PHILADELPHIA – A plaintiff who claimed to be injured on the sidewalk outside a Bucks County Costco store in a federal lawsuit has settled his claims with the bulk retailer.
Richard Mather of Richboro first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 4 versus Costco Wholesale Corp. (c/o CT Corporation) of Harrisburg, John Does 1-10, Jane Does 1-10 and XYZ Corporations 1-10
Mather was shopping at his local Costco Wholesale store in Warminster on Aug. 30, 2019, per the litigation.
“On Aug. 30, 2019, plaintiff was returning his shopping cart from the parking lot area to the designated return location at the entrance of the Costco building, when his foot came into contact with a depression of the sidewalk, known as the ‘truncated dome’ and was caused to lose his balance, tripping, stumbling and falling, sustaining serious and permanent injuries,” the suit said.
The plaintiff maintained that the defendants knew or should have known that the sidewalk was deficient and a dangerous condition.
“Plaintiff sustained severe and multiple injuries…including, but not limited to: Complex Region Pain Syndrome of the left lower extremity, requiring a series of nerve blocks and insertion of spinal cord pain stimulator, left foot and ankle pain with impact fracture, left knee pain, internal injuries of an unknown nature, severe aches, pains, mental anxiety and anguish, severe shock to his entire nervous system, exacerbation of all known and unknown pre-existing medical conditions, if any, and other injuries that will represent a permanent and substantial impairment of plaintiff’s bodily functioning, that substantially impairs plaintiff’s ability to perform his daily life activities, and the full extent of which is not yet known,” according to the lawsuit.
Counsel for Costco filed a motion to dismiss the case on Feb. 8, for failure to state a claim upon which relief could be granted – in specific reference to the plaintiff’s claims of recklessness.
“With no factual support, the complaint alleges that the defendant’s conduct was ‘reckless.’ The complaint also contains allegations of unspecified negligence. Finally, complaint also contains allegations of the violation of unspecified statutes, codes and laws. For these reasons, Costco seeks an order dismissing (1) All allegations of ‘reckless’ conduct; (2) Unspecified negligence language in paragraphs 16, 16(k), and 16(m); and (3) Allegations of the violation of unspecified statutes for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),” the dismissal motion read.
“There are simply no facts or indications of behavior pled in the complaint that would warrant allegations of reckless conduct. Merely pleading the legal words alone is not sufficient to support allegations of reckless conduct. There is nothing in the complaint that asserts that defendant knew or should have known that there was a ‘depression of the sidewalk.’ These alleged facts averred do not rise to the level of reckless conduct. For these reasons, plaintiff has failed to state a claim of reckless conduct and all allegations of recklessness should be dismissed with prejudice.”
UPDATE
After two amended versions of the complaint and a confidentiality stipulation were filed in past months, the litigation came to an end through settlement on Oct. 19. Terms of the settlement were not disclosed.
“It having been reported that the issues between the parties in the above action has been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is ordered that the above action is dismissed with prejudice, pursuant to agreement of counsel, without costs,” U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert said.
Prior to settlement and for a count of negligence, the plaintiff had been seeking damages in excess of $75,000, plus interest and costs of suit.
The plaintiff was represented by Charles S. Cooper and Samuel B. Weinstock of Cooper Schall & Levy, in Philadelphia.
The defendants were represented by Warren F. Sperling and Alexander D. Torres of Bennett Bricklin & Saltzburg, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00016
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com