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Home My WebLink About94-04531 '\ "i . t .~ :3 --I " '-" " j ",/ 'I , 1 , 1 i I ,I ( , , I " ~ j " I , , I , I " \ \ \ l - r() \() ::t " " I' , .. RY^N H. HOORE and t;'U~Otl (I. "OOR~;'" plaintitts l:l~ OLflR IN THfl COURT OF COHHON PLEAa or CUHaERLAND COUNTY, PENNSYLVANI^ v. CIVIL ACTION - LAW DANIEL D. STEPHENS, t/d/b/a DANIEL D. STEPHENS GflNERAL CONTRACTING, Oefendant 94-4531 CIVIL TERM IN REI -ERETRIAk-QQ~FERENCE A pretrial conference was held in the chambers of Judge Oler in the above-captioned matter on Thursday, January 2, 1997. Present on behalf of the Plaintiffs was Delano M. Lantz. Esquire. Present on behalf of Defendant was William P. Douglas, Esquire. This is a negligence action for personal injuries (Plaintiff Ryan M. Moore) and property damage (Plaintiff Carol G. Moore, owner of the vehicle involved) arising out of a one-car accident in which the vehicle being driven by Plaintiff Ryan M. Moore and owned by Plaintiff Carol G. Moore slipped on some hydraulic fluid left on the roadway by Defendant's equipment. Liability for the accident is admitted by Defendant. Plaintiff Ryan M. Moore, a high school student at the time, allegedly suffered a shoulder and a knee injury, both of which allegedly continue to exist to some extent. It is noted that Plaintiffs' counsel has added a witness by the name of Sharon Hillegas to his possible trial witn....., without obj.ctlon on the part of Defendant'. coun..l. M.. Hill.ga. would be testifying a. to the participation in the pa.t of Plaintiff Ryan M. Moo~e in dancing and other show bu.ine.. activities. This will be a jury trial in which each .ide will have, by agreement of oounsel, four peremptory challenge., for a total of eight. The trial is estimated to be of a duration of one day. To the extent thnt any videotape testimony will be presented to the jury, which requires rulings on objsctions by the trial judge, counsel are directed to furnish a copy of the transcript of such testimony, with the areas of objeotion being pursued highlighted, and brief memoranda in support of counsels' respective positions at least five days prior to oommencement of the trial term. There is n possibility that Plaintiff Carol G. Moore will be dismissed from the case pursuant to a settlement of her action for property damage prior to trial. With respect to settlement negotiations, the sum of $5000.00 has been offered by Defendant. plaintiffs have refused this offer, and it does not appear likely to the Court that the case will be resolved prior to trial. By the Court, J ;/' !/ ,:;_LJ ["III ' \'; I t. "f,;i/ ,li'Jit,' !IIII,:I: 1-'''1 ,iI " " .'JI l;i> I'",,',..,' n?L/,I, )t i i~!' , iJrl' t\L~Wt ~:,'!~9! ~rt:/f :ilj,~, . '11'1', ~t" +~'!I J~:, 1\' I, I li ~, ,fl' ;if~\ ' !lIiIIi', j~ll~_, ; iilWt',,-, ('Ilk; I I i'f{~Li" It"" I' \ ' i'~_'~;'! 'llld' -;''':'1 'iI-{-\fl F' 1'_1 '-"1 't' ~,~ i;',fHf'1~ I "f, f1LFO-orFlcr: r.1! 11'1' 11"'lllfWf)TNlV r,'/ ,WI"li ^llllll ~II I:" cut,ll ,I, :'~" ,I. ,;'"..IJI d)' :t:llt\~YLV,'li~VI " " ,I, I, " , , , " I " d I' I" 1/, ,f" " , L il;' >id I 'I " , " " ., I, " , , , " il I II I) " " L~~"., f'i!"" lit' ",.'t.~" II""h "~'.~",_,~,,,,,, '~_"'(b,"'- I; "Jr' !,- , '" I,i I , " I "1 \ . j ~i ~ ; , j I, .. , , '1 I' I ,.~ ,~ \ - . . , .,' --, " , 'ii I'. I, , " i'r. ~' I i~ ~'l; ~. , . (.) "'f,.". t', ... -'I: I'" I- \ I,.. . . )f: ,): I ~r ") :1'1,1 , tit' j 1',.1-. ... , I' ; . '/(11 I" ~!: l!.I\, IJ. u', r.) ~) <.J t) 'I MaNl!Il:lS, WAI.I.AC:I' .\ NUAICK 100 "INI: dTAnllr " Q, lOll I.... HM"t1B.U"O, PA 11101) . . . . . WILLIAM p, DOUGLAS, ESQUIRE ATTY, W, 37926 DOUGLAS, DOUGLAS &: OOUGLAS 27 WEST HIGH STRIlET P,O, BOX 261 CAlmBLE, PA, 17013 717.24:H790 A'ITORNEY FOR DEFENLJANT, DANIEL 0, STEPHENS, t/d/bla DANIEL D, STI1PHENS GENERAL CONTRACTING RY AN M, MOORE and IN THE COURT OF COMMON PLlIAS 011 CAI{OL G, MOORE CUMBERLAND COUNTY, PA, V, CIVIL ACTION. LAW : WASHINGTON AND DOWLING: NO. 94.4531 CIVIL TERM CONTRACTORS, INC., nnd FA YETIEVILLE CONmACTORS,1 INC. V, DANIEL D, STEPHENS, tldlbln DANIEL D, STEPHENS GENERAL CONTRACTING , . : JURY TRIAL DEMANDED ADDITIONI\I. DEFENDANT. DANIEL D. STEPHENS. t/d/.1U!l DANIEl" Q, STEPHENS GENERAL CONTRACTING'S. ANSWER 1. Admitted, 2, Admitted. 3, Admitted, 4. Admitted, 5, Admitted, 6. Admitted. 7, Admitted, HIJiC:ln: rJ pi, '. f'r //"::1' , I I I '.' ',"/ ','IHli lJ ,,', ,,' I, /1'" Cl"""f' \ H:;i';"d:/i,j ~ I Ii !,', llii I' , I I 'I! I; 'I . I ',I I ~ I )i ,,, I I I ''i I " " ,j I) ,I'! " Ii " " I I ..,-..-........... " .,... j_ t. ,_~L.J _ ,'\ c~ '_'_'" ," -; "0.1"" -"'-'-' ft .l ' r , .' ~ , " ,!, \ f;' , , ~j " ># ,.--- I ,.. ,:.: i " Ii" .. ~; , I. I, . I 'I < 'I I I i, , I 1 I, ~ " , , " . , ' " 1'-, .. YOU UI NU.-" ItrQUU'rn TO 'ILl A WIUffIN IIU'OPllII( '0 rH'_ fhCL"stll ."HIIt 'WlNrr 1101 DUS 'ltON IU~lcr fit uo, lfII A JunqNI:NT MAr II lNUIUD UAUnT YOU. n I, ,UHJIHU.Vf, ,., !,\w ~ ... ',~"~h ,,'"'' t DOUGLAS, DOlJGI.AS I> DOUGLAS "',Il"','" /I.Illl~.U_, prtltj',"n.V/lfllf, ..HOIINn 1111 110 ~' WI'DO H(n'fI't' Cf:HJlIl...."I...' flU. WitHIN II A T1tUI AND co""'c r COP\' 0' THI OIUGINAL flUD IN JIm "e1l0H, BY _...__ "'1 ""ORUrY ~ -.!l , \a. '::r- ~t ':r- ?;, - ~ ~ ;;;:; i-, ,. : - ~, ~ " . ~ ,,~ '1" l..) (,) ..::.l. .', I" ,-' ~ ~ :::I ~__I f In I\J "-J .. " , I . - ~ l." ~ - " , t ~ N - ('-"'. -If \~) I I McNllIttl, WAI.LACI!: III NUIlICI< 11)0 PHil Uft,;t!l" ", ft, tlOk tlu H4""'bQU'tl), PA 11If,H) .-, '. - . RYAN M, MOORE and CAROL 0, MOORE, Plaintiffs v, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA q4 ' 1/.'),3/ Ci'V, / T~', M NO. CIVIL 1994 WASHINO'fON ANP POWLING CONTRACTORS, INe, and FAYETTEVILLE CONTRAC- TORS, [NC" Defendanta CIVIL. AC'rION - LAW JURY 'l'IUAL OSMANPlm NOTIC", You have been sued in court, If you wish to defend aoain.!!);. the clailll/,l set forth in t.he following paqp's. YOU must tal~e action within twenty (20) daY/il after J;.bis cOIUW.J.nt and noti~.nl served. bv entednq a .written appeflranC'L~r by at.t.Q.t:.:. nay and filinq in writing w~th the court YOl~.f<;)nses or ob~ tions to th~lillJns seL.f.QrJ;.lLaqainst YOU, You are warned that if YOU fail to _Q.Q...JlQ.,~i!1ill.JlliUWJJ;:Q(;eed without YOll Ilnd a judqment llIay be entered against ~!J1~,IJrt withollt; further notice for any money clainliliL.ltLJ;ll.!L.Q.QllJluaint or tor any other claim or relief reqllel11.iliLJ2Lthe plaintJ.ff.... You Illay lose money or property or other riqht.1LlmJilQ);.hi!nt to,"'y'Q1!. YOU SHOULD TAKE THIS l'A l' EJL'1:5L YOUIl. LAWYEB AT ONCE, IF YQ!.! DO NOT HAVE A I,AWYER OR CANNOT AFF01.ill.....Q1ill. GO TO Oil. TEI,SPHONE THE OFFICE SET FORTH BELOW '1'0 FI.lliL OUT WHSBR...191L.CAN GET 1,8GAL HI:l.L&, CUMBI~RLAND COUNTY LAWYER REFERRAL S":Il.VICE COURT ADMINISTRATOIl. CUMBERLAND COUNTY COURTHOUS8 CARL,ISLE, PA 17013 A V ISO UST8D HA SIOO D8MANDADO/A en cortE. Si usted desea defenderse de las demandas que se preaentan mas adelante en las siguientes paginas, de be tamar Rccion dentro de 1013 proximos vointe (20) dias despuen de In notificacion de eata Demanda y Avisa radicanda persana1n1<?nte 0 por media de un abogado una comparecencia escrita y radicando en 1a Corte par escrito sus defensas de. y objecciones a, las demandas presentadas aqui en contra suva. Se Ie advierte de que si usted fal1a de tomar accion como se describe anterionnente. e1 caso puede proceder sin usted y un fal1a por cualquier numa de dlnero reclamada en la RYAN M, MOORE and CAROL, a, MOORE, Plaintiffs v, IN THE COURT OF COMMON PLEAS CUMaERLAND COUN'I'Y / PENNSYLVANIA 'I LI . II ,.;~ I NO, CIVIL 1994 CIVIL AC'I'ION LAW WASHING'l'ON AND DOWI,ING CON'l'RAC'l'OR~, I NC, and FAYE'l"l'EVILL8 CON'l'RAC- 'l'OHS, INC., Defendants JURY 'l'R IAL DEMANDED COMPI,AIN'l' AND NOW COME PLAINTIFFS, Ryan M, Moore and Carol G. Moorq, by their attorneys, McNees, Wallace & Nurick, and make the following complaint in this matterl 1\. Part ies , 1, Plaintiff, Ryan M, Moors, is an adult individual currently residing at 1705 Olmsted Way/ Camp Hill, PA 17011, 2, Plaintiff, Carol G. Moore, is an adult individual currently residing at 1705 Olmsted Way, Camp Hill, P1\ 17011. 3. Defendant, Washington and Powling Contractors, Inc./ is a domestic corporation organized under the laws of the Common- wealth of Pennsylvania, conducting and doing business in the Commonwealth of Pennsylvania, and having its principal place of business at 361 South Warren Street, York, PA 17403, 4. Defendant, Fayetteville Contractors, Inc., is a domes- tic corporation organized under the laws of the Commonwealth of Pennsylvania, conducting and doing business in the Commonwealth of Penn~ylvania, and having it~ principal place of business at 3185 Lincoln Way Ea~t, Fayetteville, PA 17222, B. Factual BaokS/round, 6. The motor vehicle collision that i~ the subject matter of thi~ complaint occurred on Thursday, November 19, 1992 at or about 6113 p,m, on 15th Street, New Cumberland, Cumberland county, Pennayl vania, approxJ.mately one hundred (100) feet south of Simpson Ferry Road in or near the area of 732 16th Street, 6. Prior to November 19, 1992 Defendant, Fayetteville Contractors, Inc" entered into Contract No, OB2l57 with the Pennsylvania Department of Transportation to con~truct "curb cuts" in and around the Simpson Ferry Road area, New Cumberland, Cumberland county, Pennsylvania, 7, Prior to November 19, 1992 Defendant, Fayetteville Contractor~, Inc., entered into a sub-contract: under. PennDOT Contract No. 082157 with Defendant, Washington and Dowling Contractors, Inc., to construct "curb cuts" in and around the Simpson Ferry Road area, Borough of New Cumberland, Cumberland County, Pennsylvania. B. On or about November 18, 1992 Defendant, Washington and Dowl ing contractors, Inc" was constructing "curb cuts" in the area of Simpson Ferry Road and 15th Street, New Cumberland, Cumberland County, Pennsylvania pursuant to said sub-contract, - 2 - 9. On or apout November 18, 1992 Defendant, Washington and Dowling Contractors, Inc" parked a piece of equipment which it owned and/or for which it was responsible along the curb on 15th , Street in the area in front of or near 732 15th Street, New cumberland, Pennsylvania, 10, On or about November 18 or 19, 1992 the aforementioned equipment for which Defendant, Washington and Powling Contrac- tors, lnc" was responsible, leaked hydraulic fluid or other oily substance onto the road surface of 15th Street in front of or near 732 15th Street, near Simpson Ferry Road, New Cumberland, Pennsylvania, or the said corporation's workmen otherwise caused or allowed such oily substance to get on the roadway, 11. The spilled hydraulic fluid or other oily substance remained on the road surface and spread over the travel lanes into the center of the road, 12, On November 19, 1992 Plaintiff, Carol G. Moore, was the owner of a 1992 Alfa Romeo with vehicle identif.ication number 44095851601. 13, On November 19, 1992 Plaintiff, Ryan M, Moore, was the operator of the 1992 Alfa Romeo with vehicle identification number 440958551601. 14, On November 19, 1992 at or about 5r13 p.m" Plaintiff, Ryan M, Moore, was operating the aforesaid Alfa Romeo and travel- ing westbound on 15th Street, New Cumberland, cumberland County, - 3 - Penn~ylvania, approximately one hundred (100) feet south of Simpson Ferry Road and approaching the area of 732 16th Street. 15. Prior to the collision Plaintiff, Ryan M, Moore, was operating his vehicle with the headlights on, was operating the vehicle at a speed that was safe for conditions, and was exerois- ing due care for his own safety and that of other users of the roadway. 16, At the time of the collision, the roadway was illu- minated by street lighta, 17, At the time of the collision the road surface was wet from rain earlier J.n the day, but was not slippery except for the area where the hydraulic fluid or other oily substance was allowed to spill onto and remain on the road surface in the aforesaid area, 18. The slippery coating was caused by the said hydraulic fluid or other oily substance spilled on the road surface as set forth in Paragraph 10 above, 19, As Plaintiff, Ryan M. Moore, approached the bend traveling westbound on 15th Street toward Simpson Ferry Road, New Cumberland, he saw no evidence of hydraulic fluid or other slippery substance on the road surface and had no reason to expect that the road would suddenly and unexpectedly become slippery. 20, When Plaintiff, Ryan M, Moore's vehicle traveled onto the area of the spilled hydraulic fluid or other slippery sub- - 4 - stanoo, he was unable, despite the exeroise of reasonable care to maintain oontrol of the vehiole solely as a result of the hydraulic fluid or other slippery substanoe on the roadway, The roar of tho vehicle slid toward the west side curb. Despite reasonable efforts, Plaintiff, Ryan M, Moore, could not regain control of the vehicle and the front of the Alfa Romeo impaoted with a Pennsylvania Power & Light Company pole, spun around in a clock-wise direction and came to rest facing in an easterly direction on the west sidewalk of 15th Street. 21. As a result of the collision, the vehicle operated by Plaintiff, Ryan M, Moore, and owned by Plaintiff., Carol O. Moore, was extensively damaged and was towed f.rom the scene of the collision, 22, At all times prior to and at the time of the collision Plaintiff, Ryan M. Moore, was wearing a seat belt, 23. As a result of the collision, Plaintiff, Ryan M. Moore, suffered physical injurieR including I (a) Contusion of the infrapatellar tendon and the inferior pole of the patella of the left knee when his knee hit the dashboard area of the vehicle, (b) Strained rhomboids and inflammation of the soft tissues beneath the scapula of the right shOUlder, (c) Neck and back pain, (d) A cut to the lower lip, (e) A brush burn on his nose, and - 5 - If) A seat harness bruise of his chest, ~4, As a result of the collision Plaintiff, Ryan M, Moore, was treated and evaluated by Or, Richard J. Boal, ~5, As a result of injuries incurred in the collision Plaintiff, Ryan M. Moore, was forced to stop his athletic weight- lifting program for several monthsl stop playing the violin in sohool organizations for two to three months, and stop playing on the high sahool soccer team for the rest of the sen~on, 26, Plaintiff, Ryan M. Moore, continues to experience throbbing pain and diacomfort in his knee as a result of infra- patellar tendinitis suffered as a result of the collision, 27. As a result of the collision, Plaintiff, Ryan M. Moore, has incurred medical expenses to date in excess of $250 and will incur additional medical expenses in the future, 20. As a result of the collision, Plaintiff, Ryan M, Moore, haa endured great pain and SUffering and will in the future endure much pain and SUffering as a result of his injuries. 29, As a result of the collision, Plaintiff, Ryan M. Moore, has suffered a loss of life's pleasures and will in the future suffer a further loss of life's pleasures due to his injuries. 30, As a result of the collision, Plaintiff, Ryan M, Moore, has suffered, and in the future will suffer embarrassment and humiliation, - 6 - COUN'!' I - NEOl,lQENCIl1 Ryan M. Moore v. Washin9tol1 and DOl'llinCl Cant raatora. .lJ1SL. 31, Paragraphs 1 through 30 above are inc:orporatl!ld hereiu by refl!l~ence as if set fo~th in full. 32, At all times ~elevant hereto, Defendant, Washington and Dowling contractors, lnc" ncted through its agents, servants and/or employees who at all times were acting within the course snd scope of their employment. 33. At and before the time of the collision, Defendant, Washington and Dowling Contractors, rnc" was negligent, careless andlor reckless in that itl (a) failed to use reasonable skill and care to properly maintain its equipment in wor.king or.der and as a result hydraulic fluid or other oily substances were allowed and permitted to spill onto the public roadway, specifically in the area of 732 15th Street, New Cumberland, ~A, thereby creating a dangerous and hazar- dous conditiun for users of the roadway; (b) negligently failed to clean-up or remove the hydraulic fluid or other oily substance spilled or deposited on the public road in some other manner by the defective equipment and for which the said corpora- tion is responsible after its employees became aware that the substance was on the roadway in the aforesaid area; .7. (0) parked equ,l.pment along a publio road knowing that oily fluids Would escspe onto the publio roadway I (d) failed to properly train and supervise its employees who parked th~ equipment along the roadway, allowed oily substances to esoape onto the roadway, and failed to clean up the spill, (e) negligently placed the safety and seourity of the traveling public at risk by allowing the ijpilled hydraulic fluid to remain on the road surfaoe, and (f) failed to notify proper authorities about the spilled hydraulic fluid so that the authorities would be able to take action to remove the dangerous condi- tion. 34, As a direct and proximate result of the negligence, carelessness, andlor recklessness of Defendant, Washington and Dowling Contractors, Inc" the aforesaid dangerous condition was created and Plaintiff incurred the injuries and damages as set forth in Paragraphs 22 through 30 above. WHEREFORE, Plaintiff, Ryan M. Moore, demands judgment against Defendant, Washington and Dowling Contractors, Inc" i.n an amount in excess of $20,000 together with interest and oosts and in excess of the limits for compulsory arbitration. - 8 . COUNT II - ~E9LlaENCe ~ M, ~oore v. Fayetteville Contractors. Ino, 35, Paragraphs 1 through 34 are inoorporated herein by rEI f e rence . 36, At all relevant times, Defendant, Fayetteville Contrac- tors, Inc" was legally responsible to Plaintiffs for the negli- gence of Defendant, Washington and DOWling Contractors, Inc. 37, As a direct and proximate result of the negligence, carelessness, and/or recklessness of Defendant, Washington and Powling Contractors, Inc., and for which negligence Defendant, Fayetteville Contractors, Inc., is responsible, Plaintiff, Ryan M. Moore, incurred the injuries and damages as set forth in Para- graphs 22 through 30 above, WHEREFORE, Plaintiff, Ryan M, Moore, demands judgment against Defendant, Fayetteville Contractors, Inc., in an amount in excess of $20,000 together with interest and costs and in excess of the limits for compulsory arbitration, COUNT III Carol G. Moore v. WashinGton and Powline ContractorB. Inc, 38. Paragraphs 1 through 37 above are incorporated herein by reference as if set forth in full. 39. On November 19, 1992 the 1992 Alfa Romeo with vehicle identification number 44095851601 involved in the motor vehicle - 9 . oollision Lhat is th~ subjeot matter of this oomplaint was owned by Plaintiff, Carol Q, Moore, 40. On November 19, 1992 the 1992 Alfa Romeo with vehiole identifioation number 44095851601 involved in the motor vehicle oollision that is the subject matter of this complaint was insured by State F'arl11 Insurance company pursuant to Policy No. 6681 627 F20 30G in the name of Plaintiff, carol G. Moore, 41, On November 19, 1992 the terms of State Farm Insuranoe Company Policy No, 6681 62'7 F20 38G which Insured the 1992 Alfa Romeo with vehicle identification number 44095851601 in the name of Plaintiff, Carol G, Moore, required a deductible payment for property damage in the amount of $500, 42. Plaintiff, Carol G, Moore, paid the required deduotible for the property damage to her vehicle pursuant to the terms of State Farm Insurance Company Policy No. 6681 627 F20 30G for damages to the 1992 Alfa Romeo which is the subject matter of this complaint, 43, As a direct and proKimate result of the negligence, carelessness, and/or recklessnens of Defendant, Washington and Dowling Contractors, Inc" Plaintiff, Carol G, Moore, incurred the property damage for which she paid the $500 deductible. WHEREFORE, Plaintiff, Carol G. Moore, demands judgment against Defendant, Washington and Dowling Contractors, Inc" in the amount of $500, - 10 - , , , U; " .. . . ,I li.\I I ''[:, I' /, :,11; I '\,1,1,' '," '" , , Ii,' , .. . !; , !' .~~' I" ':! ;,,'!, I " :111,"'1 n ' i 1,1, :Jlo",tU, X",a, & Xj.,. ~"..,. ", J'- ~O' HO~fI' '~OHT ~r"nr p, 0, 'O~ .., H~~~II'U"G, PI>.ITIO' ,. I I ";:'1 , ""I .... 'I , " .11I,,"j ,-., r,1I i)id...II\,;.</." 'I' -,-..-"'- \ ,~ " I' " .. ,.... . . " " , I .' .1..,..... .;,1.,' ",I..'I.I('''.IH' +~'''I t, iit"it11h\~IMi ':'>, il , ,I Ocr t IU lG /ill '911 '"' ,J , .'1. , 'I 1 ~;; I ddj, 1 i h t Iii '.11 Iii , l! ,'Y , " ,I," '.'1 I ,~ ," , , , , I, " 'I' , Iii , , .'h I I , , " ,I i 1 " Ii II , " ", I, , , I " I' " " ;\( I, " 'I' 'I I' , V I "1 ~" , i~ I II I .. .I.~' 'i.." !"Im"','~: "I{ ;'1 . I , ,I " , , t , , "ii, ~: I , I, f \\I " I , ., \ I ~ ", . .,. , --~ , , .. ""'"''-''f''t'''IJiI-''tr~''' \! j'l "'T 'I I RYAN M. MOORE and CAROL G. MOORE, plaintiffs v. WASHINGTON AND DOWLING CONTRACTORS, INC. and FAYETTEVILLE CONTRACTORS/ INC. , Defendants v. DANIEL D. STEPIIENS d/b/a DANIEL D. STEPIIENS GENERAL CONTRACTING, Additional Defendant I I I I I I I I I I I I I I I I IN 'filE COURT Of COMMON PLEAS CUMBERLAND COUN'fY, PENNSYLVANIA NO. 94-4531 CIVIL TERM 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE AND WRIT TO JOIN ADDITIONAL DEfENDANT WECI"'E TO TilE PROTIIONO'fARY Of SAID COURT I Kindly issue a writ to join the following as an additional defendant in the above-captioned casel Daniel D. stephenB.-Individ~~Y and d/b/a Daniel D. Steohen. General contractinQ 'l'1I0~AS / 'l'HOMAS & IIAfER t? signature I ... }0dd...:1511//~___ Print Namel Todd B. parvol. Esquire Address I -19.5 No~th Front street -E.e. Box 999 Harrispurq. PA 17106-0999 supreme Court ID No. 42136 Telephone No. (717)237-7133 Datel October 14. ],994 WRIT or SUMMONS TO ADDITIONAL DEFENDANT TOI DANIEL D. STEPHENS. Individuallv a~p/a DANIEL D. STEPHENS GENERAL CONTRACTING. Landsvale Street Extension. Marvsvilla.-Pll--17053 YOU ARE NOTIFIED THAT Defendant W~hinqtoD-~~liD.~llractors. Inc. HAS JOINED YOU AS AN ADDITIONAL DEFENDANT IN THIS i\C'L'ION, WHICH 'IOU ARE REQUIRED TO DEFEND. Date I {Ua~{tJ'.!'- ILl 1994 BYI J&dnlll\llL.h- .!'Lilla r Prothonotary fP' ' ,.t~+f.( ll.r{ {i JL0 ti((lL De~ty , I " " 'I I,' " " ~ -........-';,.. ,r _.. . ( ~:~) McNEE., WAI.I.ACE III NURICI< 'po ~I""I. CT"lur '" I) 10. 'III t)F H""'''..U''O, reA 17101 , then oovered with leaves, Plaintiff was unable to oontroL the vehiollS on the slippery surfao~ and the v~hicle hit a utility pole, As a result, Pl~intiff, Ryan M, Moore, suffered personal injuries. Plaintiff, Carol G. Moore joined aa a plaintiff beoause of the unreimbursed deductible under the property damage portion of her auto policy, II. STATEMENT or BASIC PACTS AS TO DAMAGes. As a result of the collision, Ryan Moore suffered r.he following physical injuriesl (a) Contusion of the infrapatellar tendon and the interior pole of the patella of the left kneel (b) Strained rhomboids and inflammation of the soft tissues beneath the scapula of the right shoulder, (c) Neck and back painl (d) Cut to the lower liPI (e) Brush burn on his nasi'll and (f) A seat harness bruise of his chest. , At the time he was injured, Mr, Moore was in high school. He was forced to stop his athletic weightlifting program for several months, stopped playing the violin in school organi:l:ations for a few months and missed the r.est of the soccer season. At the time he was a member of the soccer team. 2 Unfortunately, Mr, Moore's knee injury has beoome ohronio and is a permanent injury, Mr, Moore wae born on May 10, 1976, Mr, ~'oore haa been treated by Or, R,i.chard aoal and hia father, Dr. aarry Moore, Or. 130131 performed an arthroscopy of his left knee on November la, 1995, The damage to the infrapatellar of hia knee oauaes chronic pain and limita Mr. Moore's ability to undertake activities that involve significant flexion of the knee, No further medical treatment ia available to eliminate the symptoms, If fiaauring occurs, additional arthroacapic surgery may be required. Mr. Moore has a long-standing interest in dance and theater. He has performed in a number of such events over several years. He has planned and continues to plan on a career in this area, Unfortunately, because of the knee injury, he will be impeded in his ability to advance in this career. He will suffer economic loss as a result. III. STATEMENT OF THE PRINCIPAu ISSUES OF uIABIuITY AND DAMAGES A. Issues as to liabilitYI As noted above, Stephens has admitted liability. B. Principal iasues relating to damages I What is the appropriate amount to compensate Ryan Moore for the knee injury which is chronic and permanent and which has adversely impacted on his plan for a career in theater and dance. 3 ... ~ ~ .' F fIE III II' 'r') "t n.. , ..... ~, .'., ,". ' I" _;i ',1. I ~':'I ''1.1, "'I: "," /-'I';:~'g 1." '~. . 'I, I~:... ., .11.. ,H , . - ,Ii .. I , II" .. I , k .. I. , ., -4 ;-'f r ~- ~ ~ ~ .. 0 m E i 'Q i .. t ~ t~ . .. ~ '" ::> 0 .. ill f) _~ ~ Q, ~ ~ ~, ~ '" << x ~ ~' III .# , , , ,.I r , fI 9, On elnh ooolslon, Plllntlff's oounslllndlolted thlt he would shortly bl providing I settlement demlnd. 10. To dlStlS, no settlement demand has been reoelved. 11, In light of this epparent slalemate, Defendant Washington & Dowling served Interrogatories and Requests for Production of Doouments on Plelntlffs, on August 7, 1996, A oopy of thosa doouments are appended herato os Exhibits" A" nnd "B," 12. On SlIptember 1 B, 1995, the undersigned oounsel wrote to Plaintiffs' counsal and asked whether Plaintiffs would soon be responding to the above-mentioned dlsoovery requests. 13, On October 1 B, 1996, the undersigned counsel egeln wrote to PllIintlffa' counsel end asked for the dlsoovery rasponses; end Indlcatad that Dafendent Washington and Dowling would be tiling e Motion to Compel Discovery It the responses were not received by October 26, 1996, 14. Shortly thereafter, Plaintiffs' counsel's pnralegal telephoned the undersigned counsel and Indloated thet the discovery rasponses would be provided by October 25, 1995. 15. October 25, 1995 has come and gone and the discovery responses hava not been recalved. 16. On October 27, 1995, tha undersigned counsel received a letter from Plaintiff's counsel, which letter Indicated that ha hoped to ba able to serve tha dlsoovery rasponses In the "next few weeks," . , ~ . el:o.) I title, and .dal:e, (b) il:. sUbject matter, (0 ) it. author's identity, (d) its addressee's identity, (e) its present location, and (f) its custodian's identity, (3 ) An oral communication I (a) its date, (b) the place where it occurred, (0) its aubetance, (d) the identity of the penon who made I:he communication, (e) the identify of each peraon to whom suoh communication was made, and (f) the identity of each person who was present when such communication wae made, (4) ~ corporate entity I (a) its full corporate name, (b) its date and place of incorporation, if known, and (c) its pr~ent address and telephone number, (5) Any other context I a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, and the identif ication of relevant people, entities, and documents. -Incident- means the occurrence that forms the basis of a oause of action or claim for relief set forth in the complaint or similar pleading. 10. Demon.trative evidence, If you know of the existence of any photograph., motion pictures, video recordings, maps, diagrlSms, or modellS relevant to the incident, statel (a) The nature or type of such item, (b) 'rhe date when such item was made, (c) The identity of the person that prepared or made each item/ and (d) The subject that each item represents or portrays. - 0, c. S, I. No, 110 15, look., ma;alin.., ItC. If you intend to use any book, magazine, or other .uo~ writing at trial, st~tel (al The name of the writing, (b) 'I'he author of the writing/ (c) The publisher of the writing/ (d) The date of publication of the writing, and (e) The identity of the custodian of the writing. - 1/ . 'I D.C.S.I. No. 115 . ' ' , , " . ,....-1 . magnetically recorded matter of any kind or character, however produced or reproduoed, and any other matter concerning the recording of data or information upon any tangible thing by any means, including, but not limited to, the original and any non- identical copy of any of the following (regardless of however or by whomever prepared, produced or reproduced) I books, reloords, reports, memoranda, notes, letters, speeches, telegrams, diaries, calendar or diary entries, schedules, maps, graphics, contracts, appraisals, studies, analyses, summaries, instructions, photographs, films, surveys, messages, correspondence, letters, tables, draWings, and inclUding preliminary versions, drafts or revisions of any of the foregoing, as well as all other documents defined in Rule 4005, DOCUMENTS TO HI PRODUCED 1. All medical and diagnostic reports concerning injuries sustained in the accident upon which this action is based. 2, All receipts, invoices, bills, cancelled checks, insurance forms, medical plans and other documents, however denominated or titled, which refer, .!elete or otherwise pertain to charges for medical treatment or diagnostic studies incurred due to th~ accident upon which this action is based, 3. All correspondence with hospital$, physicians, therapists or others who have treated the injuries sustained in the accident upon which this action is based. .' , , ' . , .u \ 'If/" ' . 4. All photograph., diagram., plans, drawing. or othar graphio represlSntations ot the .dlSne ot the alleged accident, any object. at the IScene or any injurielS sutfered alS a result of the alleged accident. 5. Entire contents of. any invelStigative tile concerning the alleged accident and any other documents generated or received by Plaintiffs counselor their attorneys through investigation of the claims alleged against Deftlndant by Plaintiffs excluding only references by Plaintiffs or their representatives to mental impressions, conclusions or opinions respecting the value or merit of any claim or defense or respecting strategy or tactics, and confidential attorney-client communications, 6. All statements which are discoverable under the Pennsylvania Rules of Civil Procedure and which have been made by Plaintiffs, Defendant or any witnesses, including without limitat ion any written statements, tl'anscriptions or recorded interviews and summaries of oral statemants. 7. All documents containing the names or addresses or other information concernina.or conveyed by any individuals contacted ~s potential witnesses, e. Copies of all reports of, and correspondence with, experts who are expected to testify at trial. 9. All other documents of whatever kind of description upon which Plaintiffs, or their attorneys intend to rely or may rely in -3- McNItI!:Il, WAI.I.ACIE Il< NUAlcl< hlQ "!I'jJT I Tnl I'f III I), .').11 It... UM,AItUU"O, PI\ "100 .' '.. ." ."~ !.:l,j :rot , ., J,..:.,.. r- nt ,"-I' m $4 " ..- ~_., ~t'r-r"....."---.-" ;.:c...J"~'.~;-.~~. '. '=-~~r.=--~~o:.u;.:tl1:-''';U!.';;t"P-f;t.~tu.~..n::.- --=-...~_.._...~:~_~.=~r=-:.:t'"..::~_._--=:::-.;:r..~::.:=::';:'_=r._ _n _...._.. . . ~ 8 ~~ '" ~ 0 .. E ~l !Z .. ~ .. 0 . oj ~ 0 a ~ '" , 0 '" VI . ~ z a " . ~ " x ... '~~.-- .- -vs- Washington and Powling Contractors, Inc. ~'ayette Contractors, Inc. In the Court of Common PLea of cumberland County, Pennnsylvania No. '14-4531 Civil 'I'ol'ln Complaint in civil Action I.aw and Not ice Ryan M.Moore end Carol a. Moore R. ThomBs Klino, Hhoriff who being duly sworn according to law, saye he made diligent scorch and inquiry for one of the within nBmed defendants to witl Washington and Powling Contractors, Inc., but was unable to loco te them in his bail iw ick. Illl there fore depu tized the shed f f of York County to serve the within Complaint in civil Action Law and Notice according to law. YOllK COUN'!'Y Rf:;'!'URNI And now August 22, 1'1'14 at 1.2140 o'clock P.M. served the within Compldint in Civil Action upon Washington and Dowling Contractors, Inc., at York County Court Ilouse, 29 East Market street, York, PA 17401 by handing to Gwendolyn A. Moore, Secretary a true and attested copy of the original Complaint Bnd made known to her the contents thereof. 60 answersl Kenneth L. Markel Sheriff York County Sheriff return is hereto attached. R. Thomas Kline, Sheriff who being duly sworn according to law, says he amde diligent search and inquiry for the within named defendant to witl Fayetteville Contractors, Inc., but was unable to locate them in his bailiwick. lie therefore deputized the Sheriff of Franklin County, to serve the within Complaint in civil Action Law and Notice according to law. FRANKLIN COUNTY RETURN I See attached return from Franklin County So answerSI Ronald J. Amon, Deputy Sheriff So answers I " ......--;".j, t;({'.!-', ". ..,-' / " R. Thomas 'Kline, Sheriff Sheriff's CoStSI Docketing Surcharge Out of County York County Franklin County 18.00 4.00 10.00 16.00 18.76 $ 66.76 pd. by atty 8-26-94 Sworn and Subscribed To Before Me 1994, '~II' OilY of (,i")'.,,,. A. O. ',-. /1.'1" (, h,,, ':" . lQf'1 Prothonotary 'l"his , In The Court or C.::mmOM Fla::s of C:.Jt'.:~~~It'I::!nd C::u:"j'''Y, Pannsyl'lc::nlo . , .... .... '-'" ".",. "~"""f.""""""'"" '.' , , "'_'",.~.' .., . R~yn M. Moore Iln<1 Cill"O) li. MOOI~l1 'IS. Watlhington and llowI in\J, Contrncton3, Inc. ;-{o. 1.14 -4~ H C.wil 'l'lill;lll-_._--. :!1._ ;.row, l'111911at- t~. 1'llJA ~!/---. I. 5;--:-~'F OP C~";,[3:ER!..A;ro COt.~"rY, PA.., <!o h=by dcpu= lh.a Sb.c:J.5 ai Vn,"1I CIlWlI'f 10 c:m:uu :!1U W:!:, this ~UQt!.a11 bcbi :=d.= u :he rctlucn ::::d tUX of thl: ?t:u:::a. ;r; ;'.1 c' ,,, :g t, ~ - ,. t;.) ".J - .' . WHf 0. D::l_) r- f~ - '_I ~ ., .jf .7'......~~.J,,~ 7 SllUl.4 gl S== Ii C ~UlU7. PIl. Affida.vit or Sern~ ;.row, August 22, ~9 94 . :t 12140 o':.!ea 'p ~[. Ic:".-d thl: ~t!:!n Complai~..Ln civil Action '~F'<'ll Wilnh Lng ton I\J1d frnlLng Cc)IlI.rol~'I'.or, IrlC'. _. ~~ York County Court 'louse, 20 E. Market Strl;'<lt, York p~ J,],401 Oybndl:1ito Gwendolyn A. Moore Secretary ___ I. True and Att.estL>d Copy C':Pr ct the or.~.:ml Compla int ~ ,. :&lie! ~ bown :.0 flur ~ :c~tcel.l :hc~i. SoD.n$W=, HOTAIIIAL stIlL WALLIO VI. nHIN~, Nolouy rubllc 'I'eflo. Volll cour,ty. P.nn.yl,.nl. My Co<milllcn II>pIt.. MI1,~\ 2&, I~?~ ~~~~~.~~~... Slu::'.5 0/ vomr-" Co....tr. h. SWOr:1 :&lid fJbc-J:d be#'lfe , =1: ~,2..L 6y o{ ////4fl'.)I--..J 11f1lJ. ;// J:4:!:~ 19ff COSTS SE..1.....'CZ ~m.zAG;;: ..UrrDA"v"IT .s 1 .00 2.00 -_.-~---. S 1 .00 SHERIFF'S DEPARTMENT 167 LINCOLN WAY EAST, CHAMlJEI16flUIlCl, I'ENN6YL VANIA 1'I~01 (717) 2Gl.3fl17 1lI(/.1 1'] I ~ SHERIFF SERVICE IINti Jltlll; II0N!i' 011 hHIVI,:I' III "I II l(;1' HH "11111"" IVIIII '" 'lillI'''' PROCESS RECEIPT, nnd AFFIOAVIT OF RETURN h"IIIIIV fl" 11"1,,,,111'" ""V' """'" l"I,~INIII'1!i1 ;> IoHHII NIIMIII II J!YAli t. CAlM. MOOIU; ~I,-I/~i]l :, 1111' NIl~NII!lI ,I I YI'I III Willi 1/11 IoIMI'I All'll ll'AJil!INGTOJ'l b J)OWI.lNli ClINTHACTlIll~, INC, b FAYI':T'I'EVll.l.l-: ClIN'I'IIACT lIUi NOTlCI, b COM1'I.AINT SERVE {" ~'~""I.IJt If'jIlI"IIH,i\l I .N'Mjl ' , Id' 1.(11" Ij I I, I.' f h',1I I 111,01 'I HII'lultjlll l'tH 11'1111) I. IHI 11 VII II '" '.At 111111111 hLlIlI . l'AYl':TTEV I 1.1.1': ClINTIIACTlIHB, Ii'a:. 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III bo "'''lIodl S_~~IIElll,MW COUNTY BIlEIUFF, I COUIlT 1l0U:5E BljUAIlE, CAIlU:51,E, "A 1701]. _ SPACE BELOW FOR 5E OF SHERIFF ONLY - 00 NOT WRITE BELOW THIS LINE li-I"~~k-'~~JWllflJ\J(llItl;Ujl;I".(;'--;'"II; -W;"I;"' " "5IaN~I:. I /1..,111', I'." '! FC~ IkIlIJ! r I)'Gt.j~ oII1IJIIIII; J I".'" I ).11..' Ii'.., "11/1""' -- . -" -j'" i 'I;;'.';II;;~;I 10'''''';;; .111111 ,. "";'"11111"1111 ""'''''''','''"1 "IJ"", , " '_(0,-,-,-- \.._\. .'" IJC ~'~I ~-16-9" 9-16-9'j,,_ 1I1lhllluhy CERllFY lIflllAETURN Ih.tI 1p<j1ol'.. IiI I' '1.111'," t\. ,r (i I,d" (1""011 "YlIll' ~.nl e..1"VI... inl i,IlIJWI11I1 li"llldll-.', II I1"YI' 1')I'Cllh'l/iUi lilll)..,.,.11 111 "lhIllHH~ti".lhlt wnll)' CiI'"plilUlI dP'",IH'd,;r 'I I'i'" ."1,,,,1 , "111 ..II', . , ql'lI .IIlIlIl,..1t: , ..lilli' ,ujd/L'~,', h1I')WII ,II)I)YI' 'II 'Hllh.. 1I1111'vllhhlll.,)tI1l"UlY. cmJlUllllllllI. uk. 1IIIht Illhlll't,h Itlhl,.lt'" 111'1, IV i', ".1'''11,,101.1 TIlUE Ufllt AT rE51EI> CO,'Y 1I11""'JI .U. IJ"~}lt'JfllhV l;urlllV 1I1I111.tJhlln iI NOT FOUND Ii> , .1',.., 1.1'); "n..1 II I. (, , .,1" 1Iu, IIl'hYldll.d I:QOlPdl1y, ':il'lll)fldlilll Pit" HillllPd i11)t)l,iI~. (~il'll /l~llllllkti Ilnlowl 10 Numn IIlId IIIlul)lllllllllltlulII tW' 11..11 (I' nd ~"l'IV,'ll .Ii', i,"I I' ~I "p,'t,,,,' .,,,,I.d!o' oI'p' .''''101'', I" '"'nll",, "" ,,.,,,'. 011 tI". ," 1,''',l.11'1 ~ ",.,,011 1,1." II .... .Q),JiNN Ill'A!\I)()l\Vl' ,m. 'l'l\EA~UII~~ & A~:5l~TAN'l' SECllE'l'AIIY""'"'' , ' ;to Adllrl/lHi 1)1 whom IlUlVlld Inllllph!lL' 'lllly II lilt!, II III 11.111' I', :", .d".l'II'jl'I'I'lllt III D. Aplltlml'nl Nn, .1' IJoIh' 'll ~:."~~ " ;';J rlllll' CIIV, Bdln. IWIJ Bllll!! 111111 I." CodL'l ij/I6/91. I" 15 r.:- ~1 -, ~, " fl. riJ:MPTflI Do'. I Mil., __ " ij/16 I/. ~.. AdvlIncn Cntilt\ Oup. In" I OullI I V~ ;lfJ ~i"'vlL l' e'I',!!, u__ $50,00 ao IlfM~m<!l ,1l2flO 11/.00 1.11111'1 Dop, 1111.1 DI1I11 I Milo" jlJeP. Int., Dolo [.III N,,1.11 y C.., I 1;11 MiII'''\I'' Of PlJIilnlllt 2 . 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FC5D ','I}'Jl I' .. ~. ,. j SHERIFF'S DEPARTMENT 1 Iii L1NCotN WAY IMil, CIIAMllIlliilllJllll SHEIlIFl: SEIMcr PIlOCESS IlECEIPT, UI1<1 /lrnO/lVII or llEllJllN !'I/lINIII' /ti/ 1'1 NNfiYI VANIA 11:'111 (/11) ;>1; I :11111 IlK47 1'312 [INI)' lUll; III, INll tllll ! ,I IIVH" III 1'11111:1 hI! f1h'OMI IYllU III 11/11I1 It'IIII)I)' 11011111 dl'lilll1 .Ill)" Hllil'" I III IIi t "illl,lllI I. II.YAN , CARll/. WJOR~ IJI.-I.HI :IIIIIINI)~Nlllil '11'1,11 Whll\lliCIIMI'IAINI WAfllllNOTON " 11IlWI,lt/l; CllNl'IIIIC'I'IlIlH, INC. ~ l'AVI,'l"n;Vll,LI'. ClltITIlAt:l' lllll NOl'lt:,.;" 1)l)HI'I.A1NT SERVE {"N.I\M1llllfiIU\iIlI'/li' 1.'1,.'" "I, 1,1 .1.11 'l"IIIl'~IIII'I"'tl,l,I'I'I".illl"dff\'ltjll"II"',II' . I'AVll'rrIWlI.I.I'; CUN'I'IIM:'l'llIIH, INC. h "IHIIII'dlll,II'II,tldj'/'I",lr'"II,. ',I, I. 1:,1 1,10 ,IIIII/U'I,,,I"I AT 3I8~ L1N1101.N WAY liAH'l', ~AVI'.T'fI\VlI.LI';, I'll IlU2 , INUICAIIIJNIHHIM h11lV1l1 Illllt>H,~. 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II I I I" " 1t.~;ll ' l'h' 1\ 1 "~I How J 9 u AN '9~ Ii , 'I" ' II IIJ~ ur Jill 1 'IIIQW I.~Y llUfIUu,.M,1) c'<, ~TY ~l~H';n.V^HIA " i' , II " I" , , , " , I, " I " " 1 "i :' " " 1 ,I 'I " I->I-r ~ " it ~ " ~ ~ '\' , \ " " ,\' '. ~ --- " ~ " MaNe:Il:B, WALLACe;; III NURICI< 100 "'/I" OT"~n ,. o. 11011 Ilti " HA""'UU"O. M 17100 ... I ... WILLIAM P. OOUGLAS, ESQUllm ATTY,l.D,37926 DOUGLAS, DOUGLAS &: DOUGL.AS 27 WEST HIGH smEET P.O,130X 261 CARLISLE, PA. 17013 717-243-1790 ATTOI{NHY FOI{ DEFENDANT, DANlEL D, STEPHENS, t/d/b/n DANIEL. D, STEPHENS GBNERAL CONTRACTING V. IN THE COURT OF COMMON PLEAS OF CUMIHlRLANDCOUNTY, PA. I CIVIL ACTION - L.AW RY AN M, MOORE I\nd CAROL. G. MOORE , , WASHINGTON AND DOWLING I NO, 94.4531 CIVIL TERM CONTRACTORS, INC., nnd FAYETTEVILLE CONTRACTORS,: INC. V. DANIEL D, STEPHENS, tldlblll DANIEL D. STEPHENS GENERAL CONTRACTING : JURY TI{IAL DEMANDED ADDITIONAL DEFENDANT, DANIEL D, STEPHENS. t/d/b/ll DANIEL 0. STEPHENS GENERAL CONTRACTING'S. ANSWER 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted, 5. Admitted, 6. Admitted. 7. Admitted, " ,. ~ , complaint i. attaohed heuto, without adoption and for the BAke of referenoe only, as F.Xhibit A. 3. Defondant Washington and Oowling filed its Answer to the complaint and New Matter on Ootober 14, 19941 Oefendant Fayetteville filed its Anawer to the complaint and New Matter on Ootober 27, 1994. copies of those Answers and New Matter are inoorporated by referenoe as though fully set forth herein and are attaohed hereto as Exhibit B. 4. On ootober 14, 1994, Oefendants obtain a Writ of Summons to join Additional Oefendant Stephens as an Additional Oefendant. 5. Acoording to Plaintiffs' Complaint, on or about November 9, 1992, Plaintiff, who was 16 years old at the time, was operating a 1992 Alfa Romeo sports oar in New cumberland, cumberland county, Pennsylvania and lost oontrol of the vehiole as a result of alt allegedly dangerous, unsafe and slippery oondition on the roadway. 6. In the Complaint, Plaintiffs allege that Oefendant Washington and Dowling were neg ligent, oare less and/ or reokless for allowing hydrauLic fluid or some other slippery substance to leak from one of J.ts pieoes of heavy equipment I and that Oefendant Fayetteville is vioariously liable for Oefendant Washington and Oowling's alleged negligence. 7. Oefendants deny that there was any dangerous, unsafe and/or slippery condition on the roadway at or near where Plaintiff Ryan Moore lost control of the sports car and deny any liability whatever for Plaintiffs' alleged injuries and damages. 8. If there was any dangerous, unsafe and/or slippery oondi tion on the roadway as a result of hydraulic fluid or some - 2 - .. '" . other substance that. leaked out of a piaoa of heavy equipment, whioh is specificallY denied, then Additional Oefendant stephens was responsible for the presence of that oondition, because the fluid or substance leaked out of or was expelled from a backhoe or other pieoe of heavy equipment either owned by Additional Oefendant stephens or leased by Additional Dofondant stephens from persons who are not parties to this case. 9. At all times material to the incident underlyinq Plaintiffs' Complaint, Additional Defendant Stephens acted individually, d/b/a Oaniel stephens General contracting, and/or through his/its agents, servants and employees acting within the soope of their agency, service and employment. 10. Neither Oefendant Washington and DOWling Contractors nor Defendant Fayetteville is responsible for the negligent, careless and/or reckless acts of Additional Defendant stephens, because Additional Oefendant stephens was an independent subcontractor of the other Oefendants, for reasons which include but are not limited to the followingl a. Additional Oefendant stephens entered into a written subcontract with Oefendant Washington and Oowling on October 17, 1992 (a copy of that contract is attached hereto as Exhibit C) I b. In connection with that subcontract, Additional Defendant Stephens was obligated to -3- .' .. .. . provide hill own equipment and ompLoyeell for performing tho ag~eud-to job, o. Stophens was paid at a daily rate for workers and equipmont and WIlS obliqated to take oaro of his oWn insurance and taxation OOnoerns and to take co~o of his own employees' payroll mattorsl and d. Additional Defendant Stephens was not under the direct control of Oefendant Washington and Dowling, but rather controlled his own work and his own employees' work, and o. stephens was engaged i.n the bus iness of supplying independent contracting services. ll. If it is judicially detennined that there was any dangerous, unaafe and/or slippery condition on the roadway as alleged by Plaintiffs in their Complaint, then it is averred that Additional Oefendant stephens is solely responsible for the existence of that condition, the abatement of that condition, and the posting of any warnings, if feasible, between the time the oondition occurred and the time it was abated. 12. If it is judicially deter.mined that a dangerous, unsafo and/or slippery condition existed on the roadway as alleged in the Complaint, and that the existence of the condition caused Plaintiffs to suffer any injuries or damages, then it is averred that Additional Oefendant stephens is solely liable to Plaintiffs for any and all injuries or damages allegedly suffered by -4- , . plaintitrs, or is JointLy and Boverally liablo with Detendants WllIhinqton and OOlfll.nq and/or ~'ayettov i no Contraotors, or is liable over to Oetendants Washington and Oowling and/or Fayetteville Contraotors for indclIlnLf ication, oontribution or both. WHEREFORE, Outendants Waah ington llnd Pow ling Contraotors, Ino. and Fayetteville Contractors, Inc. respoatfully request that it it is determined that Plaintiffa Ilrll ontitlod to reoovery, that judqment be enter.ed sololy against Additional Defendant Daniel O. stephens d/b/a Daniel D. Stophens General contracting, or others. In the alternative, if it is detormined that Plaintiffs are entitled to recovery against Defendant Washington and Oowling or Oefendant FayetteviLLe, which is specifically denied, then Oetendants Washington and Dowling contractors, Inc. and Fayetteville contractors, Inc. rospectfully request that judgment be entered against Additional Oefendnnt Daniel O. Stephens d/b/a Oaniel o. Stephens General contracting, or others, f.or joint and several liability, or for contribution, indemnification or both. DATED I ~ I (,/~ {' Respectfully submitted, 'rHOMAS, THOMAS & IIA~'ER BY'ro)i~N~l~~ Attorneys for Oefendants Washington and Oowling Contractors, Inc. and FayettevilLe contractors, Inc. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 -5- ','" '.': "~j \,IIA7 ICI(CI"'F~"II-L '.I,ICI, k~.' ',=,'.;. 1'1' ll,'.. ..,?'~I: .. . . l ~ foliE , . = RYAN M, MOO~~ and C:ARC~, a, MOOI~m, JillaLntHh 'I, IN TilE COURT OF COMMCN "l..EAS COMllltlUJulP comlTV. PENNSYLVANIA qq .. 4S''y I c.,'v,l T. rrYl .. NO, CXVIL 199. ~C;::j ,'r.: CXVIL ACt'toN . 1.J\W ~~ = ";'3 i ,7URY '!"RIAL OE:MANCED '. "! .. ~ ~~ ~!:l ._~ .... i1J '" ." WASUINOTOH AND OOWLINa CONTRACTORS, INC, .nd FAYETn:VILLE CONTAAC. TORS, INC" Oe fendant. NOTICE Q.. ;,.. ~u hlllve bean lIued in. COUI:~, tf..Yil\L.wluu.SQ.J1.oblll1._.ASaj,ll.lI.l;. .... ~\;M--C J.rnL.u,L~h ~lj the followlna paoeEl. 'IOU must t.1ke !lction '-',,- ~~~ :~~ :i!; ~~ ~!m ]! =r~ !~~'r t; ~ ~ ~~~v:~~ ~rl~~er~n~rtt~~~tt l.~ :~~~; ~ ~r ~y U~j~~= ~..;:: . 'L..f.QnJ1.a~~i~~~ ~~U~u{t'~ ~';~~d that if 'IOU fail to do lie th, case III C d 0 a ~ <b ~~::~o~:f~~:m;~::~!:!~~r!~e ~~t~~~H~:~~~~~- !~r~~~~~~:r or crODertv or other ri91l\;JLJ.m~"'.tJ\nt-.t.o you, you SHQULD TAI(E THIS PAP!l:R TO 'tOUR LAWYER hUNCE. IF YOU 00 NOT HAVE A ~~WY~R OR CANNOT A~FORD ONE. GO TO OR TEL~HONE Tiji OFPICE SET r,CRTH BELOW TO FI:-/D OUT Wtn;HF: YOU r'1\l'j GFT r.r::G1~r~ iiELP, C..' ':1 , CUMDEHLAND COUNT~ L~WYER REFERRAL SERVICE COURT ADMINISTRATOR ~~MBERLANP COUNTY COURTHOUSE C~LISLE, p~ l70l3 , , "~ " '. AVISO " '-, ~, ....; ,-$_ , "'>>. 9.. -J.:"" USTED HA SIDO DEMANOADO/A en corte, 5i uMted deaea defenderoe de laG demondao que De p~CDcntan moo adclancc en los stguientss paginaR, debs tomsr Bccion dentro de :oa proximaD veinte (~O) dias deopues de le notificacion de eocn Pemanda y Aviso radicando personalmante 0 por medio de un abcgado unlll comparftcenoia escrito y ~Ddicando en 10 Corte por escrico SUll detensas de, y ob1eccionas R, llll. demandae presentadas aqui en oontrlll euya, Se 1e BdVift~te de que >>i unted fall~ de tamar acoion como .e deBcribe antariormente, 81 caRO puede proceder Bi~ usted y un tallo por cualquier Buma de dinero reolnmada en la 'iRUE COpy FROM RECORD 1.1 T d~ttmony wh~rOQt, I hnro unto 8&1 mv tIaod Dod Ih seal Of said Gourt at Cdrfllle PI. '1'"'$ .(h , ~aa' at , 19 <ftf ,I c; ._...;.:....? ProthonntlllF'l ':'!I(~ "",I I ~ I AIi ICI(CI'I'F~'I(~. I.I\J(I\ Ii'~,' I~I~~ 1';'17"-7'~~".' F,:GE' is' 0' "',nr'lylvllniA, lInd having its pdnaipAl place of budn... It 31B5 Linooln WAY aast, ~ayatt.ville, PA 17222. Q, PA~~ual ~aek9round. 5. 'rho moter vehicle \:01111iol\ thAt is the lIubjeat mattiI:' ot this ClomplAilll: Occurred on 'rhurllday, Novllmbu 19, 199~ Ilt 011:' about 13113 p,m. on 15th Rtrllllt, New Cllmbl!lrhnd, Cumberland County, Pel\n8ylv~ni~, approxlmately one hundred (1001 feat eouth of Simpllon Ferry Road in or near the area ct 732 15th Street. 6. Prior to November 19, 1~92 Oefendant, Fayetteville Cnnr.rIIr:r.nYII, Tnc.. entered into C<lntraCl: t-Io, 'JanS7 with the Pannlylvania Llepartmenl;. of Tnl/lllpor\:lltion to ccnlltruct "ourb cute" in IIllU around the SimplJon Ferry Road areA, New cumberland, Cumbarlan~ County. pennsylvania. 7. Prlor to Noven~er 19, 199~ Defendant, Fay~tteville ContrActorD, Inc., untered into a sub-contract under PennOOT COntract No. 0021B? with Defendant, Waahington And Powling Contractors, Inc., to construct "ourb cuts" ln IInd around the Simpllon Ferry Road area, Borough of Nftw Cumberland, Cumberland County, Pennsylvania. 8. en OJ: about Novembel" 10, 19112 Dofcndllllt, Waehil19tol1 and Dowling Contractors, Inc., wile constructing "curb cute" in the area oe Simpson Ferry Road And 15th Street, New cumberland, Cumberland County, Pennsylvania pursuant to said sub-contract. . 2 - AUG :i 0 1994 ':'<.Ct5 '~.l 1111~0 I C I(Ct"'F~~ Ji:L 1,IIIer, Ir~: , 'I:I:~< 1717....7.~1!..: . F~ 7 9, On O~ about Novamper 18, 199~ ~e~anaant, Wa.h1n9ton Ind DowlLni Contraators, Inc" parked a piece of equipment which it owned and/or for which it waa re.~on.1ble along the ourb on 15th Street in the area in franc of or noar 732 15th street, New cumberland, Penneylvenia, 10, On or about Novemper 1U or 1~, 199~ the aforementioned equipment for which Oefendant, We.hington and DOWling Contrac- tors, Ine" was responiible, leaked hydreu:ic fluid or other oily eubatence onto the road surfeco ot 15th Street in front of or near '132 15th Street, near IHmpoon .Ferry noad, New Cumborlalld, PenneyLvonia, or the lIud cOJ:'porat ion' Ii workmen otherwias callA",rt or aLlowed such oily lIupstonce to get on the roadway. 11. The lIpilled hydraulic fluiu or other cily lIubstanoe J:'omained on the road surfaoe Bnd spread over the travel :anen into the center of the road, 12. On November 19, 1992 ~laintiff, CBrol 0, Moore. wa. the owner of a 1992 Alfo Romeo with vehicle identification number 44096861601, 13, On November 19, 1992 Plainti:f, Ryan M, ;.loora, wal;l the operator of the 1992 Alfa Romeo with vehicle ~dentification number 440958551601, 14. On November 19, 1992 at or about 5113 p.m.. Plaintiff, Ryan M. Moore, WaD operating the afore.aid Alfa Romeo and travel- ing wel;ll;iJuur.d vii 15th Street., lIew C'Jmberland, Cumberland county, . 3 . llUt.:.\ ' l'f ~t1t.' " 1\" ':~,'(l; 'C4 ~414S 1[1(Cf.I.Fr'-I~ ~IIIC" "'~ ,. rl::< 1'7t 7-"'7~e-:' FAG!! 6' PlllnnlSylvan~l, approllimlltoly OM hUtldrud (10Q) fllltt south ot: Simp.on Fe~~y Road and approaching the aroll of 73~ 15th Street, 15, Prior to the oolliB~on ~laintiff, Ryan M. Moore, wa. operatinlJ hh vlilhh:lu with ~hlil hudlighto on, WAIl ol':erating the vehicle at a IIpeed that wao Date tor conditionll, Ilnd Willi ux.rob- ing due cllre for hie own uatoty and that ~t other ulere of the roadway, 16, At ~he time of the ool11l:1iol\, the roadway was Hlu- minatod by Btreet lightll, 17. At the t.1ms of the collilUOr. the road Burtace wa. wet from rain lIarUer ir> th... ,jill', but'. WAll 11010 olipPllry exc"pt for t.hlll araa where tho hydr~ulio fluid or ocher oily ouhotanoB Wftl\ allowed to Bpill onto end remain cn the road liurface in the atore.aid area. 18, The olippory coat~ng wae c~ueed by tho oaid hydraulic fluid Qr other oily BubBtonco IIpillod on tho road Burface a. let forth in Paragraph 10 above, 19, All Pleintiff, Ryan M. Moore, approached the r.end traveling weatbound on 15th Street toward Bimpaon Ferry Road, New cumberland. ho caw no evidenoe of hydraulic fluid or other .li.ppery 8ubstance on the road our face and had no reaaon to 8xpect th&t the ro&d would suddenly and unexpectedly become lli.ppory, 20, When ~lilintiff, Ryan M. Moore'a vehicle traveled onto the area of the spilled hydrauli.c fluid or other olippery Bub- . 4 - AUt; .901994 ':s. ~I: ",,.l 141eo. ICIW'I"F"-II:L I.I\IC'~ Ir~,' , I.... _,_, 'FI':~ 1717 --7',e-,' . Fr.GE , G Itanet, h. way unablt, dqSPLt. the exeraiD' of re.sonable oar. to mainta1n control of thq vqhiole sol.ly ~. . r..ult of the hy~rau11Q flu~d or other slippery lubBt.anoe on the roadway. the rear of the vehicle elid toward the west aide curb. De.pit. ro..onable errorts, Plaintiff, Ryen M. Moor., could not rogain oontrol of the vehiole and the front of the AlEa Romeo impaoted with 0. Pennsylvanh [lower I> l..ight CompllllY pole, lIpUl1 Around in . clock-wille dirtlction and c"mfJ to not flldng 1n I.UI Illl.acllrly direction on the WOllt sidewaLk of 15th Street, 2l. At a re.ult of the eo:lis~on, the vehicle operated by Plaintiff, Ryan M Moore, and owned I;y 1?1ilintHf, CArol G. Moou, was extensively damaged and was ::cwlld frem thl!l IOJcl!lnl! of ths collidon, 22. At all time. prior to and at tho time of the coLli.ion Plaintiff, ~yan M. Moore, wae wearing ~ seat belt. 23. As a reault of the collie~or., Plair-tiff, Ryan M. Moore, Buttered physical injurieB including I (0) Contusion ot the infrap4tellar tendon and the inferior pole of the patella of the luft knee when hi, Imee hit the dallhbo~rd area of tho vehicle, (b) Strained rhombOids and infll1mmatJ.oll ef the .oft tiBBues ben~ath the Baapula ot th~ right ehoulder, (0) Neck and back palnl (d) A cut to the lower liPI (e) A brush burn On his nooe, and AUG "," '~94 . 5 . . ':'H~ ",,4 1411!C ICIW'I'f~~":L lNIC/\ Ir~: 'FI~>< l?l7--7GI!-i' - - ,...., . F~, 10.., '1-., , (tl ^ .eat harno.. brui.e of hi. ah..t. 24. A. a re.ult of the oolliuion Plaintiff, Ry.n M. Moore, waf treated and evaluated uy Or. Riohard J, ho~l. 25. AI a r..ult of injuriu~ incurred in the oollision Plaintitf, Ryan M, Moore, waD foroed to atop hi, athletic weight- lHt~,ng prcgram tor "Iveral monthUI "top playing tho violin in .ohool or9an~zationl tor two to three monthe, and stop playing on tho high lichool .oceer team tor the rlst of the oo.uon, 26. Plaintiff. Ryan M. Moore, uontinuBu to ~xpuriunce thrObbing pain and dilloomtort ~n h~1l kneo Illl a rrnult 0: infra- patellar tendinitis lutfarad .1 a re.ult of the colliBi~n, 27. AI a result of the colli"ion, Vlaintiff, Ryan M. Moor., hae inourred medical expenee" to date in axcI.s of $290 and will incur additional medical expenles in tho future. 28. Ae a rODult of the collision, Plaintiff, Ryan M, Moore, has endured groat pain and SUffering and will in the futuro endurl.l much pain and euffering &e It result of hi. injurie.. 29. Ae a reeult of the colli"ion, Plaintiff, Ryan M. Moor., has eUffered a 101. of life's pleasures and will in the future suffer a further loea of life's pleasures due to his injuriea. 30. AD a result of the collision, Plaintiff, Ryan M. Moore, hae Buftered, and in the future will Iluffer embarras.ment and humiliation. .6. AUa 3("1!,1~" , , ':>;.,.~€ ";,4 I~ lee ,._,-_. ICIW'/"F~-li:t. lI\ICk "'~.. FI::< 17 17--7'?e-;' ~., -, , Fr-GE II COUN'r r - NEap9ENCE: iyan M. MQP~' V, W&QQingtOD-lnd Oowlinn Co~tr&atqrl. Inc. U. ParBllrilphg 1 throul/h 30 above Ill:'e inco~oratad hu,.in by ~.e.~.noe aM if Ullt forth in full. 32. At 1111 tlmell relevllllt hereto, Dnfendl1nt:, WIIBh1ngtcn ami Dowling contracroors, rnc.. nctad through itn agentB, servant. and/or emplc:JYus who at: all tlmelJ wl;lre Boeing within the (lOU~18 and scope at thair employml;lnt, H, Ae and b/ltore the tlrr.ll of tho Gollillion, tJl!lhndant, Washington and Cowling Contractor_,. Inc" wall negligent, carale.. and/or reckLess in that itl (a) falled to use reaBonable skilL llnd oara to properly maintain ita equipm~nt in workl~g order and I1D a relult hydraulic fLuid or other oily Bubntanoee were allcwed and permitted to spill onto the public roadway, .peciflcally in the area of 732 15th Street, New Cumberland, PA, thereby oreating a dangerous and hazar- dous condition for ulJers ot the roadwaYI lb) ne91i9~ntly fnlled to clean-up or remove the hyaraulic fluid or other oily substance spilled or a'polLted en the public ~oad in some other manner by the defBctive equipment and for which the ~aid corpora- tion ia reeponsible after itl employeel becamo aware that the suustnnce WB~ en tho roadway in the aforesaid arul .7. AUG 301994 I:~..'C~ '~4 141el I 1~ICCt't'F"I(.J. U\ICt, In, FI:)~ 17l7--7~h' F~ (~) Plrktd Qqu~pment alony a publio rOld knowing that oily fl~idB would escape onto r.he public roadway I (d) fl~led to properLy tra1n and supervise itl employe.. who parked tho equipment "long tho roadway, allowed oily lubsr.anceo to escape onto the roedwey, and failed to Ql~.n up the wpill. (e) negligently placed the ~afety and security at the traveling public ae r1sk by allowir.g the epilled hydraulio fluid to L'QmBin on chit read IiIUrfaCQI and (f) failed to 110I:1fy proper lIuthorities about the .pilled hydraulic: fll;~d so that the authorities would go able to take action to remove the dangerouD oondi- ticn. 34, As a direc!: and proximate result of t.he negligence, careleseness, lind/or recklessness of Oefendant, Waehington and DOWling Contractors. 1nc" the aforesaid dangerous condition wae created and Plaintiff incurred the injuria. and damages as set forch in ParagraphB 22 through JO abova. WIIERE1"ORE, I'lni11tiff, Ryan M, Moorl!, demanda judgment al1ainlt Defendant, WIlshington lind Dowling Contrncl:cre, Inc" in an amount in IlXoeaB of ~20.000 togeth~r with interest and costs and in lIxceu of the limits for compUlsory arbitrat ion. . B . All r. I) (\ 1994 , 12 ' ,;G;Cr; '~4 1411:1 . ' 1~I(Ct'I'F~'II:(. lNICN k~" ,FI~~ 1717--7,,15-;' j:AGI! 13 ' ~O~T II . tl~9LlqENC~ Ivan M. Moora v, Fay~ttav1lla Contractora. tna. 315. Paragraphs 1 throuqh 34 are tncorporatod herein by ~eh~enclII . 36. At all ~Qluvant time~, OufQndant, vayuttevLllo Cantrac- tQr~, Inc., wae legaLly respor..ible to ~laintitts eoI.' the negli- gence of Defendant, Washington and OowlLng Contraators, Inc. 37. As a direct and prOXlmate result of the negligence, careleiineai, andieI.' recklessness at Defendant, Washington and Pawling Contr.ctora, Inc., and fo~ Mhich negligence Defendant, Faysttllville Contractors, Itw., \Q reflpOrlllihll!l, 1'lllintifE. Ryan M. Moore, Lncur~ed thu lnjuriefl and damagefl all flet torth in Para. graphs 22 through 30 above. WHEREFORE, Pla~ntift, Ryan M, Moore, demands judgment against Oefendant, Fayetteville Contractors, Inc., in an amount in excess of ~20,OOO together with interest and coscs and in excei. of the limits tor compuLsory arbitration. ~!JN'r I I I Carol G. Moore y. Washinaton and Dcwlinq Contractors. Inc. 3a. Paragraph~ 1 th~ou9h 37 above are incorporated heroin by reference aa if sat for~h in full. 39. On November 19, ~992 ~he 1992 A1Ea Romeo with vehicle identifica~iQn number 1,4095851601 involved in the motor vehicle . 9 . t\\lG ~" 1QQ4 ':'<"c~ 'Q~ I~ 1~;2 , I r I W.tf"'-I f".(. UI I ell I,. ij .. ,FI'~;< 171 ,;,...-71J;1!..;' Fr.t.e 14' qollLlion that: /.11 th. llubj.at Inatoter l'lt th/.. cempla/.nt Will owned by Plalntitt, Carel 0, Moore, .0. On November ~~, 1~92 th. 1992 Alt. nemee With veh/.ale identitication numhe~ .4095861601 involved in the motor vehiole colllBien that ill the Dubjoct matter at this complaint wae l.nllurad by Seato Farm 11111urance company pur/Juant to L'oLicy No, 6681 G~7 F~O J8G in the name at VLaintiff, Carol 0, Mooro. .1. On Novembor 10, 1992 tho torma of Statu Farm InDUranCQ Company Policy No, G6Ul G2'l F20 Jua whioh ineurod tho 1992 Alt. Romeo with vehlole identifioation I\!lmbft~ 44096861601 In the name ot PLaintiff, Carel 0, Moore, rllquirod a doduct1blo payment for properey dAmage in the amount of $600, 42. PlAintiff, Carol O. Moora, paid tho required doduotible ~or the property damage to her vehiole purlluant t.o the terms at State Farm XnsuranclJ Company "oliey Ne, 6/181 627 F20 J6G for damageD to the 1992 ALfu ROInIl<,l which ill the j,jubj IIct Inatter of this complaint, 43, All a direct And proximllte rullult of the neglig'.lncu, careleullnellll, ~nd/or recklellonesll of Defendant, Waohingtan and Powlir.g Cantractars, Inc., plaintiff, Carol G. Maore, incurr.d the property damage tor whieh llhe pllid the $500 deductible. WHS~EFORE, "lllintiff, carol 0, Moore, demand. judgment agninJilt Cllflilndant, WSllhington and Dowling ContrActors, Inc" in the amount of $500. . 10 . AU(; ~ n 1994 /, . RYAN K. KOO"E and CAROL G. MOORE I IN THE COURT OF COMMON PLEAS CUKBERLANO COUN'ry, PENNSYLVANIA Oeflllndants I l I I I I I t I I I NO. 94-4531 CIVIL TERM 1994 plaintiffs v. WASHINGTON ANO DOWLING CONTRACTORS, INC. and FAYETTEVILLE CONTRACTORS, INC. , CIVIL ACTION - LAW JURY TRIAL DEMANOEO lW.iUR TO COlillAlli.T...l1Ii.JL..lmH MATTER AND NOW, Oefendant Washington and Dowling Contractors, Inc. . (hereinafter "Oefendant. Washington and Dowling"), by its attorneys, Thomas, Thomas' Hafer, files this And~Ar with NeW Matter to Plaintiffa' Complaint as followsl 1. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a beliet as to the truth of tho averments contained in Paragraph 1 of the Complaint., and proof thereof is demanded. 2. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 2 of the Complaint, and proof thereof is demanded. 3. Admitted. 4. Denied. After ressonable investigation, Oefendant Washington and Dowling is without knowledge or information sutficient to form a belief as to the truth of the averments contained in Paragraph 4 of the Complaint, and proof thereof is demanded. I ~ 5. Oenied. Arter rea~onable investigation, Oerendant Washington and Oowling is without knowledge or info~mation sUfficient to torm a belief as to the truth of the averments contained in Paragraph 5 ot the Complaint, and proof thereof is demanded. 6. Admitted in part and denied in part. It is admitted that on or about october 2, 1992, Pefendant Fayetteville Contractors entered into Contract number 082157 with the Pennsylvanla Pepartment of Transportation and that the Contract involved the construction of ourb cut ramps on various state routes in, among other places, New cumberland, Pennsylvania. The remainder of the averments in Paragraph 6 of the Complaint .:1re denied as stated. Aftl;ll' reasonable investigation, Oefendant Washington and Oowling is ~ithout knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 6 of the complaint, and proof thereof is demanded. 7. Admitted in part and denied in part. It is admitted that, on or about October 6, 1992, Oefendant Washington and Oowling entered into a contract with Oefendant Fayetteville Contractors, Inc. to construct curb cuts in New Cumberland, Pennsylvania. The remainder of the averments in Paragraph 7 of the Complaint are denied as stated. Arter reasonable investigation, Oefendant Washington and Oowling is without knowLedge or information sufficient to form a belief as to the truth at the averments contained in Paragraph 'I of the Complaint, and proof thereof is demanded. 2 , jl f .~ ....... . .. WHEREFORE, Oerendant Washinqton and Dowling re.pecttully reque.ta Your Honorable Court to dismiss Count III of the Complaint without coat or judgment to it. OOUNT IV - DAMAGES OAROL G. KOORZ V. FAYZTTEVILLE OONTRAOTORS, INO. 44 - 45. As the avermonts contained in Paragraphs 44-45 of the Complaint relate to parties ether than Answering Oefendant, Defendant Washington and DOWling is not required to answer these averments. To the extent that Paragraph 44 of the complaint incorporates by reference all the preceding averments of the Complaint, Defendant Washington and Oowliny answers those averments as set forth in Paragraphs 1-44 of this Answer and New Matter, which averments are incorporated by reference as though fully stated herein. WHEREFORE, Oefendant Washington and Oowling respectfully request Your Honorable Court to dismiss Count IV of the Complaint without cost or judgment to it. NEW HATTER 46. Plaintiffs' injuries and damages were not caused by any acts, omissions or breaches of duty by Oefendant Washington and Oowling, but were caused in whole or in part or were contributed to by the negligence, fault or carelessness of Plaintiff Ryan M. Moore in that hel a) railed to keep alert and maintain a proper lookout upon the roadway; h) failed to maintain proper, adequate and reasonable control of his vehicle upon the roadway; 11 '" I /. ~I:W c) raUed to maintain a sate and/or laWful speed under the circumstanoes while operating his vehicle upon the rcadway, d) failed to observe the oondi tion of the roadway, which condition was obvious, e) drove his vehicle in violation of 75 Pa.C.S. 53361, relating to driving vehicle at a safe speed, t) drove his vehicle in violation of 75 Pa.C.S. 53362, relating to the maximum speed limit, 'il) drove hiB vehicle in careless disregard tor the safety of persons or property, h) drove his vehiclo in violation of 75 Pa.C.S. 53714, relating to careless driving, i) drove his vehicle in willful or wanton disregard tor the satety of persons or property; j) drove his vehicle in violation of 75 Pa.C.S. 53736, relating to reckless driving, Ilnd by the negligence, fault, or carelessness of Plaintiff Carol G. Moore in that shel k) negligently entrusted the Alfa Romeo automobile to her teenage son, and 1) had knowledge of the car's high speed cap~bilities, her son's inexperience as a driver, and the prevailing weather conditions. " 12 .. " 47, Plaintitts' caua.a ot action are bar~ed in whole or in part by the p.nnaylvania comparative Negligence statute 42 Pa.C.S. 57102, or by the Doctrine ot comparative Negligenoe. 48. Plaintitts' usumed the risk of their alliElged injuries and damages by reason of their own negligent and oareless conduot. 49. Any damages that Plaintiffs may be entitled to recover in this action, which are specifically denied, are limited to those damages WhiCh are recoverable under the provisions of tho Pennsylvania Motor Vehicle Financial Responsibility Law: 50. The Complaint fails to state a cause of aotion against Oefendant Washington and DOWling. 51. The conduct of. Plaintiff!!, including acts and failures to act, estop Plaintiffs from recovery against Washington and Oowling. 52. Oefendant Washington and Oowling did not create a slippery condition on the roadway and therefore, had no duty to abate any danger created by the existence of such a condition. 53. Oefendant Washington and Oowling had no actual or constructive knowledge of any slippery condition on the roadway, and therefore, had no duty t~ warn against or abate any danger croated by such a condition. 54. Plaintiffs' injuries and damages were not caused by any acts, omissions, or breaches of duty by Oefendant Washington and Oowling, but were caused in whole or in part or wer~ Gontributed to by the negligence, fault, or carelessness of others. 55. It any basis for liability on the part of Defendant Washington and Dowling exists, which is specifically denied, then the actions of 13 ,. '-I " '. ~-30. Defendant Fayetteville Contr~ctors incorporate. by reterence as though tully stated heroin the averments and denials contained in Paragraphs 5 through 30 of Oefendant Washington and OowLing's Answer to Plaintiffs' complaint and New Matter. By way ot further answer, Oefendant Fayetteville contractors makes the same averments and denials all Defendant Washington and Oowl.ing does in those paragraphs. Q.QllJ!T_I---=.Jmg1.ig El/..m; mlLlL...JiQQRLv. WlII3IiIlHI.1.9t:! AND -P.QHlt:rn.fL,gQli'l'lUi~'rQRfi. INO. 31-34. Defendant Fayetteville Contractorll incorporates by reterence as though fully ctated heroin tho dVbcments and denials contained in Paragraphs 1 through 30 of this Answer with New Hatter, as weLl as the averments and denials contained in Paragraphs 31 through 34 of Oefendant Washington and Oowling' s Answer to Plaintiffs' complaint and New Matter. By way of turther answer, Oetendant Fayettev i 11e Contractors makes the same averments and denials as Defendant Washington and Dowling does in Paragraphs 31 through 34 of Defendant Washington and Oowling's Answer and New Hatter. WHEREFORE, Oefendant Fayettev i Ue Contractors respect tully requests Your Honorable Court to dismiss CoUnt I of the Complaint without cost or judgment to it. 2 " " , . . ~~I - NIOLIOENCE .y~ M. HOORI Y. FAYETTEVILL~ CONTRACTORS. INC. 315. Defendant Fayettovi 110 Contractors incorporate. by reterence os though fuLly statod herein the averment. and denial. contained in Paragraphs 1 through 34 of this Answer and New Matter. 36. Denied. The averments contained in Paragraph 36 of the CompLaint are legaL conclusions to which no responsive pleading is required. To the extent that 11 responsive pleading may be required, Defendant Fayotteville Contractors specifically denies that it wu negligent in Bny way, specifically denies that O:1tandllnt Washington and Oowling war. neg ligent in any way, and specificaLly denies that it is responsible for the Blleged negligence of any persons or entities in connection with this casso 37. Denied. Oefendant Fayetteville Contractors specifically denies that it was negligent, caroless, and/or reckless in any way; specifically denies that Oefendl1nt \~ashington and Oowling was negligent, careless, and/or reckless in any way, and specifically denies that it is responsible for the alleged negligence, careleunellS, and/or reckll!ssness of any persons or entities in connection with this case. As to the remainder of the averments in Paragraph 37 of the Complaint, said averments are denied. After reasonable investigation, Oefendant Fayettevi 11e Contractors is without speciric knowledge or information to form a belief as to 3 \.... ~ .. B. Denied al Itated. It i. unknown what Plaintirr mean. when he rerers to "in the area or simpson Ferry Road and 115th street." Oerendant Walhington and Dowling oonstructed numerous curb cut ramp. on simpson Ferry Road he tween the Interstate Route 83 northbound entrance ramp and 9th street during the month or November 1992. 9. Oenied. Oefendant Washington and Oowling specifioally denies that it parked any equipment along the curb on 15th street in front of or near 732 15th street. 10. Oenied. It is specifically denied that Defendant Washington and Oowling was responsible tor any equipment that leaked hydraulic fluid or oily s"betanco onto the road surface of 15th street in front of or near 732 15th street, near Simpson Ferry Road, New Cumberland, Pennsylvania, or that Washington and Oowling's workmen otherwise caused or allowed such oily substance to get on the roadway. 11. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without specific knowledge or information to form a belief as to the truth of the averments contained in Paragraph 11 of the complaint, and proof thereof is demanded. 12. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 12 of the complaint, and proof thereof is demanded. 13. Oenied. After reasonable investigation, Oeiendant Washington and Oowling is without know10dge or information sufficient to form a 3 ~ baliet aa to the truth ot the averment. oontained in Paragraph 13 ot the complaint, and proof thereof is demanded. 14. Oenied. After reasonable investigation, Oetendant Washington and Oowling ia without knowledge or information sUftioient to torm a beliet as to the truth of the aver.ments contained in Paragraph 14 at the complaint, and proof thereof is demanded. 15. Oenied. After r.easonable investigation, Defendant Washington and Oowling is without knowledge or information SUfficient to form a belief as to the truth of the averments contained in Paragraph 15 at the Complaint, and proof thereof is demanded. 16. Oenied. After reasonab!~ investigation, Defendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 16 of the Complaint, and proof thereof is demanded. 17. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information SUfficient to form a beliet as to the truth of the averments contained in Paragraph 17 at the Complaint, and proof thereof is demanded. 18. Oenied. After reasonable investigation, Defendant Washington and Oowling is without knowledge or information sufficient to form a beliaf as to the truth of the averments contained in Paragraph 18 ot the Complaint, and proof thereof is demanded. By way of furthnr. answer, Oefendant Washington and Dowling incorporates by reference its averments in Paragraph 10 of this Answer and New Matter as though fully set forth herein. 4 -~ ii. Cenied. Atte~ reasonable investigation, Oetendant Washington and Oowlinq ie without knowledge o~ into~mation suttioient to to~m a belief al to the truth of the averments contained in Paragraph 19 of the complaint, and proof thereat is demanded. 20. Denied. After reasonable investigation, Defendant Washington and OowLing is without knowledge or information sufficient to torm a belief as to the truth of the averMents contained in Paragraph 20 of the complaint, and proof Chereof is demanded. 21. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a beLief as to the truth of the averments contained in ~b~ayraph 21 of the complaint, and proof thereof is demanded. 22. Denied. After reasonable investigation, Defendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments ~ontained in paragraph 22 of the Complaint, and proof thereof is demanded. 23. Denied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 23 of the complaint, and proof thereof is demanded. 24. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 24 of the complaint, and proof thereof is demanded. 5 ~ .~ 2~. Denied. After reasonable investigation, Defendant Washington and Oowlinq i. without knowledge or information sufficient to form a beliet as to the truth of the averments contained in Paragraph 28 of the complaint, and proof thereof is demanded. 26. Oenied. After reasonable investigation, Defendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the avorments contained in Paragraph 26 of the complaint, and proof thereof is demanded. 27. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments con~ained in Paragraph 27 of the Complaint, and proof thereof is demanded. 28. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or infor.mation sufficient to form a belief as to the truth of the averments contained in Paragraph 28 of the Complaint, and proof thereof is demanded. 29. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 29 of the Complaint, and proof thereof is demanded. 30. Oenied. After reasonable investigation, Oefendant Washington and Oowling is without knowledge or information SUfficient to form a belief as to the truth of the averments contained in Paragraph 30 of the Complaint, and proof thereof is demanded. 6 . , COUNT I - NIOLIOINCI RYAK H. KOORI V. WA'HINOTON AKD DOWLINO CONTRACTOR', INC. 31. The averments and denials contained in Paragraph. 1 through 30 of this Answer and New Matter are incorporated by reference a. though fully stated herein. 32. Denied. The averments contained in Paragnph 32 of the Complaint lire legaL conclusions to which no responsive pLeading is required. To the extent that a responsive pleading is required, Oefendant Washington and Oowling specifically denies that its agents, servants and/or employees were responsible tor the alleged dangerous condition described in Plaintiff's Complaint. 33. Oenied. Oefendant Washington and Oowling specifically denies that it was negligent, car.eless and/or reckless in any way. By way of further answer, Oefendant Washington and Oowling specifically denies that itl a) failed to use reasonable skill and care to properly maintain its equipment in working ardor and further denies that, as a result of its maintenance practices, that hydraulic fluid or oily substances were allowed and permitted to spill onto the public roadway, specifically in the area of 732 15th street, New Cumberland, Pennsylvania, thereby creating dangerous and hazardous conditions for users of the roadway; b) negligently failed to clean up or remove hydraulic fluid or other oily substances spilled or deposited on the roadway in some other manner by defective equipment and further denies 7 . that it wa. reaponaible tor or that ita employee. became aware ot tha preaence ot any suoh subatance on the roadway in the ator..aid area, c) parked equipment along a public roadway knowing that oily tluids would escape onto the roadway; d) tailed to properLy train and supervise ita empLoyeea and it is turther denied that its employees parked any equipment along the roadway, allowed oily substances to escape onto the roadway and failed to clean up the spill, e) negLigently placed the safety and secur.ity of the travelling public at risk and it is further den lad that WdS responsible tor spilled hydraulic fluid remaining on the road surtace, and t) tailed to notify proper authorities about any spilled hydraulic fluid or was responsible for notifying any authorities who would be able to take action to remove any SUch dangeroua condition. 34. Denied. The averments conta ined in Paragraph 34 of the Complaint are legal conclusions to which no responsive pleading i/ll required. To the extent that a responsive pleading may be required, Oefendant WaShington and Oowling specifically denies that it was negligent, careless and/or reckless in sny way, and further, denies that it was responaible for the alleged dangerOlJS condition mentioned in Plaintiff's Complaint. As to the remainder of the allegat.ions in Paragraph 34 of the complaint, after reasonable investigation, Oefendant Washington and Oowling ia without knowledge or information sufficient to 8 ~ rorm a belier a. to the truth or tho.e averment., and proor th.reor i. demanded, WHEREFORE, Derendant Walhington and Oowling re.paotrully reque.tl Yuur Honorable Court to dismiss COUnt I of the complaint without co.t Qr judgment to it. OOUN~ II - NEGLIGENOE RYAN K. HOORE V. FAYETTEVILLE OONTRAOTORS, INO. 35 - 37. The averments contained in Paragraphs 35 through 37 of the Complaint are directed to parties other than the Answering Oefendant, and tharefor~, Defendant Washington and Oowling is not requirad to answer these averments. To the extent that Paragraph J~ at the Complaint incorporates by reference all the preceding averments of the Complaint, Defendant Washington and Oowling answ~rs those averments as set forth in Paragraphs 1-34 of this Answer with New Matter, which are incorporated by reference as though fully set forth herein. WHEREFORE, Oefendant Washington and Oowling respectfully request Your Honorable Court to dismiss Count II of the Complaint without cost or judgment to it. COUNT III CAROL G. HOORE V. WASHINGTON AND DOWLING CONTRACTORS, INC. 38. The averments and denials contained in Paragraphs 1 through 37 of this Answer and New Matter are incorporated by reference as though fulLy stated herein. 39. Denied. After reason~ble investigation, Additional Oefendant ~ is without knowledge or information sufficient to form a bolief as to 9 . '.. . the truth of the averment. contained in Paragraph 39 of the complaint, and proof thereof is demanded. 40. Oenied. After reasonable investigation, Additional Detendant is without knowledge or information sufficient to form a beliet as to tho truth of th~ averments contained in Paragraph 40 of the complaint, and proof thereof is demanded. H. Denied. After reasonable investigation, Additional Oetendant is without knowledge or information sufficient to form a beliet as to the truth of the averments contained in Paragraph 41 of the Complaint, and proof thereof is demanded. 42. Oenied. After reasonaple investigation, Additional Oetendant is without knowledge or information sufficient to form a beliet as to the truth of the averments contained in Paragraph 42 of the Complaint, and proof thereof is demanded. 43. Denied. The averments conta ined in Paragraph 43 of the complaint are legal conclusions to which no responsive pleading is required. To the extent that an answer may be required, Oefendant Washington and Oowling specifically denies that they were negligent, careless and/or reckless in any way, and further, specifically denies that it was responsible for the alleged dangerous condition described in Plaintiff's compLaint. As to the remainder of the averments in Paragraph 43 of the Complaint, after further invRstlgation, A~~itional Defendant is without knowledge or information sufficient to form a ,. belief as to the truth of these averments, and proof thereof is demanded. 10 . I · '. , tA J'. : ; "I I, ,.:.') III '4 ",t, ,~ ...-..- - , .. . . " ~ ~ ij ~ :'l {'! .. E ~ If . :i f) } ~ " " ~ 0 ill ~ Ii :l; . It ~ ~ ~ . X ~ ,;' " ,.,.,~ )J ,\ '~ :-..... o..! ru 1 .J ' '>.; "'" ~ ~l J ... ~ rt . 4. <) J '11 ~ j , ,i ;.J 0 rf; ') ~, ,~ 4 ~ ~ ~ ~ ~ m ~ j Il !Z :l: ~ ~ t i ~ ! J~' ~ ~ ~ - , ' , ' , I I ,I ."," " ,r-, '. \ ~ , Itj!H.\ (JY . 1 2 3 4 5 IS 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DY MR. ~NTZ I Q II Q II Q II Q at thi. point A Q II Q A Q A Q A Hill. D1RECT EXAMINATION state your name, pLea.e. Ryan Matthew Moore. And how old are you? I am twenty yeara old. And who ia your tather? My father is Dr. Barry Moore. And is he seated in the baok of the courtroom Ves, he is. -- ne~t to your mother -- Vea. -- who was introduoed earlier? Ve.. And who is your mother? Carol G. Moore. And where did you go to high sohool? I went to Cedar Cliff High sohool in Camp Q When did you graduate? A I graduated in the spring of '94. Q What are you doing at this time? A I am currentLy attending Trinity college in Hartford, Connecticut. 4 1 Q And what are you .tudying at Trini,ty College? 2 A I am .tudyin9 musio, theater musio, and a 3 ..If-de.igned major oalled musioal theater performanoe and 4 dram.tic writin9' & Q Are you working part time While you are in 15 oollege? 7 A Yes, I am. B Q And what are you doing? 9 A I am working at the college Writing Center 10 where we tutor -- we peer tutor students. I have been doin9 11 this since I was a freshman. 12 Q And what year are you now in college? 13 i\ I am a junior. 14 Q And what is your grade point average? 15 A My grade point average is 3.87. 16 Q And what does that mean in terms of grades? 17 A I have an A avo rage . lB Q What is your current career ambition? 19 A I'd like to finish up my college degree, 20 eventually move to New York, and attempt to break into 21 Broadway. 22 Q How long have you had an interest in theater? 23 A I have been interested in theater probably 24 since second grade, when I started participating in church 25 musicals, and I have been continuaLly doing theater ever 5 1 sinc.. a Q Were you involved in theater in hi9h sohool? :J A 'lee. 4 Q And tell ua about that. 5 A I partioipated in the spring musioals at our 15 theater. I worked prot'esllionallY for sharon HilJ.egaa doin9 7 dinner theater for her in Lanoaater. I took olasses at tho 8 Harrisburg community Theater. I performed at the Little 9 Theater in Heohaniosburg. I attended Messiah drama camp and 10 staged a drama oamp in the city of New York. 11 Q What are the areas that are concerned for 12 13 14 15 16 17 Q And by November '92, what training had you 18 had in these three areas? You had mentioned the drama camp. 19 What about singing? 20 A I had taken -- started taking private lessons 21 from Phillip Morgan at Lebanon Valley College and Oavid 22 Oeitz, who teaches privately, and I also had some dance 23 training at cumberland Oance company. 24 Q In high school, were you involved in any 25 sporting activities? musical theater that are important? A There are three ma i n areas, singing, acting and dancing. If you have all three abilities, that/s the best thing possible going into the field. Some people can only do one or two. 6 1 A Yes, I was on the soooer team. 2 Q The oollision that we've discussed, that 3 brinq. us here, oocurred on November 19th ot 1992/ is that 4 oorreat? 5 6 7 8 9 10 11 A It was in the middle of the soccer season, 12 towards the end. 13 Q At that time had you -- did you have any 14 health problems aB of November 19th, 1992? 15 A No, I did not. 16 Q Oid you have any problems with either ot your 17 knees? 18 A No, I did not. 19 Q Oid you have any problems with your shoulder? 20 A No. 21 Q At that time to what extent were you involved 22 in physical aotivities such as running or weight lifting? 23 A We had soocer practices five days a week. We 24 ran as part of soccer practice, and on the side I was also 25 weight lifting in my spare time. A Yes, it is. Q And at that time, what year were you in hiqh school? A I was a junior in high sohool. Q And was that when was that relative to the soooer season at this point in time? 7 1 Q Just briefly, would you tell the jury what 2 happsned with respeot to this accident and how it oocurred? 3 A r had just oome -- I had just finished a 4 piano lesson about a tenth of a mile from my house, not very & far. I baoked out of my teaoher's driveway and started up 6 the hill. It's 15th street. It's a slight grade. And as I 7 prooeeded up the hiLL, I enoountered this slippery patch, 8 the oar fishtaiLed once to the right. I compensat~d by 9 turning the wheel, fishtailed again to tho left, and then it 10 went into a telephone utility pole. 11 Q And as a result of that, was the car severely 12 damaged? 13 A Ves, it was. 14 Q What happened to your body in this accident? 15 Would you tell the jury what happened? 16 A I had my seat belt on. The air bag inflated 17 upon impact. My faoe and head went into the air bag causing 18 a out on my lip and brush burn on my nose and forehead. The 19 seat belt dug into my chest. My knees went into the 20 dashboard console. My hands were kind of jammed into the 21 steering wheel, and as a result of hitting the air bag, 22 there was some whiplash as my neck snapped baok. 23 Q Vour father is -- what is your father's 24 profession? 25 A My father is a neurosurgeon. 8 1 Q And to what extent wa. he involved in your a care and treatment? 3 A He waD my treating physician throughout my 4 cere up until the present. ~ Q Tell the jury how your injuries progreo.ed 6 from that beginning point after the aooident going forward, 7 say, for the first few weeks. 8 A For the first few weeks, the day after the 9 accident there was a Lot of atlffness especiallY as a result 10 of the whiplash. The scrapes and cut on my lip and brush 11 burns eventually went away in due time. 12 My knee and shoulder got worse, and as a 13 result I was unable to perform in certain activities such as 14 playing the violin, as a result of my shoulder, and I 15 discontinued soccer practice as a result of my knees. 16 Q You mentioned the violin. To what extent 17 have you been involved in playing the violin? 18 A I played the violin since I was in third 19 grade, and I was practicing for counties, districts and 20 regional competition, and I was unable to do so -- unable to 21 audition for that because of ",y injury, and I have been 22 taking private lessons since, I believe, sixth grade. 23 Q with respect to the -- did the Whiplash-type 24 injury, what areas of your body were affected? 25 A My shoulders, my spine, my neck and my back. 9 1 Ho.t notably my lower back and right shoulder. 2 Q And describe for the jury how those injurie8 3 progr....d oth.r than the right shoulder? 4 A oth.r than the right Shoulder? 15 Q Right. w. wi 11 talk about that in a moment. 6 A They w.r. sore for a w..k or two and finally 7 it subsid.d. I took pain killers, as advised by my father, 8 and .vuntually the stiffness and soreness subsided after a 9 normal amount of time. 10 Q You mentioned the seat belt harness bruise 11 from that. "ow did that progress? 12 A There was an initial bruiae from the force of 13 my body going forward and the seat belt catching me, and 14 there was just a bruise across my chest that lasted two and 15 a half weeks or ao and eventually raded. 16 Q Thon we mentioned your right shoulder and 17 also your knees. First, with respect to your right 18 shouldor, tell the jury about your right shoulder injury and 19 how that progressed, say, over the first several months. 20 A The first several months. As a result of the 21 whiplash, it kind of spread across my shoulder, and as I 22 said, I was unable to continue to play the violin. That 23 lasted, along with my knee, for a number of months, and 24 eventually it seemed to subside. 25 Q Ooes that -- do you have any problems with 10 - 1 your ri9ht shoulder? 2 AVes. ) Q Tell us about that. 4 A Every so otton I will get a naq9in9 pain in ~ my shoulder as a result ot roally nothing. At tirst I 6 thouqht it was beoause at physical activity, but after I 7 disoontinued physical aotivity tor a number of months, and 8 it still ooourred, then I only had to attribute it to the 9 aooident. 10 Q with respeot to your left knee, how did that 11 progress over the, say, these first several months after the 12 aooident? 13 A There was gener.al pain below my kneeoap as a 14 reslllt of my knee going up into the dashboard console, and 15 the pain just gradually got worse over the months. 16 Q Oid you go to Or. Richard BoaL for an 17 evaluation? 18 A Yes, I did. 19 Q And do you recall when the first time that it 20 21 22 23 24 25 was that he went to Or. Boa l? A I believe it was in January. Q I think the records will show that as Oeoember 16, 1992. Ooes that refresh your recolleotion? A Yes, Oeoember. Q Okay. And when you went to Or. Baal, what 11 ar... did you oall to hi. attention? A My knee and my .houlder. Q And whioh knee was it? A My left knee. Q And whioh shoulder? A My right shoulder. Q Was he able to offer you any -- anything to 1 2 3 4 5 6 7 8 improve your oondition at that point? 9 A At that point he told me of several options 10 as far as arthroscopic surgery, whioh, at that point, didn't 11 seem like the best idea. He told me to oontinue stretohing 12 and watch my lifting, and that was pretty muoh his 13 prognosis. He thought there might be some damage to the 14 knee or below the knee, but at that point he couldn't tell 15 without looking inside. 16 Q with respect to your activities, you were On 17 the soccer team at the time. Oid that effeot your efforts 18 to be on the soccer team, the acoident? 19 A Yes. I oeased going to practioe and played 10 very minimually for the rest of that season. And I didn't 21 play at all for a number of months as a result of the 22 accident. I usually play on a pickup summer league, and I 23 wasn't able to do that. 24 Q Oescribe to the jury the progress of your 25 knee injury then as we go forward in time, say, through your 12 1 2 3 4 ~ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .enior year of high lohool. A Through my ..nior year of high sohool, the pain ~aY gradually inoreasing, not to the point of being unbeareble, but it was a con.tant nagging that oocurred every few days. Q During this period of time, you indioated you were playing soooer. To what extent were you engaging in physical aotivit.ies dijspite whatever problems you were having with your knee? A Well, I stopped lifting for a few months mostly beoause of my shoulder. I was doing some stretching but other than I had stopped lifting because of that. I was lifting three or four days a week. So that oeased for a number of months. Running, I had kept to a minimum. I did very little other than tried to kind of relax and get better. Q Let's turn to when you entered college in your freshman year, and what year wa~ that? A That was the fall of 1994, that would be when I entered as a freshman. Q Okay. Now, at college, was there a physioal sport that -- a sport that you engaged in? A Yes. Q And what is that? A I rowed crew for Trinity, light weight 13 1 crewmen. 2 Q For the bene tit of ue that don't know what ~ that ii, what is crew? 4 ^ Crew is -- at least the sport I was ~ lupporting is eight men in a boat, alternating sides, 6 pulling oree with a ooxswain, and it was a six and a half '7 minute sprint raoe, 2,000 meters, that's what we were 8 oompeting in. 9 Q Oid you in fact partioipate in orew in your 10 freshman year? 11 ^ Yes, I did. 12 Q How were you able to do that with the knee, 13 pain that you were having? 14 ^ I used a knee brace, it's a sleeve whioh kind 15 of stabili~ed the knee, it keeps heat in around the joint so 16 it's not as painful. I was prescribed pain medication by my 17 father to take, which I took more and more as we got towards 18 race day, and then before a race I would take pain 19 medication so I could row through the raoe, and after a raoe 20 I would take pain medication. 21 Q By doing those things, were you able to 22 participate your freshman year in crew? 23 ^ Yes, I was. 24 Q Would you describe to the jury how the knee 25 affected you, say, when you were driving in a oar or seated 14 ..... 1 in a movie theater? 3 A probably the wor.t pOlition for me to b. in 3 i8 .eated, as I am right now, ..peoialLY in a oar or movie 4 theater without a lot of Leg space. After about 30, 4a a minute. it becomes very uncomfortable, and after two hours 6 it beoome. pretty unbearable. So I have to got up or if I 7 am in a oar, I have to stop and get up and walk around, and 8 oraok my knees or baok or stretch. 9 Q Going forward in time, then, into your, say, 10 after your freshman year into the summe~ of '95 and faLl of 11 '9a, how did your knee progress? 12 A In the late summer and especiaLly in the fall 13 of '95, my knee got increasingly more severe. And when I 14 went back to school, I had a lot of problems with pain, it 15 was pretty constant every day. I changed the medication I 16 was on to a very strong codeine based drug that -- it was 17 kind of a trade off. I could take the pain medication, but 18 not be able to do school work, just be able to sit there, or 19 not take the pain medLcation and do my work, but still be in 20 excrutiating pain. 21 Q To what extent were you able to participate 22 in crew in your sophomore year in the fall? 23 A To a limited degree. The fall season was 24 soheduled for two races, we only had one race. I missed a 25 lot of practices. I altered my practice schedule. I didn't 15 1 often praotioe with the team heoause I was Unable to do the 2 thing. they had been doing. Bo instead of rowing in indoor 3 tank. or rowing maohine., I was bioyoling or I was swimming " or something like that, And I was ablo to row the one raoe, ~ and then I stopped pretty muoh after that. 6 Q In this period in the fall of '95, what would 7 happen if you kneeled down on your lett knee? 8 A Excruciating pain. 9 Q And what happened if you engaged in inoreased 10 physioal antivity? 11 A It was a lot of pain and any extra 12 aotivity at that point there was a lot of swelling it I 13 tried to go rUn or triad to do leg exercises or anything 14 really associated with rowing at that point. 15 Q In the fall of 1995, did you return to 16 Or. Baal tor a further evaluation? 17 A Yes. 18 Q And did you, as a result of that, elect to 19 undergo arthroscopic surgery to see if anything could be 20 done to the left knee? 21 A Yes, I did. 22 Q And why did you do that? 23 A At that point the pain medication I was on 24 wasn't helping to the degree that I needed it to, and it was 2~ an option that was there from the beginning that had the 16 1 possibility at clsaring up my problem, and at that point I ~ was in so much pain, and it was ~o constant, that along with 3 my parents we deoided that that waa probably the best option 4 at that time. 5 Q And did you, in tact, have that surgery on 6 November 10th at 1995? 7 A Yes, I did. o Q In terms of going inside of the knee, how 9 10 11 1~ 13 14 inch in diameter, and they were placed one on top of my knee 15 and two below my knee. 16 Q After this surgery, what were you -- what 17 happened in terms of your recovery from that surgery? lB A I was unable to walk for three days. I 19 pretty much laid in my parents' house, and then I was on 20 crutches for a number of months, moving extremely slow, and 21 ev~ntually I was able to walk a little faster. 22 At school I was inconvenienced by certain 23 things such as steps. It took me a long time to get up 24 steps. Even though it was a small campus, I was shuffled 25 around by security. What normally took me 10 minutes to many inoisions were made on your knee? A 'I'hree incis ions. Q Would you describe how they looked to the jury? A 'rhey looked like an x about a quarter of an 17 1 walk to cla.., it took m. 20. ~ Q o.spit. having .urgery, did you return 3 promptly tor cla....? 4 A Y.., I wa. conoerned about cla.sed. 5 Q How did you get around to classes? 6 A I had triends helping me. The professors 7 w.re understanding. I had campus seourity or a friend drive o me to my dorm, a meal or class and evening classes. 9 Q As a result of the surgery, has there been 10 any -- after you recovered from the surgery itself, has 11 there been any change in your knee compared to what it was 12 betore? 13 A No, I don't believe so. 14 Q Would you desaribe to the jury as you sit 15 here today how your knee feels? 16 A My knee is in pain right now. It comes and 17 goes. It's it can be around for a week where I will be 10 in pain, it will crack and pop, and I'll need to take some 19 medication for that or it could be not very painful at all 20 for three or four days. It's often affected by cold or 21 changes in the weather, if it gets cold or hot, and then 22 cold again. That's pretty much it. 23 Q What happens if you engage in, say, rigorous 24 physical activity, especially what would involve bending, 25 stooping or squatting? 18 1 A It causes the pain to become mor~ severe, 2 probably beoomes intlamed. I uaually expect that from 3 physical aotivity. NoW, I will usually ioe it or take a 4 warm shower, and I stretch out morning and night to keep the 5 musoles all strong. 6 Q What hap~.ns if you, say, go and run tor a 7 distance? How does your knee teel when you do that? 8 ^ It's painful. It's a trade off of being 9 physically fit and having some pain or not being physically 10 tit and having the pain anyway. 60 I continue to run now 11 and walk on occasion, even though it causes pain, and when I 12 go out to do such an aativity, I expect there to be pain, 13 but I would rather be physically fit and have that than not. 14 Q with respect to kneeling on your knee, has 15 that -- is that still the same as it was that you described 16 before? 17 A I really can't ~neel on my knee. I can tor a 18 brief amount of time, but that's really painful for me. 19 Q And you mentioned popping and cracking, whon 20 does that take place? 21 A pretty frequently. If I were to extend my 22 leg right now, it would do so. Any time I squat, if I 23 kneel, sometimes going upstairs, after sitting for long 24 periods of time. 25 Q You mentioned medications. To what extent 19 1 have you been using any medications, say, over the last year 2 and a halt? 3 A ovsr the last year and a halt I have been on 4 two codeine based medications and Advil as needed tor pain. 5 Q HoW otten have you had to use those 6 medications? 7 A When I was rowing crew, pretty often. I 8 don't like to take a lot of medication, but on a race day, 9 it was necessary for me to take medication bofore the race 10 and after the race, and probably for about two days atter 11 the race was completed. 12 Q What impact has your left knee condition had 13 on your ability to be involved in musical theater or -- what 14 you could do in a musical production up until this point? 15 A I have had staging and choreography changed 16 just for me in certain prOductions, both at the college and 17 working with Sharon Hillegas and other theaters. 18 Q With respect to Sharon Hillegas, first will 19 you tell us about her and who she is? 20 A Sharon Hillegas is a producer and director of 21 Mishar Productions, it's a professional theater company. 22 She is cur.rently working out of York, Pennsylvania, doing 23 dinner theater there. she has done casting for Home 24 Improvement and a number of other television shows. She 25 directs mostly musical theater things, both original pieces 20 1 a 3 4 5 6 7 o 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 end new piece. in York where she is presently stationed. Q When did you tirst come to know sharon Hillegas, as you recall? A Let's lee, I tirst worked tor Sharon in sleventh qrade, protessionally, at a dinner the~tBr in Lancaster at that time doing a show celled ShsnandQah, and before that I took a number at olasses trom her tor both television and acting and performed in some musicals. Q Would you tell us what you were doing laat summer, the summer of 1996? A I worked for Sharon's company, Mishar productions. We performed three shows, three musicals, the tirst one was Americana, it was a musical review, an original musical review, and then we performed Fiddler on The Roof and South Pacific. Q And with respect to Fiddler on the Roof, was there some alteration in the choreography in that in order to accommodate your knee? A Yes, there was, Q Well, first tell us what part you played in that, in case any jurors know that play. A I played Fiedka, which is the youngest suitor to one of the three dauqhters, and I also danced the Russian bottle dance in the show. Q And what accomodations was made with respect 21 1 to your lett knee in that production? ~ A choreography was altered beoause at my injury 3 and pain with my lett knee tor the bottle dance and some 4 other staging that was minor. 5 Q You mentioned earlier about your career goal 6 to be in musical theater I is that correct? 7 A Yes, it is. 8 Q And do you have ooncern about how this knee 9 injury will impact on your ability to pursue that goal? 10 A Yes, I did. 11 Q And what is that? 12 A I am concerned with the taot that when I get 13 to audition tor plays in New York and so torth, that not 14 being an established actor, I will be not able to request or 15 ask that choreography staging be changed tor my benefit 16 because there are so many other people as equally talented 17 as I am that don't have this same problem, that can come in 13 and do the deep knee bends and twirls on their knees on the 19 floor, etcetera. 20 21 22 23 24 25 Q You currently are in college. How dQ you see yourself going about getting to the goal of being in the theater professionally from this point on? A professionally, well, I have done some professional work already. I have had shots taken. I am going to a theater conference in a month for professional 22 - 1 work, hopefully tor this Hummer. I plan to continue my 2 oollege oareer and graduate next spring and work next 3 summsr, and eventually move to New York city where I will 4 plan to audition for various shows. 5 Q When you go to audition and you mention or 6 there are you have these concerns about the knee. What 7 effeot will that have on the opportunities available to you? 8 A I feel that it wl.ll limit my opportunities. 9 I will either have to work through the pain and just deal 10 with the fact that I am going to have to do certain dance 11 movements for an audition or I will be unable to oonti~ue to 12 or even go to an audition because of that fact. 13 Q What effect will this have on your earning 14 potential? 15 A In the long run, if you are unAble to go to a 16 17 18 19 20 21 with that. There is less of a chance that I will become 22 successful in a very competitive field. 23 Q How has the injury that you have describdd 24 affected your enjoyment of life up until this point from the 25 time of your injury up until today? certain number of auditions to get into curtain shows, there's a less like lihood that you will break into the musical scene, and if you have less opportunity to break into the musioal scene, it is less likely that you will have a chance for larger roles and everything else that comes 23 1 A It severely limits my physical activity. I 2 am unable to .quat or kneel. simple tasks like opening a 3 dr..ser or kneeling to get something or pick up a child or 4 something like that is very ditticult for me. Whereas tor 5 any other healthy, young, 20-year-Old, it's simple. It's 6 not even thouqht of. And tor me it's an everyday thing, 7 whether my knee is going to be extremely painful that day or a a little bit. 9 Q 'ro what extent have you -- how does this 10 etfect you, say, emotionally in terms of this injury at this 11 time? 12 A It's difficult to deal with emotionally 13 because I think about how much pain I am in now, and how 14 that might effect me when I am older, in 20 years or 30 15 years or even 50 or 60 years. Whether I will have to walk 16 with a cane or whether I will be able to continue to do the 17 things I am abl~ to do with some degree of pain. 10 It's limiting in many other aspects as far as 19 being unable to go out and socialize with my friends or sit 20 in a long play or movie or -- even driving to school, for me 21 it's a five hour trip, and I have to stop once or twice just 22 to get out and walk around. So it's definitely hampered me. 23 MR. LANTZ I Cross examine. 24 CROSS-EXAMINATION 25 24 1 2 3 4 II 6 7 o 9 10 11 12 13 14 15 16 17 10 19 20 21 22 23 24 25 BY MR. DOUGLASl Q Hr. Hoare, I want to go back to when this acoident happened. It was in November at 1992? A Yes. Q And you were a junior in high school? A Yes, I was. Q And you stated that the soccer soason was going on at that time. Did you continue to play in any socoer games after this aocident happenod in that 1992 tall ~p:1son? A I believe I played in a fell more games and then the season was over. Q okay. Did you play soccer your senior year at high school? A Yes, I did. Q And did you play for Cedar Cliff High school? A Yes, To did. Q Were you a starter? A No, I wasn't. I was probably the first substitute that is entered into the game, but in my senior year, because of my injury, that was lessened to a degree. I played less time because of my inability to run for long periods of time. Q Nonotheless, you were on the soccer team in your senior year of high school, and this would take us into 25 1 the tall .eason at 19931 2 A correct. 3 Q okay. Then We have you qoing to Trinity 4 College, and you start that in the tall at '941 5 A ';:orrect. 6 Q And when you go to Trinity coll_ge, it'. my 7 understanding that you go out tor the rowing team, is that 8 correct? 9 10 11 12 13 14 15 you described tho boat and the basic aotivity, but 16 physically what do you do in the boat when you row this 17 thing? 18 A You your feet are strapped into a foot 19 stretcher, is what it is called, and you are on a seat that 20 slides and you have either a starboard or port, I was a 21 starboard, so the ore was to my left, and you push back with 22 your legs, and you open up with your back and pull the ore 23 in, and cycle back, and you go up the foot stretcher and 24 continue the motion. 25 Q It's my understanding that your behind is A That's correct. Q Did you ever row before? A No, I did not. Q Did you make the team? ^ Yes, I did. Q We talked a little bit about rowing as tar as 26 1 sittinq on a sUding seat, is that oO!:rBct? 2 A Yes. 3 Q And it is also my understanding that the 4 strength of your stroke is in your ability to push baok with 5 your legs, is that correct? 6 A Coupled with your back strength and you!: arm 7 strength. 8 Q Did you compQte interscholastically in that 9 rowing season your freshman year of college? 10 A Yes. 11 Q And how many races were you in? 12 A We were in a total of eight races for the 13 entire season, that's inclUding fall and the spring. 14 Q What other physical activities were you 15 involved in during that same period of time? 16 A I was lifting weights and running to a small 17 degree. 18 Q sir, isn't it true that in the early summer 19 of 1995, you were running about three to eight miles a day? 20 A A couple times a week. 21 Q And during that period of time when you were 22 running these three to eight miles a day, were you involved 23 in any other physical-fitness-type activity? 24 A Most of the physical activity I was involved 25 in was part of the crew training. So we had practices six 27 1 2 3 4 5 6 7 o 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 days a we.k, whioh involved sam. of the running that Hr. Douglas was talking about. And like I said betore, I wa. doing weight litting that's -- I believe that's all. Q sir, I want to move now to this area at your experience as tar as actinq and dance. You stated that you were in a couple productions in high school, is that correct? AVes. Q Were either of those musicala? A Most of them were musicals. Q Okay. And then you -- well, during high school, did you work professionally at any time? Were you paid to be an actor at any time while you were in high school? A Yes, I was. Q If so, will you tell us what those were you and how much were you paid? A I performed in The Night Visitors, which is a boy saprano role, and that was before my voice changed, obviously. I was paid over $250.00 for that. I worked at Old Hickory in Lancaster performing in Shenandoah for Mrs. Hillegass at $50.00 a show, guaranteed in my contract. I believe that's it. Q And these shows -- this was doing the dinner theater type shows, is that correct? 28 A The Shenandoah show it was. correct. Q okay. other than those, have you been paid tor any other actinlJ up until this point in time? A Ves, I have. Q And what else have you been paid tor, and 1 11 :) 4 5 6 what did you do? 7 A Last eummer I was paid tor Americana, south o Pacitic and Fiddler on the Root as a professional aotor. 9 Q And what were you paid to to be in Americana? 10 A We were paid a lump sum for the entire season 11 of shows, the three shows. Americana was traveling so we 12 were in Laughlin, Nevada, Susan Marie, Michigan, and New 13 York city, all expenses paid as tar as traveling and room 14 and board, and then we were paid a few hundrod dollars tor 15 our pertormances. 16 Q And how many pertormances -- you say a few 17 hundred dollars. Was that for all of th~ perfurmances or -- 10 AVes. 19 Q Okay. sir, you were asked in your deposition 20 about the ability to make money on Broadway, and you were 21 asked about dancing parts, and you had indicated that they 22 receive about $20,000.00 a year for strictly dancers? 23 A Give or take. That's not my field so I 24 couldn't answer that. 25 Q Sir, you were asked a question on Page 76 of 29 1 2 3 4 5 II 7 o 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your deposition with respect to quantitying wageR in NeW York, and you stated. "I could give approximate salaries tor lead actor. on Broadway, and supporting actors on Broadway, what I might have made or not have made because at the injury." You were Uklldl "This is assuming you would have the talent level to enter?" Your answert "Correct." "QUESTION I Let's hear the salaries first betore we talk about the talent level. "ANSWER I Approximate salary for B lead actor, professional -- meaning that their sole source of income would be from acting -- 45,000. "QUESTION I Per year? "ANSWER I Yes, correct. company role 20,000, meaning the chorus, the dance troupe, the small ensemble at the show." Do you recall telling us that in your deposition? A Yes. Q sir, it's also my understanding from your deposition that your aspiration was not to go to New York just to be a dancer. You wanted to go to New York to get parts in plays and that dancing may be part of that; is that correct? A To a degree but what's involved with musical 30 -- A I have considered them, but thoy don't really interest me such as this field. Q What o~her types have you considered? A I would probably stay in some form of the industry. I would have to learn how to direct or lJomething like that, but Q and interest? A Q directing? A Q A 31 -- 1 pertormance and preparing my..lt tor a tield in that oa... 2 Q sir, you were uked the qUIIUon on PlIg- 80 3 at your depolition, "And then you have danoers in BroAdway 4 shows, they're just part ot the dancing, and when the 5 dancing's over they're gone and there are other chllracters 6 on stage. You're saying that that's not the kind of thing 7 that you would have steered toward, that primary dancing 8 role in any event, is that correct?" 9 Your answer I "'rhat is correct. But there 10 are shows where a lead charllcter sings, acts and also does II 11 great amount of dancing. I wouldn't apply to be a dancer, 12 but a lot of lead roles do a lot of dancing, so having a 13 dancing background or being able to dance is very necessary 14 for the field." Do you recall giving that answer? 15 A Yes. 16 Q sir, as part of your college education -- now 17 moving towards this goal of going to Broadway -- are you 18 taking any dance classes? 19 A I have and I have danced in a number at "haws. 20 21 22 23 24 25 MR. DOUGLAS: I have no further questions. THE COURT: Any redirect? MR. I.ANTZ: Very brief, Your Honor. REDIRECT EXAMINATION 32 1 DY MR. LANTZl 2 Q With respect to movements in the musical 3 theater, are there move~ents involved that are ditticult tor 4 you, that are not dancing, because ot your knee injury? 5 A Kneeling, squatting ~- let's see -- jumping, 6 sliding on your knees. I have actually done that recently 7 and had to go through that. So those are instances -- even o lifting people, ~einq required to hold someone or something, 9 that's also difficult. 10 Q And with respect to the running that you said 11 betore on direct and also more specifically on cross 12 examination, when you do that running, hoW does your knee 13 feel during it? 14 A It's painful. As I said before, I elect to 15 run because I am going to stay physicallY fit, and it's a 16 choice that I make to have this pain. I know it's going to 17 be there every time. I am not saying there is no pain 10 because I am running. It's always going to be there, and 19 it's an elected choice that I make. 20 Q What happens when you stop running? How does 21 your knee feel after that? 22 A When my knee begins to cool down ~fter 23 running, that's when a large amount of pain sets in. I 24 usually ice it. I stretch, like I said ~efore, perhaps take 25 pain medication if it's really that bad. 33 1 MR. x.ANTZl No other questione. 2 THS COURTl Any rocrols? 3 MR. DOUGx.ASI No, Your Honor. 4 THS COURT I sir, you may step down. Folk., I 5 have another jury that's deliberating and hae a question. 6 So I will send you upstairs and it. will mort of be 7 indefinite for a moment. It will p~obably take me 16 B minutes or so to get it squared away. As soon as I am done, 9 I wUl call you down again. Recess. lO (Whereupon, a recess was taken at 3114 p.m.) 11 AFTER RECESS 12 (Jury entered courtroom at 3134 p.m.) 13 THI!: COURT I Have a seat, Next witness. 14 MR. LANTZ 1 I call Carol Moor.e. 15 Whereupon, 16 CAROL MOORE, 17 having been duly sworn, testified as tollowsl 18 DIREC'l' EXAMINATION 19 BY MR. LANTZ I 20 21 22 23 24 25 Q Wi 11 you state your name, please. A Carol Moore. Q And are you the mother of Ryan Moore? ' A Yes, I am. Q Before the accident on November 19th, 1992, and tram the time of Ryan'S birth up until then, had he had 34 1 any injuris. to hi, kn.e or should.r or other parte of the 3 body? 3 A No, none. 4 Q with r.spect to his involv.ment and the 5 interest in pertormance. and theater and things like that, 6 when did he tirst demonstrate an intereet and ability in 7 that ana? o A He joined our church choir around second 9 grade and every year thero would be a musical in the spring. 10 He participated in thoae through graduation from high 11 school, and I think that initiated the interest. He started 12 piano and violin lessons about that same time, He took 13 acting classes at Harrisburg community Theater. He 14 participated in the Little Theater in Mechanicsburg, 15 productions were usually at Christmas. 16 In middle school there was 0 production 17 yearly, he participated in that. In high school he W~s in 10 all of the musicals and had leading roles, and in his senior 19 year he had the lead. He loved it. He took private voice 20 leasons. He seemed to exhibit a lot of talent and he was 21 encouraged. Then he portrayed Mong in The Night Visitors, 22 and he was paid for that. Then he was asked to audition at 23 st. Stephens Boys choir at the Epiacopal Church. 24 As he stated first, and he was still soprano 25 before his voice changed, and all through high school he 35 1 went to Messiah drama camp in the summer, I think, rive 3 lummers and went to an acting camp in New York. It was 3 always at his initiation, his interest. 4 Q And has that interest continued up until thi. 5 point? 6 A Yes, it; has. 7 Q with respect to Ryan'S injuries, what o observations did you make about his condition, say, while he 9 WaS in the junior/senior yoar in high school, as to how Ryan 10 dealt with the injury? 11 A Every activity required thought. If he were 12 invited to sn event by hie friends, he would have to 13 determine, Would it be a long car ride. If he would go to 14 the movies, he would have to sit on a certain side to put 15 his leg out. When he rides in the car, he puts his leg up 16 or we stop. He would ice his leg, he would message it, 17 stretch it. 10 19 20 21 22 23 24 25 Q Have you -- and then let's take, let's say, the years while he's been in college, with respect to those years, have you been with him when he's made a trip to school? A Yes. Q In the car? A Yes, I dri ve him up a lot. Q And what did you observe about Ryan when he 36 1 wa. in the oar with you during those trips? 2 A He can sit for two hours maximum without 3 gstting out of the car:' and walking around and stretching, 4 and hiB Bitting will either be in the f~ont with his leg 5 stretched out or in the back with his leg on the se~t. It's 6 about a five-hour. trip. 7 0 with respect to the arthroscopic surgery in 8 November of 1995, what -- how did Ryan -- what did you 9 observe about how Ryan was after that surgery -- 10 ^ lie came 11 Q -- the recovery from the surgery? 12 A He sat for about three days at home, and he 13 needed to go back to school because he was coming into 14 tinals, and so we did get him bock to school. He had 15 crutches and we had daily phone calls, and he was 16 uncomfortable, and he just had help getting ar.ound campus. 17 He used the crutches and dealt with it. He had pain 18 medication. 19 Q With r.espect to this injury, despite the 20 prOblems, what have you observed about Ryan trying to do 21 whatever he can, despite the injury? 22 A He has a great deal of determination and he 23 has always been concerned about fitness, so he will push 24 himself through pain, and I will observe him with an ice 25 pack on his leg or doing his stretches, but he will not 37 1 complain about it. Yes, he's done a lot ot physical thinqs 2 since the accident. That's his choice to really work 3 through that and deal with the pain. 4 MR. LANTZ I Crose examine. 5 MR. DOUGLAS I I have no questions. 6 THE COURT I Ma'am, you may step down. 7 MR. LANT?'1 Your Honor, we have a videotape B that's about 30 minutes long of Or. Baal's deposition. 9 THE COURT I Let's do it. 00 you need the 10 blinds down for it? Would th~t help? 11 (Jurors indicated positively.) 12 THE COURT 1 Let's mark that -- this is 13 Dr. Baal's let's mark the video, Plaintiff 1, and the 14 transcript Plaintiff 2. 15 (Whereupon, 16 Plaintiff's Exhibit Nos. 1 and 2 17 were marked for identification.) 18 THE COURT I I hope this works better than 19 yesterday. We had some trouble. 20 (Whereupon, the jury viewed a video 21 deposition from 3123 p.m. to 4109 p.m.) 22 MR. LANTZ I Your Honor, that concludes the 23 playing of the video tape of Or. Baal. 24 THE COURT I Okay. What's next? 25 MR. LANTZ I If we could, begin with the 38 1 ~ 3 4 ~ 6 7 o 9 10 11 12 13 14 15 16 17 10 19 20 21 22 23 24 25 university School at Medicine. I did a surgeon internship at Cincinnati General in cincinnati, Ohio, and my neurosurgery clinical at the Mayo Clinic. I have been in practioe in Pennsylvania since 1972. Q Are you board certitied? A I was. Yes, I was board certitied in May ot 197~, Q By what speoialty? A Neurological Board of Medical surgery. Q Can you tell us what that specialty involves? A It's a surgical treatment of the brain, spinal oord, nerves and related coverings and anatomy around those structures. Q To what extent does your work involve muscle -- excuse me, nerves into the lower extremitiea? A Well, we commonly see people for pain in the arms, legs or anywhere in the body. Q With respect to your seeing patients, are there situations where you get involved with patients who have pain in about the knee area? A Yes, we see people who have pain in various structures in the limbs, arms, hands, wrists, knees, ankles, and the nerves that are related to those areas. Q Are you f.amiliar with the structure of the knee? 40 1 A We are tamiliar enough with the anatomy so 2 that we can make a diagnosis as to whether it's 3 nerve-related or joint-related or related to some other 4 di..a.e process. 5 Q Are you involved with any hospitals? 6 A Ye., I am on the stat' at the hospitals in 7 the Harrisburg area, on the statt at the carlisle Hospital B and Hershey Medical Center. 9 Q Have you been involved in pain management? 10 A Yes, we used to run a pain clinic in the 11 HarriSburg area and subsequently the Mechanicsburg area. 12 Q And what -- would you tell us a little bit 13 more about your experience in that area and what's involved 14 in pain management that you have been involved in? 15 A Well, historically neurosurgery has been the 16 specialty that treats pain overall. The pain clinic that we 17 managed had to do with chronic pain, where people would have 18 surgery and do not get better from that type of surgery or 19 some other treatment and would then be treated for their 20 pain with various other surgeries or modalities of 21 treatments that would hopefully improve their situation in 22 life with their pain. 23 MR. LANTZ: I offer Dr. Barry Moore as an 24 expert in the practice of medicine with a specialty in 25 neurosurgery and also pain management. 41 1 MR. OOUG~BI I have no Qbj_ction. 2 THB COURT I Proceed. 3 DIRECT EXAMINATION 4 BY MR. ~NTZI 5 Q Or. Moore, up until November 19th of 1992, 6 wae your son Ryan having any problems with hie knee. or 7 shoulders? 8 A Well, he had no physical problems at all. 9 Q With respect to the accident that occurred on 10 November 19th, 1992, what was your involvement in the care 11 and management of your son with regard to his injuries? 12 A I think you would call me the treating 13 physician for the most part until Dr. Baal was consulted for 14 his evaluation and surgery. 15 Q And with respect to Ryan'S injuries as you 16 first observed them, what did you observe and find? 17 A He began to complain of pain about the knee 18 with rest and activity. At times it was Obviously swollen 19 and we, as many individualo, thought it would SUbside, that 20 it would just go away. It never did do that. 21 We continued to treat him in various ways 22 with medication, with certain types of exercise therapy. He 23 used to UBe ice, certain types of positional changes so that 24 he would minimize the pain and swelling to the knee. 25 Q With r.espect to the other injuries that he 42 1 :z 3 4 5 6 7 o 9 10 11 12 13 14 15 16 17 10 19 20 21 22 23 24 25 sustained, immediately after the accident your son had testitied to th~ whiplash-type injury, tho~e pain symptoms or the stiftness associated with that, what had you obaer.ved at that ~oint in time right after the accident? A I think he had what most people have atter an injury, he was sore allover, pain in his neck, shoulders, low back, he had cuts on his face, abrasion on his torehead, his nose, most of those problema subsided over several months. Q What about the right ~houlder? How did that progress? A Well, to my knowledge, he continues to have problems with his right shoulder, particularly when -- I thought it was mostly with activity, at times it would act up. He has never been totally free of pain in his right shoulder, but it varies with the time and his activity. Q Have you observed Ryan trying to accommodate the pain that he feels in his knee or the stiffness? A Yes, I have. Q And what have you observed? A Well, I have obviously taken him back and torth to college several times, and his main position is in the backseat of my car with his leg stretched out on the backseat. I know he saved his money lip one time to fly to california to visit a c<ll1ege roommate. I know we had to 43 1 have an aisle .eat to have his leg out in the aisle. When 2 hi dais hi. own driving, he stops every hour or so to stop 3 and extend his knee. 4 Q With regard to his involvement in crew 5 activity in college his freshman year, Ryan reterred to 6 medication and you had also referred to medication 7 generally. What was done in that period of time with regard o to medicating Ryan with regard to his injuty? 9 A Well, we had started out with the aimple 10 things what are called antiinflammatories, the common ones 11 are Advil, Nuprin, things like that. We then went to some 12 somewhat stronger medications such ftS Oarvocet, some 13 non-narcotic things, but eventually I began to give him 14 some, what are called synthetic aodeine, Percodan, Vicodin, 15 and we eventually went to straight Codeine, particularly 16 when race time would come around, in order to try and get 17 him through the race with his pain. 10 Q Are there concerns about the use of narcotic 19 medications? 20 A Well, obviously. I am his father, I don't 21 want -- I would not like to give anyone narcotics if it is 22 not necessary, but at that point it was -- the thing that he 23 needed in order to reduce the pain so he could continue to 24 participate in crew, which he was very fond of. 25 Q And what are the limits in terms of the use 44 1 of that type of medicating program on ft long-term basis? ~ A Well, he told me categorically that if he had 3 a race and didn't take the medicine, he wasn't going to be 4 able to study that day or the next day. It slowed him down 5 enough that he had participated in the athletic activity, 6 and hopetully it wasn't around the time that he had to study 7 something seriously. 8 Q And have you continued to monitor your son'M 9 condition up until the present time? 10 A Yes, I have. 11 Q Do you have an opinion, to a reasonable 12 degree of medical certainty, as to whether or not the pain 13 in the left knee area is permanent? 14 A Well, it's been cver four years, the accident 15 was in November of 1992, and it is January of 1997. In our 16 field, if things aren't better by 10 to 24 months, usually 17 they are not going to be much better than that, and now it's 10 been four years. And if anything, the problem is the same 19 or worse than when we initially began. So in my opinion, 20 based on that, and in my experience, I would have to state 21 that I feel his problem is permanent at this point. 22 MR. LANTZ: Cross examine. 23 CROSS-EXAMINATlQH 24 25 BY MR. DOUGLAS: 45 1 2 3 4 II 6 7 o 9 10 11 12 13 14 111 16 17 18 19 20 21 22 23 24 25 Q Sir, it's my understanding that in addition to your.elf, Dr. aoal, your partner, alia examined your Bon. A That's cornet. Initially. Q II he the person who tirst examined your son other than when you showed up at the accident scene and looked him over? A I examined him quite otten before that. I thought it was only fair to have what I would consider an impartial person examine him, partiallY because of the whiplash symptoms he had at the time. I believe that's when Dr. Roth examined him. Dr. Roth is my partner. Q Did Dr. Roth continue to see your son after that initial examination when he first examined him? A No. Q Did Dr. Roth create any writings or anything conoerning your son's condition, write allY letters to anyone? A I balieve he made a report tor the chart, I would imagine. Q Do you know what his findings were at that time? A I don't recall. MR. DOUGLAS I ! have no further questions. THE COURT I Anything else? MR. LANTZt No further questions, Your Honor. 46 1 AugU.t 30, 1997 a 3 (Wh.reupon, the jury .ntor.d the courtroom at 4 0148 a.m.) 5 THE COURTI Good morning. Ilave a seat. Next 6 witn.... 7 MR. LANTZ I Your Honor, I'd like to start by o playing the videotape deposition of Sharon Hillegas, whioh 9 was taken for use at this trial on January 28th, just a 10 oouple of days ago. 11 THE COURT I All right. Do we have a 12 transcript of that? 13 MR. LANTZ! I will mark the deposition as 14 Exhibit 3, Your Honor. 15 THE COURT! Uh-huh. 16 MR. LANTZ I And the tape as exhibit 4. 17 THE COURT I Fine. 10 MR. LANTZ I Your Honor, we have exhibit 4 on 19 the tape and the deposition as exhibit 3. sorry, Your 20 Honor. 21 THE COURT I All right. 22 (Whereupon, the videotape deposition was 23 played for the jury at 0150 a.m. and 24 concluded at 9!15 a.m.) 25 THE COURT I Since I am 57, I will take the 48 1 2 3 4 5 6 7 8 9 10 11 1:2 13 14 15 16 17 18 19 20 21 22 23 24 25 real Le Bohem over Rent, but it do.s sound interesting. HR. LANTZ I Your HonQr, I would like to move tor the admis.ion at Plaintitt'8 Exhibits 1 through 4. THE COURTl They are admitted. (Whereupon, Plaintift's Exhibit No.. 1 - 4 were admitted.) THE COURT I Are you resting? HR. LAN'l'Z l 'rhank you. I could -- THE COUR'l'l Another witness? HR. LANTZ I Yes. THE COURT I okay. MR. LANTZ I Mr. Risser. Whereupon, JOHN S. RISBER, having been duly sworn, testified as folloWll QIHECT EXAMINATION ON OUALIFICATIONS BY MR. LANTZ I Q Will you state your nam~, please. A John s. Risser, R-i-s-s-e-r. Q WherQ are you employed? A I am employed by Hoover Rehabilitation Services, Incorporated, they are located in camp Hill, Pennsylvania. Q You work at Hoover Rehabilitation in Camp 49 1 Hill? 2 A That's correct, sir. 3 Q What do you do there? 4 A I am Director at vocational Placement 5 Service. at Hoover Rehabilitation Service.. 6 Q Will you tell the jury about your eduoational 7 background? o A Bachelor of Arts, Sociology, Lebanon Valley 9 College, degree obtained in 1972. Master of Arts degree, 10 Clinical Psychology, Indiana University of Pennsylvania, 11 which I obtained in 1975. Those are my formal academio 12 aohievements. 13 Q Are you certified as an American 14 Rehabilitation Economist? 16 A That's correct. I have been so certified 16 since 1992 by the American National Economist Association, 17 which is the blend of vocational economic aspects of what I 18 do as vocational rehabilitation counselor with Hoover. 19 Q Okay. Would you tell us what you do as a 20 counselor at Hoover and how that relates to work in a 21 rehabilitation 22 A My work basically entails four different 23 aspects. I supervise vocational counselors in a camp Hill 24 and Allentown office. I carry my own small case load of no 25 more than three to five individuals at anyone time that I 50 1 am providing onqoing vocational service. to. 2 I also t8Rtity as an independent witness in 3 social security matters to assist the administr8tivo law 4 judge in represented earning opinions with regard to people ~ who have ~ppli.d for social security disability benefits. 6 The fourth component is pertorming evaluations in matters 7 such as this for both plaintift and de tense attorneys. o Q When you say matters such as this, you mean a 9 case such RS Ryan Moore has here? 10 A Such as the evaluation and the report that I 11 prepared for Ryan Moore in this matter. oftentimes this is 12 a plaintiff case, but oftentimes in cases such as this, the 13 detendant also has a vocational expert so if there is 14 another expert brought in on the plaintiff's side, the 15 attorney such as Mr. Douglas may bring me in to do a workup. 16 So it involves performing evaluations for both plaintiff and 17 defen~e attorneys in matters such as Ryan Moore's. 18 Q with re~pect to your certification as a 19 rehabilitation economist, would you describe to the jury 20 somewhat more as to what is involved in that area of what 21 you do? 22 A A rehabilitation economist basically blends 23 jobs and earnings. In vocational rehabilitation we are 24 talking about jobs and hopefully getting people back to 25 their highest level of functioning, and typically getting 51 1 them closest to the amount ot money they were makin9 befora 2 they were injured. And therefore that is tho eoonomic side 3 ot the ledger, putting together, knowing the amount the jobs 4 pay, the fringe benetits that are offered, it's a blendil\r;J 5 ot rehabilitation and economio and it's really an area 6 that's evolved in the last 10 years as far as the torensic 7 work in the courtrooms across the country. There'S been a o real need of blending what the vocational rehabilitation 9 counselor could after and what the economist could offer, so 10 it's basically been an evolving here in the past 10, 15 11 years based on the forensic matters performing an evaluation 12 such as thio. 13 Q Are you familiar with the American 80ard of 14 vocational Experts? 15 A Right. You have to be a board certi tied 16 vocational expert in order to testify in social security 17 matters. Board certifioation as with doctors and so forth 10 is tho highest level of recognition that can be offered. I 19 have been a board certified expert recognized by the 20 American Board of Vocational Experts since 1905. 21 Q And are you certified by that Board? 22 A Yes, I am. I am a diplomat which is their 23 highest status, which is confirmed by the American Board of 24 Vocational Experts. 25 Q Are you familiar with the commission on 52 1 Rehabilitation counselors. 1 A Yes, I am. within Pennsylvania, we are one 3 ot the taw states that does not have any licensinq or 4 aocreditation tor vocational counselors, theretore the 5 certified Rehabilitation counaelor oertitication is 6 aonterrad. After passing an examination, which I passed in 7 1983, I have been a certitied rehabilitation counselor, 8 listod by the commission on Rehabilitation counselor 9 Certifications since 1983. 10 Q Have you been qualified as an expert in other 11 cases and jurisdictions? 12 A I have testified in various county and 13 tederal jurisdictions within ponnsylvania, New Jersey, 14 Maryland, the District of Columbia and the state of New 15 York. 16 MR. LANTZ I I offer Mr. Risser as an expert 17 in the area as an vocational expert? 18 THE COURT I Any questions? 19 MR. DOUGLAS I I just havQ a few, Your Honor. 20 CROSS-EXAMINATIQH 21 ON OUAI,IFICATIONS 22 BY MR. DOUGLAS I 23 Q Mr. Risser, prior to Mr. Moore, did you have 24 any first-hand experience with any individuals who want~d to 25 be an actor? 53 1 A Ye., I have. ~ Q How otten? 3 A I have evaluated one actor in the 4 Philadelphia area previously, about tive years ago, one 5 aspiring aator, a qentleman who wanted to be an actor betore 6 he was involved in a vehicular accident. 7 MR. DOUGLAS I I have no further questions. 8 THE COURT I He may testify. 9 THE WITNESSI Thank you. 10 DIREC'r EXAMINATION. 11 BY MR. LANTZ I 12 Q Have you had occasion to Meet with Ryan Moore 1.3 and evaluate him? 14 A Yes. You referred Ryan Moore to my 15 attentJ.on. I reviewed medical reports and met with 16 Mr. Moore for two and a quarter hours on December 30th of 17 1996. He came to my office in camp Hill, and I reevaluated 18 and interviewed him at that time. His mother also 19 accompanied him to that interview. 20 Q And what did you do in your meeting with him? 21 A As with any individual who I would interview 22 and evaluate, I took a history. I knew what the nature of 23 the reports were in that thero was a vehicular accident on 24 November 19th of 1992. I knew what the injuries were at 25 that time, but I wanted to question Ryan more with his 54 I 1 rMgard at hi, peroeption at pain, adverse symptomatology, as 2 he encountered it at the time that I Iilet with him becau.. 3 it's always important to know how the individual at the time 4 that I meet with them, how they ara dealing with their I; situation, what typo of recovery or rehabilitation they have 6 obtained sinoe, obviously, there's alwayo a time gap between 7 the t1me of the onset of the injury and between the time I o meet with them. 9 So I took that history, questioned Ryan at 10 length about his perception in those areas, and then I took 11 a social history, educational background, ~nd work history. 12 I questioned him again about his aspirations and goals in 13 the speoific area of musical theater, and we talked at 14 length about that. 16 No testing was done in Mr. Moore's case. He 16 is a college student, he is going to complete his academic 17 training, therefore it wasn't the typical aBse where I 10 needed to do vocational testing in order to identify skill 19 areas where he may go into because there's no comprise to 20 his academic, so to speak. So there was no testing do no in 21 his case. 22 Q As part of your evaluation, do you determine 23 work life expectancy for the individuals that you evaluate? 24 ^ I use national tables to determine what work 25 life expectency was. I don't determine that. I use the 55 1 reterence materials to do that. And I assume, because he a was 16 years old when the accident happened, that his work 3 lit. expectancy would have been based on entering the work 4 torce tUll-time, which I believe is how old Mr. Moore will 5 be when he competes his sohooling at Trinity College. 6 So at the age of 22 Mr. Moore would have a 7 statistical work life expectancy of an additional 38.4 o years. That takes into account all cauoasianal males with a 9 oollege education at age 22 to establish that he could be 10 expected to work a total of 38.4 years. It takes into 11 account entrances and departures from the work market, but 12 that he would actually work 38.4 years or up to the time of 13 60.4 years, which is certainly less than the traditional 14 retirement age, which we know up until recently has been 65, 15 but it certainly extends beyond 65. Now, unfortunately for 16 most of us -- 17 Q Do those tables also provide life expect~ncy 10 of people at certain ages? 19 A Right. The government determines that people 20 basically live longer than they work, and for a man who 21 was -- he was 20.65 years of age when I met with him. His 22 lite expectancy would be for an additional 54.3 years of 23 life. >>is life expectancy at the time of the accident, he 24 was 16 and a half, would be for an additional 57.65 years, 25 and his life expectancy would have at that time to live at 56 1 74.14 years. So it's a little diUerent. Lite expeotancy 2 vari.. for men and women, depending on their age at anyone 3 point in time. But roughly, Ryan, at the aooident or now 4 could be expected to live right around the age of 15. 6 Q Are you familiar with the term earning 6 capaoity? 7 A Absolutely. o Q What is earning capaoity? 9 A Wage oarning capacity is the amount of money 10 that any individual could be expected to realize. For 11 example, a person my age, 40, who's been working at a 12 particular job for many ~Jars, would havd a much more 13 detined earning oapacity than a child or adolesoent or young 14 man like Ryan Moore who has not ontered into ~ work foroe. 15 An example of that would be A high school 16 student or college student who is working at ft fast food 17 restaurant, has been working for five, flvo And ft half an 10 hour, but was going to college, and they woro going to go on 19 to become a doctor or lawyer or some other training, and 20 they were seriously Injured and couldn't do that type ot job 21 in the futu~e. 22 You wouldn't limit their earnings to the job 23 at McDonald's makIng 5 or 5.50 an hour. It is giving the 24 intentions, training and mental oapacity of a pereon. How 25 much do they continue to earn over the course of their 57 .- 1 workin9 lit. span which i. -- Wa9G earning capacity mayor a may not be related to the actual earnings that a person 3 make. at one particular timel is that clear, sir? 4 Q Thank you. Are you tamiliar with the term 5 labor market acoessability. 6 7 o 9 10 11 specific vocational area for whioh they could compete or 12 qualify for. That's what labor market accessability is. 13 And if a person doesn't have any comprising conditions, 14 whether thay be mental, physical, their labor market 15 accessability for the limited number of jobs in their area 16 would be 100 percent. 17 When you then apply some type of comprising 18 condition, whether it be geographical, a person lives in 19 Idaho, compared to New York city, obviously there are going 20 to be fewer jobs. In Mr. Moore's case -- well, there would 21 be fewer jobs of all types in Idaho than there would be in 22 Pennsylvania or New York city, regardless of what that job 23 was, typically, so you have a limited number of jObs. 24 And accessability is how does the person 25 look, compete, and how limited are they in what their A Yes, I am. Q And what does that mean? A That for anyone time, whether Jt be for a banker, a brick layer or someone in the arts, there is a finite, limited amount of jobs that are out there in their 58 1 problems are atter they have been injured when compared to 2 their pre-incident or pre-injury statijs, and in Hr. Moore's 3 aese, when he wae unimpaired, he would have had tull 4 eccessability given other skill. and eo rorth that he may 5 have brought to the arte, he would have been able to oompets 6 without having a handicap and oondition now limiting hie 7 acceesability into those typee or joba. S 0 Do you hav~ an opinion a~ to whothor the 9 injury that Ryan Moore susta ined on Hovomhor 1'1, 1 'ilia , has 10 impacted on his earning capacity? 11 A I do have suoh an opl.n ion. 12 Q What is your opinion? 13 A It's my belief that prior to tho accident and 14 the left knee injury that now appear~ to bo qivinq him 15 permanent problems, pain and efrects his ahility to do 16 various movements within the musical theater area, that h. 17 is less able to compete adequately with non-handicapped, 10 non-impaired individuals, and there will be a uompriso to 19 the realistic abUity of Ryan Moore to ohtaln work within 20 his chosen field whero he is spocifiunlly trninod and 21 received specific training slnca a chlld in this area, and 22 it's an area where he continueD to want to succeed, but he 23 is going to be at a significant disadvantage as he attompts 24 to compete for those llmlted numbor of positlons within the 25 musical theater aroa, particularly In How York City or Los 59 '-'- - 1 Angoles, wherever he might go, because he is going to go 2 where the 1II0st jobs are. But as we heard from the earlier 3 testimony today, he is going to be at a dJsadvantage when he 4 competes with non-limited individuals for the types at roles 5 that would otherwise be offered to him. 6 Q You are talking about the videotape at Sharon 7 Hillegas shown earlier this morning? 8 A That's correct. 9 Q Did you evaluate the extent of the economic 10 impact on Ryan's earning capacity? 11 A Yes, I did. 12 Q What did you do? 13 A I believe that following the time that he 14 completes his oollege at Trinity College, even had the 15 accident not have happened, he would have taken probably 16 three to five years going to, say, for example, in New York 17 city, where ho would have had to -- before he would have 18 realized his maximum earnings in that area, it would have 19 taken three to five years. So I didn't calculate any 20 comprise for that period of time, because he has to go get 21 established, and that would have been the case even had he 22 not been injured on November 19, 1992. 23 Based on my knowledge and information about 24 his field, it's my belief that by the age of 27 or about 25 five years following his graduation from college, he would 60 1 have been ablu to SUltain himself in New York city or Los 2 Angele. earning tram $4~,OOO.00 to $60,000.00 a year. That 3 ii, it he was going to be succeslful ond succeed and have a 4 viable earning capacity in that area, those are the earnings ~ that he would expect to realize. 6 It he was making less than that, chances are 7 that he would have gone on to do something else. Those are 8 the earnings for a successful person, not a star so to 9 speak, but in the typos of roles that we've heard discussed 10 earlier that are available. certainly at any time there are 11 more or less jObS available, based upon the types of plays 12 that are existent, that's a given, but the earnings for 13 those types of jobs ar.e 45,000 to $60,000.00 a year. or 14 average $62,500.00 a year. 15 Q Then what did you do from that point, in 16 terms of determining the economic impact on Ryan Moore? 17 A It's my belief that a reasonable comprise to 18 the number of jObS and the earnings would vary between 5 19 percent to 20 per.cent, meaning that there are going to be 20 tewer jobs, fewer roles for him that will range anywhere 21 from 5 to 20 percent. Again, there is going to be a 22 variation at any time on that, but that seemed to me to be 23 the most reasonable application of comprise, that there are 24 going to be fewer jobs that he is going to be able to 25 compete for, successfully perform, and therefore there is an 61 1 adjustment in the eat'nings that he will be able to -- ~ Q Again, beginning with Ryan's work at age ~7, 3 I believe, what you started with, and then going torward 4 with hia expected work lite expectancy, how did you compute 5 a loss tor that period of time? 6 A I calculated the lOBS at: 5 peroent, 10 7 percent, 15 percent, ~o percent. First I took his work life o age, 60.4, I took out, subtracted 27, which is the age where 9 I believe that is realistic to start to calculato a 10 diminution of his wage earning capacity, and then I took 5 11 peroent of $52,500.00 and that comes up with a life time 12 LOBS of $07,675.00 for Mr. Mooru, at 10 percent fewer 13 opportunities, the earnings lost is $175,350.00. At 15 14 percent tewer opportunities, and therefore earnings his 15 lifetime loss would be $263,025.00. And if he lost 20 16 peroent fewer jobs and earnings, his lifetime wage earning 17 loss would be $350,700.00, sir. 10 Q Do YOIl have these opinions that you have 19 expressed here to a reasonable degree of professional 20 certainty, based on your. experience and education? 21 A I have expressed those opinions within those 22 constraints, sir, within a reasonable degree of professional 23 certainty. I believe those losses are applicable to 24 Mr. Ryan Moore. 25 MR. LANTZ I Cross examine. 62 1 :I 3 4 5 IS 7 8 9 10 11 12 13 14 15 16 17 10 19 20 21 22 23 24 25 .r, CROB~-EXAHI~TION py ~. DOUGLAS I Q sir, I am looking at your report on pag_ 5, at the end ot Paragraph 1, the last sentence states, "Mr. Moon stated that, prior to his injury, it wu his goal to complete his four-year degree program and travel to New York, New York or Los Angeles, Calitornia and to pursue his lit_long dream in the oareer as a professional dancer." Ie that oorrect? A That's what the report said, yes, that's correct. Q Is that what he told you? A Sir, again -- Q That'D what he told you on December 30, 1996, just a tew weeks back? A When I say dance -- Q sir, please, just answer the question. THE COURT: Wait a mJ,nute. You were u he read you that portion of the report, and in that portion, at least, that's what you said. THE WITNESSl That is correct. THE COURT: Okay. Next question. BY MR. DOUGt.A.a: Q sir, I want to go through now the job history that Mr. Moore gave you of the type of work he did and the 63 1 type of pay he received for those jobs. Could you do that 2 tor us? 3 A Absolutely. since he'_ been a freshman at 4 Trinity College, he worked ~t the Trinity College English ~ Department Writing Center. He worked 6 to 10 hours a week 6 earning five and a quarter an hour for that work. This 7 aemester he is doinq an internship at the Hartford stage o company as a play reader and dr.amaturge, it's a non-paid 9 jab, which he will get college credit for. 10 Our. ing the past summer, he worked for MiShar 11 Productions as a stago performer, traveling to Nevada, 12 Miohiqan and New York. He also did two musicals in York, 13 Pennsylvania. He work for his brothor's company as a sales 14 and marketing for Last Unicorn Games during the summers of 15 '93, '94 and '9!;. He had a seasonal position at Panache's, 16 whioh is a men's clothing store, as a sales associate for 17 six months in 1993 and again during the Christmas season of 18 1993, earning five and a quarter for that job. And prior to 19 that time he had worked for MiShar Productions, Incorporated 20 as an actor in productions at the Old Hickory Inn in 21 Lanoaster, Pennsylvania, where he earned $25.00 per show. 22 He is a young man whose eal"ning history ~3 certainly is reflective of a college student and high school 24 student. I didn't think there was anything unusual in that. 25 Q sir, in your report you talk about different 64 1 job olarifications. You had indicated a job clarification ~ at a person who has eduoation at 12-plus years in your 3 report I is that correct? 4 A Sure. That's a vary academio datinition and 5 it's detined as Much. 6 Q All I want to ask you, sir, is thare another 7 clarification above that for when a person completes o oollege? 9 A Not according to the federal register. 10 Q It's just 12 plus? 11 A Right. Right. 12 Q Okay. sir, I now want to talk about your 13 projeotions. Is it your opinion that Mr. Moore was going to 14 be a professional dancer from age 22, when he got out of 15 school to approximately age 60? 16 A I said professional dancer in my report, it's 17 jobs and roles in the area of musical theater which includes 18 dancing, singing and acting. It's certainly not limited to 19 dancing only. 20 Q sir, as far as these projections where you go 21 5, 10, 15 and 20 percent, is that based upon a factual 22 research of the type of plays that are out there, and tho 23 roles that are available, or is that just speculation on 24 your part of what might be? 25 A No, it's based on the earnings. If one is a 65 1 viable lotor in plrforming the roles that Ryan Moore seeks ~ to obtlin, it one is able to seek a viable career, that is 3 the minimumal 8$rnings. He could have earned a lot more. 4 Chances are it he earned lese than that, he wouldn't 6 continue in those areas. It's my research that the range of 6 4~ to $60,000.00 accurately rAflects ~ person who is able to 7 sustain themselves in New York or Los Angeles in the types o at roles that were disoussed with Mr. Moore. 9 MR. DOUGLASr I have no further questions. 10 'rHE COURTr Any redirect? 11 mJl.lRECT EXAMINA'rIQ.li 12 BY MR. LANTZ I 13 Q Mr. Riuser., with respect to your report, 14 Mr. Douglas referred to one area where prcfessional dancer 15 was used in your report on Page 3, and in the second 16 paragraph, does your in the last sentence of the second 17 paragraph, would you read that to the jury? 10 A Which paragraph, sir? 19 Q The second paragraph on Page :), the last 20 sentence, two sentences actually. 21 A "Mr. Moore stated that the complex movements 22 required of theatrical dancing, inclUding kneeling, have 23 caused him to BUffer 'extreme pain' in left knee. Mr. Moore 24 stated that his ability to kneel, particulary as required by 25 complex dance movement and specific stage directions, has 66 1 2 3 4 5 II 7 8 9 10 11 12 n 14 15 16 17 18 19 20 21 22 23 24 25 '~', been oompri..d by his injury." Q And on Page 4, that lame page that Hr. Douglas reterred to in the .eoond paragraph toward the Gnd, have you used the words prote..ional dance, theater in your report? A Yeah, it's a long sentencQ. Do you wish me to read the whole sentence, sir? Q Is the phrase dance and theater both used? A I talked about the physically exhaustive world of professional dance, slash, theater. Q And then on Page 5 in the first paragraph regarding his major, and you notel "his major in musical theater performanca". A "His declared major is musical theater pertormance and dramatic writing, which he himself developed with the cooperation of the college deans in English, theater and music." Q Was your evaluation of Mr. Moore of his stated goal of career in music and theater? A That's correct. MR. LANTZt I have no further questions. MR. DOUGLAS I I have no recross examination. THE COURTt Sir, you are excused. THE WITNESSt Thank you, very much. MR. LANTZt Your Honor, that concludes our 67 i'i: '" u' r .. 1111 1>1 ~:, t.! J ;.tl ~ll ,., , I I,', I ~. !! , . "1 " t' ,-" " ". ,- "~' . r ., ( . .,: , ':/ I" I I ',. "If I ,,' l. .1 1-.1,'1 I ".;j.,., .. . . " .q , " I', " " Iii '.J I I' " , , , " I , I, /" I.. , '. " McNIU. W,t,I-L.ACIIlI NUA'CK 100 ~INIIT"IIT ,. 0' .u~ IIUI Ii I']:]{ ~ "I H"""".U"O, ,.'" 11101 " 3. Additional Defendant Stephens nl\lVer made a written offer of settlement. Defendant's highest verbal offer was $15,000. 4. At no time did Plaintiff cause any delay in the trial of this matter. The casa went to trial the first time it was Hllted for trial, No motion to compel discovery was ever fUed againllt Plaintiff. 5. PUl.'"suant to Rule 238, delay damagsll are recoverable for the period beginning August 12, 1995, the date one year after the commenCF,lment of this action, through the date of the verdict which wall rendered on January 30, 1997. 'l'he intet"eat rate for computation of delay damages is the prime rate for the applicable year plus one percent in accordance with Rule 238. 6. The calculation of delay damages is set forth in the table belowl Period Number of E.LlJDe Rate Prime Rate ).'otal ~ .Lll ~/12/95 - 141 8,5\ 9,5\ $3,669.86 12/31/95 1/1/96 - 365 8.5\ 9,5\ $9,500.00 12/31/96 1/1/97 - 30 8.25 9,25 $780.82 1/30/97 Grand $13,950.68 Total 7. Pursuant to the calculations set forth above, the Plaintiff requests the Court to award delay damages in the amount " 3. Additional Defendant Stephens never made a written offer of settlement, Defendant'a highest verbal offer waa $15,000, 4, At no time did Plaintiff cause any delay in the trial of this matter. 'l'hfl case went to trial the first time it was listed for trial. No motion to compel ,u'scovery waa evar filed against Plaintiff, 5. , Pursuant to Rule 238, delay damages are recoverable for the period beginning August 12, 1~95, the date one year after the commencement of. this action, thrO\lgh the date of the verdict which was rendered on January 30, 1997. The interest rate for computation of delay damages is the prime rate f.or the npplicable year plus one percent in accordance with Rule 238, 6. The calculation of delay damages is set forth in the table be low t . Period lliJ.mber of E.rim.!LF.;,\ t~ prime Rate Total Qillal .:t.J.! 8/12/95 - 141 8.5% 9.5% $3,1569.86 12/31/95 1/1/96 - 365 8.5% 9.5% $9,500.00 12/31/96 1/1/97 - 30 8.25 9.25 $780.82 1/30/97 Grand $13,950.68 Total 7. Pursuant to the calculations set forth above, the Plaintiff requests the Court to award delay damages in the amount , 3. Additional Defendant Stephena never made 1\ written offer of aettlement. Defendant's highest verbal offer waa $15,000, 4. At no time did Plaintiff cause any delay in the trial of thia matter. The caae went to trial the first time it was liated for tri.al, No motion to compel diacovery Wall ever filed against Plaintiff. 5, Pursuant to Rule 238, delay damagea are recoverable for the period beginning Auguat 12, 1995, the date one year after the commencement of this action, through the date of the verdict which was rendered on January 30, 1997. The interest rate for computation of delay damages is the prime rate for the applicable year plus one percent in accordanr.e with Rule 238. &. The calculation of delay damages is set forth in the table belowl P .uJ.ill! Number of t'rime Rate Prime Rate Total ~ Lll 8/12/95 - 141 8,5% 9.5% $3,1;69.86 12/31/95 1/1/96 - 365 8.5% 9,5% $9,500.00 12/31/96 1/1/97 - 30 8.25 9.25 $780,82 1/30/97 Grand $13,950.68 Total 7. Pursuant to tho!! calculations set forth above, the Plaintiff reques~s the Court to award delay damages in the amount I. I, J I.....,...' .~ I I . I j I I I 'I ,j, 1'" .1 i ~ n~ ! p<~IilG ~~i~~ ~~~~~ I r " , I' ~ - ~ ~ z 0 '" 8 ~ 6 ,. t e \II ~ ~ ( u - Il. E ( II) )( , I Oj~g~ ' I ~ ( Q. 0 ~ .J ~ g Q. it . _ a ~ << iii X \ ~ , J: .. .. ~ . I I 'J I, 1" I , lJ, ! ~. " I " I" I I " (,' I ". " ,,' " - YOU AIt' HFI.,IW Itt.)IUIIJD '0 flU. ,. Wltl'"'' Itf "'ONU 'I) Ill' 'He Lon I) "'lUlU, ,,,UH' ltOI DHIS '''ON InVlI'a "'1t10, 0" " JL,lDIINr.N, I14AY I[ rtu"lD AU'''IF YOU, ., --_.. DOUGLAS, DOUOLA5 & DOUOLA5 ~~lr"II~.'I'I\'" ".w ,""""", '''''l "'. h.' ."OltHU (Ml~lrd_t PI tj'j',rl.'dllll" I' 1 I " 1 I, W' DO IILII." (.f.Rm; IItAf 1I1I ~ITHIH 15" 'HlU:' AND COHNI cr c,,'r tH' rur onlQINAl. rILll) IN JllII. AeflCN, O. " , , I I "I I, I' ,', I " , " , ',I: , , , I " Ii I .... . I, I I , I i'j I j" I I 'L 'I , I, " ,.I, I , I , I ' I'r . DOU~L"" 001.10"". .. 001.10'..". "~".N~Y' ~, .... -n 'lJ I1'I! l I I WI"" 11"'1'1 I 1ft, I r!I",tI,II\"'"I ' ' " '; I' ,.' II I 1,1 II " '\ ':'" . , , ~". IV l~", It 'h~' 1"..Id! i' 1.111 .t." ,r.,I",r'(IIJ, Vi '".I".l(.1 I \ " II . 1.1, :,:1, ,':,'1, 1.,"1 I' ;1' 11" ,,'iI' , " ,~ " " ;1' . ~............- . , .~ f , 'j .'f1' ,,~.l . " , , ; RYAN M, MOORE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF OUMBERLAND COUNTY, PENNSYLVANIA V. DANIEL D. STEPHENS t1d/b/a DANIEL D. STEPHENS GENERAL CONTRACTING, DEFENDANT 94-41531 CIVIL TERM lli RE: DEFEtiD~ 9PINION AND ORDERJ2.E. COURT BAYLEY, J., April 3, 1997:-- On November 19, 1992, plaintiff, Ryan M. Moore, while alunlor in high school, Incurred a knee and shoulder Injury In an automobile accident for which defendant, Daniel D. Stephens tJd/b/a Daniel D. Stephens General Contracting, admitted liability. On January 30, 1997, a jury returned a general damage verdict In favor of plaintiff In the amount of $100,000. Defendant flied a motion for posttrial relief maintaining that the court erred In denying his motion for a compulsory non-suit and/or a directed verdict on plaintiff's claim for future wage loss. Defendant claims that (1) there was Insufficient testimony to support plaintiff's claim for future damages resulting from an Inlury to his left knee and (2) plaintiff's evidence as to future loss of earning capacity was too speculative for the jury to have considered In reaching a verdict. The evidence In a light most favorable to plaintiff, the verdict winner, Is as follows.' Prior to plaintiff's left knee and right shoulder being Injured In the automobile accident on November 19, 1992, plaintiff had been in excellent health. Following the 1. Snyder v. Snyder, 429 Pa. Super. 494 (1962). 94-4&31 CIVIL TERM accident, plaintiff suffered stiffness and discomfort In the right shoulder for several months but those symptoms gradually dissipated. The pain In his Injured left knee got worse. He first saw Dr. Richard 80al, an orthopedic surgeol1, on Deoember 16, 1992. On the doctor's advice, plaintiff reduced his physical activities but the pain In his left knee gradually Inoreased. Wbel1 he entered college In the fall of 1994, plaintiff started using a braoe to stablllzl! tho knee. It Is difficult for him to remain seated for a substantial length of time. Dr. 80al performed arthroscoplo surgery In November, 1995, after which plaintiff was In bed for three days and then was on crutches for a couple of months. The surgery did not Improve his condition. He continues to have pain In the left knee on most days although It comes and goes. Physloal activity exacerbates that pain. He Is unable to kneel on the Injured knee and unable to fully squal. He has taken pain medloatlon regularly since the accident. Because he plans to make a career In the musical theater, the Injury has affected plaintiff emotionally because ho Is concerned that he will not be able to successfully compete In that endeavor. Dr. Boallnlt1611y treated plaintiff conservatively. When plaintiff's condition did not Improve, the surgeon performed the arthroscopic surgery In November, 1995. Dr. Boalls of the opinion that the automobile accident on November 19, 1992, caused a softening of the cartilage underneath the left kneecap which Is not susceptible to surgical repair nor will It even be susceptible to such repair. He has advised plaintiff to keep the knee strong with activity, but to back off when It hurts. Plaintiff has .2. 94-4531 CIVIL TERM followed that advlllo and stili exercises extensively, Too much acllvlty, however, exacerbates his condition, Since thera Is no further treatment available, and cllnloally plaintiff has not Improved over a long period of time, Dr, 80alls of the opinion that plaintiff's pain and discomfort mayor may not abate, Plalnllff's father, a neurosurgeon, has followed his son's medical condition and provided him treatment for his Injury far over four years, He offered his medical opinion that: [I]f things aren't better by 18 to 24 months, usually they are not going to be much better than that, and now It's been four years, And If anything, the problem Is the same or worse whbn we Inlllally began, So in my opinion, based on that, and In my experience, I would have to state that I feel this problem Is permanent at this point. Plalnllff, age 20, Is a Junior at Trinity College In Hartford, Connecticut. His primary areas of study are music, theater and English. He has an accumulative 3.87 grade point average, From the time he was a young boy, plaintiff's Interest has been in the musical theater which has become a career goal. During high school, plaintiff participated In musicals and dinner theater, he attended drama camps, and he took private lessons In singing, dance, piano and violin, At the beginning of lallt summer, plalnllff was In the cast of Americana, a musical ensemble that performed on the West Coast, In Michigan and New York City, For the remainder of the summer, he was In local productions of South Pacific and Fiddler on the Roof, Plaintiff played a lead role In Fiddler, parts of which were choreographed specifically for him so that he could -3- 94-4531 CIVIL TERM physioally perform tho danoes,R Sharon Hillegas testified for plaintiff as an ellpert In the field of oastlng and ohoreographlng professional theater produotlons, She has twenty-five years ellperienoe In those fields and has been casting nationally since 1991. Hillegas testified that the essential requirements for a career In the musical theater are the ability to sing, dance and act. Being able to make a successful professional career In the musical theater requires living and working In a city, preferably New Vork City which Is plaintiff's career goal. Hlllogas has been familiar with plaintiff since he was In high school. She Is of the opinion that plaintiff has the ability to sing, dance and act and has "the look" necessary to pursue his dream of making a career In the musical theater in New Vork, Hillegas testified that the pain plaintiff Incurs In his knee which affects his bending and squatting will adversely affect his ability to make a successful career In the musical theater because of the competition of other talented actors who will not have similar difficulties. Hillegas was of the opinion that there would be no likelihood of a change In choreography to meet the physical needs of plaintiff at the professional level In which he will have to compete to make a living In the musical theater. John S, Risser, who Is certified as an American Rehabilitation Economist, and by the American Board of Vocational Experts and the Commission on Rehabilitation 2, Plaintiff's parents testified and confirmed their son's theatrloal training and caroer goals, .4- 94-4531 CIVIL TERM Counselors, testified as an e)(pert for plaintiff, Plaintiff has a statistical work life 8)(pectanoy of 36,4 years and life 8)(pectancy of 64,3 years, Risser was of the opinion that the Injury to plaintiff's left knee will adversely affect his ability to compete In the musloaltheater with non-Impaired Individuals and will comprls'il his ability to obtain work In his chosen field for which he has received training since childhood, Risser testified that even If plaintiff was notln/ured, It would take him appro)(lmately three to five years after college In New York City or Los Angeles before he could realize his m8l<lmum earnings In a career in the musical theater, Those earnings could be In the area of $45,000 to $GO,OOO per year for a successful person, not a star, for the types of roles for whloh plaintiff has the talenl. II plaintiff would not reach such earnings, ohanoes are that he would go on to something else, Risser testified that B reasonable compromise to the number 01 lobs and the earnings available to plaintiff because of his Injury would vary between five percent to twenty percenl. Given thalead time to accomplish his earnings potential, Risser calculated plaintiff's prospective loss of earning capacity at five percent, which would be $87,676, at ten percent which would be $176,360, at fifteen percent which would be $263,026, and at twenty peroent which would be $360,700, We find from all of the evidence and the testimony of plaintiff, Dr, Boal, and plaintiff's father, a neurosurgeon, that there was sufficient, competent evidence for the Jury to consider In determining II plaintiff will continue to suffer from the Injury to his left knee that he Incurred In the automobile accident on November 19, 1992, It was .5. 94-4531 CIVIL TERM for Ihe jury 10 weigh It,e lestlmony of all t.he wllnesses and give suoh oredlblllty as II deemed appropriate 10 Ihe Bvldence offulure damage 10 plalntlH's lert knee a8 a result of Ihe accident. As 10 delendanl's claim Ihal plalnllff's evidence ae 10 fulure loss 01 earning capaolty was 100 speculative for Ihe jury 10 oonslder, we nule Ihalln O'Mallev v. pe.rl... Petroleum, Inc., 283 Pa, Super, 272 (Hl80), the S~perlor Court 01 Pennsylvania quoted wllh approvallhe Middle Unlled 61ales Olslrlcl Court 01 Pennsylvania In Hoffmln v, St.rllng Drug Co., 374 F,Supp, BSO (M,O, Pa, 1974), The Court staled that the lest 10 be used 10 determine whelher a plaintiff would have progressed from his current occupation to Ihe profession for which he was preparing Is "not the age, pralnjury occupation 110r Ihe nature of the proposed profession, but rather the suHII:lency of the plalntlH's evidence In showing his skill, likelihood of becoming a member of the profession and availability of work In the area," In Meccl v. LUklllk, 366 Pa, Super, 149 (19B7), a jury entered a verdict In favor of five teenagers who were killed In an automobile accident. On appeal, defendant alleged error Involving the testimony of Dr, George Reavy as to the loss of earning power of the deceased adolescents. The Superior Court stated: Dr, Reavy was presented as an economist and he projected certain dollar amount lost earnings based on the planned careers of the minors to which the respective parents testified, He Included In his computations the children's IlIe expectancies, minus a maintenance figure plus fringe benefits figures, Appellants argue that this testimony of the economist was speculative, citing Pratt v. Stlln, 29B Pa. Superior Ct. 92, 444 A,2d 674 (19B2), In which our Court In the context of the calculation of an Injured employee's wage loss from the date of the .6. 94-4531 CIVIL TERM acoldent until the time oltrlal, repeated the well-established prlnolple that the law requires not merely conjecture, but rather sufficient data Irom whloh damages can be alilsessed with reasonable certainty. , , , [w]hlle ellpert testimony Is not required to show loss 01 earning oapaolty, either party In a negligence action Is enlltled to Introduce ellpert or other evidence to establish or relute aotual ellpected future earning capacity of 8 particular plaintiff, Fllh v. GOlnell, 316 Pa, Superior CI. 666, 463 A,2d 1042 (1983), For ellample, In McClinton v. White, 497 Pa, 610, 444 A,2d 86 (1982), In which the Issue concerned the amount to be deducted Irom an award of damages as personal maintenance, the Supreme Court related the procedure employed by the plaintiffs In presenting their case on future lost earnings damages to the jury, The ellpert, who was a professor 01 economlcliI, calculated the earning potenllal of the two decedents, who were ages 16 and 18 at the time 01 their death In an automobile accident, both as college graduates and as high school graduates, He based these calculations on testimony 01 the decedent's Interest, talents and ambitions, Thus, as In this case, ellperts are commonly used by plaintiffs to present their case regarding the luture lost earnings, Dr. Reavy, relying partly on figures from the United States Bureau of the Census calculations lor earnings data, discussed each 01 the plalnllff's possible earning capacities In light 01 the tesllmony already 01 record regarding each 01 the plaintiffs, As lor Michelle Clzlk and Jodi Hallah, Dr, Reavy testllled thatluture wage loas of all high school and college graduates fall In the range 01 $633,023 and $664,368 respectively. Both girlS had ellpected to attend college according to their mothers, Regarding Elizabeth Mecca, who planned to become a doctor, Dr. Reavy presented luture wage loss 01 high school ($629,920) college ($671,672) and medical school graduates ($6,197,444), David Thomas was described by his mother as wanting to go to the Air Force or to learn air conditioning repair work, Dr, Reavy offered future wage loss of high school graduates in the amount 01 $836,766, and for all white males In the amount of $1,020,538. With regard to Michael Cheresko, his lather testified that Michael wanted to be a mechanic like his father, Future wage loss 01 a mechanic was presented In Dr. Reavy's analysis for Michael Cheresko In the amount of $972,000, Appellants contend that there was not a sufficient basis to Justify such calculations to Inler that the deceased teenagers would attend college, or In Elizabeth Mecca's case, become a physician. We disagree, As the Supreme Court has explained, [a] II that the law requires Is that .7. 94-4eG1 CIVIL TERM '(a) olalm for damages must be supported by a reasonable basis for caloulatlon; mere guess or speculation Is not enough.' Stevenson v. Economy Blnk of Ambrldge, 413 Pa. 442,463-64, 197 A.2d 721, 727 (1964). See 1110 Small v. Flock, 407 Pa. 148, 160 A.2d 69 (1962); altz v. Freed, 377 Pa. 480, 106 A.2d 102 (1964). 'If the facts afford a rOBsonably fair basis for calculating how much plaintiff's entitled to, such evldenoe cannot be regarded as legally Insufficient to support a olalm for oompensBtlon.' Weatern Show Co., Inc. v. Mill, 308 Pa. 215, 162 A. 667 (1932). Kaczkowlkl v. Bolubllz, 491 Pa. 661, 667, 421 A.2d 1027, 1030 (1960). It Is particularly difficult to project future wage loss of a deceased child, as In this case, but this Item of damages had not been denied by any oourt because of the problems of the youth Involved. Prince v. Adami, 229 Pa. Superior Ct. 160,324 A.2d 366 (1974). The testimony on which Dr. Reavy based his projections was more than the dreams of each teenager as supported by his or her parents at trial. Testimony was also given by the parents concerning their own stations In life and that of the respective siblings. Slavin v. Gardner, 274 Pa. Superior Ct. 192,416 A.2d 361 (1979). In the case of Lisa Mecca, whose pro/ectlons Included medical school as a possibility, one sister was already In medical school and one was In pharmacy school. As for her, a proper foundation was laid. For Jodi Haflch, although her academic performance as a high school freshman was not good, nevertheless, her sister had attended college, and Mrs. Haflch testified that Jodi wanted the same for herself. Michelle Clzlk was described by her mother as wanting to become a geologist. An older brother of Michelle's attended college. The two male decedents, David Thomas and Michael Cheresko, were portrayed as wanting to enter air conditioning repair work or the Air Force and to become a mechanic, respectively. These foundations for Dr. Reavy's projections on the potential earning capacities of David Thomas and Michael Cheresko respectively, cannot be said to be unreasonable given David's two sisters who had attended, although not completed, college, and conSidering that Michael's father was a mechanic. The jury had a range of future wage loss amounts from which to choose based on their own findings from the background testimony which they heard at trial. The amounts which the jury chose to award were based on credible evidence which Is properly within their fact. finding domain. Rlchsrdson v. LaBuz, 61 Pa. Commonwealth Ct. 436, 474 A.2d 1161 (1984). Relying on the Inquiry of case law as to the reasonableness of the bases for the calculations Involved, Kaczkowekl v. Bolubasz, supra, we find thot the testimony of Dr. Reavy constituted -6.. 94-4531 CIVIL TERM proper evldenoe lor the jury's consideration. (Footnote omitted,) We are satisfied that there was Ilufflolant evldenoe for the jury to oonolude that plaintiff has the talent and drive to earn a living In the professional musloal theater and that there Is a likelihood that he will do so. ThlJs, It was proper for the jury to consider plaintiff's olalm lor future loss 01 earning capaolty. The $100,000 genoral verdlot was lor IUlnlurles and Ilnanclalloss to plaintiff arising out of the acoldent of November 19, 1992, That Included past and future f'lhyslcal pain, mental anguish, discomfort, Inconvenience and distress, embarrassment and humiliation, loss of enjoyment of life's pleasures, physlcallmpaltment, and luture loss of earning capacity. The verdict was not against the weight of the evldence.~ Accordingly, the following order Is entered. QB.QI;R OF COURT AND NOW, this 3V'~ day of April, 1997, the motion of defendant for posttrial relief, IS DENIED. By the Court, ,I .,' ( .J(d- Edgar B, Bayley,'" - 3. Delendant offered no medical testimony or testimony of any kind to refute plaintiff's claims. -9- ~, J .1, ,1 ,...,..,.";...'lI........,.,~,,.'"' 'I'" ",!L,.jj, ,. " ff , ~' 1 '; . n,\Jn (~I[I, ~ir:,)'r^"l\f Cf: TI'~' " . I ,"" '" 'I \'1\ ',\' 12 1)1 ~Iln .. C"lI(.iJ ,\ I ' I 1:.lr:UHrf \'/IV\j~H\<!,\\.IfPI'^ " "d;' it ,I , , , ' " , , , I .1,\ , " " , , ., " , ;1, , '11 " " " " II i,! 'I, , ;10, t" 1 .,. , " " " , , " . , r I ,\ I I I \ ! , ~...,-..."'.1.."....""~...._I...'Il>fi_,jftl.._~,.,,-'............_.""~~~~7. ........ r~" P' .~'~"t" I I.'. ' , ,'. , ' ," I j. 1 ,I' ,I" ,II , .' , " to . ~ I , . " ", ." . ., " , ". . . ':(If", . I,' I.' I;' .' ...-.. .,.' ~ It) t: In .;~~ ~ M 'j ~~. l1t: ,,~ " " , 'I' ~ '>!i \. I~) f" ~~;', - !t ~ ,~ " f' a ~) I;; MeNIES, WAl.l.ACE III NU"ICK 100 "INIE _"'lIT I' 0 ,'Oil. lilt' HA""IUU"O, ~A 11101 II , I , i rfi' I ,{ , I"- ~ ~ ~ -1 , , 'I,i/- I'i, FII,Fi"}DFF!Cff Or-ll" l,t"'(I'CI~nrNW 97Frn J I, "'I 91 fi9 (', !"I ' ',' I ,I \....11' "'1<. I' l. i"1 HiNI~~rL'I! 'J~l/\ ! I ;, f/, '-~ ~ I .. _...., RYAN M, MOORE and CAROr., G, MOORE I Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUN'I'Y, PENNSYLVANIA NO, 94-41531 CiVIL 'I'ERM V, DANIEL D. S'I'EPHENS, t/d/b/a DANIEL D. STEPHENS GENERAL CONTRACTING, Defendant CIVIL TlC'I'ION LI\W ,WRY '!'RITlL DEMANDED OBJBCTIONS TO LIMITBO PORTION OF r.uTINONY DllIImANT 1iI.Q!.lIMIlD DB T~SCRIDID AND NOW COMES PLAIN'I'IPP, Ryan M, Moore, by his attorneys, McNees, Wallace & Nurick and objects to having less than the entire transcript transcribed for the reasons set forth below. 1. Defendant has filed a motion for new trial, a copy of which is attached, 2. The Motion addresses issues which require the transcription of the entire record, all of which related to the claim for damages. 3, Defendant has requested that only the testimony of John Risser and the cross-examination of Ryan Moore be transcribed. 4, The entire transcript of Ryan Moore's testimony must be transcribed in order to have the appropriate context for it. 5, Further, Dr. Barry Moore testified as to the permanency of Ryan Moore's injury, Since that issue is raised in the Motion, Dr. Moore's testimony must also be transcribed, " " ,McNltltlil, WAI.I.ACr.;: IJ< NUllICI( InQ I'INI: llTnlor:r I'. II, IIIH If... ItA"AIIJIJlJnc1, 'IA f710U ,~ ,.... ~., ......... "I .g, I 1,', li .t,' " '" I .1. 1 , " I, .4 I " , " "i' ~ II , . ., . . McNEES. WAI.I.ACE II< NURICK Iqo ~I~. ~T"U' , . jot I) "D II.' HA""'..U"O, ~A '7'.. " , 'J" RYAN M. MOORE and CAROL G. MOORE I Plaintiffs IN THE COU~T OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-4531 CIVIL 'l'EI~M v. DANIEL D. S'l'EPHENS, t/d/b/a DANIEL D. STEPHENS GENERAL CONTRACTING, Defendant CIVIL ACTION LAW ,JURY '1'RIAL OEMANDED RYLI TO SHOW CAusm AND NOW, this ~fday of February, 1997 upon consideration of Plaintiff's Motion for Rule to Show Cause Why Delay Damages Should Not Be Awarded '1'0 Plaintiff In Accordance With Plaintiff's Motion Requesting Damages for Delay, a copy of which is attached to the said Motion as Exhibit "A", a rule is hereby issued on Defendant, Daniel D. Stephens, t/d/b/a Daniel D. Stephens General Contracting to show cause, if it has any, why delay damages should not be awarded to Plaintiff in t~ amount of $13,950.66. H~. This Rule is returnable within ,~~ days after service on Defendant/,),) ~. {#'",\ CAm~w.a-, ht~. ~ hAiJ2.. ~ ;Jw\NCV\llAQ Jo t~ (p.lM'},,~) (:{ /J..th .~ V L,J2..... i--tMd. By the Co r /' /I ~L :;)~b.l~ .; // (~~1- ~ ,:;....v\\,\ ))..a.l-,~I'" '\ I,,,", '\I')Vl~ ~ ~ V VW4!fJ. G1 I b jJ.;t\ (....<. 1~I))ltl~ tt: ...bL ~ \J , ,> V\i-O fw-, I ~ <9" P Wt~ 1TJ I,~ W>>:I-S 01 ~I",", ~ ~,...Q ~ ~ ~ 2.1:(/~7. J. RYAN M, MOORE and CAAOL G. MOORE, ~laint.iffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-4531 CIVIL TERM V. DANIEL D. STEPHENS, t/d/b/a DANIEL D. STEPHENS GENERAL CONT.I~ACT I NG , Defendant CIVIL ACTION l,AW ,JURY 'rRIAL DEMANDED MOTION FOR ISSUANCE OF A RULE TO SHOW CAUSB AS TO WHY PLAINTIFF'S MOTION RIOUBSTING DAMAGBS FOR DBLAY SHOULD NOT BE GRANTeD AND NOW COMES PLAINTIFF, Ryan M. Moore, by his attorneys, McNees, Wallace & Nurick, and requests the Court to issue a Rule to Show Cause as to why delay damages should not be awarded to Ryan Moore in the amount of $13,950.68 for the reasons set forth below. 1. This personal injury action was tried to a jury before the Honorable Edgar B. Bayley on January 29-30, 1997. The jury returned a verdict in favor of Plaintiff, Ryan M. Moore and against Defendant, Daniel D. Stephens, t/d/b/a Daniel D. Stephens General Contracting in the amount of $100,000. 2. On February 5, 1997, Plaintiff filed a motion requesting damages for delay. A copy of the motion as filed with the prothonotary is attached hereto as Exhibit "A". 3. The amount of delay damages requested by Plaintiff and as set forth in the attached motion is $13,950.68. 4. Defendant filed a motion in opposition to award of delay damages. A copy of Def.endant' s motion is attached hereto al9 Exhibit "B". S. Stephens did not serve any interrogatories on plaintiff until December 5, 1996. 'l'hose interrogatories were answered by Plaintiff on January 2, 1997, within the thirty day period allowed for such answers. 6. Defendant Stephens never filed a motion to compel against Plaintiff. 7. Although no specific allegation of future wage loss was set forth in the complaint, the complaint did demand general damages in excess of $20,000 and made references to the injuries extending beyond the time of the filing of the complaint. The allegations in the complaint are sufficient to include a claim for loss of future earning capacity. Donlin v. J.J. Newberrv Comoanv, 319 Pa.Super 310, 466 A.2d 174, 176 (1983). Defendant acknowledges that the issue of futur.e lost wages was discussed at Mr. Moore's deposition on December 26, 1995. The future lost wage earning claim was also set forth in Plaintiff's answers to the interrogatories of Washington & Dowling that were served on all counsel on November 10, 1995. A copy of the relevant portion of those answers is attached hereto as Exhibit "CO. 8. In Plaintiff's motion requesting delay damages attached as Exhibit "A", the statement is made in Paragraph 4 that no motion to compel discovery was ever filed against Plaintiff. To clarify, no motion to compel was filed by Stephens against - 2 - Plaintiff. However, Washington & Pawling, one of the original Defendants, served interrogatories and document requests on Plaintiff on August 7, 1995. Because of certain delays inoluding the fact that Ryan Moore was in college, Plaintiff'm answers were not filed within 30 days. Washington & Dowling filed a motion to compel on October 31, 1995 and the Court issued a rule on November 6, 1995, Plaintiff served anawers to the interrogatories on November 10, 1995. The two-month period beyond the due date for the answers to these discovery requests did not cause any delay of the trial. 9. Defendant seeks to avoid delay damages on the basis that a report from Mr, Risser, the vocational expert, was not provided until January 9, 1997. As noted above, Defendant Stephens did not serve his expert witness interrogatories until December 5, 1996. Further, the receipt of the report had no significant impact on State Farm's evaluation of the case. After State Farm got the report, it merely increased its settlement offer from $7,500 to $15,000. 10. Because this case went to trial the first time it was on the list, and because Plaintiff did not cause a delay of the trial, delay damages are appropriate and in accordance with the intent of Rule 238. One of the purposes of the rule is "to prevent a defendant from being unjustly enriched by keeping interest that could be earned during the litigation process on what is essentially the plaintiff's money". Kirk v. Ravmark Industries. Inc., 61 F.3 147, 170 (3d Cir. 1995). - 3 - ( r, 3, Additional Defendant Stephens never made a written offer of settlement. Defendant's highest verbal offer was $15,000, 4. At no time did Plaintiff cause any delay in the trial of this matter. The case went to trial the first time it was listed for trial. No motion to compel discovery was ever filed against Plaintiff, S. Pursuant to Rule 236, delay damages are recoverable for t.he period beginning August 12, 1995, the date one year after the commencement of this action, through the date of the verdict which was rendered on January 30, 1. 9 97. The interest rate for computation of delay damages is the prime rate for the applicable year plus one percent in accordance with Rule 236. 6. The calculation of delay damages is set forth in the table be low I Period Number of Prime Rat,e p'rime Rate Total ~ Lll 8/12/95 - 141 6,5~ 9.5~ $3,669.66 12/31/95 1/1/96 - 365 8.5~ 9.5~ $9,500.00 12/31/96 1/1/97 - 30 8.25 9.25 $780.62 1/30/97 Grand $13,950.66 Total 7. Pursuant to the calculations set forth above, th~ Plaintiff requests the Court to awa~d delay damages in the amount ( ( (e) maoh exclusion, if any, in the policy which is appli- oable to any claim thereunder and anr reasons, if any, why you or the carrier cl~ m the excluaion is applicable. ANSWER I N/A 3. lIIlCP.n.... List and describe all expenses and losses that you have incurred because of the incident. ANSWER I (a) Medical Billsl $296.40 (b) Plaintift has incurred and will continue to incur pain and suffering and loss of life's pleasures as a result of the collision. He has suffered and will suffer throbbing pain in his left knee, especially after he engages in any significant exercise or after he sits in a car for a period of time, or even when he sits in one position such as at a show. He can hear his knee crack when he moves it in cel't:lin positions. His right I3houlder has also caused bliP considerable pain and discomfort and continues to bother him from time to time. His neck and low back caused pain and discomfort after the collision. He is not able to exercise, run or assume the squat"lng or kneeling positions as he did before the accident. He is limited in his dance and acting activities and must wear a brace and knee pads. This limits his versatilIty and effectiveness. Simple movements that were easy before the acciden~ are now difficult. His Imee swells. He cannot ilfE:' dance partner like he did before the accident. His knee may buckle, and feels weak. (c) Plaintiff's goal is to have a career in acting and dance in the theater. The kneEl injury limits his economic potential and he has suffered a loss of earning capacity due to the injury. - Ii - EXHIBIT "c" RYAN M. MOORE, and CAROL G. MOORE, plaintiffs v. WASHINGTON AND DOWLING CONTRACTORS, INc. and FAYETTEVILLE CONTRAC- TORS, INC., Defendants v. DANIEL D. STEPHENS t/d/b/a DANIEL D. STEPHENS GENERAL CON'l'MCTING, Additional Defendant I I I I I I I I I I I I I I I I I I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-4531 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED MIPLY or PLaINTIFrs TO NIW MATTIR OJlJ~SHINOTO~D DOWLINO CONTRACTORS. INC. AND NOW COMES, PlaintiffS, Ryan M. Moore and Carol G. Moore, and make the following Reply to New Matter of Washington and Dowling contractors, Inc. 46. Denied. Plaintiffs' injuries and damages were caused as a result of the breaches of duty and negligence of Defendant Washington and DOWling, Inc. as set forth in the Complaint, the averments of which Bre incorporated herein by reference. It is denied that the injuries and damages were in any way caused or contributed to by any negligence, fault or carelessness on the part of Plaintiff, Ryan M. Moore, all such negligence, fault or carelessness being denied by Plaintiffs. specifically, Plaintiff, Ryan M. Moorel (a) kept alert and maintained a proper lookout on the roadway I (b) ~.intain.d adequate and reasonable control of hie vehicle on the roadway, (0) ~.intained a saf. and lawful spe.d under the ciroumstances while cperating his vehicle, (d) observed the reasunably observable conditione of the roadway, which did not include the oil or slipp.~y eubstanc. which was negligently allowed to enter onto and remain on the roadway as a result of the negligence of the Defendant as more specifically set forth in the complaint, (e) drove his vehiole in aocordanoe with the requirement of 75 Pa, C.B. 53361 and at a safe speed, (f) drove his vehicle in accordance with 72 Pa, C.S. 53362 and within the speed limit; (g) drove his vehicle with due regard to the safety of persons or property; (h) drove his vehicle in aocordance with 75 Pa, C.B. 53714 and in a careful manner; (i) drove his vehicle with due regard for the safety of persons and property and not in a willful or wanted mann.r, (j) drove his vehicle in conformance with the requirements of 75 Pa, C.B. 53736 and in a careful and prudent manner. Further, Plaintiff, Carol Moore, was not in any way negligent or at fault or careless in regard to the collision at issue. Specifically, Plaintiff, CBrol G. Moore I - 2 - (k) had no reason to believe that her son was not capable ot prudently operating the Alta Romeo automobile and, on the contrary, had reason to believe that her son was a prudent driverl and (1) knew only that the Alta Romeo was a Bate vehiole with good performanco characteristios, that her SOIl had adequate driving experience and was lawfully licensed by the Commonwealth to operate a passenger vehicle, including the Alta Romeo, and that the weather conditions were not unusual. 47. Denied. Plaintiffs were not in any way negligent. 48. Denied. Plaintiffs in no way assumod the risk of their injuries and damages and in no way were negligent or careless, 49. Admitted in part and denied in part. Admitted that cereain items of damage may be preclUded by the Pennsylvania Motor Vehicle Financial Responsibility Law. It is denied that any of the damages claimed by Plaintiffs in the present action are BO limited. 50. Denied. The complaint states a valid cause of action against Defendant Washington and DOWling. In any event, this paragraph states a legal conclusion to which no answer is required. - 3 - 51. Denied. This paragraph states a legal oonolusion whioh requires no answer. In any event Plaintiffs are not estopped from recovering from Washington and Dowling. 52. Denied. For the reason Bet forth in the complaint, Defendant Washington and Dowling did create a slippery condition on the roadway and failed to take lIction to clean up the slippery condition created when circumstanoes were suoh that they had a duty to abate the danger, 53. Denied. As set forth in the Complaint, Defendant Washington and DowLing had actual and/or construotive knowledge of the sllppery condition and a duty to warn against and abate the danger created by the condition. 54. Denied. Plaintiffs' injuries and damages were oaused by the acts, omissions or breaches of duty of Defendant Washington and DowLing as more specifically set forth in the Complaint. 55. Denied. This paragraph states It legal conclusion to which not response is required. To the extent a response is required, it is denied that the acts and omissions of Washington and DOWling were not a proximate cause of the collision or that there is any superseding cause that insulates Washington and Dowling from liability. On the contrary, Defendant Washington and DOWling is liable to plaintiffs as set forth in the - 4 - I. :/Iomn" ~71omn' & ,7(;'/-,. . :JIJlnrll'" J 1'",,, ~oa NO~T" rnONT U~~tT p 0, .O~ en "~~~I&Uun., nA 17108 I I . ... " '~ " II' ; J , , I , r ,. Ii " 5-30. Defendant Fayetteville cont~aoto~s inoorporates by referenoe as though fully stated herein the averments and denials contained in Paragraphs 5 through 30 of Defendant Washington and Dowling's Answer to Plaintiffs' complaint and New Matte~. By way of further answer, Defendant Fayettev i 1113 Contractors makes the eame averments and denials as Defendant Wilshington and Dowling does in those paragraphs. QQYlf'l'_L=-..li fJgX,l9Elig Il RYAN K. KQ.QBB v. 1f1\11Hl.H9T.9liJtlJLD.9Wr.UI9_g9liTRl\Q,'1'9U. llfO t. 31-34. Defendant Fayetteville Contrilctors incorpo~ates by ~eference as though fully stated heroin tho averments and denials Clontained in Paragraphs 1 through 30 of this Answer with New Matter, as well as the avermonts and donials contained in Parag~aphs Jl through 34 of Defondant Wash ington and Dowling's Answer to Plaintiffs' Complaint and Now Mattor. By way of further answer, Defendant Fayetteville Contractors makes the same averments and denials as Defendant Washington and Dowling does in Paragraphs 31 through 34 of Defendant Washington and DOWling's Answer and New Matter. WHEREFORE, Defendant Fayetteville Contractors respectfully requests Your Honorable Court to dismiss count I of the complaint without cost or judgment to it. 2 Qml1'IT II - 1i1!lll.l.01l1i~.II ~YIUf K. MOOR! y, .fAYI'I'DY.1lililJ...JJ.9lifRMIT.9J\8, IliC '. 3~. Oetendant Fayetteville Contractors incorporates by reference as though fully stated herein the averments and denials contained in paragrapha 1 through 34 of this Answer and New Matter. 36. Denied. The averments containod in Paragraph 36 of the Complaint are legal concluaions to which no responsive pleading is required. To the extent that a rosponsive pleading may be required, Defendant Fayetteville contractors specifically denies that it was negligent in any way, specifically denies that Defendant Washington and Dowl ing was nag 1 igent in any way, and speoifically denies that it is responsible f~r the alleged negligence of any persons or entities J.n connection with this case. 17. Denied. Defendant Fayetteville Contractors specifically denies that it was negligent, careless, and/or reckless in any way; speoifically denies that Defendant Washington and Dowling was nogligent, oarelelils, and/or reckless in any way! and specifically denies that it is responsible for the alleged negligence, carelessness, and/or recklessness of any persons or entities in connection with this ca~e. As to the remainder of the averments in Paragraph 37 of the Complaint, said averments are denied. After reasonable investigation I Defendant Fayettev i lle Contractors is without specific knowledgo or information to form a belief as to 3 " ii' I' , Dc, 2'/ 9 19 ~K '9~ I, I Ii 1)';1; Ii' '!IIIQl 'It I,d 1 ' PlOW)'! AhY 'HHtlll tiI./.IIU WHJHI Y 1'1 <<Ii ',I\.V,IHiA :1. " , I " Ii 'I 'II " , , " , !;'tt , ;!, , " I I \ , !. , 1)'1\ Ii " I.'. , I, " , " i/I, . I' " , " I' )'1 " I.. '/' ;1 I.' <'--'''P'_:__''''I''''''fl..... ....r..,.-. :'~h'''1'''''~l'r--- " fit' - ,- , , . " I, I 1 I , ; . 1 I' .' ", .,,' , lJ 'I ," . " " , " " " . " . . ... '. - # " r ., 1 "~ , I ......... - ... , , l[i' h" /,Yri, ,1' I:' " " " ~_._H. ~I" >1 :Jloma6, 2lomQl, & ,7C.;',. .'.),~,.,.". ~, J ~NJ JOI NO"TH '"ONT .'"lU P 0, .O~ ne H~""II.U~.. PA 1710e " ,II . I ',I ',' , ....__~,...ow--.,......h , 1. " ,., 'I . " t""" I, I ,1'.' " It ;, '" RYAN M. MOORE and CAROL G. MOORE, plaintirh v. WASHINGTON AND DOWLING CONTRACTORS, INC. and FAYETTEVILLE CONTRACTORS, INO. , Defendants I I I I I I I I I I I IN THE COUR'r OF COMMON PLEAS OUMBERLAND COUNTY, PENNSYLVANIA NO. 94-4531 CIVIL TERM 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED AH8W!R TO OOMPLAINT AND tiIM_~ffJB ANI) NOW, Defendant I~ashington and Dowling contraotors, Ino. (hereinafter "Defendant Washington and Dowling"), by its attorneys, Thomas, Thomas' Hafer, files this Answer with New Matter to Plaintiffs' complaint as followsl 1. Denied. After reasonable investigation, Defendant Washington and DowLing is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 1 of the Complaint, and proof thereof is demanded. 2. Denied. After roasonable investigat ion, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief aB to the truth of the averments contained in Paragraph 2 of the Complaint, and proof thereof is demanded. 3. Admitted. 4. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief aB to the truth of the averments contained in Paragraph 4 of the Complaint, and proof thereof is demanded. 5. Denied. Atter reasonable investigation, Oetendant Washington and Dowl1n'l is without knowledge or information suttioient to torm a beliet ae to the truth ot the averments oontained in Paragraph 5 of the complaint, and proof thereof is demanded. 6. Admitted in part and denied in part. It ia admitted that on or about Ootober 2, 1992, Defendant Fayettevill.e contraotors entered into Contract number 082157 with the Pennsylvania Department of Transportation and that the contract involved the construction of curb out ramps on various state routes in, among other places, New cumberland, Pennsylvania. 'l'he rema inder of the averments in Paragraph 6 of the complaint are denied as stated. After reasonable investigation, Defendant Washington and Pawling is without knowledge or information sufficient to form a belief as to the truth of the averments oontained in Paragraph 6 of the compla int, and proof thereof is demanded. 7, Admitted in part and denied in part. It is admitted that, on or about October 6, 1992, Defendant Washington and DowLing entered into a contract with Defendant Fayetteville contractors, Inc. to construct curb cuts in New cumberlanc., Pennsylvania. The remainder. of the averments in Paragraph 7 of the complaint are denied as stated. After reasonable investigation, Defendant Washington and DowLing is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 7 of the Complaint, and proof thereof is demanded. 2 B. Denied aa atated. It is unknown what Plaintiff means when he refen to "in thlt area of simpson Ferry Road and 15th street." Defendant Walhington and Dowling constructed numerous curb cut ramps on simpson Fer~y Road between the Interstate Route 03 northbound entranoe ramp and 9th street during the month of November 1992. 9. Denied. Defendant Washington and Dowling specifically denies that it parked any equipment along the curb on 15th street in front of or near 732 15th street. 10, Denied. It is specifically denied that Defendant Washington and Dowling was responsible for any equipment that leaked hydraulic fluid or oily substance onto the road surface of 15th street in front of or near 732 15th street, near simpson Ferry Road, New Cumberland, Pennsylvania, or that Washington and Dowling'S workmen otherwiso caused or allowed such oily substance to get on the roadway. 11. Denied. After reasonable investigation, Defendant Washington and Dowling is without specific knowledge or information to form a belief as to the truth of the averments contained in Paragraph 11 of the Complaint, and proof thereof is demanded, 12. Denied. After reasonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 12 of the Complaint, and proof thereof is demanded. 13. Denied. After reaBonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a 3 belief .. to the truth of the averments contained in Paraqraph 13 of the complaint, and proof thereof is demanded. 14. Denied. After reasonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 14 of the complaint, and proof thereof is demanded. 15. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information SUfficient to form a belief as to the truth of the averments contained in Paragraph 15 of the Complaint, and proof thereof is demanded. 16. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 16 of the Complaint, and proof thereof is demanded. 17. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 17 of the compla~nt, and proof thereof is demanded. lB. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 1B of the Complaint, and proof thereof is demanded. By way of further answer, Defendant Washington and Dowling inoorporates by reference its averments in Paragraph 10 of this Answer and New Matter as though fully set forth herein. 4 19. Denied. After rsasonable investigation, Defendant Washington and Dowling is without knowledge or information suffioient to form a belief a. to the truth of the averments contained in Paragraph 19 of the complaint, and proof thereof is demanded. 20. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief DS to the truth of the averments contained in paragraph 20 of the Complaint, and proof thereof is demanded. 21. Denied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 21 of the Complaint, and proof thereof is demanded. 22. Denied. After reasonable investigation, Defendant Washington and Dowling is without knowledge or infomation sufficient to form a belief as to the truth of the averments contained in Paragraph 22 of the Complaint, and proof thereof is demanded. 23. Denied. After reasonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 23 of the Complaint, and proof thereof is demanded. 24. Denied. After reasonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 24 of the Complaint, and proof thenof is demanded. 5 25. Denied. After reesonable investigation, Defendant Washington and Dowling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 25 of the complaint, and proof thoreof is demanded. 26. Denied. After reasonable investigation, Defendant Washington and PaWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 26 of the Complaint, and proof thereof is demanded. 27. penied. After reasonable investigation, Defendant Washington and DOWling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in ppragraph 27 of the Complaint, and proof thereof is demanded. 28. Denied. After reasonable investigation, Defondant Washington and DOWling is without knowledge or information suffici~nt to form a belief as to the truth of the averments contained in Paragraph 28 of the complaint, and proof thereof is demanded. 29. Denied. After reasonable investigation, Defendant Washington and powling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Par.agraph 29 of the complaint, and proof thereof is demanded. 30. Denied. After reasonable investigation, Pefendant Washington and powling is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 30 of the Complaint, and proof thereof is demanded. 6 COUNT I . NEGLIGENCE .YAM K. KOO.' V. .AIHINGTON AND DOW~INO CONTRACTOaS, IHO. 31. The averments and denialll oontaintld in Paragraphs 1 through 30 of this Answer and New Matter are incorporated by referenoe as though fully stated herein. 32. Denied. 'l'he averments oon ~a ined in Paragraph 32 of the complaint are legal conolusions to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant Washington and DowLing specifically denies that its agents, servants and/or employees were responsible for the alleged dangerous condition described in Plaintiff's Complaint. 33. Denied. Defendant Washington and Dowling specifioally denies that it was negligent, careless and/or reckless in any way. By way of further answer, Defendant Washington and Dowling specif ically denies that itl a) failed to use reason~ble skill and care to properly maintain its equipment in working order and further denies that, as a result of its maintenance practices, that hydraulic fluid or oily substances were allowed and permitteQ to spill onto the public roadway, specifically in the area of 732 15th street, New Cumberland, Pennsylvania, ther.eby creating dangerous and hazardous conditions for users of the roadway; b) negligently failed to clean up or remove hydraulic fluid or other oily substances spilled or deposited on the roadway in some other manner by defective equipment and further dunies 7 that it was reBponBible for or that its employee. became aware of the presenoe of any suoh Bubstanoe on the roadway in the afQresa1d area, a) parked equipment along a pubUc roadway knowing that oily fluids would escape onto the roadway I d) failed to properly train and supervise its employee~ and it is further denied thac its employees parked any equipment along the roadway, allowed oily substances to escape onto the roadway and failed to clean up the spill, e) negligently placed the safety and seGurity of the travelling public at risk and it is further denied that was responsible for spilled hydraulic fluid remaining on the road surface, and f) failed to notify proper authorities about any spilled hydr.aulic fluid or was responsible for notifying any authorities who would be able to take action to remove any such dangerous condition. 34. Denied. The aVlllrments contained J.n Paragraph 34 of the Complaint are legal conclusions to which no responsive pleading is required. To the extent that a responsive pleading may be required, Defendant Washington and Dowling specifically denies that it was negligent, careless and/or reckless in any way, and further, denies that it was responsible for the alleged dangerous condition mentioned in plaintiff I s complaint. As to the rema inder of the allegations in Paragraph 34 of the complaint, after reasonable investigation, Defendant Washington and Dowling is without knowledge or information suffioient to B form a belief a. to the truth of tho.e aVMrments, and proof thereof is demanded. WHEREFORE, Defendant Washington and Dowling respeotfully requests Your Honorable Court to dismiss count I of the complaint without cost or judgment to it. COUNT II - NEGLIGENCE RYAN H. HOORI V. r~Y!TTIVILL8 CONTR~OTORS, INO. 35 - 37. The averments contained in Paragraphs 35 through 37 of the complaint are directed to parties other than the Answering Defendant, and therefore, Defendant Washington and DOWling is not required to answer these averments. To the extent that Paragraph 35 of the complaint incorporates by referFnce all the preceding averments of the complaint, Defendant Washington and DOWling answers those averments as set forth in Paragraphs 1-34 of this Answer with New Matter, which are incorporated by reference as though fully set forth herein. WHERP.FORE, Oefendant Washington and DowLing respectfully request Your Honorable Court to dismiss Count II of the Complaint without cost or judgment to it. COUNT III OAROL G. HOORI V. WASHINGTON AND DOWLING OONTRACTORS, INO, 38. The averments and denials contained in Paragraphs 1 through 37 of this Answer and New Matter are incorporatGd by reference as though fully stated herein. 39. Denied. After reasonable investigation, Additional Defendant is without knowledge or information sufficient to form a belief as to 9 th. truth ot th. aVlrmlnt. oontained in Paraqraph 39 ot thl complaint, and proot thlreot is demanded. 40. Denied. After reasonable investiqation, Additional Defendant i. without knowledqe or information suffioient to form a belief as to thl truth of the averments contained in Paragraph 40 of the Compl~int, and proof thereof is demanded. 41. Denied. After reasonable investigation, Additional Defendant is without knowledge or information SUfficient to form a belief as to the truth of the averments contained in Paragraph 41 of the Complaint, and proof thereof is demanded. 42. Denied. After reasonable investigation, Additional Defendant is without knowledge or information sufficient to form a belief as to the truth at the averments contained in Paragraph 42 of the complaint, and proof thereof is demanded. 43. Denied. The averments contained in Paragraph 43 of the Complaint are legal conclusions to which nQ responsive pleading is required. To the extent that an answer may be required, Defendant Washington and Dowling specifically denies that they were negligent, careless and/or reckless in any way, and further, specifically denies that it was responsible for the alleged dangerous condition described in plaintiff's Complaint. As to the remainder of the averments in Paragraph 43 of the Complaint, after further investigation, Additional Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments, and proof thereof is demanded. 10 WH~R~FORE, Detendant Washington and Dowling re.pectfully requ.at. \lour Honorable Court to diemiBs count III at the complaint wl.thout coat or judgment to it. COUNT IV " DAMAGES C~OL G. HOORE V. r~YITTIVILLE OONTR~CTORS, INC. 44 - 45. As the averments contained in Paragrophs 44-45 at the Complaint relate to parties other than Answering Detendant, Detendant Washington and Dowling is not required to answer these aver.ments. To the extent that Paragraph 44 ot the Comploint incorporates by reference all the preceding averments ot the complaint, Detendant Washington and DOWling answers those averments as set forth in Paragraphs 1-44 of this Answer and New Matter, which averments are incorporated by reterence as though fully stated herein. WHEREFORE, Defendant Washington and Dowling respectfully request Your Honorable Court to dismiss Count IV of the Complaint without cost or judgment to it. NEIf MATTER 46. Plaintifts' injuries and damages were not caused by any acts, omissions or breaches of duty by Defendant Washington and DOWling, but were caused in whole or in part or were contributed to by the negligence, tault or carelessness at Plaintiff Ryan M. Moore in that her a) failed to keep alert and maintain a proper lookout upon the roadway, b) failed to maintain proper, adequate and reasonable control of his vehicle upon the roadway, 11 0) hUed to mdntain a sate and/or lawful speed under the cirOijmstance. while operating his vehicle u~on the roadway, d) tailed to observe the condition of the roadway, which condition was obvious, e) drove his vehicle in vIolation of 75 Pa.e.s. 53361, relating to driving vehicle at a safe speed, t) drove his vehicle in violation of 75 Pa.e.S, 53362, relating to the maxil1":m speed limit, q) drove his vehicle in careless disregard for the safety of persons or property, h) drove his vehicle in violation of 75 Pa.e.s. 53714, relating to careless driving, i) drove his vehicle in willful or wanton disregard for the safety of persons or property, j) drove his vehicle in violation of 75 Pa.e.s. 53736, relating to reckless driving, and by the negligence, fault, or carelessneas of Plaintiff carol G, Moore in that she! k) negligently entrusted the Alfa Romeo automobile to her teenage son, and 1) had knowledge of the car's high speed capabilities, her sonls inexperience as a driver, and the prevailing weather conditions. 12 47. Plaintiffs' oauses ot aol:1on are barred in whole or in put by the Pennsylvonia comparative Negligenoe statute 42 Pa.C.S. 57102, or by the Dootrine ot comparative Negligence. 48. Plliintittsl aseumed tho risk of their alleged injuries and damages by reason of their own negligent and careless conduct. 49. Any damages that Plaintiff~ may be entitled to recover in this action, which are specifioally denied, are limited to those damages which are recoverable under the provisions of the Ponnsylvania Motor Vehicle Financial Responsibility Law. 50. The Complaint fails to statCl a cause of action against Defendant Washington and DOWling. 51. The conduct of Plaintiffs, including acts and failures to act, estop Plaintiffs from recovery against Washington and DOWling. 5:.!. Defendant Washington and Dowling did not create a slippery oondition on the roadway and therefore, had no duty to abate any danger created by the existence of such a condition. 53. Defendant Washington and Dowling had no actual or constructive knowledge of any slippery condition on the roadway, and therefore, had no duty to warn against or abate any danger created by such a condition. 54. Plaintiffs' injuries and damages were not caused by any acts, omissions, or breaches of duty by Defendant Washington and Dowling, but were caused in whole or in part or were contributed to by the negligence, fault, or carelessness of others. 55. If any basis for liability on the part of Defendant Washington and DOWling exists, which is specifically denied, then the actions of 13 -"", - , r II , , " L' I. I , f ',II " , . -" \I , '. .. \ , '-,1'11..1, ,I~ 'f ,,", I , '., '. ,_.I"i', II;/' ,;" ' _ -;.-..j.~...i."""........io-..'l...t.......~..l~/~~1l> .h......lil;.~f .,..... 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