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Home My WebLink About96-01812 '"1 , , . , ; .'.t . j '; r i . , , , .' ! ,I " I ,kj , i~k' ~',f.L N::l~'; . ~~ '; " ~ J J ~ ~,J . ' ..9 0-1 . I ~; .. J !'.' ~. ~~ I - - '~ {t' l'~ ~--; \. ~ L' "- ,; "\ ( ! f.:.) 11" I .! ~ ~ ~;, ,~,; '! ~ \.: L I ~ ..) !) , . . r{ ~~ i ~ !~ ~~ ~!~~! ~ ;; ~ :Ii ~l fo ~ N ....~a~!: ~ ~5t> . .. . . 6. Defendant's business operation is a self-serve flea market, one in which members of the public would select items from various tables ami boolhs Ihroughout the premises and hand carry the items desired to be purchased to a check out counter on the first floor, 7. Prior to the herein after described fall of plaintiff, Defendanl had been giyen notice of the dangerous condition of the steps at his business premises in that olher patrons had slipped, tripped or fallen on the sleps, 8, Subsequent of the notice ofaccidenls occurring on the steps, Defendant did not place or cause to be placed warning signs notiJying patrons of the steps and its dangerous condition, 9. Subsequent to the notice of accidents occurring on the steps, Defendant did not replace the hand rail on the stairway so that a patron could firmly grasp the same at all times such patron was on the stairway or place a second ralling on the opposite side of the staircase or to secure the wall at the base oflhe landing, 10, Subsequent to the notice of accidents, on the steps. Defendant did not take measures to paint the landing or the steps which were earth tone in color and blended in10 the color of the adjoining wall of the staircase thus creating a depth l\Iusion to users, or did Defendant place proper lighting In the stairwell.. 11. On or about March 23, 1995, Plaintiff was a customer at Defendant's business and was lawfully on the premises as a customer. 12, Plaintiff walked to the second story ofthe premises and selected a few items to purchase and proceeded to return to the ground floor and I\J check out counter. 13. Plaintiff proceeded to walk down the steps from the second floor to the first floor to pay for her items and as she neared the bOll om of the staircase stumbled and fell forward. 14, Plaintiff reached for a ralling but there was no ralling on either side unto which she could grab and as she fell into the wall atlhe boll om of the landing the wall was not .' secured to anything and gave way, Plainlll1's body was twisted as she struck the concrete floor and she sustained severe injuries including muhipte fractures in her leg, I S. The proximate cause and/or a substantial factor in causing the accident was Defendant's failure to: a, Insure Ihatthe steps were properly constructed according to building codes and to have the same inspected by local zoning officials and inspectors of the Pennsylvania Department ofLabor and Industry prior to permitting their use by the public; b, Place appropriate signs warning pa1rons of Ihe steps' dangerous condition especially when patrons were expected to travel down Ihe steps with their hands and arms lilled with items to be purchased; c, Insure that the steps and landings be distinguishable to the eyes of the user due to the similar color of the walls, floor and steps; d, Insure thaI the stair way was well lit so the steps and landings would be distinguishable to the eyes of the user due to the similar color of the walls, floor and steps; e, Insure that the wall at the base of the landing was securely fastened to the support structure cf the building so as to not pull away when pressed against or grabbed; f. Insure thatlhe hand rail was accessible the entire length of the stairway, including clearance from the wall at the points where It was all ached to the supporting structure and also atlhe turns of the stairwell and landing; and g, Insure that handrails be placed on both sides of a knowingly hazardous stairway, 16, As a result of the accident caused by Defendants negligent act or acts, Plaintiff suffered a fracture of the distal tibia and proximal fibula, muhlple cOnlusions and minor lacerations and has undergone, to date, two separale operations, to alleviate or correct the . Injuries suffered as a result of the accident and has been hospitalized for extended periods and is still under doctor's care, 21. As a result of the accident caused by Defendant's negligent act or acts, Plaintiff has been unable to work In any capacity and has been detennined to be pennanenlly disabled by the social security admlnislration, 22. As a result of the accident caused by Defendant's negligent act or acts, Plaintiff has been disfigured and must use a cane 10 help her walk, She also has a pronounced limp while walking, 23, As a result of the accident caused by Defendant's negligent act or acta and the multiple injuries sustained therefrom, Plaintiff will have to and to date has had to endure intensifYing paln In her leg and the mental stress associa1ed wllh such pain.. 24. As a result oflhe accident caused by Defendant's negligent act or acls and the multiple Injuries sustalned therefrom, Plaln1iff has been unable to perfonn many of the minor tasks she had been able to perfonn prior to the fall Including, but not limited to, standing for periods of time, kneeling, dancing, waliking and has Ihus suffered greatly, 25. Plaintiff has incurred medical bills not in excess of twenty-five thousand dollars, 26. Plaintiff will Incur future medical bills in excess oftwenty.five thousand dollars, 27, Plaintiff has suffered loss of wages In excess of twenty-five thousand dollars, 28, Plaintiff will suffer fulure loss of wages In excess of fifty thousand dollars, 29, Plaintiff has suffered pain and suffering In excess of fifty thousand dollars, 30, Plalntiffwill suffer future pain and suffering In excess of fifty thousand dollars, 31. Plalnliffhas suffered loss of enjoyment of life In excess offifty thousand dollars, 32, Plaintiff will suffer future loss of enjoyment of life In excess of fifty thousand dollars, ." "I , i i :'1' 1:,':' . ,,. ~ ' I ';"1 I; , . "!II'1 , t!' ..,,\.! .- 1 ....,<.,' /~A '~.."""-;''''''''~'.'~<'1 ~ .. 1 '_'l" I'\! 1 I,! 1'.'1 "\: I " h ,i \ :' /~/vJ -i~~ t'-961u.VOl:::7- . u~~. \;. 'i' II' .19 !!:: O/-,.:P 'If.. tjc'l'- C. '-nW(<--,/ +, .,.:...c .1 CERTIFICATE OF SERVICE I, Juck M. Hurtmun, Esquire, hereby certify tlllltl umthis duy serving u copy of the foregoing document upon the person(s) IInd In the munner Indlcuted below, which service sutlsfics Ihe requirements of the Pennsylvunlu Rules of Civil Procedure, by deposillng u copy of sUl11e In the United Stutes muil. first-cluss pllstuge prepaid. us follows: Joseph D. Buckley, Esquire 1237 Holly Pike Curlisle,PA 17013 Counsel for Pluintiff IIARTMAN & MILLER, p.e. By: ~~~t, ~.... ck M. Hurtmun, Esquire Supreme CI. 1.0. #21902 One Keystone pluw, Suite 107 Fronl und Murket SIree1s p. O. Box 786 Ilurrlsburg, I' A 17108-0786 Outed: i" /; j<it. I f Attorneys for Defcndunt, Donuld R. Burrick, Individuully und Trading us Burrick's Fleu Murket Burn of Civil Procedure, By wny of further unswer. Bnrrick herehy incorpornles hy retCrenee us though fully set Ii.mh herclnl'nrugrnphs 34.42 of New Mnller hercinnl\er, WIIEREFORE, Defendnnt, Donnld Bnrrick, individunlly nnd truding ns Bnrriek's Flen Mnrke1 Bnm, del1lllndsjudllel1lent in his Iil\'or nnd nguinsll'lnintitl'lIllLl tllllt I'lnintitl's Compluint be dismissed with prejudice nnd costs of this nctioll, NEW MATrElt 33. The nverlnents se11arth inl'lnintin's COl1lplnintlhil to stute n c1uil1l or enuse of aclion ngains1 Barrick individuully. or lrnding us Bnrrick's Flcn Mnrket Burn. upon which relief may be granted, 34. If I'lnintifTsutlcred injury nnd dnlllnges ns n result of the nctions or innctions of individuals or enlities, ns alleged in I'lnintill's COlllplnint, such nclions or innclions were of individuals or enlitie~ olher lImn Barrick, individually or trnding ns Bnrrick's Flen Mnrket Bnrn, his agents, servanls or employees, and over whom Barrick, individunlly or trnding as Barrick's Flea Market Bam, neithcr exercised nor had the right or duty to exercise control, and for whose actions or inaelions Bnrriek, individunlly or lruding ns Bnrriek's Flen Mnrket Bnrn. is nol responsible or otherwise legnlly Iinble. 35. It is believed, nnd theretare nverred, tllllll'lnintill; Ilelcn Stuckey Lindsey (hereinnOer "Lindsey"), sustained n second thll nt her home Inter in the Slll11e dny lallowing Ihe incident referred to inl'lninlitl's COlllplnint, nnd thnt nil or some of the nlleged injuries set Ii.lrth inl'laintiO's Complnint were in thcl suslnined in the second lilli, Ii.Jr which Bnrriek wns not 2 responsible or otherwise legally liuble, 36, At all male rial times, Burriek leused the premises und Iheility known as Burrick's Flea Markel Barn. and uny ulleged Iiubility uguinstllurriek is limited to his duty undcr thc luw and the lease ugrcementus u Icssec und posscssor. 37, AlullnHlteriultimcs, Burriek took ull rcusonuhle und nccessury stcps us ulessec and possessor 10 make 1he premiscs sali: und to warn business invitecs of uny potentially dangerous condition of the steps. including, but not Iimitcd to. ensuring tlmt the owner of the premises provided for replacemcnt of the sluir trcuds und illstullulion of a hund mil, and thatthcre was adequate lighting, warning signs, and the concrete step leading fromthc woodcn lunding to Ihe floor was painled orange, 38, Despite the uforesaid precuutions tuken by Barrick us lessee ulld possessor in the nonnul course ofbuslness,l3arrick hud not been pluced on no1icc prior to Murch 23,1995. ofuny dangcrous condillon oflhe steps, of any complulnts regurding a potentiully dungerous condition of1he steps, orofany prior falls or Injuries uecurring on the steps, 39. Al all muteriallimes, Lindsey wus Iiulliliur with the premises orBurriek's Flen Market Barn, including the steps nl issue. 40. At other limes prior to Mureh 23, 1995. Liudsey hnd used the steps un the premises of Bnrriek's Flea Murket Burn, 41. Inuddition. un Mureh 23. 11)95, Lindsey hnd uscd the sleps ul issue on several occasions prior to the incident sCllhrth inl'lulntin's ('om(lluinl, 3 42, Alull mUleriul times. Lindsey knew of the ulleged dunger of the sleps locuted ut Burrick's Flcu Murkcl Burn us u result of her prior knowledge uflhe steps und premises. 43. On Murch 23. 19l}5. Lindsey did not stmnhle or HIli heeunse of or us u result of uny condition of the steps, lighting or premises ul Ilurriek's Fleu Murket Burn. 44. Alull mUlerlul times. Lindsey hud u duty to exercise reusonuhle euutlonund reusonuble cure to uvoid unneeessury hurmor injury, 45. Atullmu1erlultlmes. the ulleged dungerous condition of lhe steps wus known 10 or obvious 10 Lindsey, who hnd u duty 10 ussure her own sufety by the use of her own senses nnd rensonnble conduc1. 46. Ills believed, und therefore uverred, tlmt on Murch 23. 1l}l}5. Lindsey hud u previously scheduled medlcnluppointment for her mother which required her 10 mnke scverul stops in order 10 mccl tl1ll1 nppolntmem, und us u result of which Lindsey wus hurrying during her visit on the premises of Bnrriek's Flen Murke1 Bnrn, did not nssure her own snfety by the use of her own scnses und rensonuble conduc1und, on the eontrury, filII directly und solely ns n result of her own cnrelessuess, Inultention, prcoccuputlon. und Hlilure to tukc uil rcusonuble steps for her own snfety. 47. By voluutnrily proceeding to encounter u known or obvious dunger. L1ndscy ngreed 10 uccepl the risk und tuke ull reusonuble steps to protect herself' fhlln injury. 48, Any eluhn or cuuse ofuction set forth inl'lulntill"s COl1lpluint Is burrcd by operution of the contribu1ory/compurutivc negllgcnec of Limlsey us muy be developed during 4 . . CERTIFICATE OF SERVICE I. Jnck M, Hnrtmnn. Esquire. hcrcby certify thUl1 [\111 this dny scrving II copy ofthe forcgoing docul11cntupon the person(s) nnd inlhe mnnncr indicnted below, which service sntislies the requiremcnts of thc Pcnnsylvnnin Rules of Ci\'i1Proccdure. by dcpositing n copy of snme in Ihe United Stutes mnil, first-c1nss postnge prepnid, ns follows: Joseph D. Buckley, Esquire 1237 Holly Pike Cnrlisle,PA 17013 Counsellor I'lnintilT HARTMAN & MILLER. P,C. By: _~ ..( . 'M. Hnrtmnn. Esquire Supreme Ct.I.D, #21902 One Keystone Plnzn. Suite 107 Frontnnd Mnrkel Streets 1'. O. Box 786 Ilnrrisburg, PA 17108-0786 (7J7) 232-3046 Dnled: !>1~ 0 / t?j. I ., ,...J. ~ N .;J .' f c;, :';..: . ).-) .' ~- "" . II' ..... ~.... or::; .: :;~ 'J. ~'" '-' . in 1 u. '" "4 lL'.~ i ." "IlL) ~. - ' H).. F ~, 1'- .n , U (}l ..J ~ ~!~~! ~ 1l; fli ~l fo~'" ~!l ~ ~ ~ ~ .. . .. .. . ' . . . .. . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HELEN STUCKEY LINDSEY PlaintllT v, NO, 96-1812 CIVIL TERM CIVIL ACTION - LAW DONALD R, BARRICK, Individually and Trading as BARRICK'S FLEA MARKET BARN Defendant JURY TRIAL DEMANDED REPLY TO DEFENDANT'S NEW MAlTER AND NOW, this 191h day of June 1996 comes PlalntilTHelen Stuckey Lindsey by and through her counsel Joseph D, Buckley, Esquire and replies to the New Maller of Defendant Donald R, Barrick's, Individually and trading as Barrick's Flea Market Barn, as follows: 33-39. The avermenls contained in Ihese paragraph are conclusions of law to which no affirmative response Is required, To the extent affirmative responses may be required, said averments are specifically denied and Slrict proof thereof Is demanded at time of trial ifdeemed material, 40, Admitted, 42-42, The averments conlalned In these paragraph are conclusions of law to which no affirmative response Is required, To the extent affirmalive responses may be required, said averments are specifically denied and strict proof 1hereof is demanded at time oflrial If deemed material. ......, C t~J ";>, " ,.. I till .,;',' ; '. ,. t " 1':< " (); j. -:"'.1 1.1 Iii' I ., . , ~ t (. j I :' " ,. t. ,- -., ... '_1 , (') , ,- j", , , ;- , ..:,- "l l " I':' ,. '--. J ~ r-.:'I , I " , ~ i I: , c_ l~: . . {, , c.;.. I' ,-. ') L' (',', U -,