Jon Campisi Aug. 16, 2013, 3:13pm


An attorney representing home improvement retailer Lowes has filed a

petition with the U.S. District Court in Philadelphia to take up jurisdiction in a slip-and-fall case against the corporate defendant that was initiated by a Philadelphia couple in state court.

James and Renee Harvin are suing Lowe’s and employee Patrick Kirby over eye injuries James Harvin allegedly sustained after tripping and falling over a hazard at the Lowes location on Christopher Columbus Boulevard in South Philadelphia in late April 2012.

The suit, which was originally filed in late July at Philadelphia’s Common Pleas Court by Philadelphia attorney Bruce M. Rotfeld, does not specify the exact nature of the alleged defect in the store that caused the plaintiff to fall.

It only says that the store and Kirby were negligent for failing to eliminate the hazard, failing to properly inspect the premises, failing to prevent the accident, and failing to warn of the dangerous condition.

The complaint alleges that as a result of the incident, James Harvin sustained injuries to his left eye, including a ruptured globe with anterior vitrectomy iris suture with repositioning of the left eye.

James Harvin ended up suffering eye pain, emotional tension, an impairment of earning ability and other personal injuries, the suit states.

Kirby, who normally works at the Lowe’s location on Aramingo in Philadelphia’s Port Richmond neighborhood, was acting as the managing employee of the South Philly location on the day of the alleged incident, the record shows.

The Harvin’s claim they incurred substantial medical bills to their financial detriment.

Renee Harvin has a loss of consortium claim in the complaint alleging she has been deprived of her husband’s love and companionship due to his injuries.

The couple seeks more than $50,000, in addition to costs, expenses, attorney’s fees and other relief.

In her removal notice, Lowes attorney Jennifer M. Herrmann, of the Philadelphia firm Mintzer, Sarowitz, Zeris, Ledva & Meyers, wrote that the matter would be more appropriate before a federal jurist because the damages sought would likely exceed the jurisdictional limit in a Pennsylvania trial court.

The defense attorney also cites diversity in citizenship among the parties as justification for transferring venue.

Herrmann additionally points out that the complaint is silent as to the citizenship of defendant Kirby, listing his work address, not his home address, in court papers.

“Regardless, there is no independent claim asserted against Mr. Kirby,” Herrmann wrote. “Instead, the references to Mr. Kirby relate to activities in the course and scope of his employment.”

Herrmann went on to write that she believes Kirby was fraudulently joined as a defendant in the litigation.

The court docket shows that the matter has been assigned to U.S. District Judge Robert F. Kelly.

 

The federal case number is 2:13-cv-04746-RK. 

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