PITTSBURGH – The Pittsburgh Zoo & Aquarium, named in a lawsuit surrounding an escalator which allegedly stopped working and caused the plaintiff to fall forward and sustain a series of severe injuries during a visit two years ago, has dropped its cross-claims of recklessness against its elevator maintenance company co-defendant.
Janet DiMatteo of Charlotte Hall, Md. first filed suit in the Allegheny County Court of Common Pleas on April 3 versus Zoological Society of Pittsburgh, Pittsburgh Zoo & Aquarium and Industrial Elevator Maintenance, Inc. (doing business as “Industrial/Commercial Elevator”), all of Pittsburgh.
“On or about April 17, 2021, at approximately 4:45 p.m., plaintiff Janet DiMatteo was a business invitee and was lawfully on the premises of the defendants. At approximately 4:45 p.m., plaintiff and her family walked toward the exit of the premises. At the above time and place, two escalators were located at the exit of the premises. At the above time and place, several dozen individuals were exiting the premises by descending down the escalator located at the front of the park,” the suit said.
“At the above time and place, the escalator was so packed that nearly every step was filled, with some steps having two individuals standing on the step. Upon information and belief, at the above time and place, a child lifted the emergency safety button on the escalator and thereby stopped the escalator's movement. At the above time and place, no exigent or emergency circumstances existed to warrant the child to access and activate the escalator's emergency stop button. At the above time and place, plaintiff was on the descending escalator and was located about one-quarter of the way down the escalator.”
The suit added that the escalator in question made a loud high-pitched noise, when suddenly and without warning, the descending escalator abruptly stopped, leading individuals on the escalator to lurch forward from the momentum and at which point, a third-party fell forward on top of the plaintiff.
“As a result of the impact, plaintiff was violently thrown forward, face-first down the escalator, and landed face-down across several escalator steps. At the time of plaintiff’s fall on April 17, 2021, the escalator was in a defective, dangerous, and hazardous condition by containing an unguarded, open emergency button directly in access to children. In the alternative, it is believed and therefore averred that the escalator on which plaintiff was a passenger and the mechanism which operated the escalator was under the exclusive control of the defendants. In the alternative, the escalator on the premises, as installed and maintained by the defendants, created a dangerous and defective condition, specifically a mechanical failure which caused the escalator to stop abruptly and created the risk of an escalator passenger, such as plaintiff, from falling forward on the escalator. In the alternative, defendants knew or should have known that the poor design and maintenance of the escalator would result in serious bodily injury of those on the escalator. At all times relevant hereto, the defendants were responsible for the safety of the Zoo patrons, such as plaintiff and as such, owed a duty to provide a reasonably safe environment for all Zoo visitors, and to allow Zoo patrons to safely enter and/or exit the premises via the escalators,” the suit stated.
“At all times relevant hereto, defendants knew or should have known that in the event that the emergency button was accessed and activated, during non-emergency circumstances and without warning to others, it would result in serious bodily injury of those on the escalator. At all times relevant hereto, the emergency stop button was located in such a way that was easily accessible and attractive to small children. At all times relevant hereto, defendants had actual and/or constructive notice of the existence of the aforesaid location and danger posed by the open, unguarded and easily accessible emergency stop button. The failure of defendants to properly or adequately correct the dangerous condition and/or forewarn plaintiff to the dangerous condition was a breach of defendants’ duty to plaintiff, a business invitee. Plaintiff’s injuries were caused solely by the carelessness and negligence of defendants, their agents, servants, contractors, and/or employees, and the defective condition on defendants’ premises as set forth herein. As a direct and proximate result of defendants’ breach of duty, plaintiff suffered severe injuries and damages which are more fully set forth below.”
The plaintiff’s injuries included a fractured rib, right ankle posterior tibial tendinitis, bilateral knee pain, left hip bursitis, left iliotibial band syndrome, contusions of lower extremities, knee lacerations, ankle lacerations, facial lacerations, eyelid bruising, facial lacerations, head pain, eye discomfort, limited mobility, limited range of motion and other injuries.
The Industrial Elevator Maintenance, Inc. filed an answer, new matter and cross-claim on May 26.
“Plaintiff’s complaint fails to set forth a cause of action against answering defendant upon which relief can be granted. Plaintiff’s claims are barred in whole or in part by the applicable statute of limitations. Plaintiff’s claims are barred in whole or in part by the applicable provisions of the Pennsylvania Comparative Negligence Statute. Plaintiff’s claims are barred by the doctrines of assumption of risk and contributory negligence. Plaintiff assumed the risk of the accident claimed and/or the alleged hazard or defect, if any, was open and obvious to plaintiff at all relevant times. The acts and/or omissions of entities and/or individuals other than answering defendant were the cause in fact and/or legal cause and/or proximate cause of the alleged damages of plaintiffs,” per the new matter.
“Plaintiff’s claims are barred and/or limited by the doctrines of waiver, laches and/or estoppel. The subject accident was caused, if at all, by parties over whom answering defendant had no control and no right to control. Plaintiff’s claims are barred and/or limited pursuant to any and all releases executed prior to or while the instant litigation is pending. Answering defendant was not negligent. Answering defendant breached no duty of care owed to plaintiff, if in fact any duty was owed, the existence of which is specifically denied. Answering defendant either had no duty to plaintiff with respect to this incident or the alleged breach of any duty it did have was not the legal, factual or proximate cause of plaintiff’s injuries and/or damages.”
In addition to other defenses and a cross-claim levied against its co-defendants, Industrial Elevator Maintenance, Inc. argues that all or part of the plaintiffs’ claim for future healthcare and healthcare costs may be limited or barred by the Patient Protection and Affordable Care Act.
The Zoological Society of Pittsburgh filed its own answer with new matter and a cross-claim against its co-defendant, Industrial Elevator Maintenance, Inc. on May 31.
“Plaintiff’s complaint fails to state a cause of action against this answering defendant upon which relief may be granted. Although not necessary to do so, this answering defendant pleads the affirmative defenses of comparative negligence, contributory negligence and assumption of the risk as a full and complete bar to plaintiff’s claims against this answering defendant. Plaintiff’s claims against this answering defendant are barred by the statute of limitations, if applicable. If it is determined at the time of trial that plaintiff’s alleged injuries and damages were caused by the actions or inactions of a third-party or parties, including but not limited to any minor child as alleged by plaintiff for whose conduct this answering defendant is neither liable nor responsible, then plaintiff’s claims against this answering defendant are barred,” their new matter stated, in part.
“The injuries, losses and damages allegedly sustained by plaintiff were the sole and proximate result of plaintiff’s own actions and/or inactions over which this answering defendant had no control. The injuries, losses and damages allegedly sustained by the plaintiff were the sole and proximate result of defendant Industrial Elevator Maintenance, Inc. (doing business as “Industrial/Commercial Elevator”) as more fully described in the cross-claims set forth herein, for whose conduct this answering defendant is neither liable nor responsible, then plaintiff’s claims against this answering defendant are barred. The injuries, losses and damages allegedly sustained by plaintiff were the sole and proximate result of independent, intervening and/or superseding causes of actions of others over which this answering defendant had no control.”
The new matter continued that the plaintiff’s alleged injuries and damages, if any, are the result of prior and/or subsequent accidents and/or injuries and are not the proximate result of the incident that gives rise to this lawsuit, in addition to other affirmative defenses.
The Zoological Society of Pittsburgh also filed a praecipe for the Court to issue a writ to join Kone, Inc. (doing business as “Montgomery Kone”) as an additional defendant on June 1.
The plaintiff replied to defendant Industrial Elevator Maintenance, Inc.’s new matter on June 14, denying it in its entirety.
“The averments in Paragraphs 1-4 of defendant’s new matter are strictly denied. The averments contain conclusions of law to which no responsive pleading is required. To the extent a response is required, the defendant’s statement is speculative and strict proof is demanded at trial. The averments in Paragraph 5 of defendant’s new matter are strictly denied. The averments contain conclusions of law to which no responsive pleading is required. By way of further response, it is specifically denied that plaintiff assumed the risk of the accident by using the escalator at issue and further denied that the hazard and dangerous defect of the escalator was open and obvious to plaintiff at the time of the incident. To the extent a response is required, the defendant’s statement is speculative and strict proof is demanded at trial,” the reply stated.
“The averments in Paragraphs 6-8 of defendant’s new matter are strictly denied. The averments contain conclusions of law to which no responsive pleading is required. To the extent a response is required, the defendant’s statement is speculative and strict proof is demanded at trial. The averments in Paragraph 9 of defendant’s new matter are strictly denied. By way of further response, the averments contained in Paragraph 9 purportedly refer to documents whose existence and/or the terms of speak for themselves. Any such attempt to characterize said documents, or the absence of any such documents, is denied with strict proof demanded at trial. Plaintiff lacks sufficient knowledge to form a belief as to the truth or accuracy of the allegations contained in Paragraph 9. To the extent a response is required, the defendant’s statement is speculative and accordingly, plaintiff lacks sufficient knowledge to reply. Strict proof is demanded at trial.”
The reply added that the averments in Paragraphs 10-20 of defendant’s new matter are strictly denied. The averments contain conclusions of law to which no responsive pleading is required. By way of further response, defendant ICE breached its duty of care to plaintiff. To the extent a response is required, the defendant’s statement is speculative and strict proof is demanded at trial.
UPDATE
On June 28, counsel for The Pittsburgh Zoo filed a stipulation to abandon its cross-claims of recklessness leveled at its co-defendant, ICE.
“By way of stipulation, agreement and consent of defendant Industrial Elevator Maintenance, Inc. and defendants Zoological Society of Pittsburgh and their respective counsel, that any and all allegations of recklessness in defendants Zoological Society of Pittsburgh’s new matter cross-claims against defendant Industrial Elevator Maintenance, Inc. are hereby stricken and dismissed without prejudice. Defendant Industrial Elevator Maintenance, Inc. shall file an answer to defendants Zoological Society of Pittsburgh’s new matter cross-claims within 20 days of the date this stipulation is filed with the Court,” the stipulation read.
For two counts of negligence, the plaintiff is seeking damages in excess of the applicable arbitration limits, exclusive of interests and costs.
The plaintiff is represented by Anthony C. Mengine and Taylor M. Martucci of Kontos Mengine Killion & Hassen, in Pittsburgh.
The defendants are represented by Brian L. Calistri and Charlene A. McLaughlin of Calistri McLaughlin in Philadelphia, plus Edward R. Alo of William J. Ferren & Associates, in Hartford, Conn.
Allegheny County Court of Common Pleas case GD-23-004567
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com