PITTSBURGH – Victoria’s Secret says a shopper who suffered arm injuries when she fell in the entryway of a store located in the South Hills Village shopping mall was contributorily negligent to causing those same injuries.
Constance M. McClusky and Thomas McClusky of Washington first filed suit in the Allegheny County Court of Common Pleas on July 22 versus Victoria’s Secret, LLC, of Bethel Park.
The case was removed to the U.S. District Court for the Western District of Pennsylvania on July 22.
“On or about Aug. 5, 2019, at approximately 5 p.m., the wife-plaintiff was lawfully on the premises of the defendant’s retail store as a business invitee. Wife-plaintiff was emerging from defendant Victoria’s Secret store and traversing the entryway of the store, when she encountered a hazardous condition consisting of a build-up of polish and/or cleaning product, which in turn caused the floor tiles to be excessively slippery, of which there was no warning,” the suit stated.
“As a result of the unsafe, dangerous and/or otherwise hazardous condition, the wife-plaintiff was caused to fall, causing her to sustain severe and serious injuries as will be described herein.”
The plaintiffs charge the defendant with failing to remedy the hazardous condition in the store’s entryway, which resulted in Constance McClusky falling and suffering injuries to her left olecranon, left tricep, left upper extremities and nervous system, plus scarring and disfigurement.
UPDATE
Attorneys for Victoria’s Secret filed an answer to the complaint on July 29, charging that McClusky caused her own injuries when she fell in the store entryway.
“Plaintiffs’ claims are barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act and her injuries are barred and/or limited to the extent that evidence is introduced during discovery or trial that shows plaintiffs have failed to mitigate their damages. Plaintiffs’ claims are limited by the applicable statute of limitations and/or repose. Plaintiffs have failed to state a claim upon which relief can be granted and her claims are barred by res judicata, judicial estoppel, and/or the Doctrine of Unclean Hands,” the answer read, in part.
“Plaintiffs’ injuries are solely a result of plaintiff Constance McClusky’s own negligence and the plaintiffs’ claims are barred and/or limited by their own comparative negligence. Plaintiffs’ claims are barred as Victoria’s Secret was not negligent or careless in the operation of its premises, in any manner whatsoever. Plaintiffs’ claims are barred as the subject premises was not in a hazardous, defective or dangerous condition and did not jeopardize the safety of plaintiff Constance McClusky, or the public walking within.”
The store presented 17 separate affirmative defenses explaining why, in its view, that the lawsuit had no merit.
For counts of negligence and loss of consortium, the plaintiff is seeking damages in excess of the arbitration limits of the Court, plus costs, delay damages and a trial by jury.
The plaintiffs are represented by William D. Phillips and Laura D. Phillips of Phillips & Faldowski, in Washington.
The defendant is represented by Angela Marie Alexander-Savino of Perez & Morris, in Columbus, Ohio.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01111
Allegheny County Court of Common Pleas case GD-20-001960
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com