PENNSYLVANIA LEGAL UPDATE

WINTER 2003/2004 ISSUE

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SNOW AND ICE REMOVAL

Landowners and occupiers are responsible for keeping their homes, buildings, and grounds reasonably safe for visitors. This duty includes the removal of snow and ice. If you rent your home or business location, your lease may make you responsible for snow removal. Whether owner or tenant, if you are responsible for snow removal, you can also be held liable for injuries caused to others by your failure to remove snow and ice within a reasonable time of accumulation.

"Hills and Ridges"

Even the most vigilant business or homeowner sometimes cannot keep up with falling snow and ice. Where snowy or icy conditions exist, an owner or occupier is only liable to others for their injuries from falls if the accumulation of snow and ice has extended over such time that it has formed into "hills and ridges." The "hills and ridges doctrine" protects an owner or occupier of land from liability for slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. The hills and ridges doctrine arose because, according to one court, a requirement that a landowner's walks always be free of ice and snow would impose "an impossible burden in view of the climatic conditions in this hemisphere." Local ordinances and common sense require that landowners and occupiers take care promptly to remove snow and ice from areas where people can be expected to walk.

Recent Court Case

In a recent Pennsylvania case, a condominium association was found not responsible for a condominium tenant's fall in the parking lot. Following an evening snow storm, the tenant fell in an area between parked cars in the parking lot at 7:45 a.m. The court ruled that it would be totally unreasonable to require a landlord to clear the areas between his tenants' parked cars prior to removal of the cars in the early morning after a snowfall.

The tenant claimed that the hills and ridges doctrine should not apply since the association was responsible under her lease to take care of all snow removal. The Pennsylvania court ruled that even where a contractual obligation to remove snow exists, unless the snow has accumulated in ridges and hills, a landowner or occupier cannot be held responsible for the personal injuries of a tenant who falls.

If you are responsible for snow removal, you must clear snow and ice as quickly as is reasonably possible. If you find that snow and ice have accumulated on your property in ridges and hills, be sure to remove the accumulation immediately and, pending complete removal, consider posting a warning sign advising others not to walk over the area.

If you are injured by a fall on snow or ice, you should determine whether your fall was unavoidable or was the fault of careless snow removal. Unless the snowy/icy condition is marked by an accumulation that has formed hills and ridges, the landowner or occupier will not be considered to have been negligent. Anyone potentially involved in a dispute over a fall on snow and ice should take photos of the area to properly document its condition at the time of the fall.





DO-NOT-RESUSCITATE ORDERS

The Pennsylvania Legislature has created a means for terminally ill individuals to make a choice regarding cardiopulmonary resuscitation (CPR). CPR, often initiated by emergency medical personnel, is the medical process used to restart a patient's heart and breathing. It can consist of simple efforts like mouth-to-mouth resuscitation and chest compression. It also can advance to defibrillation, insertion of breathing tubes, and injection of medications.

The new Pennsylvania law permits a terminally ill person to have his or her attending physician issue an "out-of-hospital do-not-resuscitate order" (DNR order). If a terminally ill patient who has secured a DNR order suffers cardiac or respiratory arrest outside the hospital, and the responding emergency medical personnel discover the original DNR order, they are obliged to respect the DNR order and should not attempt CPR.

Patients whose physicians have issued DNR orders should opt to wear a DNR bracelet or necklace to clearly inform emergency personnel of the existence of the DNR order. The bracelets and necklaces are available through physicians and must be of a particular design approved by the Pennsylvania Department of Health. For a DNR order to be effective, it must be obvious to emergency personnel that the DNR order exists. Patients who leave their approved bracelets or necklaces on a dresser or in a pocket may be resuscitated by emergency personnel because the emergency personnel may believe that the person has changed his or her mind about the DNR order.

In some circumstances, a "surrogate" can secure a DNR order for a terminally ill person. For example, a parent can request a DNR order for a terminally ill child, or a court-appointed guardian can request a DNR order for a person who can no longer make sound decisions. A person named as surrogate by the terminally ill person in an appropriate legal document can act for the terminally ill person and request a DNR order, but only an attending physician can actually issue the DNR order. A patient may revoke a DNR order, whether secured by the patient or by his or her surrogate. Revocation can be accomplished at any time and in any manner, including verbally or by destroying or not displaying the order, bracelet, or necklace.

If you have already executed a living will or other document that identifies your choices regarding advanced health care and life support, emergency medical personnel will still initiate CPR unless directed not to do so by a physician or unless presented with a DNR order or identification tag. Since emergency personnel generally do not call a patient's physician before commencing life-saving efforts in an emergency situation, the only sure way for the terminally ill to avoid emergency resuscitation efforts is to secure a DNR order and wear a bracelet or necklace.







BE CAREFUL IF YOU SELL YOUR STRUCTURED SETTLEMENT

A structured settlement is a completely voluntary agreement between an injured person and the insurance company obliged to pay for the negligent conduct of the person or company that caused the victim's injuries. In a structured settlement, an injury victim does not receive compensation for his or her injuries in one lump sum. Instead, the victim receives a stream of payments, sometimes over many years, that is designed to meet future medical expenses and basic living needs.

A long-term structured settlement provides guaranteed long-term income and can help a victim avoid having to make decisions about how to invest a large personal injury settlement. Long-term structured settlements also prevent a victim from overspending upon receiving a large settlement.

Sale of Structured Settlements

Structured settlements have become increasingly popular in personal injury cases. This popularity has spawned an industry that purchases structured settlements from victims. Because structured settlements don't give victims all of their settlement money up front, but instead promise steady income over future years, victims sometimes become impatient and sell their structured settlements. Unfortunately, companies buying structured settlements may offer an immediate purchase-price payment of as little as 25% or less of the value of the total long-term payments owed to the injury victim. Once an individual or company has purchased a victim's structured settlement, the victim loses the right to collect all future payments, which become the sole property of the purchaser.

Court Must Approve Sale

Because selling a structured settlement often operates to the complete economic disadvantage of an injury victim, Pennsylvania has a consumer protection law that prohibits the sale without judicial approval. When a Pennsylvania injury victim considers selling his or her settlement, he or she must file a petition with the local court asking for approval. Sometimes, depending on the terms, the insurance company that is paying the structured settlement must agree to or approve the sale.

The petition must include a "disclosure statement" provided by the individual or company seeking to buy the structured settlement. This disclosure statement must add up the dollar value of all the future payments owed to the victim under the existing structured settlement and must compare that value to the exact amount of money that the victim will actually receive for selling the structured settlement. Judges can and do withhold approval if the sale is not in the best interest of the victim or his or her dependents. Any sale of a structured settlement that does not go through the judicial approval process is subject to substantial penalties.

While it is certainly possible to sell a structured settlement for a fair price, Pennsylvania lawmakers wisely have recognized that all too many such sales sadly undercompensate injury victims. If you are considering selling a structured settlement, be sure you follow the strict requirements of the law and secure judicial approval first.







MOTORCYCLE HELMET LAW

Pennsylvania's recent changes to the motorcycle helmet law did not completely revoke the broad legal requirement that all motorcyclists wear helmets.

Motorcyclists must still wear approved helmets and eye-protective devices unless they are 21 and have been licensed to operate a motorcycle for more than 2 full years. A 21-year-old who has not been licensed for over 2 full years can ride without a helmet and eye protection if he or she completes a rider safety course approved by the Commonwealth or by the Motorcycle Safety Foundation.

Passengers on motorcycles still must wear helmets until they are 21 and, if over 21, they can ride without a helmet and eye protection only if the motorcycle operator qualifies to do so.







IGNORANCE OF THE RULES IS NO EXCUSE

An employee who is fired for willful misconduct is not entitled to unemployment compensation. Recently, a Pennsylvania court held that an employee's conduct cannot be excused by his or her ignorance of a company rule if the conduct was obviously against the interests of the employer.

In the case before the court, an insurance company fired a senior claims adjuster who used the company's access to motor vehicle databases to identify a car whose driver had nearly hit the adjuster's girlfriend. Using false numbers to identify the case, the employee entered the license number noted by his girlfriend into the company's computers. Doing so permitted him to identify the name and address of the owner of the car.

The insurance company discovered the employee's conduct and fired him for violating the company's code of conduct, privacy policies, bonding rules, and electronic communication rules. The company vigorously opposed the employee's claim for unemployment benefits, appearing at hearings and appealing an initial award of benefits. The employee argued that none of the various rules and policies cited by the insurance company specifically prohibited his searching for a driver's identification for his own personal needs. The court disagreed, finding it "obvious" that an employee of 20 years' seniority using the company's database access for purely personal reasons must have known that his conduct was not ethical and that it violated company policies.

Employers can't produce handbooks with separate rules for every possible avenue of employee misconduct, but employees are certainly entitled to know the company's rules. Because employees will be denied unemployment compensation for willful misconduct, it benefits both employers and employees to create and maintain a clear, written set of company policies. Where an employee's conduct is obviously unethical or could cause a company harm, it may rise to the level of willful misconduct in unemployment proceedings even if no written rule directly prohibits the conduct. For less serious behavior on the part of employees, employers must show a clear violation of a known rule in order to avoid liability for unemployment compensation.







INEXPENSIVE GUARDIAN ANGELS

If you could pay $10 and, in return, get a guard who would warn your family if your house caught fire, would you? Of course you would. Despite this, most people do not have enough smoke detectors in their homes--detectors that will stand guard over your family's lives 24 hours a day. The evidence shows that using even an inexpensive smoke detector increases your family's chance of surviving a house fire by 50%, making it one of the best investments you can make for your family's safety.

Experts recommend installing smoke detectors, the cheapest of which start at about $10, throughout your house. At a minimum, install one detector for every floor and one outside of each bedroom. Test your smoke alarms once a month, and replace the batteries once a year. Make sure that every member of your family knows (1) what to do when the smoke alarm sounds, and (2) the fire escape route from each room.

Accidents do happen, and a little advance planning can help to make sure that you and your family have a better chance if a fire should start in the night.







THEY SAID IT

The following exchange actually took place in a courtroom:

Attorney: Are you going to be generally discussing that issue?

Witness: If asked a question about it, yes.

Attorney: Have you, in your mind, thought of a question that might be asked that you're going to offer an opinion on? I'm not going to throw stones into the wind trying to guess what you're going to say.

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Updated March 22, 2005
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Email: cee@eabylaw.com

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