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HomeMy WebLinkAbout03-5790 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. D] - -~'7qc> CiU\.'L-r~ Civil Action - Law DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, : CARLISLE SPORTS EMPORIUM, INC. : 36 Kelly Drive : Carlisle, PA 17013 vs, : and : SPORTS EMPORIUM FASTRACK : 29 S, Middlesex Road : Carlisle, P A 17013 : JURY TRIAL DEMANDED Plaintiff(s) and Address( es) Defendant( s) and Address( es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue Writ of Summons in the above-captioned action, Said Writ of Summons shall be issued and forwarded to the Sheriff of Cumberland County in order to serve the same upon Defendant, CARLISLE SPORTS EMPORIUM, INC., located at 36 Kelly Drive, Carlisle, PA 17013 and upon Defendant, SPORTS EMPORIUM FASTRACK, located at 29 S, Middlesex Road, Carlisle, P A 17013. ~ Lee C, Swartz (.Lv (;JiNJ.iiJ;J TUCKER ARENSBERG, P.C. Sighature of Attomey - 6 III North Front Street P.O. Box 889 Supreme Court 1.D, #07258 Harrisburg, PAl 71 08-0889 (717234-4121 Date: jl ~ J,:>~ WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN - ACTION AGAINST YOU, t1~~J K.. ~$> Prothonotary (/ Date: JJoo..1 2f\^ l , d~l' /.("tJ....~ -P ~CI~ Deputy ., '(C 63370.1 7d ~ 'IQ. iJ:. .~ ~ ~ ~ 0 <=> 9 ~ ~ .?' <..> ':S ,,': 2: rYju.. rr- 0 ::;-1 (,J ~ ~ 2"1-, -< ::i"~ :l! Z-C' -.2 rot., I ...... ~ -< .' ,~) ~jTl [:::: . .iC::i --..1 J ~: -0 ..1 {~) >( :x ,J~:H '. ~ ..c''5 " ::jrn _nj ~ .-.~ +- 15 -< SHERIFF'S RETURN - REGULAR CASE NO: 2003-05790 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROBINSON DANIEL ET AL VS CARLISLE SPORTS EMPORIUM ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS CARLISLE SPORTS EMPORIUM INC was served upon the , at 1515:00 HOURS, on the 4th day of November, 2003 DEFENDANT at 29 S MIDDLESEX ROAD CARLISLE, PA 17013 JAMIE PLASTERER, CO-OWNER by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3,45 .00 10.00 .00 31.45 Sworn and Subscribed to before me this /'1 e" day of }~ oZet:J-3 A. D. o ,_ Q /Jv~., # -,f~rothonotary . So Answers: .?"fJL,r_~~ R. Thomas Kline 11/06/2003 TUCKER ARENSBEl1~ By: ;f~~ Deputy Sheriff CASE NO: 2003-05790 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROBINSON DANIEL ET AL VS CARLISLE SPORTS EMPORIUM ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS SPORTS EMPORIUM FASTRACK DEFENDANT was served upon the at 29 S MIDDLESEX ROAD , at 1515:00 HOURS, on the 4th day of November, 2003 CARLISLE, PA 17013 JAMIE PLASTERER, CO-OWNER by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 ,00 10,00 .00 16.00 Sworn and Subscribed to before me this N 'e day of 7~ ;)..{m3 A.D. e-j Q )n-,~~. ~thonotary , So Answers: ../')/ ~'~ r)?E~~/~t:.~ / R. Thomas Kline 11/06/2003 TUCKER ARENS~E By: C. Deputy Sheriff Tucker Arensberg, p.e. By: Lee e. Swartz 1.0, NO: 07258 111 N, Front Street, P ,0, Box 889 Harrisburg, PA 17108 (717) 234-4121 ORIGINAL ATTORNEY FOR PLAINTIFFS DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, Plaintiffs v. CARLISLE SPORTS EMPORIUM, INC. and SPORTS EMPORIUM FASTRACK, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5790 - CIVIL TERM CIVIL ACTION COMPLAINT "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 buy the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property of other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU vnTH INFORMATION ABOUT HIRING A LAWYER, IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE, LAWYER REFERENCE SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, pennsylvania 17013 (717) 249-3166 "AVISO" "Le han demandado en corte. Si usted desea defender contra las demandas dispuestas enlas paginas siguientes, usted debe tomar la acci6n en el plazo de veinte (20) dfas despues de esta queja y se siIve el aviso, incorporando un aspecto escrito personalmente 0 y archivando en escribir con la corte sus defensas u objeciones alas demandas dispuestas contra usted el abogado Ie advierte que que si usted no puede hacer asl que el caso puede proceder sin usted y unjuicio se puede incorporar contra usted compra 1a corte sin aviso adicional para cualquier dinero demandado en la queja 0 para cualquier otra demanda 0 relevaci6n pedida por el demandante. Usted puede perder el dinero 0 la caracterlstica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGAIlO lNMEDIATAMENTE. Sl USTED NO HACE QUE UN ABOGADO V A Y A A 0 LLAME POR TELEFONO La OFIClNA DISPUESTA ABAJO. EST A OFIClNA PUEDE PROVEER DE USTED LA lNFORMACI6N SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, EST A OFIClNA PUEDE PODER PROVEER DE USTED LA lNFORMACI6N SOBRE LAS AGENCIAS QUE LOS SERVICIOS JURiDICOS DE LA OFERT A DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUClDO o NlNGUN HONOR ARlO SERVICIO DE REFERENCIA LEGAL Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5790 - CIVIL TERM Plaintiffs v. CARLISLE SPORTS EMPORIUM, INC. and SPORTS EMPORIUM FASTRACK, Defendants COMPLAINT 1. Plaintiffs Daniel and Brenda Robinson are the parents of Victoria Robinson and reside at 6279 S. Highlands Circle, Harrisburg, Dauphin County, Pennsylvania. 2. Victoria Robinson is a minor, having been born on July 22, 1995, and resides with her parents. 3. Defendants Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack operate an amusement park located at 29 South Middlesex Road, Carlisle, Cumberland County, Pennsylvania. 4. Among the Defendants' amusements is a ride known as Grand Prix Outdoor Karts. 5. The ride consists of a dozen or more small automobiles which are operated in a confined space. The automobiles have a steering wheel and braking mechanism designed to provide a certain amount of control of the vehicles by the occupants thereof. 6. The steering wheel and braking mechanism are inadequate to control the vehicles at the speeds at which the vehicles are able to attain and the Defendants at the time of the incident which gives rise to this cause of actin were fully aware of this fact and the seat belts do not tighten sufficiently to protect the riders. 7. The vehicles are designed to be operated by persons much older than the age of eight (8) years because of the fact that these riders control and operate said vehicles at speeds which are dangerous and frequently the operators lose control of the vehicles which are difficult to control by young children, 8. On July 30, 2003, the operators of the ride, who were acting within the scope of their employment with the Defendants, permitted the minor Plaintiff, who was at that time only a week over the age of eight (8) years, to ride the Grand Prix Outdoor karts. 9. The Plaintiff Brenda Robinson paid a fee to the Defendants as a charge for the ride. 10. Neither the minor Plaintiff nor her mother had any experience with respect to the nature of the ride, the speed at which the karts could attain, the difficulty in controlling the karts or the dangerous conditions resulting when the karts are occupied by a child of tender years, such as Victoria Robinson. 11. At the time Brenda Robinson permitted her child, Victoria Robinson to ride the kart, she was unaware that the kart needed to be controlled by the child and believed that the attendant had the ability to control the speed and direction of the kart when, in fact, the attendant had no control whatsoever of the vehicle. 12. After the vehicle occupied by the minor Plaintiff started and began to move forward, it gained a high rate of speed, went out of control and struck a metal barrier which was neither padded nor designed in such a manner as to sufficiently protect the occupant of the kart. COUNT I Plaintiff Victoria Robinson. a Minor. bv Her Parents and Natural Guardians. Daniel and Brenda Robinson v. Defendant Carlisle Sports Emporium. Inc, and Defendant Sports Emporium Fastrack 13. Plaintiffs incorporate herein by reference the allegations contained in Paragraphs 1 through 12 above, as though they were fully set forth at length herein. 2 14. The extensive injuries that the minor Plaintiff Victoria Robinson suffered as a result of the kart ride were directly and proximately caused by the carelessness and negligence of the Defendants, generally as set forth above, and in the following particular respects: a. operating the Grand Prix Outdoor Karts ride while permitting children of tender age to ride in the karts with the knowledge that the karts were unsafe for such children; b. failing to equip the karts with adequate seat belts which would protect the children riding them; c. failing to provide a policy wherein Victoria, a child of tender age, would be permitted to ride the Grand Prix Karts; d. failing to instruct their employees to prevent Victoria Robinson from riding the Grand Prix Karts; e. failing to create a barrier, which if impacted by a kart, would be sufficient to minimize the shock and injury to a rider such as Victoria Robinson; f. failing to adequately train and supervise their employees; g. failing to erect adequate warnings which would explain the dangerous nature of the ride sufficiently to discourage or prevent the mother of Victoria Robinson from permitting Victoria to ride in the kart; and h. violating its own rules by permitting a child under the height of 58 inches from riding the kart. 15. As a direct and proximate cause of the carelessness and negligence of Defendants as described above, minor Plaintiff Victoria Robinson has suffered and may continue in the future to suffer severe injuries, including a cerebral concussion with resulting loss of memory, bruises and swelling in the breast plate, chest and back of neck, lacerations of 3 the face and neck, bruises of the knees, nose bleeding, lethargy, and possible permanent brain injury. 16. As a direct and proximate cause of the carelessness and negligence of Defendants as described above, minor Plaintiff Victoria Robinson has required and may in the future req uire medical care and treatment. 18. As a direct and proximate cause of the carelessness and negligence of Defendants as described above, minor Plaintiff Victoria Robinson has been prevented from engaging in her usual activities, studies, schooling and avocations. WHEREFORE, minor Plaintiff Victoria Robinson demands judgment against Defendants in a sum in excess of Thirty-Five Thousand ($35,000.00) Dollars, together with interest and costs. COUNT I Plaintiffs Daniel and Brenda Robinson. In Their Own Riaht v. Defendant Carlisle SDOrts EmDorium. Inc. and Defendant SDOrts EmDorium Fastrack 19. Plaintiffs incorporate herein by reference the allegations contained in paragraphs 1 through 18 above as though they were fully set forth herein. 20. As the direct and proximate result of the carelessness and negligence of Defendants as described above, Plaintiffs Daniel and Brenda Robinson have been and will be obligated for the cost of medical care and treatment of minor Plaintiff and mayor will be obligated for other expenses necessary for the care, treatment and maintenance of minor Plaintiff Victoria Robinson. 21. As the direct and proximate result of the carelessness and negligence of Defendants as described above, Plaintiffs Daniel and Brenda Robinson have been and may in the future be deprived of the care, company, companionship, society and assistance of minor Plaintiff Victoria Robinson. 4 22. As a result of the negligence of the Defendants as aforesaid, said negligence inflicted emotional distress upon Brenda Robinson, the mother of the minor Plaintiff Victoria Robinson, inasmuch as she witnessed the injuries to the minor Plaintiff Victoria Robinson. Such emotional distress included severe anxiety, nausea, fear for the safety of her daughter, worry and concern about her daughter's health, mental anguish and shock and injury to the nerves and nervous system which may continue in the future. WHEREFORE, Plaintiffs Daniel and Brenda Robinson demand judgment against Defendants in a sum in excess of Thirty-Five Thousand ($35,000.00) Dollars, together with interest and costs, TUCKER ARENSBERG, P.C. By: L C. Swartz Pa, Bar I.D, No. 07258 111 N. Front St., P. O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS 5 VERIFICATION We, DANIEL AND BRENDA ROBINSON, hereby certify that we are Plaintiffs in this action, and that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. We understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. renda Robinson Dated: n-2...1 ,2003 CERTIFICATE OF SERVICE AND NOW, this o? 0 K day of January, 2004 I, LEE C. SWARTZ, hereby certify that I have this day served the within Complaint by depositing a copy of the same in the United States Mail, postage prepaid, Certified Mail, Return Receipt Requested, at Harrisburg, Pennsylvania, addressed as follows: Carlisle Sports Emporium, Inc. 29 S. Middlesex Road Carlisle, PA 17013 Sports Emporium Fastrack 29 S. Middlesex Road Carlisle, PA 17013 ~&~~ Lee . Swartz r 7 o "" = C~;) ~- <.- C) ~fl --1 "1:::" h I ,;~~ -r-I i-,-~ -:;r:r; ~=? (1': "\) .,)(',) (.1 ;;..: ", ';'? Cl \..0 SPECTOR GADON & ROSEN, PC By: John T. Asher, III, Esquire Attorney I.D, 76957 7 Penn Center 1635 Market Street, Suite 700 Philadelphia, PA 19103 (215) 241-8888 Fax: (215) 241-8844 Attorney for Defendants, Carlisle Sports Emporium, Inc, and Sports Emporium Fastrack DANIEL and BRENDA ROBINSON Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor COURT OF COMMON PLEAS CUMBERLAND COUNTY .{nb NO, 03~- CIVIL TERM Plaintiffs, v, CARLISLE SPORTS EMPORIUM, INC, and SPORTS EMPORIUM FASTRACK, Defendants, ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance for defendants, Carlisle Sports Emporium, Inc, and Sports Emporium Fastrack in the above captioned matter. SPECTOR P,C, T, ASHER, III, ESQUIRE Atto eys for Defendants arlis Sports Emporium, Inc. and Sp Emporium Fastrack DATED: March 2,2004 () C I:J'~ ,Tj.;J._. ..,rn ~.~~ ~.,-:" oC :l', zr- ...;-~{-; :Pc' -?- ~ ..... = = z- :Ji: :1>0 ;;0 I (.) Sfl :r! nl::!J ~r- ~.~ C)-U ;:~O Orn o:-l ....~ ::::.0 -c "'" 2 <:? co I hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: X Regular Mail ce 'fied Mail Ot r: To: Plaintiffs You are hereby notified to plead to the enclo d New Matter within tw tv (20) days from service hereof or a ef' e entered ag st you. BY' OR ADON & ROSEN, PC By: Jo T. Asher, III, Esquire Attorney I.D, 76957 7 Penn Center 1635 Market Street, Suite 700 Philadelphia, PA 19103 (215) 241-8888 Fax: (215) 241-8844 Attorney for Defendants, Carlisle Sports Emporium, Inc, and Sports Emporium Fastrack DANIEL and BRENDA ROBINSON Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor COURT OF COMMON PLEAS CUMBERLAND COUNTY .f7I/o NO, 03-57B6 - CIVIL TERM Plaintiffs, v. CARLISLE SPORTS EMPORIUM, INC, and SPORTS EMPORIUM FASTRACK, Defendants, ANSWER OF DEFENDANTS, CARLISLE SPORTS EMPORIUM, INC. AND SPORTS EMPORIUM FASTRACK TO PLAINTIFFS' COMPLAINT WITH NEW MATTER AND NOW, come the defendants, Carlisle Sports Emporium, Inc. ("Sports Emporium") and Sports Emporium Fastrack ("Fastrack")( collectively, "Defendants") by and through their counsel, John T. Asher, III, Esquire and the law firm of Spector Gadon & Rosen, P,C, by way of an answer to plaintiffs' complaint say that: 1. Denied. Defendants deny paragraph 1 of plaintiffs' complaint pursuant to Pa,R,C,P, No. 1029(e). 2, Denied, Defendants deny the allegations set forth in paragraph 2 of plaintiffs' complaint pursuant to Pa,R.C,P, No. 1029(e), 3. Admitted in part, denied in part. It is only admitted that Carlisle Sports Emporium, Inc, operates at amusement park located at 29 South Middlesex Road, Carlisle, Cumberland County, Pennsylvania, The remaining averments set forth in paragraph No.3 in plaintiffs' complaint are denied. 4, Admitted, 5. Denied, Defendants deny the allegations set forth in paragraph 5 of plaintiffs' complaint pursuant to Pa.R.C,P, No, 1029(e), and plaintiffs are left to their proofs, 6. Denied, Defendants deny the allegations set forth in paragraph 6 of plaintiffs' complaint pursuant to Pa,R,C.P. No, 1029(e), and plaintiffs are left to their proofs, 7, Denied, Defendants deny the allegations set forth in paragraph 7 of plaintiffs' complaint pursuant to Pa.R.C,P. No, 1029(e), and plaintiffs are left to their proofs, 8, Admitted in part, denied in part, It is admitted that the operators of the ride known as Grand Prix Outdoor Karts were employees of Sports Emporium on July 30, 2003, The remaining averments set forth in paragraph 8 of plaintiffs' complaint are denied generally pursuant to Pa,R.C.P. No, 1029(e), and plaintiffs are left to their proofs, 9, Denied. After reasonable investigation, defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 9 of plaintiffs' complaint, therefore same are denied with strict proof demanded, 10, Denied, Defendants deny the allegations set forth in paragraph 10 of plaintiffs' complaint pursuant to Pa.R.C,P, No. 1029(e), and plaintiffs are left to their proofs. II, Denied. Defendants deny the allegations set forth in paragraph II of plaintiffs' complaint pursuant to Pa,R,C.P. No, I 029( e), and plaintiffs are left to their proofs, 12. Denied, Defendants deny the allegations set forth in paragraph 12 of plaintiffs' complaint pursuant to Pa.R.C,P, No, 1 029( e), and plaintiffs are left to their proofs, COUNT I Plaintiff Victoria Robinson, a Minor, by her Parents and Natural Guardians, Daniel and Brenda Robinson v. Defendant Carlisle Sports Emporium, Inc. and Defendant Sports Emporium Fastrack 13. Defendants incorporate their answers to paragraphs 1 through 12 of plaintiffs' complaint as though same were set forth more fully herein at length, 14. Denied, Defendants deny the allegations set forth in paragraph 14, and subparts (a) through (h) therein, of plaintiffs' complaint pursuant to Pa,R.C.P. No, l029(e), and plaintiffs are left to their proofs. 15. Denied. Defendants deny the allegations set forth in paragraph 15 of plaintiffs' complaint pursuant to Pa.R.C,P, No. 1029(e), and plaintiffs are left to their proofs. 16, Denied. Defendants deny the allegations set forth in paragraph 16 of plaintiffs' complaint pursuant to Pa,R.C,P, No, l029(e), and plaintiffs are left to their proofs, 17. There is no paragraph 17 in plaintiffs' complaint. 18, Denied, Defendants deny the allegations set forth in paragraph 18 of plaintiffs' complaint pursuant to Pa.R.C,P, No, l029(e), and plaintiffs are left to their proofs, WHEREFORE, defendants Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack demand that judgment be entered in their favor and against plaintiffs, that plaintiffs' complaint be dismissed with prejudice and that defendants be awarded costs, attorneys' fees and such other relief that the Court deems just and equitable, COUNT II Plaintiffs Daniel and Brenda Robinson v. Defendant Carlisle Sports Emporium, Inc. and Defendant Sports Emporium Fastrack 19, Defendants incorporate their answers to paragraphs 1 through 18 of plaintiffs' complaint as though same were set forth more fully herein at length, 20, Denied, Defendants deny the allegations set forth in paragraph 20 of plaintiffs' complaint pursuant to Pa,R,C.P. No, 1029(e), and plaintiffs are left to their proofs. 21. Denied, Defendants deny the allegations set forth in paragraph 21 of plaintiffs' complaint pursuant to Pa.R.C,P, No. 1029(e), and plaintiffs are left to their proofs, 22, Denied, Defendants deny the allegations set forth in paragraph 22 of plaintiffs' complaint pursuant to Pa,R,C.P. No, 1029(e), and plaintiffs are left to their proofs. WHEREFORE, defendants Carlisle Sports Emporium, Inc, and Sports Emporium Fastrack demand that judgment be entered in their favor and against plaintiffs, that plaintiffs' complaint be dismissed with prejudice and that defendants be awarded costs, attorneys' fees and such other relief that the Court deems just and equitable, NEW MATTER 23. Plaintiffs' Complaint fails to state a cause or causes of action against answering defendants upon which relief can be granted. 24. Plaintiffs' claims are barred by the applicable Statute of Limitations and/or the Doctrine of Laches, 25. The incident alleged in plaintiffs' Complaint was caused by the conduct and/or omissions of persons or entities other than answering defendants, their agents, servants, workmen and/or employees, 26, The incident alleged in plaintiffs' Complaint was caused by persons and/or entities over whom answering defendants exercised no control or right to control. 27, The incident alleged in plaintiffs Complaint was caused by the abnormal and unforeseeable misuse of the product by plaintiff or others over whom answering defendants neither exercised control or had any duty to control. 28, Answering defendants gave all warnings required by law to those individuals to whom it was required to provide such warnings, 29. Plaintiffs' claims are barred by the "sophisticated user" and "learned intermediary" defenses. 30. Plaintiffs' were comparatively negligent so as to totally bar their recovery in this case under the applicable provisions ofthe Pennsylvania Comparative Negligence Act, 42 Pa. C,S, S 7102; in the alternative, plaintiffs' recovery is to be reduced in accordance with the amount of comparative negligence attributed to them, 31. Plaintiffs assumed the risk or risk of injury under the circumstances thereby barring them from any recovery under the applicable law, WHEREFORE, defendants Carlisle Sports Emporium, Inc, and Sports Emporium Fastrack demand that judgment be entered in their favor and against plaintiffs, that plaintiffs' complaint be dismissed with prejudice and that defendants be awarded costs, attorneys' fees and such other relief that the Court deems just and equitable. TOR GADON & ROSEN, P.C. ---- . ASHER, III e for defendants Carlisle Sports Emporium, ports Emporium Fastrack VERIFICATION I, (2y ~b'- :<;,,,-. , am an employee of Carlisle Sports Emporium, Inc, and am authorized to make this verification on its behalf. I verify that the statements or denials made in the foregoing answer to plaintiffs' complaint with new matter are true to the best of my personal knowledge, information and belief, The undersigned understands that the statements made therein are subject to the penalties of 18 Pa, C.S,A. S 4904 relating to unsworn falsification to authorities, -, C~{-~ - ) Bi_~~Z~ ; Dated: z. h. 71o'f / / o !;: il'S~ rDH~ -01.' . 6~l~!:1 -..:' - ~ ~;; r:-) .g: () -c ~ <-> = "'> ...,.. ::II: > = I W """ J~ <2 o -" :r-" rn- r :<J6n. .0 o ,ci "T- I:cl 9(') c5m ;~ 5:1 -< Cl:) ORIGINAL DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 03-5790 - CIVIL TERM Plaintiffs v, CARLISLE SPORTS EMPORIUM, INC. : and SPORTS EMPORIUM FASTRACK, : Defendants : PLAINTIFFS' REPLY TO NEW MATTER 23. This paragraph solely contains conclusions of law which require no answer and are therefore denied. 24. Denied. On the contrary, it is averred that the complaint was filed over one year prior to the expiration of the statute of limitations, 25. After reasonable investigation, Plaintiffs are without knowledge sufficient to determine that the minor Plaintiffs injuries were caused by the conduct or omissions of any other persons or entities other than answering Defendants, their agents, servants, workmen and/or employees and if relevant, proof thereof is demanded, On the contrary, Plaintiffs aver that the injuries to the minor Plaintiff were caused solely by the conduct and/or omissions of the answering Defendants, their agents, servants, workmen and/or employees, 26. After reasonable investigation, Plaintiffs are without knowledge sufficient to form a belief that the injuries to the minor Plaintiff were caused by persons and/or entities over whom answering Defendants exercise no control or right of control and if relevant, proof thereof is demanded. On the contrary, the injuries sustained by the minor Plaintiff were caused solely by persons or entities over whom answering Defendants exercised control or right to control. 27. Denied. On the contrary, it is averred that the Plaintiff used the product for the purpose intended. It is further averred that the answering Defendants had control and had a duty to control the product and failed to exercise control over it. 28. Denied. On the contrary, it is averred that any warnings posted were inadequate, inaccessible, inaccurate and incomplete and were placed in an area where they could not be ordinarily seen by users of the product. 29. This paragraph sets forth conclusions of law which require no answer. To the extent that an answer is required, the doctrines of sophisticated user and learned intermediary are not defenses applicable to the Defendants' conduct. 30. Denied. On the contrary, it is averred that the minor Plaintiff is presumed to be incapable of comparative negligence, was unaware that she could be harmed by the product and rode in the product under a reasonable belief that it was safe and controllable by persons of her age and experience. It is further denied that the parents of the minor Plaintiff were negligent in any way. By way of further answer, it is averred that the minor Plaintiff's mother acted reasonably and with a reasonable belief that the product in which the minor Plaintiff rode was controllable and safe for persons of her age, 31. The averments of this paragraph state conclusions of law which require no answer. By way of further answer, it is averred that the minor Plaintiff and her mother assumed no risk. The dangers of the product were not foreseeable or known to them, and it is further averred that the employees of the Defendants concealed the risks of the product and affirmatively led the minor Plaintiff and her mother to believe that the product was controllable and safe for the Plaintiff. WHEREFORE, Plaintiffs Daniel and Brenda Robinson, individually and as parents and natural guardians of Victoria Robinson, request that this New Matter be stricken and that the relief claimed therein be denied, TUCKER ARENSBERG, P.C. By ~ ~f.1 Lee. Swartz Pa, Bar I.D, No, 07258 111 N, Front St., p, 0, Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS VERIFICATION I, BRENDA ROBINSON, hereby certify that I am a Plaintiff in this action, and that the facts contained in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.SA ~4904, relating to unsworn falsification to authorities. t6:L.d, A;i) Bfenda Robinson . Dated: J -/5-- .2004 CERTIFICATE OF SERVICE AND NOW, this / sUe day of "fA.. -t A _--< _ , 2004 I, LEE C. SWARTZ, hereby certify that I have this day served the within Reply to New Matter by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: John T, Asher, III, Esquire Spector Gadon & Rosen, P,C. 1635 Market St., 7'h FI. Philadelphia, PA 19103 ~.~ . CS2)6 Lee C, Swart . ORIGINAL DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 03-5790 .. CIVIL TERM Plaintiffs v. CARLISLE SPORTS EMPORIUM, INC. and SPORTS EMPORIUM FASTRACK, Defendants PETITION FOR APPROVAL OF SETrLEMENT AND DISTRIBUTION OF PROCEEDS FOR A MINOR TO THE HONORABLE, THE JUDGES OF SAID COURT: The Petitioners, Daniel and Brenda Robinson, Parents and Natural Guardians of Victoria Robinson, a minor, through their counsel, Lee C. Swartz, petition this Honorable Court for an Order pursuant to Pennsylvania Rule of Civil Procedure 2039(b)(1) and respectfully represent as follows: 1. Petitioners, Daniel and Brenda Robinson, are adult individuals who reside at 5279 South Highland Circle, Harrisburg, Pennsylvania, and are the parents and natural guardians of Victoria Robinson, a minor (hereinafter referred to as the "Minor"), who sustained personal injuries on July 30, 2003, on the premises of the Defendants, Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack, while a passen!~er in a go-kart, which was utilized in a ride known as "Grand Prix Outdoor Karts," The Minor's date of birth is July 22, 1995, Petitions filed suit against the Defendants on January 21,2004. 2. On the date of the filing of suit, the Minor was 8 y,ears of age. 3. The Defendants have offered to pay the sum of Thirteen Thousand Five Hundred ($13,500.00) Dollars for the Minor's claim arising from her injuries. 4. The Petitioners have retained Lee C. Swartz, Esquire, of the firm of Tucker Arensberg, P.C., to represent the Minor, and they entered into an agreement with said attorney under which said attorney is to be paid Thirty-Three and One-Third (33-1/3%) percent of the gross recovery, if the case is settled before jury selection, Adlditionally, said agreement provides for the payment of costs advanced and incurred by the attorney, which amount to $1,201.21, to the costs advanced and incurred. 5. Lee C. Swartz agrees to reduce his fee to Twenty-Five (25%) percent, in addition 6. The injuries to the Minor resulted from the go-kart, in which the Minor was a passenger, striking a barrier. 7. As a result of the incident, the Minor sustained injuries, including a cerebral concussion with temporary loss of memory, bruises and swelling to the chest and back of neck and lacerations of the face and neck, 8. Your Petitioners believe, in light of the facts set forth in this Petition that the offer of Thirteen Thousand Five Hundred ($13,500.00) Dollars is a fair settlement and it is in the best interest of the Minor to accept that offer. 9. Your Petitioners also believe that a fair, just and '~quitable distribution of the settlement proceeds of Thirteen Thousand Five Hundred ($13,500,00) Dollars would be as follows: Balance of settlement $ 8,923.79 Tucker Arensberg, P.C, Reimbursement for Costs Advanced: Photocopy charges .....,...........,... ... Postage (including overnight mail) .,.. Copy of accident report.................. Prothonotary ...........,..............,.... Sheriff.....,...........,...........,......... , Deposition transcripts... ... ... '" ... ... .. Copies of medical records ......... ..... Copies of photos (laser) ..,...........,.. 93.15 58,54 5.00 55.50 150,00 744.33 90.45 4.24 Total Costs $ 1,201,21 Tucker Arensberg, P.C. Attorneys' fee (25% of $13,500) Total Attorneys' Fees and Costel $ 3,375.00 $ 4,576.21 10, The Minor has suffered no permanent injuries ,lnd is currently in good health and pursuing all of the activities in which she was involved prior to the accident. 11, The Petitioners request that the balance of Eight Thousand Nine Hundred Twenty-Three and Seventy-Nine Cents ($8,923.79) remaining after attorneys' fees and costs, be made payable to themselves, Daniel and Brenda Robinson" for the benefit of the said Minor, pursuant to Pennsylvania Rule of Civil Procedure 2039(b)(1). behalf of the Minor or sign any documents to effectuate this settlement. 12. Petitioners request that they be authorized to execute any and all releases on WHEREFORE, your Petitioners respectfully request the Court to enter an Order pursuant to Pennsylvania Rule of Civil Procedure 2039(b)(1), approving di$tribution of the proceeds as requested herein, and authorizing the execution of a Release by the Minor's Parents and Natural Guardians, Daniel and Brenda Robinson, in favor of the Defendants, Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack, Respectfully submittl3d, TU:K~OiRG' p.e. By: ~ llee C. Swart~ (j - 1.0. No. 0725a 111 N, Front St., P,O, Box 889 Harrisburg, PA 1710,8 ATTORNEYS FOR PETITIONERS VERIFICATION We, DANIEL and BRENDA ROBINSON, hereby certify that we are the Petitioners in this action, and that the facts contained in the foregoing Petition are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa, C.S.A. ~904, relating to unsworn falsificati n to authorities. Dated: q/7 , Daniel Robinson --~ j~~ .). ~) Brenda Robinson ,2005 CERTIFICATE OF SERVICE AND NOW, this qK- day of S'1::r'7OY1f),E7L, 20051, LEE C, SWARTZ, hereby certify that I have this day served the within Petition by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: John T. Asher, III, Esquire Spector Gadon & Rosen, P,C. 1635 Market St., 7th FI. Philadelphia, PA 19103 ~~ Lee C, Swartz LAW OFFICE TUCKER ARENSBERG, P.C.. ATTORNEY'S AGREEMENT THIS AGREEMENT, enterect into this ~ day of A\.<.~\A..Ii- , 2002., by and between TUCKER ARENSBERG P.C., (hereinafter "Attorney"), and Co.".., R.,1>;~1." c,,,,t (S,-e""u.o.. Rob,,, S"", (hereinafter "Client"). WITNESSETH: That Attorney, for the consideration hereinafter stipulated, has undertaken and does hereby undertake and agree with Client to act as legal counsel in negotiating a settlement, and if the same is not effected, in bringing, conducting and prosecuting an action against all responsible parties, to recover damages for personal injuries sustained by the Client in an accident/incident which occurred on or about _ uu.L y '10 , -:;).001 . 1."J "'~I..s +.> c:l.c.u..!>.\,,~.. v, "-+o~, ,,-. ATTORNEY FEE: In consideration for services so rendered by Attorney, it is hereby agreed by and between the parties hereto that Attorney shall be compensated as follows: (a) Thirty-Three and One-Third (33-1/3%) percent of the gross recovery if the case is settled before jury selection in a jury trial case, before commencement of trial in a non-jury trial case, or before the commencement of the hearing in a matter first heard by arbitrators; or (b) Forty (40%) percent of the gross recover if the case is settled any time after it proceeds to jury selection at trial or if a gross recovery is obtained in any other manner at or after the selection of the jury in a jury trial case, after commencement of th,:! trial in a non-jury trial case or after the commencement of the hearing in a matter first heard by arbitrators. The Attorney's fee as set forth above covers only the Attorney's services through and including the trial of the Client's case and any post trial proceeding before the trial court, If the case is appealed to a court beyond the trial court, then the Client must enter a new agreement with the Attorney or make additional arrangements for the Attorney's fee for services for repl'i:!senting the Client in the appeal. "Gross recovery" shall mean the full amount of settlement proceeds or the full amount of verdict, including any pre-judgment interest, without reduction for expenses or costs advanced or incurred. Attorney shall have a lien on any sum or sums recovered, whether by settlement or judgment, for services rendered, costs advanced and expenses incurred under this Agreement. If for any reason the services of the Attorney are terminated, either by the Attorney or by the Client, Attorney shall have a right to be compensated for the reasonable value of the services provided to Client. The reasonable value of the Attorney's services shall be the greater of the amounts determined as follows: (a) by applying the hourly rates ordinarily charged by the Attorney during the time of Attorney's representation to the time expended by Attorney in this matter; or (b) Thirty-Three and One-Third (33-1/3%) percent of the highest offer to settle Client's case received prior to termination. The right of Attorney to receive any such compensation will be contingent upon Client obtaining a recovery in this case by settlement, verdict or otherwise. Additionally, the Client will then also become responsible for the payments of all the expenses and costs incurred by TUCKER ARENSBERG, P,C. on the Client's case. Said expenses and costs will becorne imm"diately due and owing to TUCKER ARENSBERG, P.C.. EXPENSES OF LITIGATION: Any necessary and reasonable costs advanced by Attorney in the preparation and presentation of Client's claim, and all expenses attendant thereto, shall be the responsibility of the Client to pay upon the Client's obtaining a recovery in the case, Attorney retains the right to request that the Client advance said expenses and costs, Attorney may apply any funds held in escrow on behalf of Client to the costs and expenses of litigation. SETTLEMENT PROVISIONS: All offers to settle, adjust or compromise the above clairn shall be reviewed between Client and Attorney before any such offer is either accepted or rejected, Client further agrees to consider seriously any recommendation for settlement rnade by Attorney and not to unreasonably withhold consent to such settlement recommendation. DISCHARGE OR WITHDRAWAL: In the event that Attorney subsequently determines that the claim or suit lacks rnerit, or Client unreasonably withholds consent to any bona fide settlement recommendation made by Attorney, or Client refuses or fails to Cooperate with Attorney, or Client conceals or misrepresents facts regarding the above clairn, or Client commits a breach of this Agreement, Attorney shall have the right to terminate his services upon giving reasonable notice to Client. MISCELLANEOUS: Client understands, acknowledges and agrees that Attorney does not guarantee the outcome or eventual result of the above claim. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have hereunto set their hands and seals to this Agreement, in execution thereof, the day and year first above written. WITNESSES: (SEAL) >< X (SEAL) EAL) 17376.1 0 " , " .-. T r'Ll r-.l , ..,.., _.J -"'- ) nl (.,.) ( f',) -' '1 RLCEI\'~r) r~o 1 ~ O~C5 I.... , , ;:;'.J "~" v.U pl1\ DANIEL and BRENDA ROBINSON, Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5790 - CIVIL TERM Plaintiffs v. CARLISLE SPORTS EMPORIUM, INC. and SPORTS EMPORIUM FASTRACK, Defendants ORDER AND NOW, this...J..!L day of .JS.1'e..W' ,2005, after due consideration of the foregoing Petition, IT IS HEREBY ORDERED AND DECREED: 1. The settlement of the personal injury claim of Victoria Robinson, a Minor, brought under and by virtue of the injuries she sustained on July 30, 2003, for the sum of Thirteen Thousand Five Hundred ($13,500.00) Dollars, is hereby approved as being fair and equitable. 2. The settlement amount of Thirteen Thousand Five Hundred ($13,500,00) Dollars is hereby ordered to be distributed as follows: Daniel and Brenda Robinson, Parents and Natural Guardians of Victoria Robinson, a Minor $ 8,923,79 Tucker Arensberg, P.C. Reimbursement for Costs Advanced: Photocopy charges .....,......... ... ,.. ... Postage (including overnight mail) .... Copy of accident report...... ......... ... Prothonotary .., ......................., .... Sheriff ....., ,.. .................. ...... ....... Deposition transcripts ..,... ......... ..... Copies of medical records... ... ... ... .. Copies of photos (laser) ............ ,.... 93.15 58.54 5.00 55.50 150.00 744,33 90.45 4.24 Total Costs $ 1,201.21 "V')NVj\lASN~\I]d I 'Nn....,'.' i.~' ",'''c.'~. :r'n" J\J..I lIt"", "?.[l '1\ v SZ :8 \old 61 d3S SOOl AWIONOHlOl:Jo'3Hl ::10 3Ol:l.:!o-<J31bJ' , Tucker Arensberg, P.C. Attorneys' fee (25% of $13,500) Total Attorneys' Fees and Costs $ 3,375.00 $ 4,576.21 3. Upon payment of the aforesaid sums in the manner above described, shall thereby be fully released from all claims which Victoria Robinson, a Minor, had against Defendants, Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack, by reason of the injuries she sustained in the incident that occurred on July 30, 2003. Petitioners, Daniel and Brenda Robinson are hereby authorized on behalf of Victoria Robinson, a Minor, to execute a Release in favor of Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack, 4. Petitioners are authorized to execute any and all releases on behalf of the minor or sign any documents to effectuate this settlement. ;JJ J, r, ()'cP OC\;~ SPECTOR GADON & ROSEN, PC By: John T. Asher, III, Esquire Identification No, 76957 7 Penn Center 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8888 Fax: (215) 241-8844 Attorney for the Defendants, Carlisle Sports Emporium, Inc. and Sports Emporium Fastrack DANIEL and BRENDA ROBINSON Individually and as Parents and Natural Guardians of VICTORIA ROBINSON, a minor Plaintiffs, v. CARLISLE SPORTS EMPORIUM, INC. and SPORTS EMPORIUM FASTRACK, Defendants, COURT OF COMMON PLEAS CUMBERLAND COUNTY NO, 03-5790 - CIVIL TERM PRAECIPE TO SETTLE DISCONTINUE AND END TO THE PROTHONTOARY: Kindly mark the above-captioned action SETTLED, DISCONTINUED and ENDED as to all parties with prejudice, --------- ....-1 .~-., "'') c, -