The plaintiff in this matter was a patron at our client’s bar when he stumbled and fell inside the facility but was not injured at the time. He was approached by a security guard who was in the process of assessing him, when his buddy came up and they left the premises together. Seconds after leaving the bar, the plaintiff fell a second time, cracking his skull on the pavement, sustaining a severe head injury leading to emergency surgery, a real risk of death and six weeks hospitalization. The plaintiff claimed his first fall inside the facility was the result of a seizure which the guard should have recognized as a medical event and summoned emergency medical services. The defense contended successfully that Plaintiff caused his own harm by mixing alcohol and powerful anti-seizure medications in a manner which had an additive impact on his level of impairment. The jury deliberated only 23 minutes before concluding that the Defendant bar was not negligent and that its conduct did not cause the Plaintiff’s harm.

Margolis Edelstein partner Miles Kirshner represented the owner of a warehouse, in which storage space was rented to a commercial tenant. The Lease contained provisions stating that the landlord is not liable for damage to the tenant’s property and requiring the tenant to obtain its own insurance to protect its property. The tenant’s property was damaged by water infiltration into the storage space. The tenant sued the landlord for negligence in failing to maintain the building.

Margolis Edelstein moved for summary judgment, contending that the exculpatory clauses in the subject lease are enforceable as a matter of law. Summary judgment was granted in the Court of Common Pleas of Allegheny County, and the tenant appealed. In a precedential Opinion filed November 22, 2021, the Superior Court has affirmed this judgment in favor of the landlord. Superior Court has agreed with the defense position that the exculpatory clause in question is enforceable, and that the tenant cannot pursue its negligence claim.

Please the link below to access and read this precedential opinion. For further information, feel free to contact Attorney Kirshner.

On August 19, 2021, Pittsburgh partner Miles Kirshner secured a defense verdict for an insured client in a jury trial occurring in Elk County, PA. Our client was a construction contractor which had fabricated large hollow wooden columns for installation as part of the rehabilitation of an older home. Plaintiff constructed a home-made lathe which he used to attempt to turn these columns into a rounded shape. Plaintiff sustained a traumatic brain injury when he was struck by a piece of wood that came off of the column he was turning. Plaintiff alleged that the Defendant had negligently assembled the subject column using nails instead of wood glue. The Defendant denied the claim of negligent construction of the column, and contended that the Plaintiff was comparatively negligent for using an unsafe machine in an improper fashion. After a four-day trial, the Elk Co. jury returned its verdict finding our client not negligent.

Plaintiff attended a baby shower held on a February night at the social hall of her local American Legion. When she and the other party guests arrived, the sloped parking lot was wet, but everyone was able to enter safely. While the guests were inside, the sun set, the temperature dropped, and precipitation continued. When the Plaintiff emerged into the parking lot it was covered with what she regarded as a glaze of black ice. She slipped and fell striking the back of her head. At trial, Plaintiff attempted to overcome the impact of the hills and ridges doctrine by contending that the parking lot itself was defective, and that there was an underlying crack / rut that was layered with ice that she contended was pre-existing and should have been cleared.  Trial of this matter also included a deep dispute on the question of medical causation. While all parties acknowledged a mild concussion, this Plaintiff would go on to develop, approximately nine months after her fall, a recurring experience of psychogenic non-epileptic seizures. These seizure-like events have ruined her life, disabling her from working, preventing her from driving and according to her experts, fundamentally affecting her ability to enjoy life. Plaintiff contended that the development of this seizure-like issue was causally related to the fall at the American Legion. Evidence at trial included special damages of approximately $1.7 million, including past and future medical expense and economic loss.

The defense position at trial was to concede that the Plaintiff is very sick, but to cite available medical evidence to contend that her illness is psychiatric. Discovery had revealed an unfortunate history of physical and sexual abuse sustained by this individual in her childhood. Psychological counseling records showed that there was a lifelong issue of panic and anxiety that was repressed. In the time frame that was of interest in this case, however, the Plaintiff came to believe that her former abusers were re-entering her life and creating a current threat to her. The defense contended that it was this fear which triggered the psychogenic seizures. The defense further contended, by effective use of surveillance evidence, that the Plaintiff was misrepresenting the extent of her injury. This evidence was key in removing any element of sympathy that might have existed for this ill-appearing Plaintiff.

This trial was held in the Court of Common Pleas of Fayette County, PA. The jury were socially distanced throughout the courtroom gallery. There were plexiglass barriers between counsel and around the witness stand. All trial participants wore masks, except counsel when speaking and the witnesses while testifying. During trial one juror did report a secondary exposure risk in her home life. Because this exposure was secondary, the Court determined to dismiss the potentially exposed juror, but to go forward with the trial seating one of the alternates.

On October 26, 2020, the jury responded to a special interrogatory finding that the American Legion was not negligent. Accordingly, the verdict in this trial was for the Defendant. The jury did not reach and did not decide on the question of medical causation.

Our Pittsburgh partner, Miles Kirshner, represented The Inn at Edgewater Acres in a liquor liability case arising from the death of a 36 year old mother of two in a single vehicle accident. The decedent’s estate contended that this drunken driver was served alcohol at a time when she was visibly intoxicated. After conducting the depositions of all those people who were present at the time and place that the decedent was served, The Inn filed a Motion for Summary Judgment citing the absence of evidence from which the plaintiff could meet her burden of proof. In an Order and Opinion filed April 6, 2018, Judge Timothy Sullivan, sitting by designation in the Court of Common Pleas of Huntingdon County, PA, granted this motion and dismissed the liquor liability claim.

For a copy of this Opinion, or to discuss liquor liability matters, contact Mr. Kirshner at 412-355-4962

In a case of first impression in the PA US District Court, Pittsburgh colleagues Miles Kirshner & Kyle McGee successfully argued a contribution action by an insurer of a drunk driver against our restaurant licensee was not actionable. The insurer paid $600,000 on behalf of their vehicle operator to resolve the claim of his passenger. The driver and passenger had been customers at our client’s restaurant and the insurer seeking contribution contended the operator was over-served.

Miles & Kyle argued the cause of action asserted against our licensee was not cognizable under the Pennsylvania Liquor Code, as the plaintiff insurer and its insured driver were not “third persons” permitted to recover damages under the Liquor Code. The court agreed reying on the protection afforded to licensees under the PA Liquor Code which “… only allows third persons to recover against a liquor license holder… for the injuries inflicted upon them” (emphasis from the court).

The claim professional commented: “This is a fantastic outcome!!!! You guys did an excellent job with the strategy that you proposed. I can’t wait to broadcast this result and take a smidge of credit.”

Miles A. Kirshner, Esq., a partner in our Pittsburgh office, prevailed in his Motion for Judgment on the Pleadings on behalf of our homeowner’s insurance carrier client in a recent Armstrong County matter.  The underlying action involved the wrongful death of Barbara Ann Van Horn who had consumed controlled substances allegedly supplied by homeowner, Dentici while a guest at Dentici’s residence. 
Miles contended in the Motion four alternative theories: (1) that there was no occurrence; (2) that the controlled substances exclusion applied; (3) that the “expected or intended” exclusion applies; and/or (4) that Pennsylvania’s public policy precludes insuring against acts of the type allegedly perpetrated by Dentici. 
Armstrong County Judge Panchick opined that all of these grounds may well be meritorious, however, he decided this case based on the clear and unambiguous application of the Controlled Substances exclusion agreeing with two fundamental points set-forth in Miles’ Motion and Brief: (1) that the Court’s analysis was limited to the allegations of fact set forth in the Complaint; and (2) that those facts led to the inescapable conclusion that the decedent’s death allegedly arose out of the delivery of controlled substances.

On May 2, 2011 Margolis Edelstein filed an Amicus Curiae Brief in the Supreme Court of Pennsylvania in Scampone v. Highland Park Care Center.  This brief, prepared by Pittsburgh partner Miles A. Kirshner, Esq. was filed on behalf of Complete Healthcare Resources – Eastern, Inc., a provider of nursing home management services.  The Supreme Court has accepted for review the question of extension of the tort of corporate negligence to both a nursing home and to “the healthcare company responsible for its operations.”  In this brief, CHR-Eastern demonstrates that a nursing home management company is not a licensed provider of medical services, and contends for that reason, that corporate negligence should not be extended to companies of this type.

Congratulations to Pittsburgh partner, Miles A. Kirshner, Esq., for successfully defending our waste hauler client in a week-long trial in Clarion County.  Our client’s garbage truck was momentarily stopped on the wrong side of the road and, per plaintiff’s allegations, inadequately illuminated.  The plaintiff’s vehicle struck our client’s truck head-on, resulting in life threatening and permanent injuries.   Policy limits of $1,000,000 demanded.  Miles persuaded the court to accept evidence of plaintiff’s alcohol consumption for the consideration of the jury, and presented a re-creation demonstrating the substantial sight lines available to the plaintiff as he approached the defendant’s vehicle.  After a lengthy deliberation, the jury which had bonded with the seriously injured plaintiff and his family, nonetheless returned a verdict finding his negligence to have amounted to 70% of the causation of his own harm.  Plaintiff was therefore precluded from any recovery under Pennsylvania law.

On January 16, 2008, the Commonwealth Court of Pennsylvania affirmed the grant of summary judgment in a wrongful death matter defended by Margolis Edelstein Pittsburgh partner Miles A. Kirshner.  The decedent was killed as a result of a motor vehicle accident which occurred when he pulled from a side street into a larger thoroughfare in the City of Erie, PA.  His estate brought suit against a tavern located at this intersection, contending that it was negligent in permitting its patrons to park their vehicles so close to the corner as to cause an obstruction to the view of the emerging motorist.  The estate noted that the City of Erie has an ordinance requiring property owners to maintain sidewalks, and contended that this tavern was non-compliant because it did not have a sidewalk in front of its premises.

Following the grant of summary judgment in the Court of Common Pleas of Erie County, an appeal was taken to the Commonwealth Court of Pennsylvania.  In its Memorandum Opinion and Order, the appellate court agreed with the defense position that the tavern had no cognizable legal duty to the decedent motorist.  The Court held that the City of Erie sidewalk ordinance contained a grandfather provision which excepted existing uses at the time of its passage; that the ordinance was for the benefit of pedestrians and not for motorists; that the subject motor vehicle accident was not a reasonably forseeable consequence of violation of the ordinance; and that subjecting this property owner to liability would be unfair under Pennsylvania’s traditional analysis of legal duty.