noted that plaintiff's allegations of improper maintenance were
premised on SEPTA's failure to apply melting agents to address the accumulation
of ice on the platform. "These allegations of improper maintenance did not
result from a defect in the real property itself, which remains necessary under
Jones in order to fall within the
real estate exception pursuant to §8522(b)(4)." Because plaintiff neither
alleged or introduced any evidence that the ice on which she slipped was
derived, originated from, or had as its source a design or construction defect
in the platform itself, the court concluded that the trial court did not err in
granting summary judgment in favor of SEPTA.
The court also rejected plaintiff's allegation that SEPTA had a
responsibility or duty to provide the public with a general standard of care,
and that she had a "civil right of personal safety" that SEPTA violated
by not providing appropriate warning signs, lighting, and by allowing ice to
accumulate on the platform resulting in her fall. The court determined,
however, that even if SEPTA had a duty to provide the public a general standard
of care or that plaintiff had a civil right to personal safety which SEPTA may
have breached, the trial court properly granted summary judgment because
plaintiff could not establish that the cause of action was within one of the
exceptions to sovereign immunity under §8522(b).
Nardella v.
SEPTA, ___ A.3d ___, No. 123
C.D. 2011 (Pa.Cmwlth. November 30, 2011).
Jubelirer, J.
Vehicle Negligence SEPTA Sovereign Immunity Vehicle and
Real Estate Exceptions Assault on Subway Platform
In Derrickson v.
SEPTA, the trial court ruled that where plaintiff's injuries were the
direct result of the assaultive conduct of a third party, as opposed to a
defect of the land itself, his cause of action did not fall within the real
estate exception to sovereign immunity since there was no allegation that
plaintiff's injuries were caused by a defective condition of the land itself,
but were instead the result of the third party's assault.
Plaintiff was assaulted and injured by defendant Oberlton on a SEPTA
subway platform concourse in Philadelphia. Plaintiff filed suit against SEPTA,
the City of Philadelphia and Oberlton. Plaintiff argued that SEPTA can be held
liable under the vehicle liability exception for failing to protect him from
the assaultive conduct of third parties while he was on the subway platform
concourse.
SEPTA filed a Motion for Judgment on the Pleadings, arguing that as a
Commonwealth party, it was protected by sovereign immunity and that the
allegations in plaintiff's complaint did not allege acts or omissions that fell
within any exceptions to sovereign immunity. Specifically, SEPTA argued that
the vehicle exception to sovereign immunity, 42 Pa.C.S. §8522(b)(1), did not
apply because plaintiff's injuries were caused by Oberlton's assault, not by
the movement of a SEPTA vehicle or its parts. SEPTA further argued that the
real estate exception to sovereign immunity, 42 Pa.C.S. §8522(b)(4), did not
apply because plaintiff's injuries were caused by the conduct of any third
party, not by any direct defect of the land itself.
The trial court held that the allegations in the pleadings did not fall
within either the vehicle liability exception or the real estate exception to
SEPTA's sovereign immunity and thus there was no cause of action against SEPTA.
The court found that Pennsylvania courts have consistently held that a
Commonwealth party cannot be held liable under the vehicle liability exception
to sovereign immunity for criminal acts of third persons, citing Greenleaf v. SEPTA, 698 A.2d 170, 173
(Pa.Cmwlth. 1997). The court noted that in order for the vehicle liability
exception to apply, Pennsylvania law requires the plaintiff to show that his
injuries were caused by the movement of the vehicle or its parts.
The court also rejected plaintiff's argument that his cause of action
fell under the real estate exception to sovereign immunity. The court held that
the real estate exception only applies "where it is alleged that the
artificial condition or defect of the land itself causes injury, not merely
when it facilitates injury by acts of others."
Vehicle Negligence Specificity of Pleadings
In Tomsky v. EAN
Trust et al., the trial court held that plaintiff failed to plead facts of
a chain reaction car accident with sufficient specificity because they failed
to specify the order in which the vehicles involved were positioned in the
accident and whether they were static or in motion.
Plaintiff was involved in a multi-vehicle, chain reaction automobile
accident. Plaintiffs, individually and as administrator of the estate of
father, filed a complaint which stated that defendant Lowery diverted his
attention from the roadway and struck the vehicle immediately in front of his,
starting the chain reaction accident. Plaintiff's complaint stated only that
defendant Lowery's vehicle was at the end of the chain, but did not specify
where the other vehicles were located in the accident or which vehicle was
initially struck by defendant Lowery's vehicle.
Defendants filed preliminary objections, arguing that the complaint
violated the specificity requirements of Pa. R.Civ.P. 1019 in that plaintiffs
intentionally pled vaguely with regard to the actual facts of the accident.
Defendants objected to plaintiffs' failure to specify the order in which the
vehicles involved in the accident were positioned and whether the vehicles were
static or in motion. Defendants argued that such factual knowledge was readily
available to plaintiffs and that plaintiffs purposefully excluded these facts
so as to avoid any potential motions for judgment on the pleadings.
The trial court agreed with defendants and granted the preliminary
objections, noting that the positioning of the vehicles involved in such a
chain reaction accident, and whether the vehicles were moving or static, were
essential components of plaintiffs' case. Here, plaintiffs only averred that
their vehicle was located somewhere in front of defendant Lowry's vehicle and
that it was stopped. The complaint did not contain any facts from which the
court could determine the order of the vehicles and their movements. "As
plaintiffs' claims against defendants are based on the defendants alleged
negligence in operating their vehicle, these facts are vital to the claim and
plaintiff must plead them so that the defendants can prepare an adequate
defense or file the appropriate pre-trial motions."