PITTSBURGH – A Canonsburg man who fell on ice during a walk on the Three Rivers Heritage Trail one year ago has refuted the denials of liability and cross-claims issued by both the Friends of the Riverfront Group and the City of Pittsburgh.
Edward J. Mulholland III and Beth Mulholland first filed suit in the Allegheny County Court of Common Pleas on April 14 versus Friends of the Riverfront, Inc. (FOR), of Pittsburgh.
“On or about Jan. 23, 2022, at approximately 10 a.m., plaintiff was safely walking the trail on the premises. The location of the trail is approximately located adjacent to the property located at 230 West Station Square Drive, Pittsburgh, Pennsylvania 15219,” the suit said.
“Around the location plaintiff was walking, there was a thick sheet of ice that was permitted to accumulate on the paved surface of the trail. As plaintiff was safely walking on the paved surface of the trail, he was caused to slip and fall on the ice, causing his body to pitch forward and fall harshly to the ground.”
The suit explained that the plaintiff’s injuries were solely caused “by the carelessness, negligence and/or recklessness of the defendant, and the plaintiff’s injuries were in no manner or part whatsoever due to any failure or failure to act on the part of the plaintiff.”
“As a result of defendant’s negligence, plaintiff has suffered the following injuries: Ruptured quadriceps tendon, leg pain, hip pain and other injuries, the full extent of which may be unknown at this time,” the suit stated.
An amended complaint filed on June 21 saw Brookfield Properties (USA), LLC added as a defendant in the action.
FOR then filed an answer along with new matter and a counterclaim on July 21, denying liability for Mulholland’s injuries and asserting a cross-claim against its co-defendant, Brookfield Properties (USA).
“To the extent that discovery may establish, FOR believes and therefore avers that plaintiffs’ claims against are or may be barred, either in whole or in part, as a result of plaintiffs’ failure to comply with the applicable statute of limitations provisions. To the extent that discovery may establish, FOR believes and therefore avers that plaintiff-husband was knowledgeable about the premises in question and was familiar with the premises in question. To the extent that discovery may establish, FOR believes and therefore avers that if plaintiff-husband was injured as alleged, that said injuries were not due to the negligence, carelessness and/or recklessness of FOR, but due to plaintiff’s husband’s own negligence, carelessness and/or recklessness,” the answer stated, in part.
The answer continued that the husband-plaintiff failed to watch where he was walking, failed to make sure the area where he was walking was clear and unobstructed, failed to act as a reasonable and prudent person in doing same and failed to exercise requisite and required due care and caution.
“To the extent that discovery may establish, FOR believes and therefore avers that periodic inspections were made of the premises to make sure that the premises were safe of all conditions for business invitees and that, at the time of the events complained of, FOR had no notice or knowledge of any condition which may have provided a danger to any business invitee and/or other person under the circumstances then and there existing. To the extent that discovery may establish, FOR believes and therefore avers that if the complained-of condition is shown to have existed, which is denied, that said condition was not created by FOR and/or its agents, servants and/or employees and as such, FOR owed no duty of care to plaintiffs under the circumstances then and there existing.”
An Aug. 10 reply to the defendant’s new matter saw the plaintiffs deny it in its entirety.
“The averments contained in Paragraph 31-38 of defendant’s new matter constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are generally denied pursuant to Rules 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure,” the reply stated, in part.
After an amended version of the complaint named it as a defendant, Brookfield Properties (USA), LLC answered the suit on Sept. 23 and denied responsibility for Mulholland’s injuries.
“To the extent justified by the facts developed through pleadings, discovery, and/or evidence introduced at the time of trial, defendant pleads plaintiffs’ claims against it are or may be barred, either in whole or in part, as a result of plaintiffs’ failure to comply with the applicable statute of limitations provisions. To the extent justified by the facts developed through pleadings, discovery, and/or evidence introduced at the time of trial, defendant pleads plaintiff was knowledgeable and familiar with the premises in question,” the answer stated, in part.
“To the extent it is determined by the fact finder that any conditions on the property where plaintiff, Mr. Mulholland, allegedly fell were open and obvious, defendant pleads the lack of a specific legal duty to Mr. Mulholland as a complete bar to any recovery by plaintiffs in this action. To the extent justified by the facts developed in discovery and/or the evidence introduced at the time of trial, defendant pleads any subsequent physical or mental health condition of the plaintiff, unrelated to the alleged injuries received in this alleged incident, and to the extent such physical or other injuries caused or contributed to the life expectancy or adverse health of the plaintiff, as a complete or partial bar to any recovery by plaintiffs in this action and/or as a diminution of recoverable damages.”
In an Oct. 20 reply to the defense’s new matter, the plaintiff countered that said new matter “contains conclusions of law to which no response is necessary and to the extent that a response is deemed necessary, the averments contained in said paragraphs are denied and strict proof thereof is demanded at trial.”
That same day, the plaintiff motioned to join the City of Pittsburgh as a defendant, citing an agreement between Pittsburgh and Forest City to maintain the riverwalk and keep it free of debris.
Allegheny County Court of Common Pleas Judge John T. McVay Jr. granted the motion on Oct. 31. FOR was then given permission to file an amended complaint including the City of Pittsburgh as a defendant within the following 30 days.
In a Dec. 22 answer to the case, the City denied the complaint’s allegations in their entirety and provided a plethora of new matter in its own defense.
“Plaintiffs’ complaint fails to state a claim upon which relief can be granted. The Friends of the Riverfront’s complaint to join fails to state a claim upon which relief can be granted. The City denies all allegations of negligence as set forth in the plaintiffs’ complaint. The City denies all allegations of negligence as set forth in the Friends of the Riverfront’s complaint to join. The City did not fail in any duty or obligation that might have been owed to plaintiffs,” the new matter stated, in part.
“This lawsuit is governed by the Political Subdivision Tort Claims Act. The City raises the applicable protections of this Act. This lawsuit is also governed by the Recreational Use of Land and Water Act. The City raises the applicable protections of this Act. The City pleads immunity as an affirmative defense. The City pleads the public duty doctrine as an affirmative defense. Plaintiff-husband’s claims in this action, which claims are expressly denied, are governed, diminished and/or barred by his contributory and/or comparative negligence pursuant to 42 Pa.C.S. Section 7102.”
The City further argued that an entity other than itself reserved the right to temporarily close the premises in connection with its use in the area where the plaintiff-husband allegedly fell – and additionally levied cross-claims of liability against its co-defendants in this case.
UPDATE
On Jan. 10, the plaintiffs replied to the City’s new matter.
“The averment contained in Paragraph 20 of defendant’s new matter is an incorporation clause to which no response is required. The averments contained in Paragraphs 21 through 37 constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are generally denied pursuant to Rules 1029(d) and (e) of the Pennsylvania Rules of Civil Procedure,” the reply stated.
In separate filings, the co-defendants each denied liability for the plaintiffs’ injuries and redirected it towards one another.
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the applicable arbitration limits.
The plaintiffs are represented by Anthony C. Mengine and Brittani R. Hassen of Kontos Mengine Killion & Hassen, in Pittsburgh.
The defendant is represented by Bruce E. Rende of Robb Leonard Mulvihill, plus Robert J. Marino and Madison L. Miranda of Dickie McCamey & Chilcote and City Solicitor Krysia M. Kubiak and Assistant City Solicitor Mary Ann DiIanni of the City of Pittsburgh’s Law Department, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-004267
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com