A recent trend in Pennsylvania civil litigation matters involves the inclusion of claims of recklessness by plaintiffs in all types of cases and regardless of the facts presented.

The trend has risen to the level such that one of the first things any attentive insurance defense attorney does with every new assignment to defend is to review the complaint to determine whether claims of recklessness are included in the complaint. This increasing trend of plaintiffs including claims of recklessness in personal injury complaints has resulted in more and more preliminary objections being filed. The trial court decisions that have come down on these preliminary objections has led to a split of authority on the propriety of recklessness claims under Pennsylvania law.

Recklessness Has Its Place

There is no question that the law allows for claims of recklessness to be included in complaints for cases involving outrageous facts that would also support a claim for punitive damages. For example, claims of recklessness are routinely upheld in cases involving accidents and injuries arising resulting from tortfeasors driving under the influence, tractor trailer drivers driving in a distracted fashion or with respect to dog owners who own dogs who have bitten before.

Issues with respect to claims of recklessness arise when a plaintiff casually include such claims in seemingly form complaints filed after run-of-the-mill motor vehicle accidents or a routine trip-and-fall matter having no outrageous facts or egregious conduct.

The danger of allowing claims for recklessness to remain in a Complaint for the defense is that it opens the door for the Plaintiff to later add or pursue punitive damages which would not be covered by a Defendant's insurance.  To not challenge such improper claims could subject the tortfeasor to personal financial exposure and the defense attorney to a malpractice claim.

As such, most defense counsel will approach plaintiffs counsel seeking a stipulation on the withdrawal of claims of recklessness with the plaintiff reserving the right to file a motion to reinstate the claims if discovery later reveals facts to support the claims. Most plaintiffs attorneys will agree to the stipulation to avoid the delays attendant with fighting preliminary objections.

Where a stipulation can not be reached, preliminary objections will be typically filed which has given rise to the split of authority on the issue that currently exists in Pennsylvania. The two lines of court decisions are reviewed below.

One Line: Claim of Recklessness Must Be Supported by Outrageous Facts

Under one line of cases, the trial courts of Pennsylvania have held that claims of recklessness should be routinely dismissed in cases where the facts only support a claim of negligence and do not rise to the level of outrageous necessary to support a claim for punitive damages.

In a decision handed down just recently on June 26, Judge David J. Williamson of the Monroe County Common Pleas Court confirmed in the case of Farina v. Emerson, PICS Case No. 20-0563, that a claim of recklessness cannot proceed unless it is supported by facts alleging outrageous conduct on the part of a defendant. In Farina, the court found that a plaintiff failed to allege sufficient facts to support a claim of recklessness to proceed against a dog owner in a dog bite case. As such, that claim was summarily dismissed as improper.

Williams previously ruled in a similar fashion in his prior decision in the case of Vella v. Henderson, No. 873-CV-2019 (C.P. Monroe Co. 2019), in which he granted a defendant's preliminary objections in part, with respect to the plaintiff's claims of recklessness in a standard rear-end motor vehicle accident. The court granted these preliminary objections after finding that the complaint filed by the plaintiff did not contain any actual allegations to support any claims that the defendant either purposefully caused the accident or willfully ignored the likelihood of a substantial risk in this rear-end accident case.

Rather, the plaintiff had simply alleged that the defendant operated a motor vehicle at a high rate of speed, failed to reduce his speed to avoid a collision, failed to maintain a proper lookout, failed to maintain a safe distance, and failed to otherwise use due care in the operation of his vehicle. Williamson found that these types of allegations amounted to nothing more than claims of negligence. As such, the court ordered that the recklessness language in the complaint be stricken.

Along the same lines, Judge Jennifer R. Slevtold of the Northampton County Common Pleas Court also sustained preliminary objections filed by a defendant in the motor vehicle accident in the case of Wasilow v. Allen, No. C-48-CV-2016-00633 (C.P. North. Co. 2016).

In Wasilow, the plaintiff generally alleged that the collision occurred as a result of the defendant's carelessness, negligence and recklessness. The plaintiff more specifically alleged that the defendant failed to have his vehicle under proper control, failed to observe other vehicles on the road, failed to keep a reasonable lookout, failed to operate his vehicle in accordance with traffic conditions and that the defendant was operating his vehicle closer than was reasonable under the circumstances involved in this rear-end accident matter.

The court found that these types of allegations did not rise to the level of recklessness or support any claim for punitive damages. As such, the defendant's preliminary objections were sustained and the plaintiff's allegations of recklessness, reckless conduct, as well as the plaintiff's request for punitive damages, were all stricken from the complaint.

In another decision out of Northampton County, Judge Anthony S. Beltrami, also sustained preliminary objections by the defendant in the standard motor vehicle accident case of Roma v. Finney, PICS Case No. 15-0641 (C.P. North. Co. 2015). In Roma, the plaintiff alleged negligence and recklessness on the part of the defendant in this rear-end motor vehicle accident case.   Notably, the plaintiff did not also include a request for punitive damages in the complaint.

The court in Roma ruled that, as there were no facts pleaded in the complaint to support claims of recklessness and given that no claim for punitive damages was asserted, the preliminary objections were granted. The court further found that the allegations of recklessness were deemed to be immaterial to proving a cause of action of negligence.

The decisions in this line of cases therefore impose a requirement that any claim of recklessness must be supported by appropriate facts alleged in the complaint or risk being stricken or dismissed.

Second Line: Claims of Recklessness Are Allowed in Every Case

A second line of more liberal Pennsylvania trial courts have instead chosen to follow the Pennsylvania Superior Court's decision in the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010) to support the notion that "recklessness" is a state of mind that can be generally pleaded in any complaint whatsoever regardless of the facts presented.

Notably, the Archibald case did not come before the Pennsylvania Superior Court on any pleadings issues; rather, at issue was a resolution of summary judgment issues in a personal injury case, including the general question of whether recklessness is a type of a standard of care relative to a claim of negligence. As such, any comments by the Archibald court on the more specific issue of properly pleading recklessness in a complaint were arguably dicta.

Also, at the outset of its opinion, the court in Archibald emphasized that the "crux" of its decision was on "the standard of care to be applied" under the facts of that personal injury case, i.e., not on any pleadings issues. The Archibald court went onto deny the summary judgment motion and, in so ruling, noted that its decision on the issue of the standard of care for recklessness should not be read to allow a claim of recklessness to rise to the level of a separate tort that must be pleaded within the applicable statute of limitations.

The Superior Court in Archibald further commented that, under Pa. R.C.P. 1019(b), "an example of a condition of the mind that may be averred generally is 'wanton conduct' and that "because recklessness is also known as 'wanton and willful misconduct,' 'recklessness' is a condition of the mind that may be averred generally." Those trial courts in the second line of cases that have relied upon this language in Archibald to rule that recklessness can be pleaded in any case whatsoever regardless of the facts. See Wolff v. Taylor, No. 19-CV-4988 (C.P. Lacka. Co. 2020 Nealon, J.).

In Wolff, the plaintiff's claims of recklessness were allowed to proceed beyond the pleadings stage based upon allegations that the defendant-driver ran a red light and failed to keep a proper lookout at the time the collision occurred.  The court did note that the defense retained the right to revisit the issue at the conclusion of discovery by way of a motion for summary judgment.

Judge James A. Gibbons, also of the Lackawanna County Common Pleas Court, followed this reasoning in his own decision in the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. 2019). In Nebesky, Gibbons denied a defendant's preliminary objections filed against recklessness allegations in this regard in a case involving a standard motor vehicle accident involving a pedestrian plaintiff. Similar to Nealon, Gibbons also noted that a defendant retained the right to revisit the validity of the claims of recklessness by way of a motion for summary judgment once discovery had been completed.

Proving how troublesome this issue of pleading is, not only is there a split of authority across the commonwealth on this issue, but there is even also a split of authority on the issue within the Northampton County Common Pleas Court. Despite the two above-referenced decisions out of Northampton County rejecting claims of recklessness in the absence of facts to support the same, Judge Samuel P. Murray of the same court allowed such claims of recklessness to proceed in the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. North. Co. 2020).

In that Speight, Murray followed those cases that rely upon the Pennsylvania Superior Court decision in Archbald under the rationale supported by Pa. R.C.P. 1019(b). In allowing the claims of recklessness to proceed as a generally allowed pleading, the court in this matter also emphasized that the plaintiff had not asserted any claim for punitive damages in the complaint. See also Doyle v. Dianna, No. C-48-CV-2013-810 (C.P. North. Co. 2013 Baratta, J.).

How Will a Particular Court Rule?

When a defendant files preliminary objections to allegations of recklessness, a demurrer is typically asserted. In this regard, the defense argues that the complaint does not contain sufficient facts to support a claim of recklessness. The issue comes down to whether the trial court will review the complaint to see if there are sufficient outrageous facts pleaded in the complaint to support the claim, or will the trial court simply decide that claims of recklessness can be pleaded in any case regardless of the facts alleged.

While appellate guidance would prove helpful on this issue, such guidance may be hard to come by. It does not appear that this issue from the context of the pleadings stage of the case is not immediately appealable. As such, it may be some time before the appellate courts will have an opportunity to address this issue and settle it once and for all. In the meantime, the issue of a proper pleading of recklessness may depend on what county court the issue is raised and, in some counties, may be dependent upon which particular trial court judge will decide the question.

Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters. Contact him at [email protected].