ALLENTOWN – Dollar General has rejected claims from a Pennsylvania woman who says she was struck and injured by a cart while shopping, and has asserted cross-claims of liability against its co-defendant Pepsi Cola Company.
Marie Leiby and Richard Leiby of Germansville first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 5 versus The Pepsi Bottling Group, Inc. of Purchase, N.Y. and Dollar General Corporation of Goodlettsville, Tenn.
Plaintiff Marie Leiby was shopping in the Dollar General store in Schnecksville earlier this year, on Aug. 31, according to the suit.
“On Aug. 31, 2020, plaintiff was a customer of the Store and was inside the store premises walking in an area designated by defendant, Dollar General, for customer pedestrian traffic. On the date and at the time and place as aforesaid, an agent, servant, workman and/or employee of defendant, Dollar General, or defendant, Pepsi Bottling, acting within the course and scope of his or her employment for his or her employer, was also inside the Store and possessed a cart,” the suit stated.
“On the date and at the time and place as aforesaid, said employee was in a position out of plaintiff’s view of said person, either completely behind or to the side of plaintiff, and while either walking or standing, pushed or placed a cart possessed by said employee into plaintiff, and the cart struck her, causing her to fall and to suffer the injuries and damages.”
Leiby claimed the employee responsible failed to observe and avoid striking her with the cart; failed to place or push the cart when plaintiff was within striking distance of the cart; continued to approach plaintiff when the defendant knew or should have known that she could not observe the approach and walked so close to her that she could be struck by the cart, among other negligence-based allegations.
Leiby claimed to have suffered full-body injuries due to the incident.
“Solely as a result of the carelessness and negligence of defendant, plaintiff was caused to suffer injuries to her bones, joints, muscles, tendons, blood vessels and soft tissues throughout her entire body, both internally and externally, all of which may be permanent, including, but not limited to: multiple fractures to the left knee cap requiring surgery and causing internal derangement of the bones and tissues of the knee,” the suit stated.
UPDATE
Counsel for Dollar General Corporation filed an answer to the suit with affirmative defenses on Nov. 3, denying liability for Leiby’s accident, asserting more than a dozen defenses and leveling liability instead at its co-defendant, Pepsi Bottling Group.
“Plaintiffs’ complaint fails to state a claim upon which relief may be granted. Plaintiffs’ claims may be barred and/or limited by the doctrines of contributory and/or comparative negligence, to the extent it is determined that any damages or losses allegedly suffered by plaintiffs were not caused by this defendant, but were caused by other individuals and/or entities over whom this defendant exercised no control and for whose conduct this defendant cannot be held liable,” Dollar General’s answer read, in part.
“In the event it is determined that the plaintiffs sustained any injuries and/or damages, then recovery for same may be barred or limited to the extent such injuries and/or damages were the sole, proximate and the direct result of pre-existing, intervening, and/or superseding causes not within the control of this defendant and for which this defendant cannot be held liable. Plaintiffs’ claims may be barred and/or limited by the doctrine of assumption of the risk and in the event the individual who was operating the shopping cart at the time of the incident alleged was not an agent, servant, and/or employee of this defendant at the time of the incident which forms the basis of plaintiffs’ complaint.”
As to liability for the incident, Dollar General pointed responsibility at its co-defendant, tied to a “Packaged Beverage Product and Equipment Placement Agreement” entered into between the defendants on Feb. 1.
One section of the agreement pertained to indemnification, where Pepsi “agreed to, and shall, indemnify, defend and hold harmless, at no cost to customer, Dollar General Corporation.”
“The events alleged in plaintiffs’ complaint arise from the actions of the Pepsi employee who was utilizing the shopping cart, who himself was an entity for which Pepsi was responsible. Therefore, pursuant to the indemnification clause, Pepsi owes a defense and indemnification to this defendant for all claims asserted against this defendant by plaintiffs,” the cross-claim stated.
“To date, Pepsi has refused to accept the tender of defense and indemnification made by this defendant. Pepsi’s refusal to accept the tender of defense and indemnification made by this defendant is a breach of the terms of the agreement.”
For multiple counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of in $75,000, plus interest, costs of suit, delay damages, other relief as this Honorable Court deems just and proper, and a trial by jury.
The plaintiffs are represented by Mark K. Altemose of Cohen & Feeley, in Bethlehem.
Defendant Dollar General Corporation is represented by Sean P. Hannon of Dell Moser Lane & Loughney, of Pittsburgh. Co-defendant Pepsi Bottling Group, Inc. has not yet secured legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-04898
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com