Bus Injuries

Jerk and Jolt – Bus Injuries in Pennsylvania

A woman who boarded a bus, walked down the aisle toward a seat and fell when the bus accelerated suddenly claimed that she was entitled to the benefit of the “jerk and jolt doctrine,” and should be compensated by the bus company for her back and neck injuries. On appeal, the Pennsylvania Commonwealth Court disagreed. Martin v. SEPTA, 52 A.3d 385 (Pa. Super. 2012).

Passengers injured in public transit must prove negligence in order to recover for damages for any injuries they suffer. An exception to the requirement that a passenger prove negligence by the driver or company is the “jerk and jolt” doctrine. That doctrine provides that a bus passenger can recover damages by simply proving that a jerk or jolt of the bus occurred that was so “unusual or extraordinary as to be beyond a passenger’s reasonable anticipation” or that the jerk and jolt “had an extraordinarily disturbing effect on other passengers.”

In the case involving the woman who fell in the bus aisle, the appellate Court noted that she failed to prove negligence and also failed to qualify under the jerk and jolt doctrine. No other passengers testified at trial, and no evidence was introduced that any passengers other than the injured woman were affected at all by the acceleration of the bus. The mere fact that the woman lost her balance and fell, without any other evidence, was insufficient to meet the jerk and jolt doctrine.

Bus passengers can’t observe the driver, the traffic and all the circumstances that can cause sudden movements of a bus. An injured bus passenger who is not able to prove negligence has a limited opportunity to recover damages if other passengers are “extraordinarily” disturbed by a jerk or jolt of the bus, or if the injured passenger can show that the movement was “beyond reasonable expectation.”

Responsibility For Auto Accidents

Responsibility For Auto Accidents

A Pennsylvania man who didn’t even consider himself involved in an accident was sentenced to three years in jail as a result of his conduct.Commonwealth v. Lowry, 55 A.3d 743 (Pa. Super. 2012), appeal denied, 63 A.3d 1245 (PA 2013).

Witnesses reported that the man drove his car out of a gas station at a high rate of speed, with spinning, smoking tires. Making a left turn as he exited the gas station, the man crossed two lanes of oncoming rush-hour traffic to enter the highway. Two of the oncoming drivers fish-tailed after suddenly braking to avoid the man’s car; their cars spun out of control and struck a car traveling in the opposite direction. One driver died as a result of the collisions. At trial several witnesses described the chaos; all the witnesses testified to sudden and reckless driving by the defendant driver of the car that sped out of the gas station and crossed the highway.

The man appealed from his jury trial conviction for the crime commonly known as “hit and run.” More formally titled “Accidents Involving Death or Personal Injury,” the crime of hit and run occurs when any driver of any vehicle “involved” in an accident resulting in death or personal injury leaves the scene. Drivers are legally obliged to stay at the scene of such an accident, render aid if they are able, and share personal identity and insurance information. Pennsylvania law recognizes that circumstances sometimes don’t permit a driver to stop immediately at the scene, particularly on major highways. The statute requires drivers to stop “as close to” the accident scene as possible, or to “forthwith return” and remain at the scene. Only accidents involving personal injury or death prompt hit and run liability.

In the man’s appeal, he first argued that drivers should not be deemed to have been “involved” in an accident unless their vehicles actually impact another car, person or property. The Pennsylvania Superior Court rejected his interpretation of the law, noting that the hit and run statute does not focus on the cause of the accident. The law requires that all drivers involved in an accident involving death or personal injury must stay at the scene, to provide information and assistance. Whether a driver caused the accident is not relevant; the obligation to stay at the scene binds all drivers involved in the accident. The Court refused to layer onto the law a requirement that a driver must have experienced some physical impact to be “involved” in an accident, noting that doing so would leave drivers free to run others off the road, with no impact, and then claim not to have been “involved.”

The man next argued that if he was legally considered to have been involved, he was not guilty of hit and run because he did not realize there was any accident. The Court rejected the man’s claim that he was oblivious to the accident. Noting that drivers are responsible for what they actually know, and also for what they reasonably should have known, the Court emphasized that the jury was apparently convinced by the witness testimony that the man knew or should have known there was an accident. Witnesses described a very loud collision, which “threw debris everywhere,” immediately after the man cut across the heavy oncoming traffic.

It certainly is not possible for drivers to be fully aware of the traffic events that occur in their rear view mirrors. And it is not always clear that an accident has caused personal injury. But in order to avoid criminal liability, all Pennsylvania drivers should stop at the scene of any accident in which they are involved and comply with the obligation to render aid and share information.

 

Fraternity Hazing

Fraternity Hazing in Pennsylvania

A University of Pittsburgh student won the right to sue the fraternity’s chapter adviser after the student suffered renal failure, seizures, and hypertension requiring three weeks of hospitalization and kidney dialysis due to injuries caused by protracted “paddling” during his fraternity initiation.

The Pennsylvania Superior Court held that while a national fraternity and its regional officers weren’t liable to the student, the individual assigned by the national fraternity as the chapter adviser was responsible to see that the national fraternity’s policies against hazing were enforced locally. Given the tragic history of death and serious injuries following fraternity initiation, the court found that national fraternities, local chapters, and any individual involved in fraternity administration are all potentially liable to injured students.

Actual Knowledge Required

However, to prevail on a claim against all defendants, an injured student must be able to show actual knowledge or actual failure to act on the part of each defendant. Because the injured student in the case before the court proved that the local adviser had not exercised sufficient supervision and control over the local chapter, the court permitted the student’s claims against the local adviser to go to trial. All claims raised by the student against the national chapter and regional administrators were dismissed because the student could not prove any knowledge or failure to act on the part of those defendants.

Hazing and abusive initiation practices aren’t limited to fraternities—they are encountered by students in sports, at camps, and in high schools. Groups, schools, coaches, administrators, and fraternities not only are legally required to issue policies banning hazing but are also responsible to take affirmative steps to prevent hazing. Individuals and groups found to be aware of hazing can be held legally responsible to those injured by this illegal practice.

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).

Injured Pedestrian Can Sue Utility Company

Injured Pedestrian Allowed to Sue PECO

A woman struck by a car as she walked to her bus stop was given the right to take her claims against the street light utility company to trial.

The trial judge made initial findings that the intersection where the woman was struck by the car was lit by streetlights owned by the utility company. The parties did not dispute that the lights were old, installed when the roadway was two lanes. The road had doubled in size and the street light was not modernized for over 30 years. The light was described as “antiquated” by the woman, who claimed it did not light the roadway fully. The utility company countered that its obligation to maintain the light was met when it inspected it regularly and replaced the bulbs as needed. The trial judge agreed and dismissed the woman’s claims against the utility company.

On appeal, the woman claimed that the utility company took on the responsibility to light the roadway, and thus was responsible to do it properly. Arguing that maintenance of the lights required more than “changing light bulbs every four years,” she sought the right to take her claims to a jury.

The appeal court agreed, noting that a jury may find that the utility company’s duty extended beyond merely providing the electricity and changing the bulbs. Because the question of whether a party used “reasonable care” is a question for the jury, the appeal court remanded the case for trial against the utility company.

When Children Sue

When Children Sue Due to Personal Injuries

Children who suffer personal injuries have the right to sue, but only can do so through a guardian. Usually a child’s parent serves as the guardian. In a recent Pennsylvania case, a trial judge substituted a lawyer as guardian ad litem for an injured child, but on appeal the child’s mother regained the right to manage the lawsuit. (See Reher v. Youst, 91 A.3d 183 (Pa. Super. 2014).

The Case

The child was a 15 year old girl who suffered from seizure disorder, global developmental delay and hearing problems. She was fed by a feeding tube and relied on daily nursing assistance for her routine care. One of the assigned nurses preferred to care for the child at her own home rather than at the child’s home, but that arrangement was not permitted by the agency. The nurse and the mother secretly agreed that the nurse would care for the child at her own home; only on the days the agency reviewed or monitored the nurse, would she and the child stay at the mother’s home. While at the nurse’s home, the child was extensively bitten by the nurse’s dog, resulting in serious facial and eye injuries. The eye injuries required a series of surgeries and it was expected that the child would require future surgeries as well.

Guardian ad Litem

After a period of delay, but before the time for filing suit expired, the mother sued the nurse and the agency for negligence and negligent supervision. The mother hired an attorney who filed the lawsuit and also entered into serious settlement negotiations. The agency and the nurse’s homeowner’s insurance company made substantial offers, but as the case proceeded to trial, confusion arose about the amount and detail of the offers. Just before trial, the trial judge appointed an attorney to take over the mother’s role and act as guardian ad litem for the child. The judge was critical of the mother’s failure to accept substantial settlement offers and concluded that she was not sufficiently focused on the child’s interest, but was instead motivated to get a larger offer or award for her own financial gain.

The mother immediately appealed and on appeal she won the right to act as sole guardian in the case. The Pennsylvania Superior Court held that a trial court does have the authority to substitute an attorney for a parent guardian in a personal injury case involving a child. But in doing so, the court must give valid reasons before setting aside the parent. Parents have a fundamental right in Pennsylvania law to make decisions regarding the care and control of their children. Largely due to the fact that the parties all disputed the history of the settlement offers and counter-offers, the appeals court found that the trial judge did not have enough reliable evidence that the mother was not acting in her daughter’s best interests.

Parents are entitled to bring lawsuits for their children, and are permitted to hire attorneys to do so. Trial judges may substitute an attorney as guardian ad litem for a child if sound reasons support the conclusion that the parent is not managing the litigation adequately.

Cancer Patient Sues Twice Due to Asbestos

Cancer Patient Sues Twice Due to Asbestosis

Exposure to asbestos can cause a myriad of illnesses, often manifesting many years after the exposure. Pulmonary asbestosis is a non-malignant asbestos-related lung disease; those who suffer from it are considered to be at a heightened risk for lung cancers. Certain lung cancers are recognized as related to asbestos exposure. Mesothelioma is a rare disease caused by asbestos exposure and characterized by tumors in the membranes that line the lungs, abdomen and heart. By 1989, the federal government banned most commercial use of asbestos in the United States. But considerable use and manufacturing of asbestos through the twentieth century, and its use in ships, buildings and the automotive industry led to high rates of asbestos diseases particularly among people who worked in industries like building, repairs and manufacturing where asbestos was widely used. Asbestos injury litigation cases make up a large docket that occupies a considerable amount of time for Pennsylvania courts.

Asbestos Liability

As asbestos liability law developed over the past forty years, Pennsylvania law recognized that one person can bring separate lawsuits if he or she suffers from more than one disease as a result of asbestos exposure. Called the “two disease rule,” and “the separate disease rule,” the rule recognizes that people exposed to asbestos can develop a myriad of diseases, sometimes over a long period of time. The rule initially provided that plaintiffs could bring a claim for a non-malignant asbestos related disease like pulmonary asbestosis, and later bring a subsequent action for a separately diagnosed malignant disease. Recently, the rule was expanded by the Pennsylvania Supreme Court.

The Cancer Patient’s Case

In the case before the Court, a man who suffered from pulmonary asbestosis and an asbestos related lung cancer sued a group of asbestos manufacturers in 1990 and settled his claims against them. Fifteen years later, the man was diagnosed with the rare, but clearly asbestos-related condition called mesothelioma. He sued again, and lost his second claims, on the ground that initially he had recovered for both a non-malignant and a malignant condition in his first lawsuit.

The Supreme Court of Pennsylvania reversed the dismissal and permitted the man’s claims to go forward, finding that the lower court had unduly restrictively analyzed the two disease rule. Noting that plaintiffs must bring their initial asbestos lawsuits within two years of the first signs of asbestos related conditions, the Court observed that asbestos plaintiffs struggle to manage claims because “exposure to asbestos may result in a variety of benign and malignant conditions, each of which may occur at widely divergent times.” The Court clarified that the “two disease” or “second disease” rule does permit a plaintiff to sue again for a later diagnosis of a “distinct malignant disease caused by the same asbestos exposure,” even if the settlement or verdict in a previous suit included compensation for an earlier diagnosed malignant disease.

Homeowner’s Insurance Coverage

Homeowner’s Insurance Coverage in Pennsylvania

Just about every homeowner carries insurance for losses from fire and other causes. But many insured homeowners don’t realize that their insurance policies include “vacancy clauses”. Such clauses suspend or restrict some insurance coverage if the home is vacant or unoccupied for 60 or more consecutive days before the occurrence of the loss. Pennsylvania’s “snow birds,” who winter in warmer climates, are at distinct risk for denial of their homeowner’s insurance coverage due to the operation of vacancy clauses.

If a homeowner takes an extended trip, temporarily relocates or even dies, a vacancy may exist under the term of the policy. If fire damage occurs, pipes freeze or other insured losses occur during such a vacancy, the insurance company may be entitled to deny all coverage even if the homeowner made the premium payments on time.

A Recent Case

In a recent case, a Pennsylvania woman’s heirs challenged an insurance company’s denial of fire insurance coverage. The heirs paid the annual premium on the woman’s existing homeowner’s insurance shortly after her death. But before the heirs could sell the house and settle the estate, the house was damaged by a fire which occurred 36 days after they had paid the annual fire insurance premium. In the course of investigating the claim, the insurance company discovered that the house had been vacant for more than 60 days before the fire. The heirs argued that their premium payment marked a renewal of the policy and that only 36 days had run on the new policy before the fire. The court acknowledged the renewal of the policy but noted that the vacancy clause was in both the old and the new policy. Since the house was actually unoccupied for more than 60 days before the fire, the court upheld the insurance company’s denial of the claim, “tacking” the vacancy period under the old policy to the 36 days which elapsed after the heirs’ renewal of the policy.

Unoccupied Houses

An unoccupied house poses higher risks of loss to an insurance carrier. Vacant properties not only attract vandalism, they also suffer more extensive damage in the event of an accidental fire or water leak. The occupants of an inhabited house can stop a small fire or water damage or can call for assistance from emergency responders. When no one is home, fire and water damage is often much more extensive. Homeowners who take long vacations or extended business trips and adult children who are managing their deceased parents’ homes have various options to assure that their coverage will not be denied. Policies are available, at an added expense, to insure vacant homes. Entrusting a home to a house-sitter or short-term tenant may prevent the occurrence of a vacancy. But care should be taken to understand the precise terms of a policy’s vacancy clause—-is occupation by the homeowner himself or herself required by the policy? Is a house-sitter acceptable but a paying tenant a trigger for denial of coverage? Reading your policy and communicating clearly with your agent or insurance company is an essential element in establishing adequate and appropriate homeowner’s insurance coverage.

For an excellent overview of how your homeowners’ insurance policy works, go to www.insurance.state.pa.us , where the Pennsylvania Insurance Commissioner maintains a collection of consumer brochures on insurance issues, including the brochure “Your Guide to Homeowners Insurance.”

Use of GPS Device Could Trigger Punitive Damages

If you are in a Car Accident – Use of a GPS Could Result in Punitive Damages

A Pennsylvania county trial judge has acknowledged that a driver who gets in an accident while using a GPS device may be found liable for reckless indifference and obliged to pay punitive damages, but only if the injured plaintiff can prove the driver had completely diverted his or her attention away from the road at a critical time.

A Driver, an Accident and a GPS

In the case before the judge, a driver of a van owned by the driver’s employer stopped at an intersection in order to make a left hand turn. While waiting for traffic to clear, the van driver looked at a global positioning system (GPS) device. As a motorcyclist entered the intersection, traveling toward the van, the van driver accelerated into his planned left turn. The motorcycle struck the van and the motorcyclist was injured.

The motorcyclist claimed that the van driver was “fidgeting” with his GPS device for a substantial time and had his eyes off the road for a substantial time. The van driver disagreed, claiming that he used a GPS application on his cell phone to find his destination and had placed the phone in the lower center console of his van, with the screen angled toward him as he drove. The van driver admitted glancing down at the cell phone as he waited to make the turn but denied having his eyes off the road when he made the turn.

The injured motorcyclist countered that the van driver’s employer prohibited its employee drivers from using GPS devices, and that the employer had failed to monitor its employees and to educate them about the dangers of using GPS devices while driving.

The judge recognized that the case presented a “novel issue of apparent first impression.” Recognizing that a driver who is looking at a GPS device at the time of an accident could be found liable for reckless indifference and punitive damages if the driver “completely diverts attention” from the roadway to “observe a low positioned GPS,” the judge focused on the facts of the case. Noting that the motorcyclist did not claim that the van driver was still looking at the GPS when he made the left turn, the judge dismissed punitive damages from the case.

The judge observed that punitive damages claims against motorists have traditionally been allowed in Pennsylvania cases only where a driver unreasonably ignored known or obvious risks in a manner that posed a high risk of harming others. For example, Pennsylvania courts have allowed punitive damage claims in cases involving actions such as drunken driving, operating a truck with an improperly secured load caused by a broken loading rack and ignoring a stop sign in a construction zone.

Emerging Law

The consequences for using electronic devices are only just emerging in the law, as their use is relatively recent. Pennsylvania has no state wide motor vehicle laws banning or restricting cell phone or GPS use while driving. In fact, across the U.S. no state bans all cell phone use while driving, although thirty-seven states ban all cell phone use by young drivers and twelve states prohibit using hand held cell phones and electronic devices while driving. Forty one states, including Pennsylvania, ban texting while driving. In the case involving the van and the motorcycle, the judge pointed out that because texting while driving poses a much higher likelihood of driver distraction, it clearly poses a greater risk to pedestrians and other motorists than does a driver’s merely talking on a cell phone or using a GPS device.

No Pennsylvania appellate court has yet ruled on whether punitive damages claims can be brought against a driver for using an interactive wireless device at the time of an accident. Throughout Pennsylvania, at the trial court level, judges have generally found that the use of an electronic device while driving is not always negligent but depends on the facts of the case. But in light of the recent state wide ban on texting, now it is always negligent to text while driving.

Use Caution with GPS Devices

It is important that drivers recognize that the position of the GPS device, the extent of the driver’s distraction, and the distance traveled by the vehicle during that period of diversion will be critical factors in a court or jury’s decision whether a driver engaged in outrageous conduct and is thus liable for punitive damages. Positioning your GPS device on the dashboard or windshield will support your claim that you were attentive to the road while using your GPS device. A driver who momentarily glances at a GPS device affixed to his or her windshield while maintaining a peripheral view of the road likely would not be liable for reckless indifference or wanton conduct, but a driver who completely looks away from the road to consult a GPS device located in his or her lap or somewhere other than the dashboard or windshield is at risk for a punitive damages award.

Sources

See Rockwell v. Knott.

For an overview of state laws on cell phone and texting bans, see www.ghsa.org.

Government Liability for Dangerous Roads

Is there Government Liability for Dangerous Roads?

A state senator’s letter on file with the Pennsylvania Department of Transportation (PennDOT) gave an injured motorcyclist a chance to recover damages against the state. State and local governments have very limited liability to people who are injured as a result of dangerous road conditions. But where it can be proved that the state had written notice or actual knowledge of the dangerous condition, injured claimants may have a case.

In the case involving the motorcyclist, she was seriously injured when she hit a pothole on a state road in western Pennsylvania. Before the accident, a local state senator had written a letter to PennDOT, advising that the stretch of road was dangerous and that “patchwork has caused more problems than it has solved.”

The senator’s letter described the road as “in disrepair” and asked for immediate corrective action. A PennDOT representative acknowledged the letter in writing and advised that major improvements to the road were planned but that no funding was available to start the project.

Actual Written Notice

Pennsylvania statutes provide that if a state agency has actual written notice of potholes or sinkholes or “other dangerous conditions” of state roads, the state is not immune from lawsuits for personal injuries. Similarly, Pennsylvania statutes hold local government agencies like townships and cities to task for road conditions about which the agencies have “actual knowledge.” Actual knowledge can be proved by the minutes of public meetings or by the statements of city or township officials.

PennDOT was successful in getting the motorcyclist’s case dismissed at the trial level—the agency claimed that the senator’s letter was too general to have given written notice of pothole problems, as it did not even use the word “pothole.”

But on appeal, the Pennsylvania Commonwealth Court disagreed, noting that the letter was detailed, identified the road adequately, and mentioned that “patchwork” had created dangerous conditions. Because the letter had been sent in adequate time for PennDOT to investigate and repair the pothole, the court found that the motorcyclist was entitled to take her claims to a jury trial.

In a previous case, the Commonwealth Court had found that written notice to the state cannot consist of a telephone message taken down by a state employee, however detailed the message may have been. State and local governments can’t keep all roads in perfect condition at all times; but written or actual notice of particular dangerous conditions can make state and local government liable to injured parties.