In Wert v. Manorcare, 2015 Pa. LEXIS 2422, the Pennsylvania Supreme Court addressed the validity of a pre-dispute arbitration clause.

Decedent’s estate alleged that decedent suffered a multitude of injuries and illnesses while residing in Manorcare’s long-term skilled nursing facility. Manorcare filed preliminary objections seeking to enforce an arbitration agreement that plaintiff signed along with general admission paperwork. The agreement provided that the parties’ disputes “shall be resolved exclusively by binding arbitration…in accordance with the National Arbitration Forum Code of Procedure.” However, the NAF can no longer accept arbitration cases pursuant to a consent decree entered into with the Minnesota Attorney General.

The Supreme Court addressed whether the arbitration clause was integral and possibly severable. Even though plaintiff admitted that she did not read the agreement or the arbitration language, the Court found that due to the exclusivity of NAF’s conducting any arbitration, the provision was integral and non-severable.

Superior Court Reiterates Statute of Limitations under MCARE Act

The Superior Court reiterated the computation of the statute of limitations under the MCARE Act in Dubose v. Quinlan, 2015 Pa. Super. 223.

Plaintiff’s decedent was originally admitted to Albert Einstein Medical Center in July 2005 following injuries resulting from a fall at home. In August 2005, she was transferred to Willowcrest Nursing Home. During her stay at Willowcrest, until her death in October 2007, decedent was malnourished, dehydrated, and suffered from pain from bed sores, infections, and sepsis. In August 2009, plaintiff commenced a wrongful death and survival action. The jury ultimately found in favor of plaintiff and awarded damages.

On appeal, defendants claimed, inter alia, that the survival action was filed beyond the statute limitations, which they contend began to run in 2005 when decedent developed her first pressure wound. The MCARE Act (40 P.S. Section 1303.513) clearly provides that wrongful death and survival actions may be brought within two years of death. Consequently, the appeal was unsuccessful.

Superior Court Agrees that Recreational Rock Climber Assumed the Risk of Injury

In McGarry v. Philly Rock Club, 2015 Pa. Super. Unpub. LEXIS 3767, plaintiff was a recreational rock climber attempting a certain climbing style without safety harness equipment. Plaintiff signed a waiver, but injured herself when she fell from a height of four feet.

There was no dispute that because of the waiver, plaintiff was required to prove that defendant was grossly negligent (which is the entire absence of care and utter disregard of the dictates of prudence).

The Superior Court concluded that the danger was open and obvious, since there were multiple warning signs in the facility and plaintiff testified that she knew and appreciated the risk (and proceeded despite that risk). As such, the trial court did not err in granting JNOV to defendant. The Court found that even if defendant were grossly negligent, because plaintiff assumed the risk, defendant owed no duty to plaintiff and was not legally responsible for her injury.

Trial Court Finds Homeowner’s Lacked Insurance Coverage for ATV Accident

Plaintiff Catania was in attendance at a graduation party at plaintiff O’Brien’s residence, at which time Catania operated and crashed O’Brien’s all-terrain vehicle. The crash occurred on O’Brien’s property, though the ATV came to a rest in a neighboring yard.

O’Brien’s homeowner’s carrier, Ohio Casualty, denied coverage based on the exclusion of “a motorized land conveyance designed for recreational use off public roads.” O’Brien filed a declaratory judgment action, and the trial judge held that the location of the ATV accident cannot meet the policy definition of an “insured location.”

Catania contends that the trial judge read a limitation into the policy based upon a distinction between public and private roads and further narrowed the policy. There was no evidence to support the finding that O’Brien used the ATV on public roads. Consequently, the judge denied plaintiffs’ motions for post-trial relief.

Court Grants Motion to Admit Evidence of Plaintiff’s Conduct in Causing Injuries

Plaintiff commenced a products liability action under a theory of negligence and strict liability for injuries sustained in a kitchen fire. Plaintiff did not immediately leave the house after her fire extinguisher did not operate, and she moved the pot of oil in an attempt to remove the fire from her home. Defendant moved to admit the foregoing evidence, which motion the court granted.

In her opinion in McDaniel v. Kidde Residential, No. 2:12-cv-1439, US Dist. Ct., Western District, Pennsylvania, Judge Fischer explained that since plaintiff maintained a negligence cause of action, evidence of her conduct in causing her injuries are admissible to establish comparative negligence. To the extent plaintiff contended the evidence was inadmissible for purposes of their strict liability claim, the court found plaintiff’s actions to be highly relevant to the disputed facts, especially causation. Moreover, defendants can use the evidence for their assumption of risk defense, as well as their mitigation of damages affirmative defense (at least as to the negligence claim). Finally, the court determined that the evidence is admissible insofar as defendants could use the evidence in an attempt to impeach the plaintiff, whose credibility should be determined by the jury.