PITTSBURGH – A Pittsburgh couple’s personal injury lawsuit brought against Walmart for injuries suffered by the wife-plaintiff when she fell on an unspecified liquid in the vestibule of the retailer’s West Mifflin store has been settled.
Theresa Allard and Charles Allard of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Sept. 14 versus Walmart, Inc., of Bentonville, Ark.
The Allards said Theresa was shopping in the Walmart store in West Mifflin on Jan. 30, 2019, when she fell on spilled water, liquid or a discarded substance on the concrete floor of defendant’s premises – which, additionally, the plaintiffs said was the result of the defendant’s negligence in failing to make the premises safe for shoppers, failing to remove the liquid and failing to warn shoppers of the dangerous condition.
As a result, the plaintiffs said Theresa suffered injury and damage to the nerves, joints intervertebral discs, blood vessels and surrounding soft tissue of the cervical spine, injury with damage to the bones, joints, ligaments, tendons, nerves, muscles and intervertebral discs of the lumbar and lumbosacral spine, injury with damage to the bones, joints, ligaments, tendons, nerves, muscles and surrounding soft tissues of the left and right shoulders, right hip joint and right wrist, assorted abrasions and contusions of the body and other severe injuries.
The plaintiffs added they will need to spend large sums of monies for medical and surgical attention, hospitalization, medical supplies, surgical appliances, medicines and attendant services.
On Oct. 28, it was stipulated that this matter will proceed forward only against Wal-Mart Stores East, L.P. and Walmart, Inc. was dismissed without prejudice.
The same day, Walmart’s counsel motioned to remove the case to the U.S. District Court for the Western District of Pennsylvania.
“As all of the parties to this action are diverse and the amount in controversy exceeds $75,000, this Court has original jurisdiction under the provisions of 28 U.S.C. Section 1332 and this case may be removed to this Court by this defendant pursuant to the provisions of 28 U.S.C. Sections 1441 and 1446,” the removal notice said.
Walmart’s counsel followed up with an answer to the complaint on Nov. 6, which denied the plaintiffs’ allegations and asserted 11 separate affirmative defenses.
“Plaintiffs’ complaint fails to state a cause of action upon which relief can be granted as to Wal-Mart. Plaintiffs’ claims are limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act. Wal-Mart pleads the affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence,” per the defenses.
“Plaintiff’s injuries and/or damages were pre-existing in nature and did not result from any alleged actions and/or inaction of Wal-Mart. Plaintiffs failed to mitigate their injuries and/or damages. To the extent that plaintiffs have received payment or entered into any release agreement for any alleged injuries, damages, or losses, plaintiffs are prohibited from pleading, proving, and/or recovering herein for any such injury, damage, or losses based on the defenses of set-off and/or release.”
Walmart further asserted that the injured plaintiff was directly and contributorily negligent for that occurrence.
UPDATE
A settlement was announced as having been reached in the case on Feb. 5, through an order by U.S. Magistrate Judge Patricia L. Dodge.
“The Court has been advised that this action has been resolved and the only remaining matters are the execution of a settlement document and compliance with the terms of the settlement agreement. It appears that there is no further action required by the Court at this time. Therefore, it is hereby ordered that the Clerk mark this case administratively closed, but this order shall not be considered a dismissal or disposition of this case,” Dodge said.
“Should further proceedings herein become necessary, any party may file an appropriate pleading in the same manner as if this order had not been entered. Further, the Court expressly retains jurisdiction in this matter to consider any issue that may arise during the period when settlement is being finalized, including, but not limited to, enforcing settlement.”
Prior to settlement and for counts of negligence and loss of consortium, the plaintiffs were seeking damages in excess of $35,000, and a trial by jury.
The plaintiffs were represented by Michael Balzarini of Balzarini & Watson, in Pittsburgh.
The defendant was represented by Rebecca Sember Izsak and Brook T. Dirlam of Thomas Thomas & Hafer, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01643
Allegheny County Court of Common Pleas case GD-20-009724
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com