Pennsylvania Record

Friday, December 13, 2019

Judge finds no reason slip-and-fall suit against NYC McDonald's should be heard in Philly

By Nicholas Malfitano | Jun 4, 2015


PHILADELPHIA – Because of a lack of personal jurisdiction, a lawsuit brought by a Pennsylvania couple against a McDonald’s location in New York City has been dismissed by a Philadelphia federal judge.

Kathleen Rosso-Gana and Stephen Gana of Washington Crossing first filed the suit in the Bucks County Court of Common Pleas, alleging McDonald’s and Lewis Foods of 42nd Street were collectively negligent in their operation of the McDonald’s restaurant located at 220 West 42nd Street in New York City.

The lawsuit said this negligence was a direct cause of Rosso-Gana’s fall, which they claim left the wife with permanent damage to her legs, knees and right ankle, among other injuries.

Rosso-Gana visited the McDonald’s restaurant in question on Nov. 3, 2012, and after making a purchase, exited the premises. At that time, the suit alleges Rosso-Gana made contact with a “wet and slippery substance” on the stairway outside the restaurant, striking her head on the exterior wall as she tumbled down the steps.

The suit claimed Rosso-Gana sustained a shattered fibula of her left leg, a severe sprain of her right leg and ankle and severe headaches.

According to the lawsuit, McDonald’s and Lewis Foods of 42nd Street were negligent in “failing to maintain their stairway in a dry, safe and passable condition; failing to properly inspect its premises for such hazardous conditions; failing to warn its customers of the aforementioned hazardous conditions; failing to provide prompt and adequate aid to plaintiff after her fall; and various other incidents of failure to exercise due care.”

The lawsuit further claimed Rosso-Gana incurred great economic losses due to her injuries, specifically those connected to medical costs for her treatment and a loss of income related to her profession as the owner and operator of a private school.

Both Rosso-Gana and her husband also cited being “unable to enjoy the various social, recreational and conjugal activities” they engaged in before this fall took place.

The Ganas initially filed the suit in the Bucks County Court of Common Pleas, but the defendants cited diversity of citizenship between the involved parties and the amount in damages being sought exceeding $75,000, in requesting the complaint be removed to the U.S. District Court for the Eastern District of Pennsylvania for proper jurisdiction.

The McDonald’s restaurant where the alleged fall took place is located at 220 West 42nd Street in New York City, and Lewis Foods of 42nd Street is an owning and operating entity for the restaurant based in Darien, Conn.

On May 4, counsel for the defense filed a motion to dismiss the lawsuit on the basis of lack of personal jurisdiction and improper venue.

Senior Judge Ronald L. Buckwalter, of the U.S. District Court for the Eastern District of Pennsylvania, concurred with the defense on that point, and offered his perspective for doing so.

“Absent at least some minimum, purposeful conduct with the forum state, this Court simply cannot exercise personal jurisdiction over defendants,” Buckwalter said.

Buckwalter continued to review his rationale in granting the defense’s motion to dismiss.

“First and foremost, plaintiffs have not shown that defendants have constitutionally-sufficient minimum contacts with Pennsylvania, such that they can be said to have purposefully availed themselves of doing business in this state. Indeed, all of the events in this case occurred in New York during plaintiffs’ voluntary visit to defendants’ restaurant establishment,” Buckwalter wrote.

“Second, it is abundantly obvious that the exercise of jurisdiction in this case would not comport with notions of fair play and substantial justice.

“Defendants took no actions in Pennsylvania, did not reach into Pennsylvania for any of its business dealings, and could not reasonably foresee being hauled into court in Pennsylvania. Moreover, judicial economy and convenience factors suggest that New York is the most appropriate forum”

As the case was found to lack personal jurisdiction in this district, Buckwalter said the defense’s notion of improper venue need not even be considered at this time, and dismissed the case outright.

The plaintiffs had been seeking in excess of $75,000 in damages, plus interest and court costs. The plaintiffs were represented by Louis B. Priluker of Jenkintown.

The defendants were represented by Mark Lockett of Bonner, Kiernan, Trebach & Crociata, of Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-02016

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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