PITTSBURGH – A Pittsburgh man maintains that due to his apartment building owner’s negligence, he suffered a fall on an icy sidewalk and fractured one of his lumbar vertebrae – standing in opposition to the owner’s preliminary objections, which he says have no basis in law.
DeWitt Wimbs first filed suit in the Allegheny County Court of Common Pleas on Feb. 14 versus Douglas Plaza Holdings, LLC. Both parties are of Pittsburgh.
“The facts and occurrences hereinafter took place in the morning of Feb. 14, 2021. Plaintiff is a resident of the apartment building defendants own and manage which is located at 2405-2407 Laketon Road in Pittsburgh, Pennsylvania. On the morning of the 14th, the plaintiff was leaving the apartment building. To leave his apartment building, plaintiff had to make use of sidewalks that defendant owns and maintains on the property,” the suit said.
“The sidewalks are not public sidewalks. Unbeknownst to plaintiff, the apartment building’s outside sidewalks were covered with a thin layer of transparent ice. Plaintiff stepped onto the ice covered sidewalk and fell. Plaintiff was taken by ambulance to UPMC Mercy, where he was diagnosed with a fractured L1 vertebrae as the result of the fall.”
The suit added the defendant was “obligated to maintain the sidewalks and keep them free and clear of ice and other hazards…and failed to do so which was the direct, factual and proximate cause of plaintiff’s injuries.”
“The foregoing accident and all the injuries and damages set forth hereinafter sustained by plaintiff are the direct and proximate result of the negligent, careless, wanton and reckless manner in which defendant owned, operated, maintained, possessed, controlled and/or supervised the vehicle as follows: Defendant failed to inspect the sidewalk, ice the sidewalk, clear the sidewalk and failed to warn plaintiff and others of the sidewalk's dangerous condition,” the suit stated.
“Plaintiff sustained painful and severe injuries as a result of the accident described above, which include, but are not limited to the injuries detailed in the foregoing paragraphs. By reason of the aforesaid injuries sustained by plaintiff, plaintiff was forced to incur liability for medical treatment, medications, hospitalizations, physical therapy, and other similar miscellaneous expenses in an effort to restore himself to health, and claim is made therefore. Because of the nature of their injuries, plaintiff has been advised, and therefore, avers that he may be forced to incur similar expenses in the future, and claim is made therefore.”
On March 22, the defendant filed preliminary objections, seeking to strike the plaintiff’s claim for punitive damages – on the grounds that the allegations do not rise to a level showing evil motive or reckless indifference necessary to support such a claim.
“This case involves an alleged slip-and-fall that occurred at the Douglas Plaza Apartments on or about Feb. 14, 2021. Plaintiff filed a complaint in this matter on or about Feb. 14, 2023. Defendant denies all allegations of negligence. Although not clearly stated, at paragraph 15 of the complaint, plaintiff is essentially asserting a claim for recklessness and wanton conduct against the defendants,” the objections stated.
“Based upon plaintiff’s allegations in his complaint, the defendant’s conduct does not rise to the level of reckless and/or wanton conduct. Defendant now files its preliminary objections and brief in support. Plaintiff's claim of wanton and willful conduct is unsupported by the facts or law of the present case, because the defendant’s conduct does not rise to the level of wanton or willful conduct. Therefore, the claims and language should be stricken with prejudice.”
UPDATE
The plaintiff filed a brief in opposition to the defense’s preliminary objections on April 19.
“Defendant’s preliminary objections should be overruled. In Monroe v CBH20, LP, the Superior Court of Pennsylvania reversed the trial court for granting a motion for judgment on the pleadings because ‘our procedural rules allow the plaintiff to plead gross negligence and recklessness generally.’ The Superior Court noted that ‘gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action.’ Monroe is directly on point and controlling law to issue before this Court in the pending objections,” according to the brief.
“Defendant supports its argument by reference to two Lackawanna County trial court opinions from 2000 and 2001. In addition to being from another county and therefore not controlling, they predate the Superior Court’s clear ruling on this issue by over 20 years. Moreover, the Superior Court’s ruling in Monroe is simply a continuation of its longstanding precedent on this issue. In Field v. PECO, the Superior Court reversed the trial court’s striking of the plaintiff’s request for punitive damages because the complaint established that the defendant ‘knew or had reason to know of facts which created a high risk of harm to plaintiff.’ In McClellan v. Health Maintenance Org., the Superior Court reversed the trial court sustaining a preliminary objection to a plaintiff’s request for punitive damages because the defendant would ‘be afforded ample opportunity to ascertain, prior to trial, whether the evidence which appellants believe establishes ‘reckless indifference’ is sufficient to submit claim for punitive damages to jury.’ As such, defendant’s preliminary objections in this matter should be overruled as they have no support in law.”
For one count of negligence, the plaintiff is seeking damages in excess of $50,000, plus interest and costs as determined by the jury.
The plaintiff is represented by David M. Kobylinski and Peter T. Kobylinski of Kobylinski & Kobylinski, in Pittsburgh.
The defendant is represented by Terrance R. Henne and Dana Weber Horton of Mintzer Sarowitz Zeris Ledva & Meyers, in Sewickley.
Allegheny County Court of Common Pleas case GD-23-002057
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com