HomeMy WebLinkAbout95-05594
NO, 211
RALPH MAHAFFIE,
Plnintiff
IN TIlE COURT OF COMMON PLEAS OF
CUMIlElUAND COUNTY. PENNSYLVANIA
CIVIL ACI'ION - lAW
vs,
JAMES ORT.
Defcndnnt
'.15-55'.14 CIVIL nmM
IN 1m: PRETRIAL CONFERENCE
Prcscntnt n plctrlnl confclcncc hcld Mny I. 1'.1'.16. wcre Dnvid L. Lulz. Esqulrc. nllorney
for thc plnlntlff. nnd Jcffcrson Shipmnn, Esquirc. nllmney for thc defcndnnt,
This cnsc nrises out of nn incident thnt oecurrcd on Decemher '.I, 1'.1'.13. Thc defcndnnt.
Jamcs Ort, was opcrating n pick-up truck nnd cxiting his mOlher-in,lnw's drivewllY whcn hc eithcr
struck or stnrtled the plnintiff. Rnlph Mnhnffic. who was. ntthe tlmc. crossing thc cnd of the
drivcway, Mr. Mnhartic fcll. was rcndercd unconscious. nnd suffcred injurics. including a fracturc
of thc right radius,
Thcrc nrc issucs of compnHltive negligcnce nnd. should Ihe plaintiff prcvail. the nmount
of damagcs. The court cncouraged counsel In their efforts to sclllc this mnllcr,
In thc cvcntlhc casc docs go to trial. it should he concluded in II dny, Mr, Lutz is not
nvnilahlc nn May 23. 1996. ns hc hns II Inng-stnnding commltmcntns n spenkcr for thc
Pcnnsylvnnln Trinl Lnwyers, Thc plllllcs wl\l hnvc Ihc usunlnumher of jury chnllcngcs,
Mny 1. 19'.16
J--
Dnvld L, Lutz. Esquirc
For the Plnintiff
Jeffcrson Shlpmnn, Esquirc
For the Defendnnl
:rlm
Jeffer.on J. Shipman, I.quire
I.D. ,. 5178&
GOLD8IRO, KATZMAN" SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harri.bur;, PA 17108-1268
Telephone. (717) 234-4161
Attorney for Defendant
RALPH MAHAFFIE,
plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-5594 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
I
vs.
JAMES ORT,
Defendant
...-'1'.IAL IIUORUlDUJI or DlrmmAll'1'. .7_.. oa'1'
I. ...10 rAC'l'. .. '1'0 LIABILI'1'Y
On December 9, 1993, the Defendant, Jamea ort, was
operating a 1992 Dodge pickup truck and had just returned from
taking his mother-in-law, a Mrs. Hese, to a doctor's appointment.
Mr. Ort was sitting in an upright poeition at the driver's Beat
of the pickup truck aB hiB mother-in-law exited the truck and
entered her residence at 411 Weet Main Street in Shiremanstown.
Mr. Ort's pickup truck was parked in the Heaa driveway leading
from her residence to Main Street. The front of the truck waB
facing Main Street. Mr. Ort watched Mrs. HesB aB Bhe got out of
his truck, closed the door and entered her reBidence. After Mrs.
HeBB entered the reBidence, Mr. Ort turned facing forward while
at the eame time moving forward Blowly. At that instant, Mr. Ort
witnesBed Mr. Hahaffie, the Plaintiff, age 93 at the time,
.
walkinq from hie left to right directly in front of the pickup
truck approximately four feet away from the front of the truck.
Mr. Ort's vehicle travelled at a slow rate of speed,
approximately 1 1/2 to 2 feet. Mr. Mahaffie was startled and
fell backwards on the driveway. Mr. Ort stopped the vehicle
before actually striking any part of Mr. Mahaffie, although Mr.
Mahaffie'. hande may have made contact with the front of the
pickup truck. Mr. Mahaffie at the time waG delivering a local
newspaper door to door. He had been walking acroes a vaoant with
a olear view of Mr. Ort and Mr.. He.. and their action.
immediately before walking in front of Mr. Ort'. piokup truck.
Mr. Ort on the other hand did not see Mr. Mahaffie approaching
from the left a. he waG looking to hie right and watching hie
mothar-in-law go into her residence.
II. a.IIC ..CTI .1 TO Daxaa.1
Mr. Mahaffie sustained a small fracture of hie right
wrist and a contusion to the back of his head which did not
require any medical attention. The right wrist fraoture wae
treated with a short arm cast for one week and then a removable
splint for several months. His medical bills are approximately
$2,300.CO. The Plaintiff's orthopedic surgeon, Dr. Jason Litton,
has been deposed and testified that the wrist fracture waG
completely healed by June, 1994.
2
.
.
III. .~.~..~ .. ~ lal.allaL I..U.. or LI"ILI~Y a.n DaMag..
The Defend.nt ....rt. th.t the Pl.intiff w..
comp.r.tively neglig.nt .nd th.t the Pl.intiff'. injurie. were
not exten.ive.
IV. [..aar. I..U..
The Def.nd.nt do.. not .nticip.t. any novel or
difficult legal i..ue. in thi. ca.e.
V. ID.-rI~Y or .I~.....
(a) Plaintiff, Ralph Nahaffie, .. on cro..-exa.ination,
(b) Defendant, Jam.. art,
(c) Mr.. La.ter H.s.,
(d) Shirem.n.town Police Chief, Joseph Owen.,
(e) Dr. Jason Litton, as on cross-examin.tion,
(f) Dr. Jam.. Whitt.ker, friend of Pl.intiff, .s on cro.s-
ex..in.tion,
(g) Kennsth Vanier, friend of Plaintiff, a. on cro..-
examin.tion,
(h) Ambul.nce attend.nts,
(i) Records custodians of Family Medicine Associates of
Mechanicsburg,
3
JAMES ORT,
Defendant
IN TilE COURT OF COMMoN PLEAS
CUMBERLAND COUNTY/ PENNSYLVANIA
NO. 95-5594 civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
RALPH MAHAFFIE,
plaintiff
vs.
PLAINTIFF'S PRE-TRIAL MEMORANDUM
I. Basic facts as to liability.
On December 9, 1993/ Mr. Mahaffie, age 93 at the time, was
delivering newspapsrs in Shiremansto....n, cumberland county,
Pennsylvania. Mr. Mahaffie was walking West on Main Street and had
just crossed the vacant lot of 407 West Main Street. He was about
to deliver a newspaper to the side door of Mrs. Lester Hess'
residence, located at 411 West Main street.
Mrs. Hess' son-in-law, Defendant ort, was operating a pick-UP
truck. Defendant Ort had just dropped off his mother-in-law and
his pick-up truck was in Mrs. Hess' driveway. While Defendant Ort
was watching his mother-in-law walk up the steps and start to enter
the side door/ Mr. Mahaffie walked across the driveway, in front of
Defendant Ort' pick-up truck. Defendant Ort did not look before
proceeding to exit the driveway, and the front of the pick-up truck
collided into Mr. Mahaf.f.ie, knocking him to the driveway.
II. Basic faots as to damaaee.
Mr. Mahaffie sustained multiple contusions and abrasions, loss
of consciousness, a fraoture of the right radius, and an
aggravation of the pre-existing degenerative condition to the
carpo-metaoarpal joint of his left thumb.
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III. Princiaal i..u.. of liabilitv and damaae..
It i. anticipated that the defen.e will a..ert comparative
n.gligence and conte.t the extent of damages.
IV. Leaal i..ue..
Non. anticipated.
V. Id8ntitv of witness...
A. plaintiff Ralph Mahaffie
B. Defendant Ort a. if on cross-examination
C. Mr.. Le.ter He..
D. Shireman.town police Chief Joseph Owen.
E. Dr. Ja.on Litton - videotape deposition
r. Dr. Jame. Whitaker - friend
G. K.nneth Vanier - neighbor
VI. EKhibit.
A. Diagram of Mr.. He.s' driveway
B. photograph. of Mr.. He.s' driveway
VII. Settl.ment neaotiations
Plaintiff - $47,500.00
Defendant - $ 6,500.00
ANGINO , ROVNER, P.C.
Date I ~ -11- ~~
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1.0. 135956
4503 N. Front street
Harrisburg, PA 17110
(717) 238-6791
counsel for plaintiff
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VB.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-5594 Civil Tenn
CIVIL ACTION - LAW
RALPH MAHAFFIE,
Plaintiff
JAMES ORT,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiff Ralph Mahaffie, a citizen of the
Commonwealth of Pennsylvania, is an adult individual who resides in
Shiremanstown, Cumberland County, Pennsylvania.
2. Defendant James Ort is an adult individual and
citizen of the Commonwealth of Pennsylvania who resides at 2260
Lisburn Road, Mechanicsburg, Cumberland county, Pennsylvania.
3. The facts and occurrences hereinafter related took
place on or about December 9, 1993, at approximately 4130 p.m. in
a private driveway located at 411 West Main street, Shiremanstown,
Cumberland county, Pennsylvania.
4. At that time and place, Mr. Mahaffie was walking in
a westerly direction across the driveway of the residence located
411 West Main Street, Shiremanstown, Pennsylvania.
5. At the same time, Defendant James Ort was sitting in
his pick-up truck in said private driveway, with the motor running.
6. As Mr. Mahaffie walked acroas the driveway,
Defendant ort started to move his pick-Up truck toward West Main
Street in order to exit the driveway and the front of the pick-up
truck struck Mr. Mahaffie.
7. Mr. ort failed to make sure that there were no
persons walking across the driveway before he started to operate
and move his pick-up truck.
8. The foregoing accident and all of the injuries and
damages set forth hereinafter sustained by Plaintiff Ralph Mahaffie
are the direct and proximate result of the negligent, careless,
wanton and reckless manner in which Defendant Ort operated his
motor vehicle as follows:
a. failure to look for persons crossing a private
driveway before moving his vehicle from said private driveway;
b.
watch for the
driveway;
failure to keep alert and maintain a proper
presence of pedestrians walking across the
c. failure to apply his brakes in sufficient time
to avoid striking Mr. Mahaffie; and
d. failure to keep proper and adequate control
over his vehicle.
COUNT I
RALPH MAHAFFIE V. JAMES ORT
9. paragraphs 1 through 8 of the Complaint are
incorporated herein by reference.
10. plaintiff Ralph Mahaffie sustained painful and
severe injuries which include but are not limited to a fractured
right wrist, skull laceration, bruised coccyx, and aggravation of
his degenerative joint disease of his left thumb, and loss of
equilibrium
2
11. By reason of the aforesaid injuries sustained by
Plaintiff Ralph Mahaffie, he was forced to incur liability for
msdical treatment, medications, and similar miscellaneous expenses
in an effort to restore himself to health, and claim is made
therefor.
12. Because of the nature of his injuries, Plaintiff
Ralph Mahaffie has been advised and, therefore, avers that he may
be forced to incur similar expenses in the future, and claim is
made therefor.
13. As a result of the aforementioned injuries,
Plaintiff Ralph Mahaffie has undergone and in the future will
undergo physical and mental sUffering, inconvenience in carrying
out his daily activities, loss of life's pleasures and enjoyment,
and claim is made therefor.
14. As a result of the aforesaid injuries, Plaintiff
Ralph Mahaffie has been and in the future may be subject to
humiliation and embarrassment, and claim is made therefor.
15. Plaintiff Ralph Mahaffie continues to be plagued by
persistent pain and limitation and, therefore, avers that his
injuries may be of a permanent nature, causing residual problems
for the remainder of his lifetime, and claim is made therefor.
WHEREFORE, Plaintiff Ralph Mahaffie demands judgment against
Defendant James Ort in an amount in excess of Twenty-five Thousand
3
Dollars ($25,000.00), exolusive of interest and costs and in excess
of any jurisdictional amount requiring compulsory arbitration.
Datel 11_ W -c,J
JJ iiF P.c.
av L. , Esquire
1.0. 135956
4503 N. Front strest
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiff
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Jefferson J. Shlpman, Esqulro
1.0." 51785
GOLD8ERG, KATZMAN & SHIPMAN,
320 Market Street
P.O. BOK 1268
Harrlsburg, PA 17108-1268
Telephone. (717) 234-4161
Attorney for Defendant
P.c.
RALPH MAHAFFl E,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-5594 CIVIL TERM
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
VB.
JAMES ORT,
Defendant
NOTICE
TO THE PLAINTIFF:
You are hereby notified to plead to the enclosed New Matter
within twenty (20) days from the date of service hereof, or a
default judgment may be entered against you.
GOWBERG, KATZMAN & SHIPMAN, P.C.
By
Je
, o. 130)( 1268
arrisburg, PA 17108
Attorneys for Defendant
Identification No.: 51785
Telephonel (717) 234-4161
Datel
//'1/11,
I /
cumberland county, Pennsylvania. However, the Defendant is
without sufficient knowledge or information to form a belief as
to the truth of the remaining averments of Paragraph 4, relating
to whether to Mr. Mahaffie was walking and in which direction
and, therefore, said averments are denied and strict proof
thereof is demanded.
5. Admitted.
6. Denied. After reasonable investigation, the Defendant
iB without sufficient knowledge or information to form a belief
as to the truth of the averments contained in Paragraph 6, and
the same are, therefore, denied.
7. Denied. The averments contained in Paragraph 7 are
conclusions of law to which no response is required. If a
response is deemed to be required, the averments contained
therein are denied.
B. Denied. The averments contained in Paragraph Bare
conclusions of law to which no response is required. If a
response is deemed to be required, the averments contained
therein are specificallY denied.
a. It is specificallY denied that the Defendant
failed to look for persons crossing a private driveway
before moving his vehicle from said private driveway;
b. It is specificallY denied that the Defendant
failed to keep alert and maintain a proper watch for the
presence of pedestrians wnlking across tho driveway;
2
c. It is specificallY denied that the Defendant
failed to apply his brakes in sufficient time to avoid
striking Mr. Mahaffiel and
d. It is Bpecifically denied that the Defendant
failed to keep proper and adequate control over his vehicle.
COUNT I
Raloh Mahaffie v. James Ort
9. Defendant, JameB ort, incorporates herein by reference
his answers to Paragraphs 1 through B above aB though fully set
forth herein at length.
10. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the averments
contained in paragraph 10 and the same are, therefore, denied and
strict proof is demanded.
11. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the averments
contained in Paragraph 10 and the same are, therefore, denied and
strict proof is demanded.
12. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the avorments
contained in Paragraph 12 and the same are, therefore, denied and
strict proof is demanded.
3
13. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the averments
contained in paragraph 13 and the same are, therefore, denied and
strict proof is demanded.
14. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the averments
contained in paragraph 14 and the same are, therefore, denied and
strict proof is demanded.
15. Denied. The Defendant is without sufficient knowledge
or information to form a belief as to the truth of the averments
contained in paragraph 15 and the same are, therefore, denied and
strict proof is demanded.
WHEREFORE, the Defendant, James ort, respectfully requests
that judgment be entered in his favor and that the plaintiff's
complaint be dismissed with prejudice.
~EW MATTER
By way of additional answer and reply, Defendant James Ort,
interposes the following new mattersl
16. That the Plaintiff's injuries and damages were not
caused by any acts, omissions, or breaches of duty by Defendant,
4
James Ort, but were caused in whole or in part or Were
contributed to by the negligence, fault or want of care or the
Plaintiff.
17. The Plaintiff's claims are barred In whole or In part
by the Pennsylvania Comparative Negligence Act, 42 I'a. C.B.A.
57102, et seg., and by the Doctrine of Comparative Negligonco.
18. That the Plaintiff Was comparatively negligent and
failed to exercise reasonable care for his own safety in the
fOllowing:
(a) walking inattentively without first ascertaining
whether it was safe to do so;
(b) knowingly and Voluntarily encountering an obvious
danger;
(c) walking in front of a moving vehicle;
(d) failing to watch where he was walking; and
(e) walking in a hurried or othorwioo Inappropriate
manner.
19. That the Plaintiff's failure to exercise I'enaonable
care for his own safety was a substantial factor In the happening
of the accident.
20. That the Plaintiff assumed the rlak of tho InjurloB
allegedly sustained by him by reason of his own nogligonce and
carelessnese.
21. That any damages tho Plaintiff may bo untillod to
recover in this action are limitod to thoso dnmnyoa which are
5
recoverable under the provisions of the Pennsylvania Motor
Vehicle Financial Responsibility Law.
22. That the Plaintiff's claims may be limited or barred by
the "Limited Tort" option, pursuant to 75 Po. C.S.A. S1705, et
Beg. (SUpp. 1992).
23. That the Plaintiff failed to mitigate his damages.
WHEREFORE, the Defendant, James ort, respectfully requests
that judgment be entered in his favor and that the Plaintiff's
Complaint be diamissed with prejudice.
GOLDBERG, KATZMAN & SHIPMAN, P.C.
(
By
Je
P. . BOK 1268
H rrisburg, PA 17108
ttorneys for Defendant
Identification No. 1 51785
Telephonel (717) 234-4161
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RALPH IWIAFFIE,
plaintiff
I IN THE COURT OF cOMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO. 95-5594 civil Term
I CIVIL ACTION - LAW
I
I JURY TRIAL DEMANDED
vs.
JAMES ORT,
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
16 . through 23.
Denied. The Defendant has failed to set
forth any faotual allegations that require the plaintiff to admit
and/or deny said allegations.
By way of further response,
plaintiff herein inoorporates the faotual allegations oontained in
the coaplaint. All of the allegations oontained in the paragraphs
of the Defendant's New Matter are all oonclusions of law to which
no re.ponse is neoessary.
WHEREFoRE, the Plaintiff respectfully requests that the
Defendant's New Matter be dismissed.
ANGINO , ROVNER, P.C.
Datel I-II-q If
:i2d\\~'
1.0. #35956
4503 N. Front street
Harrisburg, PA 17110
(717) 238-6791
counsel for plaintiff
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