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on the morning of January 8, 1994.
According to the Local
climatological Data summary (Exhibit "A"), little more than trace
amounts of precipitation fell after 4:00 a.m.
One of the defendant owners, Chris Katsifis, had arrived at
the diner at approximately 5:30 A.M. on the morning of January 8,
1994. According to this defendant, sometime after 6: 00 A. M. he
went to shovel the steps where plaintiff slipped and fell. He did
this after the plaintiff had entered the diner, and prior to
plaintiff leaving the diner.
Mr. Katsifis testified that he
removed approximately one (1) inch of snow from the steps and then
applied salt.
Shortly after defendant applied the salt, the plaintiff, upon
exiting the diner slipped on the steps and was injured. This
defendant admitted that when he went back out to examine the steps,
they were still icy and he applied additional salt.
When the plaintiff exited the diner there wasn't good
illumination on the steps. He did not see if there was ice on the
steps, however, he assumed there was ice on the steps.
II. COUNTERSTATEMENT OF QUESTION PRESENTED:
WHETHER THERE IS A GENUINE ISSUE AS TO A MATERIAL FACT SO AS
TO PRECLUDE THE GRANTING OF DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT?
Suggested answer in the affirmative.
2
III. DISCUSSION I
Pennsylvania Rul~ ot civil Prooedure 1035(b) provide. that
"the judgment shall be rendered it the pleading., depolitions,
answers to interrogatories, and admissions on tile, together with
the attidavits, it any, show that there is no genuine issue as to
eny material tact and that the moving party 18 entitled to judqment
as to a mat.ter at law." In this regard, "the moving party has the
burden ot proving the nonexistence ot any genuine issue ot fact."
ThomDson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466,
468-69 (1979).
"The reoord must be examined in the light most tavorable to
the nonmoving party." Schacter v. Albert, 212 Pa. Super. 58, 62,
239 A.2d 841, 843 (1968). "All doubts as to the existence ot a
genuine issue at a material fact must be resolved against the
moving party." ThomDson Coal Co. v. Pike Coal Co., 488 Pa. 198,
204, 412 A.2d 466, 469 (1978). "Summary judqment 18 [to be]
granted only in the clearest of cases, where the right is clear and
free from doubt." .IlL.
There is a genuine i.ssue as to a material fact in this case.
The issue is whether the hills and ridges doctrine is applicable in
this slip and fall case. Plaintiff contends, for reasons set forth
hereinafter, that the particular facts of this case would warrant
an instruction from the court to the jury that defendants could be
held liable despite the absence of hills and ridges.
3
Judge Wieand, writing for the court in ~entz v. Pennswood
Apartment., 3~9 Pa, 3uper. 1, 518 A.2d 314 (1986), ably
di.tingui.hed the general rule regarding the duty a poese.eor of
land owes to his busine.s invitee from foreseeable harm from the
doctrine of "hills and ridges."
Generally, a possessor of land owes a duty to protect hie
invitees from foreseeable harm. Carrender V. Fitterer. 503 Pa,
178, 18~, 469 A.2d 120, 123 (1983)
"An owner or occupier of land is subject to liability for
harm which befalls his invitees due to a condition on his
land if he
(a) know. or by the exer.cise of reasonable
care would discover the condition, and
should realize that it involves an
unreasonable risk of harm to such
invitee, and
(b) should expect that they will not discover
or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to
protect them against the danger.
Restatement (Second) of Torts S 343.
But see also Section 343A of the Restatement which states,
(a) possessor of land is not liable to his
invitee. for physical harm caused to them
by any activity or condition on the land
whose danger is known or obvious to them,
unless the oossessor should anticioate the
harm desoite such knowledae S)r
obviousness.
Re.tatement (Second) of Torte, S 343A, (Emphasis added.)
4
If we limit ourselves to ~.he general rule set forth in
Carrender v. Fitterer. supra, and its reliance upon Restatement
(Second) of Torts, SS 343 and 343A, it is obvious that defendants
can be held liable for plaintiff's slip and fall. In this case,
the defendants should have anticipated that a person could slip and
fall on ice de.pite knowledge of the ice. The question is whether
the hills and ridges doctrine removes this case from the general
rule.
"The doctrine of hills and ridges appears to have emerged as
an exception to the general rule of liability..." Williams v.
Shultz, 429 Pa. 429, ,240 A.2d 812, 813 (1968). Although the
property owner is primarily liable for the removal of ice and snow
upon the sidewalk, our courts have recognized that due to climatic
conditions in Pennsylvania this duty does not require the owner to
keep his sidewalk free from snow and ice at all times, particularly
during or following recent precipitation. Rinaldi v. Levine, 406
Pa. 74, 176 A.2d 623 (1962).
Part of the rationale behind the hills and ridges doctrine is
that the landowner must be afforded a reasonable amount of time
within which to remove snow and ice from his sidewalks. "Snow and
ice upon a pavement create merely transient danger and the only
duty upon the property owner or tenant is to act within a
reasonable time after notice to remove it when it is in a dangerous
condition." Rinaldi v. Levine. 176 A.2d 623,625 (1962). The
doctrine of hills and ridges creates liability for a landowner who
5
does not remove snow and ice, but it does not remove from the
landowner the duty to remove ice and snow from his sidewalk within
a reasonable time. Therefore, the question remains in this case as
to whether the defendants removed the snow and ice from the steps
of their diner within a reasonable time on January 8, 1994. The
plaintiff claims that they did not.
In Williams v. Shultz, 429 Pa. 429, , 240 A.2d 812, 813
(1968), the court stated "that proof of hills and ridges is
necessary ~ when it appears that the accident occurred at a time
when general slippery conditions prevailed in the community as a
result of recent precipitation." Defendants, in support of their
motion for summary judgment claim that general slippery conditions
prevailed at the time plaintiff slipped and fell. According to
them, the fact that general slippery conditions prevailed precludes
them from being liable, in the absence of hills and ridges,
regardless of whether they acted within a reasonable time to remove
the ice and snow from their steps.
Plaintiff, in opposition to this motion, contends that
defendants had a reasonable amount of time within which to remove
the ice and snow from their steps, and that whether or not they had
a reasonable time to remove the ice and snow is a genuine issue of
a material fact in this case which precludes the granting of their
motion for summary judgment. In addition, since there is a
question regarding a reasonable amount of time for the defendants
to act to protect plaintiff, there is also a genuine issue as to
6
whether the hills and ridges doctrine is controlling in this case.
Ae stated earlier, in a motion for summary judgment, "the
moving party hae the burden of proving the nonexistence of any
genuine issu. of fact." ThomDson Coal Co. v. Pike Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 468-69 (1979). "All doubts as to the
existence of a genuine iSRue of a material fact must be resolved
against the moving party." lJi. at 204 and 469.
There is a question as to whether defendants had a reasonable
amount of time within which to remove the ice and snow from their
steps. The precipitation which fell the night of January 7, 1994,
and early morning of January 8, 1994, ceased entirely sometime
between 4:00 A.M. and 7:00 A.M. on the morning of January 8, 1994.
(Plaintiff's Exhibit "A", "Local Climatological Data Summary",
which was provided to defendants in their request for production of
documents.) According to the hourly precipitation records
contained within the Data Summary, only trace amounts of
precipitation fell between 4:00 A.M. and 5:00 A.M., while only 0.01
inches of precipitation fell between 5:00 A.M. and 6:00 A.M.
Again, only trace amounts of precipitation fell between 6:00 A.M.
and 7:00 A.M.
Except for very little precipitation, the freezing rain had
ceased as of 4:00 A.M. on January 8, 1994. Defendants opened
their diner for business at 5:30 A.M. and plaintiff fell at
approximately 6:40 A.M. Plaintiff contends that removal of limited
snow and ice from the steps to the diner would have taken the
7
defendants no more than ten (10) minute. to twenty (20) minute..
Plaintiff al.o contend. that defendants owed a duty to him as a
business invitee t.:J protect him from foreseeable harm, Carrender v.
Fitterer, 503 Pa. 178,469 A.2d 120 (1983), which duty included the
removal of snow and ice prior to his fall. considering these facts
"in the light most favorable to the nonmoving party," Schacter v.
Albert, supra at 62 and 843, it is highly questionable as to
whether defendants are entitled to summary judgment in this case.
plaintiff claims that the hills and ridges doctrine was
created to protect landowners from liability in a case where the
landowner had no control over the slippery conditions. This claim
is based upon cases in which the court has refused to apply the
hills and ridges doctrine. williams v. schultz, supra, Tonik v.
Apex Garaqes. Inc., 442 Pa. 373, 275 A.2d 296 (1971); "The
doctrine of 'hills and ridges' is not, however, applicable to all
situations." Mahonov Area School Dist. v. Budwash, 604 A.2d 1156,
1158 (pa. Cmwlth. 1992). In this case, defendants had a reasonable
amount of time to remove the ice and snow. They failed to do so.
The doctrine of hills and ridges does not preclude recovery in this
case.
8
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I. 8TATDIIl'l' 0' I'ACTUAL AND PROCIlDURAL HISTORY
On or about August 22, 1994, the Plaintiff, Robert Frederick,
commenced this suit subsequent to a slip and fall which occurred on
January 8, 19114 on the exterior si:eps of The West Shore Diner
located at 1011 state street in Lemoyne, Cumberland County,
Pennsylvania. The Plaintiff's Complaint named George Katsifis and
Chris l<atsitis as Defendants. Defendants, Chris Katsitis and
George l<atsifis, were and are the owners and operators of The West
Shore Diner.
Plaintiff, a 66-year-old individual at the time of the fall,
alleges that he fell on the "front steps of the diner due to icy
conditions on said steps."
At around 10:00 p.m. on January 7, 1994, Plaintiff picked up
his daughter, l<risti Anne FrederiCk, at her home in Lemoyne and
drove her to work in Camp Hill. Plainti.ff gave his daughter a ride
to work because "it was so obvious from all of the reports that we
were going to have some bad weather." At the time the Plaintiff
drove his daughter to work, the weather conditions were "pretty
miserable". At the time the Plaintiff dropped off his daughter at
work, he knew he was going to return the following morning to pick
her up.
Plaintiff picked up Kristi at work at "about 6: 00 a. m." the
following morning. When the Plaintiff picked up his daughter at
work, he described the weather conditions as "raining, freezing
rain". l<risti Anne Frederick at her deposition, testified that at
that time it was "snowy and icy, Sleeting...". According to the
1
plaintiff, the conditions had worsened since the night before.
Plaintiff dropped Kristi off at her home no later than 6:15 a.m.
and headed directly to tho West Shore Diner for breakfast.
Plaintiff testified that while driving to the diner, freezing rain
was falling and conditions were very icy. Plaintiff had been to
the diner at least a dozen (12) times or so in the past but could
have been there as many as thirty (30) times over the previous
twenty (20) years. Plaintiff arrived at the diner owned by the
Defendants shortly after 6: 15 a. m. While walking up the front
steps into the diner, Plaintiff noticed a coating of ice on the
steps. Plaintiff testified that he walked up the steps "rather
gingerly" upon entering the diner.
plaintiff was inside the diner for approximately twenty (20)
minutes having breakfast. At about 6:40 a.m., Plaintiff exited the
diner ill the same door and steps that he used upon entering. upon
exiting, Plaintiff began to take a step off of the top step when he
slipped and fell on to his back. When the Plaintiff exited the
diner, he believed that it was precipitating, but he was not sure.
The Defendants have contemporaneously filed a Motion for
summary Judgment. This Brief is in support of the Motion for
Summary Judgment. The matter is now before this Honorable Court
for disposition.
2
nI. AJlGUJlIIIT
1. TII DI'IKDANT.' NOTIO. 'OR 'UKNARY JUDONIKT 'HOULD
.1 GRAII'l'ID "I. THI PLAIIITI" MAINTAIN' THAT HI
.ILL DUI TO GINIRAL ICY CONDITION' YIT 'AILa TO
paovI lOTI THAT "HILLS AND aIDGIS" IXIBTID AND THI
SAXI wlal ALLOWID TO alNAIN roa AN UNRIIABONABLI
LIIIOTI 0' TINI.
The Plaintiff alleges in his complaint that the Defendants,
George Katsifis and Chris Katsifis, t/d/b/a The West Shors Diner,
were negligent for the following reasons:
a. Failing to properly and adequately ~nd adequat$ly remove
ice from the aforesaid steps, where Defendant knew or
should have known persons such as Plaintiff would be
walking;
b. Allowing a dangerous condition to exist without due
regard to the rights and safety of persons such as
Plaintiff;
c. Failing to correct said dangerous conditions;
d. Failing to warn of said dangerous conditions;
e. Failing to keep the subject property free and clear of
dangerous substances;
f. Failing to arrange for confident and/or qualified ice
removal from the steps;
g. Failing to ensure the reasonable removal of slippery
substances from the steps;
h. Failing to arrange for salting or cindering of the steps.
[Plaintiff's Complaint, para. 8.]
Pursuant to the Pennsylvania Rules of civil Procedure, the
atandard for granting a Motion for summary Judgment is as follows:
The judgment sought shall be rendered if the pleadings,
depositions, answers to interrogatories, and admission~
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law.
4
Pa.R.C.P. No. 1035(b), 42 Pa.C.S.A.
A party moving for summary judgment has the burden of proving
that no genuine issue of material fact exists and that he is
entitled to judgment as a matter of law. Thomcson Coal Co. v. Pike
Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Defendants, Chris
Kat.iUs and George Katsifis, submit that after reviewing the
record, the Court will conclude that there is no genuine issue as
to a material fact alleged against them and that they are entitled
to judgmant as a matter of law.
An abutting property owner is generally responsible for the
removal of ice and snow from his premises. However, he is not
under an absolute duty to keep his premises and sidewalks clear at
all times, since such a duty would be impossible to fulfill in our
climate. Th$refore, the sole duty upon the property owner is to
act to remove ice and snow within a reasonable time after notice to
remove it when it is in a dangerous condition. Williams v. United
states, 507 F.Supp. 121 (E.D. Pa. 1981); Rinaldi v. Levine, 406 Pa.
74, 176 A.2d 623 (1962); Strother v. Binkels, 256 Pa. Super. 404,
389 A.2d 1186 (1978); Gloss v. School District of Philadelchia, 127
Pa. cmwlth. 537, 562 A.2d 411 (1989).
The Court have also held that there is no liability created by
a general Slippery condition of sidewalks. Tolbert v. Gillette,
438 Pa. 63, 260 A.2d 643 (1970); Lascoskie v. Berks Countv Trust
Comcany, 417 Pa. 53, 208 A.2d 463 (1965); Rinaldi, sucra. at 623;
Wentz v. Pennswood Acartments, 359 Pa. Super. 1, 518 A.2d 314
(1986); Roland v. Kravco. Inc., 355 Pa. Super. 493, 513 A.2d 1029
5
(1986)1 and, Isso v. Meyer, 259 Pa. Super. 95,393 A.2d 733 (1978).
In Roland, the Court reiterated the long established legal doctrine
that
"In Pennsvlyania there is no liabilitv created by a
aeneral sliccerv condition on the surface of a carking
J.gj;. It must appear that there were dangerous conditions
due to ridges or elevations which were allowed to remain
for an unreasonable length of time."
151. at 1032, emphasis added, citing Bacsick v. Barnes, 234 Pa.
Super. 616, 341 A.2d 157 (1975) and Rinaldi, sucra. at 623. To
always require that walkways be free of ice and snow would impose
an impossible burden in view of the climatic conditions in this
hemisphere. Rinaldi.
Where a property owner is charg~d with negligence in
permitting ice and snow to accumulate, the Plaintiff must prove:
(1) that snow and ice had accumulated on the sidewalk
in ridges or elevations of such size and character
as to unreasonably obstruct travel and constitute a
danger to pedestrians travelling thereon;
that the property
or constructive,
condition; and
(3) that it was the dangerous accumulation of snow and
ice which caused the Plaintiff to fall.
(2)
owner had notice, either actual
of the existence of such
Roland, 513 A.2d at 1032. Should the Plaintiff fail to prove All
of the above, there is no basis for recovery.
"The doctrine of 'hills and ridges' is not an extension
or expansion of the duty which the law imposes upon an
owner or occupier of land. it is, rather, a limitation
on the liability of such persons for conditions which are
caused generally by climatic conditions in this
hemisphere. The doctrine of 'hills and ridges' has
always been deemed a principle of law intended to protect
possessors of land by increasing, not decreasing, the
proof required before a plaintiff can recover for
injuries sustained as a result of a fall on an ice or
6
snow covered surface."
Wentz v. Pennswood Acartments, 518 A.2d at 314 and 316.
In Roland, a patron's feet slipped out from under her in a
shopping center parking lot after exiting her car. The weather at
the time plaintiff fell was cold and misty. At her deposition,
plaintiff testified that the parking lot was wet and that she did
not see any snow or ice where she was walking. ~., 513 A.2d at
1031. However, she testified that she made the allegation in her
complaint that she slipped on ico because ice must have existed
which she did not see. 1.Q., 513 A.2d at 1031.
Defendants and additional defendants tiled motions for summary
judgment which were granted. In reviewing the testimony on appeal,
the Superior Court did not find any indication that ridq.. and
.levationl of ice cauI.d plaintiff to fall. 1.Q., 513 A.2d at 1032.
There was no indication of a dangerous condition and even if one
existed, a property owner is not liable if it is reasonable to
believe that the dangerous condition would be obvious and
discovered by an invitee. I,g., 513 A.2d 1032. Although the
question of whether a danger was known or obvious is usually for
the jury, the Court may decide the same where reasonable minds
could not differ. 151., 513 A.2d 1033.
In Williams v. United States v. Hewitt, 507 F.Supp. 121
(1981), the plaintiff slipped and fell in a post office parking
lot. Plaintiff and his co-worker described the lot as a sheet of
ice, and plaintiff did not see any salt. However, there was no
te.timony of ridges or elevations of ice on the parking lot. Th.
7
'.
court applied the law in Pennsylvania that there is no absolute
duty to keep premises free of snow and ice at all times. ~. at
1231 citing Rinaldi, sucra.
In applying the "hills and ridges" doctrine, the court found
there to b. no ridges or elevations of ice "of such size and
character as to unreasonably obstruct travel and constitute a
danqer to pedestrians travelling thereon." l!;l., 507 F.SUpp. at
123, quoting Rinaldi. Accordingly, the court found in favor of
defendants and additional defendants.
In the case at bar, it is undisputed that the weather
conditions from the night before and until the time of the
Plaintiff's fall were miserable due to ice and sleet. Conditions
were so severe that the Plaintiff arranged to transport his adult
daughter, Kristi, from her home in Lemoyne to her workplace in Camp
Hill right before his fall so that she would not have to drive.
When the Plaintiff picked up his daughter to take her home at
around 6:00 a.m. on th$ morning of his fall, conditions had
progressively worsened. Again, ice and sleet were still falling.
After taking Kristi home, the Plaintiff headed directly to the
Defendants' diner, just a short distance away. By his own
admission, freezing rain was still falling and the roads were very
icy. Upon arriving at the diner at about 6:15 a.m., the Plaintiff
noted that the exterior steps were icy and used caution while
entering the restaurant.
In light of the caution used by the Plaintiff upon entering
the premises, it is clear that the conditions of the steps were
8
known and obvious to him when he decided to leave the diner just
twenty-five (25) minutes later. Common sense would dictate that
exterior steps, coupled with continuous precipitation, would cause
generalized slippery conditions requirinq one to exercise more care
and caution than when the steps are dry.
More importantly,
however, is the principle stated in Roland that there is no
liabilitv created bv a aeneral sliccerv condition on the surface of
a parkina lot. Roland, BUDra. at 1032.
Plaintiff did not testify that a dangerous accumulation of
ridges and elevations of snow and ice caused him to fall. It i.
well-recognized that an establishment owner is not an insurer nor
guarantor against any type of accident that may occur on the
premises, Montacerto v. Sclit Rock Resort, 765 F.Supp. 855 (M.D.
Pa. 1991), and the mere occurrence of an accident is neither in and
of itself, evidence that the proprietor breached the duty of care
nor does it rAise a presumption of negligence. Hess v. Sun Ray
Drua Co., 387 Pa. 199, 127 A.2d 699 (1956).1
Furthermore, one of the essential elements in plaintiffs'
cases where damages are sought for injuries as a result of a fall
on ice or snow is that the defendant had actual notice of the
dangerous accumulation or that the dangerous accumulation existed
for a sufficient length of time to charge the defendant with
constructive notice. Lascoskie, suers. Although the cases do not
1 It must be remembered that not only must a person look
where he is going, but he must also exercise reasonable care and
diligence while entering and exiting a commercial establishment.
Villano v. securitv Savings Association, 268 Pa. Super. 67, 407
A.2d 440, 441 (1979).
9
set forth any minimum time which must exist before the defendant be
deemed to have constructive notica of a dangerous accumulation of
ice and snow on his sidewalk, it seems clear that the defendant
will not be held liable where the accident occurs befors the end of
the etorm. Lascoekie, sucra.1 Schoen v. Youshock, 202 Pa. Super.
460 198 A.2d 437 (1964)1 Neistadt v. Philadelchia, 138 Pa. Super.
200, 10 A.2d 7 (1939) (allocatur denied). (emphasis added).
In the instant case, the testimony is undisputed that from at
least 10:00 p.m. on January 7, 1994 until the Plaintiff's fall at
6:40 a.m. on January 8, 1994, ice and sleet continued to fall. The
time of the accident clearly happened during an ice storm.
Although the Plaintiff contends that the Defendants did not arrange
for salting and cindering of the steps, which is disputed by the
Defendants, this allegation, even if accurate, is of no import
given the ongoing nature of the storm. There is no evidence to
suggest that the ice was on the ground for such a period of time
that it unreasonably obstructed the Plaintiff while he walked out
cf the diner. Rather, the evidence speaks otherwise. The ice and
sleet was coming down so continually that the Defendants could not
have done anything to prevent the Plaintiff from falling.
To that end, Defendants, George Katsifis and Chris Katsifis,
t/d/b/a The West Shore Diner, request that their Motion for Summary
Judgment be granted and the Plaintiff's Complaint be dismissed.
10
.,
,
1'1. COIIClLU8IOII
Based upon the foregoing, the Defendants, George Katsifis and
Chris Katsifi., t/d/b/a The West Shore Diner, respectfully request
that Thb Honorable Court grant its Motion for Summary Judgment and
di..is. the Plaintiff's Complaint from the within cause of action.
Respectfully submitted,
BY:
KE E A.
(Att ney for Defendants
George Katsifis and Chris
Katsifis, t/d/b/a The West Shore
Diner)
.' "
11
VS.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 14 - L/ 73 (" CIVIL 1994
ROBERT FREDERICK,
Plaintiff
.
.
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
CIVIL ACTION LAW
JURY TRIAL DEMANDED
COMPLAIIIT
1. The Plaintiff, Robert Frederick, is an adult individual
residing at 12 Mallard ,=ourt, Mechanicsburg, Cumberland County,
Pennsylvania 17055.
2. Defendant, George Katsifis, is an adult individual
residing at 1178 Kingsley Drive, Camp Hill, Cumberland County,
Pennsylvania 17011, and co-owner of The West Shore Diner.
3. Defendant, Chris Katsifis, is an adult individual
residing at 886 Acri Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055, and co-owner of The West Shore Diner.
4. Defendants, Chris Katsifis and George Katsifis, own and
operate a business known as the West Shore Diner and at all times
material hereto were the owners and operators of said business.
5. On or about January 8, 1994, Plaintiff was proceeding,
with great care, out of the establishment known as The West Shore
Diner when he did slip and fall on the front steps of the diner due
to icy conditions on said steps.
6. The Plaintiff believes and therefore avers, that
Defendants knew or should have known of the existence of the icy
conditions present on the steps.
7. The Plaintiff believes and therefore avers, that
Defendants did on the date aforesaid, negligently, recklessly and
carelessly allow and permit the icy conditions on the steps to
exist.
8. The neg~igence, carelessness and recklessness of
Defendant, included' but was not limited to:
a. 'Failing to properly and adequately remove ice
from the aforesaid steps, where Defendant knew or should have
known persons such as Plaintiff would be walking;
b. Allowing a dangerous condition to exist without
due regard to the rights and safety of persons such as
Plaintiff;
c. Failing to correct said dangerous condition;
d. Failing to warn of said dangerous condition I
e. Failing to keep the subject property free and
clear of dangerous substances;
f. Failing to arrange for competent and/or
qualified ice removal from the steps;
g. Failing to insure the reasonable removal of
slippery substances from the staps;
h. Failing to arrange for salting or cindering of
the steps.
9. Solely as a result of Defendant's misconduct, Plaintiff
sustained serious injuries, including but not limited to, head,
neck and shoulder, pain and suffering, injuries to muscles, bones,
tendons, ligaments, nerves and fascia, mental and emotional
a;
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ROBERT FREDERICK,
Plaintiff
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
:
vs.
: NO. 94-4736
CIVIL
1994
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
.
.
.
.
CIVIL ACTION LAW
JURY TRIAL DEMANDED
:
PLlIKT:Il'r'S RIPLY TO HI. MATTIIR
AND NOW, comes the Plaintiff, ROBERT FREDERICK, by and thX'ough
his attorney, R. MARK THOMAS, ESQUIRE, and files this reply to the
new matter pleaded by the Defendants:
12. Denied. This allegation is a conclusion of law to which
no responsive pleading is required. To the extent that a response
is required, the Plaintiff denies that he was in any way negligent.
13. Denied. This allegation is a conclusion of law to which
no responsive pleading is required. To the extent that a response
is required, the Plaintiff denies that he was in any way negligent.
14. Denied. This allegation is a conclusion of law to which
no responsive pleading is required.
To the extent that a
responsive pleading is required, the Plaintiff states that he did
exercise reasonable care for his safety at all times relevant
hereto and denies that he was in any way negligent at any time
material hereto.
15. Denied. It is specifically denied that the Plaintiff was
careless and negligent at any time relevant to the Plaintiff's
claim. With respect to subparagraphs a through d, Plaintiff claims
that these allegations are conclusions of law to which no
LAW or.ICI. or ROGIR T. MARGOLI8
BYI KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, suite 900
Harrisburg, PA 17112
(717) 541-e990
Attorney 1.0. No. 41671
ROBERT FREDERICK,
plaintiff
VS.
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4736 CIVIL 1994
:
I CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICI TO PLIAD
TOI Robert Frederick, Plaintiff
c/o R. Mark Thomas, Esquire
54 Main street
Mechanicsburg, PA 17055
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN ANSWER WITH NEW
MATTER WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS
PLEADING OR JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
or ROGER T. MARGOLIS
DATE:
v/ /t.! /0/1
I I
(Attorney for Defendants)
LAW or'IC18 or RooIR T. MARGOLIS
BY: KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, Suite 900
Harrisburg, PA 17112
(717) 541-8990
Attorney 1.0. No. 41671
ROBERT FREDERICK,
Plaintiff
VS.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4736 CIVIL 1994
CIVIL ACTION - LAW
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
JURY TRIAL DEMANDED
DII.INDANTS' ANSWER WITH NEW NATTER
1. Admitted in part. Denied in part. It is admitted that
Plaintiff Robert Frederick is an adult individual. The remainder
of this avermfilnt is denied.
After reasonable investigation,
Defendants are without sufficient knowledge or information to form
a belief as to the truth of the averment, and accordingly deny the
same.
2. Admitted.
3. Admi tted.
4. Admitted.
5. Admitted in part. Denied in part. It is admitted that
on January 8, 1994, Plaintiff proceeded out of the establishment
known as the West Shore Diner. The remainder of the averments are
denied.
After reasonable investigation, Defendants are without
suft1cicmt knowledge or information to form a belief as to the
truth of the averment, and accordingly deny the same. By way of
further answer, Defendants acted properly, prudently and carefully
at all times relevant hereto.
6. Denied. paragraph 6 contains statements and conclusion.
of law to which no responsive pleading is required under the
Pennsylvania Rules of civil Procedure.
7. Denied. It is specifically denied that the Defendant.
were negligent, reckless or careless in any way with respect to the
plaintiff's claim. It is further denied that the Defendants
allowed and permitted icy conditions on the steps to exist. On the
contrary, Defendants acted reasonably, prudently and properly at
all times relevant hereto.
8. Denied. It is specifically denied that the Defendants
were negligent, reckless or careless in any way with respect to the
Plaintiff's claim. Subparagraphs a.--h. contain statements and
conclusions of law to which no responsive pleading is required
under the Pennsylvania Rules of Civil Procedure. To the extent
these subparagraphs are deemed factual, they are further denied.
After reasonable investigation, Defendants are without sufficient
knowledge or information to form a belief as to the truth of the
averments and accordingly deny the same. By way of further answer,
Defendants acted properly and carefully under the circumstances
with respect to the plaintiff's claim. Moreover, Defendants actsd
with due care and caution with respect to any duty they may be
found to have had to Plaintiff.
9. Denied. It is specifically denied that the Defendants
commi tted any misconduct with respect to the Plaintiff's claim.
After reasonable investigation, Defendants al'e without sufficient
knowledge or information to form a belief as to the truth of the
averments regarding the injury lIustained by the Plaintiff, and
averment. regarding the injury sustained by the Plaintiff, and
~ccordingly deny the same.
10. Denied. After reasonable investigation, Defendants are
without .ufficient knowledge or information to form a belief as to
the truth of the averment and accordingly deny the same.
11. Denied. After reasonable investigation, Defendants are
without sufficient knowledge or information to form a belief a. to
the truth of the averment and accordingly deny the same.
WHEREFORE, Defendants, George Katsitis and Chris Katsitis
t/d/b/a The West Shore Diner, respectfully request that judgment be
entered in their favor and against Plaintiff, together with such
other relief as deemed appropriato and just.
NEW MATTIa PUR8UAIIT TO PA.a.C.p.
RULB 1030. 42 PA.C.s.A.
12. Plaintiff's claims are barred by reason of Plaintiff
Robert Frederick's negligence, which negligence was the cause of
his injuries and the other damages claimed.
13. The causal negligent of Plaintiff Robert Frederick, was
greater than the total negligence, if any, of Defendants and
accordingly, any recovery by Plaintiff as against Defendants is
barred or must be reduced in accordance with the Pennsylvania
Comparative Negligence Act, 42 Pa.C.S. 57102. Alternatively, a
recovery arising from Plaintiff's cause of action must be reduced
in accordance with that Act.
14. Plaintiff, Robert Frederick,
failed to exercise
reasonable care for his safety under the circumstances then and
3
there existing and such failure to exercise reasonable care
constitute. comparative negligence on his part.
15. Plaintiff, Robert Frederick, was careless and negligent
under the circumstances then and there existing in that hel
(a) Failed to observe the weather conditions at the
t1mel
(b) Failed to observe the open and obvious conditions
or the area upon which he was walkingl
(c) Failed to take precautions as required by the
natural conditions then and there existing 1 and,
(d) Otherwise failed to exercise reasonable care under
the circumstances.
16. Plaintiff's claims are barred by reason of Plaintiff's
conscious and knowing assumption or the risk of harm allegedly
caused by Defendants' conduct.
17. Oefendants committed no acts which could be construed as
negligence or in breach of any duty owed to Plaintiff; therefore,
Plaintiff's Complaint fails to state any claim against Defendants
upon which relief may be granted.
WHEREFORE, Defendants, George Katsifis and Chris Katsifis
t/d/b/a The West Shore Diner, respectfully request that judgment be
entered in their favor and against Plaintiff, together with such
oth~r relief as deemed appropriate and just.
Respectfully submitted,
LAW
T. MARGOLIS
11
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for Defendants)
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LAW orrICI8 or ROGIR T. MARGOLIS
BYe KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, suite 900
Harrisburq, PA 17112
(717) 541-8990
Attorney I.D. No. 41671
ROBERT FREDERICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4736 CIVIL 1994
VB.
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DlrINDANTS' NOTION FOR SUMMARY JUDGNINT
AND NOW, come Defendants, George Katsifis and Chris Katsifis,
t/d/b/a The West Shore Diner, by and through their attorney,
Kenneth A. Rapp, Esquire, and move for summary judgment pursuant to
Pa.R.C.P., Rule 1035 and in support thereof aver as follows:
1. On or about August 22, 1994, the Plaintiff, Robert
Frederick, commenced this suit subsequent to a slip and fall which
occurred on January 8, 1994 on the exterior steps of The West Shore
,
Diner located at 1011 State street in Lemoyne, Cumberland County,
Pennsylvania.
2. The Plaintiff's Complaint named George Katsifis and Chris
Katsifis as Defendants.
3. Defendants, Chris Katsifis and George Katsifis, were and
are the owners and operators of The West Shore Diner.
4. Plaintiff, a 66-year-old individual at the time of the
fall, alleges that he fell on the "front steps of the diner due to
icy conditions on said steps." (See Complaint, para. 5, a copy of
which is attached hereto and marked Exhibit "A".)
,
5. Plaintiff's alleqations of negligence, carelessness and
recklessness against the Defendants are as follows:
a. Failing to properly and adequately remove ice
from the aforesaid steps, where Defendant knew
or should have known persons such as Plaintiff
would be walkingl
b. Allowing a danqerous condition to exist
without due regard to the rights and safety of
persons such as Plaintiff 1
c. Failing to correct said dangerous conditionsl
d. F~iling to warn of said dangerous conditions;
e. Failing to keep the subject property free and
clear of dangerous substances;
f. Failing to arrange for competent and/or
qualified ice removal from the steps;
g. Failing to ensure the reasonable removal of
slippery substances from the steps;
h. Failing to arrange for salting or cindering of
the steps.
(Exhibit "A", para. 8.)
6. At around 10:00 p.m. on January 7, 1994, Plaintiff picked
up his daughter, Kristi Anne Frederick, at her home in Lemoyne and
drove her to work in Camp Hill. (EXhibit "B", Deposition of Robert
E. Frederick, 2/20/95, at p. 11, In. 22 - p. 12, In. 2.)
7. Plaintiff gave his daughter a ride to work because "it
was 80 obvious from all of the reports that we were going to have
some bad weather."
(EXhibit "C", Deposition of Kristi Anne
Frederick, 2/20/95, at p. 9, In. 25 - p. 10, In. 2.)
8. At the time the Plaintiff drove his daughter to work, the
weather conditions were "pretty miserable".
(EXhibit "B",
Deposition of Robert E. Frederick, 2/20/95, p. 12, lns. 3-5.)
2
.
9. At the time the Plaintiff dropped off his daughter at
work, he knew he was going to return the following morning to pick
her up. (Exhibit "B", Deposition of Robert E. Frederick, 2/20/95,
p. 13, lns. 12-16.)
10. Plaintiff picked up Kristi at work at "about 6:00 a.m."
the following morning. (Exhibit "B", Deposition of Robert E.
FrederiCk, 2/20/95, p. 13, lns. 22-23.)
11. When the Plaintiff picked up his daughter at work, he
described the weather conditions as "raining, freezing rain".
(Exhibit "B", Deposition of Robert E. Frederick, 2/20/95, p. 14,
lns. 1.)
12. Kristi Anne Frederick testified that at that time of the
morning it was "snowy and icy, sleeting...". (Exhibit "e",
Deposition of Kristi Anne FrederiCk, 2/20/95, p. 10, lns. 16-23.)
13. According to the Plaintif.f, the conditions had worsened
since the night before. (Exhibit "B", Deposition of Robert E.
Frederick, 2/20/95, p. 14, lns. 2-6.)
14. Plaintiff dropped Kristi off at her home no later than
6:15 a.m. and headed directly to The West Shore Diner for
breakfast. (Exhibit "B", Deposition of Robert E. Frederick,
2/20/95, p. 14, lns. 10-25.)
15. Plaintiff testified that while driving to the diner,
fre.zing rain was falling and it was very icy conditions. (Exhibit
"B", Deposition of Robert E. FrederiCk, 2/20/95, p. 65, In.. 10-
13.)
3
16. plaintiff had been to the diner at least a dozen (12)
times or so in the past but could have been there as many as thirty
(30) times over the previous twenty (20) years. (Exhibit "B",
Deposition of Robert E. Frederick, 2/20/95, p. 15, lns. 5-6.)
17. plaintiff arrived at the diner ~wned by the Defendants
shortly after 6: 15 a.m. (Exhibit "B", Deposition of Robert E.
Frederick, 2{20/95, p. 16, Ins. 21-23.)
18. While walking up the front steps into the diner,
plaintiff noticed a coating of ice on the steps. (EXhibit liB",
Deposition of Robert E. Frederick, 2/20/95, p. 17, In. 18.)
19. plaintiff testified that he walked up the steps "rather
gingerly" upon entering the diner. (Exhibit "B", Deposition of
Robert E. Frederick, 2/20/95, p. 17, In. 24.)
20. Plaintiff was inside the diner for approximately twenty
(20) minutes having breakfast. (Exhibit "B", Deposition of Robert
E. Frederick, 2/20/95, p. 19, lns. 2-4.)
21. At about 6:40 a.m., Plaintiff exited the diner YiA the
same door and steps that he used upon entering. (Exhibit liB",
Deposition of Robert E. Frederick, 2/20/95, p. 19, lns. 9-10.)
22. upon exiting, Plaintiff began to take a step off of the
top step when he slipped and fell on to his back. (EXhibit "B",
Deposition of Robert F. Frederick, 2/20{95, p. 20, lns. 20-22.)
23. When the Plaintiff exited the diner, he believed that it
was precipitating, but he was not sure. (EXhibit "B", Deposition
of Robert E. Frederick, 2/20/95, p. 65, In. 20, p. 66, In. 1.)
4
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24. Defendants, George Katsifis and Chris Katsifia, are not
inaurers of plaintiff's safety.
25. Pursuant to Pennsylvania law, there is no absolute duty
to keep premi.e. free of snow and ice at all times. Williams v.
United states of America, 507 F.Supp. 121, 123 (1987).
26. Pursuant to Pennsylvania law, there is no liability for
general slippery conditions, and a plaintiff is not entitled to
recover for alleqed injuries sustained from a fall unless it can be
proven that hills and ridges existed and were allowed to remain for
an unreasonable length of time. Roland v. Kravco. Inc., 355 Pa.
Super. 493, 513 A.2d 1029, 1032 (1986).
27. It is believed and therefore averred that no genuine
i.aue of any material fact exists as to the liability of
Defendants, George Katsifis and Chris Katsifis.
28. Pursuant to Pa.R.C.P., Rule 1035, 42 Pa.C.S.A.,
Defendant. are entitled to summary judgment in their favor as a
matter of law.
WHEREFORE, Defendants, George Katsifis and Chris Katsifis,
t/d/b/ a The West Shore Diner, respectfully request that This
Honorable Court grant their Motion for Summary Judgment and dismiss
the Plaintiff's Complaint.
Respectfully submitted,
LAW O'.ICZS OW ROGBa T. MARGOLIS
5
IXHIBIT A
, '
, ,
';1
!WIlIRT rRllDl!RICX,
Plainl:ltt
IN TtuI COURT or CONNOR PtlAS or
CUMBERLAND COUN'l'Y, r~8YLVAH'IA
va.
NO.
CIVIL
ltU
GIORGI KATOI.IS Ind
CHltI. kAT' III' t/d/~/I
THI WUT 'ROD DIIfIR,
Detendants
CIVIL AcrXOH LAW
JURY TRIAL DBMAHDED
COQLAIft
1. The Plalnt1tt, Robert Frederick, i. an adult ihdividua1
Z'.aidinq at l' Ifallard cour~, W.."hanicebur<J, CWIIberland County,
>>onnaylvlnia 17055.
a. Delandant, Oeorqe Kat.iti., 1. an adult individual
re.idinq at 117. Xln9.ley Drive, Calllp Hill, CUlllberland County,
penn.yIvan!e 17011, and co-owner ot Tho We.t Shore Diner.
3. Defendant, Chri. Kataiti., 1" an adult individual
ll'eeicU,nq et ... Aori Road, MeChanic.bur"" eu.berland County,
'enn.ylvania 17055, and co-owner ot The W.at Shore biner.
4. Defend.nt., Chrie Kat.iria and Oeo&'qe X.taiti., own and
operate a bu. in... known a. the We.t Shore Diner and at .ll ti...
..teria1 heroto were the owners and operator. ot .aid bu.in....
5. On or about January I, 1994, Plaintitf wa. proa..ding,
with qre.t care, out ot the e.tablishment known as The We.t Shora
Diner vhen ha cUd .l ip and tall on the front atep. ot the diner due
to 1~y oondit10n. on eaid stepa. ,
6. The Plaintiff believ.. and therefore aver., that
Defendant. knew or .hou1~ h.ve known 0* the exi.tenoe of the lay
oondition. pre.ent on the stepa.
.
,
\
7. The Pl.intiff ~.li.v.s and th.~.fD~. ave~s, that
Deflndanta d14 on the data ato~.aaid, neglig.ntly, ~eckll.sly and
card.s.ly alloW and lIenait the icy conditions on tha atlps to
axht.
.. The n.qUgenca, carelassnesa And reckllssness of
Defendant, includld but was not 11.1ted to:
e. 'ailing to properlY And a4a~.tely ~aaovI 10.
froa the aforesald atepl, ~her. Defendant knew or sbould have
known persona auah ss plaintiff would be walking,
b. Allowing a danq.roUS condition to exist withGut
dua 1'a9ar4 to tba rights and aatlty of persONl .\lob as
plaint:l. ft,
c. ..i11"9 to COrTaat said dangerous condition,
d. railing to warn ot sai4 dancor.rous Clon41tlon,
e. 'ailing to keep the subjact property f~ae and
olear ar dangeroUS aUbstanc.s,
t. rallinq to arran;_ fOr competant and/or
qualified 10e romoval frO. the ataps'
'I' r.tUnq to inaure the reuonabla ~..oval Df
alippery aubstanoe. froa tha stepa,
h. F.iling to arranqa for .alting or cinderi.ng of
,
\
the atepa.
9. Solaly a. a r.ault ot Defendant'. ai.conduct, plalntiff
a\.lat.alnad ..1'101.1. in:)ul'1.., includln9 but not Ualtact to, head,
n.ck and .houlder, pain and auttering, Injuries to .uaol.., bon..,
tlndona, 11ga..nts, nerv.s and fascia, aantal and aaotlon.1
__".11'_ I.........
ell.tres., soae or allot which are or aay ~e oontlnu1nq in nature.
10. A. a further nsult of the herein agoidant: the l'ldntUt,
Rot>>e..e. rrecler!ok, has been or wUl bo obligee! to receivo an4
undergo ..41cal oere an4 attantion and to expend varlo~. suas of
.oney and to incur various .xpen... for the injurl.. which he ha.
auttered and ba ..y bo obllqed to oontinue to expend augh su.a or
ino~'&' such expenditure. tor an indetlnit. period of ti.. in tb.
tuture.
11. Aa. result ot tho.. injuries, Plaintiff suttered loat:
.arnJ.nQs and/or loss of .arnlnlJ capaoity, a re.tl'iotion of hia
activities and loa. ot lite's Plea.ur.., an4 ha. expended su.. of
aOhey tor a.cSigal Clare and troat..nt, rehabllU:ation ancl
a..latan"_, MO.. of wblch er. or ..Y bo continuing 1n natura.
WH1tRIlPOJUI, P1aintitf delll8nd. that judlJlllont b. ontere4 11' tavo&'
of Plaintiff and against the Def.ndants, in an a.ount in axce.. of
$10,000.00, plus coat. and interest as the law.ay allow.
Raspeottully aubmltted,
P/?;J~
R. Hark Tholll.a, Isquln
54 .. Hain Street
NechanlcabUZ9, >>A 17055
(717) 697-4650
I.D. f 41301
;.
t. .. .t ....,..
,. t..
IXHI8rr 8
1
vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4736 CIVIL 1994
1 ROBERT FREDERICK,
Plaintiff,
2
3
GEORGE KATSIFIS and
4 CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
5 Defendants.
JURY TRIAL DEMANDED
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,:
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Deposition of: ROBERT EDWARD FREDERICK
Taken by: Defendants
Before: Jan L. Bucher
Court Reporter-Notary
Date: Monday, February 20, 1995
at 1:15 p.m.
Place: Law Offices of Roger T. Margolis
6400 Flank Drive, suite' 900
Harrisburg, Pennsylvania
18
19 APPEARANCES:
20 LAW OFFICE OF R. MARK THOMAS
BY: R. MARK THOMAS, ESQUIRE
21 FOR - PLAINTIFF
22 LAW OFFICES OF ROGER T. MARGOLIS
BY: KENNETH A. RAPP, ESQUIRE
23 FOR - DEFENDANTS
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25
ORIGINAL
2
1
2 DEPONENT
3 Robert Frederick
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I N D E X
EXAMINATION
PAGE
By Mr. Rapp
3/65
57
By Hr. Thomas
EXHIBITS
13 NO.
DESCRIPTION
PAGE
14 (None.)
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,
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1 STIPUr~TION
2 It is hereby stipulated by and between the
3 respective parties that signing, sealing, certification
4 and filing are waived; and that all objections except as
5 to the form of the question are reserved until the time of
6 trial.
7
8 ROBERT EDWARD FREDERICK, called as a witness,
9 being duly sworn, was examined and testified as follows:
10 BY MR. RAPP:
11 Q Good afternoon, Mr. Frederick. Again, my name
12 is Ken Rapp and I'm here on behalf of the West Shore
13 Diner. I trust that you heard the instructions I gave to
14 your daughter before her deposition began. Did you listen
15 to those instructions?
16 A Yes, I did.
17 Q And can you agreE to abide by those?
18 A Yes.
19 Q Is there anything that affects your ability
20 today to listen to my questions and answer them
21 accordingly?
22 A I have a slight hearing loss in my left ear,
23 but generally I get
24 Q If you don't hear a question, please feel free
25 to stop me and I'll try to rephrase it so that you do hear
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it. okay?
A Okay.
Q Are you taking any medications today which
would affect your ability to understand my questions?
A No.
Q Mr. Frederick, what is your full name?
A Robert Edward Frederick.
Q And your date of birth, sir?
A June 21, 1927.
Q And your social security number?
A 210-18-9533.
Q And where do you currently live?
A 12 Mallard Court, Mechanicsburg 17055.
Q How long have you lived at that address?
A About 16 months.
Q Is that where you were living when this
incident took place?
A Yes.
Q Where did you live before the Mallard Court
address?
A 12 South Filbert Street.
Q Filbert?
A F-i-l-b-e-r-t in Mechanicsburq.
Q And how long did you live at South Filbert?
A About three years.
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Q Have you lived with anybody while you've lived
at the Mallard Court address?
A Yes, my one son lives with me now. He did not
live with me the time of the accident.
Q And what is his name and age?
A Robert, Jr. He's 32.
Q And when did Robert, Jr. , move in with you?
A After he finished school. It was about June
of '94.
Q Was there anyone living with you in January of
1994?
12 A Let me go back. Let me do a 11 ttle thinking
13 out loud. No, he was living with me at the time of the
14 incident. He had moved -- he had graduated in '93 and
15 moved in with me around June of '93.
16 Q So instead of June of '94, it was June of '93?
17 A Right.. So he was living with me at the time of
18 the accident.
19 Q
20 from?
You said he graduated. Where did he graduate
21 A Community College of Beaver County.
22 Q What is your marital status, Mr. Frederick?
23 A I'm single.
24 Q Have you been married?
25 A Married 37 years; my wife died. I was married
6
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for about four and a half years and divorced.
Q And when were you divorced from your second
wife?
4 A October of '91.
5 Q Are you paying any support or alimony --
6 A No.
7 Q -- as a result of that divorce?
8 A No.
9 Q Now, we know you have at least two children,
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Robert, Jr., and your daughter Kristi. Do you have any
other children?
A I have four others.
Q six children in all?
A Urn hum.
Q Are your other four children, do they live
locally?
A No, one lives in Illinois, one in Florida. And
the rest of them are local.
Q How many grandchildren do you have?
A Seven and a half.
Q One on the way?
A Urn hum, and one great-grandchild.
Q How many of your grandchildren live locally? I
know you have Marah. Do you have any other grandchildren
that live locally?
1 A Let me see. I think Marah is the only one that
2 is local now. Couple of them just moved out of the state.
3 Q Mr. Frederick, did you graduate high school?
4 A Yes.
5 Q And from where and when?
6 A Altoona High School, Pennsylvania, 1945.
1 Q Did you go on to --
8 A I have no other degrees. I have a great deal
9 of training and educational experiences, but no degrees.
10 Q So vocational-type training, that sort of thing
11 or on-the-job training?
12 A Both.
13 Q What sort of vocational training do you have,
14 sir?
15 A Well, I'm a retired police captain from the
16 Philadelphia Police Department and went through all the
17 training necessary to get to that position. And I'm also
18 a retired state parole agent. And I attended numerous
19 programs. As a matter of fact I wrote and taught quite a
20 few training programs.
21 Q You had mentioned you were with the
22 Philadelphia Police Department. How long were you with
23 that department?
24 A Eleven years.
25 Q Did you have any other police experience?
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A I was special agent in the Pennsylvania
Department of Justice for three years prior to the police
department experience.
Q When you left the Philadelphia Police
Department, is that when you began the job with the state
Probation and parole?
A No. I came to Harrisburg as Deputy Director of
the Pennsylvania commission of Crime and Delinquency.
Q And how long did you have that job?
A Well, I can't say about that particular
position. But I remained with that agency for about four
years.
Q other than the law enforcement positions you've
mentioned now, is there any other law enforcement jobs
that you've held?
A Only principally as a consultant in law
enforcement. I have consulted with many police
departments around the state. I have taught training
programs at Harrisburg Area Community College and at their
basic training course for police.
Q And I note that at that point you went to the
State Parole Department.
A Yes, that was about nineteen -- that was about
1988.
Q And you left there in around 1991?
9
1 A ' 92, I believe.
2 Q Were you an agent for the state Board of
3 Probation and Parole?
4 A Yes.
5 Q Is that what your job title was?
6 A Yes.
7 Q And what was the reason that you left?
8 A I reached retirement age and I didn' t like the
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way the things were going at the agency. So I decided I
might as well leave since I couldn't change them.
Q On the date that this incident happened in
January of 1994, were you employed at that time?
A I was employed part-time as a night desk clerk
at the Days Inn on Lewisberry Road, New Cumberland.
Q Now, to probably save some time, I noticed in
your answer to interrogatories -- we sent some questions
out to you -- you indicated that you lost wages in the
amount of
A $128 or something like that.
Q $128.25. Does that sound about right?
A That's right.
Q You're not making any claim for any other lost
wages; is that correct?
A NO, that's correct.
Q And are you making any other claim for lost
.
10
1 earnings capacity as a result of this incident?
2 A No, not specifically for that purpose.
3 Q Did you return to work at the Days Inn?
4 A 'ies, I did.
5 Q Are you still working there?
6 A No, I left there several months later.
7 Q And your decision to leave, did that have
8 anything to do with this incident?
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A No.
Q When you did return to the Days Inn, were you
able to do your same job duties that you had done before?
A 'ies.
Q Were did you go to work after Days Inn?
A Well, I took a few months off. And then I
started to work about August of '94 for a company called
Security Guards, Incorporated.
Q As a security officer?
A 'ies.
Q Are you still working for the Security Guards?
A I work for them principally as a trainer and
consultant. I don't -- except on rare occasions, I don't
do security work.
Q Is that a part-time position?
A Part-time.
Q 'iou're called in on an as-needed basis, that
11
1 sort of thing?
2 ^ Something like that, yeah. It's a rather
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informal arrangement.
Q Have any of your doctors placed any
restrictions on your ability to work since this incident
in January of 1994?
A No.
Q We discussed the $128 that you lost in lost
wages. Were you compensated by anyone for that lost wage?
A No.
Q Days Inn didn't pay you any of that?
A No.
Q Do you remember what day of the week this
incident took place at the West Shore Diner?
A I think it was a saturday morning.
Q Now, your daughter had indicated that you may
have worked the night before. Do you remember if you
worked the night before?
A Let me think. No, I would not have worlted the
night before because if I did, I wouldn't have gotten off
until 8:00 in the morning. so, no, I didn't work.
Q Do you remember what you did the night before?
A No.
Q Do you have any recollection --
A Other than taking her to work, no.
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Q
What time do you recall taking her to work?
A
Around 10:00.
Q
And do you remember the weather conditions at
A
Um hum, pr~tty miserable.
Was it snowing, sleeting?
Q
A
,
Raining, getting colder. I don't recall
8 whether it was freezing at that time.
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10 work?
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Q
Did anyone go with you to take your daughter to
A
No.
Q
After taking Kristi to work, did you go
13 directly home?
A
I believe so, yes.
Q
How far was it from Kristi's place of work to
16 your house?
17 A Five miles, five, six miles.
18 Q Do you remember what time you went to bed after
19 ,
you
20 A No, probably wasn't much after I got home. I
21 rarely stay up past 11:00 at the latest.
23
A
And what time did you get up the next morning?
I almost always get up around five, so probably
24 about that time.
25
Q
You don't remember that specifically? You just
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remember that's your ordinary time?
A Since I had to pick up her up at 6:00, I assume
I got up around five.
Q Did you take any medicines on the morning of
your fall?
A You asked earlier if I had taken any medication
that would affect my ability to answer these questions. I
take medication on a regular basis. I take medicine for
high blood pressure and for glaucoma.
Q And you took that on that morning as well?
A Yes, I take it every morning.
Q When you dropped your daughter off at her place
of employment on the night of January 7th, did you know at
that time you were going to also have to pick her up the
next morning?
A Yes, I did.
Q That was decided upon?
A Yes.
Q Did you stop anywhere between your house and
20 her employer?
21 A No.
22 Q What time did you pick her up?
23 A Right about 6:00.
24 Q And what were the weather conditions like at
25 that time?
,
.......,,, " I
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A
Raining, free?ing rain.
2
Q
Had they worsened since the night betore, the
3 seven hours betore that --
4
A
Yes.
5
Q
-- or eight hours?
6
A
Yes.
7
Q
Do you remember having your windshield wipers
8 on?
9
A
Yes.
10
Q
You took Kristi home. Do you know what time it
11 was that you dropped her off?
12
A
No later than 6:15.
13
Q
Was it light out at that time?
14
A
No, I don't recall it being light. It was
15 fairly dark then.
16 Q Where did you go after you dropped Krist! off?
17 A I went to the West Shore Diner.
18 Q Did you get out of your car when you dropped
19 Kristi off? ,
20 A No.
21 Q You didn't help her into the house or anything
22 like that?
23 A No.
24 Q You went directly to the West Shore Diner?
25 A Yes, sir.
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Q Had you been to the diner before?
A Yes, sir.
Q How many times had you been to the West Shore
Diner?
A I'd probably been there a dozen times or so
over the years.
Q I recall seeing somewhere that you may have
been there as many as 15 to 30 times?
A It's possible. I went there on a very
irregular basis. I've lived here for 20 years. So in 20
years I could have gone 30 times. I don't know.
Q Is there a particular reason you chose that
13 morning to go to the West Shore Diner?
14 A Yes, it was open.
15 Q Is that on your route back from your daughter's
16 house to your house?
17 A Not directly.
18 Q How do you go from your daughter's house on
19 Bosler Avenue --
20 A Bosler Avenue to Third street, Third Street to
21 Market in Camp Hill -- or in Lemoyne, left on Market
22 street west, and then left on state street.
23 Q By the Hess Station?
24 A By the Hess Station to the diner.
25 Q Did you have any destination, anyplace you had
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to go that morning, a meeting or anything like that?
A Probably not. I don't recall any.
Q And, again, I take it you were alone when you
went to the West Shore Diner?
A Yes.
Q Do you remember where you parked outside the
diner?
A Almost directly in front of the entrance, just
to the right of the entrance.
Q So if we were looking at the main entranceway,
you would have been just to the right of that?
A That's correct.
Q Was it light outside at that time?
A No.
Q still dark out?
A still fairly dark.
Q Were there other cars in the lot when you got
there at that time?
A Yes, there were several cars. I don't know how
many.
Q Do you remember what time you arrived at the
the diner?
A shortly after 6:15. It's no more than three or
four minutes from my daughter's home.
Q And which entrance did you use to get into the
" ,~.,,,I....
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1 diner?
2 A Front.
3 Q Did you have to walk up the steps?
4 A '{es.
5 Q And you heard your daughter describe two or
6 three steps. Is that what you recall?
7 A
8 Q
9 arrived?
10 A
11 Q
12 A
13 Q
14 A
15 days.
16 Q
'{es.
What were the conditions of the steps when you
There was some ice on them.
Was there any snow on the steps?
I don't recall seeing any snow on the steps.
Did the steps appear to have been shoveled?
No. There hadn' t been any snow for a couple of
'{ou mentioned there was some ice. You said
17 that with some hesitation.
18 A A coating of ice.
19 Q Do you have any idea how thick a coating of ice
20 we're talking about?
21 A I was not interested in measuring it.
22 Q Were you able to walk up the steps without any
23 problem?
24 A I walked rather gingerly, but I got up the
25 steps all right.
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Q When you went inside the diner, where did you
sit?
A As you go in the diner, I sat about two
booths two or three booths to the right along the front
of the diner.
Q And did you sit by yourself?
A Yes.
Q Were there other people eating in the diner at
that time?
A Yes.
Q Did you know any of the employees at the diner?
A No.
Q Do you remember when the last time you had been
there before that day?
A No, I don't recall.
Q As I recall, the lot at the diner is a gravel
or stone lot.
A Yes.
Q Was there ice on the lot as well?
A Yes, there was some ice on the lot.
Q Did you have any difficulty walking from your
car to the steps?
A I didn't have any difficulty but I was careful.
Q Do you recall seeing salt or cinders on the
steps when you walked in?
,
1 A
2 Q
3 A
4 Q
5 A
6 Q
7 A
8 seven.
9 Q
10 A
11 Q
12 A
13 dark.
No, I did not.
How long did you stay inside the diner?
Twenty minutes.
I take it you had your breakfast?
Yes.
What time was it when you walked out and fell?
Probably about 20 minutes of, 20 minutes before
And now we're at about 6:40, correct?
Correct.
Approximately. Was it light out at that time?
No, it was still semi darkness; it wasn't full
14 Q You say it was semi darkness. There was some
15 natural lighting, I take it?
19
16 A Yes.
17 Q While you were in the diner, did you see any of
18 the employees of the diner putting any salt on either the
sidewalk \
19 lot or the or the steps?
20 A No, sir.
zl Q You didn't see that at all?
22 A No, sir.
23 Q You had mentioned that when you came in the
24 diner you went to your right and sat in one of the
25 booths. Were you sitting in a position that your back Was
20
1 to the door?
2 A No, I was facing where anybody would have gone
3 out to those steps.
4 Q At some point you decided you were going to
5 leave the diner?
6 A Correct.
7 Q As I understand, there's a little vestibule
8 area as you leave the diner; is that
9 A outside the diner itself, yes.
10 Q There's also a ramp that goes to your right.
11 A That's correct.
12 Q And that would have been the opposite direction
13 from your car?
14 A Yes.
15 Q Do you remember opening the door to go down the
16 steps?
17 A Yes, I do.
18 Q And which foot did you step down with first, if
19 you recall?
20 A No, I don't recall. I went outside the door
21 and stood with both feet on the top step and waited tor
22 the door to close. I don't recall whether I reached back
23 to close the door or whether I just stood there.
24 Q You stood on the top step?
25 A Yes.
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o And let which door close?
A The door back of me, the outside door.
o Are we talking about the door closest to your
car?
A Yes.
o Not the door into the building?
A Not the door into the diner, but the door into
the vestibule from outside, right.
o So you stood on the top step and let that door
close?
A Correct.
o And what happened next?
A I had not begun to take a step; my feet shot
out from under me. And that's the last I remember until I
woke up lying on the steps. My feet were on the parking
lot level and my back was on the steps. And I don't
know -- I probably wasn't unconscious at all. And if so,
it was only a few seconds.
Q You said both your feet were on the parking
20 lot?
21 A
22 0
23 fell?
24 A
25 Q
Yes.
Did you take a step with either foot before you
No, sir, I did not.
When you came to rest, where was your head?
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A On the -- one of the top steps. I don't know
whether it was the first or second one.
Q When you were standing on the top step, were
you holding onto anything?
A No, sir.
Q Were you carrying anything?
A No, sir.
Q It's my understanding there is a railing on the
left side as you go down the steps.
A Yes, sir.
Q Do you know the railing I'm calking about?
A Yes, sir.
Q Did you grab onto that at any time?
A I started to reach for it. That's the last
thing I remember.
Q Were you standing more to the right of the
steps as you went down or to the left of the steps?
A Towards the right.
Q But you specifically recall reaching for that?
A I reached for the railing and that's it.
Q And the door was already closed at that time?
A Yes.
Q What do you remember happening next?
A Well, I remember that I couldn't move. And I
shouted for help; I don't know how many times. I know it
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was four or five times at least. And next thing I knew
somebody was -- had their arm behind my shoulders and were
helping me up. But I -- that part of it is a little bit
hazy.
Q Do you remember striking your head?
A Oh, yes.
Q Where did you strike your head? You said it
was on the first or second step, top step.
A Yes, right anout the base of the skull.
Q Towards the middle, to the right, or the left?
A Right across here (indicating). The edge of
the step felt like it hit me right across the base of this
(indicating) .
Q How many parts of your back? Do you remember
striking any parts of your back?
A My upper back, around my shoulder blades, and
my lower back.
Q At any time did you lose consciousness?
A I believe for a very short period.
Q For a split second?
A I was more stunned I think than unconscious.
Q And you recall laying there and shouting
help
A Yes.
Q -- four or five times?
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you?
A lies.
Q And then somebody then came out and did help
12 A At the most.
13 Q Do you remember who the first person was to
14 help you?
15 A I believe it was the couple who went to get my
16 daughter. But I don't know who they were. And the
17 waitress also cams out with them.
24
A Yes.
Q To the best of your knowledge, were there any
witnesses outside of the diner?
A No, I didn't see anybody. And if they had
been, they would have been the ones to come and help me, I
assume. So I assume there was nobody there.
Q And I assume that your car was -- your car door
was only 10 feet or so away from you?
18 Q
19 A
20 Q
21 A
22 recall.
23 Q
24 inside?
25 A
Is that Gloria Powell?
I believe that's her name.
And who helped you up?
The three of them, I believe, as far as I can
And would I be correct that they took you back
lies.
25
1 Q Did they take you over and lay you down on the
2 booth?
3 A Not immediately. I sat on one of the counter
4 stools for a minute or so and began to get dizzy.
5 Q Did you have any other pain at that time?
6 A I don't recall any pain at that particular
7 time, no.
8 Q Who suggested that you lay down?
9 A I believe it was Gloria.
10 Q And so did Gloria help you over to the booth?
11 A Yes.
12 Q Did anyone else help you?
13 A I don't remember.
14 Q Do you remember any of the conversation you had
15 with Gloria on the date of your fall?
16 A Not really. I remember asking saying
17 something about calling an ambulance. But I don't
18 remember whether she said she was going to or -- I
19 remember vaguely something to that effect. But that's
20 all.
21 Q You didn't mention calling an ambulance. You
22 think she may have mentioned it?
23 A I think she may have mentioned it, yeah.
24 Q Do you remember any discussion about the steps
25 themselves on the day of your fall?
~I"-'" _,
26
1 A Well, I jU5t said that I slipped on the ice.
2 Q Who did you say that to, if you remember?
J A Well, Gloria was there. I think by that time
4 one of the Katsifis brothers had come out from the
5 kitchen. But whether he heard that or not, I don't know.
6 Q Did you know either of the Katsifis brothers
7 before this?
8 A only from seeing them. And I probably wouldn't
9 have recognized them on the street, but I saw them in the
10 restaurant a couple of times.
11 Q So an ambulance was called and --
12 A Yes.
13 Q Did they put you on a back board?
14 A Yes, they had a great deal of difficulty
15 because of my being in the -- lying in the booth. By the
16 way, that was not the first booth on the left. It was
17 toward the far end of the diner where there are larger
18 booths. And I had to basically get myself up. I was able
19 to do it by getting my arm up over the back of the booth
20 with some help from somebody else, get myself upright.
21 And then they got me onto a back board.
22 Q Did they put a neck brace on you?
23 A Yes.
24 Q Did the employees of the West Shore Diner give
25 you any ice or anything like that before the ambulance
27
1
arrived?
2 A No.
3 Q They just kept you still?
4 A That's right.
5 Q Were they there the whole time?
6 A No. As a matter of fact, business went on as
7 usual after I got settled down on the booth there.
8 Q While they were waiting for the ambulance?
9 A Yeah, which was all right.
10 Q Which ambulance transported you?
11 A Wormleysburg.
12 Q Other than putting you on the back board and
13
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22
23
24
25
taking your vital signs and giving you the neck brace, did
they provide any treatment --
A No.
Q -- between picking you up and taking you to the
hospital?
A No.
Q What kind of shoes were you wearing on the date
of your fall?
A It was a casual leather shoe with a soft,
rubber sole.
Q Do you still have those shoes?
A Yes, I do.
Q You're not wearing them today by any chance,
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are you?
A No, I'm not. I wear them whenever I'm going
out on the ice.
Q I notice you're wearing glasses today.
A Yes.
Q Are those the same glasses you were wearing on
the date of your accident?
A Yes.
Q Did your glasses falloff when you fell?
A I don't think they did.
Q And what is the purpose for your glasses? Is
it for -- are you nearsighted or farsighted?
A Farsighted. I have them principally for
reading.
Q How long have you had to wear glasses?
A Twenty years.
Q Is that a requirement on your driver's license?
A No, it's not. My vision is excellent except up
close.
Q At the time that you fell, Mr. Frederick, do
you recall whether it was sleeting or snowing or any
precipiation at that time?
A I wasn't outside long enough at that time to
It had been raining for quite a few hours, freezing
I don't know whether it was still doing so at the
know.
rain.
,
-.,.."....
29
1 time.
2 Q As you were sitting there eating your
3 breakfast, you d idn' t look out and notice if it was still
4 coming down?
5 A No, I didn't.
6 Q '{ou had mentioned earlier in response to one of
7 my questions that it was semi dark outside.
8 A '{es.
9 Q Were there any lights attached to the diner
10 that illuminated the area?
11 A There is some lighting. It's not particularly
12 bright, but there is some artificial lighting. I don't
13 recall just what's there. I think there's a light on a
14 pole at the street edge of the lot.
15 Q okay. Do you recall that there is a street
16 light there? Do you recall if there's any lights on the
17 diner itself, the exterior of the diner?
18 A It seems to me I recall a couple spotlights
19 around the corner of the diner. But I'm not sure of that.
2Q Q It's my understanding that there are two
21 spotlights on top of the vestibule as you come out.
22 A There may be.
23 Q You can't say either way?
24 A I don't recall, no.
25 Q Could you see the steps as you walked down
,
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them?
A I didn't have a chance to look at them. I came
out and stood there a second and I was gone.
Q How about as you walked into the restaurant?
Could you see the steps as you walked up?
A Oh, yes.
Q You saw them well enough to see that there was
ice on them?
A No, I don't know that I could see ice. Being
reasonably intelligent since we had freezing rain for
several hours, I assumed there was ice on them.
Q I believe you said before you don't recall
whether anybody salted or cindered while you were at the
the diner?
A I didn't see anybody.
Q How about after you had fallen? Did you notice
if there was any salt or cinders on the ground?
18 A Well, no. No, I did not.
Did notice coat or pants? ,
19 Q you any on your
20 A No, I never noticed any on my clothes.
21 Q Did you see anybody salt or cinder after you
22 fell?
23
24
25
A I saw somebody come from behind the counter
back in the kitchen area and go past me when I was lying
in the booth, carrying a bucket. What was in it, I don't
31
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know.
Q Do you know who that person was?
A No.
Q Did you overhear any conversation about salting
or cindering the steps?
A No, no.
Q Did you talk to the police officer? Officer
Heck, I believe, is his name.
A I talked to him. I don't think I talked about
anything of substance as far as the ice or my fall was
~oncerned other than to tell him that I slipped on ice
from the steps and fell.
Q Do you recall telling him anything else other
than that?
A No.
Q Have you talked to Officer Heck at all since
that date?
A No.
Q Did you overhear any conversation between the
officer and any employees of the West Shore Diner?
A No, not that I can recall.
Q Who called the Lemoyne Police Department?
A I don't know.
Q You had mentioned that you felt dizzy when you
were sitting on the counter and that you didn't recall any
32
1 pain at that point. Did you have any pain before the
2 ambu lance arrived?
3 A No, not until I attempted to get up.
4 Q when the ambulance did finally get there?
5 A Yes.
6 Q And what pain did you have at that point?
7 A I know that my back hurt, my lower back, and my
8 shoulders bothered me. They hurt when I tried to raise
9 myself up.
10 Q How about your neck? Did your neck hurt at
11 that time?
12 A I don't specifically recall my neck hurting. I
13 could not lift my head. But I had no -- I don't recall
14 any pain in my neck.
15 Q You were taken directly to Holy spirit Hospital
16 to the emergency room?
17 A Yes.
18 Q Were you admitted to the hospital or did you
19 just go in for a few hours and leave?
20 A Yes, it was the latter.
21 Q Did they take x-rays?
22 A Yes, they did.
23 Q And those X-rays include your back and neck?
24 A They did not initially. They took X-rays of my
25 lower back. And I asked them why they hadn't X-rayed my
33
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neck. And they said, Well, the doctor did not order
that.
And I asked them and asked the X-ray technician
to call dOWl\stairs and get authorization to X-ray my neck
because that was what was giving me the most problem at
that point. I could not lift my head up off the litter.
And she called and the doctor refused. So they had to
take me back downstairs. And the doctor came in and I
asked why she hadn't x-rayed my neck.
And she said, "Well, I palpated you and you had
no pain there." I said, "I'm not talking about pain. I'm
talking about the fact that I can't lift my head. And
there's something that's causing that." After
considerable argument, she finally agreed to have my neck
X-rayed.
Q So they did X-ray you then?
A Yes.
Q To the best of your knowledge, did you suffer
any broken bones as a result of this incident?
A No.
Q How about any stitches? Did you have any
stitches?
A No.
Q There was mention in your, I believe, in the
complaint that you had a contusion to your scalp. Was
34
1 that in the back that you were talking about, the base of
2 your
3 A Yes. In fact when they say scalp, I'm not
4 sure what they mean when they say scalp. It was
5 actually, again, on my neck below what I would consider my
6 scalp.
7 Q And that reference to a contusion, was that a
8 bruise? Is that what you meant?
9 A Yes.
10 Q Was there ever a scrape there or just simply a
11
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17
18 Q Was it gone within a month?
19 A I don't have the slightest idea. It wasn't
20 serious. It was probably no more than, just as you ~ay, a
21 scrape. And you don't pay much attention to that.
22 Q After you were at Holy Spirit -- well, what did
23 they do for you at Holy Spirit besides argue with you?
24 What else did they do?
25 A Gave me some muscle relaxers. Well, what they
black and blue mark?
A I can't see back there so I don't know.
Q Okay. Did that contusion resolve itself?
A Yes.
Q How long did it take for that to go away?
A I don't know. I didn't pay any attention to
it.
35
1 actually gave me was what they call N-s-a-i-d, which is a
2 nonsteroidal anti-inflammatory drug.
3
4
5
6
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8
9
10
11
12 don't know, one of the pain relievers. I didn't take them
13 because of the fact that that particular type of
14 medication is contraindicated for persons with high blood
15 pressure.
16 MR. RAPP: Off the record.
17 (A discussion was held off the record.)
18 BY MR. RAPP:
19
20
21
22
23
24 A Yes. When I saw my family doctor, he gave me
25 other medication. And I don't recall right now what it
Q Or A-n-s-a-i-d?
A m hum, yes.
Q they give you any other medications?
A that I recall. I don't believe so. Told
me to go stay in bed for a while, few days, and see
my family Monday.
Q Did you take the pain reliever that they
pretilcr i bed?
A No, I did not. I took some aspirin or -- I
Q So you took aspirin instead?
A (Nodding head up and down.)
Q Did you ever get a replacement medication for
the Ansaid instead of using that because you had the
problem with the high blood pressure?
36
1 was.
2 0 I understand your daughter took you home from
3 the hospital?
4 A Yes.
5 0 How long were you at Holy spirit?
6 A TWo, two and a half hours, I suppose.
7 0 Did they prescribe any neck brace or anything
8 of that nature when you left?
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A No, they didn't. They suggested that I see my
doctor and see what he had to say.
o That was Monday then you went to see your
doctor?
A Yes.
o Did you remain confined to a bed for saturday,
the better part of Saturday and Sunday?
A I stayed mostly either in bed or in a recliner.
o Just took it easy for those two days?
A Yes, I did. I didn't feel much like doing
anything.
o
A
o
When did you call your doctor?
Monday morning.
And was that Dr. Blacksmith?
A Yes.
o Did you see Dr. Blacksmith Monday morning?
A Yes, I did.
1 Q
2 A
3 Q
4 Spirit?
5 A
6 Q
7 A
37
Did he take any additional X-rays?
No.
Was he given the X-rays to review from Holy
No, he wasn't.
What did Dr. Blacksmith do for you?
As I recall, he did give me some pain
8 medication and suggested that I see an orthopedist, Dr.
9 Lonergan, whom I had gone to before.
10 Q How long had Dr. Blacksmith been your family
11 doctor?
12 A About 20 years.
13 Q Does he have any particular specialties?
14 A No, he's a GP.
15 Q So he recommended that you see Dr. Lonergan?
16 A 'les.
17 Q And you said you had seen Dr. Lonergan before?
18 A 'les.
19 Q Why had you seen Dr. Lonergan?
20 A I have had arthritis in my back; had a bit of a
21 disc problem some years ago.
22 Q Did you have any surgery for that disc problem?
23 A No.
24 Q Where was the disc? Do you know?
25 A I don't know specifically which one it was. It
,
38
1 was in the lower back.
2 Q Had you had any problems with your upper back
3 or your neck before this accident?
4 A No.
5 Q When did you first treat '",ith Dr. Lonergan?
6 I'm talking about before this accident happening.
7 A Oh, must be seven or eight years before.
8 Q And was it at that time that he diagnosed you
9 as having arthritis in your back?
10 A Yes.
11 Q Do you recall when the last time you had seen
12 Dr. Lonergan before January 8, 1994?
13 A Probably five years.
14 Q Were you taking any arthritis medication --
15 A No.
16 Q -- in January of 1994 before this happened?
17 A No.
18 Q Did you have any other visits with Dr.
19 Blacksmith other than the initial visits the day after
20 or two days after this fall?
21 A I had several since but I don't think they were
22 direr.tly connected with this.
23 Q He sent you to see Dr. Lonergan. And did you
24 see him shortly thereafter?
25 A Yes, within a few days.
,
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Q How many times did you treat with Dr. Lonergan
for the injuries you sustained in this fall?
A I believe only once. And he referred me to
Mechanicsburg Rehab.
Q Did Dr. Lonergan take any x-rays?
A No.
Q Did he have the benefit of reviewing the X-rays
from Holy Spirit?
A Ves, he did.
Q And Dr. Lonergan then sent you to Mechanicsburg
Rehab?
AVes.
Q And from what I could gather, you treated with
that physical therapy group from sometime in February
until April?
A April, yes.
Q Does that sound right?
A Ves, that's about right.
Q Have you had any other physical therapy since
completing your therapy with Mechanicsburg Rehab?
A No, I haven't.
Q And how often would you go to physical therapy
in Mechanicsburg?
A I was going there a couple of days a week. We
reached a point where my improvement had stopped. I
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progressed to a certain point and wasn't getting any
further. We just mutually decided to discontinue.
Q Would you drive yourself to the appointments?
A Oh, yes.
Q Did anyone else ever drive you to an
appo intment?
A No.
Q And what would they do for you at physical
therapy sessions?
A Well, the heat and sound treatments.
Q Ultrasound?
A Yes, and then some stretching exercises. And,
of course, they measured the ability to bend and turn my
head and so forth.
Q Were they targeting any particular area?
A The particular area that was bothering me the
most was my neck and somewhat limited motion of my head.
Q Did your mid and lower back problem resolve
itself?
A Yes, I would say so.
Q How long did that take before that problem went
away?
It was pretty well cleared up before the end of
A
Apri 1.
Q
Had the pain that you had in your neck lessened
41
1 during the course of this physical therapy?
2 A Yes.
3 Q In other words, you had gotten somewhat better?
4 A somewhat better.
5 Q How would you characterize the pain you had in
6 your neck when you stopped the physical therapy?
7 A Well, it was still there. And it was not -- it
8 wasn't severe. It was -- and it didn't bother me all of
9 the time. But most of the time I was conscious of it
10 especially when I tried to turn my head to the left.
11 Q How often would it bother you? You said it
12 didn't bother you all the time.
13 A Well, you mentioned reading earlier. I do read
14 a great deal, as many as four, five, six books a week.
15 And it would bother me when I was reading because, of
16 course, your head is cocked forward slightly when you're
17 reading apparently putting a strain on it. So I had to
18 get into the habit of reading with my head more upright
19 and holding the book up.
20 Q And any other activities that you noticed that
21 it would bother you more than at other times?
22 A Well, the only thing that I can say i~ that any
23 time that I had to -- when I was driving my car, if I had
24 to look to my left, my movement was restricted. And I had
25 to turn my shoulders rather than turn my head in order to
42
1 look out the left side of my car.
2 Q Is that still the way it is today?
3 A Yes, it is. It improved considerably during
4 the trentment but reached a point where it didn't improve
II anymore.
6 Q I noticed in response to the request for
1 production of documents that I sent to your lawyer -- he
8 was kind enough to send me Mechanicsburg Rehab records, at
9 lsast that he had -- the discharge summary indicates that
10 you complained of pain rated at 2{10.
11 I took it to mean two out of ten when you were
12 discharged for physical therapy. Is that what you recall
13 telling the physical therapist? It's dated on the back
14 herfl signed by your physician in April of 1994.
15 A We had quite a discussion over that. And they
16 asked me when I first came in how I would rate my pain on
17 a scale of one to ten. And I gave them a figure. Several
18 weeks later when they asked me to rate it, I said, "How
19 can I do that when I don't remember what I gave you the
20 last time? In other words, yes, it's less than it was.
21 But I don't know what number I gave you before. So I
22 can't very well give you the same kind of number now."
23 And I think that two was possibly the
24 therapist's own idea of what I was saying. I don't know.
25 I know that the pain had lessened. My principal complaint
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was limited range of motion, not pain.
o Have you had any other treatment -- you've
already mentioned you didn't have any other physical
therapy. But have you had any other treatment since April
of 1994
A No.
o -- as a result of this accident?
A No.
o Do you have any future appointments with either
Dr. Blacksmith or Dr. Lonergan with respect to this
problem?
A No.
o And no one has suggested to you that you'll
need surgery for any problem related to this fall?
A No, no.
o I notice that in one of the records that you
were prescribed an over-door traction device.
A Yes.
o Who prescribed that for you?
A Dr. Lonergan.
o What is an over-door traction device?
A It's a device that you hook on to the door.
And then you put a collar on your neck and it stretches
your neck out.
o How often were you supposed to use that device?
,
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A Daily. I don't recall exactly how long. But I
would use it for about 10 or 15 minutes at a time. And
for a short time it had some effect. Again, it got to a
certain point that it no longer had any effect.
Q And you used that daily for what period of
time?
A couple of weeks.
Q And after you stopped using it, did you ever
return to using it again?
A No.
Q How about a soft or hard collar? Have you had
to wear those at all?
A No.
Q Have you had any conversations with either of
the Katsifises since this incident took place in January
of 1994?
A A couple of days after the incident I stopped
in and talked to them, and I talked to them on the phone.
Q A couple days afterwards, let's start with that
one. Who did you speak with?
A I believe it was the younger of the two. I'm
not sure which one it was right now. I have some notes
that I could refer to if you want me to.
o Do you still have those notes?
A Veah. That's in my -- that was on the lOth
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after I had seen Dr. BlaCKsmith -- no, before I had seen
Dr. Blacksmith. I think I said I spoke with George. I
don't Know when I saw him in person. But I did see him in
person on the 20th. I saw Chris and George.
Q You spoke with George on the loth?
A Yes.
Q Do you remember the specifics of that
conversation?
A Can I go off the record for just a moment? I
want to ask you a question.
Q We're not off the record yet. If you want to
speak to Attorney Thomas, that's fine. I don't have any
objection to that. We'll go off the record.
(Mr. Thomas and Mr. Frederick left and
returned. )
THE DEPONENT:
that I had been injured.
his insurance company.
I talked to George and told him
And I asked that he report it to
BY MR. RAPP:
Q I'm sorry. You told him that you had been
injured and that he should report it to his insurance
company?
A Yes, and asked them to have them contact me.
Q What was his response, if any, if you
remember?
46
1
A
He said he would report it but he thought that
2 their insurance had been canceled.
3 Q Was there any other discussion at that time
4 that you recall ?
5 A No, I don't think so.
6 Q And then you did not have any other discussions
7 with the Kats1fises until the 20th of January?
8 A I believe. I think that's the same time I
9 talked to them.
10 Q And that's when you actually went to the diner?
11 A Yes. I think I actually went there on the lOth
12 also but was only there for a few minutes. And on the
13 20th, I spent a little more time.
14 Q Had you received any contact or communication
15 from an insurance company or anybody between the lOth and
16 the 20th?
17 A No one.
18 Q So you went there on th~ 20th. And what was
19 your purpose for going on the 20th?
20 A Find out why I hadn't heard from anybody.
21 Q And who did you speak with?
22 A Chr is and George both.
23 Q And where did you speak to them?
24 A Pardon me?
25 Q Where did you speak with them?
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A In the kitchen of the diner.
Q And what was discussed in that conversation?
A Again, they said that they thought their
insurance had been canceled, but they had notified their
agent. And I think I asked them to have him contact me.
And I also suggested that I thought from what they told me
I didn't think their insurance had actually been canceled,
which turned out to be the case.
Q Was that the extent of the conversation you had
on the 20th?
A I believe so.
Q Did you have any other conversations with
either George or Chris Katsifis?
A Not that I recall. My notes don't show any
other wait a minute. Yes, on the 29th, I talked to
Chris and he told me that his policy had been reinstated.
Q Was that over the telephone?
A Yes.
Q Did you ever have a conversation with either
Chris or George where you told them that you were not
after them but you were after their insurance policy?
A No.
Q You don't remember that conversation?
A No.
MR. RAPP: Off the record.
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1 (A discussion was held off the record.)
2 BY MR. RAPP:
3 Q Did you have any conversations with any other
4 employees of the West Shore Diner?
5 A I think I spoke with Gloria, the waitress.
6 Q And when did you speak with her?
7 A That may have -- I think that was on the 29th
8 also, January 29th.
9 Q Was that in person or on the telephone?
10 A That was in person. So I must have talked to
11 chris and George in person that day, too. That date -- I
12 have a note here that she said, "I knew you were out and
13 that's why I made you lie down on the booth."
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Q Now, you're referring to notes that you have
Did you take those notes -- when did you take those
here.
notes?
17 A I entered those notes on my computer within an
18 hour after the conversation.
19 MR. RAPP: And do you have a copy of those "
20 notes?
21 MR. THOMAS: Yeah, I do.
22 MR. RAPP: Are you going to providu me a copy
23 of those notes?
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MR. THOMAS: Off the record.
(A discussion was held off the record.)
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BY MR. RAPP:
Q During the conversation you had with Gloria,
did you ask her for any information about either the diner
or herself?
A other than her address, no.
Q How about her -- I take it you asked for her
name?
A Oh, yes.
Q Her phone number?
A I believe I asked for it. I don't have it in
here.
Q Do you remember any specifics about the
conversation with GlorJ.a?
A No.
Q Do you remember whether any of the employees of
the West Shore Diner -- when I say employees, I'm talking
about other than the Katsifises or Gloria -- did they tell
you at any time whether they had salted the steps before
you fell?
A
No.
Have you ever beer. a plaintiff in a lawsuit
Q
before?
A No.
Q Have you ever made a claim before such as this?
A For injury, no.
50
1 Q Have you ever injured your back, your neck or
2 should~r in either a work-related accident or some other
3 accident like an automobile accident or another fall?
4 A Thirty years ago I strained a shoulder when I
5 was a poU.ceman. That never bothered me since that time.
6 Q How did that come about?
7 A Chasing somebody over a fence and the fence
8 fell apart.
9 Q Were you hospitalized as a result?
10 A No.
11 Q Did you have any treatment as a result?
12 A No.
13 Q Any physical therapy?
14 A No.
15 Q How about anything else? Any other automobile
16 accidents or other falls before this incident of January
17 8, 1994 where you were injured?
18 A No serious injuries. I was in an automobile
19 accident again back about 1966 and had a bump on the head,
20 nothing more than that, a few bruises.
21 Q Were you hospitilized as a result of that?
22 A No.
23 Q Were you taken to a hospital?
24 A It happened outside the hospital.
25 Q So you did go into the emergency room?
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A Yes, they took a gurney out and wheeled me in.
Q What year was that, 1968 or 1969?
A No, about 1966.
Q Which hospital was that?
A It was Episcopal Hospital in Philadelphia.
Q You said you had hit your head in that
accident?
A Hit my forehead and my knees.
Q Did you have to wear a soft or hard collar as a
result of that accident?
A No.
Q Did you have any physical therapy as a result
of that accident?
A No.
Q Do you currently have any restrictions on your
activities that were placed by your doctors?
17 A No.
18 Q And would I be correct that the complaint you
19 have now is the limited range of motion?
20 A Yes.
2l Q Are there any other complaints that you have --
22 limited range of motion in your neck?
23 A Yes, chronic but not severe pain in my neck.
24 Q Does the weather affect that?
25 A No.
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Q Are there any activities that you're involved
in on a regular basis that you're not able to do since
this accident? You mentioned the reading. It's changed a
little, the manner in which you rend. Is there anything
else that you're involved with on a regular basis?
A Well, I had to change my golf swing drastically
which gives me another excuse for playing bad golf.
o We could all use that. Are you a regular
golfer?
A No, an irregular golfer.
o How often do you golf a year?
A Most of the time I play about once a week. But
in the summertime, this past summer I didn't play nearly
as much. I only played about three times all year.
o Are you member of a club anywhere?
A No.
o And was your decision to play less golf this
past summer related to this injury or was it something
else?
,
A It was a combination of that and a few other
things, just lack of opportunity. But part of it was
because it was uncomfortable for me.
o What other reasons? You said lack of
opportunity.
A Well, just so happens that the way I was -- my
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part-time work was going and so forth, I just didn't have
the time. I don't like to play on weekends.
o Anything else besides golf or reading?
A Got to be a little careful in roughhousing with
the grandchildren. I get a few twinges sometimes when I
do that. So I don't do it much anymore.
o Which grandchildren are they?
A Little Marah who was here earlier, who is six
years old. And I have a 3-and-a-half-year-old grandson
who's built like a fullback and weighs about 60 pounds.
o Are you able to still pick him up?
A Not really. Not unless I squat and hug him and
pick him up that way because I can't pick him up the way I
used to.
o Is that because he weighs 60 pounds?
A Frankly, because it hurts my neck.
o What's his name?
A Jordan Frederick.
Q Where does Jordan live?
A Bloomington, Illinois.
Q Have you taken any trips since January of 1994
more than 100 miles away from this area?
A Numerous trips.
Q How many trips did you take?
A I've been down to Florida several times to
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Tampa. Flew down most of the times. I did drive down
once.
Q You say several times. How many times are we
talking about?
A Three or four times.
Q And you drove down there. Did you drive by
yourself?
A
Q
A
Yes.
Did you break it up into a two-day trip?
Three days, actually. Did sightseeing on the
way.
Q So you flew three times and you drove once?
A Yes, I think so.
Q Any other trips?
A Flew to seattle once and flew to Bloomington
once.
Q How about driving? Did you drive anywhere more
than 100 miles out of the area other than the one trip to
Florida?
A I drive to visit friends in the Pittsburgh area
fairly recently. So I've driven out there maybe 12 or 14
times in the past year. And I drive to Philadelphia
occasionally.
Q Has that caused you any problems other than
some normal stiffness? Have you had any other problems
54
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1 with driving out to pittsburgh?
2 A No, other than the one that I spoke of. I have
3 to be extremely careful going on a ramp on the expressway
4 because it I get lazy, I don't turn my head far enough. I
5 have to turn my shoulders instead.
6 Q Are you taking any medications now for your
7 occasional neck pain?
8 A No.
9 Q When was the last time you did take
10 medications?
11 A For the pain?
12 Q Um hum.
13 A I don't recall; quite some time ago. The pain
14 isn't severe enough that I would want to take any
15 medications.
16 Q Have you been involved in any auto accidents or
17 falls since January 8th, 1994?
18 A No.
19 Q And you had said before you didn't have surgery
20 on your back?
21 A No.
22 Q Have you ever had any surgery on your neck or
23 your shoulder?
24 A No.
25 Q Your daughter had mentioned that you joined the
,
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Alpha Gym club over in Mechanicsburg.
A '{es.
Q Did you join that after this happened?
A '{es.
Q Are you still a member there?
A still a member. I haven't been active
recently. Time just doesn't seem to work out.
Q what did you do at the Alpha Gym Club?
A The usual -- trying to think what they call
those machines, but back exercises, leg exercises, that
sort of thing.
Q Was that prescribed by one of your doctors?
A It was suggested. It wasn't prescribed. They
14 thought it would be helpful if I did that.
15 Q Was it helpful?
16 A No, other than helped me lose a few pounds.
17 Q Did you do any lifting on Nautilus machines or
18 those types of things with your neck?
19 A
20 didn't.
No, no. I was concerned about that so I
21 Q As far as your medical bills are concerned,
22 have they been covered by the insurance?
23 A Up until now, yes.
24 Q And who is your insurance carrier?
25 A Well, of course, Medicare and the Pennsylvania
1
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Employee Benefit Trust Fund.
Q Have you had to pay any money out of your own
3 pocket as a result of the injuries?
4 A Minimal amount.
5 Q Less than $100?
6 A Yes.
7 Q Have you received any letter from either
8 Medicare or your insurance company that they have a lien
9 on any settlement in this case?
10 A No.
11 Q You mentioned the job you're doing now is
12 security. How many hours a week do you think you do that?
13 A Well, I haven't worked for several months
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because I chose not to. I was working from 32 to 45, 46
hours for a while helping get a new account set up for
them. Did that for a couple months and then I had to be
relieved.
Q And those 32 to 40 hours per week for a couple
of months, that was after this January 8th incident?
A Correct.
MR. RAPP:
Thank you.
BY MR. THOMAS:
Q I just have a couple for you, Mr. Frederick.
Mr. Frederick, do you recall how long you were in the
That's all the questions I have.
I appreciate it.
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1 diner when you had breakfast that morning?
2 A Twenty, twenty~five minutes.
3 Q Do you recall how many other patrons were also
4 in the diner having breakfast during that period of time
5 you were there?
6 A Not specifically, but I would gueas maybe a
7 dozen.
8 Q And of those people who were inside the diner
9 at the same time you were, was there any discussion that
10 you could hear regarding the condition of the steps?
11 A No, I was reading a newspaper and I really
12 didn't pay any attention.
13 Q Now, you had mentioned that when you left, you
14 had to go through two doors to get outside?
15 A Yeah.
16 Q And the first door took you into a small
17 vestibule?
18 A Yes.
19 Q And the second door then took you outside?
20 A Correct.
21 Q You mentioned that you were standing on the top
22 just as you go out the second door. Is that top a step or
23 more of a platform?
24 A My recollection of it it's more of a step.
25 It's not very big.
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Q Was it large enough for you to stand on while
you closed the door?
3 A Yes.
4 Q On tha t particular step, could you see
5 accumulated ice? The step I'm talking about this top
6 step now on which you were standing -- could you see
7 accumulated ice?
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A I couldn't see any. I felt there might be some
ice there.
Q And when you say that you couldn't see any,
would that have been because of the lighting conditions at
that particular spot?
A Well, I remember looking down. I remember I
didn't see anything much of anything. I have to assume
that the reason I didn't see much is because I couldn't
see much. There wasn't much light.
Q You had mentioned that at some point you
reached for the railing. And did you reach for the
railing prior to or after the slip?
A Prior to.
Q Did you actually make contact with the railing
in the sense that you grabbed hold of it before you
slipped?
A
Q
I don't think I did.
You don't recall actually having grabbed hold
60
1 of the railing?
2 A No, I don't.
3 Q Were you going to the diner for any other
4 purpose other than to have breakfast there?
5 A No.
6 Q And did you in fact eat breakfast in the diner?
7 A Yes.
S Q Did you notice as you wero exiting the diner,
9 were there any signs or anything warning patrons about the
10 condition of the steps?
11 A No, there were none.
12 Q While you were inside eating, did you at any
13 time see either George Katsifis or Chris Katsifis?
14 A I saw one of the brothers. I have trouble
15 remembering which one is which. But the younger brother
16 was back in the kitchen. I could see him through the
17 pass-through.
1S Q Is that in the kitchen? Is that the only place
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where you saw him?
A Yes.
Q And you did not see the older brother at all?
A No.
Q Now, after you fell, one of the questions that
was asked was regarding your shouting for help. Would you
characterize that you were actually shouting from your
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prone position?
A Well, all I can say is I must have been because
somebody heard me inside the building. So I must have
shouted.
Q Did you try and get yourself up from the steps?
A Yes, I did.
Q Were you able to?
A No, I could not.
Q Your inability to get yourself up from the
steps, do you know if that was because of slippery
conditions or was that because of your inability to move?
A I couldn't move.
Q You had mentioned that when you first arrived
at the restaurant that you went up the steps gingerly.
Was that because you could see an accumulation of
precipitation on the steps?
A No, I think it was because the conditions
generally made me feel that there might be some ice there
because it was we were having freezing rain. There was
ice on almost everything.
Q Did you actually slip at any time when you were
going up the steps to enter the restaurant?
A r don't recall that I did.
Q Now, this may have been asked of you and I may
have missed it. But did you have any conversations with
62
1 anyone immediately following your fall during which the
2 condition of the steps was discussed?
3 A I can't remember having any specific
4 conversation other than I'm sure that I said something
5 about I slipped on the ice. That's all.
6 Q Do you recall overhearing any other
7 conversations of anyone else present regarding the
8 condition of the steps?
9 A No.
10 Q You mentioned having difficulty lifting your
11 one grandchild who lives in Bloomington, Illinois.
12
13
14
15
16
17 Bloomington about a week before that. So I had been
18 seeing him on a fairly regular basis here. And I
19 discovered some time ago that he was getting too heavy for
20 me to lift in a normal manner.
21 Q Now, there was some talk where your daughter,
22 when she testified, she testified that she observed you
23 using a cane?
24 A That was not directly related to this. I had
25 twisted my knee for a while. I didn't say anything to her
A Yes.
Q When's the last time you saw him?
A About a month ago.
Q And did you at that time attempt to lift him?
A No, because, first of all, he'd only moved to
,
63
1 about why I was using the cane. I guess she made the
2 assumption that it was related to this, but it was not.
3 Q Do you recall the approximate date the last
4 time you would have seen Dr. Lonergan?
5 A I think around oarly February.
6 Q And
7 MR. RAPP: Of '94?
8 THE DEPONENT: Yes.
9 BY MR. THOMAS:
10 Q Do you recall what your condition was in terms
11 of pain at that time and the location of that pain?
12 A Yes, it was -- at that time pain was
13 principally in the base of my neck and my lower back.
14 Q And did that pain that you were experiencing at
15 that time, did it inhibit you from any normal activity?
16 A Most normal activity at that time. Walking was
17 painful, sitting was not very comfortable. So, yes, for a
18 period of a month or so, most activities were
19 uncomfortable.
20 Q Did you have any difficulty sleeping during
21 that time?
22 A For the first few days. After that I had no
23 real problem. I would wake up occasionally during the
24 night for a period of a couple months with a vague pain
25 usually in my neck but go back to sleep.
,
64
1 Q Did you oxperience any headaches of any nature
2 that you did not experience prior to the fall?
3 A Yes, early on I did. I had headaches that
4 seemed to radiate down into my neck. But, again, they
5 disappeared after maybe a month.
6 Q And would it be fair to say that -- I may have
7 understood you correctly that at this time your biggest
8 complaint would be the lack of range in motion?
9 A Yes. Frankly, it scares me. I've almost
10 gotten hit a couple times because I failed to turn my body
11 far enough to see cars coming from the left.
12 Q Is there any other time that you are aware of
13 or that you can specifically mention the driving and
14 how the lack of range of motion impacts upon that. Are
15 there any other areas in your life that you could
16 specifically point to with regard to that?
17 A Yeah. When I sit in one position for any
18 period of time such as in reading or sometimes flying, my
19 neck, left side of my neck begins to ache, not a severe
20 pain but it aches. And I have to move it around for ~
21 while to try to relieve that. It's not severe. It
22 doesn't limit my motion. But it's irritating at t.imes.
23 Q All right. Now, is this something that you
24 experienced -- this kind of pain or annoyance in your
25 neck, is this something that you exporienced prior to the
65
1 fall that occurred?
2 A No, I never had it before.
3 MR. THOMAS: I don't have anything further.
4 BY MR. RAPP:
5 Q Mr. Frederick, from your testimony it sounds as
6 if your problems all resolved themselves within one month
7 except for the limited range of motion and the occasional
8 pain.
9
10
A
Q
Within a couple of months, yes.
You wou'~ agree with me, would you not, that on
11 the morning that you drove to the West Shore Diner, there
12 was freezing rain falling and it was very icy conditions?
13 A Yes.
14 Q And the roadways themselves were icy?
15 A Yes.
16 Q You even recall noticing that there was a coat
17 of ice on the steps as you walked into the West Shore
18 Diner?
19 A I believe I recall that, yes.
20 Q And when you came out., you ~- I aosume you
21 thought in your mind if they were coated when you walked
22 in, they were probably coated when you were leaving; is
23 that correct?
24
25
A
Q
That's true.
And it was still precipitating at that time?
66
1 A I believe it was. I'm not sure.
2 Q Do I understand correctly that when you were on
3 the top of the steps ready to come down the steps, before
4 you slipped you reached to the left to grab that handrail?
5 A To the right, I believe it was. I believe it
6 was to the right.
7 Q Were you facing out towards the street?
8 A Yes. without going over there and looking at
9 it, I couldn't tell you. But I know I reached toward a
10 railing.
11 Q You don't remember whether it was to your left
12 or to your right?
13 A I remember it being to the right but I may not
14 remember correctly.
15 Q And as far as you recall, you never got ahold
16 of that railing?
17 A I don' t think I did, no.
18 Q And you said you were laying on the ground; you
19 tried to get yourself liP. I take it you didn't move too
20 much; is that fair to say?
21 A Hardly at all.
22 Q You weren't able to pull yourself up or
23 anything like that?
24
25
A
No.
MR. RAPP: That's all the questions I have.
..
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Thank you.
MR. THOMAS: I have nothing further.
(Whereupon, the deposition was concluded at
2147 p.m.)
.1
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
SS.
I, JAN L. BUCHER, a Court Reporter-Notary
PUblic authorized to administer oaths and take depositions
in the trial of causes, and having an office in Carlisle,
Pennsylvania, do hereby certify that the foregoing is the
testimony of ROBERT EDWARD FREDERICK.
I further certify that before the taking of
said deposition the witness was duly sworn; that the
questions and answers were taken down in stenotype by the
said Reporter-Notary, approved and agreed to, and
afterwards reduced to computer printout under the
direction of said Reporter.
I further certify that the proceedings and
evidence are contained fully and accurately in the notes
taken by me on the within depositi~n, and that this copy
is a correct transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this lOth day of March, 1995.
My Commission Expires June 3, 1996.
ExhlbII C
I,
2
1
INDEX
2 DEPONENT
EXAMINATION
PAGE
3
3 Kristi Frederick
By Mr. Rapp
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EXHIBITS
13 NO.
DESCRIPTION
PAGE
14 (None. )
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STI PULATION
It is hereby stipulated by and between the
respective parties that signing, sealing, certification
and filing are waived; and that all objections except as
to the form of the question are reserved until the time of
trial.
KRISTI ANNE FREDERICK, called as a witness,
being duly sworn, was examined and testified as follows:
BY MR. RAPP:
Q Could you please state your full name?
A Kristi Anne Frederick.
Q Is that K-r-i-s-t-i?
A That's right.
Q And does Anne have an "e" on the end?
A Um hum.
Q Ms. Freder iCk, my name is Ken Rapp, and I'm
here on behalf of the West Shore Diner and the Katsifises
with regard to a lawsuit that was filed by your father.
It's my understanding that you were not present
when your father fell but came there some time thereafter;
is that correr.t?
A That's correct.
Q During the next few minutes I'm going to ask
you a series of questions about what happened back on
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Januar.y 8, 1994 and your knowledge about the incident.
And if you don't understand a question or I say something
too quickly, please feel free to stop me and I'll do my
best to rephrase it so that you do understand it. okay?
A okay.
Q Probably the most important instruction I can
give you is to make sure that you listen to my entire
question before you begin answering and then answer the
question for the court reporter's benefit.
A Okay.
Q And, also, it's important that you make sure
you answer your questions verbally without a nod of the
head or something like that because she doesn't take that
down.
A Okay.
Q What is your current address, Ms. Frederick?
A 30 Stephen Road, Apartment 20. And that's Camp
18 Hill 17011-
19 Q Is it stephen with a "p"?
20 A "p" .
21 Q And what is your current marital status?
22 A Single.
23 Q And your date of birth?
24 A 10/28/58.
25 Q Do you have any children?
5
1 A Yes, one.
2 Q And that would be Marah?
3 A That is correct.
4 Q How old is Marah?
5 A six and a half. Right, Marah?
6 Q As far as your educational background is
7 concerned, did you graduate high school?
S
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A Yes.
Q And where did you graduate high school?
A Trinity High School, Shiremanstown.
Q What year was that?
A '76.
Q Do you have any education beyond high school?
A An associate's degree.
Q From where?
A Harrisburg Area community College.
Q And when did you get your degree from HACC?
A When I was pregnant with Marah. Go back
help me and subtract. Go back about seven years.
Q So 1988?
MR. FREDERICK: ' 88.
THE DEPONENT: She was born in '88, so -- well,
no, that's right. '88, in the spring.
2~ BY MR. RAPP:
25
And what's your degree in?
Q
1 A
2 Q
3 A
4 Q
5 A
6 Q
7 A
S Q
9 A
10 Q
11 A
12 tench.
6
Human Services.
Are you currently employed?
Yes, I am.
By whom?
Capital Area Head Start.
And in what capacity?
I'm an educator in social services.
Is that a teaching position?
It's half teaching and half social services.
Do you teach a particular age?
Preschool children. I go into the home to
13 Q And how long have you been employed by Capital
14 Area Head start?
15 A Since December 5th, this past December.
16 Q So you just started that?
17 A Right.
lS Q Who were you employed by before you began
19 working for Capital Area Head Start?
20 A I had two employers: stepping Stones,
21
22
23
24
25
Incorporated, which is a preschool; and Cumberland Perry
Association for Retarded Citizens.
Q Did you work for both of them at the same time
period?
A Um hum.
7
1
Q
Is that a yes?
2
A
Yes.
3
Q
stepping stones, were is that located?
That's on Old Jonestown Road. 6003, I think,
4
A
5 is the address.
6 Q And how long did you work for stepping stones?
7 A A year and a half.
8 Q What was your position at Stepping stones?
9 A Preschool teacher.
10 Q And with the -- we'll call it CPARC. How's
11 that?
12 A Yes.
13 Q How long were you at CPARC?
14 A Five years.
15 Q And what did you do for CPARC?
,
16 A I worked a third-shift position. It was titled
17 a residential attendant.
18
Q
What did your duties involve?
19
A
Excuse me?
20
Q
What did your duties involve as a residential
21 attendant?
22
A
Basically to sleep there on site in the event
23 of any type of emergency, to be available then.
24
Q
Were you working at both positions at the time
25 that this incident took place in January of 1994?
8
1 A Yes.
2 Q Now, it's my understanding that your father had
3 taken you to work the morning of this incident; is that
4 correct?
5 A The evening before and then had picked me up
6 from work the next morning as well.
7, Q Is there a particular reason why he picked you
8 up the evening before?
9 A Urn hum. I was having car trouble. My car
10 wasn't very reliable at the time. So he had given me a
11 ride to work and said he would pick me up in the morning
12 as well.
13 Q Do you remember the nature of the car trouble
14 that you were having?
15 A It's -- if you knew what my car was like. It's
16 just not a very reliable 'car in bad weather.
17 Q What time the night before had your father
18 picked you up from work? Do you remember?
19 A That he had taken me to work?
20 Q No, I thought the night before he picked you
21 up.
22 A He took me to work on the third-shift jOb.
23 Q I'm sorry. He took you to work. Do you
24 remember what time that was?
25 A It would have either been 9-, 10-, 11:00. My
9
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3
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5
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9
10
time varied between 10 and 11 needing to be in to work.
Sometimes he dropped me off a little bit earlier depending
on what he was doing.
Q And where did he take you?
A North 21st Street in Camp Hill where the group
home is that I worked.
Q with CPARC?
A Correct.
Q Did he pick you up at your home and take to you
work?
11 A Yes.
12 Q And where was your house located at that time?
13 A 410 Bosler Avenue in Lemoyne.
14 Q How far is Bosler Avenue in Lemoyne from your
15 employment at CPARC in terms of miles?
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A Mile and a half approximately.
Q Now, we're talking about the evening of January
7th
A Um hum.
Q when your father took you to work. Do you
recall what the weather conditions were like that evening?
A I know that there had been snow that week. I
know they were calling for more ice and snow. I don't
recall if it was actually snowing at that time. But the
reason why he had given me the ride to work is because it
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was such an -- it was so obvious from all the reports that
we were going to have some bad weather.
Q You said you don't remember if it was snowing
at that time. Do you remember whether it was sleeting or
freezing rain or anything of that nature when you went to
work on January 7th?
A I don't recall, no.
Q What time did your father pick you up then at
work the next morning?
A 6-, 7:00 in the morning. My shift was
typically over at six in the morning. He was working a
third-shift job as well, and sometimes he got off at
different hours. And I waited a little bit later until he
got there. So that's why I say it may have been a little
after six.
Q Sometime between six or seven?
A Um hum.
Q And, again, that was at the 21st Street
address?
A Right.
Q Do you remember what the weather conditions
were like when your father picKed you up?
A It was snowy and icy, sleeting.
Q On that morning when your dad piCKed you up,
you specifically recall that there was snow falling or
11
1 sleet falling?
2 A It was icy. I had difficulty making it to the
3 car myself because streets were just icy.
4 Q Did you have to walk down the sidewalk to get
5 to your father's car?
6 A Um hum.
7 Q Is that a yes?
8 A Yes.
9 Q Do you remember whether the precipation was
10 actually coming down at that time?
11 A I'm more inclined to say yes than no, as I
12 recall.
13 Q And is it your recollection that your father
14 had also come from work from the night before?
15 A I think so. I don' t recall very clearly if he
16 had worked the evening before or not.
17 Q So he picks you up between 6- or 7:00, and he
18 drives you to your house?
19 A Um hum.
20 Q Do you r.emember whether he had the windshield
21 wipers on at all when he was driving?
22 A I think so.
23 Q Did you have any discussion about the weather
24 conditions when he picked you up?
25 A Probably. Everybody was talking about the
1 weather.
2 Q
3 A
Because it was that icy and snowy?
Well, it had just been that kind of a winter as
4 well. And it was particularly bad that day.
5 Q I don't want you to guess at all. I know Mr.
6 'l'homas doesn't want to you guess either. If you recall,
7 do you have any specific recollection of discussing with
8 your father the weather conditions on that morning?
9 A I don't recall a specific discussion, no.
10 Q Do you remember whether your father had any
11 difficulty driving you home that mile and a half on that
12 morning?
13 A No, he's generally a very good driver.
14 Q Do you remember whether you slipped at all on
15 the roadway as he was driving or the car slid at all in
16 that mile and a half'?
17 A No, I don't recall that.
18 Q How did you first learn of this incident
19 involving your father at the West Shore Diner?
20 A He had dropped me off at my house somewhere
21 between 6:30 and 7:00. And a short time later -- he had
22 told me that he was going to breakfast. And a short time
23 later I got a phone call from one of the waitresses in the
24 restaurant and said your father's had a fall. They were
25 going to call the ambulance crew. There was somebody
12
13
1 there that could come pick me up and take me for a ride to
2 the diner to pick up his car.
3
4
Q
Do you know who the waitress was by any chance?
..
,
5
A
I don't recall her name.
Q
When your father dropped you off at home that
6 morning, was it light out?
7
8
9
10
A
Um hum.
Q
That's a yes?
A
Yes. I'm sorry.
Q
And I understand correctly he told you that he
11 was going for breakfast?
12
13
14
15
A
Yes.
Q
Did he tell you where he was going?
A
I don't remember him telling me that.
Q
Had you ever been to the West Shore Dil)er
16 before that date?
17
18
A
Yes.
Q
How did you get to the diner after you received
19 this phone call?
20
A
There was a couple that was having breakfast
21 themselves in the diner that offered to my father, to the
22 waitress, whoever, to drive to my home on Bosler Avenue
23 and pick me up and drive me to the diner since I had no
24 car available to drive at that time. My car wasn't --
25 like I said, r couldn't drive it properly at that time.
1 Q
2 A
3 Q
4 A
5 Q
6 anywhere?
7 A
14
And did that couple come to pick you up?
Yes, they did.
Do you know the name of that couple?
I don't recall their names, no.
Did you get their names and wr.ite it down
I didn't write it down. I remembered asking
8 their names. But I was so concerned about my father, that
9 wasn't my focus at that point.
10 Q And my point is you don't have it written down
11 somewhere outside of this office where you could look back
12 and find it?
13 A No, I have no idea who they are.
14 Q By the way, when you got home, when your father
15 had dropped you off, was it still sleeting and snowing as
16 best you can remember?
17 A Yeah, yeah.
18 Q How about when this couple came to pick you up
19 and you went outside, was it still -- was there
20 precipation still falling?
21 A I could not clearly tell you. Like I said, my
22 concern was I got this phone call ambulances were
23 arriving. I knew something was wrong.
24 Q So this couple came and picked you up and took
25 you to the West Shore Diner?
15
1 A Right.
2 Q And what did you see when you first arrived?
3 A Well, first of all, when I walked into the
4 diner, I had trouble getting up the steps myself because
5 there was ice. The steps were ice-covered. And then when
6 I walked into the diner, my father was laying there on a
7 seat to one of the booths.
8 Q Did you walk in the main -~ the front steps
9 into the diner?
10 A Yes.
11 Q And I take it you didn't walk up the ramp? Are
12 you familiar with the ramp?
13 A I'm not, but I walked up the steps.
14 Q How many steps were there?
15 A There's two or three that I recall. There's
16 not very many.
17 Q When you walked up the steps, did you happen to
18 notice if there was any salt or cinders on the steps?
19 A There was not any. That's one thing I did
20 notice.
21 Q Did the steps have any snow on them? Did you
22 notice any snow on the steps or had it been removed?
23
A
I don't remember any snow. I remember ice. I
24 had difficulty climbing the steps myself.
25 Q Did you speak to anyone outside the diner when
16
1 you first arrived?
2 A outside of the diner?
3 Q Yes.
4 A No.
5 Q Was there anybody on the steps when you
6 arrived?
7 A No.
S Q So you went inside and you immediately went in
9 to talk to your father, see how he was doing?
10 A Um hum.
11 Q Was he seated to the left as you walked in or
12 to the right?
13 A I think it was to the left.
14 Q In one of the booths in the back of the diner?
15 A Um hum.
16 Q That's a yes?
17 A Yes. Excuse me. Yes. When you say the back
18 of the diner, too, walking in that door, it was to my left
19 if that's the back of the diner.
20 Q There is a separate section. You and I are
21 talking about the same thing. You walked in the diner,
22 you turned to your left, and there are several booths
23 along there. But you went all the way back to the left.
24 Would that be fair to say?
25 A I think it was the first booth to the left, if
17
1 I recall correctly.
2 Q Did you speak to your father at that time?
3 A Yes.
4 Q Did you speak to anyone before you spoke to
5 your father, anyone from the diner?
6 A That I don't recall. I rather doubt it.
7 Q What was your father's condition when you first
8 spoke with him?
9 A It was very clear to me that he was in pain and
10 discomfort. My father's not the kind of man to complain.
11 The fact that I saw him laying there and not moving, I
12 could tell that: lle was frightened and that he was in pain.
13 Q Did you talk to him at that time about what
14 happened?
15 A No, I don't -- no. I mean, he may have told me
16 that he slipped and fell. That part's a blur. It was
17 obvious that he had fallen. When I got the phone call, I
18 was told he had fallen.
19 Q You don't remember him specifically saying
20 anything about how he fell while you were at the diner?
21 A I don't think he was talking so directly to
22 me. Somewhere very quickly in there they were either
23 there when I arrived or just arriving, the ambulance
24 crew. And, you know, I knew enough to step back from that
25 and let them take over there.
1
Q
You don't remember though if they were there
2 before you got there or arrived around the same time?
3 A I think it was about the same time.
4 Q How about the police department? Did you talk
5 to anyone from the police department?
6 A I remember one particular police officer. I
7 think there was another. I don't recall having direct
8 conversation with them.
9 Q You had mentioned that your dad was laying
10 there in pain and discomfort. Did he tell you what was
11 hurting him or did you just surmise that he was in pain?
12 A No, it wasn't just surmising. It was clear
13 that he was in pain. I know him. He would have sat up
14 and told everybody to just get out if he wasn' t ill pain.
15 I knew he was scared and in pain. It was clear something
16 was bothering on his back or his neck because he was also
17 afraid to move.
18 Q Did he tell you why he was afraid to move?
19 A No, we didn't have that kind of conversation at
20 that time. Like I said, I stepped back and let the
21 ambulance crew do their thing.
22 Q Did you go with your father to the hospital?
23 A I drove his car to the hospital. He rode in
24 the ambulance.
25
Which hospital did you go to?
Q
18
19
1 A Holy spirit Hospital.
2 Q At any time, did you speak with any of the
3 employees or owners of the West Shore Diner?
4 A I think one of the waitresses, but I don't
5 recall what exactly the conversation was. Maybe some
6 offering from her of the explanation of what had
7 happened. But, again, I was pushing all of that aside. I
8 needed to know what was happening with him and where his
9 injuries mayor may not have been.
10 Q So you don't specifically recall what you
11 discussed with any employees or owners of the diner?
12 A No. And if there was a discussion, I'm rather
13 certain it wasn't any lengthy discussion.
14 Q Did you walk out of the same door that you came
15 in when you left the diner?
16 A Yes.
17 Q And did you walk down the same steps that you
18 had walked out?
19 A I believe so, yes. You're saying there was a
20 ramp there and I don't remember a ramp. So I believe I
21 used the steps.
22 Q Did you have any trouble going down the steps?
23 A Yes. You had to be very careful that day,
24 obviously, there.
25 Q Did you say anything to any of the employees of
20
1 the diner about the condition of the steps or the police
2 officer, for that matter?
3 A No, I wanted to get to the hospi ta 1 and see if
4 my father was okay. I had no time for discussion with
5 anybody else there at that time.
6 Q Do you remember if there was a railing along
7 those steps to get into the diner itself?
8 A I don't recall.
9 Q Have you been back to the diner since that day?
10 A No, I have not.
11 Q Your father wasn't living with you at th'il time
12 this happened?
13
14
15
A
Q
No.
Has he lived with you at all since your
adulthood?
16 A I think he basically kicked me out when I was
17 18. And I went home briefly for some months when I was
18 about 25. Other than that, no, we haven't lived together.
19 Q Nothing in the previous ten years then?
20 A No.
21 Q Do you and your father and Marah, for that
22
23
24
25
matter, go places together, do things together?
A Sure.
Q How often were you getting together before
January 8th of 1994?
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A Well, at that point it was probably at least an
average of twice a week because of the weather. Like I
said, my car was not a car you'd want to drive in the
weather we had that winter. So he had helped me out a
great deal with rides.
Q What sort of things would you do as a family
unit?
A Well, he'd come over and be at our house.
sometimes I'd go over and be at his house. There wasn't a
lot you could do during that winter.
Q How about the summer before? Let's go back
Forget the winter of '94. We'd all like to forget
But let's go back to the summer before that.
A Basically they were visits because of my work
schedule. I worked two jobs. I had a daughter to take
care of. We didn't have lots and lots of time for each
other. So they were stopping by. I owned a home and he
came by and helped on the house sometimes. And sometimes
I'd be out doing whatever I did and stop by with my
daughter to say hello.
Q Did you stay with your dad at the Holy Spirit
then.
that.
Hospital?
A
Q
A
Yes.
Do you know how long he was there?
I am going to guesstimate a good two hours.
22
1 Q Were you with him during the time that they
2 provided treatment to him at the hospital?
3 A Yes.
4 Q Did you see what treatment, if any, they
5 provided at the hospital?
6 A I saw some. They had come out -- one of the
7 doctors had come out to tell me that she had examined him
8 and -- I'm not sure exactly what you're aSking me at this
9 point.
10
11
12
13
14
15
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17
18
19
20
21
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24
25
There was an argument with the doctor at one
point because he was complaining of pain and she had found
nothing at that point. And I went and very insistantly
said to the doctor, "Look. I know him. He is not one to
lay there and complain of pain. You've got to do
something." And she had found nothing in her initial just
once-over looking at him.
Q Is this the emergency room doctor?
A Yes. I sa id, "The man needs X-":ays or
something. You can't just send him away when he's crying
in pain. And I know him well enough to know that he's in
pain." So there was an argument with the doctor.
Q And that argument was with whom, your father
and the doctor or --
A Initially.
Q And then you got involved?
23
1 A I sure did.
2 0 And then X-rays were taken of your father?
3 A Um hum.
4 Q Is that a yes?
5 A Yes.
6 Q To the best of your knowledge, were there any
7 broken bones involved?
8 A I don' t know the who le reports of what the
9 doctor's report was.
10 Q And then your father was released from the Holy
11 spirit Hospital?
12
13
14
15
16
17
18
19
20 day?
21
22
A Um hum, I drove him home.
Q Did you go back later that day?
A To the hospital?
Q Yes.
A Did I go back to the hospital?
Q Yes, with your father.
A No.
Q Are you aware if your father went back that ,
A I couldn't tell you.
Q Did you participate in any of the physical
23 therapy that your father may have had after this accident?
24 A I made sure that he got a heat compress and
25 some food in the house and that sort of thing. But other
.
24
1
2
3
4
5
6
7
8
9
10
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12
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25
than that, no, I did not.
Q You didn't go to any physical therapy sessions?
A No, not sessions with him, no.
Q Does your father still complain of pain to you
as a result of the accident?
A Yes, he has.
Q What does he complain of now as a result of the
accident?
A His neck at times. I have to tell my daughter
not to jump on Grandpop like she used to, play with him
the way she used to.
Q When you say at times, how often are we talking
about, once a week, twice a week? How often does he
complain to you about his neck?
A He's not one to complain to me. So I couldn't
honestly say. I know that he's had discomfort. But, you
know, he takes care of himself.
Q Has he complained about anything else other
than his neck? I'm talking about now in this time frame.
A Now in what time frame?
Q I'm talking about right now, in the last week,
let's say. Has he complained to you about anything else
other than his neck?
A We haven't discussed this in the past week.
Q But he hasn't complained to you about his neck
25
in the last wetak?
A No, he hasn't.
Q What other problems has he expressed to you
other than his neck, let's put it that way.
A Vou have to understand that my father is not
one to complain to me. I watch him and I look at him and
I can see if he hurts or not. If he's walking around with
his cane, then I know he's hurting. And I might
say, "Dad, are you okay?" But he's not one to complain.
He hurts and I know that. That's just the way
my family is. We don't do a lot of complaining. What can
I tell you? I can tell you as his daughter that by
looking at him I can tell when he's in discomfort.
Q Has he walked around with a cane since this
happened?
A
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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Q
happened?
A
Q
A
Yes, he has.
And did he sta~t using that cane after this
Immediately.
Did he use a cane at all before this happened?
Not that I recall.
Q I notice today I didn't notice a cane when your
father came in. When was the last time you saw him using
a cane?
A When this accident occurred.
.
.
26
1 Q But since that time, when did you see him use
2 the cane? I'm talking most recently now. Did you see him
3 use it a month ago, two months ago?
4 A Wasn't all that long ago that I saw him use
5 it. I qouldn't give you an exact time frame.
6 Q Has your father told you of any activities that
7 he has not been able to do since the accident that he
8 could do before the accident?
9 A He's not that personal with me.
10 Q So that's a no?
11 A He never discussed that stuff with me.
12 MR. FREDERICK: Off the record.
13 (A discussion was held off the record.)
14 BY MR. RAPP:
15 Q And I'm talking about recreational activities,
16 hunting
17 A Well, that could fall under that.
18 Q Yes, it could. And, quite frankly, I wasn't
19 even considering that at this point. I'm talking about
20 things like hunting or bowling, anything that your dad may
21 have been involved in.
22 A He's not a hunter or a bowler anyway.
23 Q Any other activities that he's told you he
24 can't participate in, whether he has any recreational
25 hobbies, things like that?
. 27
1 A My father's one to read. He goes to a health
2 club. He started going to a health club in part because
3 of this accident to help feel more comfortable. And I
4 don't know where he's at with that right now to be honest
5 with you.
6 Q How about the reading? Has he said he's had a
7 problem with reading since the accident?
8 A We always read. We'd be on our death bed and
9 we would read.
10 Q So he has not told you he's had a probl.em with
11 reading since the accident?
12 A Actually, he had just gone back -- it was just
13 fairly recently we were having a discussion about each of
14 us going back to the library because that was something we
15 both did. And he hadn't been reading as much. I don't
16 know if that was because he wasn't as comfortable sitting
17 as long or not. But I could tell you that.
18 MR. RAPP: That's all the questions I have for
19 you. Thank you very much.
20 MR. THOMAS: I don't have any.
21 (Whereupon, the deposition was concluded at
22 1:11 p.m.)
23
24
25
.
LaW orrlc.. or ROG.. T. KUGOLIB
BYI KENNETH A. RAPP, ESQUIRE
6400 Plank Drive, Suite 900
Harrisburg, PA 17112
(717) 1541-8990
Attorney 1.0. No. 41671
ROBERT FREDERICK,
Plaintiff
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
VS. . NO. 94-4736 CIVIL 1994
.
I
GEORGE UTSIFIS and CIVIL ACTION - LAW
CHRIS UTSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants . JURY TRIAL DEMANDED
.
PRoor or SERVICE
I hereby certify that I am this day serving a true and
correct copy of the foregoing document, Motion for sWIlIIary
Ju4~ent, upon the attorney-of-record and in the manner indicated
below, which service satisfies the requirements of Pa. R.C.P. 440
and related provisions:
service bv First-Class Mail
Postaae PreDaid.
Addressed as Follows:
R. Mark Thomas, Esquire
54 E. Main street
Mechanicsburg, PA 17055
(Attorney for plaintiff)
DATE I 7/2.bf~.s
KEN ET A. SQUIRE
64 0 lank Drive, Suite 900
HarriSburg, PA 17112
(717) 541-8990
Attorney I.O. No. 41671
PRAECIPE FOR LISn~G C\SE FOR .-\RGt:~IE:-IT
I ~Iust be typewntten .1/1d submitted in duplh:i1tel
TO THE PROTHONOnRY OF CDIBERL.~"D COL':'oITY
Pl,:llf :Iu the wltlun :n~cter f~r :hl n~xt:
iy
....li\lmtnt C~urt
---.----.....------------------------------------------------------------
CAPTION OF C.\SE
(entin ~aptlon mUll b. stalld In full)
ROBERT FREDERICK,
tPI:unut'f)
VI.
GEORGE KATSIFIS and
CHRIS KATSIFIS, t/d/b/a
THE WEST SHORE DINER,
(D.iendlll\l)
VI.
94-4136
SIl,
ClvH
'9 94
.-
1.
SIal. mllllr to b. :1fgued O. ~.. ,100000wfs motion for new t":iI.
d.f.lIl1ant's demurrer to ,omplilint. IlC.):
. DEFENDANTS 0 MOTtON FOR SUM"ARY JUDGMENT
,
..
ldelltlty ,oUlll.l who wtil Mille ,:u.:
(a)
(b)
for ,I:unllii:
Address:
for deiendlll\l:
Address:
R. MARK THOMAS. ESQUtRE
54 E. MAtN STREET, MECHANtCSBURG, PA. 17055
KENNETH A. RAPP, ESQUtRE
6400 FLANK DRIVE, SUITE 900, HARRISBURG, PA. 17112
J. [ wlllnot1iy Jll pUlles :n 'vntlll~ 'Vl:~n tW~ d~YI :h~l :h:l ,~se nu ~ltn
Ulted [or llgument. _
4. Argument Court Date:
t .'ttor ey
KEN NET
Dll.d: 7/26/95
NO. 2~
ROBERT FREDERICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
94-4736 CIVIL TERM
vs.
GEORGE KATSIFIS and
CHRIS KATSIFIS l/d/b/u
THE WEST SHORE DINER,
Defendants
CIVIL ACfION . LAW
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held June 21, 1995, were R. Mark Thomas, Esquire,
attorney for the plaintiff. and Kenneth A. Rapp. Esquire, attorney for the defendants.
This is a slip and fall ease urising out of an incident that occurred on January 8. 1994, on
the premises of a diner owned by the defendants.
At the call of the list. counsel for the defendants indicated that he desired to file a
motion for summary judgment and therefore sought a continuance. This was opposed by
plaintiffs counsel and. aecordingly, Judge Sheely entered an order denying the request for
continuance. Now, however. it appears agreeable to both counsel that the matter be continued
and that defendants be allowed to file the motion which was previously opposed. We have, thus.
entered an order continuing this case generally.
June 21, 1995
~\ L..J' A ~
Kevin A. Hess, 1.
R. Mark Thomas. Esquire
For the Plaintiff
Kenneth A. Rapp, Esquire
For the Defendants
:rlm
C!:~)
J UN I G 1995 (J'I-
LAW 0"10.. 0' ROGIR T. MARGOLIS
BYe KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, Suite 900
Harrisburq, PA 17112
(717) 541-8990
Attorney I.D. No. 41671
ROBERT FREDERICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4736 CIVIL 1994
CIVIL ACTION - LAW
VS.
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
JURY TRIAL DEMANDED
DEPENDANTS' PRE-TRIAL MEMORANDUM
I. STATEMENT 0' THE BASIC FACTS AS TO LIABILITY:
This case arises from a slip and fall which occurred on
January 8, 1994 on the premises of the West Shore Diner located at
1011 State street in Lemoyne, Cumberland County, Pennsylvania. The
West Shore Diner is owned by Defendants, George and Chris Katsifis.
At approximately 6:00 a.m. on the morning of January 8, 1994,
Mr. Frederick picked up his daughter, Kristi Frederick, at work and
dropped her off at her house located in Lemoyne. At that time and
from at least 10:00 p.m. the evening before, freezing rain had been
steadily falling. After taking Kristi to her home, the Plaintiff
drove to the West Shore Diner for breakfast. Upon his arrival, he
parked in front of the diner and proceeded up the front steps. At
that time, the Plaintiff noticed that the steps appeared icy and
walked "qingerly" into the diner. After finishing his breakfast at
approximately 6:40 a.m., the Plaintiff began to leave the diner.
It is anticipated that Mr. Frederick will testify that while he
stood at the top step adjacent to the front door of the diner, he
slipped and fell on the icy steps striking the back of his head and
back. The plaintiff was immediately helped into the diner and laid
down in one of the booth areas. An employee of the diner
telephoned for an ambulance and Mr. Frederick was transported to
the Holy Spirit Hospital.
Defendant George Katsifis will testify that when he closed the
diner on the evening prior to the plaintiff's fall he salted the
front steps whereat the Plaintiff fell. In addition, Chris
Katsifis, who was present on the morning of the Plaintiff's fall,
will testify that he also salted and shovelled the area whereat the
Plaintiff fell while the Plaintiff was eating breakfast. By all
aocounts, the icy weather conditions were miserable. The
Defendants took all reasonable steps to prevent this type of
accident and committed no acts of negligence.
II. STATEMENT AS TO THE BASIC FACTS OF DAMAGES:
Plaintiff Robert Frederick has alleged head, neck and shoulder
injuries and injuries to muscles, bones, and tendons. He has
received no inpatient hospitalization as a result of this accident.
He did not sustain any broken bones, herniated discs or stitches as
a result of the accident. The crux of his complaint now involves
limited range of moti.on in his neck with occasional pain. Mr.
Frederick received physical therapy at the Mechanicsburg Rehab
Center for approximately two (2) months.
Mr. Frederick is making a claim for lost wages in the amount
of $12S.00. There is no claim for loss of earnings capacity.
2
XU. ITATIIIIIITB AB TO THII PRINCIPAL ISSUIIB O. LIABILITY AND DAKAOIlI
1. Negligence, if any, of the Defendants.
2. Comparative negligence of the Plaintiff.
3. Nature and extent of the Plaintiff's soft tissue
injuries.
XV. BUKKARY O. LIOAL ISSUBS RBGARDING ADMISSIBILITY O. TIISTIKONY.
IXHIBITS. OTHIIR MATTBRS AND LBGAL AUTHORITY RBLIIID ON:
Defendants request that Plaintiff be precluded from making any
mention whatsoever of the existence of liability insurance on the
part of the Defendants and/or any conversations with the Defendants
regarding insurance coverage.
V. IDINTITY O. WITNESSES TO BE CALLED:
Defendant may call the following witnesses at the trial of
this matter I
1. Defendant George Katsifis;
2. Defendant Chris Katsifis;
3. Gloria Powell;
4. Plaintiff Robert Frederick (as on cross-examination);
5. Kristi Frederick;
6. The various custodians of medical, physical therapy and
ambulance records with respect to the treatment and care
of plaintiff Robert Frederick.
In addition, Defendants reserve the right to call any of the
Plaintiff's witnesses at the time of trial.
Defendant also
reserves the right to supplement this list prior to trial.
VI. BCHIDULII O. BXHIBITS:
1. Thirteen (13) photogra~hs taken of the exterior of the
3
LA. 0..10.. O' ROGla T. MARGOLIS
BY: KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, Suite 900
Harrisburg, PA 17112
(717) 541-8990
Attorney 1.0. No. 41671
ROBERT FREDERICK,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4736 CIVIL 1994
VS.
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
'Roor or SERVICE
The undersigned, as counsel for Defendants, George and
Chris Katsifis, t/d/b/a The West Shore Diner, hereby certifies that
on this day, a true and correct copy of the foregoing document,
DefeD4ant.' pre-Trial Memorandum, in the above-captioned matter,
together with this Certificate of Service, were sent by first class
mail, postage pre-paid, to the following attorney-of-record:
R. Mark Thomas, Esquire
54 E. Main Stret
Mechanicsburg, PA 17055
DATE:
hJ40S-
(Attorney for Defendants)
5
The Defendants had a duty to maintain their place of
business in a reasonably safe condition and to warn their business
invitees of hazards known to them. Evidence will show that the
Defendants were aware of the icy conditions present on the steps.
The Defendants breached their duty of care and, as such, are
responsible for the injuries sustained and expenses incurred by
plaintiff.
I I . STATEMENT OF THE ISSUES:
1. Whether the Defendant's breached their duty of care
to the Plaintiff by failing to keep their premises free from the
hazardous icy conditions.
2. Whether the Defendants breached their duty of care
by failing to warn Plaintiff of the hazardous condition.
III. REQUESTED AMENDMENTS TO PLEADINGS:
None
IV. ADMISSIONS FROM PLEADINGS TO BE MADE PART OF THE REC('RD:
None
V.
STIPULATIONS:
None
VI. WITNESSES TO BE CALLED:
twm
ADDRESS
30 Stephen Road
camp Hill, PA
17011
SUBJECT OF TESTIMONY
On scene immediately
after fall & before
ambulance arrived.
Kristi A. Frederick
Dr. James Blacksmith
110 N. 7th Street
Lemoyne, PA 17043
Plaintiff
Dr. Robert Lonergan
207 House Avenue
Suite 105
Camp Hill, PA 17011
VII. EXHIBITS:
1. Records' billing from Holy spirit Hospital ancS
Wormleysburg Fire Co. Ambulance.
2. Records' billing from Dr. James E. Blacksmith, D.O.
3. Records' billing from Dr. Robert P. Lonergan, M.D.
4. Records and billing from Mechanicsburg Rehab system
5. Billing information for one traction devise, one
heating pad and prescribed medicine.
VIII.
DAMAGES:
A. Itemized list of medical treat~ent from:
1. Wormleysburg Fire Co. Ambulance $245.00
2. Holy Spirit Hospital $739.33
3. Dr. James Blacksmith - .$35.00
4. Dr. Robert Lonergan $85.00
5. Mechanicsburg, Rehab system -$3,171.15
B. Incidental costs for items including:
1. Traction device from ConPharma Home Health
Care, Inc. $30.00
2. Heating pad purchased @ Pathmark of Camp Hill
$15.99
3. Medications prescribed by Holy Spirit Hospital
E.R. Dr. Diana Khadhiri $34.27
4.
Lost wages
$128.25
5. Court costs
IX. STATEMENT OF ANY OBJECTIONS OR EVIDENTIARY PROBLEMS TO BE
RESOLVED PRIOR TO TRIAL:
None
X. SPECIAL REQUESTS:
None
..
LaW 0..101. O. ROO" T. MARGOLI.
BYI KENNETH A. RAPP, ESQUIRE
6400 Flank Drive, Suite 900
Harri.burq, PA 17112
(717) 1141-8990
Attorney I.D. No. 41671
ROBERT FREDERICK,
Plaintiff
va.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO. 94-4736 CIVIL 1994
I
I CIVIL ACTION - LAW
GEORGE KATSIFIS and
CHRIS KATSIFIS t/d/b/a
THE WEST SHORE DINER,
Detendant.
I
I .:JURY TRIAL OmolANDED
ENTRY or APPEARANCI
TO THE PROTHONOTARY:
Kindly enter my appearance on behalt of the Defendant.,
George Kat.itis and Chris Katsifis t/d/b/a The West Shore Diner, in
the above-captioned case.
Please note my demand for trial by jury.
Respectfully submitted,
LAW orrICES or ROOER T. IIAIlGOLI.
..---.---
rney for Defendants)
COMMONWEALTH OF PENNSYLVANIAI
COUNTY OF CUMBERLAND
In The Court of Common Pleas of
Cumberland County, Pennsylvania
No. 94-4736 civil Term
Complaint in civil Action Law
and Notice
Robert Frederick
VS
George Katsifis and Chris Katsifis
t/d/b/a The West Shore Diner
Michael Barrick, Deputy Sheriff, who being duly sworn according to
law, says that on August 29, 1994 at 1:00 o'clock P.M., E.D.S.T., he served a
true copy of the within Complaint in Civil Action Law and Notice, in the above
entitled action, upon the within named defendant, to Witl Chris Katsifis
t/d/b/a The West Shore Diner, by making known unto Chris Katisfis, at 1011
State Road, Lemoyne, Cumberland County, Pennsylvania, its contents and at the
same time handing to him personally the said true and attested copy of the
same.
Daniel Pieper, Deputy Sheriff, who being duly sworn according to
law, says that on August 31, 1994 at 7:00 o'clock P.M., E.D.S.T., he served a
true copy of the within Complaint in Civil Action Law and Notice, in the above
entitled action, upon the within named defendant, to wit: George Katsifis,
t/d/b/a The West Shore Diner, by making kown unto Vicki Katsifis, Mother of
George Katsifis, at 1174 Kingsley Drive, Camp Hill, Cumberland County,
Pennsylvania, its contents and at the same time handing to her personally the
said true and attested copy of the same.
Sheriff's
Docketing
Service
Surcharge
Costs:
18.00
17.36
4.00
39.36 Pd. by Atty.
9-01-94
?
BY
(
BY
~~
~p S eriff
--
Sworn and Subscribed to Before Me
This 1'/ 'f Day of ~rr;'./"L_
1994, A.D. L~l~" (;' ~IL ..,~, ~,,~
I>'r thonotary ,
jJIj ~t
. ..~ "
::r: !.J ~ --: :. 1 ..,
1,.1 . " " 4"
~ ,~. ,",
,
" "
- "
,~- '~J
',I.., '~- \ '
,~ I._~
;.
"
, I
.
"
"
94-4736 CIVIL TERM
Once Mr. Frederick had retrieved his dnughter, he returned her to her home no later
than 6:15 n.m. nnd proceeded directly to the diner tilr brenkfns!. On his wny into the diner the
plaintiff noticed ice on the steps. After a twenty-minute brenkfnst, the plnintiff emerged from the
diner. storted to go down the steps, nnd slipped, Innding on his back. This fall resulted in injuries
for which the plaintiff now seeks damages. The defendnnts have filed a motion for summary
judgment, which we now consider.
The Pennsylvania Rules of Civil Proccdure provide that summary judgmcnt "shull be
rendcred if the pleadings, depositions, answers to interrogatories, and ndmissions on filc, together
with the affidavits, if ,my, show that there is no genuine issuc as to any mnterinl fnet and that the
moving party is entitled to a judgment as a mailer of Inw." Pa.R.C.P. 1035 (b). Furthcrmore, we
must examine thc record in a light most favorable to the nonmoving party und rcsolve ull doubts
against the moving party. Aeeu-Weathcr v. Prospect Communications. Ine., 435 Pn.Super. 93,99.
644 A.2d 1251,1254 (1994). Summary judgment should bc granted only where the right is clear
and frce from doubt. Hopewell Estates. Inc. v. Kent, 435 Pa.Super. 471,475,646 A.2d 1192,
1194 (1994). Finally, the burden rests upon the moving party to demonstrate that there arc no
genuine issues of material fact. Dav v. Volkswa2enwerk Aktien2esellsehaft, 31H Pa.Super. 225.
231,464 A.2d 1313 (19H3).
In support of thcir summary judgment mOlion, the defendants argue that this case is
governed by the hills and ridges doetrine and ubsent proof of such hills and ridges, the
defendants cannot be hcld liable for the plaintiffs injuries. See Rinaldi v. Levinc, 406 Pa. 74,
176 A.2d 625 (1962) (applying and explaining the hills and ridges doetrine). The plaintiff.
although offering no proof of hills and ridges. argues that thc defendants did not re.move the. ice
that had accumulated on their steps within a reasonable amount of time. This 4uestion of
2