PITTSBURGH – Walmart denies all liability in the case of a Western Pennsylvania couple who sued it after the wife-plaintiff suffered head and muscular injuries while shopping there, when a storage container allegedly fell from a shelf and struck her on the head.
Ebony Kirkland and Maurice Kirkland of Verona first filed suit in the Allegheny County Court of Common Pleas on Sept. 10 versus Wal-Mart Stores East, LP (doing business as “Wal-Mart Store No. 5339), of Bentonville, Ark.
“On March 5, 2019, at around 9:30 a.m., Ms. Kirkland entered Wal-Mart Store No. 5339 during normal business hours, for the purpose of purchasing medicine for her son and home supplies, including but not limited to storage containers. Kirkland entered the aisle for home storage with her cart, bent down and carefully retrieved a large, plastic, storage bin and a matching lid from the bottom aisle shelf,” the suit stated.
“At that moment, from the highest aisle shelf, a large, plastic, three-drawer storage container that was improperly and carelessly placed, fell off the highest aisle shelf. The large, plastic, three-drawer storage container struck Kirkland’s left shoulder and fell to the floor with enough force to break into several pieces. Kirkland bent over and attempted to pick up one of the pieces of the large, plastic, three-drawer storage container that had broken on the floor. As Kirkland was bent over, a second large, plastic, three-drawer storage container that was also improperly and carelessly placed also fell off the highest aisle shelf.”
Since Kirkland was already bent over to pick up the first container’s pieces off the floor, she did not see the second container fall off the highest aisle shelf. The second container struck Kirkland on the top of her head, causing her vision to instantly become blurry and her to suffer pain in her head.
Kirkland filed an incident report with the Wal-Mart store manager and drove herself to UPMC East Emergency Department for medical treatment. Kirkland was diagnosed with an acute concussion, numerous musculoskeletal injuries and cervical paraspinous muscle spasms.
“As a result of her injuries, Kirkland lost significant amount of work for her job with the U.S. Department of Veterans Affairs as a Veterans Integrated Service Networks for Healthcare for Reentry Veterans Specialist, in which she provides outreach and support to incarcerated U.S. veterans in state and federal prisons, to assist them with their transition back into the community,” the suit stated.
UPDATE
Walmart filed an answer to the complaint with new matter on Oct. 16, denying the plaintiffs’ description of the events contained in the complaint in their entirety and asserting numerous affirmative defenses.
“Plaintiffs’ complaint fails to state a cause of action upon which relief can be granted as to defendant. Plaintiffs’ claims are limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act 42 Pa.C.S.A. Section 7102 et seq. Walmart pleads the affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence as preserved by Pa.R.C.P. 1030. To the extent that may be revealed in discovery, Walmart raises as an affirmative defense the statute of limitations applicable to actions for recovery for personal injury/negligence,” the defense’s motion stated.
“At all times relevant hereto, plaintiff was fully aware of her surroundings and, to the extent any condition existed, such condition, if any, was visible and/or open and obvious to plaintiff. Plaintiffs’ claims are barred by plaintiffs’ own contributory negligence, recklessness, and/or carelessness, in general, and in the following particulars: a. In failing to see what was there to be seen; b. In failing to act in due care and caution for her own safety; and c. In failing to anticipate and/or avoid a known and/or obvious danger. Any injuries, losses, and/or damages allegedly sustained by plaintiffs, which injuries, losses, and/or damages are denied, are not the result of any action and/or inaction of defendant, but rather of other persons, including plaintiffs.”
Walmart also claimed the actions and/or inactions of plaintiff was the sole cause or, in the alternative, the intervening and/or superseding cause of the incident and all alleged injuries and/or damages in the complaint, and that plaintiffs’ injuries and/or damages were pre-existing in nature and did not result from any alleged actions and/or inaction of itself.
The plaintiffs came back with a reply on Nov. 2, arguing that the defense’s new matter were no more than conclusions of law to which no official response was required.
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the jurisdictional limits of arbitration and a trial by jury.
The plaintiffs are represented by Allison H. Greene and Elizabeth A. Chiappetta of Robert Peirce & Associates, in Pittsburgh.
The defendant is represented by Rebecca Sember Izsak and Brook T. Dirlam of Thomas Thomas & Hafer, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-009625
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com