BBS Newsletter Archive: January 2000 Edition

Krause v. Blower Application - Plaintiff, a 50 year old mechanic, working at Philadelphia Newspapers, Inc.["PNI"] on a large industrial size paper shredder manufactured by Blower Application Company severed the first and second fingers of his dominant right hand when he caught them in the moving belt of the gearbox. Searching for the source of an unusual vibration, he opened the heavy solid steel access door to the gearbox to check if the parts, including a fast moving belt, was causing the vibration. Everything appeared normal. He claimed he closed the guard and turned one of two Allen head screws a few turns. He did not secure the guard with the two screws because he thought he would have to open up the guard again to work on the motor. He admitted on cross that if he had secured the guard with the two screws it would not have opened.

Plaintiff then reached over the guard and felt the motor housing. It appeared to be hot. He walked about 15 feet to the other shredder to check its motor, and walked back toward the guard he claimed to have closed. Plaintiff claimed that the vibration caused the one screw to back out, and the guard to open more than 90 degrees, and that he did not see that the guard was open. He further claimed that he tripped into the moving belt thereby severing his fingers.

Subsequent to the accident, PNI modified the guard by installing a window. Defendant filed a motion in limine, and plaintiff agreed not to mention this subsequent remedial measure. However, plaintiff sought to use the actual guard removed from the shredder during the testimony of his expert to demonstrate what the defendant could have done to make the guard safe. Since the defendant did not dispute feasibility, the court sustained its objection to the use of the modified guard. Then, on rebuttal plaintiff sought to introduce the actual guard into evidence by re-calling plaintiff to testify that since the modification, no moving parts inside the guard had broken through the window made of plexiglass and metal mesh.

Plaintiff's expert, engineer Manuel Raefsky, claimed the guard as designed by defendant was defective because it should have had a window made of bullet proof glass so the plaintiff did not have to open it to check for the source of the vibration. Second, it should have had a latch so plaintiff could have closed the guard and the guard would not have vibrated open. Third, there should have been a remote set of controls next to the guard interrupt power during maintenance and troubleshooting. This set of controls, he said would be interlocked to the main set of controls so no one could turn the machine on if plaintiff turned it off.

Defendant's CEO and part owner, Michael Young, and defendant's expert, Richard Otterbein, P.E. testified that the guard was safe as designed without a window, a latch or remote controls and complied with all industry standards for power transmission apparatus. First, to protect the worker a solid metal guard and not bullet proof glass was necessary to contain parts which could break including a four hundred pound gearbox. Second, a latch would not comply with industry standards because it could be opened by an unauthorized person such as an operator, and would not necessarily stay closed if the gearbox broke loose. Third, a remote set of controls was not safe or necessary. Plaintiff wanted the shredder running to troubleshoot, and if he turned the shredder off and then on, he could have put another machinist in harm's way who thought the machine was off.

Defendant also questioned plaintiff's claim that the guard vibrated open, contending that if the plaintiff closed it and put one screw in partially it was unlikely to vibrate open in the seconds it took plaintiff to check the other shredder and walk back. Moreover, if the guard vibrated open, defendant argued that plaintiff should have seen it was open and approached it in a careful manner so he would not have tripped. Defendant requested and received an assumption of the risk charge even though a non-suit was granted as to plaintiff's claim of negligence. After a three day trial before Judge Smythe of the Montgomery County Court of Common Pleas, the jury deliberated for less than 30 minutes before concluding that the shredder was not defective.

Daniel B. and Janella A. Landis v. John Esh and Sunny Mead Farms, Inc. – Sunny Mead Farms, a dairy farm in upstate New York, agreed to sell 35 head of cattle to a Pennsylvania cattle broker. The broker, in turn, resold the cattle to the plaintiff, a Pennsylvania dairy farm. The latter understood that Sunny Mead would arrange to vaccinate the cattle against "shipping fever," a contagious complex of respiratory symptoms, bacterial or viral in origin, associated with the stress undergone by cattle during shipping. The cattle were not vaccinated (it being disputed that there was an agreement that they would be and furthermore, it was disputed whether vaccination was even desirable) and shortly after the cattle arrived at the Pennsylvania dairy farm, an outbreak of respiratory problems ensued, affecting both the existing herd and the new arrivals.

Plaintiffs sued both the broker and Sunny Mead. Sunny Mead did not regularly conduct business in Pennsylvania and was not routinely involved in the interstate shipment of cattle. Preliminary objections were filed to the complaint on behalf of Sunny Mead, arguing that the maintenance of a lawsuit against it in Pennsylvania would violate its rights under the United States Constitution. The Lancaster County Court of Common Pleas, per Judge David L. Ashworth, agreed, holding that Sunny Mead did not purposefully avail itself of the privilege of conducting business in Pennsylvania. The court's decision was based, among other things, on the fact that Sunny Mead did not initiate the transaction, that all negotiations took place in New York State, and that the Pennsylvania cattle broker arranged for the transportation of the cattle into Pennsylvania. In fact, under Pennsylvania case law, even if negotiations had been conducted between Sunny Mead in New York and the plaintiffs in Pennsylvania by telephone or fax, those circumstances alone most likely would not have been found sufficient to allow Pennsylvania courts to exercise jurisdiction over the New York defendant.

Keystone Insurance Co. v. Martha and Zeca Muhlanga - Martha Muhlanga applied for auto insurance with Keystone Insurance Company in July 1997. The application asked her marital status which she listed as single. In fact, she was married to Zeca Muhlanga who had a terrible driving record including a number of instances of driving with a suspended license. Based upon the false information, the application was accepted and the auto insurance was renewed yearly. In April, 2000, Zeca was driving one of the insured vehicles and was involved in a serious accident. Keystone denied PIP benefits and rescinded the policy based upon the misrepresentation. It then filed a declaratory judgment action. The Muhlangas filed a counterclaim for the payment of PIP benefits.

Martha Muhlanga alleged that she did not have to disclose to Keystone her marriage to Zeca because they were "separated" from 1997-2000 and Zeca did not reside with her. Extensive discovery, including the review of tax records, motor vehicle records, employment records, and mortgage refinancing records revealed that Zeca Muhlanga always listed his address as that of his wife. Martha maintained that despite all of the records, Zeca, in fact, lived in Philadelphia with his adult son from a prior marriage. Nothing was produced substantiating such a living arrangement. The records and deposition testimony also revealed that Zeca maintained a key to the marital house, received all of his mail there; and, at times, drove vehicles owned by Martha Muhlanga and insured under the Keystone policy.

Judge M. Allan Vogelson of the New Jersey Superior Court, Law Division, Camden County, ruled in Keystone's favor finding that Martha Muhlanga engaged in material misrepresentation by lying on her application and not disclosing her marital relationship with Zeca. He noted that had Keystone been aware of Zeca's existence, it could have made an informed choice whether to accept the application. With respect to Zeca's residency, Judge Vogelson determined that it was irrelevant and did not create a material issue of fact because the misrepresentation occurred when Martha indicated on her original application that she was single. Keystone never considered Zeca's residence in its underwriting decision because it had no knowledge of his existence.

Ferree v. Compass Retail, Inc., et al. - The plaintiff was employed by Orange Julius, a food vendor in the defendant mall. She received a non-fatal jolt of electricity when she reached into a circuit breaker box within the Orange Julius leased space in an attempt to retrieve a key which had fallen into the box. Plaintiff alleged that the box was negligently maintained and in violation of applicable codes because there were openings in the box which should have been covered. As a result of the shock, plaintiff alleged burns and nerve injuries.

The lease between the mall and the tenant, Orange Julius, provided that the tenant was responsible for all interior portions of the premises except for structural aspects. Although the mall may have inspected and approved renovations to the space prior to the plaintiff's injury, there was no evidence that the mall ever specifically inspected the breaker box.

Under these facts, Judge Jeannine Turgeon of the Dauphin County Court of Common Pleas granted the mall's Motion for Summary Judgment and dismissed plaintiff's complaint. The court held inapplicable all of the six exceptions to the general principle that a landlord out of possession is not responsible for injuries occurring on leased premises. The court also held that the landlord's presence within the leased space, for unrelated reasons, did not amount to an inspection of the breaker box.

In claims of this nature, the most important considerations usually are the terms of the lease, the lessor's knowledge of a dangerous condition, whether the dangerous condition is in an area open for admission of the public, and whether the landlord has failed to make repairs after being given notice of a dangerous condition, or did so negligently. Instructive appellate cases on this subject are Dorsey v. Continental Associates, 591 A.2d 716 (Pa. Super. 1991) and Henze v. Texaco, Inc., 508 A.2d 1200 (Pa. Super. 1986).

Doe v. Dr. Roe – The plaintiff brought suit after the alleged unauthorized publication of "before and after" cosmetic surgery photographs of her face appeared on the website of Dr. Roe., a plastic surgeon in Philadelphia who has appeared on and advertised his services on the Howard Stern radio show. Plaintiffs sued Dr. Roe for invasion of privacy, breach of confidentiality, defamation and liable, intentional infliction of emotional distress, negligence and punitive damages. The court granted defendant's preliminary objections in part, and struck all claims except for invasion of privacy and breach of confidentiality.

After depositions of the parties and witnesses were taken Dr. Roe filed a motion for summary judgment arguing that the one year statute of limitations for the claims began to run in the fall of 1998, and therefore expired prior to the institution of suit in February, 2001. He further contended that plaintiffs could not make out a prima facie case of invasion of privacy or breach of confidentiality.

Prior to her plastic surgery on April 30, 1996, the plaintiff signed a "Request for Medical and Surgical Services" form which permitted Dr. Roe to utilize her before and after photographs. This document stated that the photographs might be used "as Dr. [Roe] might see fit ... for ethical publication in professional journals or books, ethical display in his office or for any other ethical purpose as long as my name is not used." Defendants argued that plaintiff's signing of that document gave him permission to use her photographs on his website [which was not in existence at the time she signed the document], and therefore, plaintiffs could not make out a prima facie case of invasion of privacy and/or breach of confidentiality.

Plaintiff argued that permission had not been given beyond use of the photographs in Dr. Roe's office photo album which was specifically discussed between the doctor and the plaintiff. The doctor denied that and said that the document plaintiff signed gave him permission to use the photographs, as long as he did not use her name for any unethical purpose. He contended that use of the photographs on the website was not unethical. Plaintiff also argued that since Dr. Roe advertised his website on the Howard Stern radio show which plaintiff argued was crude and degrading to women that her photographs were used in an unethical way. However, her photographs did not appear on the Howard Stern portion of Dr. Roe's website, and that was clear from the deposition of the webmaster.

Dr. Roe also argued in his motion for summary judgment that sometime in the Fall of 1998 plaintiff had enough information that the photographs at issue had been published by Dr. Roe, contrary to her wishes, to begin the running of the one year statute of limitations, and therefore, the statute expired in the Fall of 1999. Suit was not started until February of 2001. In that connection plaintiff testified that she was shocked and upset and lost approximately 20 pounds in the Fall of 1998 after a friend showed her the two before and after photographs that Dr. Roe had published. However, she decided to do nothing -- not even ask her friend where she got the photographs.

Dr. Roe retained personal counsel who wrote letters to plaintiff's counsel advising that if the suit was not dismissed that he would sue the plaintiff for wrongful use of civil process under the Dragonetti Act if the motion for summary judgment was successful or defendant prevailed at trial. The doctor also instructed his insurance company not to settle the case. Ultimately, the plaintiff did chose to withdraw her claims before the motion was decided.

Cheng v. Bracarella – On December 26, 2000, the defendant pulled from a stop sign and into the path of the plaintiff's car which did not have a stop sign. The plaintiff did not seek emergency room treatment. On December 28, 2000, the plaintiff allegedly began a six month course of chiropractic treatment for soft tissue injuries to the neck and back. Other than this alleged chiropractic treatment, the plaintiff had one consultation with a physical medicine and rehabilitation facility. The plaintiff purchased the full tort option.

The matter was arbitrated in May, 2002, and an award was entered in favor of the plaintiff in the amount of $12,000. The defendant appealed and the matter was placed in the February 2003 trial pool.

In preparation for trial, the defendant conducted a "fact" deposition of the treating chiropractor. At this deposition, the chiropractor admitted that he performed adjunctive therapy without a license. He also admitted that when he first began at the chiropractic facility where the plaintiff allegedly had treatment, he questioned the clinic owner about whether some of the patients actually needed treatment. The owner stated that those patients should continue to be treated for a few more weeks. After this initial inquiry, the chiropractor never again questioned whether patients actually needed treatment. The chiropractor also admitted that the clinic owner placed notes in patient charts directing that more treatment be given or better note taking with respect to patient injuries occur.

After this deposition, the plaintiff withdrew the action the next day.


		Newsletters Companies In Interest Letters Recent Legal Developments Articles



	HOME / FIRM PROFILE / SEMINARS & FIRM EVENTS / PUBLICATIONS / LOCATIONS / CLIENTS / contact / site map / search

	© Copyright 2003. All Rights Reserved. BENNETT, BRICKLIN & SALTZBURG LLP. 1601 Market Street, 16th Floor, Philadelphia, PA 19103, e-mail webmaster@bbs-law.com The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.