Jon Campisi Sep. 21, 2012, 6:28am

A federal judge has allowed a personal injury case against the owners of a Philadelphia

corner store to proceed, simultaneously denying the defendants’ motion for summary judgment in the matter and ordering an arbitration hearing to proceed as scheduled.

U.S. District Judge Berle M. Schiller, of the Eastern District of Pennsylvania, denied in a Sept. 19 order a motion for summary judgment that had been filed by Roun Doung and Kinsam Puy, the owners of Kim’s Grocery Store, which is located at 2401 S. 10th St. in Philadelphia.

Lorretta Cerecino filed suit against the couple over an alleged March 30, 2009, incident in which the plaintiff fell outside of the store and injured her right elbow, which subsequently required surgical repair and physical therapy.

Cerecino was suing for negligence and her husband, Paul, was suing for loss of consortium.

The woman died of unrelated causes shortly after filing her complaint, however, and her husband proceeded as the plaintiff in the litigation due to his role as executor of his late wife’s estate.

The defendants had filed a motion for summary judgment, arguing that the case should be dismissed because, according to eyewitness testimony, it was a gust of wind that caused Cerecino to fall upon entering the grocery store, and not due to any negligence on the part of the store’s proprietors.

In his memorandum, however, Schiller noted that the eyewitness to the incident, Kathleen Albano, who was Cerecino’s neighbor, had also testified that the door to the store was also “kind of loosely put,” meaning it didn’t take a lot of effort to cause it to swing hard.

Schiller wrote that the defendants are free to argue to the jury that the wind caused Cerecino to fall, and that the business owners weren’t negligent.

But based on the testimony of an eyewitness to the act, and the plaintiff’s expert, who is a civil engineer, a jury could reasonably conclude that the wind wasn’t the sole factor on the day in question; though a gust of wind contributed to Cerecino’s falling, the door to the store flew open and caused the woman to fall to the ground; the landing was insufficient and led to Cerecino falling back and getting injured; and the condition of the entrance to the store remains the same today as it did during the time of the incident.

“Thus, Defendants’ argument that the mere occurrence of an accident does not give rise to an inference of negligence is a truism that is inapplicable here,” Schiller wrote. “Rather, a jury could find that Defendants failed to use reasonable care to protect a business invitee such as Lorretta from a dangerous door and that she was injured as a result of Defendants’ failure.”

Schiller wrote that the court finds that a genuine issue of material fact exists as to whether the wind alone was responsible for Lorretta Cerecino’s fall and subsequent injuries or whether the defendants were negligent and their negligence played a role in the woman’s injuries.

Schiller ordered the parties to proceed with the arbitration already scheduled for Oct. 16.

More News