PITTSBURGH – The City of Pittsburgh feels it is not responsible for an allegedly defective swing at a local recreation center that broke in mid-use and caused a young boy to fall and suffer a broken leg, but rather, that the plaintiffs are responsible for that same injury.
J.A.M. Jr., a minor by and through his parent and natural guardian, Ruby Burch, as well as Burch in her own right, both of Pittsburgh, first filed suit in the Allegheny County Court of Common Pleas on July 14 versus the City of Pittsburgh.
“On Sept. 28, 2018, the plaintiff was lawfully on the aforementioned premises as an invitee. At all times relevant and material hereto, there existed a condition on the premises of the defendant, characterized by a broken and defective swing set. While plaintiff was swinging on the swing set, plaintiff was caused to violently fall as a result of coming into contact with the aforementioned condition, when the chain on the S-hook on the left side of the swing broke,” the suit stated.
“As a direct and proximate result of the aforementioned accident, plaintiff sustained the following injuries, some or all of which may be permanent: Acute spiral fracture of the right distal tibia; right leg pain; bruises, contusions and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues and vessels of the body, nervousness, emotional tension, anxiety and depression.”
The plaintiffs argued the defendants failed to provide a safe premises for J.A.M. to use, failed to warn of the defective condition of the swing set and failed to eliminate or repair the defective condition, among other forms of negligence – resulting in J.A.M. using crutches and remain non-weight bearing for six weeks, be absent from school and extracurricular activities, face at least one or more surgeries and endure a devaluation of his quality of life.
UPDATE
The City of Pittsburgh, through Assistant City Solicitor Lawrence H. Baumiller, filed an answer to the complaint with new matter on Aug. 4, asserting defenses including immunity, the public duty doctrine, waiver and release and contributory and/or comparative negligence.
“The City believes and therefore avers that plaintiffs may not have initiated this cause of action within the time permitted by the appropriate statute of limitations, that any and/or all of the claims set forth by plaintiffs may be barred by the applicable statute of limitations, latches, estoppel, waiver, collateral estoppel and/or res judicata,” the answer stated.
The City also postulated that the plaintiffs are responsible for the injuries of the young boy in question, due to their own negligence.
That same day, Aug. 4, the plaintiffs replied to the answer and denied the City’s counter-arguments as conclusions of law to which no official response was required.
For a count of negligence, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, plus costs, interests and such other and further relief as the court may deem just and equitable, plus a trial by jury.
The plaintiffs are represented by Emerald N. Williams of Woomer & Talarico, in Pittsburgh.
The defendant is represented by Assistant City Solicitor Lawrence H. Baumiller and City Solicitor Yvonne S. Hilton.
Allegheny County Court of Common Pleas case GD-20-007601
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com