IN THE COURT OF COMMON PLEAS XXXX
Norman J. XXX
Plaintiff
XXX
Dental,
Defendants,
BRIEF IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
NOW COME Plaintiff, XXX, pro se, and files the following brief in support of his Motion for Summary Judgment pursuant to Rule 1035.2 of the XXX
Rules of Civil Procedure stating as follows:
- STATEMENT OF THE CASE & RELEVANT HISTORY
Procedural History
Plaintiff filed a Complaint against Defendants on or about XXX. EXHIBIT A. Plaintiff also filed a Certificate of Merit on or about XXX. EXHIBIT B.
On or about XXX, Plaintiff was served with Defendant’s Preliminary Objections and its brief thereof. EXHIBIT C.
Now, Plaintiff files this Motion for Summary Judgment, which motion answers Defendant’s Objections and provides grounds for granting of Summary Judgment.
- STANDARD FOR SUMMARY JUDGMENT
Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
Pa.R.C.P. No. 1035.2.
Summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).
- ARGUMENTS
- THERE IS NO GENUINE ISSUE OF MATERIAL FACT: PLAINTIFF’S COMPLAINT STATES VALID CLAIMS FOR RELIEF WITH SUFFICIENT ALLEGATIONS THEREOF.
- Plaintiff’s first Cause of Action (Negligence)
“Each claim … must be presented in a self-sufficient separate count, which includes averments of facts pertaining to the particular claim and relief sought.” Commonwealth v. Parisi, 873 A.2d 3, 9 (Pa. Cmwlth. 2005). It is also required that for a complaint to be sufficiently pleaded, the Plaintiff must “formulate the issues by fully summarizing the ‘material facts.’ Material facts are ‘ultimate facts.’ [that is] those that facts essential to support the claim.” General State Authority v. Sutter Corporation, 24 Pa. Commw. at 395, 356 A. 2d at 381.
Under Pennsylvania law, the elements of negligence are (1) the existence of a duty or obligation recognized by law, (2) a breach of the duty, (3) a causal connection between the breach and the resulting injury, and (4) actual loss or damage. See Krentz v. Consol. Rail Corp., 910 A.2d 20, 27 (Pa. 2006). Also, the underlying elements of a medical negligence claim mirror those of a basic negligence claim. The elements entail, “a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm.” Toogood v. Rogal, 824 A.2d 1140, 1145 (2003).
Negligence need not be proved by direct evidence, but to establish it by circumstantial evidence, the facts and circumstances must reasonably and legitimately impute negligence.”(Citations omitted.) See Schaff v. Meltzer, 382 Pa. 43, 114 A.2d 167 (1955).
The Defendants allege that Plaintiff’s Complaint fails to ensure specificity in pleading. EXHIBIT C, at pp. 3-4. Plaintiff acknowledges that he misstated the Code violated under his First Cause of Action of the Complaint. Plaintiff erroneously stated Title 42, Section 7102 as the Code violated by Defendants’ actions and/or inactions. Title 42, Section 7102 specifically addresses comparative negligence which applies in situations where the injury was partially the Plaintiff’s fault. However, the Plaintiff in this case is completely not at fault. All the fault and blame are due to the Defendants’ actions and/or inactions. In that regard, Plaintiff invokes his right to amend the Complaint pursuant to 231 Pa. Code Rule 1028 (c) (1) which states in pertinent part that, “A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections.” Accordingly, Plaintiff seeks to change the said citation (Title 42, Section 7102) to Title 42 §§8321-8327 (Uniform Contribution Among Tort-feasors), and Common law negligence. Plaintiff has, with this Motion for Summary Judgment, filed a copy of the Amended Complaint with the correct citation under the First Cause of Action. (EXHIBIT D).
For the purpose of this Motion for Summary Judgment, Plaintiff avers that the Amended Complaint sufficiently alleges the Defendants’ liability under the first cause of action. Plaintiff has fully set forth all the elements of the negligence claim and how the Defendants are blameworthy thereat. Notably, paragraph 26 (of the Complaint) shows the existence of a duty of care owed by the Defendants to the Plaintiff. In the proceeding paragraphs 28 to 31, Plaintiff has provided factual allegations of how the Defendants breached their said duties. Lastly, in paragraph 32, Plaintiff has shown how the actions and/or inactions of the Defendants have caused him damages.
Accordingly, Plaintiff avers that his complaint sufficiently and specifically points out the causes of actions with the factual allegations thereof and therefore meets the threshold under 231 Pa. Code Rule 1019.
- Plaintiff’s second Cause of Action (Dentistry Malpractice)
Medical malpractice is defined as the “unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.” Toogood v. Rogal, 824 A.2d 1140, 1145 (2003).
Plaintiff avers that he has sufficiently pleaded the allegations of how the Defendants departed from the standards of practice. Notably, in paragraphs 37 to 39 of the Complaint, Plaintiff has shown factually how the Defendants violated the minimum standards of practice required by Dentistry practitioners.
- PLAINTIFF IS ENTITLED TO DAMAGES, INCLUDING PUNITIVE DAMAGES.
Under Pennsylvania personal injury law, an injured party has the right to seek compensation for any and all damages which reasonably flow from the negligent or wrongful actions of another. Accordingly, Plaintiff is entitled to all prayers in the Amended Complaint.
Defendants argue that the Court should not grant punitive damages against them. Punitive damages may be awarded against Defendants who have reckless indifference to the rights of others. Section 908(2) of the Restatement (Second) of Torts provides in this regard that, “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s … reckless indifference to the rights of others.” (Emphasis added). It follows; punitive damages must be based on conduct which is `wanton,’ or `reckless.’ See Chambers v. Montgomery, 411 Pa. at 344-45, 192 A.2d at 358, citing Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). According to the Pennsylvania Supreme Court in Evans v. Phila. Trans. Co., 418 Pa. 567 (1965), wanton conduct means the actor has done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. Through parity of reasoning, the definition of recklessness in 18. Pa.C.S. § 302(b)(3) applies to this case. The said section provides in pertinent part that:
A person acts recklessly … when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
- Pa.C.S. § 302(b)(3)
If the conduct involves a high degree of chance that serious harm will result, that fact, that the doer knows or has reason to know that others are within the range of its effect, is conclusive of his recklessness. See Restatement, Torts § 500, Comment d.
“The purposes of awarding punitive damages… are to punish the person doing the wrongful act and to discourage him and others from similar conduct in the future”. Restatement, Torts, § 908, Comment a. Also, Restatement (Second) of Torts § 908(2) provides in pertinent part: “In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to plaintiff that the defendant has caused or intended to cause…”
IV CONCLUSION
For the foregoing reasons and reasons set forth herein, Plaintiff prays that this Honourable Court grants Plaintiff’s Motion for Summary Judgment and awards Plaintiff damages for Defendant’s conduct.
Dated:
CERTIFICATE OF SERVICE
Plaintiff hereby certifies that a true and correct copy of the above Brief in Support of Motion for Summary Judgment was served upon all the parties to this action by electronic and/or U.S. mail to their respective addresses as stated below:
XXX
- XXX
XXX
Firm #983
XXX
Dated:
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.