The Fine Print Fall 2006
Liability for Use of Your Car
Are owners of cars liable when they loan their cars to someone who then drives negligently? Are husbands liable for the careless driving of their wives? Mothers for their sons? What if the negligent driver is drunk or doesn't have a valid driver's license?
While most people feel morally obliged to look out for the safety and welfare of others, Anglo-American common law has for centuries embraced the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a legal duty to act. Before a person can be held legally liable for another person's injuries, the law looks for a reason why a duty of care would exist. Without a legal duty of care, no legal liability for negligence follows.
Husbands, wives, sons and daughters may share their lives and their households but they do not share liability for each other's negligent driving. They do not have a general duty of care to others for unpredictable negligent driving by family members. Even if a parent or spouse has given another family member permission to use a car, and even if the parent or spouse is the title owner of the car, and even if the car is on a policy of insurance with other family cars in the parent or spouse's name, the parent or spouse has no automatic liability for the unexpected negligence of the driver. Ownership of a car, or the existence of a family relationship or family insurance policy does not create liability. Very similarly, loaning a car to a friend does not make you liable for the friend's unexpected negligent driving. Drivers themselves are liable for their careless driving.
Car owners or family members can be held liable if they negligently loan a car to someone when they have specific reason to know the other person may drive carelessly. Handing the keys to a visibly intoxicated son, or making your car available to your spouse for an evening of illegal drag racing are obvious examples of negligent entrustment of your car. If you carelessly ignore any facts which clearly tell you that a friend or family member is not in the proper physical condition to drive or has specific intentions to drive dangerously, you can be held liable. Serving alcohol to minors is a sure route to exposing yourself to liability to others. Anyone who knowingly serves alcohol to a driver under the age of twenty-one is liable to persons injured by the minor's negligence while driving under the influence of alcohol. And serving alcohol to minors is also a crime.
While parents are not held directly responsible for their children's negligent driving, parents do have some financial responsibility to contribute toward a damages award against their child. If damages are awarded to the injured claimant in a suit against a minor child, the minor's custodial parent or parents are responsible to pay a maximum of $1,000 per injured person or $2,500 per incident. Any damages awarded against a minor over these amounts cannot be collected against the child's parents.
Passengers are not liable for a driver's negligence. Merely being present in a car with a negligent driver is not enough to make a passenger liable to others. Even driving with an intoxicated person does not make the passenger liable to others who may be injured by the dangerous driving of the driver. A passenger is liable to others only if he or she actually assists or encourages the driver to engage in unsafe behavior. Encouraging a driver to speed, or supplying a driver with drugs or alcohol while he or she is driving can make a passenger liable to other injured persons.
But passengers are held somewhat responsible to see to their own safety. When a passenger knows or has reason to know that the driver may be intoxicated or otherwise unfit to drive, the passenger may be unable to recover damages for his or her own injuries. A passenger who rides with an intoxicated driver may suffer a reduction or complete elimination of the right to recover money damages, since riding with an impaired driver may constitute assumption of the risk or contributory negligence. Central to the inquiry is whether the passenger actually appreciated the dangers.
If you loan a car to someone you know to be unlicensed or to be unfit or unlikely to drive safely, you can be held criminally liable. The Pennsylvania Motor Vehicle Code prescribes fines and sanctions for such careless conduct. Liability for damages to others in civil lawsuits is part of the criminal sanction--if you violate the Motor Vehicle Code by loaning a car to someone who is unlicensed or unfit, you are responsible for the injuries caused to others.
If you are injured by a negligent driver, consider promptly investigating the circumstances of his or her driving. You may be able to pursue an award of damages against someone other than the careless driver.
Take Me Out to the Ball Game
Spectators at baseball games assume the risk of a variety of injuries--balls and even bats sometimes hit fans and can cause serious injuries. A Phillies fan recently tried to get around the law of assumption of the risk but he struck out when the Pennsylvania Superior Court threw his case out.
The spectator suffered a serious eye and head injury when he was hit by a ball thrown into the stands by a Phillies center fielder. The center fielder intentionally tossed the ball into the stands at the end of an inning, to serve as a souvenir for a lucky fan. Unfortunately no fan caught the ball and the injured spectator sued, claiming that while he asumed the risks associated with the play of the game, he did not assume the risk of being hit by a ball intentionally thrown into the stands. The Court disagreed. Because fans routinely arrive early for batting practice in hopes of retrieving an errant baseball as a souvenir, and fans routinely clamor to retrieve balls landing in the stands via home runs or foul balls, the Court found that many risks occur at baseball games in connection with souvenir balls. The Court also observed that both outfielders and infielders are known to toss caught balls to fans at the end of an inning.
Pennsylvania law provides that even first-time attendees at sporting events are presumed to know the customary risks that come from sitting in the stands. Those risks are not confined to events that take place during game play, but include just about anything that can and does happen at a sporting event.
Mechanic's Liens
Home buyers and construction contractors often hear the term "mechanics' lien" and probably have a limited understanding of exactly what a mechanics' lien is. A mechanics' lien is a construction or building repair debt that has attached to real estate. Once the debt has attached to real estate, the real estate can't be sold or transferred to a new owner unless the debt is paid in full or unless the new owner agrees to accept the real estate with the attached debt. Since virtually no new owners are willing to take on the debts of the prior owners, a mechanics' lien must be paid off, at the latest, at the time of sale of the property. Worse yet, mechanics' liens have the ability to jump to the head of the line of liens on a property, even ahead of the first lien mortgage.
First, why are they called "mechanics'" liens? Historically the term "mechanic" or mechanicsman" was a broad term that described anyone who performed skilled labor. Now the term "mechanic" implies that the worker uses or works on a machine. But mechanics' liens spring from the historic definition and thus just about any contractor or subcontractor involved in construction qualifies to file a mechanics' lien if he or she completes work and isn't paid.
Mechanics' liens arose in the law to equalize the playing field for construction workers and property owners. Construction workers invest their time, effort and materials in buildings and repairs located on land owned by someone else. An owner who refuses to pay has the upper hand since the work is done and in the control of the owner. The worker may feel like destroying his or her work when the owner refuses to pay, but destruction doesn't put money in the worker's pocket and the worker usually has no access to the property after the work is complete. Property destruction in most cases would amount to criminal conduct and from a larger social perspective, the destruction of unpaid construction work is not economically sound for any society. Enter the mechanic's lien. The law gives the worker a powerful response by providing the opportunity for the worker to file a lien in the case of nonpayment. An unpaid builder, plumber, electrician or material supplier who is owed more than $500 can file a mechanics' lien in the courthouse, attaching a lien to real estate where the work was done or materials were supplied simply by giving the property owner notice and by filing a fairly simple document announcing the lien. If properly filed, a mechanics' lien for construction dates back to the day when "visible commencement" of work began. Liens for repairs and alternation are effective only from the date of the filing of the lien.
But mechanics' liens are quirky. Contractors only have four months from their last day on the job to file the lien. The lien attaches to the property described on the document filed. If the contractor doesn't clearly and accurately describe the property, the lien won't attach. If the lien documents are not promptly and properly served on the owner, the lien fails.
Most importantly, perhaps, because mortgage lenders live in dread of mechanics' liens, they are very careful to require that contractors sign broad waivers of liens prior to starting any new construction. The waiver doesn't only apply to the general contractor. If properly filed and indexed at the courthouse, the mechanics' lien waiver also prevents the filing of any mechanics' liens by all subcontractors.
If you are purchasing a home that is not yet constructed, your lender will want to be sure that construction does not commence until the general contractor signs and files a mechanics' lien waiver. Even lot clearing, grading and excavation can give rise to liens and both lenders and title insurance companies insist either that all work start after your mortgage is signed and recorded in the courthouse and that a mechanics' lien waiver be filed.
If you are a construction contractor or subcontractor, you should regularly expect to be asked to sign a waiver of liens as a condition of your customers' entitlement borrow mortgage money and to purchase title insurance. When doing business with an owner who is not borrowing to finance a home-improvement project, you should consider refusing to sign a waiver of mechanics' liens. When no lender or title insurer is involved in the transaction, a contractor should do his or her best to preserve the entitlement to file a mechanics' lien since it is a powerful tool to secure final and full payment.
Restaurant Not Responsible to Treat Choking
A Pennsylvania patron recently sued a restaurant after he choked on a piece of chicken and was not rescued or treated by any of the restaurant employees. The patron was able to walk and speak but had difficulty breathing. Restaurant employees first tried to have the patron drink water and then summoned an ambulance. The patron had to undergo emergency surgery to treat a tear in his esophagus. He later sued the restaurant and claimed that since restaurant owners should expect that patrons may choke on food, owners should train their staff in performing the Heimlich maneuver and in the administration of general emergency treatment for people who are choking.
The Pennsylvania Superior Court upheld dismissal of the case, finding that restaurants cannot be expected to keep their staffs trained in emergency medical treatment. The Court found that a restaurant whose employees are reasonably on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. However, a restaurant does not have a duty to provide medical training to its food service personnel, or medical rescue services to its customers who become ill or injured . A restaurant meets its legal duty to a customer in distress when it summons medical assistance within a reasonable time.
Clutching the throat is the universal sign to communicated choking. Whenever anyone is suffering from choking, trained emergency medical personnel should be summoned immediately.
Report Accidents to Protect Your Insurance Claim
Insurance companies that sell automobile insurance in Pennsylvania are required to offer all customers the option to add "underinsured" and "uninsured" motorist coverage to their policies. "Underinsured"motorist coverage is insurance you purchase from your own insurance company to pay for your losses if you are injured by someone who doesn't have enough of their own liability insurance to pay for all the injuries you may suffer. "Uninsured" motorist coverage is insurance you purchase to pay for your own losses if you are injured by an uninsured driver or by a hit-and-run driver.
Recently a Pennsylvania highway worker was frustrated to find that she lost her entitlement to claim on uninsured motorist coverage because she didn't report the accident to the police. The worker was injured when she was forced to jump out of the way of an unidentified vehicle while working as a flagger on the highway. She promptly reported the incident to her employer and to the insurance company, faxing the insurance company a copy of the written report she filled out for her employer. The insurance company later denied the claim on the grounds that their policy and Pennsylvania law both require that all uninsured motorists incidents must be reported to the police.
The Pennsylvania Supreme Court acknowledged that the insurance company was correct. Both the policy and the Pennsylvania auto insurance laws require that persons who are injured or who make any claims for uninsured motorists incidents must report the incident to the insurance company within 30 days and also must report the incident to the police "or proper governmental authority" as soon as possible.
Unless you make a prompt police report, you will lose any claims you have for uninsured motorist coverage. Remember that your uninsured motorist coverage pays you for claims you have against individuals without any insurance and also for claims you have against a phantom driver who injures you and flees the scene. If a negligent driver can't produce reliable written evidence of current insurance coverage, assume that he or she has none and treat the incident as one involving an uninsured driver. Unless your injuries prevent you from waiting at the incident scene you should do so, even if it seems unnecessary or annoying. Reporting the accident after leaving the scene could be deemed untimely. If no police are available to come to the scene, you should go to the police department if possible. If your injuries prevent you from staying at the scene, take all steps you can to be sure someone else reports the incident to the police for you. And since the law doesn't define any other "proper governmental authority," it is wisest to report such incidents only to police and to be sure to make arrangements to get a copy of the police report.
Homeowners Sue Over Gas Spill
The Pennsylvania Storage Tank and Spill Prevention Act (STSPA) gives Pennsylvania officials and private citizens the right to sue to recover damages and clean-up costs when underground or above-ground storage tanks leak or spill petroleum products or other hazardous substances. Recently, homeowners who lived immediately adjacent to a gas station won the right to have their attorneys fees paid by the gas station in their STSPA suit.
The homeowners first became aware of the spill when they smelled a persistent "musty" odor in their basement. Soon, the odor spread throughout their home and took on the distinct smell of gasoline. When the homeowners complained to the gas station owner, they learned that the owner had detected a leak in one of his gas tanks a month earlier. Eventually the parties discovered that 200 to 300 gallons of gas had spilled underground and that the homeowners' home was substantially contaminated by high levels of benzene.
In the lengthy litigation that followed, the homeowners demanded that all their attorneys fees be paid by the gas station owner. Generally Pennsylvania law places the burden of payment of attorneys fees on each litigant; in limited kinds of lawsuits, attorneys fees are "shifted" to the party found to have engaged in wrongdoing. Because the STSPA permits courts to make attorneys fees awards, the homeowners insisted that all their fees be shifted to the gas station owner.
The Pennsylvania Superior Court found that the legislature identified the purposes of the STSPA to include protection of public health and promotion of responsibility for storage tank owners. The Court found that vigorous enforcement of the STSPA may not occur unless the trial courts award plaintiffs attorneys fees. Even where an attorney has agreed to accept a contingent fee--a fee that is a share of the damages award--the Court found that it is appropriate to require the responsible party to pay an award based on the actual hours the attorney devoted to the case. The STSPA provides broad and immediate remedies for persons whose land or property have been damaged by a storage tank spill. Litigants cannot count on receiving a 100% fee shift in storage tank spill cases, but they certainly can count on having a portion of their attorneys fees paid by the party responsible for the spill.
Liability for Careless Driving of Others
See Gibson v. Bruner, 178 A.2d 145 (PA 1961)(parent not responsible for son's driving absent knowledge of son's intoxication); Branjord v. Hooper, 688 A.2d 721 (Pa. Super. 1997), app. den. 704 A.2d 633 (PA 1997)(passengers who merely participated in procurement and ingestion of alcoholic beverages did not owe duty to pedestrian); Shomo v. Scribe, 686 A.2d 1292 (PA 1996)(owner who entrusts his vehicle to one he knows, or has reason to know, is unauthorized, or unlicensed, to drive vehicle on highway has civil liability); Breslin v. Ridarelli, 454 A.2d 80 (1982)(spouse not responsible for negligent driving of other spouse); Radkowski v. Nationwide Mutual Ins. Co., 36 Pa. D.&C. 3rd 485 (C.P. 1985)(spouse not responsible for negligent driving of other spouse); see also 75 Pa.C.S.A. ??1574, 1575 (statutory liability for unauthorized drivers).
See 23 Pa.C.S.A. ?5505 (liability of parents for damages awards against their children).
See Winwood v. Bregman, 788 A.2d 983 (Pa.Super. 2001)(social host liability). See also 18 Pa.C.S.A. ??6308-6310 (criminal liability for furnishing alcohol to minors).
Take Me Out
See Loughran v. The Phillies, et al., 888 A.2d 872 (Pa. Super. 2005).
Mechanics Liens
See 49 Pa.C.S.A. ? 1101 et seq.
Choking Patron
See Campbell v. Eitak, Inc., 893 A.2d. 749 (Pa. Super. 2006).
Report Accidents
See State Farm v. Foster, 889 A.2d 78 (PA 2005).
Storage Tank Spill
See 35 P.S. 6021.102 et seq. See also Krebs v. United Refining Co., 893 A.2d 776 (Pa. Super. 2006).
