PITTSBURGH – Family Dollar has argued for a second time that an injury plaintiff’s allegations of recklessness on its own part have not been supported with requisite specificity under the law.
Charles Lyles of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Oct. 30 versus Family Dollar Stores of Pennsylvania, LLC of Chesapeake, Va. and Family Dollar Store No. 1982, of Pittsburgh.
Lyles averred he was shopping in the subject store on April 9, 2019, when the dangerous condition presented itself and the subject incident took place.
“This aforesaid dangerous condition consisted of a box/crate/tote and/or otherwise a dangerous trip hazard in a walkway and/or pedestrian pathway that created an unsafe, uneven condition upon the site and a neglect to have said situation fixed, repaired and/or otherwise properly remedied. As plaintiff was carefully and lawfully walked on the aforementioned area of the site, he encountered and/or came into contact with the aforesaid dangerous condition causing him to trip and fall and thereby sustain the injuries and damages complained of,” the suit said.
“Due to the negligence, carelessness and/or recklessness of defendant in causing, creating and/or failing to correct the aforesaid dangerous condition, plaintiff came into contact with said condition and thereby fell, thus sustaining the injuries and damages complained of.”
The plaintiff alleged that the defendant “caused and/or permitted the dangerous, hazardous and unsafe condition to exist and remain on the subject area of the site.”
“As a direct and proximate result of the negligence, carelessness and/or recklessness of the defendant, Family Dollar, plaintiff sustained the following injuries and damages, some or all of which may be of a permanent nature: Severe pain and discomfort to the upper right extremity, including laceration and open dislocation of the fifth finger, severe re-injury to the upper right extremity and a second and third dislocation of the fifth finger, severe pain and discomfort to the head, severe injury to the head, including laceration to the forehead, severe pain and discomfort to the left shin, including swelling and edema, severe emotional distress and shock to his nerves or nervous system,” per the suit.
“As a result of his injuries, plaintiff has undergone and continues to undergo great pain and suffering and inconvenience, may have suffered a permanent disability and permanent impairment of his earning power and capacity and may have sustained a permanent diminution of the ability to enjoy life and life’s pleasures.”
Family Dollar filed preliminary objections on Nov. 20, seeking to strike allegations of recklessness (a cause for the award of punitive damages), due to their allegedly being insufficiently pled.
“In this case, plaintiff has failed to allege any material facts supporting a claim against moving defendants for recklessness. Plaintiff’s complaint is silent as to any facts, let alone material facts, which would elevate moving defendant’s alleged actions or inactions to levels constituting recklessness or conscious disregard of a known risk,” the objections, stated, in part.
Family Dollar’s counsel argued that the Superior Court has upheld the trial court’s dismissal of a recklessness claim pursuant to defendant’s preliminary objections, when the complaint only included “conclusory statements that the conduct of the defendants was ‘willful, wanton and reckless, without allegations of fact in support thereof.”
UPDATE
The plaintiff responded to the preliminary objections on Jan. 13, contending it is proper to plead recklessness and incorporate such pleas into the negligence averments within the complaint, under state law.
On Feb. 10, Family Dollar replied with a brief in support of its preliminary objections.
“In this case, plaintiff has failed to allege any material facts supporting a claim against moving defendants for recklessness. Plaintiff’s complaint is silent as to any facts, let alone material facts which would elevate moving defendant’s alleged actions/inactions that would rise to the levels constituting recklessness or conscious disregard of a known risk. Plaintiff does not allege that Family Dollar purposefully or intentionally placed the alleged box/crate/tote and/or otherwise dangerous condition in the alleged area,” the objections brief stated.
“Neither has plaintiff set forth any allegations regarding the duration of the dangerous condition, previous complaints received by Family Dollar relating to the alleged condition, or other evidence showing a heightened disregard of pedestrian safety. Accordingly, moving defendant should not be subject to allegations of heightened wrongful conduct as the facts alleged are insufficient to support those claims.”
For two counts of negligence, the plaintiff is seeking damages in excess of $35,000, plus a trial by jury.
The plaintiff is represented by David K. Houck of Ogg Murphy & Perkosky, in Pittsburgh.
The defendants are represented by Christopher D. Gee and Marc H. Perry of Post & Schell, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-011252
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com