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, 2023
By: Richard Ogrodowski
In my last post, I discussed the impact on future damages when an injured person dies from a cause unrelated to the negligence or strict products liability giving rise to the lawsuit. I left for a future post the effect of an injured person’s unrelated death on their spouse’s loss of consortium claim. So, what is a loss of consortium claim? A loss of consortium “claim is intended to compensate one for the loss of services, society, and conjugal affection of one’s spouse occasioned by an injury to that spouse.” Amato v. Bell & Gossett, 116 A.3d 607, 625-26 (Pa. Super. 2015) https://casetext.com/case/amato-v-bell-gossett
What happens to the loss of consortium claim when the injured spouse’s death is unrelated to the underlying negligence or product liability claim? The law in Pennsylvania is clear that the loss of consortium claim is not eliminated by the injured spouse’s death. Rather, the surviving spouse still has an independent of loss of consortium claim and may seek damages for the period of time from the date of the deceased spouse’s original injury to the date of the deceased spouse’s death. Amato, 116 A.3d at 626.
Rich Ogrodowski
Goldsmith & Ogrodowski, LLC
Rich’s bio can be viewed here: https://golawllc.com/e-richard-ogrodowski/
Published: October 12, 2022
By: Richard Ogrodowski
In Pennsylvania, when a person is injured and, let’s assume the injuries will be permanent, the injured person has a claim for both past and future damages. These damages could involve past wage loss, future wage loss or loss of future earning capacity, past pain and suffering, future pain and suffering, past medical expenses, future medical expenses etc. So, what happens to damages when an injured person tragically dies from a cause unrelated to his or her initial injuries that a negligent defendant or the product of a defendant caused? Unfortunately, in Pennsylvania, there is an opinion from 1955 by the Superior Court of Pennsylvania, which is the appellate court below the Supreme Court of Pennsylvania, in Mohler v. Worley, 116 A.2d 342, 345 (Pa. Super. 1955) https://law.justia.com/cases/pennsylvania/superior-court/1955/179-pa-super-56-0.html in which the court held that when the injured person dies from causes unrelated to the defendant’s negligent act before trial, the damages are limited to the period from the date of injury to the date of death. Specifically, the court held: “We think it is clear, however, in cases such as the present case, where the injured party dies before trial from other causes than defendant’s negligent act, damages are limited to the period between the date of injury and the date of death.” Id. This means future damages are eliminated. There is little commentary on this opinion, although the Supreme Court of Pennsylvania in Chappell v. W.Va. Ry. Co., 168 A.2d 330, 332 (Pa. 1961), approvingly cited to the limitation of damages from the date of injury to the date of death when the death is unrelated to the defendant’s negligence.
From a practical standpoint, the now decedent’s claims will have to be pursued through the Pennsylvania Survival Act, 42 Pa. C.S. § 8302. The Survival Act states “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.” The personal representative, administrator, administratrix, executor, or executrix of the decedent’s estate may bring the survival action. If a lawsuit is already pending, the personal representative, administrator, administratrix, executor, or executrix will be substituted in as the plaintiff, which requires the lawsuit’s caption to be amended, and the complaint will need to be amended to assert the Pennsylvania Survival Act claim. The case now proceeds as a Survival Act claim.
I’ll address the effect of an injured person’s unrelated death on their spouse’s loss of consortium claim in a future post.
Rich Ogrodowski
Goldsmith & Ogrodowski, LLC
Rich’s bio can be viewed here: https://golawllc.com/e-richard-ogrodowski/
Published: March 22, 2019
By: Richard Ogrodowski
As a runner, I spend a fair amount of time walking my dog or running for exercise around my town, which is located in Pennsylvania. This necessarily involves walking or running on or near roads. Sometimes the roads have a sidewalk and sometimes the roads do not. Most people might be surprised that Pennsylvania has a law, 75 Pa. C.S.A. Section 3544, that governs where pedestrians can walk or run when on or along a roadway. So, let’s go over the law:
What if a sidewalk is available along a roadway? Section 3544(a) requires that if “a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.” Therefore, if you can use a sidewalk, you have to use it.
What if there isn’t a sidewalk? Section 3544(b) provides that if there isn’t a sidewalk, “any pedestrian walking along and upon a highway shall walk only on a shoulder as far as practicable from the edge of the roadway.” So, get as far from the roadway as possible.
What if there is neither a sidewalk nor a shoulder along the roadway? Section 3544(c) states that “[w]here neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway and, if on a two-way roadway, shall walk only on the left side of the roadway.” Therefore, by requiring a pedestrian to walk (or run) on the left side of the roadway, the pedestrian will be facing oncoming traffic. This is so the pedestrian can see oncoming cars or trucks, and, if there is danger, hopefully, be able to react to avoid serious injury or accidental death.
To sum it up, if there is a sidewalk use it. If not, get as far to the edge of the shoulder as possible. If there isn’t a shoulder, get as far to the edge of the roadway as possible. Plus, remember to walk or run on the left side of the roadway facing the oncoming traffic.
Stay safe!
Published: March 13, 2019
By: Richard Ogrodowski
What are the deadliest jobs in the U.S.?
Data from the U.S. Department of Labor answers the question. Recently, the U.S. Department of Labor’s Bureau of Labor Statistics released the National Census of Fatal Occupational Injuries in 2017, which looks at fatal work injuries or work deaths recorded in the U.S. in 2017.
According to the data, overall, there were 5,147 worker deaths.
Types of Incidents
The main cause of worker deaths were: transportation incidents (2,077 deaths); falls, slips, and trips (887 deaths); violence and other injuries by persons or animals (807 deaths); contact with objects and equipment (695 deaths); exposure to harmful substances or environments (531 deaths); and fires and explosions (123 deaths).
Deadliest Jobs
The jobs with the highest fatal work injury rates or deaths in 2017 were (in descending order):
10. Electrical power-line installers and repairers (18.7 deaths per 100,000 workers)
9. First-line supervisors of landscaping, lawn service, and groundskeeping workers (21 deaths per 100,000 workers)
8. Farmers, ranchers, and other agricultural managers (24 deaths per 100,000 workers)
7. Driver/sales workers and truck drivers (26.8 deaths per 100,000 workers)
6. Structural iron and steel workers (33.4 deaths per 100,000 workers)
5. Refuse (garbage) and recyclable material collectors (35 deaths per 100,000 workers)
4. Roofers (45.2 deaths per 100,000 workers)
3. Aircraft pilots and flight engineers (48.6 deaths per 100,000 workers)
2. Logging workers (84.3 deaths per 100,000 workers)
1. Fishers and related fishing workers (99.8 deaths per 100,000 workers)
National Census of Fatal Occupational Injuries in 2017
Stay safe!
Published: December 9, 2016
By: Richard Ogrodowski
I previously reported in a post that on September 28, 2016, the Centers for Medicare and Medicaid Services (“CMS”), which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements with regard to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. Not long after CMS announced the final rule, the American Health Care Association, which is an association for long-term care providers, and other plaintiffs filed a motion in the United States District Court for the Northern District of Mississippi seeking a preliminary injunction to enjoin CMS from enforcing the final rule. See American Health Care Association et al. v. Sylvia Mathews Burwell, in her official capacity as Secretary of Health and Human Services et al., Civil Action No. 3:16-cv-00233, U.S. District Court for the N.D. Miss.
On November 7, 2016, District Judge Michael P. Mills of the United States District Court for the Northern District of Mississippi granted the motion for preliminary injunction in favor of the plaintiffs. This was a win for long-tem care facility and nursing homes, as the final rule regarding arbitration provisions did not go into effect on November 28, 2016. Although Judge Mills stated that CMS’s final rule was based on sound public policy, he ultimately found that the plaintiffs had made a sufficient showing that CMS did not have the authority to enact the final rule. One of the factors Judge Mills had to consider in granting the preliminary injunction was whether there existed a substantial likelihood of success on the merits. Judge Mills found that to be the case.
Despite the ruling, the parties will continue to litigate the issue of whether CMS had the authority to enter the rule, although the federal government will have an uphill battle.
On December 5, 2016, a Case Management Order was entered setting a schedule for the filing of pleadings in the case. Oral argument is also scheduled for July 20, 2017 before Judge Mills.
Thus, you should expect to continue to see pre-dispute arbitration agreements in the admission documents for long-term care facilities / nursing homes.