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the Court amending the caption of the case to reflect the
Plaintiff's death.
This will be a jury trial in which each mide
will have four peremptory challenges, for a total of eight,
The estimated duration of trial is two days,
To t.he uxtent that any dt"position telltimony
is to be read or. shown to the jur.y and contains objections
requir.ing rulings by the Court, counsel ar.e direct.ed to
furnish a copy of the t.ranscript. of the deposition in
question to the Court at least five days prior to the
commencement of the trial. term at which the case is tried,
with the areas of objection being pursued highlighted and
with bri ef memoranda in support of their respect i ve
posit ions,
By separate Order. of Court of even date
herewith, Plaintiff's motion for. a continuance of trial
will be granted with the stipulation that, in the event
that Plaintiff has not scheduled a deposition of
Plaintiff's treating physician within 30 days of today's
date, the case will be dismissed upon motion of Defendant,
and with the further stipulation that the continuance will
be charged to the plaintiff for purposes of delay damages.
Since Judge Oler is a member of the
Cumberland County Historical Society, which is the
Defendant in this case, the case should not be assigned to
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COSTOPOlJLO~1 FOS....:R & FmLDS
ATroRNI~YS AT LAW .'
.
Rll MARKIlTSTRllET
1',0, BOX 222
I.HMOYNE, PENNSYLVANIA 1704J.0222
restaurant when he tripped in a hole in the macadam which had been
filled with rainwater and fell to the ground, thereby causing
severe injuries to his person, hereinafter more tully described.
5. As the owner, operator, possessor and/or controller of the
parking l.ot, Defendant, Cwnber.land County Historical Society, owed
members of the public, including Plaintiff, Herman W, Gilliam, Jr.,
who were walking in the parking lot, the duty to exercise
reasonable care to repair. and eliminate any dangers and defects on
the pr.emises, including but not limited to potholes, cracks, uneven
pavement and similar dangers and defects,
6, Defendant, Cumberland County Historical Society, knew or
should have known of the dangers and defects on the premises it
owned, operated, possessed and/or contr.olled, including but not
limited to potholes, cr.acks, uneven pavement and similar dangers
and defects.
7. Defendant, Cumberland County Historical Society, breached
its duty to members of the general public, including Plaintiff,
Herman W. Gilliam, Jr., and acted negligently, carelessly and/or
recklessly, in that it:
a) failed to under.take whatever measures necessary
to repair the dangers and defects on the aforesaid
parking lot, specifically, to repair the potholes,
cracks, uneven pavement and similar dangers and defects
on the premises;
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b) f,Hled to properly maintain the aforesaid parking
lot and, specifically, to repail: and el.ilT1inate the
dangers and defects on the aforesaid parking lot,
including repairing and elimi.nat1.ng the pothol.es, cracks,
uneven pavement and similar dangers and defects on the
premises;
c) fail.ed to adequately inspect the aforesaid
parking lot and ascertain whether there existed any
dangers and defects on the premises, including the
existence of potholes, cracks, uneven pavement and
similar dangers and defects on the pr.emises; and
d) failed to warn members of the general public,
including Plaintiff/of the dangers and defects on the
parking lot, including the existence of potholes, cr.acks /
uneven pavement and similar dangers and defects,
8. At the aforesaid time and place, the trip, fall and
injuries resulting therefrom wer.e caused by the negligent, careless
and/or reckless actions of Defendant, Cumberland County HistorIcal
Society, as set forth in more detail in paragraph 7 above.
9. As a direct and proximate r.esult of the breach of its duty
and the negligent, careless and/or reckless acts of the Defendant,
'Cumberland County Historical Society, the Plaint if f / Herman W.
Gilliam, Jr" has suffer.ed injuries which were and are severe,
painful, ser.ious and permanent lncluding, but not limited to:
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(a) a fractured right hip; and
(bl contusions and abrasions.
10. As a further direct and proximate result of the breach of
its duty and the negligent, careless and/or reckless acts of the
Defendant, Cumberland County Historical Society, the Plaintiff,
Herm<ln W. G1 11 iam, Jr., has been obligated to r.ecei ve and undergo
medical attention, care and expenses for the injuries he has
suffered and may be obligated to continue to incur such expenses
for an indefinite time in the future.
11. As a further direct and proximate result of the breach of
its duty and the negligent, careless and/or reckless acts of the
Defendant, Cumberland County Historical Society, the Plaintiff,
Her.man W. Gilliam, Jr.., has suffered a loss of earnings and/or
impairment of his earning capacity and power.
12. As a further direct and proximate result of the breach of
its duty and the negligent, careless and/or. reckless acts of the
Defendant, Cumberland County Historical Society, the Plaintiff,
Herman W, Gilliam, Jr., has suffered medically determinable
physical impairments which have prevented him from performing all
of the normal acts and duties which constitute his usual and
customary daily activities.
13. As a fur.ther direct and proximate result of the breach of
its duty and the negligent, careless and/or reckless acts of the
Defendant, Cumberland County Historical. Society, the Plaintiff,
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Individuals parking in said parking lot that the parking lot area was to be used only by
patrons of the Cumberland County Historical Society and all othertl would be towed at
their own expense. The remaining averments of this paragraph are denied In that after
reasonable Investigation, Defendant Is without sufficient knowledge or Information to
form a belief as to the truth of these averments.
5. The allegations set forth in this paragraph of Plaintiffs Complaint
constitute conclusions of law to which no responsive pleading is required under the
Pennsylvania Rules of Civil Procedure. To the extent that portions of this paragraph
could be construed as factual allegations, said allegations are specifically denied In that
after reasonable investigation, Defendant Is without sufficient knowledge or Information
to form a belief as to the truth of these averments. By way of further responses, at all
times material to the happening of the events set forth In Plaintiffs Complaint, the
parking lot In question was In a reasonably safe condition for use by reasonably prudent
pedestrians.
6. The allegations set forth in this paragraph of Plaintiffs Complaint
constitute conclusions of law to which no responsive pleading Is required under the
Pennsylvania Rules of Civil Procedure. To the extent that portions of this paragraph
could be construed as factual allegations, said allegations are specifically denied In that
after reasonable investigation, Defendant Is without sufficient knowledge or Information
to form a belief as to the truth of these averments. By way of further responses, at all
times material to the happening of the events set forth in Plaintiffs Complaint, the
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parking lot In question was In a reasonably safe condition for use by reasonably prudent
pedestrians.
7(a..d). Denied. It is specifically denied that Defendant, Its agents and
employees, were negligent, careless and/or reckless In any manner with respect to
Plaintiffs cause of action. The remaining allegations of these paragraphs are denied In
accordance with Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P.
1029(e).
8. Denied. It Is specifically denied that the Defendant, Its agents and
employees were negligent, careless and/or reckless In any manner with respact to
Plaintiffs cause of action. The remaining allegations of this paragraph are denied In
accordance with Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P.
1029(e).
9. Denied. It is specifically denied that Defendant, Its agents and employees
were negligent, careless and/or reckless In any manner with respect to Plaintiffs cause
of action. The remaining allegations of this paragraph are denied in accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1029(e).
Furthermore, the allegations contained in this paragraph with regard to Plaintiff's
InJuries, and the extent thereof, are denied In that after reasonable Investigation,
Defendant Is without sufficient knowledge or Information to form a belief as to the truth
of these avermonts.
10. Denied. It Is specifically denied that Defendant, its agents and employees
were negligent, careless and/or reckless In any manner with respect to Plaintiff's cause
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of action. The remaining allegations of this paragraph are denied In accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1029(e).
Furthermore, the allegations contained in this paragraph with regard to Plaintiffs
InJuries, and the extent thereof, are denied In that after reasonable Investigation,
Defendant is without sufficient knowledge or Information to form a belief as to the truth
of these averments.
11. Denied. It Is specifically denied that Defendant, Its agents and employees
were negligent, careless and/or reckless in any manner with respect to Plaintiffs cause
of actions. The remaining allegations of this paragraph are denied In accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1029(e).
Furthermore, the allegatlcns contalrled In this paragraph with regard to Plaintiffs loss of
earnings and/or Impairment of his earning capacity and power are denied in that after
reasonable Investigation, Defendant is without sufficient knowledge or Information to
form a belief as to the truth of this averment.
12. Denied. It Is specifically denied that Defendant, Its agents and employees,
were negligent, careless and/or reckless In any manner with respect to Plaintiffs cause
of action. The remaining allegations of this paragraph are denied In accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.e.P. 1029(e).
Furthermore, to the extent that this paragraph avers Plaintiff suffered medically
determinable physical impairments which have prevented him from performing all of the
normal acts and duties which constitute his usual and customary dally activities, these
4
allegations are denied In that after reasonable Investigation, Defendant Is without
sufficient knowledge or Information to form a belief as to the truth of these averments.
13. Denied. It is specifically denied that Defendant, Its agents and employees
were negligent, careless and/or reckless In any manner with respect to Plaintiffs cause
of action. The remaining allegations of this paragraph are denied in accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1029(e).
Furthermore, to the extent that this paragraph alleges Plaintiff experienced severe pain
and suffering, mental anguish and humiliation, and In the future may continue to so
experience, these allegations are denied In that after reasonable Investigation,
Defendant is without sufficient knowledge or Information to form a belief as to the truth
of these averments.
14. Denied. It is specifically denied that Defendant, Its agents and employees
were negligent, careless and/or reckless in any manner with respect to Plaintiffs cause
of action. The remaining allegations of this paragraph are denied In accordance with
Rule 1029(e) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1029(e).
Furthermore, to the extent that this Paragraph alleges Plaintiff suffered a loss of life's
pleasures and In the future will continue to suffer a Icss of life's pleasures, this averment
Is denied In that after reasonable Investigation, Defendant is without sufficient
knowledge or Information to form a belief as to the truth these averments.
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WHEREFORE, Defendant demands Judgment In Its favor, together with all
applloable Court costs.
NEW MA. TTER
15. Defendant Incorporates as fully set forth herein the averments and denials
contained In Paragraphs 1 through 14 of Defendant's Answer and New Matter.
16. Liability on the part of Defendant, Cumberland County Historical Society,
is speolfically denied.
17. Plaintiffs Complaint fails to state a claim against Defendant, Cumberland
County Historical Society.
18. Plaintiff may have been comparatively negligent and/or assumed the risk
of his injury.
19. No dangerous condition existed at or about the location of Plaintiffs fall.
20. If a dangerous condition did exist, which is denied as aforesaid, then
Defendant did not have reasonable notice of said condition.
21. No act or omission on the part of Answer Defendant caused Plaintiffs
alleged Injuries and harm.
22. Defendant pleads, as a credit to any recovery, entitlement to same, whloh
Is specifically denied as aforesaid, any medical payments advanced to Plaintiff.
23. Cumberland County Historical Society had no duty with respect to Plaintiff.
24. This action is barred by the applicable statute of limitations.
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Thomas, Thomas & Hafer, LLP
by
CeRTIFICA Te OF seRVIce
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CostOPoUlos, Foster & Fields
831 Market Street
POB 222
Lemoyne, PA 17043
Date: s: ?7~fr'
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./ n M. POPI/oc , 0 No. 72671
/ 305 N. Front Street
"" POB 999
HarriSburg, PA 17108-0999
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24, This averment sets forth a legal conclusion requiring no
.respons8. 'ro the
25. Denied.
26. Denied.
27. Denied.
28. Denied.
extent a response is required, sama is denied.
WHEREFORE, Plaintiff, Herman W. Gilliam, Jr., demands jUdgment
against Defendant, Cumberland County Historical Society, in an
amount in excess of the compulsory arbitration limits plus costs
and interest as provided by law.
RESPECTFULLY SUBMITTED:
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Charles P. Mackin, Esquire
COSTOPOULOS, FOSTER & FIELDS
831 Market Street/p.o. Box 222
Lemoyne, PA 17043
Phone: (71 7) 761-2121
ATTORNEY FOR PLAINTIFF
DATED: June 19, 1998.
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6. On May 21,1998, Cumberland County Historical Society served Plaintiff's
Oounsel with a set of Interrogatories and a Request for Production of Documents. A copy of
these discovery requests are attached hereto as Exhibit "A. "
7. Undersigned counsel spoke with counsel for Plaintiff, Charles P. Mackin,
Esquire, In July, 1998, requesting responses to Cumberland County Historical Society's
Interrogatories and Request for Production of Documents. Plaintiff's counsel advised that
answers would be forthcoming.
8. On August 7, 1998, counsel for CUmberland County Historical Society sent
Plaintiff's Counsel a letter memorializing the previous conversation regarding the discovery
responses and requested full and complete discovery responses be provided by Friday, August
21, 1998. A copy of this letter dated August 7, 1998, Is attached hereto as Exhibit "B."
9. To date, Plaintiff, Herman Gilliam, has not responded to Cumberland County
Historical Society's Interrogatories or Request for Production of Documents and said responses
are three months overdue.
1 O. All of the discovery sought by Cumberland County Historical Society through
their Interrogatories and Requests for Production of Documents Is relevant to the Instant action.
11. The Pennsylvania Rules of Civil Procedure provide for the liberal granting of
discovery.
12. Plaintiff, Herman Gilliam, has failed to comply with the discovery as mandated by
Rules 4005 and 4006 of the Pennsylvania Rules of Civil Procedure.
13. Plaintiff, Herman Gilliam, has had more than ample time to respond to
Cumberland County Historical Society's Request for Production of Doculnents and
Interrogatories.
14. Rule 4019 of the Pennsylvania Rules of Civil Procedure provides that upon
motion of any party, the Court can make an appropriate order when a party 'falls tll make
discovery." Pa. R.C.P. 4019(a)(vlil).
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15. Plaintiff has not objected, either formally or via letter In response to the requested
discovery, and answering all of Cumberland County Historical Society's discovery requests
would not burden or oppress the Plaintiff In any manner whatsoever.
16. Defendant, Cumberland County Historical Society, Is represented by Thomas,
Thomas & Hafer, LLP, by and through John M. Popllock, Esquire, 305 North Front Street, POB
999, Harrisburg, PA 17108-0999, telephone number (717) 255-7629.
17. Plaintiff, Herman Gilliam, Is represented by Charles P. Mackin, Esquire, of the
law firm of Costopolous, Foster & Fields, 831 Market Street, POB 222, Lemoyne, PA 17043,
telephone number (717) 761-2121.
WHEREFORE, for the foregoing reasons, Defendant, Cumberland County Historical
Society, respectfully requests that this Honorable Court enter an Order requiring Plaintiff,
Herman Gilliam, Jr. to respond to Cumberland County Historical Society's Interrogatories and
Request for Production of Documents. Defendants further request that should Plaintiff fall to
comply with the Court's Order, then Plaintiff should be subject to sanctions pursuant to Rule
4019 of the Pennsylvania Rules of Civil Procedure as this Court deems appropriate.
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THOMAS, THOMAS & HAFER, LLP
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J M. Popllock Es
ttorney I.D. # 726 1
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7629
Date: SePtembe~, 1998
Attorneys for Defendant
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Personallnformatloll. .
I. State:
(a)
(b)
(c)
(d)
(e)
(I)
(g)
(h)
(i)
Your full nllme;
Each other name, if any, which you have used or by which you have been known;
The name of your spouse at the time of the accident and thc date and place of your
marriage to such spouse;
The address of your present residence and the address of each other residence which
you have had during the past five years;
Your present occupation and the name and address of your employer;
Date of your birth;
Your Social Security number;
Your military service and positiollS held, if any; and
The schools you have attended and the degrees or certificates awarded, if any,
ANSWER:
Witnesses
s.
(a)
Identify each person whu
(I) Was a witness to the incident through sight or hearing
and/or
(2) Has knowledge of facts concerning the happening of the
incident or conditions or circwnstances at the scene of the
incident prior to, at the time of, or after the inoident.
(b) With respect to each such person identified, state that person's exact location and
activity at the time of the incident.
ANSWER:
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Report:.. of/tic/dent
7. IdentitY docwnenL~ (except reports of experts subject \0 Pu.R.C.P, No. 4003,5) which
describe the incident or the cnuse thereof.
ANSWJi;R:
Tr/al wltne.U'e.r.
10. IdentitY each person you Intend to call us a non-expert witness at the trial of this case, and
tor each person identified, stale your relationship with the witness and the substance of lhe facls to
which the witness is expected to testify.
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Expert witnesses.
11. Identify each expert you intend to call U3 a witness at the trial of this malter, and for each
expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the facts aud opinions to which the expert is
expected to testify and a summary of the grounds for each opinion.
(You may file as your answer to this interrogatory, the report of the
expert or have the interrogatory answered by your expert.)
ANSWER:
Adm/sS;0I1S.
14. If you intend to use llny admis,~ion(s) ofa party at trial,ldentify such admisslon(s).
ANSWER:
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Medical treatment.
17. If you received medicaltrealment or exmnination (including x-rays) because of injury or
disease you suffered as a result of the incident, state:
(a) The identity of each hospital at which you were treated or examined;
(b) The date on which each such treatment or examination at a hospital was rendcl'ed.
and the charge by the hospital for each;
(c) The identity of each doctor or practitioner by whom you were treated or examined;
(d) The date on which each such treatment or examination by a doctor or practitioncr
was rendered, and the charge for each; and
(e) The identity of any docmnent(s) (except reports of experts subject to Pa.R.C.P.
4003.5) regarding any medical treatment or examination, setting forth the author and
date of such document(s).
ANSWER:
If so, to what extent WIIS It obstrUcted'?
t\NSWER:
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7. All documents relating In any way 10 all Injuries, damages and losses
sustained by Plalntlff(s). This should Include, but not be limited to bills, Involoes, medical
reports, medioal records, receipts, hospital records, charts and x-rays, wage and
employment Information, and all olher documents In any way relating to Plaintiffs' alleged.
Injuries and damages.
8. Any release or other agreement between any person or entities given or In
regard to the subject Inoldent.
9. Any and all documents evidencing or pertaining to any lien by any entity
against potential recovery of damages by Plaintiff In this action.
"
17. A oopy ot 1.lny deolaratlon sheet tor any automobile Insuranoe polley
applicable to this casu under whloh you are an Insured.
18, All nameS and addresses of potential witnesses which the respondent
expects to call to testify In this case.
19. All transcripts of testlmcny, minutes of meetings or memoranda r\!lated '
subject Incident.
,
20. Allpleadlngs and/or dlsoovery In ariy other orlmlnal or civil aO,lIons relating
sUbJeot matter.
21. Any other discoverable document or thing In your file, not specifically herein
above requested.
THIS REQUEST SHOULD BE DEEMED CONTINUING, AND
ANY RESPONSE SHOULD BE SUPPLEMENTED UPON
RECEIPT OF ADDITIONAL INFORMATION.
Respectfully submitted,
Thomas, Thomas & Hafer, LLP
Date: ~2i'1f
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HERMAN W. OILLIAM, JR.
IN THE COURT OF COMMON PLEAS
Ct)MBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CUMBERLAND COUNTY
HISTORICAL SOCIETY
NO. 98.2317
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER TO DEI!'ENDANl"S MOTION TO COMPEL
AND NEW MATTER
COMES NOW, the Plaintiff, Herman W. Gilliam, Jr., by and through his attorpey,
Charles P. Mackin of Costopoulos, Foster & Fields, 831 Market Street, P.O. Box 222, Lemoyne;
Pennsylvania and Answers.
\. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted,
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CERTIFICATE OF SERVICE
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UP do eNtify that I sf'rvf'd thp fOff'going docum{mt on tllp following pprson(s), by depositing the
I, ,OHN M. POPILOCK, ESQUIRE of the law finn of THOMAS, THOMAS, & HAFER,
samp in th!! United Stiltf'S Mail, postilWl pm,Mid, ill Hilrrisburg, Pennsylvania addressed as follows:
Charles P. Mackin, Esquire
Costopoulos, Foster & Fields
831 Market Street
POB 222
Lemoyne, PA 17043
THOMAS, THOMAS & HAFER, LLP
Dale: I;' ?;. 7r'
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?NN M. POPt CK, ESQUIRE
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I/ERMAN W. GILLIAM, JR.,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.: 98-2317
CUMBERLAND COUNTY
HISTORICAL SOCIETY,
Defendant
: CIVIL ACTION - LA W
: mRY TRIAL DEMANDED
MOTJOl\fWl)EFENDANT FOR$UMMARY JUDGMENT..
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AND NOW, comes Defendant, Cumberland County Historical Society, by and through
their attorncys, Thomas. Thomas & Hafer, LLP und John M. Popilock, Esquire and hereby moves
this Honorable Court for Summary Judgment pursuunt to Pa R.C.P. 1035.2 and avers in support
thereof as follows:
I. The Plaintiff, Herman W. Gilliam, Jr., instituted this action by filing a Complaint on
or aboul April 24, 1998 in the Court of Common Pleas of Cumberland County against the
Defendant, Cumberland County Historical Society.
2. The Plaintiff herein seeks compensatory damages for personal injuries allegedly
sustained in a trip and fall incident which occurred 011 April 30, 1996 in a parking lot owned by the
Cumberland County Historical Society adjacent 10 the building localed at 21 North Pitt Street in
Carlisle, Pennsy Ivania.
3. Plaintiff's claims against moving Defendant sound only in negligence.
4. Plaintiff alleges that while walking in the parking lot of the Cumberland County
Historical Society, he tripped and fell into a hole in the macadam which had been filled with rain
water and fell to the ground causing injurics.
5. The pleadings in this matter were closed on June 19, 1998, and discovery in this
matter is complete.
6. The filing of this Motion for Summary Judgment will not delay trial of this matter.
7. The Plaintiff was a trespasser on Cumberland County Historical Society property at
the time of his alleged trip and fall.
8. Cumberland County Historical Society did not engage in any willful or wanton
misconduct with regard to Plaintiffs cause of action.
9. In the alternative. Plaintiff was a mere licensee while on Cumberland County
Historical Society propel1y.
10. In the case al bar. Plnintiff cnn point to no evidence to support nn inference that
Defendant. Cumberland County Historicnl Society. had actuul or constructive knowledge of the
nllegedly dangerous condition on their property at the time of Plaintiffs filiI.
II. In nddition, Dcfendant. Cumberland County Historical Society. is entitled to
Summary Judgment ns a matter of Inw becausc Plaintiff ennnot identify whnt causcd him to fall.
12. The Pennsylvania Supreme Court has consistently stutcd that the mere happening of
an~ccident is no evidence of negligence.
13. Ajury is not pennitted to speculate or gucss as to what caused the Plaintiff to fall.
14. Accordingly, there is no evidence of record by which a jury could infer a dangerous
condition existed in the parking lot of the Cumberland County Historical Society.
IS. Summary Judgment is appropriate where the record demonstrates that there is 110
genuine issue of material fact and thc moving party is entitled to Summary Judgmcnt as a matter of
law. Pa.R.C.P. 1035.1. ~ lliI. Specifically, Rule 1035.2 of the Pennsylvania Rules of Civil
Procedure allows for Summary Judgment when the record is insufficient for the opposing party to
sustain a prima/clCle case.
16. In the instant situation. the Plaintiff cannot point to any duty or obligation
Cumberland County Historical Society owed to Plaintiff that was breached in this matter.
17. There is no genuine issue as to any material fact pertinent to this Motion for
Summary Judgment.
18. Defendant. Cumberland County Historical Society. respectfully requests that this
Honorable COllli grant its Motion for Summary Judgment as a matter of law and dismiss Plaintiff's
Complaint with prejudice.
2
om.TIFICATE OF SERVICE
foregoing document by first class mail. postage pre-paid. addressed to the following:
I do hereby certify that on this day I served II true and correct copy of the
Charles 1'. Mackin. Esquire
Costopoulos. Foster & Fields
83 \ Market Street
POB 222
Lemoyne, PA 17043
THOMAS, THOMAS & HAFER. LLP
..'
\
\
\
\
I
\
\
\
Date: September 22. 1999
~
9, Denied, Plaintlfl' was an Invltcc with pcrmisslon and lluthnrlty to use Dcfcndant's
purking lot.
10. Dcnicd, Defcndunt hus rcpcatcdly asscrtcd that it had posscssion, contl'Oland
authority over and for the parking arca in qucstion, Thcsc undcniablc Ill(~ts support a rcasonablc
Inferencc that Dcfendant knew or should have known ofthc prccise condition of its premiscs,
II, Dcnlcd, Plaintiffs tcstimony by deposition clearly estahlishcs thut his fall wus
caused by a watcr fillcd pot holc into which he stumhlcd bccausc of SOmC othcr objcct. Thc suld
o~iect causcd a mcrc "stumblc" which bccause of the pre-cxisting pothole hccmne a "fall" with
serious consequcnccs, The prc-cxisting pothole was thc cause of the injury to Plaintif[
12, Admlttcd, Providcd howcver that thc mcre happening of an accident Is not
evidence of non-negligcnt conduct elthcr,
13, Admittcd,
14. Dcnicd, The Plaintill's dcposltion is clear and unambiguous that a dangerous pot
hole existed on Defcndant's prcmiscs Which Plaintiff was unable, duc to othcr conditions, to
avoid,
15, Admittcd as a statcmcnt of law; Denicd, howcvcr, that such law applies in the
instant case becausc of the facts of rccord set forth hcrcin,
16. Dcnlcd, Defcndant had a elcur legal duty to anord invitecs to it~ premises a safe
mCIUlS of ingress, cgrcss and parking.
~
17, Denied, Thcrc arc atlcast thrcc material facts lInd Issucs lire c1ellrly In genuine
dispute:
a. .cllusatiol1, Whcther Plaintiff's Ihllllnd injuries werc the
result of a "stumble" over an unidentified o~iectand/or
Plaintiff being unavoidably propellcd into a pre-cxisting
dangerous pothole,
b, f.I.ni.n~1lUlli;, Whether Plaintiff was a "trcspasser",
"lIccnsee" 01' "invitce" sllid status dctcrmines thc aplicablc
dUly of care which varics with thc nature ofthc use,
c, Ailcncy/Authority ofPicrson K. Miller, Whether Mr,
Miller WllS as President and/or President Emeritus of
Defendant and/Ol' had apparcnt authority to permit Plainti ff
to park or to cause Plaintiff to reasonably believc and rely
upon the fact that he was invitcd and authorized to use
Defendant's parking lot.
18, Denied, Because genuine issues offact exist which bear upon Plaintiffs status us a
user of the lot, the standard of earc, duties owcd and obligations of Dcfendant cannot be
ascertained as a matter of law,
WHEREFORE, Plaintiff requests that Summary Judgement be Dcnicd,
Edward W,
/,[), No, 63
COSTOPO LOS, FOSTER & FIELDS
831 Market Stmet, P,O, Box 222
Lemoyne, Pennsylvania 17043
Tclephonc: (717) 761-2121
-AI/arney/a/' Plalnllll
Datcd: /0- 7~ 99
2
1
INDEX
2
!!ll'NE S S
3 HERMAN W, GILLIAM, JR.
Examination
4 By Mr. Popilock
3
5
EXHIBIT
6
Gilliam
7 Exhibit Number
Marked
v
8 1 Drawing
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
38 .
I.:)
v
OJ
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1
2
3
4
S
6
7
8
9
10
Exam./Popilock - Gilliam
3
STIPULATION
It is hereby stipulated by and between
counsel for the respective parties that
reading, signing, sealing, certification and
filing are hereby waived; and all objections
except as to the form of the question are
reserved to the time of trial.
HERMAN W. GILLIAM, JR., called as a
witness, being duly sworn, testified as
11 follows:
12 EXAMINATION
13 BY MR. POPILOCK:
14 Q.
lS
16
17
18 A.
19 Q.
20 A.
21 Q,
22
23
24 A.
2S Q.
>.J
Mr. Gilliam, again, my name is John Popilock.
We were just introduced, and I'm going to
allow you to call me John, and I'm going to
call you Herman, if that's okay with you.
That's the way I like it.
Good. That's how we'll conduct ourselves.
That mister business is no good,
You've been brought here today to give your
deposition.
Have you ever. given a deposition
before?
Yes, sir.
In what circumstances have you given a
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"llnhl"n'~ "/;'.!l"./Jh!l r",.k i"....\li.l.,18 1'\ '.'1UfI.!II.'ll!;'
1
2 A.
3
4
5 Q.
6 A.
7
8
9
10
11
12
13
14
15
1.6
17
18
19 Q.
20
21
22
23
24
25
---
Exam,/popilock - Gilliam
4
deposition before?
In 1993 at Baltimore, Maryland, I fell off a
ramp six alld a half feet trying to tZlke a
shortcut out.
That was at a racetrack, if I'm not mistaken,
Maryland Jockey Club is the business name they
go under.
Harris Stevens', contractor,
cleanup crew was working in a hallway on the
exit out, and the exit l.i.ght was lit.
One of them jumped out qnd said, You
can't get out of that door. They close it
every night at 8 o'clock. You have to go at a
main entrance.
Another little guy, both black guys,
jumped out and says, Follow me.
I know a
shortcut.
I was with a man that lost his license by
the name of John Amsley.
Let me stop you there,
I don't want to go
through that whole story.
I'm just crying to
make sure you understand the proceedings that
we're in today and the significance of the
same,
What I'm going to do is I'm going to ask
you a series of questions.
You've taken an
nUlls {. \Id lie,\.,,; l':U'f Jun\/; SUn'IlT
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1
2
3
4 A.
5 Q.
6
7
8
9
10 A.
11 Q.
12
13
14
15
16
17
18 A,
19 Q.
20
21
22 A.
23 Q,
24 A.
25
Exam,/Popilock - Gilliam
5
oath with the court reporter to tell the truth
to the best of your recollection.
Do you
agree to do that?
Yes, sir,
Just as you've been doing, to help facilitate
the process, if YOII can make sure that all
your responses are verbal so that everything
can be taken down by the court reporter, You
agree to do that as well?
Yes.
Similarly, just as you've been doing, if you
can wait until I'm done asking the question
before you begin your response, that way the
court reporter can take each of what we say
down, because it's very difficult to take down
when two people are talking at one time. Do
you agree to do that?
I agree.
Is there any reason today that you wouldn't be
able to give accurate information to me? Are
taking any sort of medication?
I take heart medication every morning.
What are you taking for that?
You should have a copy of it, but I'll tell
you.
K-Dur, potassium SL, Capoten, Lanoxin,
11111/";' r, .\II'1,IILI"; IUPI ll~ If\'; S/.R\ 'j( '1:
II.fllI,/lrll', -/ ~211,-llh-' I l",~ ;'/;',<;,/1./.1'" f'.1 ',..../}/}.21J.11I27
-'\-.1
1
2
3 Q,
4 A.
5
6 Q.
7
8
9 A.
10 Q.
11 A.
12
13
14 Q.
15 A.
16 Q.
17 A.
18 Q,
19
20 A.
21 Q.
22 A.
23 Q,
24 A,
25 Q.
Exam,jPopilock - Gilliam
6
and 80 milligrams of Lasix to take the fluid
out of my body,
Tho&e are being prescribed by whom?
Dr. Philip Couey and Dr, Hollen prescribed the
medication when I had the second heart attack.
Other than those medicines that you've just
described, are you taking any other sort of
medication today?
Advil for the pain in my leg.
Have you had any alcohol today?
I'm a recovering alcoholic. February the 25th
of 1999 I'll have 28 years' sobriety, and I
help organize AA in Carlisle.
So you're not taking any alcohol today?
No, not for the past 28 years --
Good for you,
almost.
Do you know what your social securityn1.lmher
is?
Yes,
What's your social security number?
217-10-2557.
Where are you presently residing at?
306 Juniper Street, Carlisle, Pennsylvania.
How long have you been living there?
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/Ilnl/""III';~' .}Jh-llh!l \ilr~ ;-'~.,'ilj./ll/S PI 1.,~'fI/I.!JI.II1!;
1
2
3 Q,
4
5 A.
6 Q.
7
8 A.
9 Q.
10
11 A.
12 Q.
13 A.
14 Q.
15 A.
16 Q.
17 A.
18 Q.
19 A.
20 Q.
21 A.
22 Q.
23
24 A.
25 Q.
Exam,/popilock - Gilliam
Jr., my boss. The used car buyer was going to
buy him out.
So you just decided it was time to quit and
move on with your life?
Right.
Did you have any plans of going and working
elsewhere when you retired from that position?
Yeah.
Okay. Let me ask you this. Have you worked
since 1986?
Yes, I have,
Where have you worked at?
I worked at Amsley.
I'm sorry. Could you spell that?
Amsley, A-M-S-L-E_Y.
What is Amsley?
John Amsley, Sr.
And what did you do with John Amsley, Sr.?
I drove cars back and forth to the auction.
That's to the Carlisle auction?
Well, different ones.
When was the last time you did that for
Mr. Amsley?
In 1995.
How often were you doing that for him in 1995?
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flom_lll/rg ~1;"!,J/"III,!l \'!lI~ :'fi''\-li./I/J\ If II.,'W/J..! I 1.1112;
8
1 A.
2 Q.
3
4 A.
.5
6
7 Q.
9 A.
9 Q.
10
11 A.
12 Q.
J.3 A.
14
15 Q.
16
17 A.
19
19 Q.
20
21
22 A.
23 Q.
24
25 A.
Exam./popilock - Gilliam
9
Well, every week,
Approximately how many cars would you say you
would drive for him?
Well, it depended on which auction you went
and how many they bought and how many they
sold.
Is Mr. Amsley out of Carlisle?
He's on Willow View Drive, 108.
Is he still doing that there? Does he still
have a business there?
No.
When did he stop?
I actually worked for his youngest son and
wife, who the business name was in.
Are they still doing business at that
location?
No. They left in '95 and moved to Arizona,
Mesa, Arizona.
So in 1995, when you indicated that was the
last time you had worked with them, was that
because they had up and moved to Arizona?
That's right.
I understand you were involved in an accident
in April of 1996. Is that correct?
That's correct.
1/1/1/'. {I ,\kU/('\'i NUI( Ilnl,\'t; "1.'/~\'1n
1I111'!'"I'tll'~-I;'.!111.lIh.'J 'II"~ ,~I;'".'Ui.I!-/I,'i 1'11.SIIII.!l).l})!;'
1 Q.
2
3
4 A,
5 Q,
6 A.
7 Q,
8
9 A.
10 Q.
11
12 A.
13
14 Q.
15
16 A.
17 Q.
18 A.
19 Q.
20 A.
21 Q.
22
23 A.
24 Q,
25
Exam./Popilock - Gilliam
10
Between 1995 when you worked for Mr, Amsley
and April of 1996/ did you have any employment
during that period of time?
No,
Were you looking for employment?
No.
Did you have any plans of being employed in
the future?
No.
Do you have any plans of being employed as you
sit here today?
That's out of the question in my condition, a
broken hip.
Because of your physical condition, you feel
you're no longer able to work?
That's right.
Do you drive?
Yes.
Do you have a driver's lidense?
Yes, sir.
Do you have any restrictions on your driver'S
license?
No, sir.
I see that you're wearing eyeglasses today,
Do you have to wear eyeglasses to drive as
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lIufI"I,I'lIfo,: ~';-.!II"II/1~1 \!,,'.l. iF.,'!!'.I"I'. 1'1 '-'iIll/.2]].III2;-
1
2 A.
3 Q.
4 A.
5 Q.
6
7 A,
6 Q.
9 A.
10
11 Q.
12
13 A.
14 Q.
15
16
17 A.
1B Q.
19
20
21 A.
22 Q.
23 A.
24 Q.
25 A.
Exaro.jPopilock - Gilliam
11
we 11 ?
I've been wearing glasses for yeurs.
Do you have to wear your eyeglasses to drive?
Not necessarily.
Do you know whether your license has any
restrictions for eyeglasses in order to drive?
No.
What do you need your glasses for?
Well, it makes me see better since I had
cataracts removed.
Does it help you read, or does it help you see
things far away or both?
It helps me see things far away.
I see from your glasses that they have a
bifocal to them, Do you use those for
reading'?
Yes.
Do you know whether you were wearing those
glasses on the day that the accident happened
in April of 19967
I was.
The same glasses that you have on today?
I wear them every day,
You indicated that you had cataract surgery?
Yes,
The first one was in '87, the left eye.
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1101'-1"1 ,l>lll"'~ ~ 17.! 1/,.III,~ 1 \,or~ ;'/;, '\ li-(, j '" I' \ I -'iflll.~ 1 ).'1l!7
1 A.
2
3
4
5 Q.
6
7
8
9 A.
10 Q.
11
12
13 A.
14 Q.
15
16 A.
17
18
,
19
;)0
21 Q,
22
23 A.
24 Q,
25 A.
Exam./popilock - Gilliam
13
No. Put drops in my eyes and had me sit for
20 minutes, then put the machine on me, and
said, I don't want to see you for another
year,
Good for you.
You indicated you were having some
problems with your hip. Do you have any other
physical problems besides your heart as well?
No.
You have your heart problem, and you have your
hip problem. Other than those two, you're in
pretty good health, you'd say?
Ves.
Do you have any problems getting around day to
day?
Well, yes.
I have to be careful where I step
off or step up to keep from falling, losing my
mobility, which is off because I fell in my
own home three, four times by sitting in a
lounge chair and getting up too quick.
What would cause you to fall when you say you
fell three or four times in your home?
The hip.
You're pointing
Gets stiff on me.
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Ifll'ri,tlllr.~ ;" I :".211,./lh! I \ lid, i'1 ;.'1/ i.I,"'~' 1'1 1..\'fI/I.~ 1I,'II!;'
1 Q.
2 A.
3 Q.
4 A.
5 Q,
6
7 A.
8 Q,
9 A.
10 Q.
11 A.
12 Q.
13
l4
15 A.
16 Q.
17 A.
18 Q.
19
20 A,
21
22
23
24 Q.
25
Exam./Popilock - Gilliam
14
You're pointing now to your right side?
Yes.
Is it primarily on your right side?
Yeah.
When did you start having the problem wi~h
your hip?
oh - - Well, I had it right away.
What do you mean by right away?
When I fell,
That was in 1996?
1996, April the 30th.
Now, you were describing earlier another fall
incident that you had down in Maryland, I
believe.
Yeah.
I fully recovered from that.
What happened to you physically in that fall?
Broken pelvis in two places.
What sort of treatment did you have as a
result of that'!
Twenty-five years in the -- Twenty-five daYB
in the Carlisle Hospital; two weeks in rehab,
Cumberland Crossings, which is a spin-off of
Carlisle Hospital; 39 days total.
Did you review any documents before you came
here today?
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------.
Exam,/popilock - Gilliam
15
1 A.
2 Q.
3
4
5
q
7
8
Only what you have,
I don't want to know any conversations you had
MR. MACKIN: We just reviewed the
interrogatories. We did not review any
medical records.
MR. POPILOCK: I think it's remarkable
that you have such a recollection as to how
9
long you spent in the hospital.
You're
10
exactly accurate, 39 days,
11
THE WITNESS: One thing I'm blessed with
12
is a memory,
13
MR, POPILOCK: That will help today.
14
THE WITNESS: My father was a police
15
officer for many years. I was raised up in
16
the police department, I should be a retired
17
attorney like you.
18
MR. POPILOCK: I'm not retired.
I have a
19 long way co go.
20 BY MR. POPILOCK:
21 Q.
After you spent the 39 days rehabilitating
22
from that accident, did you have any
23
limitations or restrictions in your day-to-day
24
activities?
25 A. No.
1'1I11/~ ,', lkUIC h (0'1'IIU11\'(; "il'fn'll'f
l1r,rn./'ur:, ;/".:' llt-O"!I \"I'A 717..'II)'ld/'i 1'1 /.Oillll.! 11-"1.':'
\;I
1 Q.
2
3 A.
4 Q,
S
6 A.
7 Q.
B
9 A.
10 Q.
11
12
13 A.
14
lS
16
17
l'B
19
20
21
22
23
24
2S
....
Exam./Popilock - Gilliam
16
Did you have any pain following that 39-day
period?
No.
Does your pelvis bother you in any way
whatsoever as you sit here today?
It cut my sex life out.
Did that happen following that first accident
in --
After I fell at Maryland Jockey Club.
Why don't you tell me what sort of pain you
experienced as a result of that accident at
the Jockey Club.
Oh, man. I never want to go into that again.
The night 1 fell they took me two blocks away
to Bt. Sinai Hospital. They took x-rays. It
didn't show anything.
Mr. Amsley's grandson came down the next
day and picked me up and brought me back to
Carlisle.
I went immediately to the Carlisle
Hospital,
It didn't show any broken bones.
I went the next day, which was the 7th of
August, It didn I t show anything, I missed
the 8th.
My friends come in, were taking care of
me, and said, You got to go to the hospital,
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1
2
3
4
5 Q.
6
7
8 A.
9
10
11 Q.
12
13 A.
14 Q.
15 A.
16 Q.
17 A.
18
19
20
21 Q.
22 A.
23 Q.
24 A,
25 Q.
Exam,jPopilock - Gilliam
17
You look like death.
They took me to the Carlisle Hospital and
x-rayed me again and showed two breaks in my
pelvis and admitted me,
How were you feeling during that period of
time? What sort of pain were you having, if
any?
Oh, my.
It's hard to describe,
I knew .it was
pain there, but I couldn't understand why the
x-ray didn't show up.
Can you point on your body to where you were
having pain?
Down here (indicating)
Right in the middle of your pelvis area?
Yes.
Were you having any pain on your sides?
No, I fell in a gravel pit. My head has
never cured up from it. They picked about a
dozen gravels out of my head when I fell off
that ramp. You can see it.
That was from the accident down in Mar.yland?
Maryland.
You filed a lawsuit as a r.esult of that fall?
I did.
Who did you sue?
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1 A,
2
3 Q.
4 A.
5
6
7
a
9
10
11 Q.
12 A.
13
14
15
16
17
18
19
20
21
22
23
24 Q.
25
Exam./Popilock - Gilliam
18
I sued the Maryland Jockey Club and Harris
Stevens, cleanup contractors,
Who represantedyou in that lawsuit?
My primary lawyer here in Carlisle was Hubert
Gilroy, 'I'hree years' statute of limitation in
Maryland on the type of accident I had,
I had
to secure a lawyer there in Baltimore,
Maryland, by the name of Jim Katz, which was
secured by Hubert Gilroy, And he took it the
rest of the way.
What did you sue them for, if you remember?
I sued them for the fall. The door I went out
was wide open, and the exit light was lit up,
but I couldn't get out that door, and one of
the black boys told me the door was locked.
Another little, black boy stepped out and
said, Follow me. I know a short cut.
Somebody had been drinking beer. The way
I found that out, when they put me in the
ambulance, the ambulance was on high beam, and
right in the middle of that ramp somebody had
been drinking beer and had glass strewed all
over it.
Let me ask you this. How did you fall? What
happened to cause you to fall?
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Ililllh/'lrr'; ."~,!U,,"/I.'l lilr~ 71;'.,~I"h"~ 1'\ 1.~I!f/.!II.I'I~;'
1 A.
2 Q,
3
4
5 A,
6 Q,
'7 A.
8 Q,
9 A.
10 Q,
11
12 A.
13 Q.
14
15 A.
16 Q.
17
18 A.
19
20
21
22
23
24
25 Q.
----.....
'k_______
Exam,!popilock - Gilliam
19
I slipped on a piece of glass.
That was what I was getting at.
You were
walking,
You stepped on a piece of glass, and
you fell?
Y'eah,
Did you settle that lawsuit?
Yes,
And how much money did you get?
Twenty thousand.
Besides that incident, have you had any other
lawsuits that you've been involved in?
No, other than this one.
Now, you recalled that it was April 30th of
1996.
Absolutely. The last day in April.
What do you remember about that day, the
events leading up to your accident?
Well, I pulled in the parking lot.
I was
permitted to park in front of the dumpster,
but this particular day the dumpster was
overloaded with trash bags sitting in front of
it. So I couldn I t park in front of the
dumpster, ;so I parked on the opposite side of
the dumpster, which would be the left side.
Let me ask you this. You said you parked in
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1
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3 A,
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18 A.
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Exam,/Popilock - Gilliam
20
the parking lot, What parking lot are you
r.eferring to?
The one now that the historical library now
owns.
Where is that ),ocated, generally?
Back of the historical library, which is
located on North Pitt Street, back of the
Blondie's tavern and also back of the Hamilton
Restaurant.
I parked there for years.
Do you remember what day of the week this was
that you wer.e there?
It was the 30th of April.
Do you remember, was it a weekend or was it a
weekday?
No, It was in the middle of the week.
What was your purpose for parking in that
parking lot?
Where I ate all the time.
You ate in the parking lot?
I ate in Hamilton Restaurant and parked in
frnnt of the dumpster or beside the dumpster,
which was no white lines,
I got permission to
park there from t.he man, Pierson Miller, after
I found out that the historical library had
bought the lot,
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--.-----
Exam,jPopilock
Gilliam
2J.
So in April of J.996 do you know who owned this
parking lot?
Yeah. April of 1996 the historical library
bought it. The latter part of Mayor the
first of April I found out inside the Hamilton
Restaurant that they had bought it.
So I come out one evening.
I would say
the first of April about 5 o'clock after I had
my dinner, and Pierson Miller is the office on
the opposite side of the fence.
It's pierson Miller?
Pierson Miller. P.K. Miller, realtor.
MR. MACKIN: You said the latter part of
May. Do you mean the latter part of March and
the first part of April?
THE WITNESS: Yes, March.
MR. MACKIN: I just wanted to clarify
18 that.
19 BY MR. POPILOCK:
20 Q.
21
22 A.
23 Q.
24 A.
25
Th~ beginning of April you learned something
in the Hamilton Restaurant about
That the lot had been sold.
i,J
Do you know who told you that?
\
I
Pierson -- One of the girls in there told me,
the waitress.
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1 Q.
2
3 A,
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7 A.
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10 A.
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12 Q.
13
14 A.
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16 A.
17 Q.
18 A.
19 Q.
20
Exam./Popilock - Gilliam
,22
Do you know when the Historical Society
purchased the parking lot?
I'm saying at the end of March or the first of
Apri 1.
So right around the sarnA time that they
purchased it, you learned about this purchase?
Yeah. Uh-huh.
How long of a period of time before April of
1996 had you been parking in this parking lot?
For years and years and years and years.
Since 1948.
Do you know who owned the parking lot before
the Historical Society?
Yeah.
Who was that?
Mary Kallas.
I'm sorry. What was her name?
Mary Kallas. Her son is an attorney.
How do you spell her last name? Do you know?
MR. MACKIN: K-O-L-L-A-S.
21 BY MR. POPILOCK:
22 Q.
23 A.
:.!4 Q.
25
Did she know you were parking in this lot?
Yeah.
Did she lease that lot out to someone else for
'I
their use? What was it being used for before
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1
2 A,
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Bxam,/popilock - Gilliam
23
April of 1996?
Well, rent was paid,
I don't know who, The
rent was paid by the parking spacea,
They were private Spaces?
Private spaces. All the Greeks had their cars
in there and other people that worked in the
bank, which was right up the street, up the
alley. I don't know who else was parking
t.here.
Were there signs about restricted parking, no
parking allowed, anything like that?
No.
So March, April of 1996 the Historical Society
purchases this lot, and then you learn about
that?
Yeah, at Hamilton Restaurant.
Did you talk to anyone at the Historical
Society about parking in this lot at any time?
Yeah. Pierson Miller.
Did you talk to anyone in the Historical
Society about parking in this lot?
No.
MR, MACKIN: You just said Pierson
Miller.
THE WITNESS: Yes.
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1
2
---- ...----
Exam,/Popilock - Gilliam 24
MR, MACKIN: Answer Mr. Popilock's
question, Pierson Mi) ler, Tell him who
3 Pierson Miller is,
4 BY MR. POPILOCK:
5 Q,
6 A,
7
8
9
10 A.
Tell me who Pierson Miller is,
He's past president, and he's president
What's that word?
MR. MACKIN: The word you told me
yesterday? Emeritus.
Emeritus now.
11 BY MR. POPILOCK:
12 Q.
13 A.
14 Q.
15
16 A.
17 Q.
18 A.
19 Q.
20
21 A,
.22
23
24
25
Of the Historical Society?
Yeah.
Do you know when he was the president and the
president emeritus of the Histo~ical Society?
No, I don't. He still is,
Oh, he still is presently?
Yeah, emeritus.
At what point in time did you talk to him
about parking in the lot, if you remember?
After I came out of the Hamilton I'd say about
the first of April when I found out that they
purchased the property, about 5 O'clock __
His office is right up the street, and the
fence where the cars parked in the parking
III We,' "'\/11 /le"s lal'( "~ 11.\(; SI.R\'/IT
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1
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25
..._--...
Rxam,/popilock - Gilliam
25
lot, he was with his brother-in-taw by the
name of Rogel' Speck, who is now deceased, He
was working in his office, realtor office.
I walked over to the fence.
I said to
Pierson
I've known him for 50 years.
I
iYaid, I guess I can't park here no more since
you guys bought it,
I'll have to go to the
post office lot and park, which sometimes I
did because it was other cars there too.
One of them, mainly, was the girl that
worked in the restaurant as a waitress by the
name of Stacie Pappas. When her car was there
and the dumpster was full, I had to go across
the street and park in the post office lot.
So Pierson told me at that time, 5 o'clock
in the evening when he was getting ready to go
home and I had had my dinner in Hamilton along
the first of April, he said, You can still
park there, but make sure you're in front of
the dumpster or on the left-hand side of the
dumpster because we're not going to do
anything to the property for a while, and you
can park there in those spaces.
Now, did that conversation take place before
your accident where you fell?
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3
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Exam./popilock - Gilliam
Yeah. Yeah,
Did you understand him to mean that you could
park there until he told you that you
couldn't, or was it for that evening, or what
did you understand him to mean?
He said I could park there until they started
construction.
Did you ever observe signs in that parking lot
instructing people not to park there unless
they're going to be going to the Historical
Society?
Yeah.
Where did you see those signs?
Right as you enter.
Were those there before your fall accident?
Yeah.
Do you remember what they said?
Private property; cars will be towed away. I
think that's all I remember reading on the
sign,
Nobody paid any attention to it. The
walkway, the lawyers walked through there.
The apartment on West High Street brought the
trash down there and put in th~, dumpster, It
was just a walkway to the post office.
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26
i
2
3
4 Q.
5
6
7 A.
8
9 Q.
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16 A.
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22
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25
,~.
--
Exam,/popilock - Gilliam
Everybody traveled through there, including
JUdge Shughart, who is now retired, and other
lawyers.
Do you know of any other people that were
permitted to park in that lot if they weren't
going to be Using the Historical Society?
Yeah, Stacey Pappas, who is the head waitress
at the Hamilton right now.
Do you know whether she got permission from
someone to do that?
She never told me.
What do you remember about the day that the
accident happened? What were you doing?
Where were you going? Where were you coming
from?
I was coming out of the restaurant. Estimated
time, 12:15. I had bought __
That's noontime?
Noontime. I had bought a sandwich, and I had
it in my right hand to eat later when I got
home. I\Then J Went in the restaurant, there
was nothing beside me.
When I come out of the restaurant,
estimated time at 12:15 p.m., there was a
truck parked there delivering to alondie's
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27
1
2
:l
4
5 Q,
6
7
8
9 A.
10 Q.
11
12 A.
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14 A.
15 Q.
16
17 A.
18 Q.
19 A.
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21
22 A,
23
24 Q.
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Exam./popilock - Gilliam
29
crying, and the water was running off of my
glasses, and I was soaking wet because I had
been laying there for half an hour before she
come out.
I'm going to take a step back, and I'm going
to ask you some more questions about each of
those things that YOU've told me now about
those incidents. Is that all right?
Sure,
How often would you say that you go to the
Hamilton Restaurant?
Every day.
For how long a period of time? Years, months?
Years.
Would you always park in that lot when you
would go to the restaurant?
Not always.
Where else would you park?
Park behind the church,
Why did you choose to park in the lot that
day?
Because of the opening.
There was an opening
there, and I had permission to park there.
Were there any other cars in the lot that day?
The parking lot was loaded.
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1 Q,
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Exam,jPopilock - Gilliam
30
I undarstand that the lot has changed since
that time,
Is that right?
You got that right.
They did some construction work, something
like that?
It's beautiful.
I'm going to ask you, if you could, to draw me
in real general form what the lot would look
like.
MR. MACKIN, He's got real problems
drawing.
Not to scale.
Do the best you can.
If you can't draw,
13 Herm
14 BY MR. POPILOCK,
15 Q.
16
17
18
19
20 A.
21 Q.
22 A,
23
24 A.
25
You can draw a square for the lot, and you can
draw another square for the restaurant. I'm
just trying to figure out where you were in
relationship to everything that was back
there.
I'm going to give you a pen as well.
Is this orange?
That's red,
Pull that top right off.
I don't have no strength in my hands.
MR. MACKIN: Do the best you can.
Okay.
You come in the driveway.
There was an
opening on the other side of parked cars and
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Exam,/Popilock - Gilliam
31
1
an opening on the left side (marking)
It
2
would be the left side entering and the right
3
side entering,
4
MR, MACKIN: Wait a second.
Say that
5
again, Left side entering and right side
6
entering? No,
It has to be one way or the
7
other, Left side entering and right side
8
leaving?
9 A.
Well, there was cars parked in the middle of
10
the driveway before because construction was
11
starting on it, Now, I drove in this way and
12 turned in this way, and the dumpster sat right
13 here (marking).
14 BY MR. POPILOCK:
15 Q. Why don't you draw a square, if you can, for
16 the dumpster so I know where that is.
17 A. (Marking, ) My hands are weak.
18 Q. That's fine. You just do the best you can do,
19 We'll take it from there.
20 MR, MACKIN: Let me ask you a question,
21 Is that a square, or is that the letter D?
22 THE WITNESS: It's a square. It's
23 supposed to be,
24 MR, MACKIN: Okay.
25 BY MR, POPILOCK:
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IItll'ri';/'III'': ~1;".!I'I'/lrf!1 \11I'1. 7/7..\.0"/1.1/.'\ /1.-\ /",",,,,,.! II.'II!:'
1 Q,
2
3
4
5
6 A.
7 Q.
8
9
10
11 A.
12 Q.
13
14 A.
15 Q.
16
17 A.
18
19
20
Exam./popilock - Gilliam
I'm going to draw a line to it with my pen,
and I'm going to do the letter D just 80 we
know when we look back at this that you've now
drawn what you've represented to be the
dumpster,
Is that fair?
Yeah.
Where would the Historical Society be in
relationship to what you've just drawn? Is it
going to be over here? Is it going to be over
here?
It would be back of the dumpster.
I'm just trying to get a frame of reference
for what you're drawing.
It would be on the right-hand side.
If I'm looking at this sheet of paper, where
would it be?
On the right-hand side.
MR, MACKIN: Can we go off the record for
a second?
21 go off the record.
MR, POPILOCK: That's fine. Why don't we
22 (Discussion off the record.)
23 BY MR. POPILOCK:
24 Q.
25
We're going to try this again.
MR. MACKIN: I don't mean to take over.
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32
!\
iI
I
Exam./Popilock - Gilliam
33
1.
Show us with an H where the Hamilton
2
Restaurant is and with a B where Blondie's is.
3
MR, POPILOCK: That works for me.
4
THE WITNESS: Let me explain it to you.
5
MR, POPILOCK: Okay.
b
THE WITNESS: On the left side of the
7
dumpster where I was parked and permitted to
8.
park
9
MR. MACKIN: Was where your car was?
THE WITNESS: Was where my car was.
MR. MACKIN: We'll get to that, Herm.
Show us with an H and a B whe re the Hamilton
was and where - - Show us whe re the Hamilton
1,0
11
12
1.3 .
14
was. Just put an H where the Hamilton
15
Restaurant is.
16
THE WITNESS: It was the second door next
17
door to Blondie's.
25
MR. MACKIN: Okay. Put a B for Blondie's
then and an H for the Hamilton.
THE WITNESS: (Marking. )
MR. MACKIN: This is a B; correct?
THE WITNESS: Right.
MR. POPILOCK: 1'hat's fine.
MR. MACKIN: Dlondie ' s and the Hamilton?
THE WITNESS: Yes, and a walkway.
18
19
20
21
22
23
24
IH/lh (r .\Id.lIC\.'; HU'UfnlXC ..;U~ l'HT
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1
2
3
4
5
6
7
8
Exam./Popilock - Gilliam
34
MR, MACKIN: Put the walkway in then,
Show us the walkway. Just draw a line where
the walkway is,
THE WITNESS: (Marking,)
MR, MACKIN: The walkway went right
through the Hamilton?
THE WITNESS: Right through Blondie's
first and then the Hamilton second.
If you
9 went all the way through the walkway, you
10 would end up on North Pitt Street.
11 BY MR. POPILOCK:
12 Q.
13 A.
14 Q.
Would Pitt Street be this way?
Yeah.
Can you write Pitt there so we know?
15 (Mr. Mackin marked on diagram.)
16 BY MR, POPILOCK:
17 Q.
18
19 A.
20 Q.
21
22
23
24
25
There I S another street, I understand, that
runs this way.
Is that correct?
That's the first block of West High Street.
Now we're getting somewhere.
MR. MACKIN: show Mr. Popilock just with
a D or a square where the dumpster was.
THE WITNESS: The dumpster was on the
right-hand side of my car where I parked it.
MR, MACKIN: But I mean in relation, as
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1
2
3
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6
...
7
8
9
10
11
12
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Exam./Popilock - Gilliam
35
best you can, from the Hamilton to Blondie' s,
just where is the dumpster?
MR, POPILOCK, You can draw an X,
MR, MACKIN: An X for the dumpster, if
you want, Where do you think it was?
THE WITNESS: (Marking. )
MR. MACKIN: I'll put a D underneath that
for dumpnter (marking). Okay?
THE WITNESS: Okay.
MR, MACKIN: Now, tell Mr. Popilock where
your car was parked.
THE WITNESS: Next to the dumpster.
13 BY MR. POPILOCK:
lilt
14 Q.
15
16 A.
17
18
19
20
21
22
23
24
25
..
\,iI
<.;;I
On the left-hand side of the dumpster if you
were facing the dumpster?
Right,
MR, MACKIN: Your car is here (marking)?
THE WITNESS: uh-huh.
MR. MACKIN: Tell Mr. Popilock wh~ch
direction your car was facing.
THE WITNESS: Into the whi te apartment
building which went along with the purchase of
the Historical Society purchase of the parking
lot. It included the white building.
MR, MACKIN, Let me ask you this, since
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1 Q,
2
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4 A.
5 Q.
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7 A.
8
9
10
1l Q.
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13
14 A.
15
16
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19
20
21
22
23
24
25 Q.
Exam.jPopilock - Gilliam
37
when you parked the~e before you went into the
Hamilton Restaurant, you said there were other
vehicles parked in that lot?
Allover the lot. Rented spaces.
Was that the only available space left in the
lot?
I don't know who was parked there.
I didn't
pay any attention as to other cars, but there
was other cars parked in there that paid rent
to park there.
Is this the spot that you would typically park
in when you would go to the Hamilton
Restaurant?
Yeah. Even in front of t he dumps t er, the
left-hand side, upper side of it, depending on
how much trash was in the dumpster. I f I
could get in front of the dumpster, I parked
there. But normally I parked more on the
left-hand side of the dumpster because it was
always filled up with trash and bags of trash
from people that lived on West High Street,
brought their trash down there and when the
dumpster was filled up just throwed it on the
ground.
You indicated when you came back out of the
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1
2
3 A,
4 Q.
5
6 A.
7 Q,
8 A.
9 Q.
10 A.
11 Q.
12 A.
13
14
15
16
Exam./Popilock - Gilliam
38
Hamilton Restaurant with your sandwich there
was a car parked on the one side.
There was a truck.
A truck parked. And that would be on this
side of you if you look at the --
It would be on the left-hand side.
On the left-hand side of your vehicle?
Yeah.
t'm going to draw a T for truck (marking).
Yeah.
Does that make sense?
Yeah,
MR. POPILOCK: Why don't we have this
marked now as Exhibit 1.
(Diagram was produced and marked Gilliam.
Exhibit 1,)
17 BY MR. POPILOCK:
18 Q.
19
20
21
22 A.
23 Q.
24
25 A.
Now, when you came out of the Hamilton
Restaurant, do you remember which side of your
car you walked down? Was it the driver's
side, or was it the passenger's side?
Driver's side.
You walked right down to the driver's side
like you were going to get in your car?
Yeah, And the truck had me penned in to where
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1
2
3 Q.
4
5 A.
6
7
8
9
10 Q.
11
12 A.
13
14
15 Q.
16
17
18
19
20 A.
21
22 Q.
23 A.
24 Q.
25
Exam,/Popilock - Gilliam
39
I surveyed the situation and thought I could
make it.
You mean you thought you could squeeze down
between the two cars?
Yeah, and open the door and get in my car and
drive away,
But my left foot stumbled on a
piece of trash or rock and throwed me straight
forward, and I fell in that hole, pothole,
which was filled with water.
Now, where was this pothole in relationship to
your car?
In relationship to my car, it was sort of a
hill like there that you went down to get into
the back door of Blondie's and Hamilton.
Now, the way that your car was parked facing
the Hamilton Restaurant, would the hole have
been in the front of your car, on the driver's
side of your car, behind your car, or to the
passenger's side of your car?
The way I was parked, it would be on the
left-hand side.
So the driver's side?
The driver's side.
Was it closer to the front of your vehicle?
Was it right where the door of your vehicle
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1
2 A,
3
4
5 Q.
6
7
8 A.
9
10 Q.
11
12 A.
13 Q.
14
15
16 A.
17 Q.
18 A.
19 Q.
20 A.
21
22 Q.
23
24 A.
25
Exam,/Popilock - Gilliam
40
was/ or was it to the back of your vehicle?
No. It was out a little ways from the
entrance to the back door of Blondie's and the
Hamilton.
Could you estimate for me about how far your
car was from the rear of these two places, the
Hamilton and Blondie's? How many feet?
I would say about 10 feet from Blondie's and
about 20 feet from the Hamilton back door.
So the hole that you've described was between
your car and Blondie's?
Yeah.
Did you need to walk past this hole ,when you
were going into the restaurant before you got
your sandwich?
Yeah.
Did you see it there?
No, but I knew where it was.
How did you know where it was?
All those years I parked there / I knew where
that hole was.
That's something you would avoid?
You'd walk
around it?
I'd have avoided it coming out if the truck
hadn't been there and I hadn't stumbled.
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5
6
7 A.
8
9 Q.
10
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12 A.
13
14 Q.
15 A,.
16
17 Q,
18
19 A.
20 Q.
21
22
23 A,
24
25 Q.
Exam.!popilock - Gilliam
what it was that caused you to trip and fall
to the ground.
No,
Before you fell, did you see what it was that
was there on the ground that caused you to
fall ?
No. r missed going in.
r missed everything.
r went in,
You said it was a piece of trash or a piece of
rock or gravel or something. Do you know ehat
for sure?
Well, it was something there that made me trip
and threw me forward,
Do you know how it got there?
r don't know how it got there. There was
trash allover that parking lot.
Do you know how long that, whatever it was,
was on the ground before you fell over it?
No, I don't, r have no idea.
Where was this, whatever it was, this object,
in relationship to the hole that you fell into
after you had fallen?
It was right opposite of my left fender, front
fender.
The hole was?
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42
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Exam,/Popilock - Gilliam
43
1 A.
Yeah,
2 Q.
Where was this piece of garbage or this rock
.3
that you tripped over? Where was that in
4
relationship to the hole?
5 A.
As I started out to enter my car to leav~ the
6
parking lot, my left foot stumbled on a piece
7
of trash or a little gravel or rock or
8
something,
I don't know what.
9
MR. MACKIN: You've said that.
He asked
10
you
When he said relation, he wants to
11
know how close to the hole was this thing you
12
stepped on.
13
MR. POPILOCK: Or how far. Where was it?
14
MR. MACKIN: Was it close? Was it far
15
away? Te 11 hill.
16
THE WITNESS: It was in front of me.
17 BY MR, POPILOCK:
18 Q. Do you know where this grave 1 or rock or trash
19 was, whether it was near the hole or far from
20 the hole or a foot from the hole or 20 feet
21 from the hole?
22 A. Well, it was across from the hole. The hole
23 was in front of me.
24 Q. At all times before you fell, you knew where
25 this hole was?
'Hili':' {f ,\"",UCh UI.'JI( 1/~ fl."'!; sun'In:
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1
:2
3 A,
4 Q.
5 A.
6
7
8 Q.
9
10
11 A.
12
13
14 Q.
15
16 A.
17 Q.
18
1.9 A.
20 Q.
21
22 A,
23 Q.
24 A.
25 Q.
Exam./Popilock - Gilliam
45
did you fall right to the ground or did you
stumble a little?
I fell to the ground,
You fell straight down?
Yeah, My right foot got caught in that
pothole, which was filled with water, and
raining and sleeting that day.
It wasn't the pothole that caused you to fall
to the ground? It was this other object; is
that right?
Well, the other object I stumbled over with my
left foot caused me to get caught in that
pothole and break my hip.
I'm just trying to figure this out.
You knew
where this hole was at all times?
Yeah.
And you didn't want to walk in it because it
was a big hole'l
That's right,
You're walking, and you stumble with your left
foot. I and you fell to the ground?
Yeah. That's right, John.
Vou indicated it was raining?
Oh, it was pouring down.
Was it raining when you went into the
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1
2 A.
3
4 Q.
5
6 A.
7 Q.
8
9 A.
10
11 Q.
12
13 A,
;l<l
15
16 Q.
17
18
19 A.
20 Q.
21
.22
23 A,
:;4
25
Exam,/Popilock - Gilliam
46
restaurant?
Yeah,
It was sleeting too.
Not much, but
some sleet.
Did you have any problems when you were going
from your car into the restaurant?
No.
Did you see the hole when you went from your
car into the restaurant?
No, because I knew where that hole was, and I
bypasl'Jed it.
So you didn't even look at it when you went
in?
There was nothing on the other side of me when
I went in, When I come out, that truck was
there delivering to Blondie's tavern.
Would that have been the same side of the car
you would have gotten out of to go into the
restaurant?
Yeah, the left-hand side.
Explain the significance of the truck, then,
being there next t~ your car when you came
out.
He was inside of Blondie's delivering some
kind of restaurant supplies.
It was a
Feeser's truck from Harrisburg, the restaurant
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'. .:
1
2 Q.
3
4 A,
5
6
7
8
9
10
11
12
13 Q.
14
15 A.
16
17 Q.
18 A.
19 Q.
20 A.
21 Q.
22 A.
23 Q.
24 A.
25 Q.
Exam,/popilock - Gilliam
47
supply people,
Did the truck obscure your vision, or what was
No, I surveyed the situation and sa'l/, thought
I had enough room to get by the truck into my
car door, open it far enough for me to get in
and leave. That's when I stumbled with my
left foot on a piece of trash or something,
and my right foot -- I went fOI'ward. My back
right foot got caught in that pothole, which
had been there for years and years and years.
Allover that lot it was potholes.
Where were you looking immediately before your
left foot got caught on the piece of garbage?
Looking to get in my left-hand side of the car
where I was parked.
So you were looking at your car?
Yeah.
You weren't looking at the ground?
Uh-uh.
Is that a no?
That's a no. I wasn't looking at the ground.
Did you have an umbrella with yoU?
No.
You said you had your sandwich in your right
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1
2 A.
3 Q.
4 A,
5 Q.
6
7 A.
8 Q.
9 A.
10
11
12 Q.
13
14
15 A.
16 Q.
17 A.
18 Q.
19 A.
20 Q.
21
22 A.
23
24
25
Exam.;popilock - Gilliam
48
hand?
In my right hand.
Were you carrying anything else that day?
No. No,
Were there any people in the parking lot when
you fell?
No,
You were the only one around?
I'm the only one. I laid for half an hour
before Blondie found me, crying, soaking wet,
full of pain.
You've identified Wanda Loy as someone who may
be a witness or have information .about the
accident.
Yeah,
Who is Wanda Loy?
She runs Blondie's tavern.
Is she the one who found you?
Yes.
How about John Mazias, M-A-Z-I-A-S7 Who is
he?
He's the son of the owner of the Hamilton
Restaurant, Tommy.
MR. MACKIN: Herm, when he says, Who is
he? he means in relationship to this. What
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1
2
3
4
Exam,jPopilock - Gilliam
49
does he know about this incident? Did he come
out and find you too? Was he one of the
people you call the Greeks?
THE WITNESS: No, he wasn't a witness to
5 it, but he knows that the potholes was all
6 over that lot.
7 BY MR. POPILOCK:
8 Q.
9 A.
10 Q.
n A.
12
13 Q.
14 A.
15
16
17
18
19
20
21
22
23
24
25
John Zahos, Z-A-H-O-S.
Uh-huh.
What does he know about this incident?
He came out and saw the position I was in
laying on the ground.
And Nicholas K-A-F-I-D-I-F-I-S.
Yes. I can't pronounce those Greek nameS
either.
MR, MACKIN: What does he know about
this, Herm?
THE WITNESS: Well, he came out and saw
the position I was in laying on the ground.
There was about 20 people come out of the
Hamilton and Blondie's after the accident WaS
over.
MR. POPILOCK: Let's go o~f the record
for a second,
(Discussion off the record.)
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1 A.
2
3 Q.
4 A.
5
6 Q.
7 A.
8 Q.
9
10 A,
11 Q.
12 A.
13
Exam. /Popilock
G:lllialll
52
I called a lady in charge down there and told
her I fell and broke my hip there,
When did you talk to her?
I think in June when they atattedconstruction
on it.
Just a few months after your accident then?
Yeah.
Do you have any notes? Did you take any notes
at all about that conversation?
No,
Did you ever write any letters to them?
No. I felt that
MR. MACKIN; Harm, Herm, just answer
14 John's questions,
15 BY ~lR, POPILOCK,
16 Q.
17
18 A.
19
20
21
22 Q.
23 A.
24
25 Q.
What was the substance of that conversation
that you had with this lady?
I said, Do you realize that I brcke my hip in
your parking lot?
She said, This is the first I've heard of
it.
What did you Say to her then?
I snid, Welll, jt Isn't getting any better.
And that was the end of the conversation.
Did you toll her how the accident happened?
II/Il/.I. \I./I/t'\'; /UI'II/UI.\'(, 'iUn'/t"
Ild,!i,j'I,"/'ltollh'l l,n~ ';'17.'lji./d/,~ 1'\ '.W/IJ.!11-'1l!7
1 A.
2 Q.
3
4 A.
5 Q.
6
7 A.
8 Q.
9
10 A.
11 Q.
12
13
14 A.
15 Q.
16
17 A.
18 Q.
19
20
21 A.
22 Q.
23 A.
24 Q.
25
-
Exam./popiloek - Gilliam
53
No. She didn't ask me,
Did she say anything to you about paying for
medical bills or anything like that?
No,
Do You know who you spoke with at the
Historical Society?
Ms, Witten (phonet i.e)
And other than that one conversation, have you
ever spoken to her again about this accident?
No.
Besides your attorney, are there any other
individuals that you've spoken to about this
accident?
No. Members of my family.
Have you spoken to anyone at the Hamilton
Restaurant about it?
Well, they already knew about it,
After that day of the accident, have you had
occasion to go back to the Hamilton
Restaurant?
Every day.
Do you talk to people there about it?
No.
How about Blondie's? Have you ever been in
Blondie's?
IHIlI.. {. UtIl/{',IS UU'Of{ fI.\'(; \f.'I~\'I('f
11"",,/'111-'; :T"~)h.llh!l \tll'J. ~1;,.,...n.II-II'" 1"I/.SI/IJ.!lJ.'JJ!7
1 A.
2 Q.
3 A.
4 Q.
S A.
6
7 Q,
8 A,
!l
10
11
12 Q.
13 A.
14
lS Q,
16
17 A.
18 Q.
19 A,
20 Q,
21 A,
22 Q,
23 A,
24
2S
~....~~_.,_...--.,~'_._- -"" _.".,._...._-_.,"~-
~xum,/popilock - Gilliam
S4
Ono tlmo,
Whllll Willi tlwt'/
That Willi <<[tor I returned to b~ able to walk.
Wllllt W.,III the purpooe of going to Blondie' s?
To t,/ilk Ilbout the accident, if she would be my
wit.nf.HlfI ,
What did you talk about?
The poultion that ahe found me in.
She 1111 I,d, I'll tell them about the
potllC>lets too.
she paid rent space where that truck was.
That was Wanda Loy?
Wanda Loy. And the name of the establishment
is Blondie's tavern.
You were taken by ambulance to the hospital
after the accident?
,
t
I
I
~
}
{,-
I
Uh-huh,
What hospital wa~ that?
Carlisle,
What did they do for you when you got there?
1 don't know.
I passed out.
At what point in time did you pass out?
\_1':
After I got to the hospital.
'I
,
I don't even
remember going to the hospital in the
ambulance,
I rememb~r them putting me in
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1
2
3
4
5 Q.
6
7 A.
8
9 Q.
10
11
12
13 A,
14
15 Q.
16
17 A.
18 Q.
19 A,
20 Q.
21
22 A.
23 Q.
24
25 A,
Exam./Popilock - Gilliam
55
there on the stretcher and transferring me to
the rollers of the ambulance. But when I got
to the hospital, I don't know what I told
them.
Do you remember anything that happened to you
a~ the hospital?
Except the doctor that took the x-rays--I
don't remember when he took them--said --
Let me ask you. Do you remember anything
happening? Do you remember them doing any
procedures on you when you were in the
hospital?
I remember taking my clothes off of me, which
was soaking wet. I remember that.
\
( \
\'
r
I
,
~
\
~
"
I
Do you know how your car got from the parking
lot?
A friend of mine came up and got it.
Do you know how long after that it was?
Next day.
Do you know how long you were in the hospital
after your accident?
six days.
i\
What did you do after that?
"
MR. MACKIN: Where did go?
\
I
Went to Manor Health Service for 18 days.
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8xam,/Popilock - Gilliam
'L'otal of 24,
2 BY MR. POPILOCK:
3 Q.
4
5 A.
6 Q.
7
8 A.
9 Q.
10
11 A.
12 Q.
13 A.
14 Q.
15
16
17 A.
18
19 Q.
20
21 A.
22 Q.
23 A.
24 Q.
25 A.
With the hospital and Manor Health Service
together?
Uh-huh,
Did you go anywhere else to any other
rehabilitation centers?
No.
Did you have to go through any p"ysical
therapy at all?
Yes.
Where did you do that at?
At the Manor Health Service.
How about after you left Manor Health Service,
did you have to go anywhere else for physical
therapy?
No, I had a physicaleherapist come to my
house.
Did you have an attorney in Baltimore at some
point. in time?
Yeah.
Regarding this incident?
Uh-huh.
You retained an attorney in Baltimore?
Yeah, when I fell at -_
nf flh to _\lII.lIe/lS la'fll mf/\/; SI.RI'/(',
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56
r
1
2
3
4
5
6
7
8
9
10
11
12
13
14 A.
15
16
17
18 Q.
19
20 A.
21
22
Exam./Popilock - Gilliam
58
about his fall. He stated he never told
Dr, Mira how he fell and thought that we
should have it in his chart in case his
attorney from Baltimore would call. He stated
he left the Hamilton Restaurant and walked to
the back parking lot to leave. He went to get
in his car, and his leg gave way. He stated
he fell up against the fender of the car and
then down onto the blacktop where he fractured
his hip, The patient was told we would note
this in his chart for further reference.
Do you recall calling Dr. Mira's office
and telling them that?
I recall calling his secretary, receptionist,
and trying to make an appointment with him,
and then we talked about it when I got the
appointment about a week later.
Do you disagree with anything that I just read
to you from your chart?
No.
MR. MACKIN: I'll read it again to you,
Herm. Listen to what they said.
Listen to
23 this, Herm,
24 BY MR. POPILOCK:
25 Q.
He, meaning you, stated he left the Hamilton
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1
2
3
4 A.
5 Q.
6
7
8 A.
9 Q,
10 A.
11 Q.
12
13
14
15 A.
16
17
18
19 Q.
20
21
22
23 A,
24 Q.
25
8xam.!popilock - Gilliam
Restaurant and walked to the back parking lot
to leave.
Do you agree with that?
I agree with that,
He went to get in his car, and his leg gave
way.
Do you agree with that?
I stumbled.
So you disagree with that then?
I disagree with that.
He stated he fell up against the fender of the
car and then went down to the blacktop where
he fractured his hip.
Did you fall into your car?
My hands was on the fender when I tripped. I
automatically throwed my hands on the fender
and then straight forward into the -- my face
down.
NoW, that I s something we haven I t talked about
yet. When we were talking about Y01.lr fall
before, you indicated you tripped and you fell
straight down to the ground.
Yeah.
Now you're telling me that you fell and you
were actually able to grab your car and then
lHllI.';~dld.lI(, \.; I~I.I'()UH\(; SUn'fer
IIl1rl/~/JIli"; ;'I~.! 1/,.1/,,)1 l'tIt~ ~ I /"'1.' i.,,, IS " I '.,,'m.! 11<'1 J.';'
59
1
2 A.
3
Exam./popilock - Gilliam
60
fall to the ground,
My hands went on the fender first.
MR. MACKIN: Off the record.
4 (Discussion off the record.)
5 BY MR, POPILOCK:
6 Q,
7
8
9 A.
10 Q.
11
12
13 A.
14 Q.
15
16
17 A.
18 Q.
19 A.
20 Q.
21
22 A.
23 Q,
24
25 A.
Following this telephone conversation you had
with the doctor's office, then you went and
you saw Dr, Mira himself sometime thereafter?
Yeah.
His office note from June of 1996, does that
refresh your recollection as to when you would
have seen him? Is that about right?
Uh-huh,
Dr. Mira states at that point you were able to
drive your car, and that's about two months
after the accident.
About two months,
Were you able to drive your car at that time?
Yeah.
You were using a cane at that tlme to get
around?
A walker first and then a cane.
Do you remember talking to Dr. Mira about how
the accident happened?
Yeah,
III fIlS~, \/, UI(,IS 1~/'I'OfUI.\'(; SI.R\'ICI:
11"1'1'1>11111, -/7.}:(,.IJh!1 r,tr~ iI~.sn.I,".'\ fll",'\IIfI.31J.'11!7
1 Q,
2 A,
3 Q.
4 A,
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11 A.
12 Q.
13 A.
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15 Q.
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20
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22
23
24 A.
25 Q.
Exam,/Popilock - Gilliam
61
DO you remember telling him what happened?
Yeah,
What did you tell him at that point?
I told him that I stumbled on something. I
didn't know what, My left leg gave away on
me, and my hande hit the fender of my car and
throwed me straight ahead, and my right foot
got caught in the hole.
Do you remember talking to him avout that
hole?
Yeah,
What did you tell him about the hole?
I told him I broke my hip falling in the
pothole,
Now, in reading Dr. Mira's notes of that
office visit, he states that you told him that
at the time of the injury to this hip you went
back to look and there was no hole in the
parking lot where you had fallen and that your
left leg gave way and has given way from you
on several times in the past, such as taking
the trash out. Do you remember telling him
t ha t ?
No.
Do you remember telling Dr, Mira that there
-.111/11.. ,'I ,\Ill Ill, \..../U /JD/U/,\f; ''/In'/tT
Illfnl '/'11"; nl;'~]f,.'11,2J ),II'A. ~I;.,-ji.hll" l' \ I.,\I!II.~ I )."1!:"
1
2 A.
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8 A,
9 Q.
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Exam,;Popilock - Gilliam
62
was no hole in the parking lot?
No, I don't remelnber telling him it was no
hole in the parking lot,
I told him it was a
hole in the parking lot, allover the parking
lot.
Do you know why Dr. Mira would have written
that down in his otfice note?
No, I don't,
Has your leg given way tram you in the past?
Only the right leg.
Such as taking the trash out?
Yeah. I have to get somebody else to take it
out because ot my mobility.
What you're saying, then, is Dr. Mira is
mistaken in saying that you told him there was
no hole in the parking lot?
That's right. I didn't tell him there was no
hole in the parking lot.
Do you still get around with a cane or a
walker?
I get around without a cane and without a
walker but very slowly on account at my
mobility.
I lose it once in a while.
it I
sit down for any length of time, my l,g
stitfens up on me.
1/Ulh~, .\ld.UC\'> la./'(HU 1.\'(; ..;/R\'Il"
1I./frl..I,ur'{ :-/7,2 111 .1111~ 1 \ lirA 7 I ;-.,., i.h-I/.'; I' \ /..'.;o/J.~ 11.U 127
1 Q.
2 A.
3 Q,
1\ A,
5 Q.
6 A.
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8 Q.
5l A.
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Exam,/popilock - Gilliam
63
Are yoU able to drive?
Yeah,
How often do you drive?
Once a day.
How far of a period of time can you drive for?
Well, I don't go out of town.
I just go
uptown to the restaurant and eat,
Where do you park now when you go up there?
I have a handicap parking sign that goes on my
rearview mirror, and most of the time I'm able
to find a parking space.
Out on the street?
On the street. I might have to walk a hundred
yards or more.
Have you ever talked to anyone at the
Historical Society about not parking in their
lot?
No.
Have you attempted to park back there since
your accident?
No.
Why is that?
They got a sign up there. Unless you go in
the Historical Society You can go in the
front door or the back door.
nUlh (. ,\ldU(', IS NI.'JI(Jf~ flXt; su:ncl'
IIrlrrl'/IU;"\ :'/;'.!l/1.I/j,!) )tlo'k i'17.~n.II.l/8 /',1/.'i1llJ.;} Il.WJ!;'
1 Q.
2 A.
3
4 Q.
5 A.
6
7
8 Q.
9 A.
10 Q.
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12 A.
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15 A.
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18 Q.
19 A.
20 Q.
21 A.
22 Q.
23 A.
24
25 A.
Exam,jPopilock - Gilliam
Does the sign say no parking?
Private parking only, Cars not authorized
will be towed away.
When did that sign go up? Do you know?
Right after I fell, and they started
construction on the job in June, latter part
of June.
Of '96?
'96.
You had indicated in some written answers to
questions that you're no longer able to dance.
That's right.
Is that something that you used to do before
the accident?
Absolutely.
How often would you dance before the. accident1
Maybe once a week.
Where would you go?
Elk's Club.
Who would you go there with?
My wife.
Your wife passed away?
In 1990.
I
MR. MACKIN:
He means after your wife.
Oh, after my wife.
No, I didn't belong to any
fll.Ilf,..; t. .\IdllLI'i W:l'f II,n\(; SI.R\'/(T
HarTh/'III"': 7/~.!l/,.lIh!J ~(lr~ 7/7.liji-h-j/... I','ll.,~'fdl.! I 1,'-'1!,
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f
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I.. .
l
;
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~
\,
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J I
r- I
,
I
Exam./Popilock - Gilliam
65
1 clubs because I quit drinking,
2 BY MR. POPILOCK:
3 Q.
4
5 A.
6 Q.
7 A.
8 Q.
9 A.
10 Q.
11
12 A.
13 Q.
14 A.
15 Q.
16 A.
17 Q.
18
19
20 A.
21 Q.
22
23 A.
24
25
You experience pain when the weather is going
to change?
Right, like today.
How do you feel today as you're sitting here?
Miserable,
Where do you feel bad?
The leo.g.
You're touching your right leg. Is that where
you have pain?
Yeah.
What kind of pain is it?
It's sort of an ache,
Did you ever have that before 1996?
No.
Other than your leg, are you experiencing any
pain in any other parts of your body right
now?
No.
Day to day does that pain change, or does it
stay fairly constant?
Well, it depends on how long I sit in the
lounge chair. The leg will stiffen up on me.
When I get up, I have to hold on to something,
II/ill"; (' \jdtll' \.<i f~I.'I'()f~ / 1\'(; s/In 'It 'I
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,f,
,
~.
----------------
Exam,/popilock - Gilliam
1
2
3 Q.
4
5
6 A.
7 Q.
8 A.
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12 A.
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15 A,
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18 A.
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the TV set, which is in front of me, to get my
mobil.ity right. Once I'm up, I'm okay.
Now, you had indicated earlier that your right
leg would sometimes give way on you; is 'that
right?
Yeah.
Do you know why it does that?
Because of the weakness of it, the
circulation, It's 29 percent.
Are you seeing any doctors about that
circulation right now?
Dr. Campbell, who Dr. Mira sent me to,
How often would you say that your right leg
gives way on yoU?
Oh, it's happened five or six times.
In fact, you broke your wrist on one of those
times; is that right?
Yeah, I did. Parking behind the church and
lost my mobility stepping off the sidewalk,
which is a one-way street, and darn near got
run over. The guy that picked me up out of
the middle of the street was the guy that was
going up the one-way street when I fell right
in front of him.
At that time it didn't bother me. But
III /If'; t", MII.lle\'; f~I,I'(lIUJ\'(; -"-IR\'fl'1:
IIlrrn"',ns ~ 1~.!l/I.'lh! J \or~ ~17.,'i4j'h' /8 I'il /.,'/II/.! J 1,'1 :J~
66
1
2
3
4
5
6
7 Q.
8
9 A.
10 Q.
11
12 A.
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8xam./Popilock - Gilliam 67
that night I went to the emergency room, and
they took x-rays of it, and it showed my right
wrist was broke.
The next day I went to Dr. Hely, and he
put a cast on it, That WIS March the 6th, and
April the 13th he took it off,
Did your right leg play any part in your fall
behind the Hamilton Restaurant?
No.
So your right leg didn't give way to you on
that occasion?
No.
MR. MACKIN: When did his right leg start
to go?
15 BY MR. POPILOCK:
16 Q.
17
18
19 A.
20 Q.
21
22
23 A.
Let me ask you that, Did you have problems
with your right leg before the incident behind
the Hamilton Restaurant?
No. I could walk as good as you.
Well, you don't know how good I walk.
MR. MACKIN: I was going to say you don't
know John.
Maybe I said the wrong thing.
24 BY MR, POPILOCK:
25 Q.
Did you ever fall because your right leg gave
fllltI..; {, ,\ld'/I(,I"'; I~U'(HUI-"f; 'iUn'HT
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Exam,jPopilock - Gilliam
69
1
MR, POPILOCK:
Those are all the
2
queati~ns I have.
Thank you very much for
3
your time.
4
(Whereupon, the deposition concluded at
5
10:42 a,m.)
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nUlls (, ;\/d,W','1S NU'l U:I/;\'I; ~nn'I(I:
"'Il'If,lllIrg ;-,:.! 1/,,/11111 ) "r~ ;'/;'.,'\-I'I<'dl...; /':\ I.S"",~ 1 ).lllJ7
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70
COMMONWEALTH OF PENNSYLVANIA)
) SS.
COUNTY OF DAUPHIN )
I, Glenda S, Travitz, Registered
Professional Reporter and Notary Public in and
for the Commonwealth of Pennsylvania and
County of Dauphin, do hereby certify that the
foregoing testimony was taken before me at the
time and place hereinbefore set forth and that
it is the testimony of:
HERMAN W. GILLIAM, JR,
I further certify that said
witness was by me duly sworn to testify the
whole and complete truth in said cause; that
the testimony then given was reported by me
stenographically and subsequently transcribed
under my direction and supervision and that
the foregoing is a full, true and correct
transcript of my original shorthand notes.
I further certify that I am not
counsel for nor related to any of the parties
to the foregoing cause, nor employed by them
or their attorneys and am not interested in
the subject matter or outcome thereof.
Dated at Harrisburg, Pennsylvania,
this 7th day of January 1999,
G Notarial SoaI
LIlW8~~tz, Not1"Y Public
My CcmmfI....- '!'!". Oauphln Counly
"'" E.plra1 Sap!. 24, 2002
~~0
_~~j__iS~~~,,-________._
,lenda S. Travitz
Registered Professional Reporter
Notary Public
(The foregoing certification of this
transcript does not apply to any reproduction
of the same by any means unless under the
direct control and/or supervision of the
certifying reporter.)
, filII" ,',\/'1111", \'i U,.,'olUI,\'{; 'il'Ut'HT
"'lrr;',I'fll'~ '1~-')I"'/I,!1 },'rA 71;"-,~-I,.IHI,~ 11.11.,'W/J.!I1,'11~7
Persollallllformatioll. .
I, .State:
(u) Y ClUl' fullllame;
(b) Each other name, ifany, which YOIJ have used or by which YOIJ hove been Koolln;
(e) The name of your spouse:11 the time of the accident Md the dale and place or' 7'our
marriage co sucn SJXluse;
(d) The address of your present residcnce and the address of each other residence wruch
you hove hod during the pa.11 five years;
(e) Your present occupnlion nnd the name and oddress of yoUI' employer;
(f) Dote of your birth;
(g) Your Socia! Security number;
(h) Your military service and positions beld, if My; Md
(I) Tne schools you bove anended and the degrees or certitlcutes awarded, irany,
ANS\VER;
a.) Herman Waverly Gilliam, Jr.
b.) N/A
c.) N/A - Wife died on June 17, 1990
d. ) 306 JUniper street
Carlisle, PA 17013
Resided at this location since 1~/1976i
e.) Retired
f.) April 18, 1916
g.) 217-10-2557
h.) U.S. Army, 1933 - 1936, Private 4th Class SpeciaHst
i.) Grade school, Lynchburg, VA _ 6th grade
see complaint.
factwll basL~ for claims and defe/lSes
, "'" . i. ,"'w"'" "" ",,,,, """ ,,, ,,,h ,,"m " "',," y" .' .,,,.,., '" "',
c:lSe,
~S\\I,B:
I
Wll1/I!SSI!S
I
J
I
~I
I
5.
(a)
Identit;1 each PCl'3on whd
(1) 1Vas a \vjOless 10 the incident through sight or he:uing
ll11d!or
(b
)
(2) H. ">W/'d" o( r"" ""'mi" ., h, """" 0 i ",
incident 0/ conditions or cirCllInsrilIlces at the Scene or' t~~
incident prior 10, at the ri/" 'I: Or atier the incidenc.
,
WI. '","" " "".\ '''h "",, Id" "'d. "'" ." "",,', "'" /"''''00 oed
activity at the time ofche incidenc.
ANS\vtB:
',) I, No,. "0', ., thi, 'in., oth'r 'h., Pl'i'ti'!.
2, Wanda Loy
49 West High Street
Carlisle, PA 17013
John Zahos
51 West High Street
CarliSle, PA 17013
John Mazias
351 West High Street
Carlisle, PA 17013
Nicholas Kasidifis
813 Forbes Road
Carlisle, PA 17013
b.J Ex.o, loo.tio, o",o,n, "'boo'h it i. beli"'d th.t
.'nd. Loy '" i, Blondl., .n't,or.nt, "d 'hn othnr thr.,
Were in the Hamilton Restaurant,
Trial i!.~hibitl'.
12, Idemir)' ail cxhibilS thol you inlend 10 use al the trial of this rnaner and stale whether the:,'
\\;11 be ~ed during the Iinbility ordnmages ponions of the trial,
c\NS\VER:
Not determined at this time.
,I
ij
Books, magazines, e/c.
13, If you intend to use any book, magazine, or other such wricinf! at trial. Slate:
(a) Tne nome of the writing;
(b) . The author of the \\'Tiling;
(e) The publisher of the \;'Tiling;
(d) Tne dale of publication oCthe writing; and
(e) The identi~1 of ule cUSlodian of the \;'Titing,
Al'lSWER:
Not determined at this time.
. . b for~ lh~ 1I1cid~l1t.
E~rlllll!lS ~ d' '''e date ot me inc\c\en\. S\:lte',
, --"I'\el~ ntece In'?, Ul
, d \' ''',ce ve:J.IS \!I\mcu y . r
c.o,.",~,,,,O" , ., lo"e~
, '0"" <," ,,,,,,,,,.,~, , "
( '1\ ot ~ol.U ctn\lIOyelS, ot \ . e ot
d< _ "" ~ 0 "'" . " ,<,0< b~"'" '^',"'" ", "" ,,,,
. \ '''al .....nou. eaCH 0 .
durin'/, anY 90tuOllO ". Y" ed'
m 'ollSil\e.~s \v'nile ,&eln910y .
, . ,,''',' <0" 0" ,,,, .,e,o,,o' ,~" ,\<0'"
\'ne ela\es ot COtl\l1\el\\~emCl\\ and \e(1'l\ln
ot selt,etn9Io'f!llen\"
, . each etn\llo~ent ot sclt.etn\lloytnent; anc.
1\1' "..",," ~",,,,,,, ~. .
. "",,,, " <," '" ,,,.b ,~, 10>"''"' " ~I"
1\1' ."'" ",,,,, . "" 0' ~:.., .o~ ,m,io>""~ "" <<,[.<m,IO>""" '0<
em\llo'f!lltnt. ana Ule antoU!\
each ye:J.I,
\3
\.a)
\.'0)
(c)
(d)
~w
a. )
I\II\Sle'1 ,^otOrs
,O'S aarrisbutg pi~e
car-liSle. pl\ ,10'3
i:naea in '99S,
to auction/return
prove cars
1 ~7. 000 oOI'1ear
I\Ppro~ill\at,e '1 ., . ,
~ salesll\an.
~ ca~
\'l. )
c. )
a. )
2i, W~r~ you c:JJTYing anything at th~ time of the alleged accident?
ASS \VE R:
Yes.
It' ,0, for each thing that you were c:urylng, please provide its size, shupe, lengthy, depth,
w~:ghl and breath,
,1,.."'SWEH:
A paper bag with a sandwich therein,
"
32. Have you e'ler hud an seriOlU: illness, sickntlS, disease or surgical operntior..'l. ei~~er before
or after the incidenc referred to ill the COlllo/wnt?
' ' ,
If so. please sUte:
u)
The date and place;
b)
.-\ deiailed dese~iption of your symploms;
c)
The names and addresses elf any hospimls rendering tre:wnenc;
d)
Tne names and addresses of all physicians, surgeons, os;eopuths, chi."oprae:ors.
or ocher medical prnetitioner rendering treatment;
e)
The approximate date of your reeove:y;
f)
If you did noe fully recover, the date your condition bec:une SUltiona.-.., una a
description of your condition ae that time. . .
A,NSWER:
32. Yes.
. (a.) 1946, Waynesboro, PA.
(b.) Cyst at end of spine removed.
(c.) Waynesboro Hospital
Waynesboro, P A
(d.) Dr. Guyton (Sp')). address unknown.
(e.) About 1 year after operatiOll.
(f.) N/A
(a.) 1,974, Carlisle, P;\,
(b.) Polyps in small intestine burned off.
(c.) Curlisle Hospitul, Carlisle, PA.
(d:) Dr. Bill Shelly, M.D, (Retired)
(e.) About 2 months aileI' operation.
(r.) N/A
(II.) 1987, 1988, Carlisle, PA.
(b.) Cutaruet surgery, left eye, 1987, right eye, 1988.
(c.) Carlisle Hospital, Carlisle, PA,
(d.) Dr. David Hartzell
Belvedere Medical Center
850 Walnut Bottom Road
Carlisle, P A 17013
(e.) Approximutely I month after each surgery.
(r.) N/A
(a.) Approximately 1980.
(b.) gall bladder removed,
(c.) Carlisle Hospital, Carlisle, PA.
(d.) Dr. David Bryant
Belvedere Medical Center
Carlisle, PAl 7013
(e.) Approximately 10 days.
(f.) N/A
ORIGINAL
ERMAN W. GILLIAM, JR. , IN THE COURT OF COMMON PLEAS
i '~~l PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V NO. 98-2317
CUMBERLAND COUNTY HIS'fORICAL
SOCIETY,
'" DEFENDANT JURY TRIAL DEMANDED
'"
DEPOSITION OF: WANDA LOY
TAKEN BY; DEFENDANT
BEFORE: KAREN c. ALBRIGHT, RPR
NOTARY PUBLIC
DATE: FEBRUARY 16, 1999, 3:00 P.M.
PLACE:
THOMAS, 1'HOMAS & HAFER, LLP
305 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA
APPEARANCES:
COSTOPOULOS, FOSTER & FIELDS
BY: CHARLES P. MACKIN, ESQUIRE
FOR - PLAINTIFF
THOMAS, THOMAS & HAFER, LLP
BY: JOliN M. POPILOCK, ESQUIRE
FOR - DEFENDANT
2000 Lingbr"\\'n I("ad · Suire l02 · Harrishurg. PA 17110
717.\4l1.l'22l" ra., 717,\4l),l'U1 . Lancaster 717.393,5101
3
1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
4 certification and filing are herehy waived; and that all
5 objections except as to the form of the question are
6 reserved to the time of trial.
7
8 WANDA LOY, called as a witness, being duly
9 sworn, testified as follows:
10 EXAMINATION
11 BY MR. POPILOCK:
12 Q Miss Loy, my name is John Popilock. Again, we
13 were just introduced in my lobby. I represent the
14 Cumberland County Historical Society in a lawsuit that's
15 been filed against them by a Herman Gilliam. You were
16 identified by Mr. Gilliam as someone who may have some
17 knowledge about circumstances surrounding his trip and
18 fall or slip and fall incident. That's why you were.
19 subpoenaed to come here today, to tell us what you know.
20
21
22
23
24
25
A Yes.
Q Let me tell you what we're going to do.
A Let's get back to the day. I do not remember
when it was. It's been a while.
Q Let me set some ground rules before we get
started. What we're doing here is a deposition.
1 A Yes.
2 Q Have you ever had a deposition taken before?
3 A Yes.
4 Q In what circumstance was that?
5 A You mean for here?
6 Q No
7 A It was through my business, and a few other
8 things I had to do.
9 Q Just to remind you, you have taken an oath to
10 tell the truth to the best of your recollection. And to
11 help facilitate this, because everything is being taken
12 down by a court reporter, you need to make sure to wait
13 until I'm done talking or Mr. Mackin is done talking
14 before you begin your response, because it's difficult to
15. take down two people talking at the same time. Do you
16 agree to do that?
17 A Yes.
18 Q Just as you're been doing, you need to make
19 sure all your responses are verbal so they can been taken
20 down by the court reporter. You agree to do that as well?
21 A Yes.
22 Q Let me ask some questions about what brings us
23 here today. Mr. Gilliam's Complaint against the
24 Cumberland County Historical Society indicates it was on
25 April 30, 1996, when this incident happened. I'm going to
4
1
2
3
4
5
6
7
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b.i'i ng you back to that time and ask you some questions
about it, How did you first learn of Mr. Gilliam's
accident?
A He was laying in the parking lot when I got
there. I was goiDg to Blondie's Inn, which is my
business, and he was laying there on the parking lot, and
complaining he couldn't get up. So I immediately said,
you know, are you sure you can't get up. And he said, no.
So I went into the business to my business,
which is Blondie's Inn, and called 911 and told them there
was a gentleman out in the parking lot laying, he cannot
get up, he may have broke his leg or arm. I wasn't sure
what was wrong with him.
Q Do you remember approximately what time of day
it was?
A It was probably I would say between 10 and
10:30.
Q A.M.?
A Yes.
Q What were the weather oonditions, if you
recall ?
A It was real icy out. Real, real icy. Because
I live two blocks away and it was up on Hanover Street and
it was real icy.
Q Do you remember whether it was precipitating at
6
1 the time you found him laying on the ground?
2
3
4
5
6
A
Q
icing?
A
Q
Yes, it was.
Was it raining or was it snowing or was it
It was raining and freezing.
Did you have occasion to inspect or look at the
7 area around where he had fallen?
8
9
10
11
12
13
14
15
A
Q
No.
Do you know whether it was icy in the immediate
vicinity where he was laying on the ground?
A Yeah, I mean, it was icy all over. Parking lot
was icy. That day was really a bad, icy day.
Q Did you learn at some point in time how he had
fallen to the ground?
A
No. Because when I got to the parking lot in
16 the morning to go to my business to the back door, he was
17 laying there, and there was a couple people that had went
18 by and I heard this gentleman moaning between two vehicles
19 and it was Mr. Gilliam. So -- and I asked if I could help
20 and that's when I called the ambulance for him, 911.
21 Q Where was Mr. Gilliam laying in proximity to
22 any objects that may have --
23 A I would say maybe about a foot away from the
24 dumpster, there was a big dumpster back there at that
25 t.ime.
1
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I can't get up.
Q Was he complaining that he was in pain?
A No, he just said he couldn't move, he could not.
get up.
Q Was anyone else there that you recall that you
know? You said a couple people may have walked by?
A Yes, walked by, but I didn't know who they
were, and they didn't stop.
o After you called 911, did you go back out with
him?
A Yeah, I went back out to stand there until they
came. They were there in a matter of a few minutes.
Q Do you remember if anyone else had come to the
scene before the ambulance personnel had gotten there?
A No.
Q Did anyone from the Hamilton Restaurant come
out?
A I'm not sure if Tommy's wife came out, and I'm
not sure what his name was. But his wife may have conle
out. And a couple of the other guys that work over there.
But I'm not sure what their names are.
o Did any of them have an umbrella with them? Do
you remember that?
A I don't remember. I don't remember.
o Was it raining when you corne back out after
9
1 calling 9117
2 A '{es. It was real rainy and sleety that day.
3 Really bad weather.
4 Q As you sit here today, do you have any idea as
5 to what caused him to fall?
6 A I don't know, because I was not there. I just
7 found him there, so I have no clue of how he fell.
8 Q Have you had any discussions with Mr. Gilliam
9 fOllowing this accident?
10 A No, other than he just said that he wanted
11 somebody to pay for his medical bills and stuff, and that
12 was just like on the street. I said, oh, whatever, and I
13 just went baok into my business.
14
15
16
17
18
19
20
21
22 A No.
23 Q What is your -- where is your present residence
24 where you live at?
25 A Where my business is, or where I live?
Q Did you ever ask him how he fell?
A No.
Q Did he ever tell you how he fell?
A No.
Q Did anyone ever tell you how he fell?
A No.
Q Are you awarfl of anyone else that's ever fallen
in that area where he had fallen?
11
1 Q Are you the sole owner of Blondie' s?
2 A Yes.
3 Q How long have you owned it?
4 A Well, actually I had a partner, which was a
5 gentleman I lived with. We had it for nine years. But
6 I've had it for two by myself. Altogether, 11 years.
7 Q Do you have any plans of selling it in the near
8 future?
9 A I don't know. I always say that every day.
10 Q Do you have any plans of moving from your home
11 residence in the near future?
12 A No.
13 Q If I need to get a hold of you for the next six
14 to nine months for trial purposes?
15 A No.
16 MR. POPILOCK: Those are all the questions I
17 have.
18 EXAMINATION
19 (Hunt Interview, one page, produced and marked
20 Loy Deposition Exhibit No. 1.)
21 BY MR. MACKIN:
22 Q Do you remember speaking to a man by the name
23 of Matthew Hunt back in November of 1997, a private
24 investigator who came to talk to you about __
25 A Yes.
1
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Q This is a report of an interview, Why don't
you take a look at that.
A Okay.
Q I know the fall was a long time ago.
A Yeah, and it's like trying to bring everything
together, how the parking lot was. I mean, I know it
doesn't seem long for you guys, but to me it's -- having a
business, it's -- you know.
Q April of '96, that's almost three years and two
months. Just a couple things. The second paragraph.
A I don't have my glasses with me. That's all
right.
Q At that point there it says halfway through
that she carne out of her restaurant where the dumpster was
located. Today you said you were going in.
A The dumpster is back where my back door is.
Q Were you going into the restaurant or corning
out of the restaurant?
A I was going in. I was corning through the
parking lot to the back door. The dumpster is the on
right-hand side, then there are vehicles and my back door.
Q Were you going to open the restaurant that
morning?
A My help was already there to open it, so I was
going in to work.
13
1 Q That's not accurate, then? She came out of her
2 restaurant where the dumpster was?
3 A I come out after I called 911. I went in to
4 call 911, then! came back out.
5 Q The first time you had seen Gil is when you
6 were going into the restaur~nt?
., A Yes.
8 Q Then you came back out after you called 911?
9 A Yes.
10 Q In the third paragraph there -- this is in
11 response to a question Mr. Popiloc)( had asked you you
12 couldn't remember what, if anything, Gil had said to you.
13 How about that third paragraph, does that refresh your
14 recollection at all?
15 A Well, yes. I mean, Gil couldn't -- he couldn't
16 stand up. Yeah, he was --
17 Q Did he tell you that he had fallen?
18 A Yes. Yeah, he told me he fell down. But he
19 didn't tell me how. He just said he fell, yes.
20 Q In the last paragraph, that the parking lot was
21 never in good condition. Describe the general nature of
22 the parking lot. Were there a lot of holes back there?
23 A Well --
24 MR. POPILOCK: I'm going to have to object to
25 the form of the question. You need to be a little more
14
1 specific as to where.
2 BY MR. MACKIN:
3 Q Do you understand the question?
4 A Yes, I do.
5 Q You can answer the question.
6 A Well, I mean, it wasn't the best of shape, but
7 I wasn't -- I can't remember where the potholes where, if
8 there were holes, or whatever. But I mean, it wasn't --
9 you know.
10 Q Were there potholes, to the best of your
11 recollection, in the parking lot? You just mentioned
12 potholes.
13 A Yes. I mean, there might have been maybe over
14 by the dumpster, but that would be at the end of the
15 parking lot. You know where I mean? Where the cars pull
16 in, and you might have maybe a hole there or something by
17 the dumpster.
18 Q Is that the only one you can recollect?
19 A That's probably about it, yeah.
20 Q That you can recollect now?
21 A That I can recollect now, yes.
22 MR. MACKIN: That's all I have, John.
23 Thank you.
24
25
EXAMINATION
BY MR. POPILOCK:
15
1 Q Just to clarify that now. When I asked you
2 whether you remember seeing any holes where Mr. Gilliam
3 had fallen, does this statement refresh your recollection
4 as to whether there were holes in the area that he had
5 fallen?
6
A
That I don't know. I know -- but where he fell
'1 wasn't on -- it was like maybe a foot away from the
8 dumpster. Around where the dumpster was, they were
9 picking it up / putting it down / there might have been
10 little holes around the dumpster. That wasn't where he
11 was at.
12
Q
How far would you say the holes you were
13 describing earlier were from the area where he had fallen?
14
15
A
Q
About a foot, foot and a half.
Can you describe for me the type of holes?
16 What size they were/ what they looked like? Was there
1'1 cracking in the pavement? Were there actual holes in the
18 pavement?
19
A
Where the dumpster was, as I can remember, it
20 was on a slab of cement/ so it would have been maybe some
21 cracks of cement that I can remember. You know what I
22 mean? Some chunks of cement that were broke out.
23 Q Whose dumpster was that, do you know?
24 A That was Tommy's from 'fhe Hamilton, and -- it
25 was actually his, and then we kind of shared it around the
..-------.....
----
16
1 area there. There were certain ones that shared it.
2 Q Did the Cumberland County Historical society
3 use that dUmpster?
4
A
No, not that I ~now of. But I don't think that
5 was in their -- I don't think that was on their parking
6 lot, I think that was on Tommy's area. I don't know. r' m
7 not sure.
8
Q
Do you know who owned the area where Mr.
9 Gilliam had fallen?
10
11
12
13
Q
A
Q
A
Well, that was in the parking lot.
Who owned the parking lot?
The Historical Society.
So the area of the parking lot and the area
14 where the dumpster were, were two different areas?
15
16
17
A
Q
A
Oh, yeah, that was on down, yeah, to your left.
Now I'm a bit confused.
If you would be coming out of my back door from
18 my business, to your left would have been that dumpster on
19 like a little slab of cement. And then right out __ to
20 your left is the dumpster. Okay? Right outside my door,
21 you can walk right into the parking lot. That is where he
22 was, between two vehicles in the parking lot.
23
Q
25
24 estimate he was?
How far away from the dumpster would you
A
I don't know. Probably a car length away.
18
1 lived on Hanover street, and I lived llke two blocks away.
2 I remember coming down, it was real icy. I was slipping.
3 I was walking. That's how I heard somebody moaning, and
4 he was between two vehicles where he had fell.
5
MR. POJ>ILOCK: Thank you very much,
6 EXAMINATION
7 BY MR. MACKIN:
8
Q
Just one thing. Just so I can remember this
9 later, I want to ask you to draw a picture, not to scale,
10 to show us, if you would, like where the door was that you
11 came out of the back of your restaurant, where the
12 dumpster was, where the cars were parked and where -- you
13 can just use stick men or boxes.
14
15
A
Yeah, I'm not that great, believe me.
I would say -- let's do my door here. I'll
16 just put Blondie's door here. See, the building goes back
17 this way. And then there's a building here, which was the
18 Historical Society's building here that they bought when
19 they bought the parking lot.
20 MR. POPILOCK: Why don't you write Historical
21 Society.
22
THE WI'fNESS: And then right here, this is a
23 walkway. This is like a walkway where you can corne down
24 through. And then there was -- I'm t~ying to change
25 they changed everything now. At that time there was some
L
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steps cominlJ from the apartments, from these apartments,
from the housing apartments. And then there's a dumpster
here. There was a dumpster here.
MR. MACKIN: Could you just write dumpster, so
we know what that is.
MR. POPILOCK:
THE WI'rNESS:
BY MR. MACKIN:
Q Is that the dumpster we were talking about?
A Yes. This is my door. I can corne right out to
this door, and here is a car. Let's bring the dumpster
over a little bit here. Like here. Then there would be a
vehicle here. I can walk out my front door between these
two. Then ther~ would be a car like down here. Because
.there would be space here. Sometimes there was space
here; sometimes there wasn't. Sometimes they had another
Or dump.
Dump.
parking
Q Another car?
A Yeah, they would stick another car in front of
there.
This is where I found Gil, lying between those
two vehicles.
Q Let me just ask you a question. If you can
recall, was the car pulled in -- which way was the oead of
the car, the hood?
...'
20
1 A Well, the oars pulled in front. You mean the
2 lights?
3 Q The front of the car, the lights.
4 A Yeah. Front of the car, front of the car.
5 Lights, lights.
6 MR. POPILOCK: Just drawn two circles on those
7 two vehicles designating the lights.
8 THE WITNESS: Yeah.
9 MR. POPILOCK: Keep in mind when you leave
10 today, all we're going to have is a piece of paper, and
11 whatever you're saying. So we need to make sure we
12 identify on the paper what you're saying is what we're
13 8ayi"ng.
14 BY MR. MACKIN:
15 Q You mentioned this is your front door. Is this
16 your back door?
17 A I'm sorry, this is my back door.
18 Q Because it goes into the parking lot?
19 A I I m sorry. Yes, yes. Also, I can recollect
20 maybe that Gil was parked in the parking lot. Yes or no?
21 Can I ask that question?
22 Q No, no, we ask the questions.
23 A sorry. I" ve been around my law students too
24 long.
25 MR. MACKIN: I'll mark that Exhibit 2.
------------
21
THE WITNESS: That's terrible, though.
MR. MACKIN: We understood it's not to scale.
THE WITNESS: Okay.
(Drawing, one page, produced and marked Loy
Deposition Exhibit No, 2.)
MR. MACKIN: I have no further quest ions.
Thank you.
EXAMINATION
BY MR. POPILOCK:
Q Let me just a~k you, to make sure we're clear
on this, you've drawn the back door on the bottom of the
exhibit. What is the road that would be --
A High .Street.
Q So High Street would be at the bottom of the
picture, is that right, if you're looking at the way the
exhibit has been marked?
A This way, you're saying?
Q Yes.
A Yes.
Q What road would be running along the right-hand
aide of the picture? Isn't there another road over here?
A There would be -- no. That would be the
parking lot. High street, then there's North Hanover
Street..
Q Where is North Hanover street?
4
5
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14 A No, it's South pitt street. It's -- when
15 you're turning at the light on High, you're going South
22
1
A
If you're here at my back door and you go on up
2 here, this would be North.
3 Q That's the road I was referring to. That's
North Hanover?
A Yes, that's North Hanover, and I'm High.
Coming North Hanover and High.
Q
The front entrance to the Cumberland county
Historical Society would be whore?
A That would be Pitt Street.
Q Where is that located?
A That would be South pitt Street. Right?
Q If you know. If you don't know, just say you
don't know.
16 Pitt.
17
18
MR. MACKIN: Making a right at that light.
THE WITNESS: You're making a right. You have
19 Tommy's, then you have the Historical society right there.
20 BY MR. POPILOCK:
21 Q So the road would run along the left side of
22 the picture to get into the Historical Society?
23
24
A
Q
Yes.
You've drawn a line with a G and an L between
25 the two vehicles?
1
2
3
A
Q
That's Gil.
That's the area where you found Mr. Gillil\m ill?
MR. MACKIN: G-L, Gil lying.
4 THE WITNESS: Yes, that's where he waF.! lying
5 when I came through the parking lot,
6 BY MR. POPILOCK:
7 Q The holes you Were refen ing to nOllt thll
8 dumpster, where would they be locnted on thia dillqram?
9
10
11
A
Q
A
I would say like around here.
You've drawn four circles?
I'm saying little, maybe little holes right
12 there by the dumpster.
13 Q Where is the Hamilton Restllur.ant on this
14 picture? Where would it be?
15 A Where would the Hamil ton be?
16 Q Where wCluld the back entrance to the Hamil ton
17 be? If I parked in the Cumberland County Historical and I
18 wanted to go into the Hamilton Restaurant in the rear,
19 where would I walk to?
20
21
22
A
They wouldn't let you in the __
MR. MACKIN: Just show us the baok door.
THE WITNESS: The bllok door 110 here, Tommy's
23 back door. This is through the WII lkwllY, IInd then you take
24 a left, and this is the back door to Tommy'S.
25
MR. POPI LOCK: That.' s 1 to 1'hll nk you very much.
23
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_.....~,.,.-"~~~............-----------~,~-..._.~_.~~--,~._--_.-
COUNTY OF CUMBERLAND
COMMONWEALTH OF PENNSYINANIA I
lIS
I, Karen c. Albright, n Notory PUblic,
authorized to administer onthn within IInd for t.he
Commonwealth of Ponnsylvllnia, do horeby aertify that the
foregoing is tho test.1 mony of WANDA !.OY.
I further cnrtify that before the taking of
said deposition, the wItness Was duly sworn; that the
questions and answers were t~ken down st.enographically by
the said Reporter-Notary PUblic, and afterwards reduced to
typewriting undor the direction of said Reporter.
r further certify that said deposition was
taken at tho time and placo specified in the caption sheet
hereby. I further cortify that I am not a relatiVe or
employee or attorney or counsel to any of the parties, or
a relative or employee of SUch attorney or counsel, or
financially interested direct.ly or indirectly in this
action.
I further cer.tHy that said deposItion constitutes
a true record of the testimony given by the said witness.
IN WITNESS WHEREOF, I have hereunto set
. hand
this 28th day of February, 1999.
NOTARIAL SEAL
KAREN C '1HT, NOI'I}I PUbl",
MochanlCl 1lbe,Jlnd County
Mv Commlss"... Ire. Jut 14,2000
--.
.............-----...--..-
--
25
,~.
mTERROGATORIES
1. Have you ever corresponded with anyone from the Cumberland County Historical
Society, or an agent thereof, in writing or orally, regarding your pelmission to
park in the Cumberland County Historical Society parking lot which is the locus
of your alleged fall?
If the answer to the above Interrogatory is in the affirmu\ive, pleuse state:
a. The nature of the communication (1.0, oral or written),
b. The date of said communication,
e. The location of said communication.
d, The individual with whom you communicated.
e, The substance of the communication using quotes, if known.
ANSWER:
1, Yes.
a.
b.
c,
d.
c.
Oral.
Approximately Spring, 1996. March! April.
I was in the Cumberland County Historical Society Parking Lot.
We spoke over the fence.
P.K. Miller.
I mentioned to P.K. Miller that since the Historical Society had purchased
the lot, I guess I couldn't park there anymore, and he said it was still
alright \0 park in the lot as long as I parked in front of the dumpster or
along ils side, as nothing was going to be done to the lot for awhile. I
could park there until cons\nlction started.
INTERROGATORIES
2. Have you ever communicatcd with any individual 01' the Cumberlund County
Historical Society or an ugent thereof, either in writing or orally, regarding your
slip and fall accident as alleged in your Complaint?
If the unswer to the above Interrogatory is in the affirmative, please state:
a. The nature of the communication (i.e, oral or written).
b. The date of said communication.
c. The location of said communication,
d. The individual with whom you communkuted.
e. The substance of thc communication using quotes if known.
ANSWER:
2. Yes.
a.
b.
e.
d.
e.
Oral.
Approxitnutely September. 1996.
I called the Society.
Ms. Witten,
I called and asked Ms. Witten ifP.K. Millcr had told her ubout my fall.
. She replied that it wasn't up to P.K. Miller to tell her, but she would be on
it and investigate it.
II
HERMAN W. GILLIAM, JR.,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VAN/A
v.
CUMBERLAND COUNTY
HISTORICAL SOCIETY,
Defendant
: NO.: 98.2317
: CIVIL ACTION - LA W
: JlJR Y TRIAL DEMANDED
I. STA TEMENT OF FACTS/PROCEDURAL HISTORY
Plaintiff instituted the above-captioned cause of action against Cumberlllnd County
Historical Society for personlll injuries he allegedly sustained in II trip and fall on the parking lot
of Cumberland County Historical Society in Carlisle, Cumberland County, PennsylvlInia, on
April 30, 1996,'
On April 30, 1996, Plaintiff parked his lIutomobile in the Cumberland County Historical
Society pllrking lot, which is loellted immediately behind the HlImilton Restaurant. Plaintiff
bought II sandwich in the Hamilton Restaurant and was returning to his automobile when the
incident giving rise to the above.eaptioned cause of action occurred. (Hermlln Gilliam
Deposition, 12/21/98, p. 27; See Reproduced Record filed contemporaneously herewith at
Exhibit "A"). Plaintiff was proceeding to his car while carrying his sandwich in his right hand
when he observed a delivery truck had pulled in next to his vehicle. (Herman Gilliam
Deposition, 12/21198, p. 27). P1aintiffthoughl that he would be able to squccze between his car
and the delivery truck. (Herman Gilliam Deposition, 12/21198. p, 28). Plaintiff testified that as
he was proceeding towards his vehicle, he "stumbled with his ,left foot on a rock or trash and fell
----'....".~--.~..,- ..........-..... 1 Vl" .-.........~
~tr~g." (Herman Gilliam Deposition, 12/21/98, p. 28). After stuQ1blif}B~U(f the rock
--..
(lr trash, ~Illintiffs right foot got raughl in a pothole and he fell to the ground. (Herman Gilliam
Depositi~n,nI2/21/9'8:'p: 28)........ ~.."..,,~ """0<".. _'_~_
t Herman W. Gilliam, Jr.'s deposition was taken on December 21, 1998, Defendant has been informed that Plaintiff
died on July 7, 1999 as a result of unrelated callses, As such. Plaintiff's deposition of December 21, 1998 Is the only
recitation of the facts which can be used by Plainliffat the trial of this matter.
Plaintiff testified that he did not know what he stumbled over. Plaintiff testified that he
believed it was a piecc of trush or a Iittlc rock or gravel, but could not identify the item which
caused him to fall. (I'lerman GiIlium Deposition. 12/21/98, p. 41). Morcovcr, liner he had fallen,
he did not look to see whut it was thut had caused him to full. (Ilcrmlln Gilliam Deposition,
12/21/98, p, 41), Plaintiff was asked repeatcdly lit his deposition, yet could not identify what
caused him to fall. (Herman Gilllllm Deposition, 12/21/98, p, 41.42).
Plaintiff will undoubtedly point to alleged potholes in the parking lot as the cause of his
fall. However, the Plaintiff was unequivocal in his deposition that it was not the pothole that
""'.' ',- -- , -" ;. _, ,.._-.,' ," ,-"nO,""""., "-~".~.__ _, ",...., ._,.... ,,-,,~ ,c.,~,.~.c,'.-,^' ,.,. ,., '-'_'h" ._.,.".\
caused him to fall to the ground. Rather, it was the unidentified object adjllcent to the pothole
~-' . . - . .,
whiehcallsed him to fall. (Herman Gillium Deposition, 12/21/98, p. 45),
Plaintiff was aware of the existe.lli:~J!~~thole prio~!?~..!!I}!' (Herman Gilliam
Deposition, 12/21/98, p. 43). N.?t only was Pll!inlif( ijwaJ.:e..oL1b\:~j~ls.n2,~..9JJ.h).s_E~Lhole, ~e
was trying to avoid it prior to his full. (Herman Gilliam Deposition, 12/21/98, p, 44).
._ _'" "'_',F".~" _.,..,.......-<"..__... ......",..,..,..,......"'''''''''''_~-...
Plaintiff testified that he did not know if ul1yone at the Cumberland County Historical
Society had any knowledge of the existence of the item, whatever it might have been, presence in
the parking lot prior to his trip and fall. (Herman Gilliam Deposition, 12/21/98, p. 68).
Moreover, at no time did Plaintiff ever speak to anyone at the Cumberland County Historical
Society about the existence of this item which caused him to trip and fall. (Helman Gilliam
Deposition, 12/21/98, p. 68).
Plaintiff did not see the holes on the day of the accident, however, as they were filled
with water. Aeeording to the Plaintiff, it was ruining and sleeting at the time of his trip and fall.
(Herman Gilliam Deposition, 12/21/98, p(/j'j'im; see also, Plaintiffs Answers to Defendant's
Interrogatories - Set I, No. 25; Reproduced Record, Exhibit "8"). Similarly, Wanda Loy, the
owner of Blondie's Inn, and the individual who found Piaintiff lying on the ground, testified that
it was extremely ic,y at thc time she found Plaintiff. (Wanda Loy Deposition, 2/16/99, p. 5;
Reproduced Record, Exhibit "C"). Ms. Loy testified that it was raining and the parking lot was
very icy, (Wanda Loy Deposition, 2/16/99, p. 6, 17-18).
Plaintiff was a trespasser at the time of his trip and fall. Plaintiff was not authorized to
.....- ~---..
...,.,............,
2
park in the parking lot adjacent to the Cumberland County Historicnl Society. PlnintilT
admittedly did not park in the pnrking lot ns a patron of the Cumberland COllllty Historical
Society. Moreover, Pt\\(lJ.tjfL~!\~_~st.mi~~~!t!~~~~:.of"No Pnrking" si~n the parking lot for
the Cumberhll1d County Historical Socicty. (Scc PI;]~tfrrs Responses to Defendant's Request
for Admissions No. I, No.2; Reproduced Record, Exhibit "D"). It is anticipated, however, that
PlaintilT will point to n conversation he had with Pierson K. Miller during the Spring of 1996.
....
The Plaintiff indicated in Response to Defendant's IntelTOgatories - Set II. thatQ'earson K. Miller
(sic) told him that it was "alright to park in thc lot as long as [he) parked in front of the dumpstcr
or along its side." (See, Plaintiff's Answers to Interrogatories __ Set II, No. I; Reproduced
Record Exhibit "E"). Pierson K. Miller, however, is not an employee or agent of the
Cumberland County Historical Society and has no llllthority to bind the Cumberland County
Historical Society in any of their business or property dealings. Rather, Pierson K. Miller is a
past Board Member for the Cumberland County Historical Society and has not been active with
them since the 1970's. (See, Affidavit of Linda Witmer; Reproduced Record Exhibit "F").
Pierson K. Miller is merely a benefactor for the Cumber/and County Historical Society and
cannot speak or bind the Cumberland County Historical Society with regard to changes in their
policies regarding parking.
Defendant filed a Motion for Summary Judgment on September 23, 1999. This Brief is
filed in support of that Motion for Summary Judgment. Defendant requests that their Motion for
Summary Judgment be granted and that Plaintiffs Complaint be dismissed with prejudice.
II. ST A TEMENT OF OU.1;STlONS PRESENTED
A. WHETHER THIS COURT SHOULD GRANT DEFENDANT'S
MOT/ON FOR SUMMARY JUDGMENT SINCE THE PLAINTIFF
WAS A TRESPASSER AND DEFENDANT DID NOT ENGAGE IN
WILLFUL OR WANTON MISCONDUCT?
(Suggested answer in the affirmative.)
3
After the relevant pleudlngs ure closed, but within such time us not
to unreasonably deluy trinl, 11llY pnrty muy move for summary
Judgment in whole or in pnrt liS n mnller of luw:
I. Whenever thcre is no genuine issue of nny mutcrlul
fnct ns to n neccssnry clement of thc causc of nctlon
or defensc which could be estnblished by ndditlonul
diseovcry or cxpert report, or
2. If, after the completion of discovcry rclevant to the
motion. including the production of expert reports,
an adverse pnrty who will bear the burden of proof
at trial has failed to produce evidence of facts
essential to the cnUNe of action or defense which in a
Jury trial would require the is:mes to be submitted to
ajury.
Pa.lW.P 1035.2
The essence of Rulc 1035.2, as explained by the comments to the rule is that the
Motion for Summary Judgment encompasses two concepts:
I, The absence of a dispute as to a material fact; and
2, The absence of evidence sufficient to permit a jury to find a fact essential
to the cause of action or defense.
Pn.R.C.P. 1035.] explanatory comment--.1996. The comments further explain that the former
Rule is unclear us to whether it eneompusses the type of Motion which is based upon a record
which is insuffieient to sustain a prlma/acte case. Rule 1035.2(2) is explicit in authorizing such
a Motion.
When the Defendant is the moving party. he may makll a showing necessary for
entrance of Summary Judgment by pointing to materials which indicate that the Plaintiff is
unable to satisfy an element of his cause of action. See.. Godlewski v. Pars MlIIJufacturilli
Coml2mlX, 408 Pa,Super. 425, 597 A.2d 106 (1991); citing Eckenrod v. GAF Corooratil!!1 375
Pa.Super. 187,544 A.2d 50 (1988) and Celotex Corooration v. Catrett 477 U.S. 317, 106, S.Ct.
2548, 91 L.Ed. 2d 265 (1986).
5
When deciding a Motion tor Summary Judgment, the Court must view the
evidence in the Ught most favorable to the non.moving party and must give the non-movant the
benefit of all favorable inferences that may reasonably be drawn from the evidence. See, Bertani
v. Beck, 330 Pa.Super, 248,479 A.2d 534 (1994); Soain v. Vincel1~. 315 Pa.Super. 135,46\
A.2d 833 (1983). However, the non-moving party may not I'est upon the mere allegations or
denials of the pleadings, but, according to Rule 1035.3 of the Pennsylvania Rules of Civil
Procedure,Pa.R.C.P. \035.3, must file a respolwe identifying:
\. One or more issues of fact arising from evidence in
the record controverting the evidence cited in
support of the motion were from a challenge to the
credibiiity of one or more witnesses testifying in
support of the Motion, or
2. Evidence in the record establishing the facts
essential to thc causc of action or defense which the
Motion cites as not having been produced.
Pa,R.C.P. \035.3.
Although questions of negligence and causation arc generally for the jury, thc
question of the legal sufficiency of thc evidenec establishing a prima facie case of negligencc
and causation first must be answered by the trial judge. Whe.rcinsuffieient evidenec exists to
justify an inference of negligence or causation, the trial court must grant judgment in favor of the
Defendant. Sce, lJohner v. Eastern El\nress.lne,,405 Pa. 463,175 A.2d 864 (1961); Seabum v.
Luzftrne & Carbon County Motor Transit, 394 Pa, 577, 148 A.2d 534 (1959); Caldwell v.
PennDOT, 120 Pa.Cmwlth. 358, 548 ^.2d 1284 (1988). Morcover, the trial court has a duty to
prevent the jury from deliberating over cases which would require it to reach a verdict based
upon conjecture, surmise, guess or speculation. Seabum, Suorq.; Cuthbert v. CitLQf
Philadelphia. 417 Pa. 6\ 0, 209 A.2d 26\ (1965).
Prima Facie Evldel)ce In ^ "Silo and FaU Nevll~entt.Qlli
^ possessor of land is not an insurer of the safety of those on its premises.
Moultrcv v. Oreat A & P T~ Compan~. 281 Pa.Super. 525, 422 A.2d 593 (1980). Thus, the
mere happening of an accident is not evidence of negligence, and by itself is insufficient to send
6
the caSe to a jury. See. Bohner v. Eastern Exoress.~, 405 Pa. 463,175 A.2d 8~4 (1961);
.Ji'-j
Thomus v. Gorman. 366 Pa, 242, 77 A.2d 413 (1951); MQY!!mx. supra Thus,~e duty of a
possessor of land toward a third party entering the land depends 011 whether the entrant is a
trespasser, licensee or invitee. Sec. fillange v. Philadelphia Law DepqI1mM!, 640 A.2d 1305.
1307 (Pa.Super. 1994).')The Restatement (Second) of Torts defines a trespassqr as "A person
who enters or remains upon land in possession of another without a privilege to do so created by
the possessor's consent or otherwise." Restatement (Second) of Torts Section 329; Palnnge. 640
A.2d at 1307. In contrast, a licensee is "a person who is privileged to enter or remnin on land
only by virtue of the possessor's consent." Restatement (Second) of Torts Section 330; Palanl,le,
640 A.2d at 130S. The status of an invitee is defined as follows:
(I) An invitee is either public invitee or a business visitol'.
(2) A public invitee is a person who is invited to enter or remain
on land as a member of the public for a purpose for which the
land is open to the public.
(3) A business visitor is a person who is invited to enter or remain
on land for a purpose directly or indirectly with the business
dealings with the possessor of the land.
Restatement (Second) of Torts Section 332; Palal1lze, 640 A.2d at 1307.
A. PLAINTIFF WAS A TRESPASSER AND DEFENDANT DID NOT
ENGAGE IN WILLFUL OR WANTON MISCONDUCT.
In this case, the evidence reveals that Plaintiff was a trespasser. Plaintiff testified
that he parked his car in the Cumberland County Historical Society parking lot with the intention
of patronizing the Hamilton Restaurant (Herman Gilliam Deposition, 12/21198, p. 27). Plaintiff
admitted that he did not park in the lot as a patron of the Cumberland County Historical Society,
Moreover, Plaintiff was admittedly aware of "No Parking" signs in the parking lot for the
Cumberland County Historical Society. (See Plaintiffs Responses to Defendant's Request for
Admissions No.1, No.2; Reproduced Record Exhibit "D"),
It is anticipated, however, that Plaintiff will point to a conversation he had with
7
Pierson K. Miller during the Spring of 1996. The Plaintiff Indicated in Response to Defendant's
Interrogatories - Set II, that Pierson K. Miller told him that it was "alright to park in the lot as
long as [he] parked in front of the c1umpstl'r or along Its side." (See, Plaintiffs Answers to
Interrogatories - Set II, No. I) (Reproduced Record Exhibit "E"). Pierson K. Miller, however, is
not an employee or agent of the Cumberland County Ilistorieal Society and has no authority to
bind the Cumberland County Historical Society In any of their business or property dealings.
Rathel', Pierson K. Miller is a past Board Member for the Cumberland County Historical Society
and has not been active with them since the 1970's, (Sec. Affidavit of Linda Witmer at
Reproduced Record Exhibit "F"). Pierson K, Miller is merely a benetlu)tor for the Cumberland
County Historical Society and eanl)ot speak or bind the Cumberland County Historical Society
with regard 10 changes in their pollclell regarding parking.
Under Pennsylvania law. It is well settled that "[t]he duty owed (0 trespassers by a
property owner is only to refrain from willful or wlll1ton~iseonduct~'~':"';""'"'07t;hm v. Sky Havel] -,,_
".' ,,,,,,.,.,c.,.-,,c,~ ~__ .lIiil.....'f(..'i!.v..-.:-.._..._
Coal. In'<.:, 386 Pa.Super. 598, 609, 614, 563 ,rn1r!lI, 896,'899 (1989), Judge Browsky
commented on the definition of willful misconduct with regard to trespassers in the Grnhm v.
Sky Haven Coal, Inlb case as follows:
I,' Willful misconduct means that the act or desire to bring about the
. resulianf'/i'li'i"m, or was at least awure that it was substantially certain to (c;.
ensue; this means that willful misconduct requires aClllal prior
knowledge of the trespasser's peril. . . . Wa'1I.9.u....w.i~Q_ruIuct, by
contrast, means that an actor has intention~.done an act of an
unreasonable character in disregard of a'lliif-known to him or so
obvious that he must be taken to have been aware of it, and so great as
to make it highly probable that harm would follow. It is usually
accompanied by a conscience indiffcrenee to the consequences and not
a desire to bring them about; as such, the actual prior knowledge of the
particular injured person's peril is not requi"ed. It is enough that the
actor realizes, or at least has knowledge of sufficient facts that would
cause a reasonable man to realize that a peril exists, for a sufficient
time beforehand to give the actor a reasonable oppot1unity to take
means to avoid the injured person's accident; the actor is wanton for
recklessly disregarding the danger presented. .. .
IQ., 386 l'a.Super. at 606, 615, 563 A.2d at 895, 891 (Brosky, J. Concurring and Dissenting
8
"".",) ,em",,,,I. I' ""loOn (1.".,1 """", ",,,,,,). ",,"'I 0' ,'" 'o~,.I", "ol"m
b" .'" b""'''''''''''' ,ho' ,'" "''''''''''"'' c~mlY 1""".,,1 """" ",,,,.. I. "iii f.1 '"
".." ",I"""'''''' A' ",,,,,.. '" ,bI' "", II ,,,po'. ,ho' 1",1'"'' "oOld 0'" ,h.1 ,bl' c,m.
." "" C.~b"I"" Co"," H'.""'" ""I",.. f.II'" '0 ~mo" ,"b" .m" '" ",', '"
.."'" fmm ,,,,i' """., 10' ."1,", "d """oo. 'r" "" "" b"."'" "".Id '" , ,re"
injustice.
'f'" mo. "",.., "",,,,, "f .'" ",' ,", ",,,,oo """".d"" ,. foo'" .h,re ·
'.odo""" ."." , ",,,, 0' .'re '" "b" "~,, , ,""." '" ",'h " """,,' ,~,,,,,,," fmm
d""" "" ,'" ,,",,. ,. ,b'" \Y." of ,,~., ,'" .""'""",, 're'''-" "'<11 ,,,,la'" ",,,,
0' 101" ,~""". ~,,,,", g,.bOl", .."m, C "". ". ,. ".,,, R"'~ , c"m '" , 351
",.S,,,,,. 196, ,,5 A.ld 933 (19")' ",oo"" .11"''' "",..ftre.,"'" ",", " ,. "id<ll'
,"" ",oo""'"" COO., "''' oo' ,.obl I ,,,", 0 d"" ",", "", of ,,< ~"".." " m.,,,"I' ,b'
""d; "th", ,b" ."" f'" '"' ",,,,,,II'" ,\III' "" ,,",,""" ~" ", ,.,,"'0"'" ,re"
."""", " d,,'''' .bI.h "iii re"" " ""re bOlm 01 "'" 0' ,,,Ib to ,h' """.""
...,,,,,, om "0'" " " ",,,,,,, ,. ,bl' ,,~ ,\III' ,b' C.","",." CO"'"
Hi"OI'''' """" "',..', ,. '" "'" of .11"" 01 .",oo "',..",,"',. ^' ",b. ,I''''
""",'Il" ,,,,,, " . ,re.,,""" .,.'.iff I, ",ob" to ,,"h",h . ",I"" f"" "'" of 00,11'-
.."'" ,,,"'b.''''' eom'" H "..I'" So< ,., I, ,bl' I." ," f,lI ,.~. A""""'" ,hi' C"".
should distniss the instant cause of action with Ilrejudice.
.' THE CUMBERLAND CD"N" HISTORICAL SOCIETV OlD
NOT "AVE ACTUAL OR CONsTR"CT"E KNOWLF,oGE OF
tHE ALLEGEDLY DANGERO\JS CONDITiON.
,,,."',., "",,,, ,do ,"" ,bl. "'"" "', ", "",,,,,," 1'1.1",' ff ." ·
""""'''' ,. thi' _" 0""""'" " '",,,,.. \0 s,m- ''''''','' ""." b'''~~
PI"""<< ,_, ,\III. D,f"''''' ""' """,I '" """",,II" ,,,.,"',, of '"' oil"''''
""""''' ",""III". ,. Ibl' eo","""''''''"' . 1"''''''''' ofl'" I. 001 '" "..." oftb'
",fO, of \\III'" " ,,, """"".. Mo,II~'" '"'" A& "3" Co""",", ," "..s."".
'lS,422 ,.2d S93 (1900). Tb"', ,b' ""re b,,,,,,.I., of" ",,,,,,, I. "I "id- of
",,11'_ ,"", by "",If, I. ,.",m""" \0 ","" ,b' ,,~ '0 'i"'" ~,ilOh",'" F.-
9
, \
\
Express. Inc., 405 Pa. 463, 175 A.2d 864 (1961).
As stated previously, Pluintitfs stutus us eithcr a trespasser, Iiccnsce 01'
invitee is critical to understanding thc duty Cumberland County Historical Soeicty owcd
to Plaintiff at the time of his trip und fall. At most, Plaintiff wus a Iicenscc. The
Restatement (Second) of Torts Section 342 deseribcs thc duty of cure owed to licensces
as follows:
/'
(A posscssor of lund is subject to liability filr physicul hurm eauscd to
Iiccnsees by u condition on thc lund if. but only if:
u. Thc possessor knows or hus rcason to know of thc
condition and should rcalizc it involves an
unreusonuble risk of hurm to such liecnsecs and
should expcct thatthcy will not discover or realize
the danger; and
b. He failcd to cxercisc rcasonablc carc to make the
conditions safe, or to wurn the licensees of the
condition und the risk involved; and
c. Thc licensees do not know 01 havc reason to know
of the condition !lnd the risk involvect.
~ llWl, Q.tLy. Unclaimed Frci~ht Company, 395 Pa.Supcr. 483, 492, 577 A,2d 894, 898 (1990).
Application of this standard must lead this Court to conclude that cven if Plaintiff
. l1I"iL ~"""I'
was a licensee, Cumbe1'land County Historical Society owed no duty to Plaintiff to rcpair the
I',"""
alleged pothole. Plnintiff testified that prior to his fall, he was aware of thc existcnee of this
hole. (Herman Gilliam Deposition, 12/21/98, p. 43.44). Moreiiver,""PTiiTiiliTfteStified that he was
attempting to avoid the holc prior to his tripping and fulling. (Ilerman Gilliam Deposition,
12/21/98, p. 44), Plaintiff stated that he did not want to step in the holc. Therefore, Plaintiff
knew of thc existence of this hole, yet chose to walk near it nonethcless. Based on Plaintiffs
own testimony, it is clear that Plaintiff was aware of thc hazard, but nevcrtheless proceeded to
encounter it in spite of the fact that an alternativc route may have been availablc to him.
Morcovel, it is well cstablished in this Commonwealth that, at a minimum. the
possessor of land must have either actual or constructive knowledgc of the allegedly dangerous
I j
,
~.
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10
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["~I
\;iI<~ ,. MoC"" SI.",. C"''''..... ," ".122, "" 101 ." "', '" (19\4).
Noo''''" _" .1'0 ,,,,,od ,'" o'T",'" 00 ,,," """ Ib" ,b' Pi.,liiT "" .~,,'
" ""hi I"~ ",II~ oft'" d..."o" ,,,01' ,no no ,'" ,.rt oft"" D" ~''''' " iP,rl'O" ,. Horn
","'11100 ""." "obllll, '" .1I"b. Wb<re I'''' " ,0 "10',,,, "' ,'" """" I' l"oiTI,I'"
10 '0""''' '" ",,,,,,, " '0 "" ,f ,'" ,,,"'0'" "'0"" ..,~'oo," .. · ""Ii,,,,,, ,,'100
"",,"'I", ",," " ",,,,,\10"" ",II"', ,b. c~,rt roW< ",," 0 "Id'" " ,,,,,,, ",m"'''
J""""" I' r,,"' ., '''' ,.rt, .,.1'" wbo~ ".billl, ,,~",bl. ,,,, L<~,.,k , ,.Jjllo\Jl!Wl
g"Jw,,' C.~."", 411"" '02, '" A.ld ,3S 1196'). 'r" ""., .. ,,'" d"Ii', wllb doll"
owcll to invi\ecS urc unulugoUS to thc instun\ situution.
",f'" 0 ""''''"'' of I'" ,'" b' ,,,,,,.d wllb ,b' '0" '0 ,ro"" II"~ ',0 I""
.,.1'" . _0100' ",dllloo, " ',011" roO" ,ro" .11"" ,I<< ,ro,"""' .r ,I<< ,'" "" 0 ,'"
" .'"",., ,", "''''' '"' ",,,,"'00, "' ", "'" "I'" " ",."',,,,, no"" of ..', om'"'oo.
!i<<, ~ft ,.l!<>'" E",,'" H",'IoI QO'b""'"",\> ." ,..so,o. 330, ",0 A.2d 119, 722
(1991\, .11'" M2J!''''' :<Jl"" All""" & ,,,'f" "'II !:",p.'" 281 ",. S 'O'" S25, "" 422
'.ld 50','" (19'")' Soo .1"" 1YI>,rn ,. p", ""ro. c..-' 414 P..S,,,,,. "', "" A.ld
," (19")' ~" ,. M"""" St"". Como""'''' ," P.. m, 10' ..2d '" (19\4)1 Mort'''''
'" 0"" ",,,,,,i' '" ,,,If" T" '''i!W'''''' 419 Po. 229.213 ..ld 60' ('%"1 D'"'M''' ,
Qimbcl llm\ML'\Jl1~ 160 PU.SUpCl. \ 97, 50 A,2d 7 \ 6 (\ 941),
" !'.od<'" "''', 'b. Pi~,1i IT ,,,,,oJ ,b' """",,'" "0," "", ."', w.I"" '
.OW ,I,,", f ,II "" ,"iT,'" "'I,ri... II 'od "," ,oow'" ,"",,,,"" ", 'oy. m,II'" ,oow WII'
" '1"'" 00 th. '00', "" Plo'oI'iT d,il h<"''''' w"'o1 Ib"",b , ,,," "~ I of w.'" , f,,' i 0
",ro"'" "''''' w,,,,,,,, ",Ii n" \0 ", ,..",,, 0' 0 ",odd'" ", "pool .f w,,,,." ro, ..'y
"I'"'' .. \0 ", "i""'" of ", poo' of w"" ,,,,,01 hy ,"III', ,"w "'" Ib" ;, bod" ,,'00
'"' ",,' \0 n" ro;oo"" TI<o 'ow" ",rt ~"," , ",,",, ",,;,b ", .",110\< ",ort .m",,",
f" Ib' "'''' 'hO' I".;,,'ff f.ii,' \0 ,,,0< ,hot ,'" """"", bod ",lib" ",,,,I 01 "",,,,,,,,,
.,,1" of"" ""01,,,",,'"'00." illi" 124. ."" ,,,,,,,,I" .",d .. folloW",
"No court hus cl/cr hcld \hut flllc minutcs is sufficient constructive
noticc of u dangcroUS condition; to so hold would bc \0 mukc \hc
Dcfcndun\ al\ insurcr."
I!
,
\,
\
.
IUld Hardllrt Hakin!! ComDlIny. 366 Pa. 485. 77 A.2d 362 (1951), and Moul!rQY v. Great Atlantic
& Pacil1c Tea COll1Jll!!lli 281 Pa.Super. 525, 422 A.2d, 593 (1980). In Sheridan. Plaintiff
mounted a single step and started to enter a restaurant's revolving door when she slipped and
fell. It was misting or raining slightly, it had snowed the day before, the streets outside were
slushy and the floor where she fell was wet, slushy, dirty and slippery. The floor was smooth tile
and there was nothing on it but slush and water. The appellate court rejected Plaintiffs
contention that the conditions themselves, i,e.. smooth tile and wet whether, put the Defendant
on notice and stated:
There was no evidence, apart from the description of general
weather conditions, [01) how long the wet and slushy condition
of the entryway had existed; no evidence that Defendant had
taken any measures or no measures to correct it and no
evidence that there was a similar condition inside the
restaurant. For all we know, an employee may have mopped it
up two minutes before Ms, Sheridan fell.
Sheridan v. Horn and Hardart Baking Compal!X, 366 I'a, 485, 487,77 A.2d 362, 363 (1951).
The Moultrey case is analogous to the present case. In Moultrex, the Plaintiff
testitied that she did not know how long the cherry had been on the floor or how it had gotten
there. Further, she was unable to offer any evidence as to when the area had last been cleaned.
A nonsuit was granted by the lower court.
The Superior Court affirmed the nonsuit framing the issues as follows:
. . . the question presented is, whether in order to make out a
prima facie case in a negligence action predicated upon the
Restatement (2d) of Torts *343 (1965) appellant-invitee must
prove that appellee-proprietor had either actual or constnwtive
notice of the offending transitory condition which allegedly
caused appellant's harm,
Moultrev. Supra, 281 Pa.Super. 525. 527 422 A,2d 593, 594.
The Superior Court noted that the Plaintiffs case in chief must
"consist of evidence which tends to prove either that the
proprietor knew, or in the exercise of reasonable care ought to
have known, of the existence of the harm-causing condition"
12
M2~. 281 Pu.Supel'. at 530,422 A.2d at 596. The Court thcn discusscd thc rcquirements
imposed upon the Plaintiff by Section 343 of the Restatement (2d) of Torts, concluding as
follows:
"Accordingly. the Restatemcnt (2d) **343, 344 and our cases
support the Proposition that the invitee must prove either that
the proprietor had a hand in creating the Imnnlld condition, or
that hc had actual or constructive notice of such condition."
Moultrey. 281 Pa.Super. 525, 535, 422 A2d 593, 598. The Court statcd that constructive notice
could be proven by evidence which showcd "that the condition existed for sllch a length of time
that in the exercise of reasonable care the owner should huve known of it." Moultrey. 281
Pa.Super. at 531, 422 A2d at 596, Sce also, Mvers v. Penn Traffic. 414 Pa,Super. 181, 606
A,2d 926 (1992).
Similarly in Ow v. Kroger CQ" 195 Pa,Super. 205, 171 A,2d 588 (1961), the
Plaintiff was leaving u groecry store when she tripped and fell over the turned up comer of a
floor mal. The appellate court affirmed judgment notwithstanding the verdict in favor of the
Defendant. The Plaintiff's burden of proof was to prove that the condition causing her fall was
either the result of the direct negligence of an employee of Defcndant or that the Defendant had
sufficient constructive knowlcdge of the defect to have enabled to correct the defect. In
detennining that Plaintiff had not met her burden, the Court stated as follows;
There is no evidence that any employee of the Defendant
caused or knew of the turned up comer of the mat, or how long
it had been turned up. It could have becn turned up by a
customer leaving the store immediately ahead of the Plaintiff
as far as the evidence shows. The court below, therefore,
properly concluded that the evidence did not establish
negligence. . .
Id. at 588-589,
In the present case, Plaintiff has presented no evidence as to the existence or
length of time thc garbage, rock or other item which caused him to tall may have been present in
the parking lot. Moreovcr, Plaintiff's case is wholly devoid of any evidence which would show
/3
. that Cumberland County Historical Society hud either uetllal or constructive notice of this
condition ut any time prior to the accident. l'luintlfftestilied 'hut he did not know if anyone at the
Cumberland County Hlstoricul Society had uny knowledge of the existence of the Itom, whatever
it might huve been, presence in the pInking lot prior to his trip nnd fnll. (Hermnn Gilliam
Deposition, 12/21/98. p. (8). Moreover, nt no time did Plninliff ever spenk to nnyone ut the
Cumberland County Ilistorienl Society nboutthe existence of this item which en used him to trip
and fnll. (Herman Gilliam Deposition, 12/21/98, p. (8).
Pluintlff eunnot show tlmt Defcndunt knew of the condition or lhut Defendant
created the condition. Moreover, the Pluintiff cannot show that the condition existed for such a
period of time prior to the accident us to impute knowledge of its existence to the Defendant.
Absent such knowledge, Plaintiff cunnot meet his burden of proof and summary judgment should
be entered.
C. CUMBERLANI> COUNTY HISTORICAL SOCIETY IS ENTITLEI>
TO SUMMARY .JUI>GEMENT AS A MATTER OF LAW
BECAUSE PLAINTII<'F CANNOT mENTIFY WHAT CAUS~;I>
HIM TO FALL.
The Pennsylvuniu Supreme Court has consistently stated that the mere happening
of an accident is no evidence of negligence, The Plaintiff has a two. fold burden of proving that
the Defendant was negligent and that his negligenec was a proximate cause of the accident. A
jury Is not permitted, however. to speculate or guess; conjecture, guess 01' suspicion do not
amount to proof. fut!;, Freund v.I-lyman, 377 Pa. 35,103 A.2d 658 (1954). The I'laintiffhas the
burden of proving a defect or unsafe condition and that the Defendunt had actual or constructive
notice thereof.
It is beyond question that the lUere existence of a dangerous condition and the
occurrence of an injury are insufficient to impose liability upon anyone as there remains to be
proved the length of causation. See. ~uthberl v. City Qfl'hiladelphi!l, 417 Pa. 610, 209 A.2d 261
(1965). Furthermore. the Pennsylvania Supreme Court has stated that ". . . even when it is
established that the Defendant breached some duty of care owed to the Plaintiff, it is incumbent
upon a Pluintiff to establish a causal connection between Defendant's conduct, and It must be
14
shown to have been the proximate cause of Plaintiff's injury." ~,j-Iamil v...lliJ~, 481 Pa.
256, 264, 392 A.2d 1280. 1284 (1978).
It is well established that a jury is not permitted to reuch a verdict based upon
guess or speculation. The seminul case on this point is Cuthbert v. Citv of I'hllildelphill, 417 Pa.
610, 209 A.2d 261 (1965). In that case, the plaintiff had tripped while crossing the strcet. She
testified that her foot got caught in the whole by a trolley ruillllld thut sht' knew that the hole had
caused her to fall. In rewrsing a jury verdict for the plaintiff: the Supreme Court of
Pennsylvania concluded that she had not provcd that thc depression in the street was the
proximate cause of her fall, Several factors influenced this decision. The plaintiff, with her
sister, was crossing an intersection at a crosswalk when a neurby tmffic light changed, causing
her to become frightened and hurry to complete her crossing. She tripped and fell, was taken to
a hospital for treatment. and then returned to the scene to see what made her fall. There were
trolley tracks in the intersection and a three to four inch deep depression running along the tracks
fOl' some length, 18 inches of which extended into the crosswalk. By plaintiff's own testimony,
she did not see the defect either belore or immediately after her fall, and the defect was in that
portion of the crosswalk where she said her sistcr was walking. The trolley tracks themselves
could have easily caused the plaintiff's fall, leading the court to conclude that the jury could only
guess the cause of her fall from the evidence adduced. See Cuthbert v. Philadelphia, gmm.
Similarly, in Reddinl!ton v. PhiladelnhJiI, 253 Pa. 390, 98 A. 601 (1916), the
plaintiff tripped on a sidewalk, but did not know what she had tripped in. orfell over, One of the
three people who came to her aid pointed out a depression in the pavement to her, and concluded
that it was the cause of her fall, although he did not see it happen. There is no evidence to show
how far away from the hole she was and the evidence was conflicting as to the place she fell.
The Pennsylvania Supreme Court concluded that a non.suit wus properly entered because
plaintiff had failed to prove her averment that her foot slipped into the depression, causing her to
fall. See also, Famese v. Southeast Pennsvlvania TransDortation Autb.9M, 338 Pa., Super 130,
487 A.2d 887 (1985).
Similarly. in the present case, Plaintiff can point to no evidence of how he fell. At his
15
Court must adopt the Plaintifrs perspective,
Defendant's strong legal argllment, because of converted facts necessary to determine the
appropriute standard of cure, is premuture.
Por example, in K.l;.van v. Manesklili, it was held thut a baseball player struck in the face
by a ball, could not be held to have assumed the risk or duty to protcct himscl I' where the Plaintiff
alleged inadequate lighting, Kt<YlIn v. Manesiotis. 728 A 2d . 1006 1999. Summary Judgement
was reversed despite the general rule that athletes assume the risk; the Court found the rule did
not control "on this particular occasion" because of the disputed lighting question. Kevan supra
728 A 2d T006, 1009 (1999)
A business invitee is a person invited on the land for a purpose directly Q{ indirectly
connected with business deulings with the possessor of land. In this situation the landowner
owes the highest duty of uflirma\ive care to any entrant upon the land.
HUilhes.v. Seven Sprinil Farm 727, A 2d 135 (Pa. Super. 1999)
Plaintiff, if invited to park as testified. wus u business invitce, if Defendant's parking lot
is rented to others, since such parking use would c,onstitute one of Defendant's busincss
activities.
Accordingly, parking was utleast indirectly, if not directly, onc of Defendant's business
activities.
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HERMAN W. GILLIAM, JR.,
PLAINTIFF
V.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CUMBERLAND COUNTY
HISTORICAL SOCIETY,
DEFENDANT
: 98-2317 CIVIL TERM
AND NOW, this
QRDER OF COURT
t2 f..t4-.
_day of February, 2000, upon relation that defendant
does not oppose the Rule entered against It on February 16,2000, IT IS ORDERED
THAT the estate of Herman W. Gilliam. Jr" by William Richard Gilliam, personal
representative, IS SUBSTITUTED AS THE SUCCESSOR PLAINTIFF.
By the Court, /
Edward W. Harker, Esquire
For Petitioner
Jo~" M. Popllock, Esquire
For Defendant
~~ '~'-dq -(X)
JtS
:saa
William C, coslopoulos
David j, Fosler
Leslie M, Fields
Charles p, Macklll
Edward W, Harker
COSTOPOULOS, FOSTER & FIELDS
A'f1'ORNEYS AND COUNSELORS AT LA W
H31 MARKET STREET
1',0, BOX 222
LEMOYNE. PENNSYLVANIA 17043
Telephone 761.2121
. Area Code 717
Fax 761. 4031
April 24. 2000
The Honorable George E, Hoffer, P,j,
Cumberland County Court House
Carlisle. Pa, 17
?
PfD~'
.g (-e
-
_.....-.~
/-
Gilliam v. Cumberland <;0Jl.Ilty IIistllfieal SoilWy
This is to advise I at tea ove casc has been settled and will be discontinued in the neal'
future, Thank you for your pnlience with und courtesy to counsel.
EWHl.lme
Court AdmInistrator
j, Poplliock
,
1
,
Ii
f(
I;
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[,
HERMAN W. GILLIAM, JR.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PI.lntlff
v,
CUMBERLAND COUNTY
HISTORICAL SOCIETY
Defendant
NO, 98.2317
CIVIL ACTION - LAW
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, please mark the above.
captioned matter settled, discontinued and ended,
Respectfully submitted:
r:lMJ'@It., J(-
Edward W, Harker, squire '
l.D, No, 06362
COSTOPOULOS, FOSTER & FIELDS
831 Market St., 1',0, Box 222
Lemoyne, P A 17043.0222
Phone: (717) 761-2121
- Allorney for Plaintiff
Dated: 9. au I~,;zooo
I