Riverbank Law

Riverbank Law in Pennsylvania

A Pennsylvania business recently lost its claim to 4 acres of land along the Delaware River in Philadelphia, due to laws that date back to 1810.

The dispute has its beginning in a dredge and fill project that was run by several state, local and federal agencies in 1960. In order to shore up several piers supporting the Betsy Ross bridge in Philadelphia, the government agencies dredged and filled the riverbank. When the project was finished, 4 acres of additional land were exposed in a location where previously the soil had been completely submerged below the low water line. The business owned 10 acres which became directly connected to the additional 4 acres.

The business sued in 2010 to confirm that it now owed the entire area on the riverbank, now consisting of 14 acres. The trial court dismissed the business’s claims, noting that Pennsylvania law long has provided that all land under navigable rivers is owned by the Commonwealth “in trust” for the people. Natural build up and natural erosion both change a landowner’s riverside land rights, but “man-made” improvements belong to the Commonwealth.

The business appealed, acknowledging that Pennsylvania law does give the Commonwealth control of river beds, but claiming that the law should be changed. Arguing that modern methods of river engineering now put riverside landowners at more risk, the business asked the appeals court to modernize Pennsylvania river laws. The business noted first that many states have modernized their river laws, now giving title to newly exposed banks to the riverbank owners, as long as the owners did not cause the change in the river’s condition. The business also noted that riverbank owners are always at risk of losing large portions of their land to natural river changes and they are most deserving of a chance to reap the benefits of any enlargement of their land. Another concern raised by the business was that when the Commonwealth acquires newly created riverbanks, that acquisition can limit existing owners’ access to the river. Finally, the business noted that the Commonwealth is an absentee owner of many small pieces of river land under the current law and the newly exposed river banks are better manage if owned by existing, adjacent land owners.

The Pennsylvania appeals court rejected the well reasoned arguments of the business, noting simply that Pennsylvania laws going back to 1810 are clear and that the Commonwealth owns man-made additions to the river banks “in trust” for all the residents. The court did acknowledge that if a previous owners rights of access to the river are imperiled by newly created riverbanks, those rights will be protected by the courts.

Cite

Delaware Avenue LLC v. Dept. of Conservation, 997 A.2d 1231 (Pa. Cmwlth. 2010).

Medical Malpractice

Medical Malpractice in Pennsylvania

A Pennsylvania woman successfully sued her doctors and hospital over thirty six years after receiving questionable medical care.

The woman gave birth to her first child in 1965 and suffered serious circulation problems within hours of delivery. Her symptoms worsened over two days; her treatment included ‘cutdown” procedures on both arms. The “cutdown” procedures were minor surgical procedures in which small cuts were made in the woman’s arms to permit “dissection” of a vein and the insertion of a tube to administer medication and hydration.

For thirty six years after the birth of her child, the woman suffered from respiratory problems, shortness of breath and pain. Over those years she was hospitalized 16 times for treatment associated with her chronic respiratory problems and pain. In 2000, an echocardiogram showed irregularities in her heart; further diagnostic testing disclosed that she had a 12 to 18 inch tube imbedded in her heart, entwined through several chambers. The tube was so integrated into her heart muscle that it could not be surgically removed.

The woman sued the doctors who were involved in the 1965 cutdown procedure, and the hospital where it was done, claiming that the hospital failed to establish clear and safe procedures and that the doctors failed to be sure that all the tubes they inserted were removed from her body before they discharged her from their care.

The doctors and hospital initially won a dismissal of the case, claiming that the woman’s many hospitalizations since 1965 were possible sources of the tube. On appeal, the woman won her right to take the case to a jury. The appeals court found that the woman’s expert witness doctors all agreed that none of her post-1965 hospitalizations likely involved the use of a tube as long as the one in her heart. The woman’s experts also noted that the condition of the tube and the extent to which it was embedded in her heart clearly indicated it had been inside her body for a long period of time. Finally, the experts noted that her chronic health problems after the birth of her child were consistent with the tube’s presence in her body.

The appeals court found that the woman was entitled to take her claims to a jury. The court noted that experts in medical malpractice cases don’t have to be able to state with absolute certainty what occurred in the past. Instead, they need only express an opinion, within a reasonable degree of medical certainty, that malpractice has occurred. Because the highest standards and procedures must be used to be sure that all foreign objects are removed after surgical procedures, the court found that the woman was entitled to a trial on her claims.

Most people discover medical error very quickly. But in the rare cases where the effects of poor medical care are not identified for years, claimants still have the right to be heard, as long as they seek judicial relief promptly after discovering the medical malpractice.

Cite

See Stimmler v. Chestnut Hill Hospital, 981 A.2d 145 (PA 2009).

School District Residence Disputes in Pennsylvania

School District Residence Disputes

As parents gear up for back to school shopping and organizing, it is worthwhile to brush up on Pennsylvania laws that control where children are entitled to attend school.

The Pennsylvania School Code provides that school age children are entitled to attend the public school where their parents or physical guardians “reside.” Pennsylvania judges have interpreted the Code to require actual physical residence. Just owning a home in a school district doesn’t mean your children can go to school there; you have to actually live in the home to have to right to send your children to school in the district. Likewise, if you rent a home and consistently use it as your primary residence, your children are automatically entitled to attend school in that district.

Cases

When school districts challenge a child’s entitlement to attend, the courts review the facts closely. In one case, in order to meet the needs of their disabled child, a Pennsylvania family rented an apartment near a private school the disabled child attended. The mother and remaining children lived in the apartment regularly; they moved their possessions there and received their mail there. On alternate weekends, they returned to the family home in another county where the father continued to live to be close to his job. The family expected to continue in that living arrangement for 7 years while the disabled child was enrolled in the private school. The Pennsylvania appellate court found that the apartment was a legitimate and actual residence and that the children were entitled to public education in the district.

In a similar case, another well-meaning mother did not fare as well. After remarrying following the death of the father of her children, the mother moved into her new husband’s home. The children did not do well in the school district and the mother found the school at fault. She returned to the apartment where she had lived with the deceased father, staying there with the children several nights each week. Some mornings she left the apartment with the children, returned to the family home for breakfast and showers, and drove them back to school in the apartment’s school district. When the school challenged her entitlement to enroll the children, the court found that she was not actually residing in the apartment’s school district because she and the children did not regularly sleep there.

What Causes School District Residence Disputes?

Schools district residence disputes usually start when district administrators become concerned about a child’s residence status. Increasingly, the cases involve children living with grandparents or other relatives. The School Code says that when an adult is raising a child and “supporting the child gratis as if it were his own,” the child is entitled to attend school where that adult lives. No proof of written guardianship or adoption is necessary. But the adult can be required to sign a sworn statement that he is a resident of the district, that he is supporting the child gratis, that he will assume all personal obligations for the child relative to school requirements, and that he intends to so keep and support the child continuously and not merely through the school term.

Cites

See 24 P.S. §13-1302.

See also Peak v. Pen Argyl Area School Dist., 923 A.2d 563 (Pa. Cmwlth. 2007); Thane v. Cumberland Valley School Dist., 724 A.2d 978 (Pa. Cmwlth.1999), appeal granted 740 A.2d 235, affirmed 744 A.2d 1272.

 

 

Scope of Employment

Scope of Employment in Workers’ Compensation

Two similar cases show the fine line between work and “horseplay,” and the consequences to injured workers. A furniture delivery man who suffered serious brain injuries won workers’ compensation wage and medical benefits, but a college janitor who broke both ankles did not fare as well and was denied all benefits. Both men were injured in what Pennsylvania’s workers’ compensation courts call “horseplay,” when workers briefly engage in frivolous behavior at work. But one took the fun too far for the court’s toleration.

After finishing the delivery of furniture to a private home, the delivery man returned to the moving van with his supervisor. He placed his clipboard in the van and, then, on a sudden impulse, ran across the driveway and jumped up to grab the rim of a basketball hoop. Because the hoop was wet from rain, his hands slipped and he fell backward and hit his head on the driveway surface, sustaining serious and permanent head injuries.

The janitor completed a morning of dorm cleaning at a state college, and walked across the campus to eat lunch at a campus run restaurant. On the way to lunch, he impulsively jumped down a flight of twelve steps, later admitting he had been thinking for several weeks about whether he could successfully jump the whole flight of steps.

Outside Scope of Employment?

Initially, both employers denied workers’ compensation coverage to both men, claiming that their actions were outside of the scope of their employment, rendering the injuries non-compensable. After filing formal claims and appealing, the furniture delivery man was successful in recovering benefits but the janitor was not.

Generally, workers are entitled to wage and medical benefits only for injuries sustained “in the course and scope of employment.” Small, temporary departures from work to administer to personal comforts or convenience do not break the course of employment. Nor do “intervals of leisure” operate to take an employee outside of the course of his or her employment, as long as the intervals remain “inconsequential and innocent.”

Breaks Don’t Prevent Workers’ Compensation Benefits

Recognizing that all productive employees take short breaks, Pennsylvania’s workers’ compensation laws do not strictly scrutinize an employee’s conduct at the precise time of an injury. Instead, where an employee is at the workplace or, when traveling, the employee is substantially engaged in the employer’s business, the employee is deemed to be working. Traveling employees are given more leeway than are employees who work at a stationary work site since traveling employees need to find food and bathrooms, and the nature of their work engages them in varied activities.

As to the furniture delivery man, the court awarded him wage and medical benefits, finding it significant that the injured man’s supervisor testified that he was not troubled or offended by the man’s brief attention to the basketball hoop. The court also stressed that the delivery man’s conduct was not reckless or inherently dangerous since basketball is an ordinary pastime.

As to the janitor, the court denied all benefits for several reasons. First, because the janitor was on a lunch break and completely unrestricted during the break, the court found that his activities were “wholly foreign to his employment.” Additionally, the court noted that “the premeditated, deliberate, extreme, and inherently high-risk nature” of his jumping down an entire flight of stairs were sufficient to remove him from the course and scope of his employment even if he had not been on a lunch break. The court noted that a co-worker testified that several weeks before the incident the janitor had told her he thought he could jump the flight of stairs. She testified that she replied “the point was not whether he could make the jump, but where he would land.”

Employers are understandably frustrated when an employee receives benefits for an injury that he or she incurs on a break or while engaged in horseplay. Conversely, employees expect employers to accept the fact that everyone takes mini-breaks during the workday to refresh and renew concentration and energy. The nature and length of a departure from duties will ultimately make a huge difference in whether an injury is compensable or not. Employers who want to increase their protection against injury claims from horseplay can issue clear written directives banning horseplay; where such a rule exists and is clearly communicated to employees it can serve as a complete defense against horseplay injuries.

Cites

The Baby’s Room v. WCAB, 860 A.2d 200 (Pa. Cmwlth. Ct. 2004)

Penn State University v. WCAB, 15 A.3d 949 (Pa Cmwlth. 2011).