PITTSBURGH – An Allegheny County couple maintain that the wife-plaintiff fell inside a Kohl’s department store in Monroeville, allegedly due to the company’s negligence.
Regina M. Dudczak and Stanley E. Dudczak first filed suit in the Allegheny County Court of Common Pleas on March 15 versus Kohl’s, Inc. of Wilmington, Del.
“On Sept. 22, 2021, plaintiff was lawfully on the aforementioned premises for a business purpose, as a customer. At all times relevant and material hereto, there existed a condition on the premises of defendant, characterized by a shopping cart with wheels that did not operate properly, suddenly locking in place,” the suit said.
“When the wheel of the subject shopping cart suddenly locked in place, the cart was caused to suddenly change directions. The force of the sudden change in direction caused plaintiff to lose her balance and fall.”
The suit added that as a direct and proximate result of the aforementioned incident, the wife-plaintiff sustained the following injuries: A comminuted fracture of the left proximal humerus; Inferior decentering of the left humeral head relative to the glenoid; Left upper extremity pain; Bruises, contusions, and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues, and vessels of the body; and nervousness, emotional tension, anxiety and depression.
“At all times relevant and material hereto, defendant knew or should have known of the defective and/or hazardous condition of the subject shopping cart. At all times relevant and material hereto, defendant failed to take any steps to eliminate the hazard, reduce its danger to invitees, or otherwise warn users, including plaintiff, of its dangerous, hazardous, unsafe and/or defective condition,” the suit stated.
On April 24, counsel for Kohl’s filed an answer and new matter, which generally denied the plaintiff’s allegations as conclusions of law to which no official response was required.
“Plaintiff was not a business invitee on the date of the incident and had no legal right to occupy the premises. Plaintiff was a trespasser on the premises and thus answering defendant owed plaintiff the minimum duty of care. Answering defendant denies all liability for Plaintiff’s alleged injuries/damages. Plaintiff assumed the risk of her own conduct and, as such, she is barred from recovery against answering defendant pursuant to the Assumption of the Risk Doctrine. Plaintiff is barred from recovery pursuant to the Pennsylvania Comparative Negligence Act. Plaintiff’s recovery must be reduced by the percentage of her liability (with all liability on the part of answering defendant being specifically denied) as per the Pennsylvania Comparative Negligence Act,” per the new matter.
“Plaintiff’s injuries and damages, to the extent any exist, which is expressly denied, are the result of pre-existing conditions and events, and not related to or caused by the incident identified in plaintiff’s complaint. Plaintiff’s injuries and damages are the result of the acts or omissions of parties other than answering defendant, over whom answering defendant had no control, nor the right of control. To the extent there existed a dangerous condition at the time and place alleged, which is denied, plaintiff’s claim is barred by the Alternative Path Doctrine. Answering defendant denies that there was a dangerous condition at the time and place alleged by plaintiff. Plaintiff failed to mitigate damages.”
The defense additionally argued that the plaintiff may have been responsible for their own injuries.
UPDATE
On May 9, the plaintiffs replied to the defense’s new matter.
“Paragraph 20 of defendant’s new matter is an incorporation paragraph, to which no response is required. To the extent a response is deemed necessary, the allegations therein are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029(e). In response to Paragraphs 21 through 35 of defendant’s new matter, to the extent that the averments of these paragraphs state legal conclusions, the same require no response. To the extent any factual averments are made, the same are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029(e), and strict proof is demanded at the time of trial,” per the reply.
“Paragraph 36 of defendant’s new matter is an incorporation paragraph, to which no response is required. To the extent a response is deemed necessary, the allegations therein are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029(e).”
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the jurisdictional limits of compulsory arbitration, together with court costs, interest and such other and further relief as this Honorable Court may deem just and equitable.
The plaintiffs are represented by David M. Huntley of Woomer & Talarico, in Pittsburgh.
The defendant is represented by Salvatore Vilardi and Suzanne R. Fisher of Cipriani & Werner, in Blue Bell.
Allegheny County Court of Common Pleas case GD-23-003622
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com