A White Christmas Can Bring Black And Blue With It

The early snows and freezing temperatures look like they may assure us a rare White Christmas this year.  However, the beautiful winter landscapes and the artistry of glittering ice have the potential for creating serious injuries whether you are in an automobile or on foot.  In this blog, I will discuss your responsibility as a pedestrian versus the landowner’s responsibility to keep sidewalks and parking areas clear.

In Pennsylvania, we have what is known as the “Hills and Ridges Doctrine.”  It controls whether or not a person can recover money damages for injuries from a fall on ice or snow.  In plain English, the doctrine says a person cannot recover for injuries in a fall occurring while a storm is taking place or within a reasonable period of time thereafter unless the condition that causes the fall is “hills” or “ridges” or some other man-made feature.  For example, if a snow plow has piled up snow blocking access to a walkway forcing the pedestrian to take a more treacherous route, the snow plow company may be liable if the pedestrian falls and injures himself on the detour.  However, if the pedestrian leaves home and walks in an unplowed area moments after the storm ends, the landowner will not be responsible for a fall caused by a natural accumulation. 

The doctrine provides landowners a “reasonable” period of time after a storm to clear walkways and parking areas.  Business owners who invite the public to their premises are under a greater duty to clear sidewalks and parking areas during and after a storm than private property owners.  While the law does not define what is a “reasonable” period of time, the more time that passes after the end of a storm, the less likely the “Hills and Ridges” doctrine will apply.  Certainly, any landowner who does not make the effort to plow and salt sidewalks and parking areas within forty-eight hours after a storm, particularly businesses, exposes itself to liability if someone falls on the premises. 

If a landowner has taken reasonable measures to plow and de-ice sidewalks and parking areas, it then becomes difficult for the pedestrian to recover for injuries from a fall on isolated patches of ice or snow.  The pedestrian has to watch where he or she is walking and avoid ice or snow covered areas if a safer, alternative path is available. 

Once again, man-made hazards caused by plowing and de-icing may still create liability for a landowner or its contractors.  I have a case in which the snow plow contractor piled snow along the uphill curb of a sidewalk in a shopping area.  Not surprisingly, the snow melted, ran downhill across the sidewalk, and refroze in colder temperatures creating not only a sheet of ice, but ice on a sloped surface.  My client’s foot slipped out from underneath her as she walked along the sidewalk and her ankle fractured in three places.  In this case, the landowner’s snow removal contract specifically stated plowed snow should not be piled where it could melt and re-freeze creating a hazard to shoppers.

When the weather outside is frightful, stay inside where it’s delightful or use extra caution in any outdoor activity.  If you have any questions regarding injuries you have sustained in a fall or your responsibility as a landowner or contractor, please call or email the Fegley Law Firm at our Yardley, PA office.  (215) 493-8287 or scott@fegleylaw.com. 

Non-Competition Agreements: The Devil’s In The Details

Employers are resorting to use of non-competition agreements more frequently.  The attempt to prevent an employee from not only leaving with business, but working for a competitor, is on the rise even in businesses where it has not been common practice before such as beauty salons and doctors’ offices.  Unless a court finds the terms of the agreement are overly restrictive, non-competition agreements are enforceable. In Pulse Techs, Inc. v. Notaro, the Pennsylvania Supreme Court recently reaffirmed its willingness to enforce a non-competition agreement when the employee signed the agreement upon hire.  Employees anxious to have a job may unfortunately sign whatever the employer asks them to at the time of hiring and do not find out until much later the unanticipated consequences.

Employees should always seek an attorney’s advice before signing any legal document.  If you have the opportunity to negotiate the terms of the non-competition agreement, here are some ways to protect yourself:

1.  If they don’t want you to work elsewhere, ask them to continue your pay for the restrictive period or until the employer chooses to release you from the obligation.  Unfortunately, only employees who bring considerable value to the employer will have the leverage to negotiate for this term.

2.  Define what it means to “compete” as narrowly as possible.  For example, many companies have more than one product line.  If the employee worked only on one product, the employee should not be prevented from going to work for a competitor on an entirely different product.  If competition is undefined in the agreement, you can be sure the employer will interpret it as broadly as possible.

3.  Limit the time and geography of the restrictive period.  Non-competition agreements up to two years and with reasonable geographic limitations generally do not draw a court’s disapproval. However, in Lucciotti v. American Management Advisors, Inc., a decision out of Bucks County, PA, the court held that restricting the employee from working for a competitor anywhere in the United States for two years was unreasonable.  The court noted the employee brought with him to the employment many clients from around the country.  Employees should think about who they could go to work for, and where, if the job ends within the restrictions of the agreement the employer is asking them to sign.

Courts will address the reasonableness of a non-competition agreement on a case-by-case basis.  It will involve an examination of the employee’s job and skills and the nature of the employer’s business.  A small, local company will not be able to impose the same restrictions as a globally competitive corporation.  In the end, it may be more beneficial to seek employment elsewhere than to work for an employer who can end your employment at any time and severely restrict your ability to find new employment elsewhere.

If you have a legal matter, please call our Yardley office at 215-493-8287 or send us an email HERE.  We will be glad to help.

Southampton woman wins six-figure verdict in slip-and-fall case against Phila. Pathmark

As a lawyer, I believe it’s a part of my job to remain on top of cases that fall under the types of law I practice.  This is especially true for cases that happen in my area.  While I may not be representing the clients on either side, the outcomes of these cases may still affect how I would go about representing one of my clients in the future.  Therefore, it’s not surprising that I would be interested in this case about a Southampton woman who won a slip-and-fall case against a Philadelphia Pathmark.  Not only did she win, but she won to the tune of a six-figure verdict.

Here are the details for this case from PennRecord.com:

Barbara Ferguson, who resides in Southampton, Pa., filed suit earlier this year against the Pathmark on Franklin Mills Boulevard, where she contended she injured herself after she tripped and fell over a box that was being used as a makeshift doorstop at the time to prop open a large office door at the grocery store.

The complaint, initially filed at the Philadelphia Court of Common Pleas but subsequently removed to the U.S. District Court for the Eastern District of Pennsylvania, accused Pathmark of negligence for creating a dangerous and hazardous condition to employees and the public.

On Jan. 24, 2011, Ferguson went into the back office at the Pathmark to obtain paperwork, and when she was leaving the office for the supermarket’s main floor she tripped and fell over the box that was acting as a doorstop, the suit said.

While court records show the jury verdict to be nearly $793,000, a Law Weekly report states that Ferguson was actually awarded in excess of $834,000 for medical expenses and lost wages.

While Pathmark no doubt argued the box should have been obvious to anyone paying attention to where they were going, the jury sided with the plaintiff.  Using a box as a doorstop was a hazard clearly created by a store employee unlike a spill which may have been caused by a shopper and which the plaintiff must show the store had notice of.  Once the jury decided Pathmark was responsible for the hazard the caused the plaintiff’s injury, they also decided the woman’s injuries caused by the accident were serious and would require ongoing care.  It is no surprise the medical care is expensive and when you add it up over the remainder of the person’s life, the numbers get large very quickly.

If you have a legal matter, please call our Yardley office at 215-493-8287 or send us an email HERE.  We will be glad to help.

Pay Your Employees Now Or Pay Later

I constantly preach to employers the importance of knowing the difference between an employee and an independent contractor.  In a recent arbitration in which I represented the employee, I received an $118,000.00 award for the client.  The client signed an “Employment Agreement” riddled with the terms “employer,” employee,” and “at-will.”  The employer even had the client sign a separate Non-competition/Non-Disclosure agreement.  But the employer never withheld taxes from the client’s pay and issued him IRS Form 1099s at the end of each year.  The employer also unilaterally changed the pay structure in the contract twice, despite a “no oral modification” clause, and never provided an accounting to the client to show he was receiving the amount of commissions promised in the contract.

The employer argued the client was an independent contractor despite the plain wording of the contract because he set his own hours, had his own delivery routes, and worked with little supervision.  Moreover, the employer argued my client waived the “no oral modification” clause because he did not complain about the changes to his compensation.

The arbitrators found my client was entitled to over $90,000.00 in unpaid salary and commissions.  They tacked on nearly $25,000.00 for the client’s overpayment of taxes based on the 1099s and the unpaid matching employer contributions.

This case was particularly egregious since I believe the employer knew what he was doing was illegal.  However, it highlights the importance of documenting all changes to an employment contract in writing and the perils of attempting to save a few bucks on taxes by classifying an employee as an independent contractor.  It may end up costing employers substantially more later on.

If you have a legal matter, please call our Yardley office at 215-493-8287 or send us an email HERE. We will be glad to help.

Scott Fegley Selected as a 2013 “Super Lawyer” and “Top Attorney” by Philadelphia Magazine

I was recently selected as a 2013 Super Lawyer and Top Attorney by Philadelphia Magazine.  While the recognition is appreciated, I wish to thank all my clients for making it so.  Without my clients, I am not a super lawyer or top anything.  I work hard for you because I know no other way.

Therefore, this award is just as much yours as it is mine.  I cannot stress enough how grateful I am to all of you.

I look forward to what the rest of 2013 brings.

As always, if you have a legal matter, please call our Yardley office at 215-493-8287 or send us an email HERE. We will be glad to help.