HomeMy WebLinkAbout98-03094
COLLEEN D. KUNDER
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. 9')'. .1{>/i'<{ Cl.~j Tl.',",
WENDY/S INTERNATIONAL, INC.
Defendant
CIVIL ACTION - LAW
JURY TRIA!. DEMANDED
COMPLAIN'f
through her attorney, James W. Abraham, Esq., Abraham Law Offices,
AND NOW, comes, Plaintiff, Colleen D. Kunder, by and
Harrisburg, Pennsylvania, and files the following:
1. Plaintiff / Colleen D, Kundel' / is an adul t individual,
who currently resides at 8181 Rabbit Lane,
Pennsylvania.
Harri sburg,
2. Defendant,
Wendy's International Inc.,
is a
corporation, which conducts business on a regular basis, and owns
Mechanicsburg, Cumberland County, Pennsylvania.
and operates a fast-food restaurant at 5235 Simpson Ferry Road,
3. On or about July 2/1996, at approximately 12:00 Noon
or 12; 30 p. m., Plaintiff had entered Defendant / s restaurant for
purposes of purchasing and having lunch.
4. At said time and place, Plaintiff was wearing a pant
suit and Plaintiff received her lunch tray issued to her by
Defendant's employee and proceeded to the salad bar.
5. At said time and place, Plaintiff prepared her salad
from the salad bar and while holding her tray in front of her,
Plaintiff then proceeded to the condomint bar.
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6. At said time and place, while at the condomint bar,
Plaintiff placed her tray on the counter of the condomint bar,
picked up a knife and fork and placed it on her tray. As Plaintiff
began to step away fr.om the condomint bar, her pant leg caught on
a.protruding cabinet door beneath the condomint bar which was left
open, or was otherwise not shut tightly, by Defendant and/or its
employee (s), and which caused Plaintiff's leg to stop, causing
Plaintiff to fall forward onto the floor of Defendant's restaurant,
7. At the aforesaid time and place, when Plaintiff fell,
Plaintiff fell directly onto her right knee, which first impacted
the floor, and then her right shoulder struck the floor and
Plaintiff finally fell completely onto the floor, lying on her
st.omach.
8. Plaintiff, as a result of the fall, suffered numerous
injuries, including but not limit.ed to, a bruised shoulder, a
severely bruised right. knee with proliferative synovitis in the
right knee, which severely restricted Plaintiff's mobility and
range of motion, and caused a loss of flexibility and strength to
an incapacitating degree, requiring surgery; and said injuries
continue to cause severe pain, suffering and incapacity, which
precludes Plaintiff from working and/or working fUll-time, and from
performing all of her rout.ine, day-to-day, activities.
9. At the aforesaid time and place, and at all relevant
timer hel:eto, Defendant wa,s in custody and control of the condomint
bar area, including the condomint cabinets and cabinet doors.
10. At the aforesaid time and place, and at all relevant
times hereto, Defendant had the duty to maint.ain Defendant's
business premises in a reasonably safe condition for business
invitees, incluidng the condomint bar area, and the condomint
cabinets and cabinet doors, as Plaintiff was a busineos invitee.
11. Defendant breached ita duty to maintain its busineas
premisea in a reasonably aafe condition for business invitees, and
was negligent, and/or grossly negligent, as said negligence and/or
gross negligence was the Bole, direct and proximate cause of
Plaintiff's injuries, in that Defendant created a hazardous and/or
dangerous condition on ita premises to business invitees, including
Plaintiff, in that Defendant:
A. failed to properly maintain the condomint bar area
and/or cabinets by properly closing and securing the cabinet doors
so as not to be a hazard or danger to patrons by being left open
and protruding into the pathway of patronsi
B. failed to properly and reasonably inspect the
condomint bar area and/or cabinets to ensure that said cabinet
doors do not create a hazardous and dangerous condition t.o patrons
by being left open or failing to tightly shut said doors;
C. failed to provide a safe environment for patrons to
be reasonably free from hazards or dangers, particularly during the
busiest time of the business day, i.e., lunch timei
D. failed to provide adequate inspection of the
condomint bar area and/or cabinets in order to protect patrons from
unreasonable hazards or dangers during the busiest time of the
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business day, i.e., lunch time;
E. failed to provide any warnings or adequate warning to
business invitees of the existence of any hazards in walking around
the salad bar or condomint bar, while holding the food
trays, specifically, a failure to warn patrons of protruding
cabinet doors or their propensity to be left open;
G. failed to implement a less hazardous and/or dangerous
alternative to the hinge cabinet doors, by using less dangerous or
haza,rdous methods, including but not limited to sliding cabinet
doors, which cannot pr.otrude into a patrons pathway.
12. As a further result of Plaintiff's negligence, as
stated in Paragraph 11 her.eto, Plaintiff has incurred, and will
continue to suffer in the future, pain and suffering, loss of
life's pleasures, loss of the feeling of well being, anxiety, and
the expense and inconvenience of further medical care and
treatment,
13. As a further resul t of Defendant's negligence,
plaintiff has suffered past, present and future wage 108S due to
the injuries caused by the negligence of Defendant.
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Colleen D. Kunder
.
VS.
Wendy's International, Inc, et. al.
Selve, Wendy's International, Inc.
No. 98-3094 Civil
19_
Now,
7/1/96
19_, I SHERIFF OF CUMI!ERLAND COUiliTY, PA do hmb~' depullze the Sberlffof
County 10 execule tbls Writ, Ihls depulatlon being mude at the request and risk of the Plolntlff.
_Qhester
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Sberlff of Cumberland Coun ty, Po.
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Affidavit of Sen'ice
Now, 19M_.at /7.'2.:r- o'c1ock P ,\I.serl'edthe
Wltbin lilts +,~.. of,. /f.on.r (~l.vi _
upon U'e~'t XllJl::erlUA:t.!OIl1AL... _
at 'i '~~d:..c..,..,~ It-. cI. W~lV"-. fP ~ fi"u. tl!.. 3" eo
b)' handing to f)1. ~ ~ 11=1 l3... ;, h -+ a true and
attested cop)' of Ihe original III 0 1-u ..... L. (!. on., f' {.a , ~:::I: and made known to
-~--;- the contents Ihereof.
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Sheriff of
Coun!)', Pa.
COSTS
Sworn and subscribed before
me thl, du)' of
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SERVICE S
MILEAGE
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SHERIFF'S COSTS \\\\\V. 0 111!Ibi'lz. Y'8 c. 1./ .3" Y V Ii
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RT:~K~~~~~CCCIPINO,. Paid ..;~>/;.";. ScV"IC~ qfl,J~II;"ANMl.cdi !\i
Sho/i11 LnsldavtOlorvlce ~l/.JoL ',', '
ElWARD l. SCHORPP '--.:.
5"lIcllo, PATRICIA A. 5H.\TTO
OFFICE OF THE SHERIFF R,al E'lal, DOPUly
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One Courthouse Square
Carlisle. Pennsylvania 17013
TO: Han. Robert A. Er1:i,ng
Sheriff of Chester Co.
17 North Church St, Ste 126
P.O. Box 2748
West Chester, PA 19380-3099
RE:
Colleen D. Kunder
vs.
Wendy's International, Inc.. et. al.
servel Wendy's International, Inc.
98-3094 Civil
Notice and Complaint
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De:\J'Sir:
Enclosd pleJs~ find \\Tit of Notice and C
10 b~ s~:,..d upon JWendY'~ernatiOnal, Inc
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Swedesford Rd,
Suite 300, Wayne, PA 19087
in your County,
Kindly made service thereof and s~nd 1.15 your bi!1 ef ces:> :;~.J r \l'ill m~i! n ch~:k fer
S;1r71e, or enclosd is advanc~ com \l'hich \'OL' r"'".'''
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Notarial S8ft1
Donna M, Welllngs, Notary Public
Wosl Chester BarD, Cheslor County
My (;001011..100 ",pl'.s Dec, 17, 2001
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Sworn IIId Slac:rlbld beIor.
""\hla~dayol~, 19i~,
&rIJYlAJ '71 W~
R, THO\I,.I,S f.:U\'E, S~eriff
Cumberland Count:,. P;~.nsyl\'ania
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IN THE COUR'r m' COMMON PLEAS
CUMBERl.AND COUNTY, PENNA.
NO.
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CIVIL ACTION - l.AW
.JURY TRIAL DEMANDED (i'
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NOTICE
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YOU HAVE BEEN SUED IN COURT. If YOll wish to defend
against the claims set forth in the following pages, you must
take action within twenty (20) days after this Complai.nt and
Notice are served by entering a written app~arance personally or
by attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the Court without further
notice, for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. YO\1 may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Court Administrator, 4th Floor
Cumberland County Courthouse
carlisle, PA 17013
717-240-6200
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COLLEEN D, KUNPER
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
v.
NO.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
WENDY'S INTERNATIONAl" INC.
Defendant
COMPliAINT
AND NOW, comes, Plaintiff, Colleen D. Kunder, by and
through her attorney, James W. Abraham, Esq., Abraham Law Offices,
Harrisburg, Pennsylvania, and files the following:
1. Plaintiff, Colleen D. Kunder, is an adult individual,
who currently resides at 8181 Rabbit Lane, Harrisburg,
Pennsylvania.
2. Defendant, Wendy's International Inc. ,
is a
corporation, which conducts business on a regular basis, and owns
and operates a fast-food restaurant at 5235 Simpson F'erry Road,
Mechanicsburg, Cunmerland County, Pennsylvania.
3. On or about July 2,1996, at approximately 12:00 Noon
or 12:30 p.m., Plaintiff had entered Defendant's restaurant for
purposes of purchasing and having lunch.
4. At said time and place, Plaintiff was wearing a pant
suit and Plaintiff received her lunch tray issued to her by
Defendant's employee and proceeded to the salad bar.
5. At said time and place, Plaintiff prepared her salad
from the salad bar and while holding her tray in front of her,
Plaintiff then proceeded to the condomint bar.
6. At said time and place, w. lIe at the condomint bar,
Plaintiff placed her tray on the counter of the condomint bar,
picked up a knife and fork and placed it on her tray. As Plaintiff
began to step away from the condomint bar, her pant leg caught on
a protruding cabinet door beneath the condomint bar which was left
open, or was otherwise not shut tightly, by Defendant and/or its
employee(s), and which caused Plaintiff's leg to stop, causing
Plaintiff to fall forward onto the floor of Defendant's restaurant.
7. At the aforesaid time and place, when Plaintiff fell,
Plaintiff fell directly onto her right knee, which first impacted
the floor, and then her right shoulder struck the floor and
Plaintiff finally fell completely onto the floor, lying on her
stomach.
8. Plaintiff, as a result of the fall, suffered numerous
injuries, including but not limited to, a bruised shoulder, a
severely bruised right knee with proliferative synovitis in the
right knee, which severely restricted Plaintiff's mobility and
range of motion, and caused a loss of flexibility and strength to
an incapacitating degree, requiring surgery; and said .injuries
continue to cause severe pain, suffering and incapacity, which
precludes Plaintiff from working and/or working full-time, and from
perfo~\ing all of her routine, day-to-day, activitJes.
9. At the aforesaid time and place, and at all relevant
timer hereto, Defendant was in custody and control of the condomint
bar area, including the condomint cabinets and cabinet doors.
10. At the aforesaid time and place, and at all relevant
times hereto, Defendant had the duty to maintain Defendant' 8
business premises in a reasonably safe condition for business
invitees, inCluidng the condomint bar area, and the condomint
cabinets and cabinet doors, as Plaintiff was a business invitee.
11. Defendant breached its duty to maintain its business
premises in a reasonably safe condition for business invitees, and
was negligent, and/or groBsly negligent, as said negligence and/or
grass negligence was the sole, direct and proximate cause of
Plaintiff's injuries, in that Defendant created a hazardous and/or
dangerous condition on its premises to business invitees, inClUding
Plaintiff, in that Defendant:
A. failed to properly maintain the condomint bar area
and/or cabinets by properly closing and securing the cabinet doors
so as not to be a hazard or danger to patrons by being left open
and protruding into the pathway of patrons;
B. failed to properly and reasonably inspect the
condomint bar area and/or cabinets to ensure that said cabinet
doors do not create a hazardous and dangerous condition to patrons
by being left open or failing to tightly shut said doors;
C. failed to provide a safe environment for patrons to
be reasonably free from hazards or dangers, particularly during the
busiest time of the business day, i.e., lunch time;
D. failed to provide adequate inspection of the
condomint bar area and/or cabinets in order to protect patrons from
unreasonable hazards or dangers during the bUSiest time of the
.'
buainess day, i,e., lunch time;
E. failed to provide any warnings or adequate warning to
business invitees of the existence of any hazards in walking around
the salad bar or condomint bar, while holdi.ng the food
trays, specifically, a failure to warn patrons of protruding
cabinet doors or their propensity to be left open;
G. failed to implement a less hazardous and/or dangerous
alternative to the hinge cabinet doors, by using less dangerous or
hazardous methods, including but not limited to sliding cabinet
doors, which cannot protrude into a patrons patlway.
12. As a further result of Plaintiff's negligence, as
stated in Paragraph 11 hereto, Plaintiff has incurred, and will
continue to suffer in the future, pain and suffering, loss of
life's pleasures, loss of the feeling of well being, anxiety, and
the expense and inconvenience of further medical care and
treatment.
13. As a further result of Defendant's negligence,
Plaintiff has suffered past, present and future wage 10S8 due to
the injuri~8 caused by the negligence of Defendant.
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5. Denied. After reasonable investigalion, Answering Defendant is without knowledge
or infcJrmation sufficient to form a belief as to the truth of the ullegutions set forlh in paragraph no.
S ofPlaintW's Complaint and same arc denied and strict proof thereof is hereby demanded.
6, Dellied. After reasonable investigation, Answering Defendant is without knowledge
or information sufficient to form a belief us to the truth of the allegations set forth in paragraph no.
6 of Plaintiff's Complaint and same ure denied and strict proof thereof is hereby demanded.
7. Denied. After reasonable investigation, Answering Defendunl is without knowledge
or infonnation sufficient to form a belief as 10 lhe truth of the allegations set forth in paragraph no.
7 of Plaintiff's Complainl and same are denied and "trict proof thereof is hereby demanded.
8. Denied. After rellsonable investigation, Answering Defendanl is without knowledge
or infonnalion sufficient to form a belief us to the truth of the allegutions set forth in paragraph no.
8 of Plain tifT's Complaint and same arc denied and strict proof thereof is hereby demanded.
9. Denied. The allegations sel forth in paragraph 9 of Plain tifT's Compluint constitute
a conclusion of law to which no response is required. To the exlent a response is required, it is
averred that Wendy's International, Inc" at all times relevant, was nol the owner or operalor of the
reslauranl in question.
10. Denied. The allegations set forth in paragraph 10 ofPlainliffs Complaint constitute
a conclusion of law to which no response is required. To lhe extent a response is required, it is
averred that Wendy's International, Inc., at all times relevanl, was not the owner or operator of the
restauranl in question.
II. Denied. It is denied lhllt Defendant breached its duty to maintain its business
premises in a reasonably safe condition for business invitees, and was negligent, and/or grossly
2
negligent, us suid negligence und/or gross negligence Was lhe sole, direct und proximate eUUse of
P/uintilfs injuries, in lhul Detendunt created u hazardous and/or dungel'Ous condition on lis premises
to business invitees, including Pluintitl: in thut Dclcndant:
u. tailcd 10 propcrly lI1aintuin lhe condimcnl bur urea und/or cabinets by properly
closing und securing the cabinet doors so us not to be u haz.ard or dunger to patrons by being left
open und protruding into the pathwuy of patrons;
b. failed to properly und reasonably inspect the condiment bur area andor
cabinets 10 ensue that said l:abinet doors do not create a hazardous and dungerous condition to
putrons by being left open or fuiling to tightly shut suid doors;
c, failed to provide u sule environment for patrons to be reasonably free from
huzards or dangers, particulady during the busiest time of the business day, i.e., lunch time;
d. lai led to provide adequate inspeclion of the condiment bar area unci/or cabinets
in order to protecl patrons from unreasonuble ha7.ards or dangers during the busiest time of the
business day, i.e., lunch time;
e. failed to provide any warnings or adequa'e warning to bUsiness invitees of the
existence of uny hazards in walking around the salad bar or condiment bar, while holding the food
trays, specifically, a failure 10 warn patrons or protruding cabinet doors or their propensity to be left
open;
g. failed to implement uless haz.ardous and/or dangerous alternative to the hinge
cabinlll doors, by using less dangerous or hazardous methods, inClUding but not limited to sliding
cabinet doors, which cannot protrude into a patrons pathway.
3
Yl~RIFIC^TION
I, jy\ccdh'l, (1 Sl.\c:._~~~.".':~, hereby verify that the statements made in the
toregoing Answer and New Mutter to Pluintif/'s Complaint arc true and correct to the best
of my personul knowledge or intbrmution und helieC as well as reports, records, conferences
und other investiglltory muteriul /nude availuhle to l1le, To the extent that the foregoing
contains averments which arc inconsistent in fuet, 1 verily thut my knowledge or infonnation
is suftlcientto form a bclicfthut one or more ofthel11 is true, although I am currently unahle,
after reasonuhle investigation, to ascertain which of the inconslstentaverll1ents are true.
To the extent that the lbn~going contains legul conclusions 01' opinions, 1 hereby state
that my Verification is made upon the advice of counsel, upon whom I havc relied in the
tiling this document.
This Verification is made su~iectto the ptmalties of 18 Pa. C,S. * 4904 related to
unsworn falsiticutions to uuthorities,
WENDY'S INTERNATIONAL, INC,
Duted: '7 /.) 'I /9 r;
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COLLEEN D. KUNDER
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
I NO, 98-3094
CIVIL ACTION - LAW
JURY 'rRIAL DEMANDED
WRNDY'S INTERNATIONAL, INC.
Defendant
PLAINTIFF'S ANSWER TO DBFRNDANT'S NEW MAT'I'BR
AND NOW, comes Plaintiff, Colleen D. Kundel', by and
through her attorney, James W. AbI'aham, Esquire, Abraham Law
Offices, Harrisburg, Pennsylvania, and files the following:
14. Pararaph 14 is an incorporation paragraph to which
no response is requir~d.
15. Denied. The averments contained in paragraph 15 of
Defendant's New Matter are denied in that they constitute a legal
conclusion to which no response is required.
To the extent an
answer is required, Plaintiff's Complaint states a specific cause
of action for negligence as stated therein.
16. Denied. It is denied that the Complaint is barred
by the statute of limitations as Plaintiff commenced its action
within the two (2) year statutory time period and made proper
service upon Defendant within the required time.
17. Denied. It is denied that Plaintiff's damages were
caused Boley and directly as a result of the negligenoe,
carelessnes and/or recklessness of Plainitff, and it is further
den:l,ed that Plaintiff:
A. tailed to look where she was walking;
8. failed to walk carefully;
C. failed to keep a proper lookout;
D. failed to take appropriate and proper caut ions for her
own safetYi
B. stumbled, tripped, slipped or fell in an area free
from any dangerous, hazardous or defective condition for no
apparent reasoni
F. Stumbled, slipped tripped and/or fell for no apparent
reason;
unsafe and ha~ardousi
G. failed to observe a condition which was defective
H. failed to exercise prudent and appropriate care for
her own safety;
By way of further answer, Defendant's negligence as
stated in the Complaint was the sole and proximate cause of
Plaintiff's injuries and damages, whi.ch Complaint is incorporated
herein by reference.
18. Denied. The averments contained in paragraph 18 of
Defendant's New Matter are denied in that they constitute a legal
conclusi.on to which no response is required.
To the extent a
t
I
~
,t
r
f i
response is required, Plaintiff did not knowingly or voluntarily
assume the risk created by the hazardous condition on Defendant's
premises which was not an obvious risk to reasonable persons,
including Plaintiff, under the ci.rcumstances.
19, Denied. It is denied that the condition was obvious
to Plaintiff, as the condition was not one in which Plaintiff, or
any reasonable person, could have or should have been aware of
prior to the fall and injury.
20. Denied. The averments contained in paragraph 20 of
Defendant's New Matter are denied in that they consitute a legal
conclusion to which no response is required. To the extent a
response is required, Plaintiff did not knowingly and voluntariy
assume any risk created by the hazardous condition on Defendant's
premises.
21. Denied. The averments contained in paragraph 21 of
Defendant's New Matter are denied in that they constitute a legal
conclusion to which no response is required. To the extent a
response is required, Plaintiff was not reckless or careless or
negligent in her actions at the time of the accident, and did not
contribute to her injuries and Plaintiff is not barred from
recovery by the Comparative Negl~gence Act.
22. Denied. The averments contained in paragraph 22 of
Defendant's New Matter are denied in that they constitute a legal
cionclusion to which no response is required. To the extent a
response is required, the Defendant's negligence as stated in the
Complaint was the sole and proximate cause of Plaintiff's injuries
and damages, which Complai.nt is incorporated herein by reference;
and Plaintiff lacks sufficient knowledge or information as to any
other individuals or entitiee other than Defendant who are liable
or responsible for Plaintiff's injuries and damages anu/or who
factually and proximately caused the injuries to Plaintiff. Striot
proof thereof is demanded.
23. Denied. The averments oontained in paragaph 23 of
Defendant's New Matter are denied in that they constitute a legal
conclusion to which no l'esponse is required.
To the extent a
response is required, Defendant failed to act reasonably,
carefully, lawfully and prudently, and failed to fulfill its duties
owed as required by law in that negligence and hazardous condition
of Defendant, was the sole and proximate cauae of Plaintiff's
injuries and stated further in the Complaint which is incorporated
herein by reference.
24. Denied.
It is denied that Defedant was not the
owner, operator of the restaurant in que~tion at the time of the
accident, as Defendant was the entity and/or party legally
responsible for Plaintiff's injuries and damages at the time of
Plaintiff's fall. Stx'ict proof to the contrary is demanded.
WllBRBFORB, Plaintiff l'espectfully requests Your Honorable
Court to dismiss Defendant's New Matter and enter judgment in favor
of Plaintiff as reqtlested in the Complaint.
Respectfully submitted:
DJ\.'fE: 11/12/98
James W. Abraham, Esq.
Abraham Law Offices
122 LOcust St.
Harrisburg, PA 17101
(717) 232-7825
Attorney for Plaintiff
9fJ09'1
cr.RIIFICATE OF SKRVlCE
?rcl
AND NOW, thl~:2-- day ofDecember, 1998, I. Robert A. Lerman. a member of the firm
ofGRlFFITH. STRICKLER, LERMAN. SOLYMOS & CALKINS. hereby certify that I have, this
date, served a copy ofDEFENDAN'f'S RESPONSE TO PLAINTlFF"S FIRST REQUEST FOR
PRODt1CTION OF DOCUMENTS by United States Mail, addressed to the party or atlomey of
record as follows:
James W, Abraham, Esquire
122 Locust Street
Harrisburg, PA 17101
BY:
ICKLER, LERMAN,
OS & CAL1NS
'V\t If
ROBERT A. LERMA
Attorney for Defendant
Supreme Court LD. No. 07490
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
It" a ~
arklwendys~U,trp.z
<XMOlWEIWrl1 0.. PmNSYLVANIA
COONl'Y OP_~
983094
COLLEEN KUNOER
VS.
WENDY'S INTERNATIONAL INC
File No. _
-
HEALTH ASSURANCE
SUBPoENA.JQ._PFlOOl.tt ~IiIS OR llit.t:m
EQllQOOMB:LM~U2-~
TOI
(N~ 'ofP'8rSOn or Entity)
Within twenty (20) days after service of this subpoena, YOU are ordered by the COUrt to
prodJce the fOllowing docunentll or thingll:
**SEE ATTACHED ADDENDUM**
---
-------.---- ---
L LEGAL REPRODUCTIONS I~940 DISSTON ST PHILA ~T9!j~
at ~!CA .______
( Address)
You may deliver or mail legible copies of t.he doctrnents or produce things requested hI
this subPOena, together with the certificate of carpliance. to the party making thi,
request at the address listed above. You have the right to seek in advllt1ce the f'ea'1onablf
cost of preparing the COPies or produCing the things sought.
If YOU fail to produce the docunents or things required by this subpoena within t"'ent~
(20) days after its Slll"V1Ce, the party serving thi3 subpoena may seek a COUrt orde.
c.:arpelling you to carply with it.
THIS SUBPoENA WAS ISSUEo AT TH: REQlEST Of' lK: FOlLQIlINQ PERSON:
NAt-E: ROBERXJ.,ERMAN, ESL____
AOORESSI--H6 II 1f0R'l'1l1!lRN W.W
---YOM PA 11-402
TELEPIilNE' (215) 335-3212
. 97499
Sl-"REt'E exulT 10 ..
ATTORNEY FOR:_ DEFENDANT ---
( .
, ,
o"..~ ~ !J. I~f. q
S I of the Court -r-----
(Eff. 1197)
ADDENDUM TO SUBPOENA
I<UNDER
Va.
WENDY' INT'L INC
No. 9830940
CUSTODIAN OF RECORDS FOR: HEALTH ASSURANCE
ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE,
MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER
INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO:
NAME: COLLEEN D KUNDER
ADDRESS: 83.81 RABBIT LN HARRISBURG PA
DATE OF BIRTH: 08/01/53
SSAN: 208425698
CERTIFIED PHOTOCOpms OF TIlE RECORDS WILL BE
ACCEPTED IN LmU OF YOUR PERSONAL APPEARANCE.
County of: CUMBERL~
MLR File #: R247954-D2
~.TH OP' p~""!@
<XXJH1'Y OF ~
983094
COLLEEN KUNDER
VS.
WENDY'S INTERNATIONAL INC
File No.
COMM GEN OSTEO
WB~~..IQJ.>.~ QQCl..K;Nf's OR Jlil ~
E.Qfi...Q~t..fYiSUANr TO RU..E; 4009. ~2
HOSP
TOI__
'----"(Nne ofPersonor Entity)
Within twenty (20) de>,. after service of this subJ>oena, YOU are ordered by the COUrt to
Pi"oduOIl the fo' lOWing docunerltll or th ings: _
**SEE ATTACHED ADDENDUM**
--------- ---...
- REPRODUCTIONS INC 49"~O DISSTUN 1>'1' -PFULA PA aD!!
at !!,EDICA_L LEGAL
(Addre.. )
You may deliver or !Mil legible copie. of the docuoonts or produce things requesteo hI
this sUbpOena, together with the Cltrtificate of CCl'Illliance, to the party making t.hl!
request at the addre.. listed above. You have the right to seek in advance the rea",onabl~
cost of preoaring the COpies or producing the things sought.
I f YOU fai' to produce the docunents or things required by this sub\JOena within twenty
(20) days after its service, the party serving thin subpoeoa may seek a COUrt elf'de,
lXn'pe I 1109 yOU to COlllly with it.
---,~--.
THIS SlePOENA WAS ISSlEo AT THE REGlU:ST OF "orE FOLLCWINQ PERSON:
NAt<E1 R08lJ:RT LERMAN, ESL-____
ADORESS:"HO S N9R'Plll'lRN W.".Y
YORK PA 17402
TELEp......'E. (215) 3"15-32.12 "--
,~ '--- O+4PO
SU>REM: <XO:fr I D It
a~FENIJAN'):
ATTORNEY FOft:_
-'-
--
DATE I ~ - t.~ s-: I a r
~S I of the CoI",.t
I Division
Deputy
(Eff. 1197)
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COLLEEN D, KUNDER,
PIlIintiff
Civil Action. Law
vs,
No, 98.3094
WENDY'S INTERNATIONAL, INC.,
Defendant
JURY TRIAL DEMANDED
MOTION OF DEFENDANT, WENDY'S INTERNATIONAL, INC.
FOR SUMMARY JUDGMENT
AND NOW, this 13'h day of November, 2000, pursuant to l'a,R.C,I'. Rule 1035,2 as
amended, and Cumberland County Local Rule 206.2, comes the Defendant, Wendy's International,
Inc., by its counsel Robert A. Lerman, and Griffith, Strickler, Lerman, Solymos & Calkins and
moves this Honorable Court for Entry of Summary Judgment, the grounds for which are as follows:
I. PLAINTU'F'S INABILITY TO PROVE CAUSATION AND LACK OF EVIDENCE
OF DEF'ENDANT'S NEGLIGENCE,
I. Plaintiff, Colleen D, Kundel', filed this cause of action in ncgligence against thc
Defendant arising out of personal injury Plnintiff allegedly sustaincd on July 2, 1996, at
approximalely 12:00 noon to 12:30 p,m, whilc at Defendant's I'cstaurant premises located at 5235
Simpson Ferry Road, Mechanicsburg, Cumberland Counly, Pennsylvania,
2, A copy of Plaintiff's Complaint, filed June 3, 1998, is aUached h-'reto and marked
Exhibit 1,
21, There is no evidcnce thut any employee ofthe Defendllnl creuled or ohserved un open
or Pllrtially open condimcnt stand door at lIny timc prior to, at lhe time of, or subsequent to Plainliff's
fall.
22, There is no cvidence thut lhe eondimcnt stllnd posed any dlmger or that Defendant
knew or should have known that its condiment sland posed a danger.
23, In lhe absence of any evidence as to tht' cause or mechanics of her fall, Plainliffwill
he unable to meet her required burden of proof lhat the Defendant was negligent and that such
negligence caused Plaintiff's harm,
24, In lhe absence of any evidence as to the existence of a danger, hazard or defect in
Defendant's property which Deflmdant eilher crealed or allowed to exisl for some unreasonable
period of time, Plainliff will be unable to mect her required burden of proof that Defendant was
negligent and that such negligence caused Plaintiffs harm,
WHEREFORE, Defendant respectfully requests that Summary Judgmenl be entered in its
favor and against the Plaintiff, as a matter of law.
II. PLAINTIFF'S NEGLIGENCE.
25, Defendant incorporates paragraph I through 24 ofthe foregoing Motion for Summary
Judgment herein by reference as if fully set forth at length,
26, In its Answer and New Matter to Plaintiffs Complaint, Defendant asserted lhat
Plaintiffs injuries and damages, if any, were caused solely and directly as the result of lhe
negligence, carelessness, and recklcssness oflhe Plainti 1'1', that lhe condition which she now claims
was dangerous and caused her injury was or should have becn known to her, lhat she was
7
. .
6, At said time and place, while at the condomint bar,
Plaint i ff placed her tray on the counter o,f the condomint bar,
picked up a knife and fork and placed it on her tray. As Plaintiff
began to Btep away from the condomint bar, her pant leg caught on
a protruding cabinet door beneath the condomint bar which was left
open, or was otherwise not shut tightly, by Defendant and/or its
employee (s), and which caused Plaintiff's leg to stop, causing
Plaintiff to fall forward onto the floor of Defendant's restaurant.
7. At the aforesaid time and place, when Plaintiff fell,
Plaintiff fell directly onto her right knee, which first impacted
the floor, and then her right shoulder struck the floor and
Plaintiff finally fell completely onto the floor, lying on her
stomach.
B. Plaintiff, as a result of the fall, suffered numerous
injuries, including but not limited to, a bruised shoulder, a
severely bruised right knee with proliferative synovitis in the
right knee, which severely restricted Plaintiff's mobil i ty and
range of motion, and caused a loss o,f flexibility and strength to
an incapacitating degree, requiring surgery; and said inj uries
continue to cause severe pain, suffering and incapacity, which
precludes Plaintiff from working and/or working full-time, and from
performing all of her routine, day-to-day, activities.
9. At the aforesaid time and place, and at all relevant
timer hereto, Defendant was in cust.ody and control of the condomint
bar area, including the condomint cabinets and cabinet doors.
.
'.
10. At the aforesaid time and place, and at all relevant
times hereto, Def.endant had the duty to maintain Defendant's
business premises in a reasonably safe condition for business
invitees, incluidng the condomint bar area, and the condomint
cabinets and cabinet doors, as Plaintiff was a business invitee.
11. Def.endant breached its duty to maintain its business
premises in a reasonably safe condition for business invitees, and
was negligent, and/or grossly negligent, as said negligence and/or
gross negligence was the sole, dJ,rect and proximate cause of
Plaintiff's injuries, in that Defendant created a hazardous and/or
dangerous condition on its premises to business invitees, including
Plaintiff, in that Defendant:
A. failed to properly maintain the condomint bar area
and/or cabinets by properly closing and securing the cabinet doors
so as not to be a hazard or danger to patrons by being left open
and protruding into the pathway of vatrons;
B. failed to properly and reasonably inspect the
condomint bar area and/or cabinets to ensure that said cabinet
doors do not create a hazardous and dangerous condition to patrons
by being left open or failing to tightly shut said doors;
C. failed to provide a safe environment for patrons to
be reasonably free from hazards or dangers, particularly during the
busiest time of the business day, i.e., lunch time;
D. failed to provide adequate inspection of the
condomint bar area and/or cabinets in order to protect patrons from
unreasonable hazards or dangers during the busiest time of the
bu~iness day, i.e., lunch time;
E. failed to provide any warnings or adequate warning to
business invi tees of the existence of any hazllrds i,n walking around
the salad bar or condomint bar, while holding the food
trays, specifically, a failure to warn patrons of protruding
cabinet doors or their propensity to be l~ft open;
G. failed to implement a less hazardous and/or dangerous
alternative to the hinge cabinet doors, by using less dangerous or
hazardous methods, including but not limited to sliding cabinet
doors, which cannot protrude into a patrons pathway.
12. As a further result of Plaintiff's negligence, as
stated in Paragraph 11 hereto, PlaintHf has incurred, and will
continue to suffer in the future, pain and suffering, loss of
life's pleasures, loss of the feeling of well being, anxiety, and
the expense and inconvenience of further medical care and
treatment.
13. As a further resul t of Defendant's negl igence,
Plaintiff has suffered past, present and future wage loss due to
the injuries caused by the negligence of Defendant.
'l
2
3
4
5
6
7
6
9 A.
10 Q.
11
12
13
14
15
16 A.
17 Q.
18
19
20 A.
21 Q.
22
23
24 A.
25 Q.
Exam./Lerman - Kunder 25
step ~way from the condiment bar, "her pant leg
caught on a protruding cabinet door beneath the
condiment bar, which was left open or was
otherwise not shut tightly by defendant or its
employees and which caused plaintiff's leg to
stop, causing plaintiff to fall forward on to the
floor of defendant's restaurant."
Is that what
you've stated there?
That's correct.
Now, the question I have is, you said that the
condiment bar was left open or otherwise not shut
tightly by defendant or its employees.
What
evidence do you have that it was the defendant or
an employee of the defendant who left the
condiment bar door open?
I really don't know who left the door open.
Certainly, it WQuld be possible that another
customer could have opened that door.
Isn't that
true?
r guess that would be possible.
So that as you're sitting here today, you don't
know who left the condiment bar door open.
correct?
No, I do not know.
Also, in that regard, how long was the condiment
FILIUS (, MeLlle\S REPORTING SERVICE. f.\T, __
I(IlrTj;JiJu,~ il7-2.l6-lInH 'l'll1k 717.'i.I1.frlJ8 r.'" J.8fJ11-2JJ.~.1~7
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Exam./Lerman - Kunder
26
bar door open before your pant leg caught on the
protruding cabinet door? How 10ng was it open?
A. I don't know, because I didn't see the door open.
Q, So you don't know if it was open for a minute,
five minutes, 20 minutes or an hour or even
lenger, do yoU?
A. Well, I do know that it was closed when I came
back to the table.
So I don't know an exact time.
Q. But you don't know how long it had been opened--
A. No, I do not.
Q. --before you caught your pant leg, do you?
A. No, I do not.
Q. Now, I think somewhere there has been identified,
I think it was -- was it your nephew as a witness?
A. Yes.
Q. Was he with you?
A. Yes.
Q. Did he go to the restaurant with you to have
lunch?
A. Yes.
Q. And what his name?
A. Brandon Sligh.
Q. How do you spell that?
A. His first name, B-r-a-n-d-o_n, and his last name,
S-I-i-g-h.
FILIUS & McLUCAS REPORTING SERVICE. I.ve, _
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Exam./Lerman . Kunder
27
Q.
And where does Brandon currently reside?
He lives in Duncannon, but right now he's in
prison.
Where is he in prison?
Actually, I don't know the name.
Is it in Pennsylvania?
A,
Q.
A.
Q.
A. Oh, yes.
MR. ABRAHAM: I think it's Perry County.
A. I think it's Perry County.
BY MR. I,ERMAN:
Q. What is he in prison for?
A. He had some fines that he did not pay for
underaged drinking and when he turned 18, they
picked him up.
Q. Was there anyone else with you and Brandon at the
restaurant on July 2, 1996?
A. Yes.
Q. Who was that?
A. My sister Laura, and her two daughters.
Q. What's Laura's last name?
A. Sligh.
Q. And what are the two daughters' names?
A. Danie11e Sligh and Rachel.
Q. And do you know their address?
A. I can get it for you. I may ,have it in my purse.
ru,lt/S (, Md,Ue.1S RF.PORTING SF.R\'ICF., 1,'1e._
III,"isbljr~ 7/7.1.16-062..1 \'0'" fJ7.,oj"5.C4J8 P.~ J.800-!jJ.!U!7
Exam./Lerman - Kunder
1
when I walked in or--
2
Q.
That's probably a good time,
3
1\,
Well, I went in with my sister and my nephew and
4
my nieces and we were going to have lunch.
We
5
were passing by and they wanted Lo go to Wendy's,
6
so we went in.
I went up and I paid for--
I was
7
buying whatever we got. And then as I walked
8
over, because I was having a salad, I walked over
9
to the salad bar and started to make my salad.
10
And then I finished up down at the end with the
11
dressings and everything.
12
And then I kind of turned and walked on an
13
angle over to what we would calI the condiment
14
bar, I guess, to get plastic forks, plastic ware
15
to eat my salad. And I had went over with the
16
tray in front of me.
It was very busy and there
17
were a lot of people.
So I kind of, you know,
18
watching to avoid running into people. And then I
19
sat my tray down and got my plastic. And then I
20
turned to walk over to Brandon, my nephew, had
21
gotten just a burger and soda, and he had been
22
already at the table where the rest of us, my
23
sister Laura and the two girls were making salads.
24
And I was--
25
Q.
Excuse me. Your sister, Laura, were making salads
FILIUS & ,\f,LUe.~s REPORl1NG SERVICE, loVe._
fI,"'"~burg 7J7'~J6'fJ61J Ymk n7.,j-l.'i-/H18 P..t 1.800.1JJ.9J17
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Exam./Lerman - Kunder
1
2 A.
3
4 Q,
5
6 A.
7
8
9
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
at the table?
No, no, no. At the--
I'm sorry. Did I say it
that way?
I think that's what I heard you say.
Were they
making salads at the salad bar?
They were making salads at the salad bar, but I
was in front of them. They were behind me. And
they went over--
If you're familiar with it at
all, the dressings are like-- Wel1, when you walk
in, it's like tacos and pastas and then it goes
into salads and then it goes into, you can go
around, and it goes into like puddings and stuff.
And I stopped at the salad dressings. And then I
turned to walk over to get my plastic ware and
they were following up by getting puddings and
things like that.
And Brandon, who had just had a burger and a
soda, he was already at a table, which was the
first table closest to the condiment. So he was
sitting there and r turned to walk over to him.
And as I was walking, I was taking a step and all
of a sudden r couldn't move my left leg and I
started to
the tray started to go, because I
was losing my balance. and I was trying to save
the sodas and stuff. And then I just fell.
FILIUS & McLUCAS REI'ORTlNG SERVlCf, '.'Ie.
UlJrrisllu,.~ 7l7'.lJ6~06JJ Yl"k 7J7,.lJ"5~6418 P," '.800.2JJ.9.JJ7
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EXam. /t,errnan - Kunder 40
1
conversation with Brandon, because they live far
2
away and they don't have a phone. And when that
3
happf.!ned, I honestly thought that .r was going to
4
be OK and I wasn't dwelling on any facts or
5
anything. So I jus t know tha t when I came back, I
6
was like, oh, my gosh, you know, and Brandon said
7
the cabinet door was open.
It caught onto your
8
pant leg. And that's all I can really tell you.
9
Q.
So that Brandon told you that.
Correct?
10
A.
Right.
11
Q.
But as you sit here today, you have had no
12
personal knowledge that the door was open and that
13
your pant leg caught on it?
14
A.
When I got up off the floor-- And I did not
15
remember this until I went back to sit at the
16
table, because I was just, I was shook up about
17
the whole thing.
I was embarrassed. And when I
18
was talking to him, I can -- I remember like in
19
the back of my mind, when I was getting up, seeing
20
like something open. I can't really tell you that
21
I honestly saw the door open. I just--
22
Everything happened so fast. I ~ust kind of
23
remember getting up .and seeing like in my, I don't
24
know what you want to call it, like shadow or
25
something.
And when I went back and I looked, and
FlUlIS & ,\fcLllC.~S REPORTING SERVICE. [.\'c.
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mother still at the salad bar?
A Yes, she was.
Q She hadn't walked away from the salad bar ovp.r
toward where you were coming from?
A No.
o You say you observed your aunt fall to the
floor?
A Yes.
o Did you see what caused her to fall?
A I noticed after she had hit the ground that it
must have been the door, it had to have been.
o Must have been what door?
A The door to the condiment bars. There's two
doors.
o
A
Why do you assume that it was the door?
Because it was so obvious. It was plain to
see that's what caused her to faIl.
o Now, wait a minute. Did you actually see her
trip or stumble over. an open door?
A I didn't see her pant leg catch, but I deduced
that's what must have happened.
o You concluded that happened?
A Yes, yes.
o But you didn't actually see your aunt'~ pant
leg catch on this open door; is that right?
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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A 'l'hat is correct, but jUdging from how her
pants were pulled down, I concluded it must have been that,
Q When you walked from the you know, you got
}o'ou:c hamburger and fries and you said you walked over to the
table to sit down. Did you pass by the condiment bar?
A Yeah, I would have had to have.
Q And how close to it were you when you walked
past it?
A
Probably about five feet away, jUdging
from.. .
Q Did you stop and get any mustard or ketchup or
anything to put on your burger?
A Yeah, I had fries so I probably stopped for
some ketchup.
o
Did you notice if the door was open at that
point?
A ' No. I had no reason to really notice if it
would have been open.
o No, I understand that, but I just wondered if
you could recall when you were standing at the __ were you
standing in front of the condiment bar?
A Yes, yes.
Q And you don't remember whether it was open or
not open, this door?
A No, I don't.
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Q You go sit down, you then get up to go talk to
mom and it's at that point that your aunt falls to the
floor?
A
Q
Yes.
And after she falls to the floor, you see an
open door?
A Yes.
Q And therefore you assumed that because it's
open after she fell that that's what caused her to fall?
A Yes.
Q Is that right?
A Yeah, I made that connection, yeah.
Q But you don't. know that's what caused her to
fall; is that right?
A I don't know, but I'm pretty certain in my own
mind that that's what it was.
Q After your aunt fell -- well, tell me what
happened.
A Well, she fell and there was -- there was
laughter coming from the people that were around and the
salad was allover her. And I came to her aid and
because, you know, my mom, she was on the opposing side of
the salad bar. She was kind of, you know, hunkered down
over there trying to keep herself hidden. And I approached
my Aunt Colleen and I kind of helped her to her feet and
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were laughing'?
A I'm not sure. I didn't look - - that was
behind me,
Q
So you don't know if the employees wer~
laughing?
A No.
Q But other customers who may have seen what
happened were laughing?
A Yeah, I scanned around and there was
snickering.
Q
After you helped her up or helped her however
you did and she walked off to the bathroom, did you inspect
the area where she had fallen?
A I - - you know, I looked.
Q And what did YOll see?
A The open door.
Q Did YOll see anything else beside~ an open door
at the condiment stand?
A There was nothing else that could have
possibly caused it. There was no wet __
Q Thot's what I want to know.
spills
A
Q
A
Did you see any
No.
Let me fini.sh.
I'm sorry.
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Q Did you see any spills on the floor?
A No.
Q Did you Elee any mustard, ketchup, mayonnaise,
onions, anything laying in the vicinity of where your aunt
had fallen?
A No, sir.
Q No sodas, no spilled sodas?
A No.
Q No ice?
A Nope.
Q So there was nothing there that you saw that
you believed would have caused her to f~ll?
A And even if it had been a spill, it couldn't
have caused her pant leg to be pulled down the way it was.
Q In that area was this floor a tile floor, a
rug was there a rug there? Do you remember what it was?
A It was a hard ceramic type floor, tile, that
sort of th.ing.
Q And was there anything wrong with the tiles
that you saw, like a broken one?
A
Q
A
Q
A
No.
One stuck up or anything like that?
No.
Nothing at all like that?
No.
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the Wendy's who worked there went to help your aunt?
A No, I know they didn't.
Q You know they didn't'?
A Yeah.
Q How do you know that?
A Because she said nobody really asked her __
even bothered to ask her what happened or anything. They
gave her an accident report to fill out, but that was it.
Q Now, when your aunt came back to the table,
you said she went and got another salad and then sat down
and ate it; is that right?
A
Yes.
Q What, if anything, did your aunt say to you or
you say to her when she came back from the ladies room about
what had happened?
A She asked me wha t I thought had happened.
Q So did that indicate to you that your aunt,
Miss Kundel', didn't know what caused her to fall?
A I think she may have been, you know, shocked
so she wanted to see what somebody else may have thought.
Q Did she seem to know what caused her to fall?
A She seemed to have a pretty good idea. It
made sense to her when I told her, yeah, I think this is
what it was.
Q
You told her what you thought it was and then
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she said that made sense to her?
A
she concurred, yes.
Q So it was your suggestion to your aunt that
this open door may have caused her to fall?
A Yeah, I made the initial '"
Q Now, was there any other conversation about
what had happened while you're sitting there eating, you
know, having -- she's having her salad and you're haVing
your hamburger and fries?
A Yeah, she complained of SUffering in her
shoulder and in her leg, a burning sensation.
Q Yuu're touching your
A I twas her shoulder and her - -
Q Ri3ht shoulder?
A Yeah.
Q I twas her right shoulder and what else?
A Her -- I think it was her left leg that may
have been sore. I'm not sure what leg it was but..,
Q So you had this discussion about what might
have caused her to fall and then she also complained of some
discomfort in her right shoulder and one of her legs?
A Yes, that's correct.
Q
Now, at some point in your presence did
someone from the Wendy's restaurant come out and speak to
your table and to your aunt?
GEIGER & LORIA REPORTING SERVICE - 1-600-222-4577
A No.
Q Did anyone say that to you?
A NCl.
Q That they had observed your aunt fall ?
A No.
Q During the period of time you were in the
A
Q
the door?
A
Q
was open
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-
Q
Yes, right there. And tell me if I read this
wrong. It says: Either stipped, I think that should say
stepped, but stipped on rubber and it says stipping, but it
probably should say stripping, in DIN RM, meaning I guess
dining room.
A
I Would assume that's what it means.
Q
Or, it says coniment, and it should say
condiment, door was open, snagged pants leg. Do you read it
like that?
A
Yes. That's just what whoever gives us that
information tells us. We just put down more or less what
they tell us they think happened.
Q
After you read that or looked at that, do you
recall CheCking the dining room area as to the condiment
door or as to the rubber atipping, stri.pping?
A
Well, every day when you walk in the store, we
check all those things. Like the stripping, we check to
make sure there's no tears in the carpet, someone Could
catch their toe, the doors and stuff on the condiment stand,
you know. When I would come in the next day, I'm sure the
doors Would have been shut.
Q
So that's part of your general routine __
A
Walk through.
Q
-- to inspect?
First thing, whoever comes in, it's done like
A
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four times a day. So -- or it's done more than that. It's
done every 10 to 15 minutes throughout the day, but there'S
a form we actually go through at least four times a day.
Q
And if you had an incident occur in your store
where somebody was injured or something was out of the
ordinary, would you make a special effort to check that out?
MR. LERMAN: Check what out?
BY MR. ABRAHAM:
Q
In other words __
MR. LERMAN: Object to the form of the
question.
BY MR. ABRAHAM:
Q
Let me rephrase for you. If you become aware
of an incident in the dining room out of the norm, somebody
falls, something is spilled, in addition to your general
inspection that you just described, do you also specifically
investigate any incident of that nature?
A
If I'm there on the shift and something
happens, yes, I would investigate it and make sure, or if
the insurance company would ask us to investigate it to make
sure, we would do it. I'm sure I probably looked at the
doors the next day just to make sure that everything was
intact, and it was. I mean I don't remember anything
outstanding. So...
Q Do you specifically recall checking the doors
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BY MR. ABRAHAM:
Q
Yes. When I say cabinet area, I'm talking
about inside the doors.
A
Shouldn't be.
Q
Now, the person assigned to the dining room is
in charge of that condiment bar; is that right?
A Yes, to keep it filled.
Q Keep it filled?
A Keep an eye on it, make sure.
Q Do they have access to that condiment bar
during all times of the shift?
A
They have access to it. Between like 11:30
and 2, they're really pret ty much stuck on the line serving
the guests and they wouldn't be out, you know, like filling
this up. That's why we do our walk-throughs at 10 O'clock,
to make sure this is full to get us through our rush
period. We also have baCkups in the b2ck that we bring out
to the condiment stand.
Q
In your stock room?
Yes, in the back.
So you've got supplies for the bins in the
A
Q
cabinet area and you have supplies for the bins in the stock
room?
A
Right.
Q
When something is running out in the bin area,
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whore does the person in charge of the dining room get the
additional item, is it from the cabinet area?
A That would depend on what time of day it was
and how busy.
Q Tell me about that.
A Well, usually if you're real busy, your dining
room person is also your front register operator. So they
can't move. So someone from the back behind the 1 ine' s
going to have to bring the stuff out and they'll just grab
it from the storage area, but it's quicker to get them back
to serve the guests again. And the register operator is not
going to be able to move, because they're going to be taking
orders.
Q Would there be somebody walking around
checking those bins?
A Yes. Every 15 minutes a manager tries to get
out there. Sometimes it might be 20, sometimes it might be
every five minutes. It just depends on how busy we are that
day.
Q Anybody else besides a manager may be CheCking
those bins?
A Well, the dining room person, if they were
free, if they're not operating the register.
Q So if the dining room person is not on the
register, he may check the bins to see what the status is of
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SUpply?
A
Right..
Q
If the dining room person was not. on the
register and out. there looking at the bins and they saw that
they needed straws or whatever, what wouJd they do or what
was your policy as to what they were supposed to do in
refilling the bins?
A
Just to -- the first thing you want to do is
make sure there's r:o customers around there, because you
don't want. to inconvenience them. And then you would just
fill up the items, either from the back or from underneath,
depending on. . .
Q
So, in other words, the person would refill
the bin from the cabinet area or refill the bin from the
st.ock room?
A
Correct.
MR. LERMAN: You're talking now
hypothetically. You're not talking about what. occurred on
July 2, 1996, because he's testified he wasn't there.
BY MR. ABRAHAM:
Q
I believe my question was what was your policy
and what were they instructed to do. Is that correct, what
you just stated, or what I just stated as to __
A
Right.
-.. what they would do. Okay. Did you speak
Q
II
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Q.
Exam./Abraham - Myers
at Wendy's?
A.
Yes.
6
A.
Q.
What was that?
7
Q.
I wanted more time with my family,
Any other reason?
And I was moving out of the area.
Any problems with Wendy's management, anything
like that?
No.
Now, do you recall being on duty, so to speak, on
July 2nd of 1996?
Yes.
Wete you in your assistant manager role on that
day?
Yes.
Was the manager present at the restaurant?
No.
19 BY MR. ABRAHAM:
MR. LERMAN: Excuse me. At what time?
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Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Any time during July 2nd, 1996...
Yes.
-.while you were there.
What was the manager's name?
Bob DeMeester, I believe.
Bob-- Do you have any idea how to spell that?
F1UUS ".lid IIC,{S REI'ORl1NG SERVICE. (XC.
1141f-riJburv 71i.1.1Ii.iJttl.l l'ork iJi-,.;.43.6..4I8 IJ.,," J.Il00.2.U.9J17
14
1
2
-.'--
Sxam./Abraham - Myers
36
needed it.
MR. ABRAHAM:
Right.
I understand that.
3 BY MR. ABRAHAM:
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Q.
And you've already ansWered the st0ck question, as
well.
And now I'm asking you if you recall
someone ~ver opening those doors during the hours
of 11:00 A.M. to 2:00 P.M.?
To my knowledge, no.
Do you think it's Possible that for some reason
somebody would open those doors during those hours
on any given day?
I'm sure it's possible.
NoW, if I can direct your attention in your
statement to the very last page, Page 5.
I think
it actually begins on the bottom of Page 4.
I'm
sorry.
I'm going to direct your attention to the
last question where it says "Ms. Myers."
Do you
see that?
Yes.
And he asked IOU, "Is there anythir.g else about
the incident at all that we haven't discussed that
you f~el is important that I should know?" And
Y0ur answer lS, "Yes. The CUstomer was unsure of
how the incident had occurred. And then as we
talked then later, I had left her and come back,
nUlls & ,ltel.tlelS REPORT/NO. Sl'RI'ICE. I.\'C
Jliurlihllro.( iJi.!J/i./JIi2.1 ro,k 7Ji..U.l'1~18 Po'\ 1.8I1fJ.nJ.<JJJ;'
. \
5. Denied. After reasonable investigation, Answering Defendant is without knowledge
or information sufficient to fonn a be!.ief as to the truth of the allegations set forth in paragraph no.
5 of Plaintiffs Complaint and same are denied and strict proof thereof is hereby demanded.
6. Denied. After reasonable investigation, Answering Defendant is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth in paragraph no.
6 of Plaintiff's Complaint and same arc denied and strict proof thereof is hereby demanded.
7. Denied. After reasonable investigation, Answering Defendant is without knowledge
or information sufficient to fonn a belief as to the truth of the allegations set forth in paragraph no.
7 of Plaintiff's Complaint and same arc denied and strict proof thereof is hereby demanded.
8. Denied. After reasonable investigation, Answering Defendant is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth in paragraph no.
S of Plaintiff's Complaint and same are denied and strict proof thereof is hereby demanded.
9. Denied. The allegations set forth in paragraph 9 of Plaintiffs Complaint constitute
a conclusion of law to which no response is required. To the extent a response is required, it is
averred that Wendy's International, Inc., at all times relevant, was not the owner or operator of the
restaurant in question.
10. Denied. The allegations set f011h in paragraph 10 ofPlai"'iffs Complaint constitute
a conclusion of law to which no response is required. To the extent a response is required, it is
averred that Wendy's International, Inc., at all times relevant, was not the owner 01' operator of the
restaurant in question.
II. Denied. It is denied that Defendant breached its duty to maintain its business
premises in a reasonably safe condition for business invitees, and was negligent, and/or grossly
2
negligent, as said negligence and/or gross negligence was the sole, direct and proximata cause of
Plaintiffs injuries, in that Defendant created a hazardous and/or dangerous condition on its premises
to business Invitees, including Plaintiff, In that Defendant:
a. failed to properly maintain the condiment bar area and/or cabinets by properly
closing and securing the cabinet doors so as not to be a hazard or danger to patrons by being left
open and protruding into the pathway of patrons;
b. failed to properly and reasonably inspect the condiment bar area andor
cabinets to ensue that said cabinet doors do not create a hazardous and dangerous condition to
patr.lns by being left open or falling to tightly shut said doors;
c, failed to provide a safe environment for patrons to be reasonably free from
hazards or dangers, particularly during the busiest time of the business day, I.e., lunch time;
d. failed to provide adequate inspection of the condiment bar area lmd/or cabinets
in order to protect patrons from unreasonable hazards or dangers during the busiest time of the
business day, I.e., lunch time;
e. failed to provide any warnings or adequate waming to business invitees of the
existence of any hazards in walking around the salad bar or condiment bar, while holding the food
trays, specifically, a failure to warn patrons or protruding cabinet doors or their propensity to be left
open;
g. failed to implement a le>s hazardous and/or dangerous alternative to the hinge
cabinet doors, by using less dangerous or hazardous methods, including but not limited to sliding
cabinet doors, which cannot protrude into a patrons pathway.
3
On the contrary, ut is avcrred that Wendy's Intcrnational, Inc, was not the owner or operator of the
restaurant in question. It is further averred that at all times relcvant Dcfcndant acted carefully,
lawfully, propcrly and prudenlly with duc care under thc circumstances, maintaincd its premises in
a reasonably safe, hazard free and non-defective condition, and otherwise fulfilled any and all dutics
and rcsponsibilities owed as required by law.
12. Admitted in part and dcnicd in part. It is admitted that the Plaintiff was negligent and
that as a rcsult of Plaintiffs negligence, Plaintiff may have sustained damages as allcged in
paragraph 12 of hcr Complaint.
13. Denied. It is denied that the Defendant's ncgligcnce causcd Plainuffto suffer a past,
present or future wage loss,
WHEREFORE, Defendant demandsjudgment in its favor and against the Plaintiff together
with costs of suit.
By way of further answer, Defendant asserts thc following:
NEW MA TTEB
14. The allegations set forth in an3wering Defendant's response to Plaintiffs Complaint,
hereinabovc in paragraphs 1-13 are incorporated herein by refercnce as if fully set forth at length.
15. Plaintiffs Complaint fails to state a cause of action upon which relief can be granted.
16. Plaintiffs Complaint may be barrcd by applicable statutes of limitation.
17. Plaintiff s il1iuries and damages, if any, were caused solely and directly as a result of
the negligence, carelessness and rccklessness of the Plaintiff. Colleen D. Kunder, which negligence,
carelessness and recklessness consisted of the following:
a) Failing to look where she was walking;
4
Fleet Cllffler Corp. v, Luhcre, 184 "u. S, 20 1,204, I J2 A.2d 723, 724-25 (1957). In~, II new
trial wus ordcred utler counsel t()r thc I'l1Iintlff, in his closing argnnlllnt, stilted thlltthe Defendant
"will not have to pay one ecnt of the verdict." See also Ir.lnilik. v, Merloe. 413 I'll. 40R, 197 A.2d
457 (1964).
Aecuuse of thc possible prejudicial danger imposed by the mention of insurance, the
Pcnnsylvania Suprcmc Court hm! hcld that it is appropriate to redact an otherwise admissible
document to exclude rcfeten(~cs to insurance containcd Thcrcin. CllJloz~Hcarst Publishinl! Co.,
371 I'll. 503, 92 A.2d 177 (1952).
Becausc ofthc highly prcJudicial naturc of insurance covcragc, the word "insurance" in the
trial of negligcnce cascs is somcthing that must bc avoided by witnesses" counsel, and thc Court at
the peril of withdrawal ofajuror or later, as a ground for a ncw trial. Corbett v. Borandi. 375 F.2d
265, 270 (3d Cir. 1967). See also Trimble v. Merloe, supra.
Defendant rcspecttlllly requests that this Honorable Court rule that any evidence of
Defendants' liability insurancc is inadmissiblc and respectfully requests that the Court instruct all
witnesses and counscl to rcfrain fwm any mention of the cxistcnce of liability insurance, the
involvemcnt of any liability insurance company, insurance adjustor, Plaintiffs health insurance or
questions conccrning insurancc covcragc in any fashion or manner whatsocver during testimony.
Furthcrmore. Dcfendant respcctfully rcquests that any demonstrative cxhibits be redactcd to
eliminate any referenccs to any insurance company, insurance adjustor, claim number or similar
information which would infer thc existence of insurance.
2
II. MOTION TO PIU<;CUmr,; .;VlI>r~NCE OF ()Trml~ INCII>ENTS.
Pa.R.E. Rule 402 provides thutall relllvunl evidence is udmissihle, except us otherwise
provided by law. Evidenel' that is notrelevunt is nol admissible, Pu./Ui. Rule 40) provides thut
ultbough rdevunt, evidence muy be excluded jf its pl'Obutive vulue is outweighed by the dunger of
unfuir prejudice, confusion of the issues, or misleuding of the jury, 01' by considerations of undue
delay, waste of time, or needless presentation of eUlTIulutive evidence.
Evidence of other ueeidents 01' i1~urics may be admitted to prove thut a dangerous condition
existed and that a defendant had noti~e of the condition but the party offering the evidetlce olother
accidentf mll.ft demonstrate their similarity to ti,e evellt in questioll. Rinl!elheim v. Fidelitv Trust
Co. ofPittsbur~h, 330 Pa. 69, 198 A, 628 (1938); Fishcr v. Pomerov's.lnc., 322 Pa. 389, 185 A, 296
(1936); Mendrall1J v. Weaver COI:p., 703 A.2d 480 (Pa. S 1997); Yllkntine-Y..A,cmc Markets.lnc"
455 Pa. S 256, 687 A,2d 1157 (1977). Prior accidents or incidents are not admissible unless they
are sufficiently similar to the accident or incident which gives rise to the litigation. Maidic v.
Cincinnati Machine ComDany. 370 Pa. S 61" 537 A,2d 334 (1988). To introduce evidence of other
accidents 01' incidents, a plaintiffmust show they occurred in substantially the same place and under
similar conditions. Rinl!elheim v. Fidelity Trust Co. of Pittsbur~h, Supra; Ban' v. Citv of
In the course of discovery, Defendant has disclosed prior falls which occurred on the
I
,
1\
t,
\
Philadelphill, 653 A,2d 1374 (Pa. Cmwlth. 1995). See also McCormick, Evidence, Section 189 and
Section 200 (5'h ed. 1999).
restaurant premises none 01 whicll are similar, in any matmer, to ti,e al/egatiolls being a.uerted
by the Plaintiff in ti,e butant action. Absent a demonstration of similarity, evidence of sueh tails
is inadmissible for any purpose and should be precluded.
3
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.
Plaintiffs damage claims include medical expenses which total $11,243.55 and all alleged
lost wage claim 01'$24.007.95,
While Defendant will stipulntc as to the admissibility and reason\lbleness of the medical
expenses, it disputes liability therefor. With respect to the lost wage claim, Defendant will challenge
the validity of this claim.
II. ISSUES.
A. What was the cause of Plaintiffs fall.
B. Was Defendant, Wendy's Intemntional, Inc., negligent, as the possessor of the real
estate in question, and if so, was the negligence of Wendy's International. Inc. a substantial factor
in causing the Plaintiffs fall?
Suggested answer to both questions: No.
C. Was the Plaintiff, Colleen Kunder, comparatively negligent, and if so, was her
negligence a substantial factor in causing her fall?
Suggested answer to both questions: Yes.
D. What is the nature and extent of Plaintiffs injuries and damages.
III. ARGUMENT.
Wendy's Intemational, Ine, was not negligem in the care and maintenance of the restaurant
premises in question and in particular, was not negligent in its lISC and possession of the condiment
stand, of the selection of the type of door on the condimcnt stand, or the type of knob or handle on
the condiment stand,
2
Obvious meuns thut both the condition and the risk are apparent to Md would be recognized
by a reasonable mun, in the position of the visitor, (~xercislng ordinary perception. intelligence and
judgment. Comment (0) to Restatemcnt of the Law (Second) Section 343A(h).
In ordel' to rccover dalllll~cs in a slip and fall or trip and fall case, whcrc an invitee is
inJurcd in II store, the invitce IIIUSt present evidence which proves that the store owner or
premises owner devillted in some WilY from his duty of rCllsonablc care under existing
circumstances. Thc cvidclwe mllst show that a dangerous or unsafe condition caused Plaintiff s fall
and the evidence must show that the proprietor or owner knew, or in the exercise of reasonable care,
should have known. of the existence of harmful condition and that the store owner/property owner
helped to create a harmful condition or that the store owner or property owner had actulIl or
constructive notice of the condition. Restatement (Second) of Torts ~343; Zito v. Merit Outlet
Stores, supra, And, while a store owner owes a duty of care to patrons of Its store, it is not the
insurer of the safety of its customers. Mvers v. PenIl.Jraffic Co.. 414 Pa. S. 181,606 A.2d 926
(1992), appeal denied 533 Pa. 625,620 A.2d 491.
The Plaintiffhas the burden of proving her claims, (Pennsylvania Suggested Standard Civil
Jury Instructions 3.00(civ)).
6
un opcn door to thc condimcnt stand or the knoh or handle on tlw door of the condiment stand.
cuuslng her to stumhle und liilL Tlw basis Jill' the supposition, speculation or assumption is thut ancr
the lillI,PlainliJ'l's ncphcw saw tlllll thc door to the l;ondiment stand was open, There is no evidence
that the door wm: opcn prior to thl' Plaintiffs fall; there is no cvidence that the Plaintiffs pantle!!,
caught on the open door; and thcre is no evidcnee that the Plaintiff's pantle!!, caught on the handle
or knoh of the door, pulling it open,
PlaintifTcannot establish thattlwre was any condition on Defendant's premises which causcd
her fall hecause shc cannot cstablish what caused Iwr 1;111. Thcrefilre. the Plaintiff cannot estahlish
that the Defendant knew or should havc known about a condition which constituted a danger or II
hazlIrd. In the absence of any such nolke 01' evidence oflhe existenc'~ ofa danger or hazard, Plaintiff
cannot meet her required blll'den of proof and there can be no recovery from Defendant, Wendy's
International, Inc,
Although qucstions ofncgligenec and causation arc gcncrally for the jury, thc qucstion of the
sufficiency of the evidcnee prior to prcscnting an issuc to the jury is clearly within thc trial judgc's
diserction, Wherc insuflicient evidencc exists to justify an infcrcnec of negligence and causation,
the trial court may properly grant judgment in (ilvor of the party against whom liability is sought.
CaldweU v, CO.mcE.enn-DOI, 120 Pa, Cmwlth. 358, 548 A,2d 1284 (1988); Fal'l1ese Y. Southeastern
Pcnnsylvania Transportation Authority. 338Pa. S 130.487 i\.2d 887 (1985),
Thc e1cmcnts ncccssmy to statc a causc of action ancl negligencc arc a duty on thc
defendant's pari to confill'll1 to a ccrtain slHndard of conduct relative to the phlintiff; defcndant's
failurc to so conlill'l1l; and a reasonably e10se causal connection bctwccnthc ,bendant's conduct and
8
some resulting injury to the plaintiff. CummiruiY, Firestonc Tirc & Rubbcr Co., 344 Pa. S9, 495
A,2d 963 (1985).
To make out al'l'ill/ajilcie cusc In a negligcnc\~ uctlon based onthc Restatement (Second)
of Torts ~343. the invitee must prove thatlhe proprietor had either IIctual or constructive notice of
the offending condition which allegcdly caused thc invitee's harm, Moultcrcu Great A&P Tea
Co.. 281 Pa. S 525,422 A,2d 593 (1980),
In Inverso v, Bpb's COllntl}'..DelL&.Fine Foods. 20 D&C 4'" 404 (1993), the Chester County
Court of Common Pleas entered a non-suit against thc plaintiff in u slip und fall case because
Plaintiff was unable to prove what caused her fall. The plaintiff had claimed that she slipped und
fell on a grcasy, slippery substuncc on the noor und argued that circumstantial evidence existed
which proved that the substancc existcd for 11 period of time in excess of one hour, thereby creating
a dangerous condition. The Court noted, In reviewing plaintiffs post-trial motion to set aside the
compulsory non-suit. that the only evidence prcsentcd from which thc jury could infcr a slippery
substancc was onthc noor long enough for constructive noticc to thc Deli, was plaintiffs testimony
that shc did not hear nor sec a spill during thc hal f~hour to forty-fivc minutcs she sat at thc booth for
breakfast. The Court did not find the plainti ffs arguments persuasivc. Keeping in mind the standard
for a nQll-suit, thc Court gave the plaintiff the benefit of all lill'orable testimony and every reasonablc
infercncc arising thereli'om. and reaflil'lTled the cntry of the compulsory non-suit,
Thc merc existcncc of a harmful l:onditioll in a public place of business or the mcrc
happcning of an accidcnt duc to such a condition is neithcr, in and ofitsclf. evidence ofa breach of
the proprietor's dUly of care to his invitccs. nor raises 11 presumption orncgligellcc. MOllltercy v.
9
Great A&I' Tea Co, suprn. In order to rccovcr damagcs in a "slip and fall easc" thc invitcc must
prescnt cvidence which provos that thc store owner devlllled III ,Hlllle WilY fro//! /lis I/II/)' of
rell,wJ/lable cllre /I/I/Ier IIIe exl,f/lllg circwtullll/Ce,f. Zi1~Ms.riU2Ull~t Stores, Supra. at 575,
111 S~lb.Y.5~1!l v, Northeastern Illlspital, supra (1997). the Superior Court affirmed the trial
court's granting of summary judgment. In Swill. the plaintiff injured herself when she fell from a
luddcr. She treuted at defendant's emergency room where she was diagnosed with, among other
maladies, a compression fracture and a chronic muscular disorder, She was discharged the same day,
but before leaving the hospital, she slipped and fell sustaining a fracture of her femur. She was
readmitted, underwent surgery, developed sepsis and died three weeks later in the hospital. In
sevel'lll hospital records, entries indicated that the deecdent had made multiple statem(mts to her
doctors relating that she "slipped on IVlllel'," ^ hospital report, however, indicated that she said hel'
"leg gave out." Plaintiffs Estat(: tiled suit, sounding in theories of malpractice and, in premises
liability. Ultimately, following the conclusion of all discovery, the defendant moved for summary
judgment. The trial court issued an Order allotting the plaintiff 60 days to identify "witnesses who
would establish by direct, competeot testimony" that there was "a dangerous or defective condition
on defendant's !loor and that the defendant had actual or constructive knowledge of that condition,"
Plaintiffs contended that the decedent's mcdical and hospital records supported their position that
summary judgment should not be granted, The trial court, however, granteq summary judgment and
the Superior Court aflirmed, While the Superior Court I(HlIld the decedent's statcments contained
inlhe records that her slip was callscd by water in the Hoor admissible as necessary to cnslII'c that
her slipping W<lS not relatcd to her newly di<lgnoc;ed disease, but rather, was call sed by external
\0
QrlmL8.sl;;.e.JJdLill supra. In order to recover damage:; in a "slip and fall case" the invitec must
present evidence which provcs thaI the store owncr devialed ill so",e way frol/l IIis (11I1y of
rea,wllah/e care IJ/uler lite exi,flillg clrCllllulallce.f. Zito v, Merit Outlet Store,5, Supra. at 575.
In Swift by Swill v~Northcastern Hospital, supra (1997), the Superior Courtaflirmed the trial
court's granting of sUlTlmary judgment. In Swift, the plaintiff injured herself when she fell from a
ladder. She trealcd at defendant's emergency room where she was diagnosed with, among other
maladies, a compression fracture and a chronic muscular disorder. She was dischargcd the same day,
but before Icaving thc hospital, she slipped and fcll sustaining a fracturc of her femur. She was
rcadmitted, underwent surgery, developcd sepsis and died three weeks later in the hospital. In
sevcral hospital records, entries indicated that the deccdent had made multiple statements to her
doctors relating that she "slipped on waler." A hospital report. however, indicated that she said her
"leg gave out." Plaintiffs Estate filed suit. sounding in theories of malpractice and, in premises
liability. Ultimately, following the conclusion of all discovery, the defendant moved for summary
judgment. The trial court issued an Order allotting the plaintiff 60 days to identify "witnesses who
would establish by direct. competent testimony" that there was "a dangerous or defective condition
on defendant's floor and that the defendant had actual or constructive knowledge of that condition."
Plaintiffs contended that the decedent's medical and hospital records supported their position that
summary judgmcnt should not bc granted, Thc trial court. however,\llilnted summary judgment and
the Superior Court affirmed, While the Superior Court found the decedent's statements contained
in the records that her slip was caused by IVatcr in thc floor admissiblc as necessary to ensure that
her slipping was not related to her newly diagnosed disease, but rather, was caused by external
10
circumstances und, therefore. was necessury to her treatment. it noted that the mere fact that the
nccidcnt occurrcd docs not give risc to an inference that the injured persall was the victim of
negligence, as there must he a breach of a legal duty to estahlish negligence, The court held:
...Appellanl.I' have ,/ililed 10 ,\'11011' in Ihe record Ihallhe appellee had nolice of Ihe
condilio//. Appellanls pl'e,\'ented no evidence a,\' 10 hall' Ihe lValer arrived Oil Ihe
floor. nor i,\' Ihel'e evidence a\'lo how long Ihe condlllon exl,\'led.. Wllhol/ISI/chpl'oof,
(/ppellant,\' cal/llOl e,\'lahli,\'h a bl'l'ach oflhe legal dilly owed 10 decedent by appellee
which Is a condilion pl'eccdent 10 afilldlng of negllRenee. COIl,\'eql/enlly. Ihe Irial
COW'I properly granted appellee',\' mOllonfor sl/mmaryjl/l~~lIIent,
Swift, supra, at 722. (cmphasis added)
Notice was also the issue addressed hy the court in the Pennsylvanin Supreme Court case of
Commonwealth. Dcpa~tmc!.!t ofTraniil2ort;llion v. Patton Co.. 546 Pu, 562. 686 A.2d 1302 (1997).
In this case, plaintiff's decedcnt was killcd when a large limb fell from a tree within a
Commonwealth right-of:way, striking her car. The tree had been trimmcd and "lopped" more than
20 years earlier by unknown individuals when the branch grew at a 45" angle over the roadway. At
trial, plaintiffs expert testified that the topping of the tree allowed the trec to decay from the top
down, thereby weakening the limb and causing it to fall. /lc also opined that a topped tree should
raise a "red flag" to a wcll-trained trec inspector. The Department of Transportation expert testificd
that the tree was sound and, that thcrc was no evidence that the topping was visible from the ground.
Other witnesses slated that they saw nothing wrong with thc trce before thc accident. The trial court
gave a general charge onnegligellce and refused to give a charge requested by the Dcpartmelll of
Transportation which stated that in order to find illiable, lhe/III)' ml/sl,/ll'sl delel'lIIine whelhel' illwd
acll/al or COlIsll'/I(;live no lice (ill/III/llegedly dl/ngel'll/l,\' condilion. The trial CalirI declined to give
11
the chnrge. holding that neither actuul nor construction nOlice wus neecssury to aetivale the
Conlll1ollwealth's liability, The jury returned II verdict in !llYor of the pluintift:q and unuppeul
quickly fol/owed, The Commonwealth C'ourluflinl1ed theJury's verdict, finding there was suflieient
evidenc:t~ to demonstrate actual or construetivc nolice of the risk ofunreasolluble IUlfm, However.
the Pennsylvania Supreme Court r~versed, finding thut il wus error le)r the trial COUrI to have
instrueled the jury Ihat it was nol necessary for the plaintiff 10 detllOnstnlle the existence of notice,
staling:
"To require a pOSsessor of land to "exercise reasonable care" to prevent harm from
lhe condition or trees is wnsistent with lhe necessity thut he have nelual or
constructive notice ofn dangerous eondilion berore he may be held Huble."
The Reslntement (Second) ofTorls ~343 likl~wise applies to the circumslanees of the instant
case. It states:
"A possessor of/nnd is subject to liability for physical harm caused to his invitees by
a condition on Ihe land if: but only if, he (a) knows or by the exercise of reasonable
care will discover the condition..,"
In other words, Ihe Pennsylvania Supreme Courl in pallon, supra, has definitively concluded
thai liability is premised on aelual or construclive notice, "This requirement of notice is well
eStablished in the common law of this Commonwealth and, if any rell~vant seclion of the
Restntement (Second) of Torts does not incorporate the requirement. we will interpret it as requiring
notice, if possible. or we must conclude thaI it does not compOI'I with Pennsylvania law." ~'l!lQn.
gmru. 1II 1305. It was evident. thereforc, to the Supreme Courtlhal the trial COUl'l was incorrect in
concluding that no notice was required to PennDOT and. in !lliling to chmge the jury on notice.
12
The decisional law in suppon of Defendant's position tlUlt Plaintiff must establish Ihe
, existence of a dangerous l:Onditi()n and, that Def,~ndant knew or should have known that this
condition posed an unreasonable risk of harm docs not end simply with .w..inkler, !illDIfI. or fill.lP.n,
1illJml, Indeed. in (lrafv. C'lY1l!.\'J)[NonhbJ!illp-ton. 654 A,2d 131 (I'a, Cmwlth. 1995). compulsory
non-suit in litvor of defendant was entered in a lawsuill1led by the inmate in a county work-release
facility for injuries he sustained when he struck his helld on a hallway ceiling. Atlrial. he testil1ed
Ihat he regularly walked the hallway prior to the accident and was aware of its eonl1gufl\tion. Hl~
admitted that he was aware ofa prison rule against running in the hallways. He hadjogged from his
room down the hallway in a race to get to the cafeteria and struck his head while going down
hallway steps The Commonwealth Court determined that as an inmate, Plaintiff occupied the status
of an invitee and, accordingly, the case was governed by the principles set forth al ~~343 ane. 343A
of the Reslatement. The eOUl1 affirmed the entry of non-suit:
Grafoffered no evidence at the trial to support the conclusion that the hallway ceiling
was too low for safe passage or in some way constituted a dangerous or defective
condition. Grafalso offered no evidence thatlhe allcged dangerous condition as such
was not su~jcct to ready detection and avoidance by a reasonably prudent pelson.
Gral's own testimony showed thai not only was the difference in the hallway ceiling
height obvious 10 a reasonable attentive invitee, but also that he was aware Ihat the
hallway level changed at the point where the steps were located, Thus, when viewing
the cvidell(~e and all reasonable inferences arising from it, in the light most favorable
to Graf, the trial court properly determined that the jury could not reasonably
conclude that he had established the elements of his cause of action.
)
~ ,
I~
r
!, I
Grae supra. at 134.
Plaintiff. Colleen Kumler. has not produced any cvidence of notice of a dangerous or
'i,
I!
'.
defective condition on the Wcndy's properly. Plaintiff cannot prove that Wendy's had any
knowledge of any problem with the condiment stand doors. I'laintiffhas no evidence orany prior
13
similar fhlls or ellmpluinls. Plaintiffeunnot even estublish who len open the door und for how long
the door was open, assuming she can even cstablish the door was open utthe time of her fall.
Therefore, Plaintiff cannot meet her required burd(:n of proof
Assuming arguendo. the Plaintiffcan prove that it was un open door to the condiment sland
which caused her to stumble and fall, Plaintiff knew or should have known olthe existence of that
condition prior to her fall and thcrefore, she was comparutive negligent and is barred from recovery,
The standard of care for eonlributory negligene(~, like that for negligence, is the prudence of
a reasonable person under like circumstances. Qill,!lJL'LKumar, 437 Pu. 268, 263 A.2d 458 (1970);
Jewell v, Betj:st[ng, 255 Pa. S. 238, 386 A.2d 597 (1978),
In Jewell v, Bcekst!n" ld.. Jewell slipped and fell in the Beekstine's "milking parlor." Jewell
was a milk hauler who was familiar with diary milking areas and who observed steps in milking
parlors to be weL He was found to be contributorily negligent in not exercising care in
descending steps in the milking parlor and eould not recover from the diary farmer for
injuries sustained in a full on the steps. The Superior Court concluded that the trial court had erred
in denying the dairy farmer's motion for judgment N.O,V, The milk hauler testified that he was a
diary farmer himself, had been brought up on the farm and had milked cows for years, knew the
characteristics of cows, manure, and the sort of places frequented by cows. In his rounds as a milk
hauler, he had been in other milking areas before and indeed had onen been at this dairy farmer's
property, He also testified that bcli,re he fell he saw that the stcps and landing \\'ere wet, but that he
did not sce manure on thc landing, IIc tcslil1ed that a!'ter hc fell. he looked and saw tracks of manure
all the way across thc landing to the door ofthc holding area. The Superior COllrt cOllcluded (1/(/(
14
, \
In t1lldlng ill tilvor of thc defcndunt. thc District Court placcd thc rcsponsibility upon thc
plail1liffto asscss hcr own activitics in light ofthc conditions of which shc kncw or. of which shc
should have known. had shc becn cxercising rcasonablc care,
The Plaintiff in this casc will not bc ablc (0 cstablish thatthc condiment stand door or its
knob or handlc constillll<,d a dangerous or unreasonablc risk of injury hceausc Plaintiff cannot
cstablish that Dcfcndant had noticl' that such condition poscd allY danger whatsocver, Therc had
neVt,r been a prior fall with any similarity at the restaurant to Defcndant's knowledge or prior
complaint concerning thc condimcnt stand, its doors (opcn or shut) or thc type of its knobs 01'
handles.
Whi Ic its strctches onc' s imagination to concludc that the condiment stand, its door, or its
handle or knob caused or any way contributcd to thc Plaintiff's fall. therc is absolutcly no evidencc,
whatsoever, that Defendant kncw of a hazard, defcct or condition or that such condition existed for
a sufficient pcriod of timc in order for Dcfcndantto havc an opportunity to COff<1ct it.
Pennsylvania's Comparative Negligcnce Act is applicahle to thc facts of this case. That Act
provides that a plaintiff is guilty of contributory ncgligcncc and harred 11'001 rccovery where her
negligence was greater thanthc combined causalncgligcnce of a dcfcndant or defendants against
whom recovcry is sought. The Act also provides that should plaintiff's contrihutory negligcnce hc
less than or equal to the combincd ncgligelv:e of the defendants, her recovery shall be diminished
in proportion to thc amount ofncgligencc attributcd to hcr. 42 Pa.eS.A. p102.
A plaintiff's rccovcry is barrcd undcr thc Pcnnsylvania Comparativc Negligcncc Act whcn
the plaintiff is mort' ncgligcntthen thc dcfcndant 01' whcrc the plaintiffs negligence cxceeds the
17
combined ncgligcncc orthc dl~li:ndants against whom recovery is sough I. L.lmll v. McGcc, 373 Pa.
S 85, 540 A,2d 311 (1988); j{uvmcic.lLY~l!Q!IDllill.l. 119 Pa. Cmwlth. 640. 547 A.2d 1279 (1988).
Pcnnsylvnnia's Comparlltivc Ncgligence Ael presullles the jury's ability to estnblish and
weigh the negligence orall parties, r~UW,illllX.,l}ill1?arellli, 445/'a, 23. 664 A,2d 989 (1995), appeal
granted 544 Pa, 609. 674 A.2d 1072, reversed 700 A,2d 927,
Ifany negligencc is at issuc, thc crcdible filcts altrial will establish Ihat plainliffs negligence
was the sole and substantial cnuse of her injury and that her negligence exceeded any negligence on
the part of Defendant, Wendy's International. Inc,
PllIlntlft's dlllllllges, if lillY, lIlust be reduced by the percentage of eOlllparnlive
negligence of Colleen Kunder.
The Plainliffs have the burden of proving that Ihe injuries eomplllined of resulted from the
aecidenl. Reisty. Manwillel:, 23 I Pa. S 444. 332 A,2d 518 (1974) and Pennsylvania IlIw requires
not Illerely conjecture, but mthcr sufficient data from which damages can be assessed with
reasonable certainty. Gordon v. Trovato. 234 Pa. S 279. 338 A2d 653 (1975).
There is not and cannot be any precise formula for calculating damages; al best, Courts and
juries in grappling with this issue, can only arrive at a damage figure which represents ajudgment
based upon the cOllsideration of equity, reason and pragmatism. Mack v, 30hnso'1. 430 F. Supp.,
1139 (1977), aft'll. 582 F.2d 1275 alld Appeal or Smith. 582 F,2d 1276 (D.C. 1977),
The purpose of compensatory damnges in a personnl injury nction is to neither rewnrd a
plaintift'nor to punish a defendant but to replace plaintift's actual losses, Domeracki v, Humble Oil
&,Refinil1l! C'\L 443 F,2d 124, ecrl. denied 92 S CI. 212,404 U.S. 883,30 L.Ed. 2d 165 (1971).
18
IV. CONCLUSION.
Pluintiffwill be unable to cstablish what causcd hcr to fall.
Plaintit1\vill be unable to establish that any dangcr, hazard. dcfect or unsafe condition existed
on Defendant's premises which causcd hcr to fall.
Plaintiff wi II be unablc to cslabl ish that thc Dcfendant had any notkc of any condition which
shc speculatcs causcd her to fall.
In the absencc of cvidcncc as to thc cxistencc of a dangcr, unsafe condition, dcfect or hazard
on Defcndant's prcmises which causcd Plaintiff to fall allll in thc abscncc of proof that Dcfcndant
kncw or should havc known ofthc existcncc of such a condition, Plaintiffcannot sustain hcr required
burden 01'1'1'001'. Thcreforc, Dcfendant cannot bc found liable to thc Plaintiff.
Respectfully submined,
Date: ~01fcA. 81 2C01
GRIFFITH, R CKLER, LERMAN,
SOL YM S
I
Biif.~AN' f1lt1aJ
Attorney for Defcndant, Wcndy's
Intcrnational,lnc,
Supremc Court I.D, No. 07490
110 South Northcrn Way
York, PA 17402
Tclcphonc No, (717) 757-7602
mlc/wendYS~1I2.brL~
7.
Obvious means thlll both the eondhlon and the risk ure np/lllrcnllo llnd would he recognized
by II teasonllble person In the posh Ion of lhe Plnlntlff, exercising ordlnury pereepllon, llltelllgenee
IlIld jUdgment.
Grunted __
Denied
Comment (b) to Restatement or'forts(Sccond) f14,1A(b).
I ~
f'
:1
.j
10.
A person ha$ n duty to look where he/she is walking and seethut which is obvious llnd nct
nccordlngly.
Granted
Denied
Lewis v. Duquesne Irlcllned PIUljC Co, 436 Pa. 43, 28 A,2d 92$ (1942),
11.
The Plaintiff has the burden ofprovil1B by a preponderance of the evidence that her damages
were caused by the Defendant's negligcnee. The Plaintiff must prove both the el(lstence of the
damages and the causal connection betwecn them and the Defendallt's negligcnce. Such proofmust
be shown to a legal certainty und by a reasonable preponderance of the cvidenl:e; a mere possibility
is insufficient.
Because the Plaintiff is required to establish her claim to a legal certuinty by a reasonable
preponderance of the evidence, speculation, conjecture, mere possibility and even unsupported
probability are not sufficient to support a judgment in her favor.
Granted __
Denied
Wilcox v. Re~ester, 417 Pn. 475, 207 A,2d 817 (1965);
Judv Ellyn. Inc. v. Hyde Park Fashions. [nc., 206 Pa. Super. 569,214 A,2d 296 (1965);
American Air Filter Co.. Inc. 1'. McNichQ!, 572 F.2d 1297 (3d Cir. 1975);
Rochez Bros.. Inc. 1'. Rhoades, 527 F.2d 891 (3d Clr. 1975);
Ballantine 1'. Centrail Railroad of New Jersey, 460 F.2d 540 (3d Cir. 1972);
Draft Svstems 1'. Rimar Mfg.. [nJ;." 524 F.Supp. 1049 (E.D. Pa. 1981).
I
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COLLEEN D. KUNDER
Plaintiff
IN THE COURT OF' COMMON PI,EAS
I CUMBERLAND COUNTY, PENNA.
v.
I NO. 98 - 3094
WENDY'S INTERNATIONAL, INC.
Defendant
I CIVIL AC'I'ION - LAW
JURY TRIAL DEMANDED
VERDICT SLI~
QUESTION NO.1:
Wendy's International, Inc. ("Wendy's") were negligent, and that
Wendy's negligence was a substantial factor in causing the
injuries to Colleen O. Kunder?
Do you find that the actions, or lack of action, by
Yes
No
QUESTION NO. 2 I
Do you find that Colleen D. Kunder was contributorily
negligent and that her contributory negligence was a substantial
factor in causing her injuries?
Yes
--
No
1
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,
~ .
COLLEEN D. KUNDER
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUN'I'Y, PENNA.
v.
NO. 98 - 3094
WENDY'S INTERNATIONAL, INC.
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S PROPOSED POINTS FOR CHARGE
1. Plaintiff, Colleen D. Kunder, is claiming damages
for the injuries she received from her fall at Wendy's Restaurant
on Simpson f'erry Road, Pennsylvania, on July 2, 1996.
She is
claiming that the cabinet door of the condomint counter was left
open, which created a hazardous condition, during the crowded
lunch hour, in an area where people are designated to walk in
order to get their food and utensils.
2. She is
claiming
that
the
Defendant, Wendy's
International, Inc. ("Wendy's"), was negligent in that Wendy's
devi.ated from Hs standard of care owed to their customers to
keep its premises free from foreseeable hazardous conditions
which their customers, like Plaintiff, would be subjected to, by
allowing this hazardous condition, the open cabinet door, to
exist, particularly during a very busy time of the business day,
the lunch hour at a fast food restaurant, and in an area and
along a pathway which its customers will typically walk along to
get their fooct and utensils with which to eat; and that under
these conditions, Wendy's knew or should have known of the
hazardous condition.
,
.
J. Wendy's is olaiming that Colleen Kundel.' was
oontributorily negligent and that she oausod her own fall by
failing to notioe any possible hazardous cc.mdi tioll; and in fact,
that there was no hazardous oondition; and if there was a
hazardous condition as olaimed by Plaintiff, Wendy's could not
have known, or should not have known, about the hazardous
condition.
4. In order for the Plaintiff to recover in this case,
she must establish that the Defendant's conduct must have been a
substantial factor, /1,1 though it need not be the only factor, in
bringing about the Plaintiff's injury. This is what the law
reoognizes as legal oause. A substantial factor is an actual,
real factor, although the result may be unusual or unexpected.
Pa. Suqqeste~. Civil Jury Instructions. Section ~~
5. In a civil case, the Plaintiff must establish her
proof by a fair preponderance of the evidence. A preponderanoe
of the evidence is established if you are persuaded that it is
more probably acourate than not. To put it another way, think of
an ordinary balance scale, with a pan on each side. On the one
side, place all of the evidence favorable to the Plaintiff, and
on the othel' side, place all of the evidence favorable to the
Defendant. If you feel that tht) scales tip ever so sHghtly or to
the slightest degree in favor of the Plaintiff, your verdict
must be for the Plaintiff. If the scales tip in favor of the
2
,
Defendant, or are equally balanced, your verdict must be for the
Defendant. Pa.Suagested st. Civil Jurv Instr~ctjons, SectiQD
5.50.
6. The Plaintiff in this case is classified as a business
invitee or visitor. 'I'he standard of care and duty that a
restaurant owner owes to a business invitee is the highest
standard and highest duty owed to any person entering onto a
pr.operty. Rippee v. Grand Manufactur.i,na Co. 760 F.2d 25 (3rd
Cir.Pa (1985).
7. A restaurant OWner is required to Use reasonable care
in the maintenance and use of the property and to protect its
business invitees from foreseeable harm and is also required to
inspect the premises and to discover dangerous conditions. A
restaurant owner is liable for harm caused to a business invitee
by a condition on the property if the owner:
(a) knows, or by the exercise of reasonable care would
discover, the condition and should realize that it involves an
unreasonable risk of harm;, ana
(b) should expect that its invitees will not discover or
realize the danger or will fail to protect themselves against it,
and
(c) fails to exercise reasonable care to protect them
against the danger.
Pa. Suaaested st. Jury Instruct1~. Section 7.00B.
3
8. In a fall case such as this, the Plaintiff must
establish, by a preponderance of the evidence, that the
restaurant owner deviated in some way from his duty of reasonable
clare under the circumstances; that the restaurant owner knew, or
in the exercise of reasonable care, should have known, of the
existence of the harmful condition; and the Plaintiff must prove,
by a preponderance of the evidence, that either the restaurant
owner helped create the harmful condition Q1: that the restaurant
owner had actual or constructive notice of the condition, not
both. Zito v. Metit Outlet stores, 436 Pa.Super 312, 647 A.2d
763 (1994).
9. A restaurant owner is not liable to a
customer/invitee for physical harm caused by any actiVity or
condition on the property which danger is known or obvious to the
customer, unless the restaurant owner should anticipate the harm
despite such knowledge. Resta~nt ISecond) of Torts. Section
343 A. Such reason to anticipate or expect the harm to the
custome:r:/invitee from known or obvious dangers may arise, for
example, where the restaurant owner has reason to expect that the
customer may be distracted, that she will not discover what is
obvious, or will forget what she has discovered, or fail to
protect herself against it. Restatement ISecondl-2! Torts,
Section 343 A. Comment f to ~~tiQD III of Section 343 A.
4
10. The Defendant, Wendy's olaims that the Plaintiff,
Colleen Kunder was contributorily negligent. Contributory
negligence is negligence on the part of a plaintiff that is a
substantial factor in bringing about the plaintiff's injury. The
burden is not on the Plaintiff to prove her freedom from
contributory negligence.
The Defendant has the burden of
proving contributory negligence by a fair preponderance of the
credible evidence.
You must determine whether the Defendant has
proven that the Plaintiff, under all of the circumstances
present, failed
to exercise
reasonable care for her own
protection. Even if you flnd that the Pla.intiff was negligent,
you must also determine whether the Defendant has prOVen that
the Plaintiff's conduct was a substantial factor in bringing
about he Plaintiff's .injury. If the Defendant has not sustained
that burden of proof, then the defense of oontributory negligence
has not
been made
out.
Fa. Suagesteq St. civil Jury
Inst~uctions. S~l2n 3.03.
11. If you find that the Defendant is liable to the
Plaintiff, you must then find an amount of money damages which
you believe will fairly and adequately compensate Plaintiff for
all of the physical and financial injury she has sustained as a
resUlt of the accident.
'I'he amount you award today nlUst
oompensate the Plaintiff completely for damages sustained in the
past, as well as damage the Plaintiff wil1 susta.in in the
future.
\ Pa.
Suaaested st,_.J;'ivil Jury Instructions. SElQ.t.i.Qn.,~...
t- ,,'
(' ,
',h"
5
12. The damages reooverable by the Plaintiff in this
case and the items that go to make them pu, each of which I will
diseuse separately, ar.e as follows: .ou.rent'medical expenses,
.f\tttJ~~"niedlciti:::,,,,,,xptm5eS, '\furt-ent loss of earnings, past, present
....4'"
and future physical pain
and
suffering,
mental anguish,
embarassment and humiliation, past, present and future loss her
ability to enjoy any of the pleasures of life as a result of her
injudes.
In the event you find in favor of the Plaintiff, you
will add these sums of damage together and retur.n you verdict in
a single, lump sum.
P.a.Sugaested st. C1vil Jury InstJ;'uctions.
Section 6.01
13. The Plaintiff is entitled to be compensated in the
amount of all medical expenses reasonably incurred for the
diagnosis, treatment and cure of her
injuries in the past.
,
These expenses, as alleged by Plaintiff, amount to $11,373.45.
An exhibit will be submitted to you, itemizing these charges for
your consideration during deliberation. Pa. Suaaested St. CiYil
Jurv Instructions. Seotion 6. 01A..
14. The Plaintiff is entitled to be compensated for all
medical expenses which you find she will reasonably incur in the
('{uture for the tre~~,meht and care of her continuing injuries.
Pa. Sua~.sted st. Civil Jurv Instructions. SectiQ~.OlB.
6
15. The Plaintiff is entitled to be compensated for the
amount of earnings she has lost up to the time of trial as a
result of her injuries. The amount is the difference between
what she probably would have earned but for the harm, less the
sum which she aotually earned in any employment. fA...... Suqgest~q
~il Jury Instruotions. Sectton 6.01~
16. The Plaintiff is entitled to be fairly and adequately
oompensated for such physical pain, mental anguish, discomfort,
inoonvenience and distress as you find she has endured, from the
time of the accident until today. Fa. Suqaested Civil Jur~
Instructions. Section 6.01~ '
17. The Plaintiff is entitled to be fairly and adequately
oompensated for such physical pain, mental anguish, discomfort,
inoonvenience an~ distress as you believe she will endure in the
future as a result of her injuries. ~uggested Civil Jury
Instructions. $~ction 6.01F.
18. The Plaintiff is
adequately compensated for suoh
you believe she has endured.
Instructions. Section 6.01G.
entitled to be fairly and
embarassment and humiliation as
Fa. Suaaested Civq ._~
7
PRAECIPE FOR LISTING CASE FOR TRIAL
(~Jst be typewritten and submitted in duplicate)
TO THE POOTHON:YI'ARY OF CUMBERLAIV COUN'I'Y
Please list the following caso.
(Cheok one)
(xx) for ,JURY trial at the noxt teon of dvil. court.
for trial without a jury.
------------------------------------------
CAPTION OF CASE
(entire caption nust be otated in full)
(check one)
('0') Civil. Action - Law
Colleen D. Kunder Appeal from Arbitration
(other)
(Plaintiff)
VS.~
Wendy's International.. Inc.
The trial list will be called on
-'-
and February 13, 2001.
Trials commence on March 12, 2001.
(Defendant)
Pretrials will be held on February 21, 2001
(Briefs are due 5 days before pretrials.)
v~.
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 3094
Civil
Law
19 98
Indicate the attorney who will try case for the party who files this praecipe.
James W. Abraham, Esquire for Plaintiff
Indicate trial counsel for other parties if known.
Robert S. Lel~n, Esquire for Defendant
.---
This case is ready for trial.
c~=~~/xfr~~~__
Signed.
Prin t Nama I
James W. Abraham.
Date.
January 22, 2001
Attorney fors
Plaintiff, Colleen D. Kunder
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COLLEEN D. 'KUNnER
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERI,AND COUNTY, PENNSyr,VANIA
v.
NO. 98-3094
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
WENDY'S INTERNATIONAL, INC,
Defendant
PLAINTIFF'S PRE-TRIAL CONFERENCE MRMORANDUM
(Pre-Trial Conference: February 2l, 2001)
I. STA'l'BMBNT OF BASIC FACTS AS TO LIABIItlTY:
"fast food" restaurant, "WendY'El", in Mechanicsburg, Pennsylvania
On July 2, 1996, Plaintiff was a patron at Defendant' s
after attending a funeral. Plaintiff went to Wendy's during the
lunch hour and she was accompanied by her nephew, Brandon Sligh and
other family members. The restaurant was crowded, typical of the
lunch hour "rush".
f
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,
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At the time of the fall, Plaintiff was wearing pants
whIch were loose in the pant legs . After Plaintiff had proceeded to
order and receive her food and drink, she was carrying her tray in
front of her and proceeded t.o the condomint counter to get her
plastic wear, e.g., knife, fork, etc.
Plaintiff was standing in front of the condomint counter
and after she took her plastic wear, she turned to her right to
walk toward the seating area, and her left leg was caught and she
could not move it forward, and she fell onto the floor, with the
primary impact on her right knee. As Plaintiff fell, she dropped
her tray and her food and drink spilled onto the floor, After she
I'
"
fell, Plaintiff immediately turned and noticed that the loft side
of her pants was pulled down below hor hip, Only the left side was
pulled down.
Plaintiff's nephew, Brandon Sligh ("Sligh") did not see
the actual fall but: instantly turned around after he heard
Plaintiff hit t.he floor. Sligh also noticed that Plaintiff's pants
were pulled down only on her left side and Sligh immediately
noticed that the left cabinet door of the condomint stand was open
(tho right cabinet door if you are facing the condomint counter) .
Plaintiff oubmits that the cabinet door was open and
caught onto Plaintiff's left pant leg causing her to fall.
Plaintiff further submits that the cabinet door was negligently
left open and/or was not closed proporly by Defendant' fJ employee
creating an unreasonably dangerous and hazardous condit.ion, which
under the circumstances, Defendant unreasonably allowed to exist.
II. STATBMBNT OF B1.SIC PACTS AS TO DAMAGRS:
As II result of the fall, Plaintiff suffered various
injuries, the most serious of which was an injury to hor right
knee, requiring arthroscopic surgery in February, 1 !)97, Dr, Green,
her treating orthopedic surgeon, determined that Plaintiff had
developed synovitis in her right knee and that, to a reasonable
degree of medical certainty, her injury was caused by the fall at
Wendy's on July 2, 1996; and will further testify that the injury
to her right knee is permanent,
~
~
existing circumstances. Zito v. Merit Outlet Stores, 436 Pa.Super.
312, 647 A.2d 573 (l994).
Plaintiff must est.ablish, by a preponderance of the
evidence, that under the facts and circumstances of this case,
Defendant was negligent in allowing a hazardous or dan'Jerous
condition to exist on its premises; Knew or should have known of
said condition; and unreasonably allowed it to exist.
Plaintiff, however, is not required to prove the exact
manner in which a dangerous condition developed or how the store
owner, such as Wendy's, was negligent in creating or maintaining
the dangerous condition. Penn v. Isaly--I:l.a;l.ry Co., 413 Pa. 548, 198
A.2d 322 (l964). Accordingly, the exact length of time that a
hazardous or dangerous condition existed, i.e, the open cabinet
door, does not have to be specifically established, but must be
reasonable under the circumstances.
Further, specifically as to causation, circumstantial
evidence is sufficient and adequate to prove negligence and it is
not necessary that every fact or circumstance points unerringly
toward liability. Winkler L Seven~inl1s Farm. Inc., 240
Pa.Super 64l, 359 A.2d 440 (l976).
Accordingly, "under the circumstances" of this case, the
fall occurred at a time of day in which Wendy's "duty of care" was
at its highest level, i.e., during the crowded lunch hour at a fast
food restaurant.
4
Wendy's unreasonably allowed the dangerous and/or
hazardous condition of the open cabinet door to exist during the
busy lUllCh hour time period, in an area of the restaurant in which
its busineSll inv,itees, including Plaintiff, were extremely
vulnerable to obstructions in the normal walking path of a customer
getting their food and accessories; creating an unreasonably
dnagerous and hazardous condition which Ilubjected it.s business
invitees to injury, including Plaintiff.
!I. DAMAGES
Plaintiff must establish, by a preponderance of evidence,
that the aforesaid negligence of Defendant was the factual and
proximate cause of the injury to Plaintiff and the resulting
damages to Plai,ntiff. Pittsburah National Bank v. Perr, 43l Pa.
580, 637 A.2d 334 (l994).
There is undisputed testimony, by Dr. Robert Green,
Plaintiff's treating orthopedic surgeon, that to a reasonable
degree of medical certainty, the faU on July 2, 1996
was the sole cause of the injury to Plaintiff's right knee in
particular. There will be no substantive contradictory testimony
by Wendy's as no medical expert will telltify' on behalf of Wendy's
to rebut or refute the testimony of Dr. Green.
5
IV. SUMMARY OF LBGAL ISSUBS REGARDING ADMISSIBILITY:
1. Plaintiff objects to the use of any exhibitll by Wendy's
which were not provided by Wendy's in response to
Plaintiff's discovery request. Plaintiff's First Request
for Production of Documents Addressed to Defendant,
Request No.7, requests copies of any and all documents to
be used by Wendy's as exhibits at time of trial.
Specifically, Plaintiff objects to "excerpts" from
manuals being used as exhibits at time of trial
by Wendy's, particularly since not only were the
"excerpts" not provided in discovery, the entire manuals
were not provided to Plaintiff. Said use will be
prejudicial to Plaintiff.
V. IDENTITY OF WITNESSES TO BE CALLED:
1. Plaintiff
2. Plaintiff's nephew Brandon Sligh
3. Dr. Robert G.reen, treating physician on videotape
4. Dawn Vanessa Myers, Assistant Manager of Wendy's on
cross-examination.
5. Robert DeMeester, Manager of Wendy's on cross-exami.nation.
6. Any othlOlr defense witnesses on cross-examination.
7. Plaintiff reserves the right to call rebuttal witnesses.
VI. LIST OF BXHIBITS:
1. All documents and photographs received from Wendy's via
Plaintiff's Request For Production of Documents and/or
Interrogatories.
2. Sketch/diagram (not to scale) of the Wendy's restaurant
interior, including serving and dining area, on July 2,
1996.
3. The pants Plaintiff was wearing on July 2, 1996 when she
fell; previously presented and identified at Plaintiff's
deposition.
6
fell, Plaintiff immediately turned and noticed that the left aido
of her panta was pulled down below her hip. Only the left side was
pulled down.
Plaintiff'l.l nephew, Brandon Sligh ("Sligh") did not see
the actual fall but instantly turned around after he heard
Plaintiff hit the floor. Sligh also noticed that Plaintiff's pants
were pulled down only on her left side and Sligh immediately
noticed that the left cabinet door of the condomint stand was opon
(the right cabinet door if you aro facing the condomint counter) .
Plaintiff submits that the cabinet door was open and
caught onto Plaint.iff' s left pant leg causing her to fall.
Plaintiff further submits that the cabinet door was negligently
left open and/or was not closed properly by Defendant.' s employee
creating an unreasonably dangerous and hazardous condition, which
under the circumstances, Defendant unreasonably allowed to exist.
II . STATRMBNT OF BASIC [IACTS AS TO DAMAGES:
As a result of the fall, Plaintiff suffered various
injuries, the most serious of which was an injury to her right
knee, requiring arthroscopic surgery in February, 1997. Dr. Green,
her treating orthopedic surgeon, determined that Plaintiff had
developed synovitis in her rigbt knee and that, to a reasonable
degree of medical certainty, her injury was caused by the fall at
Wendy's on July 2, 1996i &nd wi.ll further testify that the injury
2
to her right knee is permanent.
PlaintJ.ff works as a waitress and she was restricted in
her ability to work, pursuant to doctor's orders.
Plaintiff
submits that her wage losa in 1996, in comparison to her 1995
income, was $ll,508.8l and in 1997, was $12,499.l4, for a total
wage loss claim of $24,007.95.
III. STATBMBNT AS TO THE PRINCIPAL ISSUES OF J.IABILITY AND
DAMAGES:
A. LIABILITY:
There is no diapute that Plaintiff was a patron of
Defendant (hereinafter "Wendy's") at the time of the fall and
therefore Plaintiff's legal status was that of a business invi.tee.
Accordingly, Plaintiff was owed the highest duty of care by
Wendy's. Treadway v. Ebert Motor Co., 292 Pa.Super 4l, 436 A.2d
994 (l98l).
Wendy's is, and was, under an affirmative duty to protect
its business invitees, including Plaintiff, not only against known
dangers, but also against those which mi.ght be discovered with
reasonable care. Em!;l'e v. .Ha90s~, 712 A.2d 315 (Pa.super. 1998).
Further, Wendy's owed d duty to protect ita business invitees, such
as Plaintiff, from foreseeable harm. ~~der v. Fitterer, 503
Pa. l78, 469 A.2d l20 (l983).
As to liability, in cases in which the Plaintiff is a
business invitee, the Plaintiff must prove, inter alia, that
3
Wendy's deviated from its duty of reasonable care under the
existing circumstances. Zito v. Merit Outlet Stores, 436 Pa.Super.
3l2, 647 A.2d 5'73 (l994).
Plaintiff must establish, by a preponderance of the
evidence, that under the facts and circumstances of this case,
Defendant was negHgent in allowing a hazardous or dangerous
condition to exist on its premises; and Defendant is liable if
Defendant:
1. knows, or by the exerci.se of reasonable care would
discover, the condition and should realize that it involves an
unreasonable ri.sk of harm; and,
2. should expect that its invitees will not discover or
realize the danger or fail to protect themselves against it, and
3. fails to exercise reasonable care to protect them
against the danger.
Pa. Suggested St. -ll\14Llnstructions. Section 7.00B, citing
Restatement (Second) of Torts. Sections 343. 343 A.: Carrender v.
Fitterer. 503 Pa. l78, 469 A.2d l20 (1983).
Plai.ntiff, however, is not required to prove the exact
manner in which a dangerous condition developed or how the store
the dangerous condition. Penn y. Isaly D2iry~, 413 Pa. 548, 198
owner, such aD Wendy's, was negligent in creating or maintaining
A.2d 322 (l964).
Accordingly, the exact length of time that a
hazardous or dangerous condi.tion existed, Le, the open cabinet
4
door, does not have to be specifically established, but must be
reasunable under the circumstances.
Further, specifically as to causation, circumstantial
evidence is sufficient and adequate to prove negligence and it is
not necessary that overy fact or circumstance points unerringly
toward liability. Winkler v. Seven SJ;1rings Farm. Inc., 240
Pa.Super 64l, 359 A.2d 440 (l976).
Accordingly, "under the circumstances" of this case, the
fall occurred at a time of day in which Wendy's "duty of care" was
at its highest. level, i. e., during the crowded lunch hour at a fast
food restaurant.
Wendy's failed to exercise reasonable cars to protect its
invi tees, including Pliantiff, as the hazardous and dangerous
condition of the open cabinet door occurred during the busy lunch
hour time period, in an area of the restaurant in which its
business invitees, including Plaintiff, were extremely vulnerable
to obstructions in the normal walking path of a customer getting
their food and accessories; creating an unreasonably dnagerous and
hazardous condition which subjected its business invitees to
injury, including Plaintiff.
B....j)AMAGES
Plaintiff must establish, by a preponderance of evidence,
that the aforesaid negligence of Defendant was the factual and
5
proximate cause of the injury to Plaintiff and the resulting
damageB to Plaintiff. Pittsburgh National Bank v. Per~, 131 Pa.
580, 637 A.2d 334 (1994).
There is undisputed testimony, by Dr. Robert Green,
Plaintiff' B treating orthopedic Burgeon, that to a reasonable
degree of medical certainty, the fall on July 2, 1996
was the sole cause of tho injury to Plaint.iff' s right knee in
particular. There will be no substantive contradictory testimony
by Wendy's as no medical expert will testify on behalf of Wendy's
to rebut or refute the testimony of Dr. Green.
Plaintiff also incurred wage loss for two (2) years, As
listed in Plaintiff's Pre-Trial Conference Memorandum, Plaintiff's
evidence is the testimony of Plaintiff and her W-2's stating her
gross income for her pre-injury year, 1995, her gross earnings as
stated on her 1996 and 1997 W-2's.
Based upon the W-2's, the loss of earnings amount for
Plaintiff if the difference between her 1995 and 1996 groBs income
of $1.1, SOB. Bl; and the difference between her 1995 income and 1997
income of $l2,499.l4j for a total claimed earnings loss of
$24,007.95.
As to wage loss, pursuant to Barrick v. Kolea. 651 A.2d
149 (Pa.Super. 1994), evidence of wage loss j,s "SUbstantial if
relevant and adequat.e to SUpport a reasonable person's
conclusion....damages are not speculative when they are certain in
fact, even if uncertain as to all1ount."
Accordingly, Plaintiff submits that the W-2's are
6
.
admissibln and that a summary of the loat oarninga claims should be
submittod to the jury.
Plai.ntif.f's medical chargefJ, which are aubject to
reimbu1:sement in the event of a verdict in Plaintiff's fail ure,
amount to $ll,373.35.
IV.. SUMMARY OF LEGAL ISSUES RBGARDING ADMISSIBILITY:
A. It is Plaintiff's understanding that the Exhibits listed
in the Pre-Trial Conference Memorandums of each party shall be
admissible as evidence, but that the weight or substance of the
exhibits are subject to challenge by the opposing party.
Plaintiff submita that since the W-2's are admissible as
listed on Plaintiff's Pre-Trial Conference Memorandum, ita aUllUllary
aheet o,f the wage loss (copy attached hereto) should also be
admissible and constitute an Exhibit for the jury's review and
deliberation. Barrick v. Kolea. sup~ Defendant objects to said
summary page.
B. It is anticipated that Defendant, who previously filed for
summary judgment, will move for non-suit at the close of
Plaintiff's case. In Plaintiff's Pre-Trial Conference Memorandum,
Plaintiff has listed defense witnesses to be called in its case in
chief on cross examination.
In order to proceed with the trial in an expediti.ous
fashion, instead of Plaintiff calling defense witnesses on crOS8-
examination in its case in chief, and having Defendant re-call the
7
behind the km,e cap. During the arthroscopic surgery. sCl'llping or debriding of the inftllmed tissue
WlIS undertllken, The procedure WlIS performt,d onlln outpatient basis under genel'lllllnesthesia.
The Plaintiff's 11Ist medicultrelltment for fallrclllted injuries occurred en April 22,
1997.
Plaintiff'sdllmllges include mediclll expenses which total $11,243,55 and 1I11eged lost
wages of$24,007,95,
While Defendant will stipulate as to the lIdmissibility and rellsonableness of the
medical expenses, it disputes liability therefor. With respect Ie the lost wage claim. Defendant
intends to challenge the validity of that claim.
3. PRINCIPLE ISSUES OF LIABILITY AND DAMAGES.
A. Cause of Plaintiffs fall.
B. Whether Defendant breached its duty of care to the Plaintiff, a business
visitor,
C. Whether the dangerous condition alleged (i.e. open door on the condiment
stand or the type of knob or handle utilized on the condiment stand) actually existed and caused
Plaintiff s fall.
D. Whether the Defendant knew or should have known ofthe alleged dangerous
or defective condition in sufficient time to remedy the condition or to warn against it.
E. Comparative negligence efthe Plaintiff.
F. Nature and extent of Plaintiffs injuries and damages.
2
. \
4. SUMMARY OF LEGAL ISSlJES.
A. Negligence is never presumed in the mere happening of an accident and is nQt
evidence of negligence, is not a predicate for liability, and therefore is net sufficient to take a case
to the jury. Miller v. Hickey, 368 I'a. 317, 81 A,2d 910 (1951); Melend~y, Citv ofPhlla@J.p..hiJl,
320 Pa. S 59,466 A,2d 1060 (1983); ROilers v. Binkllilm, 200 Pa. S 312,188 A.2d 821 (1963);
McDonald v, Alicuiopa HosJili!ll, 414 Pa. S 317, 321, 606 A.2d 1219, 1220 (1992).
B. Defendant meets the definition of a possessor of land pursuant to the
Restatement ofTorts (Second) ~328(e); Jenes V. Three Rivers Manal!ement Corp., 483 I'a. 75,394
A.2d 546, 552 (1978); .w.ie~and by Wiel!and v, Mars National Bank, 308 Pa. S 218, 454 A.2d 99,
10 I (1982).
C. !'Iaintiff meets the definition of II business visitor. Restatement of Terts
(Second) ~332; Ashman v, Sharon Steele Corl'. 302 Pa. S 305,448 A.2d 1054, 1061 (1982),
D. Defendant owes a duty ef care to the Plaintiff under the Restatement of Torts
(Second) ~343 if Defendant
(I) knows, or by the exercise of reasonable care, would discover the
condition and should realize that it involves an unreasonable risk ef harm to such invitees;
(2) should expect they will not discover or realize the danger or wlll fall
to protect themselves against it; and
(3) falls to exercise reasonable care to protec,t them against the danger.
Winkler v. Seven Sprlnl!s Fann. Inc., 240 I'a. S 641, 359 A.2d 440, 442 (1976);
McNally v, Liebowitz, 498 Pa. 163,445 A,2d 716, 721 (1982) and Calhoun v. Jersey Shore Hospltlll.
3
250 I'a, S 567,378 A,2d 1294, 1295. 1298 (1977). lllo v. Mcl'i1.QuJlQ.LS.l.\2I])j. 4361'a. Supcr 213,
647 A,2d 573 (1994) and Mycl's v.l'(lnn TrlllIk.!.Jt, 414 Pn. S, 181,606 A,2d 926, (1992). appcnl
denied 533 Pn. 625, 620 A,2d 491 (1993).
E, I'laintitrhas thc burdcn to cstnblish the cxistcnce ofncgligcnce on thc part of
the Defcndant by proving four (4) c1cments:
(l) A duty or obligation rccognizcd by Inw;
(2) A breach of that duty;
(3) A causal conncction bctwcen the conduct und the resulting injury; and
(4) Actual damagcs.
Plttsbu.r\!h National Bank v. Perr, 431 Pa.S, 580,584,637 A2d 334,336 (1994);
Schmoyer by Schmoyer v, Mcxico Feruc. Inc" 437 Pa. S 159,649 A2d 705 (1994).
F, Plaintiff must prove that the Defendant knew, orin the excrcise of reasonable
care. should have known. ofthc existence ofa harmful condition and thc Plaintiff must prove that
the Defendant had either nctual or constructive notice ufthe dangerous or dcfective condition which
she alleges caused her to fall. Moulterey v, Great ~LIca Co., 281 Pa. S 525,422 A.2d 593
(1980); Zito v. Merit Outlet Stores, Supra; Inverso v, Rob's Countrv Deli & Fine Foods, 20 D&C
4'h 404 (Chestcr County 1993); Mvers v. Penn Traffic CQ" Supra.
G, A person hus II duty to look where he or she is wulking und see that which is
obvious and act accordingly, Lewis v. Duouesne Inclined Plane CompallX, 346 Pu, 43, 28 A.2d 925
(1942); Villano v, Security Savinlls Assoc.. 268 Pa. S 67, 407 A,2d 440 (1979),
4
1-1, Plaintiffs claims are burrcd 01' diminishcd in uccordancc with thc upplicution
of the Pennsylvaniu Compurativc Ncgligcncc Act. 42 I'II.C.S,A. *7102; Lilllu.M.c.Q2Q. 373 Pu. S
85.540 A,2d 311 (1988); RUlmrich v, ijorl!man. 119 I'a, Cmwlth, 640, 547 A,2d 1279 (1988),
I. The standllrd ofcurc thr contributory ncgligcncc.likc that for negligence, is
the prudence ofa reasonablc pcrson undcr like circumstunces, JLQuinn v, Kurrillr, 437 PII. 268, 263
A.2d 458 (1970); Jewell v, Beckstine, 255 I'a. S 238, 386 A.2d 597 (1978).
J. Plllintiff has the blll'den of proving thllt thc injuries complained of and
damllges sought lire thc result of the accident. ,Reist v. Manwil.!.9r, 23 I Pa, S 444, 332 A,2d 518
(1974); QQulQn v. TrovlltQ, 234 PII, S 279, 338 A,2d 653 (1975);~ini V. Mancini, 312 Pa. Super
192,458 A,2d 580 (1983); Yosufv. U.S. 642 F.Supp, 432 (M.D, Pa. 1998); Domerucki v. I-Iumblll
Pil & Refinin~ Co" 443 F.2d 1245 (3d, Cir. 1971); 1nQQllinilo v. Ewing, 444 PII, 263. 282 A, 206
(1971),
K. Suggestion, speculation and assumptions are insufficient to sustain Plaintiff's
burden of proof. Winkler V. Seven SDrinl!s Farm. Inc., Supra; Rinuldi v. Levine, 406 Pa. 74, 176
A.2d623, 626(1962); fum.Y.l!~, (Franklin County C.C.P. April 7, 1998); Roland v. Kravco. Inc.,
355 Pa. S 493, 513 A,2d 1026 (1996); Halilllman v. Be!1.,Thlephone Co, ofPennsvlvania, 387 F.2d
557 (3d Cir. 1968) (interpreting Pennsylvania law).
L. Plaintiff also has the burden to put forth evidence that the alleged dangerous
condition existed for an unreasonable length of time so as to put Defendant on notice of same in
~uffiejent time to correct the alleged condition. MacDonald v, Gimbel B~Q!i......llli<., 321 Pa, 25, 183
A, 804 (1936); Bremer v. W,W, Smith. In.k.' 126 Pa, S 408,191 A. 395 (1937),
5
5. DEFENSE WITNESSES.
A, Robert De Meester, restaurant manager.
B. Dawn Vanessa Myers, assistant restaurant manager on duty al the time of
accident.
C. Plaintiff, Colleen D. Kunder, as of cross,
Defendant rescrve the right to call any witnesses identified by Plaintiff.
6. DEFENSE EXHIBITS.
^' Excerpts Irem Defendant's Opcrational Procedures Manual.
B. Excerpts from the Manager's Reference Manual.
C. Wendy's incident report.
D. Photographs ef existing condiment stand (for demonstrative purposes only)
to illustrate the type of condiment stand doors, rccognizing that due to remodeling the condiment
stand depicted on the photographs is smaller and the type efknob may have been different.
E. Two exemplar cendiment stand knobs/handles.
F, Illustrative drawing, not to scale, to be prepared by either Mr, DeMeester or
Ms, Myers at the time of their trial testimony describing the layout of the store at the time of the
incident.
O. Plaintiffs personnel file from Country Oven, Inc.
H, Plaintiffs W-2ferms for the years 1993, 1994,1995, 1996, 1997, 1998,1999.
and 2000,
6
7. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS.
Plaintiffs current demand is $45,000, Defendnnt strongly contests liability and has
made no offer of settlement.
Respectfully submitted,
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
Date: 9-fl';} 101
Byg~4. ~)
Robert A. Lerman, Esquire
Attorney for Defendant, Wendy's
International, Inc.
Supreme Courll.D, No, 07490
110 S, Northern Way
York, Pennsylvania 17402-3737
Telephone: (717) 757-7602
mlc/wendysk\l,ptm,z
7
fleet Carrier COrD, v, Lahere, 184 Pa, S, 201,204, 132 A.2d 723, 724-25 (1957), In Fleet, a new
trial was ordered after counsel for thc Plaintiff, in his closing argument, staled that the Defendant
"will nol have to pay one cent of the verdict." Sce also Trimble v. M~, 413 Pa. 408, 197 A.2d
457 (1964),
Because of the possible prejudicial danger imposed by the mention of insurance, the
Pennsylvania Supreme Court has held that it is appropriate to redact an otherwise admissible
document to exclude references to insurance contained Therein. Caoozi v. Hearst PubS"\; Co"
371 Pa. 503, 92 A.2d 177 (1952).
Because of the highly prejudicial nature of insurance coverage, the word "insurance" in the
trial of negligence cases is something that must be avoided by witnesses, ceunsel, and the Court at
the peril of withdrawal ofajuror or later, as a ground for a new trial. Corhell v. Borandi, 375 F.2d
265, 270 (3d Cir. 1967). See also Jrimble v. Merloe, supra.
Defendant respectfully requests that this Honorable Court rule that any evidence of
Defendants' liability insurance is inadmissible and respectfully requests that the Court instruct all
witnesses and counsel to refrain from any mention of the existence of liability insurance, the
involvement of any liability insurance company, insurance adjustor, PllIinliffs health insurance or
questions concerning insurance coverage in any fashion or marmer whatsoever during testimony,
Furthermore, Defendant respectfully requests that any demonstrative exhibits be redacted to
eliminate any references to any insurance company, insurance adjustor, claim number or similar
information which would infer the exislence of insurance,
2
II. MOTION TO PRECLUDE EVIDENCE OF OTH~;lt INCII>ENTS.
Pa,R.E, Rule 402 provides that all relevant evidence is admissible. exccpt as otherwise
provided by law. Evidence that is not relevant is not admissible, Pa,R.E. Rule 403 provides that
although relevant, evidence may be excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading of the Jury, or by considerations of undue
delay. waste of time, or needless presentation of cumulative evidence.
Evidence of other accidents or i~juries may be admitted to prove that a dangerous condition
existed and that a defendant had netice of the condition hut the party offering tile evidence of other
accidents must demonstrate their similarity to the event in questioll. Rinl!elheim v, Fiilelitv Trust
Co. ofPiUsburf.!h, 330 Pa. 69, ] 98 A, 628 (1938); Fisher v. Pomerov's. Inc., 322 Pa. 389, 185 A. 296
(1936); MendraHll.v. Weaver Corp., 703 A.2d 480 (Pa. S 1997); Valentine v. Agne MarketWru:."
455 Pa. S 256, 68'7 A.2d I] 57 (1977). Prior accidents or incidents arc not admissible unless they
are suftieiently similar to the accident or incident which gives rise to the litigation, M!lli!ic v.
Cinci.nrulli.Maehil1e Compa.nx, 370 Pa. S 6] 1,537 A.2d 334 {I 988), To introduce evidence of other
accidents or incidents, a plaintiffmust show they occurred in substantially the same place and under
similar conditions. Rinf.!elheim v, fidelity Trust Co, of PiUsb4f8.h. Supra; fum: v. Citv of
Philadelphi~, 653 A.2d 1374 CPa. Cmwlth. 1995), See also McCormick, Evidence, Section 189 and
Section 200 (5th cd. 1999),
In the course of discovery, Defendant has discloscd prior faIls which occurred on the
restaurant premises 1I0ne of wllich are similar, ill III1Y /lilli/lief, to the aileglltlolls beillg a,rserted
by the Pla/miffill tIle illstam actiOI/. Abscnt a demonstration ofsirnilarilY, evidence of such falls
is inadmissible for any purpose and should bc precluded, .
3
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CASE I~O.:
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DOcKET NO.:
II
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'I
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dt
-"5
79
81
130
9'1
143
116
147
126
140
137
123
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119
122
104
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VS
COURTROOM NO.: .<!
1.A.)eJltl), .~ .T;,!.r--,''1"y,'ON&l ( ..:r:Mc
DATE: ~31 /;;'/C)L_
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Jurot tI, N.me
138
118
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131
120
52
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125
Random No,
Newell, "e"her A
KUllel.e, .'orlun. "
f)'~
... - fly rlJ~I._...IH r ~
-2130977817
-1835956611
-1432931940
-1385346261
-1281809165
-1174'191233
H167mOli .
-1021369809
-960756887
-913483256
-6267~.i924
-~613~6~02
-~ 11780720
-421670728
-3~6329609
-3042S4639
-167083003
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.1264~358
74131041
43~181897
479~131168
61 ~9912~4
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636435524
7742341.21
1123791166
1184302502
1479716853
1521857250
1~54455520
1734143862
1780404323
1890120186
1954742361
2123425038
Smllh. Debor.h A
Teelle, ./ennlrer L
Murr, Loll J
f't..LfI!rJ "lIfh 4Dn...
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M.eke,V, Roberl Don.~ J
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77
141
132
Sloner, Druee C "
Slr.lI. KalhrynM
Jones, Trud,v L
1110.
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Maidel, M.llhew J
Br.ult (Palm., Carol A
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Olln.n, Mildred M
Lalzer, Robert F
Spankueh. Harvey If
RUller, John P
Devorlek. Melanie R
Seoll.Bumhaullh, Rosanne
Pllszka. Charles M
DaYlnn, Charlotte M
II..II..."., ft.... Jd B
D.ndy, DlDlel J
Martin, Bryon L
Cr08lley, Candaee
W.lker, R Seoll
Carrlealo, Mlehelle M
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