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Home My WebLink About09-1163r '0`* CALDWELL LAW OFFICE LLC By: Ann M. Caldwell, Esquire PA Atty. I.D. No. 42252 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 Telephone: (215) 248-2030 Facsimile: (215) 248-2031 Attorney for Plaintiff JANET G. CALDWELL 507 Bridgeview Street Lemoyne, Pennsylvania 17043 Plaintiff, V. CONFIT ON MARKET, LLC 2138 Market Street , Camp Mill, PA 17011 , Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL TRIAL DIVISION Term, 2009 No. 09- PRAECIPE TO ISSUE WRIT OF SUMMONS (CIVIL ACTION) To The Prothonotary: Kindly issue a Writ of Summons - Civil Action to Confit on Market, LLC in the above captioned matter. Date: February 24, 2009 "61A4W Ann M. Caldwell, Esquire Pa. I.D. No. 42252 CALDWELL LAW OFFICE LLC 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 (215) 248-2030 (215) 248-2031 (fax) Attorney for Plaintiff Al ;yr -=qtr h Y F Y 4.y tb ? -4, COMMONWEALTH OF PENNYSLVANIA COUNTY OF CUMBERLAND JANET G. CALDWELL 507 Bridgeview Street , Lemoyne, Pennsylvania 17043 Plaintiff, V. CONFIT ON MARKET, LLC 2138 Market Street Camp Hill, PA 17011 , Defendant. To: Confit on Market, LLC: COURT OF COMMON PLEAS CIVIL TRIAL DIVISION Term, 2009 No. 11&3 You are hereby notified that Janet G. Caldwell has commenced an action against you. Date: 0-4'S 24P , 2009 By: C4jrtis R. Lon Prothonot ry SHERIFF'S RETURN - REGULAR CASE NO: 2009-01163 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CALDWELL JANET G VS CONFIT ON MARKET LLC SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CONFIT ON MARKET LLC the DEFENDANT , at 0011:00 HOURS, on the 28th day of February-, 2009 at 2138 MARKET STREET CAMP HILL, PA 17011 by handing to MELISSA ASPER ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Postage Sworn and Subscibed to before me this of 18.00 13.50 .00 10.00 day So Answers: oe 001" R. Thomas Kline 03/02/2009 CALDWELL By. A. D. r4k N JOHNSON, DUFFIE, STEWART & WI By: Jefferson J. Shipman, Esquir I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com JANET G. CALDWELL, Plai V. CONFIT ON MARKET, TO THE PROTHONOT) Please enter the on Market, LLC in the Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 Civil Term CIVIL ACTION - LAW ant JURY TRIAL DEMANDED rance of the undersigned on behalf of Defendant Confit matter. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Date: April 8, 2009 362806 J?elson J. Shipman, Es4uire A orney I.D. No. 51785 P.O. Box 109 Lemoyne, PA 17043-010'9 (717) 761-4540 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that served upon the copy of the foregoing Entry of Appearance has been duly counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on April 8, 2009: Ann M. Caldwell, Es Caldwell Law Office 108 W. Willow Grov Philadelphia, PA 1c, quire LLC Avenue, Suite 300 118 JOHNSON, DUFFIE, STEWART & WEIDNER By: 4eJer An J. Shi man 2009 APR -9 f li 4 *. } b CUM-- Y ?'4. '7'?.7'j'J/?..yof1 JOHNSON, DUFFIE, STEWART & WI By: Jefferson J. Shipman, Esquir I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com n c, `_ I X Attorneys for Defendant JANET G. CALDWELL, IN THE COURT OF COMMON PLEAS OF Plainti CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-1163 Civil Term CIVIL ACTION - LAW CONFIT ON MARKET, LLC, JURY TRIAL DEMANDED TO THE PROTHONOTARY: PRAECIPE PLEASE enter a Rulel upon the Plaintiffs to file a Complaint within twenty (20) days of the date of service thereof or uffer judgment of non pros. Date: ApHI 8, 2009 TO: Plaintiff Janet G. Cal c/o Ann M. Caldwell, JOHN ON, DUFFIE, STEWART & WEIDNER B e rson J. Shipma , Esquire RULE You are hereby direct §d to file a Complaint in the above-captioned matter within 20 days or judgment non pros will be entered against you. Date: '0/09 362812 A/1' J Prot CERTIFICATE OF SERVICE I hereby certify that 0 copy of the foregoing Praecipe for Rule to File Complaint has been duly served u the United States Mail, Ann M. Caldwell, Es, Caldwell Law Office 108 W. Willow Grow Philadelphia, PA 19 the following counsel of record, by depositing the same in prepaid, in Lemoyne, Pennsylvania, on April 8, 2009: Avenue, Suite 300 118 JOHNS , DUFFIE, STEWART & WEIDNER J ers n J. Shi man . Hr" 0 T 2009 AN -9 PM 1: 16 CALDWELL LAW OFFICE LLC Ann M. Caldwell, Esquire PA Atty. I.D. No. 42252 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 Telephone: (215) 248-2030 Facsimile: (215) 248-2031 Attorney for Plaintiff JANET G. CALDWELL COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY v. CIVIL ACTION - LAW No. 09-1163 Civil Term CONFIT ON MARKET, LLC Defendant. YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND l-- AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COWLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHI?R 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 THIS IS NOT AN ARBTRATION MATTER ASSESSMENT OF DAMAGES IS REQUIRED JURY TRIAL IS DEMANDED CALDWELL LAW OFFICE LLC Ann M. Caldwell, Esquire PA Atty. I.D. No. 42252 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 Telephone: (215) 248-2030 Facsimile: (215) 248-2031 Attorney for Plaintiff JANET G. CALDWELL Plaintiff, V. CONFIT ON MARKET, LLC Defendant. COURT OF COMMON PLEAS CUMBERLAND 'COUNTY CIVIL ACTION LAW No. 09-1163 Civil Term CIVIL ACTION COMPLAINT 1. Plaintiff, JANET G. CALDWELL, is an adult individual residing in Cumberland County, Pennsylvania. 2. Defendant, CONFIT ON MARKET LLC (hereinafter "Confit") is, upon information and belief, a limited liability company licensed to do business under the laws of the Commonwealth of Pennsylvania, having a place of business located at 2138 Market Street, Camp Hill, Pennsylvania, 17011. 3 On or about December 19, 2007, and for some time prior thereto, Confit owned, possessed, maintained, leased and/or had under its care, direction, or control, through its agents, servants, workmen and/or employees acting in the course of their employment and in the 1 promotion of defendant's business, mission, and/or affairs, the premises located at 2138 Market Street, Camp Hill, Pennsylvania. 4. On said date, it was the duty of Defendant to keep and maintain said premises in a reasonably safe condition for public travel and business invitees thereon. 5. On said date, and for some time prior thereto, notwithstanding said duty, Defendant did negligently and carelessly permit and allow said premises to be and remain in an unsafe condition. 6. On said date, plaintiff, Janet G. Caldwell, was lawfully walking on the floor of said premises when she was caused to slip and fall because of a dangerous condition, more particularly, a floor surface which was unduly slick, slippery and unsafe, which floor surface was negligently created and/or maintained by Defendant and/or its agents, servants, workmen and/or employees, and which said condition was negligently permitted to exist at the time of the accident and for some time prior thereto by Defendant, and/or its agents, servants, workmen and/or employees. COUNT ONE JANET G. CALDWELL v. CONFIT ON MARKET LLC 7. Plaintiff incorporates herein by reference paragraphs one through six of this Complaint as though fully set forth at length herein. 8. The carelessness and negligence of Defendant Confit on Market LLC, by and through its agents, servants, workmen and/or employees, consisted of the following: (a) Negligently permitting a dangerous condition to exist at the premises located at 2138 Market St., Camp Hill, 17011 at the time of the accident and for some time prior thereto; (b) Failing to warn the public of the dangerous condition of said premises; 2 (c) Failing to maintain said premises in a safe condition; (d) Failing to take adequate precautions necessary to provide for the safety of Plaintiff; (e) Failing to properly inspect the premises; and, 9 (f) Failing to properly train and supervise employees to inspect, monitor and maintain the premises. 9. Defendant knew, or upon reasonable investigation and diligence should have known, of the aforesaid dangerous condition of the floor surface of said premises. 10. As a result of defendant's negligence and the accident caused thereby, Plaintiff sustained severe bodily injuries including, but not limited to, a fractured hip, which has to date required two major surgeries, including a full hip replacement. As a result, Plaintiff has suffered, and continues to suffer, pain and inconvenience as a result of her injuries, some of which may be permanent. 11. As a further result of the foregoing, Plaintiff has been obligated to receive and undergo medical attention and care and to incur various expenses for same, and may be obliged to continue to undergo such medical care and to incur such expenses for an indefinite time in the future. 12. As a further result of the foregoing, Plaintiff has been unable to attend to her usual and daily duties, avocations, occupations and enjoyment of life, all to Plaintiffs great loss, frustrations, and anxiety, and plaintiff may continue to be disabled to some degree for an indefinite time in the future. 13. As a fiu ther result of the foregoing, Plaintiff has suffered in the past, and may continue to suffer in the future, pains, aches, mental anguish, humiliation, disfigurement, and 3 limitation, and restrictions of her usual duties, pursuits and pleasures. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of Fifty Thousand ($50,000.00) Dollars. 1? Date: April 29, 2009 4MX?A Ann M. Caldwell, Esquire' Pa. I.D. No. 42252 CALDWELL LAW OFFICE LLC 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 (215) 248-2030 (215) 248-2031 (fax) Attorney for Plaintiff Janet G. Caldwell 4 VERIFICATION I, Janet G. Caldwell, Plaintiff herein, verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Date: Apri? 2009 CERTIFICATE OF SERVICE I, Ann M. Caldwell, counsel for Plaintiff, hereby certify that I caused a true and correct copy of the foregoing Complaint to be served upon Defendant's counsel, at the address below, via First Class Mail, Postage Prepaid, on April 29, 2009 Jefferson J. Shipman, Esquire Johnson Duffle 501 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 - " /1') Ann M. Caldwell CF THE PFr?T N,,Ni?RY 2009 KAY --1 Ail 11: 2 6 J ?? ?' `. JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjsC4D,jdsw.com Attorneys for Defendant JANET G. CALDWELL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-1163 Civil Term CIVIL ACTION - LAW CONFIT ON MARKET, LLC, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Janet G. Caldwell and her counsel, Ann M. Caldwell, Esquire Caldwell Law Office LLC 108 W. Willow Grove Avenue, Suite 300 Philadelphia, PA 19118 YOU ARE REQUIRED to plead to the within Answer and New Matter within 20 days of service hereof or a default judgment may be entered against you. JOHNS, DUFFIE, STEWART & WEIDNER Date: May 29, 2009 Jeffrsdh J. Shipmdn, Esquire Atttrey I.D. No. 51785 Attorneys for Defendant JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com JANET G. CALDWELL, Plaintiff V. Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 Civil Term CIVIL ACTION - LAW CONFIT ON MARKET, LLC, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Confit on Market, LLC, by and through its counsel, Jefferson J. Shipman and Johnson, Duffie, Stewart, and Weidner and files the following Answer and New Matter to Plaintiff's Complaint: 1. Admitted. 2. Admitted. 3. Admitted in part; denied in part. It is admitted only that on or about December 19, 2007, Confit owned the restaurant at 2138 Market Street in Camp Hill, Pennsylvania. The remaining averments of paragraph number 3 are conclusions of law and fact to which no response is required. 4. Denied. The averments contained in paragraph number 4 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 5. Denied. The averments contained in paragraph number 5 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 6. Denied. The averments contained in paragraph number 6 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. COUNT ONE JANET G. CALDWELL v. CONFIT ON MARKET LLC 7. Defendant incorporates herein by reference its answers to paragraph numbers 1 through 6 above as though fully set forth herein at length. 8. Denied. The averments contained in paragraph number 8 and each and every subparagraph (a) through (f) are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. (a) Denied. It is specifically denied that the Defendant negligently permitted a dangerous condition to exist at the premises located at 2 2138 Market Street, Camp Hill, PA 17011 at the time of the accident and for some time prior thereto; (b) Denied. It is specifically denied that the Defendant failed to warn the public of the allegedly dangerous condition of said premises; (c) Denied. It is specifically denied that the Defendant failed to maintain said premises in a safe condition; (d) Denied. it is specifically denied that the Defendant failed to take adequate precautions necessary to provide the safety of the Plaintiff; (e) Denied. It is specifically denied that the Defendant failed to properly inspect the premises; and (f) Denied. It is specifically denied that the Defendant failed to properly train and supervise employees to inspect, monitor and maintain the premises. 9. Denied. The averments contained in paragraph number 9 are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 10. Denied. The averments contained in paragraph number 10 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, the Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 10; and the same are therefore denied, and strict proof is demanded at the time of trial. 3 11. Denied. The averments contained in paragraph number 11 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, the Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 11; and the same are therefore denied, and strict proof is demanded at the time of trial. 12. Denied. The averments contained in paragraph number 12 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, the Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 12; and the same are therefore denied, and strict proof is demanded at the time of trial. 13. Denied. The averments contained in paragraph number 13 are in part conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. After reasonable investigation, the Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining averments of paragraph number 13; and the same are therefore denied, and strict proof is demanded at the time of trial. 4 WHEREFORE, the Defendant, Confit on Market, LLC, respectfully requests that judgment be entered in its favor and that Plaintiffs Complaint be dismissed with prejudice. NEW MATTER 13. That the Plaintiffs have failed to state a cause of action for which relief may be granted. 14. That the Plaintiff has failed to allege a dangerous condition. 15. That the Plaintiff was contributorily negligent. 16. That the Plaintiff's alleged cause of action may be limited and/or barred by the Pennsylvania Comparative Negligence Act. 17. That the Plaintiff may have been comparatively negligent in the following: (a) failing to be attentive to the conditions; (b) failing to be attentive to where she was stepping and/or walking; and (c) walking and/or stepping in a hurried or otherwise inappropriate manner. 18. That the Plaintiffs own comparative negligence was a factual cause of the Plaintiffs accident and injury. 19. That the Plaintiffs alleged injury was caused by intervening, superseding cause. 5 20. That the Plaintiffs accident and alleged injury were caused by pre-existing medical conditions. 21. That the Defendant did not in any way aggravate the Plaintiffs pre-existing conditions. 22. That the Plaintiff has failed to prove notice of an allegedly dangerous condition. WHEREFORE, the Defendant, Confit on Market, LLC, respectfully requests that judgment be entered in its favor and that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, HNS N, DUFFIE, STEWART & WEIDNER JfffeVstfn J. Shipman, Esquire Attorney I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-01019 Telephone (717) 761-4540 Attorneys for Defendant Date: May 29, 2009 6 VERIFICATION I, Matthew A. Black, an authorized representative of Confit On Market, LLC, have read the foregoing Answer and New Matter, and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements §4904. Date: 2 C.S. 363708 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer and New Matter has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on May 29, 2009: Ann M. Caldwell, Esquire Caldwell Law Office LLC 108 W. Willow Grove Avenue, Suite 300 Philadelphia, PA 19118 rJOH DUFFIE, STEWART & WEIDNER B. ' 7eeie4rs n . Shipma I" Ltii .i" ! i e I • c .J CALDWELL LAW OFFICE LLC Ann M. Caldwell, Esquire PA Atty. I.D. No. 42252 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 Telephone: (215) 248-2030 Facsimile: (215) 248-2031 Attorney for Plaintiff JANET G. CALDWELL . Plaintiff, . V. CONFIT ON MARKET, LLC Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 09-1163 Civil Term PLAINTIFF'S REPLY TO NEW MATTER 13. The allegations of paragraph 13 are denied as the same constitute conclusions of law to which no response is required or given. 14. The allegations of paragraph 14 are denied as the same constitute conclusions of law to which no response is required or given. 15. The allegations of paragraph 15 are denied as the same constitute conclusions of law to which no response is required or given. 16. The allegations of paragraph 16 are denied as the same constitute conclusions of law to which no response is required or given. 17. (a). The allegations of paragraph 17(a) are denied as the same constitute conclusions of law to which no response is required or given. By way of further response, it is specifically denied that Plaintiff was negligent in failing to be attentive to the conditions. 1 (b). The allegations of paragraph 17(b) are denied as the same constitute conclusions of law to which no response is required or given. By way of further response, it is specifically denied that Plaintiff was negligent in failing to be attentive to where she was stepping and/or walking. (c). The allegations of paragraph 17(c) are denied as the same constitute conclusions of law to which no response is required or given. By way of further response, it is specifically denied that Plaintiff was negligent in walking and/or stepping in a hurried or otherwise inappropriate manner. 18. The allegations of paragraph 18 are denied as the same constitute conclusions of law to which no response is required or given. To the extent a response is required, it is specifically denied that Plaintiff was contributorily negligent, or that any negligence by plaintiff was a factual cause of the accident or injury. 19. The allegations of paragraph 19 are denied as the same constitute conclusions of law to which no response is required or given. 20. The allegations of paragraph 21 are denied as the same constitute conclusions of law to which no response is required or given. To the extent a response is required, it is specifically denied that the accident and injury were caused by pre-existing medical conditions. 21. The allegations of paragraph 22 are denied as the same constitute conclusions of law to which no response is required or given. To the extent a response is required, Plaintiff specifically denies each and every allegation of paragraph 21. 22. The allegations of paragraph 22 are denied as the same constitute a conclusion of law to which no response is required or given. To the extent a response is required, Plaintiff specifically denies each and every allegation of paragraph 22. 2 WHEREFORE, Plaintiff Janet G. Caldwell, respectfully requests that judgment be entered in her favor and against Defendant, Confit on Market LLC. Date: June 14 , 2009 Ann M. Caldwell, Esquire Pa. I.D. No. 42252 CALDWELL LAW OFFICE LLC 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 (215) 248-2030 (215) 248-2031 (fax) Attorney for Plaintiff Janet G. Caldwell 3 VERIFTCA.TION 1, Janet G. Caldwell, Plaintiff herein, verify that the any facts set forth in tht foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities, Dntc: June/,S 2009 -'? CERTIFICATE OF SERVICE I, Ann M. Caldwell, counsel for Plaintiff, hereby certify that I caused a true and correct copy of the foregoing Reply to New Matter to be served upon Defendant's counsel of record, at the address below, via First Class Mail, Postage Prepaid, on June 16, 2009. Jefferson J. Shipman, Esquire Johnson Duffie 501 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 AW Ann M. Caldwell .i Or" THE 2 009 ,it 111 18 FN 12 -- 7 Ff~~-~:,~i=C c~~ TI ~i~ ~ ~~?~i-~~~T~RY as ~~~Q I~l~il ~ ~t('j ~'t ~ J~ Johnson, Duffie, Stewart 8~ Weidner By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com Cl.,'"~~;_ ;'~=.; ;_) Attt~i'-1~fs for Defendant JANET G. CALDWELL, Plaintiff v. CONFIT ON MARKET, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND TO EXTEND DISCOVERY DEADLINE AND NOW, comes the Defendant, Confit on Market, L.L.C., by and through its counsel, Johnson, Duffie, Stewart & Weidner, P.C. and files the following Answer opposing Plaintiff's Motion to Compel and in opposition thereto sets forth as follows: Nature of the Motion: Admitted and Denied. It is admitted that this action arises out of an alleged slip and fall at Defendant's restaurant. It is further admitted that the Plaintiff seeks production of the listed documents and that the Defendant has not objected to the production of these documents. However, it is denied that the Plaintiff has been prejudiced in the preparation of her case. The Defendant has diligently searched for the incident reports and "incident report log" that the Plaintiff seeks, but despite its good faith efforts, has not been able to locate these documents. As a result, neither the Plaintiff nor the Defendant have a copy of these incident reports. All of the receipts for Cleaner "E," a product used on the floors, were recently provided to the Plaintiff and are attached hereto as Exhibit A. The Defendant is in the process of obtaining receipts for the other substance used on the floor, Murphy's Oil Soap, from its supplier. The Defendant will provide these receipts to the Plaintiff as soon as they are received. As a result of the delay in the discovery, and to prevent any prejudice to the Plaintiff, the Defendant agrees to extend the discovery deadline to April 30, 2010. 1. Denied. The Plaintiff commenced the action by Writ of Summons on February 26, 2009. The Plaintiff filed her Complaint on May 1, 2009. 2. Admitted. 3. Admitted. 4. Denied as stated. On or about January 20, 2010, the Honorable Court issued an Amended Case Management Order setting a discovery deadline of March 26, 2010. 5. Admitted. 6. Denied as stated. During these depositions, two incident reports were discussed. Since the deposition, the Defendant has diligently searched for incident reports prepared by Todd Cook and Jennifer Myers. However, they cannot be located. The Defendant has produced the restaurant reservation book for 2007. However, an "incident report log" prepared by Ms. Myers cannot be located. It is believed that the "incident report log" was the only form of incident report prepared by Jennifer Myers. As such, it is believed that only two types of employee incident reports existed: one prepared by Todd Cook and one prepared by Jennifer Myers. Neither can be located. It is admitted that these incident reports have not been produced, either prior to or after the depositions. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. By way of further answer, counsel for the Defendant indicated that Defendants were continuing to search for incident reports and floor cleaning products receipts. Despite the Defendant's good faith effort, the incident reports cannot be found. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. By way of further answer, the Defendant concurs in the Plaintiff's request to extend the discovery deadline to April 30, 2010. WHEREFORE, the Defendant respectfully requests that this Honorable Court extend the discovery deadline to April 30, 2010 and deny the remainder of the Plaintiff's Motion to Compel. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER ff r on J. Ship an Date: ~ ~`( t 0 :362806 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer to Plaintiff's Motion to Compel Discovery and to Extend Discovery Deadline has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on March~,z~f, 2010: Ann M. Caldwell, Esquire Caldwell Law Office LLC 108 W. Willow Grove Avenue, Suite 300 Philadelphia, PA 19118 JOHNSON, DUFFIE, STEWART & WEIDNER Je rson J. S ipman EXHIBIT "A" J ~ V r ti F r ~ r~a!fi ~` < ~.~ ~`~ ~ . '•' 3' ~ : e h _~ ` w~ O a~i 0 y U 0 ti as v ~w ~w Y ~ QN ~~ W O z~~ UNU w.+aa Fo r ~ ~E ~ O ~5O a ~i~3 _ _ f ari~~~E=~II: ~ emu, ~r ~ ~ r _ -: ' Z ~ a Scam •. E5 5FF C ~ ri r O .~. f~ o~-~ x 7~ 5 ~~ 0 i CC ~i • _ o~< n=her ~ ~ ~ ~' ~ '~i - ~ ~ ~ ~ ~g~~~ , ' ` ~ ~ °a S$~e E ~r~°~ ~n o 0 in o W sm N;u1 V~ ~O - aa a~ 3~. 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O A 9 r ~ 4 a m ~? t7 - o c c o a. a' ~ °' v `m ~ 4 R yOj ~ u a apa _a `` 0 Y ° e O v a » npO' a ~. e c ~ 4 9 S c E e ~ e o a ~ } y E ao. a m ~X~ p Om`o W n..r ~ y o c ~ .+ 7 W yaw W m ~ O Fl~EC~~.' _~,r;F JOHNSON, DUFFIE, STEWARTBc WEIDNER 2iSi~ vt.)~~ '~~ ~4' ~::~'-+ By: Jefferson J. Shipman, Esquire I.D. No. 51785 CU~* r''i~~ 301 Market Street ~~~ ~ ,~~ ~, , ',~, r P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com JANET G. CALDWELL, Plaintiff v. CONFIT ON MARKET, LLC, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED DEFENDANT'S AMENDED REPLY TO PLAINTIFF'S NEW MATTER IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Confit on Market, L.L.C. (Confit), and files this Reply to Plaintiff s New Matter by respectfully stating the following: 1. Denied. The averments contained in paragraph number 1 of Plaintiff's New Matter are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. By way of further response, the Plaintiff alleges that she slipped and fell in the Defendant's restaurant as a result of a "dangerous condition, more particularly, a floor surface which was unduly slick, slippery and unsafe." (Pl.'s Compl. para. 6). She has further testified that she did not feel anything on the floor. (Pl.'s Dep., p. 33, attached as Exhibit A). The Plaintiff stated, "I do not think there was any spillage on the floor. And never said there was. I think the floor was innately slippery." (Pl.'s Dep., p. 33). The Pennsylvania Supreme Court long ago stated that "[i]t is not negligence for the owner or occupier of a building to maintain polished or oiled floors. Evidence of a highly polished floor alone does not sustain the charge of negligence if a guest or invitee falls and is injured thereby." Cutro v. Scranton Medical Arts Bldg., 198 A. 141, 141 - 142 (Pa. 1938) (citing Diver v. Singer Mfg. Co., 205 Pa. 170, 54 A. 718; Spickernagle v. Woolworth, 236 Pa. 496, 84 A. 909, Ann.Cas.1914A, 132; McCann v. Gordon, 315 Pa. 367, 172 A. 644.). Even if the Plaintiff was entitled to an adverse inference, she cannot recover on the facts alleged. 2. Admitted. 3. Admitted. By way of further answer, it is believed that Jennifer Myers only prepared one "incident report." Any inference that Ms. Myers prepared two separate reports, an incident report and an incident report log, is denied. 4. Denied. The averments contained in paragraph number 4 of Plaintiff's New Matter are conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. The Superior Court, in the case cited by the Plaintiff, stated: The decision whether to tell the jury an unfavorable inference may be drawn from the failure of a party to produce some circumstance, witness, or document is also one which lies within the sound discretion of the trial court and which will not be reversed absent manifest abuse.... The general rule is that [ ][w]here evidence which would properly be part of a case is within the control of the party in whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him. Magette v. Goodman, 771 A.2d 775, 780 (Pa. Super. Ct. 2001) (emphasis added). It is admitted that the Defendant misplaced the incident reports in question. One of the "incident reports" was the manager's informal documentation of the incident in the back of her reservation book. (Jennifer Myers Dep., p. 20, cited pages attached as Exhibit B). She testified that her notation was only a "paragraph" long. (Jennifer M. Myers Dep., p. 20-21). The other "incident report" prepared by employee Todd Cook was called in to the Defendant's insurance company. (Jennifer M. Myers Dep., p. 20- 21). Although the employees' reports were not produced, the Plaintiff has a copy of the Report of Loss composed by the insurance agency.' See Report of Loss, attached as Exhibit C. The Report of Loss indicates that the Plaintiff stated she would not be making a claim. See Exhibit C. Thus, the need to preserve the reports for litigation was not immediately apparent. The loss of these documents was inadvertent, not intentional. Finally, the unavailability of the reports creates little, if any, prejudice to the Plaintiff. Although the incident reports cannot be located, the employees who wrote them have been deposed and remain available to the Plaintiff. In addition, the Plaintiff has a copy of the insurance agency's Report of Loss. As the loss of the "incident reports" was not intentional and the employees can independently testify to their recollection of the accident, no negative inference or other sanction is necessary. Even if the Plaintiff was entitled to an instruction that permitted the jury to draw an adverse inference, summary judgment in favor of the Defendant would still be proper. The Plaintiff has merely alleged that the floor was shiny and slippery, and has therefore failed to establish a prima facie case. It was believed that the Report of Loss had been sent to Plaintiffs counsel, along with a letter, on March 26, 2010. However, this cannot be confirmed. The Plaintiff received a copy attached as Exhibit C to Defendant's original Reply to Plaintiffs New Matter in Opposition to Defendant's Motion for Summary Judgment. WHEREFORE, the Defendant respectfully requests that this Honorable Court enter an Order granting the Defendant's Motion for Summary Judgment and enter judgment in favor of the Defendant. JOHNSON, DUFFIE, STEWART & WEIDNER By: ' J ffer o J. Shipman, Esquire ttorney I.D. No. 51785 Sarah E. Hoffman, Esquire Attorney I.D. No. 307612 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: June 24, 2010 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on June 24, 2010: Ann M. Caldwell, Esquire Caldwell Law Office LLC 108 W. Willow Grove Avenue, Suite 300 Philadelphia, PA 19118 JOHNSON, DUFFIE, STEWART & WEIDNER By: ; ,C C 7" ichelle H. Spangler :405176 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CA Law No: 09-1163 Civil Term -----------------------------x JANET G. CALDWELL, Plaintiff, - vs - CONFIT ON MARKET, LLC, Defendant. -----------------------------x Deposition of JANET CALDWELL 501 Market Street Lemoyne, PA January 8, 2010 10:00 a.m. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived; IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. ,- ERSA COURT REPORTING 30 North 17th Street, Suite 1520 Philadelphia, PA 19103 (215) 564-1233 Fax (215) 564-1225 ORIGINAL JANET CALDWELL 33 1 A My right foot. 2 Q Your right foot. And how did you 3 land? 4 A Hard. I landed on my left hip and 5 buttocks, I guess. 6 Q Was Marty very close to you at that 7 time? 8 A Yes, she was. Uh-huh. 9 Q How long were you down on the floor 10 before you were able to get up? 11 A I don't know. 12 Q A few minutes? 13 A Yes. 14 Q While you were down there, did you 15 feel anythi ng on the floor? 16 A On the floor? No. 17 Q Did you feel any liquid? 18 A No. 19 Q Did you feel any food? 20 A No. 21 Q Do you feel there was anything on 22 the surface of the floor that caused you to fall? X23 A I do not think there was any 24 spillage on the floor. And I never said there 25 was. I think the floor was innately slippery. ELECTRONIC REPORTING STENOGRAPHIC AFFILIATES EXH/BlT "B" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . . . . . . . . . JANET G. CALDWELL, Civil Action - Law Plaintiff . _ vs. No. 09-1163 Civil Term CONFIT ON MARKET, . Defendant Jury Trial Demanded . . . . . . . . . . . . . . {; Deposition of: Taken by JENNIFER M. MYERS Plaintiff Date January 7, 2010; 1:18 p.m. Place Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, Pennsylvania Before Gail D. McLucas, Notary Public Registered Professional Reporter APPEARANCES: CALDWELL LAW OFFICE, LLC By: ANN M. CALDWELL, ESQ. For - Plaintiff JOHNSON, DUFFIE, STEWART & WEIDNER By: JEFFERSON J. SHIPMAN, ESQ. For - Defendant Exam./Caldwell -Jennifer M. Myers 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at the time, to fill that out when she later called, so our insurance would cover it. I filled out an incident report that's for our restaurant records. Every night I kept a log of things that happened, if they had a good time, if they had a bad time, how many guests were at the restaurant. And in there, the incident report, I write, it's a log, like a log incident report for the restaurant. Q. Where is that report that you wrote? A. At the time when I worked there, the log was kept in my reservation book, which then, in the back of the reservation book, and as they got filled, the logs went into a file in the office. Q. So it should be in a file at the restaurant? A. When I worked there they would have been, yes. Q. Did you review the incident report that Mr. Cook filled out? A. No. Oh, I did, yes, because I filed that report into our files then, yes. I didn't review it before he sent it out, though. Q. So your testimony is that Todd Cook filled out an incident report that got sent to Erie Insurance Company? A. He called it in. I don't know if it got sent Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 Exam./Caldwell -Jennifer M. Myers 21 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anywhere. Q. What do you mean, "called it in"? A. We get incident reports that we fill out and then we have to call the insurance and we tell them what happened. Q. Okay. A. So I don't know if that actual incident report gets sent to, I just file them, and whatever Matt Gamber wants to do with them, he does. Q. But your testimony is that Todd Cook filled out an incident report and that you filled out a separate record or report that's kept in the log, kept in the back of the reservation book? A. Correct. Q. How long was your report? A. Paragraph. Q. ,How long was Mr. Cook's report? A. His report is different, because it asks some certain questions. So it's a, it's a, like a -- Q. Is it a form? A. It's a form, correct. Q. And yours was just a narrative that you did? A. Yes. Q. And I'm assuming you didn't take any copies or anything when you left the restaurant? Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 EXH/BI T "C" 03/18/2010 14:48 ~.\ ~RI,E~ 7175663276 WAGNERS INS AGENCY Report Of Loss Other Than Auto PAGE 04 Claim No: Loss Reported Date: 12/27/2007 AgtlSeq: AA7143012443 Print Date: 12/27/2007 Insured's Name and Address CONFIT ON LLC Llne of Business: UFX M 2138 MARKET ST Policy No: Q47-0850617 CAMP MILL, PA ( ) - Ext: Waurs: To: 017011-4706 Contact: Work No: (717)763-1102 Ext: Hours: To: Contact: ( ) - Ext: Hours: to: Contact: Loss Information Unit: 999 Unit Location: 2138 MARKET 5T Loss Date Loss Dav Loss Time Subroaatlon Iv e 12/19/2007 WEDNESDAY 08:30 PM Lass Location: SAME AS ABOVE Loss State: PA Summary Of Loss: CLMT SLIPPED ON FLOOR Details Of Loss: CLMT WAS LEAVING TABLE AFTER MEAL, TOOK A FEW STEPS, AND RT FOOT WENT OUT FROM UNDER HER. GLMNT DOESN'T THINK FLOOR WAS WET BUT WAS SLIPPERY- W TTO~q~~P~7/H.U~AM BY~AU~NCE AN WA OPERA/T~D ON THURS PM FOR FRACTURED HIp "%'..~"'G'( ~4 'i'~ ~ /t`L ~--` l~ .~«" -e~l~f.~Nt~~j~,ry ~f ('.F:G~'"'a i Police/Fire Details: ~ incid®nt No: Dig Reported By 12/27/2007 DLW/AA7143 JEN MYERS .. _ a~ c1 ~ P~' } 03/18/2010 14:48 7175663276 WAGNERS INS AGENCY PAGE 05 Ins: grtlnsured7ext Page No: ~ Agt/Seq: AA7143012448 Policy; Q47-0850617 PEF2SONS INJUREsD OR KILLED; CLAIMANT 't Name and Address: JANET CALDWELL Date of 13irth:04/29/1930 Age: 77 Sex: Female 507 BRIDGEVIEW DR Home No: (717)731-0322 Ext: Hours: To: LEMOYNE, PA Contact:JANET ( ) - Fxt: Hours: To: Contact: - Ext: Hours; To: Contact: Social Sec No: - - Claim No: Fatality: No Injured Insured: No Injury Details: FRACTURED LEFT HIP Doctor's Name and Address: ( ) - ~#= Hours: To: Contac#: ~ ) - Ext: Hours: To: Contact: ~ ) - F.xt: Hours: To: Contact: I Hospital's Name and Address: HOLY SPIaiT HOSPITAL ( ) - Ext: Hours: To: Contact: ( ) - Ext: Hours: To: Contact: ( ) - Ext: Hours: To: Contact: Confined In Haspital:Yes ~ Insurer's Name and Address: ( ) - Ext: Hours: Tp; Contact: ( ) - Ext; Hours: To: Gontact: ( ) - Ext: Hours: To: Contact: Employer's Name and Address: { ) - Contact: ( ~ Contact: ( ) - Contact: Occupation; Work Loss: Workers Camp Applies: Ext: Hours: To: Ext: Hours; To: fit: Hours: To: 03118/2010 14:48 7175663276 Ins: grtlnsuredText Agr/seq; AA7143012443 Policyholder Advice; Cain of Loss: OTHER ce Items i sn to Pollc h I WAGNERS INS AGENCY PAGE 06 Page No: 3 Policy: Q47-0850617 Other A t Advice Glv to Polic hol r told clmt we will report to branch office and they will contact her. • T JANET G. CALDWELL, PLAINTIFF V. CONFIT ON MARKET, LLC, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-1163 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS P.J. AND MASLAND J. f? ORDER OF COURT AND NOW, this ?2 < day of September, 2010, the Defendant's motion for summary judgment, IS DENIED. By the Court, Albert H. Masland, J. Ann M. Caldwell, Esquire For Plaintiff Jefferson J. Shipman, Esquire For Defendant :saa r c ;j ryl `. < 01 , JANET G. CALDWELL, PLAINTIFF V. CONFIT ON MARKET, LLC, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-1163 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., September 29, 2010:-- Before the court is the motion for summary judgment filed by Defendant, Confit on Market, LLC, against Plaintiff, Janet G. Caldwell. After briefing and argument by the parties, we now deny Defendant's motion for summary judgment. 1. Background This personal injury case arises from Plaintiffs slip and fall while a business invitee at the Defendant restaurant. Plaintiff, the non-moving party, summarizes the relevant facts as follows. In December of 2007, Plaintiff was dining at the Defendant restaurant when she fell and fractured her hip on the dining room floor. Plaintiff and several of her dinner companions subsequently described the floor as very slippery, though none could identify any foreign substance that might have caused the floor's slipperiness. As Plaintiff testified, "I do not think there was any spillage on the floor.... I think the floor was innately slippery." Pl.'s Dep. at 33. Plaintiff presents three other accounts of allegedly similar accidents to establish Defendant's slippery floor presented a dangerous condition. Summarized briefly, these include the fall of a waitress prior to Plaintiffs accident and the subsequent fails of two patrons three weeks and six months after Plaintiffs accident. Plaintiff also notes that roughly six months after her accident, the owner of the Defendant restaurant held a fashion show on the premises and warned the participating models that the floor was slippery and to be 09-1143 CIVIL TERM careful. Finally, Plaintiff asserts that written incident reports were taken by Defendant's employees contemporaneously with her accident. Defendant was unable to produce copies of some of these reports during discovery. As such, Plaintiff would have the jury infer the reports included material damaging to the defense. II. Discussion Defendant contends Plaintiff cannot establish a prima facie case because she has failed to show the existence of a dangerous condition in the Defendant restaurant. Specifically, Defendant maintains Plaintiffs assertion that the floor was innately slippery is not sufficient to prove a dangerous condition because a dry, substance-free floor is not a dangerous condition. Further, Defendant argues neither the alleged similar accidents nor the potential for an adverse inference drawn from missing incident reports is sufficient for Defendant to establish a prima facie case thus making summary judgment appropriate. For her part, Plaintiff argues whether Defendant's floor was unreasonably dangerous presents a question of material fact precluding summary judgment. In support of this position, she has introduced evidence of similar accidents at the Defendant restaurant. Plaintiff submits that these similarities, coupled with the possibility of an adverse inference instruction regarding the missing incident report, raise a question of fact for the jury, thus precluding summary judgment. A. Standard of Review Summary judgment is properly granted only where the pleadings, depositions, answers to interrogatories, and affidavits establish there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.1. Relevant here, summary judgment is appropriate where there is no genuine issue of any material fact as to a -2- 09-1163 CIVIL TERM necessary element of the cause of action that could be established by additional discovery. See Pa. R.C.P. No. 1035.2(1); Wilson v. EI-Daief, 600 Pa. 161, 170-71, 964 A.2d 354, 359 (2009). In considering the merits of a motion for summary judgment, we view the record in the light most favorable to the non-moving party and resolve all doubts as to the presence of a genuine issue of material fact against the moving party. Wilson, 600 Pa. at 171, 964 A.2d at 359. B. Dangerous Condition Defendant seeks summary judgment on the basis of Plaintiffs failure to offer sufficient evidence to establish the floor in question presented a dangerous condition. In support of this position, Defendant attacks Plaintiffs case for establishing a dangerous condition on three grounds: first, an innately slippery floor, absent other evidence is not a dangerous condition; second, other alleged accidents are not sufficiently similar to that suffered by Plaintiff to show a dangerous condition; and third, the possibility a jury may draw an adverse inference based on Defendant's inability to produce relevant incident reports is insufficient to show a dangerous condition. We disagree. 1. Innately Slippery Floor Pennsylvania courts have consistently held that a normally waxed or polished floor does not constitute a dangerous condition. "A smooth tile floor is not of itself a dangerous condition ...." Sheridan v. Horn & Hardart Baking Co., 77 A. 362, 362 (Pa. 1951). Further, "[e]vidence of a highly polished floor alone does not sustain the charge of negligence if a guest or invitee falls and is injured thereby. Cutro v. Scranton Medical Arts Bldg., 198 A. 141, 141-42 (Pa. 1938) (emphasis added). Instead, to establish a waxed or polished floor constituted a dangerous condition, plaintiff must show that "such alleged improper application [of wax or polish] created a condition so obviously dangerous to amount to evidence from -3- 09-1163 CIVIL TERM which an inference of negligence could arise." Farrell v. Bonner, 227 A.2d 683, 685 (Pa. 1967). Thus, unless Plaintiff can present additional admissible evidence of negligence beyond the fact of her fall on an innately slippery floor, her claim cannot survive summary judgment. 2. Evidence of Similar Accidents Plaintiff distinguishes these cases on the grounds that her evidence of similar accidents at the Defendant restaurant provide evidence of a dangerous condition beyond waxing or polishing alone. Evidence of prior accidents is generally relevant to show the existence of a dangerous condition subject to the limitation that the prior incidents must have taken place under the same or similar circumstances. Vernon v. Stash, 532 A.2d 441, 446 (Pa. Super. 1987). In determining whether the other accidents and Plaintiffs accident were substantially similar, we weigh several factors, including: whether the same instrumentality was involved; whether the accidents occurred under the same or similar conditions or circumstances; and, whether the accidents occurred at substantially the same place. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. 2005). Here, Plaintiff, as the proponent of the evidence, "bears the burden to establish the similarity between the other accidents and the accident at issue before the evidence is admitted." /d. (emphasis in original). Finally, "admission of such evidence is tempered by judicial concern that the evidence may raise collateral issues which confuse both the real issue and the jury." Mt. Olive Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1274-75 (Pa. Super. 2001). Applying the factors enumerated in Hutchinson, we conclude Plaintiff has carried her burden to establish the substantial similarity of her accident with the other accidents such that the evidence of those accidents is admissible for the purpose of proving the existence of a -4- .09-1163 CIVIL TERM dangerous condition. First, all the accidents involved the same instrumentality: Defendant's dining room floor. Second, all the accidents occurred under largely similar circumstances: patrons or employees slipping on the dining room floor. Third, all the accidents occurred at substantially the same place: again, Defendant's dining room floor. Defendant notes that one of the patrons alleged to have fallen in a similar manner, Ms. Tan, stated that her fall was caused by slipping on a foreign substance on the floor, unlike the Plaintiff who claims she slipped on the floor itself. Ultimately, this does render Ms. Tan's description of her fall less probative for proving whether Defendant's floor presented a dangerous condition. However, the weight of the evidence is for the jury to determine. For the purposes of this motion, we find the evidence of Ms. Tan's fall and the evidence of the other falls are sufficiently similar to the Plaintiffs accident and, therefore, they are admissible to establish a dangerous condition. III. Conclusion Based on our determination that the evidence of similar accidents is admissible, we find there is a genuine issue of material fact regarding the existence of a dangerous condition, and therefore deny defendant's motion for summary judgment. Based on this conclusion, we need not reach the issue of spoliation. ORDER OF COURT AND NOW, this day of September, 2010, the Defendant's motion for summary judgment, IS DENIED. By the Court, "Zz Albert . Masland, J. -5- .09-1163 CIVIL TERM Ann M. Caldwell, Esquire For Plaintiff Jefferson J. Shipman, Esquire For Defendant saa -6- James L. Goldsmith, Esq. Attorney I.D. #27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 Fax JANET G. CALD WELL, Plaintiff, V. CONFIT ON MARKET, LLC, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiff, Janet G. Caldwell, in the above-captioned matter. I.?g ELE13-Cyr , ?r[3 k S4 i???l I??7V???+ y PENNSWIAN'COUNTY : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED Respectfully submitted, CALDWELL & KEARNS Dated: February 11, 2011 By: JaOLDWELL . Goldsmith?q. Aey I.D. #271W & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 jgoldsmith@CKLegal.net Co-Counsel : Ann M. Caldwell, Esquire Attorney I.D. #42252 CALDWELL LAW OFFICE, LLC 108 W. Willow Grove Ave., Suite 300 Philadelphia, PA 19118 (215) 248-2030 (215) 248-2031 acaldwell@classactlaw.com Attorneys fc)r Plaintiff Janet G. Caldwell CERTIFICATE OF SERVICE AND NOW, this 1 lch day of February, 2011, I certify that I am serving a copy of the foregoing Entry of Appearance upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Jefferson J. Shipman, Esquire JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 CALDWELL & KEARNS, P.C. BY: 4attyWolf 90497-002/173489 PRAECIPE FOR LISTING CASE FOR TRIAL? (Must be typewritten and submitted in triplicatlel???R? px)QUNT TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: Q for JURY trial at the next term of civil court. ? for trial without a jury. ---------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) JANET G. CALDWELL (Plaintiff) vs. CONFIT ON MARKET, LLC (Defendant) vs. X? Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on 8/23/2011 and Trials commence on 9/19/2011 Pretrials will be held on 9/07/2011 (Briefs are due S days before pr ttrials No. 09-1163 Indicate the attorney who will try case for the party who files this praecipe: James L. Goldsmith, Esquire and Ann M. Caldwell , Esquire Civil Term Indicate trial counsel for other parties if known: Jefferson J. Shipman, Esquire This case is ready for trial. Date: 7 - , A/Z/ Signed: Narne James y,"GgMsmith Attorney for: Plaintiff, Janet G. Caldwell 110 r ? ?k14-S7d82 a* 0(4390 !A) J21- ? ,?_ a'itJ t ii•JiSJ If,i, 2 ? I 10W 126 AN I I ?. ;DIERLAHD C0U?p I Ty ?'fli?1SYLVANIIA JOHNSON, DUFFIE, STEWART & WEIDNER By: Jefferson J. Shipman, Esquire I.D. No. 51785 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 E-mail: jjs@jdsw.com JANET G. CALDWELL, Plaintiff V. CONFIT ON MARKET, LLC, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1163 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO MARK TO DOCKET SETTLED, SATISFIED AND DISCONTINUED TO THE PROTHONOTARY: Kindly mark the above docket settled, satisfied and discontinued. t;ALDWF_L & KEA ZN. JOH ON, DUFFIE, STEWART &WEIDNER r le 'Oe7 By: B James L. Go mgh, Esquire Counsel for laidiff Jerson J. Shipman Counsel for Defendant Date: October, 2011 464783 Date: October ;7f, 2011