MEDIA – Counsel for a Lansdowne seafood restaurant is seeking a Delaware County court to sanction a Philadelphia woman alleging she fell on its premises in the amount of $500, for alleged failure to comply with discovery deadlines and a prior court order.
Jacqueline Ross filed suit in the Delaware County Court of Common Pleas on June 5. 2023 versus Off The Hook Philly, LLC (doing business as “Off The Hook Seafood & Grill”, “Off The Hook” or “Off The Hook Seafood”) of Lansdowne, Demetris D. Papaioannou of Media and John Doe.
“On or about Aug. 13, 2021, at or about 12 p.m., plaintiff Jacqueline Ross was a lawful pedestrian and business invitee traveling on an abutting exterior sidewalk and/or curb area of ‘Off the Hook Seafood & Grill’ restaurant located at or near 629 East Baltimore Avenue, Lansdowne, PA 19149. At all times material hereto, defendants, jointly and/or severally owned, leased, operated, maintained, controlled, possessed, warranted, and/or managed the property, including the sidewalk and/or curb area and/or landscaping fixture(s) located at or near the premises,” the suit said.
“Based upon information and belief, the defendant, on or about Aug. 13, 2021, at or about 12 p.m., defendants, Off The Hook Philly and/or John Doe, was/were the owner/landlord in possession and control of the subject premises. Based upon information and belief, the defendant, on or about Aug. 13, 2021, at or about 12 p.m., defendant Demetris D. Papaioannou and/or John Doe, was/were the owner/landlord in possession and control of the subject premises.”
The suit added that at the given time, the defendants “carelessly, and negligently allowed hazardous, dangerous, negligent and/or defective conditions, to wit: A sidewalk and/or curb area and/or landscaping fixture(s) in disrepair with elevated and descending unlevel areas and loose landscaping stones and concrete blocks creating tripping conditions to exist and remain on/of the premises’ sidewalk and/or curb area and/or landscaping for an unreasonable amount of time.”
“On or about Aug. 13, 2021, at or about 6 p.m., plaintiff Jacqueline Ross, a lawful pedestrian and business invitee was walking carefully on the premises sidewalk and/or curb area and/or landscaping fixture(s) when suddenly and without warning and/or notice, plaintiff, was caused to trip, stumble and/or fall to the ground by reason of plaintiff coming into direct contact with the aforementioned hazardous, dangerous, negligent and/or defective conditions crated by the carelessness and negligence of the defendants, jointly and/or severely, thereby causing plaintiff to trip, stumble and/or fall to the ground and sustain serious, painful and permanent personal injuries and damages, more particularly hereinafter described,” the suit stated.
“As a result of the negligence and carelessness of the defendants, jointly and/or severally causing plaintiff’s subject fall as aforementioned, plaintiff Jacqueline Ross sustained multiple injuries, including, but not limited to: Acute right wrist sprain/strain; acute right-hand sprain/strain; acute right knee contusion; acute left knee contusion; post-traumatic right ankle; post-traumatic anterior ankle impingement; acute knee instability; synovitis and tenosynovitis; post-traumatic peroneal tendonitis; left knee injury; right knee trauma; left knee trauma; gait disturbance; post traumatic lumbar pain; post traumatic; injury to hands and fingers; as well as other injuries to her head; bones; cells; tissues; nerves; muscles and functions; and shock and injury to her nerves and nervous system, some or all of which plaintiff has been advised are or may be permanent in nature.”
The defendants answered the complaint and provided new matter on July 10, 2023, contending that they were not in any way responsible for the plaintiff’s injuries and arguing that it was unclear whether or not the plaintiff was even injured on their premises.
“Answering defendants acted carefully and in a prudent manner at all times relevant hereto. Answering defendants were not negligent. Answering defendants breached no duty, if any, that was owed to plaintiff. Answering defendants were not negligent and were not a proximate or producing cause of the damages claimed by plaintiff. Answering defendants acted carefully and in a prudent manner at all times relevant hereto. Plaintiff’s alleged claims are barred or limited under the doctrine of comparative negligence,” per the new matter.
“Plaintiff’s claims are barred or limited under the doctrine of assumption of risk. Plaintiff’s alleged claims are barred or limited under the doctrine of estoppel. Plaintiff’s alleged claims are barred or limited by the applicable statute of limitations. Plaintiff’s alleged claims are barred by the doctrine of avoidable consequences. Plaintiff’s complaint fails to state a cause of action upon which relief may be granted. To the extent plaintiff’s injuries occurred as alleged, which is specifically denied, said injuries are the result of the conduct of persons or entities which are not within the control of the answering defendants. Plaintiff’s injuries to the extent that they exist as alleged, are solely the result of plaintiff’s own negligence.”
The defendants added they did not fail to properly inspect the subject premises, and at no time was the subject premises in a state of disrepair.
In an Oct. 10, 2023 reply to the new matter, plaintiff counsel asserted that no reply or response is required to the averment, as they are either “an improper attempt to reserve the right to plead and/or raise additional affirmative defenses in the future and, thus, violate Pennsylvania Rule of Civil Procedure 1030” or “to the extent that a reply or response is required, plaintiff denies the allegations in this paragraph for the reasons more particularly articulated in plaintiff’s civil action complaint.”
UPDATE
Defense counsel filed a motion for sanctions on April 22, charging that the plaintiff should be fined $500 for not complying with established discovery deadlines and a prior court order.
“Moving defendant served interrogatories and request for production of documents on plaintiff on Oct. 10, 2023. Plaintiff’s responses to the requests were due on Nov. 10, 2023 in accordance with the Pennsylvania Rules of Civil Procedure. In an effort to avoid Court intervention, moving defendant sent correspondence to plaintiff’s counsel requesting plaintiff’s verified discovery responses within 10 days so as to avoid motion practice on Dec. 18, 2023. Pursuant to that correspondence, plaintiff’s discovery requests were due on Dec. 29, 2023. After unsuccessfully attempting to resolve the discovery dispute without court intervention, moving defendant filed a motion to compel plaintiffs’ discovery responses on Feb. 6, 2024. On March 25, 2024, this Honorable Court ordered plaintiff to provide full, complete and verified answers to moving defendant’s discovery requests within 20 days of the order,” the sanctions motion stated.
“By way of the order, plaintiff’s discovery responses were due on April 15, 2024. Plaintiff did not furnish their responses to moving defendants’ interrogatory requests by that date. On April 16, 2024 counsel for moving defendant sent correspondence to counsel for plaintiff again requesting the interrogatory responses. As of the date of this motion, plaintiff has still failed to provide the requested discovery responses, in direct violation of this Court’s order, and has provided no update regarding the status of their responses. Arbitration in this matter is schedule for May 15, 2024, less than 30 days away. Moving defendant cannot prepare for this arbitration without receiving plaintiff’s interrogatory responses. Plaintiffs’ failure to comply with the March 25, 2024 Court order and the Pennsylvania Rules of Civil Procedure has hindered moving defendants in the factual investigation necessary to the defense of the matter and has thus prejudiced the defendant. Pursuant to Pennsylvania Rule of Civil Procedure 4019(a)(1)(viii), the Court may, on motion, make an appropriate order if a party fails ‘to obey an Order of Court respecting discovery.’ Plaintiffs remain in violation of Pennsylvania Rule of Civil Procedure 4006(a)(2) for their failure to propound timely answers and responses to moving defendants’ discovery requests. Moving defendant has incurred attorneys’ fees and expenses in having to prepare and present this motion for sanctions and is entitled to recover attorney’s fees and expenses pursuant to Pennsylvania Rule of Civil Procedure 4019(g)(1). Pursuant to Pennsylvania Rule of Civil Procedure 4019(a)(1)(i), the Court may, on motion, enter an appropriate order upon any party for failing to answer interrogatories. Defendant has made a good faith effort to obtain plaintiff’s answers/responses to the outstanding discovery but has been unable to do so.”
For multiple counts of negligence, the plaintiff is seeking damages not in excess of the jurisdictional amount requiring submission to arbitration.
The plaintiff is represented Simon T. Haileab and Robert S. Miller of Wapner Newman, in Philadelphia.
The defendants are represented by Christopher M. Gallagher of Thomas Thomas & Hafer, also in Philadelphia.
Delaware County Court of Common Pleas case CV-2023-004720
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com