(citing Burke v. Maassen, 904 F.2d 178, 183 (3d Cir. 1990)). The Court finds this statement to be an incorrect statement of Pennsylvania law. Although the court reached the correct result in that punitive damages were available under plaintiffs' survivorship claim, it appears that the Zygmuntowicz court mistakenly read Burke to permit punitive damages under Pennsylvania's Wrongful Death Act. Accordingly, as the Court finds that punitive damages are not available in wrongful death actions under Pennsylvania law, defendants' motion for summary judgment dismissing Wang's punitive damages claim on the First Claim for Relief is granted.
B. Pain and Suffering Claim
While punitive damages are unavailable on Wang's wrongful death claim, it is undisputed that such damages may be awarded on the pain and suffering claim. Defendants argue, however, that their conduct does not warrant the imposition of punitive damages as a matter of law. The Court finds this contention to be without merit.
Pennsylvania courts have adopted the standard set forth in the Restatement of Torts (Second) for determining when punitive damages may be awarded. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1096 (1985); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984). Under this standard, punitive damages are appropriate where the conduct is "outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Restatement (Second) of Torts § 908(2) (1979) (quoted in Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Martin v. Johns-Manville Corp., 494 A.2d at 1096; Feld v. Merriam, 485 A.2d 742 at 747). A plaintiff therefore must establish that the actor realized the risk and yet acted in conscious disregard or indifference to it. Martin v. Johns-Manville Corp., 494 A.2d at 1097. In order to determine whether a defendant's conduct satisfies this standard, the trier of fact may consider "the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant." Id. at 1096. Punitive damages may not be awarded on the basis of a defendant's inadvertence, mistake or error of judgment. Id. at 1097.
In the case at hand, the Court finds that an issue of fact exists whether defendants' conduct warrants the imposition of punitive damages. See Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986) (stating that the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of summary judgment). With respect to Marziani, a reasonable jury could conclude that logging more than seventy hours during an eight-day period, falsifying the duty log and failing to secure all cargo, all in violation of Department of Transportation safety regulations, see 49 C.F.R. §§ 393.100, 395.3(b)(2) & 395.8(e) (1992), constitute "reckless indifference to the rights of others." See Restatement (Second) of Torts § 908(2) (1979). A reasonable jury similarly could find that the imposition of punitive damages against A to Z Transportation is warranted as it failed to monitor Marziani's conduct and encouraged him to exceed federally-proscribed driving time limits.
The holding in Burke v. Maassen, 904 F.2d at 183-84, does not compel the opposite result. In Burke, the Court overturned a jury's award of punitive damages against a tractor-trailer driver who drove too many hours in violation of federal safety regulations. Id. In that case, however, the Court made its finding after trial, concluding that the plaintiff had failed to establish that the driver consciously appreciated the risk he had created. Id. at 183. Here, in contrast, Wang has not had the opportunity to offer her proof at trial. Accordingly, the Court is unable to determine as a matter of law that she cannot meet the standard for establishing a punitive damages claim. See Lindsay v. Kvortek, 865 F. Supp. 264, 268-69 (W.D. Pa. 1994) (denying defendants' motion to dismiss plaintiffs' punitive damages claim as the court could "not assume that plaintiffs will be unable to present any evidence to support a claim for punitive damages"). Accordingly, defendants' motion for summary judgment dismissing the punitive damages claim on the Second Claim for Relief is denied.
For the reasons set forth above, defendants' motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment dismissing plaintiff's punitive damages claim is granted with respect to the First Claim for Relief and denied with respect to the Second Claim for Relief. The parties are directed to appear at a pre-trial conference on Wednesday, May 17, 1995 at 2:00 p.m.
SHIRLEY WOHL KRAM
United States District Judge
Dated: New York, New York
April 25, 1995