PITTSBURGH – Counsel for a Pittsburgh man who suffered a broken arm and leg injuries at a local Ace Hardware store when he says he fell on an unevenly positioned mat near its entrance doors in 2019 denies the counter-argument of the store.
Paul Capenos of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Sept. 22 versus Greentree Hardware & Electric, Inc. and Charles A. Bickel (both doing business as “Ace Fix-It Hardware”), also of Pittsburgh.
(A Nov. 25 court order amended the defendants’ list in dismissing Greentree Hardware & Electric, Inc. and Bickel without prejudice, and replacing them with Ace Fix-It Hardware of Duncansville, Inc., doing business as “Ace Fix-It Hardware.)”
“On Sept. 27, 2019, plaintiff Capenos, was exiting the Ace Fix-It Hardware store located at 1079 Greentree Road, Pittsburgh, Allegheny County, Pennsylvania, when he was caused to trip and fall on an uneven and dangerous mat, which was not flush to the ground, located in the vestibule of the store causing him to sustain serious and severe injuries,” the suit stated.
The plaintiff alleged the defendants caused, allowed, and/or permitted a dangerous and hazardous condition to exist on a pedestrian, failed to provide a reasonably safe walking surface for pedestrians, failed to provide a safe means of ingress and egress from the premises and failed to eliminate tripping hazards from the premises, namely the uneven and frayed mat, among other allegations of negligence.
As a result of the defendants’ negligence, Capenos suffered right shoulder dislocation requiring reduction; right displaced proximal humerus fracture; right shoulder pain; left tibial plateau fracture; left knee pain; left knee swelling; decreased range of motion; decreased strength, decreased mobility and increased need for assistance from others; impairment of ability to perform activities of daily living; severe shock, strain, or sprain of the nerves, muscles, tissues, ligaments, and vessels of the musculoskeletal system and other serious and severe injuries.
Ace Fix-It Hardware of Duncansville, Inc. filed an answer to the complaint along with new matter on Dec. 9, arguing that the plaintiff failed to mitigate his damages and directly caused his own injuries.
“Any acts and/or omissions attributable to defendant, which are alleged by plaintiff to constitute negligence and/or carelessness, were not the legal cause or causes and/or a substantial factor or substantial factors of the alleged injuries and/or damages sustained by plaintiff,” the answer’s new matter stated.
“If plaintiff sustained injuries and/or damages as alleged, said allegations being specifically denied, said injuries and/or damages were caused by plaintiff’s failure to exercise reasonable care under the circumstances and, therefore, plaintiff’s claims are barred and/or limited to the extent of plaintiff’s own comparative or contributory negligence.”
UPDATE
Counsel for Capenos replied to the defendant’s new matter on Jan. 22, denying it in its entirety (aside from two paragraphs which were withdrawn, upon mutual stipulation of the parties).
“The allegations contained within…defendant’s new matter constitute conclusions of law to which no response is required. To the extent a response is deemed necessary, the allegations contained within…defendant’s new matter are denied in accordance with Pennsylvania Rule of Civil Procedure 1029(e),” the plaintiff’s reply stated.
The paragraphs that were withdrawn from the new matter dealt with pleading defenses of accord and satisfaction, arbitration and award, latches, release, res judicata, statute of limitations and waiver, plus reservation of the right to amend the answer and new matter to assert any further affirmative defenses that discovery may reveal as appropriate and proper.
For multiple counts of negligence, the plaintiff is seeking damages in excess of the arbitration limits of Allegheny County, costs and Pennsylvania Rule of Civil Procedure 238 delay damages, plus a trial by jury.
The plaintiff is represented by Brad D. Trust and Amber L. Manson of Edgar Snyder & Associates, in Pittsburgh.
The defendants are represented by Samuel G. Dunlop and Thomas P. McGinnis of Thomas Thomas & Hafer, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-010087
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com