PITTSBURGH – A Fayette County minor who alleged that she was seriously injured at her local Wal-Mart store when she slipped on yogurt which had been dropped onto the floor, has settled claims against the retail giant.
A.N. (a minor, by and through Carissa Matty, her parent and natural guardian) initially filed suit in the Fayette County Court of Common Pleas on Dec. 3, 2020 versus Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust, of Bentonville, Ark.
“On Nov. 7, 2015, plaintiff was walking in a carefully and prudent way in the aisle/area where yogurt was sold when suddenly, and without warning. Plaintiff slipped on yogurt that had been spilled onto the floor. At all times relevant hereto, plaintiff acted with due care, attention, and regard for plaintiff’s own safety and well-being,” the suit said.
“Defendants were, or in the exercise of reasonable care should have been, aware that yogurt spilled onto the floor which was devoid of proper cautionary signage and clean-up for an unreasonably long time, more likely than not, could create a dangerous condition to business invitees in the store, such as plaintiff.”
The plaintiff alleged the store had actual knowledge of prior incidents wherein yogurt or other liquids were spilled on the floor in customer areas and, specifically, the area where plaintiff fell, and the unreasonably dangerous condition that such spills constitute.
“As a result of the slip, plaintiff sustained serious injuries, including but not limited to: Forefoot supinatus of the right lower extremity; Pes planus of the right lower extremity; Hallux abductovalgus of the right lower extremity; Salter-Harris fracture of right distal tibia; Scarring and permanent disfigurement; A limp which may be permanent in nature; Injury with damage to the bones, joints, ligaments, tendons, nerves, muscles and/or soft tissues including stiffness, loss of range of motion, soreness, and pain; Emotional pain and suffering, fear, shock, fright, embarrassment, mental anguish, anxiety and loss of well-being; and other severe and/or permanent injuries,” according to the lawsuit.
“Plaintiff has undergone numerous corrective surgeries to his/her right leg, ankle, and/or foot, has already incurred medical bills and expenses as a result of the treatment sustained, such to be borne by his/her parent on his/her behalf. Plaintiff will likely be required to undergo additional surgeries/treatment and will incur additional medical expenses, as he/she is soon reaching the age of majority. Therefore, plaintiff brings the instant action seeking an award of compensatory damages to the full extent allowed by applicable law.”
After the case was removed to the U.S. District Court for the Western District of Pennsylvania on Jan. 4, 2021, an answer in the matter was filed more than five months later on June 23, 2021, in which Wal-Mart denied liability for the subject incident and put forth 11 separate affirmative defenses.
“Plaintiff’s complaint fails to state a cause of action upon which relief can be granted as to Wal-Mart. Plaintiff’s claim is limited to, barred by, and subject to the Pennsylvania Comparative Negligence Act 42 Pa.C.S.A. Section 7102 et seq. and any presumptive non-negligence given plaintiff’s age at the time of the incident is a rebuttable presumption which will be established here. Wal-Mart pleads the affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence,” the defenses read, in part.
“The actions and/or inactions of plaintiff was the sole cause or, in the alternative, the intervening and/or superseding cause of the incident and all alleged injuries and/or damages in the complaint. Plaintiff’s injuries and/or damages were pre-existing in nature and did not result from any alleged actions and/or inaction of Wal-Mart. Plaintiff failed to mitigate her injuries and/or damages.”
UPDATE
On Jan. 20, plaintiff counsel filed a stipulation of dismissal explaining the case had been settled and requesting it be dismissed.
“The parties, by and through their respective counsel, and stipulate to the voluntary dismissal of the above matter, with prejudice, based upon the agreed-upon settlement of the plaintiff’s claims against the defendant named herein,” the stipulation read.
Three days later, on Jan. 23, U.S. District Court for the Western District of Pennsylvania Judge David S. Cercone granted the case’s dismissal.
For a count of negligence, the plaintiff is seeking damages, jointly and severally, compensatory damages in an amount in excess of the limits of compulsory arbitration, plus costs of suit, applicable interest, damages for delay and such other or additional relief as this Honorable Court may deem appropriate.
The plaintiff was represented by Noah P. Fardo, William F. Rogel and Jaclyn M. DiPaola of Flaherty Fardo Rogel & Amick, in Pittsburgh.
The defendant was represented by Rebecca Sember Izsak and Brook T. Dirlam of Thomas Thomas & Hafer, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00010
Fayette County Court of Common Pleas case 1777 of 2020 GD
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com