In the case of Estate of Denmark, v Williams, (Pa. Super. April 28, 2015), a three-member panel of the Superior Court reversed a trial court’s entry of summary judgment for a defendant-hospital regarding a claim for vicarious liability as to non-specifically identified agents, servants, and employees, holding that there is no requirement that a plaintiff specifically name the agents, servants, and/or employees whom they allege were negligent in order to state a viable claim for vicarious liability. More specifically, the court held that “when read in the context of the allegations of the amended complaint, Hurst’s (appellant) references to “nursing staff, attending physicians, and other attending personnel” and “agents, servants, or employees” were not lacking sufficient specificity and did not fail to plead a cause of action against the Mercy entities (appellees) for vicarious liability.[1]

By way of factual background, the plaintiff’s decedent, Arthur Denmark, was admitted to Mercy Philadelphia Hospital on March 12, 2010, to undergo a tracheotomy procedure. Following the procedure, the plaintiff’s decedent was permitted to attempt to leave his bed unassisted and fell. This fall caused the dislocation of an indwelling catheter. The catheter could not be replaced at bedside and surgical correction was required. During the surgery, the decedent’s bladder was severely lacerated and gauze was left in the patient’s body. The patient then developed septic shock as a result of the laceration and the gauze, and died.

Anthony Hurst, as administrator of the estate of decedent Arthur Denmark, filed suit against multiple defendants, including Mercy Hospital. In an amended complaint, the plaintiff alleged, inter alia, that the Mercy entities were vicariously liable for the alleged negligent acts of the “nursing staff, attending physicians and other attending personnel” and “agents, servants, or employees.” Counsel for the hospital entities filed preliminary objections, asserting that these non-specific allegations of agency did not meet the Pennsylvania fact-pleading requirement necessary to sustain a claim for vicarious liability against the hospital for the alleged negligence of these individuals. The trial court issued an order on August 31, 2012, granting the preliminary objection to the amended complaint and striking the portions of the amended complaint containing the vague allegations of agency, which effectively eliminated all of the plaintiff’s claims for vicarious liability against the hospital entities.

Ultimately, the trial court entered what was purported to be a Judgment of Non Pros for the defendants on May 27, 2014, and an appeal was taken to the Superior Court thereafter. The appellant alleged that the trial court’s order on the preliminary objections was erroneous.

The Superior Court panel, consisting of Judges Bowes, Donohue, and Stabile, reversed in part and remanded for further proceedings. In the opinion authored by Judge Donohue, the court held that the May 27, 2014, order was not a Judgment of Non Pros, but rather an entry of summary judgment. The court then proceeded to hold that the trial court’s August 31, 2012, order was erroneous and reversed. As mentioned above, the court held that the allegations of the amended complaint were not lacking in specificity and, in fact, met the Pennsylvania fact-pleading standard and were sufficient to state a viable claim for vicarious liability against the hospital entities.

Presently, Pennsylvania case law requires that a complaint contain facts which: 1) identify the agent by name or appropriate description; and 2) set forth that agent’s authority and how the alleged tortious conduct of the agent either falls within the scope of that authority, or if it is unauthorized, that it has been ratified by the principal.” Alumni Assoc. v. Sullivan, 535 A.2d 1095, 1100 n. 2 (Pa.Super.1987), aff'd, 572 A.2d 1209 (Pa.1990). This opinion provides clarification and guidance for trial courts regarding the minimum allegations necessary in a complaint to support a claim for vicarious liability.

[1] The opinion also addressed issues pertaining to allegations of corporate negligence, which are not discussed in this article.

What It Means to You

Since April 28, 2015, when this opinion was filed, Cipriani & Werner attorneys have begun to experience plaintiffs’ attorneys citing this opinion to combat preliminary objections, attacking specificity of agency allegations. Additionally, judges also appear to be relying on it to overrule lack of specificity objections.

Given the ambiguity of the phrase “appropriate description” contained in the Alumni Assoc. case, preliminary objections as to agency were among the most commonly filed. The main reason for the filing of a preliminary objection for lack of specificity as to unnamed agents, servants, and/or employees is to prevent the possibility of plaintiffs seeking new or alternative theories of negligence closer to trial. The objection served a two-fold purpose: 1) to force plaintiffs to identify specifically the agents, servants, and/or employees whom they are alleging were negligent and 2) to preserve the issue for appeal.

The Denmark decision provides clarification as to what constitutes “appropriate description.” Defense counsel must be more discerning as to the specific allegations of each complaint prior to filing preliminary objections for lack of specificity, as they must balance protecting the interests of their client with potentially running afoul of the court with the filing of what could potentially be deemed frivolous objections.

 We recommend that you still file preliminary objections to complaints that do not contain at least some limiting language as to the agents, servants, and/or employees who are alleged to have been negligent, i.e. “the agents, servants, and/or employees who were involved in the medical care of John Doe.” This prevents the agency issue from being left completely open-ended and protects both the client and defense counsel from potential surprise at a later stage of litigation.

 A link to the opinion can be found by visiting http://law.justia.com/cases/pennsylvania/superior-court/2015/1900-eda-20….