PBI-Tort Law Update August 16, 2007

MiscellaneousMiscellaneous TortTort IssuesIssues

Philadelphia Lawyer Philadelphia Lawyer : Joel D. Feldman, Esq.: Joel D. Feldman, Esq.

Anapol, Schwartz, Weiss, Cohan, Anapol, Schwartz, Weiss, Cohan,

Feldman & Smalley, P.C.Feldman & Smalley, P.C.

1900 Delancey Place1900 Delancey Place

Philadelphia, PA 19103Philadelphia, PA 19103

(215) 735-3716(215) 735-3716

jfeldman@jfeldman@anapolschwartzanapolschwartz.com.com

Campizi v. Acme Markets (Pa. Super. 2006)

Blind Acme employee's caneBlind Acme employee's cane

Rounding corner of parallel aisles  Rounding corner of parallel aisles  

Duty to warn invitees of risk posed Duty to warn invitees of risk posed by disabled employee with caneby disabled employee with cane

Restatement (Second) of Torts §343A

Known and Obvious Dangers Known and Obvious Dangers 

Plaintiff's Duty v. Defendant's Duty Plaintiff's Duty v. Defendant's Duty 

Control of Employee?Control of Employee?

Campbell v. Etiak (Pa. Super. 2006)

Chicken teriyaki lodged in throat Chicken teriyaki lodged in throat 

No restaurant employee trained in No restaurant employee trained in Heimlich maneuverHeimlich maneuver

What duty of care owed?What duty of care owed?

Venue-PA R.C.P §2179

Actions against corporations or Actions against corporations or similar entitiessimilar entities

County of registered office or County of registered office or principal place of businessprincipal place of business

Where cause of action aroseWhere cause of action arose

Where it regularly conducts businessWhere it regularly conducts business

Regularly Conducts Business

Quality and quantity test-Quality and quantity test-PurcellPurcell v. v. BrynBryn MawrMawr HospitalHospital

Quality

Acts essential or in furtherance of Acts essential or in furtherance of business objectivesbusiness objectives

Not incidental acts, ic advertising, Not incidental acts, ic advertising, hiring, traininghiring, training

Quantity

regularly not principally”regularly not principally”

How much of corporations business How much of corporations business is sufficientis sufficient

Zampana-Barry

Legal malpractice Legal malpractice case filed against case filed against Delaware County law firm in Delaware County law firm in Philadelphia CountyPhiladelphia County

Failure to protect case against Failure to protect case against defendant who filed for bankruptcydefendant who filed for bankruptcy

Quality

Law firm admitted it represented Law firm admitted it represented clients in clients in Philadelphia CountyPhiladelphia County

Law firm’s essential purpose is to Law firm’s essential purpose is to represent clientsrepresent clients

Quantity

3-5% of legal services3-5% of legal services

What % is enough?What % is enough?

Canter v. American Honda-1 to 2%Canter v. American Honda-1 to 2%

Judge Klein-concurred

Trial court did not abuse its Trial court did not abuse its discretiondiscretion

No clear standard and inconsistent No clear standard and inconsistent decisionsdecisions

Masel Masel v.v. Glassman Glassman- 3% revenue not - 3% revenue not sufficientsufficient

BattuelloBattuello v. v. CamelbackCamelback-5% -5% customers not sufficientcustomers not sufficient

CanterCanter v. v. AmericanAmerican HondaHonda-1 to 2% is -1 to 2% is sufficientsufficient

Hybrid “quality-quantity” analysis? Does defendants “percentage Does defendants “percentage

connection” result from defendant connection” result from defendant coming into Philadelphia to act-coming into Philadelphia to act-ZampanaZampana & & CanterCanter

oror

from Philadelphians going to the from Philadelphians going to the defendants County-defendants County-MaselMasel & & BattuelloBattuello

Removal-What are Plaintiff Attorney’s doing?

Original Original Federal Court JurisdictionFederal Court Jurisdiction

Federal questionFederal question

diversitydiversity

28 U.S.C. §1441(b)

Removal based on diversity of Removal based on diversity of citizenshipcitizenship

What does §1441(b) provide? In non-federal question cases, In non-federal question cases,

removal only if:removal only if:

“ “none of ..defendants is a citizennone of ..defendants is a citizen

of the State of which suit action of the State of which suit action is brought.” is brought.”

Plaintiff N.J. CitizenPlaintiff N.J. Citizen

Defendant PA CitizenDefendant PA Citizen

Sue in Philadelphia CountySue in Philadelphia County