Loading...
HomeMy WebLinkAbout95-06585 -. ~~p);;\\'- . l~r ,-,~_. ".-...- , '"\t)' ' . . .. " )J, \'-~ '. -- ',..~"' :1" - ,~ . .' i' 2, The law,_..:l.....'I;;~ does not require that an abutting landowner keep the parking lot which he owns free from snow and ice at all times: to hold otherwise would require the impossible in view of the climatic conditions. In fact, there is no abso- lute duty on the part of the landowner to keep his premises and sidewalks free from snow and ice at all times. These formations are natural phenomena incidental to our climate. Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962). - 2 - \~ ~ . WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-6585 civil Term v. EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED DEFENDANT'S PROPOSED JURY INSTRUCTIONS 1. A possessor of land is required to remove ice and snow which has accumulated on the public parking lot abutting his property within a reasonable time after he is on notice that a dangerous condition exists. To establish liability upon the landowner the plaintiff must prove that each of the following three essentials were present: (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 con- stitute a danger to pedestrians traveling thereon; (2) That the defendant property owner knew or should have known of the existence of such conditions; and (3) That it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. pennsvlvania Standard Jurv Instruction 7.02. 2. The law, wisely, does not require that an abutting ~!- ~~(~ landowner keep the parking lot which he owns free from snow and ice at all times: to hold otherwise would require the impossible in view of the climatic conditions. In fact, there is no abso- lute duty on the part of the landowner to keep his premises and sidewalks free from snow and ice at all times. These formations ., are natural phenomena incidental to our climate. Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962). - 2 - . . 3. In order to recover under the facts of this case, " ,..,'7 t. \ :\,\' (. \,V l, Plaintiff must prove not only that there was an accumulation of snow and ice in the parking lot, but that such accumulation, whether in the form of ridges or other elevations, was of such size and character to constitute a substantial obstruction to travel. A mere uneven surface caused by persons walking on the snow and ice as it freezes will not constitute such an obstruc- tion to travel. Rinaldi v. Levine, 406 Pa. 74, 79 176 A.2d 623, 626 (1962) - 3 - , . ~ WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-6585 Civil Term v. EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED DEFENDANT'S PROPOSFD JURY INSTRUCTION~ 1. A possessor of land is required to remove ice and snow which has accumulated on the public parking lot abutting his property within a reasonable time after he is on notice that a dangerous condition exists. To establish liability upon the landowner the plaintiff must prove that each of the following three essentials were present: (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 con- stitute a danger to pedestrians traveling thereon; (2) That the defendant property owner knew or should have known of the existence of such conditions; and (3) That it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. pennsvlvania Standard Jurv Instruction 7.02. , 3. In order to recover under the facts of this case, Plaintiff must prove not only that there was an accumulation of snow and ice in the parking lot, but that such accumulation, whether in the form of ridges or other elevations, was of such size and character to constitute a substantial obstruction to travel. A mere uneven surface caused by persons walking on the snow and ice as it freezes will not constitute such an obstruc- tion to travel. Rinaldi v. Levine, 406 Pa. 74, 79 176 A.2d 623, 626 (1962) - 3 - ~ WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEm~SYLVANIA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS, lNC., Defendant JURY TRIAL DEMANDED PLAINTIFFS' REOUESTED POINTS FOR CHARGE AND NOW, come the Plaintiffs, William J. Ricchiuti and Irene Ricchiuti, by their attorneys, Fowler, Addams & Rundle, and request Your Honorable Court to charge the jury as follows: 1. One in possession of land is required to remove ice and snow which has accumulated on the public sidewalk abutting his property within a reasonable time after he is on notice that a dangerous condition exists. To establish liability upon the landowner, the Plaintiff must prove that each of the following three essentials were present: (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 traveling thereon; (2) That the defendant property owner knew or should have known of the existence of such condition; (3) That it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Pa. SSJI (Civ) 57.02; Rinaldi v. Levine, 406 Pa. 74, 78-79, 176 A.2d 623, 625-26 (1962) . ,; I,J 2. This law which applies to public sidewalks also applies to parking lots. Roland v. Kravco. Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986). .f'. .~ 3. The damages recoverable by the plaintiff, William J. Ricchiuti, in this case and the items that go to make them up, each of which I will discuss separately, are as follows: (a) medical expense (b) future medical expense (c) loss of earnings (d) pain and suffering (e) future pain and suffering (f) disfigurement (g) loss of life's pleasures. In the event that you find in favor of the plaintiff, you will add these items of damage together and return your verdict in a single, lump sum. Pa. SSJI (Civ) 56.01. 4. The plaintiff is entitled to be compensated in the i\ amount of all medical expenses reasonably incurred for the diagnosis, treatment and cure of his injuries in the past. These expenses, as alleged by the plaintiff, amount to $3,831.16; an exhibit will be submitted to you, itemizing these costs, for your consideration during deliberation. Pa. SSJI (Civ) 56.01A. '). . /l\N"u 5. tV\X~D medical The plaintiff is entitled to be compensated for all expenses which you find he will reasonably incur in the future for the treatment and care of his continuing injuries. Pa. SSJI (Civ) 56.018. A \ 6. The plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he probably could have earned but for the harm and any less sum which he actually earned in any employment. Mr. Ricchiuti alleges that he was Unable to work from February 14 to August 17, 1994, a period of atlittle over 26 lidO"/. '" in loss of wages in the amount of~249.9'. , weeks, resulting 7. The plaintiff is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, fJ inconvenience, and distress as you find he has endured, from the time of the accident until today. Pa. SSJI ICivl 56.01E. a. The plaintiff is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, ~ inconvenience, and distress as you believe he will endure in the future as a result of his , injuries. Pa. SSJI ICivl S601F. ......-....- -- lal As stated earlier, you should include in your , . Jaward for the plaintiff a reasonable compensation for the pain ~~ ,f'j land suffering which you find the plaintiff has suffered and may . ' \ 11.( ~~~ suffer in the future as a result of the injuries he sustained in the collision. In evaluating the amount to be awarded for pain and suffering, you should consider the "infliction of pain means the taking from a person what is his own to Possess and retain, namely, health and well-being," and that the law allows for compensation for this loss to the extent that tha~ loss may be calculated in monetary damages. At arriving at your award for pain and suffering, you should consider not only the physical pain and suffering the plaintiff has undergone, but the extent to which the injury has resulted in the loss or lessening of his ability to engage in other activities which he enjoyed prior to the accident. DiChiccrio v. Rockcraft Stone Products Co., 424 Pa. 77, 85, 225 A.2d 913 (1967); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960). (b) When considering the pain and suffering that has been endured by the plaintiff, I instruct you that pain and suffering are substantial losses and can be as much a disability as a crippling fracture or dismemberment. Buraan v. Pitts, 378 Pa. 608, 107 A.2d 860 (1954); carminati v. Phila. Transit Co., 405 Pa. 500, 176 A.2d 440 (1961). The loss of wellbeing is as much a loss as an amputation. The inability to enjoy what one keenly appreciated is pain which can be equated with the inflictions of a positive hurt. Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960). It is your duty to consider the pain and suffering that the plaintiff has suffered or will suffer in the future and determine what is reasonable compensation for that pain and suffering. (c) There has been testimony from the plaintiff's doctor, Gerald Rothacker, M.D., that the plaintiff will suffer in the future and this condition is permanent. If you find that the plaintiff's injuries will continue beyond today, you must fairly and adequately compensate him for such physical pain, mental anguish, discomfort, inconvenience, and distress as you believe he will endure in the future as a result of these injuries. Pa. SSJI (Civ) 56.21. Pa. SSJI 556.01F; 6.21. 9. The disfigurement which the plaintiff sustained as a result of this accident is a separate item of damages recognized by the law. Therefore, in addition to such sums as you award for pain and suffering and for embarrassment and humiliation, the \S plaintiff is entitled to be fairly and adequately compensated for the disfigurement he has suffered in the past as a result of this accident, and which he will continue to suffer during the future duration of his life. Pa. SSJI (Civ) 56.01H. 10. The plaintiff is entitled to be fairly and adequately compensated for past, present and future loss of his ability to ~ enjoy and of the pleasures of life as a result of his injuries. Pa. SSJI (Civ) 56.011. 11. The plaintiff is entitled to recover damages for all injuries which the defendant's negligence was a substantial factor in producing. The defendant's negligence need not be the sole cause of the injuries; other causes may have contributed to ~;, \ ~- producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of its negligence. Pa. SSJI (Civ) 56.30. 12. The Plaintiff's spouse is entitled to be compensated for " the loss of the injured party's services to him (her) and the ~ loss of the companionship of his (her) spouse. Pa. SSJI 5601L. The claim is for loss of consortium. It includes whatever aid, assistance, comfort and society the injured spouse would be expected to bestow on the other spouse. Consortium is an element of damages which has no market value, and the amount to be awarded is particularly for your common sense and sound judgment. Burns v. PeDsi-Co1a Metrooo1itan Bott1inQ Co., 353 Pa. Super. 571, 510 A.2d 810 (1986). Respectfully submitted, FOWLER, ADDAMS & RUNDLE By: ';~c- Supreme Court I,D. No. 06265 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for Plaintiffs WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-6585 civil Term v. EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED + DEFENDANT'S PROPOSED JURY INSTRUCTIONS 1. The Plaintiff claims that he was injured and sustained damage as a result of the negligent conduct of the Defendant. The Plaintiff has the burden of proving his claims. The Defendant denies the Plaintiff's claims and asserts as an affirmative defense that the Plaintiff was himself negligent and that such negligence was a substantial factor in bringing about Plaintiff's injuries. The Defendant has the burden of proving this affirmative defense. Based upon the evidence presented at this trial, the only issues for you to decide in accordance with the law as I shall give it to you are: First: Was the Defendant negligent? Second: Was the Defendant's conduct a substantial factor in bringing about harm to the Plaintiff? Third: Was the Plaintiff himself negligent and was such negligence a substantial factor in bringing about Plaintiff's injuries? Pennsylvania Standard Jurv Instruction 3.00. 3. You may find inconsistencies in the evidence. Even ~actual contradictions in the testimony of witnesses do not ~' necessarily mean that any witness has been willfully false. Poor memory is not uncommon. Sometimes a witness forgets/ sometimes he remembers incorrectly. It is also true that two persons witnessing an incident may see or hear it differently. If different parts of a testimony of any witness Or witnesses appear to be inconsistent, you the jury should try to reconcile the conflicting statements, whether of the same or of different witnesses, and you should do so if it can be done fairly and satisfactorily. If, however, you decide that there is a genuine and irreconcilable conflict of testimony, it is you~. function and duty to determine which, if any, of the contradic- tory statements you will believe. Pennsvlvania Standard Jurv Instruction 5.04. - 3 - ~ 4. If you decide that a witness has deliberately falsified his testimony on a significant point, you should take this into consideration in deciding whether or not to believe the rest of his testimonYI and you may refuse to believe the rest of his testimony, but you are not required to do so. Penn.vlvant. Standard Ju~v Instruction 5.05. - 4 - A 5. Defendant was not the insurer of Plaintiff's safety, and the mere happening of this accident is not evidence or proof of negligence on ita part. Watkins v. Sharon Aerie No. 327, 423 Pa. 396, 398 (1966); O'Neill v. Bachelor BrOB.. Inc. Funeral Homes, 421 Pa. 413, 416 (1966). - 5 - 7. Accordingly, you may not find Exel Logistics liable to ~ Plaintiffs unless you find that it was guilty of negligence and that its negligence was a substantial factor in causing this accident. Hamil v. Bashline, 481 Pa. 256, 265 (1978); Burnside v. Abbott Laborat- ories, 351 Pa. Super. 264, 274 (1985) . - 7 - . . "'.'.,....,., ~.. ~ ~ 1 8. Exel Logistics is not liable to Plaintiff if you find ~).hat the danger involved in walking as he was at the time of his fall would have been obvious to and discovered by a reasonable L person in plaintiff's position, exercising normal perception, intelligence, and judgment. Restatement (2dl of Torts, S343(a), Comment B (1965); carrender v. Fitterer, 503 Pa. 178 (1983). - B - McNEES, WALLACE & NURICK ATTORNEYS AT LAW 100 PINE STREET p, O. BOX 1188 HARRISBURG, PA 17108.1188 T....IIO..,7I71232,8000 ruI7171237.5300 11000 STREET N,W, SUITE 800 WASHINGTON, D,C, 2000e T....IIo..,202143408;;1 r..,2021434,8707 hnpJ/WWW.mwn.com MICHAEL R. KaLLay D...CT DIALl 17.71 Q07.aDIiJU B.MAIL Aoa....l W..LL.Y.NW".CON November 5, 1996 The Honorable Harold E. Sheely Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Ricchiuti v. Exel Logistics, Inc. C.P. CUmberland County No. 95-6585 civil term Dear Judge Sheely: Enclosed is Defendant's Trial Memorandum and Proposed Jury Instructions on the "Hills and Ridges" doctrine which you requested in the pre-trial order. You will note that there is no discussion regarding the admissibility of the medical and wage losses of Plaintiff. After furth~r review of the statute and case law, Defendant agrees that the medical expenses and evidence of lost wages are admissible. There also is no discussion concerning the ability of Plaintiff to present a future lost earning capacity claim without the testimony of an expert. Plaintiff's counsel has agreed that such testimony cannot be presented without an expert and that no expert testimony will be presented on this issue. Thank you for your consideration. Sincerely, MRK/djp Enclosure cc: William A. MCNEEY1 WALrCEO& ~~~K rf) By f I~cl... t r,-e (Jt.~ Michael R. Kelley ~ Addams, Esquire " ',' McNEE8, WALLACE II< NURICIC .00 PIN. .Tltl", NOV 0 6 199~~ ft, D. .1 t... HA""I..U.... PA ",oe . . , . ~ WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERIJ\ND COUNTY, PENNSYLVANIA No. 95-6585 civil Term v. EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED DEFENDANT'S TRIAL BRIEF I . FACTUAL BACKGROUND This case involves a slip and fall accident which occurred on February 14, 1994. At that time, Plaintiff was operating a tractor-trailer on the premises of Defendant. While attempting to drop his trailer and disconnect it from the tractor, plaintiff slipped on ice and snow and fell. The community where the accident occurred had received heavy snowfall on a regular basis for weeks prior to the date of the accident. Ice and snow had accumulated throughout the community over the several week period. On approximately February 11, 1994, another snowfall of more than 8 inches fell in the community and at the facility of Defendant. This snowfall was plowed on February 11 and February 12, 1994. No further snow fell between that date and the date of the accident and, while snow and ice did exist in the parking lot area where the accident occurred, there were no ridges or hills which obstructed either automobile traffic or foot traffic. " Plaintiff claims that the previous snowfall on February 11, 1994 had not been plowed and that numerous ruts from tractor- trailer traffic were made in the un-plowed lot when he arrived on the morning of the accident. Nonetheless, he testified as his deposition that he slipped and fell when he took a step into an area that had several inches of snow on it and slipped due to ice underneath the snow. Plaintiff specifically testified that there were no ruts in the area where he slipped. Plaintiff is unsure as to the amount of the snow in the parking lot, but believes that it was no more than 6 or 8 inches. I I . ARGUMENT A. Hills And Ridqes Doctrine. The seminal case in Pennsylvania on the "hills and ridges" doctrine is Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962). There the Supreme Court held: In Pennsylvania, an abutting property owner is orimarilv liable for the removal of ice and snow upon the sidewalk. However the law, wisely, does not require that such abutting owner keep the sidewalk free from snow and ice at all timp.s: to hold otherwise would require the impossible in view of the climatic conditions. Whitton v. H.A. Gable Co., 331 Pa. 429, 431, 200 A.2d 644 clearly expresses the quantum of duty imposed on the abutting owner: "There is no absolute duty on the part of a landowner to keep his premises and sidewalks free from snow and ice at all times. These formations are natural phenomena incidental to our climate. 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 danger- ous condition. There is no liabilitv created bv a qeneral sliooerv condition on sidewalks. It must - 2 - aDDear that there were danaerous conditions due to ridaes or elevations which were allowed to remain for an unreasonable lenath of time. or were created bv defendant's antecedent nealiaence." 406 Pa. at 77-78, 176 A.2d at 625 (citations omitted) (emphasis added). The Supreme Court went on to state that: Where a property owner is charged with negligence and permitting the accumulation of snow or ice on his sidewalk, the proof necessary to sustain such a charge has been clearly defined by our decisional law. It is encumbent upon a plaintiff in such situation to 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 traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of sll such facts, plaintiff has no basis for recovery. Moreover, the burden is upon a plaintiff to prove not only that there was an accumulation of snow and ice on the sidewalk but that such accumulation, whether in the form of ridges or other elevations, was of such size and character to constitute a substantial obstruc- tion to travel. A mere uneven surface caused by per- sons walking on the snow and ice as it freezes will not constitute such an obstruction to travel. 406 Pa. at 78-79, 176 A.2d at 625, 626. The law as set forth in Rinaldi has been applied to parking lots as well. ~ Roland v. Kravco. Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986). In Roland, the court further explained that in addition to the factors set forth in Levine, "[p]laintiff must also show that these ridges or elevations were the cause of the fall and in the absence of proof of this, the plaintiff has no basis for recovery." 355 Pa. Super. at 498, 513 A.2d at 1032. - 3 - ~ aliQ Frederick v. Katsifis, 44 Cumbo 466, 468 (1995), citing Rinaldi and Roland (defendant's motion for summary judgment granted on basis that plaintiff had failed to show hills and ridges as reason for slip and fall) . Under the above authorities, where general slippery condi- tions exist in the community, the plaintiff has the burden of proving the existence of "hills and ridges" and that his fall was caused by such hills or ridges. The facts which will be pre- sented at trial will establish that general slippery conditions prevailed in the community. The testimony will demonstrate that the winter of 1994 wa6 one of the worst on record in Pennsyl- vania. At the time of the accident, huge mounds of snow were piled up allover the community and where the accident occurred, including mounds of snow piled 8 and 10 feet high in the parking lot at Exel Logistics. The Friday prior to the accident, which occurred on a Monday morning, had seen approximately 9 inches of snow fall in the community. Accordingly, Plaintiff must prove that hills and ridges existed in the parking lot and that such hills and ridges caused his fall. The evidence presented at trial will establish that there were no hills or ridges in the parking lot at Exel Logistics. Defendant will present testimony that the parking lot had been plowed prior to the arrival of Plaintiff. Such testimony will be presented by witnesses and through the records of plowing by Exel Logistics' snow removal contractor. These records indicate that - 4 - the snowfall on February 11, 1994 was plowed on that day and on February 12, 1994. Even assuming that the lot was not plowed, ruts from traffic driving on several inches of snow does not amount to an accumulation "of such size and character to consti- tute a substantial obstruction to travel." At most, the tracks in the snow amounted to a "mere uneven surface." Even assuming, further, that the ruts in the snow constitute "hills or ridges", Plaintiff's own testimony at his deposition indicates that he did not slip and fall in the alleged ruts created by traffic in the lot. His testimony was that he stepped in several inches of snow and slipped because of ice underlying that snow. Where general slippery conditions are in effect, and absent a hill or ridge in the area of the fall, Plaintiff cannot recover. B. Status Of Plaintiff As A Business Visitor On The Premises Of Exel Loqistics. It is Defendant's position that Plaintiff was a business visitor on the premises of Exel Logistics. Nonetheless, whether Exel Logistics is liable for Plaintiffs' fall is to be determined by the "hills and ridges doctrine" as set forth above. The general rule with regard to the duty that a landowner owes to a - 5 - business visitor is superseded by the "hills and ridges doctrine" under the facts of this case. Respectfully submitted, McNEES, By & NURICK .' ~. M c ael R. Kelley I.D. No. 58854 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Exel Logistics, Inc. - 6 - i . , CERTIFICA~E OF SERVI~E The undersigned hereby certifies that on this date the foregoing document was served by first class mail, postage prepaid, upon the fOllowing: William A. Addams, Esquire 28 South Pitt Street P. O. Box 208 Carlisle, PA 17013 ~K~ie~ Dated: November~, 1996 Attorneys for Defendant Exel Logistics, Inc. WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-6585 Civil Term v. EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED DEFENDANT'S TRIAL BRIEF I. FACTUAL BACKGROUND This case involves a slip and fall accident which occurred on February 14, 1994. At that time, Plaintiff was operating a tractor-trailer on the premises of Defendant. While attempting to drop his trailer and disconnect it from the tractor, Plaintiff slipped on ice and snow and fell. The community where the accident occurred had received heavy snowfall on a regular basis for weeks prior to the date of the accident. Ice and snow had accumulated throughout the community over the several week period. On approximately February 11, 1994, another snowfall of more than 8 inches fell in the community and at the facility of Defendant. This snowfall was plowed on February 11 and February 12, 1994. No further snow fell between that date and the date of the accident and, while snow and ice did exist in the parking lot area where the accident occurred, there were no ridges or hills which obstructed either automobile traffic or foot traffic. Plaintiff claims that the previous snowfall on February 11, 1994 had not been plowed and that numerous ruts from tractor- trailer traffic were ma~e in the un-plowed lot when he arrived on the morning of the accident. Nonetheless, he testified as his deposition that he slipped and fell when he took a step into an area that had several inches of snow on it and slipped due to ice underneath the snow. Plaintiff specifically testified that there were no ruts in the area where he slipped. Plaintiff is unsure as to the amount of the snow in the parking lot, but believes that it was no more than 6 or 8 inches. II . ARGUMENT A. Hills And Ridqes Doctrine. The seminal case in Pennsylvania on the "hills and ridges" doctrine is Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962). There the Supreme Court held: In Pennsylvania, an abutting property owner is orimarilv liable for the removal of ice and snow upon the sidewalk. However the law, wisely, does not require that such abutting owner keep the sidewalk free from snow and ice at all times: to hold otherwise would require the impossible in view of the climatic conditions. Whitton v. H.A. Gable Co., 331 Pa. 429, 431, 200 A.2d 644 clearly expresses the quantum of duty imposed on the abutting owner: "There is no absolute duty on the part of a landowner to keep his premises and sidewalks free from snow and ice at all times. Theoe formations are natural phenomena incidental to our climate. Snow and ice upon a pavement create merely transient danger and the only duty upon the property owner or tenant is to act within n reasonable time after notice to remove it when it is in a danger- ous condition. There is no liabilitv created bv a qeneral slippery condition on sidewalks. It must - 2 - aooear that there were danqerous conditions due to ridqes or elevations which were allowed to remain for an unreasonable lenqth of time. or were created bv defendant's antecedent neqliqence." 406 Pa. at 77-78, 176 A.2d at 625 (citations omitted) (emphasis added). The Supreme Court went on to state that: Where a property owner is charged with negligence and permitting the accumulation of snow or ice on his sidewalk, the proof necessary to sustain such a charge has been clearly defined by our decisional law. It is encumbent upon a plaintiff in such situation to 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 traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, plaintiff has no basis for recovery. Moreover, the burden is upon a plaintiff to prove not only that there was an accumulation of snow and ice on the sidewalk but that such accumulation, whether in the form of ridges or other elevations, was of such size and character to constitute a substantial obstruc- tion to travel. A mere uneven surface caused by per- sons walking on the snow and ice as it freezes will not constitute such an obstruction to travel. 406 Pa. at 78-79, 176 A.2d at 625, 626. The law as set forth in Rinaldi has been applied to parking lots as well. See Roland v. Kravco. Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986). In Roland, the court further explained that in addition to the factors set forth in Levine, "[p]laintiff must also show that these ridges or elevations were the cause of the fall and in the absence of proof of this, the plaintiff has no basis for recovery." 355 Pa. Super. at 498, 513 A.2d at 1032. - 3 -- ~ dlgQ Frederick v. Katsifis, 44 Cumbo 466, 468 (1995), citing Rinaldi and Roland (defendant's motion for summary judgment granted on basis that plaintiff had failed to show hills and ridges as reason for slip and fall) . Under the above authorities, where general slippery condi- tions exist in the community, the plaintiff has the burden of proving the existence of "hills and ridges" and that his fall was caused by such hills or ridges. The facts which will be pre- sented at trial will establish that general slippery conditions prevailed in the community. The testimony will demonstrate that the winter of 1994 was one of the worst on record in Pennsyl- vania. At the time of the accident, huge mounds of snow were piled up allover the community and where the accident occurred, including mounds of snow piled 8 and 10 feet high in the parking lot at Exel Logistics. The Friday prior to the accident, which occurred on a Monday morning, had seen approximately 9 inches of snow fall in the community. Accordingly, Plaintiff must prove that hills and ridges existed in the parking lot and that such hills and ridges caused his fall. The evidence presented at trial will establish that there were no hills or ridges in the parking lot at Exel Logistics. Defendant will present testimony that the parking lot had been plowed prior to the arrival of Plaintiff. such testimony will be presented by witnesses and through the records of plowing by Exel Logistics' snow removal contractor. These records indicate that - 4 - the snowfall on February 11, 1994 was plowed on that day and on February 12, 1994. Even assuming that the lot was not plowed, ruts from traffic driving on several inches of snow does not amount to an accumulation "of such size and character to consti- tute a substantial obstruction to travel." At most, the tracks in the snow amounted to a "mere uneven surface." Even assuming, further, that the ruts in the snow constitute "hills or ridges", Plaintiff's own testimony at his deposition indicates that he did not slip and fall in the alleged ruts created by traffic in the lot. His testimony was that he stepped in several inches of snow and slipped because of ice underlying that snow. Where general slippery conditions are in effect, and absent a hill or ridge in the area of the fall, Plaintiff cannot recover. B. Status Of Plaintiff As A Business Visitor On The Premises Of Exel Loqiotics. It is Defendant's position that Plaintiff was a business visitor on the premises of Exel Logistics. Nonetheless, whether Exel Logistics is liable for Plaintiffs' fall is to be determined by the "hills and ridges doctrine" as set forth above. The general rule with regard to the duty that a landowner owes to a - 5 - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date the foregoing document was served by first class mail, postage prepaid, upon the following: William A. Addams, Esquire 28 South pitt Street P. O. Box 208 Carlisle, PA 17013 -vo/jdd K~ie~ Attorneys for Defendant Exel Logistics, Inc. - Dated: November ~ , 1996 SHERIFF'S RETURN - REGULAR CASE NO. 1995-e6585 P CORRONWEALTH OF PENNSYLVANIA, COUNTY OF CUKBERLAND RICCHIUTI WILLIAK J VS, EXEL LOGISTICS INC J. RICHAEL ICKES . Sheriff or Deputy Sheriff of CURBERLAND County, Penn.ylvania, who being duly .worn according to la.. .ay., the within CORPLAINT wa. .erved upon EXEL LOGISTICS INC defendant. at 1040.e0 HOURS, on the ~ day of Nove~ber 19~ at 260 SALEK CHURCH ROAD RECHANICSBURG. PA 17e55 .CURBERLAND County. Pennaylvania. by handing to KARLIN WOOD. DIRECTOR OF RAIITENANCE & ADULT IN CHARGE a true and atte.ted copy of the CORPLAINT . and at the .a~e ti~e directing Ria attention to the content. thereof. the . Sheriff'. Coat.. Docketing Service Affidavit Surcharge 18.0e 6,16 .0e 2.00 So an.,~.p .~ ~~~,o--,,.,,........< /~.. -r .-: I ....................,. K. Thom.. K~1n., 5h.r1%% .Z6.16 fOWLER ADDAKS SHUGHART RUNDLE 11/2211995 by f~t1~~ Sworn and .ubacribed to before me thi. /I ~ day of I.l'l",,~ ..- 19 'i ~ A, D. Cj4t~pQtn~~r~ . ;"ldams' carL.. , ,',n .... not ootl I",..", rill - 10',.,1 , I \ their f I J <lId WI' ,"II, dia'.- ..",' occur prior 'ft'! t, ,..!' -Jate, Vory ,';If you I McNEE~:, ;'/ALhAC~ ' '.' 1'1, T ') , M~' r~ t:-f{" , ""fe],,, \ By r.mK/djp \ ,'C: Willi!Ii,' .' ',-,ldams, , E qu i 1'1 \ , \ I , , , , , I 1 \ ( I , I 6::':"'( '~II:, .! .1 I .~;:-~ I,' , ; j' ~:II:1 : ,,' 011 ..... ..... 1- '. " ID ID M M I <0 o M ,.. M I\) H .ct tl &'01 Ul~ r>lZ . >,<ll I\) .-il\) .-i U .0: I\)I\IIDP< :>:.-i\O .-i M . , ItS MOl p:~X~ .-i .0.0 I\)UlmUl 1\11\) ,01 .c: I\) . H uZO H ..... u 'ltS ;E;EP<tI: , 101 III 0 ..l '" Q 0 Z . ;0 M " ~ I- 0 ~ ~ W ,.. W ~ I- 0( a: " ... III I- 0( 0( I- 0 III = 0( OJ I- Z .., III >< I- 0( OJ > 0 o. > ... = W III > '" Z :t III iii a: 0 I- Z 0 :> z - I- o. 0 '" III W 0( I- o. Q 0( III W Q OJ 0( ... III ri :; 101 a: ..l 0( ~ U 0 , .. . ; , -.... .... . - '. QJ .-i 'tl ~ . QJ~ H ..... ~ &l\l rn.t: WCl ;:l ..t: ~Ul Ill. .... :g~ "';IllCO"'; 'tloll< .'tlN "';"';><ai = . O.-i III Hill rn ..... QJ ..... r-tr-t .r-t .-i)OH ..... 0 . l\l ~~ll<U l"l .... o l' , .. '" ., e ... ... Q 'i' :I: ;;> l'l III ~ l- e III ;: w ... w ~ ... <( II: III .... ., I- <( -< l- e III = <( ... I- Z ~ III )( I- <( ;;> >- 0 Q, > -' = w ., >- III Z " III I- .,; II: 0 :J Z - 0 Q, 0 z " I- III W -< I- Q, Q <( ., W Q ... -< -' III III :; '" II: .. <( \ ~ u 0 j . ... , .-, .... . >c'- ~ \'- " ,j-- '.;- f.:' \~t;, 7;, ,,~. ; " -'" H,_.; :-'i'-". ~t~~~ttt_~~~~~'~.. "!'C,-~ i' ,', Y' "cWMw,1iti'-IIYtVNM 'NtI' "', ,'~,ii;t\';-;\'c ~;;;,~ ;Q~~~~~~:.~~:s',~~~~~~~~"" HOt' :~ ":~,", ~:':,.:.:'::::;:.lji~~ ., , , WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED AND NOW, this ORDER OF COURT day of November, 1996, upon consideration of the within motion, the trial of this case is continued at the request of the plaintiff. The prothonotary is directed to relist the case for trial for the January, 1997 term. By the Court, \,:- ~: tC_{; dO; " , - ~ i :. . I,' 'i.,';,-\- ;;,'-, ";- 'j" ,\ -;;l',' " -'"-,,,:"->-,' \.,.. i "'.:.~ ~ ,:- -~_: ~ l. ,C :," " ','" "~~~. :r,', ,.,-~ .,.' ~PI"cL; , . I ' ,.:---.'-:- :.,' -." /N:t'/f'~":<' '1' ......... ,,-....,.;.'. - Distribution: William A. Addams, Esquire Michael R. Kelley, Esquire J. ',j . WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED MOTION FOR CONTINUANCE AND NOW, comes the Plaintiff, by his attorneys, Fowler, Addams, Shughart & Rundle, and moves Your Honorable Court as follows: 1. This case is on the November 12, 1996 trial list. 2. Plaintiff's worker's compensation carrier is asserting a subrogation claim of $39,~31.53 which includes a commutated settlement of $21,000 for 500 weeks partial disability. 3. Plaintiff'S medical evidence does not support a claim for loss of future earning capacity. 4. In order to conduct meaningful settlement negotiations with Defendant, the Plaintiff must attempt to reach agreement with the carrier regarding its subrogation claim, but counsel is advised that it "cannot locate the file." 5. Therefore, Plaintiff requests a continuance to the January 1997 term. <.liftl f<H~ h. CERTIFICATE OF SERVICE AND NOW, this 1st day of November, 1996, I, William A. Addams, of Fowler, Addams, Shughart & Rundle, attorneys for plaintiffs, hereby certify that I have served a copy of the Motion for Continuance by Faxing to (717) 237-5300, and mailing a copy of the same by united States mail, postage prepaid, addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 ~-:~~~ , 1 T. t.'. , ' P" 0' fl', .' .' .;, \ ~.-....---,.~.,' ~ ..'...-- ~ C) C N '"'" I~ M J~ ~ . ~~ ..~~ - .S~ I >- ~~1~ f= c.:J ;0;; '~ l:!:i to en ........'".. ]' NUv L 1 1896 ~ WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of November, 1996, upon consideration of the within motion, the trial of this case is continued at the request of the Plaintiff. The Prothonotary is directed to relist the case for trial for the January, 1997 term. By the Court, J. Distribution: William A. Addams, Esquire Michael R. Kelley, Esquire ,NOV Ii ; ',.. ' l..... IJ;.JU W WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of November, 1996, upon consideration of the within motion, the trial of this case is continued at the request of the Plaintiff. The Prothonotary is directed to relist the case for trial for the January, 1997 term. By the Court, J. Distribution: William A. Addams, Esquire Michael R. Kelley, Esquire ~ '" ~ .::t .. s~ - 11 - it: ._)~ 9~ lO , "1,1 I r)~ ~' ::.. ';;$ ~ ~f1 & lO "'5 a, U , . 0 III "II I\~H 10~"'a!lO RIDDLIID.."IIIIIIUIG I'lL "'1 LOCAL "'i" III ID.IIIII '111'11 DIIIIIII urr ILDG, SlI UlDI ..." "'.. DATA . ' " CLIMATOLOGICAL A " 1.IUIIIII'IORRI,11 IILL . . 11011 111-4100 ' . !. ~ Monthly Summary ;,." +..... HARRI18URG I"'" IIRPO.1 f'AIU 0'" UillUDI 40' 11'H \a.UlU~( H,' u'w BlIUlall IUOUIIDI JO] 1111 11111/011' 11111" 10tH I DUIII OAU .nTiifiTtlil'iIi "mmr -- WIND \11 (DrU Ilm.I1U.I'1 Uu n', III ..(("IUIIO. llAno. I" P H.I SUIl5HIII( 11(IIIIU 'far. 'mllS nlUIIII,_ E-o . .. g; 2 ..UlI nr. .. ~ II :r _11,:: ';~~',~' 0- ~ ~~ I lIlUllCU\IUII HI a. ~ Ilellt\ ~ ::: u ~ ;:; ~ <: . ~~ ~~ ' Itl PHIlU mUla ii' e. ~;;; ;; ~~ \ lUll 11 H(V. . , D~ - ~ -;; ~ : : u :': ~ . ~ :;JU ~. .. .. .,,1" IDa ~- .-. - III k' ~ _Q, 0a0I'" "'. ....:l ~ ~ ~. ~.. .~ ~n ~- ~; [ ~ .. ..... ""IE'> . OU .. . , tu\luau ~~ 1((1 ~ ~ u u ~ u ~ ~.J_~__ ~ . ...: 0" D D n u. ..... .., E-o ;; ~ ...n ~. . .. ""0Il,1I11i Imn uavt ~ ~ ~ .. ~ . 0- . Q - ~ ~ A k" A- u- "lS,II~ ;~ ~ ~ ilL ~ ....0:::>0 _1:;1 Z "; ; :LG: ~;. L;L ,llowlllr.'1I01i .- ;.- ;2- ~~ v;;- "',;- .__~ .....L~.L. - 01 11 , 18 ." , " 0 I , 0.01 o . 1'1I1LO" U , \ 11 I' "1 " . . 0 01 II I III .1\ \ I' 0 , 0.00 o 0 ''1'11030 1 , I 1 10 l' III 'I 1 1 01 14 , 11 ,8 . " 0 8 . I 1 2'J 1b02't l' '1 ]I " "A II I . 0:: o' 11 l' 10 ., 10 II 0 . 0.00 0.0 ~'t .1110 14 , I 1,0 8 " 118 11 8 . ;::J 01 11 11 11 .. 10 '1 0 , , . 0.00 o 0 2't .1)'t0 11 1 1 J.l II Jl 0 0 10 . O' I~ 10 18 .1 I! ]I 0 8 . 0.00 o 0 2'1.Lll)n l.l ... " 11 "20100 0 0 0:1 OJ 41 I~ l' 0 I! " 0 I 8 . 000 002'.81012 '.1 /.J 10 " \80 !l 1 1 ""Cf.l 08 1. 11 11 ,8 11 Cl 0 1 , , \ O.b' I) 0 2' 80001 U U II 0\ 0 0 10 10 0' 11 11 I! .\1 II " 0 , . l . 0.2'J 1.2 },.I)'JOlb U 8J 11 II 0 0 10 , en...... 10 n 11 1\ ,1\ I 10 0 , 1 I 10.11003 U 8. l' II 111 \1 . . en 0:: II l' II I! ,11 " " 0 1 II 081 11.8 l' '8001 I , , 0 " JJ 0 0 10 10 ......0:: 11 11 lJ 18 '1 1\ 11 0 1 . 18 0,01 '1'.'WiOl " 10.1) 1\ 10 0 0 10 10 <( 11 " 18 J\ . 11 JO 0 , l 8 " 1 0.02't.b'010 11 l1,e 18 11 111 11 . 8 0:1::r: 11 11 11 II ./ " " 0 11 0.00 0,0 1'.84031 12.'t Ib.1) 1 11 L3' 100 1 1 1\ .0 7 II .7 " " 0 8 II 0.00 . 0.0 2'.80031 U 1.1 11 11 m .1 . 1 (1 '-.. .. I~ 10 11 1 11 JI 0 . 0.00 0.0 ]lJ."0 31 12.' 11,3 1\ 10 L44100 0 1 "Z " .. 11 10 '1 10 l\ U . 0.00 0.0 30.10013 1.. U II " 4Bl 1\ I . 11 SI 11 11 0 11 II 0 1 8 , 0.00 0.0 10.100 IF o . o,J , 11 .17 !I I 1 ~ " Sl n 18 . " 11 0 I 8 \ 0.00 0.0 10.080 IL 1.0 1.8 " 1\ ,"0 '1 . 1 0 10 ~81 lL II' 10 1L II 0 1 8 . 0.00 0,0 1'.nl) 13 J.l ... 11 " l40 " 10 I 11 II 1~ 10 7 " II 0 1 , 0.]8 0.0 1't, 18032 J.l ',8 " I' 0 0 10 , E-o 11 .. 11 10 7 1/ II . 0 1 o 00 0.0 2'.%014 U lO.L 11 11 m !I 1 . ~ 11 n I' Jl .1 10 II 0 I . . . O_Ll !j,' 1'. 'LO 10 10.8 11.4 18 11 0 0 10 I' II " 11 11 1 lL lO 0 I I , . 0.31 0.4 2'.310 2' 11 I 13.2 1\ l' 110 18 . , 0 IS 11 II 11 'J " I' 0 . 0.00 0.0 2't.b40 30 8 I 11.1 10 l' III " S . lL 11 11 l' '10 II " 0 , I 0.02 0.3 1'i...40 n 1B.2 I! I 1\ 11 \se 8! . I 0 11 1\ 8 11 .18 1 .. 0 I 0.00 00 10,010)2 n.. 1'.' 1\ JJ b11 100 0 0 - 11 I' 11 10 '1~ I .1 0 . 0.00 0.0 10,10030 U 8 \ 10 11 ~\1 .1 S \ ~ " j .- il1Jf- 10111 lIu~m ~I DIU ~101.L ~. IW!-"OIIW: AISIl" " I,,, JlL t.______, -- :rr 1101 I '" 1 , no , .n~ ...J"l.. _2!~ nttlPIUlICII -~il I~: .!!L AI: 'tIIl'lI ...If " no ..111 -f. L!LJ~I\r ,- . 11 llUUl1 Dr OilS ~~1!'1 10J!U SII~.. lI' ILl S UIAlnl I. 14 1l01l.S no OllIS Ullml DIPIKOII [lIDUIO Dr 01'-B10Il& --{ lOlll(W · II 1 IIUII , II I !lUll I iip 3Jl ~~"~iDii}j2.Jlf-- 1 PH~^Y..~~.~_+j!9. ( , uJ~L.... SIOII, IU PUllIS O. IU UO OAt( 3= tiP DIP w\lU tet g IIIJ .. -\1 .Jj 1 . ~[ _ 41'..1:=:-3- ~!1n.!I..,~-li pii;\, uguo, 'M" (louD' . [IIR("[ rOR 11t( KOHIH . l,.SI O((U!iIl(k(( tr tlOlI[ IIIAk Ok[ I IRAI[ A'OUNI, . ~lSO OH [,.RlIER OAll151 U[An rOG: VISIBILITY 114 t1U[ OR 1I'J'J BLANK [MIRllS D(~OI[ "ISSING OR U~IlIPOR'IO D~tA 0"1" IN eClS L ,.ND 12~11) AHI U,.SIU ON 21 OR "ORE OBS[R~A'IOk5 ,., 1I0URl) IHHRVlLlS R[SUlIAN' WIHD IS 11l[ VECTOR SUit or WIHo SPUDS ,.HD 0IR((IION5 DIVIO[O By 1lI[ NutlBER or OBSERVAIIONS COtS tL .. 11: P[^~ (just . IlIGH[Sl INstILNIAN[OUS WiNO SPUD. ONE or IWO WINO SP[[OS IS GIVEN UNDER COlS 18 .. I': r,.sl[st tlll[ - HlliH[st R[CORDlO 5P[[O fOR WHICH" "Ill or WiNO P,.SSlS stAllON 10IR[(IIOk IH COtlPASS POINISI r,.SI[Sl OBSlRV[O ONE I1IHUll ..lkO .. 1I1GIllSI ONt ,HNUIl 'jp((O IDIREctlON IN l[HS or O[GRiISI (RRORS Will Ol CORR[(IIO IN 5U6S[QU(HT PUBlIC,.IIONS I C[.1If! IHI11'1~ II IN all"'" PU,lllI110' Of 1111 MlllOMll OlllNlC INO I,"O\PIIIRlIIO',"15""1I0'. INO II lo,pmo IRO' .ICD.OI a. fill II 1'1 '1110'1, (, I"ll( 011111.11. . '. 3088 hAllOf\Al I~HNIC ANO MttO':tPlIIIIC,.OItIHISIUIION KAIIOkAl I NvlROtftNIAl !lAlll~lIL. o"r" AMU INrOR""II~ YRvlU NA11~"'L [liMite 0"'" UHlER "'Sit 'fill[ hOHIH ('-ROllk" r/~./ --../J~..o Y..tlA.-' OI.IClO. MlIIOMll CLI",1I1 011I [[NlIR . ... OBSERVATIONS A! 3 HOUR INtERVALS Tml 11/11 . { !i~ Dnill! illlllUlll .. lEu ~~ .. ImIllIUI[ '11I I[ ""RIIUII "'0 ml1. I"PlUIUI[ WIlO E ~ --- -,...:.. " ~ .. ~ " = - .. ~ = - ~ ~ - ,[ lIHlR ~ - ~ :: .. ~ '[llH[1 ~ . ~ : .~ ~ 'llIH[1 ~ : .to ;; ~ ~ ~ ~ ;; ~ . ;; ~ .. : ~ ~ ..;: i= ;; i - i 1; : ;== ;; ;; i . ;; .. '= ::t:: .. ;; ;:; i :. - .. ~ ~i :r I::: =1 i .. .. .. .. ~i i ~ . . . .. .. ~ ~ - .. ~ - ~ ~ . .. ~ ~ - . ~ - - .. . - - - i .. - i i S ~ ~ .. ~ .. ;: ~ ~ .. .. ;: .. .. .. .. - . .. . ~ .. III hi r(l '"d IIIJ,o I pll \\ 10 II 1\ II0i 10 "" 'll ,. T" , IU" 1\ 10 I \ 1011 10 . 10 10 11 II \0 1100 0 I \1 II II 10 I 1100 0 I 100 1\ 10 I i 14000 110 II 1 If II II 11 Ii 00 0 110011 i I "" 10 \ I 10 10 I / \ II OJ 0 10 lUll II II II I \0 II II I U" 10 II II I 1\ 00 0 1100 I II II II 10 III 11 4Ull 1\ II II 1 H II 10 I Ull 1\ 11 II I 41 II II lUll 1\ 14 II " \01110 Ii lUll !l II ill \ II II 10 OUll 1\ II II 11110 " OUll 1\ 10 II .1 II In II II OI1.!f If \ \llll ! o u'ILllL " 11. I /1 ~~ ~ om l1 !l !l l 111 II ! n .. Jl ..j 11 1II1lh III \Ih IIIIth I OUII II I \ 0 Ii 00 0 o U'I 'llJ "rr]~' 0 Ull II II 11 10 i411 4 . OUII II I I .1 1100 0 1 Ull I 11 II II Ii 00 0 0 Ull 1\ II Ii II "00 0 I lUll II , I . 1000 0 lUll 4 I II II 11 Ii 00 0 0 U'l " 11 II II II 00 0 1010 m 10 Ii II I II 11 i 10 '0 I I II 1110 1I11 \ 0 U'l i , 1\ II II 1\ 00 0 II \01\ I II II 11 iO 00 0 1010 I' II 11 14 II II \ 0 Ull 1\ 41 II " Ii II I Ii lUll I 1\ 10 II \114 4 101\0 l' 14 11 II Ii 00 0 0 Ull II 44 II II 40 II II II 111.!f 11 ill ill II! Illl!! ! 10,,!1 ll' t 11 II 110' 1 0 X~f l~ III III II !tIll 1 .u .ll.11 ..t ...l 11I1" fIl Ilh 111 1Ih I ,., '~ 11 II 10 lIOI'1 10 110 1\ Ii' 'r "~' " 10 10 l' 1/1 1\ 1\ II '1 10 \ . OUll I I 11 II 11 Ii 00 0 10 /1 1\ II II 10 \1 0/ I 10 i I III PI II II II Ii 01 4 I OUll 4 I 11 " II lIOO 0 10 II 1\ 10" l ilO' 10 10 \1 \ I 1\ II 11 II 00 0 10 OUll I I I' II 1\ 1\00 0 10 4 0 4 \1 1\ II II 'i 01 II 10 II \ I 11 Ii 11 Il 0\ , II OU'1 IC II II 14 \111 11 101\ I " 1\ 11 11 0110 10 Ii 4 I II II II II 01 \ Ii IOU" 11 40 II II 1110 II 10 1\ 1 IPI 111\ 11 110\ I 10 41 I \1 II 10 II II 000 II "m III IUlll !1 !! !! II 11 it 1 1m" 1\ "1ll '1 OliO '0 ,,11 .1 151 H 11 II "111 .! L ~ II I .11 J_ It ..J 1II10lh IIIl1lh lIB 11" I i 100 II 11 11 I 1114 1\ 10 10 I 51 'II II II II II II 10 Ii 11 II 11 II II II I 410 110 II II 10 0 \114 1\ 10 i I 1\1 IC II 11 1111 I 10 11 II 1\ II 10 111110 110 110 II II , ,I II 1\ I 10 i I \1 11 II II 1100 0 10 10 I 1\ 14 II II II 10 10 1110 II IC II -I \101 . 10 i 0 10 \1 Ii II II '101 I 10 II I 1\1 II II 1\ n 1\ \ 11 '110 II II IC 0 4\ II \ 10 II I \1 10 II II '101 I 10 11 10 II 10 14 1001' II 1110 II II 1\ 0 11 01 \ 10 II I 1\1 11 /I II II 01 10 10 II / 11 II n II 1111 II 11 Il1 II III il I III II 1 111 II I \1 11 ill il! l! l~ II 111 I I 1f, dl ill II 00 I I III IlIh 111141h 11I1\" IIC \ I Il' 10 10100011 I I Ull llJT"" "[" OUIl 1\ II II 10 IlI1 1 410 \ I III 10 10 10 00 II' I 4\ 1\ 111\ II .4 10 II OUIl 10 10 10 I 1100 0 110 \ 1 III II 11 10 Ii II \ 10 \1 11 II 1\ II H I' II 4 Ull I 10 , I 1111 \ 1010 \ I II II 1I 10'111 \ I Ull 1\ II II IC " II I' 1110 I " Ii 1 II 00 0 1110 I I I' II II II 1100 0 0 Ull 1\ II 1\ II 11 111\ 1100 I , II I' 1\ illl I II i 1\ 10 41 II I' II II 10 0 Ull II 11 11 11 II 1111 IU.l \ , II II II illO I II 1 U!~ II U lfd:il!illll 1 I X~f ill il 111 I: ill l~ 1 II X~! .1 d! ill ill III II I ! fIl "" fIl 11" 1I1111h I 14\ II II II II 1110 II o Ull 'UJll" " '1 '11' o UIH I I II II 10 Ii 00 0 4 lUll II II II II 1110 1\ o U'I 1\ a Ii IC '1 00 0 lUll I I I Ii Ii II Ii 00 0 1 lUll II II 11 \I 1111 10 I u., 10 111\ II \h 00 0 IU'1 I II 11 II II 0000 0 10 OU'1 1\ 11 11 II \010 " I U'l 1 11 Ii II H 11 4 lUll I II 11 11 n " 00 0 II OUII 1\ .1 II 14 nIl II lUll 10 n II /I \1 1) 10 OUll 4 , 41 II II II 00 0 Ii I Ull 1\ H 1\ 10 lI11 II 1100 10 " II II IJ II I o U'l 10 II 40 n 41" I II 01.!f 1\ II II ill III ~~ ~ 11m II II JO dll!l :l ~ 01 X~f I !l H ill !1 !~ ~ 1 1\ MAXIMUM SHOll! DURAr ION PI!ECIPI rAr ION lIME PERIOD 1"INUfESI ~ 10 I~ 20 3D 4~ hO 80 100 120 I~O 180 ------- PRECIPitAtiON IINCNESI 0.01 o Ob 0.01 OO~ o II o Iq Oll 0.14 o Ib 0.11 0,18 0.11 , _._- ENDED: OAfE 14 14 14 14 )4 14 )4 14 14 14 II 11 -^ ---- ---- -_._~. -- -- ENOCO' lIME om om om 011j. l!!1L .!lJ.t.:t .Q!l1 ~J]!' .Q111 0111 Ob41 Ob~O IH[ PlllIPIIIIIO. 1.0UiI\ fOR IH[ IHO!CIIIO "'1 I""RYlll ." OCCUR II III 11'1 OUAIlG I", 'ONlH IHI "'1 l'O!cIIID 1\ IH[ ('OI.G 1m Of !HI IH!CRll! 0111 m ""I III '01 l'IlA[O '01 1IIII 1.0u'll ~ ,ml r- c ( . o o ". - OBSERVATIONS AT 3 ~OUR INTERVALS f111114 11111 , , 'Hii; ;i""u "",,";';, ill ;it IIftPllllUII 1111 lill ;it IWIRIIU!! iIlD 1U'i ;it IIIPIRIIUII ~I~ E ~ -- ~ . ~~ . " .. . . ~ ~ . ~ ~ 111I'11 ~ ~ 1111'11 ~ IIII'IA . .- ;; " ~ .. ~ p . " - ~i ~ ; ; . -- ~ p 1; . . 'P ~ . ; jje ;; ;; - :e ;; ;; i - -. . . i ii .. E - -- .. .. . .. -- ~ ~ . ~1: ~ . .. ::; .. ..- . .. - I:: gl i ~ - r:1 . ; " " - ~ gi i - " ; - & ~E . . ~ - :t . - i:; - .. . . - " i:; . . . - - eo Hlllth f11IDlh HI1ht I DUll \ r 1\ 1\ II II 00 0 DUll I I' II II II liDO D 10 ID I , ]I ]I II II 00 0 I DUll \ r 21 II 20 liDO 0 OUil I f' II 1I 10 lIOO 0 ID 1\ I I II II II II 00 11 I 1 I UI' l r 21 II 21 0000 0 10 0 0 f II II /I 0014 I 10 I 0 I AI II II II 0000 0 10 1100 r II II 21 1214 4 10 0 0 f ]I II ]I 00 00 0 10 II 0 II AI 41 42 42 00 II I 1110 100 I , n 1I 10 1114 \ '200 I , 42 44 10 JIll Il 10 4 0 4 Af 42 42 42 001\ \ II IUil I \1 II II 411\ 11 10200 1\ \1 n II II II I 10 4 0 1 r 44 44 44 00 1I I " l ~:f I r, :1 II II III 11 ~ 10 III I III III III !1 !! ! 11 ,1 0 1 r :l 1:1 H il1 II 1 J~ HI Und III Il,d lIB l4Ih 110 1\ 1\ 10 ]I II 'I II 10 "~ 1\ 1I I' 20 \10' \ 10 I 1 111I 1I II II 0000 0 I I II 1\ 40 II II 10 II Il 10 I 0 1\1 10 10 10 000' Il 10 I 1 I III II II 1I 0000 0 1 IUI' II II II 11 10 II I 10 1 0 I If 10 10 10 0010 II 10 , I /AI 1I 12 1I lIOO 0 10 OUI' 1\ ]I II 14 \\ II II 10 II I lAIP! II II II lIlI Il 10 I 2 51 II II II .1 aD 0 II lUll 1\ II II 1\ II II , 10 1\ I I 1I II 1I ilIa II , 4\ 12 1I II II 10 II I 11 lUll 1\ II II 21 n 01 \ 10 I I If II II II '10. 10 I 1\ 1\ ]I II /I \1 /I II 1110 m 11 l~ III IH Ii! !! ! 10 I I ~r III ill ,n U II III ' ~l il H III II \4 1'10 -ll HI 1\lh lIB Illh lIB III h , , .. "lJ " ,,,,,,,,, "'U "" "]m' ''''I f 1\ II I \11I11 I I 10 1\ II Il 1\ 11 21 20 I II I 51 1\ 2\ 14 1111 I o UIl II II , ,I \lll20 J I 40 1\ 14 11 II II I' \I 110 10 111\ 20 1110 \I o Uil 1\ I I ,4 \lllll 10 I un 1\ 10 II 11 \110 10 J 10 10 1\ 11 II \112 10 o Uil 1\ 1\ II .1 411111 II OUi' 1\ 1\ 11 11 1I11 10 lUMl 10 II II II \ll2 10 o Uil 1\ 21 II I 421111 11 10 100 1\ II 10 1\ 1I 00 0 2Uil 10 I' 14 10 1\ II 10 OUil 1\ 2\ 10 \ 421111 Il IIil11 Il jll!! III 11 11_ J J.mjll 1ll! 1 \J Ill! c.m 1\ il~ 11 l \DII! !1 -' 'I } HI Illh 1 DUll 1\ \I Il 0 4\ II 10 I DUll 1\ 1\ II .1 41ll I I DUll 1\ II , .1 \11I ID 10 \UIl 1\ 20 11 I 4\ /I ID II 2UIl 1\ 2\ ID I 1111 ID II '110 1\ 21 21 \ 1I11 I 11 10 11 Il II 11 1 H 1: 1 1Ul1 WEATHER CODES SUMMARY BY 1I0URS !VI AlGI \ RUUlUN' 111110 ~ IIHPIAIIUAI . . ;, ~ .. ~ ~ . . ~ ~ p ~ . ~ . - II .. ~ ~ . ~ .. ~~ "' Ii: .. .. . =~ . .. " ~ ~ . ~; . . , . . ~ . ,. .. . "i " -n ..,., TI 04 L q 81 11 lq 81 J 1 II 1,\ 01 L ii.af;. 10 lq 81 1.2 31 1.\ 10 L q88 1\ 11 1) 8.\ II 14 II L 1,84 II lq \0 11.111 \.8 1\ L q81 1\ 10 \\ 111 II Iq Iq \ ''184 }q 1\ JI 81 3D 1 1 II- .I.- 1.8 1'L_n li . TORNADO SW SNOW SllQW[RS T TH\JHOERSTORM SG SNOW GRAINS Q SQUAll SP SNOW PHn1s R RAIN Ie IC( CR'fSTAlS RN RAIN SHOWERS IP IC( Jl[lUTS lR fR[EZING RAIN !PIol IC( JlHLCT SllOWlRS L DRIZZlE A IIAIL lL rAE(lING DRIZZl[ r rOG S SNOW Ir ICl rOG CEILING: UNl ItlOICA1[S lJt~L1"II[O WTfrCO DIR[CTION: DIRCCTlONS Allf TIlosr rno" WIIIClI 11l[ WINO mows. ItlOICATtD IN T(NS or DEGREES FROM lRU[ NORHt: 1 t . 0') ran LAS!' 18 rOil ~OU"1 27 rOR WES1. AN [NTRy or 00 INDICA1[S CALM SPEED: THE OnS[RVeO AV[RAGr ON[-I1INUt[ vALur. l..):P II[SSl\) HI ~N01S II'tPU....(NQTS X ,. 1'i I Gr GROUND raG DO BLONING OUSI DN DLONING SAND 05 BLOWING SNOW BY BLOWING SPRA'f Ii. 511011.[ II IlAl[ o OUST PI" I . ~ ""0 l'Ie\o\E\J\\..\..E l-\. C. "ElEl 0"''2.9/9'\ Pl'I 11110111 llllllll 0111 llRll1 flOIII\ IUIIOII' II III III 'All All ASHIIIIII. 101lH 11101111 11101'1111 ~. "tIRSl ClASS POSlAG[ AND r[[S PAlO NOAA P[RMll G'lq Offlllll IUSIIIII '111111 fOI 'IIIAII UIl 1100 ., .......... WH'.lmnmnP' ~111I""'1l1 HOURLY PRECIPIIAIION IWAIER EOUIVALEtn IN INCHESI III Illl 14111 1100ll10.IIHIIIISIUIG 111l IPI . USCD"" . 1I0AA ~ A5Hr,jll"i-' Me '" :: A,H. HOUR ENOING AI P.H, HOUR"E'IlDlllG AI ~ ~ 1 2 3 4 5 6 1 I 8 q 10 11 12 1 2 3 4 5 6 1 8 q 10 11 12 ~ 01 I 0,&2 III 01 01 01 01 1 I 01 04 04 0\ 0\ 0\ 0\ 01 01 01 0,04 0,0' U 04 0,0' 1 004 o OJ 001 001 0.01 0,01 0.0\ 002 0,01 0.01 0,10 01 0' 0,01 0,04 0.02 0,01 I 0.01 00. o 01 001 00' I I , 0' 10 , 10 11 0,01 O.OS 0,10 001 0.0\ 0,01 0,01 0.01 0,02 001 004 00\ o 04 o 01 o O. 004 001 00' 0.01 I , , 11 12 I I I 1 I 1 1 , 0.01 .2 Il , 1 I I I I , 1 II 14 14 1\ .\ 11 11 11 " 11 11 Il I' 20 20 21 1 1 0.01 0,01 o 01 00\ o 11 o OS o OJ 004 o 01 o 0\ I 2' 22 22 II , 0.01 0,1\ 001 o 01 o OS 0.01 n 04 o 01 001 o 0\ o OJ I 001 , 1 0,01 I 1 1 1 , II 14 . I , , 001 0,01 o 12 o 04 0.01 0,01 o 01 14 2\ , 2\ II 1 I 002 1 II II II II 21 - . ----- -~ ---- ..~-- ---.- -- o (i ( \ . WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-6585 Civil Term :-, .;, -oJ v. I "1"1') r--- , "1 (-j , I, .,t) . 'I I:: . () .)111 ! r~ EXEL LOGISTICS, INC. Defendant JURY TRIAL DEMANDED i" r. i") (';4" , ' '.'1 __. .. DEFENDANT'S MOTION IN LIMINE TO PRECLUDE INTRODUCTION OF SNOW REMOVAL RECORD DATED FEBRUARY 15, 'I994':! Defendant anticipates that plaintiffs will attempt to introduce into evidence a record of snow plowing at the Exel Logistics' parking lot which was completed following plaintiff's accident. Set forth more fully below, such evidence is inadmissible as a subsequent remedial repair. The Pennsylvania Supreme Court, in the cases Incollinao v. Ewinq, 282 A.2d 206, 444 Pa. 263 (1971) and Pressler v. city of pittsburqh, 214 A.2d 616, 419 Pa, 440 (1965), established that evidence of subsequent remedial repairs is inadmissible for purposes of proving negligence against the defendant. More recent cases have continued to apply this rule with facts similar to those involved in this case. The superior Court recently held that a trial court abuses its discretion when it admits evidence of subsequent remedial measures to demonstrate prior negligence. In Armstrona v, Paoli Memorial Hosoital, 633 A.2d 605, 430 Pa. Super. 36, aooeal denied, 649 A.2d 666, 538 Pa. 663 (1993), the court considered , ) " CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date the foregoing document was served by first class mail, postage prepaid, upon the following: William A. Addams, Esquire 28 South pitt Street P. O. Box 208 Carlisle, PA 17013 01 Dated: 1/21/n Attorneys for Defendant Exel Logistics, Inc. WILLIMI J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-~,?S CIVIL TERM EXEL LOGISTICS, INC., Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, come the plaintiffs, William J. and Irene Ricchiuti, by their attorneys, Fowler, Addams, Shughart & Rundle, and make the following complaint: 1. The plaintiffs are William J. Ricchiuti and Irene Ricchiuti, adult individuals residing at 328 Arlington street, Reading, PA 19611. 2. The defendant is Exel Logistics, Inc., a corporation with its offices and principal place of business at 5023 Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania. 3. 'On February 14, 1994, the plaintiff, William J. Ricchiuti was employed as a truck driver by John S. Ewell, Inc. 4. At about 6:00 a.m. on said date Mr. Ricchiuti was assigned to drop an empty trailer and to pick up a loaded trailer at the defendant's warehouse on Doughten Road, New Kingstown, cumberland county, PA. 5. More than eight inches of snow had fallen on February 11, 1994, and at the time the plaintiff arrived at the defendant's warehouse, the parking lot was covered with snow and ice which had not been cleared and which was extremely rough from traffic. 6. The plaintitt backed his trailer into the only available space. As he was unhooking the trailer he slipped and tell on the rough ice resulting in the injuries hereinafter set forth. 7. The plaintitt's accident and resulting injuries were caused by the negligence and carelessness ot the detendant in: C. Failing to clear the parking lot ot snow and ice. Allowing the snow to thaw and retreeze and develop into a condition of hills and ridges; and Failing to provide an area for the plaintitt to park that was free of snow and ice. A. B. COUNT I WILLIAM J. RICCHIUTI v. EXEL LOGISTICS. INC. 8. As a result of the negligence and carelessness of the detendant, plaintiff william J. Ricchiuti sustained a severe contueion with lateral epicondylitis of the right elbow and an injury to his right ankle. 9. As a result of his injury the plaintiff incurred medical expense ot $3,831.16. 10. As a result of his injury, the plaintiff was unable to return to work until July 30, 1994 resulting in loss of earnings ot $19,993.92. 11. As a result of his injury, the plaintiff has a limitation at motion in his right elbow which may be permanent and which will result in a loss of future earning capacity. 12. The plaintiff has undergone extreme pain and sUffering and will be forced to underqo same in the future. VERIFICATION William J. Ricchiuti hereby verifies that the facts set forth in the foregoing complaint are true and correct to the be.t of hi. knowledge, information and belief, and understands that fal.e .tatements herein are mads subject to the penalties of 18 Pa. C.S. 14904 relating to unsworn falsifications. DATE: /lIl{/. 1'7. / t'h- -t ~5-,2'- -~ ~~ -d ()--t"- IJ") n_ l}- I"') ;.~ ~ <:r1 "j: ~ 0- ., , 0 ..... ::<:: ..1, ',., 0 <'? "'- ~ ~. :,,:~ (" l" ..... ::~~, ,-:,:~ 8 ..... . t.; t.,.; ~ If 01- . VI I:'~" _~ '~; lu. . , ~ ~ c:I. ' ''', J'? I' 1'_ r- U. ,: ~. n. '" t. ;.) t>J.. :>- '.Lor..) ~ '" WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANXA v. NO. 95-6585 CIVIL TERM EXEL LOGISTICS I INC., Defendant : JURY TRIAL DEMANDED REPLY AND NOW, come the plaintiffs, william J. and Irene Ricchiuti, by their attorneys, Fowler, Addams, Shughart' Rundle, and make the following reply to the defendant's answer with new matter: 19. The conclusion of law is denied. Denied in accordance with Pa. R.C.P. 1029(e). Denied in accordance with Pa. R.C.P. 1029(e). The conclusion of law is denied. The conclusion of law is denied. Denied in accordance with Pa. R.C.P. 1029(e). 15. 16. 17. 18. 20. WHEREFORE, the plaintiffs request that the new matter be dismissed. FOWLER, ADDAMS, SHUGHART , RUNDLE BY~~ . am A. Addams supreme court 1.0. No.06265 28 south Pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for plaintiffs ~ l<< ~~ jl . ., ., . M~Nr::ES. WALLACt! 0. NURICK \00 IIINIt &TAEET ... a. .01 ".. " . fIA""IBlSuno. PA 17108 averments of Paragraph 5 of the Complaint, and the same are therefore denied. 6. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6 of the Complaint, and the same are therefore denied. 7. Denied. Pursuant to Pa. R. civ. P. 1029(e), all allegations of negligence not admitted are hereby denied. COUNT I B. Denied. Pursuant to Pa. R. civ. P. 1029(e), all allegations of negligence not admitted are hereby denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of Paragraph B of the Complaint, and the same are therefore denied. 9.- 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 9 through 12 of the Complaint, and the same are therefore denied. WHEREFORE, Defendant Exel Logistics, Inc. requests that this Court dismiss Plaintiffs' complaint with prejudice, and award it costs of suit. - 2 - COUNT II 13. Defendant incorporates Paragraphs 1-12 of its Answer as if set forth fully. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6 of the Complaint, and the same are therefore denied. WHEREFORE, Defendant Exel Logistics, Inc. requests that this Court dismiss Plaintiffs' Complaint with prejudice, and award it costs of suit. NEW MATTIR 15. The premises were in a reasonably safe condition at the time of the alleged fall. 16. In the alternative, if it is determined that there was snow and ice on the parking lot at the premises, Defendant avers that this condition was open and obvious and should have been discovered by Plaintiff prior to the alleged fall. 17. In the event it is determined that the Plaintiff suffered any of the injuries or damages complained of in the complaint, which is denied, then Defendant avers that said damages were the direct and proximate result of the negligence, carelessness, or recklessness of Plaintiff as follows: - 3 - (a) Failing to maintain a proper lookout for his own safety; Failing to pay proper attention; and, Failing to properly observe the area where he was (b) (c) walking. lB. In the event it is determined that the area where plaintiff allegedly fell was slippery, which is specifically denied, then Plaintiff was negligent, in that he failed to properly observe the conditions and avoid walking in that area. 19. The negligence of the plaintiff was the sole and proximate cause of any of his alleged injuries, said injuries being denied, and his negligence exceeded any negligence on the part of the Defendant, any negligence by Defendant being specifically denied. In the alternative, if it is determined that plaintiff was negligent, but that his negligence did not exceed that of the Defendant, the same being specifically denied, then any award of damages must be reduced by the proportionate share of plaintiff's comparative negligence. 20. In the event it is determined that the area of the sidewalk where Plaintiff allegedly fell was slippery, which is specifically denied, Defendants aver that said condition was open and obvious, and that plaintiff assumed the risk of any injuries by knowingly encountering and failing to avoid such condition. - 4 - . . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date the foregoing document was served by first class mail, postage prepaid, upon the following: William A. Addams, Esquire 2B South Pitt Street P.O. Box 20B Carlisle, PA 170Q 'itl~ A ", C. 01 Ii. ~ Of Counsel to Defendant Exel Logistics, Inc. December 15, 1995 .~ . :,t "'.>'-.,' . ......, " \,- '-,LC.__' '1" ,,';:;y.! L':':" t' ~ \ -":i} ".:c';.' ".-,--. ; f-<.~/ . " "'A~~'HUOIlA.'f" ."I'f..lIl1';"."" ~~5~f~~~11it~i~~:lIiY1IT:&AW-~~;-;-~-\;~~-i:(~:;fJ{;~1~';~#il;_t~~ "" ,ji.(~~~~~~t~ ~,,, ~)f,~'!ti~;;:i::":?,:.:;,;;:);F;'i;"';;'" ,\ 'J'" ".' , '<<!;'WfL~!!:;f;{.M, " , . WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-65B5 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED PLAINTIFFS' PRETRIAL MEMORANDUM 1. FACTS: At about 6:00 a.m. on February 14, 1994, William Ricchiuti delivered a trailer to the Defendant's warehouse in New Kingstown. More than eight inches of snow had fallen three days before. The parking lot was covered with snow and ice which had not been cleared and which was rough from traffic. It was dark. There was a light coat of new snow. As Mr. Ricchiuti turned to unhook the fifth wheel, he slipped on a ridge of ice and landed on his right elbow. 2. DAMAGES: The plaintiff sustained a severe contusion with lateral epicondylitis of the right elbow and an injury to his right ankle. The worker's compensation carrier paid $3,B31.16 for medical expense and $35,BOO.37 for disability. He is still precluded from heavy work. His average weekly wage was $BOB.OB. His present earning capacity is $745.0B. 3. ISSUES: Liability and damages. 4. EVIDENCE: No problems are anticipated. 5. WITNESSES: William Ricchiuti Irene Ricchiuti . ' ., ..r-#-, Ted Schaffer, President of J. S. Ewell- It;;,.cf(':,' , William Lerch - Manager, Exel -- Kenneth J. Novacick, Jr. - Supervisor, Exel-- Gerald W. Rothacker, Jr., M. D., u I' 1 -' ~r1.,\ \ \ by deposition. l/ r ().( v- WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-65B5 CIVIL TERM EXEL LOGISTICS, INC., Defendant JURY TRIAL DEMANDED PLAINTIFFS' PRETRIAL MEMORANDUM 1. FACTS: At about 6:00 a.m. on February 14, 1994, William Ricchiuti delivered a trailer to the Defendant's warehouse in New Kingstown. More than eight inches of snow had fallen three days before. The parking lot was covered with snow and ice which had not been cleared and which was rough from trnffic. It was dark. There was a light coat of new snow. As Mr. Ricchiuti turned to unhook the fifth wheel, he slipped on a ridge of ice and landed on his right elbow. 2. DAMAGES: The plaintiff sustained a severe contusion with lateral epicondylitis of the right elbow and an injury to his right ankle. The worker's compensation carrier paid $3,B31.16 for medical expense and $35,BOO.37 for disability. He is still precluded from heavy work. His average weekly wage was $BOB.OB. His present earning capacity is $745.0B. 3. ISSUES: Liability and damages. 4. EVIDENCE: No problems are anticipated. The defendant will stipulate to the medical expense in the amount of $3,B31.16. 5. WITNESSES: William Ricchiuti Irene Ricchiuti Ted Schaffer, President of J.S. Ewell William Lerch - Manager, Exel Kenneth J. Novacick, Jr. - Supervisor, Exel Gerald W. Rothacker, Jr., M.D., by deposition. 6. EXHIBITS: Weather summary Defendant's snow removal sheet Findley Construction invoices for snow removal Statement of average weekly wage of $BOB.OB Statement of medical expense and wage loss. 7. SETTLEMENT NEGOTIATIONS: The demand is $45,000. The defendant has offered $10,000. Respectfully submitted, FOWLER, ADDAMS, SHUGHART & RUNDLE ~~ By' . 1 a A. A ams Supreme Court I.D. No. 06265 2B South Pitt Street P.O. Box 20B Carlisle, PA 17013 (717) 249-B300 Attorneys for Plaintiffs Date: January 2, 1997 ~;"- McNEES, WALL^CE l1c NURICI< tOO "INI!: IITnEET OCT 2 2 19!JW IJ. ... D, .01 II.. . ,. HA""I..URO. PA 1710B > WILLIAM J. RICCHIUTI and IRENE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-65B5 Civil Term v. EXEL LOGISTICS, INC. Defendants JURY TRIAL DEMANDED D.rIHDAHT'S PR.TRIAL IIDIORANDUN 1. FACTS AS TO LIABILITY. The accident occurred on February 14, 1994. At that time, Plaintiff was operating a tractor-trailer on the premises of Defendant. While attempting to drop off this trailer and disconnect it from the tractor, Plaintiff slipped on ice and snow and fell. The community where the accident occurred had received heavy snow fall on a regular basis for weeks prior to the date of the accident. Ice and snow had accumulated throughout the community over that several week period. On approximately February 11, 1994, another snow fall of more than eight inches fell in the community and at the facility of Defendants. This snow fall was plowed on February 12, 1994. No further snow fell between that date and the date of the accident and, while snow and ice did exist in the parking area where the accident occurred, there were no ridges or hills which obstructed either automobile traffic or foot traffic. Plaintiff was aware of the general slippery conditions but nonetheless slipped. ~ ~ ':'" 2 . DAMAGES. aAA Pre-trial Memorandum of Plaintiffs. As set forth in the plaintiff's pretrial Memorandum all the medical expenses and wage losses have been covered by insurance. Such expenses therefore are not recoverable in this action. '.: '"'. ~. " <, PRINCIPAL ISSUES OF LIABILITY AND DAMAGES. Defendant contests liability. General slippery conditions were in effect at the time of the accident and there were no 3. hills or ridges on the premises where the accident occurred. Under Pennsylvania law, a landowner is not liable for a slip and fall under such circumstances. ~ Fredrick v. Katsifis, 44 cumberland 466 (1995), a copy of which is attached hereto as Exhibit nAn. As to damages, Plaintiff cannot present evidence or seek recovery for medical expenses or wage loss, as those items have been covered by his workers' compensation carrier. See 75 Pa. C.S.A. Section 1722; postorino v. Schrooe, 736, F. Supp. 639 (E.D. Pa. 1990). 4 . SUMMARY OF LEGAL ISSUES. other than the matters raised under Item 3, none are anticipated. 5. IDENTITY OF WITNESSES TO BE CALLED. 1. William Ricchiuti 2. William Lerch, manager from Exel Logistics, Inc. - 2 - McNEES, WALLACE & NURICK ....TTORNEYS ....T L....W 100 PINE STREET P.o. BOX IIBO HARRISSURG. PA 17108,118" TUIPHON111111232-8ooo FAX 17171237.15300 '200 G STREET N.W. SUITE 800 WASHINGTON. D.C. 2000"' TU..HONlIZOZI434,8&&\ r..IZOZI434,8707 http://WWW.mwn.com MICIIABL R. KBLLBY DI.acT DU~&.I (1111 007.aOQQ &MAn. ADD....l "..loLa...eMW".cOM December 24, 1996 The Honorable Harold E. Sheely cumberland county Courthouse 1 Courthouse square Carlisle, PA 17013 Re: Ricchiuti v. Exel Logistics, Inc. C.P. cumberland County No. 95-65B5 Civil Term Dear Judge Sheely: The above-referenced case is scheduled for a pretrial conference on January 2, 1997. As you may recall, this case was continued from the previous trial term. We already had a pretrial conference in this case prior to the last trial term. I am scheduled to be on vacation from December 25, 1996 through January 6, 1997. It does not appear that another pretrial conference is necessary. I have spoken with plaintiff's counsel, Bill Addams, and he agrees. Accordingly, unless Your Honor insists on having the pretrial conference, we request that it be cancelled or rescheduled to a date following January 6, 1997. Thank you for your consideration. Sincerely, ::.EEM::riJ .t~CKJL Michael R. Kelley~ MRK/mrs cc: William A. Addams, Esquire nEe 3 0 19'11' ,,' . , 5 WILLIAN J. aICCHIUTI and I IN mli COURT OF CONNON PLDS OF IRJ:HJ: aICCBIUTI, I CUNBJ:RLAND COUN'l'Y, PJ:NNSYLVANIA plaintiff8 I I CIVIL ACTION - LAW V. I I 95-6585 CIVIL TliRH U:liL LOGISTICS, INC., I Def8ndant I JURY 'l'RIAL DJlllANDJ:D IN aliI paB'l'RIAL CONPliallNCIi At a pretrial conference held Wedne.day, October 23, 1996, before the Honorable Harold Ii. Sheely, pre.ident Judge, pre.ent for the plaintiff wa. William A. Add..., Ii.quire. a.pre.enting the Defendant wa. Michael a. Kelley, Ii.quire. 'l'hi. i. a jury trial which .hould take two day. at lIIO.t, probably a day and a half. plaintiff wa. a truck driver employed by J.S. Ilwel1 Trucking COIIpany, and on February 14th, 199., wa. driving a tractor trailer to the prami.e. of the Defendant in New lCing.town. A lot of .now had fallen in day. before February 1.th, and there,_y have been .ome new .now on that date. A. the Defendant wa. in the proce.. of di.connecting the tractor from the trailer, he .lipped on ice and .now and fell. 'l'he Plaintiff indicate. that a. a re.ult of the fall the workman'. COllp carrier paid $3,831.16 for medical expen.e., and $35,800.73 for lo.t wage. and po..ibly .ome for future lo.t wage.. Plaintiff claim. that hi. weekly wage prior to the accident wa. $808.08, and that after the accident hi. ~ ~ 95-1585 CIVIL ~RM wag.. .r. only '7.5.08 p.r w..k. I would ..k th.t ..ch coun..l provide to .. . propo..d charg. to the jury on the hill. and ridg.. doctrin., and on. or two r.c.nt c.... on th.t i..u.. I would al.o ..k " that coun..l provide to .. r.c.nt c.... .. to wh.th.r or not plaintiff can r.cov.r ..dic.l and wag. 10.... that have b..n paid for by hi. company'. workm.n'. comp.n..tion carri.r, and .1.0 wh.th.r und.r the f.ct. of thi. ca.. Pl.intiff can mak. a cl.ta for future lo.t ..rning c.p.city without the t..timony of an exp.rt. I would a.k that coun..l bri.f tho.. i..u.. and give them to .. on or b.for. Tu..day, Novemb.r 5, 1991, .0 that I ..y have an id.. a. to how I will b. d.ciding th... i..u... I would .1.0 a.k coun..l bri.f for .. wh.th.r or not Mr. Ricchiuti would b. d....d to b. . bu.in... vi.itor, and if .0, what the liability i. of . prop.rty own.r for a bu.in... vi.itor on the prop.rty. Both p.rti.. plan to introduc. w..th.r .ummari.., and I would ..k that th.y ..ch taka . look .t wh.t the oth.r p.rty propo... to introduc., and if th.r.'. any obj.ction th.r.to l.t .. know of th.t .1.0 by Novemb.r 5th, 1991, and I will g.t coun..l in and w.'ll t.k. . look .t wh.t the obj.ction i. about. ~ 'y 95-1515 CIVIL ~RM . , ~ of the pretrial conference there ... no .tipulation a. to the weekly ..ge. of the plaintiff, an4, therefore, unle.. they agree to thi., the Plaintiff .hou14 have .o.&ooe here froa hi. .-ployer to te.tify a. to tho.e .-aunt.. Plaintiff. 4eaan4 a. of now i. $150,000.00, &D4 the nefen4aDt ha. offera4 $10,000.00. Plaintiff i. .till .-ploye4 by ....11 Trucking COIIpany, al though 1Ir. A4d-.- iD4icate4 that he ia no longer able to 40 heavy lifting involve4, an4 that'. the rea.on for the re4uce4 ..ekly .alary. By the Court, ,,-, r:~ t (' t ._, I r~ 1.:" t' r:: " ..,." .. .,' (!-+1'-" -, \."1L _ "'0 ;... ~.;:i ,.,.- ." "'" - . ' ~:. ( . - .- , (fc ~, (.: ,'... MUll. A.' Md-.-, .~, ~ Plaintiff .- r ,~ " - Sheel ..quire Michael a. Kelley, ..quire .or the Defan4aDt _1 r C\,I ~ '" -, .. 9 M ,,~., ':.J I - ;".J~ s: 9~ ..:J" ,<s~ N t- ~Ti ' LJ ~ Cl ~ \.0 O, .~- . ..,.) .' WILLIAM J. RICCHIUTI and IRBNE RICCHIUTI, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 95-65B5 Civil Term v. EXBL LOGISTICS, INC. , Defendant JURY TRIAL DEMANDED DEFBNDANT'S MOTION IN LIMINE TO PRECLUDE INTRODUCTION OF SNOW REMOVAL RECORD DATED FEBRUARY 15. 1994 Detendant anticipates that Plaintiffs will attempt to introduce into evidence a record of snow plowing at the Exel Logi.tic.' parking lot which was completed following Plaintiff's accid.nt. Set forth more fully below, such evidence is inadmi..ible a. a subsequent remedial repair. The Pennsylvania Supreme Court, in the cases Incollinqo v. .wina, ~8a A.~d a06, 444 Pa. 263 (1971) and Pressler v. City of Pittaburah, ~14 A.2d 616, 419 Pa. 440 (1965), established that evidence of subsequent remedial repairs is inadmissible for purpo.e. of proving negligence against the defendant. More recent cases have continued to apply this rule with facts similar to thOle involved in this case. The Superior Court recently held that a trial court abuses its dilcretion when it admits evidence of subsequent remedial mealure. to demonstrate prior negligence. In Armstronq v. Paoli Memorial Hospital, 633 A.2d 605, 430 Pa. Super. 36, acceal denied, 649 A.2d 666, 53B Pa. 663 (1993), the court considered ~ whether a subsequent change to a hospital policy was admissible to show that the hospital failed in its obligation to plaintiff prior to the change in policy. The court held: When a trial court allows evidence of subsequent remedial measures to be introduced to demonstrate prior negligence, as it did here, it abuses its discretion. 633 A.2d at 607-0B. subsequent remedial measures can be admissible to show feasibility where a party claims that a repair was not feasible, to show control, or to impeach relevant testimony. Leahart v. Montour Railroad Co., 150 A.2d B36, 395 Pa. 469 (1959). None of those factors are relevant in this case. The feasibility of plowing the parking lot is not at issue. Obviously, it could be plowed. There is no dispute about Exel Logistics' control over the parking lot. Finally, Exel Logistics' expected testimony is that the parking lot was plowed and that no dangerous hills or ridges existed on the parking lot at the time of Plaintiff's accident. The plowing invoice does not contradict this statement, as the invoice refers to removal of snow and ice from the dock areas in the parking lot, which were not involved in Plaintiff'L accident. - 2 - " por the rea.one eet forth above, the snow removal invoice of Pebruary 15, 1994 ie inadmissible and should not be presented as evidenoe in thi. oase. McNEES, w~~ & NURICK By M.,LY ~. ~ c ael R. Kelley Attorney I.D. No. 5BB54 100 Pine Street P. O. Box 1166 Harrisburg, PA 1710B-1166 (717) 232-BOOO Attorneys for Defendant Exel Logistics, Inc. Dated I '\1" In - 3 - " ~ ,... ""-.... e.: ~. .. ~j UJ~I - ... , ' '. ff .'.--" L' 0.: ~-) :~ ~i:, r j;:5 (' . ~'l;; (, r:l Ii' ['j tl.,:: !:C" ':1~6 f, ~ ,i.,- ", ,...- 1 U f;~ :~-) '. , . - 0" CmlnFlCATE OF SmlVICE I hereby certify that on this date I have served a true and correct copy of the foregoinl Praecipe by fint-class mail, postage prepaid, upon the followinl counsel of record: Attornev for Plaintiff: William A. Addams, Esquire 28 South Pitt Street P.O. Box 208 Carlisle, P A 17013 ., Dated: February~. 1997 /YJ..).JJ (? ~ Michael R. Kelley Attorney for Defendant Exel Lopstics, Inc. :>- :>" ,.. .-. 0;; In ~ B. == 8~ 1~:. ~ Q~ -, '. N :) . - ttJ -tti f5 :.::1m F &0. ::s \5 ~ 0 ('... t ,.-\ \" r\ ~ ~ ~ ~1 ~ P1~~ ~ ~~\ d\~ ~ r ~ ~ \l) .... lr. f-;: .. :'1;) r - i.') ~ ..~ :It: . ) ..: ".~ '"0 c;:::; G N ~'~{1 [f :.. ~~m LLl m ~ ...., 10- .~ ~ r- B 0'1 . . . ..