On the Pulse…Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories*
Audrey Copeland (King of Prussia, PA) successfully defended the summary judgment obtained by trial counsel Ben Nicolosi (Scranton, PA). The plaintiff had alleged that she was injured while waking on a sidewalk to enter the defendants’ tavern when a vehicle driven by another defendant pulled into a “head-on” parking space, jumped the five-inch concrete wheelstop separating the parking spaces from the sidewalk, and struck the plaintiff. The plaintiff primarily argued that she was a business invitee and was owed a duty of reasonable care to protect her from the foreseeable harm caused by a third party. Through her expert’s report, the plaintiff contended that the defendants were required to provide a sidewalk with a five-inch curb and bollards (poles or pillars of concrete or metal) to protect pedestrians from vehicle infringement. The defendants argued that they met all local zoning and building code requirements, that no similar accident had ever occurred, that the incident was unforeseeable and that their use of wheel stops was sufficient to protect pedestrians under the known circumstances.
The appellate court affirmed in a 2-1 decision, holding that summary judgment was appropriate because the plaintiff provided no legal precedent requiring the use of bollards. Also, even accepting the plaintiff’s expert’s opinion as true, his report failed to relate the appropriate engineering standards for the design of a parking lot and use of wheel stops, and was inadequate as a matter of law to demonstrate that the defendants were negligent for using wheel stops.
George Helfrich and Patricia McDonagh (Roseland, NJ) obtained an affirmance from the Appellate Division of an order for summary judgment granted to the defendant homeowners on a sidewalk slip-and-fall case. The trial court had dismissed the matter because the plaintiff’s expert report did not provide the “why and wherefore” to explain the alleged defect in the sidewalk, such as negligent construction or repair of the sidewalk, that was allegedly created by an identified predecessor in title. The plaintiff’s expert did not provide in his report the requisite construction standards that were in effect when the sidewalk was built. The Appellate Court held that the expert’s bare statement that the sidewalk had collapsed because of failure to compact the base material was an inadmissible net opinion.
Walter Kawalec (Cherry Hill, NJ) and John Gonzales (Philadelphia, PA) were victorious before the Third Circuit Court of Appeals. In this civil rights case, the plaintiff alleged malicious prosecution, a violation of §1983, in connection with his arrest in a shooting investigation. The arresting officer was the investigator of the shooting. During that investigation, the officer received information from an informant that the arrestee was bragging about having shot someone. Based on that information, the investigating officer created a photo array line-up of six individuals. The shooting victim identified the arrestee as the man who shot him. Later, in connection with a separate investigation, the arresting officer obtained information suggesting that the arrestee may not have, in fact, been the shooter, but suggesting that another man was. The arresting officer created another line-up, which included this other man, and the victim confirmed that he was the actual shooter. Based on that identification, the arrestee was released and later filed a malicious prosecution action. The Third Circuit Court of Appeals affirmed the decision of the District Court below, holding that, at the time the arrest was made, there was sufficient evidence based on the initial identification from the photo line-up, as well as the informant’s information, to establish probable cause to arrest and that the plaintiff had no viable case for malicious prosecution. Although the plaintiff raised issues concerning the validity of the photo line-up and other additional claims, the Third Circuit found none of them to be sufficiently viable to reverse the decision that probable cause existed and that the arresting officer had the protection of qualified immunity.
* Prior Results Do Not Guarantee A Similar Outcome
Defense Digest, Vol. 20, No. 4, December 2014
Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.