PENNSYLVANIA LEGAL UPDATE
WINTER 2003 ISSUE

WHAT HAPPENS IF YOU SLIP AND FALL AT A STORE?

Landowners and occupiers are responsible for keeping their buildings and grounds reasonably safe for visitors. Pennsylvania courts have noted that owners of businesses open to the public do not have to guarantee the safety of all customers and business visitors--they are not the "insurers" of the public's safety. However, a business owner is responsible for injuries suffered by patrons if the owner either knows of a potentially dangerous condition on the business premises or should know of the condition and fails to correct it or warn customers about it.

One of the most common causes of injury to business customers is a customer's fall on a slippery or defective surface. Supermarket fresh fruit, bakery goods, or other spilled food can create dangerous conditions for customers whose attention is drawn to the eye-catching shelf displays. Water or ice tracked into a store on a foul-weather day can cause or contribute to falls.

Store owners are responsible if the spilled substance or wet floor was neglected for an unreasonable period of time. If a store owner knows or should know that the floor is in a dangerous condition, he or she will be held responsible. In slip-and-fall cases, great attention is focused on the specific condition of the floor and on the facts relating to the owner's knowledge.

Business owners should maintain records of their cleaning and maintenance--even hourly records in large establishments. By requiring all employees to watch for spills or slippery conditions and to keep records of their vigilance, store owners can substantially limit their liability.

While it may be very difficult to do so while in pain or discomfort, a customer who is injured in a fall should be sure to carefully look at the area where he or she fell and determine what caused the fall. For example, where a food substance is ground into the floor and tracked through the area, it is clear that the substance was spilled long before the customer's fall. Noticing these details can make a tremendous difference in a liability case.

Falls on snowy or icy surfaces are treated differently since even the most vigilant business owner sometimes cannot keep up with falling snow and ice. An owner is only liable to customers for their injuries from falls if the accumulation of snow and ice has extended over such time that it has formed into "ridges and hills."

The "ridges and hills doctrine" protects an owner or occupier of land from liability for generally slippery conditions where ice and snow have not been permitted to unreasonably accumulate in ridges or elevations. This doctrine came about because a requirement that a business's walkways always be free of ice and snow would impose "an impossible burden in view of the climatic conditions in this hemisphere." Local ordinances and common sense require that business owners promptly remove snow and ice from areas where people can be expected to walk.

If you are injured by a fall on snow or ice, you should determine whether your fall was unavoidable or was the fault of careless snow removal. Unless the snowy/icy condition is marked by an accumulation that has formed ridges and hills, the business owner will not be considered negligent.

POINTERS ON POINTS

The Pennsylvania Department of Transportation has the power to assign "points" to Pennsylvania drivers who are found guilty of certain driving offenses. When a driver accumulates 6 points or more, he or she is sanctioned.

On a driver's first accumulation of 6 points or more, he or she must take a written examination. The examination tests the driver's (1) knowledge of safe driving practices, (2) understanding of the Motor Vehicle Code, and (3) general awareness of safety issues. If the driver does not pass the examination within 30 days of receiving notice to take the examination, his or her license is suspended until the examination is passed.

On a driver's second accumulation of 6 points or more, the driver must go before a hearing examiner employed by the Department of Transportation. The examiner reviews the driver's record and may (1) impose a 15-day license suspension, (2) order the driver to take a special on-road driving test, or (3) choose to take no action.

On a driver's third accumulation of 6 points or more, the driver must go to a hearing and can lose his or her license for 30 days.

A driver who accumulates 11 points or more automatically loses his or her license. The length of the suspension is determined by the number of points and by the driver's prior history. For example, if a driver has never had his or her license suspended and has 11 points, the suspension will be 5 days per point, or 55 days. If the driver has suffered 2 prior suspensions and has 11 points, the suspension will be 15 days per point, or 165 days.

Drivers can earn the right to have points removed from their records. Three points are removed for every 12 consecutive months the driver goes without a conviction for a moving violation that carries points. Once a driver's record of points is reduced to zero and remains at zero for at least one year, any further accumulation of points is treated as a first accumulation.

Many motor vehicle violations result in the assignment of points. Most moving violations carry an assignment of points, from a modest 2 points for failure to wear required glasses to a whopping 5 points for failure to stop for a school bus with flashing red lights. Drivers who are convicted of exceeding the posted speed limit by 31 mph or more (for example, driving 66 mph in a 35 mph zone) are assigned 5 points; exceeding the speed limit by only 6 miles carries 2 points.

Penalties for drivers who are under 18 years of age are more strict. Such drivers suffer license suspensions for speeding offenses and for accumulation of points that would only trigger examinations or hearings for adult drivers. The suspensions imposed on these young drivers are generally lengthier.

Be sure to notify the Department of Transportation if you move or change your mailing address. The department satisfies all of its legal obligations to notify you of points, of the scheduling of a test or hearing, or of the suspension of your license by mailing any required notices to you at your address of record with the department. Unless you keep an accurate address on record, you could lose rights without knowing it.

WHEN AN AMBULANCE ARRIVES TOO LATE

After a Pennsylvania man died at home while waiting for an ambulance, his family sued the ambulance providers for negligence. The man suffered a heart attack, and his family promptly called 911. The emergency dispatcher radioed a volunteer ambulance and a hospital critical-care ambulance and relayed the accurate directions. The crew of the volunteer ambulance company then mistakenly communicated inaccurate directions to the hospital ambulance. By the time the ambulances arrived almost 30 minutes later, the man had died.

Most volunteer ambulance companies are considered local "agencies" and share the same immunity from lawsuits that most governmental agencies enjoy. Certain limited exceptions permit lawsuits against governmental entities and agencies--for example, where the negligent use of a motor vehicle is at issue.

In this case, the Pennsylvania Supreme Court refused to extend the motor vehicle exception to the misguided driving efforts of the ambulances. Finding that the motor vehicle exception to agency/governmental immunity must be read very narrowly, the court upheld the governmental immunity of the volunteer ambulance company.

However, the hospital ambulance was not entitled to agency/governmental immunity since it was owned by a private corporate hospital. The hospital nevertheless sought to avoid liability under the Pennsylvania Emergency Medical Services Act (EMSA). EMSA provides that emergency medical technicians, paramedics, health-care professionals, and certain supervised students are immune from lawsuits for the services they provide in connection with emergencies and rescues. The court ruled that the hospital was not entitled to protection from EMSA because the Act only provides individuals with immunity, not corporations, organizations, or institutions.

Where a hospital operates an ambulance, it certainly is not held to strict liability, nor is it responsible for inevitable or accidental deaths. However, where a hospital accepts a dispatch request for an ambulance, it is expected to be familiar with the area, responsive to the directions provided, and capable of arrival within a reasonable time. In most circumstances, volunteer ambulance corps and their volunteers cannot be sued, nor can hospital employees who qualify for immunity under EMSA. But a hospital or commercial rescue company can be sued for its negligence.

WORKERS' COMPENSATION FOR . . . PROFESSIONAL FOOTBALL PLAYERS?

In these days of exorbitant salaries for professional athletes, some fans may take comfort in learning that injured professional athletes cannot easily cash in on workers' compensation benefits. The Pennsylvania Workers' Compensation Act provides injured workers with medical benefits and income replacement at a lower rate than their regular pay.

The Act includes a specific provision that limits the salary compensation available to injured professional athletes. The income benefits available to athlete employees of the NFL, NBA, NHL, and National and American baseball leagues are calculated using two times the statewide average weekly wage rather than by reference to the athletes' actual wages. Additionally, any disability benefits available to the athletes through their contracts or through private insurance operate to reduce the weekly wage calculation.

Recently, an injured member of the Pittsburgh Steelers football team challenged the workers' compensation limitations as an unfair and unconstitutional singling out of athletes. The Pennsylvania court upheld the limitations, observing that professional athletes are well paid and voluntarily subject themselves to the high risk of physical injury. The court ruled that the career of a professional athlete "represents a distinctive blend of risk combined with lucrative compensation."

The court expressed "great respect" for professional athletes but concluded that it is appropriate to place a different value on those who risk bodily harm to provide entertainment to fans from those, such as law enforcers and rescue workers, who risk bodily harm to protect society.

UNEMPLOYMENT COMPENSATION IN PENNSYLVANIA

Pennsylvania's unemployment compensation law provides economic relief to workers who unexpectedly find themselves unemployed. Entitlement to benefits is directly tied to the reasons that led to the worker's job loss. If "necessitous and compelling reasons" leave an employee with no choice but to quit, the employee will be paid unemployment benefits. In a recent case, a transit driver was denied benefits because the court found that his reasons for leaving work were not truly "necessitous and compelling."

The driver's problems started when, unable to afford the cost of a car repair, he tried unsuccessfully to repair his car himself. At the same time, he received notice that his driver's license was suspended for his failure to keep up with his child support payments.

The court ruled that, in most cases, where a worker loses his driver's license he or she is not entitled to quit his job. The court also noted that workers who have problems finding transportation to work have to show that their transportation problems were "insurmountable" in order to justify quitting their jobs. While the loss of one's regular transportation or driver's license may feel insurmountable, anyone who quits a job in the face of such problems will not receive unemployment compensation unless he or she can show an impressive list of actions undertaken to try to secure transportation.

Workers who are fired face different issues in unemployment proceedings. Where a worker is fired for "willful misconduct," he or she is not entitled to unemployment benefits. A nurse's aide was fired after her medical records for a work-related injury showed that she was regularly smoking marijuana. The nursing home's only stated reason for the firing was the aide's drug abuse.

Because there was no proof that the aide was ever under the influence of illegal drugs at work or that her work performance was at all affected or impaired by her drug use, the court ruled that she was entitled to unemployment benefits. When an employee's willful misconduct is not work related, the willful misconduct does not prevent unemployment benefits. The court noted that an employer can fire a worker who uses illegal drugs, but observed that the questions of justifiable firing and of paying unemployment benefits are two different questions.