Nicholas Malfitano Oct. 5, 2015, 10:06am


PHILADELPHIA – Counsel for a concrete company and the equipment companies it utilized argue a negligence lawsuit resulting from a mason’s paralyzing accident lacks proper jurisdiction and needs claims stricken from its record.

Gregory I. Dolsky filed a motion for preliminary objections on July 6, seeking defendant Kennedy Concrete’s dismissal from Philadelphia resident Brian P. Smith’s complaint (handled by his guardian, Lisa A. Salvato), in addition to dismissal of all negligence claims.

Dolsky argues the accident the lawsuit revolves around happened in New Jersey and therefore the case lacks jurisdiction.

Francis J. Grey Jr. made a second motion for preliminary objections on Aug. 17, seeking dismissal of three separate counts of Smith’s lawsuit with prejudice and all references to punitive damages stricken, because of alleged insufficiency in proving malicious intent necessary for punitive damages to apply.

James L. Barlow filed a third motion for preliminary objections on Sept. 1, with the content of his motion identical to Grey’s, also seeking dismissal of certain counts of Smith’s lawsuit with prejudice and the striking of all references to punitive damages. Barlow withdrew from the suit Sept. 18, and has been replaced by John M. Guthrie.

A hearing in this matter is set for Wednesday at Philadelphia City Hall, in court chambers.

On Jan. 23, Smith was performing masonry work at a construction site at the beach in Cape May, N.J. Smith alleged Kennedy Concrete supplied the boom truck Smith used to transport cement cubes at the site, by way of a swing lift fastened by bolts manufactured by Unbrako. Smith’s lawsuit asserts the bolts in the lift were defective.

As a result, when Smith used the lift to pick up a load of cement cubes, the lift failed and the cubes crashed to the ground. At the same time, a section of metal boom carrying the full load of cement cubes fell and struck Smith in the head. This impact caused a diffuse laceration to Smith’s head and disabling injuries to his neck and spine, resulting in Smith being paralyzed from the chest down.

Smith suffered a complete spinal cord injury, with a fracture and/or subluxation of his C6-C7 vertebrae. EMS responding to the scene transported Smith to AtlantiCare Regional Medical Center, where he remained until March 6. After exiting AtlantiCare Regional Medical Center, Smith was moved to Thomas Jefferson University Hospital until April 7.

Through his stay at both hospitals, Smith required intubation and ventilator support, pneumothoraces for which he needed eight chest tubes for ventilation and a tracheostomy, and suffered two near-fatal episodes of cardiac arrest.

Smith is now at Magee Rehabilitation Hospital, where he will remain for the foreseeable future undergoing paralysis therapy and tracheostomy for ventilation. His lawsuit alleges negligence, recklessness and punitive conduct on the part of the defendants.

Smith’s lawsuit contained charges of negligence against Kennedy Concrete plus negligence, strict products liability, express warranty, implied warranty of fitness for a particular purpose, implied warranty of fitness and merchantability and misrepresentation against USTC Inc., Manitowoc Boom Trucks, Manitowoc Company Inc. and Manitowoc Cranes Inc. (the “Manitowoc Defendants”). The suit levies the same charges against Standard Pressed Steel Co., SPS Technologies Inc., Unbrako and Deepak Fasteners (the “Unbrako Defendants”).

The plaintiff is seeking a sum, jointly and severally for compensatory and punitive damages in excess of $50,000, plus pre- and post-judgment interest and costs and in excess of prevailing arbitration limits.

The plaintiff is represented by Matthew A. Casey and John M. Pinto of Ross Feller Casey in Philadelphia.

The defendants are represented by Robert D. Billet, Christopher D. Hillsley and Gregory I. Dolsky of Billet Associates; Francis J. Grey Jr. of Ricci Tyrrell Johnson & Grey and Christine O. Boyd of Lavin O’Neil Cedrone & DiSipio, both in Philadelphia; and John M. Guthrie of The Law Offices of James L. Barlow in King of Prussia.

Philadelphia County Court of Common Pleas case 150600531

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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