August 31, 2015 Top Story

Court Confirms Vicarious Liability Pleading Requirements

Employee names not mandatory as purpose of pleadings to provide defendants notice

Catherine R. McLeod

A complaint can permissibly omit the particular names of the material employees that form the basis of a vicarious liability tort claims suit filed in a fact-pleading jurisdiction. In Denmark v. Williams, the Superior Court of Pennsylvania ruled that the law permits plaintiffs to broadly identify in their negligence action the hospital employees or agents who allegedly performed the negligent acts. Section leaders say the decision provides a plaintiff the ability to pursue her claims, without the threat of immediate dismissal, where she does not know the specific names of the actors.

Fact-pleading states mandate that complaints include all the facts needed to back up their allegations. The court reasoned that, even though Pennsylvania is a fact-pleading state, the purpose of pleadings is to put a defendant on notice of the claims upon which it must defend. Thus, the law allows general employee descriptions at the pleading stage of the lawsuit.

Broad Staff Classifications Adequate in Pleading Vicarious Liability

In Denmark, an administrator sued a hospital on behalf of an estate alleging negligence in the death of the decedent. In his complaint, the plaintiff stated that the “nursing staff, attending physicians, and other attending personnel” acting within the scope of their employment as “agents, servants, or employees” of the defendant caused the decedent’s wrongful death. The trial court struck these allegations and dismissed the case because such general allegations failed to satisfy the pleading requirements of an agency relationship.

Concluding “it is not necessary for a plaintiff to establish a right to recover on a claim for vicarious liability based upon the negligence of a specific named employee,” the one of Pennsylvania’s two intermediate appellate courts reversed the trial court’s decision. The Superior Court relied upon a prior decision, Solkosky v. Eidelman, to determine that the law tolerates plaintiffs who fail to name employees individually or who refer to them as a unit (e.g., staff). Plaintiffs’ failure to know the specific identity of employees nevertheless permits a claim against their employer under vicarious liability if the employees acted negligently during the course and within the scope of their employment.

While the plaintiff failed to identify the specific nurses or doctors allegedly responsible, the court reasoned that the defendant either knew or could have found out during discovery the names of those who provided the decedent’s care. The plaintiff’s references to “nursing staff, attending physicians, and other attending personnel” and “agents, servants, and employees” included sufficient specificity. Accordingly, the plaintiff adequately pled a cause of action against the defendant for vicarious liability.

Fair Notice of Claim a Pivotal Factor, Even in Fact-Pleading Jurisdictions

The appellate court’s analysis in Denmark focused on whether the complaint provided the defendant fair notice of the plaintiff’s vicarious liability claim. “The defendant argued that, in the absence of specific identification of parties, the plaintiff failed to satisfy fact-pleading allegations, which are more stringent than notice pleading jurisdictions,” states Eric B. Levasseur, Cleveland, OH, cochair of the ABA Section of Litigation’s Motion Practice and Discovery Subcommittee of the Pretrial Practice & Discovery Committee.

The appellate court flatly rejected the defendant’s argument. “Even in a fact-pleading jurisdiction, when you read the plaintiff’s allegations in the context of the other allegations, the defendant was certainly aware of the claim it would be defending against,” Levasseur says.

From a practical perspective, the appellate court’s ruling “keeps a plaintiff who has a theoretically viable vicarious liability claim from being tossed out of court simply because he doesn’t have access to or the ability to identify who all of the precise actors were,” adds Levasseur.

Knowledge of Procedural Rules Imperative

Denmark reminds attorneys that they must understand the pleading rules of the court in which they are filing their claim, according to several Section leaders. “Jurisdictions have their own ways to approach procedure and that is the importance of knowing the rules of where you are going to litigate,” says Ronald J. Hedges, Hackensack, NJ, cochair of the Section of Litigation’s Motion Practice and Discovery Subcommittee of the Pretrial Practice & Discovery Committee. “Wherever you are litigating, you need to first ask, ‘Do I have a cause of action?’ Then ask, ‘What do I need to put a corporation on notice?’” he states.

Levasseur agrees that knowledge of your particular jurisdiction is essential. “Whether you are in a fact-pleading or notice-pleading jurisdiction, or whether you are in that middle-ground Iqbal/Twombly plausibility standard, you must know what is needed to put a corporation on notice,” says Levasseur.

If you and your prospective client lack enough information to put a potential defendant on notice, section leaders suggest ways to fill that information gap. “The easiest way to find out may be discovery through hospital records,” adds Hodges. In many jurisdictions, “you can do pre-litigation discovery. Or, if you are representing an estate, the estate should have the right of access to hospital records,” he concludes.

However, “you may not have access to medical records right out of the gate,” says Levasseur. “When all else fails and you can’t identify individuals, this case provides a measure of comfort that you won’t be dismissed simply because you can’t identify individuals by name,” he adds.

Catherine R. McLeod is a contributing editor for Litigation News.

Keywords: vicarious liability, fact pleading jurisdiction, notice, medical malpractice

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