TORTS

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

CIVIL CONSPIRACY

 

Under Pennsylvania law, a conspiracy claim consists of (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of common purpose; and (3) actual legal damage. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

If the plaintiff is unable to allege facts as direct evidence of elements (1) and/or (2), he or she must allege facts that, if proved, would support an inference of the combination and its intent; further, bare allegations of civil conspiracy. Sloan v. Macintyre, et al., 65 Som. L.J. 216 (2013)(Klementik, J.)

 

DEFAMATION

 

In an action for defamation, the plaintiff has the burden of proving: (1) defamatory character of the communication; (2) publication by defendant; (3) application to plaintiff; (4) understanding by recipient of its defamatory meaning; (5) understanding by recipient that it is intended to be applied to plaintiff; (6) special harm resulting to plaintiff; and (7) abuse of a conditionally privileged occasion.  42 Pa. C.S.A. § 8343(a).  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

The defendant has the burden of proving, when relevant to the defense: (1) truth; (2) privilege; (3) public concern.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

Only statements of fact can support an action for libel or slander, not merely expressions of opinion.  Whether a communication is opinion is a question of law.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

It is within the trial court's province to determine whether the challenged statements are capable of having defamatory meaning.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

A conditional privilege arises when communications are made on a proper occasion, for a proper motive, in a proper manner, and are based on reasonable cause.  E.g. (1) when some interest of the publisher of the defamatory matter is involved; (2) when some interest of the recipient of the matter or a third party is involved; or (3) when a recognized interest of the public is involved.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.) 

 

Depending on the importance of the publisher's actions to society, a privilege may be absolute or conditional/qualified.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.)

 

DEFENSES – ASSUMPTION OF THE RISK

 

The defense of assumption of the risk is still a viable defense.  Hartman v. Miller, et al., 51 Som.L.J. 202 

 

The defense of assumption of the risk will be available to a defendant where the facts are such as to indicate that the defendant owed no duty to the plaintiff because of the nature of the plaintiff's knowing and voluntary conduct before the accident.  Hartman v. Miller, et al., 51 Som.L.J. 202 

 

Persons conducting baseball games have no duty to warn or protect participants against risks which are common, frequent, expected and inherent in the activity itself.  Hartman v. Miller, et al., 51 Som.L.J. 202 

 

Pennsylvania has preserved the doctrine of assumption of risk with respect to downhill skiing.  Downhill skiing is a sport with such inherent risks that it is a complete defense when a plaintiff assumes those risks.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

Pursuant to the assumption of risk analysis, a claimant cannot prevail if the defendant can show that plaintiff knew of the risk, appreciated its character, and voluntarily chose to accept it.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc. 60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

Although the existence of knowledge, voluntariness, and reasonableness are usually questions of fact for the jury, where reasonable persons could not differ as to the conclusion, the issue may be decided by the court.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

The concept of strict or primary risk assumption should not be equated with lack of duty.  Although, it may be said that in every case where the plaintiff has assumed the risk there is no duty, the reverse is not true; thus, when viewed from the duty perspective, assumption of the risk may or may not be a part of the duty analysis.  Angle vs. Hidden Valley Resort, L.P., successor-in-interest to the Hidden Valley Ski, Inc., 61 Som. L.J. 66 (2002) (Fike, II, P.J.) 

 

Downhill skiing is a sport with such inherent risks that it is a complete defense when a plaintiff has assumed those risks. 42 Pa.C.S.A. §7102. 

 

In order to determine whether the defense of assumption of the risk is available under 42 Pa.C.S.A. §7102(c), the court utilizes a two part inquiry which asks 1) whether the Plaintiff was engaged in the sport of downhill skiing at the time of his injury, and, if so, then 2) whether the risk that allegedly caused Plaintiff's injury is one of the "inherent risks" of downhill skiing. If the risk was inherent to downhill skiing, then Plaintiff cannot recover for his injuries as a matter of law.  The risk of falling and the risk of ski bindings not releasing are two of the inherent risks of  downhill skiing.  Hamilton v. Hidden Valley Ski, Inc., Hidden Valley Resort L.P. & Hidden Valley Farm Inc., 61 Som.L.J. 93 (2003) (Cascio, J.) 

 

As a general rule, the doctrine of assumption of the risk has been replaced in Pennsylvania by a system of recovery based on comparative fault in the Comparative Negligence Act, 42 Pa.C.S. § 7102(a)-(b).  Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000). 

 

The doctrine of voluntary assumption of the risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (b).  42 Pa. C.S. § 7102(c).  This section has specifically preserved the doctrine of assumption of the risk as applied to injuries suffered while engaged in downhill skiing.  Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 341 (Pa. 2000). 

 

As applied to sports and places of amusement, the courts of Pennsylvania have held that a defendant does not owe a duty to protect from any hazards that are inherent in the activity.  Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343 (Pa. 2000). 

 

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill.  It includes those other activities directly and necessarily incident to the act of downhill skiing.  Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.  Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). 

 

"We find it reasonable to conclude that the Pennsylvania General Assembly. . .  did not intend to include ski lift operator negligence as an inherent risk of downhill skiing in § 7102(c) of the Judiciary Act."  Hamilton v. Hidden Valley Ski, Inc., 61 Som. L.J. 93, 110 (2003). 

 

An "inherent risk" is "one that cannot be removed without altering the fundamental nature of skiing."   Crews v. Seven Springs Mountain Resort, 874 A.2d 100, 105 (Pa. Super. 2005). 

 

We find that the negligent operation of a ski lift is a risk that can be removed without altering the fundamental nature of skiing.   Chepkevich v. Hidden Valley Resort, 62 Som. L.J. 324 (2005) (Upor, J.) 

 

DEFENSES – RELEASE

 

Generally, releases from liability are not favored, but they are enforceable in certain each party must be a free agent, not simply drawn into an adhesion contract.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONSHIP

 

Since defendants are themselves parties to the alleged contract, a cause of action for conspiring to interfere with that contract will not lie against them.  Hardhat Mining, Inc. v. Toth, et al, 50 Som. 69 

 

A cause of action for tortious interference with a prospective business relationship is established by pleading (1) a prospective contractual relations, (2) the purpose or intent to harm plaintiff by preventing the relationship from occurring, (3) the absence of a privilege or justification on the part of the actor, and (4) the occurrence of actual harm or damage to plaintiff as a result of the actor's conduct.  Windridge Farm, LLC v. Hearn t/a Delmont Grain & Feed, 61 Som.L.J. 178 (2003)(Cascio). 

 

The tort of tortuous interference with a prospective business contractual relationship contemplates a relationship, prospective or existing, or some substance, some particularity, before an inference can arise as to its value to the plaintiff and the defendant's responsibility for its loss.  Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.) 

 

If at trial it is proven that failure to pay commission was in violation of standard business practices, this will negate any privilege or justification under the third element of a cause of action for tortuous interference.  Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.) 

 

Violation or recognized ethical codes for a particular area of business activity or of established customs or practices regarding disapproved actions or methods may also be significant in evaluating the nature of the actor's conduct as a factor in determining whether his interference with the plaintiff's contractual relations was improper or not.  Windridge Farm, LLC v. Delmont Hearn and Elizabeth Hearn t/a Delmont Grain & Feed, 61 Som.L.J. (2003) (Cascio, J.)

 

INTENT (WILLFUL AND RECKLESS CONDUCT)

 

An actor engages in willful and reckless conduct where he desires to bring about the result that follows, or at least that he is aware that it is substantially certain to ensue.  Miller et al. v. Sybert et al., 54 Som. 82

 

Recklessness includes situations where the actor intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of the fact which would lead a reasonable man to conclude that such conduct creates an unreasonable risk of bodily harm to the other.  Miller et al. v. Sybert et al., 54 Som. 82 

 

The phrase "willful or malicious" conduct under the Recreation Use of Land and Water Act is the same duty as is owed to gratuitous licensees under the Restatement (Second) of Torts § 342.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

The "willful or malicious" standard as set forth in the Restatement (Second) of Torts § 342 has been equated by the courts with the common law duty of landowners to avoid "willful or wanton" conduct toward trespassers.  Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (October 15, 1997) (Fike, P.J.) 

 

Willful misconduct is addressed by 42 Pa.C.S.A.§8550.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

In order to prove willful misconduct, it must be shown that the actor desired to bring about the result that followed, or at least it was substantially certain to follow.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

Willful misconduct is synonymous with the term intentional tort.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

This desire to bring about the result that followed, or was substantially certain to follow, has been characterized as specific intent.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.). 

 

In order to sufficiently state a cause of action for willful misconduct, a complaint must set forth facts establishing a specific intent to cause the result.  Hampe v. Brown, et al., 59 Som.L.J. 228 (2001) (Gibson, J.).    

INTENTIONAL MISREPRESENTATION

 

To prevail on a cause of action of intentional misrepresentation, a plaintiff must show that there exists:  (1) A representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intention of misleading another party into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Laurel Mountain Ski Company v. Tudor Insurance Company, 65 Som.L.J. 1 (2010) (Klementik, J.).

 

 

MASTER-SERVANT RELATIONSHIPS

 

The four factors to be used in evaluating whether employee conduct is within the scope of the employee's employment are: 1) it is of the type and nature for which the employee was hired to perform; 2) it occurs substantially within the authorized time and space limits; 3) it is conducted to serve the employer; 4) where force is intentionally used by an employee against another, the use of force is not unexpected by the employer.  Restatement (Second) of Agency § 228; R.A. v. First Church of Christ, 748 A.2d 692 (Pa. Super. 2000).  Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 333 (2002) (Gibson, J.).

 

Restatement (Second) of Torts § 317 states:  A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if a) the servant i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or ii) is using a chattel of the master, and b) the master i) knows or has reason to know that he has the ability to control his servant, and ii) knows or should know of the necessity and opportunity for exercising such control.  Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 333 (2002) (Gibson, J.).

 

MISCELLANEOUS

 

For an application of the doctrine of Res Ipsa Loquitur to be appropriate the Plaintiff must prove each of the three elements set forth in section 328D of the Restatement (Second) of Torts. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som. L.J. 188 (2009) (J. Cascio).

 

It is counterintuitive to infer negligence on the part of the vehicle manufacturer simply from the occurrence of an accident involving the vehicle. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som. L.J. 188 (2009) (J. Cascio).

 

A Defendant is only liable for harm caused by a defect in their product and therefore, in order to succeed on a breach of warranty claim, the Plaintiff must prove the product was defective. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som. L.J. 188 (2009) (J. Cascio).

 

MISREPRESENTATION

 

Misrepresentation may be fraudulent, negligent, or innocent.  Walker v. Revco, 50 Som. 319 

 

The elements that fraudulent, negligent, and innocent misrepresentation have in common are false information of a material fact, justifiable reliance, causation, and pecuniary loss; the distinguishing element is the state of mind of the person who supplied the information.  Walker v. Revco, 50 Som. 319 

 

Three theories of misrepresentation exist: intentional misrepresentation, negligent misrepresentation, and innocent misrepresentation.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

Intentional misrepresentation or fraud contains the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

Negligent misrepresentation contains the following elements: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

A misrepresentation may be actionable pursuant to any of three separate theories: intentional misrepresentation, negligent misrepresentation, and innocent misrepresentation.  Reckner v. Baker, 59 som.L.J. 327 (2002) (Gibson, J.). 

 

The elements of intentional misrepresentation are: (1) a representation, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, (4) with the intent of misleading another into relying on it, (5) justifiable reliance on the misrepresentation, and (6) the resulting injury was proximately caused by the reliance.  Reckner v. Baker, 59 som.L.J. 327 (2002) (Gibson, J.). 

 

Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact, (2) made under circumstances in which the misrepresenter ought to have known its falsity, (3) with an intent to induce another to act on it, and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.  Reckner v. Baker, 59 som.L.J. 327 (2002) (Gibson, J.).

 

MOTOR VEHICLE FINANCIAL RESPONSIBILITY LAW – LIMITED TORT ELECTOR

 

Under 75 Pa.C.S.A. § 1702, a “serious injury” is defined as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The “serious impairment of body function” threshold contains two inquiries (1) What body functions, if any, was impaired because of injuries sustained in a motor vehicle accident; and (2) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment need not be permanent to be serious. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Although the evidence, when taken in the light most favorable to the Plaintiff, does show that he was injured in the accident, the impairment resulting from that injury is clearly de minimis such that he cannot recover as a limited-tort elector. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The question to be answered is not whether the Plaintiff has adduced sufficient evidence to show that she suffered any injury; rather, the question is whether the Plaintiff has shown that she has suffered a serious injury such that a body function has been seriously impaired. Clearly, it is insufficient for the Plaintiff to show that there has been some injury – no matter how minor – in order to avoid the entry of summary judgment against him. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Under the first prong of the Washington test, it must be determined whether any body function is impaired. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment is the fact or state of being damaged, weakened, or diminished. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Plaintiff’s first impairment is not serious because the record fails to reflect that the impairment has ever had a practical effect on Plaintiff’s everyday life, her injuries have consistently been diagnosed as mild, and the treatment for her injuries was never extensive. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment that is not permanent must be even more significant in extent or treatment or some other factor to qualify as being serious. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The Court holds that the second impairment is clearly de minimis because, like her inability to stay seated, it seems to have had little or no impact on the performance of her job functions and engagement in personal activities. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

NEGLIGENCE – ASSUMPTION OF RISK DEFENSE (SKIER’S RESPONSIBILITY ACT) – GENERALLY

 

The legislature enacted the Skier’s Responsibility Act to specifically preserve the doctrine of assumption of risk in regards to the sport of downhill skiing. Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

Summary judgment is appropriate where under the Act if the following is met:  first, it must be determined whether the plaintiff was engaged in the sport of downhill skiing, at the time of her injury.  If that answer is affirmative, it must then be determined whether the risk associated with the plaintiff’s injury is one of the “inherent risks” of downhill skiing, which the plaintiff is deemed to have assumed under the Act.  Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

NEGLIGENCE – ASSUMPTION OF RISK DEFENSE (SKIER’S RESPONSIBILITY ACT) – INTOXICATION ALLEGED

 

Under the Act, a skier does not voluntarily accept the risk of being hit by a fellow sportsman who is under the influence of alcohol. Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

Where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication.  Such evidence must reasonably establish a degree of intoxication which proves unfitness to act where reckless or careless conduct is the matter at issue. Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

To successfully defeat a motion for summary judgment, a plaintiff who was engaged in the sport of downhill skiing at the time of his or her injury and is alleging the defendant was intoxicated at that time must show that the defendant’s consumption of alcohol reasonably establishes his or her intoxication such that it is legally relevant under Pa.R.E. 403.  If and only if such a plaintiff does so, a genuine issue of material fact exists, and it is appropriate for the jury to determine whether the risk associated with the injury was “inherent” to the sport. Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

The Court holds that Plaintiff has provided the Court with no evidence of intoxication that reasonably establishes a degree of intoxication which proves unfitness to ski where reckless or careless skiing is the matter at issue:  the evidence does not indicate, before the accident, that Hatala consumed an intoxicating amount of alcohol, and after the accident, that he displayed the symptoms of intoxication.  At the most, the evidence establishes that Hatala had alcohol in his system at the time of the accident – which results when one simply consumes alcohol, even if that amount is not enough to intoxicate him or herself.  Frazzini v. Hatala, Hidden Valley Resort, LP, et. al, 64 Som.L.J. 442 (2010) (Klementik, J.).

 

NEGLIGENCE – DUTY OF CARE

 

Although in some cases the concept of duty has been joined with the concept of proximate or legal cause into one analytical framework, the "duty" issue can be treated as a distinct question, separate from the concept of proximate cause.  McClintock v. Works, 54 Som. L.J. 216 (Aug. 10, 1995) (Fike, P.J.) 

 

The determination of whether a duty exists will depend on the facts of each case.  Consequently, until sufficient information exists to establish with certainty that a duty did not exist and that liability can be eliminated, summary judgment will be denied.  McClintock v. Works, 54 Som. L.J. 216 (Aug. 10, 1995) (Fike, P.J.) 

 

The participant-invitees are expected to discover and realize the common, frequent, and expected risks inherent in the activities in which they partake. Angle vs. Hidden Valley Resort, L.P., successor-in-interest to the Hidden Valley Ski, Inc., 61 Som. L.J. 66 (2002) (Fike, II, P.J.) 

 

Pennsylvania law places the burden on the plaintiff to establish the existence of negligence on the part of the defendant by proving four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.)

 

Pennsylvania law imposes a general duty “on all persons not to place others at risk of harm through their actions. Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.)

 

For a risk of harm to be deemed reasonably foreseeable, the likelihood of the harm actually occurring must move beyond the realm of mere possibility and into the realm of probability.  Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.).

 

A duty can exist in cases involving vehicles that are stolen after the ignition keys are left inside them, but the circumstances giving rise to that duty are quite limited. Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.).

 

A duty can exist in cases of this type only when the plaintiff is able to point to specific facts that placed the defendant on notice that (1) his vehicle was likely to be stolen, and (2) that the thief was likely to drive the vehicle in a negligent or reckless manner.  Elswick v. Lincoln, 63 Som.L.J. 449 (2007)(Geary, J.).

 

Under any duty of care the Plaintiff must establish requisite knowledge on behalf of the Defendants before a breach of duty can be found. The actions of the Defendant must then be unreasonable or expose the Plaintiff to an elevated foreseeable risk of harm. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som. L.J. 188 (2009) (J. Cascio).

 

The 2006 Supreme Court case of Farabaugh is instructive in regards to the interpretation and application of Section 414 of the Restatement (Second) of Torts, “Negligence in Exercising Control Retained by Employer.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

Section 414 is an exception to the general rule that “landowners employing independent contractors are exempt from liability for injuries to an independent contractor’s employees absent an exercise of control over the means and methods of the contractor’s work.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

Section 414 “explains the requisite degree of control” that a landowner must exercise in order to be held liable under it. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

In order for the rule stated in [Rest 2d] Section [414] to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

In most, if not all, cases that our appellate courts have considered in riling on this motion, the defendant was present in its capacity as a supervisor or site manager when the accident that gave right so the claim occurred. Such presence – standing alone – does not subject an entity to liability: “In order for the rule stated in [Rest 2d] Section  [414] to apply, the employer must have retained at least some degree of control over the manner in which the work is done. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

“The purpose of the rule expressed in Comment (c) is to insulate one employing an independent contractor from liability when the employer possesses only a general right of inspection and supervision . . .” . Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

There is a distinction between a site manager that “possesses only a general right of inspection and supervision,” e.g., one that merely has the authority to coordinate its independent contractors, and a site manager that subjects itself to liability in its exercise of such authority. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

FPL had the authority to coordinate the work of its independent contractors. However, there is no evidence that indicates FPL exercised this authority negligently. The extent of FPL’s control was that it required Vestas’ employees to ask it for permission before performing maintenance work on a tower. FPL did not retain the amount of control that Comment (c) requires simply because it was present in its capacity as a site manager. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

It was not FPL’s directive regarding when Decedent could paint the tower that led to his death; it was the method by which Decedent went about performing this directive. Responsibility for locking out the tower belonged with Vestas and, that day, Decedent had absolute discretion in regards to ensuring his safety. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

“The very phrase ‘independent contractor’ implies that the contractor is independent in the manner of doing the work contracted for.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

What the evidence does not show is that FPL “retained at least some degree of control over the manner in which the work [was] done” by Vestas, “the contractor who [was] engaged to do the work and who presumably kn[ew] more about it than [FPL}.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

Pennsylvania adopted the “peculiar risk” or “special danger” exception in the Supreme Court case of Philadelphia Electric Co. v. James Julian, Inc. Specifically, the exception is “found in [S]ections 416 and 427 of the Restatement (Second) of Torts.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

In practice, these two sections have been interpreted as one exception. Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

Under these sections, “the employer remains liable for injuries resulting from danger which he should contemplate at the time he enters the contract, and cannot shift to the contractor responsibility for such dangers, or for taking precautions against them.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

“[T]he peculiar risk/special dangers provisions are not intended to apply to ‘the taking of routine precautions of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work.’”  Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

If “the employer exercise[d] reasonable care in selecting a competent contractor, liability for failing to take precautions will not attach.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

“The exception requires a ‘two fold test: (1) whether the risk is foreseeable to the owner at the time the contract is executed . . . and (2) whether the risk is different from the usual and ordinary risk associated with the general type of work done.’” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

“The risk/danger must be recognizable in advance and contemplated by the owner at the time the contract was formed.” “It must not be a risk/danger ‘created solely by the contractor’s ‘collateral negligence,’ . . . [i.e.,] negligence consisting wholly of the improper manner in which the contractor performs the operative details of the work.’” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

FPL cannot be held liable because the requirement that the risk be different from the usually and ordinary risk is not satisfied. To be such a risk, it “must be one caused by something other than the contractor’s negligence. Here, the work that Decedent was to perform “was nothing more than a common routine worksite procedure, [which] require[ed] protective measures[.]” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.).

 

NEGLIGENCE – EXCULPATORY CLAUSES

 

Absent fraud or a confidential relationship, a party that does not read an agreement before signing it, is not absolved from its effect.  Angle vs. Hidden Valley Resort, L.P., successor-in-interest to the Hidden Valley Ski, Inc., 61 Som. L.J. 66 (2002) (Fike, II, P.J.) 

 

Contracts providing for immunity from liability from one's own negligent acts are disfavored by the law and therefore require strict adherence to the above elaborated standards.   Hamilton v. Hidden Valley Ski, Inc., Hidden Valley Resort, L.P. & Hidden Valley Farm, Inc., 61 Som.L.J. (2003) (Cascio, J.) 

 

Exculpatory clauses are not favored in Pennsylvania, and all ambiguities will be construed against the party seeking the benefit of the clause. "However, such clauses are valid and enforceable if certain conditions are met."  Angle v. Hidden Valley Resort, L.P., 61 Som. L.J. 66, 85 (2002). 

 

Absent clear language addressing negligent conduct of the Defendants' employees, we cannot grant Defendant immunity from liability from its own negligent acts.  Hamilton v. Hidden Valley Ski, Inc., 61 Som. L.J. 93, 98 (2003). 

 

The exculpatory clause in question is valid under the analysis applied by the courts of Pennsylvania, and its language specifically disclaims any liability for negligent acts on the part of the Defendant or its employees.  As a result, the Plaintiffs may not bring suit on the basis of negligence against the Defendant for injuries suffered while engaged in the activity detailed in the release, which specifically includes riding the chair lift.  Chepkevich v. Hidden Valley Resort, 62 Som. L.J. 324 (2005) (Upor, J.)

 

NEGLIGENCE – ELEMENTS

 

A cause of action for negligence has four essential elements: (1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff; (2) a breach of that duty by the defendant; (3) a causal connection between the defendant's conduct and the injury suffered by the plaintiff; and (4) actual loss or damages suffered by the plaintiff.  The burden of proving the existence of negligence rests upon the party who has asserted it.  Scanlan v. Lasky, 55 Som. L.J. 49 (June 9, 1997) (Cascio, J.); Tucker v. Seven Springs, 56 Som. 264; Angle vs. Hidden Valley Resort, L.P., successor-in-interest to the Hidden Valley Ski, Inc., 61 Som. L.J. 66 (2002) (Fike, II, P.J.)

 

To aver a viable cause of action in negligence, a plaintiff must aver in his complaint the following elements: (1) a duty or obligation, recognized bylaw, requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks, (2) a failure on the defendant's part to conform to the standard required: breach of duty, (3) a reasonably close causal connection between the defendant's conduct and the resulting injury to the plaintiff, and (4) an actual loss or damage resulting to the interest of the plaintiff.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

In any negligence action the Plaintiff has the burden of proving each of the four elements set forth by Morena v. South Hills Health Systems. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som. L.J. 188 (2009) (J. Cascio).

 

NEGLIGENCE – GENERALLY

 

Plaintiff's cause of action for negligent repair may rest on a different foundation from products liability.   Bell v. Bud Smail, et al., 54 Som. 71 

 

Although there does not appear to be Pennsylvania authority specifically addressing the viability of a tort cause of action for negligent repair, the court analogizes to those cases involving performance of personal services where disappointed customers, clients or patients my sue on alternative assumpsit and negligent workmanship theories.  Bell v. Bud Smail, et al., 54 Som. 71

 

A plaintiff must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services as a necessary prerequisite for maintaining such suits in trespass on a theory of negligence.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.).

 

No negligence claim can be based upon a state of facts on which the law does not impose the duty upon the defendant in favor of the plaintiff.  Tunstall et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.). 

 

As a matter of law, when losses are alleged which are purely economic in nature, and there is no allegation that the alleged defects cause any personal injury, losses cannot be recovered in negligence or in strict liability.  Otto and Otto v. Fristick, d/b/a Steem Kleen Flooring, 60 Som. L.J. 290. (2002) (Gibson, J.).

 

NEGLIGENCE – PREMISES LIABILITY

 

Pennsylvania follows section 384 of the Restatement (Second) of Torts, “Liability Of Persons Creating Artificial Conditions On Land On Behalf Of Possessor For Physical Harm Caused While Work Remains In Their Charge,” which provides: “One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge.” Nielsen, Administratrix of the Estate of Niels Otto Andersen v. Vestas Wind System, 64 Som.L.J. 382 (2010) (Klementik, J.).

 

A subcontractor has a duty to exercise reasonable care where : (1) the work entrusted to it is capable of creating a dangerous condition; (2) it creates a dangerous condition; and (3) it realizes or should realize that the third-party subcontractor will not take steps that are necessary to protect him or herself from the dangerous condition. Nielsen, Administratrix of the Estate of Niels Otto Andersen v. Vestas Wind System, 64 Som.L.J. 382 (2010) (Klementik, J.).

 

Case law establishes that an electrical subcontractor is liable if it created the dangerous condition from which the plaintiff could not protect himself. In this case, Plaintiff cannot recover because Decedent – not VAWT – created the dangerous condition by failing to follow protocol, by failing to “lock out” the wind tower. Nielsen, Administratrix of the Estate of Niels Otto Andersen v. Vestas Wind System, 64 Som.L.J. 382 (2010) (Klementik, J.).

 

Even if the Court determined that VAWT had created a dangerous condition in Tower 19, Plaintiff still could not prevail under Section 384: VAWT’s employees knew that the tower was having fault issues; however, the Restatement makes it clear that the fact that FPL had entrusted the Recovery Plan work to Vestas Denmark is sufficient to warrant VAWT’s assumption that Decedent would take the steps necessary to perform the recovery plan work, unless there were circumstances that indicated he would not do so. There were no such circumstances here. Nielsen, Administratrix of the Estate of Niels Otto Andersen v. Vestas Wind System, 64 Som.L.J. 382 (2010) (Klementik, J.).

 

Because OSHA’s “provisions do not deal with the assignment of liability among contractors” OSHA’s finding that VAWT violated its provisions does not provide Plaintiff with an independent basis upon which recovery may be sought. Nielsen, Administratrix of the Estate of Niels Otto Andersen v. Vestas Wind System, 64 Som.L.J. 382 (2010) (Klementik, J.).

 

NEGLIGENCE – PREMISES LIABILITY – BUSINESS INVITEES

 

A business invitee is a person invited to enter or remain on the land of another for a purpose directly related or indirectly connected with business dealings with the possessor of the land.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.).

 

The landowner is under an affirmative duty to protect a business visitor against known dangers and against those which might be discovered with reasonable care.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

The owner is not the insurer of the patron's safety and has no duty to protect a business invitee against known and obvious dangers.  Thomas v. Seven Springs Mountain Resort, t/a/d/b/a Seven Springs Farm, Inc.  60 Som.L.J. 47 (2000) (Fike, P.J.). 

 

NEGLIGENT ENTRUSTMENT

 

A negligent entrustment claim requires pleading that the entrustor knew that the entrustee was incompetent at the time of the entrustment, as stated in Restatement (Second) of Torts §308.  Cugini v. Kearcher and Mardis Ford-Lincoln-Mercury, Inc., 60 Som. L.J. 402 (2002) (Cascio, J.).

 

PRODUCTS LIABILITY

 

In a products liability action based on design defect, it is manifestly clear that without a showing of a defect, the supplier of a product has no liability under section 402(A) of the Restatement Second of Torts. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 173 (2009) (J. Cascio).

 

The determination of whether a product is unreasonably dangerous is a question of law which is to be determined by the trial court. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 173 (2009) (J. Cascio).

 

The Superior Court of Pennsylvania has set forth seven (7) factors that a trial court may use to determine whether a product is unreasonably dangerous. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 173 (2009) (J. Cascio).

 

It is not sufficient for an alternative design to “reduce one type of risk while creating other undesirable effects.” Instead, the alternative design must be safer overall. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 173 (2009) (J. Cascio).

 

A product is not defective or unreasonably dangerous simply because accidents may occur during its use. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 173 (2009) (J. Cascio).