PHILADELPHIA – Designer Shoe Warehouse has discounted liability for injuries a Philadelphia woman claims she suffered at one of its suburban store locations, when she fell into an aisle’s endcap shelf.
Lauren Holley of Philadelphia first filed suit in the Philadelphia County Court of Common Pleas on Feb. 17 versus Designer Shoe Warehouse and Wynnewood Shopping Center of Wynnewood, Federal Realty Investment Trust of North Bethesda, Md. and Federal Realty Investment Trust, of Harrisburg.
“On or about May 26, 2021, plaintiff was a business invitee inside the DSW Designer Shoe Warehouse commonly known as the DSW located at 80 E. Wynnewood Road, Wynnewood, PA 19096. While walking in the aisle inside the store, she was caused to slip, trip and fall into the endcap shelf which was an unreasonably dangerous condition of said premises,” the suit said.
“As a direct and proximate result of the aforesaid incident, plaintiff sustained a right hand and right shoulder injury (i.e., right shoulder rotator cuff tear), by reason of which she has experienced and will continue to experience pain and suffering, loss of enjoyment of life’s pleasures, embarrassment and humiliation, and disfigurement.”
The suit maintained that the defendants’ collective negligence caused the incident to occur, by way of not providing a reasonably safe walkway for individuals such as the plaintiff and failing to keep the premises in a reasonably safe condition, among other reasons.
“At all times material hereto, defendant's acts and/or omissions were accomplished by defendant’s agents, workers, representatives and/or employees who were then and there acting and/or failing to act within the scope and course of their agency and/or employment,” the suit stated.
“At all times material hereto, defendant owned, possessed, controlled, managed, supervised, repaired, inspected and/or maintained the aforesaid premises, including but not limited to the area where the subject incident occurred.”
The defendants then removed the case to the U.S. District Court for the Eastern District of Pennsylvania on March 23, due to the plaintiffs rejecting an offer to cap the amount of demanded damages.
“The plaintiff is, and at the time of the filing of this action, a citizen of the State of Pennsylvania. Defendant Designer Brands, Inc., is an Ohio corporation with a principal place of business in the State of Ohio. Defendant Federal Realty Trust Inc., is a Maryland corporation with a principal place of business in Maryland. Under 28 U.S.C. Section 1441(b), in determining whether the Court has original jurisdiction based upon diversity of citizenship, the citizenship of any defendant sued under a fictitious name is to be disregarded. In her complaint, plaintiff alleges she sustained severe personal injuries and damages as customer in a store owned by defendant. Thus, there is complete diversity of citizenship between plaintiff and defendant,” the removal notice stated.
“On March 16, 2022, counsel for defendant sent a letter to plaintiff’s counsel to request that they sign a stipulation to cap plaintiff’s recoverable damages at $75,000. To date, plaintiff has not agreed to sign the stipulation. Upon information and belief, defendant is filing said notice in compliance with the requirements under 28 U.S.C. Section 1446(b). By reason of the foregoing, a removal of the action to this Court is proper, under 28 U.S.C. Sections 1332(a), 1441(a). The statutory requirements having been met; the state action is properly removed to U.S. District Court for the Eastern District of Pennsylvania.”
The venue of the case changed, however, when it was reported that all parties had indeed come to an agreement to limit damages in the case to $75,000 or less. DSW’s counsel then filed a motion to remand the case to state court on March 29.
“On or about Feb. 17, 2022, plaintiff commenced an action in state court alleging personal injuries as a result of a trip and fall that occurred on occurred on May 26, 2021, inside of a Designer Brands, Inc. shoe store. Thereafter, moving defendant removed this case to this Court pursuant to 28 U.S.C. Section 1446 on March 23, 2022,” the motion stated.
“Thereafter, on March 24, 2022, the parties entered into a stipulation to limit plaintiffs’ potential recovery to $75,000 or less. In light of the stipulation limiting any potential recovery to $75,000 or less, the parties respectfully request this Honorable Court remand this matter from federal court to the Philadelphia County Court of Common Pleas.”
U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson then approved the remanding of the case on March 30.
“Upon consideration of the motion to remand of defendant Designer Brands, Inc., and in light of the parties’ stipulation to limit plaintiff’s potential recovery, it is ordered that the motion is granted, and the case is remanded to the Philadelphia County Court of Common Pleas,” Wolson said.
UPDATE
DSW provided an answer to the complaint on July 19, denying the complaint’s allegations and putting forward six affirmative defenses.
“Plaintiff’s claims may be barred by the applicable statute of limitations. Plaintiff’s claims may be barred in whole or in part or reduced by the contributory and/or comparative negligence of the plaintiff. The negligent acts or omissions of other individuals and/or entities may have constituted intervening or superseding causes of the damages and/or injuries alleged to have been sustained by plaintiff. Furthermore, answering defendant had no control over such acts or omissions, and/or acts or omissions were not due to or caused by fault, lack of care, negligence or breach of any duty of the answering defendant,” per the defenses.
“Plaintiff failed to mitigate his damages. Plaintiff’s claims are barred and/or limited pursuant to the doctrine of assumption of risk and because the plaintiff voluntarily assumed the known risk factor. By way of further defense, answering defendant specifically reserves the right to plead hereafter as further new matter those additional affirmative defenses including, without limitation, those set forth in Pennsylvania Rule of Civil Procedure 1030, that continuing investigation, discovery and introduction of evidence at trial may render applicable to the claims and causes of action plaintiff declared in his complaint.”
For multiple counts of negligence, the plaintiff is seeking damages, individually, jointly and/or severally, in an amount not in excess of $50,000, together with interest, costs of suit and such other relief as this court deems just.
The plaintiff is represented by William J. Faust II of the Law Offices of William J. Faust II, in Philadelphia.
The defendants are represented by Justin A. Bayer of Kane Pugh Knoell Troy & Kramer, in Norristown.
Philadelphia County Court of Common Pleas case 220201917
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01116
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com