MEDIA – A landscaping services company is looking to obtain summary judgment in a lawsuit brought by a Delaware County man, who alleged negligence on its part and others led to his mother suffering a fall on the property, and which caused injuries whose repairs later led to her death.
Gary L. Essaf Jr. (individually and as administrator of the Estate of Kathleen Essaf, deceased) of Broomall first filed suit in the Delaware County Court of Common Pleas on Feb. 4, 2021 versus Danella Realty and Management Company, Inc. and Hilltop Condominium Association II, both of Blue Bell.
“On April 27, 2020, the premises at 5200 Hilltop Drive, Apartment I-18 Brookhaven, PA 19015 was owned by plaintiff’s decedent, Kathleen Essaf, and was located in the subject condominium complex. On April 27, 2020, plaintiff’s decedent, Kathleen Essaf, was lawfully traversing a common area of defendant’s property. Specifically, plaintiff was traversing a strip of glass located between Dogwood Lane and Park Lane,” the suit stated.
“At that time, plaintiff was suddenly and without any warning caused to trip/slip and fall due to a dangerous and/or defective condition, which existed of and about the ground, namely a significantly deep hole in the grassy common area of the subject condominium complex, which was concealed by long grass, thereby causing plaintiff’s foot to fall into the hole and causing plaintiff to injure her lower leg and foot, and then fall and impact the ground, causing her to sustain serious and permanent injuries.”
The suit added that the injuries to the decedent were caused as the result of the combined negligence of the defendants, and were not caused by any act or failure to act on the part of the decedent.
“As a result of the aforementioned incident, plaintiff’s decedent was caused to sustain serious and permanent injuries in, on and about her person, including but not limited, to injuries to her foot and ankle which caused her a great deal of embarrassment, humiliation, pain, suffering, agony and inconvenience, which is permanent in nature and character,” per the suit.
“As a result of the aforementioned incident and resulting injuries, plaintiff’s decedent, was caused to suffer serious complications, specifically but not limited to, a pulmonary embolism and death in connection with the required surgery performed on her ankle, in an effort to heat and owe herself of these injuries.”
The defendants filed an answer and new matter in the action on April 23, 2021, generally denying the plaintiff’s allegations as “conclusions of law to which no responsive pleading is required”, but otherwise, “all allegations are specifically denied and strict proof thereof is demanded at the time of trial.”
In new matter, a number of affirmative defenses were put forward.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff’s claims may be barred in whole or in part by the applicable statute of limitations. Plaintiff failed to join an indispensable parties without which this action may not proceed. Plaintiff’s claims are barred and/or limited by the Pennsylvania Comparative Negligence Act and/or the doctrine of contributory negligence,” per the new matter.
“Answering defendants assert a right of set off against any other amounts received by plaintiffs in connection with any claims relating to or arising out of the issues raised in this litigation. Plaintiff’s complaint is barred and/or reduced pursuant to any releases or settlement agreements that plaintiffs have executed or will execute with any person or entity related to arising out of the issued raised in this litigation. Any judgment and/or verdict obtained by plaintiff must be reduced and/or off set by and collateral benefits received by plaintiff. Answering defendants did not act negligently or without regard for others at any time. Answering defendants owed no duty of care to plaintiff and/or plaintiff’s descendant.”
After an amended complaint was filed on Jan. 28, defendants Hilltop Condominium Association II and Danella Realty Management Company, Inc. filed an answer and new matter to it on Feb. 17.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff’s claims may be barred in whole or in part by the applicable statute of limitations. Plaintiff failed to join an indispensable party without which this action may not proceed. Plaintiff’s claims are barred and/or limited by the Pennsylvania Comparative Negligence Act and/or the doctrine of contributory negligence,” per the second answer’s new matter, in part.
“Answering defendants assert a right of set-off against any other amounts received by plaintiff in connection with any claims relating to or arising out of the issues raised in this litigation. Plaintiff’s complaint is barred and/or reduced pursuant to any releases or settlement agreements that plaintiff has executed or will execute with any person or entity related to arising out of the issued raised in this litigation. Any judgment and/or verdict obtained by plaintiff must be reduced and/or off-set by and collateral benefits received by plaintiff. Answering defendants did not act negligently or without regard for others at any time. Answering defendants owed no duty of care to plaintiff and/or plaintiff’s decedent.”
The answering defendants also sought a cross-claim in their favor for contribution and indemnity against their amended lawsuit co-defendant, JMT Landscaping Services, Inc.
UPDATE
JMT filed a motion for summary judgment seeking the case to be dismissed, on Sept. 27.
“Under Pennsylvania’s Survival Statute, all causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. The survival action has its genesis in the decedent’s injury, not his death. In the survival action, the decedent’s estate sues on behalf of the decedent, upon claims the decedent could have pursued but for his or her death. In other words, plaintiff’s survival claims against JMT in this matter stem from the claims his decedent could have brought against JMT for her pain and suffering as a result of the alleged negligence of JMT and the other defendants,” the summary judgment motion stated, in part.
“Plaintiff is unable to establish that JMT had or breached any duty to his decedent. As discussed above, JMT had no duty under its contract to inspect for, warn against, or correct any defects in the common areas of the Hilltop complex. Its contract was for grass cutting, weed-whacking, pruning and fall and spring cleanup only. Crystal Allen, Hilltop and Danella’s corporate designee, testified that Hilltop and Danella did not expect JMT to inspect for and repair holes in the grassy common areas at the complex and that was not a part of JMT’s contract.”
JMT alleges it had no legal duty to look for or repair any holes in the area at issue.
“This testimony was supported by Joe Tate, owner of JMT. Tate did not inspect for holes in the common areas because that was not part of his contract. Moreover, neither Tate, nor any of his employees, ever noticed any holes while performing JMT’s contracted work and no person ever asked Tate or his company to fill in any holes. Because JMT had not duty to inspect for, warn against or repair any holes in the grassy common area, plaintiff is unable to establish essential elements of his negligence, wrongful death and survival actions. JMT is therefore entitled to summary judgment in its favor,” the motion continued.
For counts of negligence, survival and wrongful death, the plaintiff is seeking, jointly and/or severally, damages in excess of $50,000 and in excess of the prevailing limits of arbitration, plus interest, costs and delay damages and a trial by jury.
The plaintiff is represented by Justin M. Bernstein of Kenneth R. Schuster & Associates, in Media.
The defendants are represented by Andrew L. Riemenschneider and Justin P. Lindsey of the Law Offices of Andrew L. Riemenschneider in North Wales, plus Mark T. Riley and Michael S. Miller Jr. of Marshall Dennehey Warner Coleman & Goggin, in King of Prussia.
Delaware County Court of Common Pleas case CV-2021-001358
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com