Loading...
HomeMy WebLinkAbout97-05368 ,I .1 "I I " , I 1 1 I I " I I '. , , I, "J II, I " i' , '1 I I ~ 'I I I, , I, I, , 'I ... " h' " ',' ~. , , I" . - I HI ?'- - LJ. 'i " '/ " , . 1" tit '7 , I I' I " ~ \1 I, " , Q) , , , ;, , 'i' l I I , '1 I I I' " I' ., I' /, " , ,. , ., ,I, 'I 1'-\ 1,1' , I , " "" " ,. i' , " .1, I" , ./ -".J '-i ,,1. , , '{I' ,. 'I, , ~ , J " II' I 'l' '" 'I " "I!\ <',' " , ,I " .1 I ,(i,'II, " " i,.,',1 J" " ',' 'i' " , 00 ,,~ I(() I' ,," II 'I"~ '",I) I' , " " , , '1,' '" " ',' , ,'\ ;,' '.i 'II ,I.', I " I,,' I' " \;' " . !, II I' , iit~'i " j( If. I~l ',:Ii '\\'1\'1 '\;ljj" '::.l',f,-',.:, ' 'j !f~ :,! ',-'4i ,'1-: "I~ !~ ,/ l..1 ~ . ~ ~ ~ ~ ~ ...r . ?- J^lt1I~lflO .. .' I' , . , I' " S ,a !?t Ij , , 0) tfJ en Do 'j! r::: )91 .n ' ,I;;G ~., i'FL) , , C' 0 0,; ,"l~ f"." 'I. "L"':-; "l;l , , ~Q L:fJ :;,; ':'Ftj '0 '. I,,' - 0 .P: (:~'. .. ."j . ~, .~ ~ " "'I , ' . .'\ir:\ii:'JFN~HI ,\lJ'4nY:'':r'!'p n'~V'lno " ~~ ~ (' " , 6~ :t:: 1M, 21 snv 86 ('0. ~ ...., "<> "jl." ",' '." I ',.IL "0 ,\L "....1/1 ,UH.J..l..,r, :i 1, .;;j '38!Jd(}{J~11:1 ' 6. At that time and place, Mr. Sanders walked over to assist the person who was asking for help. 7. After helping the person, Mr. Sanders started to walk back to his vehicle. S. At that time and place, just before approaching his vehicle, Plaintiff Dennis Sanders tripped and fell over a drainage hose that was part of a drainage system located on the Fuel Island. 9. At that time and place, the drainage hose extended several inches off of the Fuel Island and onto the pavement, thereby creating a dangerous tripping hazard. 10. The drainage hose which extended several inches out from the fuel island, was not painted, taped, marked, and did not contain any marking that would bring its attention to a passerby, thereby creating a dangerous tripping hazard. Furthermore, the color of the drainage hose was such that it blended in with the fule island and surrounding concrete and pavement. 11. As a direct and proximate result of the accident Mr. Sanders required and received immediate medical attention at the Carlisle Hospital in Carlisle, Pennsylvania. 12. The design, construction and lack of any warnings around the drainage hose caused Plaintiff to trip and fall over the hose, throwing him forward, directly and proximately causing him to 2 suffer various injuries, including but not limited to a broken right foot and a broken right toe. 11. These inj uries required splinting, extensive therapy, and related medical treatment. 14. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Plaitniffs Dennis Sanders and Nancy Sanders are the direct and proximate result of the negligent, careless, wanton, and recless conduct of Defendant Flying J, Inc. as follows: (a) creating and maintaining a dangerous condition at its premises in an area used by business invitees; (b) failing to properly maintain the premises by allowing a drainage hose to remain in an area used by business invitees; (c) failing to ensure that as to a business invitee like Plaintiff Dennis Sanders, the Defendant provided a reasonably safe walking environment; (d) failing to remove or warn business invitees of the dangerous condition created by having a drainage hose located in a dimly lit area on the Fuel Island; (e) failing to warn business invitees, such as plaintiff Dennis Sanders, of the presence of the aforesaid drainage hose with warning signs, adequate lighting, bright tape, or other similar warning devices or measures, so that the hazard involved could be avoided; (f) failing to take proper measures to prevent business invitees from tripping and falling over the drainage hose which is located on the Fuel Island; 3 , , , , , " ~w~ ~ ~ ~ ~ "-.I c:..,~~ t"-' ~ ~ ", iD ~ ~ . ~ ~ ~~ ~ (") .rj <:) \ ...J -n -" rf} '.' ." .'.1 \;.fl i.:' 'r.l ,. 1...) I ~"J ;() "j . , j ~- ~'.) ..I) " ill') ,,\ " ~ -, ,,, ~..1 -~ .' " " ... . . " 'I, " l t" , j....... ..;..~~ ...~ -..--.. ....Ii:..r!__... .. matter asserted and therefore, these allegations are denied and strict proof ther~of is demanded at trial. 6. Denied. Defendant 'lacks knowledge and/or information sufficient to form a belief as to the truth of the matter asserted and therefore, these allegations are denied and strict proof thereof is demanded at trial. 7. ,Denied. Defendant lacks knowledge and/or information sufficient to form a belief as to the truth of the matter asserted and therefore, these allegations are denied and strict proof thereof is demanded at trial. 8. Denied. Defendant lacks knowledge and/or information sufficient to form a belief as to the truth of the matter asserted and therefore, these allegations are denied and strict proof thereof is demanded at trial. 9. Denied. Defendant lacks knowledge and/or information sufficient to form a belief as to the truth of the matter asserted and therefore, these allegations are denied and strict proof thereof is demanded at trial. 10. Denied. Defendant lacks knowledge and/or information sufficient to form a belief as to the truth of the matter asserted and therefore, these allegations are denied and strict proof thereof is demanded at trial. By way of further answer, the allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. -2- 11. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. 12. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. 13. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. 14. Denied. The allegations of negligence, carelessness, wantonness and reckless conduct as set forth in this paragraph, together with its subparagraphs (a) - (h) are specifically denied. To the contrary, at all times relevant to the material allegations set forth in Plaintiffs' Complaint, Defendant acted with reasonable care under the circumstances. By way of further answer: (a) Defendant specifically denies creating and maintaining a dangerous condition at its premises in an area used by business invitees; (b) Defendant specifically denies failing to properly maintain the premises by allowing a drainage hose to remain in an area uoed by business invitees; -3- (c) Defendant specifically danies failing to ensure that as to a business invites like Plaintiff, Dennis Sanders, the Defendant provided a reasonably safe walking environment; (d) Defendant specifically denies failing to remove or warn business invitees of the dangerous condition created by having a drainage hose located in a dimly lit area on the Fuel Island; (e) Defendant specifically denies failing to warn business invitees, such as the Plaintiff, Dennis Sanders, of the presence of the aforesaid drainage hose with warning signs, adequate lighting, bright tape, or other similar warning devices or measures, so that the hazard involved could. have been avoided; (f) Defendant specifically denies failing to take proper measures to prevent business invitees from tripping and falling over the drainage hose which is located on the Fuel Island; (g) DefendaJt specifically denies failing to take proper measures for the elimination of hazards to business invitees that were known or should have been known to exist; and (h) Defendant specifically denies failing to inspect its premises to determine whether there were any conditions which could pose a hazard to business invitees. -4- required and accordingly, the same are denied and strict proof thereof is demanded at trial, 21. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. 22. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. 23. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. CLAIM It Nancv Sander. v. Plyina J. Inc. 24. Paragraphs 1 through 23 of Defendant'A Answer with New Matter are incorporated herein by reference. 25. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. -6- WHEREFORE, Defendant, Flying J, Inc., hereby demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIPP~ 26. Defendant hereby incorporates, by reference as if set forth at length herein, its responses to Paragraphs 1 through 25 above. 27. plaintiff was contributorily negligent. 28. Plaintiff assumed the risk for all of his activities on or about April 12, 1997. 29. Plaintiff's comparative negligence was a substantial factor in bringing about any injuries and/or damages alleged in his Complaint. 30. In the event that Plaintiff was in1ured and/or damaged as alleged, which allegations are specifically denied, said injuries and/or damages were caused by the actions and/or inactions of Plaintiff and/or others over whom Defendant had no control nor right of control. 31. Plaintiff's injuries and/or damages, the existence of which are specifically denied, pre-existed the incident giving rise to this litigation. 32. Plaintiff was not a business invitee on April 12, 1997 at the Flying J location in Cumberland County, Pennsylvania. -7- 33, Plaintiff has failed to state a cause of action upon which relief can be granted. 34. Plaintiff's claims are barred by the applicable provisions of the Pennsylvania workers' Compensation Statute. 35. Plaintiff knowingly and voluntarily assumed the risk for all injuries described in his Complaint and knowingly and voluntarily exposed himself to an open and obvious danger. 36. Defendant owed Plaintiff no duty of care under the circumstances alleged in Plaintiffs' Complaint. 37. Plaintiffs' claims are barred by the applicable statute of limitations. 38. Plaintiff's negligence was the sole and proximate cause of the injuries and/or damages described by Plaintiff in his Complaint. 39. Defendant had neither actual nor constructive notice of any alleged defective condition existing upon its premises, any such defective condition being especially denied. 40. Plaintiff, Nancy Sanders' claims are derivative and are barred as a matter of law. WHEREFORE, Defendant, Flying J, Inc., respectfully request that this Honorable Court dismiss Plaintiffs' Complaint -8- his inj uries. Further, as previously stated herein, Plaint.iff Dennis Sanders was not negligent or careless. All of Plaintiffs' injuries and damages are recoverable in the instant action. 29. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby spec if ically denied. By way of amplification, as previously indicated herein, Plaintiff Dennis Sanders was not negligent in any way. Therefore, the pennsyl va:lia Comparative Negligence Act does not apply to the instant action. Further, all of Plaintiffs' injuries and damages are recoverable in the instant action and are in no way reduced. 30. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Defendant's averment lacks the specificity required by the Pennsylvania Rules of Civil Procedure. Further, all of Plaintiffs' injurles and damages were caused solely and directly as a resul t of the negligence, carelessness, wantonness and recklessness of the instant Defendant. 31. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, all of Plaintiffs' injuries and damages were caused 2 by the negligence, carelessness, wantonness, and recklessness of the instant Defendant as more specifically stated in Plaintiffs' Complaint. None of Plaintiffs' injuries or damages pre-existed the incident referred to in Plaintiffs' Complaint. Plaintiffs incorporate their Complaint herein by reference. 32. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, as Plaintiff was purchasing gasoline for his vehicle from the instant Defendant, he most certainly was a business invitee. 33. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiffs' Complaint does state a cause of action upon which relief may be granted. 34. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff Dennis Sanders was not in the course and scope of his employment at the time of the accident referred to in Plaintiffs' Complaint. Therefore, the Pennsylvania Workers' Compensation Statute does not apply herein. 3 35. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiff Dennis Sanders did not assume the risk of his injuries. Further, as previously stated herein, plaintiff was not negligent or careless. All of Plaintiffn' injuries and damages are recoverable in the instant action. 36. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, as Plaintiff was a business invitee, Defendant owed the highest duty of care to Plaintiff. 37. Defendant's averment is a conclusion of law to which no responsi ve pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, Plaintiffs' Complaint was filed well within the applicable 9tatute of limitations. 38. Defendant's averment is a conclusion of law to which no responsive pleading is required. To the extent the averment may be deemed factual, it is hereby specifically denied. By way of amplification, as previously indicated herein, neither Plaintiff was negligent. All of Plaintiffs' injuries and damages were caused 4 .. " " , I i' ,I " " 0'1 " e ..0 0 , " ,-.J . I , , , ~, '"'!,. 1P1 ,~~ '~ ':"1' o C: .- -..!n I, c!, f" ."M'I 6';.' : 'I~~ ~')6 '~U ....., ../,) '"I) 'I' -,.., ~,,: \..~:'J !iJ () 1'3 i.:yTl (.;' .. ~J :i "I ::;1 ", ~ ,~ ',I " " 'j" , , " f ,; " , , I, .. '. 5. All of the discovery sought by Plaintiffs through their Interrogetorles and Request for Production of Documents Is relevant to the Instant action. 6. Our Rules of Civil Procedure provide for the liberal granting of discovery. 7. Defendant Flying J, Inc. has failed to comply with the discovery as required by Pa.R.C.P 4005 and 4006. 8. Defendant Flying J, Inc. has had more than ample time to respond to Plaintiffs' Interrogatories and Request for Production of Documents. 9. Pa.R.C.P. 4019 provides that upon motion of a party, the Court can make an appropriate order when a party "falls to make discovery." Pa.R.C.P 4019(a)(vlll). 10. Plaintiffs, therefore, believe that answering all of Plaintiffs' discovery requests would not burden or oppress Defendant Flying J, Inc.. 11. Plaintiffs are represented by Richard A. Sad lock, Esquire of the firm of Anglno & Rovner, P.C., 4503 North Front Street, Harrisburg, PA 17110, (717) 238- 6791. 12. Defendant Flying J, Inc. Is represented by David M. Green, Esquire of the firm of Marshall. Dennehey, Warner, Coleman & Goggin, 100 Pine Street, 4th Floor, P.O. Box 803, Harrisburg, PA 17108, (717) 232-4641. WHEREFORE, Plaintiffs respectfully request that this Honorable Court order Defendant Flying J, Inc. to respond to Plaintiffs' Interrogatories and Request for Production of Documents. Plaintiffs further request that should Defendant fail to comply with the Court Order, then Defendant should be prohibited from presenting .' (f) .. I'; " " " ' " ,I ,', '" " " " , I ~ I ., r',," H..'.,..', ~li~~l'I.~",- 27. Was any warning given to Plaintiff Dennis Sanders or any other person concerning any danger in the area where the accident occurred? If so, for each warning, state: (a) a description of, or the substance of, the warning that was given; (b) the name (or. other means of ident i ficat ion) and address of each person who designed the warning; (c) the name (or other means of identification) and address of each person who implemented the warning; (d) the form in which it was given; and (e) the reason it was given. ANSWER: . . , , " " , , , , i tI ~ " Iii "ii} ~I I~~ ~ g I ~ " , , ~ W -,1 . r:- ~ , " .0 ','I' " , .. I" , ' " ,,' ','I' " I' 0 \":"J I:) ~: ': " '.;0 '... " '.'1;: ':-:1 , ". ,.'1 I , 1,-.1,111'11 ,J .'. , , , ~J r:'i ; ". I , <. , , .~ ':') I "l) :r;{I . .' " ., 1 ,.\' 1;:5 ,.>'1'1 , .;::t " ) ,::> ~. j -., r,J -<; :' r '" I,J,1 " " ..... \ " " ',' '. , , , , ,j II' I, ", , , , " , , ',' , , 'I " , , to, '.r.l 0 , ~J 'n ~~',\ ..~= ., :,.. ""\- !:q . , -'1 rj'I:'.' II I, . '>' 'I I "I I i ]1":1 , , , ,it",") ~:I~ \ '-':1 .' " " I. I , .' , F:5 ',\r'll .' .. ~~.\ ":'j ~.) ~l ~.:.. f,.... -. " " nLr:O'OI'riCE OF TI i(' i',:'d1"(i~'()rMY ~;n NOV .1, Atl 9~, 10 CU/I,:u.,',U\ ,',) I~Ulil,nY PGNN;;'rl.\;n'/!/\. ' .I Iii " " " " ." , " .., ',.1' ., 'I , , " ,.)' ,I \,' , ' " , ' I." " " " " " " , , , I," .,,' " , , , " Q ~t) ~ ~;;;; 0./ , r::.'J "'I , ")I:t'l l-q '- "11 t'.JI..', (~, "I" ..... ~ ~" ") ,,~ , >.:1 : .i~. ~:? \Cl " )h ,',-- '. , -11 J<.c; r,': :."(J .. ,..' I, ".'\ .., { r-..l ".;r1 )_. I '..1 , . .. ;7J , :'~ 01 ~~ , ", ,,, 1,1', " , \1 "