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HomeMy WebLinkAbout01-7130 LAW OFFICE C}E MI_].CHAEL J. HANFT ATTORNEYS & COUNSELLORS AT LAW 19 BROOKWOOD AVENUE SUITE 106 CARLISLE, PA 17013-9142 717.249.5373 FAX 717.249.0457 WWW. HANFTLAWFIRM.COM DON LEE HUNT, 15039 Flathead Road Apple Valley, CA 92307 : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo NO. 2001- ?/2 C> CIVIL TERM FLYING J, INC., 50 West 990 South Brigham City, UT 84302 JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To: Curtis R. Long, Prothonotary Please issue a writ of summons and have the Sheriff serve the Defendant at 50 West 990 South, Brigham City, UT 84302 and also at Flying J Travel Plaza, 1501 Harrisburg Pike, Carlisle, Cumberland County, PA 17013. LAW OFFICE OF MICHAEL J. HANFT Date: December 19, 2001 William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 SUMMONS IN CIVIL ACTION To: Flying J, Inc. You are notified that the aboYe-named Plaimiff has commenced an actio~ against you. Prothonotary ~ Deputy SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2001-07130 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND HUNT DON LEE VS. FLYING J INC R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,FLYING J INC , by United States Certified Mail postage prepaid, on the 8th day of January ,2002 at 0000:00 HOURS, at 50 WEST 990 SOUTH BRIGHAM CITY, UT 84302 and attested copy of the attached WRIT OF SUMMONS with , a true Together receipt card was signed by 01/03/2002 THAYNE CAU Additional Comments: The returned on Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 18 00 3 95 00 10 00 00 31 95 Paid by MICHAEL H3kNFT Sworn and subscri~d to before me thms //~ day Joo~LA.D. / ' P~o~honotary R. Thomas Kline Sheriff of Cumberland County on 01/08/2002 SHERIFF'S RETURN - CASE NO: 2001-07130 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUNT DON LEE VS FLYING J INC REGULAR DOUGLAS DONSEN , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon FLYING J INC the DEFENDANT at 1429:00 HOURS, at 1501 HARRISBURG PIKE CARLISLE, PA 17013 ROGER LOCKBAUM, ASST MANAGER on the 26th day of December , 2001 by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 19.25 Sworn and Subscribed to before me this //~ day of /~ ..... ~7 ~2.,~,2.~ A.D. / ~rot~notarf So Answers: R. Thomas Kline 0 /0s/2002 MICHAEL HANFT By: ~DD~u~t.l~_~.- pty Sheriff UNITED STATES POSTAL SERVICE Postage & Fees Paid USPS Permit No. G-10 · Sender: Please print your name, address, and ZIP+4 in this box · CUMEERLAN~ COUNT~ SHERIFF'S DEPARTMENT ONE COURTHOUSE SQUARE C,~,RLISLE PA 17013 DON LEE HUNT, FLYING J, INC., Plaintiff V. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-7130 CIVIL TERM : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. 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 Bar Association Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 DON LEE HUNT, FLYING J, INC., Plaintiff V. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-7130 CIVIL TERM : : : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, of the Law Office of Michael J. Hanft, and makes the following Complaint: 1. The Plaintiffis Don Lee Hunt, an adult individual residing at 15039 Flathead Road, Apple Valley, CA 92307. 2. The Defendant is Flying J, Inc., a corporation with its offices and principal place of business at 50 West 990 South, Brigham City, UT 84302. 3. The Defendant operates and maintains a Flying J Travel Plaza at 1501 Harrisburg Pike, Carlisle, Cumberland County, PA 17013. 4. On January 26, 2000 at about 8:15 a.m. the Plaintiff was leaving the Defendant's Carlisle facility after purchasing and eating breakfast. As he stepped out the door his foot hit ice, which the Defendant had negligently and carelessly permitted to accumulate, and he fell and fractured his right elbow. 5. The Defendant was negligent and careless in failing to remove the snow which had fallen the day before and permitting it to form ridges of ice which was dangerous to the public. 6. As a result of his fall, the Plaintiff had to undergo surgery and internal fixation of his fractured elbow. 7. As a result of his injury, the Plalntiffincurred medical expense and loss of earnings, pain and suffering, and loss of life's pleasures. 8. The Plaintiff has sustained a permanent injury which will result in a loss of future earning capacity. WHEREFORE, the Plaintiff demands judgment against the Defendant in an amount in excess of $25,000 plus interest and costs of suit. HANFT & KNIGHT, P.C. By: '¢qilliam A. ~d~s ' Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorney for Plaintiff VERIFICATION Don Lee Hunt hereby verifies that the facts set forth in the foregoing Complaint are tree and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsifications DATE: CERTIFICATE OF SERVICE AND NOW, this~day of March, 2002, I, Mary M. Price, an employee of Hanft & Knight, P.C., hereby certify that I have served a copy of the Complaint by mailing the same by United States mail, postage prepaid, addressed as follows: Flying J, Inc. 50 West 990 South Brigham City, UT 84302 \05_A\LiABWJM~CORR\91859XJMF~15000~50000 DON LEE HUNT, Plaintiff FLYiNG J, iNC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED ENTRY OF APPEARANCE. TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Flying J, Inc., in the above-captioned case. DATE: BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums vlill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorneys for Defendant, Flying J, Inc. DON LEE HUNT, Plaimiff FLYiNG J, iNC., Defendant iN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joarme M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on thi~ day of March, 2002, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Joan,. Parr \05_A~LIAB\T JM~LLPG\92291 X.rMFX20614\00145 DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE PREREOUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.24 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.24 Defendants certify that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to the certificate; (3) Plaintiff's counsel has waived the 20-day Notice within which to object to said subpoena; and (4) DATED: The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. TiMOT~''~-'~~UIRE Counsel ~Flying J, Inc. DON LEE HUNT, Plaintiff FLYING J, INC., Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS TO: William A. Addams, Esquire Hanfl & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Timothy J. McMahon, Esquire, with the Law Offices of Marshall, Dennehey, Warner, Coleman & Goggin, on behalf of Defendant, Flying J, Inc., intends to serve a subpoena identical to the one that are attached to this notice. It is noted that Plaintiff has waived the twenty (20) day notice within which to file of record an objection to the subpoena. Thus, the Subpoena will be served pursuant to the applicable Pennsylvania Rules of Civil Procedure 4009.24. Complete copies of any reproduced records may be obtained at your expense by contacting the undersigned at his office. DATE: Respectfully submitted, MARSHALL DENNEHEY, WARNER, COL MAN~ ~ iT. iM. NoT. gt cMAHON, E SQUIRE 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attomeys for Defendant, Flying J, Inc. DON LEE HUNT, Plaintiff FLYING J, INC., Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Highlands Insurance Group, PO Box 2058, Tustin, CA 92781 ~ame of Person or EntiCg) Within twenty (20) days after service oft_his subpoena, you are ordered by the court to produce the following documents or thing: Any and all correspondence, records, notes, memoranda, investigative reports, photographs, videotapes, together with any and all other documents concerning a claim made by Don Lee Hunt, 15039 Flathead Road, Apple Valley, CA 92307, and/or claim # 174002849-17. at: 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Timothy J. McMahon. Esauire ADDRESS: Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 TELEPHONE: 1'7175 651-3505 SUPREME COURT ID// 52918 ATTORNEY FOR: Defendant, Flying J, Inc. By the Court: DATE: Seal of the Court Prothonotary Deputy EXPLANATION OF REQUIRED RECORDS TO: Highlands Insurance Group PO Box 2058 Tustin, CA 92781 Don Lee Hunt 15039 Flathead Road Apple Valley, CA 92307 Claim No.: 174002849-17. Seeks any and all documentation in your possession, custody and/or control concerning the following: 1. Any and all correspondence, records, notes, memoranda, investigative reports, photographs, videotapes, together with any and all other documents concerning a claim made by Don Lee Hunt, 15039 Flathead Road, Apple Valley, CA 92307, and/or claim # 174002849-17. DON LEE HUNT, Plaimiff FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this~._ day of March, 2002, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Joan.. Parr DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify \~'~e day of~ 2002, served a copy of the foregoing document via First Class United that on this States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Joan~M. Parr \05_A\LIA B\TJM~LLPG\91874~MF~15000X50000 DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED TO: NOTICE TO PLEAD Plaintiff, Don Lee Hunt c/o William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: j~ f/l I £ I , ~C.~CaZ BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN TIMb~ J~McMAHON, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorneys for Defendant, Flying J, Inc. \05_A\LIAB\TJM~LLPG\91872~M~15000X50000 DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED DEFENDANT~ FLYING J~ INC.'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT The Defendant, Flying J, Inc., by and through their counsel, Marshall, Dennehey, Warner, Coleman & Goggin, hereby makes Answer to the Plaintiff's Complaint and in support thereof states the following: 1. Admitted in part; denied in part. It is admitted only that Plaintiff is who he says he is. All remaining allegations of this Paragraph are denied in accordance with Pa.R.C.P. 1029(c). 2. Admitted. 3. Admitted. 4. Denied. The allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(c). 5. Denied. The allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 6. Denied. The allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 7. Denied. The allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 8. Denied. The allegations set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant, Flying J, Inc., demands judgment in its favor and against Plaintiff together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFF 9. Plaintiff's Complaint fails to state a cause of action as against Defendant upon which relief may be granted as a matter of law. 10. Defendant breached no duty of care owed to Plaintiff under the circumstances described in Plaintiffs Complaint. 11. No act or omission on the part of Defendant was a substantial contributing factor in bringing about Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied. 12. Pa.R.C.P. 1030. 13. 14. Defendant reserves it fight to raise one or more of those defenses set forth at Plaintiffs claims may be barred and/or limited by Plaintiff's own negligence. Plaintiffs claims may be barred in whole or in part by Plaintiffs failure to mitigate his damages as required by law. 15. Plaintiffs claims may be barred in whole or in part by the Doctrines of Res Judicata and/or Collateral Estoppel. 16. In order to preserve the defense and pending further discovery in this matter, Plaintiffs injuries and/or damages, all such injuries and/or damages being expressly denied, may have been caused in whole or in part by persons and or entities other than Defendant and over whom Defendant had neither control nor right of control. 17. In order to preserve the defense and pending further discovery in this matter, Plaintiff's injuries and/or damages, all such injuries and/or damages being expressly denied, were not caused by any act or omission on the part of Defendant, but rather were the result of pre-existing medical and/or physical conditions which pre-existing medical and/or physical conditions were neither aggravated nor exacerbated by Defendant's alleged negligence, all such alleged negligence being denied. WHEREFORE, Defendant, Flying J, Inc., demands judgment in its favor and against Plaintiff together with such other relief as this Court shall deem appropriate. DATE: ~ ~ L I, ~'/Ut~Z BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN T~T~ c~~ON, ESQUIRE I.D. No.'5'2918 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorneys for Defendant, Flying J, Inc. VERIFICATION I hereby affirm that the following facts are correct: Flying J, Inc. is a Defendant in the foregoing action, and I am authorized to execute this Corporate Verification on their behalf. The attached Answer with New Matter of Defendant is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not of me. I have read the Answer with New Matter and to the extent that the Answer with New Matter is based upon information which I have given to my counsel, it is tree and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. DATE: ~c. DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ day of ~ ,2002, served a copy of the foregoing Defendant's Answer with New Matter via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Joar~M. Parr DON LEE HUNT, FLYING J, INC., Plaintiff V. : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-7130 CIVIL TERM Defendant JURY TRIAL DEMANDED REPLY AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, and makes the following reply to the Defendant's answer with new matter: 1-8. No answer required. 9. The conclusion of law is denied. 10-17. The answer to Paragraph 9 is incorporated herein by reference. WHEREFORE, the Plaintiff requests the new matter be dismissed. HANFT & KNIGHT, P.C. William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 5th day of April, 2002, I, Mary M. Price, an employee of Hanft 8: Knight, P.C., hereby certify that I have served a copy of the Plaintiff's Reply to new matter by mailing the same by United States mail, postage prepaid, addressed as follows: Timothy J. McMahon, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 \05_A\LIAB\TJM\LLPG\I 01576XJMF',20614\00145 DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED MOTION TO COMPEL DISCOVERY 1. Plaintiff Don Lee Hunt instituted this action originally by filing a Praecipe for a Writ of Summons on or about December 19, 2001. A Writ was issued December 20, 2001. 2. Thereafter, on March 7, 2002, Plaintiff filed his Complaint and Defendant filed its Answer with New Matter on or about April 4, 2002. 3. Plaintiff in his Complaint seeks to recover damages for personal injuries allegedly sustained on or about January 26, 2000 as a result of an alleged slip and fall incident at Defendant's business premises on the Harrisburg Pike. 4. On or about March 29, 2002 Defendant served Plaintiff with Interrogatories and a Request for Production of Documents. 5. By correspondence of July 2, 2002 counsel for Defendant requested that Plaintiffs counsel supply answers to the outstanding written discovery no later than July 15th in order to avoid a Motion to Compel such discovery responses. 6. Counsel for Defendant has made no further agreements concerning an extension of time regarding this outstanding written discovery and Plaintiff has not responded to Defendant's Interrogatories or Requests for Production of Documents. WHEREFORE, Defendant, Flying J, Inc., respectfully requests that this Honorable Court enter a Rule to Show Cause as proposed attached hereto directing that Plaintiff show cause within twenty (20) days as to why Defendant's Motion to Compel Discovery Responses should not be granted. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GQGGIN T ESQUIRE I.D. No. 529~ 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant DON LEE HUNT, Plaintiff FLYING J, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED .CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this L0''~ day of August, 2002, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 \05_A\LIAB\TJMkLLPG\I 015~,'~3'UMFk20614\00145 DON LEE HUNT, Plaintiff V. FLYING J, INC., Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this t~'~ day of /~eu.d~ ,2002, upon receipt of the Motion of Defendant, Flying J., Inc., a Rule to Show Cause is hereby issued upon Plaintiff, Don Lee Hunt, as to why Defendant's Motion to Compel Responses to Defendant's Interrogatories and Request for Production of Documents should not be granted. This Rule is returnable twenty (20) days after service upon Plaintiffs counsel by regular mail. BY THE COURT: PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: [] Pre-Trial Argument ,Court [] Argument Court CAPTION OF C~E (entire caption mu~ be ~M~ in ~11) DON LEE HUNT, Plaintiff Vo FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL, DEMANDED NO. 2001-7130 Civil State matter to be argued (i.e., plaintiWs motion for new trial, defendant*s demurrer to compliant, etc.): Defendant, Flying J Inc. Motion For Summary Judgment Identify counsel who will argue case: (a) for Plaintiff: William A. Addams, Esquire (b) for Defendant: Joseph F. Murphy, Esquire I will notify all parties in writing within two days that this case has been listed for argument._ 19 ~°S?nF~Ur~hy, Es u~ ~J ~rn~ey for Defendant, Flying J Inc. Dated: September 10, 2003 DON LEE HUNT, Plaintiff FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT This civil action arises out of an alleged slip and fall on ice and/or snow that occurred on January 26, 2000 in the parking lot of the Flying J Travel Plaza on Harrisburg Pike in Carlisle. (See Plaintiffs Complaint). 2. At his deposition, Plaintifftestified that on January 25, 2000 he was passing through Pennsylvania in his tractor trailer in order to deliver a load in Elmwood Park, New Jersey when he decided to stop in Carlisle, Pennsylvania to rest and eat. (Plaintiffs D.T. at 12-13) (A true and correct copy of Plaintiffs Deposition Transcript is attached hereto as Exhibit A). 3. Plaintifftestified that he arrived in Carlisle at midnight on January 25, 2000. (Plaintiffs D.T. at 13). 4. As Plaintiffpulled into Carlisle in the late hours of January 25th he noted that it was snowing out at that time. (Plaintiffs D.T. at 15). 5. After eating and sleeping through the night, Plaintiff awoke at approximately 7:30 a.m. (Plaintiffs D.T. at 15-16). 6. Plaintifftestified at his deposition that probably three to four inches of snow accumulated by morning as a result of the recent snowfall. (Plaintiffs D.T. at 16). 7. After awakening, Plaintiffwent inside Flying J's to purchase a cup of coffee, and it was light out at that time. (Plaintiffs D.T. at 16). 8. After exiting Flying J's, Plaintiff walked outside and slipped and fell on ice and/or snow that had accumulated in the parking-lot area for trucks. (Plaintiffs D.T. at 18, 23). 9. At his deposition, Plaintifftestified that he was not able to see the ground underneath the snow either before or after the fall, but he knew that it had to be ice, because his "feet went out from under" him. (Plaintiffs D.T. at 22-23, 36). 10. At his deposition, Plaintifftestified that the surface upon which he was walking was snow, but there was also ice when the snow started to melt. (Plaintiffs D.T. at 45). 11. On direct examination from his counsel, Plaintifftestified that he could not recall whether there were tracks, steps, or any other indentations in the snow and/or ice upon which he fell. (Plaintiffs D.T. at 45-46). 12. As a result of the fall, Plaintiff sustained an injury to his elbow. (Plaintiffs D.T. at 18). 13. Plaintiff did not immediately report the incident to Flying J's; rather, Plaintiff delivered his load in Elmwood Park, New Jersey and came back to Flying J's the next day to report the incident. (Plaintiffs D.T. at 24-25). 14. When Plaintiffpulled into Flying J's the day following the accident to make a report, he noted that the sidewalks and parking lot of Flying J's had been cleared. (Plaintiffs D.T. at 31). 15. On or about February 2, 2000, Plaintiff advised his Doctor, Cynthia Thomas, D.O., that the injury to his elbow occurred when he walked out of the truck stop carrying a cup of coffee, stepped on a "sheet of ice" and fell, landing on his right elbow and right hip. (A true and correct copy of the Workers' Compensation Form produced by Plaintiff in response to discovery requests is attached hereto as Exhibit B). 16. Plaintiff's medical expenses and lost earnings have been paid by his Workers' Compensation carder, and he does not currently have any restrictions in the use of the injured arm. (Plaintiffs D.T. at 40). 17. Summary Judgment is proper "if, after the completion of discovery relevant to the Motion, ... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." 18. If the non-moving party fails to come forward with sufficient evidence showing the existence of facts essential to the cause of action, the moving party is entitled to judgment as a matter of law. 19. The Hills and Ridges Doctrine provides that an owner/possessor of land is not liable for general slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. 20. In order to recover from a fall on an ice or snow covered surface, a Plaintiff is required to prove the following: (1) That snow and ice had accumulated on the sidewalk [or parking lot] in ridges or elevations of such size and character so as to unreasonably obstruct 3 travel and constitute a danger to pedestrians traveling thereon; (:2) That the property owner had notice, either actual or constructive, of the existence of such conditions; (3) That it was the dangerous accumulation of snow and ice which caused the Plaintiff to fall. 21. If a Plaintiff cannot establish all of the aforementioned elements, Defendant is entitled to judgment as a matter of law. 22. In this case, Plaintiffis unable to establish the first element of a cause of action under the Hills and Ridges Doctrine: namely, Plaintiff has failed to adduce any evidence to establish that "snow and ice had accumulated ... [on the parking lot] in ridges or elevations of such size and character so as to unreasonable obstruct travel and constitute a danger to pedestrians traveling thereon." 23. Defendant is entitled to summary judgment in this case, because Plaintiff does not recall that there existed hills and ridges of ice and/or snow and the only evidence as to the character of the surface upon which Plaintiff allegedly fell is thai the surface was a "sheet of ice," as admitted by Plaintiff to his treating doctor and the Workers' Compensation carrier. WHEREFORE, Moving Defendant, Flying J, Inc., respectfully requests that this Honorable Court grant this Motion and enter judgment in favor of said Defendant. DATE: BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-21509 Attorney for Defendant Flying J, Inc. 5 DON LEE HUNT, Plaintiff FLY1NG J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED ORDER AND NOW THIS day of upon consideration of Defendant Flying J's Motion for Summary Judglnent and the response thereto, it is hereby ordered that said motion is granted. Plaintiffs Complaint shall be dismissed, with prejudice and judgment entered in favor of Defendant. BY THE COURT: CONDENSED iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DON LEE VS. FLYING HUNT, PLAINTIFF, J, INC., DEFENDANT. CASE NO. 20(;1-7130 CIVIL TERM VIDEOTAPED DEPOSITION OF DON LEE HUNT MONDAY, MAY 19, 2003 UPLAND, CALIFORNIA JULIE A. HUDSON CSR NO. 8842 PRECISION COURT REPORTING SERVICES PRECISION VIDEO SERVICES CHRISTIE HUDSON i-iOEIIN, President 305 North Second Avenue Upland, California 91786 (909) 981-D00 (800) 98-DEROS ~wv.depotim¢.com c-mail: precision~dcpotime.c om ,Adeo@depotimc.com DON LEE ,r~TU~U7 Co~,d" ,=', ..... :~-i,[~ MAY i9, 2003 IN THE COURT OF COMMON PI EAS OF 2 CLMBERLAND COI;NT¥. PENTxTSYI.\ ANIA 3 4 ~ Plaintiff. ) 5 ) 7 ~ 8 ) 9 10 11 12 I3 14 Page 2 15 THE VIDEOTAPED DEPOSITION OF DON LEE IltYX-F. TAKEN BY 16 THE DEFENDANT. FLYING J, INC. AT 520 NORTH EUCLID 17 AVENTJE. UPLAND,(AL1FORN1A. COMMENC!NG AT I0:09 18 O'CLOCK A~M. MONDAY. MAY 19.2(103, BEFORE 19 JI. II,IE A HUDSON. CSR NO. 8842, P~ RSUANT FO NOTICF INDEX WITNESS DON LEE HUNT 2O 21 22 23 24 25 2 3 For the Plaintiff. Don Lee Hunt: 9 10 1I 12 14 19 4 (VbkTELEPHONE} 9 20 22 23 24 25 H,mn2sburg, Pent*sylvania J 7112 (717) 651 3500 2O 21 22 23 24 25 PAGE Examination By Mr. Murphy Examination By Mr. Addams 6 44 Page 4 Further Examination By Mr. Murphy 46 EXHIBITS No. Description Marked (No Exhibits Offered) Page 5 1 UPLAND, CALIFORNIA. MONDAY. MAY 19, 2003. 2 AT 10:11 O'CLOCK A.M. 3 ---oOo--- 4 5 6 MR. HERNANDEZ: Good morning. This is the 7 videotaped deposition of Don Lee Hunt, taken at the 8 office of Precision Court Reporting Services, located 9 at 520 North Euclid Avenue, Upland, California. 10 Today is Monday, May 19th, 2003, in the matter of i 1 Don Lee Hunt versus Flying J, Incorporated, case No. I2 2001-7130, civil term, in the Court of Common Pleas 13 of Cumberland County, Pennsylvania. 14 This deposition is being taken on 15 behalf of the Plaintiff. My name is Luis Hernandez 16 ~vith Precision Court Reporting and Video Services of 17 Upland, California. This deposition is cmmnencing at i8 10:09 a.m. 19 Would all counsel present please state 20 your nmn,:s and appearances. 21 MR. M'UR?HY: Justin Murphy for defendant 22 Flying J, participating via telephone. 23 MR. ADDAMS: And William Addams for Don Lee 24 Hunt. 25 MR. HERNAND~,Z: Ms. Reporter, will you please PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 2 - Page 5 1 swear in the witness. 2 3 DON LEE HU~NT. 4 Page 6 5 the Plaintiff herein, having been first duly sworn, A. With Swift Transportation. Q. And as a truck driver, I assume, right? A. Yes, sir. Q. {3kay. How' long have you been with Swift Transportation'? 8 9 10 11 6 was deposed and testified as follows: 7 EXAMINATION MR. MURPHY: Okay. Ready to begin? THE REPORTER: Yes. 12 BY MR. MURPHY: A. Let's see, this is the 5th -- 19 months. Q. {)kay. And in your employment with Swift Transportation, have you ever had the opportunity of driving through Pennsylvania for a job for Swirl Transportation? A. No. I run the 11 western states. 13 Q. Okay. Mr. Hnnt, can you hear me okay? 14 A. Yes, fine. 15 Q. Ali right. As we stated before, my 16 name is Justin Murphy. I represent the defendanl in 17 the lawsuil that you filed here in Pennsylvania, the 18 defcndam, Flying ,l. And we're here 1o take your 19 deposition. 20 Have you ever had your deposition taken 21 before? 22 A. No, sir. 23 Q. Okay. Just very briefly, and as noted 24 on the recor& this is a telephone deposilion. 25 You're located in California, we are here in Page 7 1 Pennsylvania. I have your attorney Mr. Addams here. 2 And I'll be asking you some queslions, 3 and it's important, especially with the phone 4 connection, that you wait until I'm finished with my 5 question before you answer. If you have any 6 questions about anything that I ask you, you don't 7 understand my question, please let me know and I'll 8 rephrase it for you. 9 Your attorney may have o~jections from 10 time to time to the questions that I ask. Please 11 wail until he is finished with his objection, 12 then assuming he's not asking you not to answer the 13 question you can go ahead and answer it over his 14 objection. Does that make seuse? 15 Do you have any questions about that? 16 A. No problem. 17 Q. Okay. All right. Could you please I8 state your full name and address for the record. t9 16 17 18 Don Lee Hunt, 15039 Flathead Road, ~9 t3 Q. ()kay. When is the last time when you /4 were in Pennsylvania on business or otherwise? /5 A. It was prubably in year 2000. 16 Q. ()kay. And could you just briefly give ]7 us a description of what yourjob duties are with 18 Sxvift Transpo~lation as a truck driver? 19 A. Well, I read the Quallcom, which they 20 conununicate by, and pick up freight at their 2I destination or their shipper and deliver it to 22 wherever they Say deliver it to. 23 Q. All right. What sort of freight are 24 you hauling xvith Swift? 25 A. Just about anything that's tangible Page 8 20 Apple Valley, California 92307. 21 Q. All right, sir. And what is your date 22 of birth? 23 A. 10-5-40. 24 Q. Okay. And how arc you presently 25 employed? Page 9 I anyway. 2 Q. ()kay. You stated that you were 3 employed by Swift for approximately 19 months. Who 4 was your employer prior to that? 5 A. iX/I.E. Stoneking. 6 Q. And where am they based out of? 7 A. He was based in Vernon, California. 8 Q. You said "was." Are they still around 9 or did they move? ~0 A. Well, he's moved and getting a divorce 11 righl now,. o I m not sure where has he's located 12 right now. 13 Q. You state "he." Is it Mr. Stoneking, 14 is that the name of the person who owns the business? 15 A. Yes. Q. And what are the dales that you worked for M.E. Stoneking? i. It was 59 -- I mean, not 59. Let's 20 Q. Just a ballpark figure. You don't have 21 to be specific. 22 A. It was about two years. 23 Q. For two years? 24 A. Y:S. 25 Q Okay. And ~vhat was yourjob with M.E. PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 6 - Page 9 1 Stoneking? 2 A. The same as it is with Swift. 3 Q. Which is? 4 A. Picking up and delivering fi'eight. But Page 10 5 with M.E. Stoneking I was running throughom the Page 12 i for the injury to your right arm? 2 ^. 'Yes, sir. He was the surgery -- 3 surgeon. 4 Q. Okay. Going back to your complaint in 5 this case. it stales that you were in Pennsylvania on 6 United States. 7 Q. What sort of freight were you picking 8 up and hauling with Stoneking? 9 A. Well, the same type of frei~a, 10 different shippers and consumees. The last load 11 hauled for M.E. Stoneking was a load of paper. 6 Janual? 26th, 2000 while employed with M.E. 7 Stoncking, correct? 8 A That's correct. i0191 ti]au date'?Q' What brought you into Pennsylvania on A. I was on my way to Ehnwood Park, 12 Q. Okay. When you were employed with M.E. 13 Stoneking, can you just give me an estimation of how 14 often your travels brought you thzough Pennsylvania? 15 A. Oh, probably once a month. 16 Q. And were there specific suppliers yea 17 were dealing with in Pennsylvania or specific places ~8 you were going to pick up and deliver your freight? 19 A. Well, from an3,wvhere going to E!mwood 20 Park, New Jersey. 21 Q. Okay. That's not exactly what I had 22 asked you. Is there any one -- any particular 23 businesses you were dealing with here in Pennsylvania 24 when you were mnployed with M.E. Sloneking? 25 A. NO. Page I 1 Q. Okay. In your complaint -- 2 incidentally, do you have a copy of the complaint and 3 any of the discovery responses that were drafted by iiNew Jersey. 13 Q. That's Ehnwood Park? i~ ~X Ehm,vood Park, New' Jersey. Q. And what were you going to do in Ehnwood Park, New Jersey? A Deliver a bad and Then pick up a load. 18 Q. Do you recall what that load was? 19 A. Going in there, I don't remember 20 exactly what il was, but coming out it was a load of 21 paper. 22 Q. I'm son'y, can you say thai again? 23 A. Going into Ehnwood Park I don't recall 24 what thc load was, but corning oul of there I know it 25 was a load of paper. Page 13 Q Do you recall where you were coming 2 l¥om when you were on your way to Ehnwood Park, 3 New Jersey? 4 your attorney? 5 A. Yes. 6 Q. You do have it with you? 7 A. Yes. 8 Q. Okay. You have the discovery responses 9 and the complaint? i0 ^. Yes. 11 Q. Okay· In the complaint that was 12 drafted by your attorney and verified by you, it 13 indicales an injury to your right arm, correct? 14 A. That's correct. 15 q. Okay. Prior to the date allcged in 4 A. No, sir, I sure don't. 5 Q. Okay. Did you stop off an3,wchere while 6 you were in Pennsylvania on your way to Elmwood? 7 A. Carlisle, Pennsylvania. 8 Q. Was lhat Carlisle, Pennsylvania? 9 A Yes. 10 Q. Did you stop anywhere in Pennsylvania 11 eilher before or after you stopped in Carlisle? 12 A. Nol that I know of, no. 13 Q. And what was the purpose of your stop 14 ill Car]isle, Pennsylvania? ^. To rest and eat. 16 your complaint, which is January. 26th.. 2000. have you 17 ever had any other injuries to vour right arm? 18 ^. No, sir. 19 Q. Okay. And are you currently under the 20 treatment of any physicians? 21 A. NO, sir. 22 Q. When is the last time you went and saw 23 a doctor? 24 A. Dr. Purl Let's see. 3-20-01. 25 Q. And did you see Dr. Puff for your -- 16 Q. lq:ad you ever been to Carlisle before? 17 A. C,nce or twice, yes. Q. Okay. And what xvas the pm'pose of 19 those trips; to Carlisle? 20 /~. Delivering -- going through 21 delivering fi'eight to Elmwood Park. 22 Q. Aud do you recall when you got into 23 Carlisle, PA. what time of the day it was? 24 A. It was m*ound midnight on the 25th. 25 Q. If it would have been midnight, would PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 10 - Page 13 1 it have heen the 26th or 25th? 2 ^. 25th. 3 Q. How long did you stay in Carlisle? 4 A. Just a little over eight hours. 5 Q. And what did you do when you got into 6 Carlisle m'ound midnight? Tell me what you did. 7 A. I went into the truck stop to eat, and 8 then went to bed. And then about 8:00 on the morning 9 of the 26th 1 got up, got my cup of coffee, walked 10 out the door and promptly fell on my keistcr. 11 Q. Where did you go to bed? 12 A. In my truck. 13 Q. Okay. So you got into Carlisle on 14 midnight on the 26th, correct -- 25th, correct? t 5A. Correct. 16 Q. And then you ate and went to sleep hack ~7 in your truck, m~d this is still on the 25th, right'? 18 A. Well -- yeah. Yeah, it would be. 19 Q Just so we're clear, your complaint 20 indicates that it was on January 26th when you had 21 your accident. 22 A. That's correct. 23 Q. Did that change'? 24 A. No, that didn't change. 25 Q. Well, does that change your answer to co,~,~w~s~.t:! MAY t9, 2(}03 po~asc 14 Q. Do you have any idea how much snow had Page 15 1 what date it was when you woke up and had the enp of Page 16 1 I 2 accumul;ued in Carlisle? 3 A No, sir. I sure don't. 4 Q. I)o you think it was more than a couple 5 mches? 6 A. Probably a couple more -- probably 7 three or four inches. 8 Q. And when you woke up from your sleep, I 9 assume that you slept in the cab, correct? 10 ^. That's correct. 11 Q. You have a bed in the back, sleeper ~2 cab'? 13 A. Yes, sir. 14 Q What time would it have been when you i5 woke up? 16 ^. Probably around 7:30. I7 Q. Then I think you said you ~vent -- went I8 inside to get a cup of coffee, correct? 19 A That's correct. 20 Q. Do you recall if it was light out or 21 dark out at 7:30 when you went in to get your coffee? 22 A. It was light. 23 Q. I think in the discovery responses that 24 you and 3,our attorney provided it indicates that 25 you're required to wear glasses when you're driving; I is that con'eet? Page 17 2 coffee? 3 A. No. 4 Q. And you spent a total of abont eight s hours in Carlisle, con'ect? 6 A. That's correct. Q. Okay. But by my math then, if you get 8 into town at midnight on the 25th and you stay eight 9 hours, that makes it 8:00 in the morning on the 25th !0 when you leave Carlisle. 11 A. That's correct. 12 Q. So the accident happened on the 25th or ~3 the 26th? A. 26th. 15 Q. Did -- when you -- after 8 hours when 16 you left Carlisle, where did you go to? 17 A. Ehnwood Park, New Jersey. 18 Q. Do you recall what the weather 19 conditions were like when you pulled into Carlisle on 20 the 25th? 21 A. Well. it was snowing. It had been 22 snowing. 23 Q. Anything else? 2 ^. That's correct. 3 Q. Do you knox, if you had your glasses on 4 at 7:30 in the morning when you went into the s Flying J? ts ^. C,h, yeah. 7 Q. Okay. Are you nearsighted or 8 farsighted? 9 A. I have astigmatism. I0 Q. Which entrance of the Flying J did you t1~ go into when you went to get the enp of coffee? .^. Off the fuel island. ii Q. Off of the fnel island? 14 A. Yes. 15 Q. All right. If you're -~ if you have just pulled into the Flying J restaurant, you're I7 looking directly at the building, the building is 18 right in front of you, would that be towards the left 19 or towards the right of the building? 20 A. It would be 'to the right. 2i Q. When you walked into the building, were 22 you carryiug anything in your hands? 23 A. My coffee cup. 24 A. No. It had cleared off during the 24 Q. So you had a coffee cup that you 25 night. 25 brought in with you to fill up~ is that right? PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 14 - Page 17 DON. LEE I'iUT'~T - ~ ' - .... ' ~.on~oi~,~l~: MAY t9, 2003 i 2 3 you had on that day? 4 A. Had on boots with neoprene sole. 5 Q. Do you know how long you had owned 6 those boots when this incidcnt happencd? 7 A. Probably three months. 8 Q. Did you say one month? 9 A. Three months. 10 Q. Three months. 11 Do you still have the boots? 12 A. Oh, yeah. 13 Q Okay. Why don't you tell me what 14 happened after you walked into the Flying J. Page 18 ^. That's con-eot. Q. Do you know what kind of shoes or boots Page 20 1 would probably be about four hours. 2 Q. And explain to me. if you could, the 3 situation with M.E. Stoneking, if you have a deadline 4 to meet to be -- pull m somewhere at noon, if you 5 don't make it on time is there any kind of 6 ranificaiion for that? 7 ^. Well, I would -- yeah. 8 Q. Describe for me what that would be. 9 ^. Well, it would be a service failure. l0 Q, Meaning what? I 1A. Means you get penalized. You get so 12 many of those per month and then you get terminated. 13 Q. Had you ever had a service failure 14 prior to the date of thc incident in your complaint, I6 out. Walked outside and stepped on some ice and fell ~7 and landed on my elbow. 18 Q. Is that your right elbow? 19 A. Yes, sir. 20 Q. Did you buy anything else besides a cup 21 of coffee when you went inside the restaurant? 22 A. No, sir. 23 Q. And incidentally, would this have been 24 in the restmtrant portion of the Flying J where the 25 what you would call the convenience center part of got my cup of coffee and started back 15 16 January 26th of 2000? ,x. No. 17 Q. ()kay. Which set of doors did you leave 18 from when you were headed back to your truck to go to 19 Elmwood? 20 A. I just came back out the stone door I 21 went ill. 22 Q. And was there still snow ou the 23 sidewalk? 24 A. Yes, there was. 25 Q. Was there still snow in the -- well, Page 19 I the Flying J where you found thc coffee? 2 A. Probably the convenience center. 3 Q. When you walked into the Flying J, did 4 you notice if thc sidewalks had been clcared of any 5 snow that had accumulated over thc night'? 6 ^. They had not been cleaned. 7 Q. So there was snow on the ground that 8 you ;vould walk through to get to the building? 9 .'x. Yes, sir. 10 Q. And I don't recall if I asked you this t 1 already or not. When you came out of the store, had 12 you bought anything besides the coffee? strike that. Page 21 13 A. No, sir. 14 Q. And what time were you due to pull into 15 Ehnwood City in New Jersey? 16 A. Probably around noon. 17 Q. Was that a deadline that you had to be 18 there by that time or is that just the cstimated time 19 that you would get there? 20 A. That was a deadline I had to be there. 21 Q. How far a~vay is Ehmvood, New- Jersey 22 from Carlisle, if you can give me an estimate? 23 A. Oh, probably 300 miles. 24 Q. How' many bouts would thai be'? ,?5 A. Oh, probably xxith the speed'Iimit it 2 Was there snow in the parking lot? 3 A. Yes. 4 Q. Did it look like anyone had been 5 through with a plow? 6 A. Well, somebody had been through with a 7 plow, yeah. 8 Q. Did you see anybody driving through 9 with a plow? A. No, sir. 11 Q \, x:re was your truck parked in relation 12 to the door that you came out of?. 13 A. Jast about to the left -- well, l come 14 out thc door and walked to my left to the truck. 15 Q. Approximately how far away? 16 A. Oh, Jt was probably 60, 70 feet. 17 Q. And in which direction were you looking 18 when you left the Flying J through those doors? A. I believe it would be east. 20 Q. Okay. Less specifically than east, if you can give me an idea which way you're looking, would it trove been straight ahead, off to thc left, 23 off to the right'? A. Off to the lefi. Q. And were you looki~g up or down? PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 18 - Page 21 DON LEE HUN~- ,~ona .....Et. MAY I9, 2003 1 2 I'm slepping, yeah. 3 Q. Okay. You stated normally you would 4 look down, is that what you were doing on this 5 situation'? 6 A. Oh, yeah. 7 Q. Did you fall or slip at all when you 8 were entering the Flying J initially? A. No, sir. 10 Q. How far did you get once you left the 11 building before you fell down? 12 A. Probably 30 feet. Page 22 Well, normally I look down to see where Page 24 I one who canle over. 2 Q. Did you land on any other part of your 3 body other than your right elbow? 4 A. My right hip. 5 Q. Did you injure your right hip? 6 ^. Just a bruise. 7 Q. What did you do after you fei1 down on 8 your right elbow and the gentleman caane up and asked 9 if yon needed help; what happened after that? I0 A. He asked me if I was okay, and I said I ~ 1think so. I got a knot on my elbow, but I'm going to 12 go on. So I went and got in my truck and went on to Ehmvood Park. Q. Did you make a notation on your travel log that you had fallen down? ^. Yes, I did. Q. When did you do that'? ^. At the time I did it. You mean when you got back in the truck? A. Q. Yes. /ire you right-handed? A. Yes, sir. Q. ()kay. Did you report the fall to anyone al the Flying J on that date? A. Not aI that time, no. Page 25 13 Q. Now, would this have been in the 13 14 parking lot aa-ca where you fell down or a sidewalk? 14 ~5 A. It would be directly from the fuel 15 I6 lanes, yeah. 16 17 Q. Well, I kind of asked you a compound 17 18 question there, so let me ask you it again. 18 19 Was this -~ did this fall occnr on the 19 2o sidewalk? 20 21 A. NO. 21 22 Q. Did it occur in the parking lot area? 22 23 A. Well there is a parking area for the 23 24 trucks, yeah. 24 25 Q. Wore you able to see the ground where 25 Page 23 1 you fell prior to failing? Were you able 'to see wha~ I 2 Q. ()kay. Why not? 3 A. I just went on to Elmwood Park, 4 delivered my load, aa~d came back the next day and 5 stopped/here and reported it. That's when they took 6 pictures of it. ? Q. Okay. X~q~y didn't you report it when it 8 happened., I guess you're saying on the 25th? 9 A I didn't think anything was wrong. 10 Q. C,kay. Do you know what time you pulled Il into Ehnwood City? 12 A. I~ was probably about noon. t3 Q. And what happened after you got to 14 Ehnwood City around noon? 15 A. I delivered my load and had to wait 16 around the next day to get. a load going to Phoenix, 17 Arizona. 18 Q. And did you stay overnight in Ehnwood t9 City? 20 A. Yes, I did. Q. Did you sleep in the track? 22 A. Yes, I did. 23 Q. Thc next day is the 26th. ri~t? 24 A. That would be the 27th. 2s Q. Okay. 1 think we established before 2 was underneath the snow? 3 A. No, sir. 4 Q. After you fell. were you able to see $ thc ~ound underneath the snow? 6 A. No, sir. 7 Q. And as best as you're able, if you 8 could describe for me how you fell down. 9 A I stepped up and my right fbot went out 10 from under me and I landed on my right elbow. 11 Q. Which hand were you holding the coffee 12 in7 ~3 ^. My right elbow -- my right hand. 1 14 didn't spill the coffee either. 15 Q. Was lhere anyone else around when you 16 fell? 17 A. Another driver come over and asked me 18 if I was okay. He saw me fall, but I didn't bother 19 1o get his name or address. 20 Q Had you ever seen him before? 21 A. No, sir. 22 Q. Nobody else besides that gentleman was 23 in tbe area? 24 A. Well, I don't know whether there was 25 anybody else in lhe fuels lanes, but he was the only PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 22 - Page 25 Page 26 1 that when you got up in Carlisle it was on the 25th, 2 right, when you woke up thal morning? 3 A. No. 4 Q. Okay. We have a little confusion about 5 what the dale was. Did the injury occur on the 26th 6 or the 25th? 7 A. 26th. 8 Q. Okay. And you had pulled into Carlisle 9 the night hefore, correct? 10 A. That's correct. 11 Q. About cighl hours before your i~!iury? 12 A. That's correct. !3 Q. Okay. Did you seek any medical I4 assistance on your way to Ehnwood City? 15 A. No, sir. I6 Q And did you seek any medical assistance 17 once you got to Ehmvood City'? 18 A No, sir. ]9 Q. Okay. When you're hauling yonr load, 2o dropping it off and picking up a new load, what is 21 your invo]vement in that whole process? 22 A. I usually have a bill of lading that I 23 get the customer to sign and I receive thc freight. 24 Q AnHhiug else? 25 ^. No. ] make an ent~7 in my log. Page 27 Q. The trailer portion of ymtr tpack, does 2 that -- do you keep the 1rat]er portion or do you 3 unhitch it and get a ne,,,,- trailer when you reach your Page 28 ~ dropoff or not. and we looked through your log 2 records and weren't able to tell what it was or not. 3 So I'm jest going to ask you based upon your memory. 4 Do you recall on the 26th whma you got 5 'to Ehnwood City, New Jersey whether you had to 6 physical]:y help unhitch the trailer or -- unhitch the 7 trailer or unload the freight that was m that 8 trailer? 9 ^. Probably backed into the dock and they 10 unloaded it. ] 1 Q. ()kay. Did you assist with that at all? 12 A. No. 13 Q. ()kay. 14 A. One way to tell would be on the 27th 1 15 changed ~railcr numbers. i~6 Q. ()kay. So you said you stayed overnight 17 in Ehnwood City and then the next morning you were 18 leaviug fl>r Phoenix. Arizona: is tha1 correct? 19 A. That's correct. 20 Q. ()kay. What time did you head out the 2] next morning, which would have been on the 27th? 22 A. There again, he's got my log, so I'm 23 not real sm'e what time I left. 24 Q. Okay. Would it have been sometime in 25 the morning, if you know? Don't guess if you don't kl]ow. A. That's correct. It would be in the morning. Page 29 4 destination? 5 A. It depends on whether it's a drop or a 6 live unload. 7 Q. Okay. When you got to Ebnwood City 8 that day on thc 26th of January, do you recall what 9 the situation was there? 10 ^. ] think Mr. Addams has rny logs. I'm tl not real sure whethcr it was a live unload or a drop. 12 Q. Okay. You don't have a copy of those 13 Mth you right now? 14 A. No, sir. 15 MR. MURPHY: Vi, re can go off thc record for one 16 minute. 17 MR. HERNANDEZ: The time is 10:44 a.m., and ]8 we're offthe record. 19 (A brief recess w'as taken.) 20 MR. HERNANDEZ: The time is 10:45 a.m. and 21 we're back on the record. 22 BY MR. MURPHY: 23 Q. Okay. Mr. Hunt, I was asking you about 24 whether or not on the ~,,th of January you actually 4 Q. And then when you left Elmwood City $ that morning, what did you do? kVbere were you heade. 6 to? 7 A. Carlisle, Pennsylvania. 8 Q. Okay. g,q]y were you headed to Carlisle, 9 Pennsylvania? 10 A. I wanted to go back through there and H report the accident because by then I had a big bag t2 under my ann on my right elbow. 13 Q. \Vhat kind of bag did you have on your 14 ann? 15 ^. It was back and blue. I don't know 16 what k/nd of bag it was. It was just hanging down. 17 Q You mcan this ~vasn't a bag that you a ~8 applied, you're classifying your injury as a bag? 19 A. That's correct 20 Q. Okay. \X/ha did it look like? 21 A. Well, it was different color, but 22 mostly black. 23 Q. And where specifically on your right 24 arm was that black portion located? dropped off your trailer and you called it a live 25 A, Hanging down l¥om ~ny right elbow. PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 26 - Page 29 Page 30 Q. And 1 believe you stated it swelled up? 2 A. Oh, yeah. They took pictures of it in 3 Carlisle when I got there. 4 Q. Okay. When did it -- when did it swell 5 up? 6 A. It started swelling right after it 7 happened. 8 Q. Okay. And why did you decide to go 9 back to Carlisle the next day to report it? 10 A. I wanted to get it on record. 11 Q But you didn't want to report it -- you 12 didn't feel it was necessary to report it right after 13 il happened, correct? 14 A. That's correct. 15 Q. Andjust incidentally, was it out of 16 your w'ay to go through Carlisle before having gone 17 towards Phoenix? 18 A. No, sir. I9 Q. And, again, realizing you don't have 20 your logbook in frout of you, but do you lnave any 21 idea what time you pulled into Carlisle that day? 22 A. No, sir, I sure don't. 23 Q. Also, was this -- when you left 24 Carlisle to drive to Ehnwood City, had it continued 25 to snow'? Page 31 A. NO, sir. Q. And when you left Elmwood to go back to 14 15 16 17 ~21 22 23 24 25 Page 32 I occurred until the time that you retm'ned to Carlisle 2 to report it, you hadn't seen a doctor, correct? 3 A. That's correct. 4 Q. Did you call M.E. Stoneking, your 5 employer, and inform them of what happened? 6 A. No, I didn't. Not at that time, no. 7 Q. Besides failiug to contact a doctor, 8 did you do anything on yom' own to treat the injury 9 that occurred? 10 A. No, sir, I didn't. 11 Q You were able to drive your truck with 12 the inju~, correct? 13 A. To a certain extent, yes. Q. Could you elaborate on that? A. It was hard to use my right ann to shift gears. Q. ()kay. So you reported the incident to the manager and you say she took pictures too, right? A. Yes, sir, she did. Q. [)id you ever get a copy of those pictures? ^. No, sir. I didn't. Q And I assume she took pictures of yonr right clbmv, right'? ^. '['hat's correct. 3 Carlisle, do you recall if it was snowing? 4 A. No, sir, it wasn't. 5 Q. Okay. All right. When you got into 6 Carlisle, was there still snow in thc parking lot? 7 A. NO, sir. It was cleared off. 8 Q. How about on the sidewalks? 9 A. No, sir. It was all cleared. }0 Q. Did it look different from when you 11 were there the first time two days before that? i2 A. Oh, yeah. 13 Q. Okay. And what did you do once you got 14 into Carlisle? 15 A. I went to see the manager and initiated 16 a report. 17 Q. Do you recall the manager's nmnc? 18 A. No, I don't remember her name. 19 Q. Was it a woman? 20 A Yes, it was. 21 Q. And which entraucc to the Flying J did 22 you go m when yon were going ~o make the report? 23 ^. The same entrance. It would be fi-om 24 the fuel lanes. 25 Q. And in the time from when the incident Q. Did she take pictures of anything else? A. No, sir. 3 Q. Did you see her taking pictures of the 4 sidewalk? 5 A. No, sir. 6 Q. Did she say anything to you while she 7 was making the report? 8 A. No. 9 O. How long did it 'take for you to give 10 the report, fill out the report? 11 A. Probably an hour. 12 Q. And what did you do after you gave her 13 the report? 14 A. I'd have to look at nay log, but I 15 either spent the night there or took off, went on 16 south. 17 Q. On your way to Phoenix? 18 A. Yes, sir. 19 Q. And approximately how long of a drive 20 is that from Carlisle, PA? 2~ ^. Oh, probably 17 or 1800 miles. 22 Q. How many hours does thai come out to 23 be? 24 ^ Pmbably 25. 25 Q.D.tring thc course of your 1700 mile Page 33 PRECISION COURT REPORTING SERVICES (800) 98-DEP'OS Page 30 - Page 33 Page 34 trip out to Pboenix, did you stop at any point along 2 the way to see a doctor? 3 A. No, sir, I didn't. My concern at that 4 time was just to get home to my own doctor. 5 Q. Who was ye're- own doctor? 6 A. Dr. Thomas. 7 Q. And, again, you don't have your logbook 8 with you, but can you tell me approximately how long 9 it would take you to drive those 1700 miles. ]now many 10 days? I 1 A. Well, 1 was -- I gel lhe load on tile 1227th and I had to deliver it on 2-1. 13 Q. February lst? 14 A. Yes, sir. 15 Q. And you delivered this load to Plncenix 16 you said, right? 17 ^. That's correct. 18 Q. But you didn't live m Phoenix at that 19 time, did you? 20 A. No. sir. 21 Q. Okay. Where was your home in relation 22 to Phoenix? 23 A. Apple Valley, Calitbrnia. 24 Q Yeah, how far are they aparl? 25 A. About 360 miles. Page 35 Q. So after you delivered the load on 2 approximately February_ Isl, you still lnad another 300 3 some miles to go to get home; is that correct? 4 A. That's correct. 5 Q. And what did yon do once yon got home 6 to Califomia? A. I veent to the doctor and she promptly 8 sent me for X rays, and then called mc back and told 6 7 8 it was broken. 9 Page 36 A. No, sir. 2 Q. }tow about when you got in the building, 3 did they have any ,,,,'et floor signs or anything of the 4 like inside the building? 5 A. They usually do, bul I didn't see any. 6 I don't rccall seeing mly anyway. 7 Q. And after you slipped on this ice, you 8 didn't go back inside to report it to anyone else so 111° that they wouldn't fall on it, correct? ^. No, sir. 1612 you felIQ' HOWon? do you know that it was ice that 13 A. Well, it started to melt and slip. My 14 feet xvent out from under me, so I know it had to be 15 ice with a neoprene sole, they usually stop you from slipping. 17 Q. After you fell and while you were on the 18 ground, did yon took at the surface of the ground to 19 investigate what happened or what was on the ground? 2o A. I was laying on ice, yes. 21 Q. So you physically inspected it once you 22 fell? 23 A. Well, yeah. 24 Q. Did you notice if your boots had made 25 an indentution in the ice or any sort of mark in the 10 Q. Dr. Thomas is a female? 11 A. Yes, sir. 12 Q. Do you recall how mmly days after you 13 got home to California lhat you had gone to sm 14 Dr. Tlnomas? 15 A. The day I got back. 16 Q. That very same day? 17 A. Ycs, sir. 18 Q. I forgot to ask you a couple questions 19 about when the accident occurred. 20 Did you see if anyone ]lad put a salt or 21 other type of substance, any lype of similar 22 suhstanee, on either the sidewalk or the pm-king lot? 23 A. No, sir, I didn't. 24 Q. Did you see any type of warning s/gus 25 that were placcd up? Page 37 lice? 2 A. No, sir. 3 Q. In the discovery responses that you and 4 yom- attorney sent to me it indicates that you 5 eventually had, what, three surgeries on your wrist or mi your elbow; is that correct? A. That's con-ecl. Q. And the first of those surgeries was to inslall stone wires in your elbow; is that correct? t0 A. That's correct. I 1 Q. And eventually you had those wires 12 removed? 13 A. Well, I had to -- the middle surgery 14 was to rearrange the wires. They had moved. And ~5 then I had to wear those wires for a year. 16 Q. And when you got home to California 17 after this :incident occurred in February, did you ~8 cai1 your omployer at any point and tell them what ~9 happened? 20 A. I sure did. 21 Q. Okay. And you were out of work for 22 some period, correct? 23 A. About 14 months, yeah. 24 Q. And you were on workers' compensation? 25 A. Yes, sir. PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 34 - Page 37 Page Q Werc you doing any other kind of jobs 2 during the 14 months that you werc unemployed? 3 A No, sir. 4 Q And did M.E. Stoneking hold your.job 5 opcn for yon thc entire time? 6 A. Yes, he did. 7 Q. When was it that you rctm'ned back to 8 work? 9 A. 6-20. 6-20, 2000. 10 Q. Okay. il A. No. That had to be 2001. 12 Q. Five months, in my estimation, from 12 13 January 2000 until Jm~e of 2000, is when you were out 13 14 of work? 14 15 A From 6-20. 2001. 15 16 Q. 2001. That's whal I thought, t6 17 A. Incidentally, M.E. Stoneking was 17 18 also -- he had a tease agreement with Gilbert 19 Express, lncoq*orated in Wyckoff. New Jersey. 19 20 Q Mr. Hunt, you indicated before that you 20 21 have the answers to what arc called inten'ogatodes 21 22 with you, correct? 22 23 A Thc xvhat? 23 24 Q It w'ould be on your attorney's 24 25 lenerhcad m~d it's entitled Answers of Plaintiff to Page 39 1 Intcn-ogatories of Defendant. 2 Do you have that whh you? 3 ^. No, I don't have that with me. 4 Q. Okay. I'm going over this v:ith your 5 attorney hem. In one of thc -- in one of the 6 questions that you answered 1 asked how long you were ? out of work, and the answer is -- this is the 8 question No. 205, section B. It says, "from 1-27. 8 9 the date of/he accident, tl'a'ougln 2-1-00, then 9 10 returned to work 6-20-00." 10 11 Based upon your previous answer, are I l 1 12 you indicating that response is incorrecl? 12 ~3 ^. It had to be 2001. 13 14 Q. 2001. Okay-. Just so we're clear on I4 15 that. It must have been a typo on this thing. 15 16 So you didn't work for the good part of 16 17 the year 2000, correct? 17 18 A. That's COITOCl. 18 19 Q. And was that on doctor's orders that 19 20 you not return to work? 20 2I A. That's correct. 21 22 Q. And which doctor wmdd that have been, 22 23 Dr. Thomas? 23 24 A. Dr. Puri. He was the surgeon. 24 25 O. Did Dr. Thomas refer you to Dr. Pm'i? 25 Page 40 A. Yes, she did. q. Incidentally, that's P-u-r-i, Dr. Purl? A. Teah. Q. You stated before that you were out of work thc entire time from February of 2000 throngh June of 2001, correct? A. That's correct. Q. You didn't work in any capacity during thal time period? A, i',/o, sir. Q. ()kay. As you sit here today, do you have any resWictions to the use of your ri~t ann? .,x. No, sir. Q. And are you -- MR. ADDAMS: Can I interject a question here, Mr. Murphy? MR. MURPII¥: Yes, please do. MR. ADDAMS: This is Bill Addams. In looking at your W-2 form, Mr. Hunt, for the ycar 2000 it indicates you earned over S12,000 in wages that year. That would indicate that you worked more than one mouth, would it not? THE WITNESS: Well, I think most of that was workers' comp, wasn't it? MR. ADD,MMS: I don't know. I just want you Page 41 to he sure about your answer because the records for our answer to that question when we did the question and answer thing in writing was that you were out of work frm~, Fcbruary 2nd until June 20, 2000. Then again fi'om February Ist, 2001, to March 20, 2001 when you would have had those wires removed. Are you saying yuu were out of work that whole time, m~d never did work in between? THE WITNESS: That's correct. MR. ADDAMS: Okay. BY MR. MURPHY: Q. Are you scheduled for any folIow-up with any of your doctors for your right elbow? A. No, sir. Q. And I'm sorry', you may have auswered this before too, but you stated that you left your employment with M.E. Stoneking and began working with Swift, correct? A. That's CO~Tect. Q. \Vhat was the reason that you switched employers? A. Wall, he had severed his relationship with Gilbe;t, and when I got back to Apple Valley he kept putting me oft', putting me oft; putting me off, so I started lo work for somebody else. I wanted to PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 38 - Page 4I DObl LEE iPCTi'k~I Londenscit! · MAY t 9, 2003 Page 421 I work for M.E. Stone -- M.S. Carriers. 2 Q. Okay. 3 A. Which Swift bought. 4 THE REPORTER: ~,l~ich Swift what? 5 TIlE WITNESS: Which Swift bought. 6 BY MR. MURPHY: ? Q. Swift bought M.E. Sloncking? 8 A. No, they bought M.S. Can-iers. 9 Q. Oh, okay. 10 In looking al a copy of the accident 11 report that purportedly was filled out on the day I2 that you came in lo report your accident at 13 Flying J. I know you probably don't have a copy of Page 44 You staled you never saw' a copy of the 2 photographs that were taken. Did anyone ever show 3 you a copy of the accideut reporl?' 4 A No, sir. 5 Q. Did anyone from Flying J ever contact 6 you after you gave that accident report? 7 A. No, sir, not that I know of. 8 Q Yeah. I should mention your attorney 9 indicated perhaps the insurance company contacted 10 you. 1 ~ Did anyone from the insurance company 12 get in Iouch with you? 13 A. W¢I1, workers' comp carrier did, yes. 14 this with you. I aln showing il to your attorney to i5 make sure that that's, in fact, what it is. 16 On the report it states that it was 17 prepared by -~ and, again, this is a bad copy, but 18 I'm fairly sm'e the first name is John and the last 19 name it looks like il could be Molson, M-od-s-o-n, 20 but that's not clear. The first name is definitely 21 John. 22 And you indicated earlier that you gave 23 the repro2 to a female, eon'ecl? 24 A. That's correct. 25 Q. Was there any male employee of Flying J 14 15 16 17 18 19 20 2I 22 23 24 25 Q. Do you recall anyone specifically from the Flying J though, is the question I'm asking, getting ahold of you? A Not to my knowledge, no. MR. MURPHY: Okay. I think that's going to be it, Mr. Hunt. Thank you very much. THE WITNESS: You bet. ..XAMINATION BY MR. Al)DAMS: Q. Mr. Hunt, just a little clarification Page 43 1 present when you gave the report? 2 A. Well, there was some men in there, yes. 3 Q. Okay. Were they involved with taking 3 4 down the notes frmn yonr -- from your accident 4 5 report? S 6 A. l'm not sure who she had writing it 6 7 down. 7 8 Q. Okay. I think we're almost done. I 8 9 just want to take a minute and look through my notes 9 10 and make sure I don't have anything else. 10 Page 45 about how this accident happened. You said earlier in response to Mr. Murphy's qz~estioning that you had siepped up and fl~en your right foot went out from under yor~. Stepped up on what? ^ Well, it w-as kind of a bridge way deal going over to my truck. Q. And what is the bridge way deal? A Well, it was just -- well, I don't know whether i~ was a bridge way or just snow piled up there, Mr. Addams. ~ ~ Ail right'? 12 A. Okay. 13 (Pause in proceedings.) 14 BY MR. MURPHY: I5 Q. At one point during the investigation 16 of this lawsuit it was arrived al the figure 17 approximately $25,000 that you're claiming for lost 18 wages. 19 Were you involved with preparing that 20 number or is that something thai your attorney came 21 up with? 22 A. That's something Mr. Addams colne up 23 wi'd]. 24 Q. Did he discuss that figure -* well, :s strike thai. 11 Q. What was the surface like that you were I2 walking on? 13 A. I1 was snow. il4 Q. Was there also ice? 15 ^. When it started lo me]t, yes. 16 Q. And werc them tracks or steps or other 17 indeniations in it? 18 ^. I don't recall if there was any other 19 indentations in it, no. 20 MR. ADDAMS: Okay. Thank you. 21 MR. MURPHY: That just leads me to a couple 22 follow-ups. Son~. 23 // 24 // 25 // PRECISION COURT REPORTING SERVICES (800) 98-DEPOS Page 42 - Page 45 Page 46 1 FURTIIER EXAMINATION 2 3 BY MR. MURPHY: 4 Q. YOU said you don't recall if there were 5 other indentations there. Do you know if thcre wcre 6 or you just don't recall? 7 A. I don't recall if there was any -- 8 any -- any marks in the snow, no. 9 Q. And from where your truck was parked, 10 was lhere a designaled patl~ or other demarcated way 11 to get from the parking lot to the entrance of the 12 service plaza? 13 A. Seemed to me like there was different 14 ways to ge! to it, but that was thc most direct way 15 that 1 cotdd get to the truck stop from where I 16 parked my truck. 17 MR.i'vVURPHY: Okay. That's all. Thin,ks. 18 MR. ADDAMS: Okay. Thm~k yon, Dou. That's 19 all I have. 20 THE WITNESS: Okay. 21 MR. IIERNANDEZ: The videotaped dcposilion 0'~ went off the record at 11:14 a.m. This concludes 23 tape one of the videotaped deposition of Don Lee 24 Hunt 25 Thank you. 1 2 3 4 6 7 8 9 I0 II 12 13 14 I5 16 17 18 19 2O 21 22 23 24 25 I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated this day of ,2003. Page 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 i15 16 17 18 19 2o 21 22 23 24 25 (The deposition of DON LEE HUNT commenced at 10:09 a.m. and ended at 11:14 a.m.) Page 47 REPORTER'S CERTIFICATE 2 3 4 5 6 Page 49 COUNTY 'DF SAN BERNARD/NO I, Julie A. Hudson, a Certified Shorthand 7 Reporter within the County of San Bernardino, State 8 of Califbrnia, do hereby certify: 9 Thai prior to being examined, the wimess l0 named in the foregoing deposition was sworn by me to 11 testif}, to the truth, the whole truth, and nothing 12 bul the trulh; 1 ~ That the said deposition was taken down by me 14 in shorthand at the time and place therein staled and 15 was thereafter reduced to print by computer-aided 16 transcription under my direction; 17 I further certify that I am not of counsel or 18 attorney for either of the parties hereto or in any 19 way interested in the event of this cause, and that I 20 am not related to either of the parties thereto. 21 22 day of 23 24 25 WITNESS my hand this ,2003. PRECISION COURT REPORTING SERVICES (800) 9g-DEPOS Page 46 - Page 49 .... dBO:~O oo-~o-q"a DON LEE HUNT, : Plaintiff : FLYING J INC., : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA No.: 2001-7130 (Civil Ten'n) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Stefanie Meyers, an employee of Marshall, Dermehey, Warner, Coleman & Goggin, do hereby certify that on this ~ay of September, 2003, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-3387 DON LEE HUNT, Plaimiff FLYiNG J iNC., Defendant TO THE PROTHONOTARY: iN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of the undersigned on behalf of the Defendant in the above- captioned matter. Respectfully Subrrdtted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: JOS]~ ~.M Y,k~SQUIRE i.D. ~. 781191~~H 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3509 Attorneys for Defendant DON LEE HUNT, Plaintiff V. FLYING J INC., Defendant : IN THE COURT OF COMMON PLEAS : CLrMBERLANT) COUNTY,PENNSYLVANIA : No.: 2001-7130 (CivilTerm) : : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Stefanie Meyers, an employee of Marshall, Dennehey, Wamer, Coleman & Goggin, do hereby certify that on this 24th day of September, 2003, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanfi & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-3387 DON LEE HUNT, FLYING J, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-7130 CIVIL TERM Defendant : JURY TRIAL DEMANDED PLAINTIFF'S ANSVqER TO l)EFENDANT~S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Plaintiff, Don Lee Hunt, by his attorney, William A. Addams, of Hanft & Knight, P.C., and makes the following answer to the Defendant's Motion for Summary Judgment: 1-18. Admitted. 19. Admitted, but there are exceptions to the Hills and Ridges Doctrine which impose liability. The Hills and Ridges Doctrine applies only where general slippery conditions prevail in the community and not where a specific localized patch of ice exists. The Doctrine also does not apply where snow or ice is a result of an artificial condition, as where there is a snow bank across a plaintiWs path, or where there is an accumulation caused by a particular drainage condition. 20. The answer to Paragraph 19 is incorporated herein by reference. 21. Denied. The Plaintiff is entitled to recover in this case by establishing that an area of ice caused his fall and that the ice pre-existed the recent accumulation of snow and was not known or discoverable by him. 22. The conclusion of law is denied. 23. The conclusion of law is denied. WHEREFORE, the Plaintiffrespectfully requests that the Defendant's motion for summary judgmem be denied. HANFT & KNIGHT, P.C. Wilffam A. ~-ddarns Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attomey for Plaintiff CERTIFICATE OF SERVICE AND NOW, this ~ tt~ day of October, 2003, I, Mary M. Price, an employee of Hanft & Knight, P.C., hereby certify that I have served a copy of the Plaintiff's Answer to Defendant's Motion for Summary Judgment by mailing the same by United States mail, postage prepaid, addressed as follows: Joseph E. Murphy, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGG1N 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 PRAECIPE FOR LISTIN~ CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate} TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: [] Pre-Trial Argument Court [] Argument Court CAPTION OF CASE (entire caption must be stated in Mil) DON LEE HUNT, Plaintiff Vo FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 200].-7130 (Civil Term) JURY TRIAL DEMANDED NO. 2001-7130 Civil State mat~er to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to compliant, etc.): Defendant, Flying J Inc. Motion For Summary Judgment Identify counsel who will argue case: (a} for Plaintiff: William A. Addams, Esquire (b) for Defendant: Joseph F. Murphy, Esquire I will notify all paedties in writing within two days that this case has been listed for argument._ 19 Dated: November 13, 2003 DON LEE HUNT, Plaintiff FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ellen M. Palmer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~(~ day of ~ , 2003, I served a tree and correct copy of the foregoing document via United States First Class Mail, postage pre-paid as follows: William A. Addams, Esquire Hanfi & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Attorney for Plaintiff '~f__i.. 7 Ell~en M. Palmer \05_A~LIABXJPM\SLPG\I 38142~EMP~20614\00145 DON LEE HUNT, Plaintiff VS. FLYiNG J INC., Defendant iN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-7130 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, HESS AND OLER, J.J. ORDER AND NOW, this ?o * day of December, 2003, the defendant's motion for summary judgment is DENIED. BY THE COURT, ~/illiam A. Addams, Esquire For the Plaintiff ,/foseph F. Murphy, Esquire For the Defendant :rlm 19,-30 PRAEC]PE FOR LISTING CASE FOR TRIAl, (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) 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) DON LEE HUNT, Plaintiff (check one) ( X ) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) FLYING J 1NC., Defendant -The trial list will be called on and April 6, 2004 Trials commence on _Ma,/3, 2004 Pretrial will be held on April 14, 2004 (Briefs are due 5 days before pretrials) (The party listing this case for trial shall provide forthwith a copy of the Praecipe to all counsel, pursuant I No.: ~001-7130 (Civil Term) Date: Indicate the attorney who will try the case for the party who files this Praecipe: .Joseph F. Murphy Indicate trial counsel for other parties if known: _William A. Addmns, Esquire This case is ready for trial. Signed: Pnnt N~e;h .~M~hv (fit l l,'~2JbO~ Attorney for:_ Defendant DON LEE HUNT, Plaintiff FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE; I, Ellen M. Plamer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~ . day~2a~ ,2004, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: William A. Addams, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Don Lee Hunt Flying J, Inc. V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-7130 CIVIL TERM ORDER OF COURT AND NOW, April 8, 2004, by agreemem of counsel, the above captioned case is hereby continued from the May 3, 2004 trial term. Counsel is directed to relist the case when ready. William A. Addams, Esquire For the Plaintiff Joseph F. Murphy, Esquire For the Defendant Court Administrator ld By the Court, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) 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) DON LEE HUNT, Plaintiff FLYING J INC., Defendant (check one) ( X ) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) The trial list will be called on and June 15, 2004 Trials commence on Jul,/12, 2004 Pretrial will be held on June 23, 2004 (Briefs are due 5 days before pretrials) (The party listi~tg this case for trial shall provide forthwith a copy of the Praecipe to all counsel, pursuant to local Rule 214.1.) No.: 2001-7130 (Civil TemO Indicate the attorney who will try the case for the party who files this Praecipe: Joseph F. Murph,/ Indicate trial counsel for other parties if known: William A. Add,tams, Esquire ~ ~ ~ //: This case is ready for trial. Signed: ~ i ] ,~//,~9~ Print Na~. Joseph F. Murphy Date: Attorney for: Defendant DON LEE HUNT, V. FLYING J INC., Plaintiff Defendant 13 Hoffer : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-7130 CIVIL TERM : : CIVIL ACTION - LAW IN RE: PRETRIAL CONFERENCE A pretrial Honorable George E. Hoffer, 23, 2004. conference was held before the President Judge, on Wednesday, Esquire, represents Esquire, represents Plaintiff is an June this slip and fall case, William A. Addams, the plaintiff, and Joseph F. Murphy, the defendant. over-the-road truck driver who claims he slipped and fell on hidden ice in the parking lot of the defendant on January 26, 2000, at approximately 8:00 a.m. He claims he fractured his elbow. Plaintiff claims that he was not aware of the extent of his injury at the particular moment and did not report this to Flying J at once. He continued with his delivery to the New York City area and returned to Flying J the next day, January 27th, to report the injury. Plaintiff claims that he had surgery performed in California later in February of 2000 whereby certain screws or other medical tools were inserted in the arms to stabilize the whole situation. Hunt V Flying J In Re: Pretrial Page 2 Conference regarding damages, to be appropriate fashion. Plaintiff will be testifying himself and his doctor is all ready to be presented to the jury by deposition. Defense counsel has indicated that he will FAX an appropriate charge to the Court by the close of business on Friday regarding the Hills and Ridges Doctrine and/or other appropriate law to be given on this particular issue to the jury. If not agreed to by plaintiff's counsel, the Court expects an appropriate and prompt response. Mr. Addams cannot appear on Monday, July 12, but is otherwise available that week and has promised the Court co-counsel will pick a jury if necessary so that the jury not be inordinately detained. The case can be tried in one day with four challenges apiece. Counsel will present to the Court a stipulation given by the Court to the jury in an By the Court, P.O. William A. Addams, Esquire For the Plaintiff Joseph F. Murphy, For the Defendant Prothonotary/ Esquire Court Administrator :mtf DON LEE HUNT, Plaintiff FLYING J INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2001-7130 (Civil Term) JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCE TO: Prothonotary Please mark the above referenced matter settled, ended and discontinued with prejudice. DATE: BY: Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Attorney for Plaintiff