HomeMy WebLinkAbout96-02547
J
.~
~
\.
~
...
\
~ 1
i
l
~
~
3
~
.0
~
~
.,
'>
\.
~
....
\I)
-
.,:)
~
t-
.,.
\;oj
C"'(
~;
~~
'"
'\
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must bs typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY I
Please list the within matter for the next Argument: Court.
CAPTION OF CASE,
(entire caption must be atated in fuIll
ERIC SILER,
(Plaintiffl
G \0 n
u' "
..., I
~',i:-l ., ,"q
I H~ 'j .J "~
t.1'1 - ,\
i . ....j Ill.,
"\
, .. ; "",' ;
, ;~.
~ ; .' ., )
.,.,fl
, ~:? ,)
. " ..
',..
~'.'I :,J1 ~~-J
(/1 ..;
-.
va.
NATIONSWAY TRANSPORT SERVICE,
(Defendant)
VS.
No. 2547
civil
I92L
1. State matter to be argued (i.e., plaintiff's motion for new trial,
defendant'a demurrer to complaint, etc.),
Defendant's Motion for Summary Judgment
2. Identify counsel who will argue case,
(al for plaintiff, Jeanne H. Bereznicki, Esquire
Address, 2108 Market Street, Aztec Building
Camphill, PA 17011-4706
(b) for defendant, John Flounlacker, Esquire
Address, 305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108
3. I will notify all parties in writing within two daya that thia caae ..
been listed for argument.
4. Argument Court Date, February 5, 1997
Dated: /)1 J ('f il)
)("
- (( "
Attorney Eor
I /1,' ,~.. /("
1.1'(/ l(('lrl,
Nationsway Transport
Service
4. Denied as stated. It is admitted that Plaintiff was evidently walking
through en interior section of Delendant's premises. Upon information and belief, it
is denied that Plaintiff fell into the pit. It is denied thet lhe pit was unmarked.
5. Denied as stated. It is denied that the pit was unmarked or that Plaintiff
fell into the pit. As to the balance of the ellegations of this paragraph, after
reasonable investigation, Defendent is without knowledge or information sufficient to
form a belief as to the truth of the averments and proof thereof Is demanded.
6. Denied. After reasonable investigation, Defendant is without knowledge
or Information sufficient to form a belief es to the truth of the averments and proof
thereof is demanded.
7, Denied. This allegation represents a conclusion of law to which no reply
is required. It is denied that the pit was unmarked. In further answer, the existence
of the pit was open and obvious to Plaintiff.
S, Denied. It is denied that Defendent was negligent as alleged,
9.-11. Denied, It is denied that the Defendant was negligent, As to the balance
of the allegations of these paregraphs, after reesonable Invastlgation, Defendant is
without knowledge or Information sufficient to form a belief as to the truth of the
averments end proof thereof is demanded,
WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed
without cost to it.
NEW MATTER
12. The existence of the "pit" was open and obvious to enyone who wes
paying attention to where he or she was walking.
~
-,
I.
"
p.1~:
~!"l.i!.
l;
. tl'
r-
".
o
. .
M
C
i~
';...
...
~ ~ I
.:~
t~
, '~l
')u..
"
..)
(..'l
..:1
c:":
Cl
t:.j
1I-.
(n
I.
~
~ t;
~ ~ .' III
~ If 0
In .. E
.. Ii .. it
~ ... ..
a 0 M .;
If
s.. ... 0 ..
III "
~ E . 0 III
Ii ...
.. 0 .. i
::: z ..
~ t'i; ... ~
0 .
...
Q
~
"
.~
ERIC A. SILER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
VB,
NO. 96-2547
NATIONSI~AY TRANSPORT
SERVICE,
CIVIL ACTION ' LAW
Defendant
Deposition of:
,r.' 1:1
-J "
." :1
,. ; '1
r 'J ,.'!
'~
l!l (~, "
. ,
I I I
fI ' 'I
T
, .. ,...
.-,-,
ERIC A. SILER , ~.~-) jll1
-,
'11 ..
';:j
Defendant rw .00;;
Taken by
Date
October 2, 1996; 5:03 p.m.
Place
305 North Front Street
Harrisburg, Pennsylvania
Before
Bobbie J. Keller
Reporter ' Notary Public
.
\. .f
APPEARANCES:
THE LAW OFFICES OF PATRICK F. LAUER, JR.
By: JEANNE B. WIGBELS, ESQ.
For - Plaintiff
THOMAS I THOMAS & HAFER
By: JEFFREY B. RETTIG, ESQ.
For ' Defendant
u
'" '''' " IId."r.\' III 1'1111 /I.\''; "/11'/1/
II,m,.I.II'\, :-I;-.!ll../I"ll \",~ :"l;"'."ji'hll't 1'\ ,.,~jHI.!11 -II!:'
'1
1
2
3
4
5
6
7
8
9
10
11
12
.
,
13
14
15
16
17
18
19
20
21
22
23
24
u
25
Q.
A.
Q.
A.
Q.
A.
Q.
A,
Q.
A.
Q.
A,
Q.
A.
Q.
A.
Q.
A.
Exam./Rettig , Siler
When was the divorce?
About '87, I believe, '88.
OU1-ing the time you wel-e married, did you work
for your wife's father's construction firm?
Most of the time. There was periods there when
there were layoffs and things like that, but for
the most part, yes, I worked for him.
What is your ex'wife's name?
Sherry-- \~ell, I'm trying to think of hel- last
name now. She's remalTied. I got brain locked
right now. Sherry-'
What's her maiden name?
Her maiden name is Keener, Sherry Keener.
Do you know where she lives now?
Yes, she lives out in-, I don't know the
address. It's Mountain Road in Mechanicsburg.
Any children from that marriage?
Yes, one daughter. She'll be 16 in " January
16th she'll be 16.
What'd her name?
Erica Lee.
Does she live with her mother?
Yes.
Do you nee her ~t any frequency?
On and off. ,Just, basically, to be honest, it
1/1 11I'1,11" 1/1.\' 1//1'11/11/\1, "1/1'1<'1
"'lfU"'U'~ ~l:--!I!, Il..!! \,11' ~I~ "n.hn~ ", '.\lHJ.]II-'II!:'
6
(1
1
2
3
Q.
4
A.
5
6
7
Q.
8
A.
9
10
11
Q.
12
13
A.
14
Q.
15
A,
16
Q.
17
A.
18
Q.
19
A.
20
21
22
23
24
v
25
Exam./Rettig , Siler
just depends whethel" mom has a bug up her butt /
t ha t 's all.
But you've been to where Sherry lives?
Yes. I see my daughter probably about once a
month. I talk to her on the phone, maybe, once a
week.
Do you pay child support?
Yes, directly to her. Now, it's been sporadic as
of about two years now, but, yes, nothing through
the courts.
After your divorce in 1987 or 1988, what did you
do for employment?
Well, I started in the auto glass.
With whom?
Well, I started with Cindy Rowe.
What did you do for Cindy Rowe?
Well, I was a mobile installer.
And just tell me what you did, if you can?
Well, beginning of the day, we'd check our
invoices, what had to go out that day, what
windshieldG had to be put in, get our pieces of
glass, load OUl" glaGG into the van, get our
invoiceG, and go to either job siteG or people's
wOI"k and l"'pl.lCc tlwir il'lta ql.:wn right: on the
'Jpot: .
,,, II'''''' \1" tit _,.. III "IIUII"li'" Urlt'I
ll.um""'~ :',:- 1110 II,,! I \"" ~l:-..n "II'" ,'\' "'HI.!II-'I1!;"
7
~
1
A.
2
3
4
Q.
5
A.
6
7
Q.
8
A.
9
10
11
12
13
Q.
14
15
A.
16
17
18
Q.
19
20
A.
21
Q.
22
23
A.
v
24
25
Exam./Rettig . Siler
There were several reasons, and, basically, the
workload -- basically, there was favoritism goes
on.
Did you leave voluntarily or were you fired?
I was fired once and I left voluntarily the first
time.
So YOUt- first --
The first time I left voluntarily. I went to
seek other employment. The second time when I
went back and I worked for her, things didn't
work out and I ended up just not going to work
and I got fired.
When you left voluntarily, was that to do some
other kind of work?
Yes. A friend of mine had some landscaping
business going on, and I was able to make quite a
bit more money with him. And that's why I left.
Now, you started with Clearseal in October of
'94; does that seem about right to you?
That's about right.
When had you left Cindy Rowe before starting with
Clearseal?
I don't want to commit myself: to a date. I mean,
if it's "oing to be that illlponant, I'd j'athet'
YOll hav,- It checkc,d. But what I did 1S I 'Jot
"'IU... t. \,.1 111',\'" III "nun\'l;...' Il\"lU
IIlltn-'rr41,\ ,.,~ !l,,.ft/,:1 l..,A, ;'f;"H.,,"~ "\ I M/II.! I I-'ll!;'
9
Exam. IRet t ig . Siler 12
~ 1 A. Emphe Beauty School. That's in Mechanicsburg.
2 Q. And when did you stat't there full time?
3 A. March 25th of '96.
4 Q. Between Januat-y of: 195, when you had this
5 accident and Mal'ch 25, 196, we're talking about
6 14 months.
7 A. Yes, ilbout that.
B Q. Did you have any jobs in that 14-month period?
9 A. Nothing to t'eally "peak about, a few odd ones
10 here and there.
11 Q. Were you looking for work?
12 A. Well, I was looking f:or something to - - some kind
j 13 of occupation to get into. And that's when
14 somebody told me to go down to SETCO for some
15 retraining. For one thing, I didn't feel - - I
16 just didn't f:eel I could handle the auto glass
17 business anymore.
IB Q. Why?
19 A. Well , just physically and the strain of it. I
20 don't know. Basically, the danger of it after I
21 started thinking about it and stuff. I thought
,., thel'e has got to be an easiet' WilY to lIlilke some
-~
23 money ilt a better occupation. Basically, that's
.....,) 24 why went to SETCO.
~5 Q. You were involved tn an autolllobile accident in
,,, /I" /011,' 111',1' /1/ "11'/11,\(;" /11'/<'/
lI.m""I"~ :-':-.!I".ll"J I l,uA ;'/;'.."H.""li '1.\ '.IIuu.11PI11i
')
1
2
3
4
5
6
7
B
9
10
11
12
Q.
13
A.
14
Q.
15
16
A.
17
Q.
18
A.
19
Q.
20
A.
21
22
Q.
23
A.
~
24
Q.
25
Exalll./Rettig - Siler
23
it was on my way home, she said, if you would
take the piece of glass she was going to keep me
on the clock. "If you take the piece of glass,
all you have to do is deliver it" because I had a
date that night. I was anxious to get home. So
I didn't want to work any overtime. And I had
told her that I didn't really want to do it. And
she asked if I would do that for her, she would
just keep me on the clock, get the invoice
signed. I didn't have to bring anything back. I
could just take the truck home.
You were driving a Clearseal truck?
Yes.
When you got to Nationsway, it was still raining,
was it not?
Yes, it was pouring.
What were you wearing as footwear?
I believe I was wearing my boots.
Can you describe them for me?
Just normal work boots. I believe that's what I
was wearing, just my work boots.
And you entered the garage area of Nationsway?
Yes.
Did you go through a garage door type opening or
through D-'
'1/.11/,' /, ,1I,1t/,',\' /I' /'0/11I,\',; '/ /l1'/1T
".,,,uhur\, ;'I;'..!Ih-III..!I \lld.. ;'/7-."iIi.,..,II.li 1" '.IiIJ/I-111.ijl~;'
")
1
2
3
4
5
6
Q.
7
B
A.
9
10
Q.
11
12
13
A.
14
Q.
15
A.
16
Q.
17
IB
19
A.
20
Q.
21
22
A.
23
Q.
-...)
24
25
Exam./Rettig - Siler
get anyone'o attention to f:ind out where I needed
to go to get this receipt oigned, drop off the
piece of glass. I thought I heard somebody
either working or Dome noioe over in that
di t'ect ion.
And you walked sonte diotance in that direction;
is that correct?
I probably walked a few feet, 5 to 10 feet in
that dit'ection.
And then according to your diagram, you seem to
turn around and go in a dir"ction where we put a
Number 3 on your diagram. Why did you do that?
Because I thought I heard voices in that area.
In the area of Number 3 on the diagram?
That's correct.
How far did you walk from where you had walked
towards Number 2 to where you had stopped in your
walking towards Number 3?
Getting up close to where I saw the hallway.
What would the distance be or how many steps did
you take?
I couldn't really say. I don't really remember.
And then, at least accol.'ding to your diagram, you
don't continue walking towardo Number 3 but then
you turn and start walking back in another
'" II"" """1.1' '1/'11/11/.\',; ,/ /1\/1"
"'um"u'l: "I:"-~ 1".l/t,!1 l,,,~ ;-':',.~H'h~"'i ", '.MHI-H 1-'I1!:'
28
Exam./Rettig - siler
29
"\
1
direction; correct?
2
A.
Well, I actually didn't tltan walking. I went to
3
turn around and started walking. I never
4
actually made it that far.
5
Q.
Why did you go to turn around?
6
A.
Because I thought I heard something. The noise
7
did not continue at Number 3 here on the diagram.
8
I thought I heard something back where I had
9
first thought I heard something in Number 2. And
10
that's when I went to turn around.
11
Q.
When you first came in through the door, did you
12
notice whether there were any pits or holes in
13
the garage floor?
14
A.
No, not when I first walked in, no.
15
Q.
Were there any vehicles in any of the bays you
16
have shown on this diagram?
17
A.
It's been quite a while. So I really can't
18
remember. But if there was, there might have
19
only been a trailer, maybe a truck. I'm not
20
sure. I'm not SUt'e. It looked, at that point,
21
like everyone had went home.
22
Q.
Nhen you got to this point, I think you' t'e saying
23
10 to 12 feet you walked straight in and then you
'~
24
start going to your right towards Number 2. When
25
you did that, did you notice whether there was a
III ,,,, /. 1/" "",I' II' ",1/1",\',; " 1/1'/1'1
"..,ml1'H\, n;'.~lh-"h!l \."~ ;-';'.~H'IIU,~ 1" './\IIO.IIl.'lI!;"
Exam./Rettig . Siler
1
Q.
Was there an area towards the top of this
'-')
2
diagram, within this particular bay, where the
3
pit didn't extend or did the pit extend the
4
whole--
5
A.
No, there was an area. There was an area,
6
probably .- I don't know, maybe 6 feet.
7
Q.
How about putting a pit in there (or me in that
B
particular bay, the pit that you saw?
9
A.
And I'd say probably cut off about-. That's a
10
normal pit. I've t'un into them before. It cut
11
off about there and probably about right there,
12
and those would be the areas that you could walk
13
through.
14
Q.
I'm just going to put a curvy line down the
15
middle. That's the open pit on your diagram?
16
That's correct.
A.
17
Now, if you had wanted to continue walking in the
Q.
18
direction you had walked towards Number 3, what
19
were you going to do when you encountered the
20
pit, go over it or walk around it?
21
A.
Walk around it.
22
When you were 5 feet away,.
Q.
23
I wouldn't say I was 5 feet away from the pit. I
A.
24
was probably a few feet away from the pit,
-...)
because, Clt that time, I WiW yrdlinq ill thin
25
II' 111'1' II, III' 'I' 11/1'1111" \,; '/Ill I< ,
",ml.I'u,~ ;"/;"..!1l,.U.,!I "~lIt, ;",;",..Jj-"u.. ,'\' \/lll.!II-'II!;"
32
Exam./Rettig - siler
"")
1
A.
Well, I've seen them before. I didn't know the
2
extent of that pit or how deep that was or how
3
shallow, but I know-- Basically, I've been to
4
trucking companies, put glass in before, and I've
5
encountered pits before.
6
Did the pit look at all like this photograph on
Q.
7
the bottom of this sheet?
8
There would have been steps, though.
A.
9
Q.
Well, they may not show on the photograph.
10
A.
Well, there was steps to get out of there. But,
11
yes, that's what I broke my ribs on is that piece
12
of steel.
13
And there's a yellow area around the perimeter,
Q.
14
the inside perimeter. Do you see that? Was that
15
there in that pit that you consequently fell in?
16
A.
I'd probably say yes. Most of them have the
17
yellow on the steel.
18
I just wanted to ask you this, though. If you're
Q.
19
walking towards Number 3, you're walking right
20
towards the pit. Why didn't you walk up in this
21
area so you'd go around the pit?
22
\~ell, for one, I didn't know what was in this
A.
23
It w..s also, if you see here, if this is,
area.
tu
24
indeed, the pit-- Thio has got to be, I'd say,
25
because there waD an ..rea that had things in it
"' "" /. ,If" '"'\, /1/ 1'111/1/.\"; " 'II",.,.
ll,"n"''''~ ;or;".! I".",,!) \.1'1. ;"r;".,'Ii'f'U.~ '1' '.III1I1.!IJ.lI1!;"
34
Exam./Rettig . siler
1
and, like, a fence. It looked like a warehouse.
.~
2
And then there was ~ building, a white -- it
3
looked 1 ike a shack or something there. I don't
4
make it a habit of going through people's offices
5
or walking into restricted areas. We're not
6
supposed to do that. If we get somebody'o
7
attention, they tell us, Come to the office or
B
whatever, you go to the office. You don't just
9
start wondering through people's buildings.
10
Q.
So it wasn't your plan to jump over the pit in
11
order to get to these sounds?
12
No, sir.
A.
13
Your plan was to stop before you got to the pit;
Q.
14
right, or turn anyway before you got to the pit?
15
A.
My plan was just to grab somebody's attention,
16
find out where I needed to go, and go.
17
My question to you is, though, as you're walking
Q.
IB
towards this pit that you have drawn on your
19
diagram, was it your plan to go over the pit or
20
to stop before you got to the pit and yell or try
21
and get somebody's attention?
22
To stop and get somebody's attention.
A.
23
So it was your plan not to g0 all the way up to
Q,
"..)
24
the pit 01 over the pit?
;:5
~v,;r the JlI t, ,.xact 1 y.
^.
"111I"."011/1'\'11""1/11/.\';'"111"
II,,,m""'li ."r:- JI/lu,,!1 l,,," ;"1~\Ii..."1'l "\ '-"HUll 'II!;"
35
')
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
'-J
24
25
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
v.
Exam./Rettig - Siler
41
in the pit, I never got on my feet again.
When you said you ran out of the pit, I thought
you were running on your feet. Did you come up
the stairs out of the pit or just jump?
Yes. That's how I knew there were steps. That's
how I knew there were utepo.
Were there steps on both ends of the pit?
I wouldn't know that.
Which set of steps did you come out of?
The one on the opposite end of where I came in.
How about putting a 4 up there?
That's where I would have came out.
Did somebody come to your side after some period
of time?
Yes. Obviously, what I had heard coming from--
Just tell me if somebody came to your side.
Yes.
Who was that?
I have no idea.
Did he say anything to you?
Yes, he did.
\1hat did he BuY?
Well, he came up und he muot have heard it
because it lnade n crack.
,Just t,,>lJ lIIe whilt he said.
,,,/1,,,.\1,,,,,'1,1111,,1/1'/1:';',,1\,,,-,
""",,"j"~ ~,:".!ltd'hH \,"~ :"1:' "in./I'" ,,\ ,,"w,.JII.'IIJ;"
~
1
2
3
4
5
6
7
B
9
10
11
12
13
14
15
16
17
IB
19
20
21
22
23
24
,.....)
25
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Exam./Rettig - Siler
He said, "Did you just [all in the pit?" I said,
"Yes." He said, "Are you all right?" I said, "I
can't breathe." He said, "Do you want lIle to call
an ambulance?" I said, "Give me a second, give
me a second." Because at that point I didn't
even know what was going on with me.
I couldn't
breathe. And then he said, "Shouid I call an
ambulance, should I call an ambulance?" And I
mean, he was pacing.
r said, "Yes." That's when
I said, "Yes, I r'an' t breathe."
And did that fellow call an ambulance?
He ran and got somebody.
I assume somebody
called an ambulance.
I don't know whether he
called the ambulance or somebody else did.
Can you describe this fellow to me?
He was a young man.
That's a relative term. Younger than you?
Yes.
What color hair?
I'd be guessing, brown, black.
I'd be guessing.
No, don't guess. Nas he wearing a Nationsway
shirt or anything that identified him as an
employee o[ Nationsway?
No.
Did you ,::ver :iee him be[orf~'(
, lllll'" i_ \'iI tit to, Ut l'OUII"I, "" urltl
","""'''r,';-r~llt /Ill! I \,I,1t, ~':-,~n.",,~ "\, "'Ill JII-'Il!:'
42
Exam./Rettig - Siler 44
1 Q. Who r.ext came to you after this young man did?
)
2 A. The same gentleman that came to the hospital to
3 see me.
4 Q. Do you know his name?
5 A. No. He had handed me a card I had since lost.
6 Q. While you were still in the Nationsway garage
7 area, was it just these two men that came to your
B side?
9 A. No. Actually, there was a third guy came up
10 asking what the hell was going on. Now, he
11 looked like somebody of importance because he had
12 a white shirt on, kind of large man.
i 13 Q. What did he say?
14 A. "What the hell is going on?"
15 Q. Anything else beyond that?
16 A. Not anything around my earshot.
17 Q. Anybody else say anything about inspectors or
18 covering the pit or marking the pit other than
19 this young man?
20 A. That was it.
:n Q. SO you go to the 1I0l~' Spiri t Hospital; is that
22 right?
23 A. That'D right.
24 Q. Ill' ,.mbu I ::mce ';'
,~
25 A. Ycs.
'" III~ i.\lI' 11th W I'IIIl 11.\1 i ""IH'h"
"''''I.I'I''~ :-r~lhllf,!l \PI.!. :-,:' ..n"".. II' '0."ulI-111.'II!:'
~,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
\ )
--
24
25
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Exam./Rettig . Siler
Now, ,Jackie Harm was at the hospital. Who else
came to the hospital while you were there?
The gentleman from Nationsway, the second man
that showed up while I was on the floor.
How about Ed? Did he show up too?
Yes, he did.
And did you talk to those guys about what had
happened; do you remember, while you were in the
hospital?
Well, not to real length, not to real length, no.
How about at all?
Oh, yes, I'~ sure I said something because Ed was
asking what the hell happened.
Did you tell them the same thing you told me
today about what happened?
Yes. I wouldn't say I went into the detail that
I'm going into with you. I basically said I
slipped and fell into a pit.
Well, do you recall saying that you were walking
down the middle between the pits, you walked from
the south side of the shop to the north, got to
the south end and turned to look at the office.
Does that sound familiar to you? Did you tell
them than
Basically, what they're taIling you is the same
'" "" /.\/01 l/l~," /1/ I'II/l' ',\,,; " /II.".,
",ntH/tll'\, ;'f;".!!II.Iltt!l \,'rk ;"1;"-,\0."""" 'It '.MIfI.!I1.'m:,
46
Exam./Rettig . siler
')
1
story I wrote out for you right now except they
2
got things, you know what I mean, one way or
3
another.
4
Q.
They have north and south and you weren't using
5
that?
6
A.
To be honest with you, I don't even think I went
7
into that detail with them, So actually I think
8
they're adlibbing, because I'm in the hospital
9
with broken dbs. I could bat'ely breathe. I
10
wasn't talking to anyone very much.
11
Q.
So you're saying you didn't say that or words--
12
A.
I'm not saying I went to that extent, telling
,
j
them exactly what had happened. I think my
13
14
bottom line was I fell into a pit.
15
Q.
Are you telling us here today that you didn't say
16
that to them, what I just read to you?
17
A.
I'm telling you today, no, I did not go into
18
detail with what had happened, like when I was
19
walking north, south, and all that kind of-.
20
Q.
Did you tell them when you turned-- He said you
21
were standing too close to the pit and slipped.
22
Did you tell Ed and the other guy that?
23
A.
No, I did not.
24
Q.
Did you tell them that when you slipped, you were
'-.I
looking to the north or to your left? Did you
25
II/ /I" /. Ifd 111'1' /11 "11'11I,\";" ,/1'/1"
IIllrrl\/,ut..::"l;'.111"II',!! \",l.;'/;'.,H."H" "\ ,.!'oIUl..!ll.'H!;'
47
Exam./Rettig - Siler
--I
1
statement, so we'll have that at some point in
2
time. But let me just read you nome of the
3
things that this lady says you told her and tell
4
me if you told het' or not. She says she took the
5
recorded statement (rom you on I'ebruat'y 1, 1995,
6
which would have been a couple o( days after the
7
accident.
You don't have a recollection of
B
giving a recorded statement to a representative
9
from Erie Insurance Company, though; is that
10
right?
11
No.
A.
12
It says, "Claimant, 6 foot, 173 pounds, divorced,
Q.
13
one child, Erica." Do you recall telling the
14
insurance company representative about your
15
height. weight?
16
I don't remember any of this. So if you want to
A.
17
just read it, I'll let you know what's factual
IB
and what isn't.
19
It says, "Arrived at Nationsway Transport to
Q.
20
delivet. glass.
It was raining hard, walked into
21
shop, looked for someone to sign for delivery."
22
Do you recall telling them that?
23
A.
Yes.
, ....)
24
"Slipped ,lnd lell into pit (or servtcing tractot'
Q.
25
tr3iler:J. tI Did you tell the insurance
III '", ,. \/01 1/1'\' '11/"1/11/\,; "111/1"
",,,,,,h,,,\,:'I;"-!I"""!1 \,,,In;-qj.,,,,-,.,,, ""Ul/.HI-"I!:'
49
''1
1
2
3
4
5
6
7
Q.
A.
Q.
A.
Q.
A.
B Q.
9
10
11 A.
12 Q.
J
',-,
13
14
15
16
17
IB
19
20
21
22
23
24
~
25
Exam./Rettig . Siler
67
You quit?
I got fired. And I just never went back.
And then it's indicated you had worked at Holiday
Hair part time. When did you start doing that?
That was right after I had started school.
Which was some time this year?
Yes.
The door you went in the day of this accident,
that was the same door you had gone in on the
previous occasion, was it not?
Yes, I believe so.
That's all I have, sir. Thanks.
(The proceedings concluded at 6:20 p.m.)
"' "" /.\,,, 1/1', \, /1/ "11/11/.\"; " /lI'ICI
Ilo.rm/'un: ~':".!lh.I"t!1 \.It' :"1:",'in'hlPi ,., '.~1I1l.111.IH!:'
.
-
------
cD
~
.-
~ '"
.'''''''-..
'-
--
--,
~
- ~---
~
I.
()
,:,
\\
)' ~ 0
0
I ' - P
f
I ~
j I -
I
W ,V
. .
,/
/' / "\/'
", J'~
- - I
----:::....
\
u/\..
~\\
---.
~
5. As a result of Plaintiff's fall into the unmarked pit on
Defendant's premises, Plaintiff suffered two broken ribs as well
as a traumatic injury to his right kneu.
6. Plaintiff was compelled to seek medical care for his
injuries.
7. Defendant owed a duty of care to Plaintiff to at least
warn Plaintiff of the dangerous condition existing on the
Defendant's property, if not take steps to prevent Plaintiff from
being injured in the manner in which he was on January 20, 1995.
8. Defendant was negligent and breached his duty of care to
Plaintiff, to wit:
a. Defendant failed to properly mark the location and
existencs of the pit to which the Plaintiff fell in
order to warn Plaintiff of its location and potential
danger; and
b. Defendant failed to take appropriate action to cover or
otherwise take preventative action to prevent Plaintiff
from falling into said pit; and
c. Defendant failed to make available an alternate route
for Plaintiff, a business invitee on Defendant's
premises, to conduct his business in a way which would
be free from the danger associated with the pit located
on Defendant's premises.
9. As a result of Defendant's negligence, Plaintiff
suffered the above referenced injuries and continues to suffer
-,
,-.',
.-............J
~
"
,
. """....:-.
( , ,
, ''''-
---
<j
"
, J ".-)
'," - ,
1"-, . .-, " '
" 'Y'
/ ..
",
~
gf~
~j~Jff:~
;;::J r.n ~ __
<cu .E~~~
..J...1i==.....
~ lU - 0:: t:'
~ ~ ~ ~ g-C
U= N u
~<
~
EJ; ..:I'
" ...::
i" r:: ).t~
'f; .)"--).
/-.,
.- ::t.:
r' <L. J-:j
.'...
~, -j"
'" N '1:-:
I" I- jip
i-~ c..,= ''-'-
c;;
t5 'n 'j
en i...J
'>- -' i:.~
h; ~
i.~
("';
\1I. .
( ")." .
-.,
f" " ,., I
~)\ (1.
;1\.,
fi ~:; <I-
i '-,
1t'" 1-- ..'
L.' ~:,-
96-2547 CIVIL TERM
boots. jg. at 23, Plaintiff could see the floor, but did not notice any grease or 011
on the floor, nor did he notice anything out of the ordinary. jg. at 30, 37. Plaintiff
was calling out and looking for someone to accept delivery. jg. Plaintiff noticed
that there was a grease pit In the floor approximately five feet before he got to It.
(Plaintiff's deposition at31.) Plaintiff was walking toward the pit when he nollced
It, and decided to turn around when he was approximately two or three feet away
from It. J.Q. The plaintiff's socks and feet were wet. J.Q. at 36. As he turned
around, the plaintiff's foot shot out from under him and he fell Into the grease pit.
J.Q. at 36, 39, 40.
Plaintiff flied a claim for bodily Injury Incurred as a result of the fall.
Defendant flied a motion for summary judgment and arguments were heard.
Defendant alleges that It Is entitled to summary Judgment because the plaintiff has
been unable to offer any evidence Indicating that the defendant played any role In
causing the plaintiff's fall or Injuries. We address this mollon.
DISCUSSION
Pennsylvania Rule of Civil Procedure 1035.2 provides that a mollon for
summary judgment as a mailer of law Is properly granted "(1) whenever there Is
no genuine Issue of any material fact as to a necessary element of the cause of
action or defense which could be established by additional discovery or expert
2
96-2547 CIVIL TERM
(a) knows or by Ihe exercise of reasonable care would discover Ihe
condition, and should realize Ihallllnvolves an unreasonable risk of
harm 10 such Invllees, and
(b) should expecllhallhey will nol discover or realize Ihe danger, or
will fall 10 prolecllhemselves agalnslll, and
(c) falls 10 exercise reasonable care 10 prolect them against he
danger,
We are approprlalely guided by Reslalement (Second) of Torts
~ 343 A which provides:
~ 343 A. Known or Obvious Dangers
(1) A possessor of land Is nolllable to his Invltees for physical harm
caused to them by any actlvlly or condition on the land whose danger
Is known or obvious to them, unless Ihe possessor should anticipate
Ihe harm despite such knowledge or obviousness.
A danger Is deemed 'obvlous' when both the condition and the risk are apparent
10 and would be recognized by a reasonable man, In Ihe position of the visitor.
exercising normal perception, Intelligence, and judgment. Carrender v. 8Jmmr,
503 Pa. 178, 185,469 A.2d 120, 123 (1983), quoting Restatement (Second) of
Torts, ~ 343 A, comment b. Although the question of whether a danger Is known
or obvious Is usually a question of facl for Ihe jury, this question may be decided
by Ihe court 'where reasonable minds could not differ as to Ihe conclusion.'
Carrender. at 185-186, 469 A.2d al124.
4
,
96.2547 CIVIL TERM
We believe that reasonable minds could not differ that a grease pit Is an
obvious danger. First, the condition of the unguarded pit was apparent to the
plaintiff. The plaintiff's own testimony reveals that he saw the pit and Intended to
avoid It well In advance of his fall.
O. Did you notice that there was a pit?
A. Yes, I did.
O. When did you notice the pit there?
A. I noticed the pit probably 5 feet or so before I got to It.
(Plaintiff's Deposition at 31).
O. How far away from the pit were you when you first
noticed that there was. -
A. Well, that's what I'm saying. If the pit Is 20 feet, 10 feet, I'm
saying, I was stili In the bay area, not the pit area, when I noticed the
pit.
J..Q. at p. 33.
Second, we conclude that the plaintiff appreciated the risk of failing Into the
pit because he had no Intention of attempting to cross It or walk around It.
O. How close did you get to the pit before you decided to tum
around?
5
96-2547 CIVIL TERM
A. I was probably about 2 feet from It, 2 maybe 3 feet from II,
something like that.
a. If you had continued walking In the path that you were walking,
would you have walked Into the pit?
A. Oh, yes, absolutely.
lQ. at 31.
a. Now, If you had wanted to continue walking In the direction you
had walked towards Number 3, what were you going to do when you
encountered the pit, go over It or walk around It?
A. Walk around It.
lQ. at 32.
a. So It wasn't your plan to Jump over the pit In order to get to these
sounds?
A. No, sir.
J.d. at 35. Accordingly, we can deduce that a grown man of ordinary Intelligence
would appreciate the risk of a visible pit present In the floor. Furthermore, nothing
In the record Indicates that the defendant should have anticipated that the plaintiff
would not notice the dangers of the pit.
The plaintiff had been to the defendant's garage before, lQ. at 20, and the
6
96-2547 CIVIL TERM
plaintiff had been to trucking companies where he had seen and encountered pits
before. 12. at 34. He entered the defendant's garage knowing that he was wearing
wet work boots. (Plaintiff's deposition at 36.) Plaintiff had walked In garages with
that kind of floor before with wet boots on, and noticed them to be slippery. lQ. at
36. Plaintiff alleges that he was a business Invitee on the defendant's property,
and the defendant was negligent for failing to mark the location and existence of
the pit, for failing to take appropriate action to cover the pit, and for failing to make
available an alternate route for the plaintiff to conduct his business In a way so as
to be free from danger. ~ Plaintiff's Complaint at ~ 8. We disagree.
Assuming arguendo, as the plaintiff contends, that the plaintiff was a
business Invitee to whom the defendant owed a duty, and assuming also that the
defendant violated Its duty and was negligent, plaintiff cannot recover. The Injury
did not result from the defendant's negligence, but from the plaintiff slipping. ~
J2mber v. John C. ~Ier Co., 428 Pa. 219, 237 A.2d 224 (1968) (even If defendant
was negligent In failing to cover hole 16 feet In depth, plaintiff was not entitled to
recover for Injuries sustained when he fell backward Into hole while removing metal
brace from three-foot scaffold because Injury resulted not from defendant's
negligence but from slipping of brace), In a case almost on all fours with the Instant
case, ~h v. Texas Co" 363 Pa. 619, 70 A.2d 290 (1950), the Pennsylvania
7
96.2547 CIVIL TERM
Supreme Court held that a pedestrian walking along the public sidewalk who
slipped and fell Into a grease pit on the defendant's service station property could
not recover because the grease pit was In no way the cause of the plaintiff's Injury.
!Q. 70 A.2d at 293. The court stated that 'recovery cannot be predicated upon the
mere conjecture that his Injuries might have been less serious had the grease pit
not been there. It being clear that the appellant slipped, lost his balance, and was
Injured by reason of his own Independent act, and through no fault of the
defendants, the question of proximate cause was for the court, which properly
directed a verdict for the defendants.' Id. at 293.
In ~, sucra, the Pennsylvania Supreme Court held that although a
plaintiff who fell from scaffolding Into a hole might have sustained greater Injuries
by failing Into the hole than he would have received had the hole been covered,
that fact had no bearing on the cause of the fall. 237 A.2d at 225. The court
sustained the defendants' preliminary objection In the nature of a demurrer on the
ground that It was clear that the defendants were not the cause of the fall;
therefore, the alleged negligence was not the proximate cause of the Injuries. !Q.
at 225, 226.
In the Instant case, the plaintiff testified that the defendant's grease pit
played no role In causing him to fall.
B
96-2547 CIVIL. TERM
a. Do you know what caused you to slip?
A. I have no clue, All I know Is my foot slipped out from under me
when I was turning around.
(Plaintiff's deposition at 37.) This testimony reveals that the plaintiff Is unable to
demonstrate that the defendant's negligence caused his fall.
Finally, plaintiff alleges that the doctrine of ~ applies In the
Instant case. We disagree. In .GJlbert v. Korvette I.QQ., 457 Pa. 602, 327 A.2d 94
(1974), the Pennsylvania Supreme Court adopted the ~ doctrine as
provided In Section 328 0 of the Restatement (Second) of Torts. That section
provides:
~ 328 O. Res Ipsa Loquitur
(1) It may be Inferred that harm suffered by the plaintiff Is caused by
the negligence of the defendant when
(a) the event Is of a kind which ordinarily does not occur In the absence of
negligence;
(b) other responsible causes, Including the conduct of the plaIntiff and
third persons, are sufficIently eliminated by the evidence; and
(c) the Indicated negligence Is within the scope of the defendant's duty
to the plaintiff.
(emphasis added.) It Is well settled that all three of the elements set out In section
328 0 must be satisfied before an Inference of negligence can be drawn from an
9