HomeMy WebLinkAbout97-05325
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DARRYL L. ALWINE,
Plaintiff
V.
ALL AMERICAN PLAZAS, INC.
Defendant
NO. 97-5325 CIVIL TERM
PRETRIAL CONFERENCE
At a pretrial conference held October 21, 1998,
before Edgar B. Bayley, Judge, present for the plaintiff was
Lawrence P. Lutz, Esquire, and for the defendant, Kevin C.
McNamara, Esquire.
Plaintiff, a truck driver, stopped at the truck
plaza of Defendant All American Truck stop in Carlisle on
November 14, 1996. The plaza provides drivers with shower
facilities when they refuel their trucks. Plaintiff maintains,
that when he stepped into a shower tub, he slipped because
anti-skid strips had been removed from a portion of the tub
surface. Defendant denies liability and in the alternative
maintains that plaintiff was contributorily negligent.
Plaintiff maintains that he suffered nerve damage
in his back and right elbow resulting in a permanent injury. He
has not been back to work. He seeks lost wages, 10s8 of earning
capacity, medical expenses, and general damages. The partie.
will stipulate to the amount of medical expenses plaintiff ha.
incurred to the date of trial.
This is a premises liability case under Section
343 and 343(A) ~f the Restatement of Torts (Second). Coun.el
shall provide points for charge to the trial judge.
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4, On or about November 14, 1996, All American had exclusive supervision and
control of Its premises and had a duty and responsibility to maintain Its premises, Including
the shower facilities, In a safe condition for business Invltees and patrons, Including Plaintiff,
Darryl L. Alwine.
5. On or about November 14, 1996, Plaintiff, a truck driver, stopped at the All
American Truck Plaza In Carlisle, Pennsylvania for the purpose, among other things, of using
the shower facilities.
G, On or about November 14, 1996, Plaintiff, Darryl L. Alwine, entered the shower
stall at the All American Truck Plaza, Plaintiff then slipped and fell because of the
unreasonably slippery surface of the shower facility, causing severe and serious Injuries and
damages to Plaintiff.
7, Defendant and ils agents, servants, and/or employees knew or should have
known that the condition of the shower area was unreasonably dangerous to patrons of the
facility .
8, Plaintiffs fall on Defendant's premises, with consequent Injuries, was the direct
and proximate result of the negllgencA, carelessness and recklessness of the Defendant, Its
agents, servants, and/or employees, all acting within the course and scope of their
employment liS follows:
a. In failing to maintain the Defendant's premises in a safe and proper
manner;
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b, In failing to keep and maintain Defendant's premises, In partlcula'r, the
shower area of Defendant's premises, so as to prevent accidents caused by the slippery
surface;
c, In failing to provide non-skid materials on the surface area where
Defendant knew patrons could slip and fall;
d. in failing to supervise and/or Inspect the shower areas;
e, In failing to warn Plaintiff of the dangerous conditions In the area in and
about the showers on Defendant's premises prior to Plaintiffs attempt to use the shower
facilities;
f, In failing to place non-skid materials upon the atea of the shower
surface, or In allowing non-skid materials to be removed;
9, In failing to provide handrails, bath mats, or other items to prevent
accidents such as the Plaintiffs from happening,
9, As a direct and proximate result of the negligence, carelessness and
recklessness of the Defendant, Its agents, servants and/or employees as above described,
Plaintiff sustained the following injuries:
a) damage to his lumbar spine and sacral Joint resulting In debilitating pain
In his lower back and both legs;
b) various contusions;
c) Injury to his right shoulder;
d) injury to his neck;
e) injury to his cervical spine; and
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5. Admitted with qualification. It is admitt'ed that the
Plaintiff was at the All American facility on the date alleged. As
for the purpose of the visit, after reasonable investigation,
Defendant is without knowledge or information sufficient to form a
belief as to the truth of the allegations and proof thereof is
demanded.
6. Denied. The allegations that the surface of the shower
facility was unreasonably slippery and that this alleged condition
caused injuries to the Plaintiff constitute conclusions of law to
which no response is required. By way of fUI'ther answer, it is
denied that the shower surface was unreasonbly slippery. As to the
balance of the allegations, after reasonable investigation,
Defendant is without knowledge or information sufficient to form a
belief as to the truth of the allegations and proof thereof is
demanded.
7. Denied. These allegations represent conclusions of law
to which no response is required.
8 (a) - (g). Denied. These allegations represent conclusions of
law to which no response is required. By way of further answer, it
is denied that the Defendant was negligent, careless or reckless in
any of the ways alleged.
9 (a) - (f). Denied. These allegations represent conclusions of
law to which no response is required. As to the injuries alleged,
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after reasonable investigation, Defendant is without knowledge or
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information sufficient to form a belief as to the truth of the
allegations and proof thereof is demanded.
10 (a) - (d). Denied. After reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the truth of the allegations and proof thereof is demanded.
WHEREFORE, Defendant respectfully requests that Plaintiff's
Complaint be dismissed without cost to it.
NEW MATTER
'11. ~laintiff has or may have failed to mitigate his damages.
12. Plaintiff's r.ecovery is barred or reduced by payments
already made by, or on behalf of, Def.endant on account of the
injuries alleged in the Complaint.
WHEREFORE, Defendant respectfully requests that Plaintiff's
Complaint be dismissed without cost to it.
Respectfully submitted,
THOMAS. THOMAS & HAPBR
By: i C/)/'/2.H~Lo--
Kevin C. McNamara, Esquire
I.D.II72668
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7132
DATE: lo/t~/tJ 7
Attorneys for Defendant
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
DARRYL L. ALWINE, ) CIVIL ACTION. LAW
)
PLAINTIFF, ) NO, 97-5325 CIVIL
)
Vs, )
) PLEADING:
ALL AMERICAN PLAZAS, INC., )
) PRAECIPE TO SETTLE
. DEFENDANT. ) AND DISCONTINUE
)
)
) FILED ON BEHALF' OF:
) PLAINTIFF
)
)
) COUNSEL OF RECORD:
)
) LAWRENCE p, LUTZ
) PA 10 #34606
)
) LUTZ, PAWl< & McKAY
) HOLLY POINTE BUILDING
) 220 S, MAIN STREET, SUITE D
) BUTLER, PA 16001
) (724) 285-3400
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