MEDIA – A local woman who alleged she was seriously injured at a Flag Day event in the Borough of Yeadon two years ago when the support poles of an event tent were uprooted from the ground by a wind gust and struck her in the head, refutes attempts from the Borough to dismiss or limit her counts against it.
Verlecia White of Philadelphia first filed suit in the Delaware County Court of Common Pleas on May 25 versus the Borough of Yeadon, its Manager Mironda Presswood, its Event Coordinator Ricardo Bostic and John Does 1-10, of Yeadon.
“On June 8, 2019, Yeadon Borough held its annual Flag Day ceremony at Kerr Park as aforesaid open to the public, and where defendants specifically invited and encouraged the public to attend and participate in the festivities. On June 8, 2019, the plaintiff, Verlecia White, was an invitee and intended the Flag Day ceremonies at Kerr Park,” the suit said.
“Prior to the Flag Day ceremonies on June 8, 2019, defendant Yeadon Borough, acting by and through its agents, servants, workmen and/or employees and/or the John Doe defendants, did erect a certain white party/event tent on Kerr Field underneath which invitees, including the plaintiff, were seated having refreshments. At all times herein concerned, the tent was carelessly and negligently anchored, secured and tethered to the ground by stakes which had been driven into the ground and then tied with rope to the tent.”
The suit said when the plaintiff was seated under the tent, a foreseeable wind gust caused the tent to move and shift, causing the tent poles and/or tent stakes to come loose from the ground and/or their base one of which struck the plaintiff in the back and top of her head, causing her to sustain numerous bruises and contusions and injuries.
“At no time herein did the plaintiff contribute in any way to the accident. Plaintiff alleges that the defendants herein are liable for the plaintiff’s injuries as a result of the dangerous condition consisting of the failure to properly and safely secure and anchor the tent and its poles into the ground, which conduct was the proximate cause of the injuries to the plaintiff,” per the suit.
“Solely as a result of the aforesaid negligence and carelessness of the defendants herein, the plaintiff, Verlecia White, suffered serious and permanent personal injuries when the tent moved causing a stake and/or pole/poles to pull loose and hit her in the head, causing her to sustain headaches and neck pain with numbness and tingling traveling to the hands and low back and into both legs as mid-back pain, bilateral shoulder pain and bilateral knee pain, as well as a severe shock to her nerves and nervous system, causing severe significant emotional distress to the plaintiff.”
The defendants filed preliminary objections in the matter on June 23, wanting to dismiss a number of points from and parties to the case:
• All claims against individual defendants, Mironda Presswood and Ricardo Bostic, should be dismissed with prejudice;
• All claims for recklessness should be dismissed with prejudice;
• All claims for failure to supervise, failure to inspect and boilerplate averments of negligence in paragraph 17(i), (j), (o) and (q) should be dismissed with prejudice;
• The complaint should be dismissed without prejudice to the plaintiff to file an amended complaint if there is a factual basis to assert that the tent was a fixture and thus considered real property under the Tort Claims Act, 42 P.S. 8542;
• The Affidavits of Service as to fictitious defendants John Doe 1 and 2 and served upon the Borough of Yeadon should be stricken and dismissed.
“There are no allegations against either Presswood or Bostic that they had any personal involvement in the erection of the tents or were in any way personally responsible for the accident or negligence, and the claims are asserted against them simply based upon their alleged supervisory positions at the Borough,” the objections stated.
“In the absence of any claims of personal negligence, these parties must be dismissed. Failure to supervise claims are not an exception to the Tort Claims Act which requires personal negligence of an employee.”
The defendants additionally argued that further aspects of the lawsuit should be removed.
“Paragraph 17 of the complaint asserts a claim against all defendants for recklessness. Claims of recklessness are in the nature of intentional torts, are not negligence and are not cognizable under the Tort Claims Act, 42 P.S. There are no claims as to any individual defendant that would implicate a claim of negligence,” the objections stated.
“Plaintiff has submitted a pleading consisting of legal conclusions without factual predicate and in violation of the rules regarding catch-all pleadings set forth in Connor v. Allegheny General Hospital in paragraph 17. The Borough defendants’ demurrer to the legal conclusions, boilerplate, catch-all claims made in paragraph 17.”
UPDATE
White’s attorney filed a reply to the defendant’s answer and new matter on July 8, it refuted the Borough’s attempt to limit or eliminate its own liability in this matter.
“Defendant Borough of Yeadon cannot act in a vacuum. It can only carry out its statutory responsibility for the care, custody and control of real estate through people. It provided its statutory responsibility of the care, custody and control of the real estate through its agents, servants, workmen and/or employees. Defendants are responsible for the care, custody and control of the real estate. Inherent in the definition of and the context of care, custody and control of real estate is the duty to supervise the care, custody and control of the realty involved,” the reply stated.
“However, nowhere is there a prohibition of a claim of recklessness. Defendants’ statement that ‘claims of recklessness are in the nature of intentional torts’ is a legal conclusion unsupported by any case law. Nowhere is there a prohibition against claims of recklessness under the Tort Claims Act as averred.”
For counts of negligence, the plaintiff is seeking damages in excess of $50,000.
The plaintiff is represented by John J. DiPaul II of Haber DiPaul, in Philadelphia.
The defendants are represented by Suzanne McDonough of Holsten Associates, in Media.
Delaware County Court of Common Pleas case CV-2021-004694
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com