Loading...
HomeMy WebLinkAbout08-6453IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA //?? -T No. CIS - laµ?3 l..?w tit Civil Action -( ) JURY TRIAL DEMANDED MS. AUDREY SMITH OUTBACK STEAKHOUSE OF FLORIDA,INC. 2201 GEORGETOWN ROAD Versus 25 GATEWAY DRIVE MIDDLETOWN, PA 17057 MECHANICSBURG, PA 17050 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( ) PAtorney ( X )Sheriff KARL J. JANUZZI. ESQ. ' Shollenberoer & Januzzi, LLP 2225 Millennium Way a of Attorney Enola. PA 17025 (717) 728-3200 Supreme Court ID No. 65575 Date: 1 O 123148 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Pr thonotaryDate: /0A0 foR by Deputy ( ) Check here if reverse is issued for additional information PROTHON. - 55 ra \r Cti,-I 0 0 U i (]I?? 04 0 O ?x ? r n CD OV) SHERIFF'S RETURN - REGULAR CASE NO: 2008-06453 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH AUDREYS VS OUTBACK STEAKHOUSE OF FLORIDA MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon the OUTBACK STEAKHOUSE OF FLORIDA INC PLAINTIFF at 0019:18 HOURS, on the 4th day of November , 2008 at 25 GATEWAY DRIVE MECHANICSBURG, PA 17050. CAROLYN DOLLINS MANAGER a true and attested copy of WRIT OF SUMMONS by handing to together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 12.00 Affidavit .00 Surcharge 10.00 Postage 42 40.42 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 11/06/2008 SHOLLENBERGER J ZZI By: Q.Efputy She iff of A. D. BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, vs. Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) : NO. 08-6453 Civil Term OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive Mechanicsburg, PA 17050, Defendant(s) ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant Outback Steakhouse of Florida, Inc., in the above-captioned matter. Date: November 14, 2008 01 NORMAN W. BRIGGS, ESQUIRE Attorneys for Defendant Outback Steakhouse of Florida, Inc. y.. ., ?? ....., ts-? ..... +] J !P? `, d ;+, ?"? ?v ti BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, Plaintiff(s) vs. OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive Mechanicsburg, PA 17050, Defendant(s) Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-6453 Civil Term ;,'TO FILE COMPLAINT And now this _ day of - A, , 2008, a rule is hereby granted upon Plaintiff, Audrey Smith, to file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a judgment of non pros. Prothonotary ..:? ?, ._ _.;„ _? k 3i?a r,- •, v ? `:. . 3 ?_. _? "'w SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections 'to the claims set forth against you. You are warned that, if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED t LE HAN DEMANDADO A LISTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene vieinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomaro medidas y puede entrar una Orden contra usted sin previo aviso o notoficacaion y por cualquier queja o alivio que es pedido en la peticion do demanda. usted puede perder dinero o sus propiededas o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED f AND NOW comes the Plaintiff, AUDREY SMITH, by and through her attorneys, SHOLLENBERGER & JANUZZI, LLP, and respectfully represents the following: 1. The Plaintiff, AUDREY SMITH, is an adult individual who currently resides at 2022 Loch Haven Drive, Congers, Georgia 30013. 2. The Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., is a Florida business corporation that owns and operates the Outback Steakhouse store at 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The facts and circumstances hereinafter set forth took place on December 2, 2006, between 6:00 and 7:00 p.m., in the ladies' restroom at the Outback Steakhouse, 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania. 4. At the aforesaid time and place, the Plaintiff, AUDREY SMITH, entered the handicapped stall in the ladies' restroom, where she slipped on water on the floor, and fell. 5. As a result of the aforesaid incident, Plaintiff, AUDREY SMITH, has suffered serious and permanent injuries, including but not limited to the following: a. Left shoulder rotator cuff tear; b. Left shoulder labral tear; C. Left biceps tendinitis; d. Left ankle bone bruise; e. Left ankle injury; f. Aggravation of lumbosacral strain and sprain; g. Aggravation of chronic lumbago; 6. The aforesaid incident and resulting injuries to the Plaintiff, AUDREY SMITH, were a direct and proximate result of the negligence, carelessness and recklessness of Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., which consisted of: a. Creating a dangerous condition in a ladies restroom of its restaurant in the nature of standing water on the floor of the ladies' restroom; b. Failing to exercise the duty of reasonable care required of business establishments to protect patrons from known and obvious dangerous conditions existing on the premises known to be used and of necessity to be used by said patrons; C. Failing to provide any warning of the above referenced dangerous condition; d. Failing to exercise reasonable care to make the condition safe or to warn patrons of the condition of the floors in the restroom; and e. Creating or allowing a situation where it would be necessary for patrons to encounter dangerous conditions in the course of using the ladies' restroom at their place of business. 7. As a result of the aforesaid incident, Plaintiff, AUDREY SMITH, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 8. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 9. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed. 10. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has been and may continue to be subjected to further medical procedures and treatments, and all accompanying risks, hazards, pain, suffering, discomfort and economic losses associated therewith, and may be compelled to expend money for medicine and medical attention, for which damages are claimed. WHEREFORE, the Plaintiff, AUDREY SMITH, demands judgment against the Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, SHOLLENB,E2OER & JANUZZI, LLP By: Dated: February 2009 Ka /ney Januzzi, Esquire A I. D. No. 65575 22 Millennium Way Enola, PA 17025 717-728-3200 VERIFICATION I, Audrey Smith , hereby acknowledge that I am a Plaintiff in this action and that I have read the Complaint and that the facts stated herein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Signature Date: 2/25/09 GAGLOBAMPDATA\DOCS\INITIAL CONSULT DOCS (SETUPS)\Verification.wpd SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way, Enola, PA 17025 (717) 728-3200 ! FAX (717) 728-3200 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attornevs for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW this aS day of February, 2009, [hereby certify that I have served the within Complaint on the following by forwarding a true and correct copy of same in the United States mail, postage prepaid, addressed to: Norman W. Briggs, Esq. Briggs Law Office 300 Walnut Street, Suite 2 Philadelphia, PA 19106 By: t") ?? ?-., s.?, -? ?, ? ,t r ?" ' ?-? ' r: r? : _: ` , Y a.A ? ? -y,:? ? .L ? 3 ' ,. r ;, {__,) ? ? i -: ? .. t7 _? l F5.3 ?^ t _? BRIGGS LAW OFFICE, LLC By: NORMAN W. BRIGGS, ESQUIRE Attorney I.D. No.: 60940 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) NO. 08-6453 Civil Term VS. OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive Mechanicsburg, PA 17050, Defendant(s) DEFENDAN'S ANSWER TO PLAINTIFF'S COMPLAINT 1. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 2. Denied as stated. The entity is known as Outback Mid-Atlantic I, L.P., for which OSI Restaurant Partners, LLC, has an interest, which operate a restaurant known as "Outback Steakhouse," located at 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 4. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 5. (a-g) Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 6. (a-g) Denied as a conclusion of law for which no response is required. To the extent the allegations contained within this paragraph are deemed other than conclusions of law, it is denied that Answering Defendants acted in a careless and/or negligent manner. On the contrary, Answering Defendants acted in a reasonably prudent manner, and with all due care, under the circumstances. 7. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 8. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 9. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 10. Denied. After reasonable investigation, Answering Defendant did not possess sufficient information to admit or deny the allegations contained within this paragraph. Strict proof is therefore demanded at the time of trial. 2 WHEREFORE, Defendants Outback Steakhouse of Florida, Inc, demand judgment in its favor and against the Plaintiff, Audrey Smith, along with costs of said action. NEW MATTER 11. Plaintiff fails to state a cause of action upon which relief can be granted. 12. Plaintiff's cause of action is barred by the applicable statute of limitations. 13. Plaintiff's cause of action is barred and/or limited by the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7102 et seq. 14. Plaintiff's injuries were caused in whole or in part by individuals and/or entities which the Answering Defendant had no control over, and/or right to control. 15. Plaintiff's cause of action is barred by the Doctrine of Assumption of Risk. 16. Answering Defendant had no actual and/or constructive notice of the alleged dangerous and/or hazardous condition. 17. Answering Defendant acted in a reasonably prudent manner in the maintenance and clean up of any hazardous and/or dangerous conditions. 18. The alleged hazardous and/or dangerous condition is open and obvious. 19. Plaintiff's injuries, as alleged within the Complaint, were not caused by the incident described within the Plaintiff's Complaint. 20. Plaintiff was a trespasser at the time of the incident. 21. Answering Defendant owed no duty to the Plaintiff at the time of the incident. 3 WHEREFORE, Defendants Outback Steakhouse of Florida, Inc, demand judgment in its favor and against the Plaintiff, Audrey Smith, along with costs of said action. Respectfully submitted, Date: 4? LO By: BRIGGS L41 OFFICE, LLC NORMAN W. BRIGGS, Esquire 300 Walnut Street, Suite 2 Philadelphia, PA 19106 (215) 925-4632 Attorneys for Defendants 4 FILED--,:) =FICE OF THE F',Q ; 1°`n-NO AP?Y 2009 APR 17 PM 2: 01 BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, Plaintiff(s) VS. OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive . Mechanicsburg, PA 17050, Defendant(s) Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-6453 Civil Term DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ^ Kam'"' L:-7 t? J ni NOW COMES Defendant, Outback Steakhouse of Florida, Inc., by and through its attorney, Nicole R. Cohen, Esquire, hereby requests this Honorable Court to enter Summary Judgment in favor of the Defendant and against the Plaintiff, Audrey Smith. In support of its Motion for Summary Judgment, Defendant avers the following: 1. Plaintiffs filed suit against Defendant Outback Steakhouse of Florida, Inc. ("Outback") as a result of a slip-and-fall accident occurring on December 3, 2006, at an Outback Steakhouse in Mechanicsburg, Pennsylvania. 2. The Plaintiff, Audrey Smith, alleges that her accident occurred while she was a business invitee at the aforementioned premises. 1 3. Plaintiff claims that during her meal, while using the handicapped stall in the woman's restroom, she was caused to slip and fall on a puddle of water on the floor behind the toilet. (Smith Dep., pp.6-7, attached as Exhibit "A.") 4. There are no known witnesses to the incident in question or to the puddle of water that was allegedly on the floor. 5. The manager on duty, Timothy Meszarus, testified that a post-accident inspection revealed condensation on the knob underneath the toilet. (Meszarus Dep., Page 41, attached as Exhibit "B.") 6. Mr. Meszarus also testified that there was no puddle on the floor of the bathroom stall and that the toilet was not broken in any way. (Exhibit "B.", page 40) 7. As a result of her fall, Plaintiff claims she sustained injuries. 8. Plaintiff's negligence claim is based on the assertion that Outback created a dangerous condition, failed to exercise reasonable care in protecting patrons from the dangerous condition and failed to provide warning to patrons of the dangerous condition. (See Plaintiff's Complaint attached hereto as Exhibit "C.") 9. In Pennsylvania, an invitee must present evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, i.e., that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition. Zito v. Merit Outlet Stores, 436 Pa.Super. 213, 647 A.2d 573, 574-75 (Pa. Super., 1994). 10. Plaintiff has failed to establish that Outback had actual knowledge of the alleged puddle. 11. Plaintiff has failed to establish that Outback should have been aware of the spill before Plaintiff fell. 2 12. There are no facts that indicate that Outback was responsible for creating the condition or negligent in failing to become appraised of the situation. 13. There is no genuine issue of material fact. Thus, the Defendant, Outback Steakhouse of Florida, Inc., is entitled to judgment as a matter of law. WHEREFORE, Defendant, Outback Steakhouse of Florida, Inc., respectfully requests that this Honorable Court enter an order in the proposed form. Date: March 12, 2010 BRIGGS LAW OFFICE, LLC By: M _r- NICOLE R. COHEN, Esquire 300 Walnut Street Philadelphia, PA 19106 (215) 925-4632 Attorney for Defendant Outback Steakhouse of Florida, Inc. e-mail: ncohen(a)thebrislaw com 3 BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, Plaintiff(s) VS. OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive Mechanicsburg, PA 17050, Defendant(s) Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-6453 Civil Term DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. MATTER BEFORE THE COURT Defendants, Outback Steakhouse of Florida, Inc. ("Outback"), by and through its attorney, Nicole R. Cohen, Esquire, respectfully requests that this Honorable Court enter summary judgment in favor of Defendant and against Plaintiff, Audrey Smith. II. STATEMENT OF QUESTION INVOLVED Whether Plaintiffs' negligence claims should be dismissed because the Plaintiff Audrey Smith has failed to establish a breach of duty of care of the part of Outback. Suggested Answer: Yes III. FACTS This matter arises out of a slip-and-fall accident occurring on December 3, 2006, at an Outback Steakhouse in Mechanicsburg, Pennsylvania. The Plaintiff, 1 Audrey Smith, alleges that her accident occurred while she was a business invitee at the aforementioned premises. Plaintiff claims that during her meal, while using the handicapped stall in the woman's restroom, she was caused to slip and fall on a puddle of water on the floor behind the toilet. (Smith Dep., pp.6-7, attached as Exhibit "A.") There are no witnesses to the incident in question or to the alleged puddle of water that was on the floor. The manager on duty, Timothy Meszarus, testified that a post-accident inspection revealed condensation on the knob underneath the toilet. (Meszarus Dep., Page 41, attached as Exhibit "B.") Mr. Meszarus also testified that there was no puddle on the floor of the bathroom stall and that the toilet was not broken or in need of repairs. (Exhibit "B.", page 40) Plaintiff offers no contrary evidence on the issue of whether the toilet was not working properly. As a result of her fall, Plaintiff claims she sustained injuries. Plaintiff's negligence claim is based on the assertion that Outback created a dangerous condition, failed to exercise reasonable care in protecting patrons from the dangerous condition and failed to provide warning to patrons of the dangerous condition. Defendant Outback now moves for Summary Judgment. Pursuant to Pennsylvania law, Plaintiff is required to show that Outback either knew of the alleged puddle (actual notice) or that the spill was on the floor for such a period of time that Outback should have known of the puddle (constructive notice). There are no facts to support either position. Plaintiff has failed to establish that Outback had actual knowledge of the alleged puddle. Plaintiff has failed to establish that Outback should have been aware of the spill before Plaintiff fell. There are no facts indicating that Outback was responsible for creating the condition or negligent in failing to become 2 appraised of the situation. As such, Plaintiff's claim must fail and Outback's Motion for Summary Judgment must be granted. IV. LEGAL ARGUMENT A. STANDARD OF REVIEW When reviewing a trial court's imposition of summary judgment, Pennsylvania Courts have stated: Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of summary judgment. In so doing, we accept as true the well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Felton by Felton v. Spratley, 433 Pa-Super. 474, 640 A.2d 1358 (Pa. Super., 1994). Pennsylvania R.C.P 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Thus, summary judgment may be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of 3 law. David Pflumm Paving & Excavating Inc. v. Foundation Services Co., 816 A.2d 1164, 1167 (Pa. Super. 2003). In this matter, there is no dispute as to any material facts, and Outback is entitled to a judgment as a matter of law. Plaintiff has not shown that Outback had actual or constructive knowledge of the alleged substance prior to Plaintiff's fall. There are no facts to indicate that Outback was responsible for creating the condition, or was negligent in failing to become appraised of the situation. Accordingly, Defendant Outback Steakhouse of Florida, Inc.'s Motion for Summary Judgment must be granted. B. LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OR NOTICE Plaintiff claims that she was a business invitee at Defendant Outback Steakhouse. In Pennsylvania, Restatement (Second) of Torts § 343 defines the duty that a possessor of property owes to a business invitee as follows: 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 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. Restatement (Second) of Torts § 343, See Also Moultrev v. Great A & P Tea Co. 281 Pa. Super. 525, 422 A.2d 593 (Pa. Super., 1980). It does not follow from § 343, however, that the proprietor of a store is an insurer of its patrons. Zito v. Merit Outlet Stores, 436 Pa.Super. 213, 647 A.2d 573, 574-75 (Pa. Super., 1994). Neither the mere existence of a harmful condition in a store 4 nor the mere happening of an accident due to such a condition evidences a breach of the proprietor's duty of care or raises a presumption of negligence. Id. at 575, See also Moultrey v. Great A & P Tea Co. 281 Pa. Super. 525, 422 A.2d 593 (Pa. Super., 1980). Rather, an invitee must present evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, i.e., that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition. Id. The invitee can satisfy this burden by establishing, that the proprietor had constructive notice of the harmful condition. Id. The invitee can also satisfy its burden by establishing that the proprietor helped to create the harmful condition or had actual notice of it. Id. "What constitutes constructive notice must depend on the circumstances of each case, but one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Rogers v. Horn. & Hardart Baking Co., 183 Pa.Super. 83, 127 A.2d 762, 764 (Pa. Super., 1956). In Rogers, the Court held that spilt soup on the floor was too transitory a condition to charge the defendant with notice. Plaintiff had failed to meet the burden of proving the cause of his fall or negligence on the part of the defendant when he testified that some stew had caused him to fall because he had it on his clothing. He went on to say that he did not see it on the floor, he did not know how it got there and there was no testimony showing that there was anything on the floor before he fell. The court went on to state, "[e]ven if we were to assume that he fell because of `some stew or something,' there is no testimony as to how or when this slippery substance came to be on the floor. There was no evidence form which a jury could find that the defendant had actual or constructive notice of the existence of a hazardous condition 5 which he was negligent in not correcting. Id. at 764., See also Neve v. Insalaco's. 2001 PA Super 71, 771 A.2d 786 (Pa.Super.,2001). In the instant case, there is no evidence of either actual or constructive knowledge on the part of Defendant Outback Steakhouse. Plaintiff testified at her deposition that she did not know how long the substance (water) was on the floor prior to her fall. (Exhibit "A.", Page 13) Furthermore, Plaintiff failed to establish that anyone from Outback was aware of the substance before her fall. (Exhibit "A.", Page 14) Moreover, Plaintiff has not provided any expert reports imparting either actual or constructive knowledge onto Defendant Outback Steakhouse. Plaintiff testified that she did not notice the substance on the floor prior to the fall. (Exhibit "A", p. 11). There are no facts to show that Outback was actually aware of the alleged substance prior to the accident in question. Timothy Meszarus, manager on duty, testified that he did see a small amount of water in the back of the stall during his post-accident inspection. (Exhibit "B.", Page 41) He testified however that he believed it to be as little as "condensation" rather than a puddle. Id. Furthermore, Mr. Meszarus confirmed that Outback was not aware of the substance on the floor prior to the incident in question. Id. There are no facts in the record to show the alleged substance was on the floor for such a period of "time as to be, in the exercise of reasonable care, discoverable and remediable before the occurrence of the injury." For all we know, the substance arrived on the floor only moments before Plaintiff fell. The jury would be left to speculate as to how the substance arrived on the floor, or how long the droplets were present. The present matter is similar to the facts in Rogers in that there was no proof tendered whatsoever as to the cause of the dangerous condition in question. The 6 Plaintiff in the present matter has failed to prove that Outback Steakhouse had any prior notice of the condition or that it somehow breached its duty of care to plaintiff. Therefore, in the absence of any circumstantial proof to the effect that a recognized duty of care has been breached, a plaintiff is not entitled to the inference of negligence that flows from the res ipsa loquitur doctrine. Accordingly, Plaintiff has failed to show a necessary element in her negligence claim against Defendants Outback Steakhouse of Florida, Inc. Thus, her claim must fail. IV. CONCLUSION In conclusion, Defendant Outback Steakhouse of Florida, Inc. asserts that Plaintiff has failed to prove an essential element to her claim for negligence: actual or construction knowledge of the hazard. Accordingly, there are no issues of material fact which would allow a rational fact-finder to resolve the disputed issue in favor of Plaintiff. Summary Judgment is appropriate in this matter and Defendant Outback Steakhouse of Florida, Inc.'s motion should be granted. BRIGGS LAW OFFICE, LLC Dated: March 12, 2010 6- NICOLE R. COHEN, ESQUIRE Attorney for Defendant Outback Steakhouse of Florida, Inc. 7 BRIGGS LAW OFFICE, LLC By: NICOLE R. COHEN, ESQUIRE Attorney I.D. No.: 204015 300 Walnut Street Suite 2 Philadelphia, PA 19106 (215) 925-4632 AUDREY SMITH 2201 Georgetown Road Middletown, PA 17057, vs Attorney for Defendant Outback Steakhouse of Florida, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff(s) : NO. 08-6453 Civil Term OUTBACK STEAKHOUSE OF FLORIDA, INC. 25 Gateway Drive Mechanicsburg, PA 17050, Defendant(s) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Summary Judgment was served via telefax and ordinary mail upon the following on March 12, 2010: Karl J. Januzzi, Esquire Shellenberger & Januzzi, LLP 2225 Millennium Way Engle, PA 17025 Date: March 12, 2010 BRIGGS L W OFFICE, LC By: NICOLE R. COHEN, Esquire 300 Walnut Street, Suite 2 Philadelphia, PA 19106 (215) 925-4632 Attorney for Defendant Outback Steakhouse of Florida, Inc. e-mail: nbiggs(a)thebri slaw com EXHIBIT A CC PE-) IV AUDREY SMITH, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V : NO.: 08-6453 : CIVIL ACTION - LAW OUTBACK STEAKHOUSE OF . FLORIDA, INC., JURY TRIAL DEMANDED DEFENDANT DEPOSITION OF: AUDREY SMITH TAKEN BY: DEFENDANT BEFORE: DIANE F. FOLTZ, RMR NOTARY PUBLIC DATE: JULY 15, 2009, 1:55 P.M. PLACE: SHOLLENBERGER & JANUZZI, LLP 2225 MILLENNIUM WAY ENOLA, PENNSYLVANIA APPEARANCES: SHOLLENBERGER & JANUZZI, LLP BY: KARL J. JANUZZI, ESQUIRE FOR - PLAINTIFF BRIGGS LAW OFFICE BY: NICOLE R. COHEN, ESQUIRE FOR - DEFENDANT ALSO PRESENT: REGINA BENJAMIN JACOB HANSEN .. 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 0 Lancaster 717.393.5101 Multi-Page AUDREY SMTITi JULY 13, zoo9 Page 2 Page 4 1 WITNESSES 1 Q And where do you currently reside? 2 NAME EXAMINATION 2 A Before -- at the time of the incident? 3 AUDREY SMITH 3 Q Well, where do you currently reside now? 4 BY: MS. COHEN 3 4 A Georgia. 5 5 Q In Georgia? 6 6 A Uh-hum. 7 Q And what is the address in Georgia? e 8 A What's that? I'm sorry. I don't know it off my 9 9 heart. I just moved there with my daughter. 10 10 Q Okay. That's okay. And when did you move to 11 11 Georgia? 12 12 A It's been over, what, three months. 13 13 Q And before you moved to Georgia where did you 14 14 live? 15 15 A 2201 Georgetown Road in Middletown, 17057. 16 16 Q Is that where you lived at the time of this 17 17 accident? is 18 A Yes. 19 19 Q And who did you live there with? 20 20 A Myself. 21 21 Q And were you married at the time of the accident? 22 22 A No, single. 23 23 Q What is your date of birth? 24 24 A 5/22/50. 25 25 Q Social Security number? Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are 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 AUDREY SMITH, called as a witness, being duly 9 sworn, tested as follows: 10 EXAMINATION 11 BY MS. COHEN: 12 Q Good aftemoon, Ms. Smith. My name is Nicole 13 Cohen. I represent Outback Steakhouse for an action that 14 you brought for an incident that had taken place on 15 December 3rd, 2006. 16 You were present when your attorney gave the 17 instructions to Mr. Meszaros. Do you need me to repeat 18 anything? 19 A No. 20 Q Okay. And you understand that there is a court 21 reporter taking down everything that you and I say? 22 A Yes. 23 Q Can you please state your full name for the 24 record? 25 A Audrey L. Smith. Page 5 1 A 160-38-8189. 2 Q Are you under the influence of any drugs or 3 alcohol today? 4 A No. 5 Q Is there any reason why you wouldn't be able to 6 understand my questions correctly and answer them to the 7 best of your knowledge? 8 A No. 9 Q Have you ever been convicted of a crime? 10 A No. 11 Q And what is your education level? 12 A I went to the 11 th grade. 13 Q Do you recall the incident that we're here for 14 today? 15 A Yes. 16 Q And do you recall the date of that incident? 17 A Yes, 12/3/06. 18 Q Do you know what day of the week that was? 19 A A Sunday. 20 Q And what time of day did the accident occur? 21 A Between 5:00 -- I think it was between 5:00 and 22 7 :00. 23 Q Had you been to this Outback location before? 24 A No. 25 Q So this was your first time -- Page2-Page s HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 AMY SAWTH •-PrM JULY I Page 6 Page 8 1 A Yes. 2 Q -- at the MwImicsburg location? 3 A Yes. 4 Q And who were you dining with that evening? 5 A My two daughters. 6 Q Did you all come in the same car? 7 A Yes. 8 Q Did you drive? 9 A No. 10 Q And how long were you at the Outback before the 11 accident occurred? 12 A Maybe, maybe five, ten minutes. 13 Q So you had just been seated? 14 A I had just, yeah, just got seated. 15 Q Did you c anume any alcoholic beverages during 16 your meal? 17 A No. 18 Q Please describe for me in your own words how the 19 incident happened. 20 A Well, we came into Outback Steakhouse, and we -- 21 they seated us. And I took my coat off, and I went to the 22 ladies' room, and when I -- I usually use the handicapped 23 stall because I'm handicapped. So I went to the 24 handicapped stall, and I had taken my pants down to use the 25 bathroom, but before I could Ili my pants down I slipped, Page 7 1 and to keep from falling backwards on my back, I went this 2 way (indicating) and hit my shoulder. 3 Q When you say this way -- 4 A My feet twisted underneath me. 5 Q When you say you fell this way, are you referring 6 to your left? 7 A Yes. 8 Q You fell to the left? 9 A Yes. 10 Q Okay. And which direction were you facing when 11 you slipped? 12 A Backwards. 13 Q So you were facing the toilet? 14 A Yes. My back was to the toilet. 15 Q Your back was to the toilet? 16 A Yes. 17 Q And do you know, did both of your feet slip or 18 one of your feet? 19 A My right foot went underneath me. I mean my left 20 foot. I'm so sorry. 21 Q That's okay. 22 A My left. I'm sorry. 23 Q So your left foot went underneath you? 24 A Yes. 25 Q You said instead of falling directly backwards -- 1 A I tried to keep myself from going backwards. I 2 went -- I went sideways to keep from falling on my back. 3 Q Did any part of your body come in contact with 4 the floor? 5 A Yeah. 6 Q And which part of that? 7 A My feet and my back. 8 Q Did any part of your body come in contact with 9 the wall? 10 A No. My shoulder hit the toilet seat, my left 11 shoulder. 12 Q Did any other part of your body come in contact 13 with the toilet? 14 A My shoulder, my left shoulder. 15 Q So other than your left shoulder, did you -- 16 A And my back. When I hit backwards I guess I so 17 much hit the toilet and so much hit the -- yeah, because 18 it's bigger. The toilet is bigger than a regular toilet. 19 Q Okay. So you were saying your shoulder hit the 20 toilet and some of it hit what, the wall? 21 A No, I didn't hit the wall. I hit the toilet. 22 Q Okay. But you were about to say that some of 23 your shoulder hit the toilet seat and some of your shoulder 24 hit -- 25 A No. I said my shoulder, part of my shoulder and Page 9' 1 part of my back. 2 Q Okay. okay- 3 A From falli this way I'm 90109 to, You know, go 4 backwards 09&0448). 5 Q So you was still tilted backwards? 6 A Right. 7 Q But you were just -- 8 A Yeah. 9 Q You were in the process of turning? 10 A Right. 11 Q Okay. And when you walked into the handicapped 12 stall which side is the toilet paper? 13 A I think -- I don't gall, but I'think maybe its 14 the right side. 15 Q And was there a bar of any type that you could 16 hold onto? 17 A I don't recall. 18 Q And you said that you usually used the 19 handicapped stall because you're handicapped? 20 A Yeah. 21 Q Please explain to me what you mean by 22 handicapped. 23 A Because I have a bad -- I have a bad beck. 24 Q Okay. And what causes your bad back? 25 A I had surgery on my back. Page 6-Page 9 HUGMS.. ALBRWUT, FOLTZ A 1 TALE 717-540-4220/717-393-5101 Multi-Page nK AUDREY SMITH T1r TT v t c )nnn Page 10 1 Q When did you have surgery on your back? 2 A '97. 3 Q What exactly was wrong with your back in 1997? 4 A I -- I -- I fell. I got hurt at work. 5 Q What type of surgery did you have? 6 A Low lumbar, I think it was a lower lumbar. I 7 can't recall because it's been since '97, so I can't 8 remember, but I know it was my low lumbar or something in 9 my back, the lower part of my back. 10 Q Okay. We'll coine back to that, back to the 1 l incident that took place on December the 3rd, 2006. Were 12 there any witnesses in the bathroom at the time? 13 A Nobody, nobody. 14 Q Was there anything nearby that you used to break 15 your fall? 16 A No. 17 Q And what did you do immediately after you fell? 18 A I just -- I just laid there. I couldn't get up. 19 Q How long did you lay there? 20 A For maybe 20, 25 minutes until I was able to 21 move. 22 Q And within those 20 to 25 minutes neither of your 23 daughters came to check where you were? 24 A No. 25 Q And nobody else came into the bathroom during Page 12 1 see anything because I wasn't paying attention. 2 Q So when was the first time that you actually 3 noticed that there was a wet substance on the floor? 4 A After I fell and got up and I was wet. 5 Q And what part of you was wet? 6 A My -- my shirt and my -- the back of my pants 7 (indicating). 8 Q While you were on the floor for 20 to 25 minutes, 9 did you inspect the floor? 10 A No. 11 Q Did you see or attempt to look to see where the 12 water was coming from? 13 A NO. 14 Q What were the dimensions of the wet substance 15 about approximately, about what size? 16 A I don't recall. All I know is when I got up I 17 was soaking wet. I don't recall. 18 Q So you never once looked down to see, see what 19 the actual liquid was or how big it was? 20 A No, I was in so much pain to try to find out what 21 it was. 22 Q Would you say that the entire -- the floor of the 23 entire stall was wet or just a portion of the floor was 24 Wet? 25 A I don't recall. Page 11 Page 13 1 that time? 1 Q Do you remember the color or the texture of the 2 A No. 2 substance that was on the floor? 3 Q Do you recall what kind of floor the bathroom 3 A No. 4 had? 4 Q Was there any colored stain on your pants? 5 A No. 5 A No. 6 Q Was there only one handicapped stall in the 6 Q Did you smell the liquid at all? 7 restroom? 7 A No, I didn't smell it. All I know, I was wet. I 8 A Yes, I think. I only seen one. 8 was just thinking it was water. I didn't know what it 9 Q When you opened up the stall to the handicapped 9 was. to -- the door to the handicapped stall in the Outback 10 Q So when you say that there was water on the 11 bathroom, did you see any water on the floor? 11 floor, it was just a guess that it was actually water? 12 A I didn't pay attention. 12 You're not sure what type of liquid it was? 13 Q And why weren't you paying attention? 13 A No. 14 A Because I went in there to use the bathroom. 14 Q Sorry. That was probably a poorly asked 15 Q So where were you looking when you first walked 15 question. You're not sure that it was water, you just know 16 into the bathroom stall? 16 that you were wet; is that correct? 17 A I wasn't. I just turned around and proceeded 17 A I don't know what. I don't know what it was. 18 taking my -- trying to pull my pants down to get to the 18 Q And you don't know where it was coming from? 19 bathroom. 19 A No. 20 Q Did you notice if there was any debris on the 20 Q Do you know how long the substance was on the 21 floor? 21 floor before you fell? 22 A No. 22 A No. 23 Q No, you didn't notice, or no, there was nothing 23 Q Do you know where the substance came from? 24 on the floor? 24 A No. 25 A I didn't see --I didn't see no debris. I didn't 25 Q Do you know if anybody at Outback was aware that Page 10 -Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 AU Y NTH A^a TM JULY 15, zuuv Page 14 1 there was a substance on the floor before you fell? 2 A No. 3 Q Sorry. That was probably a poorly asked 4 question. To your knowledge, was anybody from Outback 5 aware that there was a substance on the floor prior to the 6 fall? 7 A When the guy came in there and after my daughter 8 then sent the waitress to let them know that I fell. 9 Q But to your knowledge was anybody at Outback 10 aware that there was a liquid on the floor before you fell? 11 A No. 12 Q In one of your Answers to Interrogatories it 13 stated that you believed that a manager had knowledge of 14 the condition on the floor. Do you know why you would havf 15 written that? 16 A Because the manager told me that it was leaking 17 from around the bottom of the toilet. 18 Q And what was the name of that manager? 19 A Well, the name that he told me, his name was 20 Andy. That's the name they gave me. They didn't give no 21 last name. They just gave me -- he gave me some of his 22 information. He said his name was Andy. 23 Q Did he come into the bathroom while you were in 24 the bathroom? 25 A No, nobody came in. Page 15 1 Q So how did he know that the water was leaking 2 from the toilet? 3 A He -- he said -- I don't know if he sent someone 4 in there or not. He told me that he sent some= in to see 5 what was going on in there, and then he came back out and 6 said it was leaking from around the toilet. 7 Q So when your answer says that you believed the 8 manager had knowledge of the conditions that -- your 9 knowledge is just that he knew there was a leak after the 10 accident? 11 A Yeah. 12 Q You didn't -- 13 A Yeah, after he went back and looked, after I came 14 out the bathroom, he said he sent somebody in, and they 15 said it was leaking from around the toilet. He told me and 16 my daughters that it was leaking from around the toilet. 17 Q But he never told you that he knew it was leaking 18 prior to the accident? 19 A No. 20 Q And when you were using the toilet -- did you 21 ever end up -- scratch that. I'm sorry. 22 Did you end up using the restroom after you had 23 fallen? 24 A No. 25 Q Did you notice that anything was not working with Page 16 1 the toilet, any unusual sounds or anything that looked 2 unusual? 3 A No. 4 Q Can you tell me about the lighting conditions in 5 the bathroom? 6 A It seemed like a lot of lighting to me. I don't 7 remember, but it wasn't -- it wasWt a dull lighting. 8 Q So after you -- after you sat on the floor for 20 9 to 25 minutes, then what happened? 10 A Then I proceeded with my right hand trying to 11 push up on the toilet to get up. 12 Q So you used the toilet to stand up? 13 A Yeah. 14 Q And where did you -- did you leave the bathroom 15 at that point? 16 A Yeah, I limped out, and my kids asked me what was 17 wrong, and I told than I fell. 18 Q So you went fist to your table? 19 A Yes. 20 Q And then when did you first notify Outback about 21 what had happened? 22 A I told my daughter, and she went and got him. 23 Q So your daughter went and got who you believed -- 24 A The waitress. 25 Q The waitress? Page 17 1 A Yes. 2 Q Okay. Do you know what the waitress' name was? 3 A No, I don't recall. 4 Q When did Andy get involved in the situation? 5 A When did Andy? Well, when the waitress went and 6 got him. 7 Q Do you know if Andy actually went and inspected 8 the substance on the floor? 9 A I don't know. He left, but I don't recall if be 10 went into the tort or not. 11 Q And after he left did he ever come back and speak 12 with you? 13 A Yes. 14 Q Do you recall what he told you specifically about 15 the restrooom or the c =hat was on the floor? 16 A Yeah, that's when he told us it was Waking from 17 around the toilet. 18 Q Did he say what the cause of the leak was? 19 A No. 20 Q Did he say how long it had been Waking? 21 A No. 22 Q Did he confirm that it was actually water on the 23 floor? 24 A Yes, I'm pretty sure. 25 Q Was there anybody else that you spoke with at Page 14 -Page '17 HUGHQES?,. ALRAWA , FOLTZ & 1 TALE 717-540-02201717-393-5101 Multi-Page TM AUDREY SM1TH Page 18 1 Outback about this accident except for the waitress and a 2 manager that you believe to be Andy? 3 A No. 4 Q Did anybody offer you any medical assistance? 5 A No. 6 Q Did you stay and finish your meal after the 7 incident happened? 8 A I couldn't eat. 9 Q So you got up and left? 10 A Yeah, my --yeah. 11 Q About how long after the incident took place did 12 you actually leave? 13 A It must have been around -- it was no more than 14 maybe 30, 45 minutes, something like that, because my 15 daughters was eating, and I didn't want to -- 16 Q So you sat with them while they ordered food? 17 A No, the food was already ordered. 18 Q Well, did they order the food while you were in 19 the bathroom? 20 A Yeah, they already ordered because I told them 21 what I wanted. 22 Q So when you went to the bathroom you told them to 23 order on your behalf? 24 A Yes. 25 Q So when you got back from the restroom the food Page 19 1 was on the table? 2 A No, it hadn't got there yet. I don't recall. 1 3 don't think it had got tyre yet by the time I got out 4 there. 5 Q But you sat with your daughters while they ate 6 their food and then paid the bill and left? 7 A Yeah, she -- I didn't pay for the gal. My 8 daughter paid. 9 Q And you didn't eat or drink anything at that 10 point? 11 A No. I drank a little bit, but I was in too much 12 pain. I had to leave. 13 Q Did you see anybody clean or remove the substance 14 after you fell? 15 A No. 16 Q Do you recall what kind of shoes you were wearing 17 at the time of the accident? 18 A New Balances. 19 Q Do you recall what the weather was like? 20 A It was cold. I don't remember if there was any 21 snow or anything. I don't think. I think it was dry. I 22 don't recall, but I think it was dry. I'm not for sure. 23 Q And how did you get home from dinner that night? 24 A My daughters, I rode with them. They drove me. 25 Q Did you go straight home after dinner? JULY 15, 2009 Page 20 1 A Yes. 2 Q When you fell in the handicapped stall at Outback 3 on December the 3rd, did you suffer any injuries? 4 A Yes. 5 Q And what injuries did you suffer? 6 A My left shoulder, my back and my left feet -- my 7 left foot. 8 Q When did you first feel the pain in your left 9 shoulder? 10 A Oh, a couple days later. 11 Q And when did you feel the pain in your back? 12 A Right away. 13 Q And the pain in your back, was that -- in which 14 part of your back were you feeling pain? 15 A Lower. 16 Q The same part of your back that was injured at a 17 prior accident? 18 A Yes. 19 Q The same type of pain that you were feeling as 20 you were recovering from your prior accident, or was it a 21 different type of pain? 22 A No, it had gotten a little worse. 23 Q When did you first feel pain in your left foot? 24 A When I fell, because it was twisted underneath 25 me. Page 21 1 Q And when did you first seek medical treatment for 2 any of those three injuries? 3 A With my back I went right away, and I went to my 4 doctor, called my doctor, and they got me in. 5 Q When you say right away, did you go the same day? 6 A No. 7 Q What day? 8 A I didn't go probably until around -- it must have 9 been around the 4th or 5th or something like that. I can't 10 remember. I can't recall the time. I have it, but I don't 11 recall it right now. 12 Q Were you feeling pain during that time? 13 A Yes. 14 Q And what did you do for the pain? 15 A I took medicine when I got home. 16 Q What type of medicine? 17 A Because I had Darvocets for my back anyhow, so 1 18 just took one of those. 19 Q And you said that you went -- you went almost 20 right away for your back pain to the doctor? 21 A Yeah, I had to call and get an appointment 22 first. 23 Q And which doctor was it? 24 A Which doctor, for my back? 25 Q Uh-hum. Page 18 -Page 21 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 AU&REY STH n n v 7 S IMAG p rm Page 22 Page 24 1 A Dr. Aquino and Dr. Violago. 1 continue treatment for your back? 2 Q Are they with the same practice? 2 A Because I moved to this area. 3 A No. 3 Q So the first time you were treating with 4 Q Okay. So -- 4 Dr. Violago was for your back injury from 1997? 5 A But I mean I worked with both of them. They -- 5 A Yes. 6 I'm under both of them 6 Q What type of doctor is Dr. Aquino? 7 Q But they're two separate -- 7 A Dr. Aquino is acupuncture. 8 A Yes. 8 Q When did you first start treating with him? 9 Q -- physicians? 9 A The same time I did with Dr. Violago. 10 A Uh-hum. 10 Q Were you seeing an acupuncture doctor in Beaver 11 Q And what type of physician is Dr. Violago? 11 Falls? 12 A Dr. Violago? He's a back doctor. 12 A In Pittsburgh. 13 Q And were you treating with him prior to this 13 Q In Pittsburgh? 14 incident? 14 A Yeah, all my doctors is out of Pittsburgh. 15 A Yes. 15 Q And what did they -- what -- well, who did you 16 Q When did you start treating with him? 16 treat with first immediately after this accident? 17 A Oh, I've been treating with him since I moved to 17 A Dr. Violago. Dr. Aquino, I went to him first, 18 the area. 18 and then I went to Dr. V because the acupuncture he gave me 19 Q Which was when? 19 for my back relieved some of pain, so I went stht to 20 A I've been here for almost ten years. 20 him. 21 Q Were you treating with Dr. Violago prior to your 21 Q So when you say you went straight to Dr. Aquino, 22 accident in 1997? 22 you think that was the day after the accident, within a day 23 A Yes. Not in 197, in '97. I had just moved to 23 or two? 24 the area, so they sent me to him, the doctor up here in 24 A Yes. 25 Harrisburg, so that's how I got Dr. Violago, because I had 25 Q What did Dr. Aquino do for you? Page 23 Page 25 1 to find a doctor up here in that area. 1 A He did different stuff to me. 2 Q So you were treating with Dr. Violago -- well, 2 Q When you say different stuff, describe for me 3 did you move here after the accident in 1997? 3 what he did for you. 4 A Yes. 4 A He did compresses, acupuncture. 5 Q And where did you move from? 5 Q Prior to the accident on December 3rd, 2006, when 6 A Not right away. 6 was the last time you had seen Tar. Aquino? 7 Q Where did you move from? 7 A Since the accident? 8 A Beaver Falls. 8 Q Prior, prior to this accident, when was the last 9 Q And when did you move from Beaver Falls? 9 time you had seen him? 10 A Oh, I can't recall because it's been like ten 10 A Oh, I was seeing him pretty often after the 11 years since I've been in Harrisburg, so I can't recall what 11 accident, and, then I went to Dr. V. I was going to both of 12 date that I moved. 12 them. 13 Q So you were treating -- 13 Q But prior to this accident, when was the last 14 A Because my kids moved me up here with them. 14 time? Like this accident happened on a Sunday. 15 Q Okay. But you think it was about ten years ago? 15 A Right. 16 A Yeah. Well, I've been in Harrisburg for like 16 Q Did you see Dr. Aquino on the Saturday before? 17 ten, nine, close to ten years. 17 A No, I don't see him on the wed. I seen him 18 Q So you were treating with a physician -- sorry. 18 during the weekday. 19 Scratch that. The accident that happened in 1997, were you 19 Q So when was -- 20 living in Beaver Falls at the time? 20 A It probably was on a Tuesday or Friday. Tbose 21 A Yes. 21 are the days I see him. 22 Q So you were treating with physicians in Beaver 22 Q So you probably saw Dr. Aquino three or four days 23 Falls? 23 prior to this accident? 9 24 A Yeah. 24 A Yes. 25 Q And those physicians sent you to Dr. Violago to 25 Q How often were you treating with him? Page 22 -Page 25 HUGHES, AIt', FOLTZ & NATALE 717-540-02201717-393-5101 Multi-Page rM AUDREY SNIITH n Tt v , c %AAA Page 26 1 A Oh, once, once -- for awhile I was doing it 2 every -- twice a week, and then he broke me down to once a 3 week. 4 Q So prior to this accident you were treating with 5 him once a week? 6 A Yes. 7 Q And after this accident how often did you treat 8 with him? 9 A It went back to twice a week. 10 Q Okay. I'm going to ask you the same question for 11 Dr. Violago. Prior to this accident when was the last time 12 you had seen him? 13 A Well, I see Dr. Violago -- I seen him once a 14 month. I was seeing him once a month. 15 Q So prior to this accident you were seeing Violago 16 once a month? 17 A Yes. 18 Q Do you recall how many days prior to this 19 accident you had seen him? 20 A The accident that happened at Outback? 21 Q Yeah. Before that when was -- this happened on a 22 Sunday. 23 A Right. 24 Q Did you see him that week leading up to the 25 accident? Page 27 1 A No, because I see him like once a month, and it 2 varies, the times they could give me, but I don't know. I 3 seen him in that month, but I don't recall what date. 4 Q All right. So you first went immediately after 5 this accident, you first went and saw Dr. Aquino. He did 6 acupuncture and compression; is that correct? 7 A Yes. 8 Q And then from that day forward you started 9 treating with him, you went twice a week? 10 A Yes. 11 Q And every time you went would he do the 12 compression and the acupuncture? 13 A He did the acupuncture. 14 Q Did you feel any relief from the acupuncture? 15 A A little, not a lot. 16 Q And how long would they -- 17 A They had to give me a couple shots. 18 Q Each time they would give you a couple shots? 19 A Not -- they couldn't give them to me every time I 20 went in there, but when the pain got worse they would give 21 me the shots. i 22 Q How often would the relief last after each visit? 23 A It really didn't -- it don't leave. It's 24 still -- constantly it's there, but I mean it relieved some 25 of the pain, but I still have a lot of pain in my back. Page 28 1 Q Okay. And then immediately after this accident 2 when was the first time you treated with Dr. Violago, how 3 many days after the accident? 4 A After the accident? Oh, I think he had me coming 5 like every week for awhile. I can't -- I can't recall 6 because it's -- 7 Q But it was within a couple days of the accident 8 that you went? 9 A Yes. 10 Q And do you recall what he did for you? 11 A I can't -- I can't recall at this moment. 12 Q Okay. Were those the only two physicians that 13 you were treating with for your back pain? 14 A Yes. 15 Q And how did you get to your appointment with 16 Dr. Violago and Dr. Aquino? Would you drive yourself? 17 A No, my kids would drive me for awhile. 18 Q Would they go into the appointments with you? 19 A No, huh-uh. They dropped me off and come back 20 and pick me up. 21 Q Did you have a family doctor at the time of the 22 accident? 23 A Yes. 24 Q Okay. Who was your family doctor? 25 A Family Medicine. Page 29 1 Q Is there a specific doctor you see within Family 2 Medicine? 3 A I can't recall. I know her name, but I can't 4 recall it right now. 5 Q That's okay. Where is Family Medicine located? 6 A In Harrisburg. 7 Q How long have they been your family doctor? 8 A Since I've been here. 9 Q So approximately ten years? 10 A Uh-hum. 11 Q Did you call your family doctor at all as a 12 result of the injuries you suffered from this accident? 13 A Yeah, yeah, I called them. 14 Q When did you call them? 15 A I called and tried to get an appointment that 16 following Monday, but she wasn't in, and they didn't have 17 no openings. 18 Q So did you ever end up going to see your family 19 doctor for this injury? 20 A Yeah, uh-hum. I told them about my arm and stuff 21 and my back. 22 Q So when was the first time you treated with your 23 family doctor after this accident? 24 A Oh, I don't recall the date. 25 Q Within the month? Page 26 -Page 29 HUGHES. ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 AUI REY SAO'TH MUW-PW rM Y 17, zuuv Page 30 1 A No, it was less than that. 2 Q Within a week? 3 A It probably was in the same week. I don't know 4 for sure. I can't remember. 5 Q Do you recall what your family doctor did for 6 you? 7 A She -- they took me to get set up with Dr. King 8 for my shoulder. 9 Q So they gave you a referral to Dr. King? 10 A They didn't give me a referral. I think they 11 made me an appointment, to try to get me an appointment, 12 and then they called me back with it. 13 Q Did your family doctor give you any medication? 14 A No, because I had already had medication. I told 15 her what I had. She told me just to continue to take that. 16 Q So you treated with Dr. King for your shoulder 17 injury; is that correct? 18 A Yes. 19 Q When was the first tune you treated with Dr. King 20 after this accident? 21 A Oh, I was going to him. Oh, man. I can't -- I 22 knew I called. They gave me an appointment, and I went in, 23 and they checked me, and they ran -- they sent me for IvmRis 24 and stuff. I can't recall the times. 25 Q Were you treating with Dr. King prior to the Page 31 1 Outback accident? 2 A Yes. 3 Q What were you treating with Dr. -- 4 A Not -- yeah, for my -- it wasn't for -- no, I 5 wasn't -- I didn't go to him for it. I went to him before 6 for my discomfort I was having but not for my shoulder. 7 Q Where were you having discomfort? 8 A In my -- what was it? I can't remember what I 9 was going to him for. I can't. I think it was more my 10 back. I can't recall. 11 Q Do you know what kind of doctor Dr. King is? 12 A Yeah, he's an orthopedic doctor. Oh, I was going 13 to him for my knee. 14 Q How long had you been treating with Dr. King 15 prior to this accident? 16 A I had just started going there. I wasn't there 17 too long. 18 Q When you say not too long, about a month? 19 A Yeah, I was going to him for my knee. Probably a 20 month, a month or two. I don't know. I can't remember. 21 Q Do you know which knee? 22 A Which knee it was? It was my left knee. It 23 might have been my right, but they both was bothering me. 24 They injected me in my knees. 25 Q How often did you treat with Dr. King prior to Page 32 1 this accident? 2 A You mean since the accident happened or before 3 the accident? 4 Q Before the accident happened. 5 A I was going to get -- I had to get stagers of 6 injections in my knee. I would go one week. You wait two 7 weeks. You wait a couple more weeks, and you go back and 8 get the other injection. 9 Q And what was wrong with your knees? 10 A Arthritis. 11 Q Were you treating for your arthritis when you 12 lived in Beaver Falls? 13 A No, not then, no. 14 Q So the first time you ever treated for arthritis 15 was when you treated with Dr. King? 16 A Uh-hum. 17 Q So after the Outback incident you made an 18 appointment with Dr. King because of your shoulder? 19 A Yes. 20 Q Is that correct? 21 A (Nods head up and down.) 22 Q And what did Dr. King do for you? 23 A He sent me for x-rays and stuff. 24 Q Where did you get the x-rays taken? 25 A I don't know if he -- no, he didn't take them.. I Page 33 1 had an mRi. 1 don't know. I don't know if I went across 2 the river. I can't remember if I went across the river, 3 because they couldn't $o me in over bore, and I can't 4 remember if they got me hoe or across the river. I can't 5 remember. 6 Q When you say across river, is there a hospital or 7 something across the river'? 8 A Yeah, uh-hum. 9 Q What hospital is that? 10 A I don't remember the name of it. Holy Spirit. I 1 l don't know. I can't remember. 12 Q Did you ever tell Dr. Kim that you were feeling 13 aches and pains in your left shoulder prior to the Outback 14 incident? 15 A No. 16 Q Did you ever tell Dr. King you were feeling aches 17 and pains in your right shoulder prior to the Outback 18 incident? 19 A I had -- I had aching in I think it was my right 20 shoulder. 21 Q You had aching in your right shoulder prior to 22 the incident in question? 23 A You mean the day that it happened? No. 24 Q Before, before the Outback incident? 25 A Before, yeah. Page 30 -Page 33 HUGHES, ALBR3CrHT, FOLTZ & NATALE 717-54"220/717-393-5101 Multi-Page M AUDREY SMITH un v , c -In^^ Page 34 1 Q Before the Outback incident you were having aches 2 and pains in your right shoulder? 3 A Yeah. 4 Q But you never had any aches or pains in your left 5 shoulder? 6 A I don't recall. I don't remember. 7 Q Do you know what the cause of the aches and pains 8 in your right shoulder were from? 9 A Probably arthritis. They told me I had a lot of 10 arthritis. 1 I Q Were you ever treated for the arthritis in your 12 right shoulder prior to the Outback incident? 13 A No. I had an injection in my right shoulder 14 before. 15 Q And who gave you that injection? 16 A I don't know if it was Dr. King. I don't know. 17 I know I had an injection in it before. 18 Q If it wasn't Dr. King, who else would it have 19 been? 20 A There's more than one doctor in their office. I 21 can't remember. 22 Q The same office though? 23 A Yeah. 24 Q Did any physician ever tell you that you had 25 arthritis in your left shoulder? Page 35 1 A No. 2 Q How long were you treating with -- are you still 3 treating with Dr. King? 4 A No, huh-uh. I don't live around here no more. 5 Q You said you moved approximately three months 6 ago; is that right? 7 A Yeah. 8 Q At the time -- 9 A Three or four months, somewhere in there. 10 Q At the time when you moved were you still 11 treating with Dr. King? 12 A Yes, before I left. 13 Q Okay. How often? 14 A When I was -- when he seen me the last time, he 15 sent me to therapy and stuff, and that was the last visit I 16 seen him. 17 Q So right before you moved? 18 A Yes. 19 Q Probably within the month? 20 A (Nods head up and down.) 21 Q And when was the last time you were treating with 22 Dr. Violago? 23 A Before I moved away. 24 Q But right before you moved? 25 A Yes. Page 36 1 Q The same with Dr. -- 2 A Aquino. 3 Q Aquino? 4 A Yeah. 5 Q So you said that you had an MRI done of your left 6 shoulder; is that correct? 7 A Yes. 8 Q And Dr. King referred you for the MRI? 9 A Yes. 10 Q Do you recall when you got that MRI done? I I A No, I don't recall the date. 112 Q If I told you -- 13 A I have it, but I don't recall. 14 Q If I told you the date was December I 1 th, 2006, 15 would that ring a bell? 16 A Yeah, that sounds about right. 17 Q Did anybody go over the results of those MRIs 18 with you? 19 A Dr. King. 20 Q What did they tell you? 21 A I can't recall what he said. It's been awhile. 22 Q Had you ever had any surgery on your right 23 shoulder? 24 A No. 25 Q Have you ever had any surgery on your left Page 37 1 shoulder? 2 A No. 3 Q Since the accident at Outback Steakhouse have you 4 ever had any surgery on either of your shoulders? 5 A No. 6 Q Is this a correct statement, that the only 7 surgery you have ever had was on your back as a result of 8 the 1997 accident? 9 A Yes, the '97 accident. 10 Q Did any physician ever recommend that you needed 11 to have surgery on either of your shoulders? 12 A Not that I recall. 13 Q How did Dr. King treat you for the injury you 14 suffered to your left shoulder as a result of this 15 accident? 16 A How did he treat me? 17 Q What type of things did he do for you? 18 A He was trying to send me to therapy and different 19 things to see if -- you know, what was wrong. 20 Q Did you actually go to therapy? 21 A Oh, yeah. 22 Q And for how long did you go to therapy? 23 A After the surgery I went to therapy every -- I 24 had therapy like maybe twice a week. 25 Q Okay. So you said after the surgery you went to Page 34 -Page 37 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 AUMEY SIATH hum-p TM JULY 15, Page 38 1 therapy. That means you did have shoulder surgery? 2 A Yeah. 3 Q Okay. 4 A I'm sorry. I didn't understand you. I'm sorry. 5 Q That's okay. Have you ever in your life had 6 surgery, any surgeries to your rift shOWdCr? 7 A No. 8 Q Have you ever in your life had any suurgenes to 9 your left shoulder? 10 A No, just the one when I fell at Outback. 11 Q Okay. So you did have -- 12 A Yeah, I did have surgery. Okay. I wasn't 13 understanding you. I'm so sorry. 14 Q That's okay. So you have oay had surgery on 15 your left shoulder one time? 16 A Yes. 17 Q Okay. And that was as a result of the Outback 18 accident? 19 A Yes. 20 Q Do you know what type of suripy you laid? 21 A I know it was a tear. 22 Q Do you know when you had the surgery? 23 A I can't remember. 24 Q Was it a couple months after the accident, a year 25 after the accident? Page 39 1 A No, it was -- it wasn't a year after. 2 Q Within the year? 3 A Yeah. 4 Q Do you know who did the surgery? 5 A Dr. King. 6 Q And where did you do therapy after the surgery? 7 A Right down in Middletown. 8 Q Do you know the name of the place? 9 A I can't think of it. It's been so -- just my 10 memory just ain't -- it was in Middletown. I know it, but 11 I can' t think of it. 12 Q That's okay. Did you go there twice a week? 13 A Yeah. 14 Q For how long? 15 A Until they got my shoulder -- me moving it a 16 little better in my shoulder. 17 Q I mean for a couple months, for a year? 18 A Well, I went -- I think I went -- it -- I think I 19 went for almost a year. 20 Q So you went two times a week for one year? 21 A Two or three. I can't remember. Sometimes I 22 think it was two, sometime it was three. It depends how 23 much it bothered me, and I went in and they started working 24 on it. 25 Q What did they do for you at physical therapy? Page 40 1 A Thoy put me in the water. They did massages. 2 They put heat and did exercises, different exercises. 3 Q Did you feel any relief after the physical 4 therapy? 5 A Sometimes. Sometimes I didn't. It depends on -- 6 depends on the different stuff they had me doing, because 7 some things they had me doing, it made it hurt worse, and 8 they would take me off and put me on something different. 9 Q Did you feel any relief as a result of the 10 surgery? 11 A Yeah, it made it a little better than what it 12 was. I'm not having as much pain. I'm just having a lot 13 of problems with the motions. 14 Q When you say you are having problem with the 15 motions, what type of problems? 16 A Like doing my own hair, you know, lifting so far. 17 I can't lift it up real far. 18 Q Were you scheduled to have any other surgeries or 19 any other procedures to your left shoulder? 20 A No. 21 Q Did you have any other MRIs other than the 22 original MRI with Dr. King? 23 A No. 24 Q Any other x-rays? 25 A No, I don't think so. Page 41 1 Q There was something in Dr. King's notes regarding 2 the possibility of a revision surgery. Does any of that 3 ring a bell? 4 A A revision scary of nay arm? 5 Q That they -- that be may have recmme44ed a 6 second surgery in the future? 7 A Yeah, and I was scared. I didn't -- I didn't 8 know if I wanted to go back there or not. 9 Q So Dr. King did recommend -- 10 A Yes. 11 Q -- the possibility of a second surgery? 12 A Yes, yes. 13 Q And why did you need the second surgery? 14 A Because of the -- I guess the motion, I still 15 don't have a lot of motion and stuff with my shoulder. 16 Q So the second surgery was going to help not with 17 the pain but with the range of motion? 18 A I guess, but I'm scared to have it. 19 Q And why were you seared to have it? 20 A Because I -- 21 Q Just based on the first surgery? 22 A Yes. 23 Q Do you have any intentions of having another 24 surgery in the future? 25 A I hope not. I don't want to. Page 38 -Page 41 HUGHES, ALBIUGHr, FOLTZ,& NATALE 717-5411-022p1717-393-5101 Multi-Page TM AUDREY SMITH HTLV 1.5 7M4 Page 42 1 Q So instead of having the second surgery is there 2 any other treatment that Dr. King had recommended you coulc 3 try? 4 A No. I mean, I tried. I stayed in therapy and I 5 still do a lot of therapy at home, you know, with the ones 6 that the therapist showed me how to do at home. 7 Q Okay. So were you still doing physical therapy 8 at the time that you moved to Georgia? 9 A No, I had -- I think I had finished up. They had 10 finished with me, and they taught me how to do different 11 ones at home. I was done with therapy. 12 Q Other than Dr. King, Dr. Violago, and Dr. Aquino, 13 Aquini -- 14 A Aquino. 15 Q Aquino. Other than those three doctors and your 16 family doctor, so I guess other than those four doctors, 17 was there any other doctors that you treated with for the 18 injuries as a result of this accident? 19 A No, those are the only ones. 20 Q Have you treated with anybody since you've moved 21 to Georgia as a result -- 22 A No. I've been looking for them and trying to get 23 some -- find somebody. It's so hard to find in Georgia 24 different doctors to do anything. 25 Q Do you have a family doctor in Georgia? Page 43 1 A Yeah, I just got her. She's looking for me. 2 Q Okay. And what is she looking for? 3 A She's trying to get one for me to go back to 4 therapy and stuff for my shoulder, and then I have to find 5 one for my back, too. 6 Q Are you done treating for your knees? 7 A Well, I know I'm eventually going to have to have 8 surgery on my knees. 9 Q Because of the arthritis? 10 A Well, they said arthritis, and it's like, you 11 know, you know how the bone deteriorates, the bone. They 12 said I probably will eventually have to have surgery on my 13 knees. 14 Q What's the name of your family doctor in Georgia? 15 A I don't have -- I have the card, but I think it's 16 in my purse. I don't have it with me. I don't remember 17 her name right now. 18 Q Have you ever told your family doctor in Georgia 19 about the incident that took place at Outback? 20 A No, no, huh-uh, not yet. 21 Q Have you told her about -- 22 A Because I just found her. 23 Q Have you told her about the pain in your 24 shoulder? 25 A Uh-hum. Page 44 1 Q And the pain in your lower back? 2 A Yes. 3 Q After the incident at Outback did you ever treat 4 with anybody with regards to any pain in your ankle? 5 A Yes. 6 Q And who was that? 7 A The doctor here in Harrisburg. 8 Q Which doctor was that? 9 A Schake, Dr. Schake. 10 Q And that was in Harrisburg? 11 A Yes. 12 Q When was the first time you ever treated with 13 Dr. Schake? 14 A I had -- I was going to see him for my heels of 15 my feet, for the injection. He gave me injections in the 16 heels of my feet. 17 Q What was wrong with the heels of your feet? 18 A He said I had inflammation in the heels of my 19 feet. 20 Q This was prior to the Outback incident? 21 A No. This was before the Outback injury. 22 Q Right. This was before the Outback? 23 A Yes. 24 Q So how long before the Outback injury did you 25 start treating with Dr. Schake? Page 45 1 A Before it? I had started -- 1 had started seeing 2 him maybe months before this happened. 3 Q You had stopped seeing him? 4 A I had started seeing him. 5 Q You had started seeing him? 6 A Yes. 7 Q So were you still seeing Dr. Schake at the time 8 of the Outback incident? 9 A Yeah, but I hadn't had an appointment when it 10 happened. 11 Q How often did you see him? 12 A I didn't see him -- maybe once a month, you know, 13 whenever they -- my feet bothered me I would go back and he 14 would give me injections. 15 Q So is it safe to assure that at the time of the 16 incident you were treating with Dr. Violago, Dr. Schake, 17 Dr. King, Dr. Aquino and your family doctor regularly up 18 until the incident at Outback? 19 A Yes. 20 Q Is there any other physicians I'm missing? 21 A No. 22 Q Did you ever take any -- did you ever get any 23 x-rays or MRIs of your ankle? 24 A Yes. 25 Q And where did you get the x-ray or MRi done? Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 ,.- TM L Y - n T 15,2W X-Page 46 1 A I think Dr. Sctiake,took tb= in his office. 2 Q Do you recall what the x-rays revealed? 3 A No, I can't recall. 4 Q Were any banes broken? 5 A No, I don't think. 6 Q So what did Dr. Schake do for your ankle pain? 7 A It was a lot of swelling. He gave we -- he asked 8 me did I need anything? I told him no, bccwm I had -- I 9 wasn't going to get another prescripti- I already had 10 Darvocet for my back, so I didn't try to get anymore pain I 1 medication. He gave me an injection for the pain. 12 Q But he never told you exactly vi was wrong? 13 A He told me, but I don't remember. 14 Q Did you have to do any physical therapy for your 15 ankle? 16 A Yes. 17 Q At the same time that you were doing physical 18 therapy for your shoulder and your back? 19 A Yes. 20 Q Did you ever treat with anybody other than 21 Dr. Schake for your ankle? 22 A No. 23 Q Okay. So you said that you suffered a prior 24 accident at the workplace in July of 1997; is that correct? 25 A Yes. Page 47 1 Q Can you tell me what hated in that incident? 2 A I was working, and I needed help to lift a client 3 out of the bed, and nobody came, so wheal I tried to get her 4 out to go to the bathroom, to pivot her out the bed into 5 the chair, something snapped in my back, and that's how my 6 back went out. 7 Q And where were you working at the time? 8 A Where was I working at? In Pennsylvania. 9 Q And what was the facility? 10 A Passanvent. I'm probably not pronouncing it 11 right. 12 Q Something snapped in your back, is that what you 13 said? 14 A Uh-hum, and they took me straight to the 15 hospital. 16 Q Prior to the 1997 accident were you ever involved 17 in any other accidents? 18 A No. 19 Q Did you have any back pain prior to the 1997 20 accident? 21 A Have I had another back pain? 22 Q Before the 1997 accident did you have back pain? 23 A No, huh-uh, never. 24 Q And did you suffer any other injuries besides the 25 injury to your back as a result of that accident? Page 48 1 A That's the only -- that was the QWY ftng was my 2 back. 3 Q And in order to treat that you had surgery; is 4 that correct? 5 A Yes. 6 Q Do you recall where you had surgery? 7 A Pittsburgh. 8 Q Where in Pittsburgh? 9 A One of the hospitals. I can't RX411 right now. to it's been a long time. I can't recall what hospital I had 11 it in. 12 Q Do you recall where you treated -- sorry. Which 13 doctor did the surgery? 14 A Dr. Keen. 15 Q Dr. King? 16 A (Nods head up and down.) Dr. Keen or K=. It's 17 Keen or Kane. 18 Q Okay. 19 A That's all I remember. 20 Q The same Dr. King that treated you? 21 A No, this is another doctor up in Pittsburgh. 22 MR. JANUZZI; Are you saying Keen or Kane? 23 THE wiTNEss: Yeah. 24 MR. JANUZZI: K-a-n-e or K-e-e-n. 25 BY MS. COHEN: Page 49 1 Q Did you twat with anybody else besides Dr. Keen 2 for the injuries you suffd in 1997? 3 A NO. Well, the job had me going to a couple of 4 their dOCtpa's bdOM the surgery. 5 Q Did you do any physical therapy as a result of 6 that accident? 7 A Yeah, uh-huxti. 8 Q And where did you do the physical therapy? 9 A In the hospital. I think they had me doing it io before they sent = hom in the hospital. 11 Q And for how long? 12 A I don't recall. 13 Q Did you file a lawsuit as a result of that 14 accident? 15 A Yes. 16 Q And in which county was that lawsuit filed? 17 A In Pennsylvania. I mean in Pennsylvania. 18 Q Do you know which county within Pennsylvania? 19 MR. JANUZZI: Was that a lawsuit or workers' 20 compensation? 21 THE WTTNESS: It was workmen's comp. 1 got 22 workmen's comp. 23 BY MS. COHEN: 24 Q Do you recall who your attorney was 25 A In Pennsylvania it was -- he was a workmen's Page 46 -Page 49 HUGHES, AI?T, FOLTZ- A .TALE 717--0220/717-393-5101 Multi-Page rM AUDREY SMITH Page 50 1 comp. lawyer, attorney, but he's no longer -- he's no 2 longer there no more. 3 Q Do you recall what his name was or what the name 4 of the firm is? 5 A In Pittsburgh. It was -- oh, I have it all 6 written down. I just -- I just can't recall his name right 7 now, but I know he's no longer there. 8 Q Meaning he's no longer with that firm? 9 A No. 10 Q Did you have to testify at all or give a 11 deposition in that case? 12 A Yes. 13 Q Other than Dr. Keen did you treat with anybody 14 else as a result of that accident? 15 A I had a Dr. Betty Lu up there, acupuncture doctor 16 up there in Pittsburgh, too, after -- you know, before I 17 had the surgery. They would send me up there to see if 18 anything else could work before they determined the 19 surgery. 20 Q Were you still treating for the back injury from 21 1997 at the time of this incident -- 22 A Uh-hum. 23 Q --at Outback? 24 A Yes. 25 Q You were still treating? Page 51 1 A Yes. 2 Q You were still feeling pain from the 1997 3 accident? 4 A Yes, uh-hum. 5 Q One of your responses to interrogatories says you 6 were left with residual symptoms from your back surgery. 7 What type of symptoms were you left with after the surgery? 8 A I still have a lot of pain. 9 Q And where is your pain? 10 A In my lower back and in the butt cheeks of each 11 of my bottom, and in my leg, I have a sciatic nerve, the 12 nerve in my leg, my right leg. 13 Q Was Family Medicine your family doctor back in 14 1997? 15 A Huh-uh. 16 Q Who was your family doctor back in 1997? 17 A He's not in practice no more neither. In '97? I 18 think his name was Damazo. I can't recall. I think it was 19 Damazo. I can't remember which one it was. It's been so 20 long ago. I know he was my family doctor. 21 Q In Pittsburgh? 22 A Yes. 23 Q So you treated with -- did you ever treat with 24 Dr. Damazo for any back pain you were having as a result of 25 the 1997 accident? JULY 15, 2009 Page 52 1 A No. I'm not for sure if he was the one that I 2 was seeing or they sent me to another doctor. I think they 3 sent me to a specialist. I can't remember. It's just been 4 for the back. I just don't recall, but I know he was one 5 of my family doctors. 6 Q And you were still suffering pain in your lower 7 back, in your butt cheeks and your sciatic nerve down your 8 right leg at the time of this incident at Outback? 9 A Uh-hum, yes. 10 Q And how do you feel today? III A Hurting from sitting too long. 12 Q Which part of you hurts? 13 A My lower back and my butt. 14 Q Do you still feel pain in your shoulder? 15 A Yes. 16 Q On a scale of one to ten how bad does your lower 17 back hurt? 18 A It gets up to a ten. 19 Q What about your shoulder? 20 A My shoulder, it can go as far as a nine. 21 Q What about your ankle? 22 A My ankle, nine. 23 Q Were you still feeling pain in your ankle -- 24 sorry. Scratch that. How often do you feel the pain in 25 your lower back? Page 53 1 A All the time. 2 Q All the time? 3 A Uh-hum. 4 Q And how often do you feel the pain in your butt 5 cheeks? 6 A It's -- it's constantly there. 7 Q What about your shoulder? 8 A It's -- it's there, but it's even worse, worse 9 when it like rains or it's cold. It's worse. It's 10 constantly there, but it's not -- it's worse when it's cold 11 or I'm in air-conditioning or something. I can't really 12 move it. 13 Q Do you still take pain medication today? 14 A Darvocet. 15 Q How often do you take it? 16 A Sometimes I take it twice a day, sometimes three 17 times a day. It depends on the pain. 18 Q Okay. So this is going to really stretch your 19 memory here. I need you to list for me any pharmacies that 20 you have had your prescriptions filled dating back to the 21 1997 accident. 22 A Oh, God. 23 Q From 1997 till today at which pharmacies do you 24 get your prescriptions filled? 25 A I get -- oh, man, since '97? Page 50 -Page 53 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 AIIDREY TH 14"-P W Im 7 I,, zuw Page 54 Page 561 1 can't do a lot with this arm. I can use my right, but I 2 can It use my left, and I can't do my hair. My daughter 3 keeps my hair done. I used to do my hair myself. 4 Q And the reason why you can't play with your 5 grandkids as much or use your left arm or do your own hair, 6 is that because of the pain or because of the range of 7 motion or both? 8 A The range, I can't lift it but so far. 9 Q So it is the range of motion? 10 A Yes. And sometimes the gain, if I'm trying,to do 11 something, the pain, you know, prevents me from doing it. 12 Q Has any doctor ever restricted you from any 13 activities as a result of the injury? 14 A Yeah, my back doctor. I couldn't -- I couldn't 15 lift no more than ten pounds, and I wasn't allowed to bend 16 or, you know, do -- I can't -- well, I can't do no bending 17 anyhow, so too mint bending anyhow. 18 Q Did you ever wear a cast or any type of brace on 19 your ankle after the incident? 20 A Yeah, I have one, but I don't wear it during the 21 summer because it sweats so bad. It's a boot. I have a 22 boot. 23 Q Did you wear it immediately after the accident? 24 A Yeah. 25 Q How long did you wear it? I Q Since the incident in '97. 2 A Oh, man, I got so many. It was Pete's 3 Apothecary. 4 Q Wait. We'll go slow. Where is that located? 5 A That's in New Brighton, Pennsylvania. There was 6 -- there was cvs. 7 Q Where is cvs located? 8 A That was in Beaver Falls. I have got treated up 9 here. I used cvs up here in Harrisburg. I have -- what's 10 the other pharmacy? Oh, there's so many of them. 11 Q Just to the best of your knowledge. 12 A Ut's see. cvs. Pete's Apothecary. A couple of 13 them been closed down. I can't remember. There's another 14 pharmacy. Oh, I can't remember. I know it's in my mind. 15 I can't think of it. 16 Q Have you used any pharmacies since you've been in 17 Georgia? 18 A Yeah, cvs pharmacies. 19 Q Where is that located? 20 A In Georgia. I mean in -- is it Conyers? And I 21 used cvs pharmacy up here, too. A lot of them now lately 22 is CVs pharmacies. 23 Q When you say up here, what does that mean? 24 A Up here in Harrisburg, cvs in Middletown. 25 Q Is that different than cvs in Harrisburg? You Page 55 1 said cvs in Beaver Falls, cvs in Harrisburg. 2 A Yeah, cvs's, I used a couple cvs pharmacies in 3 Harrisburg, so I used the one in Middletown. 4 Q What other cvs in Harrisburg do you use? 5 A One time they was closed. I went to another one. 6 I think it was one downtown or something. I can't recall. 7 1 don't know what location. 8 Q Any other pharmacies you used in Georgia other 9 than cvs and -- 10 A No, just cvs, and the reason why I haven't got a 1 I lot of my pain medication, I have to find a doctor. They 12 wouldn't just give it to you. My doctor gave it to me. My 13 medical doctor gave it to me, but I have to get a back 14 doctor, and I haven't been able to find one. A lot of them i 5 don't want to take you once you leave froma another state. 16 Q Okay. Have we covered every doctor that you've 17 treated with since 1997 for any reason? 18 A Yeah, that I can remember. 19 Q Anything that you were able to do before the 20 Outback incident that you are not able to do anymore 21 because of the injuries you suffered? 22 A Yeah. 23 Q And what are those things? 24 A I can't -- I mean, I can't play with my 25 grandkids. I can't -- I can't use this arm to throw. I Page 57 I A I still wear it once in awhile. If I'm in the 2 house and it bothers me, I wear it. 3 Q How long did you wear it after the accident? 4 A I wore it practically every day. 5 Q Now how -- 6 A It fits down in my shoe. 7 Q Which doctor gave you that? Dr. Schake? 8 A Yes. 9 Q And I know you said you don't wear it during the lo summer, but in the cooler months how often would you wear I1 it? 12 A I wear it maybe once or twice a week. It depends 13 how bad the pain is in my foot. When the pain gets bad, 14 then he tells me to make sure I wear it, and it goes down 15 into my tennis shoes. 16 Q And you said that you had some inflammation in 17 your foot prior to the incident at the Outback? 18 A In the heel of both of my feet. 19 Q In the heel. Did you ever have to wear a brace 20 or anything for that? 21 A No. 22 Q Any type of crutches or cane? 23 A Huh-uh. 24 Q Have you ever used any type of crutches or cane? 25 A For my -- for my -- a cane, a cane I did for my Page 54 -Page 57 HUGMI ., A.LBRICWT, FOLTZ & T TALE 717-540-=0/717-393-5101 Multi-Page TM AUDREY SMITH Page 58 1 back. I still have a cane. 2 Q And how often do you use the cane? 3 A Well, it depends how the pain gets for my back, 4 how bad it gets, and if I can't get up out the chair and 5 move so far, then I'll walk with my cane. 6 Q So it's on an as-needed basis? 7 A Yes. 8 Q Did you ever have any type of cast or sling on 9 your shoulder? 10 A I had a sling on my shoulder after the surgery. 11 Q Do you wear anything for your shoulder today? 12 A No. 13 Q Are you currently employed? 14 A No. 15 Q Were you employed at the time of the accident? 16 A No. 17 Q Did you work -- have you worked anywhere since 18 the pl ace you worked in 1997? 19 A No. 20 Q That was the last time you had worked? 21 A Yes. 22 Q And you went out on disability as a result of 23 that accident in 1997? 24 A On total disability, yes. 25 Q And you have been out on disability ever since? Page 59 1 A Yes. 2 Q Do you know of any other out-of-pocket expenses 3 as a result of this accidents? 4 A Out-of-pocket expenses? 5 Q Any medical bills that you have had to pay 6 yourself? 7 A Yeah, I haven't paid them because I couldn't 8 afford to pay them. I was paying payments. 9 Q Do you know how much that you owe on any of these 10 medical bills? 11 A No. I have them, but I don't know right now. 12 Q Off the top of your head? 13 A Yes. 14 Q Prior to your deposition there was a gentleman 15 here, Timothy Meszaros. 16 A Yes. 17 Q Do you recall seeing him on the day of the 18 accident? 19 A It looked like him, but the guy that I seen, he 20 walked -- I don't know if something was wrong with his leg 21 then because like he had a handicap, like he was like 22 limping. The guy that told me that his name was Andy, that 23 -- he looks like the same guy, but I don't know if 24 something was wrong with him then, the day of the accident, 25 but he kind of favored him, but he didn't walk with a limp JULY 13, 1009 Page 60 1 when he left out of here. This guy was walking with a 2 limp. 3 Q So you're not sure if the gentleman that was here 4 today, Timothy Meszaros, you're not sure if that's the 5 gentleman that you spoke with on the day of the accident? 6 A No, because he walked with a limp. I don't know 7 if that was him or not. 8 MS. COHEN: I think that's all the questions I 9 have for you today. 10 THE wITNEss: All right. Thank you. 11 MR. JANum: We're done. 12 Ms. COHEN: Thank you very much. 13 THE wrrNESS: You're welcome. 14 (The deposition was concluded at 2:56 p.m.) 15 16 17 18 19 20 21 22 23 24 25 1 COUNTY OF DAUPHIN Page 61 2 : Ss 3 COMMONWEALTH OF PENNSYLVANIA 4 I, Diane F. Foltz, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of Audrey Smith. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify I am not a relative or employee or 16 attorney or counsel to any of the parties, or a relative or 17 employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 1 further certify that the said deposition 20 constitutes a true record of the testimony given by the 21 said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 23rd day of July, 2009. 24 25 Diane F. Foltz, RMR Page 58-Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM &[2) 1:14 1:18 -'- : [1] 61:2 -A- '97 [sl 10:2 10:7 able [5] 5:5 10:20 22:23 22:23 37:9 55:14 55:19 55:20 51:17 53:25 54:1 accident [70) 4:17 4:21 5:20 6:11 -0- 15:10 15:18 18:1 08-6453 [1] ]:4 19:17 20:17 20:20 22:22 23:3 23:19 24:16 24:22 25:5 -1- 25:7 25:8 25:11 11th (2) 5:12 36:14 25:13 25:14 25:23 12/3/06111 5:17 26:4 26:7 2 6:15 26:19 26:11 26:20 15 [1) 1:13 26:25 27:5 28:1 160-38-8189 [1) 28:3 28:4 28:7 5:1 28:22 29:12 29:23 17057 (1] 4:15 30:20 31:1 31:15 1997 [21] 10:3 32:1 32:2 3 2:4 37:3 32:3 37:8 22:22 23:3 23:19 37:9 37:15 38:18 24:4 37:8 46:24 38:24 38:25 42:18 47:16 47:19 47:22 46:24 47:16 47:20 49:2 50:21 51:2 47:22 47:25 49:6 51:14 51:16 51:25 49:14 50:14 51:3 53:21 53:23 55:17 51:25 53:21 56:23 58:18 58:23 57:3 58:15 58:23 1:55 (1] 1:13 59:18 59:24 60:5 accidents [21 47:17 -2- 59:3 20(41 10:20 10:22 aches (5) 33:13 12:8 16:8 33:16 34:1 34:4 2006 [413:15 10:11 34:7 wing [2] 33:19 25:5 36:14 33:21 2009 [211:13 61:23 ACTION [1] 1:5 2201 [114:15 action [2] 3:13 2225 [111:15 61:18 23rd [11 61:23 activities (1) 56:13 25 [4l 10:20 10:22 actual [1] 12:19 12:8 16:9 acupuncture [91 2:56 [1] 60:14 24:7 24:10 24:18 25:4 27:6 27:12 -3- 27:13 27:14 50:15 3 [11 2:4 address Ill 4:7 30 (1l 18:14 administer [1l 61:5 3rd (41 3:15 10:11 afford [1] 59:8 20:3 25:5 afternoon [11 3:12 afterwards [1] 61:11 -4- ago [3) 23:15 35:6 45 [i) 18:14 51:20 ain't [l] 39:10 4th (il 21:9 air-conditioning [11 53:11 -5- alcohol [1] 5:3 5/22/50 [1l 4:24 alcoholic [11 6:15 5:00 [21 5:21 5 :21 allowed Ill 56:15 5th (1) 21:9 almost [3) 21:19 22:20 39:19 -7- Andy [71 1 4:20 7:00 [1) 5:22 14:2 17:4 1 2 7:5 1 7:7 18:2 5 9:22 anJue 191 44:4 45:23 46:6 46:15 46:21 52:21 52:22 52:23 56:19 answer [21 5:6 15:7 Answers [1] 14-12 answers [11 61:1 anyhow [31 21:17 56:17 56:17 rtnecary [2154:3 JAL 54:12 APPEARANCES (1 17 appointment (sl 21:21 28:15 29:15 30:11 30:11 30:22 32:18 45:9 appointments [1] 28:18 Aquini [13 42:13 Aquino [171 22:1 24:6 24:7 24:17 24:21 24:25 25:6 25:16 25:22 27:5 28:16 36:2 36:3 42:12 42:14 42:15 45:17 area [41 22:18 22:24 23:1 24:2 arm [s] 29:20 41:4 55:25 56:1 56:5 Arthritis [11 32:10 arthritis [s] 32:11 32:14 34:9 34:10 34:11 34:25 43:9 43:10 as-needed [1) 58:6 assistance (1) 18:4 assume [1] 45:15 ate [1] 19:5 attempt [11 12:11 attention [31 11:12 11:13 12:1 attorney [5) 3:16 49:24 50:1 61:16 61:17 AUDREY [4] 1:1 1:9 2:3 3:8 Audrey [2] 3:25 61:7 authorized [1] 61:4 aware [3] 13:25 14:5 14:10 away [6120:12 21:3 21:5 21:20 23:6 35:23 awhile [5] 26:1 28:5 28:17 36:21 57:1 -B- Backwards [1l 7:12 backwards [61 7:1 7:25 8:1 8:16 9:4 9:5 5 bad (sl 9:23 9:23 2 9:24 52:16 56:21 57:13 57:13 58:4 Balances [11 19:1 2 bar[11 9:15 0 based [1l 41:21 basis [1) 58:6 bathroom [16) 6:25 10:12 10:25 11:3 11:11 11:14 11:16 11:19 14:23 14:24 l 15:14 16:5 16:14 18:19 18:22 47:4 Beaver [s] 23:8 23:9 23:20 23:22 24:10 32:12 54:8 55:1 bed [21 47:3 47:4 behalf Ill 18:23 bell (2) 36:15 41:3 bend [1l 56:15 bending [2) 56:16 56:17 BENJAMIN [1l 1:25 best (21 5:7 54:11 better [21 39:16 40:11 Betty [1l 50:15 Between (1) 5:21 between [2) 3:2 5:21 beverages (11 6:15 big Ill 12:19 bigger [2) 8:18 8:18 bill [1l 19:6 bills (21 59:5 59:10 birth (114:23 bit (1l 19:1 l body [3) 8:3 8:8 8:12 bone (2) 43:11 43:11 bones [1l 46:4 boot [21 56:21 56:22 bothered [2) 39:23 45:13 bothering [11 31:23 bathers [1l 57:2 bottom [21 14:17 51:11 brace [2] 56:18 57:19 break [1l 10:14 BRIGGS [11 1:21 Brighton [11 54:5 broke [1l 26:2 broken [1l 46:4 brought [1) 3:14 butt[41 51:10 52:7 52:13 53:4 & - continue AUDREY SMITH 1 -C Cane [71 57:22 57:24 8 57:25 57:25 58:1 58:2 58:5 caption [11 61:14 Car [1] 6:6 Card (1) 43:15 Case [1] 50:11 cast [2l 56:18 58:8 causes [1l 9:24 certification [i] 3:4 Certify [5] 61:6 61:8 61:13 61:15 61:19 Chair [2) 47:5 58:4 check [1) 10:23 Checked [1) 30:23 cheeks [3] 51:10 52:7 53:5 CIVIL [1) 1:5 clean [il 19:13 client (1] 47:2 Close [1) 23:17 closed [2] 54:13 55:5 Coat [11 6:21 COHEN [7l 1:22 2:4 3:11 48:25 49:23 60:8 60:12 Cohen 111 3:13 cold (31 19:20 53:9 53:10 color [1)13:1 colored [1l 13:4 Coming [3l 12:12 13:18 28:4 COMMON (11 1:1 COMMONWEALTH [13 61:3 Commonwealth [11 61:5 comp [31 49:21 49:22 50:1 Compensation (1] 49:20 Compresses [i) 25:4 Compression [21 27:6 27:12 Concluded [1) 60:14 condition [2) 14:14 15:8 conditions [1) 16:4 Confirm (il 17:22 Constantly [31 27:24 53:6 53:]0 Constitutes [1] 61:20 Consume [1l 6:15 contact [3) 8:3 8:8 8:12 Continue [2) 24:1 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220 117-393-5101 Index Page 1 ?ft'1?rM (onvieW - bead A'C 3 (FDA tll 1:7 l] 25:22 26:11 26:1 16 28 -F- following Ell 29:16 30:15 1:7 convicted in 5:9 DEPOSITION (1) : 27:5 28:2 28:16 30:7 30:9 25 1:11 61:4 F [31 follows Ell 3:9 1 I 1 COi?yers [1l 54:20 30:16 30:19 30 4 61:25 : FOLTZ ill 1:9 cooler ill 57:10 _ 1ti?On [6] 50:11 . 31:3 31:11 311 25 32:15 32:18 31 11 47:9 f>?C ility [ Foltz 12161:4 6125 Correct is) 13:16 60:14 61:9 g :14 : 32:22 33:12 33:16 [2l 7:10 fscimg f Is] 18:16 18: 6 1$:18 18:25 19:6 27:6 30:17 32:20 36:6 37:6 46:24 61:13 61:19 &Scribe [21 618 34:16 34:18 35:3 35:11 35:22 36:1 7:13 fall [2] 10:15 14:6 foot [7l 7:19 7:20 48:4 25:2 36:8 36:19 37:13 fallen 111 15:23 7:23 20:7 20:23 13 57:17 57 Correctly [11 5:6 dalefitf~r s,Ell 43:11 39:5 40:22 41:1 41:9 42:2 42:12 7:1 Wi fig 141 : foregoing Ell 61:6 counsel t3l 3:2 17 61 >?ed [ll 50:18 42:12 42:12 44:9 7:25 8:2 9:3 form [1] 3.5 : 61:16 COUNTY [2l 1:2 DIANE [1] 1:11 4 44:13 44:25 45:7 16 45:17 45 Falls pi 23:8 23:9 23:20 23:23 24:11 forward [1] 27:8 61:1 61: [2l 61:25 : 45:16 45:17 46:1 46:6 32:12 54:8 .55:1 found ill 43:22 county t2l 49:1.6 dfffel t [lp1 20:21 46:21 48:14 48:15 , y N 28:25 four pl 25:22 35:9 49:18 25.1 25:2 37:18 48:16 48:20 49:1 29:1 29:5 51:13 42:16 Couple [lol 20:10 40:2 40:6 40:8 50:13 50:15 51:24 family [17] 28:21 Friday Ell 25:20 27:17 27:18 28:7 4110 42:24 54:25 57:7 28:24 29:7 29:11 full [1] 3:23 32:7 38:24 39:17 2 55 S Ell dimeMiOn 19:11 drank [ll 29:18 29:23 30:5 future 121 41:6 : 49:3 54:12 COURT Ell 1:1 :4 6 dining ill 6:4 drink (l) 19:9 16 30:13 42:16 42:25 43:14 43:18 45:17 41:24 court Ell 3:20 dinver 19:23 [2l drive [316:8 28: 28.17 51:13 51:16 51:20 55:16 Covered [11 19:25 2 7:I0 direction tl dropped Ell 28:19 52:5 far [sl 40:16 40:17 patkMGn 59:14 5:9 Clime [l] 61:12 drove Ill 19:24 52:20 56:8 58:5 60:3 60:5 crutches [zl 57:22 directly [2l 7:25 5:2 drugs (1) favored ll 59:25 Ceorgaowu Ill 57:24 TMBLRLAND Cll CT 61:18 22 58 2l 19:21 19:22 ?' [ ' faeli>?tg, [71 20:14 4:15 . ? : [31 E$sabili dull [1] 16:7 20:19 21:12 33:12 Oeo?a [14] 4:4 1:2 5 38:24 8:25 ?y [2] 3:8 61:9 33:16 51:2 52:23 4:5 4:7 4:11 CVS [lsl 54:6 54:12 discomfort (2) 31:6 dWjUg t6l 6:15 fee j ll 7:4 7:17 4:13 42:8 42:21 54:7 54:9 54:18 54:21 54:22 31:7 4 21 10:25 21:12 25:18 7:18 8:7 20:6 16 44:17 44 4223 42:25 43:14 43:18 54:17 54:20 54:24 54:25 55:1 : doctor lµ] 21:4 21:20 21:23 56:20 57:9 : 44:15 44:19 45:13 57:18 55:8 55:1 55:2 55:4 55:9 55:10 21:24 22:12 22:24 -E_ fall P4l 7:5 7:8 given ill 61:20 ' 55:2 CVS S (ll 23:1 24:6 24:10 28:21 28:24 29:1 eat [21 18:8 19:9 10:4 10:17 12:4 13:21 14:1 14:8 ? (li 53:22 4 29:7 29:11 29:19 13 18:15 Caging ill 14:10 16:17 19:14 Sys Ell 57:1 3:12 ll -D- 29:23 30:5 30: 11 31:12 34:20 31 Od=afM [1] 5:11 38:10 20: i g de ilk 5:12 51:18 Dana 131 : 42:16 42:25 43:14 either C21 37:4 49:113 3 file Ell graltiWds [2] 55:25 51:19 51:24 43:18 44:7 44:8 37:11 filed Ell 49:16 Darvocet 121 46:10 45:17 48:13 48:21 employed [21 58:13 filing [11 3:4 8.16 53:14 50:15 51:13 51:16 58:15 filled t2i 53:20 gums [s] 13:11 41:14 41:18 DarvoCCU Ell 21:17 51:20 52:2 55:11 employee 121 61:15 53:24 42:16 1:13 DATE m 55:12 55:13 55:14 6 56:12 56:14 61:17 fin, y Ell 61:17 guy [51 14:7 59:19 dote [?l 4:23 5:16 55:1 57:7 end [3] 15:21 15:22 fjM"h [1) 18:6 59;22 59:23 60:1 23:12 27:3 29:24 doctors [71 24:14 29:18 42:9 fiifishBd[2] 36:11 36:14 42:15 42:16 42:17 ENOLA tl] 1:16 42:10 dating ill 53:20 42:24 49:4 52:5 entire [21 12:22 fib 121 50:4 50:8 heir tsl 40:16 56:2 daughter [61 4:9 Ul 36:5 36:10 dew 12:23 first [2x15:25 11:15 56:3 563 56:5 16:23 6:22 1 :7 1 44 42:11 43:6 45:25 ESQUIRE [21 1:19 12:2 16:18 16:20 hwd 121 16:10 61:22 56:2 8 1 : davghtCls [6l 6:5 56:3 60:11 10 11 1:22 venMg Ell 6:4 20:8 20:23 21:1 21:22 24:3 24:8 bMdiCap ill 59:21 10:23 15:16 18:15 : door Ill 3:21 c eventually [21 43:7 24:16 24:17 27:4 handicaPped 1111 19:5 19:24 dew [161 6:24 6:25 11:18 43:12 27:5 28:2 29:22 6:22 6:23 6`:24 19 32:14 41:21 11 9:19 9:19 30 DAUPHIN Ill 61:1 12:18 26:2 32:21 4M.aCEy [2i 10:3 : 44:12 9 11:9 4;22 days t6l 20:10 25:21 35:20 39:7 48:16 25:22 26:18 28:3 50:6 52:7 54:13 46:12 EXAMINATION [21 fits 111 57:6 20:2 11:10 20:2 26 28:7 57:6 57:14 61:10 3:10 five ill 6:12 HANSEN [1] 1: debris t2l 11:20 downto` M [1] 55:6 xc 3:5 except t2l floor (211 8:4 hard ill 42:23 2 11:25 DT 17$] 22.1 22.1 18:1 11:3 11:11 11: 1 1jarriSburg [12122:25 December [s] 3:15 ec 22:11 22:12 22:21 40:2 e7[erClseS 121 11:24 12:3 12:8 23:11 23:16 29:6 9 12:22 12:23 44 7 44:10 54:9 12 20:3 25:5 10:11 4 22:25 23:2 23:25 6 24:7 24 40:2 : : 21 13:2 13:11 13: 54:24 54:25 55:1 36:1 DEFENDANT t31 1 : 24:4 24:9 24:17 24:17 ezpenses [2] 59:2 14:1 14:5 14:10 553 55:4 17:8 1:8 1:10 1:23 24:18 24:21 24:25 59:4 14:14 16:8 head [41 32:21 35:20 23 i 17 : 25:6 25:11 25:16 explain ill 9:21 17:15 Index Page 2 FOLTZ & jIA.TALE 717-5404a2-01717-393-5101 W HUG MS , ALUX . Multi-Page TM 48:16 59:12 heart [1) 4:9 heat [1) 40:2 heel [21 57:18 heels [4144:14 44:17 44:18 help (21 41:16 hereby [3] 3:4 61:6 hereof [1] hereunto [1) hit (u) 7:2 8:16 8:17 8:19 8:20 8:21 8:23 hold [11 9:16 Holy [1) 33:10 home [7) 19:25 21:15 42:6 42:11 hope [1) 41:25 hospital (6] 33:9 47:15 49:9 49:10 hospitals (1J house [1] Huh-uh [2) 57:23 huh-uh [4) 35:4 43:20 hurt [31 10:4 52:17 Hurting [11 hurts [11 52:12 -I- i mmediately 151 10:17 24:16 27:4 28:1 56:23 I NC (1) 1:7 i ncident [291 3:14 4:2 5:13 5:16 6:19 10:11 18:7 18:11 22:14 32:17 33:14 33:18 33:22 33:24 34:1 34:12 43:19 44:3 44:20 45:8 45:16 45:18 47:1 50:21 52:8 54:1 55:20 56:19 57:17 indicating [3] 7:2 9:4 12:7 indirectly [11 61:18 inflammation (2J 44:18 57:16 influence [1] 5:2 information ul 14:22 injected [11 31:24 injection [6) 32:8 34:13 34:15 34:17 44:15 46:11 injection (31 32:6 44:15 45:14 57:19 44:16 47:2 3:2 61:14 61:22 8:10 8:17 8:21 8:24 19:23 42:5 49:10 33:6 48:10 48:9 57:2 51:15 28:19 47:23 40:7 52:11 injured [1] 20:16 injuries (81 20:3 20:5 21:2 29:12 42:18 47:24 49:2 55:21 injury 191 24:4 29:19 30:17 37:13 44:21 44:24 47:25 50:20 56:13 inspect [11 12:9 inspected [11 17:7 instead [2] 7:25 42:1 instructions [113:17 intentions [1) 41:23 interested [1) 61:18 Interrogatories [1] 14:12 interrogatories [11 51:5 involved [21 17:4 47:16 -J- J [1J 1:19 JACOB [1] 1:26 JANUZZI M 1:14 1:18 1:19 48:22 48:24 49:19 60:11 job [1) 49:3 JULY [1) 1:13 July [2) 46:24 61:23 JURY [1] 1:7 -K- K-a-n-e [1] K-e-e-n [1) Kane (3148:16 48:22 KARL [1] Keen [6148:14 48:17 48:22 50:13 keep [31 7:1 8:2 keeps pi kids [31 16:16 28:17 kind [41 11:3 31:11 59:25 Kung [2s] 30:9 30:16 30:25 31:11 31:25 32:15 32:22 33:12 34:16 34:18 35:11 36:8 37:13 39:5 41:9 42:2 45:17 48:15 King's [1] knee [6) 31:13 31:21 31:22 32:6 48:24 48:24 48:17 1:19 48:16 49:1 8:1 56:3 23:14 19:16 30:7 30:19 31:14 32:18 33:16 35:3 36:19 40:22 42:12 48:20 41:1 31:19 31:22 X3X= [5] 31:24 32:9 43:6 43:8 43:13 knew [31 15:9 15:17 30:22 knowledge [71 5:7 14:4 14:9 14:13 15:8 15:9 54:11 -L- L [1) 3:25 ladies' [11 laid (1) 10:1; last [101 14:2. 25:8 25:1: 27:22 35:1 35:21 58:2( lately [1] LAW [21 1:21 lawsuit (31 49:16 49:19 - lawyer [1] - lay[i] 10:19 leading [1] leak [21 15:9 leaking [$] 15:1 15:6 15:16 15:17 17:20 leave [5) 16:14 19:12 27:23 left [331 7:6 7:19 7:22 8:10 8:14 17:9 17:11 19:6 20:6 20:7 20:8 31:22 33:13 34:25 35:12 36:25 37:14 38:15 40:19 51:7 56:2 60:1 leg [5l 51:11 51:12 52:8 less [11 30:1 level [115:11 life [2) 38:5 lift [4) 40:17 56:8 56:15 lifting [1] lighting [3] 16:6 16:7 limp [3) 59:25 60:6 limped [1) limping [1] liquid [4) 13:6 13:12 list [l] 53:19 live [31 4:14 35:4 lived (214:16 6:22 25:6 26:11 35:15 54:21 1:5 49:13 50:1 26:24 17:18 14:16 15:15 17:16 18:12 55:15 7:8 7:23 8:15 18:9 20:6 20:23 34:4 36:5 38:9 51:6 56:5 51:12 59:20 38:8 47:2 40:16 16:4 60:2 16:16 59:22 12:19 14:10 4:19 32:12 living [1] LLP [2) 1:14 located (4) 54:4 54:7 location [3) 6:2 55:7 longer [4] 50:2 50:7 look [1] 12:11 looked [4] 15:13 16:1 looking (4) 42:22 43:1 looks [1] Low (1J 10:6 10W[11 10:8 Lower [1] lower[s] 10:9 44:1 52:6 52:13 52:25 Lu [1] 50:15 lumbar [31 10:6 10:8 23:20 1:18 29:5 54:19 5:23 50:1 50:8 12:18 59:19 11:15 43:2 59:23 20:15 10:6 51:10 52:16 10:6 -M man (3) 30:21 53:25 54:2 manager [51 14:13 14:16 14:18 15:8 18:2 married [1] 4:21 massages [11 40:1 May [11 41:5 meal [316:16 18:6 19:7 mean [121 7:19 9:21 22:5 27:24 32:2 33:23 39:17 42:4 49:17 54:20 54:23 55:24 Meaning [1) 50:8 Means [11 38:1 Mechanicsburg al 6:2 medical [5) 18:4 21:1 55:13 59:5 59:10 medication [51 30:13 30:14 46:11 53:13 55:11 Medicine [41 28:25 29:2 29:5 51:13 medicine [21 21:15 21:16 MCMOry [2) 39:10 53:19 MeszarOS [31 3:17 59:15 60:4 Middletown [sJ 4:15 39:7 39:10 54:24 55:3 might [1l 31:23 heart - New AUDREY SMITH •?au.LCly 1V lUM (lJ 1:15 mind [1] 54:14 minutes [61 6:12 10:20 10:22 12:8 16:9 18:14 Missing (1) 45:20 moment [1] 28:11 Monday [11 29:16 month [111 26:14 26:14 26:16 27:1 27:3 29:25 31:18 31:20 31:20 35:19 45:12 Months [9) 4:12 35:5 35:9 38:24 39:17 45:2 57:10 motion [51 41:14 41:15 41:17 56:7 56:9 motions (21 40:13 40:15 Move [s] 4:10 10:21 23:3 23:5 23:7 23:9 53:12 58:5 moved [14) 4:9 4:13 22:17 22:23 23:12 23:14 24:2 35:5 35:10 35:17 35:23 35:24 42:8 42:20 Moving [1] 39:15 MRI (61 33:1 36:5 36:8 36:10 40:22 45:25 MRIS [4) 30:23 36:17 40:21 45:23 MS [6) 2:4 3:11 48:25 49:23 60:8 60:12 Ms [1) 3:12 Must [2118:13 21:8 -N- NAME [1) 2:2 name 1191 3:12 3:23 14:18 14:19 14:19 14:20 14:21 14:22 17:2 29:3 33:10 39:8 43:14 43:17 50:3 50:3 50:6 51:18 59:22 nearby [1] 10:14 need [4) 3:17 41:13 46:8 53:19 needed [2) 37:10 47:2 neither (2) 10:22 51:17 nerve [3] 51:11 51:12 52:7 never (s) 12:18 15:17 34:4 46:12 47:23 New [2) 19:18 54:5 HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 Index Page 3 . NICOLE - waifiug AIEY WICOLEm 1:22 Nicole [1) 3:12 night (1) 19:23 nine [3) 23:17 52:20 52:22 Nobody (1) 10:13 nobody [4] 10:13 10:25 14:25 47:3 Nods (3132:21 35:20 48:16 NOTARY (1l 1:12 Notary Ell 61:4 notes [1] 41:1 nothing [11 11:23 notice (31 11:20 11:23 15:25 noticed [1l 12:3 notify [1] 16:20 Now [1] 57:5 now (sl 4:3 21:11 29:4 43:17 48:9 50:7 54:21 59:11 number [1] 4:25 -O- oaths Ell 61:5 objections [i] 3:5 occur (1] 5:20 occurred [1] 6:11 Off (1) 59:12 off [4) 4:8 6:21 28:19 40:8 offer Ell 18:4 OFFICE (1) 1:21 Office [31 34:20 34:22 46:1 often [121 25:10 25:25 26:7 27:22 31:25 35:13 45:11 52:24 53:4 53:15 57:10 58:2 O®CC [131 12:18 26:1 26:1 26:2 26:5 26:13 26:14 26:16 27:1 45:12 55:15 57:1 57:12 One [31 48:9 51:5 55:5 one (2il 7:18 11:6 11:8 14:12 21:18 32:6 34:20 38:10 38:15 39:20 43:3 43:5 51:19 52:1 52:4 52:16 55:3 55:5 55:6 55:14 56:20 ones [3) 42:5 42:11 42:19 onto [1l 9:16 opened [1) 11:9 openings [1] 29:17 order [3118:18 18:23 48:3 Multi-FaTM 18:16 { 1:16 61:3 18:17 18:20 p ennsylvaila 171 original [1l 40:22 4 7:8 49:17 49:17 octbapedic (11 31:12 4 9:18 49:25 54:5 Out-ofpocket [11 6 1:6 ' p er S(21 54:2 59:4 5 4:12 out-of-pocket E11 p is [71 53:19 59:2 5 3:23 54:16 54:18 OUTBACK [1l 1:6 5 4:22 55:2 55:8 Outback [341 3:13 p ly [3] 54:10 5:23 6:10 6:20 54:14 54:21 11:10 13:25 14:4 hysical [71 39:25 14:9 16:20 20:2 26:20 18:1 31:1 p 40:3 42:7 46:14 32:17 33:13 33:17 46:17 49:5 49:8 33:24 34:1 34:12 p by=cil!? (4) 22:11 37:3 38:10 38:17 23:18 34:24 37:10 43:19 44:3 44:20 ysicians [5] 22:9 44:21 44:22 44:24 45:8 45:18 50:23 52:8 55:20 57:17 owe [1] 59:9 own [3) 6:18 40:16 56:5 _P_ P.M [1] 1:13 p.m [1) 60:14 paid (31 19:6 19:8 59:7 pain [46112:20 19:12 20:8 20:11 20:13 20:14 20:19 20:21 20:23 21:12 21:14 21:20 24:19 27:20 27:25 27:25 28:13 40:12 41:17 43:23 44:1 44:4 46:6 46:10 46:11 47:19 47:21 47:22 51:2 51:8 51:9 51:24 52:6 52:14 52:23 52:24 53:4 53:13 53:17 55:11 56:6 56:10 56:11 57:13 57:13 58:3 pains [5) 33:13 33:17 34:2 34:4 34:7 pants [5] 6:24 6:25 11:18 12:6 13:4 paper [1) 9:12 part [11) 8:3 8:6 8:8 8:12 8:25 9:1 10:9 12:5 20:14 20:16 52:12 08rtiCS [21 3:3 61:16 PasSanVent [1] 47:10 pay [4) 11:12 19:7 59:5 59:8 paying (3) 1.1:13 12:1 59:8 payments [1) 59:8 PENNISYLVANIA [3] 1:2 23:22 23:25 28:12 45:20 ick [1] 28:20 ittsburgh [9) 24:12 24:13 24:14 48:7 48:8 48:21 50:5 50:16 51:21 tiVot [1) 47:4 MACE Ell 1:14 3 U1 3:14 10:11 18:11 39:8 43:19 58:18 61:14 PLAIN'T'IFF [21 1:2 1:20 play (2] 55:24 56:4 PLEAS [1l 1:1 point (2) 16:15 19:10 poorly [2l 13:14 14:3 Portion E11 12:23 possibility [21 41:2 41:11 pounds Ell 56:15 practically Ell 57:4 practice [2) 22:2 51:17 p P vresCrii ion Eli re,scriptiOUS (2) 53:20 53:24 PRESENT (1) 1:24 present [1] 3:16 pretty [21 17:24 25:10 prevents (1) 56:11 pToblem [1] 40:14 problem 12] 40:13 40:15 procedures [1) 40:19 proceeded [2) 11:17 16:10 Vrocess [11 9:9 47:10 C (1) 1:12 [2) 61:4 61:11 ?ull[11 11:18 tun Eli 43:16 6iLSb [l 16:11 rut [3] 40:1 40:2 40:8 queSti s [31 5:6 60:8 61:9 -R- K[1] 1:22 rains 111 53:9 ran Eli 30:23 range [4) 41:17 56:6 56:8 56:9 reading [11 3:3 real Ell 40:17 really [3) 27:23 53:11 53:18 reason (4) 5:5 55:10 55:17 56:4 »d (2) 37:10 41:9 zwwwwaded. E2) 41:5 42:2 record 12) 3:24 61:20 rr3COVering [11 20:20 re dueed[1l 61:11 erral [21 30:9 30:10 refanred [1] 36:8 refe niirg [1) 7:5 regarding (1) 41:1 Tgard [1) 44:4 REGINA [1] 1:25 regular [1] 8:18 regularly (1) 45:17 1Vl9tiVCE2l 61:15 61:16 WJW [4) 27:14 27:22 40:3 40:9 V& ievad (2] 24:19 27:24 r1a81er *" [251 10:8 13:1 16:7 19:20 21:10 30:4 31:8 31:20 33:2 33:4 33:5 33:10 33:11 34:6 34:21 38:23 39:21 43:16 46:13 48:19 51:19 52:3 54:13 54:14 55:18 XCIDOVe [1] 19:13 rweat [1] 3:17 Reporter Eli 61:12 reporW [1] 3:21 llportw-Notary' (1) 61:11 rWreacut [11 3:13 MServead [11 3:6 reside (21 4:1 4:3 residual [1) 51:6 respective [1l 3:3 responses [1] 51:5 restricted [1) 56:12 rOStrOOM [4] 11:7 15:22 17:15 18:25 result 1151 29:12 37:7 37:14 38:17 40:9 42:18 42:21 47:25 49:5 49:13 50:14 51:24 56:13 58:22 59:3 results [11 36:17 revealed (1] 46:2 revision [21 41:2 41:4 Right [?) 9:6 9:10 20:12 25:15 26:23 39:7 44:22 right [33) 7:19 9:14 16:10 21:3 21:5 21:11 21:20 23:6 27:4 29:4 3123 33:17 33:19 33:21 34:2 34:8 34:12 34:13 35:6 35:17 35:24 36:16 36:22 38:6 43:17 47:11 48:9 50:6 51:12 52:8 56:1 59:11 60:10 rigg (2) 36:15 41:3 rimer (sl 33:2 33:2 33:4 33:6 33:7 Rl (21 1:11 61:25 Road [114:15 rode [1] 19:24 roam [1) 6:22 safe (1) 45:15 S8t [31 16:8 18:16 19:5 Saturday [1) 25:16 Saw [21 25:22 27:5 says 121 15:7 51:5 scale 11152:16 scared 131 41:7 41:18 41:19 ScAudw Elul 44:9 44:9 44:13 44:25 45:7 45:16 46:1 46:6 46:21 57:7 8cbed1xW 11] 40:18 sciatic [2i 51;11 52:7 Scratch [21 23:19 52:24 scratch [1) 15:21 sealing [11 3:3 Index Page 4 HUGHES. ALEgJC>W.FOLTZ & NATALE ? 17-54Q-U220/717-393-510 Multi-Page'` seat - up seat [2] 8:10 8:23 sly [?] 12:15 stenogr hicall ap y [1] 23:10 23 15 2 AU DREY SMITH seated [sl 613 slip (2) 58:8 Sling 58:10 61:10 : 3:17 23:17 29:9 52:16 25:25 26:4 27:9 28 13 6:14 6:21 second s 41 6 slip (1] 7:17 still [19] 9:5 27:24 52:18 56:1 5 : 30:25 31:3 31:14 32:11 35:2 [ ) 41:11 41 13 : 4 slipped [2] 6:25 27:25 35:2 35:10 tennis [1] 57:15 35:3 35:11 35:21 : 1:16 42:1 7:11 41:14 42:5 42:7 45 7 tCStifled [1] 3:9 43:6 44:25 45:16 Security [11 4:25 Slow [ 54:4 : 50:2 51:2 51:8 0 50:25 52:6 testify [ll 50:10 50:20 50:25 Sec (u) 11:11 11:25 [2] smell [z 13:6 52:14 52:23 53:13 testimon y [21 61:7 treatment 21:1 24:1 42 2 2 11:25 12:1 12:11 12:18 12:11 12:18 13:7 SMITH [41 1:1 57:1 58:1 stipulated (1 ) 3:2 61:20 texture [11 13:1 : : TRIAL [1) 1:7 15:4 19:13 25:16 1:9 2:3 3:8 STIPULATION [1] Thank [2] 60:10 trial [1] 3:6 25:17 25:21 26:13 Smith (3] 3:12 3:1 60:12 tried [a] 8:1 29:15 26:24 27:1 29:1 3:25 61:7 stopped [1) 45:3 therapist [1) 42:6 42:4 47:3 29:18 37:19 45:11 45:12 44:14 50 17 Snapped [21 47:5 Straight [a] 19:25 therapy [19] 35:15 true [1] 61:20 54:12 : 47:12 24:19 24:21 47:14 37:18 37:20 37:22 try [a] 12:20 30:11 Seeing [1i] 24:10 snow (1)19:21 Soaking [1] 12:17 stretch (1) 53:18 37:23 37:24 38:1 39:6 39:25 40 4 42:3 46:10 trying [6] 11 18 25:10 26:14 45:1 45:3 26:15 45:4 Social [1] 4:25 Stuff (9) 25:1 29:20 30:24 25:2 32:23 42:4 42:5 : 42:7 : 16:10 37:18 42:22 45:5 45:7 59 17 52:2 someone [2] 15 4 15:3 35:15 40:6 43 4 41:15 42:11 43:4 46:18 49:5 46:14 49:8 43:3 56:10 Tuesday y [1) 25 20 : Seek [1] 21:1 : sometime (1] 39:22 : Substance [101 12:3 thinking [11 13:8 : turned [1] 11:17 Send [2] 37:18 50:17 Sometimes [a) 39:21 12:14 13:2 13:20 Three [ll 35:9 turning [1] 9:9 Sent [12) 14:8 15:3 40:5 40:5 53:16 13:23 14:1 14:5 three [$14:12 21:2 twice (7] 26:2 15:4 15:14 22:24 Sometimes [2) 53:16 17:8 17:15 19:13 25:22 35:5 39:21 26:9 27:9 37:24 23:25 30:23 32:23 56:10 such [1] 61:17 39:22 42:15 53:16 39:12 53:16 57:12 35:15 49:10 52:2 somewhere [1 ) 35:9 Suffer [3] 20:3 throw [1] 55:25 twisted [2) 7:4 52:3 rry [2) 5 13:14 20:5 47:24 tilted [1] 9:5 20:24 separate [1] 22:7 14 suffered [5] 29:12 times [a] 27:2 TWO [1] 39:21 Set [2) 30:7 61:22 SO 1 110 4:8 37:14 46:23 49:2 30:24 39:20 53:17 two (8) 6:5 22:7 Sheet (1) 61:14 7:20 7:22 15:21 55:21 Timothy [2] 59:15 24:23 28:12 31:20 shirt [1) 12:6 23:18 38:4 38:4 suffering (1) 52:6 60:4 32:6 39:20 39:22 Shoe [1] 57:6 38:13 48:12 52:24 Summer [21 56:21 today [$1 5:3 type [1619:15 10:5 shoes [2 19 16 sounds [2] 16:1 57:10 5:14 52:10 53:13 13:12 20:19 20:21 ] : 36:16 Sunday [3] 5:19 53:23 58:11 60:4 21:16 22:11 24:6 57:15 SHOLLENBERGER Speak [1] 17:11 25:14 26:22 60:9 toilet [23 7 13 37:17 38:20 40:15 51:7 56:18 57:22 [2] 1:14 specialist [1) 52:3 Sees [3] 38:8 40:18 38:6 ) 7:14 7:15 : 8:10 57:24 58:8 1:18 Speck [1) 29:1 surgery (39] 9:25 8:13 8:17 8:18 typewriting [1161:12 shots [3127:17 27:18 Specifically [1] 17:14 10:1 10:5 36:22 8:18 8:20 8:21 27:21 specified [11 61:14 36:25 37:4 37:7 8:23 9:12 14:17 -U- Shoulder [a9) 8 10 7:2 Spirit [1) 33:10 37:11 37:23 37:25 15:2 15:6 15:16 15:20 15:15 16:1 Uh-hum [10] 4:6 : 8:11 8:14 8:15 8:14 8:19 spoke [2) 17:25 38:1 38:6 38:14 38:20 38:12 38 22 16:11 16:12 17:10 21:25 22:10 29:10 8:23 8:23 8:25 20:6 8:25 20:9 60:5 SS [1) 61:2 39:4 39:6 41 2 4 : 40:10 17:17 t00 [$) 19:11 31:17 32:16 43:25 47:14 50:22 52:9 53:3 30:8 30:16 31:6 stages [1] 32:5 : 1:4 41:11 41:13 41:6 41:16 31:18 43:5 50:16 ?_hom [a1 29:20 32:18 33:13 33:17 Stain [1] 13:4 41:21 41:24 42:1 52:11 54:21 56:17 33:8 49:7 51:4 33:20 33:21 34:2 stall [lo) 6:23 6:24 43:8 43:12 48:3 took [91 6:21 10:11 under [3] 5:2 34:5 34:8 34:12 9:12 9:19 11:6 48:6 48:13 49:4 18:11 21:15 21:18 22:6 61:12 34:13 34:25 36 23 7 36:6 11:9 11:10 11:16 50:17 50:19 51:6 30:7 43:19 46:1 underneath (a) 7:4 : :1 3 38:1 38:6 37:14 38:9 1223 20:2 51:7 58:10 47:14 7:19 7:23 20:24 38:15 39:15 39:16 stand [1] 16:12 sweats [1) 56:21 top [1] 59:12 understand [3) 3:20 40:19 41:15 43:4 start [3) 22:16 24:8 Swelling [1] 46:7 total [1] 58:24 5:6 38:4 43:24 46:18 52:14 44:25 Sworn [21 3:9 treat [111 24:16 unusual (2] 16:1 52:19 52:20 53:7 started [,] 27:8 61:9 26:7 31:25 37:13 16:2 58:9 58:10 58:11 31:16 39:23 45:1 Symptoms [2] 51:6 37:16 44:3 46:20 Up [1] 54:24 Shoulders (2] 37:4 45:1 45:4 45:5 51:7 48:3 49:1 50:13 up [33] 10:18 11:9 37:11 State [2) 3:23 55:15 51:23 12:4 12:16 15:21 showed [1] 42:6 statement [1) 37:6 -T- treated [is] 28:2 15:22 16:11 16:11 Side [2] 9:12 9:14 Stay [1) 18:6 table (2)16:18 19:1 29:22 30:16 32:14 32:15 30:19 34:11 16:12 18:9 22:24 23 1 sideways [l1 8:2 stayed [1) 42:4 taking [3) 3:21 42:17 42:20 44:12 : 23:14 26:24 28:20 29:18 30:7 Signing [1) 3:3 STEAKHOUSE [1] 11:18 61:8 48:12 48:20 51:23 32:21 35:20 40:17 single (1] 4:22 1:6 taught [1] 42:10 54:8 55:17 42:9 45:17 48:16 sitting [1] 52:11 Steakhouse [3) 3:13 tear [i) 38:21 treating [27j 22:13 48:21 50:15 50:16 Situation [1] 17:4 6:20 37:3 tells [1] 57:14 22:16 22:17 22:21 50:17 52:18 54:8 23:2 23:13 23:18 54:9 54:21 54:23 ten [101 6:12 22:20 23:22 24:3 24:8 58:4 HUGHES- ALBRIGHT_ FOLTZ & NATALE 717-540-0220/717-393-5101 Index Page 5 -Far uwdpil 9:18 - 30:2 39:2 10:14 16:12 54:9 'within [) 10:22 54:16 54:21 55:2 24:22 28:7 29:1 55:3 55:8 56:3 35:19 49:18 61:5 57:24 WITNESS [s] 48:23 using (21 15:20 49:21 60:10 60:13 15:22 61:22 usually [2) 6:22 witness (3) 3:8 9:18 61:9 61:21 WITNESSES (11 + -V- 2:1 V [31 1:4 24:18 witnesses [1] 10:12 25:11 words [i1 6:18 Varies [t1 27:2 wore p) 57:4 Violago [is1 22:1 worlmd. [a) 22:5 22:11 22:12 22:21 58:17 58:18 58:20 22:25 23:2 23:25 work=' [i) 49:19 24:4 24:9 24:17 viorkOM's (31 49:21 26:11 26:13 26:15 49:22 49:25 28:2 28:16 35:22 worlsce (i) 46:24 42:12 45:16 visit [2) 27:22 35:15 wOrsc M 20:22 27:20 40:7 53:8 53:8 53:9 53:10 -w_ Written (2) 14:15 Wait (i1 54:4 50:6 wait [2] 32:6 32:7 wrong 191 10:3 waitress [51 14:8 16:17 32:9 37:19 16:24 16:25 17:5 44:17 46:12 59:20 18:1 59:24 7 2 i ' : wa trM [1) 1 waived [ii 3:4 -X- - walk (2) 58:5 59:25 x-ray p) 45:25 walked [a1 9:11 x-rays [s) 32:23 11:15 59:20 60:6 32:24 40:24 45:23 walking [i) 60:1 46:2 ll 131 8:9 8:20 wa 8:21 -Y- water [91 11:11 year (61 38:24 39:1 12:12 13:8 13:10 39:2 39:17 39:19 13:11 13:15 15:1 39:20 17:22 40:1 years [3) 22:20 wear [13] 56:18 23:11 23:15 23:17 56:20 56:23 56:25 29:9 57:1 57:2 57:3 yet [31 19:2 19:3 57:9 57:10 57:12 43:20 57:14 57:19 58:11 yrourseff (21 28:16 wearing [i) 19:16 59:6 1 weather [11 19:19 week p51 5:18 26:2 26:3 26:5 26:9 26:24 27:9 28:5 30:2 30:3 32:6 37:24 39:12 39:20 57:12 weekday [x1 25:18 weekend [1l 25:17 weeks [21 32:7 32:7 welcome (i) 60:13 wet (9) 12:3 12:4 12:5 12:14 12:17 12:23 12:24 13:7 13:16 WHEREOF [i) 61:22 I, Within (31 29:25 Index Page 6 HUGMES, ALBRIOUT, FOLTZ A MATALE 717-540-OUX717-393-5101 EXHIBIT B copy AUDREY SMITH, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V : NO.: 08-6453 : CIVIL ACTION - LAW OUTBACK STEAKHOUSE OF . FLORIDA, INC., JURY TRIAL DEMANDED DEFENDANT DEPOSITION OF: TIMOTHY M. MESZAROS TAKEN BY: PLAINTIFF BEFORE: DIANE F. FOLTZ, RMR NOTARY PUBLIC DATE: JULY 15, 2009, 1:10 P.M. PLACE: SHOLLENBERGER & JANUZZI, LLP 2225 MILLENNIUM WAY ENOLA, PENNSYLVANIA APPEARANCES: SHOLLENBERGER & JANUZZI, LLP BY: KARL J. JANUZZI, ESQUIRE FOR - PLAINTIFF BRIGGS LAW OFFICE BY: NICOLE R. COHEN, ESQUIRE FOR - DEFENDANT ALSO PRESENT: 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 9 Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page TM TIMOTHY M. MESZ,AROS JULY 15, 2009 Pnge 2 Page 4 1 WITNESSES 1 here? 2 NAME EXAMINATION 2 A Yes. 3 TIMOTHY M. MESZAROS 3 Q Okay. Have you ever given a Y• deposition before? 4 BY; MR. SANUZZI 3 4 A No. 5 5 Q Okay. As you can see, we have a court reporter 6 6 here who is taking down my questions and your answers. You 7 have an attomey here to represent you on bebalf of Outback s 8 Steakhouse. I do want to o over some g ground rules first 9 9 of all, okay? 10 10 A Okay. 11 11 Q Please do not answer a question until I finish my 12 EXHIBITS 12 question, okay? 13 13 A Yes. 14 MESZAROS DEPOSITION EXHIBIT PRODUCED AND MARRED 14 Q We have a court reporter who is here who 15 1. CUSTOMER INCIDENT REPORT 41 15 can't take down both a question and answer at the same 16 16 time, okay? If you do not hear a question, which is 17 17 unlikely since we're right across the table from each is 18 other, let me know that and I'll reask the question. More 19 19 importantly, if you do not understand a question that I 20 20 ask, ask me to repeat it or rephrase it, and I will. I 21 21 don't want you to answer a question you don't understand, 22 22 okay? 23 23 A Okay. 24 24 Q If you need to take a break, we can certainly 25 25 accommodate that. If you would like to confer with Page 3 1 STIPULATION 2 It is hereby stipulated by and between counsel 3 for the respective parties that reading, signing, sealing, 4 certification and filing are 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 TIMOTHY M. MESZAROs, called as a witness, being 9 duly sworn, testified as follows: 10 EXAMINATION 1 1 BY MR. JANUZZI: 12 Q Would you please give us your name? 13 A Timothy Michael Meszaros. 14 Q Tim, you're here today because a lawsuit has been 15 filed by my client, Audrey Smith, versus Outback Steakhouse 16 arising from an incident, a fall that Ms. Smith had at the 17 Outback Steakhouse on December 3rd of 2006, and we've been 18 told that you were a manager at the Outback Steakhouse on 19 that date. 20 A Yes. 21 Q Okay. So I asked you to come here today to ask 22 you some questions about what you may know about that fall, 23 okay? 24 A Okay. 25 Q All right. You understand that that's why you're Page 5 1 counsel, we can accommodate that as well, but I don't think 2 we should be too long. Fair? 3 A Yes. 4 Q Are you ready to get started? 5 A Yes. 6 Q Can you give us your age? 7 A 34. 8 Q And your Social Security number? 9 A 212-21-6337. 10 Q 6337? 11 A Yes. 12 Q And your current address? 13 A It's 40 Bridlewood Way, B-r+d-l-e-w-o-o-d Way. 14 Q One word? 15 A No, way is separate. I'm sorry. 16 Q Okay. Bridlewood is one word? 17 A Yes. It's York, Pennsylvania. 18 Q Okay. 19 A 17402. 20 Q Okay. 21 A It's actually an apartment. The number is A-42. 22 Q A-42? 23 A Yes. 24 Q Okay. And I understand that you are moving? 25 A Yes. Page 2 - Page 5 ATT(YAFC AT.RRTrHT FnT.T7. R, NATAT.F 717-Sd(1-M7(1/717_Zq?_?>tm WMSZAROS JULY 15, Page 6 1 Q Where are you moving to? 2 A Gaithersburg, Maryland. 3 Q Okay. Do you have an address there yet? 4 A I do. It's 911 Beacon Square Court. 5 Q Okay- 6 A It's Unit 442. 7 Q Okay. 8 A Gaithersburg, Maryland, G-a-i-t-h-e-r-s-b-u-r-g, 9 2 0878 . 10 Q And when did you plan on moving to Gaithersburg? 11 A I will be moving on Tuesday, July 22nd. 12 Q Okay. So a week yesterday? 13 A Yes. 14 Q Okay. Are you married? 15 A No. 16 Q Are you currently employed? 17 A No. 18 Q You were employed at Outback on December 3rd, 19 2006? 20 A I was employed for them on that date? 21 Q Yes. 22 A No. It was October of 1998. 23 Q No. But you were employed on December 3rd, 2006? 24 A Yes. I'm sorry. I thought you meant the initial 25 date of hire. Page 7 1 Q No. When is the initial date of hire? 2 A It was October of 1998. I don't know the exact 3 day. 4 Q Okay. October of '98. And when did you leave 5 Outback? 6 A It was March of 2008. 7 Q Okay. And the reason for leaving Outback? 8 A I kind of got thrown under the bus by the 9 proprietor at the time, if you want me to put it in those 10 terms. We didn't have -- we didn't see eye to eye. II Q Okay. 12 A And apparently he was in some trouble with the 13 NP, and he used me as a scapegoat to be honest with you, 14 but I don't even want to get into that. 15 Q Okay. Who is NP? 16 A He's the joint venture partner. 17 Q Okay. 18 A He's the head of the regional, the head of the 19 company. 20 Q So this was the -- the person that you didn't see 21 eye to eye with was the owner of -- 22 A Not of the Mechanicsburg store. 23 Q Okay. 24 A He was the owner of the York store that I worked 25 prior to, before I went to Mechanicsburg. Page 8 1 Q Okay. When you left in March of '08, were you 2 terminated, or did you leave on your own? 3 A Terminated. 4 Q Okay. And were you working at the Mechanicsburg 5 store at that time? 6 A No. I was working in York. 7 Q Okay. 8 A I had worked in both locations. 9 Q Okay. 10 A I had worked in Lancaster to start out with, then 11 in York for five years, and then I moved up to 12 Mechanicsburg for two years, and then back down to York. 13 Q So Lancaster, York, Mechanicsburg? 14 A Then back down to York. 15 Q Back to York, okay. And you said you were at 16 Mechanicsburg for two years? 17 A Yes. 18 Q Okay. And what were those two years? 19 A Sugar. I'm going to have to say 2005 to 2007. 20 Q Okay. Did you always work as a manager? 21 A No. 22 Q And when did you become a manager? 23 A The end of 2004. 24 Q Okay. 25 A I was sent to Mechanicsburg as a kitchen manager Page 9 1 and promoted through the partner at the Mechanicsburg store 2 to his front of the house manager. 3 Q As of December 3rd, 2006, what position did you 4 hold? 5 A Front of the house manager. 6 Q And what are the duties of a front of the house 7 manager? 8 A Well, we're basically in charge of all the bar 9 inventory, beer, liquor and wine, the front of the house 10 scheduling of all employees through hostessing, take-away 11 and waitressing, waiters, kind of just oversee it. 12 Q You would schedule them? 13 A Yes, sir. 14 Q What other managers would that be besides a 15 kitchen manager and a front of the house manager? 16 A That would be it. 17 Q Okay. 18 A They do have a key employee that would kind of 19 help myself out in the front that if the waiters and the 20 waitresses needed assistance, if I would have to help the 21 kitchen out, he or she could take over with those 22 responsibilities. Just the proprietor has a front of the 23 house manager which would be the general maker, the 24 kitchen manager and assistant kitchen manager. 25 Q Would there be an assistant manager to the front multi-page TM ?age 6 -Page 9 HUGHES, ALRMHT, FOLTZ & NATALE 717-540-022W717-393-5 101 Multi-Page rM TIMOTHY M. MESZAROS ITT1'_V I's 7nno Page 10 1 of the house? 2 A No. 3 Q Okay. You were listed as the manager on duty on 4 December 3, 2006. What other managers were there at the 5 store at that time? 6 A No one else at that time. The kitchen manager 7 usually left by two o'clock in the afternoon or noon. 8 Q That's one of those questions that I probably 9 didn't phrase very well. Not necessarily at the time of 10 the fall itself, but during that timeframe what other -- 11 who other people were managers at the Outback Steakhouse? 12 A No one. 13 Q So if you weren't there who managed the store? 14 A I don't understand the question to be honest with 15 you. 16 Q Yeah. Okay. 17 A I mean, I'm the only person in the building 18 besides the key employee. The key employee would be the 19 other person assisting me in my duties, but they weren't 20 manager. 21 Q I understand that. I think we're talking about 22 two different periods of time, or I'm not talking 23 necessarily at the exact time of the fall. 24 A Oh, you are stating if I wasn't there -- 25 Q During that tirneframe. Page 11 A That would be the proprietor. That would be the 2 proprietor. 3 Q There would be no other managers; is that what 4 you're saying? 5 A Right. 6 Q And who was the proprietor at the time? 7 A His name was Evan Chizik, C-h+z+k. 8 Q C-h+z+k? 9 A I believe so. 10 Q And what was he the proprietor of, just that 11 particular store? 12 A Yes. 13 Q And when you say the proprietor, the owner? 14 A Owner. 15 Q Is that the gentleman that you had -- that you 16 failed to see eye to eye with? 17 A No. 18 Q Okay. That was somebody down in York? 19 A That was another owner of the York store. 20 Q Okay, 21 A They buy ten percent of it, 22 Q Okay, 23 A And then Outback is corporately owned, and then 24 they have what they call a joint venture partner with guys 25 that can I guess invest in the company and become the Page 12 1 proprietor of that store. 2 Q So Evan Chizik was the proprietor of the 3 Mechanicsburg store? 4 A Yes. 5 Q What caused you to leave the Mechanicsburg store 6 and go to the York store in 2007 I think you said? 7 A The proprietor of York needed another front of 8 the house manager, and they were transitioning kitchen 9 managers, front of the house managers within the Reading, 10 Harrisburg, Mechanicsburg and York locations, so 1 was 11 chosen to go back down there because of where I lived. I 12 was commuting back and forth every day from York to 13 Mechanicsburg, so it fit my situation easier, plus their 14 moves as well from the corporate aspect of it. 15 Q Okay. But again during the timeframe of this 16 fall, let's say the month of December, there's just one 17 front of the house manager? 18 A (Nods head up and down.) 19 Q And if you are not there the proprietor is 20 basically doing the duties that you would perform; is that 21 fair to say? 22 A Yes. 23 Q There was a name I saw somewhere, Allison Kidd. 24 Do you know Allison Kidd? Do you know of her? 25 A She's a waitress and a bartender. Page 13 1 Q Okay. And she was a waitress and bartender at 2 that time of the fall? 3 A Yes. 4 Q She was in the store at the time of the fall? 5 A That I'm not -- I can't remember that. 6 Q Okay. Let me get a little more specific now to 7 the day of the fall. Again, during this timeframe, let's 8 take it like a month before the fall, leading up to the 9 fall, would there be any schedule for cleaning the 10 bathrooms in the store? 11 A At nighttime, yes. During the day it was done by 12 our bus boys or a female waitress or someone, a female to 13 check the situation of the ladies' room at that time per 14 the manager, myself, or the key or the proprietor. 15 Q Okay. Let me ask you some questions about that 16 then. You say so there is a schedule to clean the 17 bathrooms at night? 18 A Yes. 19 Q Okay. And from what I've seen that was done by 20 like an outside -- 21 A Yes. 22 Q --maintenance company? 23 A Yes. 24 Q Okay. Do you recall the name of that company? 25 A No, but I do know the gentleman's name. I don't Page 10 -Page 13 HUGHES. ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-393-5101 TIMOTHY AL AWSSZ OS JULY 15,2w mulfirp yerM Page 14 1 know his last name. I do know his first name. 2 Q What was his first name? 3 A Charles. 4 Q And this would be in the middle of the night 5 sometime? 6 A Yes. 7 Q Now, you said during the day that other people 8 would go in and clean the bathrooms? 9 A Yes. 10 Q Would there be any schedule, set schedule for 11 that? 12 A No. 13 Q What would determine whether someone would go in 14 and clean the bathrooms? 15 A Myself or the proprietor, the key would just -- 16 you know, just maintaining the duties and the function of 17 the restroom, to oversee, you know, paper towels, toilet 18 paper, the cleanliness of the bathroom and its general 19 state, would just periodically. I mean, it was things we 20 were trained to do throughout our, you know, our shift. 21 Q Was tyre like a timeframe of when we need to do 22 this, at least once in a two-hour period, once in a 23 three-hour period, anything like that? 24 A It technically would have to be done within once 25 every 45 minutes to an hour. Page 15 1 Q You said technically. Where are you getting 2 that? 3 A Well, we would open the restaurant on this day at 4 2 o'clock, so within the busy times, you know, we would 5 have certain volume levels that the restaurant would hit, 6 you know, throughout the day, and I just kind of gauge it 7 from that aspect, you know. Obviously you are going to get 8 busier towards dinnertime, so we would try to get the 9 individual to go in there, you know, like I say, if it was 10 at 4 o'clock, you know, at least three times between 4:00 11 and 7:00. 12 Q Okay. I guess what I was asking, you said 13 technically it would be done once every 45 minutes to an 14 hour. Is there something in writing from Outback or some j 15 specifications that would require it to be done every 45 16 minutes to an hour? 17 A There is in their guidelines, in their safety 18 procedures, but it wasn't posted for us to initial or 19 anything like that, but it was just something that we had 20 to, you know, study and train as a, you know, packet, 21 whether it was myself, the key, the proprietor or whoever, 22 and just follow those procedures, and it was kind of 23 like just our normal, you know, hit the ground running 24 duties. 25 Q But there was something spelled out in Outback Page 16 1 safety procedures? 2 A Oh, yes. 3 Q That the restroom should be cleaned or was it 4 cleaned or checked, or what would be the -- what would have 5 to be done every 45 minutes to an hour? 6 A I would say just check. Cleaning was done by him 7 at night. Checked, would probably just maintain,' you know, 8 paper towels, toilet pier, debris, so forth, soap. 9 Q And was there any record kept of 10 A No. 11 Q Let me finish my question -- 12 A Okay. I'm sorry. 13 Q -- so you don't get yourself in trouble here. 14 Was there any record kept of anyone who would check the 15 restrooms and the time that they were checked? 16 A No. 17 Q You know what I mean? I think sometimes I'm in 18 -- 19 A Like a daily log? 20 Q Yeah, like restrooms in restaurants and on the 21 back of the restroom door, they have -- 22 A Right. 23 Q --a paper there. 24 A And they put a time and initial it. 25 Q Yeah, the time to clank. You guys didn't have Page 17 1 anything like that? 2 A No. 3 Q And it was not only not in the bathroom, but you 4 didn't have anything like' that anywhere in the store„ is 5 that what you're saying? 6 A No, no. 7 Q You're not -- 8 A I mean, on the computer they had a printoff of 9 it, but we weren't recommended to have it posted in our 10 bathroom. 11 Q Okay. Well, what would you have on the computer? 12 A Just -- just the duties that needed to be done by 13 myself, or like I said, just letting the busboy know or a 14 fellow, a female if it was the ladies' room, having them 15 just check it. I mean, it would state on there that they 16 had to go in and check for soap, make sure the soap, there 17 was paper towels. You know, if they got below halfway then 18 they needed to be filled to the top. We just would have a 19 busser go in and check that stuff periodically, and so we 20 wouldn't have to have a guest ask, we need soap, we need 21 toilet paper, stuff like that. 22 Q Sure. I understand, but I guess what I'm 23 wondering is okay, so this person would do that. When they 24 did that, would they come bank on the computer and check 25 in, okay, I -- Page 14 - Page 17 HUGHES, ALBRWUT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TIMOTHY M. MESZAROS iI II _Y 1,; )nno Page 18 1 A No. 2 Q My name, I do this at this time, and this is what 3 I did? 4 A No, no. 5 Q Regardless of whether it was posted on the door 6 or in a log somewhere other than in the bathroom or in the 7 computer, there would be no record of when the bathrooms 8 were checked and what was done -- 9 A No. 10 Q --and by whom? 11 A No. 12 Q Okay. How would you sort of keep track that it 13 was getting done? 14 A Well, some proprietors actually made it a hostess 15 job instead of a bus person's job. Some proprietors made 16 it a bus person's job. So they would designate the certain 17 areas of who they felt comfortable. A lot of hostesses are 18 female, so it would be easier for them to go in the ladies' 19 room and check the situation out in there. On the busers' 20 end the majority of them were male, so they could go in the 21 men's room and check that. 22 So the proprietor would set up what duties he 23 wanted done by who, and then they would just before their 24 shifts started, it was the job of the hostess that she 25 would just come in, check the ladies' room, stock it if it Page 19 1 needed stocked. Normally that stuff would be done at the 2 end of the night by the closing hostess from the night 3 before, but if they didn't get done the girl that came in 4 the aftemoon to start the shift would go in and do it and 5 throughout the shift. Like on that particular day, a 6 Saturday, there's five hostesses on, so they're supposed to 7 rotate out and go check it. They don't sign anything 8 though when they've done it, and they don't report to us 9 once it's done, but in my ten years of working there I have 10 never had really an issue of somebody saying we're low, 11 out, and we need this, that or the other. I mean, it was 12 pretty much set from day one, their understanding to take 13 care of the duties that they were assigned. 14 Q Okay. Well, let's talk about your specific 15 situation then. In your specific situation at the 16 Mechanicsburg store during the tinieframe around December 17 3rd, 2006, how would the bathrooms get check? Would it be 18 you that would tell someone to go check it? Would it be 19 the hostess that would tell somebody to go check it, the 20 proprietor, if you recall? !21 A Both myself and the proprietor would make sure 22 that the hostesses or a busboy was checking the bathrooms 23 periodically. 24 Q Okay. If you didn't say anything to them, were 25 they still expected to check the bathrooms? Page 20 1 A Yes. 2 Q Okay. And is there anything in writing that 3 would tell us that, you know, it's the duty of the hostess 4 or the bus boys to check the bathrooms at certain periods 5 of time, that kind of thing? 6 A Yes. 7 Q And where would that be? 8 A It wouldn't be posted anywhere in the restaurant, 9 but it would be in Outback's procedures and policies in the 10 computer. 11 Q Okay. Did the Outback's procedures and policies 12 have any procedure or policy to record that this was done, 13 that the bathroom was being checked? 14 A I don't understand what you mean by that. 15 Q Well, we're saying that you told me that there 16 was no record of people checking the bathrooms and what 17 they had done, but did Outback's procedures and policies 18 set forth that there should have been a record of people 19 checking the bathroom and at what times and what was done? 20 A Yes. 21 Q Okay. And do you recall what that said? 22 A No, not off the top of my head. 23 Q Okay. 24 A I mean, a lot of the proprietors came up with -- 25 1 mean, there's a general guideline, but if there was other Page 21 1 things that they wanted somebody to do which some people 2 were obviously cleaner than others, some aren't, but if a 3 proprietor wanted to add this or that, I mean, at their 4 discretion they had that obligation to do that, so they 5 would maybe, you know, critique the procedures and 6 policies. 7 I mean, they would never take anything off of 8 that. Obviously that wouldn't make sense to run a clean 9 restroom or a restaurant in general, but throughout the day 10 shift of the operating procedures they might put different 11 steps here and there, but it was never posted like you 12 would see in plastic laminate and signed and dated and 13 initialed by anybody. That wasn't recoiinmended of us to do 14 that. 15 Q Okay. Do you recall on December 3rd, 2006, whose 16 job it would have been to check the ladies' restroom at the 17 Outback Steakhouse? 18 A That would be our hostesses. 19 Q Okay. And do you remember who the hostesses on 20 duty were on that day? 21 A No. 22 Q Would there be records kept of, you know, who 23 worked when and what their duties were and what their jobs 24 were? 25 A There should be. I mean, they should have all HUGHES, ALBRIGHT. FOLTZ & NATALE 717-540-0220/717-191-5101 Page 18 - Page 21 TIMOTHY W MFSZAROS JULY 15,2009 M1u?1? Pale ?"` Page 22 I that stuff, the scheduling saved on a computer. Like I 2 said, now that Phil runs that location I have no idea what 3 he's done. I mean, Evan is out in New Jersey. I don't 4 know what they would have done with any of that stuff to be 5 honest with you, whose file it's in or so forth. 6 Q Do you recall -- well, let me ask you this. Do 7 you know about how many hostesses would have been working 8 at Outback as of December 3rd, 2006? 9 A I could say about 10 to 13 of them. 10 Q Is that right? 11 A (Nods head up and down.) 12 Q Okay. Do you recall any of their names? 13 A I do. Let me see. A girl named Nicole. I don't 14 know her last name. 15 Q Okay. 16 A Jessica. Courtney. Those are the only --those 17 are the three that pretty much worked the wed=d shifts 18 from my recollection. Now, the Nicole girl, she would come 19 back for winter breaks, so she probably was working around 20 that time. 21 Q Okay. 22 A Jess and Courtney which are pretty much more 23 full-time employees than the zest of the girls. 24 Q Jessica and Courtney were full-time you said? 25 A Right. Page 23 1 Q What would be the normal schedule for a hostess 2 an a Sunday, working under the assumption that December 3 3rd, 2006, was a Sunday? 4 A How many of them would be on? 5 Q What would their hours be? 6 A The fast hostess would come in from about 7 11:00 -- if we opened -- on Sundays, they opened at noon on 8 Sundays. They would be in at 11:45, and they would 9 probably leave around 2:30 to 3:00, ding on whatever 10 the volume rush was then. The other girl would be in 11 around I'd say one o'clock, an hour after we opened, and 12 then she would stay until probably 7:00, 7:30, maybe even 13 later. It depends on, like I said, how busy it was. 14 Q Uh-hum. 15 A The other one would be in no later than 3:45 and 16 would stay until close. Now, I mean that's not set for all 17 Outbacks. I mean, I can say we staggered it here and there 18 according to business that week but... 19 Q Okay. Well, I'm looking at an accident report, 20 an incident report that indicates that this fall occurred 21 at about 5:25 p.m. Given what you've told true, would there 22 be generally two hostesses on duty at that time on a 23 Sunday? 24 A Yes. 25 Q Okay. Is that pretty much what you would expect Page 24 1 to be on duty at this time on a Sunday at that time, two? 2 A Yes. 3 Q Okay. 4 A In that store, with that volume. Now', in a 5 busier one they would probably have three or four on at 6 that time. 7 Q Okay. 8 A In that location, I mean, that fit our needs on a 9 Sunday. 10 Q And that's what I mean, at this location? 11 A Yes. 12 Q So you would expect that there would have been 13 two hostesses on duty at about 5:25 on December 3, 2006, at 14 the Mechanicsburg store? 15 A Yes. 16 Q Okay. 17 A I mean, to be honest with you, I'd say that at 18 that time, at 5:00, that third one would be on at 5 19 o'clock, no later than 5 o'clock. 20 Q And she would be the second one, because one 21 would have already left; is that right? 22 A It depends on how the business -- like it depends 23 on how the restaurant was filled. I mean, if it was full 24 and we had people coming in the door, we wouldn't let that 25 second individual leave. They couldn't automatically leave Page 25 1 at a set time. I mean, if it was slow and they came and 2 said -- well, I mean obviously business dictates how things 3 would go for that day, but -Am wouldn't -- they just didn't 4 -- they couldn't just leave and sign out and go without 5 checking with us first or anything like that, so at that 6 point in time if it was busy I'd say all three of then were 7 on at that time. 8 Q Okay. Do you recall on that particular date at 9 that particular time if the store was busy? 10 A No. To be honest with you, it was probably 11 medium level, moderate level businm. 12 Q But you were working at 5:25 on December 3rd, 13 2006? 14 A Yes. 15 Q Do you know if the proprietor would have been 16 there at that time? 17 A He was not. 18 Q He was not? 19 A No. 20 Q Okay. And you said the store would have opened 21 at noon on that day? 22 A On Sunday, yes- 23 Q On Sunday, may. What time would you have gotten 24 to the store? 25 A About ten o'clock in the morning,. Page 22 - Page 25 HUGHES, AI BRIGHT, FOLTZ A NATALE 717-54U-Q22W717-393-5101 Multi-Page TM TIMOTHY M. MESZAROS JULY IS- 2009 Page 26 Page 28 1 Q Do you personally do any checks of the bathrooms 1 A No. 2 prior to the store opening? 2 Q Did you know that it happened in the restroom 3 A Yes. 3 prior to going and filling out this report? 4 Q What do you do? 4 A Yes. 5 A Make sure the paper towels, toilet paper, I mean 5 Q Okay. And how did you learn that? 6 everything, you know, just make sure it's clean and ready 6 A Erica had said she slipped in the bathroom. 7 to go. 7 Q Okay. So you don't recall Ms. Smith's response. 8 Q Okay. When did you first learn that Audrey Smith 8 What do you do after that? 9 had fallen in the store? 9 A What do I do after what? After I went to the 10 A When the waitress came and got me. 10 table? 11 Q Okay. And who was that waitress? 11 Q Yes, and you asked -- 12 A That was Erica, and I guess her last name is 12 A I asked her if she was okay. 13 pronounced Jonas. 13 Q Okay. And then you said you don't remember her 14 Q Okay. Well, I'll show you the copy of this, and 14 response; is that correct? 15 we can talk about it a little bit. It says reported by 15 A I believe she said she was okay. She just wanted 16 about two-thirds of the way down Erica, and it's J-o-n-a-s, 16 to fill out an incident report for safety precautions. 17 Erica Jonas? 17 Q Okay. And then what did you do? 18 A Yes. 18 A Went in the back and got the incident report and 19 Q And she would have been the waitress? 19 went back to the table to fill it out. 20 A Yes. 20 Q Okay. And where was this incident report filled 21 Q She had been the waitress that was serving Audrey 21 out? 22 Smith and her party, to your knowledge? 22 A At the table. 23 A To my knowledge. I believe I had given you guys 23 Q Okay. Is this your handwriting? 24 another waitress. I thought that they might have been 24 A Yes. 25 having some issues with Erica and requested that somebody 25 Q Okay. When it says at the top these, it says Page 27 Page 29 1 else wait on them. 1 Unit No. 3921, what does that refer to? 2 Q Do you know why? 2 A That's the store number that they had given that 3 A No, I have no idea. 3 location. 4 Q Was this after the fall? 4 Q Okay. And then we have the date and time that 5 A No. Yes, yes. 5 we've talked about, and then it says description. Customer 6 Q Okay. Now, so -- 6 said she slipped on wet tile in the ladies' room and fell 7 A Yeah, I mean Erica came and got me and said that 7 down and hurt her left ankle. Did I read that correctly? 8 Ms. -- is it Smith? 8 A Yes. 9 Q Yes. 9 Q Okay. And where did you get that information 10 A -- had fallen down. After that I guess she said 10 from? 11 she -- they wanted another waitress or that she didn't want 11 A From Ms. Smith. 12 to wait on them anymore. I don't know. My recollection, I 12 Q Okay. It says that Erica Jonas, she was the 13 can It be a hundred percent sure that that happened. 13 person that reported it, and she reported it to you, that 14 Q Okay. So Erica comes over and tells you that we 14 you were the manager on duty, and then at the very bottom 15 have a customer that fell. What did you do at that point? 15 it says complete this section if incident was a fall, and 16 A Went directly to the table. 16 it says condition of floor, and you write in there wet, 17 Q Okay. And what happened from that point? 17 correct? 18 A I asked her if she was okay, and I guess I just 18 A Yes. 19 made sure that -- I asked her if she wanted me to fill out 19 Q And where did you get that information from? 20 an incident report, and at that time she said yes. 20 A I got that information because she -- from her 21 Q Okay. When you asked her if she was okay, do you 21 saying it to me. She slipped on a wet floor. 22 recall what her response was? 22 Q Okay. Underneath that it says who inspected the 23 A No. 23 floor, and it has your name there. Did you actually go in 24 Q Okay. Prior to going and getting this report, 24 the ladies' room and physically inspect the floor? 25 did you ask her how it happened or what happened? 25 A I don't recall that. Page 26 - Page 29 HiICiAFS_ Ai.RRT(iH'T_ FnT.T7. Rr NATAT_F 717-Sd0-1177A/717-Z4Z_?1M TIMOTHY M. FAROS JULY 15. 2009 1;lti.-Page T` Page 30 1 Q Okay. You don't -- you don't think you -- you 2 think you did, you don't think you did, or you're just not 3 sure? 4 A I'm not sure. 5 Q You may have? 6 A Yes. 7 Q Is there a reason why you wouldn't inspect the 8 floor if someone -- 9 A No. 10 Q -- tells you that -- i 1 A I might have just -- 12 Q Let me finish. 13 A I'm sorry. 14 Q That's all right. So someone comes and tells you 15 that they have slipped on a wet floor in the bathroom, and 16 I'm wondering if there's a reason why you wouldn't go 17 inspect the floor? 18 A No, there's no reason why I wouldn't have done 19 that. 20 Q Would you have anyone inspect the floor? 21 A Would I have had anybody inspect the floor? 22 Q Yes. 23 A Other than myself, probably a busboy or the 24 waitress. I don't remember which one of the three of us 25 went in there at the time to be honest with you. That's Page 31 1 why I can't tell you whether I came up with wet condition 2 floor from my general -- you know, from me, from me seeing 3 it or the busboy or the waitress. 4 Q Okay. But you -- let me ask this. Would you 5 have assumed that if you didn't personally inspect the 6 floor that you would have had someone else inspect the 7 floor? 8 A Yes. 9 Q Okay. And is it your understanding that then 10 when the condition of the floor says wet, that if not from 11 your own personal inspection that one of the other two 12 people would have reported back to you that the floor was 13 wet? 14 A Yes. 15 Q Okay. And you have weather conditions dry, 16 correct? 17 A Yes. 18 Q And you indicate that Ms. Smith was wearing 19 tennis shoes at the time of the fall? 20 A Yes. 21 Q Do you recall when you learned that the floor of 22 the ladies' restroom was wet what action was taken as a 23 result of that? 24 A Well, whether it was myself at this point in 25 time -- like I said, I can't remember -- the busboy or the Page 32 1 waitress put a wet floor sign in there. 2 Q Okay- 3 A I mean, my first initial reaction if I would have 4 asked the busboy to do it, I would have told him to take a 5 mop in there and mop up the condensation and gut a wet 6 floor sign down. If I was going to do that myself, I would 7 have done the same thing. Like I said, I can't recall 8 whether I did it or he did it. I know the waitress didn't 9 do it. I mean, she's got tables to take care of and other 10 stuff. That would have been myself or the busboy that 11 would have either, you know, cleaned up the condensation 12 and put a wet floor sign down. Which one of us did it, 1 13 can't remember that. 14 Q Okay. Well, let me try to be more specific then. 15 Do you know for sure that someone went in there and mopped 16 up the floor? 17 A No. 18 Q Okay. Do you know for sure if a wet floor sign 19 was put down? 20 A Yes. 21 Q Okay. Do you know who put the wet floor sign 22 down? 23 A No. 24 Q Okay. If the floor was wet -- you said you 25 weren't sure if sqme= went in there and mopped it up -- Page 33 1 why wouldn't the floor be mopped, mopped up if it was wet? 2 A It would have been - I mean, theme's wet floor 3 signs in the bathroom underneath the sinks. They would 4 probably -- if I would have -- if the incident happened 5 right then when she told me it did, to go in there, 1 6 probably would have just popped one out and set it tune to 7 block off that stall. 8 Now, like I said, I can't remember whether it was 9 myself, she grabbed it, myself or the busboy, that grabbed 10 it and did it. I mean, the whole situation was to take 11 care of her, so I had to get back to her. If I said to the 12 busboy grab a mop, mop that up and put a wet floor sign 13 out, I didn't go back and cheek with him to say did you do 14 that? I just assumed, that he did it. I can't recall if I 15 did it. 16 To be honest with you, I think I was over there 17 at the table talking with her and her two daughters. She 18 had another daughter with her or a friend at the same time, 19 so my recollection of whatever the busboy was doing, 20 because it wasn't the waitress, was I was under the 21 impression that he was mopping it up and cleaning, putting 22 the wet floor sign down. 23 Q Okay. Maybe the confusion is on my part, but let 24 me just try to get this straight for the record. So a wet 25 floor sign was put down? Page 30 - Page 33 HUGHES, ALBRIG T, FOLTZ & NATAL E 717-540-02201717-393-5101 Multi-Page Page 36 1 of condensation. 2 I mean, I'm not going to say that there was a 3 puddle. It didn't -- you know, it -- I mean, I don't -- 4 you know, I'm having a hard time remembering what it was. 5 It could just be splashed out of the toilet. The toilet 6 might have, you know, clogged a little bit and then drained 7 down on the side. I don't know. I wasn't in there when it 8 happened, so I don't know how it got there, but I do recall 9 there being a little bit of condensation. 10 Q Okay. But I guess what I'm asking you is if 11 you're not sure if you personally inspected the floor, how 12 would you know that it was -- 13 A Well, I didn't personally get down on my hands 14 and knees. 15 Q Okay. 16 A But I could visually see in the back right-hand 17 corner that there was a little condensation back in that 18 area where the -- I mean, I didn't -- I didn't get down and 19 touch it. 20 Q Okay. 21 A But visually I could see that there had been a 22 little water in the back right-hand corner. 23 Q And when did you visibly inspect that? 24 A Right after that they had told me what happened, 25 and I went right over to the table, had asked the busboy to Page 34 1 A Yes. 2 Q And I had asked you if you knew whether the floor 3 had been mapped up or not, and you said you didn't know, 4 correct? 5 A Yes. 6 Q But you certainly did ask someone to -- 7 A Yes. 8 Q -- mop the floor? 9 A Yes. 10 Q Okay. And you mentioned something about putting 11 a wet floor sign in front of the stall. What did you mean 12 by that? I mean, why did you use the word stall? Was that 13 where the water was on the floor? 14 A No. The water was in the back right-hand comer 15 underneath the -- the turn -- like the toilet thing. It 16 was just condensation from what I -- it wasn't leaking. 17 There wasn't anything busted. 18 Q Okay. 19 A But to put the wet floor sign in front of that 20 stall just for precautionary reason, for so no one would go 21 in that and use that until we could get the situation, you 22 know, looked at more thoroughly. After I was taking care 23 of Ms. Smith at her table, I just wanted to make sure the 24 busboy or whoever didn't let anybody use that stall. 25 Q Okay. So the water on the floor was in one of Page 35 I the stalls of the ladies' bathroom; is that correct? 2 A Yes. 3 Q Okay. And what stall was that, if you remember? 4 You said it was in the one in the back -- 5 A It was the back right corner, the back right 6 stall. 7 Q Is that the handicapped stall; do you know? 8 A Yes. 9 Q Okay. And again, I know you said you're not sure 10 if you personally checked the floor or not, but you 11 mentioned that there was condensation and not necessarily 12 water, not necessarily water leaking? 13 A Right. 14 Q If you're not sure if you personally inspected 15 the floor or not, how do you know that it was condensation 16 rather than something actually leaking? 17 A Well, there was -- there was -- there was water 18 present, you know what I mean. I can't say whether it was 19 thrown there, it leaked out of the toilet. I mean, the 20 plumbing fixtures and everything on the toilet, they 121 weren't leaking. If there was no -- if that was to happen, 22 the whole floor would have ran out in the dining room. I 23 mean, there's a drain in there and everything, but at this 24 point in time, I mean, if you're talking about -- I mean, a 25 little bit of condensation, I'd say there was a little bit TIMOTHY M. MESZA.ROS Iin'_v i,% mno Page 37 i put a sign in there. 2 Q Okay. Maybe the confusion is on my part, but I 3 thought you said you weren't sure if you personally 4 inspected the bathroom or not? 5 A I didn't personally mop it up, and personally, 6 you know, I mean, when all this stuffed happened with the 7 restaurant and the volume or whatever we were doing, my 8 main concern is Ms. Smith. 9 Q I understand. 10 A I mean, there might have been -- there's a whole 11 bunch of scenarios going on through my head as far as who 12 put the sign there and mopped it and so on, but if I went 13 in and looked at it and saw it and the busboy is standing 14 right next to me at the same time, hey, whoever you are 15 that was working, come in here and make sure there's a wet 16 floor sign down, take care of this situation. 17 Now, if I saw it, you know, at that point in time 18 I didn't -- I can't remember how much it was or I didn't go 19 back and specifically see where -- if it was coming from 20 anywhere directly. 21 Q Okay. But you did walk into the -- 22 A I walked in -- 23 Q -- ladies' restroom? 24 A And I turned into, headed into the stall and 25 looked. WO F.& AI.RRIGHT F01.T7 Ar NATAT IP Page 34 - Page 37 TIMOTHY M. WSZA.ROS JULY 15, Multi.-Page TM 1 Q And you did see there was water on the floor? 2 A Right. 3 Q Okay. But you're not sure where it came from or 4 how much was there; is that fair to say? 5 A Yes. 6 Q Okay. Did anyone say anything to you like, oh, 7 you know, there was water on the floor before, we mopped it 8 up or anything like that? 9 A No. 10 Q Do you recall anything like that? 11 A No. 12 Q Okay. And do you recall yourself or anyone 13 telling Ms. Smith and her party that the toilet in the 14 handicapped stall was leaking? 15 A No. 16 Q Is it possible that you could have said that? 17 A Yes. 18 Q Okay. But you just don't recall at this point? 19 A Correct. 20 Q Okay. Would the wet floor sign have been moved 21 after the floor was mopped up? 22 A And dry, yes. 23 Q Okay. When you were talking to Ms. Smith did you 24 notice if her clothes or pants at all were wet? 25 A No. Page 39 1 Q Okay. Again that's one of those questions that I 2 have kind of not asked very well. Did you see that her 3 clothes were wet? 4 A No. 5 Q Okay. Did you see that her clothes were not 6 wet? 7 A No. 8 Q Okay. So they could have been wet? 9 A Yes. 10 Q Okay. And you indicated that she was wearing 11 tennis shoes? 12 A Yes. 13 Q As a result of this incident did you have people 14 clacking the ladies' res"= more frequently On that day? 15 A No, not anymore tines than they would normally in 16 a shift, and we didn't have any other incidents after that 17 through 9 o'clock, 9:30 at night, but they weren't, you 18 know -- they were still supposed to do their duties and 19 check the restrooms. 20 Q Okay. But it didn't concern you enough that 21 someone had slipped on water that came from somewhere in 22 the bathroom that this might happen again, that it would 23 need some extra attention? 24 A Yeah, I mean, it concerned me greatly. We don't 25 want anybody to get injured or hurt or something like that Page 38 Page 40 1 in our restaurants, but I'm not going to say they went in 2 there every ten minutes after, you know, prior to the 3 incident, but there was -- tyre wasn't anything that 4 occurred from my knowledge, you know, the rest of that 5 night. 6 Q Okay. But you -- 7 A I just left a wet floor sign there, or I didn't 8 leave the wet floor sign there, but I didn't ask 9 the busboy or myself, I didn't go in tyre like five times 10 in an hour, because there was no other -- from that point l i on there didn't seem to be any other issues with that 12 stall. 13 Q And you mentioned -- I want to get back to the 14 condensation again. Do you know what would have caused 15 that condensation if indeed the water had come from 16 condensation? 17 A It could have -- the toilet from prior use 18 besides Ms. Smith might have almost overflowed from ante 19 individual that was in there, maybe leaked out on the 20 floor. That's the only other recollection I could see of 21 why the water would be there. I mean, the plumbing 22 fixtures and so forth, they weren't broken. The toilet, 23 the water knob, it wasn't leaking or anything like that. 24 Q Okay. You had used the word condensation. I was 25 just trying to figure out what you meant by that or -- Page 41 1 A A small amount of water, not a puddle. It wasn't 2 a puddle, just condensation, a little bit of condensation, 3 so if it wasn't coming from the on/off valve, I could see 4 that would be more of a puddle or more than just 5 condensation. It might have -- tike I said, sometimes the 6 toilet might overflow. It might not. A little bit could 7 have come out the side, you know, between the hours of 2:00 8 and 5:25, but it wasn't brought to anybody's attention. 9 Nobody saw it, you know, in that timeframe. 10 Q Okay. So after you felled out this r ml -- and 11 again you said this was filled out at Ms. Smith's table? 12 A Yes. 13 Q Do you recall any other conversation you had with 14 Ms. Smith or anyone in her party? 15 A I think -- I mean, I'm pretty sure I went back 16 over and talked to you a couple times to nnake sure their 17 dinner was okay, at the end of the dither made sure if they 18 needed any other asSiStS=. I can't specify how many 19 times I went back over there. I thh* at beast two or 20 three more times since than. 21 Q Okay. Any other information you may have learned 22 about the fall or anything like that other than what you 23 have in this report? 24 A No. 25 MR. JANUm: Okay. That's all I have. Thank Page 38-Page 41 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540 -Q2201717-393-5101 Multi-Page TM TIMOTHY M. MESZAROS .1 ULY 15, 2009 Page 42 1 you. 2 MS. COHEN: No questions. 3 (Customer Incident Report produced and marked 4 Meszaros Deposition Exhibit No. 1.) 5 (The deposition was concluded at 1:53 p.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 43 1 COUNTY OF DAUPHIN 2 : sS 3 COMMONWEALTH OF PENNSYLVANIA 4 I, Diane F. Foltz, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of Timothy M. Meszaros. 8 I further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 1 further certify the said deposition was taken at 14 the time and place specified in the caption sheet hereof. 15 I further certify I am not a relative or employee or 16 attorney or counsel to any of the parties, or a relative or 17 employee of such attorney or counsel, or financially 18 interested directly or indirectly in this action. 19 1 further certify that the said deposition 20 constitutes a true record of the testimony given by the 21 said witness. 22 IN wITNESS WHEREOF, I have hereunto set my hand 23 this 23rd day of July, 2009. 24 _ 25 Diane F. Foltz, RMR HUU1 EN. ALBRIGHT- FOLTZ & NATALF 717-540-077nn17-191-SInI Page 42 - Page 43 Multi-Page` & [2] 1:14 1:18 '08 [1] 8:1 '98 [1] 7:4 -0- 08-6453 [1] 1:4 -1- 1 [2) 2:15 42:4 10 [1) 22:9 11:00 [1] 23:7 11:45 [1) 23:8 13 [11 22:9 15 [1) 1:13 17402 [11 5:19 1998 [216:22 7:2 1:10[1) 1:13 1:53 [1] 42:5 -2- 2 [11 15:4 2004 (118:23 2005 [1) 8:19 2006[n] 3:17 6:19 6:23 9:3 10:4 19:17 21:15 22:8 23:3 24:13 25:13 2007[218:19 12:6 2008 [1) 7:6 2009 [2)1:13 43:23 20878111 6:9 212-21-6337 [1) 5:9 2225 [111:15 22nd [116:11 23rd [11 43:23 2:00 [1) 41:7 2:30 [1) 23:9 -3- 3 [31 2:4 10:4 24:13 34 [1] 5:7 3921 [1129:1 3:00 [1) 23:9 3:45 [1] 23:15 3rd [91 3:17 6:18 6:23 9:3 19:17 21:15 22:8 23:3 25:12 -4- 4 [1] 15:10 40 [11 5:13 Close [1123:16 closing [1) 19:2 clothes [3] 38:24 39:3 39:5 COHEN [21 1:22 42:2 comfortable [1] 18:17 Cog [3) 24:24 37:19 41:3 COMMON [1] 1:1 COMMONWEALTH - [1) 43:3 - Commonwealth [1] 43:5 Commuting [1) 12:12 company [41 7:19 11:25 13:22 13:24 complete [1] 29:15 computer [6) 17:8 17:11 17:24 18:7 20:10 22:1 Concern (2) 37:8 39:20 Concerned [11 39:24 concluded [1) 42:5 condensation [16] 32:5 32:11 34:16 35:11 35:15 35:25 36:1 36:9 36:17 40:14 40:15 40:16 40:24 41:2 41:2 41:5 condition [31 29:16 31:1 31:10 conditions [11 31:15 confer [l] 4:25 Confusion [2) 33:23 37:2 Constitutes [1] 43:20 Conversation [1] 41:13 cOpy [1l 26:14 Corner [4) 34:14 35:5 36:17 36:22 Corporate [1) 12:14 Corporately [1) 11:23 Correct [1] 38:19 correct [sl 28:14 29:17 31:16 34:4 35:1 HUGHES- ALBRIGHT_ FOLT7 & WATAT.F. ?»-Sdn-n??nr»?_zQZ_S?ni Index Page 1 41 [1] 2:15 442 [11 6:6 45 [41 14:25 15:13 15:15 16:5 4:00 [1] 15:10 -5- 5 [21 24:18 24:19 5:00[11 24:18 5:25 [41 23:21 24:13 25:12 41:8 -6- 6337 [115:10 -7- 7:00 [21 15:11 23:12 7:30 [1) 23:12 -9- 9111 39:17 911 [1] 6:4 9:3001 39:17 [1] 43:2 -A- A-42 [215:21 5:22 accident [1) 23:19 accommodate [2) 4:25 5:1 according [1] 23:18 ACTION [11 1:5 action [2] 31:22 43:18 add [11 21:3 address [21 5:12 6:3 administer [11 43:5 aftBrIIOOn [2) 10:7 19:4 afterwards [1] 43:11 Again [21 13:7 39:1 again [s) 12:15 35:9 39:22 40:14 41:11 age [1) 5:6 Allison [21 12:23 12:24 almost [1] 40:18 always [1] 8:20 amount [1] 41:1 ankle [i) 29:7 answer (3) 4:11 4:15 4:21 answers [21 4:6 43:10 anybody's [1] 41:8 apartment [1) s:21 APPEARANCES 1 1:17 area [l] 36:18 areas [1] 18:17 arising [1) 3:16 aspect [2] 12:14 15:7 assigned [11 19:13 assistance [2) 9:20 41:18 assistant [2) 9:24 9:25 assisting [1] 10:19 assumed [2) 31:5 33:14 assumption [11 23:2 attention [2] 39:23 41:8 attorney [31 4:7 43:16 43:17 AUDREY [2] 1:1 1:25 Audrey [31 3:15 26:8 26:21 authorized [11 43:4 automatically [1] 24:25 -B- - B-r-i-d-l-e-w-o-o-d [1) 5:13 bar [1) 9:8 bartender [2) 12:25 13:1 bathroom [12] 14:18 17:3 17:10 18:6 20:13 20:19 28:6 30:15 33:3 35:1 37:4 39:22 bathrooms [11 ) 13:10 13:17 14:8 14:14 18:7 19:17 19:22 19:25 20:4 20:16 26:1 BeaCOn [1] 6:4 become [2) 8:22 11:25 beer [1) 9:9 behalf [1) 4:7 below [11 17:17 BENJAMIN [1] 1:26 between [31 3:2 15:10 41:7 bit [7l 26:15 35:25 35:25 36:6 36:9 41:2 41:6 block [11 33:7 bottom[1] 29:14 boys [2) 13:12 20:4 break [11 4:24 breaks [1) 22:19 5:16 BRIGGS [1] broken [1l brought [11 building [1) bunch [1] bus [s1 7:8 18:15 18:16 busboy [141 19:22 30:23 31:25 32:4 33:9 33:12 34:24 36:25 40:9 busers I [1] busier [2] 24:5 business [4] 24:22 25:2 busser [1] busted [1] busy [4] 15:4 25:6 25:9 buy [11 11:21 -C- C-h-i-z-i-k [2) 11:8 _ caption [1) Care M 19:13 33:11 34:22 caused [2] 40:14 Certain [3] 18:16 20:4 certainly [2] 34:6 certification [1 3:4 certify [s] 43:8 43:13 43:19 & - correct TMOTHY M. MESZAROS [2) 5:13 CIVIL [1] 1:5 clean [s) 13:16 1:21 14:8 14:14 21:8 40:22 26:6 41:8 cleaned [3) 16:3 10:17 16:4 32:11 37:11 cleaner [1] 21:2 13:12 Cleaning [11 16:6 20:4 cleaning [2) 13:9 17:13 33:21 31:3 cleanliness [1) 14:18 32:10 client [1] 3:15 33:19 clogged [11 36:6 37:13 18:19 15:8 23:18 25:11 17:19 34:17 23:13 11:7 43:14 32:9 37:16 12:5 15:5 4:24 1 43:6 43:15 Charge [11 9:8 Charles 111 14:3 check [20] 13:13 16:6 16:14 16:25 17:15 17:16 17:19 17:24 18:19 18:21 18:25 19:7 19:17 19:18 19:19 19:25 20:4 21:16 33:13 39:19 Checked [1l 16:7 checked [s1 16:4 16:15 18:8 20:13 35:10 Checking [s] 19:22 20:16 20:19 25:5 39:14 checks [1l 26:1 Chizik [2] 11:7 12:2 chosen [1l 12:11 correctly - indirectly Multi-Pap TM TI TRY U- WA%3ZA 90S [ti 29:7 51 27:16 Exhibit m 42:4 38:20 38:21 40:7 hmdknvW [2) MI MSel [4] 3:2 37:20 43:18 ITS ,11) 2:12 40:8 40:20 35:7 19:14 5:1 43:16 43:17 discretion [1] 21:4 expect [2] 23:25 FLORIDA [1l 1:7 hands 111 36:13 'OUNTY [21 1:2 done 122] 13:11 24:12 follow [1] 15:22 handwriting [il 43:1 13:19 14:24 15:13 expected (il 19:25 fellows [11 3:9 28:23 ;ouple [1) 41:16 15:15 16:5 16:6 extra [1) 39:23 FOLTZ [1] 1:11 HANSEN (11 1:27 -OURT [1] 1:1 17:12 18:8 _ 18:23 19:1 18:13 19:3 C [6] 7:10 7:10 Foltz [2143:4 43:25 hard [1l 36:4 Court [1] 6:4 19:8 19:9 20:12 7:21 7:21 11:16 folregoing[i) 43:6 Harrisburg [11 12:10 x)urt (214:5 4:14 20:17 20:19 22:3 11:16 forM [1] 3:5 head [61 7:18 7:18 22:4 30:18 32:7 12:18 20:22 22:11 Courtney [31 22:16 fft4li 15112:12 16:8 7 22:22 22:24 door [3] 16:21 18:5 -F- 20:18 22:5 40:22 3 :11 ritique pl 21:5 24:24 F [3l 1:11 43:4 four pl 24:5 headed iii 37:24 CUMBERLAND (i] down [221 4:6 43:25 fitly [i) 39:14 hear [il 4:16 1:2 4:15 8:12 8:14 failed [1] 11:16 ? Ei] help [2) 9:19 9:20 rur ent Ell 5:12 11:18 12:11 22:11 26:16 12:18 27:10 Fair [1] 5:2 Front [11 9:5 9:5 hereby [31 3:2 CUSTOMER [i) 29:7 32:6 32:12 fair [21 12:21 38:4 front [12] 9:2 3;4 43:6 hereof [il 43:14 2:15 32:19 32:22 33:22 fall [15) 3:16 3:22 9:6 9:9 9:15 Customer (2) 29:5 33:25 36:7 36:13 10:10 10:23 12:16 9:19 9:22 9:25 hereunto oil 43:22 42:3 36:18 37:16 43:10 13:2 13:4 13:7 12:7 12:9 12:17 bey [1l 37:14 customer Ell 27:15 drain [il 35:23 13:8 13:9 23:20 34:11 34:19 }ire [2] 6:25 7:1 drained [i] 36:6 27:4 29:15 31:19 full Ell 24:23 hit [2) 15:5 15:23 -D- dry [ii 31:15 38:22 41:22 full-time (21 22:23 hold Ell 9:4 fall 26 9 d,?ily (1)16:19 txl :9 en [21 27:10 : 22:24 hOMest [7) 7:13 DATE [1] 1:13 2) During Mg [2] 10 10:25 37:11 far l function [i1 14:16 10:14 22:5 24:17 13:11 [ ] _ _ 25:10 30:25 33:16 date (6] 3:19 25 7 1 6 6:20 25 8 during [5) 10:10 fell (2) 27:15 29:6 -G hostess [71 18:14 : : 29:4 : 12:15 13:7 14:7 fellow 111 17:14 Goa-i-t-h-e-r-s -b-u-r-g 18:24 19:2 19:19 dated p1 21:12 19:16 felt (i) 18:17 [11 6:8 20:3 23:1 23:6 daughter [1l 33:18 duties [1o] 9:6 female [4) 13:12 [3] Gaithersburg hostesses [al 6 19:22 19 18:17 21:18 10:19 12:20 14:16 13:12 17:14 18:18 6:2 6:8 6:10 : daughters [1] 33:)7 15:24 17:12 18:22 figure 111 40:25 21:19 22:7 23:22 DAUPHIN (1] 43:1 19:13 21:23 39:18 file Ell 22:5 So [1] 15:6 24:13 debriS [1l 16:8 duty 171 10:3 20:3 fiicd Ell 3:15 aI [? 14:18 20:25 9:23 21:9 I>stcss?ag [il 9:10 December [121 3:17 21:20 23:22 24:1 filing [i] 3:4 31:2 110W 161 14:25 6 5 15:14 23 6:18 6:23 9:3 24:13 29:14 27:19 fill 3 28:16 generally [1] 23:22 15:16 1 : 40 10 :11 10:4 12:16 19:16 [ ] : 21:15 22:8 23:2 -E- 28:19 l gfX*tICMM Ell ' 11:15 hours 121 23:5 24:13 25:12 fil ed [51 17:18 s [1] gentleman 41:7 DEFENDANT [21 easier [21 12:13 240 28:20 41:10 13:25 house 1101 9:2 1:8 1:23 18:18 41:11 girl [41 19:3 22:13 9:5 9:6 9:9 DEMANDED Ell either [11 32:11 wing [1] 28:3 22:18 23:10 9:15 9:23 10:1 1:7 eMloyed [4] 6:16 y Ell 43:17 girls [il 22:23 12:8 12:9 12:17 depending [1] 23:9 6:18 6:20 6:23 finishp) 4:11 Given (1) 23:21 h=dwd[i] 27:13 DEPOSITION (2) ePloyee (51 9:18 16:11 30:12 given [a) 4 hurt [2] 29:7 39:25 14 1 9 2 10:18 10:18 43:15 ?`ir9t p] 4:8 14:1 26:23 29:2 3: 43:20 : : Deposition Ell 42:4 43:17 1 14:2 23:6 25:5 grab [11 33:12 ?1 e1oy?S [21 0 9: 26:8 32:3 deposition (51 4:3 22:23 fit [2) 12:13 24:8 grabbed 121 33:9 idea [21 22:2 27:3 42:5 43:9 43:13 end [41 8:23 18:20 Eve [31 8:11 19:6 33:9 Y E11 4a 9 43:19 19:2 41:17 40:9 greatly (11 39:24 impression [n 33:21 description [1l 29:5 ENOLA Ell 1:16 fixtures [2) 35:20 ground [2) 4:8 INC p 1 1:7 designate p] 18:16 Erica [$l 26:12 40:22 15:23 INCIDENT p) 2:15 ? [11 14:13 26:16 26:17 26:25 floor (] 29:16 guess (7) 11:25 lwidmt 111 42:3 DIANE [i) 1:11 27:7 27:14 28:6 29:21 29:23 29:24 15:12 17:22 2710 27:18 26:12 36:10 incident [101 3:16 [2] Diane 43:4 29:12 ESQUIRE [2) 1:19 30:8 30:20 30:21 30:15 31 30::117 guest [1l 17:20 23:20 27:20 28:18 28:20 28:16 29: 15 dictates Ell 25:2 1:22 31:6 31:7 31:10 »uideline [i] 20:25 33:4 39:13 3 40:3 different (21 10:22 Evan (3111:7 12:2 31:12 31:21 32:1 guidelines [1l 15:17 incide?ts [i) 39:16 21:10 22:3 32:6 32:12 32:18 32:21 32:16 32:24 guys [31 11:24 16:25 indeed Ell 40:15 dining Ell 35:22 exert [2] 7:2 33:1 33:2 33:12 26:23 indicate pl 31:18 10:23 dinner [2i 41:17 EXAMINATION 121' 33:22 33:25 34:2 -H- indicated [11 39:10 41:17 34:8 34:11 34:13 i 2':2 3:10 10 cates pl ind 23:20 dinnertime [1] 15:8 except [1) 3:5 34x9 34:25 35:15 35:22 35: 36:11 1131fWay [1l 17:17 indirectly [1] 43:18 direction [11 43:12 EXHIBIT [i) 2:14 37:16 38:1 38:7 hand (il 43:22 [ndex Page 2 HUGHES, ALBRIGH T, FOLTZ & 1! ATALE 717-5140-0220/717-393-5101 Multi-Page l-m inalviauat [31 15:9 24:25 40:19 information [4129:9 29:19 29:20 41:21 initial [s] 6:24 7:1 15:18 16:24 32:3 1n!1lalea [1] injured [1] inspect 18] 30:7 30:17 30:21 31:5 36:23 inspected [41 35:14 36:11 inspection [1] instead [1] interested [1] inventory [11 invest [11 issue [1] 19:10 issues [21 40:11 itself [1110:10 -J- IT 1-1: 19 J-o-n-a-s [11 JACOB [1] IJANUZZI [6] 1:18 1:19 3:11 41:25 Jersey [1] Jess [11 22:22 Jessica [21 22:24 'ob [s1 18:15 18:16 18:24 obs [11 21:23 -oint [21 7:16 Jonas [31 26:17 29:12 JULY [1l July [21 6:11 JURY [1] JVP [2] 7:13 21:13 39:25 29:24 30:20 31:6 29:22 37:4 31:11 18:15 43:18 9:9 11:25 26:25 26:16 1:27 1:14 2:4 22:3 22:16 18:15 21:16 11:24 26:13 1:13 43:23 1:7 7:15 -K- KARL [1l 1:19 keep [11 18:12 kept [3] 16:9 16:14 21:22 key 161 9:18 10:18 10:18 13:14 14:15 15:21 Kidd [2112:23 12:24 kind [71 7:8 9:11 9:18 15:6 15:22 20:5 39:2 kitchen [71 8:25 9:15 9:21 9:24 9:24 10:6 12:8 JmOeS [1] 36:14 knew R] 34:2 knob [1140:23 knowledge [31 26:22 26:23 40:4 -L- ladies' [111 17:14 18:1 21:16 29:6 31:22 35:1 39:14 laminate [1] Lancaster [2 8:13 last [31 14:1 26:12 LAW [21 1:21 lawsuit [1] leading [11 leaked [21 40:19 leaking [61 35:12 35:16 38:14 40:23 learn [2126:8 learned [2] 41:21 least [31 14:22 41:19 leave [817:4 12:5 23:9 24:25 25:4 leaving [1l left [51 8:1 24:21 29:7 letting [11 level [2125:11 levels [1] liquor [1] listed [1] lived [1112:11 LLP [2] 1:14 location [41 24:8 24:10 locations [21 12:10 109 [21 16:19 looked [31 37:13 37:25 looking [11 low [1] 19:10 13:13 18:25 29:24 37:23 21:12 8:10 22:14 1:5 3:14 13:8 35:19 34:16 35:21 28:5 31:21 15:10 8:2 24:25 40:8 7:7 10:7 40:7 17:13 25:11 15:5 9:9 10:3 1:18 22:2 29:3 8:8 18:6 34:22 23:19 -M- M [4] 1:9 2:3 3:8 43:7 main [1137:8 maintain [11 16:7 maintaining [1114:16 maintenance [11 13:22 maJOnty [1l 18:20 male [1] 18:20 managed [11 10:13 manager [211 3:18 8:20 8:22 8:25 9:2 9:5 9:7 9:15 9:15 9:23 9:23 9:24 9:24 9:25 10:3 10:6 10:20 12:8 12:17 13:14 29:14 managers (6) 9:14 10:4 10:11 11:3 12:9 12:9 March [21 7:6 8:1 MARKED [1 ) 2:14 marked [11 42:3 married [1] 6:14 Maryland (2) 6:2 6:8 may [3] 3:22 30:5 41:21 mean [42] 10:17 14:19 16:17 17:8 17:15 19:11 20:14 20:24 20:25 21:3 21:7 21:25 22:3 23:16 23:17 24:8 24:10 24:17 24:23 25:1 25:2 26:5 27:7 32:3 32:9 33:2 33:10 34:11 34:12 35:18 35:19 35:23 35:24 35:24 36:2 36:3 36:18 37:6 37:10 39:24 40:21 41:15 meant [2] 6:24 40:25 Mechanicsburg [141 7:22 7:25 8:4 8:12 8:13 8:16 8:25 9:1 12:3 12:5 12:10 12:13 19:16 24:14 medium [11 25:11 men's [1] 18:21 mentioned [31 34:10 35:11 40:13 MESZAROS [a1 1:9 2:3 2:14 3:8 MCSzarOS [31 3:13 42:4 43:7 Michael [1l 3:13 middle [11 14:4 might 1101 21:10 26:24 30:11 36:6 37:10 39:22 40:18 41:5 41:6 41:6 MILLEIS N M [1] 1:15 minutes [5] 14:25 15:13 15:16 16:5 40:2 moderate [11 25:11 individual - P.M TIMOTHY M. MESZAROS month [21 12:16 23:16 244 27:6 13:8 33:8 37:17 niop [6l 32:5 32:5 now [21 13:6 22:2 33:12 33:12 34:8 number 3) [ 1 5:8 37:5 5:21 29:2 34:3 38:21 1 [s] 32:15 33:1 33:1 37:12 38:7 moPPing [11 33:21 morning [1] 25:25 moved [2] 8:11 38:20 moves [1] 12:14 Moving [41 5:24 6:1 6:10 6:11 MS [11 42:2 Ms [121 3:16 27:8 28:7 29:11 31:18 34:23 37:8 38:13 38:23 40:18 41:11 41:14 -N- NAME [1l 2:2 name [121 3:12 11:7 12:23 13:24 13:25 14:1 14:1 14:2 18:2 22:14 26:12 29:23 named [11 22:13 names [1] 22:12 necessarily [4] 10:9 10:23 35:11 35:12 need [61 4:24 14:21 17:20 17:20 19:11 39:23 needed [6l 9:20 12:7 17:12 17:18 19:1 41:18 needs [1] 24:8 never [31 19:10 21:7 21:11 New [1] 22:3 next [1] 37:14 NICOLE [1] 1:22 Nicole [21 22:13 22:18 night [7113:17 14:4 16:7 19:2 19:2 39:17 40:5 nighttime [11 13:11 Nosy [n 41:9 NOBS [2112:18 22:11 noon [3110:7 23:7 25:21 normal [21 15:23 23:1 "'O?iy [1] 19:1 nOrmally [1] 39:15 NOTARY [1l 1:12 Notary [1] 43:4 notice [1] 38:24 Now [71 14:7 22:18 -O- o'clock [s1 10:7 1 15:4 15:10 23:11 5 24:19 24:19 25:25 39:17 oaths [1l 43:5 4 objections [11 3:5 Obligation [11 21:4 Obviously [21 15:7 21:8 Obviously (2) 21:2 25:2 occurred [21 23:20 40:4 OCtober [31 6:22 _ 7:2 7:4 Off [31 20:22 21:7 33:7 OFFICE [1] 1:21 On/Off [1l 41:3 once [51 14:22 14:22 14:24 15:13 19:9 One [11 5:14 one [201 5:16 10:6 10:8 10:12 12:16 19:12 23:11 23:15 24:5 24:18 24:20 24:20 30:24 31:11 32:12 33:6 34:20 34:25 35:4 39:1 Open [1] 15:3 opened [4l 23:7 23:7 23:11 25:20 Opening [1] 26:2 Operating [11 21:10 OUTBACK [111:6 Outback [131 3:15 3:17 3:18 4:7 6:18 7:5 7:7 10:11 11:23 15:14 15:25 21:17 22:8 Outback's [31 20:9 20:11 20:17 Outbacks [1] 23:17 outside [11 13:20 Overflow [1] 41:6 overflowed [1l 40:18 oversee [2] 9:11 14:17 own [21 8:2 31:11 owned [1l 11:23 Owner [1] 11:14 Owner [4] 7:21 7:24 11:13 11:19 -p- P-MIll 1:13 ------------------- - HUGHES. ALBRIGHT_ FOLT7 k. NATAT.F Index Page 3 rT LO M> 1ti-PsggerM US p.ffi tz1 23:21 42:5 (i) 33:6 i) 4:18 39:) 3 P [i] 15.20 a t position (11 9:3 (s) 7:7 0) 22:17 sh s [2 31 n p s [1) 38:24 possible (?) 38:16 30:16 30:18 22:25 35:13 f 1 22 3 ?oe I :19 Per [?1 14:17 14:18 16:8 16:8 Pvstecl [sl 15:18 17:9 18:5 20:8 342 36:24 38:2 cti 0n (4122:18 right [iol 3 2 SHQLLE3?I13RCrER 16:23 17:17 17:21 26 5 21:11 : 5 [2) 1:14 27:12 33:19 40:20 4:17 22:10 24:21 1:18 : 26:5 Part [21 33:23 37 2 precautionary [il mcommm&d[21 30:14 33:5 35:5 show 11126:14 : particular [4] 11:11 34:20 'Ca11ti0IIS [11 28:16 17:9 21:13 record t81 16:9 35:5 36:25 37:14 Site [21 36:7 41:7 ?" [3) 34;14 19:5 25:8 25:9 PRBSEIT [1) 1:24 16:14 18:7 20:12 36:16 36:22 sign 118119:7 25:4 l 3:3 :1 present (13 35:18 20:16 20:18 33:24 Rl1R [21 I :11 32 :1 32:6 32:12 3 6 4 43:16 43:20 43:25 32:18 32:21 33:12 Partner ( 7:26 PnL[3' [s1 19:12 22:17 22:22 23:25 records [1) 21:22 rOOM M 13:13 17:14 34:19 37: 5 2 37 12 9:1 11:24 41:15 ieduced(1) 43:11 18:19 18:21 18:25 : 37:16 38:20 40:7 Party [3126:22 38:13 pr 17 Mfer [1) 29:1 29:6 29:24 35:22 40:8 41:14 PENNSYLVANIA :1 procedure tl) 20:12 ardkSS (1) 18:5 r0tat c [11 19:7 sii?d (1) 21:12 [3) 1:2 PZDWd»s [8) 15:18 REGINA (1) 1:26 rules [1] 4:8 SigU* [1) 3:3 1:16 43:3 15:22 16:1 20:9 lftiMal [1) 7:18 rein (13 21:8 signs (1) 33:3 Pennsylvania (2) 20:11 20:17 21:5 relative (2) 43:15 running [1) 15:23 sinks M 33:-3 5:17 43:6 21:10 43:16 Is {t) 22:2 sltuatit?n [e) 12:13 people (s) 10:11 PRODUCED[i) 1eawmber(9) 13:5 nish[1] 23:10 13:13 18:19 19:15 14: 20:16 20:) 8 2:14 21:19 28:13 30:24 19:15 33:10 34:21 21:1 1 24:24 31:12 Produced [11 42:3 31:25 32:13 33:8 -S_ 37:16 39:13 promoted cu 9:1 35:3 37:18 slipped [s) 28:6 Per [l l 13:13 pronounced D]26:13 rmembeming [1) Sett' (3) 15:17 29:6 29:21 30:15 I Percent [2) 11:21 27 I)VOpriCW [19l 7:9 9 36:4 r"eat [1) 4 20 16:1 28:16 Saturday (11 19:6 39:21 1 25 SIOW 1 :13 PerfOM [11 12:20 :22 11:1 11:2 11:6 11:10 11:13 : rCpkaVft 171 4:20 Saved [1) 22:1 ( ) : sXWI nj 41:1 period [21 14:22 12:1 12:2 12:7 REPORT p) 2:15 SAW (4) 12:23 37:13 SKIM [2) 1:1 14:23 12:19 13:14 14:15 Rcport[I1 42:3 37:27 41:9 1:25 periodically [31 15:21 18:22 19:20 19:21 21:3 25:15 r"Ort [11) 19:8 Says [9) 26:15 28:25 28 25 2 Smith (13) 3:15 14:19 17:19 19:23 Proper 131 18:14 21:19 23:20 27:20 27:24 28 3 : 9:5 29;12 29:15 29:16 29:22 3:16 26:8 26:22 27:8 29:11 31:18 periOd$ [21 10:22 20:4 18:15 20:24 : 28:16 28:18 28:20 41:10 3110 3423 37:8 38:13 PUBLIC (1) 1:12 41:23 SCOat [1) 7:13 38:23 40:18 41:14 1erso?n 151 17;23 Public 121 43:4 26: 15 ? { SC0enariOS (1) 37:11 SAQith"s (2) 28:7 29 1:13 2 3 43:11 29:13 29: :13 31 :12 SC''de [s) 9:12 : 41:11 9 : S [2) 18:15 POrSOR' puddle [4] 36:3 R Otter [il 43:12 13:9 13:16 14:10 [41 16:8 17:16 18:16 41:1 41:2 41:4 reporter (2) 4:5 14:10 23:1 17;16 17:20 Personal [i) 31:11 Put (131 7:9 16:24 4:14 edliling [2) 9:10 Social [il 5:8 Personally [9) 26:.2 21:10 32:1 32:5 32:12 32:19 32;21 Reporter-Notary p ) 22:1 3e8li 3 SOV30O C (101 13:12 14:13 19 18 31:5 35:10 35:14 33:12 33:25 34:19 43:11 :3 ft M second [2) 24 20 Sec : 30:8 30:14 31:6 32:15 36:11 36:13 37:3 37:1 37:12 MPreS=t[1) 4:7 : o 32:25 34:6 39:2) 2:25 3 37:5 37:5 Phil 1 22 2 putting [2) 33:21 requested (11 26:25 Section [1) 29:15 se n 4:6 14:5 [ ) : P 211 10:9 34:10 require [i) 1515 J<esmed t 3 6 Security (1) 5:8 tiS [21 16:17 PbYSiCaDY [11 29:24 [ ) : M?? [11 3:3 [141 7: I0 7;20 11 16 Z 41:5 Sonaewl7etc [31 12:23 PLACE [1) 1:14 Stions [71 3:22 response [31 27:22 : I:I2 22:13 36:16 36:21 18:6 39:21 place [i] 43:14 4:6 10:8 13:15 28:7 28:14 37:19 38:1 39:2 sorry [415:15 6:24 PLAINTIFF[31 39:1 42:2 43:9 sponsibilities tit 39:5 40:20 41:3 16:12 30:13 1:2 1:10 1:20 9:22 Seeing m 31:2 Sort [1) 18:12 Plan [1) 6:10 -R- rest [21 22:23 40:4 Semen (il 40:11 Specific (4) 13:6 plastic [i) 21:12 R(1) 1:22 MMUrant [6) 15:3 sense [1l 21:8 19:14 19:15 32:14 PLEAS 1) 1:1 15:5 20:8 21:9 308t[il 8:25 SPdCificall Y [i) 37:19 plumbing (2) 35:20 rSn [1) 35:22 rather 1 35 16 24:23 37:7 NvSrate (11 5:15 eci sp fications [1] 40:21 [ ) : restaurants (z) 16:20 ? i plus (11 12:13 1eaction (1) 32:3 40:1 SWV* D) 26:21 SpecifW[1] 43:14 point [s1 2S:6 27:15 read (1] 29:7 re:3 14:1 7 166 3 Sets) 14:10 18:22 19:12 20:18 23:16 S PCCifY Ell 41:18 27:17 31:24 35:24 Reading [ll 12:9 : 16:21 21 :9 21:16 28:2 31:22 25:1 33:6 43:22 Spelled [r1 15:25 37:17 38:18 40:10 mading [il 3:3 37:23 39:14 Sheet (1143:14 splashed p 1 36:5 Policies [41 20:9 ready t2l 5:4 MStroOM 131 16:15 Shift [sl 14:20 19:4 Square [i1 6:4 20:11 20:17 21:6 26:6 16:20 39:19 19:5 21:10 39:16 SS [1] 43:2 ;policy 111 20:12 really [1] 19:10 reSUlt [2] 31:23 shafts (2) 18:24 St 8ggerCd [11 23:17 ? Index Page 4 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM Stall till 33:7 34:11 34:12 34:20 34:24 35:3 35:6 35:7 37:24 38:14 40:12 Stalls [1] 35:1 Standing [1) 37:13 start [2] 8:10 19:4 started [2) 5:4 18:24 State [21 14:19 17:15 stating p] 10:24 Stay [21 23:12 23:16 STEAKHOUSE [1] 1:6 SteakhOUSe [6) 3:15 3:17 3:18 4:8 10:11 21:17 stenographically [1l 43:10 Steps [1121:11 Still [21 19:25 39:18 Stipulated [1] 3:2 STIPULATION [1] 3:1 STOCK [1] 18:25 Stocked [1] 19:1 Store (241 7:22 7:24 8:5 9:1 10:5 10:13 11:11 11:19 12:1 12:3 12:5 12:6 13:4 13:10 17:4 19:16 24:4 24:14 25:9 25:20 25:24 26:2 26:9 29:2 Straight [11 33:24 study [ll 15:20 stuff [6) 17:19 17:21 19:1 22:1 22:4 32:10 stuffed [1l 37:6 Such [1] 43:17 Sugar [1l 8:19 Sunday [71 23:2 23:3 23:23 24:1 24:9 25:22 25:23 Sundays [2) 23:7 23:8 supposed (21 19:6 39:18 sworn (2] 3:9 43:9 Teurng [1) 38:13 tells (3) 27:14 30:10 30:14 ten [4) 11:21 19:9 25:25 40:2 tennis [2) 31:19 39:11 Terminated [1] 8:3 terminated (11 8:2 terms [11 7:10 testified (11 3:9 testimony (21 43:7 43:20 Thank [1] 41:25 they've [11 19:8 third [1) 24:18 thoroughly [1 ) 34:22 thought [31 6:24 26:24 37:3 three [6115: 10 22:17 24:5 25:6 30:24 41:20 three-hour m 14:23 through [4] 9:1 9:10 37:11 39:17 throughout [4] 14:20 15:6 19:5 21:9 thrown [2) 7:8 35:19 file [1] 29:6 Tim (11 3:14 timeframe M 10:10 10:25 12:15 13:7 14:21 19:16 41:9 times [s] 15:4 15:10 20:19 39:15 40:9 41:16 41:19 41:20 TIMOTHY [3] 1:9 2:3 3:8 Timothy [2) 3:13 43:7 today [2l 3:14 3:21 toilet (13) 14:17 16:8 17:21 26:5 34:15 35:19 35:20 36:5 36:5 38:13 40:17 40:22 41:6 too (1) 5:2 top [31 17:18 20:22 28:25 uouole (2) 7:12 16:13 true [1] 43:20 try [3) 15:8 32:14 33:24 trying [1) 40:25 Tuesday [1) 6:11 turn (11 34:15 Twmea [1] 37:24 two VII 8:12 8:16 8:18 10:7 10:22 23:22 24:1 24:13 31:11 33:17 41:19 tw0-hOUr [1) 14:22 two-thirds [1) 26:16 typewriting [1143:12 -U- Uh-hunt [11 23:14 under [41 7:8 23:2 33:20 43:12 Underneath [1129:22 underneath [2) 33:3 34:15 understand [91 3:25 4:19 4:21 5:24 10:14 10:21 17:22 20:14 37:9 Unit [2) 6:6 29:1 unlikely [1) 4:17 up 1191 8:11 12:18 13:8 18:22 20:24 22:11 31:1 32:5 32:11 32:16 32:25 33:1 33:12 33:21 34:3 37:5 38:8 38:21 used [2) 7:13 40:24 usually [ll 10:7 -V- V (1) 1:4 valve (1] Venture [2) 11:24 versus [1] visibly [1] visually [2] 36:21 volume [4) 23:10 24:4 -T- Toucn [1l 36:19 table [9) 4:17 27:16 towards [1) towels [4l I 15:8 14 17 w 28:10 28:19 28:22 16:8 17:17 : 26:5 wait [2] 27:1 33:17 34:23 36:25 traCk [1] 18:12 waiters [2] 41:11 tables (1] 32:9 train [11 15:20 9:19 waitress [14 take-away [1] 9:10 trained [1] 14:20 ] 13:1 13:12 taking [3) kin 4:6 transitiomng V) 26:11 26:19 a 43:8 12:8 26:24 27:11 technically [3] 14:24 TRIAL [1] 1:7 31:3 32:1 15:1 15:13 trial [1] 3:6 33:20 waitresses [I] 41:3 7:16 3:15 36:23 36:16 15:5 37:7 27:12 9:11 12:25 26:10 26:21 30:24 32:8 9:20 waived [1] walk [1] 37:21 walked [1] 37:22 water [14] 34:13 34:14 34:25 35:12 35:12 35:17 36:22 38:1 38:7 39:21 40:15 40:21 40:23 41:1 wearing [2) 31:18 39:10 weather [ll 31:15 week [216:12 23:18 weekend [1) 22:17 wet [29] 29:6 29:16 29:21 30:15 31:1 31:10 31:13 31:22 32:1 32:5 32:12 32:18 32:21 32:24 33:1 33:2 33:12 33:22 33:24 34:11 34:19 37:15 38:20 38:24 39:3 39:6 39:8 40:7 40:8 WHEREOF [1) 43:22 whole [3] 33:10 35:22 37:10 wine [1] 9:9 winter [il 22:19 within [4] 12:9 14:24 15:4 43:5 Without [1) 25:4 WITNESS (1) 43:22 witness [3] 3:8 43:9 43:21 WITNESSES ill 2:1 wondering [2] 17:23 30:16 word (4) 5:14 5:16 34:12 40:24 worked [5] 7:24 8:8 8:10 21:23 22:17 write [1129:16 writing [2] 15:14 20:2 -Y- years [Sl 8:11 8:12 8:16 8:18 19:9 Yesterday V1 6:12 Yet [1) 6:3 York [141 5:17 7:24 8:6 8:11 8:12 8:13 8:14 8:15 11:18 11:19 12:6 12:7 12:10 12:12 yourself 121 16:13 38:12 stall - yourself TIMOTHY M. MESZAROS (1] 9:11 3:4 HTIGHFC AT_]RIRTI.TTT FnT T7 B WATeT V -71-7-cw1%_n-)-)nr71 -7_zn-2_c-1 n-i Index Page 5 EXHIBIT C - ?-- ?) ©7 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant o?pev IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that, if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED WT)MA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomaro medidas y puede entrar una orden contra usted sin previo aviso o notoficacaion y por cualquier queja o alivio que es pedido en la peticion do demanda. usted puede perder dinero o sus propiededas o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 HOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED C I:AINT AND NOW comes the Plaintiff, AUDREY SMITH, by and through her attorneys, SHOLLENBERGER & JANUZZI, LLP, and respectfully represents the following: 1. The Plaintiff, AUDREY SMITH, is an adult individual who currently resides at 2022 Loch Haven Drive, Congers, Georgia 30013. 2. The Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., is a Florida business corporation that owns and operates the Outback Steakhouse store at 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The facts and circumstances hereinafter set forth took place on December 2, 2006, between 6:00 and 7:00 p.m., in the ladies' restroom at the Outback Steakhouse, 25 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania. 4. At the aforesaid time and place, the Plaintiff, AUDREY SMITH, entered the handicapped stall in the ladies' restroom, where she slipped on water on the floor, and fell. 5. As a result of the aforesaid incident, Plaintiff, AUDREY SMITH, has suffered serious and permanent injuries, including but not limited to the following: a. Left shoulder rotator cuff tear; b. Left shoulder labral tear; C. Left biceps tendinitis; d. Left ankle bone bruise; e. Left ankle injury; f. Aggravation of lumbosacral strain and sprain; g. Aggravation of chronic lumbago; 6. The aforesaid incident and resulting injuries to the Plaintiff, AUDREY SMITH, were a direct and proximate result of the negligence, carelessness and recklessness of Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., which consisted of: a. Creating a dangerous condition in a ladies restroom of its restaurant in the nature of standing water on the floor of the ladies' restroom; b. Failing to exercise the duty of reasonable care required of business establishments to protect patrons from known and obvious dangerous conditions existing on the premises known to be used and of necessity to be used by said patrons; C. Failing to provide any warning of the above referenced dangerous condition; d. Failing to exercise reasonable care to make the condition safe or to warn patrons of the condition of the floors in the restroom; and e. Creating or allowing a situation where it would be necessary for patrons to encounter dangerous conditions in the course of using the ladies' restroom at their place of business. 7. As a result of the aforesaid incident, Plaintiff, AUDREY SMITH, has undergone and in the future will undergo great pain and suffering for which damages are claimed. 8. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has sustained a permanent diminution in her ability to enjoy life and life's pleasures for which damages are claimed. 9. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has and/or may in the future incur expenses for medical treatment and rehabilitation for which damages are claimed. 10. As a further result of the aforesaid injuries, Plaintiff, AUDREY SMITH, has been and may continue to be subjected to further medical procedures and treatments, and all accompanying risks, hazards, pain, suffering, discomfort and economic losses associated therewith, and may be compelled to expend money for medicine and medical attention, for which damages are claimed. WHEREFORE, the Plaintiff, AUDREY SMITH, demands judgment against the Defendant, OUTBACK STEAKHOUSE OF FLORIDA, INC., for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully submitted, SHOLLENB,EpGER & JANUZZI, LLP By: Dated: February 2009 Ka . Januzzi, Esquire A hey I.D. No. 65575 22 5 Millennium Way Enola, PA 17025 717-728-3200 VERIFICATION I, Audrey Smith , hereby acknowledge that I am a Plaintiff in this action and that I have read the Conp I a i nt and that the facts stated herein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Signature Date: 2/25/09 G:\GLOBAL\WPDATA\DOCS\INITIAL CONSULT DOCS (SET-UPS)\Verification.wpd SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way, Enole, PA 17025 (717) 728-3200 ! FAX (717) 728-3200 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED CR'" 4WAOMWE AND NOW this a S day of February, 2009, 1 hereby certify that I have served the within Complaint on the following by forwarding a true and correct copy of same in the United States mail, postage prepaid, addressed to: Norman W. Briggs, Esq. Briggs Law Office 300 Walnut Street, Suite 2 Philadelphia, PA 19106 By: Ja'nuzzi, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) AUDREY SMITH vs. (List the within matter 'or the xt rv 1 M w ?-c OUTBACK STEAKHOUSE OF FLORIDA, INC No. 08-6453 CIVIL Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): Defendants Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Karl Januzzi, Esquire Sheilenberger & Januzzi, LLP, 2225 Millennium Way, Engle, PA 17025 (Name and Address) (b) for defendants: Nicole Cohen, Esquire, Briggs Law Office, LLC, 300 Walnut Street, Philadelphia, PA 19106 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4 Signature Nicole R. Cohen, Esquire Print your name Defendant 3/10/2010 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. SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant P,D , 20 10 APR 13 # .:ti 6- : /-' 5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Audrey Smith, by and through her attorneys, SHOLLENBERGER & JANUZZI, LLP, and files her Response to Defendant's Motion for Summary Judgment as follows: 1. Admitted. 2. Admitted. 3. Denied. It is specifically denied that Plaintiff claimed that the incident described in Plaintiff's Complaint occurred during her meal, or that she fell "on a puddle of water on the floor behind the toilet." To the contrary, the record fails to support these assertions. 4. Admitted and denied. It is admitted that there are no known witnesses to the incident. It is denied that there were no witnesses to the water on the floor, and the record r fails support that the Plaintiff ever characterized the water as a "puddle." 5. Denied. It is specifically denied that the manager on duty, Mr. Meszarus, ever testified that his inspection revealed condensation on the knob underneath the toilet. To the contrary, even though page 41 of his deposition transcript was not attached to Defendant's Motion or Brief as indicated, his testimony actually confirms the presence of water on the floor. (Meszarus Depo., p. 38). 6. Denied. It is specifically denied that Mr. Meszarus testified that there was no puddle on the floor and that the toilet was not broken. Again, even though page 40 of the deposition transcript is not attached as indicated, a review of the transcript attached hereto reveals that this was not his testimony. (Meszarus Depo., p. 40). 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. It is specifically denied that Plaintiff has failed to establish that the Defendant had actual knowledge of the condition. 11. Denied. It is specifically denied that Plaintiff has failed to establish that the Defendant should have been aware of the condition. 12. Denied. To the contrary, there are facts that impose responsibility and liability on the Defendant for the condition. 13. Denied. It is specifically denied that there are no genuine issues of material fact, or that Defendant is entitled to summary judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests your Honorable Court deny the Defendants' Motion for Summary Judgment. Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP By: Karl J?W*i, Esquire AttorVv for Plaintiffs Date: April 9, 2010 i SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way ` Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff AUDREY SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant NO. 08-6453 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW this 9th day of April, 2010, 1 hereby certify that I have served the following Plaintiffs Answer to Defendant's Motion for Summary Judgment on the following by forwarding a true and correct copy of same in the United States mail, postage prepaid, addressed to: Nicole R. Cohen, Esquire Briggs Law Office, LLC 300 Walnut Street Philadelphia, PA 19106 By: f J. Januzzi, Esquire 1' AUDREY SMITH, Plaintiff V. OUTBACK STEAKHOUSE OF FLORIDA, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 2008-6453 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER, GUIDO and MASLAND, JJ. ORDER OF COURT AND NOW, this 28 h day of June, 2010, upon consideration of Defendant's Motion for Summary Judgment, following oral argument held on May 12, 2010, and for the reasons stated in the accompanying opinion, Defendant's Motion for Summary Judgment is denied. BY THE COURT, J esley Oler , J. Karl J. Januzzi, Esq. Shollenberger & Januzzi, LLP 2225 Millennium Way Enola, PA 17025 Attorney for Plaintiff ?' Cs) r,i; Norman W. Briggs, Esq. Briggs Law Office 300 Walnut Street, Suite 2 t._J Philadelphia, PA 19106 Attorney for Defendant _ j - ? ? Qll?