Can You Sue for Wrongful Death?

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Who Can Bring a Lawsuit for Damages after an Accidental Death in Pennsylvania?

Wrongful DeathWhen someone dies in an accident caused by the carelessness or negligence of another person, it can have far-reaching consequences. While immediate family members may suffer because of the loss of financial support, guidance or companionship, friends and others may feel a tremendous emotional loss as well.

In the aftermath of an accidental or wrongful death, the law provides a mechanism to hold the wrongdoer accountable—a wrongful death lawsuit. But how broad is the scope of a wrongful death action? Can anyone who experienced a loss seek compensation in court?

Standing in a Wrongful Death Action in Pennsylvania

In Pennsylvania, as in other states, a person must have legal “standing” to sue for any type of loss. To have the necessary standing, you must be considered a “real party in interest,” someone with a real and actual loss, as well as the right to enforce a claim for that loss.

Under Pennsylvania law, a wrongful death claim must be filed by the personal representative or executor of the deceased’s estate. Typically, that person will be named in the will, but the court may appoint a personal representative if there is no will. The personal representative, however, acts only on behalf of the beneficiaries of the estate. Those beneficiaries are the ones who are considered to be real parties in interest. According to the Pennsylvania Wrongful Death Act, the only individuals considered to be real parties in interest are the spouse, the children and the parents of the victim. Siblings, cousins, nieces, nephews and other family members generally have no right to compensation through a wrongful death lawsuit.

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At Barnard, Mezzanotte, Pinnie & Seelaus, we offer experienced and knowledgeable legal counsel to individuals in Pennsylvania. To set up an appointment for a free initial consultation, call us at 610-565-4055 or contact us online.

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A Driver’s Responsibility in Pennsylvania — The Removal of Snow and Ice

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driver cleaning ice off windshield

The Potential Consequences of Failing to Clear Snow and Ice from Your Car

In Pennsylvania, as in other states, the failure to remove snow and ice from your vehicle can be the basis for liability in a personal injury lawsuit. It can also result in a traffic citation. Here’s how it works.

In most personal injury claims (such as a motor vehicle accident lawsuit), the legal theory supporting financial recovery is negligence. To prove negligence, an injured person must first show that the defendant (person alleged to have caused the harm) failed to meet the accepted standard of care. As the law of personal injury has evolved over centuries, it has been premised on the expectation that all persons will exercise reasonable care in all activities, so as not to pose an unreasonable risk of injury to others. The duty to use reasonable care applies to maintaining one’s home, manufacturing and marketing a product and driving a motor vehicle. The question that would be posed, in a motor vehicle accident claim, is whether it was reasonable to expect that the driver would remove snow and ice from the vehicle. If it was, and if the failure to do so caused or contributed to the accident that caused the injury, the driver may be liable.

In 2006, the Pennsylvania legislature passed a law that also made the failure to remove snow and ice a criminal violation. Enacted in response to the death of a woman after a huge chunk of ice flew off a semi and shattered her windshield, the law imposes a fine of up to $1,000 on any person who has snow or ice fall from his or her car and cause injury to another driver, a passenger or a pedestrian.

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At Barnard, Mezzanotte, Pinnie & Seelaus, we offer experienced and knowledgeable legal counsel to individuals in Pennsylvania. To set up an appointment for a free initial consultation, call us at 610-565-4055 or contact us online.

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What If You Were Partially at Fault for Your Injuries?

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How Does Pennsylvania View Contributory and Comparative Negligence?

Fault for Your InjuriesThe laws governing personal injury in Pennsylvania and other jurisdictions are fundamentally based on the concept of fault, or liability. In a personal injury claim based on negligence, a jury will look at the actions of omissions of a person—the defendant—and ask whether they “caused” an accident that led to an injury. It’s not uncommon for there to be more than one defendant, and for the jury to allocate liability or fault to more than one party. But what happens if the injured person engaged in some careless act that contributed to the injury or made it worse?

Under the law as it existed until about a century ago, an injured person who committed any act or omission that contributed to an accident or injury could not recover anything. This doctrine, known as “contributory negligence,” ruled the day for centuries, but ultimately came to be perceived as unduly harsh and unfair. Defense attorneys would look for any act, material or insignificant, to avoid responsibility. Grossly negligent defendants often escaped liability entirely because an injured party made a minor mistake.

The doctrine of contributory negligence has been replaced in most jurisdictions, including Pennsylvania, with the concept of “comparative negligence.” As a general rule, comparative negligence looks at the total amount of losses suffered, allocates a percentage of liability to each party, and reduces the damage award by the percentage to which the injured party was responsible.

There are two different approaches to comparative negligence. Under the concept of “pure comparative negligence,” an injured party will always receive something, unless the jury finds him entirely responsible for his own injuries. For example, if a person is hurt in a motor vehicle accident and suffers $100,000 in losses, but the jury finds him 60% responsible, he will only collect $40,000.This does not apply in Pennsylvania.

Under the alternative approach, known as “modified comparative negligence,” an injured party’s responsibility must fall below a certain threshold, which is 51% in Pennsylvania, in order for that person to recover anything. Under this rule, if the damages are $100,000, but the injured party is 60% responsible, he will recover nothing. If, on the other hand, he is only 40% responsible, he will recover $60,000.

Contact Barnard, Mezzanotte, Pinnie & Seelaus

At Barnard, Mezzanotte, Pinnie & Seelaus, we have fought for the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or contact us online.

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Premises Liability When You Are Injured on Leased Property

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An old home

In Pennsylvania, as in other states, when you have been injured as a result of dangerous conditions on someone else’s property, you have a right to seek damages for all your losses. That’s because there’s a duty to maintain the premises in such a way that they don’t pose an unreasonable risk of injury to anyone legally on the property. But who is responsible when the person or business actually using the premises is not the owner, but merely a tenant?

As a practical matter, you’ll want to take legal action against both parties—the landlord and the tenant. Ultimately, the insurance companies or the courts will make a determination as to whether one or both parties have liability. There are, however, some general guidelines that courts tend to follow:

  • Residential property — As a general rule, the person responsible for maintaining the area where the injury occurred will be liable. Accordingly, if your injury occurs inside an apartment or rental unit, the tenant will be responsible (unless the injury was caused by a defect in the building, such as a broken step or stairway and the landlord knew of the existence of the dangerous condition). If the injury occurs outside of the residence, allocation of liability will typically depend on the type of property. If it’s a multiple unit where the landlord customarily maintains the property, the landlord will have responsibility. However, if it’s a house or single unit, where the tenant has responsibility for all outdoor maintenance (mowing, shoveling, watering, etc.), the tenant will have liability.
  • Commercial property — In principle, the rules are the same for commercial premises. Injuries sustained as a result of dangerous conditions inside a business structure are typically the responsibility of the tenant. Injuries suffered outside the building are usually attributed to the landlord. There are exceptions, however—if the tenant’s business involves outdoor displays of merchandise or the landlord is aware of dangerous conditions involving fixtures or permanent structures inside the building.

Contact Our Office

At Barnard, Mezzanotte, Pinnie & Seelaus, we offer experienced and knowledgeable legal counsel to individuals in Pennsylvania. To set up an appointment for a free initial consultation, call us at 610-565-4055 or contact us online.

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How the Actions of the Injured Party Affect the Outcome of a Personal Injury Lawsuit

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Outcome-of-a-Personal-Injury-Lawsuit

When you’ve been injured in any type of an accident, one of the first and most important things you’ll need to do is establish who all the potentially responsible parties are. That entails identifying exactly what caused your losses and whose actions contributed to your injuries. What if you were partially at fault for the accident? Are there ways that your actions, as the injured person, can have an impact on your right to recover for all your losses?

Contributory Negligence

The legal doctrine of contributory negligence looks at the extent to which your own actions contributed to your losses. As the law of personal injury evolved over centuries, the doctrine of contributory negligence held that, should there be any degree to which the injured party caused or contributed to his or her own losses, there could be no recovery of any kind. Perceiving this to be overly harsh (and responding to defense attorneys who argued that even the slightest degree of negligence precluded an injured party from any recovery), the modern trend has been toward the concept of comparative negligence.

Comparative Negligence

Under the principle of comparative negligence, the court looks at the total losses suffered by the injured party and reduces that amount by the percentage of liability allocated to the plaintiff. For example, if the total losses were $100,000 and the jury determines that the plaintiff was 25% responsible, the damage award will be reduced to $75,000.

There are two approaches, however, to comparative negligence. Under the “pure comparative negligence” rule, the plaintiff is always entitled to something, even if he or she was primarily responsible. Under the modified comparative negligence standard, a plaintiff will only recover compensation if his or her negligence falls below a specific degree—typically 50 percent.

Failure to Mitigate Damages

There’s another way an injured person’s actions can have a negative impact on a damage award—if the plaintiff fails to act reasonably to mitigate (or minimize) the actual damages. For example, if a person injured in a motor vehicle accident fails to seek medical treatment or refuses to follow the doctor’s prescribed regimen, that person may not be able to recover compensation for damages that would reasonably have been avoided otherwise.

Contact Barnard, Mezzanotte, Pinnie & Seelaus

At Barnard, Mezzanotte, Pinnie & Seelaus, we have fought for the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or contact us online.

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How Does a Jury Evaluate a Claim for Pain and Suffering?

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Pain-and-Suffering

When you’ve been hurt in an accident caused by the carelessness or negligence of another person, you have the right to seek compensation for a wide range of losses, including:

  • Lost wages or income
  • Unreimbursed medical expenses
  • Loss of enjoyment of life, i.e., the inability to engage in routine or previously enjoyed activities because of your injury
  • Loss of companionship or consortium, essentially the loss of the benefits of a family relationship with a spouse because of an injury

As a general rule, in most personal injury lawsuits, you can also ask for damages for pain and suffering. We looked more closely at what types of losses qualify as pain and suffering in an earlier blog. But what factors can a jury consider when calculating those losses? Here are some of the customary questions juries ask when assessing a claim for pain and suffering:

  • Is the plaintiff (the injured party) a credible witness? Note that this may be based on your testimony or it may be based on your physical appearance. It can also stem from your demeanor in court or on the witness stand. Did you stumble a lot or contradict yourself? Were you clear in your testimony? Did the defense attorney impeach your credibility in any way, even if it had nothing to do with the accident?
  • Does your claim of pain and suffering make sense to the jury? Can the jurors see a logical relationship between your injury and the pain you allegedly suffer?
  • Is there medical testimony to substantiate your claim?
  • Do you have a criminal record? (What, you may ask, does this have to do with a personal injury claim? Nothing, but a jury may still consider it)

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At Barnard, Mezzanotte, Pinnie & Seelaus, we offer experienced and knowledgeable legal counsel to individuals in Pennsylvania. To set up an appointment for a free initial consultation, call us at 610-565-4055 or contact us online.

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Can You Seek Damages for Pain and Suffering?

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Seek-Damages-for-Pain-and-Suffering

When you’ve been hurt because of the wrongful act of another person, and you seek compensation through a personal injury lawsuit, you are entitled to pursue damages for a wide range of losses, from wages and income to unreimbursed medical expenses, from loss of companionship or consortium to loss of enjoyment of life. In many instances, you can also seek a monetary award for pain and suffering, both past and future.

The Different Types of Pain and Suffering

As a general rule, pain and suffering falls under one of two categories—physical pain and suffering, and mental/emotional pain and suffering. The physical pain and suffering you experience need not be constant, severe or excruciation. You may have chronic pain that manifests at a relatively low level, but that affords you little or no respite. You may have intermittent, but substantial pain that leaves you in dread of the next episode. It’s also important to understanding that it’s pain and suffering. The consequence may be a limitation on your mobility, instead of the typical pain associated with nerve impulses. For example, you may have burns that restrict your motor skills—there may be no pain, per se, but you may still be entitled to damages for pain and suffering.

Mental/emotional pain and suffering can take a variety of forms, from depression and anxiety to anger or fear. Often, the mental or emotional pain and suffering you experience is the result of a physical injury.

How Do You Calculate Damages for Pain and Suffering?

Pain and suffering is considered a form of non-economic damages—those which are less tangible and not easily calculated. Courts customarily ask juries to use common sense when awarding damages for pain and suffering. Jurors may take a number of factors into consideration, from your perceived credibility to your appearance and demeanor during direct or cross examination. Even though it has no bearing on your claim, a jury may also consider whether you have a criminal record.

In many states, there is precedent to apply a “multiplier” as a damage award for pain and suffering. In such an approach, the jury ascertains the actual out-of-pocket losses and multiplies that amount by a specific number (typically between 3 and 10) to get damages for pain and suffering.

Contact Barnard, Mezzanotte, Pinnie & Seelaus

At Barnard, Mezzanotte, Pinnie & Seelaus, we have fought for the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or contact us online.

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Damages in a Slip and Fall Case? Depends on Why You Were on the Property

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Damages in a Slip and Fall Case

In Pennsylvania, as in other states, the owner of residential or commercial property has a duty to monitor and maintain the premises so as to minimize the risk of injury to anyone legally on the property. The duty imposed is not absolute, however. The person with control over the premises—a property owner, landlord, property manager or even a tenant, must take reasonable measures to ensure the safety of others. However, the duty varies based on the “status” of the visitor—the court will look at why the injured person was on the property.

Trespassers

A person on the property without the permission or invitation of the owner, known under the law as a trespasser, is least likely to have a legitimate claim for any damages sustained because of dangerous conditions on the property. In Pennsylvania, a trespasser may only obtain compensation for such losses if there was wanton or willful negligence or misconduct, defined as situation where the person in control of the property either desired to bring about harm or intentionally acted in unreasonable disregard for an obvious risk of injury.

Licensees

A licensee is a person who has entered land or property at the consent of the owner or person in control of that property. In Pennsylvania, the possessor of property will be liable for injuries to a licensee where three conditions are met:

  • The possessor knows (or has reason to know) of an unreasonable danger that a licensee would not reasonably be expected to discover
  • The possessor fails to take reasonable steps to either alleviate the risk (fix the problem) or warn a potential licensee of the risk
  • The licensee does not know and has no reason to know of the dangerous condition

Invitees

An invitee is someone who has been asked or invited onto property which is open to the public. A person may be a public invitee or a business invitee. The possessor of property owes the highest duty to an invitee, and may be liable for injuries to an invitee, even if the invitee should reasonably discover the danger, if the possessor should reasonably expect that the invitee will not or cannot protect themselves from the risk of injury.

Contact Barnard, Mezzanotte, Pinnie & Seelaus

At Barnard, Mezzanotte, Pinnie & Seelaus, we have fought for the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or contact us online

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Pennsylvania Does Not Recognize the “Mode of Operation” Rule

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Pennsylvania Does Not Recognize the "Mode of Operation" Rule

In slip and fall cases, the court typically looks at whether the defendant took reasonable steps to monitor or become aware of potentially dangerous situations, and then took appropriate steps to remedy them. But what if the owner of the business knew, because of the type of business being conducted, that the floors were likely to be slippery, to have water, food or other dangerous substances on them at any time? For example, what if a person slips and falls at a buffet-style restaurant, where customers regularly serve themselves, and regularly drop food on the floor?

Some jurisdictions, considering it reasonable that the owner of such an establishment should expect such conditions to exist, have eliminated the requirement that an injured person show negligence, based on what’s known as the “mode of operation” doctrine. In New Jersey, where this approach has limited application, the courts have identified specific requirements for its application:

  • It only applies where the mode of operation" involves self-service, with customers independently handling products or merchandise
  • It only applies in areas affected by the self-service operations—it may not be transferred to all parts of such a business
  • The legal theory may also be used if the dangerous conditions were created by an employee, rather than a customer. For example, if a business has a self-service food bar, but an employee caused items to be on the floor, the doctrine can be used if another customer slips and falls on the items the employee caused to land on the floor.

Though a number of cases have been filed in Pennsylvania alleging liability under a “mode of operation” principle, the state has not yet recognized it as a valid doctrine.

Contact Barnard, Mezzanotte, Pinnie & Seelaus

At Barnard, Mezzanotte, Pinnie & Seelaus, we have fought for the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or contact us online

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Things You Need to Know in a Pennsylvania Slip and Fall Case

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Pennsylvania Slip and Fall Case

In Pennsylvania, as in other states, the owner of residential or commercial property has a duty to maintain the premises in such a way as to minimize the risk of injury to anyone legally on the property. That duty can also extend to anyone who maintains control of property, from a property manager to a landlord or tenant. The duty requires reasonable monitoring to discover and remedy any potentially dangerous conditions.

There are a couple other issues that you should be aware of, if you have sustained an injury on someone else’s property:

  • The Statute of Limitations—Under the laws of the state, there’s a time limit for filing a lawsuit to recover any losses sustained as a result of a slip and fall. In Pennsylvania, that period of time is two years, typically measured from the date of the injury, or from the date you learned of the injury. There’s good reason for this rule—memories fade and evidence gets lost, so the sooner you file, the better the chance of a fair trial for everyone. In addition, the law considers it unreasonable that a person should have a potential lawsuit hanging out there for an extended period of time.
  • The Principle of Comparative Negligence—In a personal injury case based on negligence, the jury typically requires the at-fault party to pay for losses suffered by the injured party. If the injured party was negligent in any way and that negligence caused or contributed to the accident, the injured party may have some responsibility. Under Pennsylvania law, if the jury determines that the injured party was more than 50% responsible for the accident, the injured party cannot recover any compensation. For example, if you went into an area that was blocked off by tape or cones, or if you were on a device or otherwise engaged in distracted behavior, that may be considered contributory negligence and may reduce or preclude damages.

Contact Our Office

At Barnard, Mezzanotte, Pinnie & Seelaus, we offer experienced and knowledgeable legal counsel to individuals in Pennsylvania. To set up an appointment for a free initial consultation, call us at 610-565-4055 or contact us online

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