MEDIA – A Lansdale woman who alleged that her local Big Lots store created and failed to repair a tripping hazard on its premises, which led to her falling and becoming seriously injured while she was shopping there, has settled her claims.
Dianitza Nieto-Kuller first filed suit in the Delaware County Court of Common Pleas on Feb. 4, 2021 versus Big Lots Store, Inc. (c/o CT Corporation System), of Harrisburg.
“On or about May 27, 2019, plaintiff was lawfully upon the premises shopping, exercising all due care and caution for her safety, walking in one of the premises’ aisles open and intended for business invitees’ use,” the suit said.
“At the aforesaid time and location, as plaintiff walked with all due care and caution through the aisle, she suddenly and without warning tripped over a wooden frame that was lying in the aisle, and fell, forcefully striking her head and body on the ground, suffering personal injuries. Upon information and belief, the aforesaid wooden frame which had fallen off of an overloaded restocking cart left unattended by an agent, ostensible agent, workman, employee, servant and/or borrowed servant of defendant Big Lots.”
The suit said the aforesaid wooden frame created a tripping hazard that was not readily visible to customers, such as plaintiff, when they walked in the premises.
“Defendant Big Lots’ negligence and carelessness, and the resulting dangerous condition of the premises were the direct and proximate cause of plaintiff’s fall and resulting injuries. At all times material hereto, plaintiff was exercising due care and caution for plaintiff’s safety and in no manner contributed to her fall or her resulting injuries,” according to the lawsuit.
“As a direct and proximate result of the negligence and carelessness of defendant Big Lots, the resulting hazardous condition, and plaintiff’s subsequent fall and her resulting injuries, plaintiff suffered and/or may continue to suffer severe and potentially permanent physical injuries and scarring, severe pain, anxiety, depression, emotional distress, embarrassment, loss of life’s pleasures and enjoyment of life.”
Counsel for Big Lots answered the complaint on March 9, 2021, denying its assertions. In new matter, the retailer further made affirmative defenses to the plaintiff’s allegations.
“Plaintiff’s alleged claims are barred or limited under the doctrine of comparative negligence, the doctrine of assumption of the risk, the doctrine of estoppel, the applicable statute of limitations and plaintiff’s injuries, to the extent that they exist as alleged, are solely the result of plaintiff’s own negligence,” per the new matter, in part.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s claims are barred or limited by her failure to mitigate her damages. 42. Answering defendant did not violate any applicable code, ordinance, regulation, statute or law, did not fail to warn of any allegedly dangerous condition and did not have any duty to warn of any allegedly dangerous condition.”
UPDATE
On March 11, plaintiff counsel filed to the Court that the instant case had been settled. Terms of the settlement were not disclosed.
“Kindly mark the above-captioned matter settled, discontinued and ended with prejudice upon payment of your costs only,” per the praecipe.
The plaintiff was represented by Ryan J. Jablonski of Ostroff Law, in Blue Bell.
The defendant was represented by Gabriel C. Major of Mintzer Sarowitz Zeris Ledva & Meyers, in Philadelphia.
Delaware County Court of Common Pleas case CV-2021-001356
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com