This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.
Published: March 24, 2016
By: Richard Ogrodowski
In certain circumstances, a vehicular death can be avoided through the state or municipalities installing traffic devices to make a road less dangerous. In Angell v. Dereno, 2016 WL 913139 at *1 (Pa. Cmwlth. Mar. 10, 2016), the Commonwealth Court of Pennsylvania addressed whether the trial court erred in granting summary judgment (this is a finding by the trial court that there are no issues for a jury to decide) to Ross Township and West View Borough (“Ross and West View”) in a wrongful death action where the mother sought to recover damages for the accidental death of her son, which occurred when the son’s motorcycle was clipped by an oncoming truck on a road near the boundary of Ross and West View. At the time of the accident, the son was heading down a hill and the truck was heading up the same hill, which had a limited sight distance. The mother argued the road was dangerous where the accident occurred and that Ross and West View had notice of the dangerous condition.
In reversing the trial court, the Commonwealth Court of Pennsylvania found that it was for the jury to decide whether Ross and West View had notice of the dangerous condition of the road and whether the danger could have been addressed with Ross and West View installing traffic control devices. In fact, the mother’s expert, Dr. Ronald Eck, recommended warning signs that stated “Limited Sight Distance” and “Danger Blind Hill Slow”. He also recommended that a stop sign should have been installed, which would have prevented the accident. Thus, a jury will decide whether Ross and West View were negligent.
Published: March 15, 2016
By: Richard Ogrodowski
In our experience, family members of someone who has died due to the fault of others, only recover the full value for their claims by filing a lawsuit, and certainly by consulting and working closely with a lawyer. Fortunately, most civil lawsuits are able to be resolved, or settled, before trial, although sometimes a trial is necessary.
In Pennsylvania, there are formal steps the lawyer representing the family of a wrongful death victim must follow to ensure the finality of a wrongful death case settlement. In general, settlements in wrongful death cases filed in Common Pleas Courts in Pennsylvania must be approved by a judge, sometimes by judges in two divisions of the Court. Rule 2206 of the Pennsylvania Rules of Civil Procedure and the local rules of the Court of Common Pleas in the county where the lawsuit has been filed are the starting points for this court-approval process.
In the Court of Common Pleas of Allegheny County, Pennsylvania, when a party seeks to have a settlement of a wrongful death case approved, including the share of the settlement proceeds to which each wrongful death beneficiary will receive, the party’s lawyer must present a formal and detailed petition to the Calendar Control Judge of the Civil Division of the Court of Common Pleas. This procedure is discussed in Allegheny County Local Civil Rule 2206.
When a minor or incapacitated person is a wrongful death beneficiary, the lawyer representing the family must first present the settlement approval petition to the Administrative Judge of the Orphans’ Court Division of the Court of Common Pleas. Once the Administrative Judge of the Orphans’ Court Division has approved the petition, the family’s lawyer must then present the settlement approval petition to the Calendar Control Judge of the Civil Division of the Court of Common Pleas.
In addition to following the local rules of the Court of Common Pleas in the Pennsylvania county where the wrongful death lawsuit has been filed, the family’s lawyer must also follow the requirements of Rule 2206 of the Pennsylvania Rules of Civil Procedure. Rule 2206, entitled, “Settlement, Compromise, Discontinuance and Judgment,” sets forth requirements for settling or compromising a wrongful death action and also specifically discusses the additional requirements when there is a structured settlement or there is no guardian for the incapacitated person or minor.
Published: March 10, 2016
By: Richard Ogrodowski
Following its prior decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), the Superior Court of Pennsylvania found in Valentino v. Philadelphia Triathlon, LLC, 2015 WL 9630456, *10 (Pa. Super. Dec. 30, 2015), that a triathlete’s widow could maintain a wrongful death action despite the triathlete executing a waiver and release form.
As with other races, such as marathons, 10Ks, 5Ks, etc., the triathlete was required to register for the event. The registration required the triathlete to pay a fee and execute a waiver and release form.
The triathlete started the swimming portion of the race, but he failed to complete it. Sadly, his body was found the next day in the Schuylkill River.
After the widow filed a wrongful death action, the organizer of the triathlon sought summary judgment on the wrongful death action claiming the waiver and release form barred the lawsuit. The trial court agreed with the organizer. Nevertheless, the Superior Court of Pennsylvania reversed the trial court and concluded that based on Pisanso, the release did not bar the wrongful death action in Pennsylvania as it is an independent cause of action and “is not derivative of the decedent’s rights at [the] time of death.” Id.
Published: March 4, 2016
By: Richard Ogrodowski
In Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super. 2015), the Superior Court of Pennsylvania addressed whether an arbitration agreement with a nursing home facility signed by the decedent’s authorized representative was binding on the wrongful death beneficiaries when a wrongful death claim was filed on behalf of the beneficiaries arising from a negligence claim. The Superior Court found that a wrongful death action is a separate action belonging to to the beneficiaries. As such, “an arbitration agreement signed by the decedent or his or her authorized representative is not binding upon non-signatory wrongful death beneficiaries.” Id. at 321. Additionally, the Superior Court refused to separate the survival act claim from the wrongful death claim so that the survival act claim could proceed in arbitration. In doing so, the court held: “the wrongful death beneficiaries’ constitutional right to a jury trial and the state’s interest in litigating wrongful death and survival claims together require that they all proceed in court rather than arbitration.” Id. at 328.
This is an important decision for anyone with a loved one in a nursing home. Just because an arbitration agreement is signed by a decedent or authorized representative, which is intended to take away the right to a jury trial, this does not mean it is binding on wrongful death beneficiaries.