Pennsylvania Legal Update, Winter 2004

LIABILITY BEGINS AT HOME

A water company employee sued a couple for the injuries she suffered when she fell into a window well at their home while reading their water meter.

The meter reader claimed that the window well was obscured by shrubbery. The homeowners noted that the meter's location was chosen by the water company and that the meter reader herself had been to their home many times. Neither the water company nor the meter reader had ever raised complaints or concerns about the location of the window well or the condition of the shrubbery. The homeowners may have been surprised when the case was decided not on the condition of their shrubbery, but on the reason the meter reader was at their home in the first place.

Pennsylvania law ties a homeowner's liability to third parties to the very reason the third parties are at the homeowner's residence. The duty of any possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, a licensee, or an invitee.

Trespassers

Homeowners owe the least care to trespassers. A homeowner must simply refrain from willful or wanton misconduct that might cause injury to a trespasser. A homeowner who deliberately or wantonly disregards safe building standards can be liable to an injured trespasser. Likewise, a homeowner who starts a fire on his or her property can be liable to an injured trespasser.

Licensee

A licensee is either an invited social guest or someone who is not actually invited but whose presence is permitted or acceptable. Delivery people, adults or children who are legally soliciting, and the neighbor who stops in uninvited are all licensees. Homeowners owe a higher duty to licensees. Homeowners are responsible for physical injury to licensees caused by problems or defects on the property of which the homeowners are aware.

Invitee

An invitee is a person who is actually invited to enter onto your property for business purposes. If you conduct business at your home and either ask third parties to meet you at your home or generally let the public know that you are available for business at home, individuals who come to your home to do business are invitees. Homeowners owe the highest standard of care to invitees. For the protection of invitees, homeowners are responsible for physical harm caused even by defects unknown to the homeowners if such defects could have been discovered by the homeowners in the exercise of reasonable care. Homeowners must try to seek out, find, and resolve defects in order to insure the safety of their invitees.

Invitee or Licensee?

Pennsylvania does not extend invitee status generally to public employees. However, the court noted that the meter reader actually was employed by a private, not a public, water company. The meter reader claimed that she was an invitee because she was a business visitor working for a utility company. Because she was not actually invited by the homeowners, but instead was working at the direction of the water company, the court ruled that the meter reader was a licensee. Since the homeowners did not have any knowledge that the window well was a danger to the meter reader, the court found that the homeowners had no liability to the meter reader for her injuries.

Property Owners Beware

Posting your property against trespassers does not make any difference as to your liability to trespassers, but, in particular cases, such posting might help prove that you did not consent to an individual's entry onto your property. If you enter onto someone's property uninvited and without his or her consent, assume that you are owed no duty of care.

When you invite a social guest or consent to someone's entering your home or property, you must warn him or her of any dangers of which you are aware. If a danger is obvious, you do not owe any warning. Invitees, licensees, and trespassers are obliged to avoid dangerous conditions they actually notice. Rather than assume that a dangerous condition is obvious, it is best to post a warning.

Operating a business in your home or inviting someone to come to your home for business purposes cloaks the persons who respond to your "invitation" with the highly protected status of invitees. You should establish careful safety practices to help you prove that you regularly look for and correct conditions that could lead to an injury. You are not strictly liable to invitees--you are only liable for your carelessness. But, as to invitees, you have the difficult burden of proving that you sought out and corrected known and unknown defects on your property. If you are hurt when you enter property as an invitee, you should realize that the homeowner's ignorance of the condition that hurt you is not necessarily an excuse.

NOTIFYING EMPLOYERS ABOUT WORKERS' COMPENSATION CLAIMS

The Pennsylvania Supreme Court recently clarified when claimants who suffer cumulative trauma injuries must first raise their workers' compensation claims. A typist who worked for the City of Philadelphia was diagnosed with bilateral carpal tunnel condition in January of 1996 but did not notify the city of her problems until she quit her job more than a year after the diagnosis. Workers generally have 120 days to notify their employers of the existence of a work-related injury.

The supreme court ruled that, with cumulative trauma injuries, a worker has 120 days from the last day of injury at the workplace, not from the first day of injury, to give notice to his or her employer. The court stated that " we find that in the instance of a cumulative trauma, where credited medical evidence shows that each day of work causes an aggravation or new injury, the 120-day notice period begins to run on the last day a work-related aggravation injury is suffered, which will usually be the last day of work."

Employees whose injuries are related to cumulative trauma should keep careful records of their work activities if they continue to work after the first sign of injury. An employee who continues to work and later files a claim will need to be able to show that a work-related aggravation occurred after the initial injury. Likewise, employers must realize that the occurrence of a daily re-injury to an employee keeps the clock running on the timeliness of the employee's claim.

JOB HUNTING CAN GET YOU FIRED

A paralegal recently lost her job and her entitlement to unemployment compensation because she used company time to job hunt. The paralegal was warned several times that her performance did not meet the expectations of one of the law firm's partners. Another partner, while generally satisfied with the paralegal's work, did not feel she was working at her best. She was told by the firm to improve the quality of her work or "look for another job."

The firm claimed that it told the paralegal not to job hunt during working hours. Warned several more times about her job performance, the paralegal took a vacation day. While she was out of the office, the firm conducted an audit of her computer activity and found that she had accessed a job-search Internet site, that she had sent e-mail messages during working hours to another attorney requesting employment, and that, over a three-month period of time, she had sent numerous e-mails during work hours to employment agencies. The firm terminated her for theft of company time for using her computer to job hunt.

Pennsylvania law provides that employees are not entitled to unemployment compensation if they are fired for willful misconduct connected with work. The statute does not define "willful misconduct." However, Pennsylvania courts have held that, in the unemployment compensation context, "willful misconduct" means (a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior that an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interests or an employee's duties or obligations. Thus, an employee who files for unemployment compensation can be denied any benefits if he or she has intentionally or carelessly disregarded a clear rule in the workplace or has behaved in a way that violates any unwritten but well-known workplace standards.

The paralegal insisted that she was never told that she could not look for a job on company time. The court ruled that the paralegal knew or "should have known" that accessing personal e-mail and non-work-related websites while being paid to work was contrary to the employer's interests. The paralegal was denied any unemployment compensation on the ground that she had engaged in willful misconduct.

Employees who expect to receive unemployment compensation must follow all workplace rules and must be very careful about behavior that can fall into "should have known" categories of misconduct. Even if the workplace does not have a clear written set of rules, employees can lose their unemployment compensation eligibility for breaking standards of conduct that they should know are generally expected in the workplace.

Employers are best protected if they put their workplace rules and regulations in writing. Counting on the courts to find that a course of conduct is one an employee "should have" recognized as wrongful is risky for an employer. Employers also should be cautious about "auditing" any employee's computer. An employer without a clear workplace policy regarding personal use of work computers and personal use of Internet access and e-mail may be unlawfully invading an employee's legitimate privacy expectations by searching that employee's computer. If you do not limit your employees' personal use of computers at work, they may be entitled to privacy in the personal data on your workplace computers.

INSURANCE COMPANY REQUIRED TO PAY CLAIM

A Pennsylvania man lost his company cell phone, unexpectedly leading to tragic consequences that triggered a lawsuit over insurance coverage. Accompanied by his young sons, the man returned to his workplace on the weekend to look for the cell phone. After searching without success, he took his sons to lunch at a restaurant where he thought he might have left the phone. On the return trip to his home, he stopped to complete several errands for his sons. Unfortunately, the man and one of his sons were killed when they were involved in an accident on the return trip. The second son and four family members in another car were injured.

The estate of the man's deceased son, his injured son, and the four family members all sued to collect on an insurance policy purchased by the man's employer. The policy covered the company and its employees when they were acting in the course of their "duties."

The insurance company argued that the cell-phone search and the return trip home were not part of the man's work duties, but the court ruled that words of common usage in an insurance policy are to be construed in their natural, plain, and ordinary sense. Because the policy did not use such terms as "employment" or "scope of employment," the court held that it was not necessary to find that the man actually had been working when the accident occurred. Instead, observing that an employee has a legal and moral "duty" to find a lost company cell phone, the court decided that the man was acting within the course of his duties to his employer at the time of the accident. The insurance company was required to pay the victims' claims.

TELEPHONE HARASSMENT

Now that there is a cell phone in almost every American's pocket or purse, it is important for Pennsylvanians to understand the legal elements of harassment. Repeatedly placing calls to someone else can be a crime. A conflict between two separated parents who were sharing custody of their children gave the Pennsylvania Superior Court an opportunity to clarify the crime of Harassment by Communication.

Friction between the couple erupted when the father refused to drop off the children because he believed that the mother's boyfriend was in her home. The father then made three telephone calls to the mother in quick succession. In the course of the calls, he threatened her with physical violence, shouted obscenities, and vowed that she would never see the children again. The mother summoned the police, who arrived at her home in time to listen to the father's fourth call. The officer had to hold the phone away from his ear because of the father's loud screaming, which included continued threats and obscenities.

A person commits the offense of Harassment by Communication when he or she, with the intent to harass, annoy, or alarm another person, (1) strikes, shoves, kicks, or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; (2) follows the other person in or about a public place or places; (3) engages in a course of conduct or repeatedly commits acts that serve no legitimate purpose; (4) communicates to or about such other person any lewd, lascivious, threatening, or obscene words, language, drawings, or caricatures; (5) communicates repeatedly in an anonymous manner; (6) communicates repeatedly at extremely inconvenient hours; or (7) communicates repeatedly in a manner other than specified in (4), (5), and (6). Communication by phone, fax, e-mail, Internet, wireless device, telex, or any other electronic device can constitute harassment, as can in-person communications.

The father was charged with making threats and engaging in a course of conduct that served no legitimate purpose. He claimed that his calls did serve a legitimate purpose because he was calling about custody issues. The court held that his use of obscenities and threats during the calls took away any legitimacy.

It is important to know that a person who falsely reports harassment commits a crime. But, with that in mind, anyone who is subject to repeated communications, threatening communications, disruptions at extremely inconvenient hours, or anonymous communications should contact law enforcement authorities.