For those unaware, government immunity is the doctrine that provides federal, state, and local governments with immunity against certain legal claims arising out of torts committed by a government employee, official, or agent. The doctrine comes from English law, which held that the crown could do no wrong. What this means today in Pennsylvania, in practical terms, is that in order to sue the Commonwealth of Pennsylvania, your case must fall into one of several exceptions to government immunity.

One of the exceptions to government immunity is the motor vehicle exception, which seeks to hold the government responsible for motor vehicle accidents caused by government employees acting in the scope of their employment as a government employee. The motor vehicle exception to government immunity essentially waives immunity where the negligent act that caused the plaintiff’s injuries involves the movement and operation of the government owned or controlled vehicle or its parts.

Continue Reading The Motor Vehicle Exception to Government Immunity in Pennsylvania

If you are partially at fault for a fall you may still be able to recover damages from a property owner. In most states your recovery will be reduced by your percentage of fault for the injury. Different states have different rules on how this applies. Some states use a strict “contributory” negligence standard of liability based on your actions. Most states, however, have switched to varying levels of a “comparative” negligence standard that balances the award against contributing fault for the injury.

  • Contributory Negligence: In states that follow the Contributory Negligence standard, if you are even 1% at fault you cannot recover any damages.
  • Pure Comparative Negligence: Under the “pure” comparative fault rule, which is used in New York, no matter who is more or less at fault, the property owner will pay the amount that equals the percentage of their contribution to the injury. If you are 90% at fault and the property owner is 10% at fault, your recovery will be 10% of the awarded damages.
  • Modified Comparative Negligence: New Jersey and Pennsylvania use the “Modified” or “51%” rule. Under this standard, if the injured party is at least 51% at fault, the property owner pays nothing. If the injured party is less than 51% at fault, that person can recover the percentage of negligence assigned to the property owner. For example, if you are determined to be 40% at fault for the accident, your award will be 60% of the amount deemed appropriate for the injury.

There are also complex issues associated with claims against more than one person or entity regardless of amount of contribution to the injury. In some cases, a plaintiff can recover the damage award from only one party in the case—the party at fault. In other cases they can recover all or part from any of the parties. For example, let’s say you file a claim against two property owners—the store owner and the owner of the building where the store is located. In court your comparative liability is determined to be 20%, and each of the property owners is allocated 40% responsibility for the injury. Instead of trying to collect 40% from each owner, you may be able to collect 80% from one or the other and let them wrangle with each other to be reimbursed. This makes it easier for a winning plaintiff to be “made whole” as quickly as possible. In these cases it is even more important to have an experienced attorney who can determine whether or not there is a good cause of action, analyze the chance for recovery, and make the case against more than one defendant.

If you have been involved in a slip and fall accident it is recommended that you consult with an experienced attorney in your area.

You slipped, you lost your balance, and you fell down and got hurt. Does this automatically mean it is the fault of the property owner? The answer is, “Maybe.” If the property is in disrepair or the owner knew about the risk and ignored it, you could have a claim. But before you start planning on the owner paying your medical bills, you should think about the conditions of the property, the steps the owner took to prevent an accident, and whether or not those steps were reasonable. Ask yourself these questions and then call an experienced, knowledgeable attorney who can assess your options for insurance claims, or, if warranted, for a negligence claim:

Continue Reading Falling Down: Is the Property Owner at Fault?

In a recent blog post, Tesla revealed that the Model S vehicle that was involved in a fatal accident on May 7 in Williston, Florida was in Autopilot mode at the time of the collision. This marks the first known fatality in a Tesla vehicle where Autopilot was active. The National Highway Transportation Safety Administration is currently in the midst of an investigation of the cause of the collision which is believed to include a determination of whether the Autopilot system was working properly at the time of the accident.

According to various news sources, the accident occurred when a tractor trailer drove across a divided highway and in front of the Tesla vehicle. Due to the height of the trailer, the Model S actually passed under the trailer with the initial impact occurring to the vehicle’s windshield. Tesla CEO Elon Musk stated on Twitter that the radar system used by the Autopilot feature did not help in this case because of the height of the trailer. According to Musk, the system “tunes out what looks like an overhead road sign to avoid false breaking events.” Tesla believes that the Autopilot system would have prevented the accident if the impact had occurred to the front or rear of the trailer.

This accident represents the first in what will undoubtedly be many similar accidents that will raise questions regarding the safety of Autopilot systems. Tesla is one of the first automakers to utilize such technology and they have reiterated that they require customers to sign an agreement acknowledging that the system is in a “public beta phase” before they can use it. Some driving experts have criticized Tesla for introducing an Autopilot feature too early believing that the system gives drivers the false impression that the car can handle anything it encounters. By way of contrast, GM has only tested their Autopilot feature privately and Volvo has indicated that they intend to take full liability for their cars when the feature is activated.

On September 18, 2015, the Honorable Stephanie A. Mitterhoff, J.S.C. denied YMCA’s Motion for Reconsideration of the denial of its Motion for Summary Judgment as to whether it is a charitable organization and entitled to immunity pursuant to the Charitable Immunity Act, N.J.S.A. 2A:53-7 (see “CIA”). Judge Mitterhoff found that the core business of the “modern day YMCA” is a fitness center providing gym memberships including classes for various physical activities (e.g. aerobics and racquetball) for a fee.

A comprehensive analysis was conducted by Judge Mitterhoff to determine that the YMCA is not organized exclusively for religious or educational purposes, and that the sole basis for such an argument were documents such as the Articles of Incorporation, Certificates of Incorporation, and Mission Statements, which generally stated that it is an organization established to “promote a moral, spiritual, physical and mental welfare of the young men and boys of the community.”

Continue Reading No Charitable Immunity for YMCA

For those of us who practice in the world of medical negligence, it is almost routine to receive Preliminary Objections from the defense moving to strike all allegations that contain references to unidentified agents, servants, employees, attending physicians, nursing staff, and other support staff. Despite what seems to be clarity in the law, the preliminary objections are filed time and time again.

Just several months ago the Superior Court of Pennsylvania once again clearly stated that such preliminary objections are not proper and should be overruled. This additional clarification came through the matter of the Estate of Arthur Denmark, by and through his Administrator Anthony W. Hurst, Sr. v. Mercy Health System and Mercy Philadelphia Hospital, et al., 2015 PA Super. 101, Filed April 28, 2015. In that matter, there were several issues raised on preliminary objections and the Court sustained preliminary objections on punitive damages and all references to unidentified agents, servants, employees, etc.

There was an appeal on a rather convoluted procedural history since the case had been marked, in part, nolle pros as opposed to non pros, and non pros was inapplicable because there was no failure to file a complaint, failure to file a certificate of merit, failure to be ready at the start of trial, or any discovery sanction. The Superior Court looked at this procedurally as if the case had been dismissed by way of summary judgment.

Continue Reading The Ongoing Saga of Preliminary Objections to Complaints on the Basis of Unidentified Agents, Servants, Employees, Physicians, etc.

A NY Times article published on January 29, 2016 addressed the increasingly problematic issue of drug shortages. According to the article authored by Sheri Fink, in recent years, shortages of all sorts of drugs “have become the new normal in American medicine.” Ms. Fink notes that The American Society of Health-System Pharmacists currently lists inadequate supplies of more than 150 drugs and therapeutics. The reasons for the shortages are varied: there may be manufacturing shortages, federal safety crackdowns, or the abandonment by pharmaceutical companies of low-profit products. Although pharmacists and physicians are acutely aware of the problem, the public is not.

The article observes that there are no satisfactory nationwide guidelines to determine who does and does not receive drugs, and what the pecking order is for distribution of scarce drugs to patients who need them. Pharmaceutical companies often sell their products to healthcare providers—doctors, hospitals, and other institutions—on a first come, first served basis, leaving the final decision of who gets what up to the doctors, pharmacists, and hospitals themselves.

Continue Reading Drug Shortages are Forcing Treatments to be Rationed

The Journal of Patient Safety discussed recent studies which have shown that preventable medical errors are responsible for between 200,000 and 400,000 patient deaths per year in U.S. hospitals. These errors include facility acquired infections, medication errors, omissions in treatment, communication errors between health care providers, nerve or vessel injuries, wrong operations, injuries to organs during surgical procedures, blood clots, diagnostic errors, and wound infections. The number of deaths caused by medical errors committed in a hospital, but which occur after a patient is discharged from a hospital, is equally large.

The cost of deaths due to preventable medical errors is obviously staggering in terms of the emotional loss felt by the family members and loved ones of those who have needlessly died, but the financial loss is shocking as well. By some estimates, medical errors cost the United States between $15 and 19 billion per year in additional medical costs including ancillary services, prescription drug services, and in-patient and out-patient care.

Interestingly, one study found that patients reported 3 times as many preventable adverse events than were indicated in their records. This study also found that physicians often refuse to report serious adverse events, with cardiologists being the highest of the non-reporting physician groups.

If you or a loved one has been the victim of medical malpractice, it is recommended that you speak with experience legal counsel immediately to discuss your situation.

Every holiday season brings out another new fad to sweep the nation, and this year is no different:  the hoverboards are here!  However, many are wondering just how safe are these new hoverboards—and the short answer is, it’s not safe at all.

While they do seem cool in theory, these hoverboards are actually less hover and more board.  More technically, it is a two-wheel, self-balancing mini scooter.

To everyone’s eternal consternation, today’s technology has not yet reached the point where we can replicate the ride that Michael J. Fox experienced in Back to the Future.

Initially, the concern was people would fall off of hoverboards and be seriously hurt.  However, that instinctual fear has fallen by the wayside as it has been replaced with a much more real and unpredictable problem–hoverboards are catching on fire.

Continue Reading Holiday Safety Concerns: Hoverboards Catching on Fire

According to a recent news release published by the Pennsylvania Gaming Commission, deer-vehicle collisions in Pennsylvania increase annually during the fall season due, in large part, to the fall breeding season. During the fall breeding season, deer tend to be moving around more than usual and they are not paying close attention to their surroundings as they may be preoccupied with finding a mate.

Here are some helpful tips for motorists to help avoid a dangerous collision with a deer:

  • Deer frequently travel in family groups, the crossing of a single deer does not mean that it is safe to proceed as other deer may be following closely behind;
  • The peak hours of deer activity are dawn and dusk, be sure to be extra alert during these times;
  • Slow down whenever you see hikers or hunters near a road as this may flush deer from forested areas;
  • Slow down whenever you are near farmers harvesting cornfields, many deer are flushed from fields as farm equipment approaches;
  • Keep your eyes peeled for the reflection of deer eyes and for deer silhouettes on the shoulder of the road;
  • Slow down where deer-crossing signs are posted, roads divide agricultural land from forestland and whenever you are in the vicinity of a forested area between dusk and dawn;
  • Assume nothing- deer tend to act in unpredictable ways. They have been known to stop in the middle of the road, cross quickly and then re-cross back from where they came, or move towards an approaching vehicle; and,
  • If you see a deer in the road, slow down and blow your horn. If the deer stays in the road just stop, do not try to drive around it.

If you have been injured in a crash with an animal and believe that your claim has been unfairly denied by your insurance company, please contact legal counsel immediately to discuss your incident.