PITTSBURGH – A local man stands by claims he suffered lacerations and significant tendon damage when he volunteered to help a retail store employee separate shopping carts and his hand got in the way.
Robert Bryden of Etna first filed suit in the Allegheny County Court of Common Pleas on Nov. 21 versus Ollie’s Bargain Outlet, Inc. of West Mifflin.
“On Dec. 23, 2020, the plaintiff was a business invitee on the premises of the defendant, specifically in the parking lot, when plaintiff had seen one of defendant’s employees struggling with shopping carts that were stuck together. As plaintiff was walking into defendant’s store, he asked the defendant’s employee if he needed assistance in separating the carts and the employee responded affirmatively,” the suit said.
“As plaintiff and the defendant’s employee pulled and struggled on opposite sides of the intertwined carts in a backwards and forwards manner, the plaintiff’s left 5th finger was significantly lacerated.”
The suit added that the defendant was negligent in failing to provide warning to the plaintiff that the activities could cause injury, in failing to decline the plaintiff’s offer to assist and in causing injury to the plaintiff, among other claims.
“As a direct and proximate result of the aforementioned incident, the plaintiff sustained the following injuries, some or all of which are or may be permanent: a. Lacerations of the soft tissue, nerves, muscle, and a complete separation of the flexor digitorum profundus tendon of the left 5th finger with retraction to the palm requiring surgical repair; Numbness, tingling, pain, loss of strength and range of motion or the left 5th finger; Other injuries as the medical records may reveal or which have yet to be diagnosed,” the suit stated.
“As a direct and proximate result of the incident described, the plaintiff sustained the following damages, some or all of which are or may be permanent: He has endured, and will continue to endure great pain, suffering, inconvenience, embarrassment, mental anguish, monetary expenditures for the care of his injury, and emotional and psychological trauma; He has been, and will be required to, expend large sums of money for medical treatment and care, medical supplies, rehabilitation and therapeutic treatment, medicines and other attendant services; His general health, strength and vitality have been impaired; He has been and will in the future be unable to enjoy various pleasures of life that he previously enjoyed, and he has suffered from a loss in wages.”
On Jan. 17, the defendant answered the complaint and provided new matter denying its responsibility for the events and injuries in question.
“Plaintiff’s injuries, if any, were caused by the negligence and/or liability producing acts or omissions of parties or other entities over whom Ollie’s neither had control, nor the ability to control. Plaintiff’s complaint fails to state a cause of action upon which relief can be granted. At the time of the alleged incident, Ollie’s did not have actual or constructive knowledge of the existence of any dangerous condition at the premises discussed in the complaint. Plaintiff voluntarily undertook efforts to assist with the shopping carts and was not asked to assist. Plaintiff assumed the risk of potentially injury when he voluntarily undertook assistance with the shopping carts,” the new matter stated.
“Any danger or hazard encountered by plaintiff at the premises discussed in the complaint at the time of the alleged incident was open and obvious. Plaintiff’s claims are barred by the applicable statues of limitations or statutes of repose. Plaintiff’s claims are barred by the doctrines of laches, waiver and/or release. Plaintiff’s claims are barred, in whole or in part, because Ollie’s did not owe a duty to the plaintiff or breach any duty owed to plaintiff. If plaintiff suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately caused and contributed to by the breach, conduct, acts, omissions, activities, carelessness, recklessness, negligence and/or intentional misconduct of others and not by Ollie’s or any of its agents, contractors, servants, workmen, employees or representatives.”
Among additional affirmative defenses, the defendant countered that the plaintiff’s claims are or may be barred or limited by application of the terms and provisions of Pennsylvania’s Fair Share Act, and that the plaintiff was negligent and caused his own injuries.
UPDATE
Plaintiff counsel replied to the answer and new matter on March 20, denying it in its entirety.
“To the extent that any averment in Paragraphs 12 through and including 37 of defendant’s new matter constitutes conclusions of law, no response to said averments is necessary,” the reply stated.
“To the extent that any averments in Paragraphs 12 through and including 37 of defendant’s new matter constitute averments of fact, said averments are denied generally pursuant to the provisions of Pennsylvania Rule of Civil Procedure No. 1029(e) and also under Pennsylvania Rule of Civil Procedure No. 1029 (c) on the grounds that after reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments. By way of further response, plaintiff hereby re-avers and incorporates his complaint as if fully set forth herein.”
For a lone count of negligence, the plaintiff is seeking in excess of the jurisdictional limits for compulsory arbitration, together with court costs, interest and all other relief the Court may deem just and equitable.
The plaintiff is represented by G. Christopher Apessos of Apessos Law, in Pittsburgh.
The defendant is represented by Michael J. Alivernini of Chartwell Law, in Philadelphia.
Allegheny County Court of Common Pleas case GD-22-014322
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com