PITTSBURGH – An Allegheny County Jail inmate who alleged the slippery surface of a shower floor caused him to fall and suffer herniated discs in his spine and other injuries, has reiterated his claims that the county is liable.
Brian Nestor filed suit in the Allegheny County Court of Common Pleas on Dec. 30, 2022 versus Allegheny County. Both parties are of Pittsburgh.
“On July 8, 2022, plaintiff Nestor was housed on Floor 5B, Medical Pod, of the Allegheny County Jail, where he was incarcerated for a supervised release violation. On said date, plaintiff needed a walker in order to ambulate,” the suit said.
“On said date, plaintiff Nestor was taking a shower in the handicap stall on Floor 5B, Medical Pod, when he slipped and fell due to the slippery surface of the shower floor. As the plaintiff was falling due to slipping on the slippery surface of the shower floor, he tried to reach for a grab bar or handrail in the shower stall to keep from falling, however, the stall was not equipped with a guardrail that was accessible to the plaintiff.”
The suit added the lack of a grab bar or guardrail and the slippery nature of the shower were the causes of Nestor’s fall.
“As a result of the negligence of the defendant, plaintiff Nestor sustained the following injuries, some or all of which may be permanent in nature: Central Cord Syndrome of the cervical spine, C3-C4 disc herniation requiring anterior cervical discectomy and fusion, cervical myelopathy, right thumb and second finger paresthesia, concussion and other serious and permanent injuries,” the suit stated.
“As a result of the injuries set forth above, plaintiff Nestor has sustained the following damages: He has endured and will continue to endure pain, suffering, inconvenience, embarrassment, mental anguish and emotional and psychological trauma, his general health, strength and vitality have been impaired, he has been permanently scarred and/or disfigured, he has sustained the loss of earning capacity, he has or may in the future unable to enjoy various pleasures of life that he previously enjoyed.”
Nearly one year after the suit’s filing, Allegheny County provided an answer and new matter in the case, on Dec. 21. The County availed itself of any and all liability for injuries sustained by the plaintiff.
“Defendant is entitled to governmental immunity pursuant to Political Subdivision Tort Claims Act. Defendant pleads immunity as an affirmative defense. Plaintiff has contributed to any alleged negligence in the alleged accident. Plaintiff’s claim is governed by the Comparative Negligence statute. Allegheny County Jail pleads an open and obvious condition, the public duty doctrine, lack of a dangerous condition [and] intervening superseding cause,” per the suit’s new matter.
“Allegheny County Jail [also] pleads the choice of paths doctrine, lack of causation [and] lack of notice of the allegedly-dangerous condition. Defendant did not fail in any duty that may have been owed to the plaintiff. The plaintiff’s claims, in whole or in part, are barred by the doctrine of laches [and] by the statute of limitations. Plaintiff assumed the risk. Plaintiff failed to mitigate damages.”
UPDATE
On Jan. 17, the plaintiff replied to the new matter and generally denied it as conclusions of law to which no response was required, while in the alternative, demanding strict proof of the same.
Additionally, the plaintiff countered that there was no intervening superseding cause, there was no choice of paths, his injuries were clearly caused by the defendant’s negligence, the defendant had actual and/or constructive notice of the dangerous condition, the lawsuit was filed in a timely manner and within the statute of limitations and he had taken reasonable steps to mitigate his damages.
For one count of negligence, the plaintiff is seeking damages in excess of the arbitration limits of this Court, plus interest and costs.
The plaintiff is represented by Richard C. Levine of Ainsman Levine, in Pittsburgh.
The defendant is represented by Dennis Biondo Jr. and Philip P. Roberts of the Allegheny County Law Department, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-016341
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com