PHILADELPHIA – A settlement has been finalized by plaintiffs who alleged J.C. Penney and Simon Property Group acted negligently and recklessly, in permitting conditions that led to an injurious accident at the Franklin Mills Mall.
On July 18, counsel for plaintiffs Sharon and Bernard Scarcia filed a praecipe to mark their action settled, discontinued and ended on payment of costs to the prothonotary. Terms of the settlement were not disclosed.
The Scarcias, of Philadelphia, first filed suit in the Philadelphia County Court of Common Pleas on July 10, 2018 (and an amended complaint on Aug. 13 last year) against J.C. Penney Corporation, Inc. of Plano, Texas, plus Simon Property Group, Inc. and Simon Property Group, LLC, both of Indianapolis.
The suit stated Sharon was shopping at the J.C. Penney store located at the Franklin Mills Mall, when she encountered an un-level discrepancy in height between an area of marble and an adjacent area of concrete floor and was caused to trip and fall.
As a result, Sharon allegedly sustained serious and permanent new onset injuries and/or aggravated prior asymptomatic conditions and other damages which may include to her spine, body, discs, bones, joints, tissues, nerves and nervous system, including a fractured L-1 vertebra with 80 to 90 percent wedge compression and lumbar disc protrusions.
On Aug. 13, defense counsel Jennifer G. Shorr filed preliminary objections to the Scarcias’ complaint and cited Pennsylvania Rule of Civil Procedure 1028(a) and its clause for legal insufficiency as to the plaintiffs’ claim of recklessness.
“In the instant case, plaintiffs have failed to aver any facts tending to show that moving defendants had the state of mind required for a finding of recklessness by acting deliberately, or failing to act in conscious disregard of a known high degree of risk of physical harm to plaintiff by allegedly allowing a tripping hazard with an uneven floor surface,” Shorr stated.
“Thus, even when read in the light most favorable to the plaintiffs, the factual allegations set forth in plaintiffs’ complaint are nothing more than a recitation of the individual allegations of negligence, although conclusory in nature. As plaintiffs have failed to plead any facts which would support allegations that objecting defendants’ conduct constituted “recklessness”, plaintiffs’ allegations of recklessness, against said objecting defendants should be stricken from plaintiffs’ amended complaint, with prejudice.”
Prior to settlement and for counts of negligence and loss of consortium, the plaintiffs were seeking damages, jointly, severally, directly and vicariously, in an amount in excess of the arbitration limits, plus interest, costs and any other sums the Court deems appropriate.
The plaintiffs were represented by Bentley M. Saul in Philadelphia.
The defendants were represented by Jennifer G. Shorr of Bennett Bricklin & Saltzburg, in Blue Bell.
Philadelphia County Court of Common Pleas case 180502916
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com