PITTSBURGH – A Trafford woman argues that Forbes Hospital’s attempt through preliminary objections to paint her case as a misclassified premises liability action is also erroneous.
Susann A. Seibel of Trafford first filed suit in the Allegheny County Court of Common Pleas on March 17 versus Forbes Hospital, of Monroeville.
“On or about Oct. 20, 2020, plaintiff was lawfully on the premises as a business visitor and invitee in order to undergo surgery at the premises. At or about the aforesaid date and place, plaintiff was instructed by the defendant to travel to the Surgical Center located on the second floor of the premises. Defendant did not offer plaintiff to be escorted to the Surgical Center despite the fact that she was using a walker and was at the premises of the defendant to have surgery. Additionally, plaintiff and plaintiff’s husband requested that plaintiff’s husband be able to escort plaintiff to the Surgical Center on the second floor and the defendant did not permit plaintiff to be escorted to the Surgical Center on the second floor by plaintiff’s husband,” the suit said.
“At or about the aforesaid date and place, after being denied an escort from the defendant and after being denied permission for her husband to act as escort, the plaintiff was lawfully and carefully walking through the Surgical Center on the second floor of the premises as instructed by defendant when she was using her walker and was caused to trip and fall by reason of a carpet of the defendant getting caught in her walker, causing the plaintiff to suffer the serious injuries and damages.”
The suit added that the defendant’s negligence in failing to properly direct and escort the plaintiff through the premises when she arrived for her surgical procedure.
“Solely as a result of the negligence of the defendant, as set forth above, plaintiff has been caused to suffer the following injuries, some or all of which may be permanent in nature: Lacerations to her face, broken septum, injuries and trauma to the bones, muscles, ligaments, tendons and other issues of her right leg, right knee, neck, back and shoulders, shock and attendant nervous disorder,” the suit stated.
“As a result of the negligence of the defendant, as aforesaid, plaintiff has been caused to suffer the following damages: Pain, suffering and inconvenience, the diminution or lessening of life’s pleasures and mental anguish and embarrassment.”
On May 18, defense counsel filed a notice of intention to seek a judgment of non pros in the case.
“Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after 30 days of the date of the filing of this notice if a certificate of merit is not filed as required by Rule 1042.3,” defense counsel’s filing read.
“I am serving this notice on behalf of defendant, West Penn Allegheny Health System, Inc. (doing business as “Forbes Hospital”). The judgment of non pros will be entered as to all claims against the defendant as set forth in plaintiff’s complaint sounding in negligence.”
Seibel’s counsel filed a motion seeking determination of necessity for filing a certificate of merit on June 2.
“On March 17, 2022, plaintiff filed a civil complaint against Forbes Hospital alleging negligence and the Supreme Court of Pennsylvania civil cover sheet states this case is a premises liability action. On May 18, 2022, counsel for defendant Forbes Hospital, who identifies the defendant as ‘West Penn Allegheny Health System, Inc. doing business as ‘Forbes Hospital’, filed a notice of intent to enter judgment of non pros for failure to file certificate of merit,” the motion stated.
“Pursuant to Pennsylvania Rule of Civil Procedure 1042.6, the plaintiff files this motion seeking a determination by the Court as to the necessity of filing a certificate of merit in this action. Plaintiff respectfully avers that the allegations of negligence in the complaint are averments of ordinary negligence in a premises liability action, and said averments do not contain allegations that a licensed professional deviated from an acceptable professional standard.”
Allegheny County Court of Common Pleas Judge Daniel D. Regan ruled that the certificate of merit was not necessary to be filed in the case, through a June 23 judicial order.
“Upon consideration of the foregoing motion seeking determination of necessity of filing a certificate of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.6, it is hereby ordered, adjudged and decreed that a certificate of merit is not required to be filed by the plaintiff in this case,” Regan said.
Forbes Hospital and its counsel filed preliminary objections on July 14, countering the lawsuit with the notion that the plaintiff’s choice to pursue the case as a premises liability action, instead of a professional liability action, was a deliberate move to circumvent the filing of a certificate of merit, and is not supported by the law.
“A possessor of land is liable to its invitees for physical harm caused by a condition of the land if, but only if, the possessor (A) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, and (B) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (C) fails to exercise reasonable care to protect them against the danger. Plaintiff has not alleged that she was injured by a dangerous condition of land,” the objections stated, in part.
“Instead, she alleges that defendant breached of duty to escort her or allow her husband to escort her. Simply put, there is no duty recognized by Pennsylvania law for a possessor of land to be required to escort (or allow the escorting) of a business invitee on their property. Plaintiff alleges that the defendant hospital failed to properly direct her on its premises. Again, there is no law supporting the proposition that a possessor of land is required to direct a business invitee on the premises. Furthermore, plaintiff does not allege that some faulty directions caused her to fail. The factual allegations in the complaint, even if they are assumed to be true, do not set forth a valid cause of action against this defendant with the theory the plaintiff is bound to.”
The objections added that the complaint has a number of “nebulous, vague and boilerplate allegations” and does not allege whether the defendant “actually gave her directions that were faulty or failed to offer her directions”, in addition to the allegations supposedly allowing the plaintiff to assert new causes of action after the statute of limitations expires.
UPDATE
In an Aug. 29 brief opposing the preliminary objections, plaintiff counsel countered that claims at issue are in fact valid.
“In the preliminary objections filed by defendant, the defendant argues that the plaintiff is estopped from assuming a position that this is anything more than a standard premises liability claim because the plaintiff previously argued that she is not asserting a deviation from a professional standard of care or a professional liability claim. However, defendant’s position is inconsistent with the Pennsylvania Rules of Civil Procedure. Pursuant to Pennsylvania Rule of Civil Procedure 1042.6(c), a plaintiff may file a motion seeking a determination by the Court as to the necessity of filing a Certificate of Merit,” the brief said.
“That is what the plaintiff did in this case. The issue was argued before the Allegheny County Court of Common Pleas which issued an order dated June 22, 2022, that the plaintiff was not required to file a Certificate of Merit. The rules do not prohibit the plaintiff, if necessary, from later in the case filing a Certificate of Merit and arguing a professional liability claim. Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a)(3), a plaintiff cannot present testimony by an expert on the questions of standard of care and causation if the plaintiff certifies under that same rule that expert testimony of an appropriate licensed professional is unnecessary for the prosecution of the claim. However, that is not what the plaintiff did in this case”
For a lone count of negligence, the plaintiff is seeking damages in excess of the jurisdictional limit for arbitration of the Court, exclusive of costs and interest.
The plaintiff is represented by Jeffrey D. Monzo of Quatrini Rafferty, in Greensburg.
The defendant is represented by Brett C. Shear of Marshall Dennehey Warner Coleman & Goggin, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-002938
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com