practical nurse for only six months in light of her other physical ailments. Consequently, the diminution in her earning capacity is measured by the loss of six months' wages, or $ 3,640.
Finally, I raised at trial the question of whether the plaintiff could recover in this case if I were to find that she would have settled out of court the underlying personal injury action against one or both defendants. The cases which both parties cited and those which I have found from other jurisdictions as well as from Pennsylvania are singularly uninstructive on this point, and I have found no authority expressly endorsing or rejecting the proposition that a plaintiff can recover in a legal malpractice case the settlement value of the underlying case. Fortunately, however, in view of my factual finding as to settlement, I need not decide the question at this time.
Ordinarily, the probability of settlement would be proved by expert testimony on the usual outcome of similar cases, including such factors as the merits of the case, the size of the award that the plaintiff might have received and whether the defendant in the underlying action would have been represented by counsel for an insurance company. The same expert or experts presumably would testify as to the settlement value of the underlying case. In this non-jury case, however, the parties stipulated to my competence to make an expert assessment of the probability and value of settlement in the personal injury action against the property owner and municipality. This trip-and-fall case, with a close question of the property owner's liability and a limited damage claim, is of a type ordinarily likely to end in settlement when brought against a defendant whose insurance company retains counsel. Here, however, there has been no showing that the property owner was insured and would have been represented by counsel from his insurer. In light of that vital gap, I am unable to conclude that the plaintiff would have been compensated through settlement with Williford. Therefore, it would be gratuitous for me now to decide whether, as a matter of law, the settlement value of the underlying action is recoverable in a legal malpractice action.
I find further that the possibility of the City of Philadelphia's liability in this case was so remote that it was not probable that the plaintiff would have received any compensation from it through settlement of her claim.
CONCLUSIONS OF LAW
1. Because there is complete diversity of citizenship and the amount in controversy exceeds $ 10,000, exclusive of interest and costs, the court has jurisdiction over the subject matter in this suit under 28 U.S.C. § 1332. The court also has jurisdiction over the parties in this suit.
2. The City of Philadelphia and Williford each had a duty to exercise reasonable care in keeping the sidewalk at 2730 West Allegheny Avenue free from defects which would endanger pedestrians.
3. The City of Philadelphia had neither actual nor constructive notice of any defects in that sidewalk as of April 27, 1973.
4. Williford did have constructive notice that the vent pipe cover was either missing or dangerously loose on the evening of April 27, 1973.
5. In not repairing or warning pedestrians of the dangerous condition as of April 27, 1973, Williford was negligent.
6. Williford's negligence was the proximate cause of the plaintiff's injury.
7. Plaintiff was not guilty of contributory negligence.
8. Williford would have been liable to the plaintiff for her loss in earning capacity and her pain and suffering, totalling $ 9,640. If her personal injury claim against Williford had been tried, the result of that trial would have been a verdict for the plaintiff in that amount.
9. If the plaintiff's personal injury claim against the City of Philadelphia had been tried, the result of that trial would have been a verdict for the City of Philadelphia.
10. Beginning in July 1973, the defendant partnership and its partners and employees owed to the plaintiff a duty to exercise reasonable professional care in the prosecution of her personal injury claim against Williford and the City of Philadelphia.
11. The defendant partnership's partners and employees negligently breached the duty of care they owed to the plaintiff.
12. As a result of their negligence, the partners and employees of the defendant partnership failed to institute a personal injury claim on behalf of plaintiff against Williford and the City of Philadelphia on or before April 27, 1975. On that date the plaintiff's personal injury claim was barred by the Pennsylvania statute of limitations. 12 Pa.Stat.Ann. § 34.
13. The negligence of the defendant partnership's partners and employees was the proximate cause of the plaintiff's loss of a verdict against Williford in the amount of $ 3,640 for lost earning capacity and $ 6,000 for pain and suffering.
14. The defendant partnership is liable to plaintiff for the professional malpractice of its partners and employees in the amount of $ 9,640.
15. By failing to render to plaintiff reasonable professional services, defendant breached its contract with her.
16. The consequential damages recoverable by plaintiff for defendant's breach of contract are equal to the amount of the judgment she would have received had the defendant performed and brought suit in her behalf I. e., the verdict she would have received in her personal injury action, $ 9,640.