Upload
anapol-schwartz
View
6.450
Download
0
Embed Size (px)
DESCRIPTION
Philadelphia Lawyer Joel Feldman, Esq.'s Presentation on Pennsylvania Premises Liability.
Citation preview
PATLA Premises Liability
April 13, 2007Philadelphia Lawyer Philadelphia Lawyer - -
Joel D. FeldmanJoel D. Feldman
Anapol, Schwartz, Weiss, Anapol, Schwartz, Weiss, Cohan, Cohan,
Feldman & Smalley, P.C.Feldman & Smalley, P.C.
1900 Delancey Place1900 Delancey Place
Philadelphia, PA 19103Philadelphia, PA 19103
(215) 735-3716(215) 735-3716
[email protected]@anapolschwartz.com
Types of Premises Accident Cases
Slips, Trips, Falls and ElevatorsSlips, Trips, Falls and Elevators Recreation CasesRecreation Cases Security IssuesSecurity Issues Liquor Liability/Dram ShopLiquor Liability/Dram Shop Work Place SafetyWork Place Safety
Investigation
Plaintiff's interviewPlaintiff's interview Preservation of evidence Preservation of evidence SurveillanceSurveillance On-site inspectionOn-site inspection ExpertExpert
Potential Defendants
Property owner Property owner Facilities managerFacilities manager Independent contractorIndependent contractor/service /service
contractorcontractor Manufacturer and installerManufacturer and installer
elevator caseselevator cases General and sub-contractorsGeneral and sub-contractors
work place safety caseswork place safety cases
Depositions
Corporate designeeCorporate designee
Videotape deposition of Videotape deposition of defendantsdefendants
Law and Practice Pointers Outdoor CasesOutdoor Cases
snow and icesnow and ice defective walking surfacesdefective walking surfaces miscellaneousmiscellaneous
Indoor CasesIndoor Cases
Governmental EntitiesGovernmental Entities
Plaintiff's "Burden"
Beyond Breach and CausationBeyond Breach and Causation Plaintiff's Description of ConditionPlaintiff's Description of Condition NoticeNotice Mechanism of FallMechanism of Fall Is Injury Medically Consistent?Is Injury Medically Consistent? Plaintiff's ConductPlaintiff's Conduct Consistency of "Factual Scenarios"Consistency of "Factual Scenarios"
Status of Injured Person TrespasserTrespasser LicenseeLicensee Invitee - Business or SocialInvitee - Business or Social
Licensee
Does possessor know or have reason to Does possessor know or have reason to know of condition? know of condition?
Does condition involve an unreasonable Does condition involve an unreasonable risk of harm to those who will not risk of harm to those who will not discover condition?discover condition?
Fails to exercise reasonable care to cure Fails to exercise reasonable care to cure or warnor warn
Restatement (Second) of Torts §342Restatement (Second) of Torts §342
Ziack v. Inez Conocchia, Court of Common Pleas of Allegheny County, July 2006
Plaintiff admitted knew of change in Plaintiff admitted knew of change in elevationelevation
Plaintiff saw change in elevation before Plaintiff saw change in elevation before stepped over it stepped over it
Appreciation of what?Appreciation of what? Defect or seriousness of potential Defect or seriousness of potential
injury?injury? Was status of plaintiff really Was status of plaintiff really
determinative?determinative?
Snow and Ice Cases
Hills and Ridges ApplicableHills and Ridges Applicable Hills and Ridges Not ApplicableHills and Ridges Not Applicable
Hills and Ridges Doctrine Snow/Ice accumulated in ridges or Snow/Ice accumulated in ridges or
elevationselevations Size and character to unreasonably Size and character to unreasonably
obstruct travel and pose dangerobstruct travel and pose danger Actual or constructive noticeActual or constructive notice CausationCausation
What are Generally Slippery Conditions? Surrounding areas also icy?Surrounding areas also icy? Other sidewalks, parking lots free Other sidewalks, parking lots free
of ice and snowof ice and snow Roads and driving conditionsRoads and driving conditions Isolated patches Isolated patches
Rozelle v. Becker Associates, Court of Common Pleas
Columbia Cnty, June 2005
How to establish generally slippery How to establish generally slippery conditions conditions
Presence of defendant's snow Presence of defendant's snow crews working at time of accident crews working at time of accident (Restatement (Second) of Torts (Restatement (Second) of Torts §323§323
Herbst v. Inven Associates, Court of Common Pleas of Dauphin County, 1998
Where did the sheet of ice come Where did the sheet of ice come from? from?
Overnight sudden formation or Overnight sudden formation or continual conditioncontinual condition
Generally slippery condition is fact Generally slippery condition is fact issueissue
Oliveri v. Kavanagh, Court of Common Pleas of Northampton County, 2005
Plaintiff's testimony - snow storm Plaintiff's testimony - snow storm that day, no snow visible or any that day, no snow visible or any accumulation of snow and ice on accumulation of snow and ice on sidewalk where fell sidewalk where fell
Black iceBlack ice
Hills and Ridges
What's a plaintiff to say?What's a plaintiff to say? Hills and ridgesHills and ridges Ridges and elevationsRidges and elevations Peaks and valleysPeaks and valleys Humps and hillocksHumps and hillocks Size and characterSize and character
What worksWhat works What doesn'tWhat doesn't
Isolated Patches of Ice
Once establish isolated patch of Once establish isolated patch of ice - are you there? ice - are you there?
Peachey v. WalmartPeachey v. Walmart, Court of , Court of Common Please of Cumberland Common Please of Cumberland County, 2005 County, 2005
Where did the ice come from? Where did the ice come from? Plaintiff's burdenPlaintiff's burden
Restatement (Second) of Torts §323 Landowner undertakes to clear away ice Landowner undertakes to clear away ice
and snow and snow Ferencz v. MilieFerencz v. Milie, (Pa. 1987) , (Pa. 1987) Snow plowed, refroze, causing plaintiff's fall Snow plowed, refroze, causing plaintiff's fall Harvey v. Rouse ChamberlainHarvey v. Rouse Chamberlain, (Pa. Super. , (Pa. Super.
2006)2006) Defendants plowed the road and Defendants plowed the road and
subsequent thereto black ice formed subsequent thereto black ice formed Were conditions the result of an entirely Were conditions the result of an entirely
natural accumulation?natural accumulation?
Ice and Snow ~ Practice Pointers
Plaintiff should not admit generally Plaintiff should not admit generally slippery conditions existedslippery conditions existed
Plaintiff prepared to establish Plaintiff prepared to establish isolated patch of iceisolated patch of ice
Source of ice, i.e., from natural or Source of ice, i.e., from natural or artificial condition artificial condition
§323 Restatement (Second) of Torts §323 Restatement (Second) of Torts
Natural Accumulation v. Man-Made Condition
Topography, depressions, gutters Topography, depressions, gutters and and
Downspouts and outdoor Downspouts and outdoor structuresstructures
Non-Ice Slips, Trips, &
Falls
Steps and Ramps
Irregular risers or treads Irregular risers or treads Unexpected single stepUnexpected single step
Commercial Properties
Source - defendant or third party?Source - defendant or third party?
Conditions Created by Defendant - Notice is Presumed
Faulty freezersFaulty freezers Vegetable misters Vegetable misters Leaking roof Leaking roof Poor cleanupPoor cleanup
Conditions not Created by Defendant
Source of foreign substance - Source of foreign substance - unknown?unknown?
How does one prove notice?How does one prove notice?
Time
Shopping cartsShopping carts Footprints Footprints Drying around edges Drying around edges Plaintiff's experience with mopped Plaintiff's experience with mopped
floors - drying ratesfloors - drying rates
Campizi v. Acme Markets (Pa. Super. 2006)
Blind Acme employee's caneBlind Acme employee's cane Rounding corner of parallel aisles Rounding corner of parallel aisles Duty to warn invitees of risk posed Duty to warn invitees of risk posed
by disabled employee with caneby disabled employee with cane
Restatement (Second) of Torts §343A
Known and Obvious Dangers Known and Obvious Dangers Plaintiff's Duty v. Defendant's Plaintiff's Duty v. Defendant's
Duty Duty Control of Employee?Control of Employee?
Campbell v. Etiak (Pa. Super. 2006)
Chicken teriyaki lodged in throat Chicken teriyaki lodged in throat No restaurant employee trained in No restaurant employee trained in
Heimlich maneuverHeimlich maneuver What duty of care owed?What duty of care owed?
Governmental Entities
CommonwealthCommonwealth Local AgenciesLocal Agencies
Sidewalks – Dangerous Conditions Of
42 Pa. C.S.A. §852242 Pa. C.S.A. §8522 42 Pa. C.S.A. §854242 Pa. C.S.A. §8542
Jones v. SEPTA
Dangerous condition must have Dangerous condition must have "derived, originated or had as its "derived, originated or had as its source the realty itself"source the realty itself"
Real Property
Commonwealth Agencies - Commonwealth Agencies - "Dangerous Condition Of“"Dangerous Condition Of“
Local Agencies - "Care, Custody or Local Agencies - "Care, Custody or Control"Control"
City-Owned Sidewalks
Reid v. CityReid v. City
Sidewalk Under "Care, Custody, Sidewalk Under "Care, Custody, Control and Possession"Control and Possession"
Primary v. Secondary LiabilityPrimary v. Secondary Liability No Actual Defect in SidewalkNo Actual Defect in Sidewalk Sidewalk v. Real Property Sidewalk v. Real Property
ExceptionException
Real Property/Fixture
LoFurnoLoFurno (Pa. Cmwlth. 2006) (Pa. Cmwlth. 2006)
Sander bolted to floor and Sander bolted to floor and connected to dust collection connected to dust collection systemsystem
Moved occasionally for cleaningMoved occasionally for cleaning IntentIntent
Daubenspeck (Pa. Cmwlth. 2006)
Multiple accidents on interstate as Multiple accidents on interstate as a result of icea result of ice
State police presence State police presence State police v. PennDOTState police v. PennDOT
Elevator Cases
Misleveling Misleveling Door strikesDoor strikes Yo-yo effectYo-yo effect Stuck between floorsStuck between floors
Misleveling - Trips & Falls Doors start to open before floor Doors start to open before floor
level reachedlevel reached Elevator stopsElevator stops
Door Strikes
Door reopening devicesDoor reopening devices Mechanical optical - visible or Mechanical optical - visible or
infraredinfrared Fail safe"Fail safe"
Legal Considerations
Duty of careDuty of care InviteeInvitee Strict liabilityStrict liability
Res Ipsa Loquitor
Restatement (Second) of Torts Restatement (Second) of Torts §328(d)§328(d)
Ruling out other responsible Ruling out other responsible causescauses
Plaintiff's conduct - manual Plaintiff's conduct - manual override or abuse of sensor override or abuse of sensor elementselements
Statute of Repose
42 Pa. C.S.A. §5536 - 12 years42 Pa. C.S.A. §5536 - 12 years