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Defense Digest

Pennsylvania Superior Court Ends Split of Authority Based on Allegations of Recklessness Within a Negligence Complaint

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Brad E. Haas

Key Points:

  • The Superior Court recently addressed the long unsettled issue regarding ability of plaintiffs to allege recklessness in negligence complaint.
  • The court’s opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

In what can be seen as a setback for the defense bar, the Pennsylvania Superior Court recently addressed the long unsettled issue regarding the ability of plaintiffs to allege recklessness in a negligence complaint. Out of an abundance of caution, these types of allegations have routinely been subject to preliminary objections, to avoid the potential for punitive damages. In Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, 2022 WL 17087072 (Pa. Super. Nov. 21, 2022), the Superior Court held that, under Pa.R.C.P. 1019(b), allegations of recklessness and/or reckless conduct fall under “state of mind” allegations and, thus, may be pled generally. The opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

The Monroe case arose out of an accident involving a zipline. While the court’s review was based upon the granting of a motion for judgment on the pleadings related to allegations of recklessness, the Superior Court made clear that its holding would encompass cases in which a defendant files preliminary objections to a complaint on the same grounds.

The complaint in Monroe contained general allegations of recklessness, as follows:

[Defendant’s] recklessness, carelessness and negligence included, but was not limited to:

a. Failing to properly monitor the speed of the zipline, in disregard of the safety of [Plaintiff];

b. Failing to use reasonable prudence and care by leaving [Plaintiff] to land with no help, in disregard of the safety of [Plaintiff];

c. Failing to use reasonable prudence and care to respond to [Plaintiff]’s safety concerns during the ziplining, specifically when [Plaintiff] asked [Defendant] to slow down the ziplining machine, in disregard of the safety of [Plaintiff]; and,

d. Failing to inspect and/or properly monitor the ziplining machine engine, in disregard of the safety of [Plaintiff].

The court began its discussion by reviewing the language of Pa.R.C.P. 1019(b), which states:

(b)       Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.

The court stated, “The plain language of this Rule thus indicates that, while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind.” Monroe, 2022 WL 17087072, at *8. The Monroe court went on to discuss the interplay between negligence and recklessness, stating, “In other words, gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action. Thus, our procedural rules allow the plaintiff to plead gross negligence and recklessness generally.” Id. at *9.

The Monroe court held that allegations of recklessness are “subsumed” within the negligence allegation. See Id. at *9-10. As such, these allegations do not require a separate, more specific type of pleading. The court opined that doing so would place an undue burden on the plaintiff to plead specific facts related to the alleged recklessness at the pleading stage. It further noted that only through discovery and expert opinion could the plaintiff determine what the defendant knew or should have known about the risk involved in a given situation. The opinion further stated that, only upon the completion of discovery, is a plaintiff required to produce evidence of recklessness and that, should a plaintiff fail to meet this burden, summary judgment should be entered on the claims of recklessness.

In a footnote to the opinion, the court discussed its awareness of the inconsistent rulings by various Pennsylvania trial courts and specifically stated that requiring a plaintiff to plead specific facts of recklessness was a misapplication of rule 1019. Id. at *10 n. 6. The court listed several trial level cases which either struck down allegations of recklessness or required a more specific pleading. In addressing these cases, the Monroe court held:

These and all other trial court decisions that have sustained preliminary objections or granted judgment on the pleadings based upon demands for heightened factual averments to support a claim of willful, wanton, or reckless conduct did not accurately apply the law. Our ruling today removes any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.

Id.

Based upon the Superior Court’s ruling, it appears that the split of authority amongst Pennsylvania trial courts has been settled and plaintiffs may plead recklessness in nearly every type of negligence case. The court’s holding will undoubtedly lead to an increase in complaints alleging reckless conduct, with defense attorneys being forced to withhold attacking the sufficiency of such allegations until the summary judgment stage, after discovery has closed. Defense counsel will need to remain mindful of the allegations of recklessness throughout a case and strategize their defense to pave the way for an eventual motion for summary judgment to rid the case of any recklessness issue and avoid any chance that punitive damages will be a jury question.

Firm Highlights

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.

Thought Leadership

Delaware Superior Court Clarifies Pleading Standard for Legal Malpractice Claims

In the matter of Edelstein v. Kirschner, No. N25C-09-018 FJJ, 2026 Del. Super. LEXIS 45, at *1 (Super. Ct. Jan. 29, 2026), the plaintiff law firm sued its former client for unpaid legal fees in the amount of $4,399.35. The former client asserted a counterclaim alleging legal malpractice. More, specifically, the former client claimed that his lawyer committed malpractice be recommending that he settle an underlying lawsuit by entering into a stipulated judgment for an excessive amount with interest that was accruing at “an outlandish” interest rate. The law firm moved to dismiss the counterclaim on the basis that its former client had not alleged facts reflecting that he could prove the case within the case. That is, facts reflecting that his attorneys caused him to lose the underlying case. The Superior Court held that while a legal malpractice plaintiff in cases arising from underlying litigation must prove the case within the case to survive a summary judgment motion, he does not need to plead facts reflecting as much in order to survive a motion to dismiss. While this case addresses the pleading requirements of a legal malpractice case in Delaware, it also serves as reminder that chasing unpaid legal fees from a former client can often give rise to a legal malpractice counterclaim. Attorneys seeking to collect unpaid legal fees should ensure that the fees they seek are for a significant amount, which would be recoverable if a judgment is obtained. Otherwise, the effort could backfire.