As a member of Marshall Dennehey’s Casualty Department, James focuses his efforts on defending clients in general liability matters, including cases involving products liability, premises liability, and automobile liability. James has successfully defended clients in all aspects of litigation in both state and federal court, including obtaining defense verdicts at the magistrate court level and favorable arbitration rulings before the Allegheny County Arbitration panel. His jury trial experience includes second chair defense counsel in a premises liability case involving a defective stairway and landing in Allegheny County. Additionally, James was an integral member of a litigation team that achieved a Voluntary Stipulated Dismissal on behalf of a product distributor client from national multidistrict litigation (MDL) arising from the manufacture and sale of medical devices. Further, James was a member of a trial team that obtained a defense judgment in a product liability claim involving damages alleged in excess of $30 million.
Before joining Marshall Dennehey, James gained litigation experience at a medium-sized civil defense firm as well as experience representing clients in mass toxic tort matters in Pennsylvania and West Virginia.
James graduated sixth in his class from Capital University Law School in 2018. During law school, he served as both a Staff Member and Associate Board Member of the University's Law Review, where he sharpened his legal research and legal writing skills to prepare for his career after graduation.
James also interned at the Pennsylvania Superior Court for the Honorable Mary Jane Bowes in 2017, where he researched and drafted memorandum opinions while working closely with the Judge’s staff. In 2018, James interned at the Allegheny County District Attorney’s Office where he worked directly with Assistant District Attorneys preparing for trial.
James is licensed to practice law in Pennsylvania and West Virginia and is also an active member of the Allegheny County Bar Association, often volunteering to serve as a judge/juror for high school mock trial competitions. James is also a member of the American Bar Association.
Results
Defense Verdict Obtained After Seven-Day Bench Trial
We received a defense decision after a seven-day bench trial in a product liability action in which the exposure in the case exceeded $30 million. Our client designs, sells and services engineered equipment for the energy industry, including natural gas compression apparatuses for use in transmission pipeline systems. In 2015, the client sold the plaintiff two reciprocating compressor systems to replace outdated equipment at a station located near Downingtown, PA. The compressor systems were designed to inject oil into the gas stream for piston lubrication. This lubricating oil needed to be removed from the gas stream using filtration devices supplied by the plaintiff. The plaintiff claimed weld debris contained within certain vessels of the compressors migrated downstream upon commissioning and compromised several gas filtration devices. The plaintiff further contended the damaged filtration devices permitted excess lubricating oil into the pipeline, which fouled multiple turbines owned by its downstream customer at a large natural gas-fired power plant, causing significant economic losses. The applicable contract between the plaintiff and our client contained a forum selection clause requiring litigation to take place in Lake County, Indiana. The plaintiff claimed commercial losses of $18 million, plus attorney fees (per contract) in the neighborhood of $4 million. The plaintiff also maintained it was entitled to pre-judgment interest. If successful in establishing liability, this sum would have added another $5 million to $7 million to the damage award, depending on the interest rate employed by the court. Therefore, the pure exposure in the case exceeded $30 million. In response to the plaintiff’s claims, we successfully established that the weld debris incident was a red herring and did not damage the filtration equipment. Material testing of debris from within the filtration devices revealed very little weld debris compared to pipe scale and other naturally occurring components. Through key expert testimony, we established that the plaintiff could not meet its burden of proof because the oil contamination events may have been caused by several factors directly attributable to the plaintiff’s lack of design engineering, inadequate equipment maintenance, equipment failure and inappropriate response to system alarms.
Summary Judgment Secured in a Neighborhood Dispute Alleging Excess Water Runoff
We obtained summary judgment in the Westmoreland County Court of Common Pleas in favor of our clients in a dispute over alleged excess water runoff. Our clients, a married couple, were sued by their neighbors for claims related to water runoff due to the installation of gutters and downspouts on a shed near the property line. We effectively argued for summary judgment on the plaintiffs’ injunction, trespass, nuisance and negligence claims, demonstrating that the plaintiffs lacked the necessary expert testimony to substantiate their case as required under Pennsylvania law. Additionally, the plaintiffs’ negligence claim was barred by the two-year statute of limitations, which had expired at least six years before the suit was filed.
Thought Leadership
Grossly Underestimated: Exploring Gross Negligence and Liability Waivers in Pennsylvania Premises Liability Law
October 1, 2024
In Pennsylvania, gross negligence is seldom considered in premises liability cases because ordinary negligence is far easier for a plaintiff to prove against a premises owner. Pennsylvania courts hold that there is a substantive difference between gross negligence and negligence. Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 985 (Pa. Super. 2018). This substantive difference typically results in only ordinary negligence being pleaded by a plaintiff against a property owner.
Defense Digest
Gross Enough? A Dive Into Gross Negligence in Pennsylvania Premises Liability Law
October 1, 2022
Key Points: The definition of what constitutes gross negligence under Pennsylvania case law is vague and difficult to apply to various factual scenarios. What constitutes gross negligence is often not at issue in premises liability cases. With more fitness and recreational facilities requiring customers to sign liability waivers excluding liability for negligence, gross negligence will become an issue as informed plaintiff attorneys will recognize that they need to plead gross negligence to avoid the waiver defense. In Pennsylvania, the topic of gross negligence is seldom considered in premises liability cases because ordinary negligence is far easier for an injured plaintiff to prove against an alleged negligent premises owner. Pennsylvania courts have held that there is a substantive difference between gross negligence and negligence. Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 985 (Pa. Super. 2018). This substantive difference typically results in only ordinary negligence being pleaded by a plaintiff against a property owner. However, gross negligence comes into play when, prior to an alleged accident, the injured individual signs a valid liability waiver, which waivers are often used by fitness and recreation entities. A liability waiver will typically contain an exculpatory clause excluding the premises owner for liability for negligent conduct. Yet, “gross negligence” cannot be excluded, even by a valid liability waiver. When a liability waiver is involved, a plaintiff’s lawyer will typically plead both negligence and gross negligence. Such allegations could potentially negate the effect of the liability waiver and require that a judge or jury determine whether the premises owner’s conduct amounted to not only negligence, but also gross negligence. In determining what type of conduct constitutes gross negligence, the general consensus is that the alleged conduct must be more egregious than negligence, but it does not rise to intentional acts or conduct. Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 704 (Pa. Super. 2000). In practice, application of this broad definition in a wide variety of varying factual scenarios can prove difficult. In the premises liability context, in 2018, the Superior Court of Pennsylvania was asked to determine whether gross negligence existed in a case involving an injured skier and a ski resort. In Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974 (Pa. Super. 2018), the plaintiff-skier was injured when he ran over “trenches” in the snow that were caused by an all-terrain vehicle operated by a resort employee. While the plaintiff had signed a valid liability waiver relating to the negligence of the ski resort, the plaintiff argued that the ski resort’s conduct amounted to gross negligence. The Superior Court held that the ski resort’s conduct in creating the trenches did not amount to grossly negligent conduct. The Superior Court reasoned that, while this conduct was arguably negligent, it did not amount to gross negligence because the resort’s employees were, at most, careless in their actions. The Superior Court further found that “mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” do not support a claim of gross negligence. While case law involving the application of the concept of gross negligence with regard to premises liability are few, this concept has also been applied by Pennsylvania courts to mental health facilities covered under the Mental Health Procedures Act (Act). This Act provides an exception to a blanket protection for treating mental health facilities when said facilities render grossly negligent treatment. For example, in Albright v. Abington Memorial Hospital, 696 A.2d 268 (Pa. 1997), the Supreme Court of Pennsylvania held that the defendant-hospital’s conduct, after a patient failed to appear for a scheduled appointment, did not amount to gross negligence as a matter of law, even in light of the fact that the defendant-hospital was aware of the patient’s deteriorating mental condition, and even though it failed to have the patient committed. In Downey v. Crozer-Chester Medical Center, 817 A.2d 517 (Pa. Super. 2003), a similar decision was upheld when the defendant-hospital’s failure to supervise the plaintiff-decedent, despite her mental health issues, constituted nothing more than ordinary “carelessness, inadvertence, laxity or indifference,” and not gross negligence. The broad gross negligence definition will undoubtedly be put to the test in Pennsylvania courts. In a recent premises liability case involving a gym member and premises/gym owner, the Superior Court ruled that the gym member’s claims for negligence were excluded under a valid liability waiver and that the member failed to raise the claim of gross negligence in a timely manner, having raised the issue of gross negligence for the first time at the summary judgment stage. Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa. Super. 2016). Given that the claims of negligence and gross negligence were substantively different, the Superior Court granted summary judgment in the premises/gym owner’s favor. Based upon the ruling of Toro, an informed plaintiff’s attorney will likely plead both negligence and gross negligence in any premises liability case involving a liability waiver in an effort to defeat it. The vague definition of gross negligence will, therefore, likely be the key topic in cases involving liability waivers at the summary judgment and trial stages. As more and more recreational and fitness entities are requiring customers to sign liability waivers before using their facilities, the issue of what kind conduct constitutes gross negligence will likely become more prevalent in premises liability lawsuits. *Jim is an associate in our Pittsburgh, Pennsylvania, office. He can be reached at 412.803.1159 or jpcullen@mdwcg.com. Defense Digest, Vol. 28, No. 3, October 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
