PHILADELPHIA – A slip-and-fall injury suit against Federal Express which had attracted the attention of a leading organization for trial lawyers in Pennsylvania and was headed for trial this month, was recently settled.
Russell E. Failor Jr. and Cathy Failor of Sherman’s Dale first filed suit in the Philadelphia County Court of Common Pleas on Dec 17. 2018, versus FedEx Corporation (through its registered agent, CT Corporation), of Philadelphia.
This case stemmed from serious injuries which plaintiff Russell E. Failor, Jr. sustained on or about June 28, 2018 at FedEx Ground Terminal No. 219, 11825 New Gate Boulevard, Hagerstown, Md.
“On or about June 28, 2018, plaintiff was employed as a tractor trailer driver for Gorbach Trucking. As part of his job, he was required to pick up two trailers that, upon information and belief, were in the exclusive control of defendant. That day, while on the defendant’s premises, plaintiff was caused to slip and fall on an unknown substance on the rear of a FedEx trailer, which was a defective and/or dangerous condition, causing plaintiff to fall from the rear of the trailer and suffer serious and permanent injuries. This incident caused plaintiff Russell E. Failor, Jr. to sustain severe, permanent and disabling personal injuries, including, but not limited to, a shattered heel,” the suit said.
“At or about the same date, time and place in question, and for some period of time prior thereto, defendant, acting individually, jointly and/or by and through its agents, servants, franchisees, workmen and/or employees, negligently and/or carelessly allowed and permitted a dangerous and unsafe condition to exist, including but not limited to, the unknown substance on the trailer which directly resulted in the plaintiff’s injuries. Defendant FedEx created and/or was aware of this hazardous condition. Due to his injuries, plaintiff underwent surgery and required additional medical care and treatment thereafter. Plaintiff has been unable to return to work since this accident as a result of the injuries he suffered.”
The plaintiffs, on counts of negligence and loss of consortium, sought in excess of $50,000 in damages.
On Nov. 6, 2019, Philadelphia County Court of Common Pleas Judge Denis P. Cohen granted the defendant’s motion to dismiss the case without prejudice, so that it could be re-filed in a Maryland court.
This led the plaintiffs to appeal to the Superior Court of Pennsylvania on Nov. 25, 2019, and concurrently pursue matters complained of on appeal in the trial court.
In a June 22, 2020 trial court opinion, Cohen upheld the initial dismissal of the case (and its initial appeal from the plaintiffs) on the basis of the doctrine of forum non conveniens.
“The facts of this case strongly favor dismissal pursuant to Section 5322(e) and transfer to Maryland. Plaintiff’s slip and fall incident occurred at Defendant’s facility located in Hagerstown, Maryland. Plaintiffs reside in Perry County, Pennsylvania, which is approximately 130 miles from Philadelphia and approximately 70 miles from Hagerstown, Md. Plaintiff has not received any medical treatment in Philadelphia relative to injuries allegedly sustained as a result of the incident. Rather, plaintiff received all of his medical treatment in either Dauphin County or Cumberland County, Pennsylvania,” Cohen said.
“The known potential witnesses with firsthand knowledge of the incident or the premises thereon are either former or current employees for FedEx Ground at the Hagerstown, Md. facility…all three individuals reside near Hagerstown, Md. The facts make it clear that the majority, if not all, of the potential witnesses and sources of proof with any connection to the underlying case either reside or are located near Hagerstown, Md., thereby establishing Maryland as ‘a more convenient forum where the litigation could be conducted more easily, expeditiously, and inexpensively.”
The Pennsylvania Association for Justice filed an amicus brief in the matter with the Superior Court on Sept. 1, 2020, on behalf of the plaintiffs and arguing that the trial court misapplied the law when it dismissed the case from a Philadelphia court in favor of a Maryland one.
“The Pennsylvania Association for Justice files this amicus brief to ensure that injured plaintiffs will continue to enjoy the ability that Pennsylvania law confers on all plaintiffs, whether corporations or individuals, to file suit in the location that they deem most advantageous so long as it is a location that the law recognizes as proper,” the PAJ’s brief said.
“Ensuring that the forum non conveniens doctrine is not improperly applied to deprive injured plaintiffs of the forum of their choosing, unless the law leaves no alternative, is a principle that the Pennsylvania Association for Justice seeks to advance through its participation as amicus curiae in this case. PAJ urges this Court to reverse the decision of the trial court because it was an abuse of discretion for the trial court to dismiss this litigation pursuant to 42 Pa.C.S. Section 5322(e).”
According to the PAJ, the trial court “improperly evaluated the convenience of litigating this matter in Philadelphia County versus Washington County, Md., rather than evaluating if there were weighty reasons to overcome plaintiffs’ choice of Pennsylvania as the forum state for this litigation.”
When the plaintiffs filed their appeal brief on Sept. 2, 2020, they cited Page v. Ekbladh, and argued it required the reversal of the trial court’s order dismissing this action, in favor of requiring it to be re-filed in another state under forum non conveniens.
“As in Page, here both the plaintiffs and the defendant are Pennsylvania citizens. Therefore, as in Page, even though the tortious acts resulting in the injuries giving rise to plaintiffs’ claims occurred outside of Pennsylvania, it is improper for a trial court to dismiss the lawsuit and require that it be refiled in another state,” the plaintiffs’ brief said.
“The plaintiffs are Pennsylvania residents. All of Mr. Failor’s medical care was provided in Pennsylvania. And requiring FedEx Ground, itself a Pennsylvania citizen that has its principal place of business in Pennsylvania, to keep its trailers in a safe condition to avoid inflicting injuries on independent contractors such as Mr. Failor is something that Pennsylvania itself has a very strong interest in ensuring.”
FedEx’s brief, filed one month later on Oct. 1, 2020, where it countered that the trial court did not abuse its discretion when it dismissed the case.
According to the company, in Page, Pennsylvania plaintiffs filed a medical malpractice action against a Pennsylvania defendant, and at the time of the alleged malpractice, the plaintiffs and defendant both resided in Virginia and the alleged malpractice occurred there.
Per the company, all parties subsequently moved to Pennsylvania and plaintiffs filed suit in Pennsylvania. Thus, the defendant filed a motion to dismiss based upon forum non conveniens, and the trial court granted the motion.
“The trial court acknowledged and considered the fact that plaintiffs are Pennsylvania residents, and that FedEx Ground maintains its principal place of business (and conducts business) in Pennsylvania. But the trial court found that, in this particular instance, ‘weighty reasons’ exist to overcome plaintiffs’ choice of forum and an available alternative forum is available to the Failors,” per the company’s brief.
“Specifically, the incident giving rise to plaintiffs’ complaint occurred in Maryland. The known witnesses are employed in Maryland and reside near the FedEx Ground facility in Maryland. Maryland is an available alternative forum. It was within the trial court’s discretion to weigh the relevant factors, and the trial court’s conclusion should not be overruled.”
On March 17, 2021, the Superior Court remanded the case to the Philadelphia County Court of Common Pleas, where it was initially assigned to the trial pool for June 2022.
UPDATE
On May 27, just days prior to trial, Philadelphia County Court of Common Pleas Judge Linda Carpenter announced that the case had been settled. Terms of the settlement were not disclosed.
Plaintiff counsel, Gabriel C. Magee of Levy Baldante Finney & Rubenstein in Haddonfield, N.J., followed up with a praecipe to note the case as settled on May 31.
“Kindly mark the above-captioned matter settled, discontinued and ended,” the praecipe stated.
Philadelphia County Court of Common Pleas case 181201881
Superior Court of Pennsylvania case 3491 EDA 2019
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com