Williams v. Bashman

• Decision Date: 12 September 1978
• Docket Number: Civ. A. No. 77-2243.
• Citation: 457 F. Supp. 322
• Parties: Elizabeth WILLIAMS v. Stanley BASHMAN, Spencer M. Wertheimer and Harold M. Kane, Individually and trading as Bashman, Wertheimer & Kane and Michael Radbill.
• Court: U.S. District Court — Eastern District of Pennsylvania

457 F. Supp. 322

Elizabeth WILLIAMS v. Stanley BASHMAN, Spencer M. Wertheimer and Harold M. Kane, Individually and trading as Bashman, Wertheimer & Kane and Michael Radbill.

Civ. A. No. 77-2243.

United States District Court, E. D. Pennsylvania.

September 12, 1978.

COPYRIGHT MATERIAL OMITTED

George J. O'Neill, Philadelphia, Pa., for plaintiff.

Theodore Flowers, White & Williams, Philadelphia, Pa., for defendants.

ADJUDICATION

JOSEPH S. LORD, III, Chief Judge.

The plaintiff in this legal malpractice case alleges that she was injured in 1973 when she caught her foot in an uncovered vent pipe on a sidewalk and that shortly thereafter she entered into a contract with the defendant law firm to represent her in a personal injury case against the City of Philadelphia and the owner of the property on whose sidewalk she had fallen. She asserts that the defendant's negligence in failing to initiate an action against the city and the property owner or otherwise to protect her legal interests precluded her from recovering damages in a personal injury suit. The plaintiff claims as damages the lost potential recovery in that personal injury case and additional pain and suffering caused by the defendant's negligence. After a non-jury trial, I make the following findings and conclusions.

FINDINGS OF FACT

1. The plaintiff is a citizen of South Carolina. The defendant was in 1973 and 1974 a partnership engaged in the practice of law in Philadelphia, Pennsylvania. All the partners in that firm are citizens of states other than South Carolina.

2. Between 6:00 and 7:00 P.M. April 27, 1973, the plaintiff was walking on the sidewalk on the south side of the 2700 block of West Allegheny Avenue in Philadelphia. While she was passing the house at 2730 West Allegheny Avenue, she stepped in a hole on the sidewalk, caught her foot in that hole and fell on her right elbow and wrist.

3. The hole in which the plaintiff caught her foot was a vent pipe, four to six inches in diameter, whose cover was missing and which was surrounded by crumbled sidewalk. The sidewalk around the vent was depressed several inches below the general sidewalk level. At the time of the plaintiff's fall, it was dark and raining, and the pipe and depression around it were filled with water.

4. In stepping in a hole under those conditions, the plaintiff did not fail to exercise reasonable care.

5. The pipe cover had been missing, or at least its connection to the pipe had been noticeably loosened, before April 26, 1973.

6. The house at 2730 West Allegheny Avenue was owned by James M. Williford at the time of the accident. Williford passed by the vent every day as he entered and left the house. He first noticed that the vent cover was missing not before the morning of April 29, 1973, two days after the plaintiff was injured. He put a new cover on the pipe later that day.

7. Before he replaced the pipe cover, Williford took no steps to repair the hole or to warn pedestrians of the danger it presented.

8. The City of Philadelphia took no steps at any time either to remove the danger created by the uncovered pipe or to warn pedestrians of the danger it presented.

9. A missing or loose cover to a vent pipe posed a danger to pedestrians using the sidewalk at 2730 West Allegheny Avenue.

10. At the time the plaintiff was injured, Williford was not aware that the cover was missing.

11. At the time the plaintiff was injured, Williford would have known the pipe cover was missing or dangerously loose had he exercised reasonable care, in light of his testimony that he passed by the vent several times a day.

12. By failing to repair this dangerous condition in the sidewalk or to warn pedestrians of the danger it posed to them by the time plaintiff was injured, Williford failed to exercise reasonable care.

13. At the time the plaintiff was injured, the City of Philadelphia did not know of the dangerous condition of the pipe, nor would it have known of any such condition had it exercised reasonable care.

14. The City of Philadelphia did not fail to exercise reasonable care in not repairing or warning pedestrians of this dangerous condition.

15. Plaintiff was aware by July 1973 that she might have had a cause of action against the property owner of the house at 2730 West Allegheny Avenue, Philadelphia, for any injuries she sustained as a result of the fall.

16. As a result of her fall on April 27, 1973, the plaintiff was treated for injuries to her left lower leg and foot, which were placed in a cast on the same day. The cast was changed on May 30, 1973, and was removed on June 24, 1973. The plaintiff had to use crutches until some time in September 1973.

17. Plaintiff's fall also was a substantial cause of pains to her arms as a result of using crutches and of pains to her right hip and upper and lower back. The hip and back pains were recurring, each approximately once a month, at the time plaintiff testified in this trial, nearly five years after her accident.

18. At the time she was injured, the plaintiff was employed by a nursing home as a licensed practical nurse. She earned $3.50 per hour and worked eight hours a day, from five to seven days a week. Since she did not establish, however, either the probability that she would have worked more than five days a week, or what the length of her average work week was, I find she worked a forty-hour week.

19. At the time of her injury, the plaintiff was on a leave of absence from her employment for medical reasons. That leave of absence had commenced in March 1973, and the plaintiff was scheduled to return to work in July 1973. She had taken leaves of absence from her job in 1970, 1971 and 1972 for medical reasons.

20. Plaintiff has been unable since April 27, 1973, to work as a licensed practical nurse.

21. Had she not suffered injuries in her fall on April 27, 1973, the plaintiff would have returned to work in the fall of 1973 but would have been able to work for only six more months, during which time she would have earned $3,640.

22. As a result of injuries suffered in her fall on April 27, 1973, the plaintiff has endured physical pain and suffering in the amount of $6,000.

23. In an action by plaintiff against Williford, she would not have been barred from recovery by contributory negligence. Williford had sufficient assets for the plaintiff to collect a judgment of $9,640 against him.

24. The plaintiff's claim against Williford and the City of Philadelphia would not have been resolved by settlement before the entry of judgment for the plaintiff.

25. In July 1973, three months after she was injured, the plaintiff retained Spencer M. Wertheimer, a partner in the defendant law firm, to represent her in her personal injury case. At that time the plaintiff entered into an agreement for representation by the defendant firm.

26. In the year after she entered into the agreement with the defendant firm, the plaintiff attempted to contact Wertheimer to inquire about the status of her case. In July 1974 she received a letter from Michael Radbill, an employee of the defendant, informing her that he was representing her in her pending case. The plaintiff spoke to Radbill once after receipt of this letter. She continued to try to contact Wertheimer and Radbill, but most of her calls were not responded to or returned. In the plaintiff's only conversation with Wertheimer, he assured her that her case was in court and told her not to worry because it was being handled by the defendant.

27. At some time after July 1974 and before August 1976 the defendant partnership was dissolved.

28. The defendant law firm did not institute a personal injury action on plaintiff's behalf against the owner and/or occupant of the home at 2730 West Allegheny Avenue or the City of Philadelphia.

29. In failing to institute an action, a partner or partners and/or employee or employees of the defendant firm failed to exercise within the scope of their employment reasonable professional care and diligence in their representation of the plaintiff. By failing to institute a suit on behalf of the plaintiff, both Wertheimer and Radbill failed to exercise reasonable professional care and diligence in their representation of the plaintiff.

30. As a result of the negligence of the defendant law firm and of partners and/or employees of that firm in the scope of their employment and before the dissolution of the partnership, no suit was instituted on plaintiff's behalf against the owner and/or occupant of 2730 West Allegheny Avenue and/or the City of Philadelphia before April 27, 1975, and she has recovered no compensation for her injuries.

31. Plaintiff endured no mental suffering or anguish as a result of the defendant's negligence in failing to bring suit on her behalf.

32. At some time before August 30, 1976, the plaintiff filed a complaint as to the defendant's handling of her personal injury case with the Disciplinary Board of the Supreme Court of Pennsylvania. Plaintiff was informed for the first time that her personal injury claim would be barred by the statute of limitations when she received a letter from the Disciplinary Board dated September 21, 1976.

DISCUSSION

There are three factual issues raised in this case which seem to warrant brief discussion. All of them are dependent on the standard of proof imposed on a plaintiff in a legal malpractice case. The orthodox view, and indeed virtually the universal one, is that when a plaintiff alleges that the defendant lawyer negligently provided services to him or her as a plaintiff in the underlying action, he or she must establish by the preponderance of the evidence that he or she would have recovered a judgment in the underlying action in order to be awarded damages in the malpractice action, which are measured by the lost judgment. See, e. g., Christy v. Saliterman, 288 Minn. 144, 150, 179 N.W.2d 288, 294 (1970). While we know of no Pennsylvania case clearly establishing...