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HomeMy WebLinkAbout08-3384y 11 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll V. Plaintiff Kmart Corporation t/d/b/a: Sears Kmart Defendant No. -CV- -CV Dg - 33Sy l.:tv;??ea-M CIVIL ACTION -- LAW NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. IF YQU 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. YOU MAY LOSE MONEY OR PROPERTY OR 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 WITH 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 -1- COLGAN MARZZACCO, LLC. 130 W. Church Street, Suite 100 Dillsburg, PA 17109 JURY TRIAL DEMANDED by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 (717) 502-5000 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff No. -CV- -CV -- of - - 3 ,?y_ V. . Kmart Corporation . tld/b/a: Sears Kmart CIVIL ACTION -- LAW Defendant COMPLAINT AND NOW, Plaintiff, Patricia Woll, by and through her Attorneys, Christopher Marzzacco of Colgan Marzzacco, LLC. and David Sherman of Solomon, Sherman & Gabay, hereby files this Complaint and civil action against Defendant, Kmart Corporation, t/d/b/a: Sears Kmart, and respectively avers the following: 1. Plaintiff, Patricia Woll is an adult individual residing at 433 Sample Bridge Road, Enola, Cumberland County, Pennsylvania. 2. Defendant, Kmart Corporation t/d/b/a: Sears Kmart, is a corporation, business and/or legal entity authorized to do business in Pennsylvania, with an office/store located in Cumberland County, Pennsylvania and at all times pertinent hereto owned, operated, controlled, maintained and possessed the premises known as "Store # 04275," located on Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. -2- 3. At all times pertinent hereto, the defendant, Kmart Corporation t/d/b/a: Sears Kmart (hereinafter referred to as "Kmart"), owned, operated, controlled, maintained and possessed the aforementioned premises. At all times pertinent hereto, Plaintiff was a customer and business invitee, lawfully on defendant's premises. 4. At all times pertinent hereto, all of the acts and omissions of the defendant were committed by the defendant through its agents, servants, workers and/or employees and by others over whom the defendant had control and/or authority. 5. On or about June 22, 2006, the premises was so negligently and carelessly maintained by the defendants, to wit: a wooden pallet containing products and/or merchandise was placed in the walkway of a shopping isle, causing plaintiff to slip and/or trip and fall to the floor, as set forth more particularly hereinafter. 6. The aforementioned negligence of the defendant caused the injuries and damages suffered by plaintiff, set forth more particularly hereinafter. COUNT 1 PATRICIA WOLL v. MART 7. Paragraphs 1-6 are incorporated by reference as though fully set forth at length herein. 8. By reason of the negligence of the defendants acting as aforesaid, the plaintiff suffered personal injuries and/or property damage as a result of said incident. 9. The aforesaid incident was a direct and proximate result of the negligence -3- and carelessness of the defendant and such negligence and carelessness consisted of the following: (a) Kmart failed to inspect the area; (b) Kmart failed to cure the defect they created; (c) Kmart failed to monitor the area; (d) Kmart failed to cordon off the area; (e) Kmart failed to provide a safe walkway in the isle; (f) Kmart failed to post proper warnings in the isle; (g) Kmart failed to use appropriate materials in the isle; (h) Kmart failed to have proper staff and employees in the area; (1) Kmart failed to train their staff and employees; 0) Kmart was otherwise negligent in fact and at law, to be determined at trial; (k) Kmart violated its procedures and safety policies; and (1) Kmart violated the Restatement (Second) of Torts. 10. The servants, agents, workers and/or employees of the defendant who controlled the premises knew or should have known of the dangerous condition which caused the aforesaid incident. 11. The aforesaid dangerous condition existing at the area of the premises existed for a sufficient period of time to constitute notice to the defendant of the existence of the same. -4- 12. The defendant had sufficient opportunity to eliminate, abate, resolve and/or correct the dangerous condition existing on the property to prevent and/or minimize the aforesaid dangerous condition. 13. All the acts and omissions of the defendant were committed by the defendant by and trough its agents, servants, workers and/or employees and other individuals acting on behalf of and for the benefit of the defendant. 14. As a result of the aforesaid accident, Plaintiff, Patricia Woll, sustained serious injuries to her left knee and surrounding areas and other injuries, including but not limited to a torn meniscus and severely bruised patella and all other injuries, both known and unknown, all of which have caused a loss and impairment of a body part and function and may further cause in the future, great pain, suffering and agony and a deprivation of her normal mode of living and a loss of earnings and/or loss of earning ability and capacity in the future and the enjoyment of life. 15. As a further result of the aforesaid accident and resulting injuries, the plaintiff has been unable in the past and is likely to be unable in the future to attend to her usual duties and activities and life's pleasures, all to her great financial loss and detriment. 16. As a further result of the aforesaid incident and resulting injuries, the plaintiff has been and may in the future be required to expend substantial sums of money for medical services and treatment of the injuries as aforesaid, all to her great financial loss and detriment. 17. As a result of the aforesaid injuries, the plaintiff has incurred medical and -5- other expenses to treat her injuries and may incur additional expenses in the future. WHEREFORE, Plaintiff, Patricia Woll, demands judgment in her favor and against the defendant in excess of thirty-five thousand dollars ($35,000.00). Respectfully submitted by: COQ GAN-MFARZZACCO, LLCM v by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 130 W. Church Street, Suite 100 Dillsburg, PA 17109 (717) 502-5000 Attomey for Plaintiff c6 r' Solomon, Sherman & Gabay ' by: David Sherman, Esquire PA Attorney ID# 36437 8 Penn Center 628 JFK Boulevard, Suite 2200 Philadelphia, PA 19103 (215) 665-1100 Attomey for Plaintiff -6- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff V. Kmart Corporation t/d/b/a: Sears Kmart No. -CV- -CV CIVIL ACTION -- LAW VERIFICATION I, Patricia Woll, verify that the staterents made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: a it r i Rci aWoll -7- CERTIFICATE OF SERVICE 1, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of the Notice to Defend and Claim Rights upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Bill Morman Claims Examiner III Sears Kmart Incident Center Sedgwick Claims Management Services, Inc. P.O. Box 14448 Lexington, KY 40512-4448 Date: -2 j r OLGA ARZ CCO, L Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Attorney for Plaintiff pp _ V l r C(A) N ? ? r / SHERIFF'S RETURN - REGULAR CASE NO: 2008-03384 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOLL PATRICIA VS KMART CORPORATION ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KMART CORPORATION T/D/B/A SEARS KMART the DEFENDANT at 1528:00 HOURS, on the 6th day of June 2008 at 5600 CARLISLE PIKE MECHANICSBURG, PA 17050 by handing to KRISTEN SNAIR, LOSS PREVENTION MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge G113'bp 18.00 12.00 .42 10.00 ? .00 40.42 So Answers: R. Thomas Kline 06/09/2008 COLGAN MARZZACCO By: Sworn and Subscibed to before me this day of A. D. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WOLL Vs.. NO. 08CV3384 KMART CORP CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 JOSEPH W GIBLEY, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s). Date: 07/25/08 File #: M354010 JOSEPH W GIBLEY, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 610-627-9500 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3336 By: Linda Morson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WOLL Vs. KMART CORP I No. 08CV3384 TO: CHRISTOPHER MARZZACCO, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 07/03/08 JOSEPH W GIBLEY, ESQUIRE 524 N PROVIDENCE RD PO BOX 1107 MEDIA, PA 19063 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3336 By: Linda Morson Enc(s): Copy of subpoena(s) Counsel return card File #: M354010 COI4VNKMLTH OF PENNSYLVANIA COU N'Y OF WOLL Vs. KMART CORP Fi le No. ngcy3384 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 SIEMENS, 300 CORPORATE CTR DR, CAMP HILL PA 17011 TO: AT=- PERSONNET. DEPARTMENT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: _ SEE ATTACHED ADDENDUM at MEDICAL LEGAL REPRODUCTIONS4AWCess;940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested b? this subpoena, together with the certificate of cc pliance, to the party making thi_ request at the address listed above. You have the right to seek in advance the rea.onablc- cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court ordei- oatpelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF T'HE FOLLOWING PERSON: NAME: .7C1RRPTN W C CRT Fyn ESQ ADDRESS: CE RD TELEPHONE : MEDIA, PA 19063 SUPREME COURT ID #215 - 3 3 5- 3 212 ATTORNEY FOR: DEFENDANT M354010-01 .. DATE: Z&V 1 o the Court BY THE COURT Pro tary C it Division Deputy !EF`. ?!O'i WOLL Vs. KMART CORP ADDENDUM TO SUBPOENA No. 08CV3384 CUSTODIAN OF RECORDS FOR: SIEMENS ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO: NAME: PATRICIA WOLL ADDRESS: 433 SAMPLE BRIDGE RD ENOLA PA DATE OF BIRTH: 02/23/56 SSAN: XXXXX5820 ALL EMPLOYMENT AND PERSONNEL RECORDS CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE. I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature or SIEMENS CUMBERLAND M354010-01 * * * SIGN AND RETURN THIS PAGE * * * CO +,LTH OF PENNSYLVANIA COUNPY OF CLI93ERLAND WOLL Vs. File No. 08CV3384 KMART CORP SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: MEDICAL SOLUTIONS USA, 51 VALLEY STREAM PKWY, MALVERN PA 19355 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED ADDENDUM at MEDICAL LEGAL REPRODUCTIONS4AWC6SS4940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested b? this subpoena, together with the certificate of caMliance, to the party making thi_ request at the address listed above. You have the right to seek in advance the rea.onable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court orde;- ompe 11 i ng you to co p 1 y with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: jog PH W aIBLEY, ESQ ADDRESS. - CE RD TELEPHONE : MEDIA, PA 19063 SUPREW COURT ID #215 - 3 3 5- 3 212 ATTORNEY FOR: DEFENDANT M354010-02 DATE: Z . Z /lZo fthe Court BY THE COURT Prot tart'/C1 Ci iI Division Deputy (Ef`. -'/y') ADDENDUM TO SUBPOENA WOLL Vs. KMART CORP No. 08CV3384 CUSTODIAN OF RECORDS FOR: MEDICAL SOLUTIONS USA ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: PATRICIA WOLL ADDRESS: 433 SAMPLE BRIDGE RD ENOLA PA DATE OF BIRTH: 02/23/56 SSAN: XXXXX5820 CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO. I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE. I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature or MEDICAL SOLUTIONS USA CUMBERLAND M354010-02 * * * SIGN AND RETURN THIS PAGE * * * OF PENNSYLVANIA COUNTY OF CUMBERLAND WOLL Vs. File No. nRCV33R4 KMART CORP SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 40092 T0: ORTHOPEDIC INST OF PA, 3399 TRINDLE RD, CAMP HILL PA 17011 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED ADDENDUM at MEDICAL LEGAL REPRODUCTIONS4AU%sA940 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested h? this subpoena, together with the certificate of compliance, to the party making thin request at the address listed above. You have the right to seek in advance the rea.onablc- cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court order cnrtpelling you to ca, ly with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLCWING PERSON: NAPE: _ -70ARPu w GIBLEY, ESQ ADDRESS: CE RD TELEPHONE: MEDIA, PA 19063 SUPREME COURT ID #215 - 3 3 5- 3 212 ATTORNEY FOR: DEFENDANT M354010-03 DATE: 711W,?%,I- S4,al o the Court BY THE DOURr: "-- ProtNDnotary/?j, Civ' Division Deputy ADDENDUM TO SUBPOENA WOLL Vs. KMART CORP No. 08CV3384 CUSTODIAN OF RECORDS FOR: ORTHOPEDIC INST OF PA ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: PATRICIA WOLL ADDRESS: 433 SAMPLE BRIDGE RD ENOLA PA DATE OF BIRTH: 02/23/56 SSAN: XXXXX5820 TO INCLUDE ALL PT RECORDS CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO. I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE. I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature or ORTHOPEDIC INST OF PA CUMBERLAND M354010-03 * * * SIGN AND RETURN THIS PAGE * * * WOLL Vs. KMART CORP Fi le No. OSCV3384 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: HOLY SPIRIT HOSP, 503 N 21ST ST, CAMP HILL PA 17011 AEP?RP?MaD rC.lRi7 isa^ (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: SEE ATTACHED --ADDENDUM at MEDICAL LEGAL REPRODUCTIONS, (AVjrbes#p40 DISSTON ST., PHILA., PA You may deliver or mail legible copies of the documents or produce things requested b? this subpoena, together with the certificate of ccrrpliance, to the party making thi-c request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thin subpoena may seek a court ordei- corrpe l l i ng you to carte l y with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: -7Q-gT.PW W GIBLEY, ESQ ADDRESS: 2$ Td T,TeTTTTL1AT l.E RD TELEPHONE. MEDIA, PA 19063 SUPREME COURT ID # 215-335-3212 ATTORNEY FOR: DEFENDANT M354010-04 DATE : 711VIKI Seal of a Court BY THE COURT' Prot tary/C1 C it Division Deputy rrsawwWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND cf ' . -1/9') ADDENDUM TO SUBPOENA WOLL Vs. No. 08CV3384 KMART CORP CUSTODIAN OF RECORDS FOR : HOLY SPIRIT HOSP Any and all hospital records, including microfilm, microfiche emergency room reports, x-ray reports, out-patient records physical therapy records, and any other information pertaining to: NAME: PATRICIA WOLL ADDRESS: 433 SAMPLE BRIDGE RD ENOLA PA DATE OF BIRTH: 02/23/56 SSAN: XXXXX5820 ALL FEES MUST BE APPROVED PRIOR TO RECORDS BEING FORWARDED. RECORD CUSTODIAN - COMPLETE AND RETURN [ ] RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Authorized signature or HOLY SPIRIT HOSP CUMBERLAND M354010-04 * * * SIGN AND RETURN THIS PAGE * * * r) {?'? ? -;? '" a ._? ... - ?-;"i ("` r `1 !?,? C? ?? -? ---- -' '? __-- ,r . • `7:3 C. ;r Joseph W. Gibley, Esquire jgiblev@giblevlaw.com Frank W. Baer, Esquire fbaer(agiblevlaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, Attorney for Defendant Kmart Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. KMART CORPORATION Defendants. NO.: 08-3384 ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL Kindly enter our appearance on behalf of Defendant, Kmart Corporation in the above- captioned matter. A jury of twelve is demanded. Respectfully submitted, MCWILLIAMS, P.C. Esquire Kmart Corporation r :? = ? - ri '?; ?-; , a? ?, -? : rrr d' ? _ ,. ?" -... -v ? ?? ? %-" °"r Joseph W. Gibley, Esquire jgibley-(a 'bleylaw.com Frank W. Baer, Esquire c , tbaerCa,gibleylaw.com a 77 Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road Attorney for Defendant = ?? 4 "' P.O. Box 1107 Kmart Corporation Media, PA 19063 - (610)627-9500 PATRICIA WOLL COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO.: 08-3384 KMART CORPORATION Defendants. STIPULATION TO DISMISS AND NOW, it is hereby stipulated by and between the plaintiff and Kmart Corporation that: 1) The proper name of the defendant is Kmart Corporation and the caption in any pleading or wherein any other name appears would be amended to read as such without further need to pled and; 2) The allegations contained in subparagraph 96) of the plaintiff's Complaint are dismissed and no responsive pleading thereto is required. COLGAN MARZZACCO, LLC GIBLEY AND McWILLIAMS, P.C. By - Christo her J. arzzacco, Esquire W. Gibley, Esquire Attorney for Plaintiff Ag6mey for Defendant Patricia Woll Kmart Corporation P..7 j pY ?_ C-3 l? ,ate .°? `w-? ?.. 3 ? ? ?"J t? 1;,3 t r `"?'? ??.? ?n3 .....?-? { .1 .3ys ._ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL V. Plaintiff No. 08-CV-3384-CV WART CORPORATION CIVIL ACTION -- LAW Defendant CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiffs Responses to the Request for Production of Documents of Defendant Kmart Corporation upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Joseph W. Gibley, Esquire 524 North Providence Road Media, PA 19063 Respectfully Submitted, COLGAN MARZZACCO, LLC Date: Christophe J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiff -,: Ci c-n -Is PATRICIA WOLL V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-CV-3384-CV KMART CORPORATION CIVIL ACTION -- LAW Defendant CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiffs Answers to the Expert Interrogatories of Defendant Kmart Corporation upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Joseph W. Gibley, Esquire 524 North Providence Road Media, PA 19063 Respectfully Submitted, COLGAN MARZZACCO, LLC Dater 1 ' Z f3 ?'? risto er J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiff a s,- gy - p ti IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL Plaintiff No. 08-CV-3384-CV V. KMART CORPORATION CIVIL ACTION -- LAW Defendant ti CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiffs Answers to the Interrogatories of Defendant Kmart Corporation upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Joseph W. Gibley, Esquire 524 North Providence Road Media, PA 19063 Date: 9- z ? Jb Respectfully Submitted, COLGAN MARZZACCO, LLC hristo her J. rzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiff m 4? r. COLGAN MARTZACCO, LLC. By: Christopher J. Marzzacco, Esquire I.D. No.: 78262 130 West Church Street, Suite 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL V. Plaintiff No. 08-CV-3384-CV KMART CORPORATION Defendant CIVIL ACTION -- LAW CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiff's Interrogatories, Plaintiffs Expert Interrogatories and Plaintiffs Request for Production of Documents Addressed to Defendant upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first- class, postage prepaid, as follows: Joseph W. Gibley, Esquire 524 North Providence Road Media, PA 19063 Respectfully Submitted, COLGAN MARZZACCO, LLC Date: -/-(, -4 -,-- Christopher J. arzza o, Esquire ?? ? ??? ? - ?' ? c .?° ?`"'rs ? ,,,;,,,, Joseph W. Gibley, Esquire igiblevniblUlaw.com Frank W. Baer, Esquire fbaerna ibleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WO LL Plaintiff, V. KMART CORPORATION Defendants. TO T. T,t {E THIS DOCUIENT CONTAINS A Lr ATIONS WHICH RF,UIRE A RESPONSIVE PLEADING PURSUfi,NP TO T.'E PENNSYLVANIA RULES OF CIVIL PROCEDUkE. YOU MUST FILE A RESPONSIVE PLEADING THERETO pp WITHIN 20A-&" jgIfjgje UaJOCUMENT, Kmart Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 DEFENDANT KMART CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, Kmart Corporation, by and through its attorneys Gibley and McWilliams, P.C. hereby responds to Plaintiff's Complaint and avers as follows: Admitted upon information and belief. 2. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. Kmart Corporation is a business entity authorized to conduct business within the Commonwealth of Pennsylvania. It is also admitted at all times relevant hereto Kmart Corporation operated a retail store designated as store number 4275 which was located on Carlisle Pike in Mechanicsburg, Cumberland County, Pennsylvania. Any other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 3. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 4. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 5. Denied. All allegations of negligence and carelessness on the part of the defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 6. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. -2- COUNTI 7. Defendant Kmart Corporation incorporates by reference the responses contained in paragraphs one (1) through six (6) of this Answer as though fully set forth herein at length. 8. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 9. Denied. All allegations of negligence and carelessness on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, Kmart Corporation denies the allegations contained in subparagraphs (a) through (i), (k) and (1) and strict proof is demanded thereof at time of trial. The allegations in subparagraphs 0) have been dismissed by stipulation and no responsive pleading thereto is required. 10. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 11. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded -3- thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 12. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 13. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 14. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 15. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 16. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 17. Denied. All of the allegations contained in this paragraph are specifically denied -4- and strict proof is demanded thereof at time of trial. WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. NEW MATTER Answering Defendant raises the following allegations singly, jointly or in the alternative as permitted by the Pennsylvania Rules of Civil Procedure. 18. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. 19. Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. 20. Plaintiff s claims are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or the doctrine of Contributory Negligence. 21. The incident in question was caused solely by the negligence of the plaintiff and this constitutes a complete defense to the within cause of action. 22. The incident in question was caused solely by an instrumentality or entity over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. 23. The incident in question was caused solely by a person or persons over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. -5- 24. The alleged negligence of the Answering Defendant, the existence of which is denied, was not the proximate cause of the alleged accident nor of the plaintiff's alleged injuries and/or other losses and/or was not the substantial factor of the cause of the injuries to the plaintiff or the accident out of which this case arises and therefore this constitutes a complete defense to the within cause of action. 25. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the Answering Defendant were unaware of the condition before the accident occurred and this constitutes a complete defense to the claimed cause of action. 26. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff failed to notice and avoid an open and obvious condition and this constitutes a complete defense to the claimed cause of action. 27. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and encountered it intentionally rather than choose an alternate route and this constitutes a complete defense to the claimed cause of action. 28. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and failed to avoid a known condition and this constitutes a complete defense to the claimed cause of action. -6- WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. Respectfully submitted, GIBLEY MCWILLIAMS, P.C. By: Joseph W. Gibley, Esquire Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation -7- VERIFICATION I, Frank W. Baer, Esquire, state that I am the attorney for defendant, Kmart Corporation in this matter and I am authorized to make this verification on their behalf and state that the facts contained in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct within the best of my knowledge, information and belief, and further that this statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Frank W. Baer, Esquire Date: 6 6, V 7 (Woll, JWG) -8- ALED-OFF AGE QE THE P-OT°? OTARY 2004 JUN -4 PM t : 37 PE MYLVANIA. Joseph W. Gibley, Esquire igibley@gibleylaw.com Frank W. Baer, Esquire fbaer(@gibleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. Attorney for Defendant Kmart Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 MOTION FOR SUMMARY JUDGMENT OF DEFENDANT KMART CORPORATION Defendant, Kmart Corporation (hereinafter "Kinart"), by and through its attorneys, Gibley and McWilliams, P.C., hereby files the within Motion for Summary Judgment and in support thereof avers as follows: Plaintiff initiated this action by filing a Complaint against "Kmart Corporation t/d/b/a; Sears Kmart" on July 2, 2008. (See Complaint, attached hereto and marked as Exhibit «A„ 2. The parties entered into a Stipulation to Dismiss the entity identified as "Sears Kmart" from the case and to identify the defendant in it's proper capacity as "Kmart Corporation". (See Stipulation to Dismiss, attached hereto and marked as Exhibit "B"). 3. Plaintiff is alleging premises liability against Kmart Corporation for negligence in permitting a wooden pallet containing merchandise to stand in a shopping aisle of it's Mechanicsburg, Pa store, causing the plaintiff to trip and fall to the floor on June 22, 2006. (See Plaintiff's Complaint, 15, attached hereto as Exhibit "A"). 4. Defendant Kmart Corporation filed an Answer to the Plaintiff's Complaint, denying all allegations of negligence and liability and raising new matter. (A true and correct copy of Kmart's Answer with New Matter is attached hereto as Exhibit "C"). 5. Ms. Woll's deposition was conducted on February 9, 2009. (A complete copy of plaintiffs deposition transcript is attached hereto as Exhibit "D"). 6. The discovery and facts as developed has shown that the plaintiff cannot sustain her burden of proof of negligence against Kmart Corporation. 7. It is axiomatic that in order for a plaintiff to establish a case of negligence she must show that the defendant breached a duty owed her. 8. On the morning of the incident, the plaintiff traveled to the Kmart Store with her cleaning woman, Kimberly Omer, for the purpose of buying cleaning supplys and a Martha Stewart brand basket. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 15-18). 9. Ms. Woll had shopped at the subject Kmart Store an estimated six times a year prior to this incident but did not recall whether there had been merchandise placed on pallets in the aisles on those other occasions. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 15 and 23). 10. On the date of the incident, the plaintiff was wearing Eddie Bauer footwear which she described as flat, rubber soled with a t-strap attached with velcro. She further described the shoes to include three canvas ribbons running across the front of the shoe. (See deposition -2- transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 22 and 31-32). 11. Ms. Woll alleges that she tripped when the canvas ribbon of her right shoe caught the bottom of the wooden pallet containing merchandise in the aisle of the Kmart Store causing her to fall to the floor. (See deposition transcript of Patricia Wool attached hereto as Exhibit "D" at ps. 30-33). 12. Plaintiff concedes that she saw the pallet of merchandise in the aisle of the Kmart Store before she attempted to walk around it. The following exchange took place at plaintiff's deposition: "Q. We were talking about the direction from which you approached the area where the incident occurred, and you were kind enough, in Woll #1, to draw arrows on the bottom photograph. When you were approaching that area before you tripped and fell did you see the pallet with the boxes of Puffs and the other merchandise that was on the pallet? A. Yes, I saw the boxes. Q. Okay, in fact, that's why you walked around it. Correct? A. That is correct. Q. Now, the - - you didn't have any difficulty seeing the boxes as you approached? A. No. Q. Alright. And you knew that in order to go to the area where you remember the Martha Stewart laundry baskets to be that you would have to go around the pallet with the boxes on it, correct? A. Yes. Q. Alright. So you knew that you would have to walk around this pallet that is in the photograph, Woll 1, top and bottom, correct? A. Yes. -3- Q. Okay. Now as you went around the pallet and before you tripped and fell, was there anything obstructing your view of the corner bottom of the pallet as you approached the area where you tripped and fell? A. Yes. Q. What was obstructing your view? A. The boxes. Q. Okay. What did you - - what did you believe was on the other side of the boxes as you were approaching that area? A. The aisle. Q. Okay. And what caused you to trip and fall? A. My foot made contact with the wood that is in the pallet." (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 41-43). 13. Plaintiff testified that she tripped over the wood of the pallet that was on the floor when the t-shaped portion of her shoe caught the pallet. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 30-31). 14. Although the plaintiff concedes that she saw the pallet of merchandise before approaching it, she indicates that her vision was directed to the shelves on the next aisle where she was looking for the Martha Stewart basket. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 38-40). 15. After her fall, and while the plaintiff was still on the floor, she took two photographs of the pallet of merchandise with her cell phone camera. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 26-27). 16. The photographs that plaintiff took with her cell phone, while she remained on the -4- floor, are attached hereto as Exhibit "E". 17. The parties identified one of the plaintiff's cell phone photographs as Vash #1 and during the course of her deposition the plaintiff marked the photograph to indicate the "general area" where she believes her right foot caught the wooden pallet. 18. A copy of Vash 1, marked up by the plaintiff during the course of her deposition, is attached hereto as Exhibit "F" 19. Plaintiff testified that she did not believe that anyone changed the position of the pallet from the time she tripped until the time she took the photograph with her cell phone camera. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 28-29). 20. During the course of the deposition the plaintiff attempted to indicate the area where she believes her right foot caught on the wooden pallet by drawing a T and then a circle within a triangle. 21. At first, during the course of her deposition, plaintiff testified that the photograph she took, identified as Vash 1, did not accurately depict the way the pallet looked when she tripped. The following exchange took place: Q. Do you believe that Vash 1 accurately depicts the way the pallet looked when you tripped? A. No, No, I do not. Q. How was it different? A. Because the angle of which I took it does not exemplify how the - - the base piece of wood shows coming from beneath, so in other words, the angle that I am taking is not the angle from which I fell. I'm on the other side. -5- r Q. Okay. So do I understand then that what you're saying is that the base piece of wood that's underneath the pallet, that that was protruding? A. It may have contributed. It was - - again, I didn't see it. Q. Okay. A. I'm merely showing you what I saw on the other side. So - - and I know that made contact with the wood. So I can only assume because I - - it's not - - because this is shorter. And certainly I wasn't high stepping. It was in this area that my shoe came in contact with the piece of wood. Q. Okay. - - A. We keep going back to this protruding, and I - - however you want to define that, but I certainly connected with that piece of - - with a piece of wood in this area that I circled. Q. Somewhere within that circle? A. That's correct. Q. Could have been the part of the pallet above that base piece. A. Or it could have been here, indicating. Q. But your not sure which one it was. A. One of them hit me. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 33-34). 22. Plaintiff conducted the deposition of Todd Vash, the Loss Prevention Manager at the Kmart Store on the date of the incident. (A complete copy of Mr. Vash's deposition transcript is attached hereto as Exhibit "G"). 23. Mr. Vash responded to the scene of the incident, attended to the plaintiff, and took two photographs of the area where the plaintiff alleges the incident occurred. The two photographs were identified as Vash 2 and attached to Mr. Vash's deposition transcript. The -6- same photographs were attached to plaintiff Woll's deposition and identified as Woll 1. Those photographs were marked by the plaintiff during the course of her deposition and the marked copy is attached hereto a5 Exhibit "H"). 24. The plaintiff testified that the bottom of the photograph of Vash 2 (also Woll 1) depicted the area where she believed her right foot contacted the pallet causing her to trip and fall. Plaintiff drew a circle on the corner of the pallet in the bottom photograph indicating where she believes she made contact with the pallet. 25. Plaintiff testified that she believes the bottom photograph taken by Mr. Vash shows protruding wood that does not appear in the photograph that she took with her camera phone. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 34-35). 26. Plaintiff used the same photograph taken by Mr. Vash to show her direction of travel prior to the accident. She identified her direction of travel by drawing arrows on the bottom photograph. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 36-38). 27. Plaintiff is alleging that she sustained serious injuries to her left knee as a result of the negligence of the defendant. (See Plaintiff's Complaint attached hereto as Exhibit "A", 114). 29. The facts developed in discovery and the photographic evidence fail to establish that there existed an unreasonably dangerous condition on the premises of the Kmart Store. 30. Plaintiff has failed to provide a prima facie claim for negligence against Kmart since plaintiff cannot proof that Kmart breached any duty to the plaintiff. 31. Plaintiff concedes that she was aware of the palletized merchandise on the aisle floor and caught her right shoe on the pallet, which caused her to trip and fall. -7- 32. Plaintiff presents no competent evidence in this case establishing that Kmart should expect that the condition is one which plaintiff would not reasonably discover or realize the danger, or will fail to protect herself against so that plaintiff does not establish a prima facie case. 33. The accident in question was caused by the negligence of the plaintiff in failing to use due care and observe the obvious conditions present, which she acknowledged to exist, at the time of the accident. 34. By her own admission, plaintiff saw and was aware of the palletized merchandise on the aisle floor. 35. Defendant Kmart Corporation had no duty to warn her of the condition. WHEREFORE, defendant Kmart Corporation respectfully requests that this Court entered Summary Judgment for Kmart Corporation and against plaintiff, Patricia Woll. Respectfully submitted, GIBLEY MC I-LLII By: Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation -8- Joseph W. Gibley, Esquire igibley@gibleylaw.com Frank W. Baer, Esquire fbaer gibleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 Attorney for Defendant Kmart Corporation PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 DEFENDANT KMART CORPORATION'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1. MATTER BEFORE THE COURT Defendant Kmart Corporation (hereinafter referred to as "Kmart"), Motion for Summary Judgment. II. STATEMENT OF THE QUESTION INVOLVED Does the record as developed through discovery establish any facts that Kmart Corporation was negligent as to the alleged condition which caused the plaintiff to fall? III. PROPOSED ANSWERS No. IV. PROCEDURAL FACTS Plaintiff commenced this civil action by way of Complaint attached hereto as Exhibit "A", seeking damages for personal injuries allegedly sustained at the Kmart store located on Carlisle Pike, Mechanicsburg, Cumberland County, PA, on June 22, 2006. Plaintiff alleges that she was caused to trip and fall on a pallet of merchandise goods located on the floor/aisle. Defendant Kmart filed a responsive pleading denying any and all claims of negligence. V. FACTS Plaintiff alleges that on or about June 22, 2006, she tripped and fell on a wooden pallet containing merchandise in the aisle of the Kmart Store located in Mechanicsburg, Cumberland County, PA. (See Complaint, 15 attached hereto as Exhibit "A"). On the morning of the incident, the plaintiff traveled to the Kmart Store with her cleaning woman, Kimberly Omer, the purpose of buying cleaning supplys and a Martha Stewart brand basket. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 15-18). Ms. Woll had shopped at the subject Kmart Store an estimated six times a year prior to this incident but did not recall whether there had been merchandise placed on pallets in the aisles on those other occasions. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 15 and 23). On the date of the incident the plaintiff was wearing Eddie Bauer footwear which she described as flat, rubber soled with a t-strap attached with velcro. She further described the shoes to include three canvas ribbons running across the front of the shoe. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D" at ps. 22 and 31-32). She states that she tripped when the canvas ribbon of her right shoe caught the bottom of the wooden pallet containing merchandise in the aisle of the Kmart Store causing her to fall to the floor. (See deposition transcript of Patrician Woll attached hereto as Exhibit "D" at ps. 30- 33). -2- Plaintiff concedes that she saw the pallet of merchandise in the aisle of the Kmart Store before she attempted to walk around it. The following exchange took place at plaintiff's deposition: "Q. We were talking about the direction from which you approached the area where the incident occurred, and you were kind enough, in Woll #1, to draw arrows on the bottom photograph. When you were approaching that area before you tripped and fell did you see the pallet with the boxes of Puffs and the other merchandise that was on the pallet? A. Yes, I saw the boxes. Q. Okay, in fact, that's why you walked around it. Correct? A. That is correct. Q. Now, the - - you didn't have any difficulty seeing the boxes as you approached? A. No. Q. Alright. And you knew that in order to go to the area where you remember the Martha Stewart laundry baskets to be that you would have to go around the pallet with the boxes on it, correct? A. Yes. Q. Alright. So you knew that you would have to walk around this pallet that it is in the photograph, Woll 1 top and bottom, correct? A. Yes. Q. Okay. Now as you went around the pallet and before you tripped and fell, was there anything obstructing your view of the corner bottom of the pallet as you approached the area where you tripped and fell? A. Yes. Q. What was obstructing your view? A. The boxes. -3- Q. Okay. What did you - - what did you believe was on the other side of the boxes as you were approaching that area? A. The aisle. Q. Okay. And what caused you to trip and fall? A. My foot made contact with the wood that is in the pallet." (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 41-43). Plaintiff testified that she tripped over the wood of the pallet that was on the floor when the t-shaped piece of her shoe caught the pallet. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 30-31). Although the plaintiff concedes that she saw the pallet of merchandise before approaching, she indicates that her vision was directed to the shelves on the next aisle where she was looking for the Martha Stewart basket. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 38-40). After her fall, and while the plaintiff was still on the floor, she took two photographs of the pallet of merchandise with her cell phone camera. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 26-27). The photographs that plaintiff took with her cell phone, while she remained on the floor, are attached hereto as Exhibit "E". The parties identified one of the plaintiff cell phone photographs as Vash #1 and during the course of her deposition the plaintiff marked the photograph to indicate the "general area" where she believes her right foot caught the wooden pallet. A copy of Vash 1, marked up by the plaintiff during the course of her deposition is -4- attached hereto as Exhibit 'T" Plaintiff testified that she did not believe that anyone changed the position of the pallet from the time she tripped until the time she took the photograph. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 28-29). During the course of the deposition the plaintiff attempted to indicate the area where she believes her right foot caught on the wooden pallet by drawing a T and then a circle within a triangle. At first, plaintiff testified that the photograph she took, identified as Vash 1 did not accurately depict the way the pallet looked when she tripped. The following exchange took place: Q. Do you believe that Vash 1 accurately depicts the way the pallet looked when you tripped? A. No, No, I do not. Q. How was it different? A. Because the angle of which I took it does not exemplify how the - - the base piece of wood shows coming from beneath, so in other words, the angle that I am taking is not the angle from which I fell. I'm on the other side. Q. Okay. So do I understand then that what you're saying is that the base piece of wood that's underneath the pallet, that that was protruding? A. It may have contributed. It was - - again, I didn't see it. Q. Okay. A. I'm merely showing you what I saw on the other side. So - - and I know that made contact with the wood. So I can only assume because I - - it's -5- not - - because this is shorter. And certainly I wasn't high stepping. It was in this area that my shoe came in contact with the piece of wood. Q. Okay. - - A. We keep going back to this protruding, and I - - however you want to define that, but I certainly connected with that piece of - - with a piece of wood in this area that I circled. Q. Somewhere within that circle? A. That's correct. Q. Could have been the part of the pallet above that base piece. A. Or it could have been here, indicating. Q. But your not sure which one it was. A. One of them hit me. (See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 33-34). Plaintiff conducted the deposition of Todd Vash, the Loss Prevention Manager at the Kmart Store on the date of the incident. (A copy of Mr. Vash's deposition transcript is attached hereto as Exhibit "G"). Mr. Vash responded to the scene of the incident, attended to the plaintiff, and took two photographs of the area where the plaintiff alleges the incident occurred. The two photographs were identified as Vash 2 and attached to Mr. Vash's deposition transcript. The same photographs were attached to plaintiff Woll's deposition and identified as Woll 1. Those photographs were marked by the plaintiff during the course of her deposition and the marked copy is attached hereto as Exhibit "H"). The plaintiff testified that the bottom of the photograph of Vash 2 (Woll 1) depicted the area where she believed her right foot contacted the pallet causing her to trip and fall. Plaintiff -6- drew a circle on the corner of the pallet in the bottom photograph showing the area where she believes her foot made contact with the pallet.. Plaintiff testified that the bottom photograph taken by Mr. Vash shows protruding wood that does not appear in the photograph that she took with her camera phone. ((See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 34-35). Plaintiff used the same photograph taken by Mr. Vash to show her direction of travel prior to the accident. She identified her direction of travel by drawing arrows on the bottom photograph. ((See deposition transcript of Patricia Woll attached hereto as Exhibit "D", at ps. 36-38). Plaintiff is alleging that she sustained serious injuries to her left knee as a result of the negligence of the defendant. (See Plaintiff's Complaint attached hereto as Exhibit "A", ¶14). The facts developed in discovery and the photographic evidence fail to establish that there existed an unreasonably dangerous condition on the premises of the Kmart Store. Plaintiff has failed to provide a prima facie claim for negligence against Kmart since plaintiff cannot proof that Kmart breached any duty to the plaintiff. Plaintiff concedes that she was aware of the palletized merchandise on the aisle floor and, through her own fault, caught her right show on the pallet, which caused her to trip and fall. Plaintiff presents no competent evidence in this case establishing that Kmart should expect that the condition is one which plaintiff would not reasonably discover or realize the danger, or will fail to protect herself against so that plaintiff does not establish a prima facie case. The accident in question was caused by the negligence of the plaintiff in failing to use due care and observe the conditions present, which she acknowledged to exist, at the time of the -7- accident. By her own admission, plaintiff saw and was aware of the palletized merchandise on the aisle floor. VI. LEGAL ARGUMENT A. Summary Judgment Standard Pennsylvania Rule of Civil Procedure 1035.2 provides in relevant part: (a) After the relevant pleadings are closed, but within such time as to not unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action of defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, as adverse party which will bear the burden of proof as trial has failed to produce evidence of facts essential to the cause of action or defense in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. A Motion for Summary Judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions filed with the Court, together with affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Pennsylvania v. Riverview Leasing, Inc., 167 Pa.Commw. 32, 648 A.2d 580 (1994); Hopewell Estates, Inc. v. Kent, 435 Pa.Super. 471, 646 A.2d 1192 (1994). A defendant may make the showing necessary to support the entry of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy -8- the elements of his cause of action. Godlewski v. Pars Manufacturing Co. 597 A.2d 106, 408 Pa.Super. 425 (1991). A party seeking to avoid the entry of summaryjudgment against him or her may not merely rest on averments in the pleadings; the party must show that there is a genuine issue for trial once a properly supported summary judgment motion confronts him or her. Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa.Super. 563, 631 A.2d 674 (1993), appeal denied, 647 A.2d 895 (1993); Johnson v. Harris, 419 Pa.Super. 541, 615 A.2d 771 (1992). A party opposing summary judgment must adduce sufficient evidence on issues essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor; the failure to adduce this evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Ertel v. Patriot- News Company, 544 Pa. 93, 674 A.2d 1038 (1996). The purpose of a motion for summary judgment is to expedite the trial of a matter, Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973), and permits a court to avoid a useless trial when there are no issues of fact and the controversy may be determined as a matter of law. Williams v. Pantalone, 53 Westmoreland L.. 17 (1970). As the Pennsylvania Supreme Court has noted: We have a summary judgment rule in the Commonwealth in order to dispense with a trial of a case (or in some matters, issues in a case) where a party lacks the beginnings of evidence to establish or contest a material issue... Forcing parties to go to trial on a meritless claim under the guise of effectuating the summary judgment rule is a perversion of that rule. Ertel v. Patriot-News Company, supra., 674 A.2d at 1042. Summary judgment should be granted where, as here, there exists a clear right to the -9- judgment and the facts are not subject to dispute. Zemprelli v. Scranton, 102 Pa.Commw. 637, 519 A2d. 518 (1986). B. Negligence Standard and the Failure of Plaintiff to Establish a Prima Facie Case In Pennsylvania, to prevail in a negligence action, a plaintiff must prove that (1) the defendant owed a duty of care; (2) the defendant breached that duty; (3) the plaintiff sustained damages; and (4) the damages were caused by defendant's breach. Herczeg v. Hampton Tp. Mun. Authority, 766 A.2d 866, 871 (Pa. Super. 2001). If any element is not proven, then the cause of action must fail. Id. In the instant matter, the plaintiff cannot prove that the moving defendant violated a duty owed to the plaintiff and, therefore, plaintiff's claim must fail. Whether a duty exists under a particular set of facts is a question of law. Id. at 871. Pennsylvania law is well settled that a possessor of land, while owing a duty of care to his patrons, is not an insurer of the safety of persons on its property. Zito v. Merit Outlet Stores, 436 Pa-Super. 213, 216, 647 A.2d 573, 575 (1994); Myers v. Penn Traffic Co., 414 Pa.Super. 181, 184-85, 606 A.2d 926, 928 (1992). As the Pennsylvania Superior Court has stated: A possessor of land is not an insurer of his business invitees, and plaintiffs evidence must establish some degree of negligence on defendant's part in order to recover. (Citations omitted.) Furthermore, a jury cannot be permitted to return a verdict based on speculation and not supported by adequate evidence or reasonable inferences. `We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based.' (Citations omitted.) Circumstantial evidence is adequate to prove the plaintiff s case and `[i]t is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability ... ,' (citations omitted) however, the mere happening of an accident is no -10- evidence of negligence and does not raise a presumption of negligence. (Citations omitted.) Winkler v. Seven Springs Farm, 240 Pa. Super. 641, 646-47, 359 A.2d 440, 442-43 (1976). The duty owed by a landowner to an invitee is set forth in the Restatement (Second) of Torts §343, which provides: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only 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. (Emphasis added). Moreover, the Pennsylvania Superior Court has specifically held that the mere happening of an accident due to a condition on the land is neither, in and of itself, evidence of a breach of a duty of care owed, nor does it raise a presumption of negligence. Myers v. Penn Traffic Co., 414 Pa. Super. at 184, 606 A.2d at 928. 1. Plaintiffs Cannot Sustain Her Burden of Proof That Moving Defendant Was Negligent Because There is no Proof that Unreasonably Dangerous Condition Existed Before the Plaintiffs Fall Pursuant to §343 of the Restatement (2nd) of Torts, it is necessary that a plaintiff prove that the condition complained of presents "unreasonable risk of harm" to an invitee. She must, -11- therefore, first prove a dangerous condition existed before the accident. By her own admission, the plaintiff cannot do so. Although the plaintiff claims that the base of the wooden pallet presented a trip hazard, plaintiff presented photographs she took immediately after the incident which clearly do not show an unreasonably dangerous condition, or a dangerous protruding condition as the plaintiff has alleged in her Complaint. During the course of her deposition, the plaintiff was presented with two sets of photographs, one taken by the plaintiff and the other by Mr. Vash, the Loss Prevention Manager. She marked both sets of photographs at the time of the deposition circling the area where she believed she was caused to trip and fall when the ribbon of her right canvas shoe caught on the wooden pallet. It is respectfully submitted that the area on the photograph circled by the plaintiff does not depict an unreasonably dangerous condition as is required under §343 of Restatement (2nd) of Torts in order to establish liability against a defendant. Furthermore, plaintiff testified that she saw the pallet and its merchandise well before the incident as she was walking down the aisle. Prior to the incident, she knew she was going to have to "navigate" around the pallet and, indeed, as she passed, turned to her right at which time her right shoe contacted the corner of the pallet. Accordingly, by her own admission, the plaintiff appreciated the fact that the pallet with its merchandise was in the aisle and she simply failed to walk around the standing object. She does not allege that she never saw the pallet or the merchandise prior to the incident. She simply tripped over an object which was there to be seen, and, which she, in fact, did see. Again, the photographs taken by the plaintiff of the condition supports that the condition simply was not unreasonably dangerous as a matter of law. There is no evidence that a dangerous condition existed before the fall and plaintiff -12- cannot sustain her burden of proof and summary judgment is appropriate. 2. The Open and Obvious Condition Warrants the Granting of Summary Judgment In the alternative, Section 343(b) provides that a possessor of land has no duty to warn its invitees of an open and obvious condition. The Pennsylvania Supreme Court addressed obvious dangers in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). "A danger is deemed to be `obvious' when `both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment"'. 503 Pa. at 185 469 A.2d at 123 (citing Restatement (2nd) of Torts §343(A) Comment(b). In the instant case, the plaintiff admits that she saw the pallet before the incident as she was walking toward the pallet. The plaintiff testified upon seeing the pallet and merchandise, it was her intention to walk around it and make a right hand turn after passing it. Photographs taken by Mr. Vash were used in her deposition and she marked the photograph to show her direction of travel at the time of the incident. The plaintiff admits that she saw the pallet and merchandise, nevertheless, she testified that she was caused to trip when her right foot contacted the pallet. Plaintiff would have this Court excuse her responsibility because of her claim that she was distracted and not attentive to the pallet because she was looking for the Martha Stewart display. The attractive display doctrine would not apply to these facts since the plaintiff concedes that she saw and appreciated the position of the pallet in the aisle at all times relevant. Plaintiff had a duty to look where she was walking and to see that which was obvious. In the instant matter, the plaintiff admits that she saw the pallet and merchandise but, nevertheless, -13- failed to avoid striking it with her right foot. Under Carrender, an obvious danger exists, for which a possessor of land is not responsible if a condition exists where the risk is apparent to and would be recognized by a reasonable man exercising normal perception, intelligence and judgment. Plaintiff failed to take the precautionary measures of a reasonable person. Despite the fact that plaintiff appreciated the fact that the pallet and merchandise was standing in the aisle, she failed to employ the precautionary measures of a reasonable person in avoiding contacting it with her right foot. In overturning the Trial Court's judgment in favor of plaintiff, the Superior Court stated "it is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers". Carrender 503 Pa. at 188, 469 A.2d at 126. Clearly then, if a reasonable invitee is aware that a pallet and merchandise exists on an aisle floor, and that reasonable invitee would recognize that the pallet, by it's mere presence, constitutes a tripping hazard, then Kmart had no duty to warn its invitees of the pallet and merchandise. Therefore, Kmart is not responsible for any injuries sustained by plaintiff where she failed to avoid the pallet and merchandise. Under 343(b) of the Restatement (2nd) of Torts, Kmart had no duty to warn plaintiff of an open and obvious condition on the aisle floor, and under Carrender plaintiff's claim must fail. III. -14- IV. CONCLUSION For the foregoing reasons, moving defendant, Kmart Corporation, respectfully requests that judgment be entered in its favor and against the plaintiff. Respectfully submitted, GIBLEY AND cWILLIAMS, P.C. By: rank W. Baer, Esquire Counsel for Defendant Kmart Corporation -15- VERIFICATION I, Frank W. Baer, Esquire, state that I am the attorney for defendant, Kmart Corporation in this matter and I am authorized to make this verification on their behalf and state that the facts contained in the foregoing Motion for Summary Judgment are true and correct within the best of my knowledge, information and belief; and further that this statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Frank W. Baer, Esquire Date: lr islo9 (Woll - FWB) . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff V. No. -CV- 03 - ,338y -CV 0, V-4 l Tet'. Kmart Corporation t/d/bla: Sears Kmart Defendant CIVIL ACTION - LAW NOTICE TO DEFEND AND CLAIM RIGHTS 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 ENTERINGA 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 TC 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. YOU MAY LOSE MONEY OIL PROPERTY OR 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 WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOTAFFORD 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. CUMBERLAND COUNTY BAR ASSOCIATION -r? 32 SOUTH BEDFORD STREET r' CARLISLE, PENNSYLVANIA 17013 - -_' (717) 248.3166 -1- COLGAN MARZZACCO, LLC. 130 W. Church Street, Suite 100 Dillsburg, PA 17109 by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 (717) 502-5000 Counsel for Plaintiff JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff V. Kmart Corporation t/d/b/a: Sears Kmart Defendant COMPLAINT No. -CV- -CV CIVIL ACTION -- LAW AND NOW, Plaintiff, Patricia Woll, by and through her Attorneys, Christopher Marzzacco of Colgan Marzzacco, LLC. and David Sherman of Solomon, Sherman & Gabay, hereby files this Complaint and civil action against Defendant, Kmart Corporation, t/d/b/a: Sears Kmart, and respectively avers the following: 1. Plaintiff, Patricia Woll is an adult individual residing at 433 Sample Bridge Road, Enola, Cumberland County, Pennsylvania. 2. Defendant, Kmart Corporation t/d/b/a: Sears Kmart, is a corporation, business and/or legal entity authorized to do business in Pennsylvania, with an office/store located in Cumberland County, Pennsylvania and at all times pertinent hereto owned, operated, controlled, maintained and possesped the premises known as "Stare # 04275," located on Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. -2- I At all times pertinent hereto, the defendant, Kmart Corporation t/d/b/a: Sears Kmart (hereinafter referred to as "Kmart"), owned, operated, controlled, maintained and possessed the aforementioned premises. At all times pertinent hereto, Plaintiff was a customer and business invitee, lawfully on defendant's premises. 4. At all times pertinent hereto, all of the acts and omissions of the defendant were committed by the defendant through its agents, servants, workers and/or employees and by others over whom the defendant had control and/or authority. 5. On or about June 22, 2006, the premises was so negligently and carelessly maintained by the defendants, to wit: a wooden pallet containing products and/or merchandise was placed in the walkway of a shopping isle, causing plaintiff to slip and/or trip and fall to the floor, as set forth more particularly hereinafter. 6. The aforementioned negligence of the defendant caused the injuries and damages suffered by plaintiff, set forth more particularly hereinafter. COUNT 1 PATRICIA WOLL v. KMART 7. Paragraphs 1-6 are incorporated by reference as though fully set forth at length herein. 8. By reason of the negligence of the defendants acting as aforesaid, the plaintiff suffered personal injuries and/or property damage as a result of said incident. 9. The aforesaid incident was a direct and proximate result of the negligence -3- ? ?a and carelessness of the defendant and such negligence and carelessness consisted of the following: (a) Kmart failed to inspect the area; (b) Kmart failed to cure the defect they created; (c) Kmart failed to monitor the area; (d) Kmart failed to cordon off the area; (e) Kmart failed to provide a safe walkway in the isle; (f) Kmart failed to post proper warnings in the isle; (g) Kmart failed to use appropriate materials in the isle; (h) Kmart failed to have proper staff and employees in the area; (I) Kmart failed to train their staff and employees; Kmart was otherwise negligent in fact and at law, to be determined at trial; (k) Kmart violated its procedures and safety policies; and (I) Kmart violated the Restatement (Second) of Torts. 10. The servants, agents, workers and/or employees of the defendant who controlled the premises knew or should have known of the dangerous condition which caused the aforesaid incident. 11. The aforesaid dangerous condition existing at the area of the premises existed for a sufficient period of time to constitute notice to the defendant of the existence of the same. -4- 1 2. The defendant had sufficient opportunity to eliminate, abate, resolve and/or correct the dangerous condition existing on the property to prevent and/or minimize the aforesaid dangerous condition. 13. All the acts and omissions of the defendant were committed by the defendant by and trough its agents, servants, workers and/or employees and other individuals acting on behalf of and for the benefit of the defendant. 14. As a result of the aforesaid accident, Plaintiff, Patricia Woll, sustained serious injuries to her left knee and surrounding areas and other injuries, including but not limited to a torn meniscus and severely bruised patella and all other injuries, both known and unknown, all of which have caused a loss and impairment of a body part and function and may further cause in the future, great pain, suffering and agony and a deprivation of her normal mode of living and a loss of earnings and/or loss of earning ability and capacity in the future and the enjoyment of life. 15. As a further result of the aforesaid accident and resulting injuries, the plaintiff has been unable in the past and is likely to be unable in the future to attend to her usual duties and activities and life's pleasures, all to her great financial loss and detriment. 16. As a further result of the aforesaid incident and resulting injuries, the plaintiff has been and may in the future be required to expend substantial sums of money for medical services and treatment of the injuries as aforesaid, all to her great financial loss and detriment. 17. As a result of the aforesaid injuries, the plaintiff has incurred medical and -5- other expenses to treat her injuries and may incur additional expenses in the future. WHEREFORE, Plaintiff, Patricia Woll, demands judgment in her favor and against the defendant in excess of thirty-five thousand dollars ($35,000.00). Respectfully submitted by: COQ GANAARZZAtCO, LLC??- by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 130 W. Church Street, Suite 100 Dillsburg, PA 17109 (717) 502-5000 Attomey for Plaintiff b t6? Solomon, Sherman Gabay by: David Sherman, Esquire PA Attomey I D# 36437 8 Penn Center 628 JFK Boulevard, Suite 2200 Philadelphia, PA 19103 (215) 665-1100 Attomey for Plaintiff -6- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Wolf Plaintiff No. -CV- _CV V. Kmart Corporation Vd/b/a: Sears Kmart CIVIL ACTION -- LAW VERIFIQATION I, Patricia Wolf, verify that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Date: ?,?0l, t l ricia Woll -7- CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of the Notice to Defend and Claim Rights upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Bill Morman Claims Examiner III Sears Kmart Incident Center Sedgwick Claims Management Services, Inc. P.O. Box 14448 Lexington, KY 40512-4448 Date: S - Z y`G COLGANgAARZZACCO, LI U v Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Aftomey for Plaintiff \? Joseph W. Gibley, Esquire l--ibley 6bleylaw.com Frank W. Baer, Esquire fbaerna fg_bleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND MCWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. Attorney for Defendant Kmart Corporation COURT OF CKivUA ih FLEAS CUMBERLAND COUNTY, PA w -V F6,1 NO.: 08-3384 7771- . ?r N STIPULATION TO DISMISS GIBLEY AND McWILLIAMS, P.C. -4 (t) AND NOW, it is hereby stipulated by and between the plaintiff and Kmart Corporation that: 1) The proper name of the defendant is Kmart Corporation and the caption in any pleading or wherein any other name appears would be amended to read as such without further need to pled and; 2) The allegations contained in subparagraph 90) of the plaintiffs Complaint are dismissed and no responsive pleading thereto is required. COLGAN MARZZACCO, LLC By q Chrisher J. arzzacco, Esquire 6Attorney for Plaintiff Patricia Woll By: W. Gibley, Esquire y for Defendant Kmart Corporation 0 n s -c h Joseph W. Gibley, Esquire jgiblOO)gibleylaw.com Frank W. Baer, Esquire fbaera,gibleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Attorney for Defendant Kmart Corporation Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. KMART CORPORATION Defendants. NO.: 08-3384 DEFENDANT KMART CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, Kmart Corporation, by and through its attorneys Gibley and McWilliams, P.C. hereby responds to Plaintiff's Complaint and avers as follows: Admitted upon information and belief. 2. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. Kmart Corporation is a business entity authorized to conduct business within the Commonwealth of Pennsylvania. It is also admitted at all times relevant hereto Kmart Corporation operated a retail store designated as store number 4275 which was located on Carlisle Pike in Mechanicsburg, Cumberland County, Pennsylvania. Any other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 3. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 4. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 5. Denied. All allegations of negligence and carelessness on the part of the defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 6. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. -2- COUNTI 7. Defendant Kmart Corporation incorporates by reference the responses contained in paragraphs one (1) through six (6) of this Answer as though fully set forth herein at length. 8. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 9. Denied. All allegations of negligence and carelessness on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, Kmart Corporation denies the allegations contained in subparagraphs (a) through (i), (k) and (1) and strict proof is demanded thereof at time of trial. The allegations in subparagraphs 0) have been dismissed by stipulation and no responsive pleading thereto is required. 10. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintif'f's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 11. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded -3- thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 12. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 13. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 14. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 15. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 16. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 17. Denied. All of the allegations contained in this paragraph are specifically denied -4- and strict proof is demanded thereof at time of trial. WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. NEW MATTER Answering Defendant raises the following allegations singly, jointly or in the alternative as permitted by the Pennsylvania Rules of Civil Procedure. 18. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. 19. Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. 20. Plaintiff's claims are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or the doctrine of Contributory Negligence. 21. The incident in question was caused solely by the negligence of the plaintiff and this constitutes a complete defense to the within cause of action. 22. The incident in question was caused solely by an instrumentality or entity over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. 23. The incident in question was caused solely by a person or persons over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. -5- 24. The alleged negligence of the Answering Defendant, the existence of which is denied, was not the proximate cause of the alleged accident nor of the plaintiff's alleged injuries and/or other losses and/or was not the substantial factor of the cause of the injuries to the plaintiff or the accident out of which this case arises and therefore this constitutes a complete defense to the within cause of action. 25. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the Answering Defendant were unaware of the condition before the accident occurred and this constitutes a complete defense to the claimed cause of action. 26. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff failed to notice and avoid an open and obvious condition and this constitutes a complete defense to the claimed cause of action. 27. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and encountered it intentionally rather than choose an alternate route and this constitutes a complete defense to the claimed cause of action. 28. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and failed to avoid a known condition and this constitutes a complete defense to the claimed cause of action. -6- WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. Respectfully submitted, GIBLEY AND MCWILLIAMS, P.C. draft By: Joseph W. Gibley, Esquire Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation -7- VERIFICATION I, Joseph W. Gibley, Esquire, state that I am the attorney for defendant, Kmart Corporation in this matter and I am authorized to make this verification on their behalf and state that the facts contained in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct within the best of my knowledge, information and belief; and further that this statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Joseph W. Gibley, Esquire Date: (Woll, JWG) -8- kl- 10 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, PLAINTIFF NO. 08-CV-3384-CV V KMART CORPORATION, DEFENDANT CIVIL ACTION - LAW DEPOSITION OF: PATRICIA WOLL TAKEN BY: DEFENDANTS BEFORE: DONNA E. GLADWIN, REPORTER NOTARY PUBLIC DATE: FEBRUARY 9, 2009, 3:28 P.M. PLACE: COLGAN MARZZACCO, LLC 130 WEST CHURCH STREET DILLSBURG, PENNSYLVANIA APPEARANCES: COLGAN MARZZACCO, LLC BY: CHRISTOPHER J. MARZZACCO, ESQUIRE - AND - SOLOMON, SHERMAN & GABAY BY: DAVID SHERMAN, ESQUIRE FOR - PLAINTIFF GIBLEY AND MCWILLIAMS, PC BY: FRANK W. BAER, ESQUIRE FOR - DEFENDANT 1 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 0 Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page PATRICIA WOLL FF.RRTTARV 0 7nf1a Page 2 Page 4 1 WITNESS 1 finish your answer before I start my next question okay? 2 NAME EXAMINATION , 2 A Yes. 3 PATRICIA WOLL 3 Q If at any time I ask you a question that you simply 4 BY MR. BAER 3 4 don't know the answer to, it's fine to say you don't know 5 . 5 1 don't want you to guess and neither does your able 6 6 counsel, okay. 7 7 If at any time you need to speak with counsel I'm A , 8 happy to get up and leave the room. I don't anticipate 9 9 that will happen. If you need to use the facilities, just to EXHIBITS 10 interrupt us. For whatever reason, you need to make a 11 WOLL DEPOSITION EXHIBIT NO. PRODUCED AND MARKED II call, all right? 12 1. PHOTOGRAPHS 36 12 A Okay. Thanks. 13 13 Q I don't expect that this will take more than an 14 14 hour and a half, maybe less. 15 15 A Thank you. 16 16 Q Do you understand those instructions? 17 17 A Yes, I do. 18 18 Q Let me ask you, are you taking any kind of narcotic 19 19 medication, or are you under the influence of any kind of 20 20 substance that would affect your ability to understand any 21 21 of the questions I ask you today? 22 22 A No, I am not. 23 23 Q Have you -- in the last ten years have you ever 24 24 been convicted of a crime involving dishonesty? 25 25 A No, I have not. Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel for 3 the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 PATRICIA WOLL, called as a witness, being duly 9 sworn, testified as follows: 10 11 DIRECT EXAMINATION 12 BY MR. BAER: 13 Q Good afternoon, Mrs. Woll. 14 A Hi. 15 Q Am I pronouncing your name correctly? 16 A It's Ms., but it is Woll. 17 Q My name is Frank Baer, and you were here when Mr 18 Vash gave testimony. So you probably heard some of the 19 instructions that your counsel gave to him. I'm going to 20 repeat those. 21 It's important for you to verbalize your answers 22 instead of a gesture so the court reporter can take down 23 everything that's being said. 24 Similarly, it makes a better transcript if we don't 25 talk over one another. So I'll try to wait for you to Page 5 1 Q Okay. You answered interrogatories in this case, 2 and they provide basic information. I just want to go over 3 some of the things quickly. 4 Do you still reside at 341 North 19th Street? 5 A No. 6 Q Where do you live? 7 A 433 Sample, S-A-M-P-L-E, Bridge, B-R-I-D-G-E, Road. 8 And that's in Enola. And my zip is 17025. 9 Q When did you move to that address? 10 A Actually I moved this year. I'm sorry. It's 11 2008. 2008 of August, August, 2008. 12 Q Okay. And prior to moving to your current address 13 did you reside at 341 North 19th Street, or was there 14 another residence in between? 15 A Can I just say something? I was at -- I was at 16 433 when the incident occurred. I lived for a year at 341 17 North 19th Street in Camp Hill. I have since moved back to 18 the residence at which I lived when the accident occurred. 19 Q Okay. With whom do you reside? 20 A His name is Robert Bobincheck, B-O-B-I-N-C-H-E-C-K. 21 Q Is that your significant other? 22 A Yes, he is. 23 Q How long has he been your significant other? 24 A 15 years. 25 Q Where are you working currently? HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-393-5101 Page 2 - Page 5 PAM CIA WOLL Multi-Page TM F?BRL1ARY 9. 2009 Page 6 Page 8 1 A -I'm currently employed by Siemens, S-I-E-M-E-N-S. i Q Who was your supervisor at Siemens at the time of 2 And I am in what they call the managed services. And I am 2 the incident? 3 currently with Pinnacle Health still in Harrisburg. 3 A Robert, R-O-B-E-R-T, Bigley, B-I-G-L-E-Y. 4 Q What do you do for them? 4 Q Is he still with Siemens? 5 A I am what they call a systems analyst. 5 A Yes. 6 Q You were working for Siemens at the time of this 6 Q What parts of your body are you claiming were 7 incident as well? 7 injured as a result of this Kmart incident? 8 A Yes. 8 A I claim that my left knee was injured. 9 Q And what -- what -- what was your, job at that,time? 9 Q Are there any other parts of your body injured in 10 A I was a technical training specialist. 10 the incident? 1 I Q How does -- why did you switch positions? 11 A Not to my knowledge. 12 A I switched positions because of what 1 needed, to be 12 MR. SHERMAN: Off the record. 13 able to physically do. I needed to physically be able to 13 (Discussion held off the record.) 14 stand on my feet five days a week up to eight hours a, day, 14 THE WITNESS: Oh, okay. At the time of the 15 and I also traveled 75 percent for my job. And that was 15 accident it was my entire right side from -- when I say 16 the biggest reason why I had to switch. 16 entire I will speak of my hand, my arm, the left side, my 17 Q Okay. That was the -- the physical demands of 17 hip, my -- did I say left? I meant right, Right hand, 18 your prior job? 18 right arm, right side, right hip, right thigh, right knee, 19 A Correct. 19 right calf, right ankle. 20 Q What you just described? 20 BY MR. BAER: 21 A The technical training specialist position. 21 Q That was at the time of the accident? 22 Q Okay. And the position you have now, how is that 22 A That's what -- 23 different in terms of the physical demands of the position? 23 Q Okay. 24 A I do no traveling, and I'm at my desk 80 percent of 24 A -- exhibited itself. 25 the time. 25 Q All right. Page 7 Page 9 1 Q When did you make this switch? I A At the time of the accident. 2 A I made that switch August of 2007. 2 Q I understand. Did you treat with any medical 3 Q All right. And I understand that you returned to 3 providers other than the emergency room for any of the 4 work in your previous position in January of 2007? 4 right-sided problems that you just described? 5 A That's correct. 5 A No. 6 Q From January of 2007 until August of 2007 what was 6 Q Who was your family doctor back at the ,time of the 7 your experience at work with respect to your former 7 accident? 8 position? By that I mean was it difficult to do the job? 8 A I went to Belvedere Medical Center.in Carlisle, so 9 A Yes. 9 I didn't have a specific general practitioner. It was 10 Q Okay. And was there a reduction in your pay, from 10 whoever would be available. I I the one job to the other? 11 Q All right. And are they still your group for 12 A Yes. 12 family medicine? 13 Q Can you tell me what you've lost in that regard? 13 A Yes. 14 A A dollar figure? 14 MR. SHERMAN: Who was that? 15 Q Yeah. 15 THE WITNESS: Belvedere, B-E-L-V-E-D-E-R-E, Medical 16 A Well, I've lost the potential to -- I had to move 16 Center. And they have my medical records. 17 -- I was in what we call a Level 4, and I had to reverse 17 BY MR. BAER: 18 back to a Level 3. So as far as base pay, your opportunity 18 Q All right. Prior to this Kmart incident did you 19 for increases, that all moved back. 19 ever treat with any medical providers for any knee problems? 20 And I can't give you a dollar amount or a 20 A No. 21 percentage, but there is -- if you want -- Siemens has that 21 Q Prior to this Kmart incident did you ever suffer 22 information, as does, I believe, Chris. 22 any injuries as a result of a trip and fall? 23 Q All right. Who is your current supervisor? 23 A No. 24 A My current supervisor is Carol, C-A-R-O-L, Connor, 24 Q How about a slip and fall? 25 C-O-N-N-O-R. 25 A No. rage b - rage y O O O HUGHES., ALBRIGHT,,FOLTZ & NATALE_717.540 -0220/717-393-5k10? ; g,; Multi-Page"` PATRICIA WOLL FEBRUARY 9. 20(19 Page 10 1 Q Have you ever been involved in any -- 2 A Good one. 3 Q Have you ever been involved in any motor vehicle 4 accidents before? 5 A Yes, I was. Yes, I was. 6 Q When was that? 7 A 2003. I think Chris and I recalled 2003. They 8 had - - it's on file here. 9 Q Okay. 10 A Because they represented me. 11 Q Okay. This office represented you in that 12 accident? 13 A That is correct, um-hum. 14 Q What parts of your -- did you claim injuries as a 15 result of that incident, that motor vehicle accident? I b A I did not claim injuries, no. 17 Q Were you injured? 18 A Yes, I was. 19 Q Okay. What parts of your body were injured in the 20 automobile accident? 21 A My upper shoulders, the back of my neck. 22 Q Any other parts of your body? 23 A No. 24 Q With whom did you treat for that motor vehicle 25 accident? Page 11 1 A Belvedere Medical Center. 2 Q Anybody else? Did they refer you out to an 3 orthopedist? 4 A Not for that injury, no. 5 Q Have you seen orthopedists -- any other 6 orthopedists for any other reason other than the doctor you 7 saw for this case? 8 A No. 9 Q How about neurologists? Have you ever treated with 10 a neurologist? 11 A No. 12 Q Have you ever treated with a rheumatologist? 13 A No. 14 Q Since the Kmart accident have you had any traumatic 15 events that caused injuries? 16 A I guess I can't ask you a question to -- can you 17 define that even more? 18 MR. SHERMAN: No. Just off the record. 19 (Discussion held off the record.) 20 THE WITNESS: Yes. 21 BY MR. BAER: 22 Q Okay. 23 A Yes. 24 Q What were the injuries, and what gave rise to those 25 injuries? Page 12 1 A Okay. May of 2008 I was gardening, and as a 2 result of moving and bending and shifting I injured, 3 reinjured, the left knee and had to go back to Belvedere 4 Medical Center for follow-up treatment. 5 Q Okay. Were there any other -- well, strike that. 6 Were there any motor vehicle accidents, any trip and falls, 7 any slip and falls since the Kmart incident? 8 A No, there has not. 9 Q Back in June of 2006, prior to this episode, this 10 incident, how would you describe your general state of 11 health? 12 A Excellent. 13 Q Do you have any medical conditions like high blood 14 pressure, diabetes, anything like that? 15 A No, I don't. 16 Q Um-hum. Would you treat regularly with Belvedere 17 for any specific condition, or would you just go there for, 18 you know, flus and things like that? 19 A Only for specific conditions. 20 Q How long has Belvedere been your family doctor? 21 A Since 1974. 22 Q Do you have any children? 23 A No, I do not. 24 Q Have you ever been married? 25 A Yes, I have. Page 13 1 Q When were you married? 2 A I was married from 1982 to 1988. 3 Q To whom? 4 A His name was Jeffrey, J-E-F-F-R-E-Y. Last name is 5 Schackor. That's S-C-H-A-C-K-O-R. 6 Q Your -- and forgive me. I've forgot his name, 7 your significant other, what does he do for a living'? 8 A Bob. Bob works for the Pennsylvania Housing 9 Finance Agency. 10 Q In the case that -- for the motor vehicle accident 11 in 2003, did you file suit in that case? 12 A No, I did not. 13 Q Well, were you a plaintiff in that case? 14 A Yes. 15 Q Okay. Did that case go to -- go to trial? 16 A Yes. 17 Q And what county was it in? 18 A Cumberland. 19 Q Was it a jury trial? 20 A No. 21 Q Was it an arbitration? Do you know? 22 A I don't know what that means. 23 Q Three lawyers or one lawyer sits and makes a 24 decision? 25 A Oh, it was one. Susan Day was the judge. Page 10 -Page 13 HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-393-5101 YA 11[UU1A W VLL FEBRUARY 9, 2009 Multi-Page'"' Page 14 1 Q .Okay. 2 MR. SHERMAN: Off the record. 3 MR. MARZZACCO: The case was actually handled by 4 Dave Hershey of our office, and it was a settlement with the 5 insurance company. I believe he filed a writ, maybe a b complaint. There was no litigation. 7 MR. BAER: But she was a plaintiff? 8 MR. MARZZACCO: She was a plaintiff. It was a 9 minor soft tissue that you heard. 10 BY MR. BAER: fl Q When I say did you file suit, you as a plaintiff, I 12 don't mean you walking over to the courthouse, but we're 13 heyond,that. 14 A No, I didn't go to Cumberland County Courthouse. 15 Q Okay. Tell me a little bit about your educational 16 background. I see that you attended Slippery Rock 11 University. For how long? 18 A Six weeks. 19 Q Where did you go to high school? 20 A Carlisle. 21 Q And what education did you have beyond Slippery 22 Rock? 23 A I took some accounting courses and some management 24 courses and some programming -- computer programming 25 courses. Page 15 1 Q Let's move ahead to the date of the accident. Had 2 you ever been to this Mechanicsburg, I'll call it, Kmart? 3 A Yes. 4 Q Prior to June 22nd? 5 A Yes. 6 Q And how often had you shopped there before, if you 7 can estimate? 8 A Six times a year. 9 Q Okay. Where you were living at the time, was that 10 in close proximity to the store? 11 A Yes. 12 Q Would that have been the closest Kmart to you? 13 A Yes. 14 Q And on this particular day what was your purpose in 15 going to the store? 16 A I was shopping for housecleaning and specifically a 17 laundry basket. 18 Q Do you remember what day of the week it was? 19 A I have no idea. 20 Q Do you remember if it was a weekend day versus a 21 weekday? 22 A It was a weekday. It was not a weekend. 23 Q And with -- with whom were you shopping? 24 A Her name is -- isn't that awful. Her name escapes 25 me. Page 16 1 Q Maybe I could help you here. I see her,name in , 2 the - - 3 A I feel awful. 4 MR. SHERMAN: That's okay if you don't remember. 5 BY MR. BAER: 6 Q Kimberly? 7 A Omer, O-R-N-E-R. 8 Q Is she -- how would you describe your relationship 9 with her? 10 A She was my cleaning lady. 11 Q Are you friends with 12 A We were friends at the time. We were friendly., 13 Q Is she still your cleaning ,lady? 14 A No. 15 Q When did you stop using her as your cleaning lady? 16 A Two years ago, three, one and a half. 17 Q And which residence would she clean for you? 18 A 433 Sample Bridge Road. 19 Q Did she ever clean 341 North 19th SU=t? 20 A No, but she cleaned the one on Yates. 21 Q Okay. And that's where you were residing at the 22 time of the incident? 23 A Whatever the other address was, Mount Holly 24 Springs. That's correct. 25 Q Okay. Is that the one you were living in at the Page 17 1 time of the incident? 2 A No. 433 Sample Bridge is the one that I was living 3 in. 4 Q All right. Why did you stop using her as a 5 cleaning woman? 6 A From a financial perspective. 7 Q Have you stayed in touch with her? 8 A Not really. 9 Q When's the last time. you spoke to her? 1,0 A Over a year. 1,1 Q Why was she going with you to the Kmart that -- 12 that day? 13 A She was acting in capacity as my cleaning lady that 14 day. 15 Q What do you mean by that? She was going to help 16 you pick out products at the Kmart? 17 A Yes. 18 Q And what time of day did the incident occur? 19 A 9 -- approximately 8:45 to 9:00. 20 Q Tell me about the day before that. The time -- 21 strike that. Tell me about what happened before you got to,., 22 the Kmart. Did you pick her up? Was she living with you? 23 How did the two of you get to the Kmart? 24 A Kim came to my house. We had coffee, made lists 25, of what we were planning on buying, and left in my car. , L .. r age, i •r - r age i / O 0 HUGHES,, ALBRIGHT,:'FOLTZ & NATALE 71,7-540-0220/ 17-393-5101 multi-Pap TM PATRICIA WOLL FEBRUARY 9. 2(109 Page 18 1 drove to the Kmart. 2 Q Was this something that you had planned before this 3 particular day to do? 4 A Yes. 5 Q What was it that you were looking for? Maybe you 6 answered this earlier, laundry basket, and what other goods? 7 A There was a Martha Stewart laundry basket, and Top 8 Job, you know, any bathroom cleaning, Lysol, that type of 9 cleaning product. 16 Q All right. And how often would Kim clean your 11 home back then? 12 A Once a month. 13 Q Why -- why was it necessary for either you to 14 attend with her or her to attend with you to go to the 15 Kmart? 16 A Because I was buying the items. 17 Q Okay. Did you always buy the supplies? 18 A Yes. 19 Q How long had she been your cleaning woman up to 20 that point in time? 21 A Five years. 22 Q Are you still on good terms with her? 23 A Yes. 24 Q Was this a workday, June 22nd? 25 A Yes. Page 18 - Page 21 Page 19 1 Q What time were you due in work that day? 2 A I worked from my home, so my hours were such that I 3 just needed to get my work done for that day. 4 Q Okay. 5 A So I could have started at 6:30. I could have 6 started at noontime. 7 Q All right. Back then approximately how much -- 8 what percentage of your time for your job would you spend at 9 home? 10 A It was 20 percent during the week I would be 11 working at home, and the other 80 I was usually traveling. 12 Q What was the scope of your travel? How far would 13 you travel? 14 A I could travel as far away as Hawaii or as close as 15 New York City. 16 Q Back then could you tell me what it was that you 17 did? Were you a trainer for Siemens? 18 A Yes, I was. 19 Q Tell me briefly what -- what your job entailed when 20 you traveled, when you traveled. 21 A All right. I would have a class of approximately 22 30 to 50 people. These people would be sitting at tables 23 with computer terminals in front of them with the training 24 materials that I had developed, and I would be training them 25 on different aspects of doing data entry for financial Page 20 1 purposes. 2 It was my responsibility to be able to move around 3 the room, to be able to help them trouble shoot, to be able 4 to help them review a specific line, even to a specific 5 piece of information that needed to be entered into the 6 system. 7 So it was incumbent upon me to be able to have 8 close proximity to my patient -- to my patients. It's a 9 hospital. To my students. 10 Q Okay. When you weren't on the road 11 A Um-hum. 12 Q -- was -- is it fair to say that you spent the 13 majority of your time on work-related matters at your home? 14 A Yes. 15 Q Okay. And at home did you have a --an office at 16 home or a work station? 17 A Yes, I had an office. 18 Q When you stated earlier that you had a difficult 19 time performing the physical demands of your job because of 20 this incident, did it affect you around the home? 21 A Yes. 22 Q How so? 23 A I would be exhausted at the end of the week. And 24 I wasn't able to perform any fun things on the weekend to 25 get ready to go out the next week. Page 21 1 Q What -- when you say you were exhausted, what is it 2 about your injury that -- or your surgery or the 3 rehabilitation after the surgery that would make you 4 exhausted by the end of the week? 5 A My knee would be swollen. I would have to sit 6 either with ice packs or heat packs, depending upon what 7 felt better. And I was taking Aleve. I was having 8 difficulty falling asleep at night because of the pain. And 9 I was exhausted because I couldn't fall asleep or rest 10 comfortably. 11 Q Was Bob living with you at the time? 12 A Yes. 13 Q Okay. Did -- and forgive me, but -- 14 A That's okay. 15 Q When you changed addresses, did you have a falling 16 out and then you reconnected? 17 A Correct. 18 Q Happy to hear that. 19 A Thank you, very much. I am too. 20 Q Okay. _ How long was the separation? 21 A A year and a half. A year and a half. 22 Q Getting back to the date of the incident. Do you 23 remember what the -- what the weather was like that day? 24 A It was dry outside. 25 Q Weather played no role in the happening of the M41.111FQ Ai RRTCTAT F(1T.T7 Ri WATAT F 717-4;An-/1)711/717-101-,51AI PATRICIA WOLL Multi-Paitc' FEBRUARY 9 Page 22 1 accident? 2 A Absolutely none. 3 Q What were you wearing? 4 A I had on sneakers. I had on tan shorts, and I had 5 on a white blouse. And what else do you need to know? 6 Q How about footwear? 7 A Do you want to see them? 8 Q Sure. 9 A I'll describe them. They're size seven. They're 10 Eddie Bauer. They're flat, rubber soled with a T-strap I1 attached with velcro. Do you want to see them? 12 Q Sounds like right out of the catalog. No, I see 13 them right here. Thanks for bringing them in. Do you 14 still wear them? 15 A I haven't worn them since I fell. 16 Q Why not? 17 A Because I wanted to preserve their condition 18 actually. 19 Q Okay. Have you -- strike that. You said that 20 you picked up Kim or she picked you up? 21 A She arrived at my house. We departed in my car. 22 Q What time did she pick you up? 23 A We left -- I drove, around 8:30. 24 Q And where did you go from your home? 25 A We went from 43 Sample Bridge directly to Kmart. Page 23 1 Q And you had been to this Kmart store on other 2 occasions, correct? 3 A Yes. 4 Q And I take it the two of you walked into the store 5 that day? 6 A Yes. 7 Q Okay. And had you been in the store on other 8 occasions when there had been merchandise on pallets in the 9 aisles? 10 A I don't recall. 11 Q Okay. When you entered the store that day did, you 12 first grab a cart or some kind of shopping basket? 13 A No, I did not. 14 Q When you entered the store that day did you know 15 where you needed to go to find the merchandise you were 16 looking for? 17 A I needed -- I know I needed to go to housewares. 18 Q All right. Okay. And you walked back towards 19 housewares, and had you done any shopping? Had you picked 20 anything up before this incident occurred? 21 A No, I didn't. 22 Q All right. Tell me what happened. 23 A All right. And Kim was not with me, next to me, 24 at the time. So I'm walking singly. 25 Q Did Kim witness the incident? Paue 22 - Paue 25 Page 24 1 A No. 2 Q. Okay. Go ahead. I'm sorry for interrupting you. 3 A Well, may I retract and say that to the best of my 4 knowledge she did not. I just know she said she heard it. 5 Q Okay. 6 A All right. I was in an aisle walking towards the 7 front of the store. And what I recall is that previously 8 when I had purchased a similar Martha Stewart basket, the 9 location of that item had moved. So I needed to find where 10 it now was. 11 In trying to do so I'm looking to try to find it. 12 And in the way of where I thought the iteT would be I walked 13 behind a pallet high with boxes. The pallet with the box 14 was to my right. At the end of the pallet I turned right 171 15 because I was going to immediately turn left in the next 16 aisle. 17 So if I was -- so if I would say the pallet was in 18 the middle, I was to the left of the pallet moving behind 19 towards the front turning to the right to then go to the 20 next aisle forward toward the store, which would have been 21 what we'll call cati-corner, however you want to spell that, 22 cati-corner. 23 Q Okay. 24 A So -- but I could not see over the boxes. I just 25 knew that was the -- because I'm looking at ironing boards Page 25 1 and things like that. And I'm assuming that's now where 2 the Martha Stewart basket -- laundry basket is. 3 Q And in a few moments I'll show you some photographs 4 and ask you. 5 A Sure. 6 Q You said that you had purchased the Martha Stewart 7 basket there before? 8 A Yes, I did. 9 Q When did you purchased one there before? 10 A Within the month, within the month. 11 Q Okay. And why did you go back to get another one? 12 A It's a great basket. I have it in my car if you 13 want to see it. 14 Q Do you keep it in your car? 15 A No. 16 Q Why is it in your car now? 17 A In case you wanted to see what I was looking for. 18 Q Okay. Did you go back and buy another one for 19 another room in the house, or -- 20 A Yes, I was going to purchase another one. 21 Q Okay. And did you remember where the Martha 22 Stewart box was from your first time you had been there 23 purchasing it? 24 A That is correct. 25 Q That's where you were headed? O HUGHES, ALBRIGHT, FOLTZ & NATALE„717-50 0220/717-393-5?10?1 i{ Multi-Pager`' Page 26 1 A That's correct. 2 Q And is it your testimony that the place of the box 3 or -- strike that. Is it your testimony that they -- that 4 Kmart had moved the position of the Martha Stewart laundry 5 baskets? 6 A Yes. 7 Q And is that why you were walking back towards the 8 front of the store at that point? 9 A Um-hum. That's correct. 10 Q Okay. Okay. Now, I guess there is no other way 11 to do this other than just to ask you. Let's look at 12 photographs -- 13 A Okay. 14 Q -- that have been marked. I think. First of all, 15 I'm going to ask you to take a look at what has been marked 16 as Vash 1. 17 A And I understand now that meant that was that guy's 18 last name. I kept thinking, why are they calling it Vash 19 1? 20 Q Do you know who took that photograph? 21 A Yes, I do. 22 Q Who took it? 23 A I did. 24 Q Okay. When did you take it? 25 A Approximately 10 minutes, 15 minutes after the Page 27 1 incident occurred. 2 Q Okay. And on what did you -- what did you use to 3 take that? Was it a camera phone? 4 A My cell phone. 5 Q Your cell phone? 6 A Yes. 7 Q How did you get that developed? 8 A I took it to Rite Aid. I took the memory card 9 out, and I took it to Rite Aid. 10 Q And when you took that photograph who else was 11 there with you when you took that photograph? 12 A Mr. Pope saw me take it. 13 Q Mr. Pope, the witness? 14 A Yes, he did. Yes, he did. 15 Q Mr. Pope was a total stranger to you at that point 16 in time? 17 A No idea who he was. 18 Q Have you talked to him since? 19 A Absolutely not. 20 Q Okay. Was there anyone else with you when you 21 took that photograph? 22 A No. 23 Q Was Kim Omer there when you took it? 24 A Omer, no. 25 Q Was she -- had she returned to the scene after -- PATRICIA WOLL FEBRUARY 9 12009 Page 28 1 strike that. 2 When you took this photograph did Kim even know 3 about the incident? 4 A Oh, yes. 5 Q Where was she, if you know? 6 A Retrieving the wheelchair. 7 Q Okay. So you did leave the store in a wheelchair? 8 A Yes, I did. 9 Q All right. At that point in time when you took 10 the photograph had any employees from Kmart been to the 11 scene? 12 A Yes, Mr. Vash. 13 Q Mr. Vash, the gentleman who was here earlier? 14 A That's correct. 15 Q Okay. And when you took -- before you took that 16 photograph did anybody or anyone move the box on the pallet 17 that's depicted on Vash 1? 18 A I -- 19 MR. SHERMAN: If you know. 20 THE WITNESS: I have no idea. 21 BY MR. BAER: 22 Q Were you there the whole time? 23 A Physically I was there the whole time. 24 Q Would you have remembered if someone had moved the 25 box or changed the pallet around while you were standing Page 29 1 there? 2 A No. 3 Q You would not have remembered? 4 A I was lying on my back. 5 Q Do you believe that anyone changed the position of 6 the pallet? 7 A No, I do not believe anyone changed it. 8 Q And you have no facts to support any other version 9 -- strike that. Let me come over and take a look. 10 A Okay. Because I want to make sure what it is that 11 you're asking me was moved. 12 Q Okay. We're looking at Vash 1 here, the 13 photograph that you took -- 14 A Correct. 15 Q -- approximately ten minutes after the accident, 16 right? 17 A I'm going to say 15. 18 Q Okay. So -- 19 A I'd rather say 15. 20 Q Okay. Were you standing when you took this 21 photograph? 22 A No. 23 Q You were still down on the ground? 24 A Yep. 25 Q And what was your position when you were down? Page 26 -Page 29 A[ICTHF.S- A1.RRi(?HT_ Fni_T7. Ss WATALE 717-540-0220/717-393-5101 PATRICIA WOLL Multi-Page' P1t UXUAKY Page 30 1 A • I was lying on my back. '2 Q Okay. And you thought that it was important at 3 that point in time to take a photograph of what it was that 4 you believe you tripped over? 5 A Correct. 6 Q Okay. And what does this photograph show in that 7 regard? What is it that you tripped over, if you know? 8 A I tripped over the wood of the pallet that was on 9 the floor. 10 Q Can you point to me what portion of the.pallet,you 11 tripped over? 12 A I believe -- I believe that it was this area here. 13 (Indicating.) It would have been in this general area. 14 Q Okay. You've -- you've drawn whatlooks like a 15 capital A? 16 A Actually let's say it's a 17 Q A triangle? 18 A -- triangle with the point being at the top of the 19 -- if we're looking from the top down, let's say. 20 Q Why don't you put a T where it is? 21 A Absolutely. (Drawing.) There's my T, and it was 22 somewhere in this radius. (Indicating.) 23 Q Okay. So you've drawn a circle now within the 24 triangle, and that represents the area that you believed you 25 tripped, correct? Page 31 1 A Yes, sir. 2 Q And what part of your body -- did a portion of your 3 body contact the area that you've drawn with the circle? 4 A Yes. 5 Q Which part of your body? 6 A It would have been my right foot. 7 Q Okay. 8 A The outside of my right foot. 9 Q Okay. So the -- did -- strike that. Did any 10 part of your -- can you describe strike that, 11 Can you describe what you remember, about the 12 contact with your - the outside of your right foot in that 13 area that you've described? By that I mean was it a -- was 14 it a trip? Did you feel like something caught, however you 15 want to describe it? 16 A The wood caught in the -- this is why it was 17 important to me to describe that it was a T-bone -- it was a 18 T-shaped piece of my shoe, but it caught here. So as I was 19 navigating it caught this part of my right shoe. 20 (Indicating.) I don't know bow you want to describe that 21 for the young lady. 22 Q I'll ask you to preserve the shoes to the extent 23, that it might become relevant, but I'll try to describe it. 24 A Um-hum. 2$., Q And you did a teat job describing them, but.I Page 30 - Page 33 " Page 32 1 think what you've indicated is that in the, tb_Km ribbon, 2 canvas ribbons that extend on the outside, you believe, that 3 one of these ribbons caught on the wood? 4 A The top ribbon that would have made --f that. came in 5 to intersect with what I call the T -- 6 Q Okay. 7 A -- area of the strap on the shoe. 8 Q Okay. So it was the top ribbon that intersects it. 9 perpendicular? 10 A Perfect word, .intersect. 11 Q And that's what;, you believe happened, that's what . 12 you believe caused the fall? 13 A That is what I believe to have caused the fall. 14 Q Okay. Do you believe that there was any, portion r ,; . 1 15 of the pallet that was protruding beyond what is gepieted,in 16 Vash 1 that caused you to fall? Do you understand what I'm 17 -- 18 A Ask it again. 19 Q Yes. Do you believe that Vash 1 accurately 20 depicts the way the pallet looked when you tripped? 21 A No, no, I do not. 22 Q How was it different? 23 A Because the angle of which I took it does not 24 exemplify how the -- the base piece of wood shows coming 25 from beneath. So in other words, the angle that I'm taking Page 33 l is not the angle from which I fell. I'm on the other side. 2 Q Okay. You're talking -- you're walking through 3 this -- this way? 4 A Correct, and coming this way. (Indicating.) 5 Q Left to right intending to make a right to the 6 foreground? 7 A That is correct. 8 Q Okay. So do I understand then that what you're; 9 saying is that the base piece of wood that's underneath the 10 pallet, that that was protruding? 11 A It may have contributed. It was -- again, I 12 didn't see it. 13 Q Okay. 14 A I'm merely showing you what I saw on the other 15 side. So -- and I know that I made contact with the wood. 16 So I can only assume because I -- it's not -- because this 17 is shorter. And certainly I wasn't high stepping. It was 18 in this area that my shoe came in contact with the piece of 19 wood. 20 Q Okay. But - 21 A We keep going back to this protruding, and I 22 however you want to define that, but I certainly connected 23 with that piece of -- with a piece of wood in this area that 24 I circled. 25 Q Somewhere within that circle? HUGHES,: ALBRIGHT,.FOLTZ &, N TALE ,7,17754 0-0220/,17-393 510 . 0 D • Multi-Page PATRICIA WOLL FEBRUARY 9, 2009 Page 34 1 A That's correct. 2 Q Could have been the part of the pallet above that 3 base piece? 4 A Or it could have been here. (Indicating.) 5 Q But you're not sure which one it was? 6 A One of them hit me. 7 Q Okay. Now, I guess what I was asking is was there 8 a piece of the wood, the pallet, that was splintered out or 9 protruding out beyond what's depicted in this photograph 10 that caused you to fall? 1 I A Not that's depicted in Vash 1. 12 Q Okay. Is there a photograph that -- 13 A I have not seen those. 14 Q Let me show you the other photographs. Let me 15 show you Vash 2. 16 A Okay. 17 Q And I think there are other photographs. Vash 2 is 18 an exhibit with two photographs on it. Does either of 19 these two photographs depict the area where you believe you 20 contacted and tripped and fell? 21 A Yes. 22 Q Now, I don't want to use the same color pen. Do 23 you have a red pen by chance? In Vash 2, the bottom 24 photograph, does that depict the area that you tripped over? 25 A Can you refine -- or define depict? Page 36 1 better picture. Can we mark this Woll I? 2 (Photographs were produced and marked as Woll 3 Deposition Exhibit No. 1.) 4 BY MR. BAER: 5 Q Take a minute. Have you ever seen these 6 photographs before? 7 A Nope. 8 Q Okay. Well, take a minute to get oriented. I 9 want to represent that these were photographs that were 10 taken by Mr. Vash after the incident. 11 A Okay. 12 Q And these are just the originals. 13 A Yeah, okay. You're right. 'So Woll 1 is Vash 2, 14 except Woll 1 is the original. 15 Q What I want to get -- what I want to learn is your 16 route of travel. 17 A Um-hum. 18 Q Where you were coming from, what direction you were 19 coming from. And I think -- and correct me if I'm wrong, 20 Vash -- the top photograph on Vash 2 kind of shows the scene 21 as you're approaching it? 22 A I don't even know that one. I have to reorient 23 myself. 24 Q Okay. 25 A Because I was coming this way. So I can't -- Page 35 1 Q Does it show? 2 A Yes, it shows. 3 Q Can you draw a circle around the area on Vash 2, 4 the bottom photograph, 'that you contacted with, your foot? 5 A Would -- draw a circle did you say? 6 Q Just a little circle, yeah. 7 A It's this area. (Drawing.) 8 Q Okay. Does this photograph show any protruding 9 wood that doesn't appear in Vash 1? 10 A Yes. 11 Q Can you indicate? Can you show me? 12 A Because this picture is this. This also shows 13 this side, and that was the side that I was walking by. So 14 this is only this. Do you see? I do not have this -- 15 this side on Vash 1. 16 Q Right. Okay. I understand. 17 A Okay. 18 Q Now, which -- which direction were you coming from? 19 You were coming from this direction, correct? 20 A I was coming from behind Puffs. 21 Q Okay. 22 A In between Puffs and Charmin, and Puffs was on my 23 right. 24 MR. BAER: And you were intending to -- right. 25 When you were coming down this aisle -- I might have a Page 37 1 MR. BAER: This is what -- this is off the record. 2 (Discussion held off the record.) 3 BY MR. BAER: 4 Q We can agree that Vash 2 is a color copy of Woll 1. 5 So I'm going take Woll 1 away. 6 A But Woll 1 is easier for me to read. 7 Q Is it? 8 A Oh, most definitely. Now ask your question. 9 Q Let's -- let me get a Sharpe here and ask you on 10 Woll 1 -- 11 A Um-bum. 12 Q -- if you can show me on the top photograph the 13 direction from which you came when you came upon the scene? 14 A Do you want me to write on the original? 15 Q Yeah. 16 A Okay. Now -- and you want me to use the top one 17 or the bottom one? The bottom one better depicts. 18 Q Okay. 19 A I'm walking from this aisle right here. I'm 20 behind this box. (Indicating.) 21 Q Okay. Can you put an arrow? 22 A I'd be happy to. 23 Q Okay. 24 A So I navigated -- (drawing.) Approximately in this 25 -- I navigated in that direction. M IGHRC AT _RRIGHT Fnlr -TV.. J?r W A T A T _R 717-S40-n220/717-191-S 101 Page 34 - Page 37 PATRICIA WOLL Multi-Page` IMut 1TA1?V 0 ')nno Page 38 Page 40 1 Q• Okay. And then it's on this comer here -- can I Q Can you put a -- an arrow pointing to the area 2 you circle the corner where you -- your right foot,contacted 2 where you remember looking when your right foot -- 3 the pallet? 3 A That would have been this area? (Indicating.) 4 A I'll circle the general corner. 4 Q You've marked that with an X on the top photograph 5 Q Yes, I understand. 5 of Woll 1? 6 A (Drawing.) 6 A I'm sorry. Because it's not depicted on the 7 Q Now, it was your intention once you got around that 7 bottom. 8 to make a right and to make an immediate left, right? 8 Q And that's fine. That's why I asked you using the 9 A Correct. 9 top photograph. Now, earlier you said that when you came 10 Q So in the top photograph of Woll 1 would I. 10 around -- let me ask you this. When you walked around the 11 understand that you came from this direction here? I 1 pallet of boxes -- 12 A Um-hum. 12 A Correct. 13 Q Intending to go around here? 13 Q -- what was it that obstructed your view of the 14 A That is correct. That is correct. 14 bottom corner of the display? 15 Q Okay. Where is it that you were looking when you 15 A My own eyesight. My eyes -- 16 fell? 16 MR. SHERMAN: He means what about the boxes or the 17 A Where was I looking? 17 pallet? What about the -- not your eyesight, what about the 18 Q Yeah. 18 specific boxes or pallet stopped you from seeing that 19 MR. SHERMAN: You said, by the way, when you first 19 protruding or sticking out piece of wood? 20 started asking questions, Woll 1, top photo. 20 THE WITNESS: I wasn't looking on the floor. 21 MR. BAER: Yes. 21 BY MR. BAER: 22 MR. SHERMAN: Just fix that. 22 Q Okay. Well, earlier I think you said that when 23 BY MR. BAER: 23 you were coming around it before you tripped the boxes were 24 Q Yeah. For the record, the witness has marked with 24 high. I think you said that. That was the word you used, 25 an arrow on the bottom original photograph her direction of 25 the boxes were high, correct? Page 39 Page 41 1 travel before the incident. She also circled the area, the I A Yes. 2 general area, that she believes her right foot contacted the 2 Q Okay. Now, when you came around and you 3 pallet. 3 approached the area where the boxes were on the pallet 4 My purpose in showing you, these photographs in Woll 4 before you fell, you saw the boxes there, correct? 5 1 is to try to get an idea of your direction, where you were 5 A I can't say that I did. 6 intending to go. And this last question I posed to you is 6 Q When you walked around the boxes, when you 7 can you tell me where you were looking when your right foot 7 navigated around the boxes, did you -- 8 contacted the pallet? 8 MR. SHERMAN: I think she's confused. Do you mind 9 A I most certainly can tell you where I was looking. 9 if we talk for a minute? 10 If you recall, I mentioned that they moved where the Martha 10 MR. BAER: Yeah. I 1 Stewart baskets had been. They had originally been in this I 1 MR. SHERMAN: Could I talk to you outside for, a 12 aisle. (Indicating.) So when I came around this corner 12 minute, please? 13 and now noticed it was pets, I'm thinking, where did they 13 (Discussion held off the record.) 14 move the Martha Stewart basket? 14 THE WITNESS: I just need you to restate, because I 15 Q Okay. 15 got myself all blown out of proportion. 16 A So I'm -- I'm moving here. 16 MR. BAER: I think my last question was, you know 17 MR. SHERMAN: He's just asking you a simple 17 -- well, can you state my last question back for me? 18 question, Pat. 18 (Question read.) 19 THE WITNESS: Okay. Ask it again, and I'll answer 19 BY MR. BAER: 20 it appropriately. 20 Q We were talking about the direction from which you 21 MR. SHERMAN: He's just asking you a simple 21 approached the area where the incident occurred, and you 22 question. Where were you looking? 22 were kind enough, in Woll No. 1, to draw arrows on the 23 THE WITNESS: I was looking in this next aisle up 23 bottom photograph. 24 on the shelves. 24 When you were approaching that area before you 25 BY MR. BAER: 25 tripped and fell did you see the pallet with the boxes of 0 O Page 38-Page 41 HUGHES,, ALBRIGHT,,FOLTZ &.NATALE 7177W-0.220% 17 X93-5,101 e Multi-Page TM Page 42 1 Puffs and the other merchandise that was on the pallet? 2 A Yes, I saw the boxes. 3 Q Okay. In fact, that's why you walked around it, 4 correct? 5 A That is correct. 6 Q Now, the -- you didn't have any difficulty seeing 7 the boxes as you approached? 8 A No. 9 Q All right. And you knew that in order to go to 10 the area where you remember the Martha Stewart laundry 11 baskets to be that you would have to go around the pallet 12 with the boxes on it, correct? 13 A Yes. 14 Q All right. So you knew that you would have to 15 walk around this pallet that is in the photograph, Woll 1, 16 top and bottom, correct? 17 A Yes. 18 Q Okay. Now, as you went around the pallet and 19 before you tripped and fell was there anything obstructing 20 your view of the corner bottom of the pallet as you 21 approached the area where you tripped and fell? 22 A Yes. 23 Q What was obstructing your view? 24 A The boxes. 25 Q Okay. What did you -- what did you believe was on Page 43 1 the other side of the boxes as you were approaching that 2 area? 3 A The aisle. 4 Q Okay. And what caused you to trip and fall? 5 A My foot made contact with the wood that's in the 6 pallet. 7 MR. SHERMAN: Off the record. 8 (Discussion held off the record.) 9 MR. SHERMAN: She did answer. You did answer. 10 You said the -- what did you say, the -- 11 THE WITNESS: My foot made contact with the pallet. 12 BY MR. BAER: 13 Q Okay. And you've circled the general area in the 14 bottom picture of Woll No. 1, and the area on Vash No. 1 15 that you believe your right foot contacted the pallet, 16 correct? 17 A Correct. 18 Q Is there anything in the bottom photograph of Woll 19 1 that shows protruding wood that would have caused you to 20 trip and fall that is not seen in Vash 1? 21 A Yes, I believe there is. 22 Q Can you point that out to me? 23 A It is the -- this end, which is not visible from 24 here. It would be this particular -- it would be -- okay. 25 If -- there's a long side and a short side of the Puffs box. PATRICIA WOLL FEBRUARY 9, 2009 Page 44 1 It is the pallet that is underneath the short side of the 2 Puffs box. Because in Vash 1 I'm at a different angle. 3 Q Okay. And that's the photograph you took, Vash 1? 4 A Correct. 5 Q Okay. Now, when you fell did you -- after you 6 fell did you realize that you tripped over a different area 7 of the pallet that you've depicted in Vash 1? 8 A I have no idea. I fell -- I fell against the 9 pallet. I fell on the pallet. 10 Q Okay. Would you agree with me that if it was on 11 the other side of the box that you tripped and fell, a 12 portion of the pallet that was protruding on the other side, 13 that you would have taken a picture of that side? 14 A Ask me the question again. 15 Q Okay. Well, why didn't you take a picture of the 16 other side of the pallet if you believe it was the other 17 side of the pallet that caused your fall? 18 A Because I wasn't laying down on that side. 19 Q Were you able to move around to take photographs? 20 A My concern was to get to the hospital. 21 Q I understand. 22 MR. SHERMAN: Off the record. Off the record. 23 (Discussion held off the record.) 24 MR. BAER: My concern is that I thought in a 25 previous response she was mentioning this area here next to Page 45 1 the circle that she's drawn on Woll 1, the bottom 2 photograph. 3 MR. SHERMAN: I didn't hear that. 4 THE WITNESS: Pm talking that comer, general 5 area. 6 MR. SHERMAN: Both corners show consistently that 7 corner. The triangle's on both 1 and 2 as the general area, 8 and that's not going to change. 9 BY MR. BAER: 10 Q I stand corrected. I thought what you were telling 11 me was that the photograph, the bottom photograph on Woll 1, 12 shows a protruding wood condition that is not depicted in 13 Vash 1; and then you went on to describe an area. I thought 14 you were mentioning an area next to the area that you 15 circled. 16 A No. 17 Q Okay. 18 A That corner. 19 Q Okay. Now, as you were turning around that corner 20 before you fell you were directing your attention, I believe 21 you said, to the -- the area where you remembered the Martha 22 Stewart boxes to be? 23 A Wash baskets, yes. 24 Q Describe the fall for me. How did you fall? Did 25 you fall forward, sideways? How did that happen? Page 42 - Page 45 HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220!717-393-5101 PATRICIA W ULL FEBRUARY 9,201 muun,-xage Page 46 Page 48 1 MR. SHERMAN: He's not asking you what you guess. 2 What he's asking you is what do you remember happening. If 3 you don't remember, that's fine. If you do remember. 4 -rnB wiTNEss: i remember I fell. That's all I 5 know. 6 MR. SHERMAN: He asked you beyond that. When you 7 were on the ground, besides taking the picture, do you 8 remember people coming up to you? Do you remember talking. 9 to anyone? That's the kind of things he's asking you. 10 THE,wITNESS: Oh; I know a lot of people,did come 11 to see what had happened to me. 12 BY MR. BAER: 13 Q Who was the first person that arrived on the scene? 14 A Kim. 15 Q If you remember? 16 A Kim Omer, O-R-N-E-R. 17 Q Was she there before Mr. Pope? 18 A Ycs. 19 Q Okay. Where was -- where was Kim coming from, if 20 you know? 21 A Behind me. 22 Q And did she ever tell you -- and we may have gone 23 over this, but did she ever tell you whether or not she saw 24 you actually fall? 25 A I don't recall that she saw me. Page 49 1 Q What did -- do you remember any conversation you 2 had with Kim immediately after you fell when she approached 3 you? 4 A Yes, I do. 5 Q What do you remember? 6 A She heard a large -- a loud popping noise. 7 Q What did you understand that popping noise to be? 8 A At the time I thought it was me making contact with 9 the floor with my hand. 10 Q Since that time do you believe that that popping 11 noisel was something else? 12 A Yes, I do. 13 Q What do you think it was? 14 A It was my torn ACL. 15 Q Okay. Did you have any conversation beyond that 16 at the scene with Kim? 17 A Yes. 18 Q What did -- tell me about the substance of the 19 conversation. 20 A Wanted to know if I was okay, wanted to know if I 21 was bruised, was I okay, just my general wellness, well 22 being. 23 Q Okay. And what did you say in response to those 24 questions? 25, A No, I'm not fine. No, I'm not fine. 1 A• I fell to my right. 2 Q Were you carrying anything? 3 A I had a purse. 4 Q Can you describe -- 5 A On my shoulder. 6 Q Can you describe the purse? 7 A It was a Louis Vuitton purse. 8 Q How large is that purse? 9 A She knows. Eight and a half -- no, half of that. io Whatever a half of eight and a half by eleven is, 11 Q So you were indicating -- was it over your right 12 shou lder? 13 A It was. 14 Q And I see that you're wearing, glasses today? 15 A Yep. 16 Q What is your vision? What's your prescription? 17 A I wear contact lenses for viewing long distance, 18 and this is 1.5. They're reading glasses. 19 Q And what were you wearing on the day of the 20 incident? 21 A My contact lenses. 22 Q And you said you fell on your right side? 23 A That's where I made contact with the floor, that's 24 correct. 25 Q And after you fell what happened next? Page 47 1 A I believe that I may have been a little unconscious 2 for a couple seconds, because I don't rightly recall 3 immediately what happened. 4 Q Do you remember striking your head on the floor or 5 any other object? 6 A I only remember my right arm going out,to protect 7 myself in the fall. That's all I remember. 8 Q Do you remember your body hitting any of the boxes 9 or anything else on the way down to the floor? 10 A No, I do not remember that. I 1 Q Did you,have any bruises or cuts to your head as a 12 result of this incident? 13 A Not that I'm aware of. 14 Q Did anyone tell, you that you were unconscious at 15 the scene? 16 A No one was right there with me when it specifically 17 happened. 18 MR. SHERMAN: So the answer is no? 19 THE WITNESS: No. I'm sorry. 20 MR. SHERMAN: That's okay. 21 THE WITNESS: Go ahead. I'm just reliving this. 22 BY MR. BAER: 23 Q Okay. And after you fell -- what happened 24 immediately after you fell? 25 A I guess people came to my rescue. O Page 46 Page 49 HUGHES,, ALSRIGHT, POL17 & NA TALE 7 17-540- 10220/1 7,-391-5101 < ; Multi-Page"` Page 50 1 Q What was bothering you at that point in time? 2 A I was traumatized that I had fallen. So general 3 -- just general concern of my body. 4 Q But earlier you described mostly right-sided -- you 5 described all right-sided problems, correct? 6 A When I was giving my response to the incident 7 report, that's correct. 8 Q Mr. Pope, did he arrive on the scene? Did he come 9 to your assistance? 10 A I don't recall that he physically asked after my 11 well being. 12 Q Okay. Do you remember any conversation that you 13 had with him or you remember him having with anyone else a 14 the scene? 15 A He offered himself as a witness, a bystander. 16 Q Okay. What did he say to you in that regard, if 17 you remember? 18 A That he was going to give the information on the 19 incident report. 20 Q Do you remember him at the scene offering any 21 opinion about fault or blame for the incident? 22 A He had mentioned about my surprise of falling. So 23 the answer would be yes to that question. 24 Q He mentioned something about his surprise at you 25 having fallen? Page 51 1 A Correct. 2 Q How did that -- how do you interpret that to mean 3 -- or to -- how do you interpret that to mean that he 4 rendered an opinion with regard to fault or blame? 5 A In that he indicated the way in which the pallets 6 were arranged. 7 Q Okay. What did he say in that regard? 8 A I don't remember specifically. 9 Q Do you remember him having something to say about 10 the way the pallets were arranged? 11 A Yes. 12 Q Who did he express that opinion to? 13 A It was negatively against Kmart. 14 Q Who did he express it to? 15 A There were -- Kim was there, and there were two 16 other employees in general ear shot at the time. 17 Q Who was -- do you remember an employee -- how man, 18 employees arrived on the scene? 19 A Three. 20 Q The first employee to arrive on the scene, do you 21 know who that was? 22 A It was an eld -- it's an older gentleman that was 23 working in the general area. And how I knew that, he had a 24 red jacket and a name tag. 25 Q Okay. How long did it take -- or how short a time PATRICIA WOLL FEBRUARY %. 2009 Page 52 1 did it take for him to arrive on the scene after you fell? 2 A He -- his head was -- I mean, his -- I saw his head 3 come around the corner. 4 Q Can you estimate for me how quickly it was that he 5 got to the scene after you fell? 6 A No, I can't. 7 Q What did he do for you, if anything, when he 8 arrived? 9 A Nothing. 10 Q Did he say anything? 11 A Not that I recall. 12 Q Did he say anything to anyone other than you at the 13 scene? 14 A I have no idea. 15 Q What did he do when he was there? What 16 observations did you make concerning his appearance on the 17 scene? 18 A He looked and turned away. 19 Q Do you know what he did when he turned away? 20 A I have no idea. 21 Q Did he ever return to the scene? 22 A Not that I recall. 23 Q Can you describe this gentleman -- this man in any 24 other way than what you've already said? 25 A He was -- appeared to be in retirement age, which Page 53 1 I'm -- I'm explaining that because he had grayer hair. He 2 was elderly in face, in the skin, wrinkles, about five -- he 3 was taller than me. I'm five-three, and I have a 4 relational value to six feet. So he was somewhere between 5 -- he was less than six feet, but, you know, taller than 6 five-five. 7 Q Okay. And you indicated that you believed he was 8 an employee. What was it about him that made you believe 9 that? 10 A Because he had the Kmart jacket on, that red Kmart 11 jacket. 12 Q Okay. And you said there were three employees in 13 all who at some point in time arrived on the scene? 14 A Correct. 15 Q Who was the second one? 16 A There was another elderly gentleman that was 17 working in the same area that exhibited the same response as 18 I described the first gentleman. 19 Q Meaning that he didn't say anything, he just looked 20 and turned away? 21 A That is correct. 22 Q The third person who arrived on the scene -- 23 A Mr. Vash. 24 Q Vash, the gentleman who was here earlier? 25 A Um-hum. Page 50 - Page 53 TTTIGURC AT_RRIGUT FOT.TZ gr. WATAT_F. 717-54n-07?01717-191-5101 PATRICIA WOLL M1111ti-PaQPTM 9 Page 54 Page 56 1 Q• How -- when did he arrive on the scene in relation 1 A I just said I didn't want an ambulance. 2 to the incident? By that I mean you said -- I think you 2 Q And why -- why was it that you didn't want an 3 said you were -- you were there about 15 minutes before you 3 ambulance? 4 took the photograph? 4 A I didn't feel I had life threatening injuries, but 5 A Yes. 5 was going to go directly to the emergency room. 6 Q Did he -- did you take the photograph before he 6 Q You said that you were -- you thought that the 7 arrived on the scene? 7 Kmart people treated you poorly. What is it that you 8 A Nope. 8 thought they, could have done for you at that point in. time? 9 Q Was he there when you took the photograph? 9 A I believe they could have at least gone to f nd the 10 A No, not to the best of my knowledge. 10 wheelchair and not turned away when they, saw that there was 11 Q Okay. How long did it take for him to arrive on 11 an injured person on the floor. 12 the scene, if you know? 12 Q Did -- do you remember Mr. Vash arriving on ?he 13 A Approximately? 13 scene and then leaving the scene and coming back with an 14 Q Yeah. 14 incident report for you to complete? 15 A I can only guess it was five to ten minutes. 15 A He came with an incident report. 16 Q Do you feel as though you were,-- did anyone offer 16 Q Okay. And you said that took about approximately 17 medical attention to you at the scene? 17 five minutes for him to get there after the incident? 18 A No, no. 18 A Approximately five. 19 Q Did anyone offer to call an ambulance for you? 19 Q When he arrived on the scene were you still down on 20 A Yes. 20 the ground? 21 Q Who offered to call an ambulance? 21 A Yes. 22 A Mr. Vash. 22 Q And tell me about your encounter with Mr. Vash. By 23 Q Did you ask for any medical attention of the Kmart 23 that I mean what did he say? What did you say to him? 24 personnel? 24 A He indicated I needed to complete the bottom 25 A No, I did not. 25 portion. I wasn't able to write. Ms. Omer -- Mrs. Omer Page 55 I Q Do you feel as though in the store after the 2 incident that the Kmart personnel treated you poorly? 3 A Yes, I do. 4 Q In what respect? 5 A I was not offered any assistance to get to the 6 front of the store other than did I want an ambulance. 7 Q Okay. You also -- you left the store in a 8 wheelchair? 9 A That's correct. 10 Q Did anyone advise you that the store had a 11 wheelchair? 12 A No. 13 Q How did you know to get the wheelchair? 14 A Kim went to find something. 15 Q Okay. Did Kim go to get the wheelchair? 16 A Kim went to find something. 17 Q Who brought the wheelchair back? 18 A Kim did. 19 Q Who assisted you out of the store in the 20 wheelchair? 21 A Kim did. 22 Q Did anyone else walk out with you? 23 A No. 24 Q At that point in time did you decline the 25 ambulance? Did you say you didn't want an ambulance? Pr,iR P Sd _ D- c7 Page 57 1 was the one who wrote what I said. And I had difficulty 2 even signing my name. 3 Q Okay. I want to show you the top page of what 4 we've marked as Vash 3 and ask you if you can identify that. 5 Is that your signature at the bottom? 6 A That is my signature. 7 Q Are you right-handed? 8 A Yes, I am. 9 Q Was it your right hand that you've hurt in the 10 fall? 1,1 A Yes, it was. 12 Q Among other parts? 13 A Yes. 14 Q Okay. And the -- have you seen this before today? 15 A Oh, yes. 16 Q And is the information that's provided after what 17 happens, is that information that Kim wrote? Is that 18 writing her handwriting? 19 A That is her handwriting. 20 Q And does that accurately reflect what you said to 21 her? Did she accurately set forth in this document what 22 you told her? 23 A I can only assume the answer is yes. 24 Q Okay. Well, I'm just asking, is there anything in 25 her rendition of the facts that she incorrectly transcribed? HUGHES, ALBRIGHT, FOLTZ & NATALE,717-540-0220/717 393-5a1Q1 : g O Multi-Page `M Page 58 1 And take your time. 2 A I can't read what that is. Complains of -- 3 complained of radiating from hip to knee. To the best of 4 my knowledge that's what I gave her at the time. 5 Q Okay. Okay. How many photographs did you take 6 with your cell phone? 7 A Two. 8 Q Okay. And we've seen one, and I think I've been 9 provided with copies of -- color copies of photographs. 10 Are these -- one of these is a copy that we've marked as 11 Vash 1 ? 12 A Um-hum. 13 Q Are these different photographs or the same 14 photograph, one blown up? 15 A No, they're two different photographs. 16 Q Okay. 17 A These are the ones I provided Chris. 18 Q Okay. Vash 1 is -- would be this one here? 19 A No. 20 Q No. Because I see this -- one, two, three of 21 these here. 22 A There's a cart on the other side of the Charmin. 23 Q Okay. 24 A And some other materials passed that. And that 25 does not appear on what is Exhibit Vash 1. Page 59 1 Q Does Vash 1 -- is Vash 1 represented in either of 2 the two color copies of photographs I'm showing you? 3 A Yes. 4 Q Which one? 5 A The top one. This one -- no, that's incorrect. 6 That's incorrect. 7 Q Maybe -- maybe Vash 1, what we've marked, crops off 8 some of the -- 9 A It may have been a crop. I've got part -- the top 10 one is a part of Vash 1. The top part is cropped off in 11 the color photo that you're showing me as compared to the 12 Exhibit Vash 1. 13 Q Okay. I'm not being contentious with you. 14 A No, I'm not. 15 Q This one might actually be -- this one might 16 actually be Vash 1 with the right side cropped off. Because 17 as you can see, it starts right on that piece of wood. 18 A Oh, okay. I see, yes. I knew that you weren't. 19 Q No, I know that. I appreciate it. 20 A I hate to be such an exacting person. 21 Q That's okay. It's important to. be exacting. How 22 long did you remain in the store before you -- before you 23 left? From the incident until the time you left the store 24 approximately how much time went by? 25 A I'll concur with Mr. Vash. It was about 30 PATRICIA WOLL FEBRUARY 9, 2009 Page 60 1 minutes. I think that was mentioned, 20 to 30 minutes. 2 Q Do you remember any of the conversation you had 3 with Mr. Vash? 4 A No, not specificities other than what I mentioned 5 before in filling out the incident report. 6 Q Do you remember Mr. Vash ever telling you he was 7 sorry for the accident? 8 A I'm sorry, I don't. 9 Q Apart from Mr. Vash did you speak with any other 10 representatives of Kmart while you were in the store that 11 day? 12 A Not to my knowledge. 13 Q And you left the store by wheelchair? 14 A Correct. 15 Q And did you drive from the store? Who drove from 16 the store? 17 A Kim drove from the store. 18 Q And where did you go when you left the store? 19 A Holy Spirit Hospital in Camp Hill. 20 Q To the ER? 21 A Correct. 22 Q And you went directly there? 23 A Correct. 24 Q When you went to the ER did you tell the nurse and 25 the doctor what was bothering you? Page 61 1 A Yes. 2 Q And what was bothering you at that time? 3 A Again, my right side. 4 Q Did they -- what did they do for you at the 5 emergency room? 6 A X-rayed. 7 Q What parts of your body did they x-ray? 8 A My right side. 9 Q What parts of your body, if you remember? Was it 10 -- by that I mean was it your wrist? Was it your hip? Was 11 it your shoulder, if you remember? 12 A I don't remember the x-rays exactly. 13 Q When did your left knee start to bother you? 14 A That started to bother me then within two weeks 15 after the accident at Kmart. 16 Q Can you remember the specific day? 17 A No, but I remember specifically what it was. 18 Q Please tell me. 19 A Going upstairs. 20 Q And you remember this approximately -- you remember 21 experiencing difficulty about two weeks after the incident? 22 A That is correct. 23 Q Were there any incidents between the Kmart fall and 24 the time you first experienced that discomfort in your left 25 knee? Page 58 - Page 61 AIJGHFS_ Ai.RRiGHT_ FnLT7. & NATAi.F 717-540-0220/717-39;z-5101 PATRICIA WOLL Multi-Pace' FEBRUARY 9, 2009 Page 62 1 A- No, there wasn't. 2 Q Did -- am I correct that the emergency -- you 3 didn't tell anyone in the emergency room that your Icft knee 4 was bothering you? 5 A Because it wasn't bothering me. 6 Q Right. And after the emergency room who did you 7 next treat with? 8 A Oh, I went to my general practitioner, Belvedere 9 Medical Center. 10 Q How soon after the emergency room visit did you 11 first see Belvedere? 12 A It would have been the next -- during -- the next 13 week following -- let me back up. I mentioned two weeks 14 after I was at Kmart I experienced the pain in my knee. So 15 it would have been within the next five days that I went -- 16 I was able to get an appointment at Belvedere Medical 17 Center. 18 Q Okay. So you made the appointment for Belvedere 19 after you experienced the left knee discomfort? 20 A Correct. 21 Q Prior to that time how were the -- strike that. 22 Did the pain and aches you had on the right side of your 23 body resolve at some point in time? 24 A Yes. 25 Q When did they resolve? Page 63 1 A I would say within 48 hours. 2 Q You were feeling good after -- about 48 hours after 3 this incident? 4 A Yes. 5 Q Did you return to work? 6 A Yes. 7 Q And when you returned to work did you return in a 8 traveling mode, or were you stationed at home for that week? 9 A You know what, I really -- I cannot recall that. 10 Q And do I understand that you felt absolutely no 11 discomfort in your left knee until approximately two weeks 12 after the incident when you experienced some discomfort 13 going up stairs? 14 A That would be incorrect. 15 Q Okay. Tell me when you first started to have 16 discomfort in your left knee. 17 A It would have been within, I'll say five, days 18 after the accident occurred. But I wasn't at that time 19 making any correlation because I fell on my right side. So 20 I chose to ignore it at the time. 21 Q Getting back to the fall, the mechanism of fall. 22 A Um-hum. 23 Q Can you describe how you fell? By that I mean was 24 it -- did you fall forward? Did you twist when you fell? 25 How did you fall? Page 64 1 A What happened when I fell was that my left foot 2 stayed intact to the floor. I angled, to the right, my knee 3 being that central point, and my body snapped to the right. 4 And then that's when I fell to, try to caught -- to cushion 5 my fall. 6 Q Okay. And you twisted to your right kind of 7 clockwise, correct? 8 A Correct. 9 Q Okay. And you fell onyour right - the right 10 side of your body? 1 I A Um-hum. My right side took the contact, took the 12 fall. 13 Q All right. You said that you remembered Kim 14 saying that she heard a pop, and at first you attributed it 15 to the -- your body hitting the floor or something, and 16 later you attributed the pop to your ligament, your knee 17 ligament? 18 A Correct. 19 Q Do you remember as we sit here today feeling your 20 knee ligament pop when you fell? 21 A I don't remember anything but falling. 22 MR. SHERMAN: Other than when she said that she 23 felt it pop? 24 MR. BAER: You're multitasking. 25 MR. SHERMAN: But she did say. already that she felt Page 65 1 a pop. So it would be other than what you already -- 2 MR. BAER: Well -- 3 MR. SHERMAN: Do you understand? 4 BY MR. BAER: 5 Q Let me clear it up. 6 A Okay. 7 Q I thought that when you.testified earlier you said 8 that you did not feel a pop when you fell? 9 A Heard, did not feel. 10 Q You heard a pop, correct; You.said it was about 11 five days after the incident that you felt some left knee 12 discomfort, but you didn't immediately attribute it to the 13 incident, correct? 14 A Correct. I'm sorry, correct. 15 Q What kind of discomfort did you experience? 16 A I had a swollen left knee and was having some 17 difficulty in walking. 18 Q When did you first notice swelling in your knee? 19 A It would have been -- and I can only say this 20 because I know it was a Saturday or Sunday morning. So it 21 would have been the Saturday or Sunday morning following the 22 accident. So that's five days or four days. 23, Q Okay. So the first time you noticed any, swelling 24 in your left knee was approximately five days, after the 25 incident? use, wL - 1 ar,c. VJ 0 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/'17;-393-5101 ; Multi-Page r"t PATRICIA WOLL FEBRUARY 9 ,2009 Page 66 1 A Correct. 2 Q Did -- when you went to the emergency room did they 3 examine your body? 4 A Yes. 5 Q Did they look at both of your knees? 6 A Not that I recall. 7 Q Did you tell them you hurt your right knee in the 8 incident? 9 A That is correct. That -- my right side. 10 Q Right side. When you went to Belvedere the first 11 time after the incident which doctor did you see? 12 A I'd have to check the records. Like I said, it 13 would be whoever was available. It was a clinic type 14 setting. 15 Q Um-hum. And it was approximately two weeks after 16 the accident that you first saw someone at Belvedere? 17 A To the best of my knowledge. 18 Q What did you tell that doctor? 19 A That I was experiencing pain in my left knee. 20 Q And did you tell him what happened or what you 21 thought was the cause of it? 22 A Sure. 23 Q What did you tell him? 24 A Yes. 25 Q Him or her? Page 68 1 he recommend? 2 A Initially x-rays. 3 Q And he did the x-rays in the office? 4 A Not his office, no. 5 Q Okay. Did he send you out to see anyone else, any 6 specialists? 7 A By specialists you mean -- 8 Q Orthopedic consult? 9 A I was able to choose my own orthopedic consult. 10 Q Okay. And who did you see? 11 A It's -- the place is called OIP, Orthopedic 12 Institute of Pennsylvania. And I'd have to check what the 13 doctor's name was. 14 Q Dr. Werner sound familiar? 15 A Yes, yes. 16 Q Had you ever seen him before this incident? 17 A No, I have not. 18 Q You made this choice. Why did you make a choice of 19 this group? 20 A Because I knew that 01P was a premier ortho, and 21 I've known other people that have been treated successfully 22 at OIP. 23 Q When did you first see Dr. Werner at that practice 24 group? 25 A I'd have to defer to Chris. I don't remember the Page 67 1 A That I had fallen at Kmart. I had the incident 2 report with me as well. 3 Q When you went in to see the doctor? 4 A Yes, I did. 5 Q Did you ever tell any of your physicians that you 6 fell in your home on December 27th -- I'm sorry, on June 7 27th, 2006? 8 A No. 9 Q Did you ever tell your orthopedist that? 10 A No. 11 Q Okay. So if that appears in his records, that 12 would be incorrect? 13 A I -- that would be incorrect. 14 Q What did Bel -- what did the physician at Belvedere 15 do for you? Did he examine you two weeks after the 16 incident? 17 A Yes. 18 Q And what did he do as part of his examination, he 19 or she? 20 A Initially x-rays. 21 Q Did he -- 22 A Looked at it, felt it, manipulated the knee, felt 23 that indeed there was damage, but could not make any further 24 analysis without doing additional treatment. 25 Q And with respect to additional treatment, what did Page 69 1 date. 2 Q Can you approximate? 3 A There was a wait. I know there was a wait because 4 they're a very busy practice. 5 Q And ultimately they diagnosed your tear, correct? 6 A Well, let's back up and say that after the x-ray 7 then I also had to have an ultrasound done because the x-ray 8 was inconclusive. And then at that time it was based upon 9 what the results were of the ult -- the CAT scan, 10 ultrasound, whatever I had. 11 Q What were the results as you understand it? 12 A Torn ACL and bruised meniscus. 13 Q And ultimately you had surgery? 14 A Yes, I did. 15 Q When did you have the surgery? 16 A The end of September of that year. 17 Q Okay. 18 A September of 2006. 19 Q So you -- how would you describe your summer, that 20 summer? 21 A It was not comfortable. I was on crutches, and I 22 used a cane all the time, the cane all the time. 23 Q How many steps are in your -- were in your home? 24 A There are two flights of stairs. 25 Q Is there abasement? HUGHES. ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Page 66 - Page 69 YA'1'RIC1A WOLL FBBRUARY 9.200! Multi-Page ` Page 701 1 A. Yes, there is. 2 Q Is the laundry room down in the basement? 3 A No, it's not. 4 Q Is the basement finished? 5 A Yes, it is. 6 Q Did you spend much time in the basement in the 7 summer of 2006? 8 A Yes, I did. 9 Q Okay. And were you able to - is your, bedroom up 10 on the second floor? 11 A We actually have three floors. 12 Q Okay. 13 A So it would be basement, first, second. 14 Q Okay. Were you able to get up and down the stairs 15 that summer of 2006? 16 A Yes. 17 Q Okay. What kinds of things were you unable to do 18 in the summer of 2006 that you used to be able to do? 19 A Walk, garden, any form of exercise, Tae-Bo, 20 pilates, nothing. 21 Q Those things that you just mentioned are things 22 that you did frequently before this incident? 23 A That is correct. 24 Q When you say you had -- you were unable to walk -- 25 A Um-hum. Page 71 1 Q -- after this incident, you were able to walk with 2 the assistance of a cane or crutches, correct? 3 A Correct. 4 Q What was your walking -- were you ever able to walk 5 that summer without the,use of crutches or a cane? 6 A No, I was not. 7 Q Were you confined to your home for any period of 8 time as a result of this incident? 9 A I would say 80 percent, except for when I was 10 traveling for my - but I didn't travel for my job then 1 I because that was -- I couldn't. 12 Q All right. Were you confined to your home before 13 and after the surgery? 14 A After the surgery. 15 Q How about before the surgery? Were you confined 16 to your home? 17 A Based upon my -- what I felt I could do physically 18 or not. So yes, I was confined, but not under doctor's 19 orders. 20 Q After the surgery you were confined for a period of 21 time? 22 A Three months. 23 Q Did you ever leave the home for any reason other 24 than doctor's visits? 25 A Oh, sure. Page 72 1 Q Okay. All right. The -- how long did you work 2 after the incident? 3 A June, July, August, three months. 4 Q All right. And were you traveling during that 5 three month period? 6 A I'd have to check my calender, but to the best of 7 my knowledge, no, I couldn't. 8 Q Did they make an accommodation for you at work? 9 A Yeah, they did. 10 Q . What did they do for you at work during that, three 11 month period of time? 12 A I cancelled any of our travel that would have. been 13 done outside, you know, at a hospital facility. 14 Q Did someone else step in for you to -- 15 A No, they,didn't. 16 Q Did,you receive any criticism from, your employer 17 because of your inability to perform your job function back 18 then? 19 A Back then, no. 20 Q At some point in time was there some criticism 21 aimed in your direction? 22 A Yes, there was. 23 Q Tell me about that. 24 A May, when I reinjured my knee, of 2008 I had to be 25 off my -- I was ordered to be off my knee for a week., And Page 73 1 subsequently to that then I was given a warn -- a verbal 2 warning that my injury was severely impacting my ability to 3 be effective at work. 4 Q How much -- you returned to work in January of 5 2007, correct? 6 A Yes. 7 Q All right. 8 A I had to think of the year. 9 Q The medical records indicate that you received 10 approximately -- and I may be off a little bit, 11 approximately 22 physical therapy visits.. Does that sound 12 about right? 13 A Sure, right. 14 Q Where did you get physical therapy? 15 A At Orth -- what's it called, Orthopedic Institute 16 of Pennsylvania, 01P- 17 Q Okay. And that was at the direction of Dr. 18 Werner? 19 A Correct. 20 Q Can you -- first tell me about this surgery. Was 21 it outpatient surgery? 22 A Yes, it was. 23 Q What do you understand -- and I understand you're 24 not a medical provider, but what do you understand Dr. 25 Werner did as part of that surgery? D 1 arc i v- r agc i J .. HUGHES,. ALBRIGHT. -FOLTZ 4 NATALE 717-5407,0220/' 177393-5101, Multi-Page TM Page 74 1 A He cleaned out my meniscus area and performed 2 arthroscopic surgery to the repair of my ACL, my arterial 3 ligament. 4 Q Okay. Did he transfer any ligament from any other 5 part of your body? 6 A No, he did not. 7 Q What, if anything, did he tell you after the 8 surgery as far as how this surgery went and what you could 9 expect to achieve as far as function? 10 A He thought it went well. 11 Q And he sent you for physical therapy? 12 A Yes, he did. 13 Q Describe the physical therapy for me, what it was 14 they did for you and how you felt during the course of it. 15 A I had knee exercises. I had bicycle, various 16 balancing. I felt that I was undertreated and said so to 17 the therapist. 18 Q When you say undertreated, what do you mean? 19 A I felt that they were not trying to rehabilitate me 20 to the level that I was physically able prior to that. 21 Q Okay. Was physical therapy painful? 22 A Sure. 23 Q Was there some -- did they have to break scar 24 tissue? 25 A No. Page 75 1 Q Do you remember being on your stomach and them 2 taking your -- your -- your heel and bending it back to your 3 buttocks? 4 A That I remember. 5 Q Okay. How were you -- were you discharged from 6 physical therapy, or did you stop on your own? 7 A No, they told me they couldn't do anything for me 8 -- else for me. 9 Q How were you feeling with respect to your knee 10 function at the end of physical therapy? 11 A I was still -- I was still using my cane. 12 Q Have you stopped using your cane? 13 A Yes. 14 Q How soon after physical therapy ended did you stop 15 using your cane? 16 A When I returned to work in January I stopped using 17 the cane because I felt -- I felt that it was a negative -- 18 you know, that I felt not as professional. I felt it was a 19 negative impact to my image. 20 Q Did you feel in January of 2007 that you still 21 needed the cane? 22 A Yes, I do. I used it -- I remember -- I recall 23 using it specifically that Christmas. 24 Q How about now? Do you feel that you need to use 25 either a cane or crutches now? PATRICIA WOLL FEBRUARY 9, 2009 Page 76 1 A I wish I could use the cane from time to time, yes, 2 I do. 3 Q When do you feel as though you would benefit from a 4 cane currently? 5 A After I've done -- well, to be honest, today. I 6 did a lot of housework over the weekend, and I'm -- I'm 7 having pain in my left knee today. 8 Q Is it fair to say then that at the conclusion of 9 physical therapy you were dissatisfied with your condition? 10 A Not my condition. 11 Q What were you -- if anything, what were you 12 dissatisfied with? 13 A With the treatment that I received. 14 Q When you ended physical therapy or when you were 15 discharged from physical therapy did you feel as though you 16 had full range of motion in your left knee? 17 A No, I do not feel I had full range of motion. 18 Q How about extension? Did you feel as though you 19 had full extension? Do you know what range of motion is? 20 A Yeah, I do. I do. 21 Q Did you feel as though you had full extension? 22 A No. 23 Q At the conclusion of physical therapy what deficits 24 do you believe you had with respect to your knee 25 functioning? Page 77 1 A I felt I was still at only 80 percent. 2 Q And how do you feel currently as far as the 3 percentage of function? 4 A 90. 5 Q Do you have full range of motion currently? 6 A No. 7 Q How about extension? Do you have full extension? 8 A No, I do not. 9 Q Okay. You returned to work in January. What 10 problems did you begin to experience at work as it relates 11 to your left knee? 12 A Continued swelling, discomfort, pain, ultimately 13 difficulty sleeping. 14 MR. SHERMAN: You're talking about January, 108? 15 BY MR. BAER: 16 Q January, '07 when she returned to work. 17 A Yes, um-hum. 18 MR. MARZZACCO: Wait, I think -- 19 THE WITNESS: '061 had the surgery. '07 I 20 returned to work. But thank you. 21 MR. SHERMAN: i just got confused on the years. 22 MR. MARZZACCO: Me too. 23 BY MR. BAER: 24 Q Did those problems that you've just described have 25 an impact on your job? Page 74 - Page 77 HUGHES_ ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL , FEBRCARY 9. 2009 Multi-Page` Page 78 1 A• Yes. 2 Q How so? 3 A I think I described earlier that I needed to be 4 able to accommodate at least 30 -- sometimes between 30 and 9 50 people in a class. I needed to be mobile to be able to 6 have one on one face time with my customers. And I felt 7 with the pain and my mobility being decreased that I wasn't 8 giving my 100 percent. 9 Q And when you referred to the customers, this would 10 be when you would leave -- when you would visit a site you 11 would speak with customers, right? 12 A That is correct. 13 Q On those occasions did, you ever bring your -- did 14 you ever use your cane when you were walking around? 15 A No, I did not. 16 Q How about the simple act, of traveling, getting on a 17 plane and traveling from location to location? Did that 18 create a problem for you? 19 A Yes, it did. 20 Q How so? 21 A I realized that one needed their left knee to pull 22 a week's worth of travel in their luggage, as well as I had 23 a PC that's also on wheels. So I ,did not realize what it 24 took to pull that through airports. 25 Q When you would travel on behalf of Siemens in Page 79 1 January of 2007 did anyone accompany you from the company? 2 A No. 3 Q There came a time when you changed your position to 4 a less strenuous position, correct? 5 A Correct. 6 Q Did you have to apply for that? 7 A Yes. 8 Q Did you submit an application? 9 A Yes. 10 Q And to whom did you submit that, to the HR 1I department? 12 A Yes. 13 Q Did you have an interview or a meeting with anyone 14 in FIR about the change in position? 15 A Yes. 16 Q Do you remember who it was that you met? 17 A I knew you were going to ask me that. I can't 18 remember her name. It's -- she's still with the company. 19 She's still in ttR. 20 Q Okay. And what reasons did you provide HR for the 21 change in -- your request for a change of position? 22 A That it would -- that it was closer to home, that 23 there would be no travel involved, that I needed to be off 24 the road. 25, Q Prior to the fall at Kmart were you growing weary Page 78 - Page 81 Page 80. 1 of the travel requirements of your position? 2 A I loved my job. 3 Q Did you love the travel? 4 A I loved to travel. 5 Q Okay. 6 A And travel was part of my job. I absolutely loved 7 my job. 8 Q Okay. Is it a salaried position you, have now? 9 A Um-hum, yes. 10 Q And it was a salaried position you had before? 11 A Always, yes. 12 Q What's the -- I'm sure it's in the records, but 13 what's the drop off in the rate of pay from,one position to .i 14 the other? 15 A It's --,it's significant. I don't have the 16 figures. Cbris can provide them. And if tot,-l know my 17 HR department has them. There are tables. 18 Q All right. Do you have any,, plans to change the 19 nature of your job, to change positions? 20 A No, I don't. 21 Q Do you have any plans as. far as when you intend to 22 retire? 23 A I have no idea. 24 Q You mentioned an incident involving your left knee 25 when you were gardening, something happened? Page 81 1 A Yes, 2 Q When was that again? 3 A May, 2008. 4 Q All right. What happened in that incident? You 5 were gardening, and you went to get up and you felt 6 something pop? 7 A I had, been gardening all weekend, which would be 8 Saturday and Sunday. And when 'l went to go to work on 9 Monday I basically was unable to walk. I had severe pain 10 in my left knee and extreme swelling. 1 I Q During the course of the gardening, activity that 12 weekend do you remember any specific incident, or do you 13 remember hearing anything happen that made you realize, I 1,4 just did something to my knee? 15 A Nope. 16 Q So it was -- you woke up on Monday and you felt an 17 increase in pain, correct? 18 A Right. 19 Q Prior to gardening that weekend in May of 2008 how 20 was your knee feeling generally? 21 A Grcat, fine. 22 Q When did you returnto gardening activities after 23 the surgery? 24 A I didn't. Oh, after, the surgery? 25 - Q Yeah, after the surgery. 0 O HUGHES, ALB , JGIIT., FOLTZ. & NATALE 717-5401Ot220/ i 7- ?1-541,01, Multi-Page PATRICIA WOLL FEBRUARY 9, 2009 Page 82 Page 84 1 A 2007. 1 A I was able to walk and chose not to use cane or 2 Q Okay. The surgery was in September of 2006? 2 crutches. 3 A 6, correct. 3 Q Okay. Were you able to get up and down the stairs 4 Q When would you have started gardening again? 4 in your home without difficulty prior to the gardening 5 A I would have started gardening in May, but I didn't 5 incident in May of 2008? 6 start gardening until later in the summer. 6 A No, I wouldn't say that. 7 Q Okay. 7 Q What was your experience like, let's say -- let's 8 A Because I was afraid I was going to reinjure my 8 take a snapshot in time, April of 2008, a month before the 9 knee. 9 gardening incident. 10 Q Summer of 2007? 10 A Got it. 11 A Correct. 11 Q How were you able to get around back then? 12 Q Okay. And then you did start gardening sometime 12 A I didn't use crutches. I didn't use a cane. 13 in the summer of 2007? 13 Q Were you able to go up and down stairs? 14 A Correct. 14 A Sure. 15 Q And the gardening incident, as I'll call it, was 15 Q Did you restrict the number of times you would go 16 May of 2008? 16 up and down the stairs in your home`? 17 A Right, right. 17 A Yes, that I have done. I have done that. 18 Q Is it fair to say that you were gardening then 18 Q In April of 2008? 19 throughout that -- during that block of time except for the 19 A I don't -- let's say yes, because I don't say, oh, 20 winter months? 20 21 today and 25 the next. But I consciously am aware of 21 A Did I -- are you saying did I not garden then? 21 what I'm doing and how I'm doing it. My -- the way I -- 22 Q Well, did you -- did you -- were you able to 22 the way I go at what I do, always in the back of my mind I'm 23 partake in gardening between the summer of 2007 and May of 23 thinking is this going to hurt? Am I going to do something 24 2008 ? 24 to reinjure myself? Every day of my life. 25 A No. That's -- ask your question again, because -- 25 Q Since the surgery have you had any episodes of Page 83 1 Q How -- how -- you said that after the surgery you 2 weren't immediately able to go back to gardening, and I 3 understand that. But sometime in the summer of 2007 you 4 started gardening again? 5 A Light gardening, yes. 6 Q Light gardening, okay, That's what I'm getting 7 at. 8 A Okay. 9 Q I wanted to get a sense of how often you would 10 garden in the summer of 2007. 11 A It's not the frequency. It's the intensity level. 12 Q Okay. 13 A That's what was different. 14 Q So you were able to garden frequently, but not as 15 get down in the dirt kind of gardening that you liked to do? 16 A You got it. 17 Q All right. 18 A That is correct. 19 Q Flowers or vegetables or both? 20 A Perennials. 21 Q Perennials, okay. 22 A Flowers. No vegetables. 23 Q Okay. All right. Prior to the incident 24 gardening in 2008, May of 2008, were you able to walk 25 without a cane and without crutches? Page 85 1 giving way, falling, or almost falling because of what you 2 perceive to be a weakness in your left knee? 3 A Yes, I have. Yes, I have. 4 Q Have you ever fallen since the surgery? 5 A Actually, yes, I have. 6 Q When did that happen? 7 A It happened last -- it happened Christmas of 2007. 8 I was attending a Christmas gathering of my antique 9 collector friends. We had been sitting for an extended 10 period of time, and when I went to stand up -- and there was I I no alcohol involved -- smack down on my butt. I could not 12 -- I could not gain the strength, or my knee gave out and 13 wouldn't hold me. 14 Q Where did that happen? 15 A It happened in Dillsburg actually. 16 Q At an antique -- 17 A No, at a girl's house, at a woman's house here in 18 Dillsburg, yes. 19 Q Okay. Did you suffer any injury as a result of 20 that incident? 21 A No. I fell back down on a nice soft sofa. 22 Q So you didn't fall to the ground? 23 A No, I couldn't get up. I couldn't fall forward. 24 I couldn't fall back. 25 Q You mentioned antiquing. Page 82 -Page 85 TTTTCTHFS AT.RRT[7NT_ FOT,TZ k.. NATAT_F. 717-540-027(1!717-?9?-5101 PATRICIA WOLL Multi-Page"M FF:RRtTARV 9 ?Ono Page 86 Page 88 1 A• Yes. 1 assistant. 2 Q Is that something that you enjoyed doing before 2 Q Okay. 3 this incident? 3 MR. SHERMAN: If you don't know, it's okay. 4 A Absolutely.. 4 THE WITNESS: I don't know her name. 5 Q And is it something you continue to do? 5 BY MR. BAER: 6 A Not anymore. 6 Q Yeah, it's fine. Has there -- since that time has 7 Q When did you stop doing that? 7 there been any further medical visits with any physician for 8 A That would have been in 2006. 8 left knee problems? 9 Q And why did you stop antiquing? 9 A No, no, there hasn't. 10 A Well, actually I had that as a side business, and I 10 Q Do you currently take any kinds of medications or I 1 was not able to lift things, carry things, move things. 11 over-the-counter drugs for your knee? 12 That was all gone. 12 A Yes. 13 Q Are you claiming a loss of income because of your 13 Q What do you take? 14 inability to pursue the antiquing business? 14 A I take Aleve. 15 A No, actually I'm not. 15 Q All right. Is that over-the-counter? 16 Q Okay. 16 A Yes. I'm sorry. 17 A It has nothing to do with it. 17 Q I saw -- that's fine. I saw in the records that 18 Q Currently how does your knee -- well, strike that. 18 you were taking Wellbutrin at some point in time? 19 A Yeah, don't ask that question. 19 A Yes. 20 Q After you fell -- I'll ask it in a minute. 20 Q Were you taking that before this accident? 21 A Okay. 21 A I've taken it for a very long time. So yes, 22 Q But I want to find out after the gardening incident 22 before all of the accidents. 23 did you go back to the doctor? 23 Q What ---what do you take that for? 24 A Oh, yeah. Oh, yeah. 24 A For depression. 25 Q Same doctor, Dr. Werner? 25 Q Okay. Page 87 I A No, no. I went back to my general practitioner. 2 Q Okay. 3 A There's a series you have to follow. 4 Q Right. 5 A Okay. 6 Q And what did the -- your family doctor do for you? 7 A We had -- we went through the x-ray, ultrasound 8 routine again. 9 Q Okay. Did you go -- also see the orthopedist who 10 did the surgery? 11 A No, I did not. 12 Q As a result of you seeing the -- your family doctor 13 after the gardening incident -- 14 A Um-hum. 15 Q -- what did you come to understand, if anything, 16 about the nature of your reinjury? 17 A It had now advanced to arthritis. 18 Q Okay. And how many times did you see any 19 physician after the gardening incident for your left knee? 20 A I'm just trying to recall if I went back. No, I 21 talked to her on the phone, and then I went back to see her 22 again. So that would have been twice following the 23 gardening incident. 24 Q Which doctor was it that you saw? 25 A You have to look. She's a -- she was a physician D..,-.. OL _ 0n Page 89 1 A After my mother passed. 2 Q All right. Are you currently seeing any mental 3 health care providers? 4 A No, I'm not. 5 Q When was the last time you saw any mental health 6 care provider? 7 A Oh, my God. 19 years ago. 8 Q Okay. And who prescribes the Wellbutrin? 9 A Dr. Bucher, B-U-C-H-E-R, my gynecologist. 10 Q Okay. Currently how does your knee feel? 11 A Right now? 12 Q Well, you know, this month generally speaking. 13 A It hurts, hurts. 14 Q How often do you have pain in your knee? 15 A All the time. 16 Q Every day? 17 A Every day. 18 Q Is there any period of time during the day when you 19 don't have pain? 20 A When I'm sleeping. 21 Q Okay. Otherwise? 22 A I don't mean to be smart ass, but that's the only 23 time I don't feel it. 24 Q No, that's fine. And when you have the pain 25 currently can you describe the pain? By th at I an is it n O HUGHES. ALBRIGHT.,FOLTZ & NATALE 717-540,-;022017,177393-510J ; Multi-Page PATRICIA WOLL FFRUTTARV 9 7NIQ Page 90 1 a toothache pain, stabbing pain? Would you describe it 2 some other way? 3 A Let's do one to ten like they do in the doctor's 4 offices. It's generally a five, which means I always know 5 it's there. 6 Q All right. So currently in this time frame of 7 February, 2009 it's about five? 8 A It's about an 8 today. It's an 8 today. 9 Q Today it's an 8? 10 A Yeah. 11 Q Is there any part of the day or period of the day 12 when it's worse than other times? 13 A Oh, sure. 14 Q When is that? 15 A At the end of the day when I'm sitting down and I 16 feel it. 17 Q What do you do -- what can you do other than take 18 Aleve to self treat? 19 A Put a hot pad on it, a moist, wet, hot pad. 20 Q How often do you do that? 21 A About four times a week. 22 Q When you take Aleve does it reduce your pain? 23 A Yeah, it does. 24 Q What does it take it to on that scale of one to 25 ten? Page 91 1 A If I had a five, it's now a three. But I don't 2 take it all the time because I don't want to become tolerant 3 of it. 4 Q How often do you take Aleve? 5 A The same frequency that I do the self treatment, 6 three to four times a week. 7 Q Do you have a walking tolerance? By that I mean 8 do you have a distance that you feel that you're capable of 9 walking before you experience pain that causes you to stop? 10 A No, I don't have a physical distance. I I Q How far are you able to walk currently before you 12 -- before you need to stop? 13 A If we're talking straight, I can walk for a really 14 long time straight. 15 Q How long? 16 A An hour. 17 Q Okay. Have you gone on hikes or walks that have 18 lasted an hour? 19 A Yes. And I know specifically when. 20 Q When? 21 A We were just in St. Maartan, the Caribbean. 22 Q You and Bob? 23 A Yeah. 24 Q And when you were in -- on vacation, St. Maartan, 25 do you remember walking for about an hour? Page 92 1 A Absolutely. 2 Q Okay. When you say straight, what do you mean? 3 A No -- we're not talking up a hill, no terrain, flat 4 surface, even bubble. 5 Q Okay. Can I fairly conclude then that if 6 you're able to walk for an hour if it's on a straight 7 surface, you're able to stand for that length of time 8 at least? 9 A Yes. to Q All right. Did you -- when you were in St. 11 Maartan did you go to the beach? 12 A Yep. 13 Q Were you able to walk on the beach without any 14 difficulty? 15 A No. 16 Q What did you experience when you walked on the 17 beach? 18 A Pain in my knee. 19 Q at was it a out walking on the beach that you 20 think is different than walking on -- 21 A Because your feet go into the sand. They dig in 22 to the sand, which is resistance then that's being applied 23 to my muscles, to my joints. 24 Q Are you -- are you an athletic person? 25 A No. Page 93 1 Q Are you an outdoorsy person? 2 A No. 3 Q Are you a member of any, like, hiking clubs or 4 trail clubs? 5 A I hate the outdoors except for gardening. 6 Q Okay. Do you play any sports, whether it be 7 bowling, softball, anything like that? 8 A Nope. 9 Q How many -- other than the St. Maartan trip, how 10 many vacations have you taken since the incident? II A None. 12 Q That was the first one? 13 A Um-hum. 14 Q Is there any reason why this was the first one and 15 you hadn't done it sooner? 16 A Because Bob and I didn't have the money to do it. 17 Q Okay. Just let me look through my notes. I may 18 be finished. 19 A Sure. 20 (Discussion held off the record.) 21 BY MR. BAER: 22 Q Back on. Do you believe -- do you know what a 23 warning cone is, kind of the cone you might see for a spill 24 in a Kmart or a Wal-Mart or wherever? Have you seen those 25 before? Page 90 - Page 93 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL Mnlti.-P.we'M FEBRUARY 9 1 A• I'll say yes. 2 Q Do you think that a warning,cone of,that sort would 3 have kept this incident from happening? 4 A Yes. 5 Q How so? What would a warning cone have done for 6 you in this incident? 7 A Like pay attention to this area. There's 8 something you need to be cautious of. 9 Q Okay. Okay. Let me look through some of the 10 records here; 1,1 A Sure. 12 Q Had you taken June 22nd, the day of the incident, 13, off before the incident occurred? 14 A No. 15 Q Because Siemens had provided a record indicating 16 that that was a. sick day.:, I'm assuming,after the incident 17 then you would have called and said - 18 A Subsequently to, correct. Yeah, Robert called my 19 boss. 20 Q Do you remember telling Dr. Werner in October of 21 2006 that you were thrilled with your progress? 22 A Sure. I guess I did. Anything was better than 23 not being able to walk. 24 Q You've provided some receipts of payment that 25 you've made to Kim Omer after the incident. Did she have Page 95 1 to do things for you after the incident that were 2 extraordinary? 3 A I would say yes. 4 Q What did she do? 5 A She had to clean the entire house. And we'll give 6 you the square footage if you need it, but I don't like 7 cleaning it still. 8 Q Okay. Did Bob have to do more things around the 9 house after this incident? What did he do that you used to 10 do? „ 11 A Clean the cat boxes out, do the ironing, do the 12 wash, because I liked to. I did cooking. You know, I 13 don't mind being domestic. I did all the domestic chores, 14 and he had to take -- except for what Kim did, he had to do 15 everything else. 16 Q Are you back to doing the household chores? 17 A We do it together now, when they're done. 18 Q Is that because of your injury or because he's more 19 forward thinking now? 20 A No. He always was. No, he has to help me. I 21 can't do it all anymore. And I'm a very -- you know, I 22 hate to admit that. 23 Q Are you able to cook now? 24 A (Nods head up and down.) 25 Q Yes? Page 97 1 second? 2 THE WITNESS: Looks like it may have been taken 3 out of context, but I never said it. 4 BY MR. BAER: 5 Q He, might have just gotten it wrong. 6 A I did not say that. 7 Q Okay. 8 MR SHERMAN: You can keep going. 9 BY MR. BAER: 10 Q Yeah. What things are you no longer able to do at 11 all because of your left knee condition that you used to be 12 able to do? 13 A In fact, I don't know. It may even,have been in 14 the records. I told the doctor what I wanted to be able to 15 do, which was something that I had done as an exercise. I 16 wanted to be able to take all the flights of stairs and do 17 every other step, because that's what I used to be able to 18 do. That to me would have been full recovery, and I still 19 to this day cannot do that. 20 Q You mean skipping a step as you go up and down? 21 A Yeah. No, as I go up. 22 Q As you go up? 23 A Yeah. 24 Q That's something that you did by habit?, 25 A Yeah. Page 96 1 A Yes. Oh, I'm sorry. Yes. It wasn't the cooking, 2 It have the standing to cook. 3 Q Right. 4 A You have to understand that. 5 Q No, I understand. I understand. Earlier I 6 mentioned that there was a reference to a record that I saw 7 -- that I had seen rather indicating -- it was from the 8 Orthopedic Institute of Pennsylvania, and it's from August 9 4th, 2006. 10 And it states an accident description, patient,at. 11 home inside walking, fell, injured left knee. I wanted: to 12 show that to you. 13 A Yeah, I wanted to see that because I heard you say 14 that before. Where is this? 15 MR. SHERMAN: What's the date on that? 16 BY MR. BAER: 17 Q August 4th, 2006? 18 A Yeah, accident description. 19 Q Patient at home inside walking, fell, injured left 20 knee. Do you remember ever telling Dr. Werner or anybody 21 at his office that you fell inside at home? 22 A No. 23 Q Okay. 24 A Hum-um. 25 MR. SHERMAN: Could I see those records for one Page 94 O rage Y'+ - rage y / HUGHES,. ALBRI?GHT,,FOLTZ & NAT4ALE 717-,540-02201,177393-5101 a 8:, ., ?'r ,I?€rtsa v;? r.:$x4?:e4.i Multi-Page" Page 98 1 Q You can't do that anymore? 2 A Hum-um. 3 Q Is there anything else that you can no longer do 4 that you used to be able to do? 5 A I can't do strenuous gardening. I can't -- we live 6 in the mountains. I can't take walks in the mountains, 7 even if I hate nature. I can't even walk on the roads 8 because our roads are high. 9 1 just feel that every --I -- my job. I miss 1o my training job. I loved that job. And that I miss the 11 most out of anything, because I -- I've been with my 12 company for 21 years, and I really felt that that was 13 where I made the most impact in my world and theirs. 14 And I can't do that anymore, and it's very frustrating 15 to me. 16 Q Is there anything else? 17 A Any physical activity that I was able to have done 18 before, I'll still never be able to do that 100 percent. 19 I'm not an athlete, but gardening, walking, just simple 20 things that I just never knew. 21 MR. BAER: Okay. That's all I have. 22 THE WITNESS: Thank you, so much. 23 MR. BAER: Thanks. 24 MR. SHERMAN: Okay. Great. 25 (Whereupon, the deposition was concluded at 5:31 Page 99 1 p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 23 24 25 PATRICIA WOLL FEBRUARY 9, 2009 1 SS Page 100 COUNTY OF DAUPH IN 2 COMMONWEALTH OF PENNSYLVANIA 3 1, Donna E. Gladwin, a Notary Public, authorized to 4 administer oaths within and for the Commonwealth of 5 Pennsylvania, do hereby certify that the foregoing is the 6 testimony of Patricia Woll. 7 I further certify that before the taking of said 8 deposition, the witness was duly sworn; that the questions 9 and answers were taken down stenographically by the said 10 Reporter-Notary Public, and afterwards reduced to 11 typewriting under the direction of the said Reporter. 12 I further certify that I am not a relative or 13 employee or attorney or counsel to any of the parties, or a 14 relative or employee of such attorney or counsel, or 15 financially interested directly or indirectly in this 16 action. 17 I further certify that the said deposition 18 constitutes a true record of the testimony given by the said 19 witness. 20 IN WITNESS WHEREOF, I have hereunto set my hand 21 this 24th day of February, 2009. 22 23 Donna E. Gad-,-, Reporter 24 Notary public 25 Page 98 -Page 100 HUGHES- ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-3;93-5101 ?? I ? l ?r : IGVDN3 G IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, PLAINTIFF NO. 08-CV-3384-CV V KMART CORPORATION, CIVIL ACTION - LAW DEFENDANT DEPOSITION OF: TODD VASH TAKEN BY: PLAINTIFF BEFORE: DONNA E. GLADWIN, REPORTER NOTARY PUBLIC DATE: FEBRUARY 9, 2009, 2:20 P.M. PLACE: COLGAN MARZZACCO, LLC 130 WEST CHURCH STREET DILLSBURG, PENNSYLVANIA APPEARANCES: COLGAN MARZZACCO, LLC BY: CHRISTOPHER J. MARZZACCO, ESQUIRE - AND - SOLOMON, SHERMAN & GABAY BY: DAVID SHERMAN, ESQUIRE FOR - PLAINTIFF GIBLEY AND McWILLIAMS, PC BY: FRANK W. BAER, ESQUIRE FOR - DEFENDANT ALSO PRESENT: PATRICIA WO FA& 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page TODD VASH 1 WITNESS 2 NAME EXAMINATION 3 TODD VASH 4 BY MR. SHERMAN 3 5 6 7 a 9 10 EXHIBITS Page 2 FEBRUARY 9, 2009 Page 4 I11 VASH DEPOSITION EXHIBIT NO. PRODUCED AND MARKED 12 1. PHOTOGRAPHS 25 13 2. PHOTOGRAPHS 25 14 3. KMART CUSTOMER INCIDENT INFORMATION 64 15 16 17 1e 19 20 21 22 23 24 25 Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel for 3 the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 TODD VASH, called as a witness, being duly sworn, 9 testified as follows: 10 11 DIRECT EXAMINATION 12 BY MR. SHERMAN: 13 Q Incidentally, I just -- I introduced myself. I'm 14 David Sherman, and I represent, along with Mr. Marzzacco, 15 Pat Woll, as you know. I just wanted to thank you. I 16 know you came in last minute for us, and I do appreciate 17 that very much for efficiency purposes. 18 You understand that this is a deposition, and what 19 that basically means, it's a question and answer session. 20 A Okay. 21 Q I'm going to ask you questions and ask that you 22 provide verbal responses to those questions. You're 23 nodding your head. 24 A Yes, yes. 25 Q I want you to give -- I want you to understand -- 1 the first instruction is that with respect to our 2 communication, it must be verbal. Non-verbal communication 3 cannot be picked up on the record. 4 So typically we would participate in maybe shaking 5 of the heads and waving of the arms and that type of thing, 6 but it won't be effective for a deposition where we're 7 recording your responses to my questions, okay? 8 A I understand. 9 Q And I'm sure you were -- you consulted with your 10 very capable attorney who is seated to.my left and your 11 right, but these instructions are crucial so that this 12 afternoon's deposition goes smoothly, okay? 13 A I understand. 14 Q If you don't understand a question for any reason, 15 either the way I phrase a word or the way I ask the 16 question, just let me know, and I'll make sure that 17 question's clear and understandable to you, okay? 18 A Okay. 19 Q I don't expect to be very long with you, but if you 20 need a break for any reason, it's a deposition, certainly 21 not an inquisition. Certainly let me know, and I'll make 22 that accommodation. 23 A Okay. 24 Q Again, if you have to provide me with an answer 25 that's an estimate as opposed to something that's actually a Page 5 1 fact that you're aware of, just tell me, and I'll accept it 2 as an estimate if you need to do that, okay? 3 A Okay. 4 Q Are you ready to begin? 5 A Yes. 6 Q Are you under any kind of medical disability, 7 medication, or physical impairment that would impair your 8 ability to answer questions today? 9 A No. 10 Q And you've understood all the instructions I gave 11 you? 12 A Yes. 13 Q Would you give me your frill name? 14 A Todd Vash. 15 Q What is your present address, Mr. Vasb? 16 A 1128 Fetnwood Avenue, Camp Hill. 17 Q With whom do you live at that address? 18 A My wife and my children. 19 Q What's your wife's name? 20 A Amy Vash. 21 Q And your date of birth? 22 A June 15th, 1969. 23 Q And just for identification purposes, would you 24 have a problem giving me your Social Security number? 25 A No. 189-64-4490. Page 2 -Page 5 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 JUD VASH Mult><rrage ?BRfJARY 9, 2009 Page 6 1 Q- Are you presently employed? 2 A Yes, I am. 3 Q Where? 4 A Kmart. 5 Q Which Kmart are you working at? 6 A Harrisburg, PA. 7 Q Would you give me the precise address of that in 8 Harrisburg? 9 A 5050 Jonestown Road. 10 Q And is that the address of the location where you 1 I understand Mrs. Woll had her incident? 12 A No. 13 Q Do you have -- strike that. Do you have the 14 address of the location where you understood where Mrs. N 15 fell? 16 A Yes. It's 5600 Carlisle Pike. 1,7 Q At some -- at some point were you employed at the 18 Carlisle Pike address? 19 A Yes. 20 Q And why don't you tell me when you were first 21 employed at Kmart? 22 A For Kmart was 1996. 23 Q Have you been working from that date up until the 24 present for Kmart? 25 A No. I worked for Kmart for two years, and then I Pagc 7 1 had left for some time and came back in 2005. 2 Q Why did you leave? 3 A I took a different career path. 4 Q What was that? 5 A Law enforcement. 6 Q What did you do? 7 A I was a federal police officer for Department of 8 Defense. 9 Q And you decided to go back into retail? 10 A Yes. 11 Q Were you -- did you leave that job for any other 12 reason? In other words, for discipline or any other kinds 13 of sanctions or problems? 14 A No. 15 Q Other than the other job in law enforcement had you 16 worked anywhere else in retail? 17 A No. 18 Q In the period of time from the time you first 19 worked at Kmart until the present time have you held any 20 supervisory or managerial positions? 21 A Just my position as loss prevention manager. 22 Q As which one? 23 A Loss prevention manager. 24 Q In that position would you describe generally what 25 it is you do? Page 8 1 A Basically we take care of the assets of the store 2 to theft, damage, customer associated accidents, anything 3 that would cause loss or waste. 4 Q Would it be fair to say that your position involves 5 issues of customer safety? 6 A Yes. 7 Q And would it be fair to say that in your position 8 and your experience for all these years working at Kmart 9 that customer safety is a high priority? 10 A Yes. 11 Q Would it be one of the highest priorities? 12 A Yes. 13 Q And, in fact, in the particular Kmart at Carlisle l 14 that we're talking about, were there -- 15 A It's in Mechanicsburg. 16 Q I thought you said Carlisle. Did I mishear you? 17 A It's the Mechanicsburg Kmart that she got hurt at. 18 Q Which one are you saying? 19 A Mechanicsburg. 20 Q Mechanicsburg. I'm sorry. 21 MR. BAER: It may be located on Carlisle Pike. 22 BY MR. SHERMAN: 23 Q That's what must have confused me. I'm so sorry. 24 With regard to the Mechanicsburg Kmart, we'll call it that 25 if I need to, okay? Page 9 1 A Okay. 2 Q Would it be fair to say that there were particular 3 managers that had responsibility for customer safety back in 4 January of '07? 5 A I would have been one of them, as well as probably 6 the store manager. It's a management team thing all 7 together. 8 Q Now, I know you're not here as a corporate, 9 designee, and your attorney explained that to me. But 10 because you're the only one here I'll try to go through a 11 little bit of the corporate structure, with you if, that's 12 okay? 13 A Sure. 14 Q And whatever you don't know you just tell me that, 15 and I'll accept that, and we'll wait for the corporate 16 designee. 17 A Okay. 18 Q At the Kmart back in Mechanicsburg, and again, 19 we're talking about January, '07 and that's because that's 20 the date of the incident. 21 MR. BAER: June, June of '06. 22 MR. SHERMAN: Was it June of '06? I'm so sorry if 23 I.misspoke again. I apologize. 24 MR. BAER: Don't take my word for it. 25 Ms wOLti: Jane of '06. D rage 6 - rage y HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540 0220 ,/;717-393-5;10,1 Multi-Page TODD VASH FEBRUARY 9- 2009 Page 10 1 MR. SHERMAN: June of '06. 2 (Discussion held off the record.) 3 BY MR- SHERMAN: 4 Q In June of '06 were you also in the position that 5 you told me at Kmart? 6 A Loss prevention manager, yes. 7 Q And would the same responsibilities that you've 8 described apply in June of '06? 9 A Yes, sir. 10 Q Now, in June of '06 would you tell me a little bit 11 about the managerial structure of Kmart in Mechanicsburg? 12 A Okay. At that time we have a store manager, and 13 he would have two assistant managers that help him run the 14 store. And I myself was a site manager. Those were all 15 salaried managers. And then we have hourly managers, or 16 hourly leads, which would be department heads also. 17 Q I counted five, generally speaking. Is that about 18 right? 19 A Yeah, usually, yes. 20 Q So there would have been five managers, and would 21 it be fair to say that there -- at least one of their 22 highest priorities would have been customer' safety? 23 A Yes. 24 Q Now, would you tell me why that would be the case 25 having the knowledge that you do in loss prevention? Page 11 1 A Why what would be the case? 2 Q Why is customer service -- customer safety so 3 important? 4 A Well, because you want to provide somebody a place 5 to come shop, safe and free environment, without getting 6 hurt, you know, to just keep them coming back and just their 7 well being. 8 Q Generally speaking would it be fair to say that 9 Kmart is aware -- and when I say Kmart I know you don't 10 speak for Kmart all the time in every situation, but 11 generally speaking in your experience is Kmart aware that 12 there's potential tripping hazards in stores of that nature? 13 A Yes. 14 Q And would it be fair to say that tripping hazards 15 also include displays that are displaced on floors? 16 A Yes. 17 Q And just while we're speaking about those type of 18 issues, would it be fair to say that generally speaking 19 Kmart displays product along shelving in the stores? 20 A Yes. 21 Q And would it be fair to say that the ways that 22 Kmart sells its product is that customers are -- strike 23 that. 24 Is it fair to say that, generally speaking, Kmart's 25 aware that customers will be looking at product displays Page 12 1 when they're shopping? 2 A Yes. 3 Q And, in fact, would it be fair to say that -- 4 generally speaking, that Kmart expects that customers, in 5 order to price compare and compare quality and product, will 6 need to look at shelves while they're shopping? 7 A Yes. 8 Q And would it be fair to say that that's one of the 9 reasons that Kmart's aware that customer safety, and 10 particularly tripping hazards, need to be avoided? 11 A Yes. 12 Q And would it be fair to say that as a manager, 13 along with the other managers, that you guys -- I say guys, 14 just covering managers in general -- were given resources, 15 adequate resources to prevent tripping hazards? 16 A Yes. 17 Q And what I mean by that, just to be more specific, 18 is that certainly you had store employees that you could 19 tell or instruct to move potential tripping hazards? 20 A We do, but I always feel like my part in loss 21 prevention I could use more help there. 22 Q Did you feel that way back in June of '06? 23 A Sure. We all feel that way, all the LPMS at that 24 time. 25 Q Could you be more specific as to how you felt that Page 13 1 you needed potentially more help back at that time in 2 regards to -- I'm speaking specifically to tripping hazards, 3 not to servicing customers or stocking shelves, but that 4 issue of tripping hazards? 5 A Nothing in regards to that specifically. I'm 6 talking in general as -- as a department itself. 7 Q Did you feel that there was an insufficient amount 8 of employees to take care of all of the responsibilities 9 that you had back at that time in June of '06? 10 A In loss prevention, yes, as a whole department. 11 Q Was there any one particular person or sets of 12 people that were responsible for tripping hazards? 13 A I was responsible for the tripping hazards, for 14 overseeing and make sure follow up was done. 15 Q Would that be the case back in June of '06? 16 A Sure, yes. 17 Q Was there any other managerial person that had that 18 responsibility? 19 A Basically I said all the managers involved, but 20 specifically safety falls under loss prevention. 21 Q So you were ultimately the person where the buck 22 stops now as they say? 23 A Sort of. The store coach has the final say over 24 everything, the store manager. So basically I just -- we 25 report with him, follow up with him making sure that Page 10 -Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH Mudt 7Page?`?' FEBRUARY 9.2009 • Page 14 Page 16 1 everything's done like it's supposed to be done. 1 A It was a monthly safety -- safety, check of the 2 Q But in doing your job, because I'm sure you had a 2 store. 3 lot of responsibilities, you couldn't be the only one 3 Q And that was -- happened how often?, 4 inspecting the floors, you yourself, correct? 4 A Once a month. 5 A Correct, correct. 5 Q Now, would you display products and use pallets and 6 Q So you'd have to reply on other people? 6 different kinds of displays more than once, a month? 7 A Yes. 7 A Sure, yes. 8 Q And did you have to do that back in June of '06? 8 Q And wouldn't that be -- again, I'm not trying to 9 A Yes. 9 put words in your mouth. I hope you don't think that. 10 Q Was it economically possible to check on all of the 10 A No. 11 other employees -- again, I'm focusing on only tripping 11 Q But wouldn't you be, given the nature of the 12 hazards. Was it your, j ob to make sure that every one of 12 business, stocking, reshelving redisplaying vn, a daily 13 these employees that you had was checking on tripping 13 basis? 14 hazards? 14 A Yes. 15 A To follow up with them. 15 Q So how would you expect an inspection to be 16 Q Could you do that? 16 effective, let's say, on June -- 17 A Sure. 17 MR. MARZZACCO: June 23rd, 22nd. 18 Q Were you able to do that back at that time? 18 BY MR. SHERMAN: 19 A Yes. 19 Q On June 22nd, '06 if you last inspected, let's say, 20 Q If you -- strike that. Did you have to rely upon 20 on June 1 st, '06 for the monthly inspection? 21 the ability of other employees to do the inspections? 21 A Well, because part of that would be my observations 22 A Yes. 22 during that time period, walking the floor. You know, did 23 Q So if the other employees, for example, didn't do 23 you observe any of this activity? Yes, no. Any of that 24 an inspection but told you they did, you wouldn't have any 24 activity? Yes, no. That kind of thing. So then I would 25 way to know that? Is that a fair statement? 25 report then on the report what I have observed. Page 15 Page 17 1 A Yes. So I could follow up on some things, but 1 Q Okay. Would it be fair to say that you didn't 2 some things I wasn't able to follow up on. 2 have a daily or weekly inspection procedure back at that 3 Q Would it have been -- strike that. Would you have 3 time? 4 been able to follow up - for example, since we're talking 4 A Yes. 5 about tripping hazards -- on each of the employees checking 5 Q You didn't? 6 or inspecting the floors for tripping hazards? 6 A No. 7 A I could follow up -- I could ask them a .question. 7 Q Okay. Has that changed'since then? 8 I could ask them, did you walk the aisle and pick up 8 A Yes.. It's -- no, it's the same thing. 9 anything on the floor that may be laying around? If they 9 Q Do you think that's an adequate type of inspection 10 said yes and nothing was there, then they picked it up. 10 given your position it Ktnart at the present time? 11 Q But you didn't physically do the inspections? I 1 MR. BAER: Objection. 12 A I would, yes. 12 BY MR. SHERMAN: 13 Q You did do them? 13 Q You can still answer unless counsel tells you not 14 A Yes. 14 to. Of course you'll listen to him. 15 Q On a regular basis? 15 Do you think that's an adequate inspection 16 A Monthly we had safety inspections. 16 procedure back in June of '06? 17 Q Do you know if you inspected the area where you 17 A I'll listen to his objection. 18 know now Ms. Woll fell from all the paperwork? 18 MR. BAER: You can answer it if you want. I mean 19 A I wouldn't really inspect that area. I'm looking 19 -- 20 for certain things. 20 MR. SHERMAN: No. 21 Q So would you rely upon -- strike that. Was there 21 MR. BAER: You can answer the question. I'm 22 an inspection procedure, formal inspection procedure, in 22 objecting. I'm preserving an objection for the record. 23 affect back at that time? 23 THE WITNESS: I think it was adequate. 24 A Yes. 24 BY MR. SHERMAN: 25 Q 'What was that inspection procedure? 25 Q I don't mean to lose you. Sometimes I move fast Page, 14 - Page I'/ HUGHES., ALBRIGHTp, FOLTZ & NATALE,.717-540 0225y0/717. 393-5101 9"214• Multi-Page TODD VASH FFRRi1ARV 9 7nAQ Page 18 1 just to move it along. You stop me. I don't want 2 anything that you don't feel is being fair in terms of 3 giving me an answer. 4 You've told me that there was once a month 5 inspections for displays and shelving and that type of 6 thing; am I correct? 7 A Yes. 8 Q Okay. And I bad asked you if that was adequate, 9 and you gave me your answer. And now I'm asking you do you 10 believe back in June of '06 that the nature of that 11 inspection that was in effect for Kmart was sufficient? 12 MR. BAER: Sufficient for what though? 13 BY MR. SHERMAN: 14 Q Sufficient to give proper safety concerns to 15 customers? 16 A Well, that monthly inspection is more like a 17 reporting. They want you to report on what activities 18 happen throughout the month. There's certainly things 19 involved with that reporting. One of them would be talking 20 with associates, relating to them ways to prevent injuries 21 and that kind of thing. 22 Again, my observations I make during the month, 23 that's what was all involved in that report. So 24 inspections could be made, I mean, at any time. I could 25 walk down an aisle and just visually see something out of Page 19 1 place and correct it immediately. 2 Q So as I understand your testimony, there were 3 formal inspections once a month, but you did basically 4 ongoing inspections? 5 A Yes. 6 Q I -- I kind of understood that. I just needed to 7 hear it from you for the record. 8 A Okay. 9 Q Would it be fair to say that the informal 10 inspections weren't put in any kind of written 11 documentation? In other words, there wasn't a store sweep 12 or a log that existed? 13 A Exactly, yes. That's fair to say. 14 Q It was more the employees walk around the area and 15 if they see something that's improper or dangerous or 16 defective, they should take care of it? 17 A Yes. If it's something major like a major spill or 18 something happened, they would notify somebody. Let us 19 know, hey, look this was out of place. This was wrong, you 20 know. 21 Q And the same system's in effect today? 22 A Yes. 23 Q So basically bottom line, would it be fair to say 24 that your day to day inspections for displays, because we're 25 not talking about a store spill here or something like that. Page 20 1 A Exactly. 2 Q For displays would involve just generally hoping 3 somebody would see a potential danger or tripping hazard? 4 Is that a fair statement? 5 A No. There's associates that work those areas and 6 those departments, and during the working progress during 7 the day they would see something out of place, and they 8 would take care of it themselves right then and there or 9 bring it to someone's attention. 10 Q But you have to rely upon the particular employee 11 to bring it to your attention? 12 A Yes. 13 Q And that's the case because there weren't any 14 formally where you actually were required to log and 15 document whether this particular display is safe? 16 A At the end of the month there would be. There 17 would actually be a question on the report that would ask 18 are there any shelving units that look to be bent or 19 improper for merchandise? So that monthly reporting then I 20 would document that there. 21 Q Okay. Do you know Ms. Woll by the way? 22 A I know who she is from the fall. 23 MS. WOLL: From that day. I look different. 24 Pardon me. 25 BY MR. SHERMAN: Page 21 1 Q Do you know Ms. Woll from anything else other than 2 that day? 3 A No. 4 Q Do you know anything about her physical condition 5 or her injuries from this incident other than what you've 6 seen in the incident report? 7 A No, sir. 8 Q Have you spoken to anyone except for counsel about 9 any matters regarding this incident? 10 A Well, I reported it to my manager when it happened. 11 Q And we'll get into that because I saw that there's 12 an incident report. 13 A Yes. 14 Q And you authored that incident report? 15 A Yes, sir. 16 Q So we'll go into that in a few moments. But other 17 than the incident report have you spoken to anyone else 18 about this incident? 19 A No, sir. 20 Q By the way, on the date of this incident, June of 21 '06, would you know how many employees would have been 22 working around the time that Ms. Woll fell? 23 A Well, I don't recall. Myself was there. I mean, 24 at the actual spot or in the whole entire store? 25 Q Not at the actual spot. We'll get to that Page 18 -Page 21 HUGHES. ALBRIGHT- FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH F$$RYJARY 9, 2009 Multi--rage TM ' Page 22 Page 24 1 perhaps. But generally in the store how many employees 1 70 employees that work there. 2 would have been working? 2 Q Don't worry about it. We'll just talk about your 3 A It's hard to say. It was around 9:00 in the , 3 store then. So how many total employees? 4 morning, so it would have been everybody running registers. 4 A Approximately 70, 72. 5 Maybe approximately 20. 5 Q Is there a safety division of any type at your 6 Q And did you consider your staff to be competent at 6 store back at that time? 7 that time? 7 A Yes. 8 A Yes. 8 Q And what would that safety division be? 9 Q Did you have some that weren't competent? 9 A It's basically just the safety team members. And 10 A Not that I know of. 10 we -- like I said, we meet once a month and we discuss 11 Q Generally speaking, and again I understand that , 11 safety issues at the store. 12 you're not a corporate designee, do you know how many Kmarts 12 Q Anything else? 13 there are in the Harrisburg area? 13 A No. 14 A In the Harrisburg area it's just welt, myself 14 Q Is there any type of formal evaluations, other than 15 and then Enola and Mechanicsburg. ' So that's justthree in )5 what you've told me so you don't have to repeat, that talk 16 that general location. 16 about how displays and pallets and those type of things 17 Q Three just in the Harrisburg simple driving area? 17 should be put in the store? 18 A Yes, um-hum. 18 A They do have -- managers, they've got a layout, and 19 Q And that means there would be about 60. total 19 it has to be layed out specifically according to the layout 20 employees, very generally speaking? 20 that they get. 21 A Well, that's usually a store -- are you talking 21 Q Did that happen in this case? 22 about Kmart employees or loss prevention employees? 22 A I'm going to say yes. 23 Q Let's just talk about Kmart employees, the kinds of 23 Q Okay. ' Let's -- that will be a nice segue to lead 24 employees that would have been on the premises at the time 24 into the actual pictures. 25 walking around, stocking, taking care of customer safety, 25 A Okay. Page 23 Page 25 1 taking care of customers? 1 MR. SHERMAN: SO what I'm going to do is mark a 2 A Okay. You asked about three different Kmarts 2 couple of pictures, and I'm going to mark -- why don't we 3 though. Just -- 3 start with -- off the record. 4 Q Your store you told me 20? 4 (Discussion held off the record.) 5 A Yes. 5 MR. SHERMAN: Why don't we start with this being 6 Q And you stand by that answer? 6 Vash 1? And why don't we label this -- and we'll put this ' 7 A Approximately 20. 7 here for you. And then this is Vash 2. How's that? 8 Q I appreciate that you're even trying to help me + 8 (Photographs were produced and marked as Vash 9 without being a corporate designee, but would you say that 9 Deposition Exhibit Nos. 1 and 2.) 10 that's the same for the other t WO stores? 10 BY MR. SHERMAN: 11 A Probably not, no. Because there's a smaller -- I 1 Q Can you take a look at Vash 1 ? 12 depends on the size of the store. 12 MR. BAER: You can take a look at it. I've seen 13 Q So it wouldn't be accurate to say there's a total 13 it. 14 of let's say 20, 40, 60 employees for Kmart for these three 14 THE WITNESS: Oh,` all right. 15 Stores? 15 BY MR. SHERMAN: 16 A At that particular time? 16 Q Have you seen Vash 1 before? 17 Q Right. 17 A Hold on. Not in that angle. 18 A At that moment, like in those hours of the day? 18 Q Would it be fair to say that Vash 1 generally shows 19 Q Right. 19 the area where you understand Mrs. Woll fell? 20 A Right, correct. 20 A Generally. 21 Q That would be accurate? 21 Q And could you identify any,particular area on Vash 22 A It would not be accurate. 22 1 in terms of where you believe she fell? 23 Q Okay. But there's more than 50 total employees 23 A As far as area you mean? 24 for these three stores? 24 Q Specific area? 25 A See, again, you mean -- because my store'itself has 25 A Like department area? Page 22 , Page 25 HUGHES, AI<'B1t. FOLTZ & NATALE 717-5,10-0220/V-393 5101 O 0 n u Multi-Page Page 26 1 Q General circle on the floor where she ended up, 2 anything that you can use in terms of that picture to point 3 to where she fell. 4 A Well, as a reference point I can say from this 5 photograph her feet would be at the top -- top part of the 6 photograph at the comer right by the box here, and then the 7 pallet sort of head was facing the opposite direction. 8 Q Okay. We're going to be much more specific 9 because the court reporter can't take down those kind of 10 directions, but you're doing great. I didn't tell you to 11 do anything other than a point of reference, and I 12 appreciate that. Did you see the incident? 13 A No. 14 Q So you don't know from your own personal knowledge 15 how the incident occurred from your own seeing it? 16 A No, I do not. 17 Q Do you know of anyone that exists that actually saw 18 the incident? 19 A X10. 20 Q So you don't have any facts or evidence to refute 21 anything that Ms. Woll might say about how the incident 22 occurred from personal observations; is that a fair 23 statement? 24 A Yes. 25 Q Okay. Now, you were kind enough to look at the Page 27 1 photo and show me generally where you believe the incident 2 occurred. If we try to describe that together, tell me if 3 I'm accurate. 4 Do you see in the portion to the left side of the 5 photograph where there's a box labeled 849 with other 6 numbers? 7 A Yes. 8 Q Would it be fair to say that somewhere to the right 9 of that -- as you're looking at the numbers, to the left 10 that, that's where you believe she fell? 11 A Okay. Numbers to the left? 12 Q See how the numbers are to the left as you look at 13 the picture? 14 A Yes. 15 Q So that way we'll have a point of reference. And 16 Ms. Woll would have fell to the right of those numbers, 17 correct? 18 A Don't know. I'm not sure. 19 Q So you don't know exactly where she would have 20 fallen? 21 A She told me what happened was she caught her foot, 22 and that's about all I can go by. 23 Q Okay. Can you point on that photograph where she 24 told you she fell? 25 A All right. You can't see because it's the TODD VASH FEBRUARY 9.2009 Page 28 1 opposite direction, but it was right here in this corner. 2 (Indicating.) 3 Q Okay. Do you see anywhere on Vash 1 to indicate 4 the condition that caused her to fall as she described it to 5 you? 6 A No. 7 Q Okay. So you don't see any wood protruding in 8 Vash 1? You don't see any lower boards underneath the 9 numbers that are protruding? 10 A I don't see -- 11 MR. BAER: Objection to the characterization, but 12 go ahead and answer. 13 THE WITNESS: Don't see protruding. I see it's 14 separated a little bit. 15 BY MR. SHERMAN: 16 Q Do you see anything protruding? You know what I 17 mean by protruding? 18 A Sticking out, yeah. It's hard to tell depth 19 perception with th-is shot. 20 Q I appreciate that. I think you're right. Do you 21 see anything, even with this shot because that's all we have 22 in front of us to show, any wood sticking out from the 23 display? 24 A I can't see wood sticking out from the display from 25 this shot. Page 29 1 Q Okay. You would agree that at least Ms. Woll 2 explained that she fell somewhere around that corner that 3 we've identified next to those numbers? 4 A Yes. 5 Q Of that pallet or display? 6 A Yes. 7 Q Okay. Let's look at Vash 2 and ask if you can 8 identify that. 9 A Yes. 10 MR. SHERMAN: Okay. Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Looking at Vash 2, would you agree that that 14 generally shows the same condition but a much broader view? 15 A Yes. 16 Q And could you point again to Vash 2, and then we'll 17 try to describe it? 18 A This is Vash 2. (Indicating.) 19 Q And that would be the top picture? 20 A Well, you labeled the whole page Vash 2. 21 Q Right. There's two pictures, one on top and one 22 on the bottom. Could you point to either of the pictures 23 that best shows the view of the more precise area of the 24 floor in reference to the display where you believe she fell 25 from what she told you? Page 26 -Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH Multi-Pace`' FEBRUARY 9, 2009 ' Page 30 1 A• Well, they kind of both do. The.bottom picture. 2 does right here, and so does this area right here. 3 (Indicating.) 4 Q Okay.: So you've indicated with your finger in, the 5 area of the two boxes towards the middle of both pictures is 6 the area basically where she fell? 7 A Yes. 8 Q Okay. Generally speaking, since we have now all 9 of the pictures that I've marked, could you show me on the 10 bottom picture where the middle portion of the boxes are, do I 1 you see that area? 12 A Talking about right in the center of the picture 13 itself? 14 Q Right. The area of the boxes there's a set. of 15 boxes that are towards the middle of the lower picture. 16 A Okay. 17 Q And that's the area where you believe she fell? 18 MR. BAER: You mean this general area here? 19 BY MR. SHERMAN: 20 Q Correct, the general area there. 21 A I believe she fell -- when I saw her she was in 22 front of that. 23 Q In front of that middle area of boxes? 24 A Yes. 25 Q See, I'm trying to avoid having you draw circles Page 31 1 right now. And we can if we need to, if your counsel 2 doesn't mind. 3 MR. BAER: No, I don't mind. 4 BY MR. SHERMAN: 5 Q Okay. Then why don't you take a pen, just take a 6 pen and draw the boxes that were closest to where you 7 understood Ms. Woll fell? 8 A Well, when I got there she was already on the 9 ground. 10 Q Right. 11 A So her feet would be in this general area here. 12 (Indicating.) 13 Q Why don't you put an F where her feet were? 14 A Approximately. 15 Q You can put an F. Is that working? 16 A It's -- yeah, it's going. (Drawing.) 17 Q Okay. That's where her feet her? 18 A Approximately. 19 Q You told me where her head was. Why don't you put 20 an H for her head? 21 A And -- 22 Q And you were going to put an H where her head was? 23 A I'm trying to look at this picture. 24 MR. BAER: Try to use the same picture. 25, THE WITNESS: Pm just trying to reference it. So Page 32 1 it's going to be,somewhere in this area there. 2 (Indicating.) 3 BY MR. SHERMAN: 4 Q Okay. So she was basically lying across the 5 bottom of the boxes in the picture? 6 A Right, sort, of at an angle like to the right. 7 Q Understood. Now, just general questions about the 8 display. Would it be fair to say that the, area;between -- 9 in the lower area between the boxes by the F and the boxes 10 to the right of that that are characterized or designated as 11 Charmin, that that was an aisleway? 12 A The boxes were placed in an aisleway, yes.. I mean, 13 the pallets were placed in an aisleway, yes. 14 Q So these, pallets were actually in an aisleway? 15 A Yes, sir. 16 Q And would you agree with me that in your experience 17 customers walk through that aisleway and have to go through 18 that aisleway to get to particular areas of the Kmart?, 19 A Yes. 20 Q Now, can you tell me why there -- these pallets 21 were positioned -- strike that. 22 Were these pallets that we've talked about, both 23 the Charmin pallets and the ones closer to where she fell, 24 were they pallets that were situated there on a regular 25 basis, or were they there on a temporary basis? Page 33 1 A Temporary basis. 2 Q So they wouldn't normally be there? 3 A Depending on the time of day. 4 Q And what do you call a temporary basis? In other 5 words, would they be there once a week, once a day, once a 6 month? 7 A Depends on what they're putting out on the floor.to 8 replenish the shelving with. 9 Q So they're there in a state of transitions from 10 taking those boxes before they end up on, the shelf, is that 11, basically an accurate statement? 12 A Yes. 13 Q Would you agree with me that they're basically 14 blocking the aisleway? 15 A No. 16 Q Would you agree that they're blocking a portion of 17 the aisleway? 18 A Yes, because they're taking up space that's there. 19 Q Did you have any alternative back then in terms of 20 being able to place those types of boxes in that transition 21 stage that you told me about to stock the shelf? 22 A No. 23 Q ; Was there an y other place you could have placed 24 them? For example, could you put them in storage until 25 they were ready to be shelved? 0 O . u ,v -,r are JJ HUGHES, ALBRIGrHT FOLTZ ;& NATALE,7.17 X407-,02201717739375,101 Multi-Pager' TODD VASH RPR112TTADV O 7nnO Page 34 1 A No, because they came out of the receiving area to 2 be put on the floor to be replenished. 3 MR. SHERMAN: Do you have any kind of warnings -- 4 off the record. 5 (Discussion held off the record.) 6 BY MR. SHERMAN: 7 Q Do you general -- does Kmart generally -- strike 8 that. 9 Is Kmart generally equipped with cones or some type 10 of mechanisms, equipment, to divert people's paths if they 11 need to? 12 A Yes. 13 Q Are they displayed in those pictures? 14 A No. 15 Q Okay. How come? 16 A Because those cones are generally used for wet 17 floor surfaces and spills. 18 Q Okay. Were customers expected to use the aisleway i 9 that we've designated, for example, between the Charmin 20 display and the area in front of where she fell? 21 A They may. 22 Q Actually I should say the front -- behind where she 23 fell? 24 A Correct. 25 Q Were those -- is the aisleway cut, any portion of Page 35 1 it?. And what I mean by that, is it less than it normally 2 would be if you didn't have these temporary pallets there? 3 A I'm going to say the pallets do take up space in 4 the aisleway, but they place them enough so the customers 5 can still get around them. 6 Q Is there areas right around the -- those displays 7 where customers would be looking at shelves? And I'll tell 8 you why I say that is because you're going to hear from Ms. 9 Well in a few moments that she was looking for some 10 houseware products on the shelves. Would that be accurate 11 in terms of what was displayed in the area? 12 MR. BAER: What? 13 MR. SHERMAN: I'll rephrase that question. Off 14 the record. 15 (Discussion held off the record.) 16 BY MR. SHERMAN: 17 Q Ms. Woll is going to testify to counsel in a few 18 moments that she was looking at certain kinds of housewares, 19 laundry baskets, I believe. Is that something that was 20 displayed in that area back at that time? 21 A Generally it would be -- would have been behind 22 her. So where she was walking -- heading was more towards 23 the pets department, which is behind the housewares. 24 Q Generally -- we don't have an exact scan, I don't 25 see in any of the pictures laundry baskets, but generally Page 36 1 speaking laundry baskets were positioned in that area around 2 the boxes? 3 A Maybe a few aisles over. I'm not precisely sure 4 which aisle it ran in right in the area here, but they were 5 behind -- behind where she was heading. 6 Q Fair enough. But the bottom line is you have no 7 disagreement with me that there was displays that would -- 8 if a customer like Ms. Woll was looking at, she'd have to 9 look up and away for certain kinds of product in the area 10 right around where those boxes are? 11 MR. BAER: Objection. Go ahead and answer. 12 THE WITNESS: Okay. If she was heading towards 13 the pets department, yes. If she was looking at the Bounty 14 paper towels in front of her, because they were up on a 15 shelf higher, then yes. 16 BY MR. SHERMAN: 17 Q Okay. And you're not sure about where exactly the 18 laundry baskets were displayed, am I hearing that correct? 19 A Correct. Well, I know they were not in front. 20 They were in the back like behind her where she was facing 21 and off either to the -- I'm thinking to the right. But 22 I'm not positive on the right or left. 23 Q Okay. As an experienced manager that safety is a 24 priority for, do you consider the displays that are shown in 25 Vash 2, both the area where Charmin is and the other one Page 37 1 where -- nearer to where she fell, to be potential tripping 2 hazards? 3 MR. BAER: Objection. Go ahead and answer. 4 THE WITNESS: In this picture, no, I don't, no. 5 BY MR. SHERMAN: 6 Q You don't see any potential tripping hazard`? 7 A Not really, no. 8 Q Okay. And when you say not really, again, I'm not 9 trying to get you to say something you don't believe. 10 A Well, because obviously she did trip on something, 11 but I don't see -- other boxes are on the pallet. They're 12 at such a height where you can see what's on the pallet. 13 So that's, you know, why -- and there's nothing on 14 the floor to which she would have actually tripped her feet 15 on. No liquids, no debris from the pallets themselves are 16 on the floor. 17 Q Do you know from all that you've learned after, I 18 know you didn't see it, what exactly caused her to fall, at 19 least from what she says? 20 A Other than what she told me, no. 21 Q What do you know from what she told you? 22 A That she was walking -- this picture was taken in 23 the direction that she was walking from what she gave me in 24 her statement. 25 Q Right. Page 34 -Page 37 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FEBRUARY 9, 2009 Multi-Page' Page 38 1 A• Was walking,between here and her foot caught on to 2 the pallet here right in the corner, and her foot got caught 3 and then she tripped and fell over. 4 Q Now, you took the picture that we're calling Vash 5 2, right? 6 A Yes. 7 Q That's the reason I wanted to try to use it. Now, 8 you also looked at Vash 1, and you told me that you didn't 9 see -- strike that. 10 Could you see in Vash 1 any wood protruding at the I I bottom of the pallet? 12 A No. 13 Q So you don't see any protruding wood whatsoever in 14 either Vash 1 or Vash 2? 15 A No protruding wood. 16 Q Okay. Do you see any wood that would be sticking 17 out beyond the point of where the box is displayed on the 18 display? 19 A In Vash 2 in the bottom, the Charmin pallet; I do 20 see that, the wood sticking out from the box. 21 Q Do you think that's a proper display in terms of 22 customer safety? I don't mean in terms of stacking for 23 efficiency for the shelving. 24 A No, that box could be moved over to the edge a 25 little more. Page 39 1 Q And why would that be? 2 A Again, to not have that wood sticking out. It 3 would be more symmetrical or more straight, even edges. 4 Q Now, I'm going to tell you I don't believe she fell 5 in that particular area, but do you consider that to be a 6 tripping hazard? 7 MR. BAER: Objection. Go ahead and answer. 8 THE WITNESS: Potentially. 9 BY MR. SHERMAN: 10 Q And that's because the box would cover the 11 particular area that's protruding or sticking out as we've 12 said? 13 MR. BAER: Or couldn't -- objection. But go ahead 14 and answer. 15 MR. SHERMAN: I'll rephrase. It is confusing. 16 Let me rephrase. 17 MR. BAER: Yeah, please. 18 BY MR. SHERMAN: 19 Q If you think it is, it probably is. Why -- would 20 you call that particular area at the bottom of Vash 2 of the 21 display on the Charmin side of the shelf, would you call 22 that a potential tripping hazard? 23 A Potentially. 24 Q And why would you call it that? 25 A Just because the boxes aren't -- aren't even with Page 40 1 the pallet. If they were even with the pallet, it might 2 give it more of a solid shape. 3 Q And would that be something that, if you saw as a 4 conscientious manager, you would cure and correct? 5 A Now that you bring it to my attention, I wasn't 6 thinking that at the time, but yes, I would go fix that. 7 Q As -- because it's a potential tripping hazard? 8 A Yes, sir. 9 Q Now, you don't know - when did you take this 10 picture? 11 A Right after the incident -- she left the store. 12 And probably maybe five, ten minutes after she left I took 13 that picture. 14 Q Okay. Do you know from your own personal 15 knowledge, again, whether on the left side -- I guess it's 16 the Puffs side? 17 A That's Puffs, yeah. 18 Q Okay. Do you know on the Puffs side whether -- 19 strike that. 20 MR_ BAER: To orient you, I don't know if you're -- 21 BY MR. SHERMAN: 22 Q I may be wrong. Is this box this box? 23 A Yes. This -- 24 MR. SHERMAN: Is that what you're saying? We're 25 off the record just to clarify. Page 41 1 (Discussion held off the record.) 2 MR. BAER: Just so you know, Dave, this corner here 3 is this over here. It might not be important. You might 4 -- I just don't want you to think this comer is this 5 corner. (Indicating.) 6 BY MR. SHERMAN: 7 Q No, I think you're right. I think you're right. 8 That's why I was trying to stay away from that picture for 9 that reason. 10 Mr. Vash, with regard to the precise positioning of 11 the area closer to where her foot is designated in Vash 2, 12 would it be fair to say that you can't tell us from your own 13 personal knowledge how close that box was to the edge of the 14 pallet? 15 A Are you talking about the Puffs pallet? 16 Q Yes. 17 A I can give an estimate, but no, I can't precisely 18 tell you how close that box is. 19 Q Well, you didn't take a picture, a close up, of 20 that particular area is what I'm getting at? 21 A Whatever I have here is, I believe, what I've 22 taken. I don't remember taking that picture right there. 23 Q You don't know if that box was moved from the time 24 that she fell until the time that you took your photograph? 25 A I didn't move it. rage Sis - rage 41 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-54070220/17,17-393-5101 t ?1, Multi-Page TODD VASH FEBRUARY 9- 2009 Page 42 Page 44 1 Q But you don't know if it was moved is what I'm 1 Kmart customer incident is the first page? 2 saying? 2 A Yes. 3 A No, I don't. 3 Q Now, the obvious section says -- or is instructed 4 Q You don't know if another customer or employee or 4 as completed by customer, correct? 5 if in the movement of the impact itself that that box moved 5 A Yes. 6 over? 6 Q And that would have been Ms. Woll? 7 A No, I do not. 7 A She was the customer, yes, she was. 8 Q Now, in Vash 2 and Vash 1, just the last time 8 Q Now, the description of the incident, would that 9 because I know I asked you this a few times, do you see any 9 have been by you or her? 10 wood protruding from the area where the box was? 10 A That would have been by her, and -- well, you mean 1 I A Again, I don't see it protruding, no. 11 the writing or the actual verbal part of it? 12 Q Do you see anything sticking out in terms of wood 12 Q The verbal part of it? 13 from the point of where the box would be stacked or 13 A Washers. 14 positioned on the pallet? 14 Q And the writing? 15 A No. 15 A Partof it was mine. She had an injury to her 16 Q Do you consider it to be safe practice in terms of 16 wrist, I remember, and she couldn't write I think is what it 17 the background that you have to have a pallet positioned as 17 was. 18 is shown in Vash 1 and 2? 18 Q So you helped her? 19 A I don't see a problem with that, no. 19 A I -- the very first part where it says midway 20 Q I'm going to ask you to take a look at your 20 between housewares and pantry is my part up until the part 21 incident report, which I think you have a copy of in front 21 where it says what happened I filled in because that was 22 of you. 22 just basically general information. The part that says 23 A Yes. 23 what happened, I did not write that, no. 24 Q Am I correct? 24 Q Okay. The actual narrative that begins came out 25 A Yes, I do. 25 of kitchen accessories? Page 43 Page 45 1 Q Good. All right. Did you complete this incident 1 A Yes, sir. 2 report? 2 Q Is that Ms. Woll's writing? 3 A Yes, I did. 3 A I don't believe so. I don't recall. She had a 4 Q And would it be fair to say that part of your 4 friend there, I think, helped her write it because I didn't 5 responsibility is to do it in a conscientious and accurate 5 want to do it for her. 6 way? 6 Q But it's not your writing? 7 A Yes, sir. 7 A No, sir. 8 Q And you're trained specifically to do that? 8 Q So we have to ask Ms. Woll about any particulars 9 A Yes, sir. 9 regarding that? 10 Q And you try to be as complete and accurate as 10 A Yes. 11 possible? 11 Q Then the inspection section would be something that 12 A Yes, sir. 12 she wouldn't know about, correct? 13 Q Now, let's go through this for a moment. Was this 13 A Probably not, no. 14 completed the day of the incident? 14 Q And I'm on the next page, and I'm calling it the 15 A Yes, it was. 15 next page. It says full name, Todd Vash. Let's use that 16 Q And is the writing on the first page of the 16 as the next page. What do you have as the next page? 17 incident report your writing? 17 A The next page on the report is the customer 18 A The top part is with her name. 18 incident investigation. 19 MR. BAER: You're not on the same page, Dave. The 19 Q Good. We'll go there. That would be the second 20 first page is to be completed by customer. 20 page? 21 BY MR. SHERMAN: 21 A Yes, sir. 22 Q Good. Just hold up your first page so we're on 22 Q Okay. Let's use that. Now, by the way, in the 23 the same page. It begins Kmart incident information? 23 description that Ms. Woll gave you it doesn't indicate that 24 A Yes. 24 she contributed to her own accident in any way? 25 Q Okay. I was on Kmart incident investigation. So 25 A No. Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FEBR>tIARY 9. 2009 Multi-Page Page 46 1 Q• And it doesn't indicate that she was careless or 2 reckless in any way? 3 A No. 4 Q And it doesn't indicate that she wasn't looking? 5 A No. 6 Q Okay. Now, it says to be completed by loss 7 prevention, which would be you? 8 A Yes, sir. 9 Q And you indicated that you -- is this your writing? 10 A Yes, sir. II Q Strike that whole thing. So I'm clear on the 12 question. I'm going to get there. Strike that whole 13 question because I overtalked on him. I talked over him. 14 On the incident investigation section where it says 15 nature of injury, do you see that section? 16 A Yes, l do. 17 Q And it says soreness? 18 A Soreness. 19 Q And then it says underneath that, right hand, 20 wrist, right thigh, right calf, and ankle? 21 A Yes. 22 Q So would it be fair to say that even you 23 acknowledged at that time that all of those parts of her 24 body appeared to suffer some injury? 25 MR. BAER: Objection. You can answer. He's just Page 47 1 reporting what she's telling him. He's not a medical 2 doctor. 3 BY MR. SHERMAN: 4 Q I think it's fair grounds to ask him. 5 A That's what I did, whatever she told me was 6 hurting. 7 Q Now, if you saw or observed a situation where you 8 felt somebody really wasn't injured, would you have 9 indicated that? 10 A Yes, I would have. 11 Q And that's not indicated in this record? 12 A No. 13 Q Okay. So you would agree with me that when you 14 saw her she appeared to be injured? 15 A At the time, yes. 16 Q And to multiple parts of her body, including 17 soreness, right hand, wrist, thigh, right calf, and ankle? 18 A Based upon what she told me, yes. 19 Q Now, the next sentence is the store's description 20 of the incident. And then it gives a parentheses, what, 21 where, when, how, and why, correct? 22 A Pretty much. 23 Q So they want basically from your experience a 24 complete and accurate report of what occurred? 25 A Yes. Page 48 1 Q And,they want that in detailed form? 2 A As best as possible, yes. 3 Q Any important things that you observed you would 4 have reported at that time? 5 A Yes. 6 Q Anything that you felt that would show that the 7 customer, for example, was responsible or that she was 8 liable as opposed to the store you would certainly report at 9 that time? 10 A Basically just the facts as I see, it. 11 Q Okay. But if you felt that there was a fact that, 12 supported that the store wasn't responsible, you would put 13 that in this potation? 14 A If I felt it was nott legitimate, I would put that t 15 in there, yes. 16 Q Okay.. And it says, it appears as if customer - it 17 appears as if customer caught her right foot on the corner 18 of a pallet stacked with boxed merchandise, tissue paper and 19 towels in parenthesis, while walking from the kitchen 20 accessory aisle to the pets aisle. Did I read that right? 21 A Yes. 22 Q And would you agree with me that that's exactly 23 what she reported to you? 24 A From what I can recall. I don't know if those 25 were the exact words that she used. Page 49 1 Q fI got you. Fair enough. Would it be, generally 2 speaking, accurate to say that she reported to you what's 3 contained there? 4 A Yes. 5 Q And would you agree with me that you didn't leave 6 or write any kind of explanation, for example, that you 7 couldn't understand how she caught her foot or ankle on the 8 pallet? 9 A Because that would be speculative. I didn't know. 10 So if I knew for a fact how she did it, if I actually ,,, 1.1 witnessed her doing it, then I would put down exactly how 12 she did it. 13 Q You didn't put there in that section, for example, 14 that the display was perfectly stacked or that it was 15 stacked properly or that there was no way this could happen 16 in the description she gave you; am I correct? 17 A No, I did not put that there. 18 Q If you felt that those facts were evidence, you 19 would have put that there? 20 A Yes, sir. 21 Q Fair enough. The next line says pallet was in the 22 midway between the kitchen accessory aisle and the pet 23 aisle. Now, I don't know what midway means. Maybeyou 24 can describe that. 25 A It's just a general term for a wide -- a wide c? 0 0 HUGHES, ALBRIGH T FOLTZ & NATALE 717-540-,0220/7 17 3 1, 93-5101, Multi-Pager` Page 50 1 aisle. It wasn't like a little small aisle. 2 Q So this was a big aisle where you knew customers 3 would be walking, correct? 4 A Yes. 5 Q And customers would be invited to walk even on the 6 bill aisle, that's why it's big, correct? 7 A Sure. 8 Q Now, it says the pallet was between the kitchen 9 accessories aisle and the pets aisle. Is that still an 10 aisle for walking? I 1 A That's still the midway aisle. 12 Q And is that still the same aisle that we've 13 described that's for customer walking? 14 A The wide aisle, yes. 15 Q Then it says, customer caught foot as she was 16 turning to walk into P-E-T. I guess pets? 17 A Pets, yes. 18 Q Did I read that right? 19 A Yes, you did. 20 Q Now, you then said -- and I think you've already 21 helped me with this because you said there was no reason to 22 believe that this was questionable or suspicious or untrue? 23 A Yes. 24 Q And I don't see a specific area for whether or not 25 you believe the version, but I guess that's as close to what Page 51 I -- what we -- strike that. 2 I guess that's as close to your opinion as to 3 belief of whether this incident occurred as is on this 4 questionnaire? 5 A Yes. 6 Q So you believe the incident occurred exactly as she 7 stated it? 8 A I believe that it wasn't suspicion, questionable, 9 or untrue. 10 Q Fair enough. Now, the next page, which begins 11 full name Todd Vash, and then what inspections, that would 12 be the second to last page, or do you have another section? 13 A There's a back page to that. It says Kmart 14 associate inspected at scene after incident. 15 Q Right. Are you up to there? 16 A I'm right there. 17 Q Perfect. We're on the same page, literally. What 18 inspection showed, if anything. Pallets neatly placed on 19 floor with adequate spacing, floor smooth and clean. 20 Now, let's just talk about that for a moment. The 21 pallets were neatly placed on the floor with adequate 22 spacing, and you're referring to both the boxes on the 23 pallets as a unit, as a group; is that a fair statement? 24 A I guess, yes. 25 Q Okay. I'm not trying to put words in your mouth. TODD VASH FEBRUARY 9, 2009 Page 52 1 A I'm just trying to think. I don't want to answer 2 incorrectly. 3 Q I know it goes back a long time, but you would 4 agree with me that what you're referring to when you say 5 that the pallets were neatly placed, you mean the pallets 6 with the boxes on them were neatly placed, correct? 7 A The -- yeah, I'm referring to the pallet where she 8 tripped, you know, the pallets actually out there on the 9 floor. They were all together. They were neatly placed. 10 Q But you're not talking -- as I can tell you're not 11 talking about the way that the boxes were stacked on the 12 pallets? 13 A No, not -- I don't think so. I was just more or 14 less referring to the area was clean and neat, and there's 15 nothing falling over, hanging out. 16 Q Right. And the reason I ask the question is 17 because remember when you told me about the Charmin section 18 of that display? 9A Yes. 20 Q You remember how you told me that that was an area 21 that if you had seen it before this event occurred, you 22 would have had it taken care of as a potential tripping 23 hazard? 24 A I would have addressed it probably myself or had 25 someone else do it. Page 53 1 Q Right. So you don't know one way or the other 2 from this incident report -- strike that. 3 You're not stating one way or the other about the 4 issue of the boxes stacked on top of the pallets when you 5 answered this inspection question? 6 A No. 7 MR. BAER: Objection. I'm not following your -- 8 BY MR. SHERMAN: 9 Q Sure. I'll rephrase it. No problem. When you 10 answered this inspection question on page three of the 11 report you weren't addressing whether or not the boxes were 12 stacked properly on the pallets? As I understand your 13 testimony you were addressing the pallets and where they 14 were positioned on the aisle? Am I stating that fairly? 15 A The area I was -- 16 MR. BAER: Why don't we just ask him what he meant 17 when he said that? 18 BY MR. SHERMAN: 19 Q That's fair. Okay. Why don't you tell me 20 exactly what you're speaking about? 21 A All right. Just that the area was neatly kept, 22 like I said. There was no -- no debris laying on the 23 floor. Boxes weren't crushed, didn't appear to be any 24 leaking out of the boxes. 25 There was no pallet pieces lying on the floor Page 50 Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 1) VASH WARY 9, 2009 Multi-page.... Page 54 1 sticking out as occasionally there might be, was no 2 basically any debris. It was pretty much a clear -- clean 3 area. 4 Q And what I'm getting at, and I think we're getting 5 close to it, you're not talking about, for example, the 6 condition that is showed on Vash 2 with regard to the way 7 the Charmin boxes are displayed on the pallet? 8 A No, no. 9 Q You weren't addressing that one way or the other? 10 A No. 11 Q And you weren't addressing the other side of Vash 12 2, the side closer to where she fell, in terms of how the 13 boxes were placed on the pallet? Is that a,fair statement? 14 A When you say other side, what -- had -- 15 Q In other words, the area that we talked about with 16 the Puffs, that box section? 17 A Right. 18 Q You're not talking about the way those Puff boxes 19 are displayed on the pallet? 20 A I was just giving a general area -- of the scene 21 itself. That wasn't specifically pinpointing anything. 22 Q Fair enough. You noticed on Section 4 of the page 23 that we're on that she wasn't wearing any type of shoes that 24 would have contributed to the accident? 25 A Which section? Page 55 1 Q Section 4 for fall down incidents? 2 A Okay. 3 MR. BAER: What's the question? 4 BY MR. SHERMAN: 5 Q You indicated she was wearing canvas Dockside type, 6 good for condition in terms of her footwear. 7 MR. BAER: Actually it says -- well, he can tell 8 you what he wrote. 9 THE WITNESS: Canvas type, Docksiders type, good, 10 fair condition. 11 BY MR- SHERMAN: 12 Q So you didn't have any facts or evidence to believe 13 that her footwear contributed to the accident? 14 A I had no way of knowing, no. 15 Q And you didn't believe when you completed the 16 incident report and spoke to her, Ms. Woll, that she was 17 suffering any kind of nausea, vertigo, dizziness, or 18 anything like that? 19 A No. 20 Q Okay. On the last page there's a statement of 21 signed witness, Peter Pope. Do you know who he is? 22 A No. 23 Q Did you talk to him personally? 24 A Well, I know he was there as a witness for her, but 25; 1 don't know him other than that. And talking to him was Page 56 1 just getting him to fill out the statement form. 2 Q Do you remember him as you're sitting here today? 3 A Vaguely. I remember -- I remember discussing 4 something with a man. 5 Q And it wasn't somebody that appeared to you to be 6 with Ms. Woll or someone she knew? 7 A No. 8 Q So this would be an independent eye witness to the 9 best that you can remember? 10 A Yes. 11 Q And this independent.eye witness wrote an incident 12 report at the scene and said, I saw this lady hook her 13 sneaker on this pallet that was in the midd a of aisle and 14 go down hard? 15 A Yes. 16 Q Do you agree,I read that accurately? 17 A Yes. 18 Q And that's part of the company's incident report? 19 A Yes. 20 Q And if you had any facts or evidence to refute 21 that, any aspect of that witness statement, you would have. 22 made a notation of that? 23 A If I would have what? 24 Q You would have made a notation if you had any facts 25 or evidence to refute what the witness said? Page 57 1 A I don't know. I don't mess at all -- whatever 2 they write, they write. 3 Q But somewhere on this incident report there's a 4 section, as we've talked about, for you to write notes. 5 And if you felt that that signed witness statement was 6 inaccurate 7 A If I felt any part of this report was inaccurate 8 based upon their testimony or to me, then I would have noted 9 it somewhere, yes. 10 Q Now, did you talk to Ms. Woll after the incident? 11 A I believe I was asking more her condition, how she 12 feels, and if she needs medical attention or something like 13 that. 14 Q Did you -- can you describe -- I know you've told 15 us what she explained about and what you felt from all the 16 information you knew she was injured. Can you describe what 17 you saw about her physical condition? 18 A She appeared to be like she was in pain. She 19 couldn't write very well with her wrist, you know. Her 20 wrist was hurting. She did complain about the pain being 21 in her hip, you know, and her feet. But that's pretty 22 much, you know, what I can remember. 23 Q How long was she at the scene approximately? 24 A I'm thinking maybe total from beginning to end 25 maybe, about a, half hour, ., I 0 D age; 54 - Page 57 _ . HUGHES, ALB C=II' FOLTZ & NATAL, :717<-540 0220/7,17.,-393 ;5.101 Multi-Page TM TODD VASH FFRRTTARY 0 7nn0 Page 60 1 on here at all. It's pretty close to the edge, maybe an 2 inch, half inch. 3 Q Would that inch or half inch -- I know you're doing 4 your best. 5 A That's from Exhibit 1. The Exhibit 1 picture on 6 the view you had right here of that shot, it appears to be 7 maybe about a half inch from that -- the bottom of the box 8 to the edge of the pallet. 9 Q And that's just your rough estimate? 10 A Rough estimate. 11 Q You've never taken a measurement? 12 A No, sir. 13 Q Do you know if that pallet's broken or not? 14 A It appears to be -- the bottom part appears to be 15 separated from the top, but not protruding, but separated, a 16 gap in between. 17 Q Is that something that would be expected back at 18 that time? 20 pallets out sometimes the forklift won't go under there 21 right because of these boards. If they can't wheel it 22 freely, then yes, that pallet would not be used anymore. 23 Q You don't know from that time, as I understand your 24 testimony, whether that was the case back before she fell? 25 A No. Page 58 1 Q Did you have any conversations with her? Did you 2 say anything to her? 3 A Not that I can recall. 4 Q Did you apologize in any way on behalf of the store 5 or anything like that? 6 A I don't remember. 7 Q Did you hear Ms. Woll say anything to you other 8 than complaints about her injuries? 9 A No. 10 Q And other than a description of how the incident 11 occurred? 12 A Not that I can recall. 13 Q Have you seen Ms. Woll after the incident? 14 A No. 15 Q Did you see how she left the area? 16 A No. I was trying to think. I don't know if she 17 walked on her own, because she didn't have a wheelchair in 18 the store. But I can't remember. Something about a 19- wFteelchati.__T'-rn not sure t s e wante tt to go. 20 Q So you don't know if she left by emergency? 21 A No, she didn't leave by emergency. 22 Q She left on her own? 23 A With her friend. 24 Q Do you know of any other statements that she made 25 to anyone at any time about this incident? Page 61 1 Q And you can't tell us from your own personal 2 knowledge or even from the pictures other than the estimate 3 that you were kind enough to give me how far the wood -- how 4 much the wood was sticking out beyond the box on display, 5 the Puff box? 6 MR. BAER: Other than what he just testified to? 7 BY MR. SHERMAN: 8 Q Other than what you just testified to? 9 A No, no. 10 MR. SHERMAN: Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Would it be -- would it be fair to say that if -- 14 strike that. Do you have an idea as -- as safety -- in 15 your position as a risk manager how much sticking out, to 16 use your word, would be acceptable for a display of that 17 nature that's shown in Vash 1 and 2, particularly the area 18 where the Puff boxes are on the pallet? 19 MR. BAER: Objection. 20 THE WITNESS: Okay. But, no, I have no way. 21 BY MR. SHERMAN: 22 Q Can you give me an idea, an estimate, an opinion 23 from your position and vantage point as a manager in risk 24 management how many inches would be acceptable, how many 25 centimeters, whatever measurement you feel comfortable with Page 59 1 A No. 2 Q And you've already told me that you never spoke to 3 any other store personnel except for those conversations 4 that you had regarding the completion of this report; is 5 that right? 6 A Just ones that would have been immediately, like my 7 manager. 8 Q Now, I know you didn't do measurements, you didn't 9 take measurements of the area of the pallet that we're 10 talking about where the Puffs are? 11 A Right. 12 Q Do you know what I'm talking about? 13 A Yeah. 14 Q Can you give me any estimate as to whether there's 15 any wood sticking out further than -- strike that. 16 Can you give me any estimates as to whether there's 17 any wood sticking out beyond the area of where the box would 18 lay on the pallet? 19 MR. BAER: Which box? 20 BY MR. SHERMAN: 21 Q The box of Puffs. I'm sorry. 22 A The one she tripped on, an estimate of sticking 23 out? 24 Q Yes. 25 A No, I don't see any -- maybe -- it's hard to tell HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 58 - Page 61 TODD VASH FEl'RUARY 9, 2009 Multi-Page, Page 62 Page 64 1 woilld be acceptable to stick out before you call it a I A No, sir. I mean, it could still be at our store. 2 tripping hazard? 2 They could have recycled it by now. I have no idea. 3 MR. BAER: I'm going to object. Are you talking 3 Q Is that pallet marked with a number? There's a 4 about this specific photograph or condition in general? 1 4 number. Was that pallet preserved? 5 mean -- 5 A No. 6 BY MR. SHERMAN: 6 MR. SHERMAN: Okay. Thank you. No further 7 Q Fair enough. I'll pare it down as much as I can. 7 questions. Thanks a lot for your, patience. 8 I understand. Taking a look at Vash 2,.do you see -- do 8 THE WITNESS: Sure, no problem. 9 you see Vash 2? 9 (Kmart Customer Incident Information was produced 10 A Yes, sir. 10 and marked as Vash Deposition Exhibit Nq. 3.)._ 11 Q Okay. We've talked a lot about that particular 11 (Whereupon, the deposition was concluded at 3:25 12 display, the one that's holding the Puff boxes. Do you see 12 p.m.) 13 that? 13 r 14 A Yes. 14 15 Q Okay. Do you have -- using that display can you 15 16 give me, in your view as a risk manager and somewhat 16 17 experienced in safety, customer safety as you've described, 17 18 how many inches would be acceptable to stick out before 18 19 you'd call it a tripping hazard? 19 20 A I can't give an estimate of inches. If it looked 20 21 unsafe, you know, possibly I would just either have myself 21 22 do it or have somebody else look at it. But there's no 22 23 specific guideline. 23 24 Q So you're not saying whether an inch, a half inch, 24 25 two inches would be a guideline for you as a Kmart employee 25 Page 63 Page 65 1 to consider a tripping hazard? I COUNPY OF DAUPHINss 2 MR. BAER: Objection. He already answered the 2 COMMONWEALTH OF PENNSYLVANIA 3 question. I'm going to instruct him not to answer. 3 I, Donna E. Gladwin, a Notary Public, authorized to 4 BY MR. SHERMAN: 4 administer oaths within and for the Commonwealth of 5 Q Okay. If you had seen a condition of a piece of 5 Pennsylvania, do hereby certify that the foregoing is the 6 the wood sticking out, would it have been easy to fix? 6 testimony of,Todd Vash. 7 A If it was sticking out, protruding, I -- I would 7 I further certify that before the taking of said 8 have addressed that. And it depends on how it was sticking 8 deposition, the witness was duly sworn; that the, questions 9 out. 9 and answers were taken down -stenographically by the said 10 Q Would it have been easy in terns of employee usage 10 Reporter-Notary Public, and afterwards reduced to 11 and equipment to just move the pallet and then take the 1I typewriting under the direction of the said Reporter. 12 boxes off, for example? 12 I further certify that I am not a relative or 13 A It wouldn't have been difficult, no. 13 employee or attorney or counsel to any of the parties, or a 14 Q Could have taken a few minutes? 14 relative or employee of such attorney or counsel, or 15 A Possibly. 15 financially interested directly or indirectly in this 16 Q A few minutes of an employee's time just to move 16 action. 17 the boxes and get rid of the pallet, true? 17 I further certify that the said deposition 18 A Yes. 18 constitutes a true record of the testimony given by the said 19 MR. SHERMAN: Thank you. I don't have -- off the 19 witness. 20 record. 20 IN WITNESS WHEREOF, I have hereunto set my hand 21 (Discussion held off the record.) 21 this 21st day of February, 2009. 22 BY MR. SHERMAN: 22 23 Q As I understand it, you have no idea where the 23 Doma E. Gla w;n, Repo 24 whereabouts of that pallet presently is, the one closest to 24 Notary public 25, where the F is on Vash 2? 25 0 0 0 Page 62 - Page 65 HUGHES, ALBRIGHT; FOLTZ .&.NATALE ;717-510 0220/717-393-5;101 --SEE BACK FOR PHOTOGRAPH INSTRUCTIONS-- Full Name Dl%^& . ?% Mail original to: Kmart Customer Incident Center P. O. Box 5058, Troy, MI 48007-5058 Photo copy for store file ?,t1fll (3710944699-115 25/pk rev 8/04 f av®aroe?e -VVIV111L1% IIV\¦IVL.111 rnvevvf%Mr- n RETENTION SHEET A a Joseph W. Gibley, Esquire jgibleyla gibleylaw.com Frank W. Baer, Esquire fbaer @gibleylaw.com Attorney I.D. Nos. 51814143866 GIBLEY AND MCWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 Attorney for Defendant Kmart Corporation PATRICIA WOLL COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PA V. NO.: 08-3384 KMART CORPORATION Defendants. CERTIFICATE OF SERVICE I, Frank W. Baer, Esquire, hereby certify that a copy of the attached Motion for Summary Judgment has been served upon the following individuals by first class, United States mail, postage pre-paid, this 15`h day of June, 2009. Christopher J. Marzzacco, Esquire COLGAN MARZZACCO, LLC 130 W. Church Street, Suite 100 Dillsburg, PA 17109 David B. Sherman, Esquire SOLOMON, SHERMAN & GABAY 8 Penn Center - Suite 2200 1628 JFK Blvd. Philadelphia, PA 19103 Respectfully submitted, GIBLEY AND WILLIAMS, P.C. .Je &C1 By: Kt,4.4j- - FrAnnk W. Baer, Esquire Counsel for Defendant Kmart Corporation FILE) OF 'ME ICU Y 1HU9 JUN 17 Pil 12: t,1 lJtJl „`IT y, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL Plaintiff V. KMART CORPORATION Defendant No. 08-CV-3384-CV CIVIL ACTION -- LAW PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER 18. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiff's claims are barred by the applicable statute of limitations are specifically denied and strict proof is demanded thereof at the time of trial. 19. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiff's claims fail to state a cause of action upon which relief may be granted are specifically denied and strict proof is demanded thereof at the time of trial. 20. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiffs claims are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or doctrine of Contributory Negligence are specifically denied and strict proof is demanded thereof at the time of trial. 21. Denied. It is specifically denied that the incident in question was caused by any negligence of the Plaintiff in this matter. By way of further answer, it is believed and averred that the Defendant's acts and/or omissions constitute negligence in this matter. 22. Denied. It is specifically denied that the Defendant did not have control or the right to control the instrumentality or entity that caused the slip and fal in this matter. 23. Denied. It is specifically denied that the Defendant did not have control or the right to control the instrumentality or entity that caused the slip and fall in this matter. 24. Denied. It is denied that the negligence of the Defendant was not the proximate cause of the accident in this matter and Plaintiffs injuries arising therefrom. 25. Denied. It is denied that the Answering Defendant was unaware of the condition that caused the accident in this matter. By way of further answer, Defendant knew, or should have known, of the dangerous condition prior to the accident. 26. Denied. It is specifically denied that Plaintiff failed to notice and avoid an open and obvious condition in this matter. By way of further answer, the Defendant is responsible for creating and/or not preventing the dangerous condition from existing on its property. 27. Denied. It is specifically denied that Plaintiff was aware of the condition that caused her fall and encountered it intentionally, rather than choosing an alternative route of travel. By way of further answer, it is believed and averred that the dangerous condition created by the Defendant prevented Plaintiff's choice of way in this matter. 28. Denied. It is specifically denied that Plaintiff was aware of the condition and failed to avoid a known dangerous condition. By way of further answer, it is believed and averred that Defendant created the dangerous condition that caused Plaintiff's trip and fall. WHEREFORE, Plaintiff, Patricia Woll, demands judgment in her favor and against the defendant in excess of thirty-five thousand dollars ($35,000.00). Respectfully submitted by: COLGAN MARZZACCO, LLC 6 By4-A toph r J. Marzzacco, Esquire PA Attorney ID# 78262 130 W. Church Street Suite 100 Dillsburg, PA 17109 (717) 502-5000 Attorney for Plaintiff VERIFICATION The undersigned, PATRICIA WOLL, verifies that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Respectfully submitted, Dated: Ca a? ©9 U)3(`' PAT ICIA WOLL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA PATRICIA WOLL Plaintiff No. 08-CV-3384-CV V. KMART CORPORATION CIVIL ACTION -- LAW Defendant CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiffs Answer to Defendant's New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first- class, postage prepaid, as follows: Frank Baer, Esquire Gibley & McWilliams 524 North Providence Road Media, PA 19063 Date: 1? Respectfully submitted, COLGAN MARZZACCO, LLC Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 502-5000 Attorney for Plaintiffs r-l!_.: c; T ?, Y tGG J { 23 s`' I 'j = IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WOLL Vs. NO. 08CV3384 KMART CORP CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 FRANK W BAER, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena(s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty, days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s).. Date: 06/26/09 _FRANK W BAER, ESQUIRE 524 N PROVIDENCE RD MEDIA, PA 19063 :610-627-9500 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3336 File #: M364510 -By: Linda Morson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY WOLL Vs. KMART CORP I No. 08CV3384 TO: CHRISTOPHER MARZZACCO, ESQ (PLAINTIFF) NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena(s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 06/05/09 FRANK W BAER, ESQUIRE 524 N PROVIDENCE RD MEDIA, PA 19063 ATTORNEY FOR DEFENDANT "INQUIRIES SHOULD BE ADDRESSED TO: {MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3336 By: Linda Morson Enc(s): Copy of subpoena(s) Counsel return card File #: M364510 COMMONWEALTH OF PENNSYLVANIA WOLL Vs. KMART CORP COUNTY OF. Fi le No. 08CV3384 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: PA 17013 ATTN: PERSONNEL DEPAR f Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: --?- SEE ATTACHED ADDENDUM (Address) You D9? eIGEdl,?aR$P $ ? es thl4 ? c 1 gs' rePA , quested b) this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the rea.onablc- cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving thi, subpoena may seek a court ordei ampe 11 i ng you to ca, l y with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME : ADDRESS: ESQ TELEPHONE: SUPREME OOURT ID # 524 N PROVIDENCE RD ATTORNEY FOR : MEDIA PA 19063 215-335-3212 DATE: P 2,0-0 q DEFENDANT Seal of the court M364510-01 BY THE OOURT• Prot tary/c 1 v 1 Division Deputy (Eff. 7/97) ADDENDUM TO SUBPOENA WOLL Vs. No. 08CV3384 KMART CORP CUSTODIAN OF RECORDS FOR : BELVEDERE MED CTR ANY EMPLOYMENT APPLICATIONS, EARNINGS, LEDGER SHEETS, TIME CARDS REVIEWS, ATTENDANCE SHEETS, ANY AND ALL MEDICAL RECORDS AND REPORTS AND PRE-EMPLOYMENT PHYSICALS, WORKMEN'S COMPENSATION CLAIMS MADE, ANY W-2 WITHHOLDING TAX FORMS, AND ANY OTHER INFORMATION PERTAINING TO: NAME: PATRICIA WOLL ADDRESS: 433 SAMPLE BRIDGE RD ENOLA PA DATE OF BIRTH: 02/23/56 SSAN: XXXXX5820 ALL EMPLOYMENT AND PERSONNEL RECORDS CERTIFIED PHOTOCOPIES WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. RECORD CUSTODIAN - COMPLETE AND RETURN [ l RECORDS ARE ATTACHED HERETO: I hereby certify as custodian of records that, to the best of my knowledge, information and belief all documents or things above mentioned have been produced. [ ] NO DOCUMENTS AVAILABLE: I hereby certify that a thorough search has been made and that no record of the following documents have been located (CHECK THE APPROPRIATE BOX): ( ) RECORDS ( ) PATIENT BILLING ( ) X-RAYS ( ) RECORDS / XRAYS have been destroyed Date Aut orize signature--f-or- BELVEDERE MED CTR CUMBERLAND M364510-01 * * * SIGN AND RETURN THIS PAGE FILED-,--"I- i L OF THE PPRC1' 41(',NO TAPY 1' i'?ir+Y¢ ft--,. x.. 2009 JUL -9 N"I 12: L; G it !'I V l COLGAN MARZZACCO, LLC. 130 W. Church Street, Suite 100 Dillsburg, PA 17109 by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 (717) 502-5000 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Patricia Woll Plaintiff No. 08-3384 V. Kmart Corporation CIVIL ACTION -- LAW Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, Plaintiff, Patricia Woll, by and through her Attorneys, Christopher Marzzacco of Colgan Marzzacco, LLC. and David Sherman of Solomon, Sherman & Gabay, hereby files this Response to Defendant's Motion for Summary Judgment and respectively avers the following: 1. Plaintiff started this action via filing a Complaint against Defendant, on or about July 2, 2008. (See Exhibit "A") 2. Defendant filed an Answer with New Matter to Plaintiff's Complaint on or about June 2, 2009. Service of the same was made to counsel on or about June 17, 2009. (See Exhibit "B") 3. Plaintiff filed an Answer to Defendant's New Matter, denying all allegations in the same, on or about June 16, 2009. (See Exhibit "C"). -1- 4. Defendant filed a Motion for Summary Judgment with this Court on or about June 17, 2009. Service of the same was made to undersigned counsel on or about June 18, 2009. 5. Plaintiff's Deposition was taken by Defendant on or about February 9, 2009. (See Exhibit "D") 6. The Deposition of Defendant's Loss-Prevention employee, Mr. Todd Vash, was taken by Plaintiff on or about February 9, 2009. (See Exhibit "E"). 7. In its Motion for Summary Judgment ("Motion"), Defendant argues that Plaintiff has failed to show that Defendant is negligent because the pallet over which Plaintiff tripped while an invitee on Defendant's premises was not an "unreasonably dangerous condition" at the time of Plaintiff's fall. Furthermore, Defendant argues that said pallet constituted an "open and obvious condition." 8. The facts through the discovery conducted thus far show that a genuine issue of material fact exists regarding whether Defendant's aforementioned pallet created an unreasonably dangerous condition and whether the same was open and obvious. 9. On the morning of the incident, Patricia Woll, Plaintiff, entered Defendant's premises, a retail store located on the Carlisle Pike in Mechanicsburg, Pennsylvania, to buy a "Martha Stewart" basket and some cleaning supplies. (See Plaintiff's Deposition at pp. 15-18). 10. Plaintiff testified that as she was looking for the Martha Stewart basket, her foot contacted a wooden pallet containing cardboard boxes that Defendant had placed in the shopping aisle. (See Plaintiff's Deposition at pp. 30-33). 11. Shortly after Ms. Woll tripped on the pallet, Defendant's Loss Prevention -2- manager, Mr. Vash, responded to the area of the fall. 12. As Loss Prevention Manager for the Defendant's store in question, Mr. Vash was responsible for customer safety and prevention of tripping hazards. (See Vash Deposition at p. 9, II. 2-7; p. 13, II. 13-14). 13. Mr. Vash acknowledges that on the date in question, Defendant placed the pallet, upon which rested cardboard boxes of unopened merchandise, in the aisle where Ms. Woll tripped. (Vash Deposition pp. 32-33). 14. Around the time of Plaintiff's fall, Defendant conducted routine, monthly safety inspections of the store. (Vash Deposition at p. 16, II. 1-4). 15. In early portions of his testimony, Mr. Vash does not recognize or acknowledge the aforementioned pallet as a "tripping hazard," as reflected in the following exchange from his deposition: Q. Okay. As an experienced manager that safety is a priority for, do you consider the displays that are shown in Vash 2, both the area where the Charmin is and the other one where - nearer to where she fell, to be potential tripping hazards? MR. BAER: Objection. Go ahead and answer. A. In this picture, no, I don't, no. Q. You don't see any potential tripping hazard? A. Not really, no. (Vash Deposition, p. 36, II. 23-25 to p. 37, II. 1-7). 16. Despite the testimony highlighted in the preceding paragraph, Mr. Vash eventually acknowledged that Defendant, at the time of Ms. Woll's fall, was aware that "tripping hazards" included displays placed on pallets on Defendant's floor. (Vash -3- Deposition at p. 11, II. 14-16). 17. Regarding the particular pallet in question, Mr. Vash also conceded that a portion of the pallet did pose a tripping hazard to customers. Specifically, the following took place at depositions: Q. Why - would you call that particular area at the bottom of Vash 2 of the display on the Charmin side of the shelf, would you call that a potential tripping hazzard? A. Potentially. Q. And why would you call it that? A. Just because the boxes aren't - aren't even with the pallet. If they were even with pallet, it might give it more of a solid shape. Q. And would that be something that, if you saw as a conscientious manager, you would cure and correct? A. Now that you bring it to my attention, I wasn't thinking at the time, but yes, I would go fix that. Q. As - because it's a potential tripping hazzard? A. Yes, sir. (Vash Deposition, at p. 39, 11. 20-25; p. 40, II. 1-8). 18. An objective reading of Mr. Vash's own testimony shows the issue of material fact that results in this matter regarding one of the key issues in this claim, i.e., was the pallet as displayed on the date in question an "open and obvious" condition? 19. After she had tripped on the aforementioned pallet, two (2) photos were taken depicting the general area where Plaintiff fell. At depositions, said photos were marked as "Woll 1" and made part of the record. (Said photos are attached hereto as Exhibit T") 20. At his deposition, Mr. Vash testified that he also took several photos of the -4- area after Plaintiff fell. At depositions, said photos were marked as "Nash 1" and "Nash 2" and made part of the record. (Said photos are attached hereto as Exhibits "G-1" and "G- 2") 21. In his deposition testimony, while looking at the photos marked Vash 1 and Vash 2, Mr. Vash conceded that the aforementioned pallet that caused Plaintiff's fall was blocking a portion of the aisle. (Vash Deposition at p. 32, II. 7-15). (See Exhibits G-1 and G-2). 22. Mr. Vash agreed that the photo now attached as G-2 showed a portion of the wood from the pallet in question "sticking out" beyond the edge of the cardboard box of merchandise resting upon it. Specifically, the following exchange took place: Q. Okay. Do you see any wood that would be sticking out beyond the point of where the box is displayed on the display? A. In Vash 2 in the bottom, the Charmin pallet, I do see that, the wood sticking out from the box. Q. Do you think that's a proper display in terms of customer safety? I don't mean in terms of stacking for efficiency for the shelving. A. No, that box could be moved over to the edge a little more. Q. And why would that be? A. Again, to not have that wood sticking out. It would be more symmetrical or more straight, even edges. (Vash Deposition, p. 38, II. 16-25; p. 39, II. 1-3). 23. The aforementioned photo attached as G-2, depicts the general area of the pallet where Plaintiff tripped. Mr. Vash indicated that said area of the pallet appeared to -5- be broken and separated. (Vash Deposition at p. 60, II. 13-16). 24. A thorough and objective reading of the deposition testimony of both Plaintiff and Mr. Vash shows the disagreement of fact that arises regarding the condition of the pallet in question, as depicted in the photos, as both Plaintiff and Mr. Vash were only able to indicated the "general" area of the pallet where Plaintiff fell. 25. Plaintiff and Mr. Vash both testified throughout their respective depositions that it was difficult to make conclusions and calculations from the aforementioned photos attached as Exhibits F and G-1 and G-2, because of the angle from which the photos were taken. At one point, Mr. Vash indicated the following: Q. Can you point on the photograph where she told you she fell? A. All right. You can't see because it's the opposite direction, but it was right here in this corner. (Indicating.) (Vash Deposition at p.27,11. 23-25; p. 28,111-2). Q. Do you see anything protruding? You know what I mean by protruding? A. Sticking out, yeah. It's hard to tell depth perception with this shot. Q. I appreciate that. I think you're right. Do you see anything, even with this shot because that's all we have in front of us to show, any wood sticking out from the display? A. I can't see wood sticking out from the display from this shot. (Vash Deposition at p. 28, II. 16-25). 26. Later, the following exchange took place in Plaintiffs deposition regarding the -6- photo angles: Q. Okay. Do you believe that there was any portion of the pallet that was protruding beyond what is depicted in Vash 1 that caused you to fall? Do you understand what I'm -- A. Ask it again. Q. Yes. Do you believe that Vash 1 accurately depicts the way the pallet looked when you tripped. A. No, no, I do not. Q. How was it different? A. Because of the angle of which I took it does not exemplify how the - the base piece of wood shows coming from beneath. So in other words, the angle that I'm taking is not the angle from which I fell. I'm on the other side. (Woll Deposition at p. 32, II. 14-25; p. 33, 1. 1). 27. As the above-referenced deposition testimony indicates, the issue of whether or not the photos depict an unreasonably dangerous product should be decided by the trier of fact in this matter, as reasonable minds can certainly differ regarding the issue. 28. As of the date of the drafting of this Response, both Plaintiff and Defendant have knowledge of the existence of a disinterested witness to Plaintiff's trip and fall. 29. Attached as Exhibit "H" is an Affidavit from Mr. Peter Pope. 30. According to the information in Mr. Pope's Affidavit, it appears that he saw Plaintiff fall and may be able to provide facts and evidence material to both issues raised by Defendant in its Motion for Summary Judgment. (See Exhibit H). 31. As of the date of the drafting of this Response, neither Plaintiff nor Defendant have noticed Mr. Pope's deposition. -7- 32. Plaintiff, through her own deposition testimony, that of Defendant's employee/designee, Mr. Vash and the Affidavit of Mr. Pope, has produced sufficient evidence to prove Defendant owed Plaintiff a duty of care and that Defendant breached that duty. Moreover, the depiction of the pallet in the photographic evidence creates a material issue of fact that should be decided by the trier of fact in this matter. 33. In its Motion, Defendant also argues that Plaintiff should have seen the aforementioned pallet because it was an open and obvious condition and as such, Plaintiff should have avoided the condition all together. 34. Although Plaintiff saw the pallet in the aisle prior to her fall, Plaintiff testified that at the time of her fall her attention was focused on finding the area of the store that displayed the particular "brand-name" product she was shopping for. In her deposition, Plaintiff indicated the following: Q. All right. I was in an aisle walking towards the front of the store. And what I recall is that previously when I had purchased a similar Martha Stewart basket, the location of that item had moved. So I needed to find where it now was. (Woll Deposition at p. 24, II. 6-10). 35. Plaintiff also testified that Defendant had moved the location of said item in its store since the last time she had shopped on the premises. (See Plaintiff's Deposition, p. 26, 11. 3-9). 36. At the time of her fall, Plaintiff's attention was attracted to Defendant's shelves and the products displayed thereon. Specifically, Plaintiff responded as follows at her deposition: Q. My purpose in showing you these photographs in Woll 1 is to try to get an idea of your direction, where you -8- were intending to go. And this last question I posed to you is can you tell me where you were looking when your right foot contacted the pallet? A. I most certainly can tell you where I was looking. If you recall, I mentioned that they moved where the Martha Stewart baskets had been. They had originally been in this aisle. (Indicating.) So when I came around this corner and now noticed it was pets, I'm thinking where did they move the Martha Stewart basket? Q. Where were you looking? A. I was looking in this next aisle up on the shelves. (Woll Deposition p. 39, II. 6-14; II. 22- 24). 37. Mr. Vash also admitted that Defendant expects its customers to look at its product while it is displayed at eye-level on its shelves while they are shopping on its premises. (See Vash Depostion, p. 11, II. 17-25; p. 12, II. 1-11). 38. Because Mr. Vash acknowledged that customers were expected to look at product displayed by Defendant at eye-level on its shelves, he also admitted that said expectation was the very reason that Defendant was aware that creating tripping hazards on its floor needed to be avoided. (Vash Deposition at p. 12, II. 3-11). 39. Plaintiff testified that at the precise time of her fall, i.e., at the second when her foot made contact with Defendant's pallet, she was looking "up on the shelves." (See Plaintiff's Deposition, p. 39, II. 22-24). 40. Knowing that Plaintiff's attention would be focused on areas above the floor while shopping, Defendant should not have expected Plaintiff to be in a position to protect herself from the pallet and should have used its vast resources to prevent the tripping hazard it created. -9- 41. Through her testimony and that of Defendant's employee/designee, Mr. Vash, Plaintiff has produced sufficient evidence showing that there is a material issue of fact regarding the question of whether Defendant's pallet was open and obvious to Plaintiff and whether Defendant properly protected her from the same. WHEREFORE, Plaintiff, Patricia Woll, respectfully submits that this Honorable Court should not grant Defendant's Motion for Summary Judgment in this matter. Respectfully submitted by: C:? ?? COWAN MA ZZAC O, LLC by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 130 W. Church Street, Suite 100 Dillsburg, PA 17109 (717) 502-5000 Solomon, Shertban-& 6abay ' by: David Sherman, Esquire PA Attorney I D# 36437 628 JFK Boulevard, Suite 2200 Philadelphia, PA 19103 (215) 665-1100 -10- VERIFICATION The undersigned, PATRICIA WOLL, verifies that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Respectfully submitted, Dated: -7-IS--o9 ? PA ICIA WOLL COLGAN MARZZACCO, LLC. 130 W. Church Street, Suite 100 Dillsburg, PA 17109 by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 (717) 502-5000 Counsel for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Patricia Woll Plaintiff No. 08-3384 V. Kmart Corporation Defendant CIVIL ACTION -- LAW CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of the Plaintiff's Response to Defendant's Motion for Summary Judgment upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Frank Baer, Esquire Gibley & McWilliams, P.C. 524 N. Providence Road PO Box 1107 Media, PA 19063 For Kmart Corporation Date: 7 IS gI 1 COLGA MAR CCO, LLC Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Exhibit cc A" IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff No. -CV- -CV V. Kmart Corporation t/d/b/a: Sears Kmart Defendant o? - 2W Diva ierp, CIVIL ACTION -- LAW NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. IF YQLJ WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINTAND NOTICE ARE SERVED, BY ENTERINGA 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. YOU MAY LOSE MONEY OR PROPERTY OR 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 WITH 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. CUMBERLAND COUNTY BAR ASSOCIATION' 7 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 ,,'- 71 (717) 249-3166 - IM '_j rn -1- COLGAN MARZZACCO, LLC. 130 W. Church Street, Suite 100 Dillsburg, PA 17109 by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 (717) 502-5000 Counsel for Plaintiff JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll V. Plaintiff Kmart Corporation tld/b/a: Sears Kmart Defendant No. -CV- -CV CIVIL ACTION -- LAW COMPLAINT AND NOW, Plaintiff, Patricia Woll, by and through her Attorneys, Christopher Marzzacco of Colgan Marzzacco, LLC. and David Sherman of Solomon, Sherman & Gabay, hereby files this Complaint and civil action against Defendant, Kmart Corporation, t/d/b/a: Sears Kmart, and respectively avers the following: 1. Plaintiff, Patricia Woll is an adult individual residing at 433 Sample Bridge Road, Enola, Cumberland County, Pennsylvania. 2. Defendant, Kmart Corporation t/d/b/a: Sears Kmart, is a corporation, business and/or legal entity authorized to do business in Pennsylvania, with an office/store located in Cumberland County, Pennsylvania and at all times pertinent hereto owned, operated, controlled, maintained and possessed the premises known as "Store # 04275," located on Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. -2- 3. At all times pertinent hereto, the defendant, Kmart Corporation t/d/b/a: Sears Kmart (hereinafter referred to as "Kmart"), owned, operated, controlled, maintained and possessed the aforementioned premises. At all times pertinent hereto, Plaintiff was a customer and business invitee, lawfully on defendant's premises. 4. At all times pertinent hereto, all of the acts and omissions of the defendant were committed by the defendant through its agents, servants, workers and/or employees and by others over whom the defendant had control and/or authority. 5. On or about June 22, 2006, the premises was so negligently and carelessly maintained by the defendants, to wit: a wooden pallet containing products and/or merchandise was placed in the walkway of a shopping isle, causing plaintiff to slip and/or trip and fall to the floor, as set forth more particularly hereinafter. 6. The aforementioned negligence of the defendant caused the injuries and damages suffered by plaintiff, set forth more particularly hereinafter. COUNT 1 PATRICIA WOLL v. MART 7. Paragraphs 1-6 are incorporated by reference as though fully set forth at length herein. 8. By reason of the negligence of the defendants acting as aforesaid, the plaintiff suffered personal injuries and/or property damage as a result of said incident. 9. The aforesaid incident was a direct and proximate result of the negligence -3- and carelessness of the defendant and such negligence and carelessness consisted of the following: (a) Kmart failed to inspect the area; (b) Kmart failed to cure the defect they created; (c) Kmart failed to monitor the area; (d) Kmart failed to cordon off the area; (e) Kmart failed to provide a safe walkway in the isle; (f) Kmart failed to post proper warnings in the isle; (g) Kmart failed to use appropriate materials in the isle; (h) Kmart failed to have proper staff and employees in the area; (1) Kmart failed to train their staff and employees; 6) Kmart was otherwise negligent in fact and at law, to be determined at trial; (k) Kmart violated its procedures and safety policies; and (1) Kmart violated the Restatement (Second) of Torts. 10. The servants, agents, workers and/or employees of the defendant who controlled the premises knew or should have known of the dangerous condition which caused the aforesaid incident. 11. The aforesaid dangerous condition existing at the area of the premises existed for a sufficient period of time to constitute notice to the defendant of the existence of the same. -4- 12. The defendant had sufficient opportunity to eliminate, abate, resolve and/or correct the dangerous condition existing on the property to prevent and/or minimize the aforesaid dangerous condition. 13. All the acts and omissions of the defendant were committed by the defendant by and trough its agents, servants, workers and/or employees and other individuals acting on behalf of and for the benefit of the defendant. 14. As a result of the aforesaid accident, Plaintiff, Patricia Woll, sustained serious injuries to her left knee and surrounding areas and other injuries, including but not limited to a torn meniscus and severely bruised patella and all other injuries, both known and unknown, all of which have caused a loss and impairment of a body part and function and may further cause in the future, great pain, suffering and agony and a deprivation of her normal mode of living and a loss of earnings and/or loss of earning ability and capacity in the future and the enjoyment of life. 15. As a further result of the aforesaid accident and resulting injuries, the plaintiff has been unable in the past and is likely to be unable in the future to attend to her usual duties and activities and life's pleasures, all to her great financial loss and detriment. 16. As a further result of the aforesaid incident and resulting injuries, the plaintiff has been and may in the future be required to expend substantial sums of money for medical services and treatment of the injuries as aforesaid, all to her great financial loss and detriment. 17. As a result of the aforesaid injuries, the plaintiff has incurred medical and -5- other expenses to treat her injuries and may incur additional expenses in the future. WHEREFORE, Plaintiff, Patricia Woll, demands judgment in her favor and against the defendant in excess of thirty-five thousand dollars ($35,000.00). Respectfully submitted by: CO?GAN RZZA CO, LLC by: Christopher J. Marzzacco, Esquire PA Attorney ID# 78262 130 W. Church Street, Suite 100 Dillsburg, PA 17109 (717) 502-5000 Attomey for Plaintiff Solomon, Sherman Gabay by: David Sherman, Esquire PA Attorney I D# 36437 8 Penn Center 628 JFK Boulevard, Suite 2200 Philadelphia, PA 19103 (215) 665-1100 Attorney for Plaintiff -s- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Patricia Woll Plaintiff V. Kmart Corporation t/d/bla: Sears Kmart No. -CV- -CV CIVIL ACTION -- LAW VERIFICATION I, Patricia Woll, verify that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. ?DO Date: tncia Woll CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of the Notice to Defend and Claim Rights upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Bill Morman Claims Examiner III Sears Kmart Incident Center Sedgwick Claims Management Services, Inc. P.O. Box 14448 Lexington, KY 40512-4448 Date: _1_21 OLGA ARZZACCO, L Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 W. Church St., Ste. 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiff Exhibit it B" Joseph W. Gibley, Esquire jgibley@gibleylaw.com Frank W. Baer, Esquire f b aer (a-),giib levlaw . c om Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.Q. Box 1107 Media, PA 19063 (610)627-9500 is T'IE THIS DOCUtMNT CONTAINS A Lr ATIONS WHICH Rx^UIRE A RESPONSIVE PLEADING pt,,j S$ 3F.NT TO U E PENNSYLVANIA PULES OF CIV11 PP.OCEDUki- YOU MUST FILE A P,ESFONSIVE PLEMING T TERT-TO OCUMENT WITHIN 20144JA3 b ffliendant Kmart Corporation PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 DEFENDANT KMART CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, Kmart Corporation, by and through its attorneys Gibley and McWilliams, P.C. hereby responds to Plaintiff's Complaint and avers as follows: 1. Admitted upon information and belief. 2. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. Kmart Corporation is a business entity authorized to conduct business within the Commonwealth of Pennsylvania. It is also admitted at all times relevant hereto Kmart Corporation operated a retail store designated as store number 4275 which was located on Carlisle Pike in Mechanicsburg, Cumberland County, Pennsylvania. Any other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. Denied as stated. It is specifically denied that the defendant's proper name is Kmart Corporation t/d/b/a: Sears Kmart. To the contrary, the defendant's proper name is Kmart Corporation. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 4. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. Denied. All allegations of negligence and carelessness on the part of the defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 6. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. -2- COUNTI 7. Defendant Kmart Corporation incorporates by reference the responses contained in paragraphs one (1) through six (6) of this Answer as though fully set forth herein at length. 8. Denied. All allegations of negligence on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all other allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 9. Denied. All allegations of negligence and carelessness on the part of defendant Kmart Corporation are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, Kmart Corporation denies the allegations contained in subparagraphs (a) through (i), (k) and (1) and strict proof is demanded thereof at time of trial. The allegations in subparagraphs 0) have been dismissed by stipulation and no responsive pleading thereto is required. 10. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 11. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded -3- thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 12. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 13. Denied. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. By way of further response, all allegations that a dangerous condition existed on premises controlled by the defendant at any time relevant to the plaintiff's claimed cause of action is specifically denied and strict proof is demanded thereof at time of trial. 14. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 15. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 16. Denied. All of the allegations contained in this paragraph are specifically denied and strict proof is demanded thereof at time of trial. 17. Denied. All of the allegations contained in this paragraph are specifically denied -4- and strict proof is demanded thereof at time of trial. WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. NEW MATTER Answering Defendant raises the following allegations singly, jointly or in the alternative as permitted by the Pennsylvania Rules of Civil Procedure. 18. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. 19. Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. 20. Plaintiff's claims are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or the doctrine of Contributory Negligence. 21. The incident in question was caused solely by the negligence of the plaintiff and this constitutes a complete defense to the within cause of action. 22. The incident in question was caused solely by an instrumentality or entity over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. 23. The incident in question was caused solely by a person or persons over which the Answering Defendant had no control nor right to control and this constitutes a complete defense to the within cause of action. -5- 24. The alleged negligence of the Answering Defendant, the existence of which is denied, was not the proximate cause of the alleged accident nor of the plaintiff's alleged injuries and/or other losses and/or was not the substantial factor of the cause of the injuries to the plaintiff or the accident out of which this case arises and therefore this constitutes a complete defense to the within cause of action. 25. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the Answering Defendant were unaware of the condition before the accident occurred and this constitutes a complete defense to the claimed cause of action. 26. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff failed to notice and avoid an open and obvious condition and this constitutes a complete defense to the claimed cause of action. 27. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and encountered it intentionally rather than choose an alternate route and this constitutes a complete defense to the claimed cause of action. 28. If the condition which the plaintiff claims caused the accident for which she seeks the imposition of damages existed as alleged, which is denied, then the plaintiff was aware of the condition and failed to avoid a known condition and this constitutes a complete defense to the claimed cause of action. -6- WHEREFORE, Answering Defendant Kmart Corporation demands judgment in its favor and against the plaintiff and together with attorney's fees and the costs of defending this litigation. Respectfully submitted, GIBLEY MCWILLIAMS, P.C. 111*1 ./- &&41 By: Joseph W. Gibley, Esquire Frank W. Baer, Esquire Attorney for Defendant Kmart Corporation -7- VERIFICATION I, Frank W. Baer, Esquire, state that I am the attorney for defendant, Kmart Corporation in this matter and I am authorized to make this verification on their behalf and state that the facts contained in the foregoing Answer to Plaintiff's Complaint with New Matter are true and correct within the best of my knowledge, information and belief; and further that this statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. K .10e xe-'to &-t-I Frank W. Baer, Esquire Date: (O /Oz d (Woll, JWG) -8- Exhibit it C" r, n J U i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL Plaintiff No. 08-CV-3384-CV V. . KMART CORPORATION CIVIL ACTION -- LAW Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER 18. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiff's claims are barred by the applicable statute of limitations are specifically denied and strict proof is demanded thereof at the time of trial. 19. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiff's claims fail to state a cause of action upon which relief may be granted are r specifically denied and strict proof is demanded thereof at the time of trial. 20. The allegations contained in this paragraph are conclusions of law to which no responsive pleading is required. If a responsive pleading is deemed required, all of the allegations contained in this paragraph are specifically denied and strict proof is demanded at the time of trial. By way of further response, any and all allegations that Plaintiffs claims are barred or appropriately reduced by the Pennsylvania Comparative Negligence Act, the doctrine of Assumption of the Risk and/or doctrine of Contributory Negligence are specifically denied and strict proof is demanded thereof at the time of trial. 21. Denied. It is specifically denied that the incident in question was caused by any negligence of the Plaintiff in this matter. By way of further answer, it is believed and averred that the Defendant's acts and/or omissions constitute negligence in this matter. 22. Denied. It is specifically denied that the Defendant did not have control or the right to control the instrumentality or entity that caused the slip and fal in this matter. 23. Denied. It is specifically denied that the Defendant did not have control or the right to control the instrumentality or entity that caused the slip and fall in this matter. 24. Denied. It is denied that the negligence of the Defendant was not the proximate cause of the accident in this matter and Plaintiff's injuries arising therefrom. 25. Denied. It is denied that the Answering Defendant was unaware of the condition that caused the accident in this matter. By way of further answer, Defendant knew, or should have known, of the dangerous condition prior to the accident. 26. Denied. It is specifically denied that Plaintiff failed to notice and avoid an open and obvious condition in this matter. By way of further answer, the Defendant is responsible for creating and/or not preventing the dangerous condition from existing on its property. 27. Denied. It is specifically denied that Plaintiff was aware of the condition that caused her fall and encountered it intentionally, rather than choosing an alternative route of travel. By way of further answer, it is believed and averred that the dangerous condition created by the Defendant prevented Plaintiff's choice of way in this matter. 28. Denied. It is specifically denied that Plaintiff was aware of the condition and failed to avoid a known dangerous condition. By way of further answer, it is believed and averred that Defendant created the dangerous condition that caused Plaintiff's trip and fall. WHEREFORE, Plaintiff, Patricia Woll, demands judgment in her favor and against the defendant in excess of thirty-five thousand dollars ($35,000.00). Respectfully submitted by: COLGAN MARZZACCO, LLC By: C istoph r J. Marzzacco, Esquire PA Attorney I D# 78262 130 W. Church Street Suite 100 Dillsburg, PA 17109 (717) 502-5000 Attorney for Plaintiff VERIFICATION The undersigned, PATRICIA WOLL, verifies that the statements made in this document are true and correct to the best of my knowledge, information, and belief. understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Respectfully submitted, Dated: szu! r-,Qa- Ulu- PATMCIA WOLL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL V. Plaintiff No. 08-CV-3384-CV KMART CORPORATION CIVIL ACTION -- LAW Defendant CERTIFICATE OF SERVICE I, Christopher J. Marzzacco, Esquire, hereby certify that I am this day serving a copy of Plaintiffs Answer to Defendant's New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States mail, first- class, postage prepaid, as follows: Frank Baer, Esquire Gibley & McWilliams 524 North Providence Road Media, PA 19063 Date: Respectfully submitted, COLGAN MARZZACCO, LLC Christopher J. Marzzacco, Esquire Attorney ID No.: 78262 130 West Church Street Suite 100 Dillsburg, PA 17019 (717) 502-5000 Attomey for Plaintiffs Exhibit "D" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, PLAINTIFF V KMART CORPORATION, DEFENDANT NO. 08-CV-3384-CV CIVIL ACTION - LAW DEPOSITION OF: PATRICIA WOLL TAKEN BY: DEFENDANTS BEFORE: DONNA E. GLADWIN, REPORTER NOTARY PUBLIC DATE: FEBRUARY 9, 2009, 3:28 P.M. PLACE: COLGAN MARZZACCO, LLC 130 WEST CHURCH STREET DILLSBURG, PENNSYLVANIA APPEARANCES: COLGAN MARZZACCO, LLC BY: CHRISTOPHER J. MARZZACCO, ESQUIRE - AND - SOLOMON, S BY: DAVID FOR - GIBLEY AND BY: FRANK FOR - HERMAN & GABAY SHERMAN, ESQUIRE PLAINTIFF McWILLIAMS, PC W. BAER, ESQUIRE DEFENDANT Hughes Albright voltz N atale 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page TM PATRICIA WOLL FEBRUARY 9, 2009 Page 2 Page 4 SS 1 finish your answer before I start my next question, okay? I WITNE 2 NAME EXAMINATION 2 A Yes. 3 Q If at any time I ask you a question that you simply 3 PATRICIA WOLL it's fine to say you don't know. 4 don't know the answer to 4 BY MR. BAER 3 , 5 I don't want you to guess and neither does your able 5 6 counsel, okay. 6 7 If at any time you need to speak with counsel, I'm 7 8 happy to get up and leave the room. I don't anticipate 8 9 that will happen. If you need to use the facilities, just 9 EXHIBITS 10 interrupt us. For whatever reason, you need to make a 10 11 WOLL DEPOSITION EXHIBIT NO. PRODUCED AND MARKED II Gall, all right? 12 1. PHOTOGRAPHS 36 12 A Okay. Thanks. 13 Q I don't expect that this will take more than an 13 14 hour and a half, maybe less. 14 15 A Thank you. 15 16 Q Do you understand those instructions? 16 17 A Yes, I do. 17 18 Q Let me ask you, are you taking any kind of narcotic 18 19 medication, or are you under the influence of any kind of 19 20 substance that would affect your ability to understand any 20 21 of the questions I ask you today? 21 22 22 A No, I am not. 23 Q Have you -- in the last ten years have you ever 23 24 been convicted of a crime involving dishonesty? 24 25 25 A No, I have not. Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel for 3 the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 PATRICIA WOLL, called as a witness, being duly 9 sworn, testified as follows: 10 11 DIRECT EXAMINATION 12 BY MR_ BAER: 13 Q Good afternoon, Mrs. Woll. 14 A Hi. 15 Q Am I pronouncing your name correctly? 16 A It's Ms., but it is Woll. 17 Q My name is Frank Baer, and you were here when Mr. 18 Vash gave testimony. So you probably heard some of the 19 instructions that your counsel gave to him. I'm going to 20 repeat those. 21 It's important for you to verbalize your answers 22 instead of a gesture so the court reporter can take down 23 everything that's being said. 24 Similarly, it makes a better transcript if we don't 25 talk over one another. So I'll try to wait for you to Page 51 1 Q Okay. You answered interrogatories in this case, 2 and they provide basic information. I just want to go over 3 some of the things quickly. 4 Do you still reside at 341 North 19th Street? 5 A No. 6 Q Where do you live? 7 A 433 Sample, S-A-M-P-L-E, Bridge, B-R-1-D-G-E, Road. 8 And that's in Enola. And my zip is 17025. 9 Q When did you move to that address? 10 A Actually I moved this year. I'm sorry. It's 11 2008. 2008 of August, August, 2008. 12 Q Okay. And prior to moving to your current address 13 did you reside at 341 North 19th Street, or was there 14 another residence in between? 15 A Can I just say something? I was at -- I was at 16 433 when the incident occurred. I lived for a year at 341 17 North 19th Street in Camp Hill. I have since moved back to 18 the residence at which I lived when the accident occurred. 19 Q Okay. With whom do you reside? 20 A His name is Robert Bobincheck, B-O-B-I-N-C-H-E-C-K. 21 Q Is that your significant other? 22 A Yes, he is. 23 Q How long has he been your significant other? 24 A 15 years. 25 Q Where are you working currently? Paget - Page HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FEBRUARY 9, 2009 Multi-Page TM Page 6 1 A I'm currently employed by Siemens, S-I-E-M-E-N-S. 2 And I am in what they call the managed services. And I am 3 currently with Pinnacle Health still in Harrisburg. 4 Q What do you do for them? 5 A I am what they call a systems analyst. 6 Q You were working for Siemens at the time of this 7 incident as well? 8 A Yes. 9 Q And what -- what -- what was your job at that time? 10 A I was a technical training specialist. 11 Q How does -- why did you switch positions? 12 A I switched positions because of what I needed to be 13 able to physically do. I needed to physically be able to 14 stand on my feet five days a week up to eight hours a day, 15 and I also traveled 75 percent for my job. And that was 16 the biggest reason why I had to switch. 17 Q Okay. That was the -- the physical demands of 18 your prior job? 19 A Correct. 20 Q What you just described? 21 A The technical training specialist position. 22 Q Okay. And the position you have now, how is that 23 different in terms of the physical demands of the position? 24 A I do no traveling, and I'm at my desk 80 percent of 25 the time. Page 7 1 Q When did you make this switch? 2 A I made that switch August of 2007. 3 Q All right. And I understand that you returned to 4 work in your previous position in January of 2007? 5 A That's correct. 6 Q From January of 2007 until August of 2007 what was 7 your experience at work with respect to your former 8 position? By that I mean was it difficult to do the job? 9 A Yes. 10 Q Okay. And was there a reduction in your pay from 11 the one job to the other? 12 A Yes. 13 Q Can you tell me what you've lost in that regard? 14 A A dollar figure? 15 Q Yeah. 16 A Well, I've lost the potential to -- I had to move 17 -- I was in what we call a Level 4, and I had to reverse 18 back to a Level 3. So as far as base pay, your opportunity 19 for increases, that all moved back. 20 And I can't give you a dollar amount or a 21 percentage, but there is -- if you want -- Siemens has that 22 information, as does, I believe, Chris. 23 Q All right. Who is your current supervisor? 24 A My current supervisor is Carol, C-A-R-O-L, Connor, 25 C-O-N-N-O-R. Page 8 1 Q Who was your supervisor at Siemens at the time of 2 the incident? 3 A Robert, R-O-B-E-R-T, Bigley, B-I-G-L-E-Y. 4 Q Is he still with Siemens? 5 A Yes. 6 Q What parts of your body are you claiming were 7 injured as a result of this Kmart incident? 8 A I claim that my left knee was injured. 9 Q Are there any other parts of your body injured in 1o the incident? 11 A Not to my knowledge. 12 MR. SHERMAN: Off the record. 13 (Discussion held off the record.) 14 THE WITNESS: Oh, okay. At the time of the 15 accident it was my entire right side from -- when I say 16 entire I will speak of my hand, my arm, the left side, my 17 hip, my -- did I say left? I meant right. Right hand, 18 right arm, right side, right hip, right thigh, right knee, 19 right calf, right ankle. 20 BY MR. BAER: 21 Q That was at the time of the accident? 22 A That's what -- 23 Q Okay. 24 A -- exhibited itself. 25 Q All right. Page 9 I A At the time of the accident. 2 Q I understand. Did you treat with any medical 3 providers other than the emergency room for any of the 4 right-sided problems that you just described? 5 A No. 6 Q Who was your family doctor back at the time of the 7 accident? 8 A I went to Belvedere Medical Center in Carlisle, so 9 I didn't have a specific general practitioner. It was 10 whoever would be available. 1 I Q All right. And are they still your group for 12 family medicine? 13 A Yes. 14 MR. SHERMAN: Who was that? 15 THE WITNESS: Belvedere, B-E-L-V-E-D-E-R-E, Medical 16 Center. And they have my medical records. 17 BY MR. BAER: 18 Q All right. Prior to this Kmart incident did you 19 ever treat with any medical providers for any knee problems? 20 A No. 21 Q Prior to this Kmart incident did you ever suffer 22 any injuries as a result of a trip and fall? 23 A No. 24 Q How about a slip and fall? 25 A No. raguU - rages HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pagelm PATRICIA WOLL FEBRIIARV 9 2nn9 Page 10 1 Q Have you ever been involved in any -- 2 A Good one. 3 Q Have you ever been involved in any motor vehicle 4 accidents before? 5 A Yes, I was. Yes, I was. 6 Q When was that? 7 A 2003. I think Chris and I recalled 2003. They 8 had -- it's on file here. 9 Q Okay. 10 A Because they represented me. 11 Q Okay. This office represented you in that 12 accident? 13 A That is correct, um-hum. 14 Q What parts of your -- did you claim injuries as a 15 result of that incident, that motor vehicle accident? 16 A I did not claim injuries, no. 17 Q Were you injured? 18 A Yes, I was. 19 Q Okay. What parts of your body were injured in the 20 automobile accident? 21 A My upper shoulders, the back of my neck. 22 Q Any other parts of your body? 23 A No. 24 Q With whom did you treat for that motor vehicle 25 accident? Page 11 1 A Belvedere Medical Center. 2 Q Anybody else? Did they refer you out to an 3 orthopedist? 4 A Not for that injury, no. 5 Q Have you seen orthopedists -- any other 6 orthopedists for any other reason other than the doctor you 7 saw for this case? 8 A No. 9 Q How about neurologists? Have you ever treated with 10 a neurologist? 11 A No. 12 Q Have you ever treated with a rheumatologist? 13 A No. 14 Q Since the Kmart accident have you had any traumatic 15 events that caused injuries? 16 A I guess I can't ask you a question to -- can you 17 define that even more? 18 MR. SHERMAN: No. Just off the record. 19 (Discussion held off the record.) 20 THE WITNESS: Yes. 21 BY MR. BAER: 22 Q Okay. 23 A Yes. 24 Q What were the injuries, and what gave rise to those 25 injuries? Page 12 1 A Okay. May of 2008 I was gardening, and as a 2 result of moving and bending and shifting I injured, 3 reinjured, the left knee and had to go back to Belvedere 4 Medical Center for follow-up treatment. 5 Q Okay. Were there any other -- well, strike that. 6 Were there any motor vehicle accidents, any trip and falls, 7 any slip and falls since the Kmart incident? 8 A No, there has not. 9 Q Back in June of 2006, prior to this episode, this 10 incident, how would you describe your general state of 11 health? 12 A Excellent. 13 Q Do you have any medical conditions like high blood 14 pressure, diabetes, anything like that? 15 A No, I don't. 16 Q Um-hum. Would you treat regularly with Belvedere 17 for any specific condition, or would you just go there for, 18 you know, flus and things like that? 19 A Only for specific conditions. 20 Q How long has Belvedere been your family doctor? 21 A Since 1974. 22 Q Do you have any children? 23 A No, I do not. 24 Q Have you ever been married? 25 A Yes, I have. Page 13 1 Q When were you married? 2 A I was married from 1982 to 1988. 3 Q To whom? 4 A His name was Jeffrey, J-E-F-F-R-E-Y. Last name is 5 Schackor. That's S-C-H-A-C-K-O-R. 6 Q Your -- and forgive me. I've forgot his name, 7 your significant other, what does he do for a living? 8 A Bob. Bob works for the Pennsylvania Housing 9 Finance Agency. 10 Q In the case that -- for the motor vehicle accident 1 l in 2003, did you file suit in that case? 12 A No, I did not. 13 Q Well, were you a plaintiff in that case? 14 A Yes. 15 Q Okay. Did that case go to -- go to trial? 16 A Yes. 17 Q And what county was it in? 18 A Cumberland. 19 Q Was it a jury trial? 20 A No. 21 Q Was it an arbitration? Do you know? 22 A I don't know what that means. 23 Q Three lawyers or one lawyer sits and makes a 24 decision? 25 A Oh, it was one. Susan Day was the judge. Page 10 -Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FFRRTTARY 9. 2009 Multi-Page TM Page 14 1 Q Okay. 2 MR. SHERMAN: Off the record. 3 MR. MARZZACCO: The case was actually handled by 4 Dave Hershey of our office, and it was a settlement with the 5 insurance company. I believe he filed a writ, maybe a 6 complaint. There was no litigation. 7 MR. BAER: But she was a plaintiff? 8 MR. MARZZACCO: She was a plaintiff. It was a 9 minor soft tissue that you heard. 10 BY MR. BAER: 11 Q When I say did you file suit, you as a plaintiff, I 12 don't mean you walking over to the courthouse, but we're 13 beyond that. 14 A No, I didn't go to Cumberland County Courthouse. 15 Q Okay. Tell me a little bit about your educational 16 background. I see that you attended Slippery Rock 17 University. For how long? 18 A Six weeks. 19 Q Where did you go to high school? 20 A Carlisle. 21 Q And what education did you have beyond Slippery 22 Rock? 23 A I took some accounting courses and some management 24 courses and some programming -- computer programming 125 courses. Page 15 1 Q Let's move ahead to the date of the accident. Had 2 you ever been to this Mechanicsburg, I'll call it, Kmart? 3 A Yes. 4 Q Prior to June 22nd? 5 A Yes. 6 Q And how often had you shopped there before, if you 7 can estimate? 8 A Six times a year. 9 Q Okay. Where you were living at the time, was that 10 in close proximity to the store? I1 A Yes. 12 Q Would that have been the closest Kmart to you? 13 A Yes. 14 Q And on this particular day what was your purpose in 15 going to the store? 16 A I was shopping for housecleaning and specifically a 17 laundry basket. 18 Q Do you remember what day of the week it was? 19 A I have no idea. 20 Q Do you remember if it was a weekend day versus a 21 week day? 22 A It was a weekday. It was not a weekend. 23 Q And with -- with whom were you shopping? 24 A Her name is -- isn't that awful. Her name escapes 25 me. Page 16 1 Q Maybe I could help you here. I see her name in 2 the -- 3 A I feel awful. 4 MR. SHERMAN: That's okay if you don't remember. 5 BY MR. BAER: 6 Q Kimberly? 7 A Orner, O-R-N-E-R. 8 Q Is she -- how would you describe your relationship 9 with her? 10 A She was my cleaning lady. 11 Q Are you friends with her? 12 A We were friends at the time. We were friendly. 13 Q Is she still your cleaning lady? 14 A No. 15 Q When did you stop using her as your cleaning lady? 16 A Two years ago, three, one and a half. 17 Q And which residence would she clean for you? 18 A 433 Sample Bridge Road. 19 Q Did she ever clean 341 North 19th Street? 20 A No, but she cleaned the one on Yates. 21 Q Okay, And that's where you were residing at the 22 time of the incident? 23 A Whatever the other address was, Mount Holly 24 Springs. That's correct. 25 Q Okay. Is that the one you were living in at the Page 17 1 time of the incident? 2 A No. 433 Sample Bridge is the one that I was living 3 in. 4 Q All right. Why did you stop using her as a 5 cleaning woman? 6 A From a financial perspective. 7 Q Have you stayed in touch with her? 8 A Not really. 9 Q When's the last time you spoke to her? 10 A Over a year. 1 I Q Why was she going with you to the Kmart that -- 12 that day? 13 A She was acting in capacity as my cleaning lady that 14 day. 15 Q What do you mean by that? She was going to help 16 you pick out products at the Kmart? 17 A Yes. 18 Q And what time of day did the incident occur? 19 A 9 -- approximately 8:45 to 9:00. 20 Q Tell me about the day before that. The time -- 21 strike that. Tell me about what happened before you got to 22 the Kmart. Did you pick her up? Was she living with you? 23 How did the two of you get to the Kmart? 24 A Kim came to my house. We had coffee, made lists 25 of what we were planning on buying, and left in my car. I Page 14 - Page 17 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220!717-393-5101 Multi-Page rM PATRICIA WOLL FEBRUARY 9, 2009 Page 18 1 drove to the Kmart. 2 Q Was this something that you had planned before this 3 particular day to do? 4 A Yes. 5 Q What was it that you were looking for? Maybe you 6 answered this earlier, laundry basket, and what other goods? 7 A There was a Martha Stewart laundry basket, and Top 8 Job, you know, any bathroom cleaning, Lysol, that type of 9 cleaning product. 10 Q All right. And how often would Kim clean your 11 home back then? 12 A Once a month. 13 Q Why -- why was it necessary for either you to 14 attend with her or her to attend with you to go to the 15 Kmart? 16 A Because I was buying the items. 17 Q Okay. Did you always buy the supplies? 18 A Yes. 19 Q How long had she been your cleaning woman up to 20 that point in time? 21 A Five years. 22 Q Are you still on good terms with her? 23 A Yes. 24 Q Was this a workday, June 22nd? 25 A Yes. Page 19 1 Q What time were you due in work that day? 2 A I worked from my home, so my hours were such that 1 3 just needed to get my work done for that day. 4 Q Okay. 5 A So I could have started at 6:30. I could have 6 started at noontime. 7 Q All right. Back then approximately how much -- 8 what percentage of your time for your job would you spend at 9 home? 10 A It was 20 percent during the week I would be 11 working at home, and the other 80 I was usually traveling. 12 Q What was the scope of your travel? How far would 13 you travel? 14 A I could travel as far away as Hawaii or as close as 15 New York City. 16 Q Back then could you tell me what it was that you 17 did? Were you a trainer for Siemens? 18 A Yes, I was. 19 Q Tell me briefly what -- what your job entailed when 20 you traveled, when you traveled. 21 A All right. I would have a class of approximately 22 30 to 50 people. These people would be sitting at tables 23 with computer terminals in front of them with the training 24 materials that I had developed, and I would be training them 25 on different aspects of doing data entry for financial Page 20 1 purposes. 2 It was my responsibility to be able to move around 3 the room, to be able to help them trouble shoot, to be able 4 to help them review a specific line, even to a specific 5 piece of information that needed to be entered into the 6 system. 7 So it was incumbent upon me to be able to have 8 close proximity to my patient -- to my patients. It's a 9 hospital. To my students. 10 Q Okay. When you weren't on the road -- 11 A Um-hum. 12 Q -- was -- is it fair to say that you spent the 13 majority of your time on work-related matters at your home? 14 A Yes. 15 Q Okay. And at home did you have a -- an office at 16 home or a work station? 17 A Yes, I had an office. 18 Q When you stated earlier that you had a difficult 19 time performing the physical demands of your job because of 20 this incident, did it affect you around the home? 21 A Yes. 22 Q How so? 23 A I would be exhausted at the end of the week. And 24 I wasn't able to perform any fun things on the weekend to 25 get ready to go out the next week. Page 21 1 Q What -- when you say you were exhausted, what is it 2 about your injury that -= or your surgery or the 3 rehabilitation after the surgery that would make you 4 exhausted by the end of the week? 5 A My knee would be swollen. I would have to sit 6 either with ice packs or heat packs, depending upon what 7 felt better. And I was taking Aleve. I was having 8 difficulty falling asleep at night because of the pain. And 9 I was exhausted because I couldn't fall asleep or rest 10 comfortably. 11 Q Was Bob living with you at the time? 12 A Yes. 13 Q Okay. Did -- and forgive me, but -- 14 A That's okay. 15 Q When you changed addresses, did you have a falling 16 out and then you reconnected? 17 A Correct. 18 Q Happy to hear that. 19 A Thank you, very much. I am too. 20 Q Okay. How long was the separation? 21 A A year and a half. A year and a half. 22 Q Getting back to the date of the incident. Do you 23 remember what the -- what the weather was like that day? 24 A It was dry outside. 25 Q Weather played no role in the happening of the Page 18 -Page 21 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FFRUTTARV 0 7nn4 multi-pap TM Page 22 1 accident? 2 A Absolutely none. 3 Q What were you wearing? 4 A I had on sneakers. I had on tan shorts, and I had 5 on a white blouse. And what else do you need to know? 6 Q How about footwear? 7 A Do you want to see them? 8 Q Sure. 9 A I'll describe them. They're size seven. They're 10 Eddie Bauer. They're flat, rubber soled with a T-strap I 1 attached with velcro. Do you want to see them? 12 Q Sounds like right out of the catalog. No, I see 13 them right here. Thanks for bringing them in. Do you 14 still wear them? 15 A I haven't worn them since I fell. 16 Q Why not? 17 A Because I wanted to preserve their condition 18 actually. 19 Q Okay. Have you -- strike that. You said that 20 you picked up Kim or she picked you up? 21 A She arrived at my house. We departed in my car. 22 Q What time did she pick you up? 23 A We left -- I drove, around 8:30. 24 Q And where did you go from your home? 25 A We went from 43 Sample Bridge directly to Kmart. Page 23 1 Q And you had been to this Kmart store on other 2 occasions, correct? 3 A Yes. 4 Q And I take it the two of you walked into the store 5 that day? 6 A Yes. 7 Q Okay. And had you been in the store on other 8 occasions when there had been merchandise on pallets in the 9 aisles? 10 A I don't recall. 11 Q Okay. When you entered the store that day did you 12 first grab a cart or some kind of shopping basket? 13 A No, I did not. 14 Q When you entered the store that day did you know 15 where you needed to go to find the merchandise you were 16 looking for? 17 A I needed -- I know I needed to go to housewares. 18 Q All right. Okay. And you walked back towards 19 housewares, and had you done any shopping? Had you picks 20 anything up before this incident occurred? 21 A No, I didn't. 22 Q All right. Tell me what happened. 23 A All right. And Kim was not with me, next to me, 24 at the time. So I'm walking singly. 25 Q Did Kim witness the incident? Page 24 1 A No. 2 Q Okay. Go ahead. I'm sorry for interrupting you. 3 A Well, may I retract and say that to the best of my 4 knowledge she did not. I just know she said she heard it. 5 Q Okay. 6 A All right. I was in an aisle walking towards the 7 front of the store. And what I recall is that previously 8 when I had purchased a similar Martha Stewart basket, the 9 location of that item had moved. So I needed to find where 10 it now was. 11 In trying to do so I'm looking to try to find it. 12 And in the way of where I thought the item would be I walked 13 behind a pallet high with boxes. The pallet with the box 14 was to my right. At the end of the pallet I turned right 15 because I was going to immediately turn left in the next 16 aisle. 17 So if I was -- so if I would say the pallet was in 18 the middle, I was to the left of the pallet moving behind 19 towards the front turning to the right to then go to the 20 next aisle forward toward the store, which would have been 21 what we'll call cati-corner, however you want to spell that, 22 cati-corner. 23 Q Okay. 24 A So -- but I could not see over the boxes. I just 25 knew that was the -- because I'm looking at ironing boards Page 25 1 and things like that. And I'm assuming that's now where 2 the Martha Stewart basket -- laundry basket is. 3 Q And in a few moments I'll show you some photographs 4 and ask you. 5 A Sure. 6 Q You said that you had purchased the Martha Stewart 7 basket there before? 8 A Yes, I did. 9 Q When did you purchased one there before? 10 A Within the month, within the month. 11 Q Okay. And why did you go back to get another one? 12 A It's a great basket. I have it in my car if you 13 want to see it. 14 Q Do you keep it in your car? 15 A No. 16 Q Why is it in your car now? 17 A In case you wanted to see what I was looking for. 18 Q Okay. Did you go back and buy another one for 19 another room in the house, or -- 20 A Yes, I was going to purchase another one. 21 Q Okay. And did you remember where the Martha 22 Stewart box was from your first time you had been there 23 purchasing it? 24 A That is correct. 25 Q That's where you were headed? rage Ll- - rage /-D HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM PATRICIA WOLL FEBRUARY 9, 2009 Page 26 1 A That's correct. 2 Q And is it your testimony that the place of the box 3 or -- strike that. Is it your testimony that they -- that 4 Kmart had moved the position of the Martha Stewart laundry 5 baskets? 6 A Yes. 7 Q And is that why you were walking back towards the 8 front of the store at that point? 9 A Um-hum. That's correct. 10 Q Okay. Okay. Now, I guess there is no other way 11 to do this other than just to ask you. Let's look at 12 photographs -- 13 A Okay. 14 Q -- that have been marked. I think. First of all, 15 I'm going to ask you to take a look at what has been marked 16 as Vash 1. 17 A And I understand now that meant that was that guy's 18 last name. I kept thinking, why are they calling it Vash 19 1? 20 Q Do you know who took that photograph? 21 A Yes, I do. 22 Q Who took it? 23 A I did. 24 Q Okay. When did you take it? 25 A Approximately 10 minutes, 15 minutes after the Page 27 1 incident occurred. 2 Q Okay. And on what did you -- what did you use to 3 take that? Was it a camera phone? 4 A My cell phone. 5 Q Your cell phone? 6 A Yes. 7 Q How did you get that developed? 8 A I took it to Rite Aid. I took the memory card 9 out, and I took it to Rite Aid. 10 Q And when you took that photograph who else was 11 there with you when you took that photograph? 12 A Mr. Pope saw me take it. 13 Q Mr. Pope, the witness? 14 A Yes, he did. Yes, he did. 15 Q Mr. Pope was a total stranger to you at that point 16 in time? 17 A No idea who he was. 18 Q Have you talked to him since? 19 A Absolutely not. 20 Q Okay. Was there anyone else with you when you 21 took that photograph? 22 A No. 23 Q Was Kim Omer there when you took it? 24 A Omer, no. 25 Q Was she -- had she returned to the scene after -- Page 28 1 strike that. 2 When you took this photograph did Kim even know 3 about the incident? 4 A Oh, yes. 5 Q Where was she, if you know? 6 A Retrieving the wheelchair. 7 Q Okay. So you did leave the store in a wheelchair? 8 A Yes, I did. 9 Q All right. At that point in time when you took 10 the photograph had any employees from Kmart been to the 11 scene? 12 A Yes, Mr. Vash. 13 Q Mr. Vash, the gentleman who was here earlier? 14 A That's correct. 15 Q Okay. And when you took -- before you took that 16 photograph did anybody or anyone move the box on the pallet 17 that's depicted on Vash 1? 18 A I- 19 MR. SHERMAN: If you know. 20 THE WITNESS: I have no idea. 21 BY MR. BAER: 22 Q Were you there the whole time? 23 A Physically I was there the whole time. 24 Q Would you have remembered if someone had moved the 25 box or changed the pallet around while you were standing Page 29 1 there? 2 A No. 3 Q You would not have remembered? 4 A I was lying on my back. 5 Q Do you believe that anyone changed the position of 6 the pallet? 7 A No, I do not believe anyone changed it. 8 Q And you have no facts to support any other version 9 -- strike that. Let me come over and take a look. 10 A Okay. Because I want to make sure what it is that 11 you're asking me was moved. 12 Q Okay. We're looking at Vash 1 here, the 13 photograph that you took -- 14 A Correct. 15 Q -- approximately ten minutes after the accident, 16 right? 17 A I'm going to say 15. 18 Q Okay. So -- 19 A I'd rather say 15. 20 Q Okay. Were you standing when you took this 21 photograph? 22 A No. 23 Q You were still down on the ground? 24 A Yep. 25 Q And what was your position when you were down? Page 26 -Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FEBRUARY 9, 2009 Multi-Page TM Page 30 1 A I was lying on my back. 2 Q Okay. And you thought that it was important at 3 that point in time to take a photograph of what it was that 4 you believe you tripped over? 5 A Correct. 6 Q Okay. And what does this photograph show in that 7 regard? What is it that you tripped over, if you know? 8 A I tripped over the wood of the pallet that was on 9 the floor. 10 Q Can you point to me what portion of the pallet you 11 tripped over? 12 A I believe -- I believe that it was this area here. 13 (Indicating.) It would have been in this general area. 14 Q Okay. You've -- you've drawn what looks like a 15 capital A? 16 A Actually let's say it's a -- 17 Q A triangle? 18 A -- triangle with the point being at the top of the 19 -- if we're looking from the top down, let's say. 20 Q Why don't you put a T where it is? 21 A Absolutely. (Drawing.) There's my T, and it was 22 somewhere in this radius. (Indicating.) 23 Q Okay. So you've drawn a circle now within the 24 triangle, and that represents the area that you believed you 25 tripped, correct? Page 31 1 A Yes, sir. 2 Q And what part of your body -- did a portion of your 3 body contact the area that you've drawn with the circle? 4 A Yes. 5 Q Which part of your body? 6 A It would have been my right foot. 7 Q Okay. 8 A The outside of my right foot. 9 Q Okay. So the -- did -- strike that. Did any 10 part of your -- can you describe -- strike that. 11 Can you describe what you remember about the 12 contact with your -- the outside of your right foot in that 13 area that you've described? By that I mean was it a -- was 14 it a trip? Did you feel like something caught, however you 15 want to describe it? 16 A The wood caught in the -- this is why it was 17 important to me to describe that it was a T-bone -- it was a 18 T-shaped piece of my shoe, but it caught here. So as I was 19 navigating it caught this part of my right shoe. 20 (Indicating.) I don't know how you want to describe that 21 for the young lady. 22 Q I'll ask you to preserve the shoes to the extent 23 that it might become relevant, but I'll try to describe it. 24 A Um-hum. 25 Q And you did a great job describing them, but I Page 32 1 think what you've indicated is that in the three ribbon, 2 canvas ribbons that extend on the outside, you believe that 3 one of these ribbons caught on the wood? 4 A The top ribbon that would have made -- that came in 5 to intersect with what I call the T -- 6 Q Okay. 7 A -- area of the strap on the shoe. 8 Q Okay. So it was the top ribbon that intersects it 9 perpendicular? 10 A Perfect word, intersect. 11 Q And that's what you believe happened, that's what 12 you believe caused the fall? 13 A That is what I believe to have caused the fall. 14 Q Okay. Do you believe that there was any portion 15 of the pallet that was protruding beyond what is depicted in 16 Vash 1 that caused you to fall? Do you understand what I'm 17 -- 18 A Ask it again. 19 Q Yes. Do you believe that Vash 1 accurately 20 depicts the way the pallet looked when you tripped? 21 A No, no, I do not. 22 Q How was it different? 23 A Because the angle of which I took it does not 24 exemplify how the -- the base piece of wood shows coming 25 from beneath. So in other words, the angle that I'm taking Page 33 1 is not the angle from which I fell. I'm on the other side. 2 Q Okay. You're talking -- you're walking through 3 this -- this way? 4 A Correct, and coming this way. (Indicating.) 5 Q Left to right intending to make a right to the 6 foreground? 7 A That is correct. 8 Q Okay. So do I understand then that what you're 9 saying is that the base piece of wood that's underneath the 10 pallet, that that was protruding? 11 A It may have contributed. It was -- again, I 12 didn't see it. 13 Q Okay. 14 A I'm merely showing you what I saw on the other 15 side. So -- and I know that I made contact with the wood. 16 So I can only assume because I -- it's not -- because this 17 is shorter. And certainly I wasn't high stepping. It was 18 in this area that my shoe came in contact with the piece of 19 wood. 20 Q Okay. But -- 21 A We keep going back to this protruding, and I -- 22 however you want to define that, but I certainly connected 23 with that piece of -- with a piece of wood in this area that 24 I circled. 25 Q Somewhere within that circle? rage -iu - rage j-i HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM PATRICIA WOLL FEBRUARY 9, 2009 Page 34 1 A That's correct. 2 Q Could have been the part of the pallet above that 3 base piece? 4 A Or it could have been here. (Indicating.) 5 Q But you're not sure which one it was? 6 A One of them hit me. 7 Q Okay. Now, I guess what I was asking is was there 8 a piece of the wood, the pallet, that was splintered out or 9 protruding out beyond what's depicted in this photograph 10 that caused you to fall? 11 A Not that's depicted in Vash 1. 12 Q Okay. Is there a photograph that -- 13 A I have not seen those. 14 Q Let me show you the other photographs. Let me 15 show you Vash 2. 16 A Okay. 17 Q And I think there are other photographs. Vash 2 is 18 an exhibit with two photographs on it. Does either of 19 these two photographs depict the area where you believe you 20 contacted and tripped and fell? 21 A Yes. 22 Q Now, I don't want to use the same color pen. Do 23 you have a red pen by chance? In Vash 2, the bottom 24 photograph, does that depict the area that you tripped over? 25 A Can you refine -- or define depict? Page 35 1 Q Does it show? 2 A Yes, it shows. 3 Q Can you draw a circle around the area on Vash 2, 4 the bottom photograph, that you contracted with your foot? 5 A Would -- draw a circle did you say? 6 Q Just a little circle, yeah. 7 A It's this area. (Drawing.) 8 Q Okay. Does this photograph show any protruding 9 wood that doesn't appear in Vash 1? 10 A Yes. 11 Q Can you indicate? Can you show me? 12 A Because this picture is this. This also shows 13 this side, and that was the side that I was walking by. So 14 this is only this. Do you see? I do not have this -- 15 this side on Vash 1. 16 Q Right.. Okay. I understand. 17 A Okay. 118 Q Now, which -- which direction were you coming from? 19 You were coming from this direction, correct? 20 A I was coming from behind Puffs. 21 Q Okay. 22 A In between Puffs and Charmin, and Puffs was on my 23 right. 24 MR. BAER: And you were intending to -- right. 25 When you were coming down this aisle -- I might have a Page 36 1 better picture. Can we mark this Woll 1? 2 (Photographs were produced and marked as Woll 3 Deposition Exhibit No. 1.) 4 BY MR. BAER: 5 Q Take a minute. Have you ever seen these 6 photographs before? 7 A Nope. 8 Q Okay. Well, take a minute to get oriented. I 9 want to represent that these were photographs that were 10 taken by Mr. Vash after the incident. 11 A Okay. 12 Q And these are just the originals. 13 A Yeah, okay. You're right. So Woll 1 is Vash 2, 14 except Woll 1 is the original. 15 Q What I want to get -- what I want to learn is your 16 route of travel. 17 A Um-hum. 18 Q Where you were coming from, what direction you were 19 coming from. And I think -- and correct me if I'm wrong, 20 Vash -- the top photograph on Vash 2 kind of shows the scene 21 as you're approaching it? 22 A I don't even know that one. I have to reorient 23 myself. 24 Q Okay. 25 A Because I was coming this way. So I can't -- Page 371 1 MR. BAER: This is what -- this is off the record. 2 (Discussion held off the record.) 3 BY MR. BAER: 4 Q We can agree that Vash 2 is a color copy of Woll 1. 5 So I'm going take Woll I away. 6 A But Woll I is easier for me to read. 7 Q Is it? 8 A Oh, most definitely. Now ask your question. 9 Q Let's -- let me get a Sharpe here and ask you on 10 Woll 1 -- 11 A Um-hum. 12 Q -- if you can show me on the top photograph the 13 direction from which you came when you came upon the scene? 14 A Do you want me to write on the original? 15 Q Yeah. 16 A Okay. Now -- and you want me to use the top one 17 or the bottom one? The bottom one better depicts. 18 Q Okay. 19 A I'm walking from this aisle right here. I'm 20 behind this box. (Indicating.) 21 Q Okay. Can you put an arrow? 22 A I'd be happy to. 23 Q Okay. 24 A So I navigated -- (drawing.) Approximately in this 25 -- I navigated in that direction. Page 34 - Page 37 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FEBRUARY 9, 2009 Multi-Page TM Page 38 1 Q Okay. And then it's on this corner here -- can 2 you circle the corner where you -- your right foot contacted 3 the pallet? 4 A I'll circle the general comer. 5 Q Yes, I understand. 6 A (Drawing.) 7 Q Now, it was your intention once you got around that 8 to make a right and to make an immediate left, right? 9 A Correct. 10 Q So in the top photograph of Woll 1 would I 11 understand that you came from this direction here? 12 A Um-hum. 13 Q Intending to go around here? 14 A That is correct. That is correct. 15 Q Okay. Where is it that you were looking when you 16 fell? 17 A Where was I looking? 18 Q Yeah. 19 MR. SHERMAN: You said, by the way, when you first 20 started asking questions, Woll 1, top photo. 21 MR. BAER: Yes. MR. SHERMAN: Just fix that. 23 BY MR. BAER: 24 Q Yeah. For the record, the witness has marked with 25 an arrow on the bottom original photograph her direction of Page 39 1 travel before the incident. She also circled the area, the 2 general area, that she believes her right foot contacted the 3 pallet. 4 My purpose in showing you these photographs in Woll 5 1 is to try to get an idea of your direction, where you were 6 intending to go. And this last question I posed to you is 7 can you tell me where you were looking when your right foot 8 contacted the pallet? 9 A I most certainly can tell you where I was looking. 10 If you recall, I mentioned that they moved where the Martha 11 Stewart baskets had been. They had originally been in this 12 aisle. (Indicating.) So when I came around this corner 13 and now noticed it was pets, I'm thinking, where did they 14 move the Martha Stewart basket? 15 Q Okay. 16 A So I'm -- I'm moving here. 17 MR. SHERMAN: He's just asking you a simple 18 question, Pat. 19 THE WITNESS: Okay. Ask it again, and I'll answer 20 it appropriately. 21 MR. SHERMAN: He's just asking you a simple 22 question. Where were you looking? 23 THE WITNESS: I was looking in this next aisle up 24 on the shelves. 25 BY MR. BAER: Page 40 1 Q Can you put a -- an arrow pointing to the area 2 where you remember looking when your right foot -- 3 A That would have been this area? (Indicating.) 4 Q You've marked that with an X on the top photograph 5 of Woll 1? 6 A I'm song. Because it's not depicted on the 7 bottom. 8 Q And that's fine. That's why I asked you using the 9 top photograph. Now, earlier you said that when you came 10 around -- let me ask you this. When you walked around the I 1 pallet of boxes -- 12 A Correct. 13 Q -- what was it that obstructed your view of the 14 bottom corner of the display? 15 A My own eyesight. My eyes -- 16 MR. SHERMAN: He means what about the boxes or the 17 pallet? What about the -- not your eyesight, what about the 18 specific boxes or pallet stopped you from seeing that 19 protruding or sticking out piece of wood? 20 THE WITNESS: I wasn't looking on the floor. 21 BY MR. BAER: 22 Q Okay. Well, earlier I think you said that when 23 you were coming around it before you tripped the boxes were 24 high. I think you said that. That was the word you used, 25 the boxes were high, correct? Page 41 1 A Yes. 2 Q Okay. Now, when you came around and you 3 approached the area where the boxes were on the pallet 4 before you fell, you saw the boxes there, correct? 5 A I can't say that I did. 6 Q When you walked around the boxes, when you 7 navigated around the boxes, did you -- 8 MR. SHERMAN: I think she's confused. Do you mind 9 if we talk for a minute? 10 MR. BAER: Yeah. 11 MR. SHERMAN: Could I talk to you outside for a 12 minute, please? 13 (Discussion held off the record.) 14 THE WITNESS: I just need you to restate, because I 15 got myself all blown out of proportion. 16 MR. BAER: I think my last question was, you know 17 -- well, can you state my last question back for me? 18 (Question read.) 19 BY MR. BAER: 20 Q We were talking about the direction from which you 21 approached the area where the incident occurred, and you 22 were kind enough, in Woll No. 1, to draw arrows on the 23 bottom photograph. 24 When you were approaching that area before you 25 tripped and fell did you see the pallet with the boxes of Page 38 - Page 41 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pager" PATRICIA WOLL FEBRUARY 9, 2009 Page 42 1 Puffs and the other merchandise that was on the pallet? 2 A Yes, I saw the boxes. 3 Q Okay. In fact, that's why you walked around it, 4 correct? 5 A That is correct. 6 Q Now, the -- you didn't have any difficulty seeing 7 the boxes as you approached? 8 A No. 9 Q All right. And you knew that in order to go to 10 the area where you remember the Martha Stewart laundry 11 baskets to be that you would have to go around the pallet 12 with the boxes on it, correct? 13 A Yes. 14 Q All right. So you knew that you would have to 15 walk around this pallet that is in the photograph, Woll 1, 16 top and bottom, correct? 17 A Yes. 18 Q Okay. Now, as you went around the pallet and 19 before you tripped and fell was there anything obstructing 20 your view of the corner bottom of the pallet as you 21 approached the area where you tripped and fell? 22 A Yes. 23 Q What was obstructing your view? 24 A The boxes. 25 Q Okay. What did you -- what did you believe was on Page 43 1 the other side of the boxes as you were approaching that 2 area? 3 A The aisle. 4 Q Okay. And what caused you to trip and fall? 5 A My foot made contact with the wood that's in the 6 pallet. 7 MR. SHERMAN: Off the record. 8 (Discussion held off the record.) 9 MR. SHERMAN: She did answer. You did answer. 10 You said the -- what did you say, the -- I 1 THE WITNESS: My foot made contact with the pallet. 12 BY MR. BAER: 13 Q Okay. And you've circled the general area in the 14 bottom picture of Woll No. 1, and the area on Vash No. 1 15 that you believe your right foot contacted the pallet, 16 correct? 17 A Correct. 18 Q Is there anything in the bottom photograph of Woll 19 1 that shows protruding wood that would have caused you to 20 trip and fall that is not seen in Vash 1? 21 A Yes, I believe there is. 22 Q Can you point that out to me? 23 A It is the -- this end, which is not visible from 24 here. It would be this particular -- it would be -- okay. 25 If -- there's a long side and a short side of the Puffs box. Page 441 1 It is the pallet that is underneath the short side of the 2 Puffs box. Because in Vash 1 I'm at a different angle. 3 Q Okay. And that's the photograph you took, Vash 1? 4 A Correct. 5 Q Okay. Now, when you fell did you -- after you 6 fell did you realize that you tripped over a different area 7 of the pallet that you've depicted in Vash 1? 8 A I have no idea. I fell -- I fell against the 9 pallet. I fell on the pallet. 10 Q Okay. Would you agree with me that if it was on 11 the other side of the box that you tripped and fell, a 12 portion of the pallet that was protruding on the other side, 13 that you would have taken a picture of that side? 14 A Ask me the question again. 15 Q Okay. Well, why didn't you take a picture of the 16 other side of the pallet if you believe it was the other 17 side of the pallet that caused your fall? 18 A Because I wasn't laying down on that side. 19 Q Were you able to move around to take photographs? 20 A My concern was to get to the hospital. 21 Q I understand. 22 MR. SHERMAN: Off the record. Off the record. 23 (Discussion held off the record.) 24 MR. BAER: My concern is that I thought in a 25 previous response she was mentioning this area here next to Page 45 1 the circle that she's drawn on Woll 1, the bottom 2 photograph. 3 MR. SHERMAN: I didn't hear that. 4 THE WITNESS: I'm talking that corner, general 5 area. 6 MR. SHERMAN: Both comers show consistently that 7 corner. The triangle's on both 1 and 2 as the general area, 8 and that's not going to change. 9 BY MR. BAER: 10 Q I stand corrected. I thought what you were telling 11 me was that the photograph, the bottom photograph on Woll 1, 12 shows a protruding wood condition that is not depicted in 13 Vash 1; and then you went on to describe an area. I thought 14 you were mentioning an area next to the area that you 15 circled. 16 A No. 17 Q Okay. 18 A That corner. 19 Q Okay. Now, as you were turning around that corner 20 before you fell you were directing your attention, I believe 21 you said, to the -- the area where you remembered the Martha 22 Stewart boxes to be? 23 A Wash baskets, yes. 24 Q Describe the fall for me. How did you fall? Did 25 you fall forward, sideways? How did that happen? Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FEBRUARY 9, 2009 Multi-PageTm Page 46 1 A I fell to my right. 2 Q Were you carrying anything? 3 A I had a purse. 4 Q Can you describe -- 5 A On my shoulder. 6 Q Can you describe the purse? 7 A It was a Louis Vuitton purse. 8 Q How large is that purse? 9 A She knows. Eight and a half -- no, half of that. 1o Whatever a half of eight and a half by eleven is. 11 Q So you were indicating -- was it over your right 12 shou lder? 13 A It was. 14 Q And I see that you're wearing glasses today? 15 A Yep. 16 Q What is your vision? What's your prescription? 17 A I wear contact lenses for viewing long distance, 18 and this is 1.5. They're reading glasses. 19 Q And what were you wearing on the day of the 20 incident? 21 A My contact lenses. 22 Q And you said you fell on your right side? 23 A That's where I made contact with the floor, that's 24 correct. 25 Q And after you fell what happened next? Page 47 1 A I believe that I may have been a little unconscious 2 for a couple seconds, because I don't rightly recall 3 immediately what happened. 4 Q Do you remember striking your head on the floor or 5 any other object? 6 A I only remember my right arm going out to protect 7 myself in the fall. That's all I remember. 8 Q Do you remember your body hitting any of the boxes 9 or anything else on the way down to the floor? 10 A No, I do not remember that. 11 Q Did you have any bruises or cuts to your head as a 12 result of this incident? 13 A Not that I'm aware of. 14 Q Did anyone tell you that you were unconscious at 15 the scene? 16 A No one was right there with me when it specifically 17 happened. 18 MR. SHERMAN: So the answer is no? 19 THE WITNESS: No. I'm sorry. 20 MR. SHERMAN: That's okay. 21 THE WITNESS: Go ahead. I'm just reliving this. 22 BY MR. BAER: 23 Q Okay. And after you fell -- what happened 24 immediately after you fell? 25 A I guess people came to my rescue. Page 48 1 MR. SHERMAN: He's not asking you what you guess. 2 What he's asking you is what do you remember happening. If 3 you don't remember, that's fine. If you do remember. 4 THE WITNESS: I remember I fell. That's all I 5 know. 6 MR. SHERMAN: He asked you beyond that. When you 7 were on the ground, besides taking the picture, do you 8 remember people coming up to you? Do you remember talking 9 to anyone? That's the kind of things he's asking you. 10 THE WITNESS: Oh, I know a lot of people did come I 1 to see what had happened to me. 12 BY MR. BAER: 13 Q Who was the first person that arrived on the scene? 14 A Kim. 15 Q If you remember? 16 A Kim Omer, O-R-N-E-R. 17 Q Was she there before Mr. Pope? 18 A Yes. 19 Q Okay. Where was -- where was Kim coming from, if 20 you know? 21 A Behind me. 22 Q And did she ever tell you -- and we may have gone 23 over this, but did she ever tell you whether or not she saw 24 you actually fall? 25 A I don't recall that she saw me. Page 49 1 Q What did -- do you remember any conversation you 2 had with Kim immediately after you fell when she approached 3 you? 4 A Yes, I do. 5 Q What do you remember? 6 A She heard a large -- a loud popping noise. 7 Q What did you understand that popping noise to be? 8 A At the time I thought it was me making contact with 9 the fl oor with my hand. 10 Q Since that time do you believe that that popping 11 noise was something else? 12 A Yes, I do. 13 Q What do you think it was? 14 A It was my torn ACL. 15 Q Okay. Did you have any conversation beyond that 16 at the scene with Kim? 17 A Yes. 18 Q What did -- tell me about the substance of the 19 conversation. 20 A Wanted to know if I was okay, wanted to know if I 21 was bruised, was I okay, just my general wellness, well 22 being . 23 Q Okay. And what did you say in response to those 24 questions? 25 A No, I'm not fine. No, I'm not fine. Page 46 - Page 49 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pap TM PATRICIA WOLL FEBRUARY 9, 2009 Page 50 1 Q What was bothering you at that point in time? 2 A I was traumatized that I had fallen. So general 3 -- just general concern of my body. 4 Q But earlier you described mostly right-sided -- you 5 described all right-sided problems, correct? 6 A When I was giving my response to the incident 7 report, that's correct. 8 Q Mr. Pope, did he arrive on the scene? Did he come 9 to your assistance? 10 A I don't recall that he physically asked after my 11 well being. 12 Q Okay. Do you remember any conversation that you 13 had with him or you remember him having with anyone else 14 the scene? 15 A He offered himself as a witness, a bystander. 16 Q Okay. What did he say to you in that regard, if 17 you remember? 18 A That he was going to give the information on the 19 incident report. 20 Q Do you remember him at the scene offering any 21 opinion about fault or blame for the incident? 22 A He had mentioned about my surprise of falling. So 23 the answer would be yes to that question. 24 Q He mentioned something about his surprise at you 25 having fallen? Page 52 1 did it take for him to arrive on the scene after you fell? 2 A He -- his head was -- I mean, his -- I saw his head 3 come around the corner. 4 Q Can you estimate for me how quickly it was that he 5 got to the scene after you fell? 6 A No, I can't. 7 Q What did he do for you, if anything, when he 8 arrived? 9 A Nothing. 10 Q Did he say anything? 11 A Not that I recall. 12 Q Did he say anything to anyone other than you at the 13 scene? 14 A I have no idea. 15 Q What did he do when he was there? What 16 observations did you make concerning his appearance on the 17 scene? 18 A He looked and turned away. 19 Q Do you know what he did when he turned away? 20 A I have no idea. 21 Q Did he ever return to the scene? 22 A Not that I recall. 23 Q Can you describe this gentleman -- this man in any 24 other way than what you've already said? 25 A He was -- appeared to be in retirement age, which Page 51 1 A Correct. 2 Q How did that -- how do you interpret that to mean 3 -- or to -- how do you interpret that to mean that he 4 rendered an opinion with regard to fault or blame? 5 A In that he indicated the way in which the pallets 6 were arranged. 7 Q Okay. What did he say in that regard? 8 A I don't remember specifically. 9 Q Do you remember him having something to say about Page 53 1 I'm -- I'm explaining that because he had grayer hair. He 2 was elderly in face, in the skin, wrinkles, about five -- he 3 was taller than me. I'm five-three, and I have a 4 relational value to six feet. So he was somewhere between 5 -- he was less than six feet, but, you know, taller than 6 five-five. 7 Q Okay. And you indicated that you believed he was 8 an employee. What was it about him that made you believe 9 that? 10 the way the pallets were arranged? 10 A Because he had the Kmart jacket on, that red Kmart 11 A Yes. 11 jacket. 12 Q Who did he express that opinion to? 12 Q Okay. And you said there were three employees in 13 A It was negatively against Kmart. 13 all who at some point in time arrived on the scene? 14 Q Who did he express it to? 14 A Correct. 15 A There were -- Kim was there, and there were two 15 Q Who was the second one? 16 other employees in general ear shot at the time. 16 A There was another elderly gentleman that was 17 Q Who was -- do you remember an employee -- how many 17 working in the same area that exhibited the same response as 18 employees arrived on the scene? 18 I described the first gentleman. 19 A Three. 19 Q Meaning that he didn't say anything, he just looked 20 Q The first employee to arrive on the scene, do you 20 and turned away? 21 know who that was? 21 A That is correct. 22 A It was an eld -- it's an older gentleman that was 22 Q The third person who arrived on the scene -- 23 working in the general area. And how I knew that, he had a 23 A Mr. Vash. 24 red jacket and a name tag. 24 Q Vash, the gentleman who was here earlier? 25 Q Okay. How long did it take -- or how short a time 25 A Um-hum. Page 50 - Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM PATRICIA WOLL )*RR7tITARV U ')nnQ Page 54 1 Q How -- when did he arrive on the scene in relation 2 to the incident? By that I mean you said -- I think you 3 said you were -- you were there about 15 minutes before you 4 took the photograph? 5 A Yes. 6 Q Did he -- did you take the photograph before he 7 arrived on the scene? 8 A Nope. 9 Q Was he there when you took the photograph? 10 A No, not to the best of my knowledge. 11 Q Okay. How long did it take for him to arrive on 12 the scene, if you know? 13 A Approximately? 14 Q Yeah. 15 A I can only guess it was five to ten minutes. 16 Q Do you feel as though you were -- did anyone offer 17 medical attention to you at the scene? 18 A No, no. 19 Q Did anyone offer to call an ambulance for you? 20 A Yes. 21 Q Who offered to call an ambulance? 22 A Mr. Vash. 23 Q Did you ask for any medical attention of the Kmart 24 personnel? 25 A No, I did not. Page 55 1 Q Do you feel as though in the store after the 2 incident that the Kmart personnel treated you poorly? 3 A Yes, I do. 4 Q In what respect? 5 A I was not offered any assistance to get to the 6 front of the store other than did I want an ambulance. 7 Q Okay. You also -- you left the store in a 8 wheelchair? 9 A That's correct. 10 Q Did anyone advise you that the store had a II wheelchair? 12 A No. 13 Q How did you know to get the wheelchair? 14 A Kim went to find something. 15 Q Okay. Did Kim go to get the wheelchair? 16 A Kim went to find something. 17 Q Who brought the wheelchair back? 18 A Kim did. 19 Q Who assisted you out of the store in the 20 wheelchair? 21 A Kim did. 22 Q Did anyone else walk out with you? 23 A No. 24 Q At that point in time did you decline the 25 ambulance? Did you say you didn't want an ambulance? Page 561 1 A I just said I didn't want an ambulance. 2 Q And why -- why was it that you didn't want an 3 ambulance? 4 A I didn't feel I had life threatening injuries, but 5 was going to go directly to the emergency room. 6 Q You said that you were -- you thought that the 7 Kmart people treated you poorly. What is it that you 8 thought they could have done for you at that point in time? 9 A I believe they could have at least gone to find the 10 wheelchair and not turned away when they saw that there was 11 an injured person on the floor. 12 Q Did -- do you remember Mr. Vash arriving on the 13 scene and then leaving the scene and coining back with an 14 incident report for you to complete? 15 A He came with an incident report. 16 Q Okay. And you said that took about approximately 17 five minutes for him to get there after the incident? 18 A Approximately five. 19 Q When he arrived on the scene were you still down on 20 the ground? 21 A Yes. 22 Q And tell me about your encounter with Mr. Vash. By 23 that I mean what did he say? What did you say to him? 24 A He indicated I needed to complete the bottom 25 portion. I wasn't able to write. Ms. Omer -- Mrs. Omer Page 57 1 was the one who wrote what I said. And I had difficulty 2 even signing my name. 3 Q Okay. I want to show you the top page of what 4 we've marked as Vash 3 and ask you if you can identify that. 5 Is that your signature at the bottom? 6 A That is my signature. 7 Q Are you right-handed? 8 A Yes, I am. 9 Q Was it your right hand that you've hurt in the 10 fall? 11 A Yes, it was. 12 Q Among other parts? 13 A Yes. 14 Q Okay. And the -- have you seen this before today? 15 A Oh, yes. 16 Q And is the information that's provided after what 17 happens, is that information that Kim wrote? Is that 18 writing her handwriting? 19 A That is her handwriting. 20 Q And does that accurately reflect what you said to 21 her? Did she accurately set forth in this document what 22 you told her? 23 A I can only assume the answer is yes. 24 Q Okay. Well, I'm just asking, is there anything in 25 her rendition of the facts that she incorrectly transcribed? Page 54 - Page 57 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM PATRICIA WOLL PPRU TARV 0 ')nn0 Page 58 1 And take your time. 2 A I can't read what that is. Complains of -- 3 complained of radiating from hip to knee. To the best of 4 my knowledge that's what I gave her at the time. 5 Q Okay. Okay. How many photographs did you take 6 with your cell phone? 7 A Two. 8 Q Okay. And we've seen one, and I think I've been 9 provided with copies of -- color copies of photographs. 10 Are these -- one of these is a copy that we've marked as 11 Vash 1? 12 A Um-hum. 13 Q Are these different photographs or the same 14 photograph, one blown up? 15 A No, they're two different photographs. 16 Q Okay. 17 A These are the ones I provided Chris. 18 Q Okay. Vash 1 is -- would be this one here? 19 A No. 20 Q No. Because I see this -- one, two, three of 21 these here. 22 A There's a cart on the other side of the Charmin. 23 Q Okay. 24 A And some other materials passed that. And that 25 does not appear on what is Exhibit Vash 1. Page 59 1 Q Does Vash 1 -- is Vash 1 represented in either of 2 the two color copies of photographs I'm showing you? 3 A Yes. 4 Q Which one? 5 A The top one. This one -- no, that's incorrect. 6 That's incorrect. 7 Q Maybe -- maybe Vash 1, what we've marked, crops off 8 some of the -- 9 A It may have been a crop. I've got part -- the top 10 one is a part of Vash 1. The top part is cropped off in 11 the color photo that you're showing me as compared to the 12 Exhibit Vash 1. 13 Q Okay. I'm not being contentious with you. 14 A No, I'm not. 15 Q This one might actually be -- this one might 16 actually be Vash 1 with the right side cropped off. Because 17 as you can see, it starts right on that piece of wood. 18 A Oh, okay. I see, yes. I knew that you weren't. 19 Q No, I know that. I appreciate it. 20 A I hate to be such an exacting person. 21 Q That's okay. It's important to be exacting. How 22 long did you remain in the store before you -- before you 23 left? From the incident until the time you left the store 24 approximately how much time went by? 25 A I'll concur with Mr. Vash. It was about 30 Page 60 1 minutes. I think that was mentioned, 20 to 30 minutes. 2 Q Do you remember any of the conversation you had 3 with Mr. Vash? 4 A No, not specificities other than what I mentioned 5 before in filling out the incident report. 6 Q Do you remember Mr. Vash ever telling you he was 7 sorry for the accident? 8 A I'm sorry, I don't. 9 Q Apart from Mr. Vash did you speak with any other 10 repre sentatives of Kmart while you were in the store that 11 day? 12 A Not to my knowledge. 13 Q And you left the store by wheelchair? 14 A Correct. 15 Q And did you drive from the store? Who drove from 16 the store? 17 A Kim drove from the store. 18 Q And where did you go when you left the store? 19 A Holy Spirit Hospital in Camp Hill. 20 Q To the ER? 21 A Correct. 22 Q And you went directly there? 23 A Correct. 24 Q When you went to the ER did you tell the nurse and 25 the doctor what was bothering you? Page 61 1 A Yes. 2 Q And what was bothering you at that time? 3 A Again, my right side. 4 Q Did they -- what did they do for you at the 5 emergency room? 6 A X-rayed. 7 Q What parts of your body did they x-ray? 8 A My right side. 9 Q What parts of your body, if you remember? Was it 10 -- by that I mean was it your wrist? Was it your hip? Was 11 it your shoulder, if you remember? 12 A I don't remember the x-rays exactly. 13 Q When did your left knee start to bother you? 14 A That started to bother me then within two weeks 15 after the accident at Kmart. 16 Q Can you remember the specific day? 17 A No, but I remember specifically what it was. 18 Q Please tell me. 19 A Going up stairs. 20 Q And you remember this approximately -- you remember 21 experiencing difficulty about two weeks after the incident? 22 A That is correct. 23 Q Were there any incidents between the Kmart fall and 24 the time you first experienced that discomfort in your left 25 knee? Page 58 - Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL Multi-Page TM FEBRUARY 9, 2009 Page 62 Page 64 1 A No, there wasn't. 1 A What happened when I fell was that my left foot 2 Q Did -- am I correct that the emergency -- you 2 stayed intact to the floor. I angled to the right, my knee 3 didn't tell anyone in the emergency room that your left knee 3 being that central point, and my body snapped to the right. 4 was bothering you? 4 And then that's when I fell to try to caught -- to cushion 5 A Because it wasn't bothering me. 5 my fall. 6 Q Right. And after the emergency room who did you 6 Q Okay. And you twisted to your right kind of 7 next treat with? 7 clockwise, correct? 8 A Oh, I went to my general practitioner, Belvedere 8 A Correct. 9 Medical Center. 9 Q Okay. And you fell on your right -- the right 10 Q How soon after the emergency room visit did you 10 side of your body? 11 first see Belvedere? 11 A Um-hum. My right side took the contact, took the 12 A It would have been the next -- during -- the next 12 fall. 13 week following -- let me back up. I mentioned two weeks 13 Q All right. You said that you remembered Kim 14 after I was at Kmart I experienced the pain in my knee. So 14 saying that she heard a pop, and at first you attributed it 15 it would have been within the next five days that I went -- 15 to the -- your body hitting the floor or something, and 16 I was able to get an appointment at Belvedere Medical 16 later you attributed the pop to your ligament, your knee 17 Center. 17 ligament? 18 Q Okay. So you made the appointment for Belvedere 18 A Correct. 19 after you experienced the left knee discomfort? 19 Q Do you remember as we sit here today feeling your 20 A Correct. 20 knee ligament pop when you fell? 21 Q Prior to that time how were the -- strike that. 21 A I don't remember anything but falling. 22 Did the pain and aches you had on the right side of your 22 MR. SHERMAN: Other than when she said that she 23 body resolve at some point in time? 23 felt it pop? 24 A Yes. 24 MR. BAER: You're multitasking. 25 Q When did they resolve? 25 MR. SHERMAN: But she did say already that she felt Page 63 Page 65 1 A I would say within 48 hours. 1 a pop. So it would be other than what you already -- 2 Q You were feeling good after -- about 48 hours after 2 MR. BAER: Well -- 3 this incident? 3 MR. SHERMAN: Do you understand? 4 A Yes. 4 BY MR. BAER: 5 Q Did you return to work? 5 Q Let me clear it up. 6 A Yes. 6 A Okay. 7 Q And when you returned to work did you return in a 7 Q I thought that when you testified earlier you said 8 traveling mode, or were you stationed at home for that week? 8 that you did not feel a pop when you fell? 9 A You know what, I really -- I cannot recall that. 9 A Heard, did not feel. 10 Q And do I understand that you felt absolutely no 10 Q You heard a pop, correct. You said it was about 11 discomfort in your left knee until approximately two weeks 11 five days after the incident that you felt some left knee 12 after the incident when you experienced some discomfort 12 discomfort, but you didn't immediately attribute it to the 13 going up stairs? 13 incident, correct? 14 A That would be incorrect. 14 A Correct. I'm sorry, correct. 15 Q Okay. Tell me when you first started to have 15 Q What kind of discomfort did you experience? 16 discomfort in your left knee. 16 A I had a swollen left knee and was having some 17 A It would have been within, I'll say five, days 17 difficulty in walking. 18 after the accident occurred. But I wasn't at. that time 18 Q When did you first notice swelling in your knee? 19 making any correlation because I fell on my right side. So 19 A It would have been -- and I can only say this 20 I chose to ignore it at the time. 20 because I know it was a Saturday or Sunday morning. So it 21 Q Getting back to the fall, the mechanism of fall. 21 would have been the Saturday or Sunday morning following the 22 A Um-hum. 22 accident. So that's five days or four days. 23 Q Can you describe how you fell? By that I mean was 23 Q Okay. So the first time you noticed any swelling 24 it -- did you fall forward? Did you twist when you fell? 24 in your left knee was approximately five days after the 25 How did you fall? 2 5 incident? rage 62- - rage 65 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page" M PATRICIA WOLL FEBRUARY 9, 2009 Page 66 1 A Correct. 2 Q Did -- when you went to the emergency room did they 3 examine your body? 4 A Yes. 5 Q Did they look at both of your knees? 6 A Not that I recall. 7 Q Did you tell them you hurt your right knee in the 8 incident? 9 A That is correct. That -- my right side. 10 Q Right side. When you went to Belvedere the first 11 time after the incident which doctor did you see? 12 A I'd have to check the records. Like I said, it 13 woul d be whoever was available. It was a clinic type 14 setting. 15 Q Um-hum. And it was approximately two weeks after 16 the accident that you first saw someone at Belvedere? 17 A To the best of my knowledge. 18 Q What did you tell that doctor? 19 A That I was experiencing pain in my left knee. 20 Q And did you tell him what happened or what you 21 thought was the cause of it? 22 A Sure. 23 Q What did you tell him? 24 A Yes. 25 Q Him or her? Page 67 Page 691 1 A That I had fallen at Kmart. I had the incident 1 date. 2 report with me as well. 2 Q Can you approximate? 3 Q When you went in to see the doctor? 3 A There was a wait. I know there was a wait because 4 A Yes, I did. 4 they' re a very busy practice. 5 Q Did you ever tell any of your physicians that you 5 Q And ultimately they diagnosed your tear, correct? 6 fell in your home on December 27th -- I'm sorry, on June 6 A Well, let's back up and say that after the x-ray 7 27th, 2006? 7 then I also had to have an ultrasound done because the x-ray 8 A No. 8 was inconclusive. And then at that time it was based upon 9 Q Did you ever tell your orthopedist that? 9 what the results were of the ult -- the CAT scan, 10 A No. 10 ultrasound, whatever I had. 11 Q Okay. So if that appears in his records, that 11 Q What were the results as you understand it? 12 would be incorrect? 12 A Torn ACL and bruised meniscus. 13 A I -- that would be incorrect. 13 Q And ultimately you had surgery? 14 Q What did Bel -- what did the physician at Belvedere 14 A Yes, I did. 15 do for you? Did he examine you two weeks after the 15 Q When did you have the surgery? 16 incident? 16 A The end of September of that year. 17 A Yes. 17 Q Okay. 18 Q And what did he do as part of his examination, he 18 A September of 2006. 19 or she? 19 Q So you -- how would you describe your summer, that 20 A Initially x-rays. 20 summer? 21 Q Did he -- 21 A It was not comfortable. I was on crutches, and I 22 A Looked at it, felt it, manipulated the knee, felt 22 used a cane all the time, the cane all the time. 23 that indeed there was damage, but could not make any further 23 Q How many steps are in your -- were in your home? 24 analysis without doing additional treatment. 24 A There are two flights of stairs. 25 Q And with respect to additional treatment, what did 25 Q Is there a basement? Page 68 1 he recommend? 2 A Initially x-rays. 3 Q And he did the x-rays in the office? 4 A Not his office, no. 5 Q Okay. Did he send you out to see anyone else, any 6 specialists? 7 A By specialists you mean -- 8 Q Orthopedic consult? 9 A I was able to choose my own orthopedic consult. 10 Q Okay. And who did you see? 11 A It's -- the place is called oiP, Orthopedic 12 Institute of Pennsylvania. And I'd have to check what the 13 doctor's name was. 14 Q Dr. Werner sound familiar? 15 A Yes, yes. 16 Q Had you ever seen him before this incident? 17 A No, I have not. 18 Q You made this choice. Why did you make a choice of 19 this group? 20 A Because I knew that oiP was a premier ortho, and 21 I've known other people that have been treated successfully 22 at OIP. 23 Q When did you first see Dr. Werner at that practice 24 group? 25 A I'd have to defer to Chris. I don't remember the Page 66 -Page 69 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 72 1 Q Okay. All right. The -- how long did you work 2 after the incident? 3 A June, July, August, three months. 4 Q All right. And were you traveling during that 5 three month period? 6 A I'd have to check my calender, but to the best of 7 my knowledge, no, I couldn't. 8 Q Did they make an accommodation for you at work? 9 A Yeah, they did. 10 Q What did they do for you at work during that three 11 month period of time? 12 A I cancelled any of our travel that would have been 13 done outside, you know, at a hospital facility. 14 Q Did someone else step in for you to -- 15 A No, they didn't. 16 Q Did you receive any criticism from your employer 17 because of your inability to perform your job function back 18 then? 19 A Back then, no. 20 Q At some point in time was there some criticism 21 aimed in your direction? 22 A Yes, there was. 23 Q Tell me about that. 24 A May, when I reinjured my knee, of 2008 I had to be 25 off my -- I was ordered to be off my knee for a week. And Multi-Page TM Page 70 1 A Yes, there is. 2 Q Is the laundry room down in the basement? 3 A No, it's not. 4 Q Is the basement finished? 5 A Yes, it is. 6 Q Did you spend much time in the basement in the 7 summer of 2006? 8 A Yes, I did. 9 Q Okay. And were you able to -- is your bedroom up 10 on the second floor? 11 A We actually have three floors. 12 Q Okay. 13 A So it would be basement, first, second. 14 Q Okay. Were you able to get up and down the stairs 15 that summer of 2006? 16 A Yes. 17 Q Okay. What kinds of things were you unable to do 18 in the summer of 2006 that you used to be able to do? 19 A Walk, garden, any form of exercise, Tae-Bo, 20 pilates, nothing. 21 Q Those things that you just mentioned are things 22 that you did frequently before this incident? 23 A That is correct. 24 Q When you say you had -- you were unable to walk -- 25 A Um-hum. Page 71 1 Q -- after this incident, you were able to walk with 2 the assistance of a cane or crutches, correct? 3 A Correct. 4 Q What was your walking -- were you ever able to walk 5 that summer without the use of crutches or a cane? 6 A No, I was not. 7 Q Were you confined to your home for any period of 8 time as a result of this incident? 9 A I would say 80 percent, except for when I was 10 traveling for my -- but I didn't travel for my job then 11 because that was -- I couldn't. 12 Q All right. Were you confined to your home before 13 and after the surgery? 14 A After the surgery. 15 Q How about before the surgery? Were you confined 16 to your home? 17 A Based upon my -- what I felt I could do physically 18 or not. So yes, I was confined, but not under doctor's 19 orders. 20 Q After the surgery you were confined for a period of 21 time? 22 A Three months. 23 Q Did you ever leave the home for any reason other 24 than doctor's visits? 25 A Oh, sure. Page 73 1 subsequently to that then I was given a warn -- a verbal 2 warning that my injury was severely impacting my ability to 3 be effective at work. 4 Q How much -- you returned to work in January of 5 2007, correct? 6 A Yes. 7 Q All right. 8 A I had to think of the year. 9 Q The medical records indicate that you received 10 approximately -- and I may be off a little bit, 11 approximately 22 physical therapy visits. Does that sound 12 about right? 13 A Sure, right. 14 Q Where did you get physical therapy? 15 A At Orth -- what's it called, Orthopedic Institute 16 of Pennsylvania, o1P. 17 Q Okay. And that was at the direction of Dr. 18 Werner? 19 A Correct. 20 Q Can you -- first tell me about this surgery. Was 21 it outpatient surgery? 22 A Yes, it was. 23 Q What do you understand -- and I understand you're 24 not a medical provider, but what do you understand Dr. 25 Werner did as part of that surgery? PATRICIA WOLL FEBRUARY 9, 2009 rage iu - rage /-i HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 ? Multi-Pap TM PATRICIA WOLL FEBRUARY 9, 2009 Page 74 1 A He cleaned out my meniscus area and performed 2 arthroscopic surgery to the repair of my ACL, my arterial 3 ligament. 4 Q Okay. Did he transfer any ligament from any other 5 part of your body? 6 A No, he did not. 7 Q What, if anything, did he tell you after the 8 surgery as far as how this surgery went and what you could 9 expect to achieve as far as function? 10 A He thought it went well. 11 Q And he sent you for physical therapy? 12 A Yes, he did. 13 Q Describe the physical therapy for me, what it was 14 they did for you and how you felt during the course of it. 15 A I had knee exercises. I had bicycle, various 16 balancing. I felt that I was undertreated and said so to 17 the therapist. 18 Q When you say undertreated, what do you mean? 19 A I felt that they were not trying to rehabilitate me 20 to the level that I was physically able prior to that. 21 Q Okay. Was physical therapy painful? 22 A Sure. 23 Q Was there some -- did they have to break scar 24 tissue? 25 A No. Page 75 1 Q Do you remember being on your stomach and them 2 taking your -- your -- your heel and bending it back to your 3 buttocks? 4 A That I remember. 5 Q Okay. How were you -- were you discharged from 6 physical therapy, or did you stop on your own? 7 A No, they told me they couldn't do anything for me 8 -- else for me. 9 Q How were you feeling with respect to your knee 10 function at the end of physical therapy? 11 A I was still -- I was still using my cane. 12 Q Have you stopped using your cane? 13 A Yes. 14 Q How soon after physical therapy ended did you stop 15 using your cane? 16 A When I returned to work in January I stopped using 17 the cane because I felt -- I felt that it was a negative -- 18 you know, that I felt not as professional. I felt it was a 19 negative impact to my image. 20 Q Did you feel in January of 2007 that you still 21 needed the cane? 22 A Yes, I do. I used it -- I remember -- I recall 23 using it specifically that Christmas. 24 Q How about now? Do you feel that you need to use 25 either a cane or crutches now? Page 76 I A I wish I could use the cane from time to time, yes, 2 I do. 3 Q When do you feel as though you would benefit from a 4 cane currently? 5 A After I've done -- well, to be honest, today. I 6 did a lot of housework over the weekend, and I'm -- I'm 7 having pain in my left knee today. 8 Q Is it fair to say then that at the conclusion of 9 physical therapy you were dissatisfied with your condition? 10 A Not my condition. 11 Q What were you -- if anything, what were you 12 dissatisfied with? 13 A With the treatment that I received. 14 Q When you ended physical therapy or when you were 15 discharged from physical therapy did you feel as though you 16 had full range of motion in your left knee? 17 A No, I do not feel I had full range of motion. 18 Q How about extension? Did you feel as though you 19 had full extension? Do you know what range of motion is? 20 A Yeah, I do. I do. 21 Q Did you feel as though you had full extension? 22 A No. 23 Q At the conclusion of physical therapy what deficits 24 do you believe you had with respect to your knee 25 functioning? Page 77 1 A I felt I was still at only 80 percent. 2 Q And how do you feel currently as far as the 3 percentage of function? 4 A 90. 5 Q Do you have full range of motion currently? 6 A No. 7 Q How about extension? Do you have full extension? 8 A No, I do not. 9 Q Okay. You returned to work in January. What 10 problems did you begin to experience at work as it relates 11 to your left knee? 12 A Continued swelling, discomfort, pain, ultimately 13 difficulty sleeping. 14 MR. SHERMAN: You're talking about January, '08? 15 BY MR. BAER: 16 Q January, '07 when she returned to work. 17 A Yes, um-hum. 18 MR. MARZZACCO: Wait, I think -- 19 THE WITNESS: '061 had the surgery. '07 I 20 returned to work. But thank you. 21 MR. SHERMAN: I just got confused on the years. 22 MR. MARZZACCO: Me too. 23 BY MR. BAER: 24 Q Did those problems that you've just described have 25 an impact on your job? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 74 - Page 77 PATRICIA WOLL Multi-Pager" VF-RRTTARY 9. 2009 Page 78 Page 80 1 A Yes. 1 of the travel requirements of your position? 2 Q How so? 2 A I loved my job. 3 A I think I described earlier that I needed to be 3 Q Did you love the travel? 4 able to accommodate at least 30 -- sometimes between 30 and 4 A I loved to travel. 5 50 people in a class. I needed to be mobile to be able to 5 Q Okay. 6 have one on one face time with my customers. And I felt 6 A And travel was part of my job. I absolutely loved 7 with the pain and my mobility being decreased that I wasn't 7 my job. 8 giving my 100 percent. 8 Q Okay. Is it a salaried position you have now? 9 Q And when you referred to the customers, this would 9 A Um-hum, yes. 10 be when you would leave -- when you would visit a site you 10 Q And it was a salaried position you had before? 11 would speak with customers, right? 11 A Always, yes. 12 A That is correct. 12 Q What's the -- I'm sure it's in the records, but 13 Q On those occasions did you ever bring your -- did 13 what's the drop off in the rate of pay from one position to 14 you ever use your cane when you were walking around? 14 the other? 15 A No, I did not. 15 A It's -- it's significant. I don't have the 16 Q How about the simple act of traveling, getting on a 16 figures. Chris can provide them. And if not, I know my 17 plane and traveling from location to location? Did that 17 HR department has them. There are tables. 18 create a problem for you? 18 Q All right. Do you have any plans to change the 19 A Yes, it did. 19 nature of your job, to change positions? 20 Q How so? 20 A No, I don't. 21 A I realized that one needed their left knee to pull 21 Q Do you have any plans as far as when you intend to 22 a week's worth of travel in their luggage, as well as I had 22 retire? 23 a Pc that's also on wheels. So I did not realize what it 23 A I have no idea. 24 took to pull that through airports. 24 Q You mentioned an incident involving your left knee 25 Q When you would travel on behalf of Siemens in 25 when you were gardening, something happened? Page 79 Page 81 1 January of 2007 did anyone accompany you from the company? 1 A Yes. 2 A No. 2 Q When was that again? 3 Q There came a time when you changed your position to 3 A May, 2008. 4 a less strenuous position, correct? 4 Q All right. What happened in that incident? You 5 A Correct. 5 were gardening, and you went to get up and you felt 6 Q Did you have to apply for that? 6 something pop? 7 A Yes. 7 A I had been gardening all weekend, which would be 8 Q Did you submit an application? 8 Saturday and Sunday. And when I went to go to work on 9 A Yes. 9 Monday I basically was unable to walk. I had severe pain 10 Q And to whom did you submit that, to the HR 10 in my left knee and extreme swelling. I 1 department? 11 Q During the course of the gardening activity that 12 A Yes. 12 weekend do you remember any specific incident, or do you 13 Q Did you have an interview or a meeting with anyone 13 remember hearing anything happen that made you realize, I 14 in HR about the change in position? 14 just did something to my knee? 15 A Yes. 15 A Nope. 16 Q Do you remember who it was that you met? 16 Q So it was -- you woke up on Monday and you felt an 17 A I knew you were going to ask me that. I can't 17 increase in pain, correct? 18 remember her name. It's -- she's still with the company. 18 A Right. 19 She's still in HR. 19 Q Prior to gardening that weekend in May of 2008 how 20 Q Okay. And what reasons did you provide HR for the 20 was your knee feeling generally? 21 change in -- your request for a change of position? 21 A Great, fine. 22 A That it would -- that it was closer to home, that 22 Q When did you return to gardening activities after 23 there would be no travel involved, that I needed to be off 23 the surgery? 24 the road. 24 A I didn't. Oh, after the surgery? 25 Q Prior to the fall at Kmart were you growing weary 25 Q Yeah, after the surgery. Page 78 - Page 81 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page PATRICIA WOLL FEBRUARY 9, 2009 Page 82 Page 84 1 A 2007. 1 A I was able to walk and chose not to use cane or 2 Q Okay. The surgery was in September of 2006? 2 crutches. 3 A 6, correct. 3 Q Okay. Were you able to get up and down the stairs 4 Q When would you have started gardening again? 4 in your home without difficulty prior to the gardening 5 A I would have started gardening in May, but I didn't 5 incident in May of 2008? 6 start gardening until later in the summer. 6 A No, I wouldn't say that. 7 Q Okay. 7 Q What was your experience like, let's say -- let's 8 A Because I was afraid I was going to reinjure my 8 take a snapshot in time, April of 2008, a month before the 9 knee. 9 gardening incident. 10 Q Summer of 2007? 10 A Got it. 11 A Correct. 11 Q How were you able to get around back then? 12 Q Okay. And then you did start gardening sometime 12 A I didn't use crutches. I didn't use a cane. 13 in the summer of 2007? 13 Q Were you able to go up and down stairs? 14 A Correct. 14 A Sure. 15 Q And the gardening incident, as I'll call it, was 15 Q Did you restrict the number of times you would go 16 May of 2008? 16 up and down the stairs in your home? 17 A Right, right. 17 A Yes, that I have done. I have done that. 18 Q Is it fair to say that you were gardening then 18 Q In April of 2008? 19 throughout that -- during that block of time except for the 19 A I don't -- let's say yes, because I don't say, oh, 20 winter months? 20 21 today and 25 the next. But I consciously am aware of 21 A Did I -- are you saying did I not garden then? 21 what I'm doing and how I'm doing it. My -- the way I -- 22 Q Well, did you -- did you -- were you able to 22 the way I go at what I do, always in the back of my mind I'm 23 partake in gardening between the summer of 2007 and May of 23 thinking is this going to hurt? Am I going to do something 24 2008? 24 to reinjure myself? Every day of my life. 25 A No. That's -- ask your question again, because -- 25 Q Since the surgery have you had any episodes of Page 83 1 Q How -- how -- you said that after the surgery you 2 weren't immediately able to go back to gardening, and I 3 understand that. But sometime in the summer of 2007 you 4 started gardening again? 5 A Light gardening, yes. 6 Q Light gardening, okay. That's what I'm getting 7 at. 8 A Okay. 9 Q I wanted to get a sense of how often you would 10 garden in the summer of 2007. 11 A It's not the frequency. It's the intensity level. 12 Q Okay. 13 A That's what was different. 14 Q So you were able to garden frequently, but not as 15 get down in the dirt kind of gardening that you liked to do? 16 A You got it. 17 Q All right. 18 A That is correct. 19 Q Flowers or vegetables or both? 20 A Perennials. 21 Q Perennials, okay. 22 A Flowers. No vegetables. 23 Q Okay. All right. Prior to the incident 24 gardening in 2008, May of 2008, were you able to walk 25 without a cane and without crutches? Page 85 1 giving way, falling, or almost falling because of what you 2 perceive to be a weakness in your left knee? 3 A Yes, I have. Yes, I have. 4 Q Have you ever fallen since the surgery? 5 A Actually, yes, I have. 6 Q When did that happen? 7 A It happened last -- it happened Christmas of 2007. 8 1 was attending a Christmas gathering of my antique 9 collector friends. We had been sitting for an extended 10 period of time, and when I went to stand up -- and there was 1 I no alcohol involved -- smack down on my butt. I could not 12 -- I could not gain the strength, or my knee gave out and 13 wouldn't hold me. 14 Q Where did that happen? 15 A It happened in Dillsburg actually. 16 Q At an antique -- 17 A No, at a girl's house, at a woman's house here in 18 Dillsburg, yes. 19 Q Okay. Did you suffer any injury as a result of 20 that incident? 21 A No. I fell back down on a nice soft sofa. 22 Q So you didn't fall to the ground? 23 A No, I couldn't get up. I couldn't fall forward. 24 1 couldn't fall back. 25 Q You mentioned antiquing. Page 82 -Page 85 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 PATRICIA WOLL FEBRUARY 9, 2009 Multi-Page`"` Page 86 1 A Yes. 1 assistant. 2 Q Is that something that you enjoyed doing before 2 Q Okay. 3 this incident? 3 MR. SHERMAN: If you don't know, it's okay. 4 A Absolutely. 4 THE WITNESS: I don't know her name. 5 Q And is it something you continue to do? 6 A Not anymore. 7 Q When did you stop doing that? 8 A That would have been in 2006. 9 Q And why did you stop antiquing? 10 A Well, actually I had that as a side business, and I 11 was not able to lift things, carry things, move things. 12 That was all gone. 13 Q Are you claiming a loss of income because of your 14 inability to pursue the antiquing business? 15 A No, actually I'm not. 16 Q Okay. 17 A It has nothing to do with it. 18 Q Currently how does your knee -- well, strike that. 19 A Yeah, don't ask that question. 20 Q After you fell -- I'll ask it in a minute. 21 A Okay. 22 Q But I want to find out after the gardening incident 23 did you go back to the doctor? 24 A Oh, yeah. Oh, yeah. 25 Q Same doctor, Dr. Werner? Page 87 1 A No, no. I went back to my general practitioner. 2 Q Okay. 3 A There's a series you have to follow. 4 Q Right. 5 A Okay. 6 Q And what did the -- your family doctor do for you? 7 A We had -- we went through the x-ray, ultrasound 8 routine again. 9 Q Okay. Did you go -- also see the orthopedist who 10 did the surgery? 11 A No, I did not. 12 Q As a result of you seeing the -- your family doctor 13 after the gardening incident -- 14 A Um-hum. 15 Q -- what did you come to understand, if anything, 16 about the nature of your reinjury? 17 A It had now advanced to arthritis. 18 Q Okay. And how many times did you see any 19 physician after the gardening incident for your left knee? 20 A I'm just trying to recall if I went back. No, I 21 talked to her on the phone, and then I went back to see her 22 again. So that would have been twice following the 23 gardening incident. 24 Q Which doctor was it that you saw? 25 A You have to look. She's a -- she was a physician Page 88 5 BY MR. BAER: 6 Q Yeah, it's fine. Has there -- since that time has 7 there been any further medical visits with any physician for 8 left k nee problems? 9 A No, no, there hasn't. 10 Q Do you currently take any kinds of medications or 11 over- the-counter drugs for your knee? 12 A Yes. 13 Q What do you take? 14 A I take Aleve. 15 Q All right. Is that over-the-counter? 16 A Yes. I'm sorry. 17 Q I saw -- that's fine. I saw in the records that 18 you were taking Wellbutrin at some point in time? 19 A Yes. 20 Q Were you taking that before this accident? 21 A I've taken it for a very long time. So yes, 22 before all of the accidents. 23 Q What -- what do you take that for? 24 A For depression. 25 Q Okay. Page 89 1 A After my mother passed. 2 Q All right. Are you currently seeing any mental 3 health care providers? 4 A No, I'm not. 5 Q When was the last time you saw any mental health 6 care provider? 7 A Oh, my God. 19 years ago. 8 Q Okay. And who prescribes the Wellbutrin? 9 A Dr. Bucher, B-U-C-H-E-R, my gynecologist. 10 Q Okay. Currently how does your knee feel? 11 A Right now? 12 Q Well, you know, this month generally speaking. 13 A It hurts, hurts. 14 Q How often do you have pain in your knee? 15 A All the time. 16 Q Every day? 17 A Every day. 18 Q Is there any period of time during the day when you 19 don't have pain? 20 A When I'm sleeping. 21 Q Okay. Otherwise? 22 A I don't mean to be smart ass, but that's the only 23 t ime I don't feel it. 24 Q No, that's fine. And when you have the pain 25 currently can you describe the pain? By that I mean is it Page 86 - Page 89 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page M PATRICIA WOLL FEBRUARY 9, 2009 Page 90 1 a toothache pain, stabbing pain? Would you describe it 2 some other way? 3 A Let's do one to ten like they do in the doctor's 4 offices. It's generally a five, which means I always know 5 it's there. 6 Q All right. So currently in this time frame of 7 February, 2009 it's about five? 8 A It's about an 8 today. It's an 8 today. 9 Q Today it's an 8? 10 A Yeah. 11 Q Is there any part of the day or period of the day 12 when it's worse than other times? 13 A Oh, sure. 14 Q When is that? 15 A At the end of the day when I'm sitting down and I 16 feel it. 17 Q What do you do -- what can you do other than take 18 Aleve to self treat? 19 A Put a hot pad on it, a moist, wet, hot pad. 20 Q How often do you do that? 21 A About four times a week. 22 Q When you take Aleve does it reduce your pain? 23 A Yeah, it does. 24 Q What does it take it to on that scale of one to 25 ten? Page 91 1 A If I had a five, it's now a three. But I don't 2 take it all the time because I don't want to become tolerant 3 of it. 4 Q How often do you take Aleve? 5 A The same frequency that I do the self treatment, 6 three to four times a week. 7 Q Do you have a walking tolerance? By that I mean 8 do you have a distance that you feel that you're capable of 9 walking before you experience pain that causes you to stop? 10 A No, I don't have a physical distance. 11 Q How far are you able to walk currently before you 12 -- before you need to stop? 13 A If we're talking straight, I can walk for a really 14 long time straight. 15 Q How long? 16 A An hour. 17 Q Okay. Have you gone on hikes or walks that have 18 lasted an hour? 19 A Yes. And I know specifically when. 20 Q When? 21 A We were just in St. Maartan, the Caribbean. 22 Q You and Bob? 23 A Yeah. 24 Q And when you were in -- on vacation, St. Maartan, 25 do you remember walking for about an hour? Page 92 1 A Absolutely. 2 Q Okay. When you say straight, what do you mean? 3 A No -- we're not talking up a hill, no terrain, flat 4 surface, even bubble. 5 Q Okay. Can I fairly conclude then that if 6 you're able to walk for an hour if it's on a straight 7 surface, you're able to stand for that length of time 8 at least? 9 A Yes. to Q All right. Did you -- when you were in St. 11 Maartan did you go to the beach? 12 A Yep. 13 Q Were you able to walk on the beach without any 14 difficulty? 15 A No. 16 Q What did you experience when you walked on the 17 beach? 18 A Pain in my knee. 19 Q What was it about walking on the beach that you 20 think is different than walking on -- 21 A Because your feet go into the sand. They dig in 22 to the sand, which is resistance then that's being applied 23 to my muscles, to my joints. 24 Q Are you -- are you an athletic person? 25 A No. Page 93 1 Q Are you an outdoorsy person? 2 A No. 3 Q Are you a member of any, like, hiking clubs or 4 trail clubs? 5 A I hate the outdoors except for gardening. 6 Q Okay. Do you play any sports, whether it be 7 bowling, softball, anything like that? 8 A Nope. 9 Q How many -- other than the St. Maartan trip, how 10 many vacations have you taken since the incident? 11 A None. 12 Q That was the first one? 13 A Um-hum. 14 Q Is there any reason why this was the first one and 15 you hadn't done it sooner? 16 A Because Bob and I didn't have the money to do it. 17 Q Okay. Just let me look through my notes. I may 18 be finished. 19 A Sure. 20 (Discussion held off the record.) 21 BY MR. BAER: 22 Q Back on. Do you believe -- do you know what a 23 warning cone is, kind of the cone you might see for a spill 24 in a Kmart or a Wal-Mart or wherever? Have you seen those 25 before? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 90 - Page 93 PATRICIA WOLL FEBRUARY 9, 2009 Multi-PagerM Page 94 1 A I'll say yes. 2 Q Do you think that a warning cone of that sort would 3 have kept this incident from happening? 4 A Yes. 5 Q How so? What would a warning cone have done for 6 you in this incident? 7 A Like pay attention to this area. There's 8 something you need to be cautious of. 9 Q Okay. Okay. Let me look through some of the 10 records here. 11 A Sure. 12 Q Had you taken June 22nd, the day of the incident, 13 off before the incident occurred? 14 A No. 15 Q Because Siemens had provided a record indicating 16 that that was a sick day. I'm assuming after the incident 17 then you would have called and said -- 18 A Subsequently to, correct. Yeah, Robert called my 19 boss. 20 Q Do you remember telling Dr. Werner in October of 21 2006 that you were thrilled with your progress? 22 A Sure. I guess I did. Anything was better than 23 not being able to walk. 24 Q You've provided some receipts of payment that 25 you've made to Kim Omer after the incident. Did she have Page 95 1 to do things for you after the incident that were 2 extraordinary? 3 A I would say yes. 4 Q What did she do? 5 A She had to clean the entire house. And we'll give 6 you the square footage if you need it, but I don't like 7 cleaning it still. 8 Q Okay. Did Bob have to do more things around the 9 house after this incident? What did he do that you used to 10 do? 11 A Clean the cat boxes out, do the ironing, do the 12 wash, because I liked to. I did cooking. You know, I 13 don't mind being domestic. I did all the domestic chores, 14 and he had to take -- except for what Kim did, he had to do 15 everything else. 16 Q Are you back to doing the household chores? 17 A We do it together now, when they're done. 18 Q Is that because of your injury or because he's more 19 forward thinking now? 20 A No. He always was. No, he has to help me. I 21 can't do it all anymore. And I'm a very -- you know, 1 22 hate to admit that. 23 Q Are you able to cook now? 24 A (Nods head up and down.) 25 Q Yes? Page 96 I A Yes. Oh, I'm sorry. Yes. It wasn't the cooking. 2 It have the standing to cook. 3 Q Right. 4 A You have to understand that. 5 Q No, I understand. I understand. Earlier 1 6 mentioned that there was a reference to a record that I saw 7 -- that I had seen rather indicating -- it was from the 8 Orthopedic Institute of Pennsylvania, and it's from August 9 4th, 2006. 10 And it states an accident description, patient at 11 home inside walking, fell, injured left knee. I wanted to 12 show that to you. 13 A Yeah, I wanted to see that because I heard you say 14 that before. Where is this? 15 MR. SHERMAN: What's the date on that? 16 BY MR. BAER: 17 Q August 4th, 2006? 18 A Yeah, accident description. 19 Q Patient at home inside walking, fell, injured left 20 knee. Do you remember ever telling Dr. Werner or anybody 21 at his office that you fell inside at home? 22 A No. 23 Q Okay. 24 A Hum-um. 25 MR. SHERMAN: Could I see those records for one Page 97 1 second? 2 THE WITNESS: Looks like it may have been taken 3 out of context, but I never said it. 4 BY MR. BAER: 5 Q He might have just gotten it wrong. 6 A I did not say that. 7 Q Okay. 8 MR. SHERMAN: You can keep going. 9 BY MR. BAER: 10 Q Yeah. What things are you no longer able to do at 11 all because of your left knee condition that you used to be 12 able to do? 13 A In fact, I don't know. It may even have been in 14 the records. I told the doctor what I wanted to be able to 15 do, which was something that I had done as an exercise. I 16 wanted to be able to take all the flights of stairs and do 17 every other step, because that's what I used to be able to 18 do. That to me would have been full recovery, and I still 19 to this day cannot do that. 20 Q You mean skipping a step as you go up and down? 21 A Yeah. No, as I go up. 22 Q As you go up? 23 A Yeah. 24 Q That's something that you did by habit? 25 A Yeah. Page 94 -Page 47 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM COUNTY OF DAUPHIN 1 : ss Page 98 1 Q You can't do that anymore? 2 A Hum-um. 3 Q Is there anything else that you can no longer do 4 that you used to be able to do? 5 A I can't do strenuous gardening. I can't -- we live 6 in the mountains. I can't take walks in the mountains, 7 even if I hate nature. I can't even walk on the roads 8 because our roads are high. 9 I just feel that every -- I -- my job. I miss 1o my training job. I loved that job. And that I miss the 11 most out of anything, because I -- I've been with my 12 company for 21 years, and I really felt that that was 13 where I made the most impact in my world and theirs. 14 And I can't do that anymore, and it's very frustrating 15 to me. 16 Q Is there anything else? 17 A Any physical activity that I was able to have done 18 before, I'll still never be able to do that 100 percent. 19 I'm not an athlete, but gardening, walking, just simple 20 things that I just never knew. 21 MR. BAER: Okay. That's all I have. 22 THE WITNESS: Thank you, so much. 23 MR. BAER: Thanks. 24 MR. SHERMAN: Okay. Great. 25 (Whereupon, the deposition was concluded at 5:31 Page 99 I p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PATRICIA WOLL FFRRITARV U )nno Page 100 2 COMMONWEALTH OF PENNSYLVANIA : 3 I, Donna E. Gladwin, a Notary Public, authorized to 4 administer oaths within and for the Commonwealth of 5 Pennsylvania, do hereby certify that the foregoing is the 6 testimony of Patricia Woll. 7 1 further certify that before the taking of said 8 deposition, the witness was duly sworn; that the questions 9 and answers were taken down stenographically by the said 10 Reporter-Notary Public, and afterwards reduced to 11 typewriting under the direction of the said Reporter. 12 T further certify that I am not a relative or 13 employee or attorney or counsel to any of the parties, or a 14 relative or employee of such attorney or counsel, or 15 financially interested directly or indirectly in this 16 action. 17 I further certify that the said deposition 18 constitutes a true record of the testimony given by the said 19 witness. 20 IN WITNESS WHEREOF, I have hereunto set my hand 21 this 24th day of February, 2009. 22 23 Donna E. Gladwin, Reporter 24 Notary public 25 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 98 - Page 100 Exhibit it E" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, I PLAINTIFF V KMART CORPORATION, DEFENDANT NO. 08-CV-3384-CV CIVIL ACTION - LAW DEPOSITION OF: TODD VASH TAKEN BY: PLAINTIFF BEFORE: DONNA E. GLADWIN, REPORTER NOTARY PUBLIC DATE: FEBRUARY 9, 2009, 2:20 P.M. PLACE: COLGAN MARZZACCO, LLC 130 WEST CHURCH STREET DILLSBURG, PENNSYLVANIA APPEARANCES: COLGAN MARZZACCO, LLC BY: CHRISTOPHER J. MARZZACCO, ESQUIRE - AND - SOLOMON, SHERMAN & GABAY BY: DAVID SHERMAN, ESQUIRE FOR - PLAINTIFF GIBLEY AND McWILLIAMS, PC BY: FRANK W. BAER, ESQUIRE FOR - DEFENDANT ALSO PRESENT: PATRICIA WO 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 0 Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page TM TODD VASH 1PuWITARV 0 7nno 1 WITNESS 2 NAME EXAMINATION 3 TODD VASH 4 BY MR. SHERMAN 3 5 6 7 e 9 10 EXHIBITS 11 VASH DEPOSITION EXHIBIT NO. PRODUCED AND MARKED 12 1. PHOTOGRAPHS 25 13 2. PHOTOGRAPHS 25 14 3 KMART CUSTOMER INCIDENT INFORMATION 64 16 17 18 19 20 21 22 23 24 25 Page 4 I the first instruction is that with respect to our 2 communication, it must be verbal. Non-verbal communication 3 cannot be picked up on the record. 4 So typically we would participate in maybe shaking 5 of the heads and waving of the arms and that type of thing, 6 but it won't be effective for a deposition where we're 7 recording your responses to my questions, okay? 8 A I understand. 9 Q And I'm sure you were -- you consulted with your 10 very capable attorney who is seated to my left and your 11 right, but these instructions are crucial so that this 12 afternoon's deposition goes smoothly, okay? 13 A I understand. 14 Q If you don't understand a question for any reason, 15 either the way I phrase a word or the way I ask the 16 question, just let me know, and I'll make sure that 17 question's clear and understandable to you, okay? 18 A Okay. 19 Q I don't expect to be very long with you, but if you 20 need a break for any reason, it's a deposition, certainly 21 not an inquisition. Certainly let me know, and I'll make 22 that accommodation. 23 A Okay. 24 Q Again, if you have to provide me with an answer 25 that's an estimate as opposed to something that's actually a Page 2 Page 5 1 fact that you're aware of, just tell me, and I'll accept it 2 as an estimate if you need to do that, okay? 3 A Okay. 4 Q Are you ready to begin? 5 A Yes. 6 Q Are you under any kind of medical disability, 7 medication, or physical impairment that would impair your 8 ability to answer questions today? 9 A No. 10 Q And you've understood all the instructions I gave 11 you? 12 A Yes. 13 Q Would you give me your full name? 14 A Todd Vash. 15 Q What is your present address, Mr. Vash? 16 A 1128 Fernwood Avenue, Camp Hill. 17 Q With whom do you live at that address? 18 A My wife and my children. 19 Q What's your wife's name? 20 A Amy Vash. 21 Q And your date of birth? 22 A June 15th, 1969. 23 Q And just for identification purposes, would you 24 have a problem giving me your Social Security number? 25 A No. 189-64-4490. Page 3 I STIPULATION 2 It is hereby stipulated by and between counsel for 3 the respective parties that reading, signing, sealing, 4 certification and filing are hereby waived; and that all 5 objections except as to the form of the question are 6 reserved to the time of trial. 7 8 TODD VASH, called as a witness, being duly sworn, 9 testified as follows: 10 11 DIRECT EXAMINATION 12 BY MR. SHERMAN: 13 Q Incidentally, I just -- I introduced myself. I'm 14 David Sherman, and I represent, along with Mr. Marzzacco, 15 Pat Woll, as you know. I just wanted to thank you. I 16 know you came in last minute for us, and I do appreciate 17 that very much for efficiency purposes. 18 You understand that this is a deposition, and what 19 that basically means, it's a question and answer session. 20 A Okay. 21 Q I'm going to ask you questions and ask that you 22 provide verbal responses to those questions. You're 23 nodding your head. 24 A Yes, yes. 25 Q I want you to give -- I want you to understand -- Page t-Page 5 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FFRRIIARY 9. 2009 Multi-Page` Page 6 i Q Are you presently employed? 2 A Yes, I am. 3 Q Where? 4 A Kmart. 5 Q Which Kmart are you working at? 6 A Harrisburg, PA. 7 Q Would you give me the precise address of that in 8 Harri sburg? 9 A 5050 Jonestown Road. 10 Q And is that the address of the location where you 11 understand Mrs. Woll had her incident? 12 A No. 13 Q Do you have -- strike that. Do you have the 14 address of the location where you understood where Mrs. Wol 15 fell? 16 A Yes. It's 5600 Carlisle Pike. 17 Q At some -- at some point were you employed at the 18 Carli sle Pike address? 19 A Yes. 20 Q And why don't you tell me when you were first 21 empl oyed at Kmart? 22 A For Kmart was 1996. 23 Q Have you been working from that date up until the 24 present for Kmart? 25 A No. I worked for Kmart for two years, and then I Page 7 1 had left for some time and came back in 2005. 2 Q Why did you leave? 3 A I took a different career path. 4 Q What was that? 5 A Law enforcement. 6 Q What did you do? 7 A I was a federal police officer for Department of 8 Defense. 9 Q And you decided to go back into retail? 10 A Yes. 11 Q Were you -- did you leave that job for any other 12 reason? In other words, for discipline or any other kinds 13 of sanctions or problems? 14 A No. 15 Q Other than the other job in law enforcement had you 16 worked anywhere else in retail? 17 A No. 18 Q In the period of time from the time you first 19 worked at KmarL until the present time have you held any 20 supervisory or managerial positions? 21 A Just my position as loss prevention manager. 22 Q As which one? 23 A Loss prevention manager. 24 Q In that position would you describe generally what 25 it is you do? Page 8 1 A Basically we take care of the assets of the store 2 to theft, damage, customer associated accidents, anything 3 that would cause loss or waste. 4 Q Would it be fair to say that your position involves 5 issues of customer safety? 6 A Yes. 7 Q And would it be fair to say that in your position 8 and your experience for all these years working at Kmart 9 that customer safety is a high priority? 10 A Yes. 11 Q Would it be one of the highest priorities? 12 A Yes. 13 Q And, in fact, in the particular Kmart at Carlisle 14 that we're talking about, were there -- 15 A It's in Mechanicsburg. 16 Q I thought you said Carlisle. Did I mishear you? 17 A It's the Mechanicsburg Kmart that she got hurt at. 18 Q Which one are you saying? 19 A Mechanicsburg. 20 Q Mechanicsburg. I'm sorry. 21 MR. BAER: It may be located on Carlisle Pike. 22 BY MR. SHERMAN: 23 Q That's what must have confused me. I'm so sorry. 24 With regard to the Mechanicsburg Kmart, we'll call it that 25 if I need to, okay? Page 9 1 A Okay. 2 Q Would it be fair to say that there were particular 3 managers that had responsibility for customer safety back in 4 January of '07? 5 A I would have been one of them, as well as probably 6 the store manager. It's a management team thing all 7 together. 8 Q Now, I know you're not here as a corporate 9 designee, and your attorney explained that to me. But 10 because you're the only one here I'll try to go through a 11 little bit of the corporate structure with you if that's 12 okay? 13 A Sure. 14 Q And whatever you don't know you just tell me that, 15 and I'll accept that, and we'll wait for the corporate 16 designee. 17 A Okay. 18 Q At the Kmart back in Mechanicsburg, and again, 19 we're talking about January, '07 and that's because that's 20 the date of the incident. 21 MR. BAER: June, June of '06. 22 MR. SHERMAN: Was it June of '06? I'm so sorry if 23 I misspoke again. I apologize. 24 MR. BAER: Don't take my word for it. 25 Ms. woLL: June of 106. Page 6 - Page 9 HUGHES, ALMUGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TODD VASH FEBRUARY 9.2009 Page 10 Page 12 1 MR. SHERMAN: June of '06. 1 when they're shopping? 2 (Discussion held off the record.) 2 A Yes. 3 BY MR. SHERMAN: 3 Q And, in fact, would it be fair to say that -- 4 Q In June of '06 were you also in the position that 4 generally speaking, that Kmart expects that customers, in 5 you told me at Kmart? 5 order to price compare and compare quality and product, will 6 A Loss prevention manager, yes. 6 need to look at shelves while they're shopping? 7 Q And would the same responsibilities that you've 7 A Yes. 8 described apply in June of '06? 8 Q And would it be fair to say that that's one of the 9 A Yes, sir. 9 reasons that Kmart's aware that customer safety, and 10 Q Now, in June of '06 would you tell me a little bit 10 particularly tripping hazards, need to be avoided? 1 l about the managerial structure of Kmart in Mechanicsburg? 11 A Yes. 12 A Okay. At that time we have a store manager, and 12 Q And would it be fair to say that as a manager, 13 he would have two assistant managers that help him run the 13 along with the other managers, that you guys -- I say guys, 14 store. And I myself was a site manager. Those were all 14 just covering managers in general -- were given resources, 15 salaried managers. And then we have hourly managers, or 15 adequate resources to prevent tripping hazards? 16 hourly leads, which would be department heads also. 16 A Yes. 17 Q I counted five, generally speaking. Is that about 17 Q And what I mean by that, just to be more specific, 18 right? 18 is that certainly you had store employees that you could 19 A Yeah, usually, yes. 19 tell or instruct to move potential tripping hazards? 20 Q So there would have been five managers, and would 20 A We do, but I always feel like my part in loss 21 it be fair to say that there -- at least one of their 21 prevention I could use more help there. 22 highest priorities would have been customer safety? 22 Q Did you feel that way back in June of '06? 23 A Yes. 23 A Sure. We all feel that way, all the LPMS at that 24 Q Now, would you tell me why that would be the case 24 time. 25 having the knowledge that you do in loss prevention? 25 Q Could you be more specific as to how you felt that Page 11 Page 13 1 A Why what would be the case? 1 you needed potentially more help back at that time in 2 Q Why is customer service -- customer safety so 2 regards to -- I'm speaking specifically to tripping hazards, 3 important? 3 not to servicing customers or stocking shelves, but that 4 A Well, because you want to provide somebody a place 4 issue of tripping hazards? 5 to come shop, safe and free environment, without getting 5 A Nothing in regards to that specifically. I'm 6 hurt, you know, to just keep them coming back and just their 6 talking in general as -- as a department itself. 7 well being. 7 Q Did you feel that there was an insufficient amount 8 Q Generally speaking would it be fair to say that 8 of employees to take care of all of the responsibilities 9 Kmart is aware -- and when I say Kmart I know you don't 9 that you had back at that time in June of '06? 10 speak for Kmart all the time in every situation, but 10 A In loss prevention, yes, as a whole department. 11 generally speaking in your experience is Kmart aware that 11 Q Was there any one particular person or sets of 12 there's potential tripping hazards in stores of that nature? 12 people that were responsible for tripping hazards? 13 A Yes. 13 A I was responsible for the tripping hazards, for 14 Q And would it be fair to say that tripping hazards 14 overseeing and make sure follow up was done. 15 also include displays that are displaced on floors? 15 Q Would that be the case back in June of '06? 16 A Yes. 16 A Sure, yes. 17 Q And just while we're speaking about those type of 17 Q Was there any other managerial person that had that 18 issues, would it be fair to say that generally speaking 18 responsibility? 19 Kmart displays product along shelving in the stores? 19 A Basically I said all the managers involved, but 20 A Yes. 20 specifically safety falls under loss prevention. 21 Q And would it be fair to say that the ways that 21 Q So you were ultimately the person where the buck 22 Kmart sells its product is that customers are -- strike 22 stops now as they say? 23 that. 23 A Sort of. The store coach has the final say over 24 Is it fair to say that, generally speaking, Kmart's 24 everything, the store manager. So basically I just -- we 25 aware that customers will be looking at product displays 25 report with him, follow up with him making sure that Page 10 -Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FEBRUARY 9, 2009 Multi-Page` Page 14 1 everything's done like it's supposed to be done. 2 Q But in doing your job, because I'm sure you had a 3 lot of responsibilities, you couldn't be the only one 4 inspecting the floors, you yourself, correct? 5 A Correct, correct. 6 Q So you'd have to reply on other people? 7 A Yes. 8 Q And did you have to do that back in June of '06? 9 A Yes. 10 Q Was it economically possible to check on all of the 11 other employees -- again, I'm focusing on only tripping 12 hazards. Was it your job to make sure that every one of 13 these employees that you had was checking on tripping 14 hazards? 15 A To follow up with them. 16 Q Could you do that? 17 A Sure. 18 Q Were you able to do that back at that time? 19 A Yes. 20 Q If you -- strike that. Did you have to rely upon 21 the ability of other employees to do the inspections? 22 A Yes. 23 Q So if the other employees, for example, didn't do 24 an inspection but told you they did, you wouldn't have any 25 way to know that? Is that a fair statement? Page 15 1 A Yes. So I could follow up on some things, but 2 some things I wasn't able to follow up on. 3 Q Would it have been -- strike that. Would you have 4 been able to follow up -- for example, since we're talking 5 about tripping hazards -- on each of the employees checking 6 or inspecting the floors for tripping hazards? 7 A I could follow up -- I could ask them a question. 8 I could ask them, did you walk the aisle and pick up 9 anything on the floor that may be laying around? If they 10 said yes and nothing was there, then they picked it up. 11 Q But you didn't physically do the inspections? 12 A I would, yes. 13 Q You did do them? 14 A Yes. 15 Q On a regular basis? 16 A Monthly we had safety inspections. 17 Q Do you know if you inspected the area where you 18 know now Ms. Woll fell from all the paperwork? 19 A I wouldn't really inspect that area. I'm looking 20 for certain things. 21 Q So would you rely upon -- strike that. Was there 22 an inspection procedure, formal inspection procedure, in 23 affect back at that time? 24 A Yes. 25 Q What was that inspection procedure? Page 161 1 A It was a monthly safety -- safety check of the 2 store. 3 Q And that was -- happened how often? 4 A Once a month. 5 Q Now, would you display products and use pallets and 6 different kinds of displays more than once a month? 7 A Sure, yes. 8 Q And wouldn't that be -- again, I'm not trying to 9 put words in your mouth. I hope you don't think that. 10 A No. 11 Q But wouldn't you be, given the nature of the 12 business, stocking, reshelving redisplaying on a daily 13 basis? 14 A Yes. 15 Q So how would you expect an inspection to be 16 effective, let's say, on June -- 17 MR. MARZZACCO: June 23rd, 22nd. 18 BY MR. SHERMAN: 19 Q On June 22nd, '06 if you last inspected, let's say, 20 on June 1 st, '06 for the monthly inspection? 21 A Well, because part of that would be my observations 22 during that time period, walking the floor. You know, did 23 you observe any of this activity? Yes, no. Any of that 24 activity? Yes, no. That kind of thing. So then I would 25 report then on the report what I have observed. Page 17 1 Q Okay. Would it be fair to say that you didn't 2 have a daily or weekly inspection procedure back at that 3 time? 4 A Yes. 5 Q You didn't? 6 A No. 7 Q Okay. Has that changed since then? 8 A Yes. It's -- no, it's the same thing. 9 Q Do you think that's an adequate type of inspection l o given your position at Kmart at the present time? 11 MR. BAER: Objection. 12 BY MR. SHERMAN: 13 Q You can still answer unless counsel tells you not 14 to. Of course you'll listen to him. 15 Do you think that's an adequate inspection 16 procedure back in June of '06? 17 A I'll listen to his objection. 18 MR. BAER: You can answer it if you want. I mean 19 20 MR. SHERMAN: NO. 21 MR. BAER: You can answer the question. I'm 22 objecting. I'm preserving an objection for the record. 23 THE WITNESS: I think it was adequate. 24 BY MR. SHERMAN: 25 Q I don't mean to lose you. Sometimes I move fast Page 14 - Page 17 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 Multi-Page TM TODD VASH FFRRTIARV U lnno Page 18 1 just to move it along. You stop me. I don't want 2 anything that you don't feel is being fair in terms of 3 giving me an answer. 4 You've told me that there was once a month 5 inspections for displays and shelving and that type of 6 thing, am I correct? 7 A Yes. 8 Q Okay. And I had asked you if that was adequate, 9 and you gave me your answer. And now I'm asking you do you 10 believe back in June of '06 that the nature of that 11 inspection that was in effect for Kmart was sufficient? 12 MR. BAER: Sufficient for what though? 13 BY MR. SHERMAN: 14 Q Sufficient to give proper safety concerns to 15 customers? 16 A Well, that monthly inspection is more like a 17 reporting. They want you to report on what activities 18 happen throughout the month. There's certainly things 19 involved with that reporting. One of them would be talking 20 with associates, relating to them ways to prevent injuries 21 and that kind of thing. 22 Again, my observations I make during the month, 23 that's what was all involved in that report. So 24 inspections could be made, I mean, at any time. I could 25 walk down an aisle and just visually see something out of Page 19 1 place and correct it immediately. 2 Q So as I understand your testimony, there were 3 formal inspections once a month, but you did basically 4 ongoing inspections? 5 A Yes. 6 Q I -- I kind of understood that. I just needed to 7 hear it from you for the record. 8 A Okay. 9 Q Would it be fair to say that the informal 10 inspections weren't put in any kind of written 11 documentation? In other words, there wasn't a store sweep 12 or a log that existed? 13 A Exactly, yes. That's fair to say. 14 Q It was more the employees walk around the area and 15 if they see something that's improper or dangerous or 16 defective, they should take care of it? 17 A Yes. If it's something major like a major spill or 18 something happened, they would notify somebody. Let us 19 know, hey, look this was out of place. This was wrong, you 20 know. 121 Q And the same system's in effect today? 22 A Yes. 23 Q So basically bottom line, would it be fair to say 24 that your day to day inspections for displays, because we're 25 not talking about a store spill here or something like that. Page 201 1 A Exactly. 2 Q For displays would involve just generally hoping 3 somebody would see a potential danger or tripping hazard? 4 Is that a fair statement? 5 A No. There's associates that work those areas and 6 those departments, and during the working progress during 7 the day they would see something out of place, and they 8 would take care of it themselves right then and there or 9 bring it to someone's attention. 10 Q But you have to rely upon the particular employee 11 to bring it to your attention? 12 A Yes. 13 Q And that's the case because there weren't any 14 formally where you actually were required to log and 15 document whether this particular display is safe? 16 A At the end of the month there would be. There 17 would actually be a question on the report that would ask 18 are there any shelving units that look to be bent or 19 improper for merchandise? So that monthly reporting then I 20 would document that there. 21 Q Okay. Do you know Ms. Woll by the way? 22 A I know who she is from the fall. 23 MS. wOLL: From that day. I look different. 24 Pardon me. 25 BY MR. SHERMAN: Page 21 1 Q Do you know Ms. Woll from anything else other than 2 that day? 3 A No. 4 Q Do you know anything about her physical condition 5 or her injuries from this incident other than what you've 6 seen in the incident report? 7 A No, sir. 8 Q Have you spoken to anyone except for counsel about 9 any matters regarding this incident? 10 A Well, I reported it to my manager when it happened. 11 Q And we'll get into that because I saw that there's 12 an incident report. 13 A Yes. 14 Q And you authored that incident report? 15 A Yes, sir. 16 Q So we'll go into that in a few moments. But other 17 than the incident report have you spoken to anyone else 18 about this incident? 19 A No, sir. 20 Q By the way, on the date of this incident, June of 21 '06, would you know how many employees would have been 22 working around the time that Ms. Woll fell? 23 A Well, I don't recall. Myself was there. I mean, 24 at the actual spot or in the whole entire store? 25 Q Not at the actual spot. We'll get to that Page 18 -Page 21 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FEBRUARY 9, 2009 Multi-Page' Page 22 1 perhaps. But generally in the store how many employees 2 would have been working? 3 A It's hard to say. It was around 9:00 in the 4 morning, so it would have been everybody running registers. 5 Maybe approximately 20. 6 Q And did you consider your staff to be competent at 7 that time? 8 A Yes. 9 Q Did you have some that weren't competent? 10 A Not that I know of. 11 Q Generally speaking, and again I understand that 12 you're not a corporate designee, do you know how many Kmarts 13 there are in the Harrisburg area? 14 A In the Harrisburg area it's just -- well, myself 15 and then Enola and Mechanicsburg. So that's just three in 16 that general location. 17 Q Three just in the Harrisburg simple driving area? 18 A Yes, um-hum. 19 Q And that means there would be about 60 total 20 employees, very generally speaking? 21 A Well, that's usually a store -- are you talking 22 about Kmart employees or loss prevention employees? 23 Q Let's just talk about Kmart employees, the kinds of 24 employees that would have been on the premises at the time 25 walking around, stocking, taking care of customer safety, Page 23 1 taking care of customers? 2 A Okay. You asked about three different Kmarts 3 though. Just -- 4 Q Your store you told me 20? 5 A Yes. 6 Q And you stand by that answer? 7 A Approximately 20. 8 Q I appreciate that you're even trying to help me 9 without being a corporate designee, but would you say that 10 that's the same for the other two stores? 11 A Probably not, no. Because there's a smaller -- 12 depends on the size of the store. 13 Q So it wouldn't be accurate to say there's a total 14 of let's say 20, 40, 60 employees for Kmart for these three 15 stores? 16 A At that particular time? 17 Q Right. 18 A At that moment, like in those hours of the day? 19 Q Right. 20 A Right, correct. 21 Q That would be accurate? 22 A It would not be accurate. 23 Q Okay. But there's more than 50 total employees 24 for these three stores? 25 A See, again, you mean -- because my store itself has Page 24 1 70 employees that work there. 2 Q Don't worry about it. We'll just talk about your 3 store then. So how many total employees? 4 A Approximately 70, 72. 5 Q Is there a safety division of any type at your 6 store back at that time? 7 A Yes. 8 Q And what would that safety division be? 9 A It's basically just the safety team members. And 10 we -- like I said, we meet once a month, and we discuss 11 safety issues at the store. 12 Q Anything else? 13 A No. 14 Q Is there any type of formal evaluations, other than 15 what you've told me so you don't have to repeat, that talk 16 about how displays and pallets and those type of things 17 should be put in the store? 18 A They do have -- managers, they've got a layout, and 19 it has to be layed out specifically according to the layout 20 that they get. 21 Q Did that happen in this case? 22 A I'm going to say yes. 23 Q Okay. Let's -- that will be a nice segue to lead 24 into the actual pictures. 25 A Okay. Page 25 1 MR. SHERMAN: So what I'm going to do is mark a 2 couple of pictures, and I'm going to mark -- why don't we 3 start with -- off the record. 4 (Discussion held off the record.) 5 MR. SHERMAN: Why don't we start with this being 6 Vash 1? And why don't we label this -- and we'll put this 7 here for you. And then this is Vash 2. How's that? 8 (Photographs were produced and marked as Vash 9 Deposition Exhibit Nos. 1 and 2.) 10 BY MR. SHERMAN: 11 Q Can you take a look at Vash I? 12 MR. BAER: You can take a look at it. I've seen 13 it. 14 THE WITNESS: Oh, all right. 15 BY MR. SHERMAN: 16 Q Have you seen Vash 1 before? 17 A Hold on. Not in that angle. 18 Q Would it be fair to say that Vash 1 generally shows 19 the area where you understand Mrs. Woll fell? 20 A Generally. 21 Q And could you identify any particular area on Vash 22 1 in terms of where you believe she fell? 23 A As far as area you mean? 24 Q Specific area? 25 A Like department area? Fage 22 - Fage 25 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 26 1 Q General circle on the floor where she ended up, 2 anything that you can use in terms of that picture to point 3 to where she fell. 4 A Well, as a reference point I can say from this 5 photograph her feet would be at the top -- top part of the 6 photograph at the corner right by the box here, and then the 7 pallet sort of head was facing the opposite direction. 8 Q Okay. We're going to be much more specific 9 because the court reporter can't take down those kind of 10 directions, but you're doing great. I didn't tell you to 11 do anything other than a point of reference, and I 12 appreciate that. Did you see the incident? 13 A No. 14 Q So you don't know from your own personal knowledge 15 how the incident occurred from your own seeing it? 16 A No, I do not. 17 Q Do you know of anyone that exists that actually saw 18 the incident? 19 A No. 20 Q So you don't have any facts or evidence to refute 21 anything that Ms. Woll might say about how the incident 22 occurred from personal observations; is that a fair 23 statement? 24 A Yes. 25 Q Okay. Now, you were kind enough to look at the Page 27 1 photo and show me generally where you believe the incident 2 occurred. If we try to describe that together, tell me if 3 I'm accurate. 4 Do you see in the portion to the left side of the 5 photograph where there's a box labeled 849 with other 6 numbers? 7 A Yes. 8 Q Would it be fair to say that somewhere to the right 9 of that -- as you're looking at the numbers, to the left 10 that, that's where you believe she fell? 1 l A Okay. Numbers to the left? 12 Q See how the numbers are to the left as you look at 13 the picture? 14 A Yes. 15 Q So that way we'll have a point of reference. And 16 Ms. Woll would have fell to the right of those numbers, 17 correct? 18 A Don't know. I'm not sure. 19 Q So you don't know exactly where she would have 20 fallen? 21 A She told me what happened was she caught her foot, 22 and that's about all I can go by. 23 Q Okay. Can you point on that photograph where she 24 told you she fell? 25 A All right. You can't see because it's the Page 28 1 opposite direction, but it was right here in this corner. 2 (Indicating.) 3 Q Okay. Do you see anywhere on Vash 1 to indicate 4 the condition that caused her to fall as she described it to 5 you? 6 A No. 7 Q Okay. So you don't see any wood protruding in 8 Vash 1? You don't see any lower boards underneath the 9 numbers that are protruding? 10 A I don't see -- 11 MR. BAER: Objection to the characterization, but 12 go ahead and answer. 13 THE wITNESS: Don't see protruding. I see it's 14 separated a little bit. 15 BY MR. SHERMAN: 16 Q Do you see anything protruding? You know what I 17 mean by protruding? 18 A Sticking out, yeah. It's hard to tell depth 19 perception with this shot. 20 Q I appreciate that. I think you're right. Do you 21 see anything, even with this shot because that's all we have 22 in front of us to show, any wood sticking out from the 23 display? 24 A I can't see wood sticking out from the display from 25 this shot. Page 29 1 Q Okay. You would agree that at least Ms. Woll 2 explained that she fell somewhere around that corner that 3 we've identified next to those numbers? 4 A Yes. 5 Q Of that pallet or display? 6 A Yes. 7 Q Okay. Let's look at Vash 2 and ask if you can 8 identify that. 9 A Yes. 10 MR. SHERMAN: Okay. Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Looking at Vash 2, would you agree that that 14 generally shows the same condition but a much broader view? 15 A Yes. 16 Q And could you point again to Vash 2, and then we'll 17 try to describe it? 18 A This is Vash 2. (Indicating.) 19 Q And that would be the top picture? 20 A Well, you labeled the whole page Vash 2. 21 Q Right. There's two pictures, one on top and one 22 on the bottom. Could you point to either of the pictures 23 that best shows the view of the more precise area of the 24 floor in reference to the display where you believe she fell 25 from what she told you? Page 2b -Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH Multi-PagerM FEBRUARY 9, 2009 Page 30 Page 32 1 A Well, they kind of both do. The bottom picture 1 it's going to be somewhere in this area there. 2 does right here, and so does this area right here. 2 (Indicating.) 3 (Indicating.) 3 BY MR. SHERMAN: 4 Q Okay. So you've indicated with your finger in the 4 Q Okay. So she was basically lying across the 5 area of the two boxes towards the middle of both pictures is 5 bottom of the boxes in the picture? 6 the area basically where she fell? 6 A Right, sort of at an angle like to the right. 7 A Yes. 7 Q Understood. Now, just general questions about the 8 Q Okay. Generally speaking, since we have now all 8 display. Would it be fair to say that the area between -- 9 of the pictures that I've marked, could you show me on the 9 in the lower area between the boxes by the F and the boxes 10 bottom picture where the middle portion of the boxes are, do 10 to the right of that that are characterized or designated as 11 you see that area? 1 I Charmin, that that was an aisleway? 12 A Talking about right in the center of the picture 12 A The boxes were placed in an aisleway, yes. I mean, 13 itself? 13 the pallets were placed in an aisleway, yes. 14 Q Right. The area of the boxes there's a set of 14 Q So these pallets were actually in an aisleway? 15 boxes that are towards the middle of the lower picture. 15 A Yes, sir. 16 A Okay. 16 Q And would you agree with me that in your experience 17 Q And that's the area where you believe she fell? 17 customers walk through that aisleway and have to go through 18 MR. BAER: You mean this general area here? 18 that aisleway to get to particular areas of the Kmart? 19 BY MR. SHERMAN: 19 A Yes. 20 Q Correct, the general area there. 20 Q Now, can you tell me why there -- these pallets 21 A I believe she fell -- when I saw her she was in 21 were positioned -- strike that. 22 front of that. 22 Were these pallets that we've talked about, both 23 Q In front of that middle area of boxes? 23 the Charmin pallets and the ones closer to where she fell, 24 A Yes. 24 were they pallets that were situated there on a regular 25 Q See, I'm trying to avoid having you draw circles 25 basis, or were they there on a temporary basis? Page 31 Page 33 1 right now. And we can if we need to, if your counsel 1 A Temporary basis. 2 doesn't mind. 2 Q So they wouldn't normally be there? 3 MR. BAER: No, I don't mind. 3 A Depending on the time of day. 4 BY MR. SHERMAN: 4 Q And what do you call a temporary basis? In other 5 Q Okay. Then why don't you take a pen, just take a 5 words, would they be there once a week, once a day, once a 6 pen and draw the boxes that were closest to where you 6 month? 7 understood Ms. Woll fell? 7 A Depends on what they're putting out on the floor to 8 A Well, when I got there she was already on the 8 replenish the shelving with. 9 ground. 9 Q So they're there in a state of transition from 10 Q Right. 10 taking those boxes before they end up on the shelf, is that 11 A So her feet would be in this general area here. 11 basically an accurate statement? 12 (Indicating.) 12 A Yes. 13 Q Why don't you put an F where her feet were? 13 Q Would you agree with me that they're basically 14 A Approximately. 14 blocking the aisleway? 15 Q You can put an F. Is that working? 15 A No. 16 A It's -- yeah, it's going. (Drawing.) 16 Q Would you agree that they're blocking a portion of 17 Q Okay. That's where her feet her? 17 the aisleway? 18 A Approximately. 18 A Yes, because they're taking up space that's there. 19 Q You told me where her head was. Why don't you put 19 Q Did you have any alternative back then in terms of 20 an H for her head? 20 being able to place those types of boxes in that transition 21 A And -- 21 stage that you told me about to stock the shelf? 22 Q And you were going to put an H where her head was? 22 A No. 23 A I'm trying to look at this picture. 23 Q Was there any other place you could have placed 24 MR. BAER: Try to use the same picture. 24 them? For example, could you put them in storage until 25 THE WITNESS: I'm just trying to reference it. So 25 they were ready to be shelved? Page 30 - Page 33 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page"` TODD VASH JNEBKUAKY y, ZUU9 Page 34 1 A No, because they came out of the receiving area to 2 be put on the floor to be replenished. 3 MR. SHERMAN: Do you have any kind of warnings -- 4 off the record. 5 (Discussion held off the record.) 6 BY MR. SHERMAN: 7 Q Do you general -- does Kmart generally -- strike 8 that. 9 Is Kmart generally equipped with cones or some type 10 of mechanisms, equipment, to divert people's paths if they 11 need to? 12 A Yes. 13 Q Are they displayed in those pictures? 14 A No. 15 Q Okay. How come? 16 A Because those cones are generally used for wet 17 floor surfaces and spills. 18 Q Okay. Were customers expected to use the aisleway 19 that we've designated, for example, between the Charmin 20 display and the area in front of where she fell? 21 A They may. 22 Q Actually I should say the front -- behind where she 23 fell? 24 A Correct. 25 Q Were those -- is the aisleway cut, any portion of Page 3 5 1 it? And what I mean by that, is it less than it normally 2 would be if you didn't have these temporary pallets there? 3 A I'm going to say the pallets do take up space in 4 the aisleway, but they place them enough so the customers 5 can still get around them. 6 Q Is there areas right around the -- those displays 7 where customers would be looking at shelves? And I'll tell 8 you why I say that is because you're going to hear from Ms. 9 Woll in a few moments that she was looking for some 10 houseware products on the shelves. Would that be accurate 11 in terms of what was displayed in the area? 12 MR. BAER: What? 13 MR. SHERMAN: I'll rephrase that question. Off 14 the record. 15 (Discussion held off the record.) 16 BY MR. SHERMAN: 17 Q Ms. Woll is going to testify to counsel in a few 18 moments that she was looking at certain kinds of housewares, 19 laundry baskets, I believe. Is that something that was 20 displayed in that area back at that time? 21 A Generally it would be -- would have been behind 22 her. So where she was walking -- heading was more towards 23 the pets department, which is behind the housewares. 24 Q Generally -- we don't have an exact scan, I don't 25 see in any of the pictures laundry baskets, but generally Page 36 1 speaking laundry baskets were positioned in that area around 2 the boxes? 3 A Maybe a few aisles over. I'm not precisely sure 4 which aisle it ran in right in the area here, but they were 5 behind -- behind where she was heading. 6 Q Pair enough. But the bottom line is you have no 7 disagreement with me that there was displays that would -- 8 if a customer like Ms. Woll was looking at, she'd have to 9 look up and away for certain kinds of product in the area 10 right around where those boxes are? 11 MR. BAER: Objection. Go ahead and answer. 12 THE WITNESS: Okay. If she was heading towards 13 the pets department, yes. If she was looking at the Bounty 14 paper towels in front of her, because they were up on a 15 shelf higher, then yes. 16 BY MR. SHERMAN: 17 Q Okay. And you're not sure about where exactly the 18 laundry baskets were displayed, am I hearing that correct? 19 A Correct. Well, I know they were not in front. 20 They were in the back like behind her where she was facing 21 and off either to the -- I'm thinking to the right. But 22 I'm not positive on the right or left. 23 Q Okay. As an experienced manager that safety is a 24 priority for, do you consider the displays that are shown in 25 Vash 2, both the area where Charmin is and the other one Page 37 1 where -- nearer to where she fell, to be potential tripping 2 hazards? 3 MR. BAER: Objection. Go ahead and answer. 4 THE WITNESS: In this picture, no, I don't, no. 5 BY MR. SHERMAN: 6 Q You don't see any potential tripping hazard? 7 A Not really, no. 8 Q Okay. And when you say not really, again, I'm not 9 trying to get you to say something you don't believe. 10 A Well, because obviously she did trip on something, 11 but I don't see -- other boxes are on the pallet. They're 12 at such a height where you can see what's on the pallet. 13 So that's, you know, why -- and there's nothing on 14 the floor to which she would have actually tripped her feet 15 on. No liquids, no debris from the pallets themselves are 16 on the floor. 17 Q Do you know from all that you've learned after, I 18 know you didn't see it, what exactly caused her to fall, at 19 least from what she says? 20 A Other than what she told me, no. 21 Q What do you know from what she told you? 22 A That she was walking -- this picture was taken in 23 the direction that she was walking from what she gave me in 24 her statement. 25 Q Right. Yage s4 - rage -i HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH TMlQDTTA112V 0 7/N19 Multi-Pager` Page 38 1 A Was walking between here and her foot caught on to 2 the pallet here right in the corner, and her foot got caught 3 and then she tripped and fell over. 4 Q Now, you took the picture that we're calling Vash 5 2, right? 6 A Yes. 7 Q That's the reason I wanted to try to use it. Now, 8 you also looked at Vash 1, and you told me that you didn't 9 see -- strike that. 10 Could you see in Vash 1 any wood protruding at the 11 bottom of the pallet? 12 A No. 13 Q So you don't see any protruding wood whatsoever in 14 either Vash 1 or Vash 2? 15 A No protruding wood. 16 Q Okay. Do you see any wood that would be sticking 17 out beyond the point of where the box is displayed on the 18 display? 19 A In Vash 2 in the bottom, the Channin pallet, I do 20 see that, the wood sticking out from the box. 21 Q Do you think that's a proper display in terms of 22 customer safety? I don't mean in terms of stacking for 23 efficiency for the shelving. 24 A No, that box could be moved over to the edge a 25 little more. Page 39 1 Q And why would that be? 2 A Again, to not have that wood sticking out. It 3 would be more symmetrical or more straight, even edges. 4 Q Now, I'm going to tell you I don't believe she fell 5 in that particular area, but do you consider that to be a 6 tripping hazard? 7 MR. BAER: Objection. Go ahead and answer. 8 THE WITNESS: Potentially. 9 BY MR. SHERMAN: 10 Q And that's because the box would cover the I 1 particular area that's protruding or sticking out as we've 12 said? 13 MR. BAER: Or couldn't -- objection. But go ahead 14 and answer. 15 MR. SHERMAN: I'll rephrase. It is confusing. 16 Let me rephrase. 17 MR. BAER: Yeah, please. 18 BY MR. SHERMAN: 19 Q If you think it is, it probably is. Why -- would 20 you call that particular area at the bottom of Vash 2 of the 21 display on the Charmin side of the shelf, would you call 22 that a potential tripping hazard? 23 A Potentially. 24 Q And why would you call it that? 25 A Just because the boxes aren't -- aren't even with Page 40 I the pallet. If they were even with the pallet, it might 2 give it more of a solid shape. 3 Q And would that be something that, if you saw as a 4 conscientious manager, you would cure and correct? 5 A Now that you bring it to my attention, I wasn't 6 thinking that at the time, but yes, I would go fix that. 7 Q As -- because it's a potential tripping hazard? 8 A Yes, sir. 9 Q Now, you don't know -- when did you take this 10 picture? 11 A Right after the incident -- she left the store. 12 And probably maybe five, ten minutes after she left I took 13 that picture. 14 Q Okay. Do you know from your own personal 15 knowledge, again, whether on the left side -- I guess it's 16 the Puffs side? 17 A That's Puffs, yeah. 18 Q Okay. Do you know on the Puffs side whether -- 19 strike that. 20 MR. BAER: To orient you, I don't know if you're -- 21 BY MR. SHERMAN: 22 Q I may be wrong. Is this box this box? 23 A Yes. This -- 24 MR. SHERMAN: Is that what you're saying? We're 25 off the record just to clarify. Page 41 1 (Discussion held off the record.) 2 MR. BAER: Just so you know, Dave, this corner here 3 is this over here. It might not be important. You might 4 -- I just don't want you to think this corner is this 5 corner. (Indicating.) 6 BY MR. SHERMAN: 7 Q No, I think you're right. I think you're right. 8 That's why I was trying to stay away from that picture for 9 that reason. 10 Mr. Vash, with regard to the precise positioning of 11 the area closer to where her foot is designated in Vash 2, 12 would it be fair to say that you can't tell us from your own 13 personal knowledge how close that box was to the edge of the 14 pallet? 15 A Are you talking about the Puffs pallet? 16 Q Yes. 17 A I can give an estimate, but no, I can't precisely 18 tell you how close that box is. 19 Q Well, you didn't take a picture, a close up, of 20 that particular area is what I'm getting at? 21 A Whatever I have here is, I believe, what I've 22 taken. I don't remember taking that picture right there. 23 Q You don't know if that box was moved from the time 24 that she fell until the time that you took your photograph? 25 A I didn't move it. Page 38 -Page 41 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 42 1 Q But you don't know if it was moved is what I'm 2 saying? 3 A No, I don't. 4 Q You don't know if another customer or employee or 5 if in the movement of the impact itself that that box moved 6 over? 7 A No, I do not. 8 Q Now, in Vash 2 and Vash 1, just the last time 9 because I know I asked you this a few times, do you see any 10 wood protruding from the area where the box was? I 1 A Again, I don't see it protruding, no. 12 Q Do you see anything sticking out in terms of wood 13 from the point of where the box would be stacked or 14 positioned on the pallet? 15 A No. 16 Q Do you consider it to be safe practice in terms of 17 the background that you have to have a pallet positioned as 18 is shown in Vash 1 and 2? 19 A I don't see a problem with that, no. 20 Q I'm going to ask you to take a look at your 21 incident report, which I think you have a copy of in front 22 of you. 23 A Yes. 24 Q Am I correct? 25 A Yes, I do. Page 43 1 Q Good. All right. Did you complete this incident 2 report? 3 A Yes, I did. 4 Q And would it be fair to say that part of your 5 responsibility is to do it in a conscientious and accurate 6 way? 7 A Yes, sir. 8 Q And you're trained specifically to do that? 9 A Yes, sir. 10 Q And you try to be as complete and accurate as I1 possible? 12 A Yes, sir. 13 Q Now, let's go through this for a moment. Was this 14 completed the day of the incident? 15 A Yes, it was. 16 Q And is the writing on the first page of the 17 incident report your writing? 18 A The top part is with her name. 19 MR. BAER: You're not on the same page, Dave. The 20 first page is to be completed by customer. 21 BY MR. SHERMAN: 22 Q Good. Just hold up your first page so we're on 23 the same page. It begins Kmart incident information? 24 A Yes. 25 Q Okay. I was on Kmart incident investigation. So Page 44 1 Kmart customer incident is the first page? 2 A Yes. 3 Q Now, the obvious section says -- or is instructed 4 as completed by customer, correct? 5 A Yes. 6 Q And that would have been Ms. Woll? 7 A She was the customer, yes, she was. 8 Q Now, the description of the incident, would that 9 have been by you or her? 10 A That would have been by her, and -- well, you mean I 1 the writing or the actual verbal part of it? 12 Q The verbal part of it? 13 A Washers. 14 Q And the writing? 15 A Part of it was mine. She had an injury to her 16 wrist, I remember, and she couldn't write I think is what it 17 was. 18 Q So you helped her? 19 A I -- the very first part where it says midway 20 between housewares and pantry is my part up until the part 21 where it says what happened I filled in because that was 22 just basically general information. The part that says 23 what happened, I did not write that, no. 24 Q Okay. The actual narrative that begins came out 25 of kitchen accessories? Page 451 1 A Yes, sir. 2 Q Is that Ms. Woll's writing? 3 A I don't believe so. I don't recall. She had a 4 friend there, I think, helped her write it because I didn't 5 want to do it for her. 6 Q But it's not your writing? 7 A No, sir. 8 Q So we have to ask Ms. Woll about any particulars 9 regarding that? 10 A Yes. 11 Q Then the inspection section would be something that 12 she wouldn't know about, correct? 13 A Probably not, no. 14 Q And I'm on the next page, and I'm calling it the 15 next page. It says full name, Todd Vash. Let's use that 16 as the next page. What do you have as the next page? 17 A The next page on the report is the customer 18 incident investigation. 19 Q Good. We'll go there. That would be the second 20 page? 21 A Yes, sir. 22 Q Okay. Let's use that. Now, by the way, in the 23 description that Ms. Woll gave you it doesn't indicate that 24 she contributed to her own accident in any way? 25 A No. Page 42 - Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH Multi-Page TM FEBRUARY 9, 2009 Page 46 Page 48 1 Q And it doesn't indicate that she was careless or 1 Q And they want that in detailed form? 2 reckless in any way? 2 A As best as possible, yes. 3 A No. 3 Q Any important things that you observed you would 4 Q And it doesn't indicate that she wasn't looking? 4 have reported at that time? 5 A No. 5 A Yes. 6 Q Okay. Now, it says to be completed by loss 6 Q Anything that you felt that would show that the 7 prevention, which would be you? 7 customer, for example, was responsible or that she was 8 A Yes, sir. 8 liable as opposed to the store you would certainly report at 9 Q And you indicated that you -- is this your writing? 9 that time? 10 A Yes, sir. 10 A Basically just the facts as I see it. 11 Q Strike that whole thing. So I'm clear on the 11 Q Okay. But if you felt that there was a fact that 12 question. I'm going to get there. Strike that whole 12 supported that the store wasn't responsible, you would put 13 question because I overtalked on him. I talked over him. 13 that in this notation? 14 On the incident investigation section where it says 14 A If I felt it was not legitimate, I would put that 15 nature of injury, do you see that section? 15 in there, yes. 16 A Yes, I do. 16 Q Okay. And it says, it appears as if customer -- it 17 Q And it says soreness? 17 appears as if customer caught her right foot on the corner 18 A Soreness. 18 of a pallet stacked with boxed merchandise, tissue paper and 19 Q And then it says underneath that, right hand, 19 towels in parenthesis, while walking from the kitchen 20 wrist, right thigh, right calf, and ankle? 20 accessory aisle to the pets aisle. Did I read that right? 21 A Yes. 21 A Yes. 22 Q So would it be fair to say that even you 22 Q And would you agree with me that that's exactly 23 acknowledged at that time that all of those parts of her 23 what she reported to you? 24 body appeared to suffer some injury? 24 A From what I can recall. I don't know if those 25 MR. BAER: Objection. You can answer. He's just 25 were the exact words that she used. Page 47 Page 49 1 reporting what she's telling him. He's not a medical 1 Q I got you. Fair enough. Would it be, generally 2 doctor. 2 speaking, accurate to say that she reported to you what's 3 BY MR. SHERMAN: 3 contained there? 4 Q I think it's fair grounds to ask him. 4 A Yes. 5 A That's what I did, whatever she told me was 5 Q And would you agree with me that you didn't leave 6 hurting. 6 or write any kind of explanation, for example, that you 7 Q Now, if you saw or observed a situation where you 7 couldn't understand how she caught her foot or ankle on the 8 felt somebody really wasn't injured, would you have 8 pallet? 9 indicated that? 9 A Because that would be speculative. I didn't know. 10 A Yes, I would have. 10 So if I knew for a fact how she did it, if I actually 11 Q And that's not indicated in this record? 11 witnessed her doing it, then I would put down exactly how 12 A No. 12 she did it. 13 Q Okay. So you would agree with me that when you 13 Q You didn't put there in that section, for example, 14 saw her she appeared to be injured? 14 that the display was perfectly stacked or that it was 15 A At the time, yes. 15 stacked properly or that there was no way this could happen 16 Q And to multiple parts of her body, including 16 in the description she gave you; am I correct? 17 soreness, right hand, wrist, thigh, right calf, and ankle? 17 A No, I did not put that there. 18 A Based upon what she told me, yes. 18 Q If you felt that those facts were evidence, you 19 Q Now, the next sentence is the store's description 19 would have put that there? 20 of the incident. And then it gives a parentheses, what, 20 A Yes, sir. 21 where, when, how, and why, correct? 21 Q Fair enough. The next line says pallet was in the 22 A Pretty much. 22 midway between the kitchen accessory aisle and the pet 23 Q So they want basically from your experience a 23 aisle. Now, I don't know what midway means. Maybe you 24 complete and accurate report of what occurred? 24 can describe that. 25 A Yes. 25 A It's just a general term for a wide -- a wide Page 46 - Page 49 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9.2009 Page 50 1 aisle. It wasn't like a little small aisle. 2 Q So this was a big aisle where you knew customers 3 would be walking, correct? 4 A Yes. 5 Q And customers would be invited to walk even on the 6 bill aisle, that's why it's big, correct? 7 A Sure. 8 Q Now, it says the pallet was between the kitchen 9 accessories aisle and the pets aisle. Is that still an 10 aisle for walking? I 1 A That's still the midway aisle. 12 Q And is that still the same aisle that we've 13 described that's for customer walking? 14 A The wide aisle, yes. 15 Q Then it says, customer caught foot as she was 16 turning to walk into P-E-T. I guess pets? 17 A Pets, yes. 18 Q Did I read that right? 19 A Yes, you did. 20 Q Now, you then said -- and I think you've already 21 helped me with this because you said there was no reason to 22 believe that this was questionable or suspicious or untrue? 23 A Yes. 24 Q And I don't see a specific area for whether or not 25 you believe the version, but I guess that's as close to what Page 51 1 -- what we -- strike that. 2 I guess that's as close to your opinion as to 3 belief of whether this incident occurred as is on this 4 questionnaire? 5 A Yes. 6 Q So you believe the incident occurred exactly as she 7 stated it? 8 A I believe that it wasn't suspicion, questionable, 9 or untrue. 10 Q Fair enough. Now, the next page, which begins 11 full name Todd Vash, and then what inspections, that would 12 be the second to last page, or do you have another section? 13 A There's a back page to that. It says Kmart 14 associate inspected at scene after incident. 15 Q Right. Are you up to there? 16 A I'm right there. 17 Q Perfect. We're on the same page, literally. What 18 inspection showed, if anything. Pallets neatly placed on 19 floor with adequate spacing, floor smooth and clean. 20 Now, let's just talk about that for a moment. The 21 pallets were neatly placed on the floor with adequate 22 spacing, and you're referring to both the boxes on the 23 pallets as a unit, as a group; is that a fair statement? 24 A I guess, yes. 25 Q Okay. I'm not trying to put words in your mouth. 1 A I'm just trying to think. I don't want to answer 2 incorrectly. 3 Q I know it goes back a long time, but you would 4 agree with me that what you're referring to when you say 5 that the pallets were neatly placed, you mean the pallets 6 with the boxes on them were neatly placed, correct? 7 A The -- yeah, I'm referring to the pallet where she 8 tripped, you know, the pallets actually out there on the 9 floor. They were all together. They were neatly placed. 10 Q But you're not talking -- as I can tell you're not 11 talking about the way that the boxes were stacked on the 12 pallets? Page 52 13 A No, not -- I don't think so. I was just more or 14 less referring to the area was clean and neat, and there's 15 nothing falling over, hanging out. 16 Q Right. And the reason I ask the question is 17 because remember when you told me about the Charmin section 18 of that display? 19 A Yes. 20 Q You remember how you told me that that was an area 21 that if you had seen it before this event occurred, you 22 would have had it taken care of as a potential tripping 23 hazard? 24 A I would have addressed it probably myself or had 25 someone else do it. Page 53 1 Q Right. So you don't know one way or the other 2 from this incident report -- strike that. 3 You're not stating one way or the other about the 4 issue of the boxes stacked on top of the pallets when you 5 answered this inspection question? 6 A No. 7 MR. BAER: Objection. I'm not following your -- 8 BY MR. SHERMAN: 9 Q Sure. I'll rephrase it. No problem. When you 10 answered this inspection question on page three of the 1 I report you weren't addressing whether or not the boxes were 12 stacked properly on the pallets? As I understand your 13 testimony you were addressing the pallets and where they 14 were positioned on the aisle? Am I stating that fairly? 15 A The area I was -- 16 MR. BAER: Why don't we just ask him what he meant 17 when he said that? 18 BY MR. SHERMAN: 19 Q That's fair. Okay. Why don't you tell me 20 exactly what you're speaking about? 21 A All right. Just that the area was neatly kept, 22 like I said. There was no -- no debris laying on the 23 floor. Boxes weren't crushed, didn't appear to be any 24 leaking out of the boxes. 25 There was no pallet pieces lying on the floor Page 50 -Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FVRRTTARV 9 7009 Multi-Page Page 54 1 sticking out as occasionally there might be, was no 2 basically any debris. It was pretty much a clear -- clean 3 area. 4 Q And what I'm getting at, and I think we're getting 5 close to it, you're not talking about, for example, the 6 condition that is showed on Vash 2 with regard to the way 7 the Charmin boxes are displayed on the pallet? 8 A No, no. 9 Q You weren't addressing that one way or the other? 10 A No. 11 Q And you weren't addressing the other side of Vash 12 2, the side closer to where she fell, in terms of how the 13 boxes were placed on the pallet? Is that a fair statement? 14 A When you say other side, what -- had -- 15 Q In other words, the area that we talked about with 16 the Puffs, that box section? 17 A Right. 18 Q You're not talking about the way those Puff boxes 19 are displayed on the pallet? 20 A I was just giving a general area -- of the scene 21 itself. That wasn't specifically pinpointing anything. 22 Q Fair enough. You noticed on Section 4 of the page 23 that we're on that she wasn't wearing any type of shoes that 24 would have contributed to the accident? 25 A Which section? 1 Q Section 4 for fall down incidents? 2 A Okay. 3 MR. BAER: What's the question? Page 56 1 just getting him to fill out the statement form. 2 Q Do you remember him as you're sitting here today? 3 A Vaguely. I remember -- I remember discussing 4 something with a man. 5 Q And it wasn't somebody that appeared to you to be 6 with Ms. Woll or someone she knew? 7 A No. 8 Q So this would be an independent eye witness to the 9 best that you can remember? 10 A Yes. 11 Q And this independent eye witness wrote an incident 12 report at the scene and said, I saw this lady hook her 13 sneaker on this pallet that was in the middle of aisle and 14 go down hard? 15 A Yes. 16 Q Do you agree I read that accurately? 17 A Yes. 18 Q And that's part of the company's incident report? 19 A Yes. 20 Q And if you had any facts or evidence to refute 21 that, any aspect of that witness statement, you would have 22 made a notation of that? 23 A If I would have what? 24 Q You would have made a notation if you had any facts 25 or evidence to refute what the witness said? Page 551 Page 57 1 A I don't know. I don't mess at all -- whatever 4 BY MR. SHERMAN: 5 Q You indicated she was wearing canvas Dockside type, 6 good for condition in terms of her footwear. 7 MR. BAER: Actually it says -- well, he can tell 8 you what he wrote. 9 THE WITNESS: Canvas type, Docksiders type, good, 10 fair condition. 11 BY MR. SHERMAN: 12 Q So you didn't have any facts or evidence to believe 13 that her footwear contributed to the accident? 14 A I had no way of knowing, no. 15 Q And you didn't believe when you completed the 16 incident report and spoke to her, Ms. Woll, that she was 17 suffering any kind of nausea, vertigo, dizziness, or 18 anything like that? 19 A No. 20 Q Okay. On the last page there's a statement of 21 signed witness, Peter Pope. Do you know who he is? 22 A No. 23 Q Did you talk to him personally? 24 A Well, I know he was there as a witness for her, but 25 I don't know him other than that. And talking to him was 2 they write, they write. 3 Q But somewhere on this incident report there's a 4 section, as we've talked about, for you to write notes. 5 And if you felt that that signed witness statement was 6 inaccurate -- 7 A If I felt any part of this report was inaccurate 8 based upon their testimony or to me, then I would have noted 9 it somewhere, yes. 10 Q Now, did you talk to Ms. Woll after the incident? 11 A I believe I was asking more her condition, how she 12 feels, and if she needs medical attention or something like 13 that. 14 Q Did you -- can you describe -- I know you've told 15 us what she explained about and what you felt from all the 16 information you knew she was injured. Can you describe what 17 you saw about her physical condition? 18 A She appeared to be like she was in pain. She 19 couldn't write very well with her wrist, you know. Her 20 wrist was hurting. She did complain about the pain being 21 in her hip, you know, and her feet. But that's pretty 22 much, you know, what I can remember. 23 Q How long was she at the scene approximately? 24 A I'm thinking maybe total from beginning to end 25 maybe about a half hour, 20 minutes. Page 54 - Page 57 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 58 1 Q Did you have any conversations with her? Did you 2 say anything to her? 3 A Not that I can recall. 4 Q Did you apologize in any way on behalf of the store 5 or anything like that? 6 A I don't remember. 7 Q Did you hear Ms. Woll say anything to you other 8 than complaints about her injuries? 9 A No. 10 Q And other than a description of how the incident 11 occurred? 12 A Not that I can recall. 13 Q Have you seen Ms. Woll after the incident? 14 A No. 15 Q Did you see how she left the area? 16 A No. I was trying to think. I don't know if she 17 walked on her own, because she didn't have a wheelchair in 18 the store. But I can't remember. Something about a 19 wheelchair. I'm not sure if she wanted it to go. 20 Q So you don't know if she left by emergency? 21 A No, she didn't leave by emergency. 22 Q She left on her own? 23 A With her friend. 24 Q Do you know of any other statements that she made 25 to anyone at any time about this incident? Page 59 1 A No. 2 Q And you've already told me that you never spoke to 3 any other store personnel except for those conversations 4 that you had regarding the completion of this report; is 5 that right? 6 A Just ones that would have been immediately, like my 7 manager. 8 Q Now, I know you didn't do measurements, you didn't 9 take measurements of the area of the pallet that we're 10 talking about where the Puffs are? 11 A Right. 12 Q Do you know what I'm talking about? 13 A Yeah. 14 Q Can you give me any estimate as to whether there's 15 any wood sticking out further than -- strike that. 16 Can you give me any estimates as to whether there's 17 any wood sticking out beyond the area of where the box would 18 lay on the pallet? 19 MR. BAER: Which box? 2U BY MR. SHERMAN: 21 Q The box of Puffs. I'm sorry. 22 A The one she tripped on, an estimate of sticking 23 out? 24 Q Yes. 25 A No, I don't see any -- maybe -- it's hard to tell Page 60 1 on here at all. It's pretty close to the edge, maybe an 2 inch, half inch. 3 Q Would that inch or half inch -- I know you're doing 4 your best. 5 A That's from Exhibit 1. The Exhibit 1 picture on 6 the view you had right here of that shot, it appears to be 7 maybe about a half inch from that -- the bottom of the box 8 to the edge of the pallet. 9 Q And that's just your rough estimate? 10 A Rough estimate. 11 Q You've never taken a measurement? 12 A No, sir. 13 Q Do you know if that pallet's broken or not? 14 A It appears to be -- the bottom part appears to be 15 separated from the top, but not protruding, but separated, a 16 gap in between. 17 Q Is that something that would be expected back at 18 that time? 19 A Only if it would be hanging. When they bring the 20 pallets out sometimes the forklift won't go under there 21 right because of these boards. If they can't wheel it 22 freely, then yes, that pallet would not be used anymore. 23 Q You don't know from that time, as I understand your 24 testimony, whether that was the case back before she fell? 25 A No. Page 61 1 Q And you can't tell us from your own personal 2 knowledge or even from the pictures other than the estimate 3 that you were kind enough to give me how far the wood -- how 4 much the wood was sticking out beyond the box on display, 5 the Puff box? 6 MR. BAER: Other than what he just testified to? 7 BY MR. SHERMAN: 8 Q Other than what you just testified to? 9 A No, no. 10 MR. SHERMAN: Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Would it be -- would it be fair to say that if -- 14 strike that. Do you have an idea as -- as safety -- in 15 your position as a risk manager how much sticking out, to 16 use your word, would be acceptable for a display of that 17 nature that's shown in Vash 1 and 2, particularly the area 18 where the Puff boxes are on the pallet? 19 MR. BAER: Objection. 20 THE WITNESS: Okay. But, no, I have no way. 21 BY MR. SHERMAN: 22 Q Can you give me an idea, an estimate, an opinion 23 from your position and vantage point as a manager in risk 24 management how many inches would be acceptable, how many 25 centimeters, whatever measurement you feel comfortable with Page 58 - Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH FEBRUARY 9, 2009 Multi-Page Page 62 1 would be acceptable to stick out before you call it a 2 tripping 1 azard? 3 MR. BAER: I'm going to object. Are you talking 4 about this specific photograph or condition in general? I 5 mean -- 6 BY MR. SHERMAN: 7 Q Fair enough. I'll pare it down as much as I can. 8 I understand. Taking a look at Vash 2, do you see -- do 9 you see Vash 2? 10 A Yes, sir. 11 Q Okay. We've talked a lot about that particular 12 display, the one that's holding the Puff boxes. Do you see 13 that? Page 64 1 A No, sir. I mean, it could still be at our store. 2 They could have recycled it by now. I have no idea. 3 Q Is that pallet marked with a number? There's a 4 number. Was that pallet preserved? 5 A No. 6 MR. SHERMAN: Okay. Thank you. No further 7 questions. Thanks a lot for your patience. 8 THE WITNESS: Sure, no problem. 9 (Kmart Customer Incident Information was produced 10 and marked as Vash Deposition Exhibit No. 3.) 11 (Whereupon, the deposition was concluded at 3:25 12 p.m.) 13 14 A Yes. 14 15 Q Okay. Do you have -- using that display can you 15 16 give me, in your view as a risk manager and somewhat 16 17 experienced in safety, customer safety as you've described, 17 18 how many inches would be acceptable to stick out before 18 19 you'd call A a tripping hazard? 19 20 A I can't give an estimate of inches. If it looked 20 21 unsafe, you know, possibly I would just either have myself 21 22 do it or have somebody else look at it. But there's no 22 23 specific guideline. 23 24 Q So you're not saying whether an inch, a half inch, 24 25 two inches would be a guideline for you as a Kmart employee 25 Page 63 1 to consider a tripping hazard? 2 MR. BAER: Objection. He already answered the 3 question. I'm going to instruct him not to answer. 4 BY MR. SHERMAN: 5 Q Okay. If you had seen a condition of a piece of 6 the wood sticking out, would it have been easy to fix? 7 A If it was sticking out, protruding, I -- I would 8 have addressed that. And it depends on how it was sticking 9 out. 10 Q Would it have been easy in terms of employee usage 11 and equipment to just move the pallet and then take the 12 boxes off, for example? 13 A It wouldn't have been difficult, no. 14 Q Could have taken a few minutes? 15 A Possibly. 16 Q A few minutes of an employee's time just to move 17 the boxes and get rid of the pallet, true? 18 A Yes. 19 MR. SHERMAN: Thank you. I don't have -- off the 20 record. 21 (Discussion held off the record.) 22 BY MR. SHERMAN: 23 Q As I understand it, you have no idea where the 24 whereabouts of that pallet presently is, the one closest to 25 where the F is on Vash 2? COUNTY OF DAUPHIN I : SS Page 65 2 COMMONWEALTH OF PENNSYLVANIA : 3 I, Donna E. Gladwin, a Notary Public, authorized to 4 administer oaths within and for the Commonwealth of 5 Pennsylvania, do hereby certify that the foregoing is the 6 testimony of Todd Vash. 7 I further certify that before the taking of said 8 deposition, the witness was duly sworn; that the questions 9 and answers were taken down stenographically by the said 10 Reporter-Notary Public, and afterwards reduced to 1 I typewriting under the direction of the said Reporter. 12 1 further certify that I am not a relative or 13 employee or attorney or counsel to any of the parties, or a 14 relative or employee of such attorney or counsel, or 15 financially interested directly or indirectly in this 16 action. 17 I further certify that the said deposition 18 constitutes a true record of the testimony given by the said 19 witness. 20 IN WITNESS WHEREOF, I have hereunto set my hand 21 this 21 st day of February, 2009. 22 23 Donna E. Gladwin, Reporter 24 Notary public 25 rage oz- - rage of HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220!717-393-5101 Exhibit it F" RETENTION SHEET Loo Co CD c2-4 3 o-+?` Full Name Mail original to: Kmart Customer Incident Center P. O. Box 5058, Troy, MI 48007-5058 Photo copy For store file EXHIBIT --SEE BACK FOR PHOTOGRAPH INSTRUCTIONS— (37)0944699-115 25%pk rev 8/04 luj j !1 tl d_ '7/CIj'4 Exhibit it G-1" 4 " SIM. t d'? gY'ar :k t yr i ." ?Nx " _ 3 9 Exhibit "G-2" RETENTION SHEET o o (AD v x.43 U+?' Full Name photo copy for store file -SEE BACK FOR PHOTOGRAPH INSTRUCTIONS-- (37109dd699-1 15 25/p4 rev 8/Od Mail original to: PKMCrt . o. Box550 8r,'Troy, MI A8007-5058 Exhibit it H" w f IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Patricia Woll V. Kmart Corporation Plaintiff No. 08-CV-3384-CV CIVIL ACTION -- LAW Defendant AFFIDAVIT Peter Pope, a competent, adult individual currently residing in Harrisburg, Dauphin County, Pennsylvania, being duly sworn according to law, hereby deposes and says, that based on his own personal knowledge, the following statement is true and correct to the best of his knowledge, information and belief: 1. On June 22, 2006, 1 was a customer of Kmart Corporation in the store located on the Carlisle Pike in Mechanicsburg, Pennsylvania. 2. While shopping in the store, I saw a woman trip on a wooden pallet that was in the aisle where she was shopping. I later found out the woman's name was Patricia Woll. 3. 1 saw her go down "like a ton of bricks" after she snagged her foot on the bottom of the pallet while she was walking by it. 4. Although I don't recall where the woman was looking while she walked, it looked like she was shopping and was walking with another woman at the time she tripped. I remember thinking she probably thought she was clear to walk by the pallet. 5. The most I can remember about the pallet was that there were some boxes of merchandise on them and the boxes did not seem "flush' with the base of the pallet. 6. 1 remember seeing the pallet with boxes in the aisle and wondered why Kmart would put them where people were walking. 7. After Ms. Woll fell, she seemed hurt so I went over to her and offered help. Other people came to see what happened and I later left the area. 8. These statements are true and correct to the best of my knowledge, information and belief. Peter Pope 4 ATTORNEY CERTIFICATION I, Christopher J. Marzzacco, a duly licensed Attorney practicing in the State of Pennsylvania, hereby certify that the statements contained in the preceding Affidavit of Peter Pope, were actually made and are true and correct to the best of my knowledge, information, and belief. Date: _ I S ' yy J ristopher J. arzzacco, Esquire ,, C'r THE R", 2N9 JUL 16 h"I 1: s 4 Joseph W. Gibley, Esquire Jgibley@jzibleylaw.com Frank W. Baer, Esquire fbaera.gibleylaw.com Attorney I.D. Nos. 51814/43866 GIBLEY AND McWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. Attorney for Defendant Kmart Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 KMART CORPORATION'S SUR REPLY TO PLAINTIFF'S RESPONSE TO KMART CORPORATION'S MOTION FOR SUMMARY JUDGMENT Defendant, Kmart Corporation (hereinafter "Kmart"), by and through its attorneys, Gibley and McWilliams, P.C., hereby files this Sur Reply in Response to Plaintiff's Reply to the Motion for Summary Judgment and in support thereof respectfully avers as follows: 1. Plaintiffs Response to Kmart Corporation's Motion for Summary Judgment mis- characterizes testimony of Todd Vash, Kmart Corporation's Loss Prevention Manager In Plaintiff's Response to Kmart Corporation's Motion for Summary Judgment, plaintiff wrongfully asserts that Todd Vash, the Kmart Loss Prevention Manager, at first denied that the pallet over which the plaintiff alleges she tripped and fell was a tripping hazard, only to later acknowledge that the particular pallet in question constituted a tripping hazard to customers. (See averments 15, 16 and 17 of Plaintiff's Response to Kmart Corporation's Motion for Summary Judgment). In that regard plaintiff's response to the Motion for Summary Judgment averred as follows: 15. In early portions of his testimony, Mr. Vash does not recognize or acknowledge the aforementioned pallet as a "tripping hazard", as reflected in the following exchange from his deposition: Q. Okay. As an experienced manager that safety is a priority for, do you consider the displays that are shown in Vash 2, both the area where the Charmin is and the other one where - nearer to where she fell, to be potential tripping hazards? MR. BAER: Objection. Go ahead and answer. A. In this picture, no, I don't, no. Q. You don't see any potential tripping hazard? A. Not really no. (Vash Deposition, p. 36,11.23-25 to p. 37, H 1-7). 16. Despite the testimony highlighted in the preceding paragraph, Mr. Vash eventually acknowledged that Defendant, at the time of Ms. Woll's fall, was aware that "tripping hazards" included displays placed on pallets on Defendant's floor. (Vash Deposition at p. 11 II. 14-16). 17. Regarding the particular pallet in question, Mr. Vash also conceded that a portion of the pallet did pose a tripping hazard to customers. Specifically, the following took place at depositions: Q. Why - would you call that particular area at the bottom of Vash 2 of the display on the Charmin side of the shelf, would you call that a potential tripping hazard? A. Potentially. Q. And why would you call it that? -2- A. Just because the boxes aren't - aren't even with the pallet. If they were even with pallet, it might give it more of a solid shape? Q. And would that be something that, if you saw as a conscientious manager, you would cure and correct. A. Now that you bring it to my attention, I wasn't thinking at the time, but yes, I would go fix that. Q. As - because it's a potential tripping hazard? A. Yes, sir. (emphasis added) Plaintiff would have this Court believe that Todd Vash offered testimony stating that he believed that the particular pallet in question constituted a tripping hazard pursuant to the testimony offered on page 39 of his deposition. A reading of the deposition testimony on page 38 and 39 clearly indicates that plaintiff's counsel was asking the plaintiff about another area of the store where it was agreed that the plaintiff did not fall. Specifically, plaintiff s counsel was making reference to an area depicted in the photographs (Vash #2) near the Charmin boxes of tissue paper. Whether or not that area can be said to constitute a tripping hazard is completely irrelevant to this claim since plaintiff is not alleging that she tripped at that area. There is no dispute between the parties with respect to the fact that the plaintiff did not fall over the end cap where the Charmin tissues can be seen in Exhibit Vash 2. In fact, if plaintiff's counsel had provided a more complete rendition of the questions and answers on page 39 and 40 of Todd Vash's deposition, the fact that Mr. Vash was not referring to the "particular pallet in question" would be made clear to the Court. Specifically, plaintiff's counsel started his line of questioning -3- with the following: Q. Now, you took the picture that we're calling V ash 2, right? A. Yes. Q. That's the reason I wanted to try to use it. Now, you also looked at Vash 1, and you told me that you didn't see - - strike that. Could you see in Vash 1 any wood protruding at the bottom of the pallet? A. No. Q. So you don't see any protruding wood whatsoever in either Vash 1 or Vash 2? A. No protruding wood. Q. Okay. Do you see any wood that would be sticking out beyond the point of where the box is displayed on the display? A. In Vash 2 in the bottom, the Charmin pallet, I do see that, the wood sticking out from the box. Q. Do you think that's a proper display in terms of customer safety? I don't mean in terms of stacking for efficiency for the shelving? A. No, that box could be moved over to the edge a little more. Q. And, why would that be? A. Again, to not have that wood sticking out. It would be more symmetrical or more straight, even edges. Q. Now, I am going to tell you I don't believe -4- she fell in that particular area, but do you consider that to be a tripping hazard? MR BAER: Objection. Go ahead and answer. The witness - Potentially. Q. And that's because the box would cover the particular area that's protruding or sticking out as we've said? MR. BAER: Or couldn't - - objection. But go ahead and answer. MR. SHERMAN: I'll rephrase. It is confusing. Let me phrase. MR. BAER: Yeah please. BY MR SHERMAN: Q. If you think it is, it probably is. Why - - would you call that particular area at the bottom of Vash 2 of the display on the Charmin side of the shelf, would you call that a potential tripping hazard? A. Potentially. (See the attached deposition of Todd Vash at pp. 38-40; emphasis added). Accordingly, a fair reading of the deposition testimony of Todd Vash indicates that plaintiff's counsel was asking Mr. Vash questions regarding the pallet of Charmin paper products that is depicted in the photograph marked as Vash #2. His responses to questions regarding Vash 2 are irrelevant to this claim since it is agreed that that is not the location where the plaintiff alleges she tripped and fell. Accordingly, contrary to plaintiff's averment 17, Mr. Vash has not conceded that the particular pallet in question posed a tripping hazard to customers. -5- Plaintiff follows averment 17 with averment 22 which, again, mis-characterizes mr. Vash's testimony. Plaintiff would have this Court believe that Mr. Vash concedes that the "wood from the pallet in question" was sticking out beyond the edge of the cardboard box of merchandise resting upon it. Specifically, plaintiff's averment 22 states as follows: 22. "Mr. Vash agreed that the photo now attached as G- 2 showed a portion of the wood from the pallet in question "sticking out" beyond the edge of the cardboard box of merchandise resting upon it. Specifically, the following exchange took place: Q. Okay. Do you see any wood that would be sticking out beyond the point of where the box is displayed on the display? A. In Vash 2 in the bottom, Charmin pallet, I do see that, the wood sticking out from the box. Q. Do you think that's a proper display in terms of customer safety? I don't mean in terms of stacking for efficiency for the shelving. A. No, that box could be moved over to the edge a little more. Q. And why would that be? A. Again, to not have that wood sticking out. It would be more symmetrical or more straight, even edges." (Vash Deposition, p. 38, H 16-25; p. 39,1[11-3)." Plaintiff's averment 22 refers to this testimony as referencing the pallet in question. It is undisputed that this testimony regarding the "Charmin pallet" was not pallet over which the plaintiff alleges she fell. Accordingly, the testimony concerning the Charmin pallet is wholly irrelevant to this claim since it was not the "pallet in question". Plaintiff s testimony has clearly -6- indicated that she is alleging that she tripped over the pallet containing Puff's product, not the adjacent Charmin pallet. The testimony cited by Todd Vash in averment 22 is clearly referencing the adjacent Charmin pallet. II. Plaintiff concedes that she saw the pallet in the aisle prior to her fall. At averment 34 of Plaintiff's Response to Kmart Corporation's Motion for Summary Judgment, plaintiff states the following: 34. "Although Plaintiff saw the pallet in the aisle prior to her fall, Plaintiff testified that at the time of her fall her attention was focused on finding the area of the store that displayed the particular "brand-name" product she was shopping for. In her deposition, Plaintiff indicated the following: Q. All right. I was in an aisle walking towards the front of the store. And what I recall is that previously when I had purchased a similar Martha Stewart basket, the location of that item had moved. So I needed to find where it now was." (Woll Deposition at p. 24, 11 6-10)." Although the plaintiff is asserting the attractive display doctrine to excuse her own negligence, she does concede that she saw the pallet in the aisle immediately before she fell. Section 343 A of the Restatement (Second) of Torts provides some guidance in this area. It states: (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipated the harm despite such knowledge or -7- obviousness. Comment to subsection (1) of § 343 A of the Restatement explains in part that: Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention my be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect danger because to a reasonable man in his position the advantages of doing so would outweigh the risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. (See §§ 446 and 496D). It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. In the instant matter, plaintiff acknowledges she saw the pallet in the aisle immediately before her fall. She did not state that she was so distracted that she forgot what she had just seen. Accordingly, plaintiff cannot rely on the Attractive Display Doctrine to excuse her contributory negligence. See, Zito v. Merit, 436 Pa. Super. 213; 647 A. 2d 573 (Pa. Super 1994). III. Plaintiff is unable to meet her burden of proof since she concedes that she is only able to indicate the "general area" of the pallet which caused her to trip and fall. It is clear that the plaintiff bears the burden of proving the elements of a negligence claim in this case. At averment 24 of Plaintiff's Response to the Motion for Summary Judgment she concedes that she is only able to indicate the "general" area of the pallet where she fell. In that regard she states as follows: 24. "A thorough and objective reading of the deposition testimony of both Plaintiff and Mr. Vash shows the -8- disagreement of fact that arises regarding the condition of the pallet in question, as depicted in the photos, as both Plaintiff and Mr. Vash were only able to indicated the "general" area of the pallet where Plaintiff fell." Accordingly, by her own admission, plaintiff is unable to identify any specific defect which may have caused her to trip and fall. Rather, by her own words, she is only able to identify the "general" area of the pallet. She concedes that she saw the pallet in the aisle before she fell, would rely upon the attractive display doctrine to excuse her own negligence for tripping over a pallet which she admits seeing just moments before, and is unable to point to a specific defect causing her to trip. IV. Conclusion For the reasons set forth in Kmart Corporation's Motion for Summary Judgment, and Kmart Corporation's Sur Reply to Plaintiff's Response to Kmart Corporation's Motion for Summary Judgment, Kmart Corporation is respectfully requesting that this Court enter an Order granting summary judgment to Kmart Corporation Respectfully submitted, GIBLEY AND cWI LIAMS, P.C. By: rank W. Baer, Esquire Counsel for Defendant Kmart Corporation -9- VERIFICATION I, Frank W. Baer, Esquire, state that I am the attorney for defendant, Kmart Corporation in this matter and I am authorized to make this verification on their behalf and state that the facts contained in the foregoing Kmart Corporation's Sur Reply to Plaintiff's Response to Kmart Corporation's Motion for Summary Judgment are true and correct within the best of my knowledge, information and belief; and further that this statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. / &41 Frank W. Baer, Esquire Date: 9 (Woll - FWB) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, PLAINTIFF NO. 08-CV-3384-CV V KMART CORPORATION, CIVIL ACTION - LAW DEFENDANT DEPOSITION OF: TODD VASH TAKEN BY: PLAINTIFF BEFORE: DONNA E. GLADWIN, REPORTER NOTARY PUBLIC DATE: FEBRUARY 9, 2009, 2:20 P.M. PLACE: COLGAN MARZZACCO, LLC 130 WEST CHURCH STREET DILLSBURG, PENNSYLVANIA APPEARANCES: COLGAN MARZZACCO, LLC BY: CHRISTOPHER J. MARZZACCO, ESQUIRE - AND - SOLOMON, SHERMAN & GABAY BY: DAVID SHERMAN, ESQUIRE FOR. - PLAINTIFF GIBLEY AND MCWI7LIAMS, PC BY: FRANK W. BAER, ESQUIRE FOR - DEFENDANT ALSO PRESENT: PATRICIA WO --. 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 0 ?f ?f f,. Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 2 Page 4 1 WITNESS 1 the first instruction is that with respect to our 2 NAME EXAMINATION 2 communication, it must be verbal. Non-verbal communication 3 TODD VASH 3 cannot be picked up on the record. 4 BY MR. SHERMAN 3 4 So typically we would participate in maybe shaking 5 5 of the heads and waving of the arms and that type of thing, 6 6 but it won't be effective for a deposition where we're 7 7 recording your responses to my questions, okay? e 8 A I understand. 9 9 Q And I'm sure you were -- you consulted with your 10 EXHIBITS 10 very capable attorney who is seated to my left and your 11 VASH DEPOSITION EXHIBIT NO. PRODUCED AND MARRED 11 right, but these instructions are crucial so that this i2 1. PHOTOGRAPHS 25 12 afternoon's deposition goes smoothly, okay? 13 2. PHOTOGRAPHS 25 13 A I understand. 14 3. KMART CUSTOMER INCIDENT INFORMATION 64 14 Q If you don't understand a question for any reason, 15 15 either the way I phrase a word or the way I ask the 16 16 question, just let me know, and I'll make sure that 17 17 question's clear and understandable to you, okay? 18 18 A Okay. 19 19 Q I don't expect to be very long with you, but if you 20 20 need a break for any reason, it's a deposition, certainly 21 21 not an inquisition. Certainly let me know, and I'll make 22 22 that accommodation. 23 23 A Okay. 24 24 Q Again, if you have to provide me with an answer 25 25 that's an estimate as opposed to something that's actually a Page 3 Page 5 1 STIPULATION 1 fact that you're aware of, just tell me, and I'll accept it 2 It is hereby stipulated by and between counsel for 2 as an estimate if you need to do that, okay? 3 the respective parties that reading, signing, sealing, 3 A Okay. 4 certification and filing are hereby waived; and that all 4 Q Are you ready to begin? 5 objections except as to the form of the question are 5 A Yes. 6 reserved to the time of trial. 6 Q Are you under any kind of medical disability, 7 7 medication, or physical impairment that would impair your 8 TODD VASH, called as a witness, being duly sworn, 8 ability to answer questions today? 9 testified as follows: 9 A No. 10 10 Q And you've understood all the instructions I gave 11 DIRECT EXAMINATION 11 you? 12 BY MR. SHERMAN: 12 A Yes. 13 Q Incidentally, I just -- I introduced myself. I'm 13 Q Would you give me your full name? 14 David Sherman, and I represent, along with Mr. Marzzacco, 14 A Todd Vash. 15 Pat Woll, as you know. I just wanted to thank you. I 15 Q What is your present address, Mr. Vash? 16 know you came in last minute for us, and I do appreciate 16 A 1128 Fernwood Avenue, Camp Hill. 17 that very much for efficiency purposes. 17 Q With whom do you live at that address? 18 You understand that this is a deposition, and what 18 A My wife and my children. 19 that basically means, it's a question and answer session. 19 Q What's your wife's name? 20 A Okay. 20 A Amy Vash. 21 Q I'm going to ask you questions and ask that you 21 Q And your date of birth? 22 provide verbal responses to those questions. You're 22 A June 15th, 1969. 23 nodding your head. 23 Q And just for identification purposes, would you 24 A Yes, yes. 24 have a problem giving me your Social Security number? 25 Q I want you to give -- I want you to understand -- 25 A No. 189-64-4490. HUGHES. ALBRIGHT. FOLTZ & NATALE 7 1 7-540-022017 1 7-A9'A-'9 I n I Page 2 - Page 5 TODD VASH Muni-Page FEBRUARY %2009 Page 6 I Q Are you presently employed? 2 A Yes, I am. 3 Q Where? 4 A Kmart. 5 Q Which Kmart are you working at? 6 A Harrisburg, PA. 7 Q Would you give me the precise address of that in 8 Harri sburg? 9 A 5050 Jonestown Road. 10 Q And is that the address of the location where you 11 understand Mrs. Woll had her incident? 12 A No. 13 Q Do you have -- strike that. Do you have the 14 address of the location where you understood where Mrs. W 15 fell? 16 A Yes. It's 5600 Carlisle Pike. 17 Q At some -- at some point were you employed at the 18 Carli sle Pike address? 19 A Yes. 20 Q And why don't you tell me when you were first 21 empl oyed at Kmart? 22 A For Kmart was 1996. 23 Q Have you been working from that date up until the 24 present for Kmart? 25 A No. I worked for Kmart for two years, and then I Page 7 1 had left for some time and came back in 2005. 2 Q Why did you leave? 3 A I took a different career path. 4 Q What was that? 5 A Law enforcement. 6 Q What did you do? 7 A I was a federal police officer for Department of 8 Defense. 9 Q And you decided to go back into retail? 10 A Yes. 11 Q Were you -- did you leave that job for any other 12 reason? In other words, for discipline or any other kinds 13 of sanctions or problems? 14 A No. 15 Q Other than the other job in law enforcement had you 16 worked anywhere else in retail? 17 A No. 18 Q In the period of time from the time you first 19 worked at Kmart until the present time have you held any 20 supervisory or managerial positions? 21 A Just my position as loss prevention manager. 22 Q As which one? 23 A Loss prevention manager. 24 Q In that position would you describe generally what 25 it is you do? Page 1 A Basically we take care of the assets of the store 2 to theft, damage, customer associated accidents, anything 3 that would cause loss or waste. 4 Q Would it be fair to say that your position involves 5 issues of customer safety? 6 A Yes. 7 Q And would it be fair to say that in your position 8 and your experience for all these years working at Kmart 9 that customer safety is a high priority? 10 A Yes. 11 Q Would it be one of the highest priorities? 12 A Yes. 13 Q And, in fact, in the particular Kmart at Carlisle 14 that we're talking about, were there -- 15 A It's in Mechanicsburg. 16 Q I thought you said Carlisle. Did I mishear you? 17 A It's the Mechanicsburg Kmart that she got hurt at. 18 Q Which one are you saying? 19 A Mechanicsburg. 20 Q Mechanicsburg. I'm sorry. 21 MR. BAER: It may be located on Carlisle Pike. 22 BY MR. SHERMAN: 23 Q That's what must have confused me. I'm so sorry. 24 With regard to the Mechanicsburg Kmart, we'll call it that 25 if I need to, okay? Page 9 1 A Okay. 2 Q Would it be fair to say that there were particular 3 managers that had responsibility for customer safety back in 4 January of '07? 5 A I would have been one of them, as well as probably 6 the store manager. It's a management team thing all 7 together. 8 Q Now, I know you're not here as a corporate 9 designee, and your attorney explained that to me. But 10 because you're the only one here I'll try to go through a 11 little bit of the corporate structure with you if that's 12 okay? 13 A Sure. 14 Q And whatever you don't know you just tell me that, 15 and I'll accept that, and we'll wait for the corporate 16 designee. 17 A Okay. 18 Q At the Kmart back in Mechanicsburg, and again, 19 we're talking about January, '07 and that's because that's 20 the date of the incident. 21 MR. BAER: June, June of 1 06. 22 MR. SHERMAN: Was it June of '06? I'm so sorry if 23 I.misspoke again. I apologize. 24 MR. BAER: Don't take my word for it. 25 MS. WOLL: June of '06. Page 6 Page 9 HUGHES, ALBRIGHT, FOL Z & NATALE 717-540=0220/717-393-5101 (' r Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 10 1 MR. SHERMAN: June of '06. 2 (Discussion held off the record.) 3 BY MR. SHERMAN: 4 Q In June of '06 were you also in the position that 5 you told me at Kmart? 6 A Loss prevention manager, yes. 7 Q And would the same responsibilities that you've 8 described apply in June of '06? 9 A Yes, sir. 10 Q Now, in June of '06 would you tell me a little bit 11 about the managerial structure of Kmart in Mechanicsburg? 12 A Okay. At that time we have a store manager, and 13 he would have two assistant managers that help him run the 14 store. And I myself was a site manager. Those were all 15 salaried managers. And then we have hourly managers, or 16 hourly leads, which would be department heads also. 17 Q I counted five, generally speaking. Is that about 18 right? 19 A Yeah, usually, yes. 20 Q So there would have been five managers, and would 21 it be fair to say that there -- at least one of their 22 highest priorities would have been customer safety? 23 A Yes. 24 Q Now, would you tell me why that would be the case 25 having the knowledge that you do in loss prevention? Page 11 1 A Why what would be the case? 2 Q Why is customer service -- customer safety so 3 important? 4 A Well, because you want to provide somebody a place 5 to come shop, safe and free environment, without getting 6 hurt, you know, to just keep them coming back and just their 7 well being. 8 Q Generally speaking would it be fair to say that 9 Kmart is aware -- and when I say Kmart I know you don't 10 speak for Kmart all the time in every situation, but 11 generally speaking in your experience is Kmart aware that 12 there's potential tripping hazards in stores of that nature? 13 A Yes. 14 Q And would it be fair to say that tripping hazards 15 also include displays that are displaced on floors? 16 A Yes. 17 Q And just while we're speaking about those type of 18 issues, would it be fair to say that generally speaking 19 Kmart displays product along shelving in the stores? 20 A Yes. 21 Q And would it be fair to say that the ways that 22 Kmart sells its product is that customers are -- strike 23 that. 24 Is it fair to say that, generally speaking, Kmart's 25 aware that customers will be looking at product displays Page 12 1 when they're shopping? 2 A Yes. 3 Q And, in fact, would it be fair to say that -- 4 generally speaking, that Kmart expects that customers, in 5 order to price compare and compare quality and product, will 6 need to look at shelves while they're shopping? 7 A Yes. 8 Q And would it be fair to say that that's one of the 9 reasons that Kmart's aware that customer safety, and 10 particularly tripping hazards, need to be avoided? 11 A Yes. 12 Q And would it be fair to say that as a manager, 13 along with the other managers, that you guys -- I say guys, 14 just covering managers in general -- were given resources, 15 adequate resources to prevent tripping hazards? 16 A Yes. 17 Q And what I mean by that, just to be more specific, 18 is that certainly you had store employees that you could 19 tell or instruct to move potential tripping hazards? 20 A We do, but I always feel like my part in loss 21 prevention I could use more help there. 22 Q Did you feel that way back in June of '06? 23 A Sure. We all feel that way, all the LpMs at that 24 time. 25 Q Could you be more specific as to how you felt that Page 13 1 you needed potentially more help back at that time in 2 regards to -- I'm speaking specifically to tripping hazards, 3 not to servicing customers or stocking shelves, but that 4 issue of tripping hazards? 5 A Nothing in regards to that specifically. I'm 6 talking in general as -- as a department itself. 7 Q Did you feel that there was an insufficient amount 8 of employees to take care of all of the responsibilities 9 that you had back at that time in June of '06? 10 A In loss prevention, yes, as a whole department. 11 Q Was there any one particular person or sets of 12 people that were responsible for tripping hazards? 13 A I was responsible for the tripping hazards, for 14 overseeing and make sure follow up was done. 15 Q Would that be the case back in June of '06? 16 A Sure, yes. 17 Q Was there any other managerial person that had that 18 responsibility? 19 A Basically I said all the managers involved, but 20 specifically safety falls under loss prevention. 21 Q So you were ultimately the person where the buck 22 stops now as they say? 23 A Sort of. The store coach has the final say over 24 everything, the store manager. So basically I just -- we 25 report with him, follow up with him making sure that Page 10 - Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 TUOD VAJrl FEBRUARY 9, Main-rage, Page 14 1 1 everything's done like it's supposed to be done. 2 Q But in doing your job, because I'm sure you had a 3 lot of responsibilities, you couldn't be the only one 4 inspecting the floors, you yourself, correct? 5 A Correct, correct. 6 Q So you'd have to reply on other people? 7 A Yes. 8 Q And did you have to do that back in June of '06? 9 A Yes. 10 Q Was it economically possible to check on all of the 11 other employees -- again, I'm focusing on only tripping 12 hazards. Was it your job to make sure that every one of 13 these employees that you had was checking on tripping 14 hazards? 15 A To follow up with them. 16 Q Could you do that? 17 A Sure. 18 Q Were you able to do that back at that time? 19 A Yes. 20 Q If you -- strike that. Did you have to rely upon 21 the ability of other employees to do the inspections? 22 A Yes. 23 Q So if the other employees, for example, didn't do 24 an inspection but told you they did, you wouldn't have any 25 way to know that? Is that a fair statement? Page 15 1 A Yes. So I could follow up on some things, but 2 some things I wasn't able to follow up on. 3 Q Would it have been -- strike that. Would you have 4 been able to follow up -- for example, since we're talking 5 about tripping hazards -- on each of the employees checking 6 or inspecting the floors for tripping hazards? 7 A I could follow up -- I could ask them a question. 8 1 could ask them, did you walk the aisle and pick up 9 anything on the floor that may be laying around? If they 10 said yes and nothing was there, then they picked it up. 11 Q But you didn't physically do the inspections? 12 A I would, yes. 13 Q You did do them? 14 A Yes. 15 Q On a regular basis? 16 A Monthly we had safety inspections. 17 Q Do you know if you inspected the area where you 18 know now Ms. Woll fell from all the paperwork? 19 A I wouldn't really inspect that area. I'm looking 20 for certain things. 21 Q So would you rely upon -- strike that. Was there 22 an inspection procedure, formal inspection procedure, in 23 affect back at that time? 24 A Yes. 25 Q What was that inspection procedure? 1 A It was a monthly safety -- safety check of the 2 store. Page 16 3 Q And that was -- happened how often? 4 A Once a month. 5 Q Now, would you display products and use pallets and 6 different kinds of displays more than once a month? 7 A Sure, yes. 8 Q And wouldn't that be -- again, I'm not trying to 9 put words in your mouth. I hope you don't think that. 10 A No. 11 Q But wouldn't you be, given the nature of the 12 business, stocking, reshelving redisplaying on a daily 13 basis? 14 A Yes 15 Q So how would you expect an inspection to be 16 effective, let's say, on June -- 17 MR. MARZZA000: June 23rd, 22nd. 18 BY MR. SHERMAN: 19 Q On June 22nd, '06 if you last inspected, let's say, 20 on June 1 st, '06 for the monthly inspection? 21 A Well, because part of that would be my observations 22 during that time period, walking the floor. You know, did 23 you observe any of this activity? Yes, no. Any of that 24 activity? Yes, no. That kind of thing. So then I would 25 report then on the report what I have observed. Page 17 1 Q Okay. Would it be fair to say that you didn't 2 have a daily or weekly inspection procedure back at that 3 time? 4 A Yes. 5 Q You didn't? 6 A No. 7 Q Okay. Has that changed since then? 8 A Yes. It's -- no, it's the same thing. 9 Q Do you think that's an adequate type of inspection 1o given your position at Kmart at the present time? 11 MR. BAER: Objection. 12 BY MR. SHERMAN: 13 Q You can still answer unless counsel tells you not 14 to. Of course you'll listen to him. 15 Do you think that's an adequate inspection 16 procedure back in June of '06? 17 A I'll listen to his objection. 18 MR. BAER: You can answer it if you want. I mean 19 -- 20 MR. SHERMAN: NO. 21 MR. BAER: You can answer the question. I'm 22 objecting. I'm preserving an objection for the record. 23 THE WITNESS: I think it was adequate. 24 BY MR. SHERMAN: 25 Q I don't mean to lose you. Sometimes I move fast Page 14 -Page 17 HUGHES, ALBRIGHT, FOLTZ & WATALE 717-540-0220/717-393-5101 r Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 18 1 just to move it along. You stop me. I don't want 2 anything that you don't feel is being fair in terns of 3 giving me an answer. 4 You've told me that there was once a month 5 inspections for displays and shelving and that type of 6 thing; am I correct? 7 A Yes. 8 Q Okay. And I had asked you if that was adequate, 9 and you gave me your answer. And now I'm asking you do you 10 believe back in June of '06 that the nature of that 11 inspection that was in effect for Kmart was sufficient? 12 MR. BAER: Sufficient for what though? 13 BY MR. SHERMAN: 14 Q Sufficient to give proper safety concerns to 15 customers? 16 A Well, that monthly inspection is more like a 17 reporting. They want you to report on what activities 18 happen throughout the month. There's certainly things 19 involved with that reporting. One of them would be talking 20 with associates, relating to them ways to prevent injuries 21 and that kind of thing. 22 Again, my observations I make during the month, 23 that's what was all involved in that report. So 24 inspections could be made, I mean, at any time. I could 25 walk down an aisle and just visually see something out of Page 19 1 place and correct it immediately. 2 Q So as I understand your testimony, there were 3 formal inspections once a month, but you did basically 4 ongoing inspections? 5 A Yes. 6 Q I -- I kind of understood that. I just needed to 7 hear it from you for the record. 8 A Okay. 9 Q Would it be fair to say that the informal 10 inspections weren't put in any kind of written 11 documentation? In other words, there wasn't a store sweep 12 or a log that existed? 13 A Exactly, yes. That's fair to say. 14 Q It was more the employees walk around the area and 15 if they see something that's improper or dangerous or 16 defective, they should take care of it? 17 A Yes. If it's something major like a major spill or 18 something happened, they would notify somebody. Let us 19 know, hey, look this was out of place. This was wrong, you 20 know. 21 Q And the same system's in effect today? 22 A Yes. 23 Q So basically bottom line, would it be fair to say 24 that your day to day inspections for displays, because we're 25 not talking about a store spill here or something like that. Page 20 1 A Exactly. 2 Q For displays would involve just generally hoping 3 somebody would see a potential danger or tripping hazard? 4 Is that a fair statement? 5 A No. There's associates that work those areas and 6 those departments, and during the working progress during 7 the day they would see something out of place, and they 8 would take care of it themselves right then and there or 9 bring it to someone's attention. 10 Q But you have to rely upon the particular employee 11 to bring it to your attention? 12 A Yes. 13 Q And that's the case because there weren't any 14 formally where you actually were required to log and 15 document whether this particular display is safe? 16 A At the end of the month there would be. There 17 would actually be a question on the report that would ask 18 are there any shelving units that look to be bent or 19 improper for merchandise? So that monthly reporting then 1 20 would document that there. 21 Q Okay. Do you know Ms. Woll by the way? 22 A I know who she is from the fall. 23 MS. wOLL: From that day. I look different. 24 Pardon me. 25 BY MR. SHERMAN: Page 21 1 Q Do you know Ms. Woll from anything else other than 2 that day? 3 A No. 4 Q Do you know anything about her physical condition 5 or her injuries from this incident other than what you've 6 seen in the incident report? 7 A No, sir. 8 Q Have you spoken to anyone except for counsel about 9 any matters regarding this incident? 10 A Well, I reported it to my manager when it happened. 11 Q And we'll get into that because I saw that there's 12 an incident report. 13 A Yes. 14 Q And you authored that incident report? 15 A Yes, sir. 16 Q So we'll go into that in a few moments. But other 17 than the incident report have you spoken to anyone else 18 about this incident? 19 A No, sir. 20 Q By the way, on the date of this incident, June of 21 '06, would you know how many employees would have been 22 working around the time that Ms. Woll fell? 23 A Well, I don't recall. Myself was there. I mean, 24 at the actual spot or in the whole entire store? 25 Q Not at the actual spot. We'll get to that J Page 18 -Page 21 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD VASH Multi-P '` age FEBRUARY Page 22 1 perhaps. But generally in the store how many employees 2 would have been working? 3 A It's hard to say. It was around 9:00 in the 4 morning, so it would have been everybody running misters. 5 Maybe approximately 20. 6 Q And did you consider your staff to be competent at 7 that time? 8 A Yes. 9 Q Did you have some that weren't competent? 10 A Not that I know of. 11 Q Generally speaking, and again I understand that 12 you're not a corporate designee, do you know how many Kmarts 13 there are in the Harrisburg area? 14 A In the Harrisburg area it's just -- well, myself 15 and then Enola and Mechanicsburg. So that's just three in 16 that general location. 17 Q Three just in the Harrisburg simple driving area? 18 A Yes, um-hum. 19 Q And that means there would be about 60 total 20 employees, very generally speaking? 21 A Well, that's usually a store -- are you talking 22 about Kmart employees or loss prevention employees? 23 Q Let's just talk about Kmart employees, the kinds of 24 employees that would have been on the premises at the time 25 walking around, stocking, taking care of customer safety, Page 23 1 taking care of customers? 2 A Okay. You asked about three different Kmarts 3 though. Just -- 4 Q Your store you told me 20? 5 A Yes. 6 Q And you stand by that answer? 7 A Approximately 20. 8 Q I appreciate that you're even trying to help me 9 without being a corporate designee, but would you say that 10 that's the same for the other two stores? I 1 A Probably not, no. Because there's a smaller -- 12 depends on the size of the store. 13 Q So it wouldn't be accurate to say there's a total 14 of let's say 20, 40, 60 employees for Kmart for these three 15 stores? 16 A At that particular time? 17 Q Right. 18 A At that moment, like in those hours of the day? 19 Q Right. 20 A Right, correct. 21 Q That would be accurate? 22 A It would not be accurate. 23 Q Okay. But there's more than 50 total employees 24 for these three stores? 25 A See, again, you mean -- because my store itself has Page 24 1 70 employees that work there. 2 Q Don't worry about it. We'll just talk about your 3 store then. So how many total employees? 4 A Approximately 70, 72. 5 Q Is there a safety division of any type at your 6 store back at that time? 7 A Yes. 8 Q And what would that safety division be? 9 A It's basically just the safety team members. And 10 we -- like I said, we meet once a month, and we discuss 11 safety issues at the store. 12 Q Anything else? 13 A No. 14 Q Is there any type of formal evaluations, other than 15 what you've told me so you don't have to repeat, that talk 16 about how displays and pallets and those type of things 17 should be put in the store? 18 A They do have -- managers, they've got a layout, and 19 it has to be layed out specifically according to the layout 20 that they get. 21 Q Did that happen in this case? 22 A I'm going to say yes. 23 Q Okay. Let's -- that will be a nice segue to lead 24 into the actual pictures. 25 A Okay. Page 25 1 MR. SHERMAN: So what I'm going to do is mark a 2 couple of pictures, and I'm going to mark -- why don't we 3 start with -- off the record. 4 (Discussion held off the record.) 5 MR. SHERMAN: Why don't we start with this being 6 Vash 1? And why don't we label this -- and we'll put this 7 here for you. And then this is Vash 2. How's that? 8 (Photographs were produced and marked as Vash 9 Deposition Exhibit Nos. 1 and 2.) 10 BY MR. SHERMAN: 11 Q Can you take a look at Vash 1? 12 MR. BAER: You can take a look at it. I've seen 13 it. 14 THE WITNESS: Oh, all right. 15 BY MR. SHERMAN: 16 Q Have you seen Vash 1 before? 17 A Hold on. Not in that angle. 18 Q Would it be fair to say that Vash 1 generally shows 19 the area where you understand Mrs. Woll fell? 20 A Generally. 21 Q And could you identify any particular area on Vash 22 1 in terms of where you believe she fell? 23 A As far as area you mean? 24 Q Specific area? 25 A Like department area? 0, ... i Page 22 - Page 25 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-.0220/717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 26 1 Q General circle on the floor where she ended up, 2 anything that you can use in terms of that picture to point 3 to where she fell. 4 A Well, as a reference point I can say from this 5 photograph her feet would be at the top -- top part of the 6 photograph at the comer right by the box here, and then the 7 pallet sort of head was facing the opposite direction. 8 Q Okay. We're going to be much more specific 9 because the court reporter can't take down those kind of 10 directions, but you're doing great. I didn't tell you to 11 do anything other than a point of reference, and 1 12 appreciate that. Did you see the incident? 13 A No. 14 Q So you don't know from your own personal knowledge 15 how the incident occurred from your own seeing it? 16 A No, I do not, 17 Q Do you know of anyone that exists that actually saw 18 the incident? 19 A No. 20 Q So you don't have any facts or evidence to refute 21 anything that Ms. Woll might say about how the incident 22 occurred from personal observations; is that a fair 23 statement? 24 A Yes. 25 Q Okay. Now, you were kind enough to look at the Page 27 1 photo and show me generally where you believe the incident 2 occurred. If we try to describe that together, tell me if 3 I'm accurate. 4 Do you see in the portion to the left side of the 5 photograph where there's a box labeled 849 with other 6 numbers? 7 A Yes. 8 Q Would it be fair to say that somewhere to the right 9 of that -- as you're looking at the numbers, to the left 10 that, that's where you believe she fell? 11 A Okay. Numbers to the left? 12 Q See how the numbers are to the left as you look at 13 the picture? 14 A Yes. 15 Q So that way we'll have a point of reference. And 16 Ms. Woll would have fell to the right of those numbers, 17 correct? 18 A Don't know. I'm not sure. 19 Q So you don't know exactly where she would have 20 fallen? 21 A She told me what happened was she caught her foot, 22 and that's about all I can go by. 23 Q Okay. Can you point on that photograph where she 24 told you she fell? 25 A All right. You can't see because it's the Page 28 1 opposite direction, but it was right here in this corner. 2 (Indicating.) 3 Q Okay. Do you see anywhere on Vash 1 to indicate 4 the condition that caused her to fall as she described it to 5 you? 6 A No. 7 Q Okay. So you don't see any wood protruding in 8 Vash 1? You don't see any lower boards underneath the 9 numbers that are protruding? 10 A I don't see -- 11 MR. BAER: Objection to the characterization, but 12 go ahead and answer. 13 THE WITNESS: Don't see protruding. I see it's 14 separated a little bit. 15 BY MR. SHERMAN: 16 Q Do you see anything protruding? You know what I 17 mean by protruding? 18 A Sticking out, yeah. It's hard to tell depth 19 perception with this shot. 20 Q I appreciate that. I think you're right. Do you 21 see anything, even with this shot because that's all we have 22 in front of us to show, any wood sticking out from the 23 display? 24 A I can't see wood sticking out from the display from 25 this shot. Page 29 1 Q Okay. You would agree that at least Ms. Woll 2 explained that she fell somewhere around that corner that 3 we've identified next to those numbers? 4 A Yes. 5 Q Of that pallet or display? 6 A Yes. 7 Q Okay. Let's look at Vash 2 and ask if you can 8 identify that. 9 A Yes. 10 MR. SHERMAN: Okay. Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Looking at Vash 2, would you agree that that 14 generally shows the same condition but a much broader view? 15 A Yes. 16 Q And could you point again to Vash 2, and then we'll 17 try to describe it? 18 A This is Vash 2. (Indicating.) 19 Q And that would be the top picture? 20 A Well, you labeled the whole page Vash 2. 21 Q Right. There's two pictures, one on top and one 22 on the bottom. Could you point to either of the pictures 23 that best shows the view of the more precise area of the 24 floor in reference to the display where you believe she fell 25 from what she told you? Page 26 - Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 TODD. VASH Multi-Page"' Ph KUAKY 9, Page 30 1 A Well, they kind of both do. The.bottom picture 2 does right here, and so does this area right here. 3 (Indicating.) 4 Q Okay. So you've indicated with your, finger in the 5 area of the two boxes towards the middle of both pictures is 6 the area basically where she fell? 7 A Yes. 8 Q Okay. Generally speaking, since we have now all 9 of the pictures that I've marked, could you show me on the 10 bottom picture where the middle portion of the boxes are, do 11 you see that area? 12 A Talking about right in the center of the picture 13 itself? 14 Q Right. The area of the boxes there's a set of 15 boxes that are towards the middle of the lower picture. 16 A Okay. 17 Q And that's the area where you believe she fell? 18 MR. BAER: You mean this general area here? 19 BY MR. SHERMAN: 20 Q Correct, the general area there. 21 A I believe she fell -- when I saw her she was in 22 front of that. 23 Q In front of that middle area of boxes? 24 A Yes. 25 Q See, I'm trying to avoid having you draw circles Page 31 1 right now. And we can if we need to, if your counsel 2 doesn't mind. 3 MR. BAER: No, 1 don't mind. 4 BY MR. SHERMAN: 5 Q Okay. Then why don't you take a pen, just take a 6 pen and draw the boxes that were closest to where you 7 understood Ms. Woll fell? 8 A Well, when I got there she was already on the 9 ground. 10 Q Right. 11 A So her feet would be in this general area here. 12 (Indicating.) 13 Q Why don't you put an F where her feet were? 14 A Approximately. 15 Q You can put an F. Is that working? 16 A It's -- yeah, it's going. (Drawing.) 17 Q Okay. That's where her feet her? 18 A Approximately. 19 Q You told me where her head was. Why don't you put 20 an H for her head? 21 A And -- 22 Q And you were going to put an H where her head was? 23 A I'm trying to look at this picture. 24 MR. BAER: Try to use the same picture. 25 THE WITNESS: I'm just trying to reference it. So Page 32 1 it's going to be somewhere in this area there. 2 (Indicating.) 3 BY MR. SHERMAN: 4 Q Okay. So she was basically lying across the 5 bottom of the boxes in the picture? 6 A Right, sort of at an angle like to the right. 7 Q Understood. Now, just general questions about the 8 display. Would it be fair to say that the area between -- 9 in the lower area between the boxes by the F and the boxes 10 to the right of that that are characterized or designated as 11 Charmin, that that was an aisleway? 12 A The boxes were placed in an aisleway, yes. I mean, 13 the pallets were placed in an aisleway, yes. 14 Q So these pallets were actually in an aisleway? 15 A Yes, sir. 16 Q And would you agree with me that in your experience 17 customers walk through that aisleway and have to go through 18 that aisleway to get to particular areas of the Kmart? 19 A Yes. 20 Q Now, can you tell me why there -- these pallets 21 were positioned -- strike that. 22 Were these pallets that we've talked about, both 23 the Charmin pallets and the ones closer to where she fell, 24 were they pallets that were situated there on a regular 25 basis, or were they there on a temporary basis? Page 33 1 A Temporary basis. 2 Q So they wouldn't normally be there? 3 A Depending on the time of day. 4 Q And what do you call a temporary basis? In other 5 words, would they be there once a week, once a day, once a 6 month? 7 A Depends on what they're putting out on the floor to 8 replenish the shelving with. 9 Q So they're there in a state of transition from 10 taking those boxes before they end up on the shelf; is that 11 basically an accurate statement? 12 A Yes. 13 Q Would you agree with me that they're basically 14 blocking the aisleway? 15 A No. 16 Q Would you agree that they're blocking a portion of 17 the aisleway? 18 A Yes, because they're taking up space that's there. 19 Q Did you have any alternative back then in terms of 20 being able to place those types of boxes in that transition 21 stage that you told me about to stock the shelf? 22 A No. 23 Q Was there any other place you could have placed 24 them? For example, could you put them in storage until 25 they were ready to be shelved? r? Page 30 - Page 33 HUGHES, ALBRIGHT, FOLTZ.& WATALE 717-540-0220/717-393.5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 34 1 A No, because they came out of the receiving area to 2 be put on the floor to be replenished. 3 MR. SHERMAN: Do you have any kind of warnings -- 4 off the record. 5 (Discussion held off the record.) 6 BY MR. SHERMAN: 7 Q Do you general -- does Kmart generally -- strike 8 that. 9 Is Kmart generally equipped with cones or some type 10 of mechanisms, equipment, to divert people's paths if they 11 need to? 12 A Yes. 13 Q Are they displayed in those pictures? 14 A No. 15 Q Okay. How come? 16 A Because those cones are generally used for wet 17 floor surfaces and spills. 18 Q Okay. Were customers expected to use the aisleway 19 that we've designated, for example, between the Charmin 20 display and the area in front of where she fell? 21 A They may. 22 Q Actually I should say the front -- behind where she 23 fell? 24 A Correct. 25 Q Were those -- is the aisleway cut, any portion of Page 35 1 it? And what I mean by that, is it less than it normally 2 would be if you didn't have these temporary pallets there? 3 A I'm going to say the pallets do take up space in 4 the aisleway, but they place them enough so the customers 5 can still get around them. 6 Q Is there areas right around the -- those displays 7 where customers would be looking at shelves? And I'll tell 8 you why I say that is because you're going to hear from Ms. 9 Woll in a few moments that she was looking for some 10 houseware products on the shelves. Would that be accurate 11 in terms of what was displayed in the area? 12 MR. BAER: What? 13 MR. SHERMAN: I'll rephrase that question. Off 14 the record. 15 (Discussion held off the record.) 16 BY MR. SHERMAN: 17 Q Ms. Woll is going to testify to counsel in a few 18 moments that she was looking at certain kinds of housewares, 19 laundry baskets, I believe. Is that something that was 20 displayed in that area back at that time? 21 A Generally it would be -- would have been behind 22 her. So where she was walking -- heading was more towards 23 the pets department, which is behind the housewares. 24 Q Generally -- we don't have an exact scan, I don't 25 see in any of the pictures laundry baskets, but generally Page 36 1 speaking laundry baskets were positioned in that area around 2 the boxes? 3 A Maybe a few aisles over. I'm not precisely sure 4 which aisle it ran in right in the area here, but they were 5 behind -- behind where she was heading. 6 Q Fair enough. But the bottom line is you have no 7 disagreement with me that there was displays that would -- 8 if a customer like Ms. Woll was looking at, she'd have to 9 look up and away for certain kinds of product in the area 10 right around where those boxes are? 11 MR. BAER: Objection. Go ahead and answer. 12 THE WITNESS: Okay. If she was heading towards 13 the pets department, yes. If she was looking at the Bounty 14 paper towels in front of her, because they were up on a 15 shelf higher, then yes. 16 BY MR. SHERMAN: 17 Q Okay. And you're not sure about where exactly the 18 laundry baskets were displayed, am I hearing that correct? 19 A Correct. Well, I know they were not in front. 20 They were in the back like behind her where she was facing 21 and off either to the -- I'm thinking to the right. But 22 I'm not positive on the right or left. 23 Q Okay. As an experienced manager that safety is a 24 priority for, do you consider the displays that are shown in 25 Vash 2, both the area where Charmin is and the other one Page 37 1 where -- nearer to where she fell, to be potential tripping 2 hazards? 3 MR. BAER: Objection. Go ahead and answer. 4 THE WITNESS: In this picture, no, I don't, no. 5 BY MR. SHERMAN: 6 Q You don't see any potential tripping hazard? 7 A Not really, no. 8 Q Okay. And when you say not really, again, I'm not 9 trying to get you to say something you don't believe. 10 A Well, because obviously she did trip on something, 11 but I don't see -- other boxes are on the pallet. They're 12 at such a height where you can see what's on the pallet. 13 So that's, you know, why -- and there's nothing on 14 the floor to which she would have actually tripped her feet 15 on. No liquids, no debris from the pallets themselves are 16 on the floor. 17 Q Do you know from all that you've learned after, I 18 know you didn't see it, what exactly caused her to fall, at 19 least from what she says? 20 A Other than what she told me, no. 21 Q What do you know from what she told you? 22 A That she was walking -- this picture was taken in 23 the direction that she was walking from what she gave me in 24 her statement. 25 Q Right. Page 34 - Page 37 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 UD V V AJH EBRUARY 9 mu,.tn-rage Page 38 1 A Was walking between here and her foot caught on to 2 the pallet here right in the comer, and her foot got caught 3 and then she tripped and fell over. 4 Q Now, you took the picture that we're calling Vash 5 2, right? 6 A Yes. 7 Q That's the reason I wanted to try to use it. Now, 8 you also looked at Vash 1, and you told me that you didn't 9 see -- strike that. 10 Could you see in Vash 1 any wood protruding at the 11 bottom of the pallet? 12 A No. 13 Q So you don't see any protruding wood whatsoever in 14 either Vash 1 or Vash 2? 15 A No protruding wood. 16 Q Okay. Do you see any wood that would be sticking 17 out beyond the point of where the box is displayed on the 18 display? 19 A In Vash 2 in the bottom, the Charmin pallet, I do 20 see that, the wood sticking out from the box. 21 Q Do you think that's a proper display in terms of 22 customer safety? I don't mean in terms of stacking for 23 efficiency for the shelving. 24 A No, that box could be moved over to the edge a 25 little more. Page 39 1 Q And why would that be? 2 A Again, to not have that wood sticking out. It 3 would be more symmetrical or more straight, even edges. 4 Q Now, I'm going to tell you I don't believe she fell 5 in that particular area, but do you consider that to be a 6 tripping hazard? 7 MR. BAER: Objection. Go ahead and answer. 8 THE WITNESS: Potentially. 9 BY MR. SHERMAN: 10 Q And that's because the box would cover the I I particular area that's protruding or sticking out as we've 12 said? 13 MR. BAER: Or couldn't -- objection. But go ahead 14 and answer. 15 MR. SHERMAN: I'll rephrase. It is confusing. 16 Let me rephrase. 17 MR. BAER: Yeah, please. 18 BY MR. SHERMAN: 19 Q If you think it is, it probably is. Why -- would 20 you call that particular area at the bottom of Vash 2 of the 21 display on the Charmin side of the shelf, would you call 22 that a potential tripping hazard? 23 A Potentially. 24 Q And why would you call it that? 25 A Just because the boxes aren't -- aren't even with Page 40 1 the pallet. If they were even with the pallet, it might 2 give it more of a solid shape. 3 Q And would that be something that, if you saw as a 4 conscientious manager, you would cure and correct? 5 A Now that you bring it to my attention, I wasn't 6 thinking that at the time, but yes, I would go fix that. 7 Q As -- because it's a potential tripping hazard? 8 A Yes, sir. 9 Q Now, you don't know -- when did you take this 10 picture? 11 A Right after the incident -- she left the store. 12 And probably maybe five, ten minutes after she left I took 13 that picture. 14 Q Okay. Do you know from your own personal 15 knowledge, again, whether on the left side -- I guess it's, 16 the Puffs side? 17 A That's Puffs, yeah. 18 Q Okay. Do you know on the Puffs side whether -- 19 strike that. 20 MR. BAER: To orient you, I don't know if you're -- 21 BY MR. SHERMAN: 22 Q I may be wrong. Is this box this box? 23 A Yes. This -- 24 MR. SHERMAN: Is that what you're saying? We're 25 off the record just to clarify. Page 41 1 (Discussion held off the record.) 2 MR. BAER: Just so you know, Dave, this corner here 3 is this over here. It might not be important. You might 4 -- I just don't want you to think this corner is this 5 corner. (Indicating.) 6 BY MR. SHERMAN: 7 Q No, I think you're right. I think you're right. 8 That's why I was trying to stay away from that picture for 9 that reason. 10 Mr. Vash, with regard to the precise positioning of 11 the area closer to where her foot is designated in Vash 2, 12 would it be fair to say that you can't tell us from your own 13 personal knowledge how close that box was to the edge of the 14 pallet? 15 A Are you talking about the Puffs pallet? 16 Q Yes. 17 A I can give an estimate, but no, I can't precisely 18 tell you how close that box is. 19 Q Well, you didn't take a picture, a close up, of 20 that particular area is what I'm getting at? 21 A Whatever I have here is, I believe, what I've 22 taken. I don't remember taking that picture right there, 23 Q You don't know if that box was moved from the time 24 that she fell until the time that you took your photograph? 25 A I didn't move it. Page 38 - Page 41 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM TODD VASH FEBRUARY 9, 2009 Page 42 1 Q But you don't know if it was moved is what I'm 2 saying? 3 A No, I don't. 4 Q You don't know if another customer or employee or 5 if in the movement of the impact itself that that box moved 6 over? 7 A No, I do not. 8 Q Now, in Vash 2 and Vash 1, just the last time 9 because I know I asked you this a few times, do you see any 10 wood protruding from the area where the box was? 11 A Again, I don't see it protruding, no. 12 Q Do you see anything sticking out in terms of wood 13 from the point of where the box would be stacked or 14 positioned on the pallet? 15 A No. 16 Q Do you consider it to be safe practice in terms of 17 the background that you have to have a pallet positioned as 18 is shown in Vash 1 and 2? 19 A I don't see a problem with that, no. 20 Q I'm going to ask you to take a look at your 21 incident report, which I think you have a copy of in front 22 of you. 23 A Yes. 24 Q Am I correct? 25 A Yes, I do. Page 43 1 Q Good. All right. Did you complete this inciden 2 report? 3 A Yes, I did. 4 Q And would it be fair to say that part of your 5 responsibility is to do it in a conscientious and accurate 6 way? 7 A Yes, sir. 8 Q And you're trained specifically to do that? 9 A Yes, sir. 10 Q And you try to be as complete and accurate as 1l possible? 12 A Yes, sir. 13 Q Now, let's go through this for a moment. Was t 14 completed the day of the incident? 15 A Yes, it was. 16 Q And is the writing on the first page of the 17 incident report your writing? 18 A The top part is with her name. 19 MR. BAER: You're not on the same page, Dave. 20 first page is to be completed by customer. 21 BY MR. SHERMAN: 22 Q Good. Just hold up your first page so we're on 23 the same page. It begins Kmart incident information? 24 A Yes. 25 Q Okay. I was on Kmart incident investigation. S Page 44 1 Kmart customer incident is the first page? 2 A Yes. 3 Q Now, the obvious section says -- or is instructed 4 as completed by customer, correct? 5 A Yes. 6 Q And that would have been Ms. Woll? 7 A She was the customer, yes, she was. 8 Q Now, the description of the incident, would that 9 have been by you or her? 10 A That would have been by her, and -- well, you mean 11 the writing or the actual verbal part of it? 12 Q The verbal part of it? 13 A Washers. 14 Q And the writing? 15 A Part of it was mine. She had an injury to her 16 wrist, I remember, and she couldn't write I think is what it 17 was. 18 Q So you helped her? 19 A I -- the very first part where it says midway 20 between housewares and pantry is my part up until the part 21 where it says what happened I filled in because that was 22 just basically general information. The part that says 23 what happened, I did not write that, no. 24 Q Okay. The actual narrative that begins came out 25 of kitchen accessories? Page 45 1 A Yes, sir. 2 Q Is that Ms. Woll's writing? 3 A I don't believe so. I don't recall. She had a 4 friend there, I think, helped her write it because I didn't 5 want to do it for her. 6 Q But it's not your writing? 7 A No, sir. 8 Q So we have to ask Ms. Woll about any particulars 9 regarding that? 10 A Yes. 11 Q Then the inspection section would be something that 12 she wouldn't know about, correct? 13 A Probably not, no. 14 Q And I'm on the next page, and I'm calling it the 15 next page. It says full name, Todd Vash. Let's use that 16 as the next page. What do you have as the next page? 17 A The next page on the report is the customer 18 incident investigation. 19 Q Good. We'll go there. That would be the second 20 page? 21 A Yes, sir. 22 Q Okay. Let's use that. Now, by the way, in the 23 description that Ms. Woll gave you it doesn't indicate that 24 she contributed to her own accident in any way? 25 A No. t his The 0 Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 TODD VASH Multi-Pa Tm FE13RUARY 9,2 Page 46 1 Q And it doesn't indicate that she was careless or 2 reckless in any way? 3 A No. 4 Q And it doesn't indicate that she wasn't looking? 5 A No. 6 Q Okay. Now, it says to be completed by loss 7 prevention, which would be you? 8 A Yes, sir. 9 Q And you indicated that you -- is this your writing? 10 A Yes, sir. 11 Q Strike that whole thing. So I'm clear on the 12 question. I'm going to get there. Strike that whole 13 question because I overtalked on him. I talked over him. 14 On the incident investigation section where it says 15 nature of injury, do you see that section? 16 A Yes, I do. 17 Q And it says soreness? 18 A Soreness. 19 Q And then it says underneath that, right hand, 20 wrist, right thigh, right calf, and ankle? 21 A Yes. 22 Q So would it be fair to say that even you 23 acknowledged at that time that all of those parts of her 24 body appeared to suffer some injury? 25 MR. BAER: Objection. You can answer. He's just Page 47 Page 49 1 reporting what she's telling him. He's not a medical I 1 Q I got you. Fair enough. Would it be, generally 2 doctor. 2 speaking, accurate to say that she reported to you what's 3 BY MR. SHERMAN: 3 contained there? 4 Q I think it's fair grounds to ask him. 4 A Yes. 5 A That's what I did, whatever she told me was 5 Q And would you agree with me that you didn't leave 6 hurting. 6 or write any kind of explanation, for example, that you 7 Q Now, if you saw or observed a situation where you 7 couldn't understand how she caught her foot or ankle on the 8 felt somebody really wasn't injured, would you have 8 pallet? 9 indicated that? 9 A Because that would be speculative. I didn't know. 10 A Yes, I would have. 10 So if I knew for a fact how she did it, if I actually i l Q And that's not indicated in this record? 11 witnessed her doing it, then I would put down exactly how 12 A No. 12 she did it. 13 Q Okay. So you would agree with me that when you 13 Q You didn't put there in that section, for example, 14 saw her she appeared to be injured? 14 that the display was perfectly stacked or that it was 15 A At the time, yes. 15 stacked properly or that there was no way this could happen 16 Q And to multiple parts of her body, including 16 in the description she gave you; am I correct? 17 soreness, right hand, wrist, thigh, right calf, and ankle? 17 A No, I did not put that there. 18 A Based upon what she told me, yes. 18 Q If you felt that those facts were evidence, you 19 Q Now, the next sentence is the store's description 19 would have put that there? 20 of the incident. And then it gives a parentheses, what, 20 A Yes, sir. 21 where, when, how, and why, correct? 21 Q Fair enough. The next line says pallet was in the 22 A Pretty much. 22 midway between the kitchen accessory aisle and the pet 23 Q So they want basically from your experience a 23 aisle. Now, I don't know what midway means. Maybe you 24 complete and accurate report of what occurred? 24 can describe that. 25 A Yes. 25 A It's just ageneral term for a wide -- a wide Page 46 - Page 49 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page `48 1 Q And they want that in detailed form? 2 A As best as possible, yes. 3 Q Any important things that you observed you would 4 have reported at that time? . 5 A Yes. 6 Q Anything that you felt that would show that the 7 customer, for example, was responsible or that she was 8 liable as opposed to the store you would certainly report at 9 that time? 10 A Basically just the facts as I see it. 11 Q Okay. But if you felt that there was a fact that 12 supported that the store wasn't responsible, you would put 13 that in this notation? 14 A If I felt it was not legitimate, I would put that 15 in there, yes. 16 Q Okay., And it says, it appears as if customer -- it 17 appears as if customer caught her right foot on the corner 18 of a pallet stacked with boxed merchandise, tissue paper and 19 towels in parenthesis, while walking from the kitchen 20 accessory aisle to the pets aisle. Did I read that right? 21 A Yes. 22 Q And would you agree with me that that's exactly 23 what she reported to you? 24 A From what I can recall. I don't know if those 25 were the exact words that she used. Multi-Page TM TODD VASH FRRV1<TA>RV 0 ')nn0 Page 50 1 aisle. It wasn't like a little small aisle. 2 Q So this was a big aisle where you knew customers 3 would be walking, correct? 4 A Yes. 5 Q And customers would be invited to walk even on the 6 bill aisle, that's why it's big, correct? 7 A Sure. 8 Q Now, it says the pallet was between the kitchen 9 accessories aisle and the pets aisle. Is that still an 10 aisle for walking? 11 A That's still the midway aisle. 12 Q And is that still the same aisle that we've 13 described that's for customer walking? 14 A The wide aisle, yes. 15 Q Then it says, customer caught foot as she was 16 turning to walk into P-E-T. I guess pets? 17 A Pets, yes. 18 Q Did I read that right? 19 A Yes, you did. 20 Q Now, you then said -- and I think you've already 21 helped me with this because you said there was no reason to 22 believe that this was questionable or suspicious or untrue? 23 A Yes. 24 Q And I don't see a specific area for whether or not 25. you believe the version, but I guess that's as close to what Page 51 1 -- what we -- strike that. 2 I guess that's as close to your opinion as to 3 belief of whether this incident occurred as is on this 4 questionnaire? 5 A Yes. 6 Q So you believe the incident occurred exactly as she 7 stated it? 8 A I believe that it wasn't suspicion, questionable, 9 or untrue. 10 Q Fair enough. Now, the next page, which begins 11 full name Todd Vash, and then what inspections, that would 12 be the second to last page, or do you have another section? 13 A There's a back page to that. It says Kmart 14 associate inspected at scene after incident. 15 Q Right. Are you up to there? 16 A I'm right there. 17 Q Perfect. We're on the same page, literally. What 18 inspection showed, if anything. Pallets neatly placed on 19 floor with adequate spacing, floor smooth and clean. 20 Now, let's just talk about that for a moment. The 21 pallets were neatly placed on the floor with adequate 22 spacing, and you're referring to both the boxes on the 23 pallets as a unit, as a group; is that a fair statement? 24 A I guess, yes. 25 Q Okay. I'm not trying to put words in your mouth. Page 52 1 A I'm just trying to think. I don't want to answer 2 incorrectly. 3 Q 1 know it goes back a long time, but you would 4 agree with me that what you're referring to when you say 5 that the pallets were neatly placed, you mean the pallets 6 with the boxes on them were neatly placed, correct? 7 A The -- yeah, I'm referring to the pallet where she 8 tripped, you know, the pallets actually out there on the 9 floor. They were all together. They were neatly placed. 10 Q But you're not talking -- as I can tell you're not 11 talking about the way that the boxes were stacked on the 12 pallets? 13 A No, not -- I don't think so. I was just more or 14 less referring to the area was clean and neat, and there's 15 nothing falling over, hanging out. 16 Q Right. And the reason I ask the question is 17 because remember when you told me about the Charmin section 18 of that display? 19 A Yes. 20 Q You remember how you told me that that was an area 21 that if you had seen it before this event occurred, you 22 would have had it taken care of as a potential tripping 23 hazard? 24 A I would have addressed it probably myself or had 25 someone else do it. Page 53 1 Q Right. So you don't know one way or the other 2 from this incident report -- strike that. 3 You're not stating one way or the other about the 4 issue of the boxes stacked on top of the pallets when you 5 answered this inspection question? 6 A No. 7 MR. BAER: Objection. I'm not following your -- 8 BY MR. SHERMAN: 9 Q Sure. I'll rephrase it. No problem. When you 10 answered this inspection question on page three of the 11 report you weren't addressing whether or not the boxes were 12 stacked properly on the pallets? As I understand your 13 testimony you were addressing the pallets and where they 14 were positioned on the aisle? Am I stating that fairly? 15 A The area I was -- 16 MR. BAER: Why don't we just ask him what he meant 17 when he said that? 18 BY MR. SHERMAN: 19 Q That's fair. Okay. Why don't you tell me 20 exactly what you're speaking about? 21 A All right. Just that the area was neatly kept, 22 like I said. There was no -- no debris laying on' the 23 floor. Boxes weren't crushed, didn't appear to be any 24 leaking out of the boxes. 25 There was no pallet pieces lying on the floor Page 50 -Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 V FEBRUARY 9, 2009 Mnltl-Page ??"" Page 54 1 Page 561 1 sticking out as occasionally there might be, was no 2 basically any debris. It was pretty much a clear -- clean 3 area. 4 Q And what I'm getting at, and I think we're getting 5 close to it, you're not talking about, for example, the 6 condition that is showed on Vash 2 with regard to the way 7 the Charmin boxes are displayed on the pallet? 8 A No, no. 9 Q You weren't addressing that one way or the other? 10 A No. 11 Q And you weren't addressing the other side of Vash 12 2, the side closer to where she fell, in terms of how the 13 boxes were placed on the pallet? Is that a.fair statement? 14 A When you say other side, what -- had -- 15 Q In other words, the area that we talked about with 16 the Puffs, that box section? 17 A Right. 18 Q You're not talking about the way those Puff boxes 19 are displayed on the pallet? 20 A I was just giving a general area -- of the scene 21 itself. That wasn't specifically pinpointing anything. 22 Q Fair enough. You noticed on Section 4 of the page 23 that we're on that she wasn't wearing any type of shoes that 24 would have contributed to the accident? 25 A Which section? 1 Q Section 4 for fall down incidents? 2 A Okay. 1 just getting him to fill out the statement form. 2 Q Do you remember him as you're sitting here today? 3 A Vaguely. I remember -- I remember discussing 4 something with a man. 5 Q And it wasn't somebody that appeared to you to be 6 with Ms. Woll or someone she knew? 7 A No. 8 Q So this would be an independent eye witness to the 9 best that you can remember? 10 A Yes. 11 Q And this independent eye witness wrote an incident 12 report at the scene and said, I saw this lady hook her 13 sneaker on this pallet that was in the middle of aisle and 14 go down hard? 15 A Yes. 16 Q Do you agree I read that accurately? 17 A Yes. 18 Q And that's part of the company's incident report? 19 A Yes. 20 Q And if you had any facts or evidence to refute 21 that, any aspect of that witness statement, you would have 22 made a notation of that? 23 A If I would have what? 24 Q You would have made a notation if you had any facts 25 or evidence to refute what the witness said? Page 55 I Page 57 1 A I don't know. I don't mess at all -- whatever 3 MR. BAER: What's the question? 4 BY MR. SHERMAN: 5 Q You indicated she was wearing canvas Dockside type, 6 good for condition in terms of her footwear. 7 MR. BAER: Actually it says -- well, he can tell 8 you what he wrote. 9 THE WITNESS: Canvas type, Docksiders type, good, 10 fair condition. 11 BY MR. SHERMAN: 12 Q So you didn't have any facts or evidence to believe 13 that her footwear contributed to the accident? 14 A I had no way of knowing, no. 15 Q And you didn't believe when you completed the 16 incident report and spoke to her, Ms. Woll, that she was 17 suffering any kind of nausea, vertigo, dizziness, or 18 anything like that? 19 A No. 20 Q Okay. On the last page there's a statement of 21 signed witness, Peter Pope. Do you know who he is? 22 A No. 23 Q Did you talk to him personally? 24 A Well, I know he was there as a witness for her, but 25 1 don't know him other than that. And talking to him was 2 they write, they write. 3 Q But somewhere on this incident report there's a 4 section, as we've talked about, for you to write notes. 5 And if you felt that that signed witness statement was 6 inaccurate -- 7 A If I felt any part of this report was inaccurate 8 based upon their testimony or to me, then I would have noted 9 it somewhere, yes. 10 Q Now, did you talk to Ms. Woll after the incident? 11 A I believe I was asking more her condition, how she 12 feels, and if she needs medical attention or something like 13 that. 14 Q Did you -- can you describe -- I know you've told 15 us what she explained about and what you felt from all the 16 information you knew she was injured. Can you describe what 17 you saw about her physical condition? 18 A She appeared to be like she was in pain. She 19 couldn't write very well with her wrist, you know. Her 20 wrist was hurting. She did complain about the pain being 21 in her hip, you know, and her feet. But that's pretty 22 much, you know, what I can remember. 23 Q How long was she at the scene approximately? 24 A I'm thinking maybe total from beginning to end 25 maybe about a half hour, 20 minutes. Page 54 - Page 57 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 lot- Multi-Page TM TODD VASH FEBRUARY 9.2009 Page 58 1 Q Did you have any conversations with her? Did you 2 say anything to her? 3 A Not that I can recall. 4 Q Did you apologize in any way on behalf of the store 5 or anything like that? 6 A I don't remember. 7 Q Did you hear Ms. Woll say anything to you other 8 than complaints about her injuries? 9 A No. 10 Q And other than a description of how the incident 11 occurred? 12 A Not that I can recall. 13 Q Have you seen Ms. Woll after the incident? 14 A No. 15 Q Did you see how she left the area? 16 A No. I was trying to think. I don't know if she 17 walked on her own, because she didn't have a wheelchair in 18 the store. But I can't remember. Something about a 19 wheelchair. I'm not sure if she wanted it to go. 20 Q So you don't know if she left by emergency? 21 A No, she didn't leave by emergency. 22 Q She left on her own? 23 A With her friend. 24 Q Do you know of any other statements that she made 25 to anyone at any time about this incident? Page 59 1 A No. 2 Q And you've already told me that you never spoke to 3 any other store personnel except for those conversations 4 that you had regarding the completion of this report; is 5 that right? 6 A Just ones that would have been immediately, like my 7 manager. 8 Q Now, I know you didn't do measurements, you didn't 9 take measurements of the area of the pallet that we're 10 talking about where the Puffs are? 11 A Right. 12 Q Do you know what I'm talking about? 13 A Yeah. 14 Q Can you give me any estimate as to whether there's 15 any wood sticking out further than -- strike that. 16 Can you give me any estimates as to whether there's 17 any wood sticking out beyond the area of where the box would 18 lay on the pallet? 19 MR. BAER: Which box? 1U BY MR. SHERMAN: 21 Q The box of Puffs. I'm sorry. 22 A The one she tripped on, an estimate of sticking 23 out? 24 Q Yes. 25 A No, I don't see any -- maybe -- it's hard to tell Page 60 1 on here at all. It's pretty close to the edge, maybe an 2 inch, half inch. 3 Q Would that inch or half inch -- I know you're doing 4 your best. 5 A That's from Exhibit 1. The Exhibit 1 picture on 6 the view you had right here of that shot, it appears to be 7 maybe about a half inch from that -- the bottom of the box 8 to the edge of the pallet. 9 Q And that's just your rough estimate? 10 A Rough estimate. 11 Q You've never taken a measurement? 12 A No, sir. 13 Q Do you know if that pallet's broken or not? 14 A It appears to be -- the bottom part appears to be 15 separated from the top, but not protruding, but separated, a 16 gap in between. 17 Q Is that something that would be expected back at 18 that time? 19 A Only if it would be hanging. When they bring the 20 pallets out sometimes the forklift won't go under there 21 right because of these boards. If they can't wheel it 22 freely, then yes, that pallet would not be used anymore. 23 Q You don't know from that time, as I understand your 24 testimony, whether that was the case back before she fell? 25 A No. Page 61 1 Q And you can't tell us from your own personal 2 knowledge or even from the pictures other than the estimate 3 that you were kind enough to give me how far the wood -- how 4 much the wood was sticking out beyond the box on display, 5 the Puff box? 6 MR. BAER: Other than what he just testified to? 7 BY MR. SHERMAN: 8 Q Other than what you just testified to? 9 A No, no. 10 MR. SHERMAN: Off the record. 11 (Discussion held off the record.) 12 BY MR. SHERMAN: 13 Q Would it be -- would it be fair to say that if -- 14 strike that. Do you have an idea as -- as safety -- in 15 your position as a risk manager how much sticking out, to 16 use your word, would be acceptable for a display of that 17 nature that's shown in Vasb I and 2, particularly the area 18 where the Puff boxes are on the pallet? 19 MR. BAER: Objection. 20 THE WITNESS: Okay. But, no, I have no way. 21 BY MR. SHERMAN: 22 Q Can you give me an idea, an estimate, an opinion 23 from your position and vantage point as a manager in risk 24 management how many inches would be acceptable, how many 25 centimeters, whatever measurement you feel comfortable with Page 58 -Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220!717-393-5101 V. 2009 Multi-Page TM Page 62 1 would be acceptable to stick out before you call it a 2 tripping hazard? 3 MR. BAER: I'm going to object. Are you talking 4 about this specific photograph or condition in general? I 5 mean -- 6 BY MR. SHERMAN: 7 Q Fair enough. I'll pare it down as much as I can. 8 I understand. Taking a look at Vash 2, do you see -- do 9 you see Vash 2? 10 A Yes, sir. 11 Q Okay. We've talked a lot about that particular 12 display, the one that's holding the Puff boxes. Do you see 13 that? Page 64 1 A No, sir. I mean, it could still be at our store. 2 They could have recycled it by now. I have no idea. 3 Q Is that pallet marked with a number? There's a 4 number. Was that pallet preserved? 5 A No. 6 MR. SHERMAN: Okay. Thank you. No further 7 questions. Thanks a lot for your patience. 8 THE WITNESS: Sure, no problem. 9 (Kmart Customer Incident Information was produced 10 and marked as Vash Deposition Exhibit No. 3.) 11 (Whereupon, the deposition was concluded at 3:25 12 p.m.) 13 14 A Yes. 14 15 Q Okay. Do you have-- using that display can you 15 16 give me, in your view as a risk manager and somewhat 16 17 experienced in safety, customer safety as you've described, 17 18 how many inches would be acceptable to stick out before 18 19 you'd call it a tripping hazard? 19 20 A I can't give an estimate of inches. If it looked 20 21 unsafe, you know, possibly I would just either have myself 21 22 do it or have somebody else look at it. But there's no 22 23 specific guideline. 23 24 Q So you're not saying whether an inch, a half inch, 24 25 two inches would be a guideline for you as a Kmart employee 25 Page 63 I to consider a tripping hazard? 2 MR. BAER: Objection. He already answered the 3 question. I'm going to instruct him not to answer. 4 BY MR. SHERMAN: 5 Q Okay. If you had seen a condition of a piece of 6 the wood sticking out, would it have been easy to fix? 7 A If it was sticking out, protruding, I -- I would 8 have addressed that. And it depends on how it was sticking 9 out. 10 Q Would it have been easy in terms of employee usage 11 and equipment to just move the pallet and then take the 12 boxes off, for example? 13 A It wouldn't have been difficult, no. 14 Q Could have taken a few minutes? 15 A Possibly. 16 Q A few minutes of an employee's time just to move 17 the boxes and get rid of the pallet, true? 18 A Yes. 19 MR. SHERMAN: Thank you. I don't have -- off the 20 record. 21 (Discussion held off the record.) 22 BY MR. SHERMAN: 23 Q As I understand it, you have no idea where the 24 whereabouts of that pallet presently is, the one closest to 25 where the F is on Vash 2? COUNTY OF DAUPHIN I : SS Page 65 2 COMMONWEALTH OF PENNSYLVANIA : 3 I, Donna E. Gladwin, a Notary Public, authorized to 4 administer oaths within and for the Commonwealth of 5 Pennsylvania, do hereby certify that the foregoing is the 6 testimony of Todd Vash. 7 I further certify that before the taking of said 8 deposition, the witness was duly sworn; that the questions 9 and answers were taken down stenographically by the said 10 Reporter-Notary Public, and afterwards reduced to 11 typewriting under the direction of the said Reporter. 12 I further certify that I am not a relative or 13 employee or attorney or counsel to any of the parties, or a 14 relative or employee of such attorney or counsel, or 15 financially interested directly or indirectly in this 16 action. 17 I further certify that the said deposition 18 constitutes a true record of the testimony given by the said 19 witness. 20 IN WITNESS WHEREOF, I have hereunto set my hand 21 this 21 st day of February, 2009. 22 23 Donna E. Glad-Ain, Reporter 24 Notary public 25 Page 62 - Page 65 - HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 %Ui EC0i QY'8N3d ? c Y .. ryul All $i.1L r? 5 X »? 5 i t4. ?'1G861?s RETENTION SHEET Loo v c 43 0 Full Name of. z EXHIBIT y 73 44 W vv uvl i UNAL JMCC I Z) Ir MUKt i MH1v t'rtV 1 VJ t-VK I L Mail original to: Kmart Customer Incident Center P. O. Box 5058, Troy, MI 48007-5058 Photo copy for store file --SEE BALK FOR PHOTOGRAPH INSTRUCTIONS— (37109"699-115 25/pk rev 8104 Joseph W. Gibley, Esquire jgibley@gibleylaw.com Frank W. Baer, Esquire fbaer(d?gibleylaw. com Attorney I.D. Nos. 5181x/43866 GIBLEY AND MCWILLIAMS, P.C. 524 N. Providence Road P.O. Box 1107 Media, PA 19063 (610)627-9500 PATRICIA WOLL Plaintiff, V. KMART CORPORATION Defendants. Attorney for Defendant Kmart Corporation COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO.: 08-3384 CERTIFICATE OF SERVICE I, Frank W. Baer, Esquire, hereby certify that a copy of the attached Sur Reply to Plaintiff's Response to Kmart Corporation's Motion for Summary has been served upon the following individuals by first class, United States mail, postage pre-paid, this 22" day of July, 2009. Christopher J. Marzzacco, Esquire COLGAN MARZZACCO, LLC 130 W. Church Street, Suite 100 Dillsburg, PA 17109 David B. Sherman, Esquire SOLOMON, SHERMAN & GABAY 8 Penn Center - Suite 2200 1628 JFK Blvd. Philadelphia, PA 19103 Respectfully submitted, GIBLEY AND cWILLIAMS, P.C. By: rank W. Baer, Esquire Counsel for Defendant Kmart Corporation ?(.}?f1.ClJ"l.l? OF i 1 IE [GOA JJ' 24 PM I CUM' "': ?11i- %1 " PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Patricia Woll vs. Kmart Corporation No. 08-3384 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant Kmart Corporation's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Christopher J. Marzzacco, Esquire, 130 W. Church Street, Ste. 100, Dillsburg, PA 17109 (Name and Address) David B. Sherman, Esquire, 1628 JFK Blvd., 8 Penn Ctr., Ste. 2200, Phila., PA 19103 (b) for defendants: Frank W. Baer, Esquire, 524 N. Providence Road, Media, PA 19063 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Sigrjature - Frank W. Baer Print your name Kmart Corporation October 2, 2009 Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE I, Frank W. Baer, Esquire, hereby certify that on this date, I mailed a true and correct copy of the Praecipe for Argument on behalf of defendant Kmart Corporation, to the below listed via First Class, U.S. Mail, with postage pre-paid as follows: Christopher J. Marzzacco, Esquire COLGAN MARZZACCO, LLC 130 W. Church Street, Suite 100 Dillsburg, PA 17109 David B. Sherman, Esquire SOLOMON, SHERMAN & GABAY 8 Penn Center - Suite 2200 1628 JFK Blvd. Philadelphia, PA 19103 GIBLEY McWILLIAMS, P.C. BY: Frank W. Baer, Esquire Attorney for Kmart Corporation DATED: October 2, 2009 CA/AL F}L,ED? 2009OCT -5 PK 12: 46 ViY? J is i Y COLGAN MARZZACCO, LLC. By: Christopher J. Marzzacco, Esquire I.D. No.: 78262 130 West Church Street, Suite 100 Dillsburg, PA 17019 (717) 502-5000 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL Plaintiff V. KMART CORPORATION Defendant No. 08-CV-3384-CV CIVIL ACTION -- LAW PRAECIPE TO REMOVE FROM ARGUMENT COURT TO THE PROTHONOTARY: Upon agreement of counsel for both Parties, please remove this matter from Argument Court, scheduled for November 25, 2009. Respectfully submitted, COLGAN MARZZACCO, LLC Date: /f - /Z - U By: Christ her J. arzzacco, E quire t ; 7 t tU'Z t 2009 NOV I c? Fi i 3: Cj 6 C,44 A L PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Patricia Woll vs. C -qrv.. ct; Kmart Corporation No. 08-3384 Term ri~r -' rv m 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demgt 6r to `° _ ' complaint, etc.): Ith Kmart Corporation's Motion for Summary pjvid ent ? 2. Identify all counsel who will argue cases: (a) for plaintiffs: t Christopher J. Marzzacco, Esquire, 130 W. Church Street, Ste. 100, Dillsburg, PA 17109 (Name and Address) David B. Sherman, Esquire, 1628 JFK Blvd., 8 Penn Ctr., Ste. 2200, Phila., PA 19103 (b) for defendants: Frank W. Baer, Esquire, 524 N. Providence Road, Media, PA 19063 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 7, 2010 Date: April 25, 2010 zaignature Frank W. Baer Print your name Kmart Corporation Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. PATRICIA WOLL, Plaintiff V. KMART CORPORATION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 08-3384 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER and EBERT JJ. ORDER OF COURT AND NOW, this 8th day of July, 2010, upon consideration of Defendant's Motion for Summary Judgment, and following oral argument held on July 7, 2010, Defendant's Motion for Summary Judgment is denied. BY THE COURT, J Wesley Oler, Jr/ Christopher J. Marzzacco, Esq. Colgan Marzzacco, LLP 130 W. Church Street Suite 100 Dillsburg, PA 17019 Attorney for Plaintiff Joseph W. Gibley, Esq. Frank W. Baer, Esq. Gibley and McWilliams 524 N. Providence Road P.O. Box 1107 c; Media, PA 19063 ` = a Attorney for Defendant 6£ S /YLa`[ l -n 7 f g?ld `-?> rv ? ANAPOL SCHWARTZ WEISS COHAN FELDMAN & SMALLEY, PC By: Christopher J. Marzzacco, Esquire Attorney ID No. 78262 252 Boas Street Harrisburg, PA 17101 Phone: (717) 901-3500 Fax: (717) 909-0300 cmarzzacco(cDcm law1. corn Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA WOLL, Plaintiff V. NO. 08-3384 KMART, CIVIL ACTION - LAW Defendants =M -0 rn- cnr- - ?v PRAECIPE TO SETTLE, DISCONTINUE & END x+. C)`n TO THE PROTHONOTARY: om Please mark this action as settled, discontinued and ended. CI' -R Respectfully submitted, ANAPOL SCHWARTZ Date: By: ??^---- Christopher J. Marzzacco, Esquire