PITTSBURGH – An Allegheny County judge has declined to strike punitive damages from a lawsuit brought by a tenant against their apartment complex, arguing that its alleged negligence caused them to fall on an icy sidewalk and fracture one of their lumbar vertebrae.
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
Allegheny County Court of Common Pleas Judge Alan D. Hertzberg overruled the objections on April 26.
“The Court, having heard argument on defendant’s preliminary objections to plaintiff’s complaint in civil action, it is hereby ordered, adjudged and decreed as follows: The preliminary objections are overruled,” Hertzberg declared.
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