PENNSYLVANIA LEGAL UPDATE
SUMMER 2003 ISSUE

WOMAN INJURED IN CAR ACCIDENT ALLOWED TO SUE GOVERNMENT CONTRACTOR

A woman who was paralyzed due to a serious car accident has been allowed to sue the contractor hired by the Pennsylvania Department of Transportation (PennDOT) to resurface the interstate highway where the accident occurred.

Generally speaking, state and local governments are immune from lawsuits. While many exceptions to this immunity exist, the most significant relate to the operation of motor vehicles by government employees and the maintenance of real estate by government entities. Because the design and construction of a highway are considered to be the maintenance of real estate, government agencies and government contractors are not immune from suit if they negligently design, construct, or maintain a highway. The removal of snow and ice is not considered to be related to the maintenance of highway real estate, since these accumulations are only temporary conditions.

The woman who was injured in the accident claimed that unsafe highway design and improper construction created a condition where water accumulated on the interstate highway, causing the unexpected hydroplaning of vehicles. The private contractor who completed the highway resurfacing construction maintained that it followed PennDOT's government specifications for the resurfacing project and, therefore, had a complete defense to any claims.

A Pennsylvania court ruled that the contractor's compliance with government contract specifications was not an absolute defense. In order to avoid liability for injuries caused by highway design or construction problems, a contractor must also show that it completed the project in a workmanlike manner, without any negligence. The injured woman produced comprehensive, detailed expert reports that raised serious questions about the contractor's work. The court ruled that the woman had a legitimate claim and was entitled to a jury trial.

In cases of liability for highway design and construction, competent expert reports are critical both to the plaintiff's claims and to the defendant's defenses. Where the experts disagree, the injured person is entitled to a jury trial.

CRUELTY TO ANIMALS

Recognizing the essential role played by spectators in illegal animal fights, the Pennsylvania legislature has made attendance at such events a crime. A person commits a felony if he or she pays for admission to or attends any animal fight as a spectator.

Recently, a man charged under the statute claimed that the law is unconstitutional since it makes mere presence at an animal fight a crime. Arguing that criminal statutes must require some criminal intent, the man stated that mere attendance at an event can never constitute a crime. The Pennsylvania Supreme Court disagreed, noting that the statute's reference to attendance "as a spectator" requires that the prosecutor prove that the person actually made a conscious choice to view the animal fight. The business of animal fighting is both cruel and criminal. Even casual attendance at such an event is a serious crime.

LOOPHOLE PREVENTS IGNITION INTERLOCK DEVICES

Pennsylvania drivers convicted for a second time of driving under the influence of alcohol lose their driving privileges for one year. In sentencing second offenders for DUI, the court must also require that they equip their cars with ignition interlock systems before their driver's licenses are restored. Courts also have the option to require the devices of first offenders.

An ignition interlock system is a security system that prevents a driver from starting the secured vehicle unless the driver first provides a breath sample with an alcohol level of less than .025%. Offenders who comply with the law and install interlock devices on all of their cars receive driver's licenses that are clearly marked to restrict the person to operating only motor vehicles equipped with approved interlock ignition systems.

A driver who is limited to using cars with interlock devices can be fined $1,000 and imprisoned for 30 days for driving a car not properly equipped with the device. Anyone who helps a driver thwart the operation of an interlock device can be fined up to $100. Drivers who violate the interlock law and anyone who assists in tampering with an interlock device lose their driving privileges for one year if convicted of the violation or tampering.

A Pennsylvania court recently ruled that unless the judge who sentenced the offender specifically ordered an interlock device in the sentencing order, the Pennsylvania Department of Transportation (PennDOT) may not require its installation as a condition to restoring driving privileges. Despite the fact that sentencing judges really have no choice in the matter, the court found that PennDOT has no separate authority to require the devices on its own initiative if the sentencing judge fails to do so. It is not clear why some sentencing judges may not be including the interlock device requirement in their sentencing orders, but it is clear that PennDOT cannot impose the requirement if it was not in the sentencing order.

BEWARE OF WHAT YOU SIGN

Medical Malpractice Claim Barred

A Pennsylvania man suffered a serious injury when a chain being used to tow a vehicle broke and struck him in the ankle. After emergency surgery, the man was permanently disabled with lack of mobility, inability to walk, and chronic pain. He settled his claims against the motor vehicle operator and the tow operator, signing a general release. When he went for additional medical treatment, he was advised that the initial surgery was not appropriate and that this medical malpractice greatly reduced his chances of recovering from the injury.

The general release that he had signed for the insurance company when he settled his motor vehicle claims operated as a complete bar to recovering anything for the medical negligence. Even though the general release drafted by the insurance company did not mention the hospital or doctor who treated the man, its very broad language releasing "all claims" against "all persons" protected the defendants in the medical malpractice case.

The broad language of general releases can have unexpected and unwanted consequences. Before signing a release, an injured person should be absolutely sure that all of his or her potential claims have been resolved. Properly worded, a release can express a more narrow application only to the actual parties involved in the settlement. Since releases are final and binding, they should be signed only after careful consideration.

YOUR BANK RECORDS MAY NOT BE PRIVATE

The names and addresses of customers who use automated teller machines (ATMs) are not completely private, according to the Pennsylvania Supreme Court. Recently, Philadelphia police officers investigating a rape learned that a man who closely fit the victim's description of her attacker attempted to use an ATM machine at a retail store near the crime scene. The store clerk provided the police with a printout of the day's ATM transactions. The list showed all of the bank account numbers and identified the banks involved in the transactions.

Using the list and the store's video surveillance tape, the police narrowed the list to several suspect transactions. When the police telephoned one of the banks connected to a questionable transaction, a bank officer voluntarily disclosed the cardholder's name and address. No search warrant, subpoena, or court order for the bank records was ever secured by the police. Further investigation produced a DNA match between the cardholder and the forensic evidence collected from the victim.

The suspect tried to have the DNA evidence suppressed on the grounds that the police investigation was tainted by an unconstitutional invasion of his privacy in his bank records. Pennsylvania law recognizes limited constitutional privacy rights in bank records. However, the Pennsylvania Supreme Court in this case distinguished between broad access to personal information and the bank's simple disclosure of the cardholder's name and address.

Noting that the police already had the list of transactions from the retail clerk, the court observed that the police did not request or receive any checks, bank statements, bond information, loan documents, or other financial documents. In fact, the police were simply supplied with an oral identification of the cardholder. Since a person's name and address do not reveal his or her "personal affairs, opinions, habits or associations," the court was untroubled by the police having secured warrantless access to the information.

The initial disclosure of the ATM printout by the retail clerk was an important aspect of the court's decision. Where bank customers confine their transactions to bank ATMs, as opposed to using machines in retail stores, they may be entitled to a higher degree of privacy in their transactions. But whatever the nature of a bank transaction and wherever it is located, Pennsylvania law now permits banks to disclose customers' names and addresses to the police in connection with investigations.

DO NOT DESTROY ANOTHER'S WILL

It is a felony to destroy or conceal a will when doing so is part of a scheme to deceive others. The Pennsylvania Crimes Code prohibition on destroying wills certainly does not limit an individual's right to destroy his or her own will. While it is generally considered wisest to prepare a new will before destroying an existing will, an individual is absolutely entitled to revoke his or her will by destroying it. But anyone else, whether or not a beneficiary of a will, commits a serious crime by destroying a will with the intent to deceive or defraud others.

WORKERS' COMPENSATION FOR DISEASES

The Pennsylvania Workers' Compensation Act takes away from employees their right to sue their employers for injuries they suffer in the course and scope of their employment. But the loss of the right to sue is balanced by the strict liability that the Act imposes on employers. With few exceptions, when employees are injured while working, they automatically are entitled to the medical and income benefits provided by the Act. The injured employee need not prove that the employer was negligent, and any negligence or fault on the employee's part does not reduce or eliminate the employee's entitlement to benefits.

Identifying whether an injury is work related is sometimes difficult. Recently, a Pennsylvania court ruled that a nurse infected with hepatitis C was presumed to have contracted the disease at work. The nurse worked for a home health-care agency for seven years. When she unexpectedly was diagnosed with hepatitis C, she promptly filed a workers' compensation claim for disability benefits. The nurse claimed that she was infected from seven to eight "needle sticks" that she suffered over the years of her employment.

The Workers' Compensation Act lists certain diseases as "occupational diseases." An employee is presumed to have contracted an occupational disease at work if he or she is infected with the disease and was employed in any occupation or industry for which that particular occupational disease is identified as a hazard. Included in the Act's list of occupational diseases is hepatitis C as a hazard to the field of nursing.

A medical expert who testified on behalf of the nurse noted that the nurse did not have any history of blood transfusion, organ transplant, tattoos, or intravenous drug use. He concluded that the needle sticks at work were the only source from which she could have contracted hepatitis C. The nurse's employer complained that she had only reported one of the seven to eight needle sticks that she claimed to have suffered, and that the report was made in the first year of her seven years of employment. The employer also questioned whether the nurse's experiences with needle sticks while in nursing school may have exposed her to the disease.

The court allowed that employers are entitled to challenge the presumption that a worker is suffering from an occupational disease. However, the nurse's employer was not able to prove that the nurse contracted hepatitis C from another source and, therefore, the nurse was entitled to workers' compensation benefits.

Hepatitis C is a serious disease. According to the Center for Disease Control, of every 100 persons infected about 75 to 85 of them develop long-term infection and 70 persons develop chronic liver disease. After initial exposure, 80% of those infected with hepatitis C show no immediate symptoms. Employees in protected industries who contract hepatitis C should take prompt steps to document the circumstances of their exposure.

Employers should be equally concerned with memorializing the facts and circumstances of workplace exposure. The presumption that hepatitis C is a compensable, work-related occupational disease is invalidated if the employer establishes a valid employee screening program and if blood testing done through that program establishes that the employee contracted the hepatitis C virus prior to any job-related exposure.