Loading...
HomeMy WebLinkAbout01-2379 FX STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURTOF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CNIL ACTION - LAW v. : NO. 01-2379 Civil Term FLYING J INC. t/d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED PLAINTIFFS' PRETRIAL MEMORANDUM BRIEF NARRATNE STATEMENT This case involves a slip and fall accident that took place on January 29,2000 at approximately 8:00 p.m. at Defendant's Truck Stop on the Carlisle Pike in Cumberland County. Plaintiff, Stewart McLain, slipped and fell on "black ice" artificially created by Defendant, by piling up snow by the driver's entrance to the truck stop. Defendant's manager testified that Defendant owns, operates and maintains the truck stop and periodically inspects for icy conditions and then spreads either salt, cinders, or stone aggregate over the icy areas. On the particular evening in question, the artificially created condition was not treated in any fashion prior to Plaintiff s accident. Defendant's staff failed to do so even after being told to treat the area following Plaintiffs accident. DAMAGES Plaintiff, Stewart McLain suffered a dislocated right kneecap that required two surgical procedures. He lost time from work and his business as an independent truck driver. He could no longer work as a truck driver as result of his injury. Stewart was 46 years old at the time of :''!);~"~"",,, ", 't_!_",oc.,w_" '--'~ ,.-~' --""-".I"-~"~'_~'""'''I_''__'_' --~-" "__~_, _<l'H~y_": -.~_ '"'"__,' ,- ~ ^,,,' _ h ,. the accident. He was born on June 9, 1953. He obtained his GED in 1977 and received a Certificate from Florida University in Jacksonville as an LPN in 1980. He served in the United States Army and worked as a nurse until 1990 in a variety of hospitals in Florida. He started driving truck part time in 1988 and eventually decided to become a full time truck driver in about 1996. He worked for various trucking companies and basically hauled luxury boats all over the country. He started his own trucking company just a few months before the accident and bought a tractor for $110,000. Stewart is a very large man and because of his knee injury and consequent surgeries his orthopedic surgeon recommended that he not return to the truck driving industry because of his difficulty in climbing into the tractor and onto truck loads. Stewart therefore decided to sell his brand new tractor and he actually traded it in for $92,000 on a $160,000 purchase of four used tractors. He then hired four drivers to operate the four used trucks and this business ended miserably in bankruptcy. Bankruptcy was filed in 2000 and discharged in 2001 with the bankruptcy estate still owes approximately $60,000 in unsecured claims and administrative fees. Stewart's wife, Jennifer, contributed $40,000 from her father's inheritance to help the family through this rough period. Stewart's medical bills and disability benefits total another $60,000, for which an ERISA claim has been asserted. Bankrupt and unable to drive truck, Stewart trained to be a real estate agent in Jacksonville Beach, Florida only to discover that he was not a good salesman. He therefore returned to his former occupation as a nurse at about the same time that Florida began its several year record of severe hurricane seasons and then, of course, last year's devastation all over the Gulf Coast. Stewart has worked as a provider of disaster relief and medical care all over the Gulf Coast and presently continues to do so. All of the recognized Points for Charge regarding personal injury damages will therefore be requested. 2 ,i';?, " > - '"'""Y'-''"'_'_J,n-'7O:>", ,'-',-- ','0, ,'~, ,". 1-:', ~. '~_'_"~'I .'- -~-<,- 'J : r. l" -" '.-"'-' m_' POTENTIAL TRIAL WITNESSES 1. Stewart McLain will testify as a fact witness as to liability and damages. 2. Jennifer McLain will testify as a fact witness as to damages. 3. Dr. Paul Shirley will testify by way of video deposition as Mr. McLain's treating orthopedic surgeon. 4. Anthony Walter Lucas may testify as a fact witness regarding liability as Defendant's Truck Stop Manager. 5. Kevin Addington may testify as a fact witness as to liability as Defendant's Cashier/Shift Manager. 6. Plaintiffs reserve the right to call any other witness identified in discovery or in Defendant's Pretrial Memorandum. 7. Any records custodians to verify the authenticity of any medical record or bill. 8. Plaintiffs reserve the right to timely supplement this list of witnesses and call any witnesses listed by Defendants. EXHIBITS 1. All medical records and bills. 2. All lien letters regarding medical payments and disability payments. 3. All tax returns. 4. All business records. 5. All employment records. 6. All bankruptcy records. 3 :,,!> -;:~"- -'-~ , ~- ","" I '__,m" --''"' f" , -." , , , , ~" 7. Any accident report (Defendant has to date denied the existence of any accident report or witness statements.) 8. Deposition of Dr. Paul Shirley (transcript/video) including exhibits attached thereto. 9. Deposition Transcript of Anthony Walter Lucas or any part thereof. 10. All documents produced in discovery. 11. All out-of-pocket expenses. 12. All expenses for retraining and employment subsequent to the accident. 13. Plaintiffs reserve the right to supplement this exhibit list and utilize additional exhibits at the time of trial and such exhibits identified and listed by Defendant. PLAINTIFFS' EXPERTS The video deposition of Dr. Paul Shirley was taken in preparation for trial and his deposition transcript and videotape will be available for introduction as exhibits at trial. STIPULATION OF THE PARTIES While the parties have entered into no pretrial stipulations, Plaintiffs suggest that the parties can stipulate to the authenticity and admissibility of medical records and bills as they relate to this accident. 4 '~~"'''l' " ~"-' I.' _::I" - ~-, < '-'- - --1.1 ." --,- ?.. - - ,~, "" ."- _to TRIAL LENGTH Plaintiffs estimate that the trial of this case will require two days. Respectfully submitted, NA VI ~KY, OLSON & WIS Date: Wil6 ( 6b MichaelJ. vi LD. No. 58 03 2040 Linglestown Road, SUIte Harrisburg, P A 17110 717/541-9205 Counsel for Plaintiff 5 ,""". ~~ , .,',Vo'__7'''',- - '.l/:,~- (~T _0- __"[ _,_'_ - - .-~ -. , -.'. CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that on this lOth day of October, 2006 served a true and correct copy of the Plaintiffs' Pretrial Memorandum upon all counsel of record via postage prepaid first class United States mail addressed as follows: David L. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant ~ J '-1"/'! "\ /l A )~n~ Jessie K. Walsh 6 ~'~}:?J1F:,T~', J . ;",,:,'':.;:~.'YF'__--:'_:',> ,,-<~~ :~_", ;~"'_'""'-'""',"'''--;I'-' '-~,' - 'I~ - . ,"--','-""",.,.,_.: .-', "- _'-'I '!- , '1'_.1 _ " -~, '. ~,~,- -- " , ,_ c ~, ' . COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA , , , i--' i ~ - - - . I \ OCT 1 ti Z006 \ \'~~i_;~=L~--c-J STEWARTD. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, PRE-TRIAL MEMORANDUM - vs- FL YINO J., INC., t/d/b/a! FL YINO J. TRAVEL PLAZA, CIVIL ACTION LAW No.: 01-2379 Defendant. INTRODUCTION Defendant Flying J., Inc. ("Flying J") submits this Pre-trial Brief to provide an overview of the factual and legal issues central to the claims of Plaintiffs Stewart D. McLain ("McLain") and his spouse Jennifer S. McLain (collectively the "McLains"). The McLains filed suit against Flying J in the Court of Common Pleas, Cumberland County, Pennsylvania on April 23, 2000, alleging negligence and loss of spousal consortium. The McLains' claims arise out of a January 29,2000, incident in which McLain slipped and fell at a Flying J facility in Carlisle, Pennsylvania ("Carlisle"). FACTUAL BACKGROUND Parties The McLains are residents of Florida. McLain worked full-time as a tractor-trailer driver from 1997 to January 29,2000. On January 11,1999, the McLains formed JS Delivery Systems, Inc. ("JS Delivery"), a duly formed S Corporation with the McLains as sole shareholders. Flying J is a Utah based corporation that is authorized to do business in the Commonwealth of 10142404.1 k, .'~ "'r --, ,"- e".. 1-"-' " . -2- Pennsylvania. Flying J operates a travel plaza at 1501 Harrisburg Pike, Carlisle, Pennsylvania (the "Carlisle Facility"). Flvrnl! J's Carlisle Facilitv The Carlisle Facility covers approximately twenty acres, a large portion of which is a parking lot for tractor-trailers. In addition to the tractor-trailer parking lot, the Carlisle Facility's travel plaza contains a fuel station, restaurant, store, and trucker's lounge. In January 2000 Flying J had a comprehensive snow removal program in place at the Carlisle Facility under the direction of Anthony Lucas ("Lucas"), the Carlisle Facility General Manager. Lucas divided snow removal responsibility into two areas, the parking lot and the travel plaza. Lucas contracted with Michael Strohm ("Strohm") to remove snow and ice from the parking lot of the Carlisle Facility. The Carlisle Facility staff was responsible for removing snow and ice from the immediate vicinity of the travel plaza. Large stores of salt, sand, and gravel where kept at the Carlisle Facility to facilitate snow and ice removal. The Carlisle Facility staff continuously monitored the vicinity of the travel plaza and spread salt, sand, and gravel as soon as icy conditions began to appear. Due to the sheer size of the Carlisle Facility parking lot, Strohm would plow snow and ice into large piles at the rear of the parking lot where there was a large drain. These snow piles would often melt during the day, shedding water across the parking lot that would refreeze at night. As a result, buckets of salt, sand, and gravel were kept at the travel plaza doors so that the Carlisle Facility staff could easily remove ice from the surrounding area. When snow run-off would refreeze on the Carlisle Facility parking lot the Carlisle Facility staff would spread salt, sand, and gravel, and call Strohm to assist in the effort if necessary. 10142404.1 ~'n"~ I". I... - . "j'-' " ' " - 3 - Weather Conditions in January 2000 Carlisle received substantial snowfall in January 2000, with the most recent snowfall of four inches on January 25,2000. Carlisle averaged temperatures well below freezing for a week prior to McLain's fall. At the time of McClain's fall the snow from January 25, 2000, had been removed from the parking 10 and a mixture of salt, sand, and gravel had been applied. McLain's Fall McLain arrived at the Carlisle Facility around 4:00 p.m. on January 28, 2000. McClain was staying at the Carlisle Facility while he waited to pick up cargo in Lebanon, Pennsylvania. After McClain arrived at the Carlisle Facility he stayed there continuously until his fall at 8:00 p.m. on January 29, 2000. During this time, he made frequent trips between his truck and the travel plaza. Each time he went to and from the travel plaza he used the rear entrance to the truckers lounge, located at the rear of the travel plaza. From his multiple travels between his truck and the travel plaza, McLain was aware of generally slippery conditions in the area and that temperatures were well below freezing. Around 8:00 p.m. on January 29,2000, McClain left the travel plaza to return to his truck. The only outer clothing that McLain was wearing was a t-shirt and a pair of shorts. McLain exited the travel plaza through the rear door. When McLain stepped off the sidewalk into the fire lane portion of the parking lot he took four to five steps and then slipped and fell, injuring his knee. The area leading from the back door of the trucker's lounge to McClain's truck was lit by an outdoor flood light mounted on a pole ten to fifteen feet away. 10142404.1 ~C_-'" ~ .'~. '. F: -I' . , . - -~ -p, , 1 - -".~ - .. - 4- ARGUMENT I. FLYINGJ SATISFIED THE STANDARD OF CARE Under Pennsylvania law, a land possessor, such as Flying J, is liable for the physical harm caused to an invitee by a condition on the land if he: (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they 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. McKenzie v. Cost Brothers. Inc., 487 Pac 303, 308 n.3 (Pa. 1979) (citing Restatement (Second) of Torts 9 343 (1979)). This general rule is subject to two exceptions. First, there is no liability "if it is reasonable for the [land] possessor to believe that the dangerous condition would be obvious to and discovered by his invitee." Atkins v. Urban Redevelopment Auth. of Pittsburgh, 489 Pac 344, 352-53 (1980). Second, there is no liability under the "hills and ridges" doctrine when there are "generally slippery conditions," Williams V. Shultz, 429 Pac 429, 432 (1968), unless the invitee proves: (a) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (b) that the property owner had notice, either actual or constructive, of the existence of such condition; and ( c) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Rinaldi v. Levine, 406 Pac 74,78-79 (1962). Otherwise, "to require that one's walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions of this hemisphere." Morin v. Travelers Rest Motel. Inc., 704 A.2d 1085, 1087 (quoting Wentz v. PennswoodApartments, 359 Pac Super. 1,5 (1986)). 10142404.1 , .. ~...." I' . " " - , ,~~~-'. '" - . - 5 - A. Flving J Exercised Reasonable Care by Removing all Known Snow and Ice Near the Carlisle Facility. McLain cannot show that Flying J engaged in actionable negligence because Flying J exercised reasonable care to remove snow and ice from the Carlisle Facility. Under Pennsylvania law, a land possessor is not liable for physical hann caused to an invitee by a condition on his land ifhe exercises reasonable care to protect the invitee from the danger. McKenzie, 487 Pa. at 308 n.3. Carlisle received over eight inches on snow in the two weeks prior to McLain's fall, and over four inches of that snow fell on January 25,2000. Despite this sustained snowfall, Strohm, Lucas, and the Carlisle Facility staff took appropriate measures to remove snow and ice. After the January 25,2000, snowfall, Strohm plowed the snow and ice on the parking lot into piles near a large drain located in the rear ofthe parking lot. The Carlisle Facility staff removed snow and ice from the vicinity of the travel plaza and continually monitored all entrances and exits, spreading salt, sand, and gravel as needed. Despite their best efforts, it was inevitable that some slippery patches would exist during severe winter conditions. The accumulated snow could not be trucked off site, and would inevitably melt in the day, shedding water across the parking lot that would refreeze at night. To require Flying J to ensure that no snow run-off refreezes over the parking lot of a twenty acre facility is simply unreasonable and not required under the law of Pennsylvania. Morin, 704 A.2d at 1087. B. McLain Failed to Exercise Caution by Knowingly Attempting to Cross an Obvious Patch ofIce. McLain cannot show that Flying J engaged in actionable negligence because McLain knew, or should have known, of the ice that he slipped on. Under Pennsylvania law, a land possessor is not liable for physical hann caused to an invitee by a condition on his land if the danger is obvious or discoverable to the invitee. Atkins, 489 Pa. at 352-53. Before McLain's 10142404.1 l"t~,,~,> ,~,~'i'I~ ~--"- ~ ""'~l>: ~ " , - "1---' -. ._- - 6 - fall, he had been staying at the Carlisle Facility for two days, traveling back and forth between bis truck and the travel plaza. McLain knew that there had been substantial snowfall in Carlisle lUld that the large snow piles at the rear of the Carlisle Facility parking lot had been melting during the day and shedding water across the parking lot. He also knew that, given the freezing temperatures, which were the same both days, the water would refreeze at night. The area where McLain fell was well lit and appeared wet. Any reasonable person would know, given the freezing temperatures, that the area would be icy. McLain knew this as well. Atkins, 489 Pac at 352-53. C. Flving J Did Not Allow Snow lUld Ice to Unreasonablv Obstruct Travel. McLain cannot show that Flying J engaged in actionable negligence because Flying J did not let snow and ice in the Carlisle Facility parking lot unreasonably obstruct travel. Rinaldi, 406 Pac at 78-79. Under Pennsylvania law, a land possessor is not liable for physical harm caused to an invitee by a condition on his land when there are generally slippery conditions and he does not allow them to become "ridges or elevations of such size and character as to unreasonably obstruct travel." Id. The Carlisle area received a substantial amount of snow in January 2000. Daytime sunshine on January 28 and 29, coupled with below freezing temperatures, created a general condition across the Carlisle area in which snow would melt during the day and refreeze at night. Id. As a result, generally slippery conditions existed throughout the Carlisle area. There is simply no evidence that Flying J let the snow and ice in the Carlisle Facility parking lot accumulate to the point of becoming "ridges or elevations of such size and character as to unreasonably obstruct travel." Rinaldi, 406 Pac at 78-79. The Carlisle Facility staff regularly inspected the premises and kept buckets of salt, sand, and gravel near the travel plaza 10142404.1 \i'1" ., ~ I' .~ 1-: -1-' ,. - ~",.., _.. _ r.! . - 7 - doors, using them to remove ice as soon as it was noticed. The inherent climate conditions of a Pennsylvania winter make it impossible for McLain to show actionable negligence by Flying J without satisfying the hills and ridges doctrine, which McLain cannot do because Flying J did not aIlow snow or ice to accumulate in the Carlisle Facility parking lot to the point of becoming "ridges or elevations of such size and character as to unreasonably obstruct travel." Rinaldi, 406 Pa. at 78-79. Flying J took every reasonable action to remove snow and ice given the climatic conditions. Mori!!, 704 A.2d 1087. II. THE MCLAINS ARE NOT ENTITLED TO THE DAMAGES THEY SEEK Flying J does not concede liability in any way. Nonetheless, a discussion of damages is necessary. When a plaintiff in a negligence case establishes liability, damages are limited to those that are the foreseeable, natural, and proximate consequences of defendant's negligent act( s). Alleghenv v. Zimmerman, 95 Pa. 287, 295 (1880). Damages that are uncertain, speculative, or do not directly flow from the negligent act(s) are not recoverable. Weinclass v. Gibson, 304 Pa. 203,207-08 (1931); Drake v. Kielv, 93 Pa. 492, 488~89 (1879). If a plaintiff contributes to the negligent act by failing to exercise ordinary and reasonable care any recovery will be reduced by the portion of fault for which he is responsible. Stewart v. Motts, 539 Pa. 596,602 (1995). However, a plaintiff's contributory negligence will not bar recovery when his negligence is not greater than the negligence of the defendant. Pa. Cons. Stat. ~ 7102(a) (2006). In their Complaint the McLains request damages for the following: (1) McLain's physical and mental pain and suffering; (2) McLain's medical treatment (past and future); (3) McLain's lost wages; (4) the bankruptcy of JS Delivery; and (5) the McLains' loss of spousal consortium. Complaint 'If'lf 20-27,29-30. While Flying J asserts that it is not liable for McLain's fall at the 10142404.1 "),l' - ,- --'I r., 'I 11- ,~= - 8 - Carlisle Facility, ifliability is established McLain would only be entitled to recover as to the first three classes of damages listed above. A. McLain Cannot Recover Damages because He is Contributorily Negligent. Any damages awarded to McLain should either be reduced or eliminated subject to Pa. Cons. Stat. ~ 7102(a) (2006), because McLain is contributorily negligent for his fall at the Carlisle Facility. McLain arrived at the Carlisle Facility in the middle of winter. He knew that there had been substantial snowfall in the Carlisle area and that there were large snow piles in the rear of the Carlisle Facility parking lot. Likewise, McLain knew that temperatures were below freezing and that snow run-off had shed water across the Carlisle Facility parking lot. McLain had full knowledge of the generally slippery conditions that existed in Carlisle on January 29, 2000. While McLain may claim that he didn't know there was ice, such a claim is without merit as the area was well lit, he was aware of the temperature, and he knew that snow run-off had been shed across the parking lot during the day. Because the weather conditions were identical the previous day he cannot now claim he was unaware of the generally slippery conditions in the parking lot. When McLain exited the travel plaza he was only wearing at-shirt and a pair of shorts. McLain was obviously cold, and in an effort to reach the warmth of his truck he most likely hastily tried to cross a patch of ice. B. Flving J is not Liable for the Bankruptcy of JS Delivery because the Company was Near Bankruptcy when McLain Fell. McLain is not entitled to recover damages for the bankruptcy of JS Delivery because the bankruptcy was not caused by McLain's fall. Allegheny, 95 Pa. at 295. At the time of McLain's fall, JS Delivery had been in existence for roughly one year. The 1999 tax filings for IS Delivery show that the venture produced $16,667 dollars of income for the McLains and generated $8,946 of internal profits. JS Delivery was clearly a struggling venture that was not generating 10142404.1 C', ~ -n-,I "" 1 r '1- ^. ~ -9- sufficient revenue to survive. McLain cannot successfully argue that his fall at the Carlisle Facility caused JS Delivery to enter bankruptcy because JS Delivery was already on the brink of bankruptcy on January 29,2000. To find otherwise would allow McLain to use his unfortunate accident to obtain a windfall by claiming that Flying J is liable for the bankruptcy of JS Delivery. Such a speculative claim is not supported under the law of Pennsylvania. Weinglass, 304 Pa. at 207-08. C. McLain's Medical Liens are Irrelevant because FIving J is not Liable for his Iniuries. As a result of his medical bills, the bankruptcy of JS Delivery, and other expenses allegedly incurred as a result of his fall at the Carlisle Facility, various liens have been entered against McLain. These liens are irrelevant, unless and until liability is established, and the McLains cannot establish that Flying J is liable for their injuries. D. Jennifer McLain has not Lost the Aid of her Husband. Jennifer McLain is not entitled to recover for loss of spousal consortium because there are no facts to support her claim that she has lost her husbands aid, affection, companionship, cooperation, or sexual relations. Tucker v. Phila. Daily News, 577 Pa. 598, 620 (2004). McLain has fitlly recovered from any and all injuries sustained as a result of his fall at the Carlisle Facility. McLain regularly works as many as 80-100 hours a week on his feet and has considerably improved health. POTENTIAL TRIAL WITNESSES 1. Anthony Lucas, Flying J truck stop manager at the time of Mr. McLain's fall. 2. Jack Baba, Flying J facility maintenance manager. 3. Stewart McLain 4. Jennifer McLain 10142404.1 ':--~ . - 1_'" 1 1 , i - -~ , - 10- 5. Dr. Paul Shirley, Mr. McLain's treating orthopedic surgeon. 6. Record's custodians if authenticity of records cannot be stipulated to. POTENTIAL EXHffiITS 1. McLain medical records. 2. McLain tax returns. 3. McLain business records. 4. McLain employment records. 5. Flying J accident report. 6. Deposition of Dr. Paul Shirley. 7. Deposition of Stewart McLain 8. Deposition of Jennifer McLain. 9. All documents produced in discovery. 10. Flying J policies relative to snow and ice removal. SETTLEMENT NEGOTIATIONS While the parties have diligently sought to settle this matter through mediation, a satisfactory settlement was not reached and is not anticipated. CONCLUSION The facts that have been obtained through discovery that will be presented at trial show that McLain's fall at the Carlisle Facility, as unfortunate as it was, was caused by his decision to dart across an icy portion of the Carlisle Facility parking lot so that he could avoid on a cold January night. McLain could have easily walked around the ice, but he did not. The Carlisle Facility parking lot had been plowed and salted by Flying J after the most recent snowstorm. The area around the travel plaza was kept free of snow and ice. While there were generally 10142404.1 iI. : ,," <' - ',"T',-f I " ,,-." .,r] , - - 11 - slippery conditions in Carlisle, the Carlisle Facility staff exercised reasonable care in removing snow and ice from the premises and is not liable for McLain's injuries. A land owner is not liable every time an invitee slips and falls on his property, particularly during the winter. Slip-and- fall plaintiffs bear the significant burden of showing that unsafe conditions existed. In the winter that burden is heightened. A reasonable person knows to exercise caution when walking across snow and ice, and just because a fall takes place does not mean that the land owner is liable. The McLains have failed to establish liability on the part of Flying J. The hills and ridges doctrine, coupled with McLain's contributory negligence, eliminates any possibility of liability on the part of Flying J. Likewise, McLain cannot now try and put the burden of the JS Delivery bankruptcy on Flying J. Respectfully submitted, NIXON PEABODY LLP By: 4~t,-{J Attorneys for Flying J., Inc. Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 Dated: Rochester, New York October 13, 2006 10142404.1 -"'.- ~ ,-- . '., 1'" , - , -~ '-r~ I , ~ r '1 (}'f , OCT 1 5 WQ4 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, NOTICE OF SUBSTITUTION OF COUNSEL - vs- FLYING J., INC., t/dlb/a/ FLYINGJ.TRAVELPLAZA CNIL ACTION LAW No.: 01-2379 Defendants. i PLEASE TAKE NOTICE that NIXON PEABODY LLP, 1300 Clinton Square, P.O. Box 31051, Rochester, New York 14603-1051, be and hereby substituted for Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crum Mill Road, Suite B, Harrisburg, PA 17112, as counsel of record for defendant FLYING J., INC., t/dlb/a FLYING J. TRAVEL PLAZA in the above-captioned matter and that all pleadings, correspondence and other items in this matter should be served upon Nixon Peabody LLP at the office and post office address below. Dated: October 8, 2004 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ~ #....// , C<f"VV By: r<JiI'-- , tLcr'" 4200 Crum Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 R769832.1 ~;,'" ~ ,~, . '_-~",7?'"'._''7,'" '- ' I ~.. ,'W';"-I- --- - !'-, ,- ~- , J! ",.~ 0 ~, - ""..~ . . ....", Y'j'" "Ill LS .~:(! ;!SDZ :.lO ~r lie" r-"~Tfrlilll"f"yyt'j~W .. "" .~P ~.-....~~"7" ~ m~lI1<um"1i~j't~~~Wffl\':%""~"Wlr\~, ~_~-"'i'",",,~,.i""""_.___~l""~::'",_~' 1"~ "",_._,-,,<~"~,' .~ y SO ORDERED: JUDGE R769832.1 NIXON PEABODY LLP By: 4d'/G:../ David L. Cook Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 - ~'" ~",.~. ~~ ."-,, . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dIb/a FLYING 1. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE , I i t l , IV I: , I' 1'"' , I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \ 1~ day of October 2004, I served a true and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 17110 David 1. Cook, Esquire Clinton Square PO Box 31051 Rochester, NY 14603-1051 \.~\~~ \\\..~~\\. Joanne . Parr , ~'" ~ ~ ,,~, ~~ ~?6'i~~{iiJ;;rii':;~J"\i;\0-~\ifi~]J4',#&;f:tB;,t"0'l1..~~~~~{i~'t~~~Jf,1f+&*'I1i~~4~1I2t;Y;:!~-;~:{{'.~~'1'!~;?:~;,:::;~~S5n;;?:"; '~'~I'" ' -t :'Jl1' f"-o,') c~.';) CO" ... C) C'J ~-'l ~~ B2 ^^~ ., C) -11 ~~J~ _.<'",> C~) {....J ..0 ^- I^- , r' OCT 1 5 200~' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, i NOTICE OF SUBSTITUTION OF COUNSEL - vs- FLYING J., INC., t/dIb/a/ FLYINGJ. TRAVEL PLAZA CNIL ACTION LAW No.: 01-2379 Defendants. i , I (, f i :-' r L I f,- 11 i: I:' j-. ! i I r PLEASE TAKE NOTICE that NIXON PEABODY LLP, 1300 Clinton Square, P.O. Box 31051, Rochester, New York 14603-1051, be and hereby substituted for Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crum Mill Road, Suite B, Harrisburg, P A 17112, as counsel of record for defendant FLYING J., INC., t/dIb/a FLYING J. TRAVEL PLAZA in the '^ , I !' I f: above-captioned matter and that all pleadings, correspondence and other items in this matter should be served upon Nixon Peabody LLP at the office and post office address below. Dated: October 8, 2004 MARSHALL,DENNEHEY, WARNER, COLEMAN & GOGGIN ( cMahon By: .,-.. 4200 Crum Mill Road, Suite B Harrisburg, P A 17112 Telephone: (717) 651-3500 R769832.l ,4-" ~~,'- 1- ~ --~ r' , .', ...4, , ~_ I. ~ r SO ORDERED: JUDGE R769832.1 !IW!i"'^""". ,. 0 ~ ~ _ ," , . "~~"~ ". F <, ". ,_ "1_ - <or'" UO r NIXON PEABODY LLP By: 4~/G.../ David 1. Cook Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 , ! i \'j if ~'" r i l r , p I;, " I ! .v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO,: 01-2379 FLYING 1., INC., t/d/b/a FLYING J. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE '" .;:- c) c;:5 -n .c- o ("") --; "'- ::-l .x: -,. rTt~ -or:;:; :~OO c>,1. ..~.'v.) ..el-~Ti -"-"~-q S:'~t) (jrn ~ <,'! u) o I, JOaIme M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~ day of October 2004, I served a true and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 1711 0 David L. Cook, Esquire Clinton Square POBox 31051 Rochester, NY 14603-1051 \~\\~ ~.~~\\.. Joanne , Parr \ ., , '. \ ~~jpk'(4WtFnYi.if%tZ~ci,J'iitg!t:q~'g;:Z~!iff(tt1~Mii~fitjZ~~slltt;ft1~t.(~~1_ 30'l1lS0d sn ~...}J.I!'..... l1,'lI..' '11.1'" ;: co " Oi o o ~ CO -, CD " o Z N ,,;:: 0....0 O~N N 0 ...... E~ '" 0 0 ..- It 0 ~ ~ 0 o . ..-~ ~ ... " z Q,) ."t:: o ij r55 $~ "g"N ~ ~ 0- u ~ '51 ~ ;:::: ~ Q,) o.o=:::- ..-;~c3;g~ ~Clo(l OJ " f-<::~JIi.i~FJ O~Eu-&l ;g ~.z g '& f-<~u~t:r: sa > a(~ ~U ~ '~ ; . - . ,:_. . I' I 1 r ~ Inr~ ,. 1.--"",; 1,1'1:;., j .Cr.{>,;,.,.". ...".,. - lr) o e - .- , ;:l M 0" 0 OJ \0 ~ "I' " - ~~;;:;>< O;:lOZ U 0""'- ... . rn ("fj S >-<!:l><- "'Cl 0 0 ~ ';;"E:~ ~ Clj~O g ClU~~ --, - :-;"-')~":":".;}-;~"r,~i'~:~it~}~t~~h~~'DR1%~~~'iij;J-~'t%:x:f ! I I , r I Kr<f,11r1i'iJiL~~:'#t1:~'f.l{~:Zb';;;1~i~r~~~%~41Yiff'Y%~t:h~~2f~~i2&1JlI;t;;;E1!~~fl:3.1l~I. ",,~~"~~,,<<~.,e'i!hf;~0&:!iY~i~!~Et~~~:~~~~:~1tilt:lik~ 3E>V1SOd sn ~II!.".._. 1l.W'. " "illr . co <t 0; o o 10 ...., CD <t o Z N <t::: o....~ O~N N ;;; - E~ ("') EO ~ u.0 - "00 o . ..- := . .. ::= '6lJ bJ) c3 o(j a 5 - o Q)UJ:Q .!:I .... Q) ::l Q):3 ~~oo ~ ~ . ::=';>~N o >; 0 .....-I ~Q)~- ~i=~ ~~~~ . Cl ~ bil .....,. ... >.=: ~ ..s:::olU.1:J -..s::: '" ~ ~ g'~ ~~~~ J:Q ... $l Z Q) 'S o~ <Zl ~ ~ ~'N >; 0.....-1 U ~ .~~ E ~ @ ~:;:: ....;Q)t)~~ ~C:o(jSbil f-<=.iia82 ~ 1 j g .~ f-<~8~~ . ~ l? ....> OC9. :<U . , I , I I I ~~T~~:rrI!III!I~1Irll'~1r111 I" ';:~i;i.\:'?'f1fS/,;J;:.~*$;~~0t1~M~~~~~~Jgo/~i~;g?:~t~E1t5!;\til;~~~ts~~m!,,!,! r,Ot~HJF~f;~'AB,~~~i!:&~~~"l;:t~Jt,1':2;'E 3f>'v'lSOd sn 'fC::~- <Xl " ~ en o o ~ <Xl ..., ~ o Z '" ..:t~ Or-N O~N '" ;; - E ~ C'? e: 0 ~ ..0 _ ,,0 o . ~ := 11 ~ ....1'" .0 :.;;l~ " '" <I) ....".... 'S I::i <ZI o--.~ :'0 "'~"d..... ~,...~..... ;>;o'/l ~ ~ ~I::iO-'" ....0 ...., .~ ~ tj ~ t;j 0" . Z . bh OJ) 0; Q's, ] ~ t1.:I l-l t1.:I -5'~ O'!=i .-,.-4 ~ -q- ~ :::Ez~::c: il:1 .... " Z" :'3 O~ <ZI ~ ~ ~.N . 0..... U].a::: E :::E "5 OJ):;:I . ,'g :::E < ...., v j:l.; ~::.o'/l~~ E-<<<leu..o ~ 1 ~ g .~ E-<:::Eu~::c: ~v . o(~. ~. . ~!I!I! II! 11i!11!1!lIn4rmrII11 ~ , OCT 1 5 iLU~ 'i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, ; , Plaintiffs, I NOTICE OF SUBSTITUTION OF COUNSEL - vs- FLYING J., INC., t/dIb/a/ FLYING J. TRAVEL PLAZA CNIL ACTION LAW No.: 01-2379 Defendants. i PLEASE TAKE NOTICE that NIXON PEABODY LLP, 1300 Clinton Square, P.O. Box 31051, Rochester, New York 14603-1051, be and hereby substituted for Marshall, Dennehey, Warner, Coleman & Goggin, 4200 Crum Mill Road, Suite B, Harrisburg, P A 17112, as counsel of record for defendant FLYING J., INC., t/dIb/a FLYING J. TRAVEL PLAZA in the above-captioned matter and that all pleadings, correspondence and other items in this matter should be served upon Nixon Peabody LLP at the office and post office address below. Dated: October 8, 2004 MARSHALL, DENNElEIEY, WARNER, COLEMAN & GOGGIN ;; T By: 4200 Crum Mill Road, Suite B Harrisburg, P A 17112 Telephone: (717) 651-3500 R769832.l "~'~\"'I!~ -I'f-I '""7:'1- " _'.f ,', ,_ SO ORDERED: JUDGE }t769832.1 '~,,"~t..d1 ~ ~ ~ ~ .1---, NIXON PEABODY LLlP By: 4~/c:-./ David 1. Cook Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLV AN1A STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 -; :r: "71 rnj= '-nIT\ ::rjCi ~ (:::'11 .....,9 ~ii~ c- ~'t:.~ ~n _~.;; w ~::i I, Joanne M, Parr, an employee of Marshall, Dennehey, Warner, Coleman &:Qog~, dJ'~ C::> '.. hereby certify that on this \~ day of October 2004, I served a true and correct copy of JURY TRIAL DEMANDED '" = = ";- o ("') -~! FLYING J., INC., t/dIb/a FLYINGJ. TRAVEL PLAZA Defendant o -n CERTIFICATE OF SERVICE the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 17110 David 1. Cook, Esquire Clinton Square PO Box 31051 Rochester, NY 14603-1051 '~..:\\~ \\\ ~~\\ Joanne " Parr 'r,*,,~.~ ~~ "1'"1 L' .' 6, OCT 1 5 2004 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYL VANIA STEWARTD. MCLAIN AND JENNIFER S. MCLAIN, - vs- , I , , , I Plaintiffs, i , I i i \ ! ; I I I Defendants. I I I NOTICE OF SUBSTITUTION OF COUNSEL FLYING J., INC., t/dlb/a/ FLYINGJ.TRAVELPLAZA CNIL ACTION LAW No.: 01-2379 PLEASE TAKE NOTICE that NIXON PEABODY LLP, 1300 Clinton Square, P.O. Box 31051, Rochester, New York 14603-1051, be and hereby substituted for Marshall, Dennehey, Warner, Colenian & Goggin, 4200 Crum Mill Road, Suite B, Harrisburg, P A 17112, as counsel of record for defendant FLYING J., INC., t/d/b/a FLYING J. TRAVEL PLAZA in the above-captioned matter and that all pleadings, correspondence and other items in this matter . should be served upon Nixon Peabody LLP at the office and post office address below. Dated: October 8, 2004 MARSHALL, DENNEHEY, WARNER, . COLEMAN & GOGGIN t~ Bv' .c--. ". --4 T J cMahon 4200 Crum Mill Road, Suite B Harrisburg, PA 17112 Telephone: (717) 651-3500 R769832,1 - , SO ORDERED: JUDGE R769832.l '''''''''''1~' ,~ T. ".,.," ",I." '-1 '-," NIXON PEABODY LLP By: 4e//c;./ David 1. Cook Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 "-1 - , . .,/'.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dIb/a FLYING 1. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \~ day of October 2004, I served a true and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 17110 David 1. Cook, Esquire Clinton Square PO Box 31051 Rochester, NY 14603-1051 \~\\~ \\~~\\ Joanne ~. Parr ,i """'l1~ _L'__ I ~ 1 -j , , I -~ t-- _, .. :'1"- =~ ""-~" - (j ~~~ r--> C,:;:. 5E~ C? c; --I . .............. '-:? (;" C) (:J ....n --I fr~?J -[",h ~J~jlil ~:2Ic) -,.~ --1"1 ~,~,~~ ',.-', -l'- :~Jl ~'""'" "" _ 00'[11\.,"", <-"!""'~ ~ ~~'<:'!l"I~-""'_ ~ ,~1!1l1lr,"~~8~~!''lI!lj~''-"'"~''\';''~'M!''t-)''''~'''-1!,~jV9-''!'IL''li>j"''%~T~IW.rJ~~~'",,"~~~r~'',~. _ ''F'~''''!I''i'') Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CNIL ACTION - LAW STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, v. : NO. o/-d)J79 CO\{cy~ FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance 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. Y Oil may lose money or property or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SETFORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 '~;"-~""'~-=-- ,~ -' ";,<--,-"",-:,' ',__o,_,~ _ ;'''(~'' ''''''.'1';,> '--'--r~'"~,--- c_" .< _ -Y,T- "-l ,., , r .~ STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CNIL ACTION - LAW v. ,:NO. FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED NOTlCIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 2 ""<~> ""'C'''',"",-" '~f:l.,~~,~"i'f."""'''''' _,~".,_~__,,-. ,. -."1'R!'1"'1--'--'"'"1'_'-__<1~'-'''''_::'''~'- 'j_.\ ","", f-~ r'~ r .-'~ , -; , ,~~ '0'_ r I II ,. STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CNIL ACTION - LAW 0/- ;l.:3 79 C;;xy -r.eM>'- : NO. FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Stewart McLain and Jennifer McLain, are adult indiyiduals, husband and wife, and currently reside at 2509 Independence Drive, Jacksonville Beach, Duval County, Florida. 2. Defendant, Flying J Inc., trading and doing business as, Flying J Travel Plaza, here in after Flying J Inc., is a corporation authorized to do and is doing business at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Flying J. Inc., owns, operates and maintains a truck stop business and parking lot at 1501 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 4. The facts and occurrences hereinafter related took place on or about January 29, 2000, at approximately 8:00 p.m., on the aforesaid parking lot. 5. Plaintifflawfully parked his tractor-trailer in the parking lot owed by Defendant. 6. Plaintiff was an invitee and was lawfully using the facilities on the Defendant's property. 7. At that time and place, Plaintiff, Stewart McLain, exited the drivers' lounge door of Defendant's facilities to return to his tractor-trailer. 3 -';f<"l_"""-"'-~ '. ,'_--.1,'''':_''' - ,01-' . _ , _ ,1- ~." _ <0 .r " i ~ ~ ,~....,." ~~_~TIf 8. The parking lot had "black ice" on it, so a slippery, dangerous condition existed. 9. Mr. McLain could not see the condition of the parking lot and was not aware of this situation until after his accident. 10. No markings or signs of any kind were in place warning of the slippery and dangerous condition of the parking lot, nor were there any verbal warnings of any kind conveyed to Mr. McLain that would have alerted him to the danger. Furthermore, no salt, cinders, aggregate or material was placed on the parking lot surface to increase traction and reduce the slipping hazard. 11. The Defendant had a duty to maintain the parking lot in a safe condition. 12. The icy, slippery condition of the parking lot presented a dangerous condition known to the Defendant, or which could have and should have been reasonably known to the Defendant, which created a reasonably foreseeable risk of harm suffered by the Plaintiff. 13. The Defendant had sufficient time prior to Mr. McLain's slip and fall to have taken measures to protect against the dangerous condition that existed on the parking lot and prevent the kind of injuries suffered by Mr. McLain, but Defendant failed to do so. Appropriately removing the black ice from the parking lot, and placing sand, salt, cinders or some other substance on the parking lot was necessary, but Defendant failed to do so. 14. The aforementioned slippery condition of the parking lot represented a condition that existed for an adequate and sufficient time before Mr. McLain's slip and fall, which could haYe and should had given the Defendant adequate time to correct the condition and wam Mr. McLain of the condition. 15. As a result of Defendant's negligence, Plaintiff suffered abrasions, a right elbow contusion, and a right patellar dislocation, which has required surgery and physical therapy. 4 ";'t>,=, ",~ y~]l!'i .-'-. ,_~;~,~,,~, r"'f!'~ _,~-"..'''''''' ""'~r "'1"""'_ ,-- ,_1'_",--' " , l-i' 1",",-- . "II --"""""",, COUNT I STEWART McLAIN v. FLYING J INC t/dIb/a FLYING J TRAVEL PLAZA 16. Paragraphs 1 through 15 of Plaintiffs' Complaint are incorporated herein as if set forth by reference. 17. At all times releyant thereto, Defendant, Flying J Inc, through its agent and employees, was in exclusive control ofthe parking lot and was responsible for the inspection and maintenance ofthe parking lot, including snow and ice removal. 18. Plaintiff, Stewart McLain, was owed the highest duty of care by Defendant Flying J Inc., to keep and maintain the parking lot in a safe condition for the benefit of patrons. 19. The aforementioned accident and resulting injuries sustained by Plaintiff, Stewart McLain, are the direct and proximate result of negligent conduct of Defendant, Flying J Inc., and its agents and employees, as follows: a. failure to exercise the highest degree of care that a landowner owes to business invites utilizing the premises for its intended purposes; b. failure to properly maintain the premises by allowing an unsafe hazard in the form of ice in an area used by business invites; c. failure to inspect its premises to determine whether there were any conditions that could pose a hazard to business invites; d. failure to post adequate and proper warnings concerning the dangers posed to business invites by the deceptive condition of the parking lot; e. failure to post "Caution Icy Parking Lot," or similar signs to warn business invites of potential danger; f. failure to use any non-slip materials and to advise business invites of the presence of ice; g. failure to remove the unsafe condition from its premises; 5 f~".,~"_~, _ _ ~ _, -'f",-,."t"-~'" ''':"'-1"0, "",,'I"'~,-'!'i_~_"'_"_'I_'__ - . ,_r". ,,~ 1- '1,-"-' ',-i'-', "-'. -~-' , ~ '""""'"'" h. failure to place rock salt or other deicing agents on the parking lot; 1. failure to hire and properly train reasonably competent personnel to supervise the area and regularly inspect the same; and m. failure to hire a competent and responsible contractor for the removal of snow and ice from the aforesaid parking lot. 20. As a result of the aforementioned slip and fall, Plaintiff, Stewart McLain, sustained painful and severe injuries including, but not limited to, abrasions, to the right knee, a right elbow contusion, and a right patellar dislocation, requiring surgery. 21. By reason of the aforesaid injuries sustained by Plaintiff, Stewart McLain, incurred liability for medical treatment, medications, hospitalizations and similar miscellaneous expenses in an effort to restore himself to health, and claim is made therefor. 22. Because of the nature of his injuries, Plaintiff, Stewart McLain, has been advised and therefore avers that he may incur similar expenses in the future, and claim is made therefor. 23. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out his daily activities, loss oflife's pleasures and enjoyment, and claim is made therefor. 24. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has been and in the future will be subject to great humiliation and embarrassment, and claim is made therefor. 25. As a result of the aforesaid injuries, Plaintiff, Stewart McLain, has sustained and may in the future sustain work loss, loss of opportunity and a permanent diminution of his earning power and capacity, including the loss of his business and associated expenses, and claim is made therefor. 6 " "r~"" "'~, . ^i '" ,- -->~'\ -_~-I-"t. l-<-:~~-""I__"f -,j """1 <, ~ '1 .,' < - j , ' "'C',,-_. .."' ., ""._-J ('"'''''''''' ,"' . 26. Plaintiff, Stewart McLain, continues to be plagued by persistent pain, swelling, and limitation and therefore avers that his injuries may be of permanent nature, causing residual problems for the remainder of his lifetime, and claim is made therefor. 27. As a result of the aforesaid accident and injuries, Plaintiff, Stewart McLain, has sustained scars which have resulted in a permanent disfigurement, and claim is made therefor. WHEREFORE, Plaintiff, Stewart McLain, demands judgment against Defendants, Flying J Inc. t/dIb/a Flying J Travel Plaza, in an amount in excess of Twenty-five Thousand ($25,000) Dollars, exclusive of interest and costs and in excess of jurisdictional amount requiring compulsory arbitration. COUNT II JENNIFER McLAIN v. FL YlNG J lNC t/dIb/a FL YlNG J TRAVEL PLAZA 28. Paragraphs one through twenty-eight of this Complaint are incorporated herein by reference. 29. By reason of the aforesaid injuries sustained by her husband, Plaintiff, Jennifer McLain, was required to incur liability for medical treatments, specialized medical equipment, medications, and similar miscellaneous expenses in an effort to restore her husband to health, and may be required to incur similar expenses in the future and claim is made therefor. 30. By reason of the aforesaid injuries sustained by her husband, Plaintiff, Jennifer McLain, has been deprived of the assistance, companionship, consortium, and society of her husband and claim is made therefor. 7 :~~ '.',"^ '-',"'n'i<'-~'''',-,''-'''''''-'-' .< .', .>___"~/I"F,r' --,"1 ,,~ ~I - -. ",',r 1-_ r _~_ , ., -, ...... WHEREFORE, Plaintiff, Jennifer McLain, demands judgment against Defendant, Flying J Inc., t/dIb/a Flying J Travel Plaza, in an amount in excess of Twenty-five Thousand ($25,000) Dollars, exclusive of interest and costs and in excess of jurisdictional amount requiring compulsory arbitration. Respectfully Submitted, NA VITSKY, OLSON & WISNESKI LLP D"oort c{!1 (JOb I NV MICHAE . NA VITS ESQUIRE \ J.D. No.5 803 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (717) 541-9205 Counsel for Plaintiffs 8 . 'ii-- ,~, - - -". " '-." I \, -,'~-r'-,_ ,',,_,_ __e' Coo ].- '" -. .~;_=_-,.' '"",_" _~I:'-Vc ,'n'''__ 1-_ ,__,,,~__~_,_ ,"'", _---)-_- _",1; ,_ , _', 1'- ,._,,_ -., -~~'-' ~,..~t....C"~~"-' " -,' , ~>~. . " VERIFICATION I, Stewart D. McLain, do hereby swear or affirm that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. 9J~!J ~C~/ WITNESS ~'i'\\~--' - Stewart D. McLain ;;;..',w', " ,~. '\-, ,,-,-'>~-y-, ,~ ',-'" "t"1 Je"",- - , ~"l VERIFICATION I, Jennifer S. McLain, do hereby swear or affirm that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subj ect to the provisions of 18 Pa. C.S.A. ~4904, relating to unswom falsification to authorities. ~ "MGL' WITNESS . Jvtt~ Jennifer S. McLain ',:\f-1~ ,r_O? ~-, l' , "'" '. ",~~ ""l'-:-'_~I-~"" ,". ~:''"'"__'I''''_ ,--. '''T.' ., - "" >'" ". <>.~; ,~"' ,~ ,'"' '"_._ ,.",'0- --" - IIIllIl L ~ n jt. ~ ~ ~ 8 c' "~ '-' h P -'-) ~ g ~ 8 "- -om '"'" - ~ 0 rr.b " :::"':l -:11 - a 2:::0 , () -t. C z,-- N :.:'~ ;:r..:, oo':P- '-i ~:2,~J \J' j ~z ~ ~ !;2O "V ~F~ ~ ~~ ::1.: Cd o-j + -&:'" ~ J U1 -< ~ '~'!lI_ J[. ,,~..J"'-"" V,~..,..,.."".,. ,. _ .~~~"!'!06";*,,,'i!\-",I",,.,,!,~""-\'f'if"W~"!i'-7"',f;"4!i:;'~!j'i-"W-:,,"ey.;~H!1'~W.l'!,J;;;!\"J:,~..w~ri'~'Ht:;'il/~!1l~ffi_~F~ "'j SHERIFF'S RETURN - REGULAR A CASE NO: 2001-02379 P , . COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCLAIN STEWART D ET AL VS FLYING J INC ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumbe~land County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FLYING J INC the DEFENDANT , at 1508:00 HOURS, on the 25th day of April , 2001 at 1501 HARRISBURG PIKE CARLISLE, PA 17013 by handing to ROGER LOCKBAUM ASSISTANT MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.10 10.00 .00 .00 31.10 So ;;~~ R. Thomas Kline 04/26/2001 NAVITSKY OLSON & WISNESKI Sworn and Subscribed to me this 4l~ before By: h~~~' Deputy Sheri ro day of A.D. _'0t~~''W.!I;'!'''~I'''1<''I.,_, ~~ . I~~"" I r ~I , , 1 j" " SHERIFF'S REtURN - REGULAR ^ CASE NO: 2001-02379 P . COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCLAIN STEWART D ET AL VS FLYING J INC ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FLYING J TRAVEL PLAZA the DEFENDANT , at 1508:00 HOURS, on the 25th day of April , 2001 at 1501 HARRISBURG PIKE CARLISLE, PA 17013 by handing to ROGER LOCKBAUM a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 1. 00 .00 .00 7.00 .~~~ R. Thomas Kline 04/26/2001 NAVITSKY OLSON & WISNESKI Sworn and Subscribed to before By: ~~~ Deputy Sheriff 4-4 day of me this _"'"'M ~,' "' ~ ~ "~ 1''' I . , - - r ~ - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING 1., INC., t/dIb/a FLYINGJ.TRAVELPLAZA Defendant JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, FLYING J.. INC., TO PLAINTIFFS' COMPLAINT I. Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. The remaining allegations of this paragraph are denied because Defendant, after reasonable investigation and inquiry, lacks information sufficient to form a belief as to the truth thereof, and accordingly proof is demanded at trial, if relevant. 2. Admitted. 3. Admitted in part; denied in part. It is admitted only that Defendant, Flying J. Inc., operates and maintains a truck stop business at 150 I Harrisburg Pike, Carlisle, Cumberland County, P A. The remaining allegations of this paragraph are denied and proof thereof is demanded at trial, ifrelevant. 4. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C,P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. -" -""~,, ,""..", ' -, - ,-, ,~ , T ~_ .1' -- '--r'-? . - ~ ,_. ~ ... ~~"~ 5. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P, 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant 6. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 7. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 8. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 9. Denied. The allegations set forth in this paragraph constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 10. Denied. The allegations set forth in this paragraph constitute conclusions oflaw within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 11. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 2 ',' ~- < , ,< fe' ~, -, ,- , --.- ",,-' ~'. I, ~ .', I'" ! , ~ . ,~ . """=r'" 12. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant 13. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 14. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. 15. Denied. The allegations set forth in this paragraph constitute conclusions of law within the meaning ofPa.R.C.P. 1029 (e), and accordingly these allegations are denied and proof thereof is demanded at trial, if relevant. COUNT I: STEWART D. MCLAIN V. FLYING J., INC. 16. Defendant incorporates by reference its responses to paragraphs 1-15 above, as if set forth at length herein. 17. Admitted. 18. Denied. The allegations of this paragraph constitute conclusions oflaw to which no further responsive pleading is required, and accordingly the same are denied and proof thereof is demanded at trial, if relevant. 19. Denied, Defendant, Flying J., Inc., specifically denies all allegations of Negligence as set forth in this paragraph, together with its subparts (a) through (m). To the contrary, at all times relevant to the material and well-pleaded allegations set forth in Plaintiffs' 3 ;0"""'1' "'1',-;" -,- I ~ I~.-~' ~ _"_.r Complaint, Defendant acted with due care under the circumstances then and there prevailing. Further, the allegations of this paragraph constitute conclusions oflaw which are deemed denied within the meaning ofPa.R.C.P, 1029(e), and accordingly, proof thereof is demanded at trial, if relevant. 20.-27. Denied. The allegations set forth in these paragraphs are denied III accordance with Pa.R.C.P. 1029(e), and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant, Flying J" Inc., demands judgment in its favor and against Plaintiff, Stewart McLain, together with such other relief as this Court shall deem appropriate. COUNT II: JENNIFER S. MCLAIN V. FLYING J., INC. 28. Defendant incorporates by reference its responses to paragraphs 1-27 above as if set forth at length herein. 29.-30. Denied. The allegations set forth in these paragraphs constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e), and accordingly the same are denied and proof thereof is demanded at trial, if relevant. WHEREFORE, Defendant, Flying J., Inc., demands judgment it its favor and against Plaintiff, Jennifer McLain, together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS Plaintiffs' Complaint fails to state a cause of action as against Defendant upon which relief may be granted as a matter oflaw, 4 A~1 '.=_ "'__'f_~""'_~__' T:' , T- r'- .) I ~ ,'" 31. No act or omission on the part of Defendant was a substantial contributing factor in bringing about Plaintiffs' injuries and/or damages, all such injuries and/or damages being expressly denied. 32. Plaintiffs' Complaint fails to state a cause of action under the doctrine of Hills and Ridges. 33. Plaintiffs' injuries and/or damages, if any, were caused in whole or in part by acts and/or omissions on the part of persons and/or entities other than Defendant, Flying J., Inc., and over which Flying 1., Inc. had neither control nor right of control. 34. Defendant reserves its right to raise one or more of those defenses reserved at Pa.R.C.P. 1030, 35. Plaintiffs' claims may be barred and/or limited by the doctrines of rais judicata and/or collateral estoppel. 36. The injuries and/or damages of Plaintiff, Stewart McLain, if any, were not caused by any act or omission or any other liability producing conduct on the part of Defendant, Flying 1., Inc., but were the result of pre-existing medical conditions and/or injuries, and accordingly Defendant is not responsible therefore. The claims of Plaintiff, Jennifer S. McLain, being derivative in nature, are or may be barred by such contributory or comparative negligence and/or assumption of the risk on the part of Stewart D. McLain, as may be established at trial. WHEREFORE, Defendant, Flying 1., Inc., demands judgment in its favor and against Plaintiffs, together with such other relief as this Court shall deem appropriate. 5 ;-';-.,_.~ ~~,o" , " ,-~ - 1''' I-.,r I" l' _r ! ~ " " T' "--'~"'" ^..^,"- DATE: MAf 2 (, ZeDI 105_ A ILIABITJMILLPG\71347\SXVI20614\50000 C;:;ll!_r~'~_ ~ ';:<J - 1-' 'I Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLE & IN BY: Tim J. 100 Pine Stre P.O. Box 803 Harrisburg, P A 17l 08-0803 J.D. 52918 (717) 232-9323 Attorney for Defendant, Flying J., Inc., t/dIb/a Flying J. Travel Plaza 6 " ~ ~ I . }f VERIFICATION L Anthony Lucas, General Manager for Defendant, Flying J., Inc., t/dlb/a Flying J. Travel Plaza in the above matter, verify that the facts set forth in the ANSWER WITH NEW MA TIER TO PLAINTIFFS' COMPLAINT, are true to the beSI of my knowledge. information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn ralsification to authorities. DATE: 1JJ5-A\LIA\lITJM\l.LPG171355\SXV\20614\:!OOOO -WA";,,'7" -"',, _'> 1-,' I or' , .""""'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING 1., INC., t/dIb/a FLYINGJ.TRAVELPLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Shonu V. McEchron, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~day of May, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: TO: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste, 303 Harrisburg, PA 17110 (FOR PLAINTIFFS) ~~/ . V. MCECHRON 105_ A ILIABITlMILLPG\71339\SXV\20614150000 " l~_" ~',_" '._, """'~_ .",_= .' ""', .,....".~ I/~" ~ ~_ '''l",,'f''<''' vr--~ 'P' ~~, .~- -""-'I" "d ~_,. C; .-,;;,,,,. ~'''''''d'_ ,,~M~"-~ "'0",,""- 'm'" 'K."'''''''-,-",c;';'< t"'-"~"""-,, _.0-"",,' '"r~''''~-''' < .. ""';---r'lJlifrlf!~:vrr"'-'7J1L1T C) 0 0 ~.~ n -, p- .~ nl -;" ~7 " .. , r,' ,-," -7 ,:::=J (;] "-, f"'-..J , : r::: -.:,., C_J . --.,., . ? - ",--, )~ . (5 \. ,1 i',.J C~-: ;\. c:: ",._, ~. :..' )> --{ -J:) -< =-< ~~ ~ = ~_~"jlf~-,lm1'S<f:6!""'NI;;Y'ij_.;p '!'];N-'''!'>l!_f'+0lJ'.'il$~'M!!~1@1j!''l!mi1\!jl~lf11~'I\ii%#~.1''I!i'!'-!f!fii!W~-;j11i~~!!~f . . ~,'~"", ..'..,~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWARTD. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CIVIL ACTION LAW NO,: 01-2379 FLYING J., INC., tid/b/a FLYINGJ. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: Prothonotary - Cumberland County Kindly enter the appearance of the undersigned on behalf of Defendant, Flying 1., Inc., t/d/b/a Flying J. Travel Plaza, in connection with the above-referenced case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEM~&G BY: fAi Tim y 1 ahon, Esquire 100 Pine treet - 4th Fl. P.O. Box 803 Harrisburg, P A 17108-0803 J.D. 52918 (717) 232-9323 Attorney for Defendant, Flying 1., Inc., t/dIb/a Flying J. Travel Plaza DATE: 105_ AILIABITJM\LLPG\71337ISXV\20614150000 ~","' '1'-1 -I.'" . ,.. I, - ,. -~ - ~f" , '(,~)ilk't IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dIb/a FLYINGJ.TRAVELPLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Shonu V. McEchron, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this L day of May, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: TO: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, PA 17110 (FOR PLAINTIFFS) 105_ AILIABITJM\LLPG\71339ISXV\20614\50000 r,_, '," -~", , '-" "1,"''''' ~ "-,,, ,cl~__ -~'" ~-r, -, '-)" '1---- ..- :""'-<' 'd.,' I :luwI"""""", "'" '~~- ~_w~~~.~ ~ =,,~ .'. <~, -'-,.'0, ~. . "., _ - =~,- ~~,~ '-"'-1' !IT ,__'fWr '" ""~1-' ,- _ ',-"" ".--,~, 'T':', c' _,', '.'/' ~c}''';''<~-<'C~''ulkrt' ";''1'<::~' ;:_' "( '(~ -, ';co ~~' :. Yli'1111,F :,,".,'t""t''''\:<'i>''-llnl'ff<r'.~'\ ~fJ;:~;''''''i~~''=:<~- 0 1--' C) -~ C '''n s: :w. i:J(U :tl<'> , """:J rnn~ -,< Z ~ zf I SQ:i '..D ~C.. -'0 ~t~ S>? ~::~, .J>c :::;.:! 2:; w eo. _G -< ~: ~ - ~tIIIllIe!~~~~'~~:j-\"I_~;~:~:'rr1;;i')~ip.~~OWl<;!M!al~~!~~'il!l_~:~~~~! 'f II , I J STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs' CNIL ACTION - LAW v. NO. 01-2379 Civil Term ORIGIN",'- FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendant JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER Plaintiffs' Complaint states a cause of action against Defendant upon which relief may be granted as a matter oflaw. 31. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant's negligence was a substantial contributing factor in bringing about Plaintiff s injuries and damages, 32. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. The hills and ridges doctrine does not apply to this case. 33. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant's negligence was a substantial contributing factor in bringing about Plaintiff s injuries and damages. Defendant is responsible for the acts and/or omissions on the part of any other person and/or entity that had control or right of control over the premise. 34. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Defendant reserves no right to raise any defense other than those specifically raised in its Answer or New Matter. "if-;., "" " ,,~-~,,-, '-"'__"', C',- , ~ '1 ,. ,_ " 1'- ~",' .c" I' ~, ",.1 - r. ~ ~ . !i J 35. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. The Doctrines of Res Judicata and/or Collateral Estoppel do not apply to this case. 36. The allegations constitute conclusions of law to which no response is required. To the extent that any response is required, said allegations are denied. Plaintiff, Stewart McLain, was injured as a direct result of the Defendant's negligence. He suffered from no pre- existing medical condition or injury in any way connected with the injuries and damages suffered as a result ofthe Defendant's negligence. Plaintiff, Jennifer S. McLain, having filed a loss of consortium claim, appropriately raises such a claim, and the claim is not in any fashion barred by contributory negligence or reduced by comparative negligence or eliminated by the Doctrine of Assumption of the Risk on the part of Stewart McLain, as Stewart McLain was not contributorily negligent or comparatively negligent or assumed the risk of any injury. Respectfully submitted, ISNESKI LLP om, MrA1 J/}J I [~I - II! ) Michael . J.D. No. 803 2040 Linglestown Ro d, Harrisburg,PA 17110 717/541-9205 Counsel for Plaintiffs 2 -,+" ".,,;~ .- r-'~ '1 I" -,- . , I' I' '-, ~~ , ;i . " COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF CUMBERLAND I, MICHAEL 1. NA VITSKY, being duly sworn according to law, depose and say that I am counsel for Plaintiffs, Stewart D. McLain and Jennifer S. McLain, and I am authorized to make this affidavit on behalf of said Plaintiffs, and that the facts set forth in the foregoing Response to New Matter are true and correct to the best of my knowledge, information and belief, or are true and correct based on the information obtained from Plaintiffs. Sworn and subscribed before me this 315/- day of YVlc4.j ,2001. ~e.~ Notary Public me.,;,.".' ,'I < J' ,,'1 , "- . ~ ~;..~ ~, J . .,....+' ~,-'" ':':~J ^. ~,~ ,_. -- _"C ',-" , -- -~, ,- " k ". ",'" '''-'1--' ,'" 1-1- - ,. 'I .-..."" "~ I CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm ofNavitsky, Olson & Wisneski LLP, do hereby certify that on this 31 sl day of June, 200 I served a true and correct copy of Plaintiffs' Response to Defendant's New Matter, upon all counsel of record via postage prepaid first class United States mail addressed as follows: Timothy J, McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 100 Pine Street, Fourth Floor P.O. Box 803 Harrisburg, PA 17108-0803 Counsel for Defendants "" 1~ ~<tJoI!d- Jessie K. Walsh 3 ~:""'~""...,.~ ".~:---- ';";'P---- - ,..,. '~"-",,",'-:" -l-"~', '.'--, "_"'1 '~-' . '.' ." '...-. '.1 :,-': r'c' ,-' - . '~ '. , ~ .l'1' S>'j - ." "'". -~ ,".~'" ~-'-' " -:-:-~ { . ," 'I' ~"ilrf~.{ r ~.,~. ., ""d . " ,., .,."",,e'"F",wrf" "l'i'liA il'llillH r 'llHR'11IYn 'jilii1liii 0 0 c' c: -,,"\ .... <- _.::j ~ -00;; c:: ;-';:i;D ~p., -". -r, J_ ~~ -.' ~~ :;z: ~O "T) ~8 ::JJ. r:-;> 5>c: --j ~ (,J ~ w ""'lII!!l"",.___R:II!(l!I~~1f'N;';10~1"IW"'],-'l;::H';-i;w.:'-;-;;;'t,' "'~~~f>li!\!%'!f'ij'*~'!l.iiij(!~~'1ii1I!{~!lWt.w,;-~I~~-J " A. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., tldIb/a FLYINGJ. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: Prothonotary - Cumberland County Kindly enter the appearance of the undersigned on behalf of Defendant, Flying J., Inc., tldIb/a Flying J. Travel Plaza, in connection with the above-referenced case. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOG I I DATE: l \ \ \91D3 BY: Jo e F. M ha 1, De ehe, Warner, Co eman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 Attorney for Defendant, Flying J., Inc., t/dIb/a Flying J, Travel Plaza 105_ A ILIAB\JPMISLPGl1381081KAB\20614100138 -. -"" L<', -""'i""'" ~"'~":f_~'I' ',N';?.."!"'" -,-,~,L,,-O'iT,_-~7:_. "-'1''1';---'' 't"I'-'" -'CfC, "'-~~_, =,_.' """...'''' _ e '-,' _ ,__~ ,"_"",. '_'.'_' !It. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs v. CNIL ACTION LAW NO.: 01-2379 FLYING J., INC., t/dIb/a FLYINGJ. TRAVEL PLAZA Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ellen M. Palmer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of (\\J~~ 2003, I served a true and correct copy ofthe foregoing document via United States First Class Mail, postage pre-paid as follows: Michael Navitsky, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303 Harrisburg, P A 1711 0 "-""""","",,'.\"1"--"'" ~ !,_," ." ,~u ~ _~ 1-. " "n '~I'--,-,' "._ c. f' t' -N'" ".'.' ,,"'11-' ,. _", __. " ~ . ~-,=.~ il il ~1 i;~ l~"""._,_,."""""".,,,,_ . ~ ~,~" ,1J(iIV!!!A'iII,. -- "~ , _"_~" _, CO _',' , . e' .~." ,P,,, _~, ., ""co. ~~" ''''''''"''h> 0' .,<>.'. .~,.,- '>=",>i~' ~";"_",~ -_~ _1""'~ 'j.-,i;.Y_.,_".I.~~___"_'~_~' ,n '~Tllillil't"l"''l ... (') C') C c: L~1 ~,1 s: V LU :,3 !Ii :L -,- z ;:~.. Z , .. i""",) ," if! ~. C) CJ_ , ~- "-,' () 1'-- C" '. '- -r, ::i~ C) <:) :!J Z C c-) ,- -' ;: ~~, rn .!> c: t'''-_1 - :z; ,- 5:;~ :;:: -.J ::0 -< ~ '0' J~. f~'I'~'~~*"l!t'M~1'!!l"'~'!!<f,!W~"'-",,~1"'ltm'4'-!:O':,''M+30~'''''',,;';:,:(~'l~,'*.1~~jll':'if~ilf,j~~'!llll~';~", -~cr':_',~~:,"1'~ ... 'of -.' - v\ FEB 0 2 2005 ~ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D, MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, ORDER GRANTING PRO HAC VICE ADMISSION - vs- Case No. 01-2379 FLYING J, INC. t/dIb/a, FLYING J TRAVEL PLAZA, Defendant. Defendant Flying J, Inc. ("Flying J"), by and through its attorneys, Nixon Peabody LLP, having moved this Court for an Order admitting pro hac vice David L. Cook, Esq. of the law firm Nixon Peabody LLP, for the purpose of appearing, participating and representing Flying J in any pre-trial, trial, or post-trial proceedings before this Court in the above-captioned matter; and Notice thereof having been given to all counselor parties of record, and the Court having duly considered the moving papers, including the affidavit of Craig R. Tractenberg, Esq. and the declaration of David L. Cook, Esq. submitted in support thereof: NOW it is hereby: ORDERED, ADJUDGED AND DECREED that David L. Cook, Esq. of the law firm of Nixon Peabody LLP is hereby admitted to the Court of Common Pleas, Cumberland County, Pennsylvania pro hac vice solely for the purpose of representing Flying J in the above-captioned matter. DATE: "/..t. '} I l.~d r . IlIl ~ ~().6 R8018302 0 ;:0 Presiding Judge "i~''N~ u___ , ~ '" I' 1 '" r ,- . ~ :-1_11II ~."' 'T -- V\N'lil\:l.\S\\\\\3d }J.NnCC ZD :0\ \1'4 r- 83:1 ~iJUZ j, "," ,i^V~ t ':U.L' ,'r.Ji!\l'" j1--<" ;00 ...H' l\bvJ.v'\IV"ll...\..'-" f'\-\I\J ::;""",I,_\-l,\r'i.J:l\':'> -,<-,-1-'_""'" ~o ~~/ rr' l~.-/ . "~~-,, .~"." 1" ~--~" =_. ,~,-",.~.~< ~_ -," ,.. U"'tlilil:r , .. .,. );' ~J i7 "MW"1~,~~,,,,,,,~~~~tl!l'''''~~~Tii!l!J'f,!'>'''''I;,,,,'''''*~~,,,"''"rn~lll1'~-'Il~f<J'F'1'''"ii'',.'i;j--,"-P""";",~-,<~~-", ~ ~ , COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, MOTION OF ADMISSION PRO HAC VICE FOR DAVID L. COOK, ESQ. - vs- FLYING J, INC. t/dIb/a, FLYING J TRAVEL PLAZA, Case No. 01-2379 Defendant. PLEASE TAKE NOTICE that upon the annexed affidavit of Craig Tractenberg, Esq., and the accompanying declaration of David L. Cook, Esq., defendant Flying J, Inc. ("Flying J"), by its attorneys Nixon Peabody LLP, moves this Court at the Cumberland County Courthouse, One Courthouse Way, Carlisle, Pennsylvania, for an Order admitting David L. Cook, Esq. to practice pro hac vice in these proceedings on behalf of defendant Flying J, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301. Dated: January '1-( ,2005 NIXON PEABODY LLP BY:~ 7~. Craig Tractenberg f<< 1'3.:", :Sc~5Y6 96- 1818 Market Street II th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant R801801.2 """~-~...r~-""'''v,"'''i_,~_ i" ~_ _ ._" .. = IT' -"-I i I "-' " =" '; '- ,. , COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, AFFIDAVIT OF CRAIG TRACTENBERG, ESQ. IN SUPPORT OF MOTION FOR PRO HAC VICE STEWART D. MCLAIN AND JENNIFER S. MCLAIN, - vs- FL YlNG J, INC. t/dIb/a, FL YlNG J TRAVEL PLAZA, Case No. , 01-2379 Defendant. STATE OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) CRAIG R. TRACTENBERG, an attorney duly licensed to practice in the Commonwealth of Pennsylvania, under penalty of peJjury affirms as follows: 1. I am a member of the law firm of Nixon Peabody LLP, which is counsel for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I submit this affidavit in support ofthe instant motion to admit David 1. Cook, Esq. pro hac vice to represent Flying J. in the above-captioned action. 3. David L. Cook is a member of the law firm of Nixon Peabody LLP, Clinton Square, P.O. Box 31051, Rochester, New York 14603. Mr. Cook is an attorney in good standing and is admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southem District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. R781922.2 ;' '~.""~:-1"'T"":"'~"""'~'~_~', _~""'__.__~ -1- I I I I - - - . ~ . ~ " . , ' -2- 4. To my knowledge, Mr. Cook has never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against him. 5. The admission of Mr. Cook pro hac vice in this action on behalf of Flying J, Inc. will assist in the presentation of issues for adjudication by this Court. 6. If admitted pro hac vice, said attorney will abide by all rules of this Court. 7. The Declaration of David 1. Cook, Esq. is attached hereto and incorporated herein by reference. 8. For the foregoing reasons, I respectfully request that this Court grant the Motion for pro hac vice admission of David 1. Cook and permit him to appear and speak in the above-captioned matter in the same manner as attorneys of the Bar of this Court. Respectfully submitted, NIXON PEABODY LLP 6 / ./}., By: /V~ (( Craig Tractenberg 1818 Market Street 11th Floor Philadelphia, Pennsylvania 19103-3647 Telephone: (215) 246-3520 Attorney for Defendant N Veronica Love-R.obinson, Notary Public Phil~delphia, Philadelphia County My commission expires July 7, 2008 R787922.2 ".'!'.~-~"""''l''f'~~~~_ " ? I~~ '" -, ~, , . , " .. . , CERTIFICATE OF SERVICE I hereby certify that on the <::[./ day of January 2005, I caused to be served a true and correct copy of the foregoing Motion to Appear Pro Hac Vice with attached supporting papers upon the following: Michael Navitsky Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Ste 303 Harrisburg, P A 17110 by causing the same to be placed in properly addressed, postage pre-paid packaging and depositing same in the United States Mail. // R787922.2 ,'_-W''''''f'""'''''''''_~-";:s.....~""""",,,,~~ '-~ -I, T~ .', r I ,~ _ ~. ~I~~ 1.~I/JfWIf~T~ i"--. ,~ 'i "HmuI_. , ~l ~ -.~ . _',.-r__ .ct"'_"'o> '_' _,~,,_ ,"" ",,_,' ~.'~ "-_~_~'h,'" .._" ~ '~'~,,-~,~~-,;,'.-,;, -'."; ~ ~ .' ( ...., c.~ c;;:l "" <.... :!:ilII> Z o .\ :::::l fllpd -0 In :00 Sc) :r:=T] Qc"J tsrn -.4 "r- :17 -< (,) ". :.7': m 1',) _J ~~~~Ht ,1J1i}!IV ,.~..,. ,1j!~l!lC"~;\10!1\!WHjlW,jI(;!F",ll''-1'~''''''''~Il!'I.I'!'IffiI'!;''1'WI''~-r-''\:.~~'V.Fj-''Tr:,"'''i C'1F.,r<_;'k'".,i'i_"._' ".:C,",i'r";,,,,;'';1'I%:-,f1i'F''''~'FJii'*'!''''{''''''*'.;;/]~1 _,m~~~_i r\it::m.1J1 .1(' ~ - '- '0. " FEe 0 2 200Y COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWART D. MCLAIN AND JENNIFER S. MCLAIN, Plaintiffs, DECLARATION OF DAVID L. COOK, ESQ. - vs- Case No. 01-2379 FLYING J, INC. t/d/b/a, FLYING J TRAVEL PLAZA, Defendant. DAVID L. COOK, being duly sworn, deposes and says: 1. Imake this affidavit in support of the pending motion for an order, pursuant to the Rules of Practice of the Court of Common Pleas of Cumberland County, Pennsylvania and Pennsylvania Bar Admission Rule 301, admitting me pro hac vice.in order to appear in this action as counsel of record for Defendant Flying J, Inc. ("Flying J") in the above-captioned action. 2. I am a member in good standing of the Bar of the State of New York and I am admitted to practice law in New York State courts as well as before the United States District Court for the Western District of New York, the United States District Court for the Southem District of New York, United States Court of Appeals for the Second Circuit, and the United States Supreme Court. 3. I am a member of the firm Nixon Peabody LLP, Clinton Square, Rochester, New York 14603, telephone number 585-263-1381. 4. I have never been disciplined by any Bar Association, and there are no disciplinary proceedings pending against me. R787922.< '",,~," l''''rr,,~~." "-'IL~ ,. -J.I ," ,J - \ - - - 2- 5. Nixon Peabody LLP acts as Flying J's counsel and represents Flying J. in connection with the aforementioned action. Accordingly, Flying J. has requested that I appear as defense counsel in this action. WHEREFORE, I respectfully request that I be admitted pro hac vice in this action to represent Flying J, the defendant herein. R787922.2 -,~ .,. Wf.! -1--' "',~ ~ - I 1- t/-d~~ , David 1. Cook DEBORAH J. $EXTON NOTARY PUBLICA Slate of New YoIII R~I.lratton ..: 01SE5033813 Quellfied In MonrOe Cou!1lY Certllicete Filed In Monro.e COil!lJr, Comml8Blon expires: G9I26J2O ~ , 1-- ~~~ 0.t "m!lll~.,~ -, ~ ~ ~~" - -Y-j- ~ I" -~ ~.. .~ '"" _.^"~. t ." ,~ "" 0 " c, , C-~) -n c.n .~ ..,>. "- 1,'1"" :1:"" :D" mE z f"" -uP] ~X -~i (,...l ""1i--r1 )':':W" '-'::;:!J -r'''' 6M -,. 9? -, ')-,'" f"..,) :D _-1 -" ~"r"!>~~_,lffi1J.j;WIJ~lllimlQ~1!IW~~~'l"!~!!MMI<II!~I'/!i!;~_!1,'l:''''-W~j!'!f'i''~''''""'~C~';W'-,i'r'''''"''''''-f_1+;~,~,P;f!'''''''_ih'_'',,'<.='''''fi"''',,"w-m~,cf','(J"_~i"7;W~~~1m;:".,_ ~~r~"''''''''''_",,_I~ SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FOURTH DEPARTMENT ROCHESTER, NEW YORK I, JO ANN M. WAHL, Clerk of the Appellate Division of the Supreme Court in the Fourth Judicial Department, State of New York, do hereby certify that DA VID L. COOK was duly admitted to practice as an attorney and counselor at law in all courts of this state by this Court, on June 23,1988, and appears in good standing upon the roll of attorneys and counselors, and other records, in this office and has registered with the administrative office of the Courts as required by Judiciary Law 9468-a. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of this Court, at the City of Rochester, January 12,2005. tlJLY'n. (I )aJJ- Clerk \\"'!!'''''"'f=''''''''';''''"_.~~ "~ I,~' 1"'r T I - .= ~~ . '.'1 ,~. .~. , ,~~. "~- - ~,--~-~- , " 1/ J ~, ~~ CiiiiDII_"" ~a,lIIlll'J;JJR~!f'!!W;!!\l~Jl.W>>m~t!l!:~~*~;~lft'I!~~~'r'~"!"'-""""'~~Plffl'"","~"'l'l!1!IWI~~~I~'~~r",W',i"";;,,,'e"-~'i:C! '--.'.<."-:11 "";"<~"'T_-"'C', . '- ~ -"4~r- . ,. (") ,..., 0 = ~< t;~ -;1 on :;:1 "- ~~ F~~', :P -.- ." %: n'p ~it~;:' -Urn w :::o'g (/~ ,,-~:' (-=.~ ,--,' . ~~t': ':;:1-"'. . " :1'" (':'5 :1.1 ?:::: j'--~ :x ..-0 ,"<,.,2.-\ 1;;"\'"1:\ ;;?r;': 9? l"_) ~t2 :~~ r<> ~'J.) _I .-< "-\,"Tl'FC ~~'~'''i.~'''~~we~~:'''a(;~m,n~;"1''f'~'1!li'ii 1, ~ _, ,!if.~:'1l~'\~ STEWART D. McLAIN and JENNIFER S. McLAIN, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CNIL ACTION - LAW 01-2379 CIVIL FLYING J INC. t/dlb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this <f' day of February, 2005, following conference with counsel in Chambers, it is ordered and directed that: 1. All discovery in this case shall be completed on or before July 15, 2005. 2. The Prothonotary is ordered and directed to list this case for the trial term commencing September 19,2005. Counsel for the plaintiffs will verify the listing not later than August 1,2005. BY THE COURT, ~hael J. Navitsky, Esquire For the Plaintiffs ~id 1. Cook, Esquire For the Defendants f1J- :rlm 4~ ~ 09. .0'1 ~O..5 If.,-,,,:,,-;'- , ,~c 1",__ _ I' _ ,_, T -,' [,,-.-r._ }-',,: -l"P'" -_'".,T " '.", __",,' -,,< CO~b. _," ,T ".., ,_ _" 4 tf' 'iJt .; ~ li II H .\ '\ ,;l:~ ,.11._.1,_ f3 ~ U!li!i> ~ ~~ . \jif.,.]\//f;:-;),S\!:\Ed ,\lNnC(-:-' - "-' :~';}V'-jnJ 80 :2 Hd h_ 83::1 soaz i,tlVLO:\jj;LL02j 3Hl. ~o :!::;:~:!O<'31':1 ~ ,.r~"""-"_.",,,,,.~~~~.~~"~~~~~;t?~'f'W',1i$iI..~~~.1'l!':1. I "I ',' ~,~~! 1 Stewart D. McLain and Jennifer S. McLain, his wife IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. Flying J Inc. t/dlb/a Flying J Travel Plaza : NO. 01-2379 CIVIL TERM ORDER OF COURT AND NOW, August 24, 2005, by agreement of counsel, the above captioned case is stricken from the September 19, 2005 trial term. Counsel is directed to relist the case when ready. BY~ George E. Hoffer, P.J. Michael J. Navitsky, Esquire For the Plaintiff Court Administrator ~ ~ f. J.r;.o' 9--- David 1. Cook, Esquire For the Defendant jhk ,~ 1'"1, .~ n,' 'I 'F 1-, -~-, r - -~'- ,.,.", , '- , ~ . "<-r'""-'- ~ \i!i\Ni\l\S>~\!':'~icJ I ' '1"\....... -, r'_ "-' ~., ~1"""1"\ 1...l.1-.1 pJI~: ....;.._~.'-::-/\Ii IV o ~ :6 H\! 92 8nv SOOl llN[rV"u'-.' !iO" , ::JHl:10 Aov_vl', r/..i. 00 ..II 381:J:JO-G31/:1 :-j ;j I ! i 'I " > ',',")A>ffi_'"='''' ,. ","..'. ,~ ,~ . "",-",'-""-- ~,,,_,,__,,,,",,_.~,_,"~~ '" '-,~'"',."'~"'~__~~ ~. "_,~~""',, _, '"" ,,,,.L _,_,_~~" ~ ~ ;-~ _~~If!\!IliIMl~_, " _~WJ:i;l:MP'f1f~~J!:j.I:mil;'!i-W"~q~Im~~il'!!ig;l~1i'O;i!":.it,,';w;n;;'f'\;:'V"-'- PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE POOTHOIDI'ARY OF CUMBERLAND COUNI'Y . OR1Gq\N&'\~~ Please list the following case: (Check one) x for JURY trial at the next tenn of civil court. for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) stewart D. ~in, and ms wife, Jennifer s. ~in, (X Civil Action - Law Appeal from Arbitration (other) (Plaintiff) vs. Flying J Inc., t/d/b/a Flying J Travel Plaza The trial list will be called on mui Auqust 22,n2006 Trials COllIreIlce on september 18, 2006 (Defendant) Pretrials will be held on August 30, 2006 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. 01-2379 Civil ~ Indicate the attomey who will try case for the party who files this praecipe: i Micbael J. Navitsky, Esquire 2040 LinglestowIl Rd., Ste 30311I Harrisburg, PA 17110 , Indicate trial counsel for other parties if known: David L. Cook, Esquire, P.O. Box: 31051 RoChester, NY 14603, Counsel for Defendant This case is ready for trial. Signed: re Date: May 2, 2006 Attomey for: Plaintiffs "'~~ ~~~ STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CNIL ACTION - LAW v. : NO. 01-2379 Civil Term FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm ofNavitsky, Olson & Wisneski LLP, do hereby certifY that on this 2nd day of May, 2006 served a true and correct copy of the Praecipe to List Case for Trial upon all counsel of record via postage prepaid first class United States mail addressed as follows: David 1. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant J~ 7L;~ Jessie K. Walsh ,- ,--""-"--="- ,.- 'I .." ~I'- -,-,~ -" - r" - J- ~-, 1- ." '''' 1",~".,.." """-~, ~ ,~- '-"~ ~" " ~ ""~"'~~'-" -.", ~~-- -, ,~,~."-..,,,- ".~'''~'''''''' '''''"'-'''<''''-'"''',I'''-~---~~-'' ._'::. I1;L ~2 . ~""'..'-^-~-' *'-Tlif!T'r_~' "^-> .--:=; ,":::J ~ :'['l G10! FJ -0 r,,) (,) ~~'~!5'-'''''.'''7l'''!''__'''D,~,"n~~,'''-)..r";-~1''l~i'!C,.Jf'j}'lJf!fW~~~IW~~~, II!! """, ._~~! 4. Stewart D. McLain, and His Wife Jennifer S. McLain . : 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. Flying J., Inc., t/dIb/a Flying J Travel Plaza : NO, 01-2379 CIVIL TERM ORDER OF COURT AND NOW, August 29, 2006, by agreement of counsel, the above captioned case is continued from the September 18, 2006 trial term. Counsel are requested to relist the caSe for trial at such time as they deem appropriate. By the Court, We J. esley Oler, Michael 1. Navitsky, Esquire For the Plaintiff David 1. Cook, Esquire For the Defendant q-~-()(p ~ ~.. ~ Court Administrator lkd ')Ii~ '-"-' 'I , - ! ,. f , I' \ ..~ \ ,', ~ "^h "". ".,~" ,."~",' ,,-~ ~...~"'~~" ~ <~ .~. <,,",,,,,,'~_" '~'~'~ -,_, o'~~",w.""''''''"",",'^ _"_,~"..~_~":,,,.. \.111" 'I~I '.' j"c"";'\ )('\)" "J i )Jf\!n0'~-" 1(. :,'<,:"),,, ~ri ;';~:::-'~'r"\1"\ '-']Ji~f iv 6'/:I/W1 (' .., :;,- d3S 900l J.tr\ll~j;'::P0SI 3Hl :10 .j,il:.bv-Q,nH h? "_ ~f(; ,!!1QlJi!'"".....,III~WlIfl~~~!iJ'l~!r~'*''''''''_~~''j''\'l'',,--<"''i,_'V!\~\,.iI-~;;'';''f';-j&'W'0f'),'-"r~>';";W)~~~Pi!~"",!Iii1J.;_I!fi'l!-Jr~~",! :!J'.i. " , PRAECIPE FOR LISTING CASE FOR TRIAL :ORIG~Jc. (Must be typewritten and submitted in duplicate) TO THE POOTHONJTARY OF CUMBERIlIND COUNI'Y Please list the following case: (Check one) (X ) for JURY trial at the next tenn of civil court. for trial without a jury. ---~------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) steuart D. MClain, and his wife, Jennifer: S. Mclain, ( X ) Civil Action - Law Appeal from Arbitration (other) ( Plaintiff) vs. Hying 9' Inc., t/d/b/a Flying J Travel Plaza The trial list will be called on October 10, 2006 Trials corrmence on November 6, 2006 (Defendant) Pretrials will be held on Oct. 18. 2006 (Briefs are due 5 days before pretrials.) vs. (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.01-2379 Civil H Indicate the attorney who will try case for the party who files this praecipe: Michael J. Navitsky, Esq., 2040 Li.nglestown Rd., ste_ 303, Harrisbu:r:g, PA 17110 Indicate trial counsel for other parties if known: Darid L. Cook, Esq,:, PJO. Box 31051, RoChester, NY 14603 - for Defendant This case is ready for trial. Signed: ( Print Narre: Date: Sept. 11, 2006 Attorney for: Plaintiffs , ,'~~,,-,~~,-, .~, I -~ ~ ", r,,' t'r t.., 'f', ." - . ~ ). STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CNIL ACTION - LAW v. : NO. 01-2379 Civil Term FLYING J INC. t/dIb/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law fIrm ofNavitsky, Olson & Wisneski LLP, do hereby certify that on this Ilo/day of September, 2006 served a true and correct copy of the Praecipe to List Case for Trial upon all counsel of record via postage prepaid first class United States mail addressed as follows: David 1. Cook, Esquire Nixon Peabody, LLP P.O. Box 31051 Rochester, NY 14603 Counsel for Defendant ~~fJ~ Jessie K. Walsh .:;~~ '1-; ',or - , , , !f~ , _,!1'~J!l -=" l..,lIl!tIT j .J,ra~lllliW_ _. ,..,~-~,~ ~".- ", . -,~ .". .~,. #bAJ '"""".'."'"""="."10 II r '''''nw I c,) c:::.. f'-..,) 'Ill ""'1I<I'lr"'l1I'i' ~. - . '" ~ ~l (I') n'~1 -::I () -n :::! l"'A.:n r.' ;;;9 <.I::-~') w CJ :2:.- :--~. " ~ r":; --:-,. ;~"' '~J' " b! :iJ ~, - """..4t~~S:'W'lW'{1''<''R'8~~i\'1'l'r.I~'-;ni'fr'~'''%':-nc:;'!l,,)'(<~~~~'~~~?~~~~""""~ _~~"" ~_,_,n: .!!liJ~~)~j ~.-~ ~ ,,~, - ,.,. STEWART D. McLAIN and JENNIFER S. McLAIN, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, CIVIL ACTION - LAW 01-2379 CIVIL FLYING J INC. t/dlb/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 19,2006, was Michael J. Navitsky, Esquire, attorney for the plaintiffs. Counsel for the defendant, Flying J, David 1. Cook, Esquire, and Terence 1. Robinson, Esquire, participated by telephone. A petition for the participation ofMr. Robinson pro hoc vice is pending. This case involves a slip and fall accident that took place on January 29,2000, at approximately 8:00 p.m. at the defendant's truck stop in Cumberland County. The plaintiff slipped and fell on "black ice" which had been created when piles of snow had melted and refrozen. Counsel for the plaintiff has objected to the testimony of maintenance manager Jack Baba, contending that he had not been identified as a witness until very recently, It appears, however, that Mr. Baba was mentioned as having been the maintenance manager in the deposition of Anthony Lucas, held on September 24,2001. Jury selection in this case will occur on November 6, 2006, The trial of the case will commence on November 9, 2006. The trial is not expected to last more than two days. October 19, 2006 -At , ~,>-~--~ .. -"_-;~7,"'i_"_':'"'~\_' ":',-~- ,,": .-":':~":7",:'~"-~1 . -'--~- . '1'-'/""'" '-"-'.:'--,1"" --'';1- 1 < ~_.~,-" . !. ,-1.. Michael], Navitsky, Esquire For the Plaintiffs David L. Cook, Esquire For the Defendants Court Administrator ," .. -', ""---~,,,,-,',- "', ,-~-._- ,c, - - '--_-'1 ;' ,'-" ,__ '_'-'1' . ,-,. ""1 - ~ I _ ?-,,, .0 ,.,c _ . . ~ ij :1 il 'i i'_ ~ --~,~ ~ -~ - ' , ilINVIYIA8NN3d Ij^lnrn "'.'\r"-..:.'G'^'n" tUJ',;l!u.., ',':',0,- ;'['}--11''11 V C I : II 14V Ol130 900l AlN10NOHIOl:icl 3Hi .:lO 30/::1:10-0311:1 ,.. _ ~_ r_" ,,~,,~lJ!II.I!(. ~~.~" , , ",,.," , - ~ - < -,~_~v""~__. _ ~ __00_ _iI "n::rnllf ;If"-, _ ~ ~ ~"":,J!,"1!llJISJ~,,,,_,.~ J~!Ji~~L'-c;),,\,4_! .~~~~"~~!f:':~~~M~,,'_.~_.-::_ _:',~_ h........>.. .. Jury Listfor Trial W4!ek Bel(inninl( November 6, 2006 -;'-,,- . 144 Jurors selected. Juror Numbers 1 to 144 selected. JUROR # NAME OCCUPATION 001 KIBLER, DONALD W. Consultant 002 HARTLINE, JAMES Cost Analyst 003 DLUZESKI, lEE C. laborer 004 DEIBLER, PAMELA K. learning Support Assistant 005 ELLIS, TIMOTHY J Marketing Manager 006 STAKEM, HOllY CTII 007 BARRETTE, MICHAEL Sales 008 RUTZ, DOUGLAS E. Unknown 009 JOHNSON, KAREN E. Custodian 010 EPPLEY, DAVID L Delivery Manager 011 BECK, RITA Teacher 012 FOX, EDWARD A. Retired 013 ROBINSON, MARIE Not Given 014 WISER, BRIAN Unknown 015 STOYER, DEBORAH L Sales Rep 016 HUTCHISON, JOHN Retired 017 BARBOUR, FRANCES C. Retired 018 CORNETT, DAVID M. Engineer Supervisor 019 NYE, JANICE D. Secretary 020 BRANTNER, JUDITH B. Supportive Service Coordinator 021 PllC, lESTER JOHN Pharmacy Tech 022 HINSON, ANGELITA T. Unknown 023 WISER, RAY E General Mech 024 SAMUEL, MOHAN Case Review Specialist 025 SAYLOR, WilLIAM T. IIi Corporate Tax Officer 026 GETZ, SUSAN Contract Specialist 027 FOX, PAUL Unknown 028 MIElO, KATHLEEN ANN Clerk 029 GARDNER, PAULA K. Medical Technologist 030 TURNAGE, DENNIS l Director 031 MillHOUSE, ANGELA Sales Clerk 032 BOWERMASTER, JAY Unknown 033 PINCI, JOSEPH A Unknown 034 SCHMICK, BRANDY E. LPN Charge Nurse 035 CADY, MARGARET B. Retired Tuesday, October 24, 2006 . Pagel of 4 -;~-'~.~="'" .. '"": I" r' (n_". .... JUROR # NAME OCCUPATION 036 HECKARD, DARLENE Admin Assistant 037 BOTTOMS, JERRY E. Unknown 038 BANGOUP, VIRGINIA L. Order Processor II 039 COY, CHRISTY H. Retired 040 HOLTZAPPLE, THOMAS Accounting Associate 041 GRUVER, lOIS E. Management Assistant 042 FRIEDMAN, ALVIN E. Owner 043 MALINAK. TIMOTHY A PA House of Reps 044 BRUNSKI, MARY Substitute Teacher 045 SHIRLEY, JAMES D. Unknown 046 ANTHONY, JENNIFER M. Secretary 047 FAIRCHilD, TAMMY L. Unknown 048 ROWE, LISA l YNN Elem Teacher 049 CRIDER, FRANCES Chargeback Investigator 050 NAilOR, BRUCE K JR Retired 051 DRAWBAUGH, WilLIAM B. Structural Engineer 052 WOOLUMS, MICHAEL P. IT Specialist 053 CALAMAN, SANDRA K Manager 054 MEALS, ROSEMARY Accounting Clerk/Phone Operator 055 YEAGLE, DONALD P. REV Pastor 056 HEETER, KATHRYN D. Product Line Manager 057 lUPFER, WARREN B. JR. Maintenance 058 MillER, SPENCER Retired 059 SNYDER, GUY C, Systems Analyst 060 NEELY, DORIS R. Homemaker 061 FERGUSON, JOAN A Partner 062 GROVE, JOHN Retired 063 HEFElFINGER, R. FRED Unknown 064 SCHMIDT, DELIA ANN M. Homemaker 065 WOLFE, WilLIAM Construction Manager 066 RAYMOND, MARIBETH Unknown 067 ENYEART, BRANDI Manager 068 BENDER, REBECCA A Dietary Clerk 069 CASSEL, ROBERT C., JR. Manager 070 CHATEAUVERT, JAMES J. Sign Crew 071 DIEHL, DARIN laborer 072 BENTLEY, CAREY REV. Unknown 073 SIPE, NANCY JANE laborer 074 GRENOBLE, ADA L. Admin Assistant 075 REED, MYLES M. Retired 076 BRITT, MICHAEL F. Vice President 077 WILBUR. VIRGINIA R. Admin Assistant 078 Hill, WANDA MAC Coordinator Tuesday, October 24, 2006 Page2of4 I~\\.~im'~(' --' _-~ -I '1"'- rr. "elf . .-b' ~ JUROR # NANlE OCCUPATION 079 WOLFE, SHARI Letter Carrier 080 MALICK, MARY A. Retired 081 MINER, ELLEN Retired 082 SHENK, LINDA K Retired 083 CENTOLA, MARY Librarian 084 JONES, VERA F, Homemaker 085 KOHLHAAS, DEREK C. UndelWriter 086 STELTZER, JACK LEROY Retired 087 RANGER,DARLENE Medical Assistant 088 ZORKIC, MARIJA Unknown 089 CONFAIR, EVELYN M Retired 090 AMSLEY, LINDA D. Director 091 MIKOLATCZAK, GREGORY V. Sales Manager 092 WEVODAU, MELINDA R Unknown 093 GRAINDA, ROSE Retired 094 ROSKO, JEAN T. Clerk 095 RUNK, STEVEN Programmer 096 HOUCK, WENDY S. Support Specialist 097 HOLLINGER, SAMUEL Lab Tech 098 SHINDEL, JACK Unknown 099 KEENE, RICHARD Unknown 100 ABRAMS, BETH Not Given 101 CAMPBELL, KARLENE E Retired 102 ANDERSON, KENNETH C. Retired 103 DOWNEY, DENNIS F. Project Manager 104 LAUDERBAUGH, DOROTHY Retired 105 WILLlAMSON,DENISEB. Paralegal 106 NEWCOMER, JESSE CARL V Not Given 107 MACK, CHERYL A. Preschool Teacher 108 OSBORN, TRACIE E RN 109 KELSO, SHARON M. Unknown 11.0 TITUS, MITCHELL A. Unknown 111 RYNARD, KATHERINE Rental Agent 112 SCHERTZER, JEFF T. Unknown 113 GIBNEY, RANDY K. Credit Analyst 114 TELFORD, ROBERT Unknown 115 HURLEY, FAYE Retired 116 MARTINEZ, JOSEPHINE A. Filing Clerk 117 METZGER, GREGORY B. Not Given 118 AMON, BRADLEY SCOTT Battery Specialist 119 JUMPER, ERMA F. Unknown 120 HARDER, CLAIR EUGENE Unknown 121 ANDERSON, MICHAEL R Driver Tuesday, October 24, 2006 Page 3 of4 ~;;W~WI!"""""~-<r""""'" -. ~ JUROR # NAME OCCUPATION 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 YOUNG, BRENDA M. BRUENING, MARK B. PANTALONI, JOHN L. CUBBAGE. MATTHEW F. KERN, DONALD G. DIMELER, DAVID L. BANJAK, CAROLYN ROBINSON, TRACEY LASKOWSKI, XENIA LONG, TIMOTHY S. ROYER, MARIAN BRITCHER, JOHN C. JR. WARD, JACQUELINE M. HOOVER, KAY L HODGE, MATTHEW T. BAIR, ROBERT W. HANS, PETER E. NELSON, DEBRA A LEBO, LORA J. SOUDERS, LISA M. KWON, E. HOON WALKER(VECERO), ROSEMARY D. OCAMB, JANICE End of Jury List, 144 Jurors selected. Tuesday, October 24, 2006 ',,,,,,Ji'ljl'f"""""''''-'''''~'~" 1-. ,. ~f~T' > i Retired Regional Manager Environmental Specialist Admin Programmer Analyst BPO Teacher's Aide Unknown Data Entry/Cashier Unknown Retired Store Manager General Merchandise Associate Finance Admin Unknown Unknown Parole Agent Admin Assistant Unknown Unknown Shipping Associate Retired Provider Automation Consultant Page 4 0[4 ~, CASE NO.: :5\--..<>-,,:1. It", :D. fl1c.LGtl" VS e.+ t\...l OC OJ-"37(J D KET NO.: t:'--I . """-''''''''. "'''-','''~ ....". ,"'-"" ...J"f9J.#'.,....N~~ ,...,..,_".:,"l'.:'.,,,.,.,.,.-" l 23 WISER, RAY E Z 13 3'ft)'iER, DHlOR. '\If L. , 25 SAYLOR, WILLIAM.T,ill J -:r- ~ G4.J?n:r>wR, J?y'~U"..../'" K. 5 31 MILLHOUSE, ANGELA O:!? ___11 IH::::::}:, RFFf. 7 26 GETZ,SUSAN 8 14 vVi51!R, t5KlAN -9- r~ pJT r. f.lil~TIlR JOHN 1tr- 3~ cer:, CI IRISTI'-H. Ii 20 BRANTNER, JUDITH B. 1: % T-TJ:i'FVARP, DARLENE :J 10 EPPLEY, DAVID L. . .+4- 17 B/...~OT W, FD A ~Tn;s c. 15 19 NYE, JANICE n. 16 28 MIELO, KATHLEEN ANN i7 6 STAKEM, HOLLY 18 18 CORNETT, DAVID M. .., i9 2 HARTLINE, JAMES ,W 3g B.A.NeQTT]?, '.'mClJ>J:!tt" 21 30 TURNAGE, DENNIS L 22 9 JOHNSON, KAREN E'. -;1: 1 IEI'ELER, DG!<l*LB W. /ifJ:"r-_< .f:4- ~ S~^'}.frn::::L, IVlvnAN .....,.;- $.- JmBI~J<:nN. MARIe """",, 2.6- ::\4 ~~c:~ANDYE. ~ 517 -. ...31 ROWRRMA&1'ER;i:'\ Y 28 ~ Dt.TJ6ESIG:;LEE-e. ~K -::~ n 5 ---'BbU~, TIMO~J Monday, November 06, 2006 rJ!i<lg.=OerWi':;;;th~sia:ff ..J# COURTROOM NO.: 8.-"- FI)'l."& -r. +/d./J,)tL Flyl,,! 7rTI'"-,,d .:p(a.za. DATE: 11-0'" - DC. ,_"",_.",'.".""M'""'__'" ...,--....-,........"..,-'''".". Random No. -1962141726 . 1627<;36344 -1160247072 4Q7-2~a~98: -1037189251 ...:I1l3q'7~g2S1 -940388511 88962598:1- s8S'914875 566~28738 - -555640940 -:?'S5;l2811eg.. -197956804 -1~ -93139777 -12609010 73808350 145753206 175205042 <2t;3~H79& 706119404 1064673287 1'~?g2Wg1 1S61€7~1.ge.- 16:3287346& 1666450931 ;I.;'~ ~bU'lb3323 afl92<1<11%8 2113756401 Page 1 of! 7.00 (Civ) '- OWNER OF LAND (DUTY OF CARE-GENERALLY) PLAINTIFFS' POINTS FOR CHARGE NO.1 -~--- The standard or level of care owed by an owner of land to a person who entered the land depends on whether the person who entered was an invitee, a licensee, or a trespasser. ? 2 ~:~- ~ ' "', ..."" ""? . ~ .~ H ! 1 . >:r T-' PLAINTIFFS' POINTS FOR CHARGE NO.2 7.01A (Civ) OWNER OF LAND (INVITEE, PUBLIC INVITEE, AND BUSINESS VISITOR DEFINED) An invitee can be a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the owner of the land. C2\ ~))"'~ "~ \ cr- 3 '-"kl~ -'j-. I " ~ -I 1,'1 ,< I -r- ~: PLAINTIFFS' POINTS FOR CHARGE NO.3 7.02A (Civ) OWNER OF LAND (DUTY OF CARE OWED TO INVITEES GENERALLY) ;::;::n owner of land is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An owner of land is also required to inspect the premises and to discover dangerous conditions. An owner of land is liable for harm caused to invitees by a condition on the land if: 1. the owner knows or by using reasonable care would discover the condition, and should realize that it inyolyes an unreasonable risk of harm, and 2. the owner should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and 3. the owner fails to use reasonable care to protect the invitees against the danger. An owner of land is liable to invitees for any harm that the owner should have anticipated, regardless of whether the danger is known or ObViOUS.J 4 """~.." ~ -F"": , 11 ,..[ 'I - PLAINTIFFS' POINTS FOR CHARGE NO.4 7.03 (Civ) OWNER'S OF CARE (DEF COND1T~~ IN ABUTTING PUBLIC S WALK} V H One in possession of land is required to maintai the abutting public sidewalks in a reasonably safe condition to prevent or eliminate any hazardous or unsafe condition that, upon all the circumstances involved, would be an unreasonable risk of harm to pedestrians properly using walks. 5 ","~"~ - ~'-'''' Co ,p ,_,~__= ~l-T , -, r - 'I - PLAINTIFFS' POINTS FOR CHARGE NO.5 7.10 (Civ) OF AND CARE OTHERS OWNER OF LAND (DUTY TO ADJOINING LAND OWNf~ OUTSIDE OF THE PROPERTY) vv \ 'H- One who owns land in a developed or residential area has a duty to make reasonable inspections of the property, and to correct any conditions unreasonably dangerous to others that could be discovered by the use of reasonable care and that could be made reasonably safe by repair or otherwise. Therefore, if you find that the location of the defendant's property was in a developed or residential area, and that the plaintiff was caused harm by a dangerous condition on the defendant's property, and that the defendant by using reasonable care could haye discovered the defect and the risk arising from it and could have made it reasonably safe by repair or otherwise, you may find the defendant liable for the resulting damage. 6 '~"",7i',,,,~"..',,,,, I' , ,I _'11 PLAINTIFFS' POINTS FOR CHARGE NO.6 OWNER OF LAND (DUTY OF CARE) Where a specific, localized, isolated patch of ice exists, it is comparatively easy for a property owner to take the necessary steps to alleviate the condition, while at the same time considerably more difficult for the pedestrian to ayoid it even exercising the utmost care. Williams v. Shultz, 429 Pa. 429, 240 A.2d 812 (Pa. 1968). 9; 7 ~'f'\ c" "', I , 1"~ ~ I ~, ] ;--, "- 'l{;!" _ PLAINTIFFS' POINTS FOR CHARGE NO.7 3.00 (Civ) ISSUES IN THE CASE The plaintiff claims he was injured by the negligent conduct of the defendant. The plaintiff has the burden of proving his claims. The issues for you to decide, in accordance with the law as I give it to you are: 1. Was the defendant negligent? 2. Was the defendant's conduct a factual cause in bringing about injury to the plaintiff? ~/ 8 ~ 1"! -,- :'""1 "-11' "1" - ~ ~" PLAINTIFFS' POINTS FOR CHARGE NO.8 3.01 (Civ) NEGLIGENCE-DEFINITION The legal term "negligence," otherwise known as carelessness, is the absence of ordinary care that a reasonably prudent person would use in the circumstances presented here. Negligent conduct may consist either of an act or a failure to act when there is a duty to do so. In other words, negligence is the failure to do something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. v 9 ,j"f'i~'1"""- " ~ ~ , ~1 " :' , I' II PLAINTIFFS' POINTS FOR CHARGE NO.9 3.15 (Civ) FACTUAL CAUSE The plaintiff must prove to you that the defendant's conduct caused the plaintiff s damages. This is referred to as "factual cause." The question is: "Was the defendant's negligent conduct a factual callse in bringing about the plaintiff's damages?" Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred. In order for conduct of a party to be a factual cause, the conduct must not be fanciful or imaginary, but must have played a real role in causing the injury. Therefore, in determining factual cause, you must decide whether the negligent conduct of the defendant was more than an insignificant factor in bringing about any harm to the plaintiff. Under Pennsylvania law, conduct can be found to be a contributing factor if the action or omission alleged to have caused the harm was an actual, real factor, not a negligible, imaginary, or fanciful factor, or a factor having no connection or only an insignificant connection with the injury. However, factual cause does not mean it is the only, primary, or even the most important factor in causing the injury. A cause may be found to be a factual cause as long as it contributes to the injury in a way that is not minimal or insignificant. To be a contributing factor, the defendant's conduct need not be the only factor. The fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as his own negligence is a factual cause of the illJury. Remember, a factual cause is an actual, real factor, although the result may be unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the injury. Although a factual cause cannot be minimal or insignificant with regard to the injury, it can be relatively minor in relation to other factors and need not be quantified as being either considerable or large. C/.. 10 ;;J;:.""..,,- " ,"1',,--7 1-' -". I-I . ,l PLAINTIFFS' POINTS FOR CHARGE NO. 10 6.00 (Civ) DAMAGES If you find that the defendant is liable to the plaintiff, you must then fmd an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical and financial injury he has sustained as a result of the occurrence. The amount you award today must compensate the plaintiff completely for damage sustained in the past, as well as damage the plaintiff will sustain in the future. L--. 11 -",~" ~ < . - .~ I ~- . I -.~- I' , PLAINTIFFS' POINTS FOR CHARGE NO. 11 6.03 (Civ) PREEXISTING CONDITION OR INJURY l Damages should be awarded for all injuries caused by the accident even if: I. the injuries caused by the accident were more severe than could have been foreseen because ofthe plaintiff's prior physical condition; or 2. a preexisting medical condition was aggravated by the accident. If you find that the plaintiff did have a preexisting condition that was aggravated by the defendant's negligence, the defendant is responsible for any aggrayation caused by the accident. I remind you that the defendant can be held responsible only for those injuries or the aggravation of a prior injury or condition that you find was factually caused by the accident. 12 iJ'~"Iii~~ 1-" 1-1 r l' PLAINTIFFS' POINTS FOR CHARGE NO. 12 6.05 (Civ) OTHER CONTRIBUTING CAUSES \ The plaintiff is entitled to recover damages for all injuries that the defendant's negligence was a factual cause in producing. The defendant's negligence need not be the sole cause of the injuries; other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of his negligence. Even though prior conditions or concurrent causes may have contributed to an injury, if the defendant's negligence was a factual cause in producing the injury, the defendant is liable for the full amount of damages sustained, without any apportionment or diminution for the other conditions or causes. 13 -" ~ , 1 F . I .",. ~ I' PLAINTIFFS' POINTS FOR CHARGE NO. 13 6.07 (Civ) PAST LOST EARNINGS AND LOST EARNINGS CAPACITY The plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he could have earned but for the harm and less any sum he actually earned in any employment. It is not essential to recovery that the plaintiff should have been employed at the time of the accident, but his opportunities for employment are relevant in determining the amount he could have earned. w+- , 14 ~;, ~ ,,,~ .., I '-",- -I [I ""i[-, PLAINTIFFS' POINTS FOR CHARGE NO. 14 6.09 (Civ) PAST AND FUTURE-NONECONOMIC lLOSS The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation~ (3) loss of ability to enjoy the pleasures oflife; and (4) . . e. -,~, . ." .. (;,/.Q~ - ~;-""""""""" ,.u_= :._ __"'" "",)//\~,l(_"." - , J ,- -- First, the plaintiffmusthave experienced pain and suffering in order to be able to claim damage awards for past noneconomic loss and for future noneconomic loss. You are instructed that the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find he has endured from the time of the injury until today and that the plaintiff is also entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress you find he will endure in the future as a result of his injuries. Second, the plaintiff must have experienced embarrassment and humiliation in order to claim noneconomic loss. The plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe he has endured and will continue to endure in the future as a result of his injuries. Third, the plaintiff must suffer loss of enjoyment of life. The plaintiff is entitled to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures oflife in the future as a result of his injuries. Fourth, there must be disfigurement. The disfigurement that the plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement he has suffered from the time of the injury to the present and that he will continue to suffer during the future duration of his life. ill considering the plaintiff's claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish that the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in the case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff. 15 j';;'''',,,,,.,~,",!%,,,,,*>!!I''/!01__ "._~~ ^l ~ ~- ~I 1'1 PLAINTIFFS' POINTS FOR CHARGE NO. 15 6.10 (Civ) LOSS OF CONSORTIUM The plaintiff's spouse is entitled to be compensated for the past, present, and future loss of the injured party's services to her and the past, present, and future loss of companionship of her spouse. Consortium claims are losses arising out of the marital relationship. Consortium is the marital fellowship of a husband and a wife and includes the company, society, cooperation, affection, and aid of the other in the marital relationship. Such claims include a loss of support, comfort, and assistance, the loss of association, and companionship, and the loss of ability to engage in sexual relations. C~(~ 16 ~y.~nff II ,11 ~ _~ ,r-_,' 1-'--1 'C' "I', PLAINTIFFS' POINTS FOR CHARGE NO. 16 6.12 (Civ) INCIDENTAL COSTS ill addition to the costs of medical care, the plaintiff is entitled to be compensated for all other incidental costs incurred as a result of the accident, or that you find will be incurred in the future. These expenses may include: (1) Expenses that the Plaintiff incurred for the retention of additional help in the business; (2) Cost of transportation, food, lodging and other incidental expenses incurred in seeking medical treatment, such as out-of-pocket expenses; (3) llterest on loans to pay bills; (4) Transportation to give comfort to the injured Plaintiff; (5) Household help during the period of convalescence; (6) Cost of telephone calls, food, lodging and transportation for the accompanying spouse and travel related expenses; (7) And such miscellaneous expenses as Plaintiffs were permitted to offer into evidence during this trial. 17 <0li~ ", ~'I ~ I~-'- .-" . -I ~, r I PLAINTIFFS' POINTS FOR CHARGE NO. 17 6.21 (Civ) DAMAGES-LIFE EXPECTANCY If you fmd that the plaintiff's injuries will continue beyond today, you must determine the life expectancy of the plaintiff. According to statistics compiled by the United States Department of Health and Human Services, the average life expectancy of all persons of the plaintiffs age at the time of accident, sex, and race was 32 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that the plaintiff would have lived longer or less than the average individual in his category. ill reaching this decision, you are to consider the plaintiff s health prior to the accident, his manner of living, his personal habits, and other factors that may have affected the duration of his life. 18 ,,,,,,,~- . I'" I- ',,, [,1 ,,- -~, - 2- .(l 0\ Vl 1::> Instruction 1 Burden of Proof '---. Pa. SSJI (Civ) 5.50 (2005) In civil cases such as this one, the plaintiff has the burden of proving those contentions that entitle him to relief. When a party has the burden of proof on a particular issue, the party's contention on that issue must be established by a preponderance of the evidence. The evidence establishes a contention by a preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the plaintiff; onto the other, place all of the evidence favorable to the defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly 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 defendant, or are equally balanced, your verdict must be for the defendant. In this case, the plaintiff has the burden of proving the following propositions: (1) that the defendant failed to exercise reasonable care in removing snow and ice from its facility, and (2) that the defendant's failure to exercise reasonable care caused the plaintiffs' injuries. If, after considering all of the evidence, you feel persuaded that these propositions are more probably true than not true, your verdict must be for the plaintiff. Otherwise, your verdict should be for the defendant. c.'-""'" 1017195\.1 '. ~, ~ _ ~-- ,.,.~ J ,"""..1 _' "' r._. ". - 3 - Instruction 2 Direct and Circumstantial Evidence Pa. SSJI (Civ) 5.07 (2005) Evidence may either be direct evidence or circumstantial evidence. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw, heard, or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. You may decide the case solely based on circumstantial evidence. ct- 10171951.1 ;:~:n_~ . - '"1.." _, T , .~. -4- Instruction 3 Issues in the Case Pa. SSJI (Civ) 3.00 (2005) The plaintiff claims that he was harmed by the negligent conduct of the defendant. The plaintiff has the burden of proving his claims. The defendant denies the plaintiff's claims and asserts that the plaintiff was negligent and the plaintiffs own negligence was the cause of his injuries. The defendant has the burden of proving that the plaintiff was negligent. The issues for you to decide, in accordance with the law as I give it to you are: 1. Was the defendant negligent? 2. Did the defendant's negligent conduct cause his injuries? 3. Was the plaintiff negligent? c 1,..-' 4. Did the plaintiffs negligent conduct cause the defendants' injuries? 10171951.1 - 5 - Instruction 4 N egligence---,Definition Pa. SSJI (Civ) 3.01 (2005) The legal term "negligence," otherwise known as carelessness, is the absenc~ of ordinary care that a reasonably prudent person would use in the circumstances presented here. Negligent conduct may consist either of an act or a failure to act when there is a duty to do so. In other words, negligence is the failure to do something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. ~.. C-. 10171951.l '1:'1", ,.. ~ . ,-" >1" ., .-'.-,1 ,. , - 6- Instruction 5 Owner of Land-Duty of Care Owed to Invitee Generally Pa. SSJI 7.02A (2005) An owner ofland is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An owner of land is also required to inspect the premises and to discover dangerous conditions. An owner of land is liable for harm caused to invitees by a condition on the land if: 1. The owner knows or by using reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm, and 2. The owner should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and 3. The owner fails to use reasonable care to protect the invitees against the danger. An owner ofland is liable to invitees for any har~~he owner should have anticipated, regardless of whether the danger is known or obvious While an owner of land is required to exercise reasonable care in removing snow and ice from his premises, he or she is not required to keep the premises completely free of snow and ice at all times. The standard is the exercise of reasonable care. Otherwise, to "require that one's walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions of this hemisphere." Morin v. Travelers Rest Motel. Inc., 704 A.2d 1085, 1087 (Quoting Wentz v. Pennswood Apartments, 359 Pa. Super. 1,5 (1986)). . ~ ~)~ 10171951.1 'r "~ < '"~_ ~=, 0' . I -!' , .~ ,,- ,~ - , -7- Instruction 6 Contributory Negligence Pa. SSJI (Civ) 3.21 (2005) If you find for the plaintiff, you must then determine whether the plaintiff was contributorily negligent. Contributory negligence is negligence on the part of a plaintiff that is a cause of the plaintiffs injury. The burden is not on the plaintiff to prove his 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 the circumstances present, failed to use reasonable care for his own protection. Even if you find that the plaintiff was negligent, you must also determine whether the defendant has proven that the plaintiffs conduct was a cause in bringing about the plaintiffs injury. If the defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made. C}~~'" 10171951.1 ';;-~ '" ~"""'" ' ~I ~_d' ',I ",--, ., .1. , -' '-'" -) , 1 ,. --,. - 8 - Instruction 7 Damages Pa. SSJI 6.00 (2005) If you find that the defendant is liable to the plaintiff, you must then find an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical and financial injury he has sustained as a result of the occurrence. The amount you award today must compensate the plaintiff completely for damage sustained in the past, as well as damage the plaintiff will sustain in the future. ~. 10171951.1 ,_'51\, ._ ,"'-,. _"I, ~I--- , ~ ^ , 'r ' ,., , d, _ ,~_ --, - 9 - Instruction 8 Loss of Consortium Pa. SJJI 6.10 (2005) The plaintiffs spouse is entitled to be compensated for the past, present, and future loss of the injured party's services to her and the past, present, and future loss of companionship of her spouse. Consortium claims are losses arising out of the marital relationship. Consortium is the marital fellowship of a husband and a wife and includes the company, society, cooperation, affection, and aid of the other in the marital relationship. Such claims include a loss of support, comfort, and assistance, the loss of association, and companionship, and the loss of ability to engage in sexual relations. 1017195l.I ~,:.. " "., -j-. '. ],.0,_, " _,I' ,. '"IT" ,~ ,. , -~,. ," >I_d .To , .,...,..,~ ~ , - 10 - Instruction 9 Verdict Directing Summary Pa. SSJI (Civ) 3.23 (2005) You will now retire to consider all of the evidence received in this trial in light of the various factors I have presented to you and apply the law as I have given it to the facts as found by you. If you find that the defendant was negligent, and that the defendant's conduct was a factual cause of the harm to the plaintiff, your verdict must be in favor of the plaintiff and against the defendant. However, if you find that the plaintiff was contributorily negligent, and that his negligence was a factual cause of his own injury, and that his negligence was greater than that of the defendant, your verdict must be for the defendant. If you find that the defendant was not negligent, or that his negligence was not a factual cause in bringing about harm to the plaintiff, your verdict must be for the defendant. If your verdict is in favor of the plaintiff, you must then determine what damage the plaintiff was and will be caused to suffer by reason of the defendant's negligence and return a verdict for the plaintiff in that amount ~~ 10171951.1 't,1_~, ~ _~ ,_ " ~, _ I' _ ,"L_~" _"I _ ~^ ~ ,--' '" STEWART D. MCLAIN, and his wife, JENNIFER S. MCLAIN, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW V. FLYING J, INC., tld/b/a FLYING J TRAVEL PLAZA, DEFENDANT 01-2379 CIVIL TERM VERDICT QUESTION 1: Do you find that defendant was negligent? YES NO ~ If you answer "Yes," proceed to Question 2. If you answer "No," plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. QUESTION 2: Was the negligence of defendant a factual cause in bringing about harm to plaintiff? YES NO If you answer "Yes," proceed to Question 3. If you answer "No," plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. I"'r "~,'-~","-I>~:-'-"~-" !-->"'" "',- ~ n_ -1:'!' 'It 'I '" <, Q.UESTION 3: Was plaintiff contributorily negligent? YES NO If you answer "No," proceed to Question 6. If you answer "Yes," proceed to Question 4. Q.UESTION 4: Was the contributory negligence a factual cause in bringing about harm to plaintiff? YES NO If you answer "No," proceed to Question 6. If you answer "Yes," proceed to Question 5. jlUESTION 5: If you have answered "Yes" to questions 1, 2, 3, and 4, then answer the following: Taking the combined causal negligence that was a factual cause in bringing about plaintiff's harm as 100 percent, what percentage of that causal negligence is attributable to the defendant, and what percentage was attributable to plaintiff? PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO DEFENDANT % PERCENTAGE OF CAUSAL NEGLIGENCE ATTRIBUTABLE TO PLAINTIFF % TOTAL 100% -.",~",:,,"-:-- I _.,--,_." -"1 ' _Cl-~_-?":'r~~i-~-"""--"-"y,,,:,-: -',"7,_--,;_ ><;rl '.t",-"1_' ",t'.- 0,'1 "~ - ~- ",. - ~ ---," If you have found plaintiffs percentage of negligence to be greater than 50 percent, plaintiff cannot recover damages from defendant, and you should not answer any further questions and should return to the courtroom. If you have found plaintiff's percentage of causal negligence to be 50 percent or less, proceed to Question 6. QUESTION 6: State the amount of compensatory damages you find plaintiff, Stewart D. McLain sustained as a result of the causal negligence of defendant without reduction for the percentage of causal negligence, if any, that you have attributed to plaintiff. MEDICAL EXPENSES S INCIDENTAL EXPENSES S LOST INCOME S NON-ECONOMIC DAMAGES S TOTAL $ QUESTION 7: If you have awarded compensatory damages to plaintiff in Question 6, state the total amount of damages for loss of consortium that you find Jennifer S. McLain sustained as a result of the causal negligence of defendant. TOTAL S .~"" { (Date/ I f:1J o fer """'1 - ,~ "\. " ;_"9_ --v,_r, - M_'I"'_ ." .,., 11, ;! . . 'J CASE NO.: SI-..,."a.,J. I~ D.I''1c.La.I" VS e.+ tLl DOCKET NO.: o 1- d-.3 7 q 23 WISER, RAY E ~ IS 3fOYER, DEBOK^.H L. ~ 3 25 SAYLOR, WILLIAMT. III -.r- ~ GtJ.'Rn1\.rl~I~, P..........UU\..K. 5 31 MILLHOUSE, ANGELA ~ 11 1m:::):, PM}. 7 26 GETZ,$USAN 8 14 vv15CR, Bf<lr\:N r. lID C. \'"lii:iMliR JOID-J -9- 2,1... 11'l-- 3~ Ce,'" OIRlCTY H. !1 20 BRANTNER, JUDITH B. ~2 >~ l-fI:1rTC~li'D, V.^RLENE 13 10 EPPLEY, DAVID L. . .H- 17 BlJ?gOT~, FF A ~TrIi'S C. [5 19 NYE, JANICE D.. 16 28 MIELO, KATIfLEEN ANN i7 6 STAKEM,HOLLY i 8 18 CORNETT, DAVID M. ., \9 2 HARTLINE, JAMES -- ::;iJ 28 I!i\l>lcorw, YIRCINltt" 21 30 TURNAGE, DENNIS L 22 9 JOHNSON, KAREN E: ~. 1 RmLER, DGJJ~\LD IN. ., /'fl:<>v"'< ~{j .zL S~^.J'.fUEL, IVKJHAN ~.' <:i2 "RQBn\F"~J. M.~ ..c,o .:2b-- ~4 ~1.1Ig<~ANDY E. Y .- ..51 s.?J ROWRRMASfER;i1\ Y 2' K. -......:]f\ 5 ELU>>, TIM~J ...-" Monday, November 06, 2006 /' f::::':fu:ag~::'2:,:tIerkjProth ~,Tipst3.ff.,..",;, J COURTROOM NO.: (J.,.... Fly! ^& -r: fld./i.!a.. flyl^'{ 1'. Tr.....d .:pf~za.. DATE: 11-0(" -DC, ~_':l!1dom _1'! ~~ _'..._. -1962141726 163702G311 -1160247072 IQ7.:1::!H985 -1037189251 ..:j1)3..~7~9851 -940388511 88'362:39&1- !j8grHB75 -05669187:)8 -555640940 -:!5592868S- -197956804 -1~ -93139777 -12609010 73808350 145753206 175205042 '2535H700 706119404 1064673287 .:;L1~2n1981 15Wi7:HGa- 16:)287346&- 1666450931 17'8~ .'rl:sou'J,03323 ~~~1%8 Zl43736401 Page 1 of! '- Jury Panel for Courtroom No. Juror II '!?:j,- 2 3 4 ~ 6 9 10 'F -'E ,.14 ~ 117 ~ '15" .18 "19 20 17 ~1 23 A ~14 25 26 28 A 29 30 31 n q ~: 38 \? go Name IaBLER,D6NALDW. -I? jJ1Afi.~ HARTLINE, JAMES nT TThEs;KI, LEi! C. ~mbEK, F ruvl.t.LA ~. ELU:5, 'ffMCl'fIIYJ STAKEM,HOLLY JOHNSON, KAREN E. EPPLEY, DAVID L D~ ?r, "R7~^.. R9PlI'TC"'l15f,lVJ.J-ll<IE '\\~ER, IIRIAW CrEta.!,-, Uh1::SVl.'<..t-U"1 L. Df\.KtsUU1<', .l:'RANCEt:l c. CORNEIT, DAVID M. NYE, JANICE D. BRANTNER, JUDITII B- PILC, U:GfER Jor IN - f( ",-w'21- WISER, RAY E 3~Ivr"lJtiL, J.V1U.H.1\l'\l SAYLOR, WILUAMT. ill GETZ, SUSAN MIELO, KATHLEEN ANN Ct...RDtJER, PJ....,:U'"~^... K. TIJRNAGE, DENNIS L MILLHOUSE, ANGELA 130~~~R1\.IAgfER., JliY i~~~~~,D~~~~~'J=)ir~~~ -;)ll,\.~!COuP, V'lRGlNlA.~;t COY, 0 IP.ROTY II. - t? MWl't(' 30 'Total number of jurors going to the courtroom: Monday, November 06, 2006 / ifC1~Iii\L)i.tty.:c. AttY2 ! a a.. Page 1 ofl , .. .. 'Ii STEW ART D. McLAIN and JENNIFER S. McLAIN, his wife, Plaintiffs AlED-OFFICE OF iHE PROTHONOTARY 200& OCT 20 AM 1\: 13 IN THE <OOM!38RQlf.I(J~ PLEAS OF CUMBERLAfilID1~tJ'mt~, PENNSYLVANIA vs. CIVIL ACTION - LAW 01-2379 CIVIL FLYING J INC. t1d/b/a FLYING J TRAVEL PLAZA, Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 19,2006, was Michael J. Navitsky, Esquire, attorney for the plaintiffs. Counsel for the defendant, Flying J, David 1. Cook, Esquire, and Terence 1. Robinson, Esquire, participated by telephone. A petition for the participation ofMr. Robinson pro hoc vice is pending. This case involves a slip and fall accident that took place on January 29, 2000, at approximately 8:00 p.m. at the defendant's truck stop in Cumberland County. The plaintiff slipped and fell on "black ice" which had been created when piles of snow had melted and refrozen. Counsel for the plaintiff has objected to the testimony of maintenance manager Jack Baba, contending that he had not been identified as a witness until very recently. It appears, however, that Mr. Baba was mentioned as having been the maintenance manager in the deposition of Anthony Lucas, held on September 24, 200!. Jury selection in this case will occur on November 6, 2006. The trial of the case will commence on November 9, 2006. The trial is not expected to last more than two days. October 19,2006 -At "."''''''''I'"""",,,'''W '~~" 1- ,. I-I !'TI":'I-, ' - '".", / .. ...., " '-'"'1"r""""''''''''''' - , Michael J. Navitsky, Esquire For the Plaintiffs David 1. Cook, Esquire F or the Defendants Court Administrator Tl 1':1 I I II, ~J' ~"_'_ J STEWART D. McLAIN, and his wife JENNIFER S. McLAIN, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION - LAW [OJI(JINAL v. : NO. 01-2379 Civil Term FLYING J INC. tJdIb/a FLYING J TRAVEL PLAZA, Defendants : JURY TRIAL DEMANDED PLAINTIFFS' PROPOSED POINTS FOR CHARGE AND NOW, into Court, through undersigned counsel comes the Plaintiffs, Stewart D. McLain and Jennifer S. McLain, and respectfully request that the Court instruct the Jury with the proposed Points for Charge, along with the Court's standard instructions in a civil case involving negligence and personal injury damages. Respectfully submitted, Date: (II &( 0[, :J ;";-" "1:- - ,~,--=~ , - t. " -''1':-:: "-,- ~," :''1-- r :-!.-~.-:_J, ::' ~, ,.",,,,g ,,'V.-~ __,~_~, ,~.,,_,"_" c~ -~ ,'" - . " . . , , PLAINTIFFS' POINTS FOR CHARGE NO.1 7.00 (Civ) OWNER OF LAND (DUTY OF CARE-GENERALLY) The standard or level of care owed by an owner of land to a person who entered the land depends on whether the person who entered was an invitee, a licensee, or a trespasser. 2 '~>j~<"!:!,,J~_ ~":"'-"~,:'-~,,'c'<'~"l''''-:'',-", ,-" ._, .-',<7,,1- -"""~<W'I_~, ,_",",""'-0':' ,~'~,,~--,'-,'~_"0'!"F,,~_,__I~_' r--v- .. .,>, . .; , . , , I PLAINTIFFS' POINTS FOR CHARGE NO.2 7.01A (Civ) OWNER OF LAND (INVITEE, PUBLIC INVITEE, AND BUSINESS VISITOR DEFINED) An invitee can be a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the owner of the land. 3 ~;'w~~, '-F~' '~:"3t,', ';;;';o'~~if~"~~_-c"~" . ,t";;:1'~,,,,-_~, '0 ,-"_~--~"':'l" -, ".<'."_' -:I"'~",;E"'"" '" - >Co ,~_ '-"-c"!-",,- c""""_"'"' H"',"_'.. "" C.'_' ' _..< ~ - -" . , , , L PLAINTIFFS' POINTS FOR CHARGE NO.3 OWNER OF LAN]) (DUTY OF CARE OWED TO INVITEES GENERALLY) An owner of land is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An owner of land is also required to inspect the premises and to discover dangerous conditions. An owner of land is liable for harm caused to invitees by a condition on the land if: 1. the owner knows or by using reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm, and 7.02A (Civ) 2. the owner should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and 3. the owner fails to use reasonable care to protect the invitees against the danger. An owner of land is liable to invitees for any harm that the owner should have anticipated, regardless of whether the danger is known or obvious. 4 '~:':'::~'~'1" -~ '-,', -~~";':'''':\:C''_~)_"~';'~!''''':';~ ,;'1-":'-."",'~' ",,:-,~-,_, :,:oC",_I~::':"__:;_r:-f';~_'I<;_;~___,'";~,,,,,_,:, ,,~':,-,~,--,,-,::-,"-'I"~" ,~'f:- "1 ",,--0 . ""_ ,~ ..~~ ~_,_. ""_"-"'.'_f'''' ",_,._ <... , _, ._" r , , . , ' .. .J PLAINTIFFS' POINTS FOR CHARGE NO.4 7.03 (Civ) OWNER'S DUTY OF CARE (DEFECT OR UNSAFE CONDITION IN ABUTTING PUBLIC SIDEWALK) One in possession of land is required to maintain the abutting public sidewalks in a reasonably safe condition to prevent or eliminate any hazardous or unsafe condition that, upon all the circumstances involved, would be an unreasonable risk of harm to pedestrians properly using walks. 5 ,~?',_:--I'_~.. '-'. >-'!'1:,<'-~"~-"",;,~"'"q'+,:'~,,,,~,,,;,_,;- :''>-" .'L ,",- ~"'k",,:,- 'J. ~"'"'-1"'",,,,,~,,~,_,"l,_" -"oF'_"" . rn_.,.,_. ,,,' m_~,_ N_ A_",___",=~",.,,^__~,. _~ , . . , ' . PLAINTIFFS' POINTS FOR CHARGE NO.5 7.10 (Civ) OWNER OF LAND TO ADJOINING LAND OUTSIDE OF THE PROPERTY) (DUTY OWNER, OF AND CARE OTHERS One who owns land in a developed or residential area has a duty to make reasonable inspections of the property, and to correct any conditions unreasonably dangerous to others that could be discovered by the use of reasonable care and that could be made reasonably safe by repair or otherwise. Therefore, if you fmd that the location of the defendant's property was in a developed or residential area, and that the plaintiff was caused harm by a dangerous condition on the defendant's property, and that the defendant by using reasonable care could have discovered the defect and the risk arising from it and could have made it reasonably safe by repair or otherwise, you may find the defendant liable for the resulting damage. 6 :Li:"'-~-"I -k - "~,'~-,:-',';,:';rj-'f-"_~,_',-r,:,: <.,-, , '~':': '" "~_"""T~-r -., - c,: -~~1'~-,' ,~'''-':~~- _ _ "'-,'->f-"--~"- -I~'l" "'",-, ;.~,I_' , c.<'-, -~ -'C""",, '-~ -' ~ ,," " . ' , ' PLAINTIFFS' POINTS FOR CHARGE NO.6 OWNER OF LAND (DUTY OF CARE) Where a specific, localized, isolated patch. of ice exists, it is comparatively easy for a property owner to take the necessary steps to alleviate the condition, while at the same time considerably more difficult for the pedestrian to avoid it even exercising the utmost care. Williams v. Shultz, 429 Pa. 429, 240 A.2d 812 (pa. 1968). 7 --,;_'r~, ',1'-- - . < - -_ --;Y;)""'~X_' ~," 'c\'^\ c,--\~::Ojf:~_{ ", ,:~"1'j0"_"~\'r -I ~_"'-_~~ 'C','" ',;1. '"""l'P.'_," ',', _---~---- ,.---.,_' - .t~:i-~" ,-~d ,_y __ ~;___ '_'." _~" . .<~_ _,,, ,.,..~ ._ _ _ ~~",'" . ~ ,_ , ~' . " .. . . . ' PLAINTIFFS' POINTS FOR CHARGE NO.7 3.00 (Civ) ISSUES IN THE CASE The plaintiff claims he was injured by the negligent conduct of the defendant. The plaintiff has the burden of proving his claims. The issues for you to decide, in accordance with the law as I give it to you are: I. Was the defendant negligent? 2. Was the defendant's conduct a factual cause in bringing about injury to the plaintiff? 8 '?~~-"l . '--'" -.'=' ,:)'1,,' ,:'.I'.'01._-:('~-;-'>'I~.""~_~':'''';~-''--'/'''''~",- c'1' >1','_< ''''f'!''-+f" ',-~_""". "~" "'.'_"'_ .,""~___, --'" - " . ' . PLAINTIFFS' POINTS FOR CHARGE NO.8 3.01 (Civ) NEGLIGENCE-DEFINITION The legal term "negligence," otherwise known as carelessness, is the absence of ordinary care that a reasonably prudent person would use in the circumstances presented here. Negligent conduct may consist either of an act or a failure to act when there is a duty to do so. ill other words, negligence is the failure to do something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. 9 ?:h,: ':'~-_I:-:'" . ^ __'C ,,-:~^"''D-<'''''-+~~ - - ~-__'-_;,f,' """C-,f"--'(---""~'~-"V '. C';_';"',__ -'1'""-', '=''---' __~ ';--;"c ~e ,"1'_'\' _,"'~ 1.~'_, I ~,. -, ~,. 0-'- ___ _ " _ " , .' , ' . PLAINTIFFS' POINTS FOR CHARGE NO.9 3.15 (Civ) FACTUAL CAUSE The plaintiff must prove to you that the defendant's conduct caused the plaintiff's damages. This is referred to as "factual cause." The question is: "Was the defendant's negligent conduct a factual cause in bringing about the plaintiffs damages?" Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred. ill order for conduct of a party to be a factual cause, the conduct must not be fanciful or imaginary, but must have played a real role in causing the injury. Therefore, in determining factual cause, you must decide whether the negligent conduct of the defendant was more than an insignificant factor in bringing about any harm to the plaintiff. Under Pennsylvania law, conduct can be found to be a contributing factor ifthe action or omission alleged to have caused the harm was an actual, real factor, not a negligible, imaginary, or fanciful factor, or a factor having no connection or only an insignificant connection with the injury. However, factual cause does not mean it is the only, primary, or even the most important factor in causing the injury. A cause may be found to be a factual cause as long as it contributes to the injury in a way that is not minimal or insignificant. To be a contributing factor, the defendant's conduct need not be the only factor. The fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as his own negligence is a factual cause of the mJury. Remember, a factual cause is an actual, real factor, although the result may be unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the injury. Although a factual cause cannot be minimal or insignificant with regard to the injury, it can be relatively minor in relation to other factors and need not be quantified as being either considerable or large. 10 ,(~-~ , ,._~ - ~ t _ I' d "- ~"-"-' - -r~-I-"-~ '^! - -f - -')' -'.-.'.'- , - .,. ~~-" - " , ,0 to; '" ''( 0' , . PLAINTIFFS' POINTS FOR CHARGE NO. 10 6.00 (Civ) DAMAGES If you find that the defendant is liable to the plaintiff, you must then find an amount of money damages you believe will fairly and adequately compensate the plaintiff for all the physical and financial injury he has sustained as a result of the occurrence. The amount you award today must compensate the plaintiff completely for damage sustained in the past, as well as damage the plaintiff will sustain in the future. 11 , I-~' -, --~. - c,.,'_" C,'"'_""'"'.' -~~f-'" '''''-- ,'"'-'",,' '~',~ ,"(<,-"~,,,",,~'''''''''I'-~-~'''~_''''''_'~"''''''l c<,'''' ," __ - -,. , ,-_.~, .< .' , .", . > . . ' , . PLAINTIFFS' POINTS FOR CHARGE NO. 11 6.03 (Civ) PREEXISTING CONDITION OR INJURY Damages should be awarded for all injuries caused by the accident even if: 1. the injuries caused by the accident were more severe than could have been foreseen because ofthe plaintiffs prior physical condition; or 2. a preexisting medical condition was aggravated by the accident. If you find that the plaintiff did have a preexisting condition that was aggravated by the defendant's negligence, the defendant is responsible for any aggravation caused by the accident. I remind you that the defendant can be held responsible only for those injuries or the aggravation of a prior injury or condition that you find was factually caused by the accident. 12 '~';;?:?I . --,~::r:-~,-<;.,"C--,:-",~;t:~"""~Y" -:'':'}~'--'- "'""~~"I;:""',' ,. , ,-1 ~ ,t=,,,_,,=,:, ,- ,_.',~ "I __r " l. ~>." -" ., -' ~, -~- " .' ,,1,1 . > < . PLAINTIFFS' POINTS FOR CHARGE NO. 12 6.05 (Civ) OTHER CONTRIBUTING CAUSES The plaintiff is entitled to recover damages for all injuries that the defendant's negligence was a factual cause in producing. The defendant's negligence need not be the sole cause of the injuries; other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you fmd that such other cause would have produced the injury complained of independently of his negligence. Even though prior conditions or concurrent causes may have contributed to an injury, if the defendant's negligence was a factual cause in producing the injury, the defendant is liable for the full amount of damages sustained, without any apportionment or diminution for the other conditions or causes. 13 ';f. - 1 - '-. m ..,--e_~:",:__~!i:;'__:~_'_!~,~" -~~j:~~~~", --!':: ~~:_-' ~_,,!"i''':~_''''' ,"w'l"r;;;. - "':'~':-1' "", ~,'.,-~,,_,~, __'~:'''_.'' '. 1_._'1"'" '1"'-~:':-1 C" ~" .__" '" _ ,,":~_'_r" '_ ' , ,-,--' ., .,.1,1 . ~ . , " < , PLAINTIFFS' POINTS FOR CHARGE NO. 13 6.07 (Civ) PAST LOST EARNINGS AND LOST EARNINGS CAPACITY The plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he could have earned but for the harm and less any sum he actually earned in any employment. It is not essential to recovery that the plaintiff should have been employed at the time of the accident, but his opportunities for employment are relevant in determining the amount he could have earned. 14 T~,_:"i'~_"~i -,,~!',"-, <, "~,/'(,-",.. "_"?1f, 0, ,,'-,"--'~'n;,'!=',-,_.')-'-'~ ,<,'- ,-_, _-"I~_ _ '," ,~"_~- ~l~; ,~~, "_ "," _ ,,,_,~ ____'r'.'" __. .' ;' . > . . ' , ~ \ .' , . PLAINTIFFS' POINTS FOR CHARGE NO. 14 6.09 (Civ) PAST AND FUTURE-NONECONOMIC LOSS The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures oflife; and (4) disfigurement. First, the plaintiff must have experienced pain and suffering in order to be able to claim damage awards for past noneconomic loss and for future noneconomic loss. You are instructed that the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find he has endured from the time of the injury until today and that the plaintiff is also entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress you find he will endure in the future as a result of his injuries. Second, the plaintiff must have experienced embarrassment and humiliation in order to claim noneconomic loss. The plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe he has endured and will continue to endure in the future as a result of his injuries. Third, the plaintiff must suffer loss of enjoyment of life. The plaintiff is entitled to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and to be fairly and adequately compensated for the loss of his ability to enjoy any of the pleasures oflife in the future as a result of his injuries. Fourth, there must be disfigurement. The disfigurement that the plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement he has suffered from the timll of the injury to the present and that he will continue to suffer during the future duration of his life. ill considering the plaintiffs claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish that the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in the case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff. 15 i~ t1"'~"i""'" ",_ ,0.,.". :",f'::':->I,,.y.~'."<j';"'"-<"'"'~,--;",,;,.t'~1>;'''.'':,,,~,~,<~,"" ","I-:';-,"-',-",y'''''v:".'='"~. __, ";~,! ". 1<1, ~~c'Ei''''''''_I'_ ---." ,1 ,r"- ... " ... . , , )I. l" , " . . . PLAINTIFFS' POINTS FOR CHARGE NO. 15 6.10 (Civ) LOSS OF CONSORTIUM The plaintiffs spouse is entitled to be compensated for the past, present, and future loss of the injured party's services to her and the past, present, and future loss of companionship of her spouse. Consortium claims are losses arising out of the marital relationship. Consortium is the marital fellowship of a husband and a wife and includes the company, society, cooperation, affection, and aid of the other in the marital relationship. Such claims include a loss of support, comfort, and assistance, the loss of association, and companionship, and the loss of ability to engage in sexual relations. 16 -\((,.."",'1"] ~ . I d , '" '"_"T,-',:,-' ':_ '''LO,--:;~ .'- ,-~" ,":'-' "-"";'~'~1:7r-'-~ ,,1' ,-l' '" -- ,,",-,,,,"'f",,- " ,~" " 0.& ,.,.... .. --'- . .... . " ' ~ I . , .. PLAINTIFFS' POINTS FOR CHARGE NO. 16 6.12 (Civ) INCIDENTAL COSTS ill addition to the costs of medical care, the plaintiff is entitled to be compensated for all other incidental costs incurred as a result of the accident, or that you find will be incurred in the future. These expenses may include: (1) Expenses that the Plaintiff incurred for the retention of additional help in the business; (2) Cost of transportation, food, lodging and other incidental expenses incurred in seeking medical treatment, such as out-of-pocket expenses; (3) illterest on loans to pay bills; (4) Transportation to give comfort to the injured Plaintiff; (5) Household help during the period of convalescence; (6) Cost of telephone calls, food, lodging and transportation for the accompanying spouse and travel related expenses; (7) And such miscellaneous expenses as Plaintiffs were permitted to offer into evidence during this trial. 17 ;:If~"-',-I ".~ -- v' ":~' _C~C':1"'\9-":-";;:"'-_'" i'l':-', -" ""t:'K,;,~'_ -V'< ~< ,_, _'-_~'Iq,.:-',~~o", -""<-1,"_,/"; ~__'!;(<" _-', .,__, " _"",,~y,""I, ,!~",_' 1 ,~, V,," _,_c.' "' ,c__'_c__~ __,-",_", _~ _, _ _ _ -1.....,--_, ".."" WI' ... J .. . , ~ , , , 1.' , .. PLAINTIFFS' POINTS FOR CHARGE NO. 17 6.21 (Civ) DAMAGES-LIFE EXPECTANCY If you find that the plaintiff's injuries will continue beyond today, you must determine the life expectancy of the plaintiff. According to statistics compiled by the United States Department of Health and Human Services, the average life expectancy of all persons of the plaintiff's age at the time of accident, sex, and race was 32 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that the plaintiff would have lived longer or less than the average individual in his category. ill reaching this decision, you are to consider the plaintiff s health prior to the accident, his manner of living, his personal habits, and other factors that may have affected the duration of his life. 18 ." I ','-"~", ' '''~- e_~ -- _ "_1','---'" ... '~'-I'" ''-.,,-..--'-".<---. --,J~,'r:,"_r'^~,'~'J.4':_1 ~,_ .,. - d - .~~. '.' ~ c <' ,.. ..' ,,~ ! II I; II Ii Ii " " , ~ " ." ~" . ~. .... ,c .=.~ ".- " 0.;)'_", .',-.'-' ,~-,-" " - """"'.,~_"-~,,,,o,' "~' ""_""'-~' ~,_".H<""I' It "" . ....- .- 1'w "",,... .. () "" c.::::.:> 0 ,c"-' '---' " "':-.. C~ :?~ -l n c-.=> :r-11 ......-..:: r;I;--. , en --.' G"> ; c) .. ~ -T, -- :3': ~~Z~ j~. \D c3rp ;:: --{ --4 2 -< OJ U1 '< ,,",,,,_,_~ '~, .,..,.!'lIll!ll!iJ- _ ~~1jJl!mili~~"'*~~'ffl;:;~r~_,J__._~""_ ,tf!~'!I!!1.;"""",~ q:,_.~~-_ ,',' ,~~_~J t ' o . COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEWARTD. MCLAIN AND JENNIFER S. MCLAIN, ; i i , I i Plaintiffs, r ! i ; , , I i i Defendant. i ) CIVIL ACTION LAW No.: 01-2379 - vs- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES FLYING 1., INC., tJd/b/a! FLYING 1. TRAVEL PLAZA, Defendant, Flying 1., Inc. ("Flying J"), hereby moves the Court to prohibit Plaintiff, Stewart D. McLain ("McLain"), from testifying that he heard Kevin Addington ("Addington") order Flying J employees to spread salt and sand. On January 29, 2000, McLain fell and injured himself at a Flying J facility in Carlisle, Pennsylvania (the "Carlisle Facility"). At the time, Addington was the night manager on duty at the Carlisle Facility. Upon information and belief, Flying J believes that McLain will testify that shortly after his fall he heard Addington tell other unidentified Flying J employees to spread some salt and sand so that no one else would get hurt (the "alleged statement"). (Stewart McLain Dep. 76:5-9, Sept. 24, 2001 ("Exhibit A'').) McLain seeks to admit the alleged statement to show that Flying J's negligence created slippery conditions at the Carlisle Facility, as evidenced by Addington feeling the need to make the alleged statement. However, salt and sand was spread in the area where McLain fell, per the policy of Flying J to regularly monitor conditions and spread salt and sand whenever slippery conditions occur. Anthony Lucas, the General Manager of the Carlisle Facility in January 2000 will testify that he inspected the accident site on January 31, 2000, and that there was salt:and sand in the area. (Anthony Lucas Dep. II :14-12:3, Sept. 24, 2001) ("Exhibit B").) Therefore, 10181026.1 , -~ ,"_roo" t. ~ . -2- any attempt to admit the alleged statement violates Pa.R.E. 407 regarding subsequent remedial measures. "When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct." Pa.R.E. 407. While Defendants may argue that the alleged statement does not assert that salt and sand were spread, and that they are therefore not seeking to introduce subsequent remedial measures, the fact is that salt and sand was spread on the area. (Lucas Dep. II :14-12:3.) Therefore, Pa.R.E. 407 applies, and Flying J requests that the Court preclude McLain from testifYing regarding the alleged statement. Respectfully submitted, NIXON PEABODY LLP By: ~,{d David 1. Cook Terence 1. Robinson Jr. Attorneys for Flying J, Inc. Clinton Square P.O. Box 31051 Rochester, New York 14603-1051 Telephone: (585) 263-1000 Dated: Rochester, New York November L, 2006 10181026.1 ;:,.., ~i _ , /" . 0,' ~-" ~ ,~ '." "".--- , I,'" "" ~ ," r"--' -IT-' ,<<-,,'~",- .""',, ^ r> ,"' ," o o ~" , i " ,[ 'i :'! ""lIlIllII ~".- ~"_ ~ _"""_~>"C" _ "', ,'~ <~.,.. ,,~,,~ __" ,'~ " ,~, ., ''''''',,"-'' ,~- .~ - ,"~",.""~",,,,",'~ '-"~-,- ~~ ~ .M_~ - - n ,..., co, 0 C = .,., "':'"". CF' .. Z --1 , '. .::;) :J: in :TI <': . I ""t)m -' S~~ , " ,..; !') " ~ ;::;: ('') 0 \11 ~~ ,>> b! ~-~. =2 r..) :'iJ (.l) -< Pi ~~~fj01<'1@.~"'J"!''W!'':'f''''l'i'''""'''''''l'jtlil~l'fflP!~~~~'!i!I1'~lWf\~er~~fflFI STEWART D. MCLAIN, and his wife, JENNIFER S. MCLAIN, PLAINTIFFS V. FLYING J, INC., Ud/b/a FLYING J TRAVEL PLAZA, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW 01-2379 CIVIL TERM ORDER OF COURT AND NOW, this 6th day of November, 2006, Terence L. Robinson, Jr., Esquire, is admitted pro hac vice in this case. ~chael J. Navitsky, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Plaintiffs ..,e5avid L. Cook, Esquire Clinton Square P.O. Box 31051 Rochester, NY 14603-1051 For Defendant :sal -~:;)"-~"":"""\"' B'-~' --':'1'1',';TJ'-,;.:"-- , -~_' ,__-, _',-<_''''_,1' '<'"-,"::<,., Edgar B. Bayley, J. .n~ I" , '. " _0 I"'~''''" " ~~--"; --~""-'''''~ ~, - ~ ~. ~ I I , I , i I I I 1\,,- ~\ ",,"\: ..-\81\:)' ';,jd '..' .~ 1 (', ("" /__, _ I\I)\;, :', ,:, ", --,: :''':';---::~n8 00 :21 HJ [;! Wi~ 9DOl AtiVLONCiLlGi:ld 3Hl :10 3::11:3:10-03'11:1 (;fl ~ .~~~::<i11ffl~:J*r,-*j~~'!"~--!0'N',"M'~~-;!f:ji~*~~~l'il"~ !;~_""__'::~~"~,