HomeMy WebLinkAbout98-01741
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4, On or nbout September 28, 2000. \)\Jfendullts Iiled nn Answer with New Mutter
mis!ng vnrlous defenses, (A COllY of the Answer nntl New Mutter nre uttnehed hereto ns Exhibit
"B"),
5, The subjectlillltook plncc on n bridge locnted on the premises of 79 Chnnnel Drive
in Carlisle, Cumberlund County, Pennsylvnniu,
6, The Defendants. Timothy and Jill Spence, purchnsed the subject property in 1992.
~ deposition tmnscript of Defendnnt, Timothy Spence, nttnched hereto as Exhibit "C", puge 4,
7, Although there wns no formalleuse <'gl'l:cment, the I'lnintiff wus expected to puy
rentlO the Defendullts ut un uppl'OxilTlute rate of $300,00 u month, :kQ dcpositiontrunscript of
Defendunt, Timothy Spence. uttuehed hercto as Exhibit "C", puges \3 und 14,
8, The Plaintiff moved into the home the same year the Defendunts purchased the
home which was in 1992, m copy of deposition transcript of Plaintiff, Annu Marie Spence,
attached hereto as Exhibit "0", page 12,
9, Accordingly, Plaintiff hnd been living on the property fOl' four (4) years prior to
the fall.
10, On the dnte of the accident, March 31, 1996, at 9:00 a,tn" the Plaintiff set out to
take her dog for a wulk and to feed the geese and ducks by the bridge, She was carrying a
tupperware container which contained bread crumbs for the geese and ducks, ~ copy of
deposition transcript of Plaintiff, Anna Marie SpenCe, atlncht~d hereto as Exhibit "D", page II.
11, There were iron handruils nlong the Side of the bridge, except In the area of the
decline on the bridge, ~ copy of deposition trnnscript of Plaintiff, Anna Marie Spence, attached
hereto as Exhibit "D", pnge 14,
12, The 11'011 hUlldl'ails ill the ureu of Ihe dedllle hud hetn down sillce the Pluilltlff
moved illlo Ihe home 011 this pl'Opel'ty III 1992, ~ copy of deposiliontnlllscript of Plaintiff, Annu
Murle Spence, uttuclwd hereto us Exhibit "n", puge 15,
13. The Plullltiff testified in her deposltlonthut she hud spoken with her son, Timothy
Spence, Oil sevel'al occusions sillce 1992 regurding her COllcel'llS over the missing handrulls, m
copy of deposition trunscl'ipt of Plaintiff, Annu Marie Spence. attached hereto as Exhibit "0",
page 15,
14, The Plaintiff also testified during her deposition that she fell the missing handrails
were dangerous und expressed this to her son. Ihe Defendant, Timothy Spence, ~ copy of
deposilion transcript of Plaintiff, Anna Marie Spence. attached hereto as Exhibit "0", pages 15
10 16,
15, The Plaintiff also lestified during her deposition that she fell the missing hahdruils
were dangerous because someone could fall and she fell this way prior 10 her fall, ~ copy of
deposition transcript of Plainllff. Anna Marie Spence, attached hereto as Exhibit "0", page 16,
16, The Plaintiff admitted in her depositionlhat she did nol need to cross this bl'idge
in order 10 exit the properly and il wus not absolutely necessary for her to be on lhe bridge thai
day, ~ copy of depositionll'anscript of Plaintiff, Anna Marie Spell(:e. attached hereto as Exhibit
"0". pages 1610 17,
17, Even though the Plaintiff testified Ihat she knew the bridge was dangerous because
of the missing handrails, she chose to encounter the bridge regardless.
18, Instead of w~\lking in the center of the hridge like the Plaintiff testined she normally
did, she simply did not do so on this partkular date, ~ copy of deposition transcript of Plaintitf,
Anna Murie Spence. uttached hereto as Exhihit "0". puge 22.
19. Ms, Spence walked onto till) bridge. traversed the im:llne and the stl'llight portion
of the bridge. and thml stopped at the portion of the bridge where the decline starts In order to fel'd
the geese ami the ducks, ~ copy of deposition transcript of Plaintiff, Anna Marie Spence,
attached hereto as Exhibit "D", page 18.
20. She threw some l'nod out to the geese and ducks and then turned. at which time she
fell off the bridge, Si1J: copy of deposition transcript of Plaintiff, Anna Marie Spence, attached
hereto as Exhibit" D", page 17,
21. In order to establish a claim for negligence. the Plaintiff must establish the
following four clements:
(I) A duty on the part of the Defendants to conform to a certain standard
of conduct with respect to the Plaintiff;
(2) A breach of that duty by the Defendunts;
(3) A causal connection between the Defendants' conduct and the injury
suffered by the Plaintiff; und
(4) Actual loss or damage suffered by the Plaintiff,
Schmoyer v. Mexico For~e. tnc" 649 A.2d 705 (Pa,Super, 1994). at 707,
22. The Plaintiff has not and cannot adduce any evidence to establish the requisite
element of duty and. therefore. cannot establish a prima facie case of negligence,
23, Even if the Defendants, Timothy and Jill Spence, have a duty to protect the
Plaintiff. the Defendants. under the facts at hand, would be absolved from this duty,
24. The Phlintiff. Anna Marie Spence, had subjective knowledge and awareness of the
risk, yet voluntarily chose to face that risk.
25. It is clear that the perceived danger of falling off the bridge due to the missing
handrails WIlS II dllnger tllllt WIlS open and obvious to the Plaintiff since 1992 when she moved into
'~i
Exhibit A
ANNA MARIE SPENCE.
1'IIIIIllilr
IN TIlE COURT OF COMMON PLEAS
CUMBERI.AND COUNTY, I'ENNSYL VANIA
v,
NO, \lH.1741l'IVII. T1:RM
TIMOTHY IInd JILL SPENCE.
Defendants
CIVIL ACTION. WR Y TRIAL DEMANDED
NOTlCIA
Le hUll dellllllldlldo II Usled ell III corle, Si Usted qlliere det'ellderse de esllIS de 111 II IldllS e~pucstlls ell los
pllgilllls siguiellles, USled lielle I'iellte (20) dias de philO al pllrlir de III t'eellll de III del1111lldll y III
Ilolitieucioll, USled .Iebe preselltllr 1I1la apariellcia cscrila 0 ell persolla 0 pOl' uhogudo )' IIrchivur ell lu
corte CIl t'ol'l1Hl escrilu SllS delellslIs 0 SllS ohjeciol'les a Ius delllulldas ell COli Ira de SlI persollul. Sea
lIViSlldo qlle si Uslcd 110 se delkllde, la COrle t01ll1l1'H Illedidas )' Pllede en!l'Hr ulla orden cOlIll'a Listed sill
previa 1I1'iso a lIolilieacion y pOl' eual'llliel' qlleja 0 alivi" 'llIe es pc-dido enla pelieioll dc' delllanda, USlcd
Pllede perder dillel'O 0 SllS pl'opiedades 0 oll'os deredlOs illlporlallles pal'H Listed, I.LEVE ESTA
DEMANDA A UN ABOGADO INMEDATAMENTE. SI NO TIENE AIlOGADO 0 51 NO THiNE EL
DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLAME POR
TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTI{A ESCRITA AIlAJO PARA
A VERIGUAR DONDE SE I'UEDE CONSEGUIR ASISIENCIA LEUAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NICHOLAS & FOREMAN, 1',("
.'~rlLL'~{V-v
Yl'onll I. HlIsk. ESQUIRE '
4409 N Ih Fl'olll Su'eel '
HlIl'rishllrg. I' A 17110
(717) 236.939.1
I [) #744-14
AlIol'lwys "'r I'llIilltil'f
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v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-1741 CIVIL TERM
ANNA MARIE SPENCE,
Plaintiff
TIMOTHY and JILL SPENCE,
Defendants
CIVIL ACTION. JURY TRIAL DEMANDED
~QMflAlliI
AND NOW, comes the Plaintiff, ANNA MARIE SPENCE, by her attorneys,
NICHOLAS & FOREMAN, P.C., and respectfully represents as follows:
1. Plaintiff, ANNA MARIE SPENCE, Is an adult Individual, who resides at 531
High Street, Bressler, Dauphin County, Pennsylvania 17113.
----..-..".. ."-....-
endant, TIMOTHY SPENCEaifd'JILCSPENCE, are adult Individuals,
husband and wife, and reside at 20 Ellendale Blvd., Dauphin, Dauphin
County, Pe!lnsylvanla 17018.
Plaln~(:N~ARl:E--SP-ENCE-'ISfh~- mother ;-~:;::;ant,' TI~T'
SPENCE.
4, The facts and circumstances which give rise to this matter occurred on or
about March 31, 1996, at the home of the Defend. 1ts' at 79 Channel Drive,
Carlisle, Cumberland County, Pennsylvania 17013,
5, At the said time and date, Plaintiff, with the permission of Defendants, took
her dog for a walk In Defendants' back yard crossing a small bridge located
on Defendants' property.
6, The said bridge has railing on both sides of the up ramp and railing on both
sides going across the bridge on the flat surface part, but lacks a railing on
either side of the down ramp heading toward the Island.
7, Plaintiff fell from the portion of the bridge lacking handralllngs a distance of 8
to 10 feet and landed on her back In a muddy, grassy area.
8, As a result of the said fall, Plaintiff hit her head, severly twisted her ankle,
sustained severe shoulder pain, Including pain In the front part of the left
section of her chest.
9, Plaintiff laid In the muddy grass, unnoticed and unable to move for
approximately one (1) hour before she attracted the attention of a nelghoor
who summoned assistance.
"
10, As a result of the said fall, Plaintiff was taken to the emergency room at the
Cilrllsle Hospital where she was admitted on March 31, 1996, and released
on Wednesday, April 3, 1996,
11, During the period of her hospitalization, Plaintiff required an operation to
treat her left ankle which was diagnosed with multiple fractures,
12. For a period in excess of a year thereafter, Plaintiff was subjected to suffer
and had and continues to have ongoing, dally intense pain In her ankle and
left shoulder.
13, On or about May 22, 1997,Plalntlff required a second surgery on her left
ankle to remove the orthopedic hardware,
14, On or about February 12, 1998, Plaintiff learned that she has a fractured left
medial scapular resulting from the fall.
15, Plaintiff believes and therefore avers that the absence of hand railings on
both sides of the down ramp was the proximate cause of her fall.
16, All damages and Injuries Inflicted upon Plaintiff ANNA MARIE SPENCE, were
directly and proximately cause by the negligence of Defendants, TIMOTHY
and JILL SPENCE, In that Defendants:
a, knew or should have known of the danger presented by the bridge
without hand rails on the down ramp;
b, knew or should have known that allowing the bridge to remain un-
repaired cOllld cause someone to fall;
c, knew or should have known that handrails should have been replaced
on both sides of the down ramp;
d, Invited, allowed, acquiesced and knew or should have known that
Plaintiff would walk that part of their property;
e, failed to warn Plaintiff that the bridge without both handrails on the
down ramp was a hazardous and dangerous situation;
f. failed to replace the handrails on both sides of the down ramp;
g, otherwise negligently or Improperly maintained their property.
17, As a direct and proximate result of the negligence of the Defendants,
Plaintiff, ANNA MARIE SPENCE, Incurs the following:
a) suffered and/or suffers and/or may continue to suffer shock and Injury to
the nerves and nervous system;
ANNA MARIE SPENCE,
Plaintiff
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
11'/
,:'1 ~,., / '
v,
NO, 9M.1741 CIVIL TERM
TIMOTHY and JILL SPENCE,
Defendunts
CIVIL ACTION. JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defelld ugaillst the cluims set forth ill the
following pages, you must take actioll within twellty (20) days uncI' this Complaint and Notice ure
served, by entering a written oppeurance persollally 01' by attorney alld filillg ill writing with the Court
your defenses 01' objections to the claims set forth against you. You are warned that if you fail to do so,
the case may proceed without you and a judgmellt mill' he entered agaillst YOII by thc Court without
fUI1hcI' lIotice for allY mOlley claimed ill the Complaillt 01' for allY other claim or relief requested by the
Plaintiff. You mill' lose money 01' PI'OP'~l'tY 01' other rights impol'tllllt to you.
YOU SHOULD TAKE THIS "APER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HA VE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OllT WHERE YOU CAN GET LEGAL HELP,
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NICHOLAS & FOnEMAN, P.C,
f'-t,
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By;! f"'\,I'Y\,~'V_
Yvon e . Husic. ESQUIRE
4409 th Front Street
HIIl'l'isburg. P A 17 I 10
(717) 236-9391
ID 1174444
Auorneys for Plllinliff
TRUe (j;()py FROM REOOAD
In Tlltlmony Whereof, I here unto SOl "'V'"
and 01. !)!li(j C WI I Carllale~ ~y I
T...y,)' ,1~'
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EKhlblt B
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YElUElC.Al'lOl'i
I, Timothy Spence, do hereby swear and affirm that the faets and matters set fOt1h in the foregoing
Answer with New Matter ofDefendants, Timothy and Jill Spence, to Plaintill's' Complaint are true and correct
.
to the best of my knowledge, information. and belief. The undersigned understands that the statements made
therein are made subject to the penalties of 18 Pa, C.S, ~4904 relating to unsworn falsification to authorities.
in,,";, 'It.("''~\UL.I,-io\'\ \le~~ul(\S 0\'\\,\ '\-0 "(\iI\Swer wi !-Jew ~(l.1--\e.... o~
be.~ef\~o.(\l,-s. -'IM~ ~',\\ Sr;>e\)(.e, -\:'D \'\OA..,,'u,~IS CON\~\u.if\'c;.'\
~'I""\ (\(;\\0("\ C\'6-ll'\\,
DATE: ~-\-OO
Timothy l:!/Ice
De\:er.M.n~ ().C\sw~rs o..re ~~W~~. _~:l QO\\OIO 0 :
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~ 'ISo CW::>C>N *'^@ -w" S S.'\.QN'~" I;: 0\-
\3. ~(:e(\6C<('I *~ \'\.., <~ic\o(\s n.I(C;>'-\- o/; ~ ,Cl<. W\J),
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Exhibit 0
','j,,,.,,-, ,"
,h""" (!l)
SPENCE, TIMOTHY
02/06/01
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T^IIU! OF CONTENTS
WITNESS
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FOR PL^INTIf'f'
DIRECT CROSS RmIIRI!CT
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TlnKllhy !lv.n. Sponco
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I STIPUL^ TION
2 Ills hereby stlpulated by and between
3 counsel for the respective parties Ihal reading, signing,
4 sClling, certification and nUng are waived; and Ihal all
oS obJectiolls except a.~ to the form of the question arc
6 reserved to the time orllle Ilia!.
7
8 TlMOTHV EVANS SPENCE, coiled". witness,
9 being sworn, testified as follows:
10
II DIRECT EXAMINATION
12
13 IlV MR.IlARRICK:
14 Q Please stale your flllllegal name.
IS A Timothy F,...lftl Spence.
16 Q Your address. Mr. Spence'!
11 A 26S0 Creekvlew Urlvt, Uau(lhln, PA 17018.
18 Q flow long have you livCl1 at Creekview Drive"
19 A JUlt Ihort or 13 Y(!ln.
20 Q Was Creek view Drive your primary residence
21 Illhe lime uf this acclden1'l
22 A \'~I It WIS.
23 Q Al the lime did you own property Illher than
24 Crcekview Drive"
25 It. Vtl, I did.
SPENCE VS
SPENCE
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Q Could you list for UJ those worentleJ7
A lhe ani)' other proptn)' we ow.td w.. 19
(:hlnnet .)rlve, (;III1"e.
Q Was lhatlhe place where your molller had
fallen?
A V...
Q ()o you ttull when you purchased Ihat
property?
A T<I Ibe btal of my recollec:llo., we purchaoed
thl. I;roblb'y I. the laler Ilan of '91. Thlt II .
bill-park,. 410.'1 remember Ipeclfkall)' whe..
Q Can you lell us why you had purehllcd thai
property?
A We were Iooklll- the mala I'faJOD we
purchattd thll property waa for my mothtr. II WI' I.
1~\'f.httfDI for two rUlOla. It WI' a. laveatme.1 proptn)'
for 10m. "'0.')' we 11141. IIUftl thrH reaM." the
propert)' became IVlnable IhrouKh nt)' molher'a cou.la,
wholt falher hid built the house, 10 my mother's untie h.d
built Ihe housej lid Ihlrdly, my nlOlh.r letdtd a p'.ce to
live .fter her mother hl.;l died aad Ih. IpealtoMe y.a,.
liking care of her. So w. boullit the proptn)' fot tholf
rellonl,
Q Did you own itonMarch 31, 19967
A V.... did.
3
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I Q When you purchased the propeny, was there
2 any SOlt of seller disclolure fomt describing the
.3 prupclny7
4 A I dOIl'1 kltow If I ultderallad your quutJoa,
S Q Nowadays when someone buys. piece or
6 propeny, I residence, I building. wh_tever,lhc teller
7 has 10 Jill OUI I disclosure fonn.
8 A Okay,
9 Q Telling you whether Ihere Illny hazards on
10 the property or Iny pmblems with the Wiler, wilh Ihe
II heating ayalem, whether there 19 polenlial for hazardous
12 wute beinS on Ihe property, lead.
13 A I bellen I remember It belo. dllClond thll
14 tllere was a rented water IGnener ualt.t the propel1)' aad
I S being dlscloled thll there w.. a wlth.r .ad dryer belaa
16 lell behind. Short of 'hl~ I doa't htlleVf Ihlllhere
17 were Iny other exceptionl. dluiolurfl,
18 Q Did Ihe disclosure foml mike any mention of
19 the ramps or Ihe bridge 801nS over to tho illlnd?
20 A No, It did not.
21 Q From your purchlse of tile propeny watlt
22 yuur undeUlanding tltal you WC~'fC .Iso purchuina the ramp
n and the bridMe Ihat wenl Ilong with the propeny?
24 A l'hllll corrtet. We purchlaed tht property
2S thl. lhe houte III 0., the ramp, the bridal! over the
GEIGER & LORIA REPORTING SERVICE. 1-800-222-4577
2
SPENCE, TIMOTHY
02/06/01
--------_._'-~-'-.~--~.~-,..----.
I (htlnnell"d we owned the Isllnd ll!lell. Eyeryone uwned
2 their '<<ClOll of the IIlllnd, 10 the ldud w.. p.r. of
J III'H).. J ICrf,lha. we ownt'd.
4 Q When you JIUI fl\cmlioncd tach
S nClshbor/relldelU would own. piece orlhe island, would
6 tho pl<<e Ihey would own be directly behind lIullr own
7 propen)',
8 A OUn WI. - actually, the Island property
9 lot allUfe wider It... Ute actual hou.e lot property,.1t
10 betac the lame proper.)'. bue Ie actuIlly 'npezoldtd out
II Coward the u<<k. So It WI' aUttlc mort I.rrow up at
12 Ihe top ollhe dtlvewlY """R Cho...1 Drlve,lhe.lt
13 widened II )'ou lot towards thetrtek. II you went over Che
14 c".nul.
15 Q Woukt the other nclghboll, re~ldc:nts 011
16 Channel Drivt, would lhey hive thelt own bridge3 or Iccess
11 10 Ih. bl,od1
18 A Vu. I believe every own.!r there hid I
19 lu'ldSeo. 11m not ,wlre ot anyone who didn't hIVe I bridge
20 lad .hey were Ill.ole ow.en of ehtlr bride".
21 Q 1>0 you hive Iny Idea whenth" bridge Ind the
21. (Imps were conslructed?
23 A No rlceull- no. I would l"URle Ihlt lhr,y
24 were buill whelt .he house WIS built.
25 Q Any Idea when the house WlIS bullt?
I " No, I would .IY the houst WI,' built In the
2 '50,. elllt would be I guess,1 would think Ih,t the house
J WI' hullt probably In the mid 1505.
4 Q You had said thaI your uncle owned the hOllse
S prior to you owning it?
6 A No, I did not 'IY th,C. My motherll uade,
7 Who had paned Iway, ha.J owatd Ihe hou.e aad then elle
B POUfttlon of Ihe houle weat to his dl"Aflter, which was my
9 "tother.. cousin Ind tbeh tvtnlu.Uy pouetsloll of Ihe
10 house went t6 Ut.
II Q Any time do you remember as I child going up
12 and visiting relallves and "laying atlhat house?
I J A No,1 don'l.
14 Q Do you h~ve any Idea who imtaUed the
1 S bridge and Ihe ramp?
16 A No,
17 Q III this properly on Channel Drive. Is it
18 localed in a particular township or borough?
19 A It Is In Clrlhle borough ICUtSl, If .of
20 la the borough, North Mlddle.owll 1'owa.hlp. ye.,
21 Q Aflt'ir purchasing lhe proper1}'. had you
22 cOlllacted the No"h Middletown Dorough 10 have lhe
23 building 11l5p<<tors cOllie out and either illSpeclthe hOU5C
24 or lhe r.unps and the bridge?
21 A No,
SPENCE VS
SPENCE
-~------_._-
o
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I Q To your knowlcd8C, hiS Ihe b,ldgc IlId the
2 rllmp cver been In'IJCcled by '''yone?
A Noe en "IY knowltd.f,1I0. aflorl of "lyse'f,1
4 lnlllpteted ehe bridle before we bOll,ht ehe boul. and I
S hllpeded ebe brldee Ifter bIlY'.1 .11. "ouse 10 ,un")"1
6 'or 110'" II could be uparaded,
'J Q Whit did your inspection consist ot'!
II A Jllle v',uII hllf'HeJo., wllktd ov.r 14
9 .rouud Ie aad ..der Ie to .lIe ..... ..... )'0. eould walk
10 uader Ie, Ilookfd ..der I.. I WII ICh.aUy o. . bOllia
II ..e th....llfnder Ihe bridle Ioold.. .. flllruc.uraUt.
12 Q Old you corne 10 I eonclualon aner those
IJ In.pectlon.?
14 A no brid,e 'tself It . v'l')' .ouad brid,e.
J 5 II ls I .feelluppor1fd hrldl' wlell a COlerek port 01
16 fi. II II I very, very .fron<< bridIe, It will be th.re
17 loa,I'l.r w. Ir. lon~, I am lunt bu. III. brld,e WI' I.
18 'e.edotlOmer.palr.
19 Q Do you 1'<<111 whll repair it needed?
20 A Well, Ute up .klt! of - .he brld.. weal up
21 aad lev.1ed oR'l.d Ihen well dowa ov.r ... chanel.o you
22 could IIntply wlIlk up, ....dk.pped, Icceulble brlda' If
23 you would,
24 On .he down .'de, wbkh would be 01 .he
H blind "de of Ihe dlll..n,', there WI' ,.lIIa.. Till. bad 2
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I alld . h.lf hl(h pirie railing. They made r.lUlg out of 1
2 I.d I hllf I.,h Iro. pipe or IIOfI pipe, lro. pipe, ..d
) file .ectloa leadIng down 10 Ibe bl.nd WIS mlultlB when we
4 hid bo.ght the prope'1y,
S It was lot attached. bUI II WIlII'I)'I_. on
6 Ih. hrldge, like It hid hi.. dl101..Ued or bad brok.. I
7 had Issumtd .hall. WII dl.ma.tltd at IOme polll. beClule
8 I dldo'llec ..y "Ift. oru Ictually brelkl,.,
9 It did noed 10 h,grlnded off ..d the weldl
10 were broke.. btc'Ulse It Wit wen welded, Ie .Heled ralll..
lion the other .Ide.
12 Q Wh,o yo. "y II WII 011111011111I.,
I) .nderoeath Ihe 1I1110g. WI. It 011...1011111I01 on bolh the
14 rlgh. 'od loll ,Ide of Ih. limp 10101 down the Iollnd1
IS ^ No, I klow .e WI' ml..,.. r.lIll. o. tllll.
16 daM "de lolaa dew. the 1.lnd ..d I 1m pretty lure .hl'
17 .h,t lefl.lde wa. oabull dol'l rememb.r to be .01.'
18 wllh YO.,
19 Q When yo. had ..Id lhe 11111.1 WIII,y/OloO
20 the hrld8'. WII II phYlleally Ilyiol .....wl1... O. d..
Z I bridgc or on the decline?
22 A y.., IIhl.k It wlllayl.. o.llIenl~ I
2l think It WII ba,k off Ih..n.le ..d '"ylo... then.t lop
24 of Ih. bridge. It WII prohlbly I I Hoot pl......Io..f
25 ]: Ind I half Inth .teel pipe. 10 )'ou Coulda'l mlall'.
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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SPENCE, TIMOTHY
02/06/01
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I Q Did you haVI: In physically step ovqr It a,~
2 you wlllketl'!
J A No, It WI" ~rr to Illot Ildt.,. I bolln.. Ul.t
.. "lcfe "''' . piece .cIU.lly 011 Che around .1 tht bile 611
5 the blind and on the bridle lbete, bcc,Ult Chert WI.. .
6 cou(lllledln,.. Ch.c Wfre .cIuaUy nol .U..ched.
7 Q l.nI8(llng to show you. photo. 00 YOII
8 rccognir.c what Is depicted in Ihls photo II .Il?
9 A \'eI, fhl.l. Che bridle th.c Wenl over 'he
10 ehenn,' Chac - the bridge that we h.d owned Ie the flnlt.
II Thl. I. lh. hrldl"
12 Q Do you have Illy idea who look thai photo'!
13 A No, I dOft",
14 Q Have you ever ICcn Ih.1 photo before?
15 A This putlcular photo, an.
16 Q In Ihe photo thai I. before you, 1,It an
17 accurate and fair represenlation of how the bridge
18 'ppeared 011 March 1I, 19961
19 A V", Ie I.,
20 Q The railing, Ihe milling railing you had
21 just described, do you lee il.nywhere in the photo?
22 A No - weill' mlllh. attually. No, I don't.J
23 was thinking It Wit own the down tide here 'lyhlG on the
24 raJllnl, but I guess It was Ilylng on tht .ro1lnd.
2S 111m thinking there was . piece -lam
I betng conruslng here, bull am thinking thtre WI' . piKe
2 Ilylng ,Ither on the ,'anted put here-
3 Q On the decline?
4 A On the decline. Or there was. pl<<e llylng
S tlghe along the rlmng under the railing here. To till:
6 hftt or my r<<oll<<tloll,1 know there Is . lectlon or that
7 talllng laying somewhere" and I Just can't remember where
8 If wall.flng.
9 Q From this pholo, does there appear 10 be any
10 railing On either lide orlhe decllne?
II A On either 'Ide or the dtcllae?
12 Q Yes, sir.
13 A No, there doesn't and this -10 now It Is
14 t.lur to me fhat there Wit no ralllag on eUher "de o(
15 the down rlmp, Ie WIS mlulng on bolh .Ides,
16 It. possible f._pllnltlon (or Chit Is Clt.t
17 bland. especially -thl. could hue been damaged IS (Ir
18 blelllsthe '71 Qoort when the wltcrume'that hlKh lad
19 all the log. and tree. (omlng dowlI (ould have very u.lly
20 took .hl. ralllnl out blCk then, betluse the wafer Kecs
21 "tally high,
22 Iltlkes 1'01 (or the water to (Ollie Ulllo
21 the hou.e, but .IIe Mand Is complelely covered wilen 'he
24 Waftr rllus.
2.S Q from your a5sessmenl orllle bridge, did you
SPENCE VS
SPENCE
10
I IlOllce any tWidcllce of rall/ng oolng broken oil' or
2 anYlhlng'!
J A (;o,lld )'011 repelC Chit.
4 Q AllY time when you Inspected lhe bridge, did
5 you lee allY evidence of railing lhat had b(en broken where
6 lite missing IIcclioll had been hroken off from the existing
1
8 A I doni, remember ever maklnlll determinACion
9 on how It ('lime 0<<1 Co be hon,...c with )'8UI I donI. know,
10 Q f1TOmlhl. photo .111.. end of the bridle
II ralls, gOing over lhe island, do you lee any eVidence,
12 from this view, orbroken or Jarred I'lIIIII, Iny evidence
13 thallhe robslng ralls Wcte broken om
14 A I.te no ramnl, 10 Chere I. evidenCe! Cbac
IS ~he raUsare noC Chere. I don'c ~ allY ~\'ldfnC'C! II CO
16 how II ha,Jpened.
17 Q The ramp going up to the bridge or Ihe ramp
18 going down to the island, were they ever inspected IS far
J 9 III their ~rade, whelher Ihelr Bnlde was acceptable?
20 A Noc Co my knowledg~ none .Ince we hid
21 possession orChe house.
22 Q Did you do any malnlenance 10 Ihe bridge
2J prior 10 your mom's fall?
24 A I did nothing to the bridge. I had no _ no,
25 there WIS nollllng .hon o( ndngthe railing thl. .
11
I thou.ht needed to be done,
2 Q Did YOIl do Iny maintenance 10 the bridge
l .Ilu your mom's fall?
4 " No.
S Q Now aller purclwing the prO(lOTly, did you
6 invite your mom 10 live there?
7 " I don'. know f(we ever hlvlled her to live
8 there, I thInk If was alway. dear (rom the onset thlC
9 the Whole purpose w.~ 10 s<<ure her a nice place to Uve
10 Ind ".0 In'ure Chlf .he WI'lolnl to tN abte to be'~ u,
II to mftt the burden otthe properly,
12 Q How did you UJl<<1 her 10 help you meellhc
13 burden u( Ihe IlrOfl('rty?
14 " Wel~ .he IlwIY' helped out, .he either plld
IS. mort.llf paymenl when Wf couldn't or .he would p.yother
16 bills, So tHlwetn her upftlln and the len.nt we had
17 down.tlln. we. . .
18 Q [)idyouha:velnysorto(fom.alwrilten
19 luse with your mom?
20 A No, WI dkh,'f hne a (ot'ma' written leue
21 with Ihf down8fatrs Cenln' ellhu.
22 Q Did you have an or.lagreement lhen with lttc
2) down8taln tenanl IS far as how much they were 'll~~(d 10
24 pay each month Ind WMltheir ffspolUlbilllies were?
2S A Vt.'t, l'hf down,..,... fenant wu 350 I month
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13
4
SPENCE, TIMOTHY
02/06/01
SPENCE VS
SPENCE
14 16
I I believe we werf dlu,'na hfr; and I believe _h.e the I your underslandillll" ,., 19 the malnl<<mance orllle bridlle
l nlure we nut threw out rrom hi)' mother wa. Co Cry to l .nd lhe ralllp, WIIlO lhe lClIlnb rCJpon..ihle or was lhe
J (Intpea..te lomewhere uOllnd 300. montlt. Hue then~ were J owner re!)JlOll~jble"
4 .tIM. when Ihf IctlllUy JUII lenC the morll_.e paynltal hi 4 A Well, Co Iltfc:lOully anawer your qllf.tfonj
I .f,te .lIe hew - we .ctuIUy bOY.ht Ie CIII . I.lu I It WI. never dlmulfd who WI. re'I)GRllli', to n. the
6 ..rHn~ntt'o .bt 'fUl wI.la tOuch with 1\..,,1(1, tin 6 brMa.,
7 cou.ll, Ie the <<Ime, Ilueu. 7 Q Who had Ihal rupooslbllil)'?
8 Q '" either your a.reenlcnt wilh your mom or 8 A It would IH! my re.pon.'lJIllty.
9 wilh the down'laJu lenant, WI5 there Any di$cunlon.s 9 Q Did IheTeI come a lime when you auempled 10
10 ..... as lhelr UH or lhe ramp a.nd the bridle? 10 flUllhe railings back IJp on Ihe dccUnc ramp?
II A No. . ftlua ~"ere w.., .ever aay affd Co II A "be rllrtbfl~ I ever 10C wa. I &lId _ I weat
Il d',cu..lt. It WII Ib.r" It wa. our property. We Ju.C Il over lad I 'a.pecWd It, ftlade IYr. III Che plp'a. Wat
IJ u.umtd Ch.~ If they cho.e 10 wIlk over lhe bridle and 10 IJ there. Ald. c.llflIand Calked Co I wekin oae day aad
14 to I.. 1.land, tb.y could. 14 liked him, live Rtf I ball.park On wlltC If COIUto come
II Q Your mom Ind the tenant were free 10 use II oul aud do In lIollr or work. He did aad IblC II It rar I'
16 both Ihe bridle Ind .. 16 Ilverlot.
1'1 A Ablohttely, )'es, tbere wne ao r.urlctlons, 17 Q Do you recall wkal thai balHwk was?
18 Q Did you have Iny .ort of In underswldin., 18 A I believe be told nit Ie would probably be
19 an ('Iralagreemenl with your mom to iO over Jl"riodicllly 19 .onwwhere In lhe ael.hborhllOd or ISO or $70 ror 111m to come
20 acrou lhe bridge Illd down Ihe ramp 10 auess the water lO out Ind .pend lallour. Tb.n Chere WI. I Irut:k chlrl', I
II level olllhe island or 10 assess die heiilit of the grl!s. 21 .ervlce tbarve or like 3S buck., '0 It wII,oln, to be
II whether it needed mowing? 2l rIch. II I hundred bucks bAU.park,
lJ A Sure. Sbe WI. In Couch with the IUY who caine lJ Q To put both rail.. back up?
l4 lid rut Che lrau for UI. We did It a IIltle hil, bUI 24 A Tha. WIS tenlaUVfj bu~ he hid never ltea
II IMnlln Dauphin and her being In Carll.tle, I~ quick a! l5 lhe Job, 10 he Wit Ilvlnl mt a baU.park n,ure baled 00
---- ----.-
15 17
I Iran arow., .he Wit In charge or hlrlnl{ someone to (omt I Ilnte.
l and cut the grass, 10 she would go over and determine 2 Q Do you recall the lime period when you would
3 whenever It needed It, J have conlacted him?
4 The Island got really, really wet. The 4 A I have lIot " clue.
I Island would let 10 weC you would sink I (oot If you went S Q Do you recall whelher it was pre,(al! or
6 over Chere on Ihe right day, So Ihe hid to tons'antly be 6 aflerfall?
7 monitoring It I would .uppose '0 lelllhe guy when you 7 A The rau being her rail.
8 (ould come and eut Ihe grau, beuuse you never take a 8 Q Sorry.
9 riding mower or I push mown un. wel day. 9 A Yes, Ie wu before the rail. It w.. when
10 Plus 'he creek Wit over on Che other .Ide 10 ,lie nUl Ultrtlltd concer. about It ehaC I hid takea the
II there. .tls. belutlflll c:nek., beauUrul property that II Inllllll.teps to appflse her.
Il ehe bridge Is ror. Il Q Do you recall. conversation Ihen wi!h your
13 Q When did you Sclllhc propeny? 13 mom lbout her COlletm of it flOI havina Iny ralls?
14 A When? 14 A Yes, there were a touple.
II Q Yes, 15 Q What do you recall from those conversallons?
16 A Somellme In '97. 16 A JUI~ that, tllll- we were In I.rttmtal .t
I" Q Have Y(IU been a landlord .flY olher lime 17 IOme point, we "'ere lever I. dlJlllreemel' thlt the rllUaa
18 beside the Channel Drive property? 18 atedtd nud. .. WIS Jus. my fI.-ocrasel.ltlo. aid
19 A No, 19 enntull-lt Jllltlever got done. I Juse lever did It,
20 Q Has It ever been explained 10 you how a 20 Q Did the downslairs lenant Ind you eVer have
II landlord is supposed 10 maintain Ihe property or to keep II allY conversalions aboutlhe bridge or Ihe rlmp?
2l II safe? II A No, We dldn'llllk - ao, nonc.t aU..
2J A No. 23 dOI't even Ihlnk .he ever weaC over. She Wlla Hlrde.er
l4 Q Wllh your agrcemenll\: and conversalions with l4 and slle took (Ire or authe nowcn around her property.
lj ihe tenant downslairs and also wilh your mom, what was 21 I donI, think .he eVel' made It IOOre Chi. S rtet away from
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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SPENCE, TIMOTHY
02/06/01
I the h()u,~.
2 lIut I do,,'. btlh~vt PJ1IrKlt' rYer nail)' went
l ovtr 10 tht hllnd,. dOIl't know If .he fvrr wen I uvtf the
4 III.nd,
5 My plltlonal knowledgfl 'UJ,.he never
6 .ddr....d lh. ..llIoi'
7 Q In your Oplllloll what WlI the purpose of thc
8 ,,11I08 on lhe up-ramp .od 00 Ihe brid8e luelfl
9 A 1'he purpo.e.. the rllllol would be It .
10 I<<Alde".. . boarder, IIUtt... . prevention (00110 you
11 wouldn't r.u over Iht .Ide of Che bridae,
12 Q From the brid8~ down to the water, about how
13 forof.drlvelllha11
14 A Prob.b1r 12.1"..t, IIJu.ldep.od.-
15 well, from the UHI or platuu ortht bridle?
16 Q Yes, .ir.
17 A I wOllld "r It hlllol5l"1 p"'ob.bly,
18 Q From the top oflhe decline ran1JldiJwn to the
19 bank, .boul how far do you think thai would be?
20 A Probably IS or 18 foot 'Illn I would think I'
21 It'lt, the rlRlp down, Ilfobably 15 or 18 (etl. You mean
22 the ""11 down7
23 Q Yes, .tralghlllne do'NTl from Ihe junclion of
24 the bridgl" and Ihe decline tamp down 10 the bank Itself!
25 A Thai would he haslully (he lime dlsClnct
I theD from Ihe pllluu of the ump Ir you Ire Illkln. whm
2 the ptak of the ra",p meets,
J II I understand your questloQ correclly, YOll
4 Ire .skllll me the point wilen she fell1
S Q Ritlhl.
6 A I would IIY It It the SAme thlna, problbl)'
1 11 Of 15 feet 10 the Wiler and ihen sbe Illlded Oil the bank
8 and OD lame cinder blocks, 10 problbly 1: fftl off thlt, 10
9 probably 10 or tJ leel when Ihe lell.
lO Q Jwt Co tlllify, did you witness her 'all.t
II .111
12 A No,l did not,
13 Q Have you ever talked 10 anyone who has
14 witnessed her [all1
15 A No, there wtren't .. Co the belt 01 my
16 knowled,e, tbere were no witnesses to the lall.
11 Q You IlIdjust mentioned, your mom mentioned
18 also, Ihere were lome cinder block... onlhe bank?
19 A Vu,
20 Q Do you know who had PUI those lhere?
21 A We had ",oved lome .Iuff around. The prevloul
22 ownen hid put them (htre I would allume. l'hey wen Iht!re
23 btcause Ihe channelaad Ihe !sland when the waler Inl
24 bl.n. Ihere WIS a ~I of currelltthere.
25 l'he ch~nnelll.elllj yony deep, 10 feet I.
SPENCE VS
SPENCE
16
20
1 111.c~lI. btcauu Ills uled for Ilflltf bOil' lor Iccell '0
2 10 around Inlo Ille ueek.
J The IJUl'lHue 01 the cinder block....d IUlhe
4 rock. thll \"Iert thl'own Ilong (lItre were to hold Ult bankj
S (he bank &u!li~ wI,hlaa away.
Ct The yurly erodon without Ihal would have
7 made the .pu wider lid wider, 10 th.~ Ihere wel'f bUleed
K up <l.de,' hlo<k. r1ahlI. lh.t v"I.Ur ODd lher were
9 t:tere to hold the balk aid thue were a kit 01 rock. aad
10 .tu<< thlt were put there by m.. fOf th.t purpo.e.
II Q A. ft rellll1lna wall?
12 A V", to hold lilt .fouad there. keelllt from
I) walhlal down tile channel.
14 Q nle cinder block. and rocks over there, you
I S had moved .omc of thoUl into place?
16 A Vet, well, the)' Were - Yf't they would
17 coaUaaCly let -Ihe waler would CORtCIIlIy move them
18 arollDd a IIUle bit wheu We lot high water.
19 We hue had hlah 'Water then quite a lew
20 thnea Irom the Ume Ihll we owned Ie. So, yea, there WI'
21 " IIltle hie of rearrualng Ihal needed 10 be done (rom
22 lime 10 Ume.
23 Q SlmU~r queslion to Ihe one that WillllOsed
24 10 your mom, dQ you know of any olhel' falls Irom Ihe
25 bridge or the ramp besides Ihe aile your nlOm had 011 March
19
21
I 31,19961
2 A No. I do nol.
J Q AI Ihe lime when you would access Ihe bridge
4 and ramp, was it ever a concern 10 you Ihlllhe lack of
5 handrails could lead 10 someone falling offlhe bridge on
6 10 the clnder blocks and the 810nes?
1 A It neytl' really otcuned to me In tltat
8 light. Obviously. If I hid known an)'Ollf wII.olnl to rlu
9 off lb. brldae,1I1 b.d known 11.1 would Ilk. to think
10 tha. I would hIVe probably filed II.
I I Out, no, 01" COUflCt that Is the end result,
12 bull didn't r..llr Ihlnk or 1110 th.t IIlhl.1 the lime
I J II wu presented to me.
14 Q On your property itself. is therejusl one
15 way to sel from the house side to the Island and ills via
16 this bridge?
17 A That Is correct, or you un I. Ibrouah tbe
18 water,
19 Q Wade across?
20 A Vel.
21 Q The ollly real driveway is to 80ICr\lss?
22 A VC", the only drlvew.y I. 10 10 Icro.. the
23 brlda..
24 Q From the crest ollhe bridge, Ihe lop of the
25 bridge. down 10 the island. Is Ihere any way olher way to
l
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
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SPENCE, TIMOTHY
02/06/01
I lei from the 101' of the bridge down 10 the Island, Iny
2 olher Ilrllctlcal way besides uslnglhe decline nOli.'!
3 A Jump,
4 Q There ill 110t . ladder or II pole or Iny olhel'
S WIY of genlng down"
6 A No,
7 Q When you had owned the propclrty, the purpose
8 otltle ramp alld ,Iso the bridge WII for pedestrians or
9 people 10 use 10 go from the yard aide over to the Island"
10 A Sure. The 1.lud wu . r<<renlloa .rel.
II Tht!re wa. . picnic f.blt oyer there1 Chere Wit. Ore
12 pit. People would wlter..klln Cheerff", you could 10
13 out ..d wI.chllO out .n~ .wlnl In the crttk, I pith to the
14 r<<ruUoa.t.lde or the property, thaI I. how I .'ways
I ~ looked IClC.
16 Q So whether Ihey were middle-aged people or
17 older people or children, you had Inticipated they would
18 be u!llnglhe bridge and the nmp to gel from the yard side
19 10 Ih,..
20 A Antlclp.led thlllhe)' would Ind they did,
21 ytl.
22 Q Regarding the decline ramp, Was it your
23 te!lhnony that you could have put the ralls back up?
24 AVes,
25 Q II is my Ui1derSlanding Ihat you had taken
I the slep to do Ihal by cOlltactlng a welder?
2 A Th.t It (orrec't yes. I did th., .horlly
3 .rter we had hought the property, after I had walked over
4 Ihe bridge. rew times, Chen Iller II was broughllo my
5 .UeotloR.
6 Q Can you lell us why you didn't follow up
1 with lhe welder?
8 A L.ck ollollow throught I Just never did
9 It. It Just aever Rot done. One of Chost' Chlngsthal WI'
10 put on the Usl Ih.1 wa, never dontt 101 done.
II Q At InY poinl did yau Iry 10 pul up maybt
12 lemporary ropt., ralUngs on the decline ramp?
IJ A NOI I did nol.
14 Q Al any point did you put any sort of orange
IS tape or warning tape across lhe bridge 5() lhllllhe folks
16 could nol use the bridgei'
17 A NO,ldld.N.
18 Q Allny lime would yo", have laken any warning
19 ta~ or orange tape and maybe used lhal IS .temlKmlrY
20 railing on the decline nunp?
21 A NOt I did nol.
22 Q At any lime did you use any waming lal)C or
23 or."gcl"pc to cordoll oUthe islalld side oflhe bridge
14 and ramp so Ihal people could sliIl go up the Indine and
2S use Ihe hridge bUllhen couldn't go down on Ihe Island?
SPENCE VS
SPENCE
22
24
I ^ No, I did 1101,
2 Q Al any time did you take allY stones or
3 cinder '.locks and lry 10 rnah 8 curvo along the decllllc
4 ramp?
~ A No, I did .01,
(, Q Al any time did you try 10 creatc any sort
7 of I barrier to either cordon ofT the nmfl or to let .!Ii .
8 barrier between the decline ranlplnd Ihe bank helow?
9 A No, I did 1101.
10 Q Would II hlv, beell posslbl, for YOllto dll
II IlIlho,. UllllgS?
12 A R,p'"1 yoor qUesUOII,
13 Q Would II hav, b,," posslbl, for you to
14 either pUI up die old l'lIilJlIg that was down on the
15 groulld? I will do 11111 .I,p', Would It hive been
16 I'.ssibl. for you 10 pUI Ul' Ih. old roil IllS?
17 ^ Ves,
18 Q Would II hav, b,," posslbl. for YOllto pUI
19 sOllie sort orbanier on the bridge so d181llCople would
20 not use the bridge?
21 A Yest It would have.
n Q Would II hav, be.. wllhl. your Iblllly 10
23 put cinder blocks or stones on the side of'lhe decline
24 ramp to IIcl as a fool stop or as R curb so people wouldn'l
25 SI,p off Ih, bridge?
23
25
I A fe", thll would have been poulhle.
2 Q Would it have been also within your abilily
3 10 put up wamlllg tape either as a barTier or as temporary
4 handrails?
S A Yes.
6 Q 11Ie same thing with rope either as a barrier
7 or a lemporary h.andrall?
8 A Yest Ch., would be possible.
9 Q In your opinion, do you believe your mom was
10 10 blame at all for her fall?
II A Could you expl.ln blame't
12 Q Sure. If Ihere would have been railing
13 lIwe, do you believe your mom would have: fallen off lhe
14 hridge?
15 MS.CORYt3R: Duane,lal11goingloputan
16 objection on lhr. record but lei him answer the question.
17 A Repeal thll.
18 nv MR. nARRICKI
19 Q If there would have been railing from the
20 bridge down lhe decline nunp, do y()u believe your mother
21 would have sleppel! off lhe bridge?
22 A I don'l know If I .m quallOed In answer
2) lh.t. Do I believe WIS your qutJIlou1
24 Q Just in your opinion.
25 ^ I be"~ve In my opinion tlllllllhe rallhlR
GEIGER & LORIA REPORTING SERVICE. 1-800-222-4577
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SPENCE, TIMOTHY
02/06/01
I WI. (here l(l'foh.hly wlIuld have Ilfeyentcd tile' accident.
2 MR. UAfUtK'K: Thai is all the quclIlioM I
J have, Thank you.
4 MS. COHYI!H: 1 have II couple follow-up
5 questions,
6
7 CROSS-EXAMINATION
8
9 DY MS. CORYER:
10 Q There has been testimony that .11 of the
11 homeD had Ihese brldg6S on their Ilropcrty lhalled over 10
12 the island. each of Ihe homeowners 011 channel had theh
13 own bridge 10 '0 over1
14 A To .he besl olmy kllowled&~ yes.
IS Q Did the residences in this area use each
16 other's bridge cuslonuully7
17 A CustomarllYt no,
18 Q Old )lOll ever sce like a nelghborofyollfs
19 using your bridge to cross over 10 the island?
20 A Nu,llo, I didn't.
21 Q There was testimony about the bed 81\(1
22 breakfa.'lt across Ihe street. Did people thaI slayed at
23 the bed and breakfast ever come over to your property 10
24 cross Ihe bridge 10 get 10 the Island?
25 A I wa' unaware that there wa, even a bt'd and
I breakfast acrou the creek - acrou the street"o I alll
1 nol able to an.wer that qunlloll.
3 Q So is it your leslimony thallypically each
4 homeowner would use Iheir own bridge 10 access Ihe island?
5 A 'fha'ls my opinion, ye.,
6 Q Did YOll have all occasion 10 look at olhe(
7 bridges In Ihe area?
8 A I hIVe teen .hem, 1 didn't - yu.1 have
9 'ffn othu bridles In .he area,. have lIten under III.m
10 10101 out 'he channel. you 10 under everyone', brldlf wbu
II YOlllo out.
12 Q Do .1Ilhe bridges have handrail'!?
IJ A I don'e know.
14 Q Do you know iflhe majorit)' oflhem have
15 handmils?
16 A I know our nelahbnr" bridle bad handulli
17 and I can'. retallloyone "t. down Ilonl the way If 'hey
IS did or dldn'C. I am thlnklnA Illal I lac or the bridles
19 did hl'lt "ndnUI Juu In Ihl! way 'hey were desl.ned,
20 SolUt or .he bridles thlt were down ihere,
21 handraUs were adually .tructurally part or the brldge.
22 Urldgtt were buill dlnerenlly.
23 So I un think or a couple Ihat had
24 handrails ror lure. I un't Ihlnk of any thai I know
2S s(M'clflully thai dIdn't.
SPENCE VS
SPENCE
26
28
I MS. ('ORYER, Th'1 i, .111 h.ve.
2 REIJIREn EXAMINATION
]
4 BY MR.IIARRICK:
5 Q Just l& follow up 011 rcdirecl.
6 Did you know prior to the dl1lc of your mOlu's
1 r.llth",h. liked to walk her do~ and r..d Iho wawrlowl
R alld things?
9 A Yes,
10 Q And Ih.1 doring Ii,olim. whllo ,ho wu
II feeding Ihe waterfowl and walking her dog and things that
12 her allention would be directed Coward die dog and to dlO
13 waterfowl?
14 A Could you ask tha,agaln1
15 MS. CORYER: Asain, Ism golns to obj"'t to
16 the queslion, bUI he can answer it.
17 BY MR. DARRICK:
18 Q When your mom was oul walking her dog or
19 fcedin~ the waterfowl; would her attenlioll be directed
20 towards ill Olis case fceding the waterfowl?
21 A I don't know where her attenUon would he
22 dire. led ai,
23 Q Were you ever there when she was walking her
24 dog or fe~lh\g the geese and the ducks?
25 A Yes.
27
29
I Q Did she seem to br, looking allhe waterfowl
2 when ,he WIU feeding them or did she lend 10 be looking
3 hack over her left .houlder?
4 A Sbe loved Ihe du'cks. She talked to them and
S red them and .alked 10 theln and fed them. So I JuelS Ihll
6 Ihe wu looklng.t .h.. ducks. And .be loved her dOI,'O
., when she <<alked ell her dOl. 1 Inume that .he ""asluoklnl
g al hel' dOl.
9 Q The waterfowl and nalLlfe in leneral kind of
10 added 10 the whole recrealionalalmosphcrc at the -
11 A II wa. pari o! the ambiance of tbe island,
12 part of ""ha. we loved.o much about It,
I) Q this Is beyond her queslion.. but do you
14 remember )'o"r mom having a cast Of having Ace W11IpS around
IS her leg al all1
16 A 1111 my recoll<<(ICH', tba..htcalMe home
17 with a CI.. and the)' IGOk II rllhl 0". beuult II ""I'
18 hurtlnl her. Tilalls ""hi. I remember,
19 Out I could M ""roal, my wife dtsa.rH' with
20 me. She rementben wnpplnl my mOlher'a ankle alnd
21 unwrapplnlltl but we caa'e rtmtmber Irehll WI.
22 Immedlltely Ifter the accldue.
2] When I look .1 <<hat plcturt,1I Ju.t rtmlndi
24 me -I Jult am reminded or a ull. I kind of remember
2S her havlnglhl, ust, bul Ihe .bould know mort .haa I do.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
8
Exhibit D
'.
SPENCE, ANN MARIE
02/06/01
SPENCE VS
SPENCE
-
2 4
I 'fAilLE 01' CONTENTS I reporler Is typing down everYlhlng Ihal we say, 10 it Js
2 2 \lery importanllhat you respond 10 my questions verbally,
WITNESS 3 ralher than shaking Of nodtting your head?
3 4 A y",
FOR DEFENDANTS DIRECT CROSS I Q It i.. also hnporlanl to try 10 avoid words
4
Anna Marl. Sp.nc. :1 49 6 like uh.huh and uh.uh and lry 10 use words like yes Ind no
5 7 instead.
6 8 ,\ Okay,
7 9 Q Arc you under the inOuence of Any type of
8 10 alcohoC drugs or mtdicatlon loday thai might affect your
9 II abilil)' 10 understand our questions?
10 12 A N.,
II 13 Q If YOu do not understand a question thai J
12
13 14 ask you or you don't hear me, simply ask me to repeal II
14 II or rephrase It Ind I will be- happy 10 do so.
IS 16 A Okay.
16 17 Q Also, if you (eel like you need 10 speak
17 18 with your attorney privately or take I break at llllY lime,
18 19 you certaInly have the right to do so, Just let us know
19 20 and we can dCJ th,t.
20 21 A All righI,
21 22 Q Would you please Uale your full name for
22
23 23 the record again, please.
24 24 A Anna Marl. Spence.
25 25 Q Your age?
3 5
1 STIPULATION I A 1l.
2 Jt is hereby stipulated by rmd belween 2 Q Your dale llf blnh?
3 counsel for lhe re9pcclivc partic! 1Ilatscaling, 3 A AUAUU 22,1928.
4 certification and filing are waived; and lhat all 4 Q Your sor.Jallwctlrhy number?
5 objeclions CKcept as to (he fonn of the question are 5 A 202.20'4944,
6 reserved 10 the lime of the trial. 6 Q Your current address?
7 7 A 5.0 Ronnymelde Avenue, Harrlsburg,I?I. I,
8 ANNA MARlB SPENCE!, (~alled as a wilnc:Js, 8 Q How long have you lived Ihere?
9 being sworn, testified as follows: 9 A TWQ years.
10 10 Q Who do you reside Ihere wlih?
II DIRECT EXAMINATION II A My daughter and my uDeh" 934yur--old uade.
12 12 Q Vour uncle's name?
13 BY MS. CORVER: 13 A Lnera, .....A4V4E4R.N, S~pho..e., S"A..P..H4()"R..E.
14 Q Mrs. Spence, we have already been 14 Q Your daughter's llame?
15 introduced, my name is Amy Coryer, and I represent TlnlOthy 15 A Valule Spence,
16 and Jill Spenct'. We lUll here loday to talk about the fall 16 Q Prior to living at $10 Bonnymeade Avenue,
17 that look place on March 31 of 1996. 17 whl)rc did you rellidt1
18 Fint of all, I want 10 go over a few 18 A 531 High Slreell. SI.."...
19 instructions wllh you. Have you ever been deposed before, 19 Q How long did you live there?
20 have you ever been to a deposition before? 20 A Almost 1 yearl, Bot quite.
21 A I Wit to one blck la '86. 21 Q Who did you live there with?
21 Q Y Oll were deposed or YOIl all~nded a 22 A My daughler Ind her husblDd.
23 deposition? l3 Q bthls Valllrie1
24 A No, I WI" In In lulonHJblle leddenlln '86, 24 A Yel, Valerie,
25 Q Whal b happening today is the courl 25 Q Her husband's name?
GEIGER & LORIA REPORTING SERVICE .1-800.222-4577
2
SPENCE. ANN MARIE
02/06/01
[A II" hUlhand'. na..e I. George J.adlk., - 6
2 L-A.D.I.K.A.
J Q 11rlor to living at thai address, whut
4 .ddre.. did you live al'l
5 A 79 Chan.el Drive In C..lllle.
6 Q lIow long did you live th...?
7 A 4 and a half yea", JU'I about 5.
g Q Who did you ,e,ide the,e with?
9 A My.elf.
10 Q So were you living .1 79 Ch.nnel Drive when
II Ihl. Incident occu"ed?
12 AYe..
13 Q Whal i. your .."It.1 .1.lu,1
14 A I h.ve been divorced .lne.1968.
! 5 Q I know Timothy is your lOll, correct?
16 AYe..
17 Q And Valerie I, you, d.ughter?
18 AYe..
19 Q Do you have .ny olher children?
20 AYe..
21 Q lIow many?
22 A Two, Pamela and Tbom...
23 Q All of Iho;e ehildren are grown?
24 A Tbey ..e all grown, ye..
25 Q Did you co..plele high .ehool?
1 A Yes.
2 Q Did you have any continuing educlltiolll\flllr
3 high ,chool?
4 A Only - nol formal, Ju" on-I he-Job
5 .ducatlon frn.. different Jeb,.
6 Q What high !lehonl did YOll graduate from?
7 A Carll.I..
8 Q In what year?
9 A '46.
10 Q Are yuu cu"enlly employed?
II A Yes.
12 Q Who I, youremployer?
13 A Rile Aid Corporation.
14 Q How long have you worked for Rite Aid?
15 A 4 and a half y..".
16 Q Po you remember the month and the year you
17 stalled wllh Rite Aid?
18 A Yes, Sepcomb" 13,1996.
19 Q What do you do fo\' Rite Aid?
20 A I am In the Customer Service Oepartnll.!IIt Ind
21 I proc... all tho In,o"lng ..all.
22 Q What Rite Aid do you work at?
23 A 1 dDn't work at . store, I work over al an
24 offic. on SI..p,on Forry Road In M"hanlc,burg.
25 Q What is your typical ,ch.dnlc al Rile Aid?
SPENCE VS
SPENCE
8
I A 9100105130.
2 Q I, thai Monday through Friday"
3 A ,"t!!,
4 Q lias thatllways been your schedule tor die
5 past 4 a bllf year!!?
6 A No. I .Iarl.d out working night .hln, 1100
7 unlll 10,00 ba.lcallYI but ba.lcally,lhall. th.llmOl
8 Iha, I hlv, work.d there.
9 Q I'rior to working for Rile Aid, who wa, your
10 employer hefore dlat?
II A Well, J WI! In rul estate.
12 Q Whallgency were you with.,
IJ A Jock Gaugh.n.
14 Q flow I, thai .pelled?
15 A G.A.U-G.\I.E.N.
16 Q Were you a real estale agenf?
17 A Yes, I have been. rul estlte agent .lnce
18 1983.
19 Q flow long did you work for lack Oaugh.n?
20 A 1 y..... maybe out on lh. L1nglOllown Road.
21 Q Do you rememher what 2 years you worked for
22 Mr. G.ughon?
23 A Well, II would be '9.5 and '96.
24 Q Were yml working for Mr. Oaughen at die time
25 Ihis f,lIlook place in March of 1996?
7
9
No.
So you left Mr. Oimghcn before March of
1 A
1 Q
J 1996'1
4 A Yes,ln November 01 '95 - yel. tho!e dltu
Sire wroflg. Sorry.
6 Q That Is okay. So Novell1berof 1995 lswh<:n
7 you last worked for Mr. Gallihen?
8 A RighI.
9 Q Whal was your reason for leavins thai job?
10 A I dld"1 "ally IIkeltl bull wlnted 10
11 work more Urne It the rutlurlnt It the maUlt Tim'.
12 restaurant. Bear'. Choice wa. tbe name,
13 Q When did you begin working for Bear's
14 Choice?
I S A Well, when they opened. which I am lot lure
16 what yur U was. 110m not .ure, whelever they opened the
17 re.tlluranl,. WI' there.
18 Q You wete working for Dear'. Choice Illhc
19 Ume this fall look place In March or 19961
20 A Yes.
21 Q ^pprmdmalely how many hour. were you
22 working for Bear'. Choice II that time?
23 A Oh. maybe 40 hour. I wuk.
24 Q What were yOll doing at Belr's Choice?
2S A. Vftrlous dutleJ, waltllll on customefl,
GEIGER & LORIA REPORTING SERVICE .1-800.222-4577
3
SPENCE, ANN MARIE
02/06/01
I p"'larlng food, dul"~ dl,hes, Ju.t IhlnR' that you do. II
2 will" the rood court
3 Q Al whal mall?
4 A Colonial Park.
S Q I, near'. Choice stlllop.o?
6 A No.
7 Q When did nea~, Choice clo,e?
8 A 'au", It elosed In '96, Inlherall.
9 Q Old you continue 10 wOlk for Dear's Choice
10 up untillhef.llof 1996?
II A Yes.
12 Q Did you, hOUri Change at all aller Ih. fall?
13 A , dldn'l work 01 all anor Ih. fall.
14 Q Why didn'l you work aller Ihe I.II?
15 A . couldn't,_ couldn't be on my feet.
16 Q Did a doctortell you Ihat you were nol able
17 10 return to work?
18 A W.II,' don't kno" Iflh. dO'lor actually
19 told mf, but i knew that I couldn't do 11.1 WIJ on a
20 walker for levual months.
21 Q Let me mke you back 10 the date of the
22 actual fall, which my records indicate was March 31 of
23 1996,
24 A Yes.
25 Q I know it was awhlle ago. Like you said
I before the deposition, it is going 011 S years?
2 A Yes.
3 Q Do you recall what the weather conditions
4 were like?
~ A It WIS Pllm Sunday, doudy, Just I dreary,
6 you know, morning.
'1 Q Was there any rain or snow?
8 A II "a.n'l raining allhellm.. It had
9 raln.d,
10 Q Earlier 11101 day or the d.y before?
II A .1 don'l know If II rained Ihe day before,
12 bUI.. nollhat day II badn'l rained.
13 Q Was there any snow on the ground?
14 A No.
1 S Q Wa, Ihe ground wet?
16 A Yes.
17 Q Do you remember approximately whallimc of
18 day this happened?
19 A In the mornlna,lbout 9100 1m.
20 Q I undersland this look place at your son,
21 TimothY'li, residence?
22 A Not It hit telldenet, hut he owned the home
23 but they IIv.d .Isewhere.
24 Q Whal address wa, that where Ihe fall look
2S place?
SPENCE VS
SPENCE
10
12
1 A 79 Channel Drive.
2 Q Mr, Spence owned Ihal home?
3 A Yes.
4 Q OUI did not live lhere?
5 A No.
6 Q I believe you testified earller Ihal you
7 lived there alone?
8 A Yeo.
9 Q 00 you remember when you moved into thai
10 property?
II A 19911 think.
12 Q Can you tell me what you were doing Illhe
I) lime the fall look place?
14 A Well,. WI' tlklng my doll' (or I walk aad.
IS JUlt decided, b<<lule . remember th.. 11 had ralned,l
16 JltH wlnttd to II) Ind look It the - JUltgo over I"d look
17 at the blaad condition.
18 Q What..
19 A I dldo't 10 over to the bllDd,l only went
20 up to the top o( the bridle.
21 Q Can you dll!JCfibe Ihis island 10 me. is Ihis
22 on Ihe property"
23 A There I. Chlnnel Drive lad then .11 the
24 homes Ilonll Chlnael Drive hIVe I c:haanel, thltl. wily It
25 I, ulled Challnel Drive, lad they III hIVe bridle. and the
11
13
I bridge goe.-It aoe. up aad. you know, OVU, 10 the
2 boal. can ao through, that I" tht purpose.
3 Then the bOlt' go down to the end o( the
4 chllnne' and 10 01.11 Into the Conodoqulnel Creek. So there
5 Is a creek, there Is the Isllnd and there Is the channel
6 aad then Chere Is the property.
7 Q Do the owners of the homes along Channel
8 Drive also own t~e bridge?
9 A Yes. they III own their bridles.
10 Q Were you Intending to go acrllSS the brid~e
II to take your dog for a walk'!
12 A No,. dl<4n'llntead to 10 ac:rolS the bridge.
13 I dldo!t go the whole way IcrOIl the bridge, . only weill
14 up Ihe pari of It.
15 Q When you t8ke your dog for I wllk, did you
16 normally Jusltake him around In your yud or do you walk
17 him around the neighborhood?
18 A 80th, my yard lad the .ellhbnrhood.
19 Q How large is the propcny II 79 Channel
. 20 Drive, do you know how many Icres?
21 A . Chink It WI' about 3.
22 Q 3 acr..?
23 A Vu.
24 Q Was anyone with you wh"n this r.1l happened?
25 A No.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
4
SPENCE, ANN MARIE
02/06/01
1 Q Did anyone see Ihe fall hapIlCII1
2 A No,
J Q The bridge thai Yl'U are referring to on the
4 pro~rty 1179 Channel Drivc, can you dnscrlbe Ihal bridge
S to Ole?
6 A Okay. It hi.. rlmp thll loe. up, II It.
7 c~mfat brldie. l'he ramp loel up ludull.nd then 80tl
8 .trelahtlwlU the chlnneland the.. .tarts to 10 _
9 laother ramp to ao do"'-n. There Is IroD nib 1I0lnll up and
10 lerou,
II
12
13
14
IS
16
17
Ig
19
20
21
22
23
24
2S
Q How wide Is Ih. bridge?
A Oh, I would .IY It I. about 5, 6 feel wide.
Q How lona: Is the hridge?
A 25, 30 f"l.
Q You said il was made out of cement?
A Yes.
Q You de..crlbed iron rells going up and across
the bridge?
A Uh-huh.
Q Old they C'xlend the en!lre 'yay of fhe
bridge?
A NOll' you go on the dc.wn rami), they were
oU on the down 'Imp.
Q So Ihey were on the Incline alld on the
Jlraighl ponion hut not on fhe decline?
I ^ Yes.
2 Q Were they missing or were they never put up.
3 do you know?
4 ^ I think the previous owners had taken them
S off Ind th.y were Ju.c laying Ihoro on Ih. ra..p. Thore
6 were two Iron railings.
7 Q They were just laying there since 1992 when
g yoo moved?
9 A Yes.
10 Q Did you ever ask anybody to put the iron
II I1Il1s back up?
12 A (did.
IJ Q Who did you ask?
14 A lulled Tlmolhy.
15 Q 00 you remember whclI that was, whclI you
16 nrst..k,d Tlmolhy to PUI th, 11111, up?
17 A W.II, I gU"'UI. rlghl .ftor I mov.d In
18 when we had several conversatlolls aboullt.
19 Q So .omelimeln 1992?
20 A Yes.
21 Q Old the iron rails remain laying there thc
22 entire lime you lived 011 that property?
23 A Yes.
"4 Q In your responses to a request for
25 admissions, you hwd indicated thai you made statel1lellL~ to
SPENCE VS
SPENCE
14
16
I your son, Timothy. regarding IIle missing handrallt because
2 you believed the condition was dangerous. Do you recall
3 making Ihat response?
4 A Ye~,I..ld chal.
S Q Why did you believe tll" mls;lng handr.Us
6 were dangerous?
7 A Well,) helleved thai the)' were dau.trout
8 btelll.te mlybe Igmeone might raU off or the bridge.
9 Q Old you belleve this before you aClually
10 rell?
II A Yes.
12 Q What is beyond the bri~gc. b that the
13 Islan~ that you have been referring to?
14 A Yes, the Illand,
IS Q J.g lhtlro anything on the bland?
16 A MD. The Islaads were Uled moaU)' more fur
17 rtereatlon, becaule It wal . recreaUonalarea. Tbe oaly
18 thlna: on the Isllnd Will tlble with benehellhat wal over
19 there, In old tablel otber Ihao th..t, just a lot of Ireet.
20 Q Do you need 10 crO!l!l this bridge to exll the
21 property?
22 A No.
23 Q You laid thallhe island Ihat this brk~ge
24 leads 10 is JusI for recrealloll. Wu It absolutely
2 S necessary that you cross lhat brldgtllhut day?
15
17
I A No.
2 Q Do you recall what you were welring when
3 this happened?
4 A Yes, I recall whall WI' welrlnR. ) WIS
5 wearing I IIKht blue wool jaekel, which has ben thrown
6 Iway, Ind just casuII dre85 plnls,lneakers.
7 Q What kind of sneakers were you wellrint?
8 A Euy Splrll'..
9 Q With a rubber sole?
10 A Y...
II Q You said you were wearing IliahtJaoket?
12 AVes, II WI.. I light wool Jlckel.
13 Q Were you carrying InylhlO8 wilh you?
14 A No, JUII- I wa., JUlt aUttle Tupperwear
15 contlllller, 10 big, round, .man Tupperwear container,
16 Q What was in the container?
17 A Dread crumbs.
IS Q What were the bread crumbs for?
19 A The IHse Ind duckl.
20 Q At the time lhal you fell, were you lotullly
21 feeding the geese Ind the ducks at the lime you fell1
22 A At th.U.., I fell, I think I had JUlt
23 thrown somelhlna to Ihem and that II when I JUlt turned
24 aroulld IlId Cell.
25 Q You said you had your dOl!: wilh you"
GEIGER & LORIA REPORTING SERVICE -1-800-222-4577
5
SPENCE, ANN MARIE
02/06/01
I A Y...
2 Q WilS your dog on Ihe Icash?
3 A Y...
4 Q Were you holding Ihe leash?
S A No, because h. wal I good dog Ind I wid hi",
6 to sll and h. .tly.d Ihere. II. dldn'l nwv.. III was .11I1
7 .llllng there In hour Illor. II. was a good dog. II. h..
8 been pUI to .Ieep.
9 Q Sorry 10 hca, Ihat.
10 VouJUJI dcse,lbcd thai you hadJuJI O,rown
II lome bread crumb! to ducks Ind the geese and you fumed
12 around?
13 A Yes.
14 Q Wh~1I YOll threw the bread crumb, to the ducks
IS and the g..... Y1hal pall of Ihe hrldge were yonnn Ifyoll
16 we" on 010 bridge?
17 A I w.. on the top 01 Ih. hrldg., right allh.
Ig .nd 01 Ih. rilling, right thoro 'at the lop.
19 Q Where the decline would ''''"?
20 A Whe" th. d.clln. weuld Ilart.
21 Q 'fyou are on your son'~ pro.lperty and you
22 arc looking at the bridge before YOII actually go Icm3S
23 the bridg', were you on the righl side of tho bridge or
24 the left ,ide of the bridge 10 feed tho duck,?
2S A Going over?
I Q Right.
2 A The rI8~llld. 01 Ihe brldg..
3 Q When you turned after lhrowing the bread
4 crumbs to the geese or the ducks, whatever you were
5 throwing them 10, do you rcellUlf you lllmed in a
6 clockwise or I counter clockwise motion?
7 A C1o.kwl...
8 Q Were you able to take Iny sleps at all
9 before you foil IS you Welre \umini'?
10 A I don't recallthlt.
11 Q In your own words, If you couldjwlt
12 describe Ihe fall 10 me?
13 A I dldn'l .Ike Iny leeps, you mean JUlt -
14 no,i dldn'lllke Iny Ilepl, II aU happened 10 quickly
IS and I remember ralllnR.
16 Q If you could jUrit describe whal you
17 rememMr?
18 It. I couldn'l believe I WI' railing and Ihen my
19 head hili 'Inder bloek and lh.nI I.nd.d on my hick In
20 III thl. mud.
21 Q Did you actually falloff the bridge?
22 A V...
23 Q Do you know the hclg!ll of the bridge at the
24 point where you fell?
2S A It WII H 1010 feel, 11m n3t rully ''In',
SPENCE VS
SPENCE
18
20
I Q Illhere waler al any part vnder Ihe bridge?
2 ^ YeI,lhallt ulled _lie chianti and the
) water -II I had loll.. JUIl I 11111. bit 10 th.lell,l
4 would hne aone In the hlAh wlter,lo we mlgllt 110t he
5 dolnillhll foday,
6 Q lIow deep illhe waler under thai hrldje?
7 A Thll dn II WI' very dttl" I don't bow how
3 deep Chll ChUD.1 would get bUll couldn't .~ maybe I
9 wouldn'l hne u the clrcumlt..ct. mlahl hIVe bee.
10 dln.rent, mayhe I wouldalt havl! broke.. my I.kle It I had
II raUen In Wiler, HUllnywayllt II rlghlthere,thew.t.r
12 II rlghlth"e.
13 Q So you fell I Iltll. blllo II,. 1.0 of
14 the~.
IS
16
17
18
19
20
21
22
2)
24
2l
A
Q
A
Q
A
Ihert.
Wiler.
.. orlhe water?
Ytj.
You fell In IOmc mud?
Ytl, mud Ind rockllRd wt~d., whalever WI'
Q You said you hit your head on I cinder
bluck. Were there a lot of cinder blocks under the
bridge"
A
bridge.
Then were I coupl. Chere II Che rool or lhe
19
21
I Q Do you recall slriking any other pari of
2 your body on anything on the ground olher than your head
3 and your back?
4 A No.
5 Q Old your head have allY culJ from hitting the
6 cinder block?
'} A J don It think 10.
B Q Did you have Iny bleeding al III?
9 A Yes.
10 Q Whe,e wasth. bleeding?
II A W.II, I rem.mber the bl.edlnl Wll -Ihere
12 WI' I mlrk here on my arm. I had. deep ~ulln my arm
13 thai th.y lreal.d allh. ho.pU.I.
14 Q You are referring to your right arm?
1 S A Yel, my rllhl arm,
16 Q It Is your foream1?
17 A V...
18 Q Did you have any ltitches in thlt cut1
19 A No, they JUII pul . bullerny on II.
20 Q Do you have a Icar?
21 A Yel, Ihere II. You can lee II. See II
22 lero.. there.
23 Q Okay,
24 A RIRhllhere, lee Chit muk. rllht there. II
2l II Ilk. down Ihll WlY and tlo.n this WlY. 8om.llm..U
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SPENCE, ANN MARIE
02/06/01
I '..rn. bhtl!, bUlle II rllht Uk!: hUf. Thllmark rlabt
2 her..
J MS. COR YBR: (llooks like .bout . I inch
4 Ipace, would you agree, Duane'l
5 MR.IlARRICK: Yes.
6 IIV MS. CORVER:
7 Q You had testlOed earlier that you fell the
8 missing handraU. were dangcrou.. because somebody could
9 fall off'h, bridge.
10 As you were crossing the bridge Ilnd
II reallzlnR Ihlll it might be dangerous because there were no
12 handrails, did you Idjusl the way you were walking or your
13 gait? Do you know what. gait is?
14 A V".
IS Q Did you adJusl that at III IS you were
16 crossing the bridge?
11 A V.utlly whtn I Wetlll~roSl .he bridIe, I
18 .110 wllktd In the eenter of the bridge; but for 'Oln~
19 reason I Just ""ent up 10 ehe ralllnl there.e the edge of
20 Iht railing and I dIdn't. you know, that w... whit
21 happen,d, I f,lI.
22 Q Do you know of anyone else, including
23 yourself, having fallr.1I frOTTllhls bridge Nfore'!
24 A No,
25 Q Old you feel paill immedlalely after you
I foil?
2 A Mler I fell, I.hlnk I Wit knocked oul JUtl
J . llWe bll. I think I Clme Co and I tried to get ullud
4 when I cried to aet up, my fool went Ildewayt and cracked;
5 Ind bellevt me, there Wit much pain.
6 Q Which foot arc you referring 107
7 A My Idl.
S Q Olher than that pain thaI you were obviously
9 feeling in your len foot, did you have allY olher pain?
10 A I couldn't-II WIS.O bad th.t thlt 1,,11
II I nn remfmber.
12 Q You said lhat you were knocked oul a little,
13 tlo you know hoY/long you were oul?
14 A I rtllly don't know. I JUIt ftel that I Wit
15 knocked out Ind carne to, I donll Chink Ie Wit II0Rg
16 Ilerlod or time.
17 Q Old you have any dizziness or nausea while
18 yo.. were under the bridge?
19 ^ No. Wha. I CrIed to do IlleC -I knew I
20 had to iel help and 1 eouldn't get up,.o 1 had 10 try Ind
21 CUrn my body .round to let OR my lIomach, 10 thlt I could
22 crawlchroulh Ihls mud over Co the edKe of the rpmll, tile
23 one on the IIllnd, Ind Irled 10 - thll took. lonltlme
24 - lAd tried to crawl up Che nlml'IRd I had - my hands
25 were an ,clrred - bruised Ind everything from dolnK that
SPENCE VS
SPENCE
22
24
I IUd I could ollly 11I:0 h.lr wily "11 elle rimp,lhl.l, .1 hr
2 IS I ,oullla'l. I JUl' 1.ld there and y.lled 'or h'lp.
3 Q Did lomebody eyenlually hear )'ou?
4 A Someone - chere w... no oat. around. but II
S JUlt '0 happened ChiC ChI h01l1e .crou from me WA. a bed
(, and breakra"lnd they .Id people '1Iyln. tber. rrOl1l
7 Callfornll thll w..ke.d. The mln broll.M hllllUle boy
8 lcmu Che rOld, down .rouad my driveway, Co Ihow 111m tbe
9 duc'" and IlIw blnl coml.. Ind 1 yelled.
10 Q Do )'ou know IpproJl;lmately how lon3 you were
II lay ilia on the bridae bclror~ thl, man clme?
12 A I hive no Idel. I don'l know.
13 Q Did Ihi. IClIItleman help )'OU back to your
14 home or did he call an ambulance for you?
IS A lie fln ItrOIl che rOld to lel-Itlo
16 hlppened be WI' I ,klln,'rllecor Illd I ski medic, Ind he
11 ran ICI'OU the rOld and 10C ma,nln" Ind I whole bun(h of
18 mllulnu to mlk. I IhlDI on my Ie..
19 Q Uke I.plilltof.ome sort?
20 A 'In, like I IpUnt.
21 Q Then what happened?
22 A Well, Whll bid blppened Ictullly WI' tbat I
2) lldy dowDUlln tblt Ihed In tbe dowallalnlplrtmeal bid
24 come oul Ind I uw her lad 1 yelled 10 ber tllat I Deed.d
25 "el,), Chili had taileD off or tb. bridle and Ih. wouldn't
23
25
I ('ollie Ind help me Ind 1 told her.. Ibe nnt CblaK I (ould
2 lhlnk of Wit I told her to ull Jill'. mother, MUU.. .be
3 knew Jill', mother'. phone number, Ind .0 .be wenl bl('k In
4 Ind cllled Jill's mother.
S This It bdore -llhlnk thllls before Ihe
6 mln from leron the .treet..w me Ind Ihe. lb. JUlt lOll,.
7 her car.~ .he IIld, w.II,1 1m lolnl 10 churcb.lo Ihe
8 10110 her car Ind drove IWIY.
9 Q This woman lived In the home Ihll )'OU were
10 Iivinl in bUI in a downstairs .panmenl?
II A Vf~, Cher, WIS a dowll.tal" apartmeat Cb'rt.
12 Q How many apanment9 are in the how.?
13 A JUSI Chit on. and mine.
14 Q SO )'OU lived In the upstlln apanment?
IS A Yes.
16 Q So after the acnlleml\" caIne alld made I
17 .plinl. then what happened?
18 A Everybody came from I..ound tbe ."Ibborhood
19 Ind they wer~ III coaurned and th.a my dlulhter Umt,
20 Plmell. She WII drMal by and .IW aU 'b. people lad
21 JUIC Itopped Co nad out wblt WI' hlppenJa..
22 Th.n Jill'. motber Clme, Betl Wetzel.
23 Q Did somebody evenlually take you to lhe
24 hospital?
25 A Ye., they urrled me over Ind put me la tbe
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SPENCE, ANN MARIE
02/06/01
I hick sui of MI. We'tells ur.
2 Q Who Is M., Welle I"
~ A That It Jill'. molllu.
.. Q JlII'. mol her look you In Iho ho~pllal'!
5 A Vel, the took "te to the hotpllll,
6 Q That wu Carll!le lIo!jlUal, ((lrr~ct'!
7 A Yes.
8 Q Do you remomber how long _ftet the fall you
9 aClually Irrlved Illhe hospital?
10 A I don't kaow how much IInlt hid passed In
11 that period nf IInte,
12 Q When you arrivoo al theenlcrKcncy room al
13 C'lrllsle Ilospltal. do you remember whal complaInts you
14 voiced to the emeracney room pcruonncl?
I S A W.II, I dldn'l really lay anything. My
16 dauahter ume In Ind It Jult 10 hlppened thallhe WI' .
17 'rlead of Dr. 1It1ly, who evenlually olWra'ed on nlf\ and he
18 WI' on duty or .t .he hospUal for lome rtalon and Ihe
19 told him th.t her m('llher JUlt ,,11, (ould lie take a look
20 a. me. So he Clme In the emergency room rlghllway Ind
21 lene me 10" :w:~raYI.
22 Q Do you remember where you were feeling pain
2:.1 while you were al Ule emergtney room?
24 A In my Inkle .nd my Ihoulder Ind my Irm. I
25 (orlot IboUI Chi I .rm, but thou were the three thlngl,
I
2
)
4
S
6
7
8
9
10
II
Il
13
14
15
16 A Yes.
17 Q When did Dr. Healy performlhe surgery, was
18 ilonthe.all1CdayoftheIBil?
19 A Vet, he uld he Wit golnR to. hockey .Ime
20 or I soeetr Klme Ind he wo~ld he buk and operate. So II
21 WIS In Ihe If.ernoon,
22 Q Do you know how lon8 the surgery la3tcd?
23 A No, I don 'I.
24 Q After the surgery, did they lalle up your
25 ankle or did they cast your allkle" What did they do to
Q What shoulder, your right shoulder or left
,houlder?
A Left shoulder.
Q Dr, Healy came in and slmt you for x-rays?
A Yes.
Q Do YOLl remember what parts of you.' body were
x-rayed?
A He J;..nyed rny ankle. lie wu only Intertsted
In my InkJe.
Q Old you ever have any x.rllYs of your upper
body, your arm or your shoulder?
A Ves, after I WI' dlscharRed frorn the
hospital I did.
Q You were admitted to Carljsle Hospital,
correct?
SPENCE VS
SPENCE
26
26
I your ankle .ner thelurgory"
2 A lie put .~ One of .11, he IUd .Ulhtlc
J 11hllln 1t,.1I thai hardwlrf, to keep Ie togethu. Tiley
4 didn't -lee's Ite. l'he)' dldol, put a ellt on It, he
5 jusl had II ""'PllOd,
6 Q Did the hOSI)1I11 hive you walklnlllround
7 with crutches or I walker while you were there?
8 A Th. n..t day th.y trl.d 10 mike nlO do II.
9 Q Were )'ou Ible to walk the next day?
10 A Not v.ry w.lI.
II Q What were you using, crutches or I Wilker or
12 both?
13 A Nol ~ruh:htl,1 dldull use crulcheA, .
14 walker.
15 Q How long were you in the hOlpltali
16 A Until Weddesdly,1 (orael whit dlle Chit
i7 wII.1 WIS dlsch.ried QU Wednesday. Thai Wi... Sunday
18 .nlll W.dnesday.
19 Q Old they ever put a casl on your ankle?
20 A No. he dldnll pUI a cUi 00 my ankle, he
21 dldntt wlnl to.
22 Q Were you prescribed any pain medication when
23 you left the hospital?
24 A PercouC, Ind they hid liven me Ihls one
2S that lalwlYs (orRet. I had I.hot of __I don'l
27
29
I rememher.
2 Q ThaI is okay, Was it a painkiller?
3 A Yes, painkiller.
4 Q lIow did you get home from the ho'pltal?
S A How did I g'l ho...? Ilhlnk Tlmolhy <am.
6 and golm., TI..Olhy and Jill.
7 Q Did you return to your apartment ill Carlbl.,
8 after you were discharged from the hospital?
9 A Notlhal day. I wenl up 10 ehelr hou!If,
10 because I touldn't be alone.
II Q When did you eventually rc:tum back to your
12 apartment?
IJ A That Saturday, beuuse ehe nnl day wa!
14 [asler and I wanted to be home Cor Euter.
15 Q YOII had lestified earlier thllt you lived on
16 thcsecond floor?
17 A We lit It wasn't setond noor,1I WI! the
18 house, you just walk right In. II..IS - you just w.lk.rt
19 rlghllnloll fro.. tho oUlsld..
20 Q So rnayhe tho --
21 A There were no steps, Ju~t " porch slep.
22 Q So the woman thai lived in Ihe downstairs
23 apanownl, is that like a basement apartment?
24 A YUIll WI!. bllument apartment.
H Q Were there any ~lJljrs at all in your
GEIGER & LORIA REPORTING SERVICE .1-800.222-4577
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SPENCE, ANN MARIE
02/06/01
I apannl"nf'
2 A No.
) Q After )'OU were f"lea,ed from lhe h(l~IJllal on
4 Wednesday, did you have any follow-up vb1l510 Dr. Ileal)''!
S A Ob, )'t" I hid quite. f,w, I can',
b rtnMmbff the tint time I went bll;k thoulh.
1 Q My record.lndlr.alo, 'lid )'OU can lell me If
8 It Jound, accurate to you, th.1 you wenl back on April 9
9 10 have your .tlletle' retnoved?
10 A Th.t 'fI' probably Ira.lhen,
II Q Do you rem"mber havinll your Illlches
12 removed?
13 A Ye., I do.
14 II 00 YGU remember whal complaints )'01,1 were
IS havllla al Ihal lime?
16 A Pala,lo.. 01 pain,
17 Q When )'01,1 IllY pain, b lhat pain in your
18 .nkle?
If) A VtI, plIln In my 1ft~le, because for lame
20 r"'OD lbey didn't - when I kept felllnl then! that my
21 '''oMlder WI' hurlla.. which I conl.antly dId, In the
22 lIo,pUIII kepI complaloln.aboul my Iboulder 10 everybody
23 ud .obody would PlY auentlon 10 me and Ihey, you Io.:now,
24 they were JUtt coneentraUnl on Ibe ankle.
2~ Q Did you abo tell Dr.llealy abouI..
I A Yo..
2 Q .~ your shoulder?
) A Yes, I did.
4 Q Again, is thai referrit'lg 10 your right
.5 shoulder?
6 It. No, my Idt Ihoulder,left foot.
7 Q My records Indicate that you saw Or. Healy
8 again at Ihe end nfMay. May 21 of 1996?
9 A J am lurf thai Is corrtct.
10 Q Do you recall what complalnu you were
11 h~ving It that timt, that would have been almosl 2 months
12 after the fall?
13 It. Well, I wu having a lot of pain, I Jun
14 remember that. had all thai hardware In 100 and I was
15 JUtl having severe plln.
16 Q Again, referring 10 lhe pain, is Ihat in
11 your left Inkle Ind your left shoulder?
18 It. No, Ihlt Wit my Ie" Inkl. that I 1m tllklng
19 aboUI.
20 Q Old the pain in your left shoulder ever
21 decrease or get better?
22 A No,lt did not.
23 Q You still have pain In your left shoulder?
24 It. Yes,. do.
15 Q You have talked aboullhis hart.lware quite II
SPENCE VS
SPENCE
30
32
I few times. Old you eventually havCllhe hardware rerllovtd',
2 A Yes.
3 Q When wu thllt"
4 A Ilhlnk th.t II wa' May, the followlnl yelr,
.5 May of '97. About a ynr after I Wit opented on.
6 Q Old Dr. Heal)' pcrfonn Ihlllurger)'?
7 A Ye.. he did.
8 Q [Ietwetn the dale of the f.1I and whell you
9 had lhls hardware removtd, do you know how on~1l you .aw
10 Dr.II"ly'/
II It. No,. don't I don't know. I know I went
12 to him 10 man)' Umtsl but) coulda'llly,1 don'. remembu
I J how often tun hIm,
14 Q Did he ever refer you 10 Iny type of
15 physlcallherlplsl for lhe pain In your Inkle or your
16 shoulder?
11 A No, he didn't,
18 Q Other thin the 11m.. that you visited with
19 Dr, lIealy, did you tlave any other medicalaUtntlon
20 concerning your left ilnklc or your left shoulder?
21 A I went to another doctor, my fllmlly d6ctor
22 In Boiling Springs, Brad Wood, Iud I complained to Brld
2) cODstanUy abollt the pain In my shoulder aad he leat me to
24 haye x-rays dODe,
25 Q Do )'ou remember when you Orsl 'a\llo Dr. Wood
31
33
I aRer the rail for the injuries )'ou sustained In the rail?
'2 A Well,1 think It WI. wUhln about a month or
J maybe 6 weeks. I nmenlber I WI' on the walker.) '.m lIot
4 rully lure, and I wen I to him about the pain In my
S .houlder,
6 Q Where did )'ou go for the x-rl)'s of your
1 shoulder?
R A Carll.l. Ho.pllal- wallt Carll.le - II
9 mlg'lt have been the Medlc:.1 Center In Carlisle. ) think
10 Itwas,
11 Q What i.~ il called?
12 A The Medical Center -I don't know, I think
\3 that Is 'he name of It, Carll,l. Medlul Ctnter. BUll
14 dldnlt KO blck up to the hotpUal for .he x-rayt,
IS Q Did Dr. Wood discuss lhe results oflhe
16 x-rays of your shoulder with you?
11 A \'es, He IIld that the doctor, he dltculud
18 whit the doctor had found, Or. Royal, that there WII no
19 bl'eak hllhe Ihoulrier.
20 Q Dr. Royal Is the doclor who read the x~rays?
21 A Read the r-rlYs.
22 Q Did you follow up with Dr, Wood IlallaRer
23 you saw him for your shoulder?
24 A Yts,1 WI.' with Dr. Wood for qul1e a while
25 before I moved.
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02/06/01
SPENCE VS
SPENCE
34
36
I Q Approximately how fIlAIl)' times do ynt! think I Q That was my nellt que!ltloll.
2 YOlllIIW Dr. Wood (or jlljuricll from this fIll? 2 Ilow 10118 were you u!llllg iii walk"r?
3 A Mlybolhre.. 3 A W.II, I UlOd n,y walk.. for abouI4 montl...
4 Q Since YOlll1lovcd, yuu ha...e gollen lInew 4 I Irl.tllu gel rid of II.. .o.n II pOJllble.
S family doctor? S Q After you gave lip your walker, did you IIse II
I, A When I mund,.got. new ramlly doctor, /, CillO or Ill)' other device?
7 yoo. 1 A Vu, t had 10 hut!. cane.
8 Q Who would that be? 8 Q Ilow long did you UIICJ I cine'!
9 A Dr. Espenshad., 9 A I uled M un. for Ihe nul year.
10 Q [)o you know J)r, Espcllshade',i flnH name" 10 Q I\ro YOIl ahle l~l walk flOW without usin, any
II A I think II I. I.arry, I bello.e. II type of IS!lISlanl device"
12 Q I~ he in his own prleliee or b he with ft 12 A Yes.
D different practice? 13 Q You probably have some scarring from your
14 A nels In IIIghsplrt, yes, he I. In his own 14 IcO Ankle surgery"
IS prattle.. IS A Yfl.
16 Q Ilave you consulted with Dr, l(spt.l1shllde ahout 16 Q How would you feel about lIhowlng lllCl your
17 youI' shoulder or your anlele? 17 (oot today"
18 A Well, yel, he know!! about It hut he ni:!Ver 18 A If yolO really w..lln ...11, I wlll.how II
19 lru"d II. 19 10 you.
20 Q Who was your family doctor before Ilr, Wood? 20 Q I want to take allote of the scarring,
21 A I dldn'l really go 10 - I don'l know If I 21 A Thl. Inkle horel. bluer than my olhor
22 hid I fa..lly doc lor. I w.nt 10 Dr. Kunk.lln New 22 ankle. The ",wellln". you can 1ft, let Qhere Is tht Itlr,
2J Cu..horllnd If I hid I 'old, I n.ver really w.nl to Ihe 23 ont scar And I ('In'lulI, there Illhe oth~r I~.r.
24 doctor Ihat much. 24 MS, COR YER: So the .can are I wuuld lay 3
2S Q Other than the Ireatmont that wc havc talked 2S to 4 inches long on both sides, [)o you agree, DUlne?
I aboUI wilh Dr. Wc.od and Dr. lIealy, were thero any olher
2 doctors, heallh care provider, thaI you saw because of
) IrVuries from Ihis fal11
4 AVes.
S Q Who would thaI be1
6 A I wenl.o Dr. Funkeny. I don'l know his
7 nnlhlme bul he Is It HullhSouih on Union DeIIO'U kOIUI.
8 Q When did you ICt I)r. Frankeny?
9 A 11m Irylallo think IInw.wltt. Well,)
10 know I went to tee him tbe whole year of '98. lie tent me
II lor - be Itnlmelo phy.lul therapy, be uld 'should
12 hIVe lone to phy.lul thenry and I did that.
I) Then he .enl me tor MR., Ind I.ray. of my
14 lakle Ind be IlVt n.e m~lullon. Ind tben I went .. the
15 II" time I went blck 10 him he ,howed me the J.rly. uti
16 aU lite telt rtlult.and .ald Ihere WI' nolhlnl- Will)'
17 nolhlnl they cnuld do to help me.
18 Q You .aid you had phytiullhertpy thaI Dr,
19 Frankeny lent you for. Was the physicallherapy to YOIIT
20 ankle IlId your Ihoulder?
21 A Yet.
22 Q Do you remember how Ion II: Ihal course of
2] therapy wu?
24 A It WI' Ibout1 IJr J m(hUh!, t 1m 1I0lture.
25 1 weill twice, three times a werk,
35
37
I MR. OARRICK: On Ihc 1..",I.ldc I would
2 say J Inchc!, 4 inches.
3 MS. CORVER: TIle OI\CI on the outside of the!
4 ankle l~ Slnches,the one on the Inside of tile .nkle is
5 ahoul 3 inches; although, the OM on the huide of the
6 ankle i! more prClm;nentll\ my opinion,
7 A Yet, you can see II more.
S MR. !lARRICK: Yes.
9 A II ""lwly.llk.lhl.. II" JU'I blR,
10 .wollen, Illooks Uke It Is ,wollen, hut It Just ItlY'
II tlllllwlY.
12 IIY MS. CORYEll,
I J Q Now, other than the trcatmcntlhal we !lIked
14 about and Or. '!ranken)', Dr, lIeDly. C.rlllle Hospl"'l, Or,
IS Wood, were there any olher doclors that you saw?
16 A l'et.
11 Q Who would .hal he?
18 ^ I Wit 10 dl'lIu.ted wllh the dottonllo tell
19 you the trulh, M)' Ihoulder Wit to had thltl could .lllt
20 work Ind the tuu would run down my Illee or pilla In my
21 thoulder and yet nobody ,eemed to tire lbout It.
22 So I Kolin my own lelt, I know Ihls didn't
2J RO wilh Ih.IIMO, I JUlI looked In tho y.llow Pli" and gOI
24 .. pulled a doclor oul, his name b (Jr. Joseph C.rdonelll
25 I guu.., Ind mlde In Ippolalment with him.
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SPENCE, ANN MARIE
02/06/Q1
'--------_.._--..._------~------_..
I I wen I to him Ind he ifnI mtl (or x.rHY' Inll
2 then they Unlf hll:k and I w~nl (0 1ft the fetlllh,
3 '" had liven hie. .11111 UIet .hey <<lve
4 atlol'I.., Whlll, th.. ..II,d'l
S Q ^ .'efold jnJelllloll"
6 A A ...rald laJecUon, he hid liven file two o(
1 th,", and that rfllly helped and he wouldnttllve me any
8 mute thoUlh. He IIld, he looked tllhe thhlR' Ind he lit
9 down, he JUJI uld,' don't know,lhfU It lom.thlnK hen.
10 It look. Ilk. ClDcer,lt could be cancer. Well, IlIen J
II .ot all.plet.
12 lie ,aid,. 1m loin. to "ad you 10'
13 neuro'ollltl, I Dr. Barry Moor, In MfChllaluhurw:. IlId lei
14 01 Ippolol..,nl wllh him .od go .,. him. So 110.1 II whllJ
15 dl,~. I weat over 10 Blrry Moore Ind J took aU my ",Inll
16 with nlf from the hospllal.
11 lie (old me .rter much.. he 'ludled them and
18 everylhh1Jlnd lold me lh.t.. Ihe unu! IhlnK thll Ur,
19 Kunkel hid told me,1 roreot about him - and thlt the
20 Injury WIS - the muscle hid pullfd Ifllrt (roRl the hOOf In
21 my scapula and thlt there was no lurKery.. tltey can't
22 re'Ulelt I muscle to I bone, Therefore, thue It nothlll"
23 I could do, unlets I WinCed 10 wnr one or those pi In
24 device thlngl, which I dIdn't, There It notbluR they UIl
2S do lor II.
I hUI Chlllt dcnnllely, tllelr .ul"mltlon was
2 lhllle c.me - bad to come (rum 'hlt rail ud, you know,
3 I could nevu let Iln,vbody to help (1le with It.
4 Or, Moor. 'Idd III. not Clncer, ht
S shouldQ'1 have ..Id Ihal. hUllblt I. what II It, 'hili.
6 wbat he lold me,
1 Q When did you see Dr. Cardollclll, do you
8 remember when thaI wa!1
9 A II hat bun a yur .nd I hllr, I 1m not Sure
10 orlhe time or da'e.
II Q Wha. about Dr, Moore, when did you Ice him1
12 A WIII,lhat WI' Within :~ weeks or U'lt lhllt,
13 Q I.t lhal the IUllime that you have seen I
14 doclor for huurle., from Ihe fall or have you fOllowcclup
1 S with lomebody else?
16 A No, tbll wltlhe lISt lime Ilhlnk.
17 Th,re WI. one tIme Ihall ClUed Ur.
18 Franken)' lad mlde In a...polalment, beClult my ukle WI'
19 hurtJlI1 nte.o much Ind I wlnted 10 10 see him, DUllhea I
20 ca.celled II becaulf I knew be would JUllllve me Ihal
21 pain medlcatlon .nrt I dldn'lllke IIkln.'I.
22 Q Are you stllllakina any lype of pain
23 medical/on?
24 It. No, only A.plrln,
25 Q WIlll1 complllil'lt.'l do you have Inesenlty? Nol
SPENCE VS
SPENCE
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40
I nec"ullrlly refcrrlnjllo Imlay, but the cummltlme
2 frome, whIt QOl1llllalnL. Ire you IItill havlllS'!
J A Well, , .n',111I hlvlnR - III the lim., I
4 would I'Y H~, 90 p.rtent of tilt tlm. I hIVe pII" In my
~ IIlkl~,11I my fuot.
(J 1111 there III the time but 41 Ume" It
1 InCI'tllI!1 rully, reaUy bid until I un't hardly It.nd
R It, l'h," It - I rub a IInlmenl on II Ind, yuu know, I do
9 Inylhllla, bUI th.re II tlm... wt.en I JUlt cantc Itllld h.
10 SOlnttlm" It feell Uke Ihere II I tinder
II b1o<k or a blR w.lghlon my fOOl. "Julfl..J. Ihlt w.y,
12 Ilk. It II atla~hed, but It Itnll, thete I. nothlna there.
13 Q Other than lhe pain In your lefllnkle, do
14 you have IllY other pIln CUrTtlltly?
15 A III my .houlder, Stf', when I-I 4110'1-.
16 had IU hne my de.k moved In hlY cublcl., becil1ue my
17 drawtrJ were ..II on thll.ld. and so I hid 10 let I
18 Illhl.hauded dflkt htUUIf IIny lime I us, thlt Irm and
19 even I 1Itt1. bll Just .0 do norlnll Ihln.., Uke n.eh up,
20 $let I piper, anythlnallke .hll, th.n Ihf Plln let' worse.
21 Q Is the pain In your left shoulder constant
22 or does II occur every once in Iwhlle?
23 A I know It l.t there but It, nltuullYt the
24 1IIIn - It aetl won. It Umes.
25 Q Ilcfor., haVing fallon in Mardi of 1996, had
39
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I you ever had ;Iny problems wilt! YOIlr left .nkle or left
2 shllulder before?
) ANa.
4 Q llad you ever Injured ellher ('IftJ.ese two
~ poUtt O(YOUI body be(nrclhb fait In 1996?
6 A No.
7 Q There has belen . little hI! of confusion
8 .bout whalhet or not you Ire prellCnlJng I cllim for lost
9 wagu, Arc you making I claim for lost wages?
10 A No.
II Q Your 'espon~es 10 in;erroJlUorics, which Ire
12 que~lions, lype\Vrlllen flueslions thai WCIcnlto your
I) allomcy for you 10 complele, you had indicated thai prior
14 10 the rail you had planned on relumlng 10 work as I rell
15 e~lale aftenl?
16 A Yull would have, y".
17 Q Havc you ainee changed thai pllll?
18 A No. I hive chanled Ihl' plan,. don'l
19 lnltnd to do It, The ,.alion I. beuu'l:! th.re II JUII too
20 much wIlkln.l"d up and down IIcpl Ind, you know, when you
11 .how I 'IrOptrlY, 10 I JUlt dldn'lleI back Into It ror
22 thal.~ ",IJuly for Ihlt rea'OA.
2J Q Again, 10 clarify IORlC luucs thai your
24 anomey and I have to work mU, are you mlkingl claim
25 Ihal you have Inil or wUllo:<<: Income ehher rlMhl dter
GEIGER & LORIA REPORTING SERVICE. 1-800.222-4577
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SPENCE, ANN MARIE
02/06/01
I dlt (all or .llny lime Jlllhc ruture u. .esull orllle
1 f.II'1
3 It. Wltll, I don'l know how to antwu Ihll.
4 btUUIt there I., .uon!h. thlr' Ih.11 couldn't do
j lIn)1hlnl wh.n I would hlu bun daln.tonl.lhl"_, you kllOw
6 ",".lllm 1I)'lnl. 1 wouldn't hn. Ion. 'monlha.IWnl
7 In my hou,. dolnllbllllul.ly nolhln.. like I did, MUUse
8 I (ouklntl,tllround.
9 So I had 10 work,t mil", thai I. - I hid
10 to let -11m nOl clalmln.lo.t WIIU In lh. rut tll.le
II or _ whIt I 1m "fin, I. thlt II JUl. ~h.nll'd my IItlllo
11 I don'l kn.w how 10 t...wer thai qUf.tlon.
II I woul4 nol hav, bf.n .llIlnlln my hOUIf,
14 IIk.l.lld, tor thoN 6 mOftlht, wlthoul dolnClnythln.,
U I would have bun worklnll but I don't knol'! whlll would
16 hlln bHn doln.! bull would tine bun dolnC1om,lhlnl.
17 Q WI' your leal estate licence active In Matt:h
18 of 19961
19 A I hid pUlllln ftCrow JUIllbout a couple
20 month. bffore UIII. btUUIt the holldly..1 Ihe holidays
21 comlne up .nd.1 Ihe mill, I wu Ipfndlnc 1101 0' time
22 there. So I Ju.t thoulhll would put II In <<crow,
23 beUUH I wlInled to 10 with I dlffnent com piny Inyway
24 when Ilat II oul. I planned 101ft my lIUllce out of
2j eurow. far aile thlnc, bUll dldn'l do II,
1 Q Why didn't yuu KClth out of escraw'l
1 It. BfClUIC af the Iccldent.
3 Q What hobbies or other acclvities did you
4 enjoy before lhls fall?
5 It. Well, IlIyoa'" thlc know. me know. Ihat I like
6 .porl', lUke -I alway. went bowllll', I wtat
1 Ice.,lt,alhll,1 Willi dladn.. IlIiced phYllullcUvltlu,
8 lad 1111 Ju.t Imlloulhle now to do Inythlng re~embllnl
9 dune IblOlt.
10 Q How often did ynu bowl before Ihls rail took
11 plAce?
12 A I uud to bowl-I WIsa', 10 llealul It
I) the tlm'l but, you knaw. howled .very couple weeks. maybe
14 more.
15 Q Wnere dld )'au howl?
16 It. Dlffer.nlllllclI. ABC West, the CarUlle
17 bowline liley, Mayb. anotber, I un'e remember.
18 Q Prior In tht. fall, how often dId ynu gO'
19 Iceo.katina?
20 It. W.II,lce-.kltlng In the wlnler. It
21 -tepen>led on whether the lu-.kIUna WUIQod or nol. you
22 know, Oil tb. - how lood the lu WI'.
23 Q Where did you nnnllllly skale?
24 It. Well, we wenl tkltlng on I couple dllferenl
25 ponds.
SPENCE VS
SPENCE
42
44
1 Q So outdoor lcco:tklltlng?
2 " Outdoor ,....kallng.
J Q What Ibout dancing. how oOlln did you 80
4 dancinR tltlfOTC the fall7
5 It. I would ..y one. a week.
6 Q Where did you Iypically ao danclna?
7 It. Well, we went to Wandl'I,lo - I JUlt-
K dirt. rent club..
9 Q Who did you 80 dancing wllh?
lOA My frl.nd..
II Q Since Ihe fall, have you been .ble 10 bowl
12 or Ice-s~atc or go dancing?
13 A No - well, I tried danclnl, but It doet"'t
14 work ton Rood with my fooC. I Cln'l wear heels, th.lll
15 olle Ihllla, The phy.leallherapl.. told Ine ..hould never
16 wear heeb IRtln In my lire. So I un'l wear hull.
17 Q The friends Ihat you used In BO dancing
18 with, are they SIIII YOllr friends now?
19 A Some of them, .om. - I hne moved. you
20 know, I haven'l leen .ome of my frIend. for awhile.
21 Q Olhcr than Ihl. palllcular fall In March of
22 1996. have )'OU ever fallen before where you rccolved an
23 Injury7
24 A No.
25 Q Olher than this particular fall. again, have
43
45
I you ever bceninvolved ill any other accidents. and I am
2 going to include motor vehicle Il~cidellls, accidents on the
3 job?
4 A Defore thll happened?
S Q Ye,.
6 A Yes. I was In one Iccldenl,1 tar accident.
'I Q You had mentioned that at the bclinnins.
8 Ihat was in 1986?
9 A Right.
10 Q What were the circumstances in lhat
II accident, what happened?
: 2 A Well, thlt ucldent WIS down an I rOld
13 outside of lIerlhey, ( fora.t the nlme or It, but It WIS I
14 winding rOld. I wIlIlIolnR lhls direction and l tar eam.
15 over Ihe hili In the cenler of the Iln.',I" my lane, .he
16 JUlt hit me head on.
17 Q What eype of injuries did you receive In
18 that accident?
19 A A head Injury.
20 Q Did you have any Injuries to you, .lu\Older
21 or your ankle from thallccldent in 1986?
22 A No.
23 Q Other than thai particular accident. have
24 you been Involved in Iny other accidents, either before or
25 after this fall In March of 1996?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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SPENCE, ANN MARIE
02/06/01
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IS
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A Alter Ih. f.lI, yes.
Q Wh,t Iccident were you invol\'od in?
A My dlu.bfer WI' drlvlnMI It wIsln - I Kt.
my Yeln - 2 yun 'So. 3 Yeln 110. She wa. drlv'"K and
I nr hit U.ll Irolll behind.
Q Which dau8hter I, thi.?
A V.lerle.
Q Do you remember (he month and the year that
thal.ccidenl happened?
A I believe Ie W.II Au.u,' or'97 - no, no. II
couldn't be, no WI)'I this Is ,1001, '98 or '99. 11m
lOrry, 1 un't remember off hand.
Q Were you Injured in that accident?
A I had. ...1 b.lllnJury.
Q Old you have Iny medical attention as a
result of the injuries sustained lnlhat accident?
A Y...
Q Whcrt were you trealed?
A OstO<lpathlc lIo.pll.l.
Q Is that emergency room treatment?
A The nut day, yesl I went 10 the emergency
room.
Q TIlat is Community General Osteopathic?
A Yes.
Q Other thanlhat treatment, did you have sny
I addillonal medical attenlion for injuries from that cllr
2 accident?
3 A Medlcaltrutmenl from that accident? No, I
4 went back 10 Rei checked, you know, to gel a checkup,
S Q Did you lee any of the doctors that you
6 trcated wilh for the fall for the Injllrie.~ that you
., sustained In this accident?
8 A No.
9 Q Who did YOLl go see for a checkup for that
II} accident, that car accident?
11 A I Runs It was Dr. Espenshade.. don'C nen
12 re",ember Ir. went to hIm.
13 I did go to phylical therapy lor II.
14 Q Where wu that?
IS A Th.t WIS out .t Union Deposit Road at
16 1I..lIhSouth.
17 Q What town is Ihat considered on UflIJn
18 Dcpo,1I Road?
19 A I don't know It thll II .Iown. It II more
20 like. towDshlp, SWIllrl Township. I really don't know of
21 Ilown oUllhere.
22 Q Did you .,restnt a claim againslany One for
23 Injuries that you sustained fraln the molor vehicle
24 accident with your daughter driving?
2S AVes.
SPENCE VS
SPENCE
46
1 Q Did you pl'escnt claims again..t your daughter
2 and the driver behind you?
3 A Nol agalnlt my daughler. She -II wasa
4 mulll-car Iccldcnl.nd II was d.nnll.ly tholr fault.
S Q So you presented a claim against the penon
6 that rear.ended your daughter'S car?
? A Yes.
8 Q Is there a lawsuit for lhat claim?
9 A The" was.
to Q Did Ms. Husic represent you for dlat
II accident as well?
12 A No.
13 Q Who wa, your allorney for that accidenl7
14 A Henning, Henning Rosenberg, Stolt Henning.
15 Q Old you receive a seulement for that
16 accident"
17 A Yes.
18 Q What was lhe settlement amount?
19 A I forgot, but you m..n Including hi, ree?
20 Q Yes, that Is tine.
21 A Ilhlnk II was IS.
22 Q Olher than that lawsuit for lhat accident
23 and other than d\ls particular lawsuit, have you been
24 Involved in any other lawsuits?
25 A JU!I the one from my car leddenlln '86.
47
I Q So three total?
2 A YI.'J.
J Q Other lhan the 1986 car accident, lhis
4 particular faHthal we are talking about here loday and
5 then the subsequent motor vehicle accident, have you made
6 any other claims against anyone else?
7 A No.
8 Q Have you ever been charged or convicted of a
9 crime?
10 A No.
II MS. CORYER: I am done.
12 MR. BARRICK: Call we take a break.
13 (Recess.)
14
15 CROSS.EXAMINATION
16
17 (IV MR. BARRICK:
18 Q Mrs, Spence, just a couple follow-up
19 questions for clariflcation.
20 You had mentioned during your deposllloll
21 that you didn't believe you wore a cast at any time after
22 your accident?
23 A I couldn't. . .
24 Q Grle of the things that were produced during
25 discovery were photographs that were taken of property at
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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(111) 131-\910
-----------
-~----~--------
';\~-N;\M;\R\\~ SP\\1'\Ct
Plain\iff
,''' '"0 COUR" 0' CO"",O'" 'Co" 0'
>E"'''''' c" ."", CU",..R"^"'O
CO\l1'-\'\'\'
(\\lI\.. /\C'\'\O~ ~O:. 9jl,.\1A\
lOR\' 1'RI/\\.. Dt~/\~DtD
'i.
'\'IMO'\'H'l SPt~CE anll JILL SPENCE
Defend\ln\s,
-'-
ORDER
.200 _' u\lon considora\ion
,,,,, ",OW. \h. _______ d., "r ---~ . .
. ,,,n" "'" Do ,on""''' R ",."" ,. ""f'''' ,,,,.
,,,,,,,,,,' "."" '" C""n ",d ObI'" '" ,II'"
. d D f d n\S n1\\)' seT'lO \\10 sub\lOon\\S
. . OR~<R'D ,,,,, ,,,,.,,", "."on ,. don"d '" ,,,,,
\\\ere\o. 1\ IS v'"
on \\1e na\,(\od \,ro'liders \\nd cnWlo)'ers.
------
_____l.
-----------.......------- .
9. Defendnnts hnve the right to examine Plaintifrs employment records Irom Jack
Gaughen, Century 21 and Bear's Choice as Plaintiffhus stated she can no loUger work as II real estate
agent and she can no longer help Defendant's tell homs a dny, Also, Plainli 1'1' may hwe had pri,)r
slips-and-falls and other claims thai resulted in personal injuries with her fonner employers.
Defendunts arc eertninly entitled to discover this information,
10. Obviously, this information is relevant and calculated 10 lead to discoverable evidence
and is, thus, in the scope orpcrmitted discovery per 42 Pa.C.S.A. 4003.1.
II. Further, Defendants arc not asking the named employers to provide information "from
the beginning of lime to current", but only for records from Plaint! frs beginning of employment to
end of employment. This is reasonnble.
MlillICAL RECORDS
12. All medical providers Defendunts seek records from are named in Plainti frs responses
to Interrogatories,
13. Since Plaintiff is claiming pel11lUllCnt and severe injuries, it is incumbent on
Defendants to seck information regarding prior medical conditions. Such infol111ation is relevant and
calculated to lead to discoverable evidence. Therefore, it is within the scope of permitted discovery
pel' 42 Pa.C.S.A. 4003.1.
14. Again, Defendants are not seeking infol111ation "from the beginning of time to
current", but only information from the beginning of treatment of Plaintiff to present. This is
reasonable.
WHEREFORE, Defendants respectfully request this Court to dismiss Plaintiffs Motion to
Quash and Object to Subpoenas and allow Defendants to serve the subpoenas on the named
providers and employers,
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CERIU'ICATE Oli' Sl<:RV1CE
I, Shlln')' SC1l1l1ns, 1\11 cmployce for Ihe IlIW linn ol'l'osl & Schell, I'.C" hcrohy slllto thlllll
truc and corrccl copy of the foregoing dm~ull\enl was scrved upon all eounscl of rooord hy ftrst clllss
United Slates Mail, postage paid, addressel\ as follows, on the date set forth beloW:
BY FIRST CLASS MAIL
Yvonne M. Husic, Esquire
NICHOLAS & FOREMAN
3207 North Front Slreel
Harrisburg,PA 17110-\311
POST & SCHELL, p.C.
(J NUJ-'JJ A-CY~~'7
Sharry Sema
Daled: I). (7 (oU
Exhibit A
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10. As a result of the said fall, Plaintiff was taken to the emergency room at the
Carlisle Hospital where she was admitted on March 31, 1996, and released
on Wednesday, April 3, 1996.
II, During the period of her hospitalization, Plaintiff required an operation to
treat her left ankle which was diagnosed with multiple fractures.
12. For a period In excess of a year thereafter, Plaintiff was SUbjected to 'Suffer
and had and continues to have ongoing, dally intense pain In her ankle and
left shoulder.
13. On or about May 22, 1997,Plalntlff required a second surgery on her left
ankle to remove the orthopedic hardware.
14. On or about February 12, 1998, Plaintiff learned that she has a frilctured left
medial scapular resulting from the fall.
15. Plaintiff believes and therefore avers that the absence of hand railings on
both sides of the down ramp was the proximate cause of her fall.
16. All damages and Injuries Inflicted upon Plaintiff ANNA MARIE SPENCE, were
directly and proximately cause by the negligence of Defendants, TIMOTHY
and JILL SPENCE, In that Defendants:
1I, knew 01' should have known of the danger presented by the bridge
without hand rails on the down ramp;
b, knew or should have known that allowing the bridge to remain un.
repaired could cause someone to fall;
C, knew or should have known that handrails should have been replaced
on both sides of the down ramp;
d, Invited, allowed, acquiesced and knew or should have known that
Plaintiff would walk that part of their property;
e, falied to warn Plaintiff that the bridge without both handrails on the
down ramp was a hazardous and dangerous situation;
1'. failed to replace the handfalls on both sides of the down ramp;
g, otherwise negligently or improperly maintained their property.
17, As a direct and proximate result of the negligence of the Defendants,
Plaintiff, ANNA MARIE SPENCE, incurs the following:
a) sllffered and/or suffers and/or may continue to suffer shock and Injury to
the nerves and nervous system;
".
Exhibit B
.>.,'
v.
TIMOTHY SPENCE and
JILL SPENCE,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
NO. 98.1741
JURY TRIAL DEMANDED
ANNA MARIE SPENCE,
Plaintiff
PLAINI~ANSWERS IQ DEFENDANTS' INTERROGATORIES
PUfsuant to Rule 4006 and 4009 of the Pennsylvania Rules of Civil
Procedufe, Plaintiff, Anna Marie Spence fesponds as follows to the
Interrogatofles of the Defendant in the above-captioned action.
DEFINITIONS.AND GENERAL OBJECTIONS
1. Plaintiffs have based these fesponses on the assumption that
Defendant, in propounding thelf discovery fequ63ts, did not intend to seek
Infofmation pfotected against discovery by the attorney - client privilege; the
attorney work product doctflne; Of Information that contained the Impfesslons,
conclusions, opinions, legal fesearch, or theories of attorneys' for Plaintiffs. To
the extent that Defendant's requests ale intended to elicit such Information,
Plaintiffs object and assert the pfivileges and pfotection provided by such
doctfines to the fullest extent permitted by law.
2. Plaintiffs have based these fesponses on the assumption that the
Defendant, In propounding their discovery requests, do not Intend to seek
Infofmatlon which Is ifrelevant to this litigation and Sllbject mattef and/or time
period, and do not seek infofmation not reasonably calculated to lead to the
discovery of admissible evidence. To the extent that Defendant's fequests are
intended to elicit such infofmation, Plaintiffs objects to such fequests.
3. Plaintiffs have based answefS on the assumption that Defendant, in
pfopounding their discovery fequest, did not intend to seek infofmation, the
disclosufe of which would violate fights of pfivacy and judicially fecognize
protections and pflvileges; infofmation which would fesult in disclosUfe of
confidential, tfade secfels, pfoprietary infofmation, discussions or conduct
engaged In for settlement pUfposes; or infofmatlon subject to Court Order
restficting dissemination. To the extent that Defendant's fequests afe intended
to elicit such infofmation, Plaintiffs object and assert the foregoing pflvlleges and
protections to the fullest extent pfovided by law.
4, Plaintiffs further object to requests seeking Infofmation that Is
Irrelevant, vverly broad, unduly burdensome and not calculated to lead to the
discovery of admissible evidence,
5. Plaintiffs have responded In accofdance with the Pennsylvania
Rules of Civil Procedufe and Defendant objects to the Defendant's definitions, to
the extent the definitions expand the requirements of the Pennsylvania Rules of
Civil Procedure.
6. Plaintiffs object to definitions that afe vague, ambiguous and/of
ovefly bfoad. Plaintiffs will answef these Inteffogatorles based only upon
documentation possessed by them.
7. Plaintiffs object to definitions inclUding the wOfds "any and all" In
that It Is ovefly bfoad, vague and ambiguous, and unreasonably bUfdensome
and oppfessive, See also genefal objection numbef 4.
8. Plaintiffs objects to definitions using the wOfd "identify" In that the
wOfd "Identify" is ovefly broad, vague and ambiguous and unreasonably
burdensome and oppfesslve. See also genefal objection numbef 4. In fesponse
to Defendant's Interrogatofles, Plaintiffs will intefpret the tefm "identify" to mean:
a, In feference to a natural pefson, to cite the name and title
and/of last known addfess of that natural pefson;
b, In fefefence to corporations and noncofporate business
entities to cite the name and last known addfess of such
entities;
c, In fsfefence to documents, to seek production of a
document Of bfief descfiption of the natufe of said
document, its date, its authof and its feciplent; and
d. In fefefence to any othef things, to site a brief descfiption of
said thing.
9. Plaintiffs object to all Interfogatofies which fequife them to explain
fully the factual and legal basis for any contentions and actions Of to state each
and every basis for hef contentions and actions Of otherwise set forth all
Infofmation and documents relating to certain of hef activities. Plaintiffs object to
all such Interrogatories on the gfounds that they afe ovefly broad, vague and
ambiguous, are not reasonably calculated to lead to the discovefY of admissible
evidence, that they afe premature since discovery In this mattef has yet to be
completed, and are unreasonably bUfdensome and oppfesslve. Plaintiffs fUliher
object to all such Inteffogatofles on the grounds that they would fequife the
4, A. PCI' I'mugl'aph 6 and /6 ofPlairllll't's Complaint, railings WCI'C missing Oil both
sidcs of' Dcf'clldullt's rump hcading IOWUl'd the Islund side :1f' DetcndUIlI'li pl'Opcl'ly,
11, About 2ycul's.
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nllVCYOU eVeI' suffered fl'01I1 01' l'cccive\llrcallllcnt for any ofthc following:
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A. Oollblc vision;
B, Blurred vision;
C, Instability of balance;
, D. Irlfectionor disease of the inner ear;
E. Vertigo;
F.
Dizzy spells;
G. Fainting spells;
H.
Epilepsy;
I.
Apoplexy;
-10-
5, A. NO,
n, NO.
e, NO,
D, NO,
E. NO,
r, NO.
o. NO,
1-1, NO.
t NO,
'I
.I. /'arnlysis:
I
I High blood pt'OSSlII'O:
'I K.
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i I. Diube(es: '
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M. MlIsch~ disorder; 01'
N. Bruin ornerYOIlS disorder.
-11-
5. (Continllod)
J. NO.
K, NO,
L. NO,
M, NO,
N. NO,
1[.
II
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II
II
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I: 9.
"
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~tllto uny proolpilullonwhioh foil within 72 hOllrs prior 10 thl.s incident.
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ullcgod incidont?
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Hol\' onen do you tl'lIvel 011 (he 10clltiol1 of thc ulleged OCClIl'l'eI1Cc?'
-30.
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I 26,. . Iflho linSWor 10 lho proocding Inlerrognlory is inlhe nfllnl1alivc, ploase stale:
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II A. The namo of the physician recommending lhe fUllire earo, trealmcnt or
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hospitalization; and
a, The naturc of the recotnmonded 01' contomplated futllro carc and treatmont.
-36.
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SpO\\ce would I'equil'e hed I'os\ 01' \\Ppl'\l1\\m1l1clY (, mo\\\hs.
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28, /n PllIinllfrs Complullll, PllIlntilT ulleges 10 huve received IInd sllffel'ed physical
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dlll1lages, Injurlos, ullmcnts and pains liS III'OSUIt oflhe :llIogod OCCUll'enCC, As 10 eueh such injury,
plellse slllle:
A. Describe llny such physlelll dal1lllgos~ injuries, ullmen/s 01' PulOS;
B. Stute the purls of your body so afflietod;
C, Indicale Ihe severity of suoh dUIHages, Injuries, i\ilmeolsol' pulos;
D, Indioule how loog ench Iusled: and,
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Docs the Plainti ff claim damages due to any loss of earnings as a result of the alleged
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occurrence? I f ~o, please stale:
A, The dutes inclusive when the Plalnliffwas unable tl;llVork due to the injuries
resulting from the alleged occurrence; and
B. The total amount of earnings the Plaintiff lost as a result of the ulleged
occurrence.
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ANNA MARIE SPENCE,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 98-1741 CIVIL TERM
TIMOTHY and JILL SPENCE,
Defendants
: CIVIL ACTION - JURY TRIAL DEMANDED
;MOTION FOR CON-1'INUANCI;
NOW COMES the Plaintiff Anna Marie Spence, by and through her
attorneys', Nicholas & Foreman, P,C., and respectfully presents the following
Motion For Continuance:
I. On or about November 28, 2000, Plaintiff filed a Motion to Quash and
an Objection to Subpoenas.
2. On or about December 4, 2000, the Court ordered brief arguments
scheduled for Wednesday, January 10, 2001, at 2:30 p.m, on
Plaintiff's motions to quash and objections to subpoenas, See
Exhibit "A", attached hereto.
3, Plaintiff's oounsel is unavailable the week of January 10, 2001, due to
a previously scheduled oommitment.
4, On or about December 12, 2000, Plaintiff's counsel l'equested
Defendant's counsel conourrence in a continuance of the January 10,
2001, argument and Defendant's oounsel consented to the
oontinuanoe.
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ANNA MARIE SPENCE,
Pluinliff
IN TilE COURT OF COMMON PLEAS OF
CIIMBERLAND COUNTY, PENNSYL VAN/A
VS,
98./741 CIVIL
CIVIL ACTION o. LA W
TIMOTHY une/ JILL SPENCE,
Defene/unt
IN RE: MOTION TO OUASH AND OBJECT TO SU.BPQENAfi
ORDER
LI'
AND NOW, this --, day of Dcccmbcl', 2000, a brief mgumcnl on the plaintiffs
',,--
motion to quash ane/ objecl to subpoenas is sct for Wedne!lclay, Januul'Y 10,2001, at 2:30p.m, in
Cour(room Number 4, Cumberlancl County Courthouse, Carlisle, PA.
BY THE COURT,
'/l~
Kevi A. Hess, .I,
Yvonne Husk, Esquire
For the Pluintiff
Amy Coryer, Esquire
For the Defendants
:rlm
POST & SCHELL, P,C,
ArrORIIEYS AT LAw
240 O"ANDVIEW AVENUE
CAMP HIl.L, PA I 70 I I
('1! 7/ /,11 'J 01'0
FA('!II1,IIU!;. (i' I 7l i'.),., 'WtH'i
leoo JOliN r, t<Emu:OY nl,VD.
PHILAClf!LI'IHIA, F',f., IQIOJ.14ESo
121!1I 1:101'1000
fA)t '216/ D07, 1444
MAMa PLAcr. ' lHlrrf.:. J
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ALLI::mCWtl, riA I ij I 0.:1
(6 (01 4J:l'q: QJ
f'A,l( i61014J~'lg1a
laB'! WIl.UAM,Pt,NNWAY
'-'0, Box IOIl4i1
LANCAStER. PA 17606'OCl4Q
(JIll i!';II"UI.1l!
rAJ(, '7171 UII' I eOQ
lHe; BEm<mtlrl( . bUill: 208
GO I WASHINOTml 9fftl::tT
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November 7, 2000
SHA,"'RY Sr.MAN9
('l17) G12'6011
!ll!I"'AH~@f'O~HI~HC~L, eolol
Yvonne M, Husic, Esquire
Nicholas & Foremun
4409 North Front Street
Harrisburg, P A 17 I 10
RE: Spenee v, Spence
Dear Ms, Busic:
Enclosed please find a notice of intent 10 serve subpoenas to produce documents und things
tor discovery pursuant to Rule 4009.21 in connection with the ubove-referenced maller, If I do not
receive uny objections to the subpoenas within 20 days from the date of this leller, I will forwurd
the subpoenas to the named providers,
In thut regard, would you please provide us with the address for the Century 2 I Realtor office
where Mrs, Spence worked, In uddition, we need an address for Bear's Choice,
Thank you for your nnticipUled Cooperation in this matter, If you have any questions, please
feel free to contuct Amy Coryer or myself.
Very truly yours,
\ '/, ~// ^ 'J
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Sharry Semuns
Paralegal
SDSlmys
Enolosure
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EXHIBIT
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9583 . 00.330
5576 ",...llED FRO'" ZIP CODE 17011 I
NO POST AGE ST AMP NECESSARY;
POSTAGE HAS BEEN PREPAID BY:
POST & SCHELL, P.C,
240 GRANDVIEW AVENUE
SUITE 100
CAMP HILL,PA 17011
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BY', !\MY L, cORyeR, \\SQUIRE
\.D, 11'1>2718
240 GR!\NDVIEW !\ VENUE
Ct\MP HILI" pi\ 1701 I
~7l7) 731.1970
.--------
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!\NNt\ M!\R\E SPENCE
.'.'0
t\'t'fORNEYS fOR DEFEND!\NtS
TIMO'rHY &. .IILL SPENCE
plaintiff,
IN -nIE CO\JRT OF COMMON PLEt\S OF
PENNSYLV ANli\ CUMBERLAND
COUNTY
('\V\L I,CHON NO,: 98.\741
JURY TRIM. DEMANDED
,/,
TIMOTIW SPENCE and JILL SPENCE
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AND NOW _, 0"''''.'''' "'~,,'"' "," Jit' s,"'''' b, .'" 'h''''" 'h'" .-"., ."
. Soh,II, '" ''"' I.. CO"'" ""I"'''' . ,,,' ".poo" "I" ,""" ,hi. Co," ,,' '" ",d" Q""h\ 0' "",
Obi""o, . 'ubi"""" ""od b, ..', .iI" ",,,,,,, ,,,I, '" ",,",n ,.,"0', ,,,, th' '0110' "g'
, , 00 " ","u' N",m"'" ", 2\1110, ",i"" f1" ",u"", ""iI'" , N"'" "I ,..~, \0 "'"
',b"""" " .""',,, 0""'''''''' "it 1~'O" 10' D"""'" ,0'''''''' " R" I, - ,21, ,"u, ",it
""", "", " ,ho ",,,,,,,,,,I"" ",d "",,m,"" '" ",bI""'" "" ,'~, h,it h"'\O "'"
incOf\'loratcd herein by refel'ence as Exhibit" A",
2, M .,n 0"'"'''' '0 ,hi' ",", ''', ",io" \\ "'. "",,,,,,,it "" ",,'''''''' 01 ,,",ro.
I" D'"'' C\W'''' " ,_" ","V"," 0 .."i'" iff, '(b< .,bpo<"" """"" "",,, 01 ,,"oro' I,,,,"
BelIr's Choice as folloWS',
I, Tin1CoHsic1 Mna spence
2, ,II ""I" 0"" .10'" 01 M'" \ .i< 1 ""d' '''"''
3, All Income Tax relul'l1s orBcar's Choice
3, Defendnnt is not clenr whnl "TimeCJf' Allnn Spence" menns and, must, therefore,
object,
4, Dcfcndnnt strongly objeels 10 Plaintirfobtaining copies of "All Income Tux returns
of Bcar's Choice" as Bear's Choice is not a party to lhis lawsuil, nor is anylhing regarding ils profits,
loss, or income rclevant to Ihis lawsuit. Such information is beyond the scopc of c1iscovel)' for
purposes of this nction, is ovcrly bl'llud, cumbersome and intrusive upon a non-purty, is irl'elevnnt
to the subject malter of the chlims al issue, and is not calculated 10 lead to discoverable evidence,
Therefore, it is not in the scope of permitted discovery,
5, Defendnnt does not objecl to copies of "All eopies of pay stubs of Anne [sic] Marie
Spence",
WHEREFORE, Defendants, Timothy and Jill Spence, respectfully request Ihat Ihis Court
enter an order Quashing and Limiting Plainti frs subpoena to the evidence and documents pertnining
10 this lawsuit.
Respectfully submitted,
POST & SCHELL
Date: ~ /7/00
By: (111t'1 a~o:t.
Amy ,Corye, squire
ExhlbllA
3. All Incomc Tax returns of Bear's Choice
object,
3, Defendunt is not clear What "Timeof Allnu Spence" means and, /I1ust. therefore,
4, Defendunt Slrongly Ohjects to Pluinli ff obluining copies of "All Income Tux relurns
of Bear's Choice" as BOlll"s Choice is no! u pnrly 10 this lawsuit,nor is anYlhing regarding its profits,
loss, or income relevant (0 this lawsuit. Such infollllation is heyond the seope of discowry for
purposes of this aelion, is overly broad, cumbersome and intl'Usive upon a non-party, is irrelevunt
10 the subjeclmalter of the claims at issue, and is not calculated to leud 10 discoverable evidence.
Therefore, it is not in the scopc ofpermilted discovery,
5. Defendant dOl~s not ohject to copies of "All eopies of pay stubs of Anne [sic] Marie
Spence".
WHEREFORE, Defendants, Ti/l1othy and Jill Spence, respectfully requesllhut this Court
enter an order Quashing and Limiting Plaintiffs subpoena 10 the evidence and doeu/l1ents pertaining
10 this lawsuit.
Respectfully suhmilled,
POST & SCHELL
Date: I 8./7/,,(1
By: ()~1I1 t Ii c?:!j"-'
Amy . Corye, squire
Exhibit A
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ANNA MARm srl<:NCI<:,
: IN nn: COURT OF COMMON PLEAS
:C1JMHERLAND COUNTY, PENNSYLVANIA
Ph"ntln'
v.
: NO. 9'y.rl'll &uJ 'TH-
TIMOTHY and JILL SPENCE,
Dllfendants
: CIVIL ACTION
WRIT OF SUMMONS
1'0: Timothy Spen~e
20 Ellendale Boulevard
Dauphin, PA 17018
You lire notified thRt the abov~.namcd Plaintiff has ~otnmen~ed an adion against
you.
YOU SHOUl,D TAKE THIS I'APER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HEI,P.
Cumberland County Lawyer Referral Service
Cumberland County Courthouse
I Courthouse Square
Carlisle, Pennsylvania 17013
(717) 140-6100
Datel 1h~ ,80 / q 'if'
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Deputy
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l'lu\nli\"l'
IN TilE coUlli' ()I,' COMMON I'\.l:,/\S .
CU\\.\I\\:.\t\.l\Nlll'O\ IN 1''\ . I'ENNS'\I.\I I\NII\
NO, 9\\.1741 CI\lI\. '\'EltM
~,
CI\lII, !\CTION . ,\UR'\ TRI/\I. DEM/\N\)ED
TIMOTII'l \\\\LI JII ,I. \-\I'I\NCE,
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CERTIF'C~TE OJ SElW'C~
I, y",do M H"", .."ire, do ",reby do",,' ihot '" IhI.,lh. Jql"l d., 0'
"""m"" "",' "N,d . 'NO ",d "".ct "" 01 ih' .",,,.ooPllOO",, com~'.' 00
'do'''' F M'''hY, .."ire, by "mliog ih' "m. by '"" ,'do' m.ll, "".go ,,,p'.
as follows:
~NN~ M~RIE SPENCE,
PlaintIff
1/,
TIMOTHY and JILL SPENCE,
Defendrnts
IN THE COURT OF COMMON PLE~S
CUMBERLAND COUNTY, PENNSYLV~NI~
1'10,98-1741 ClVIL TERM
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ClVIl ACTION' JURY TRI~L DEM~NDEO
Joseph F, Murphy, EsquIre
post & Schell, p, C,
240 Grandl/leW AI/enue
Camp Hili, p~ 17011
Respectfully submitted,
NICHOLAS ~ FOREMAN /1,
By:' !lf1' J.. V'{ '\~'}t~
~/.J nne M, Hus\c, ESQUlrl;!
,4 9 NOlth Front Street
rrlsburg, P~ 17110
(717) 236-9391
Pa, supreme Court 10 #74444
Attorneys for Plaintiff
. ANN MARIE SPENCE
Plaintiff
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
v,
:CIVIL ACTION NO.: 98-1741
TIMOTHY SPENCE and
.JILL SPENCE
Defendants.
:JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO DEFENDANTS'
FIRST REQUEST FOR ADMISSIONS
Plaintiff: ANNA MARIE SPENCE, by and through her attorneys, Nicholas &
Foreman, PC, by Yvonne M. Husic, Esquire provide the following responses to
Defendant's First Request for Admissions, and avers:
I. Admitted.
2, Admitted.
3, Admitted,
4, Admitted.
5, Admitted.
6. Admitted.
7, Admitted,
8, Admitted in part. Denied in part. It is admitted only that Plaintiff
occasionally walked her dog across the bridge. It is strictly denied that
Plaintiff regularly walkcd her dog ~cross thc bridgc, Prior to thc accident on
March 31, 19%, Plaintiff had not walkcd over thc bridge since September-
October 1995.
9, Admitted. Being that thc propcrty is along the Conodiguint Crcek, geese IInd
ducks are everywherc, including in the Plaintiffs hack yard.
YtmIEICATIQ.N
I, Yvonne M. Busic, Esquire, ut!orney for l'luintl fl: verify lhut the stlltements
Illllde in the foregt,ing document urc true und correct to the best of illY knowledge, 1
und..rqtand lhut fulse stntllOlents herein mil Illude su~iect to pcnaltles of III Pa. C,S,
Section 4904, reluting to unsworn talslfielltion to lluthorities.
Dated: ~J'lj (\1)
'1
.t~(fYlj\{ll v-{
Yvonne M. Husie
J/Ll.iJ'(~<--,_,>
isqulre -
5, The hridgc dcscrihcd in Pluintilrs Interrogatorills, Requcst for Produclion of
Doculllents and First Rcquest for Admissions ("hrldge") WIIS in the same condition in 1992 when
Plaintiffheglln living at the prcmiscs as on March J I, 11)<)("
6. Alina Marie Spence WIIS IIIVare that the hridge missing hundrails on one side
heginning in 11)92 until the time of the allegcd accident on Murch J I, 19'>6,
7. Annu Mude Spence owned u dog which ulso resided ut the premiscs prior to
Murch 31, 1996,
8, Annu Murie Spence would walk her dog ueross the hridgll prior to March 31, t 996
ut the premises,
9, Prior to March 31, 1996, there werll ducks and wild geese ut the premises.
10. Prior to Mureh 31, 1996, Annu Marie Spenee would IVulk ueross the bridge to feed
the ducks and geese at the premises.
II. Annu Marie Spence mude statements to her son, Timothy Spllnee, prior to Mareh 31,
t 996 regarding the missing handrails on the bridge,
t 2, Annu Marie Spence made these stutements to her son, Dcfendant Timothy Spence,
prior to Murch J I, 1996 regal'ding these missing hundmils beeuuse she believed thut the eondltion
lI:;, dangerous,
13. Anna Marie Spcnee I'olunturi Iy used thc bridge prior to Murch 31. 1996 with
knowledge that the handrails were missing,
These Request for Admissions ure made pursuant to the PA Rules ofeivil Procedure 4014,
All of the matters requested shall he deemed udmilted unless Pluintiffserl'es upon the undersigned
counsel within thirty (30) days atler service of the reqnest either specific denials of the matters upon
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10, Dcfendants me aware orthe truth of said daloll,
II, Defendants arc aware that this statement is truc and corl'Cct.
12. [)efL'I1dllnts mc awarc that this statcmcnt is truc and corrcct.
13. De{endants arc aWllre that this statement is true and cormct.
14. Defendants arc aware of the physician's report of the lhleture,
15, No response is required,
16 (a-g), Legal conclusions which rcquire no answer. Where an answer is deemed to
be required, after reasonable investigation, Answllring Defendants lack information or knowledge
sufficient to forma belief as to the truth of the averments contained in these paragraphs and same
arc therefore denied, strict proof being demanded at trial, if relevant. To the extent that ,Ulanswer
is required, the averments contained in this paragraph and subparagraphs arc denied,
17 (a-I).
It is specifically denied that Defcndants were negligent. After reasonable
investigation, answering Defendants arc without sufficient knowledge or belief as to the truth of the
remaining averments wnlained in this paragraph and subparagraphs; thel'efore. the allegations are
denied, strict proof being demanded at trial, if relevant.
WHEREFORE, Answering Defendants respectfully request that this Court dismiss Plaintiffs
Complaint in its entirety.
NKW-MATTRR
Thc Answering Defendant hereby mises the following New Maller pursuant to Pa. R.C,P.
1026, 1030 and 1032,
18, The Plaintiff may have failed to state a cause of action upon which relief can be
granted,
-2.
Y.E1illlCA1lON
I, Timolhy ,S/J(!IIC(!, do hereby swear and arnrm that thc facts and matters set forth in the foregoing
Answer with New Matter of Defendants, Timothy and Jill Sponee, to Plaintiff's' Complaint arc true and correct
to the best of my knowledge, information, and b~lief, The undersigned understands that the statements made
therein are made subject to thc penalties of 18 Pa, C.S. *4904 relating to unsworn falsification to authorities.
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I. Please Statl):
A. Your full name;
B, Your date and place ofbirth;
and
C. Your present home address and prevIOUS addresses for the past ten (10) years;
H. Your Social Security number, '
~
C, Slllle whelher or /lot you hllve ever observed 01' othelwlse become lIware of
the alleged defeotlve cQ/ldition prior to your !llIeged oocurronce.
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18, Huve YOIl ever Wol'll or needed glasses? Il'so, please slutll whether YOll were wearing
glasses al Ihe Iimeoflhe accident und Il'not, the reason Ihut you were not wearing them, .
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.28~
3. All photogrllphs tllken or diagrums prepared of the Scene of the accident/Incident
or any instrumenllllily involved lherein,
.
-4-
5. All expert opinions, repol1s, Sllnunaries or other writings in your custody or
control of your attorney or insurer, which relatc to the subjecl mailer of this litiglltion.
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SUMMARY JUDGMENT
The standard for summary judgment in Pennsylvania Is well established.
Summary judgment is granted properly when the pleadings, depositions, answers
to Interrogatories, and admissions on file, together with any affidavits, show that
there is no genuine issue as to any material fact and that the moving party Is
entilled to a judgment as a matter of law. Pa. RoC.P. 1035(b). Summary judgment
is appropriate only In those cases which are clear and free from doubt.
McConnauQhey v. Bldq. Components, Inc., 536 Pa. 95, 98,637 A,2d 133'1,1333
(1994) citing Musser v. Vilsmeir Auction Co, Inc., 522 Pa. 367, 370,562 A.2d 279,
280 (1989). The record must be viewed In the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine Issue of material fact
must be resolved against the moving party. l!;L citing tylarks v. Tasman, 527 Pa.
132,135,589 A.2d 205, 206 (1991).
ASSUMPTION OF RISK
There Is no question that the doctrine of assumption of risk is often
misapplied and problematic In many judicial proceedings. The doctrine as a
separate affirmative defense has only narrowly survived abolishment by our
Supreme Court. Bullman v. Giuntoli, 761 A.2d 566 (Pa. Super 2000) citing Howell
v. ClYde, 533 Pa. 151,620 A.2d 1107 (1993); Rutter Y. N.E. Beayer County Sch.
DI~L 496 Pa. 590, 437 A.2d 1198 (1981). Thus, as the doctrine has not been
formally abolished by the Supreme Court, it still has some life in appropriate
circumstances.
2
..
Elements of the defense for assumption of risk are that the plaintiff fUlly
understands the specific risk and voluntarily chooses to encounter it. Fish v.
Gosnell, 316 Pa. Super 565, 574, 463 A.2d 1042,1047 (1983). Stated another
way, an apprehension of a danger, followed by a conscious decision to tempt fate
and accept what fate may bring, which then occasions injury, is assumption of the
risk, and a complete bar to recovery. Bullman, 761 A.2d at 570.
In Handschuh v. Albert Dev" 393 Pa. Super. 444, 574 A.2d 693 (1990), the
court eloquently stated: The essence of assumption of the risk defense is not an
evaluation of fault or negligence in encountering a danger but an acknowledgement
that the plaintiff changed his position. Before suffering injury "he Intelllgentiy
acquiesced in a known danger and abandoned his right to complain, but afterwards
seeks to assert the claim he had waived." l!;L quoting Fist!, 463 A.2d at 1049.
Similarly stated, a plaintiff wili not be precluded from recovering except
where it is beyond question that he voluntarily and knowingly proceeded in the face
of an obvious and dangerous condition and thereby must be viewed as relieving
the defendant of responsibility for injury. Struble v. Vallev Foroe Militarv Acad., 445
Pa,Super. 224, 229, 665 A.2d 4, 6 (1995) citing Lonq v. Norriton Hvdraullcs. Inc.,
443 Pa. Super. 532, 662 A.2d 1089 (1995). Based upon the above principle, a
plaintiff will not be prevented recovery, unless the danger was known and fully
appreciated. Bullman, 761 A.2d at 570.
To grant summary judgment on the basis of assumption of risk, It first must
be concluded, as a matter of law, that the party consciously appreciated the risk
3
that attended a certain endeavor, assumed the risk of Injury by engaging in the
endeavor dosplte the appreciation of the risk involved, and the injury sustained
was, In fact, the same risk of injury that was appreciated and assumed. Bullman,
761 A.2d at 570,
With the forgoing as a backdrop, the Court undertakes an analysis of the
facts of the present case. The bridge where the plaintiff fell is a cement bridge that
Is twenty-five (25) to thirty (30) feet long and five (5) to six (6) feet wide. It has an
incline as one enters the bridge, a portion that runs parallel to the ground, and then
a decline. At the time of the accident, there were iron handrails along the sides of
the bridge, except in the area of the decline.
The plaintiff walked onto the bridge, traversed the incline and the straight
portion of the bridge, and then stopped at the portion of the bride where the decline
starts In order to feed geese and ducks, She threw some food out to the geese
and ducks and then turned, at which time she fell off the bridge.
There is no doubt that prior to falling off the bridge, the plaintiff had
subjective knowledge and conscious awareness of the risk of falling off the bridge,
yet voluntarily chose to face the risk. The plaintiff testified in her deposition that
she thought the bridge's missing handrails "were dangerous because maybe
someone might fall off the brldge.,,1 The plaintiff also acknowledged that she had
conversations with one of the defendants regarding the dangerous condition of the
missing handrails. The danger was open and obvious to the plaintiff, as illustrated
4
by her deposition that she was well aware of the peril of crossing the bridge. As
such, It is clear that the plaintiff fully understood the specific risk and consciously
appreciated the possibility of failing off the bridge.
In addition to being fully aware of the possibility of failing off the bridge, the
plaintiff voluntarily chose to traverse the bridge. The plaintiff testified In her
deposition that It was not absolutely necessary for her to cross the bridge to exit the
property.2 Additionally, the plaintiff voluntarily traversed the bridge to walk her dog
and feed the geese and ducks. Therefore, not only did the plaintiff consciously
appreciate the specific risk that she may naturally lose her balance while crossing
the bridge, but also she also voluntarily chose to traverse the bridge.
The facts of record indicate that the plaintiff "assumed the risk" of suffering
the injury she actually sustained. The plaintiff's deposition illustrated that she
thought someone might fall off the bridge. Thus, it is clear that the plaintiff
appreciated the possibility of falling off the bridge and sLlstalning an Injury as a
result of a fall.
CONCLUSION
The plaintiff in this case has not and cannot adduce any evidence to
establish liability on the part of the defendants. There Is no genuine issue of
material fact that the defendants had any duty to protect the plaintiff, as reasonable
minds could not differ In concluding that the plaintiff voluntarily and with the
'~Copy of Deposition transcript of Plalnllff. aURtcht to Defendants' Motion as Exhibit "0" page 16.
2 See kL at 16-17.
5