PITTSBURGH – A defendant named in litigation brought by an Elizabeth man who fell through a floor opening and landed on a stack of drywall and a concrete floor, has denied liability for the incident and redirected liability to all of his remaining co-defendants.
Richard Pell and Phyllis Pell of Elizabeth first filed suit in the Allegheny County Court of Common Pleas on Feb. 24 versus Rivera & Latinos, LLC, Omar Rivera (individually and doing business as “Rivera & Latinos, LLC” a.k.a. “Rivera & Latinos Drywall, LLC”) of Monaca, and Martin Silva Hurtado of Aliquippa.
“The defendant, Rivera & Latinos, LLC, was a sub-contractor to an entity known as JG Drywall, the employer of the husband-plaintiff Richard Pell. The above-named defendants were retained along with others to install drywall at a custom home located at 111 Knight Bridge Drive, Venetia, Washington County, Pennsylvania, 15367. Said custom home and project was being constructed by and/or developed by Benjamin Marcus Homes. Venue is proper against the defendants pursuant to Pennsylvania Rules of Civil Procedure 2179 and 2103 as all defendants are either located or do significant business in Allegheny County, Pennsylvania,” the suit said.
“On or about March 19, 2021, plaintiff Richard Pell was lawfully on the job site in the course and scope of his employment for JG Drywall, performing an inspection of the ongoing installation of the drywall. At some time prior to March 19, 2021, a hole was cut in the floor at the job site, which was used to deliver and stock drywall into the basement of the home for later installation and completion. The hole, which was on the first-floor walking surface, had previously been covered with plywood. It is believed and, therefore, averred that sometime prior to plaintiff Richard Pell’s arrival and commencement of the inspection that agents, servants, employees, and/or subcontractors of the defendants removed the plywood floor covering from the first-floor walking surface.”
The suit added that the “removal of the plywood covering over the opening in the flooring created an uncovered, unmarked, un-barricaded open hole in the walking surface, which created an unreasonably dangerous condition at the job site and exposed persons, including the plaintiff, to an unreasonable risk of harm with a high probability of serious bodily injury or death.”
“None of the defendants provided notice of the hole, the removal of the plywood floor covering, and/or the existence of the aforementioned dangerous condition to plaintiff Richard Pell. There was no legitimate reason for the defendants to create the opening or remove the covering on the walking surface. During the course of plaintiff Richard Pell conducting his inspection process, plaintiff Richard Pell was caused to step through the floor opening, causing him to fall between 10 and 12 feet striking both the stacked drywall and the concrete floor in the basement of the job site,” the suit stated.
“As a direct and proximate result of the fall, plaintiff Richard Pell experienced, by way of illustration and not limitation, a loss of consciousness, shoulder and chest pain, difficulty breathing, and thoracic back pain. Upon arrival of emergency personnel at the scene, plaintiff Richard Pell was found to have an obvious deformity to the mid-shaft of the left humerus, restricted motion of the cervical spine, and due to his injuries, was transported to a landing zone for life flight transport to Allegheny General Hospital in Pittsburgh. Plaintiff Richard Pell was diagnosed as having a variety of bodily injuries including, but not limited to, injuries to both shoulders with lack of shoulder abduction or flexion, and weak internal and external rotation on the left with an axillary nerve neuropathy. In addition to the above-referenced injuries, plaintiff Richard Pell also suffered a right acromioclavicular joint separation.”
On March 16, the parties filed a stipulation that any allegations of recklessness against defendant Hurtado would be stricken, and that the plaintiffs would likewise agree not to pursue punitive damages against defendant Hurtado in this case.
“It is hereby stipulated and agreed by and between the undersigned counsel that any and all allegations of recklessness against defendant Martin Silva Hurtado are stricken from plaintiffs’ complaint, and the word ‘recklessness’ shall be removed from Paragraphs 27 and 29 from plaintiffs’ complaint, without prejudice. It is further stipulated and agreed by and between the undersigned counsel that plaintiffs Richard Pell and Phyllis Pell shall not pursue any punitive damages against the defendant Martin Silva Hurtado without further leave of the Court,” the stipulation read.
Furthermore, the same day, the Rivera defendants filed an answer and new matter in the case, along with a cross-claim against their co-defendant Hurtado.
“Plaintiffs have failed to state a claim upon which relief can be granted. Plaintiffs’ injuries, if any, were caused or contributed to by the negligence, carelessness and recklessness of others over whom defendant Rivera & Latinos Drywall, LLC had no control and for which it is not responsible. Defendant Rivera & Latinos Drywall, LLC did not own, manage, control, operate and/or maintain the premises identified in plaintiffs’ complaint at any time material hereto. The direct and proximate cause of any injuries and/or damages suffered by plaintiffs was the contributory/comparative negligence of plaintiff Richard Pell in failing to exercise that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances for their own safety and well-being,” according to the new matter, in part.
“Plaintiffs have failed to mitigate damages as required by the laws of the Commonwealth of Pennsylvania and, therefore, plaintiffs’ recovery is barred or substantially reduced. If plaintiffs request damages for delay, pursuant to Pennsylvania Rule of Civil Procedure 238, defendant Rivera & Latinos Drywall, LLC challenges the applicability and constitutionality of said Rule and places it at issue. If plaintiffs suffered any injuries or damages as alleged, they were caused solely and primarily by plaintiff’s own carelessness, recklessness and negligence and plaintiff’s recovery is barred or otherwise limited and/or reduced in accordance with the provisions of the Pennsylvania Comparative Negligence Act, the terms of which Act are incorporated herein by reference. Plaintiff’s medical care is not reasonable, medically necessary and/or related to the occurrence alleged in the complaint. If plaintiffs sustained injuries as alleged in the complaint, such injuries being expressly denied, then said injuries were not proximately caused by an act or failure to act by defendant Rivera & Latinos Drywall LLC.”
UPDATE
A complaint to join additional defendants was also filed on March 16, looking to join Benjamin Marcus Homes, LLC, FBM Wholesale Builders Supply, LLC (doing business as “Foundation Building Materials”), Francisco Rivera Razo, Marcus Rivera Razo, Doe Corporations 1-3 and John Does 1-3.
In subsequent answer and new matter filings on April 12 and 14, Hurtado denied the plaintiffs’ allegations and asserted cross-claims against all of his fellow co-defendants.
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the jurisdictional limits of the arbitration division of the Allegheny County Court of Common Pleas, plus costs, interests and expenses of suit.
The plaintiffs are represented by Michael J. Zagari and Allen P. Page IV of Zagari & Associates, in Pittsburgh.
The defendants are represented by Andrew R. Benedict and Derek E. Schultz of BBC Law in Philadelphia, plus Stephen J. Magley, Kevin R. O’Malley and Kenneth R. Brannigan III of O’Malley & Magley, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-002453
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com