PHILADELPHIA – A Philadelphia judge has rejected a plaintiff attorney’s attempt to exit a premises liability lawsuit, even though he alleged his clients were not able to prove their child’s injuries were directly caused by a related fall accident.
Nicholas L. Palazzo of DeFino Law Associates in Philadelphia filed a motion to withdraw appearance on June 13. Palazzo said he began written discovery with opposing defense counsel, deposed defendant Jeanne Pelle (owner of the property where plaintiff Destiny Miraglia was injured) and also deposed Destiny’s mother, Helen Miraglia.
Palazzo said Destiny was born with cerebral palsy, neurological and physical birth defects, making it impossible for her to communicate, and added medical records show Justin and Helen Miraglia were unsure if Destiny injured her head in the alleged fall, or if the injuries were sustained during a fall off the couch inside the family’s home. Palazzo added Justin and Helen have indicated different versions of the events to hospital emergency room staff.
Furthermore, Palazzo said another medical record from around the time of Destiny’s fall, Feb. 10, 2014, from “Elwyn” – a program for disabled children – said that Destiny fell inside her house. Per that record, the injury had cut open Destiny’s head, leading her to need staples to close the wound. The record was also allegedly signed by Helen Miraglia.
Palazzo said due to the records revealing the Miraglias were unaware exactly where Destiny’s injury came from, it showed they cannot prove causation in their lawsuit – a necessary component under Pennsylvania state law. Palazzo requested dismissal of the case without prejudice in order for the plaintiffs to refile a separate action, or to grant Palazzo’s withdrawal petition and allow the plaintiffs 60 days in which to secure new counsel.
On Aug. 9, Judge John M. Younge of the Philadelphia County Court of Common Pleas decreed Palazzo’s withdrawal motion was denied.
On Feb. 7, 2014, Justin was walking on the sidewalk on the 2800 block of South 12th Street and carrying his daughter Destiny, a special needs child, to their parked car at the corner with Johnston Street. Justin said the sidewalk at that location consisted of uneven and broken pavings – allegedly made so that vehicles could drive onto the sidewalk, in violation of city codes. Justin had to cross that sidewalk while carry Destiny and fell, causing himself and Destiny injury.
Justin further averred an accumulation of ice and snow on the sidewalk also contributed to the fall, and the failure to repair and clear the sidewalk directly led to the accident.
Destiny allegedly suffered a head injury, concussion, post-concussion syndrome, cognitive difficulty, traumatic brain injury, lacerations and cuts to the head, plus other injuries to her spine, limbs and body.
On individual counts of both negligence and negligent infliction of emotional distress, the plaintiffs are seeking damages, jointly and severally, in excess of $50,000, plus attorney’s fees and costs, from the defendants in this case.
The defendants are represented by Seth J. Schwartz of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, and Joshua M. Feissner of the City of Philadelphia’s Law Department.
Philadelphia County Court of Common Pleas case 150700627
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at email@example.com