MEDIA – Counsel for the Pennsylvania Institute of Technology is seeking to compel deposition testimony from a woman who claimed she was seriously injured in a fall at a home the Institute owned, one year ago.
Karen Maloy and Scott Johnson first filed suit in the Delaware County Court of Common Pleas on Oct. 5 versus the Pennsylvania Institute of Technology. All parties are of Media.
“On June 15, 2022, at approximately 2:30 p.m., plaintiff Karen Maloy attended an end-of-school-year party held at the premises and hosted by a friend of her minor daughter. Ms. Maloy’s minor child (age 10) was in attendance at this party, along with approximately 10 other children, including a four month-old infant, and their parents,” the suit said.
“At that date and time, Ms. Maloy was standing on the outdoor deck on the premises, elevated approximately 20 feet off of the ground, and leaned back toward the deck railing to allow another guest to walk by her. The entire section of railing gave way causing the plaintiff to unexpectedly plummet approximately 20 feet to the ground, landing on her neck and back. Some of the adults and children in attendance at the party, specifically including Ms. Maloy’s minor daughter, witnessed this traumatic and unexpected event.”
The suit added the defendant’s clear negligence caused the plaintiff’s fall.
“As a result of her fall, plaintiff sustained the following injuries: Cardiac contusion with elevated troponin; C5 vertebral body fracture; T3 compression fracture; T3 spinous process fracture; T5 vertebral body fracture; left-sided manubrial fracture; retrosternal hematoma; fracture of the first right rib; six-centimeter laceration to scalp requiring 12 staples; Cervical disc herniation; Intraparenchymal hemorrhage; Bruised lung; Heart trauma; Mental anguish; Anxiety, depression, disfigurement and other injuries,” the suit stated.
“Moreover, based upon an inspection of the property, it is clear that at some point in time prior to the plaintiff’s horrible fall, defendant attempted to repair the wobbly deck railing using inappropriate square-head screws, obviously with knowledge that the deck was defective and wobbly and would not support or protect a person like the plaintiff from falling through its woefully deficient guardrail. At all times relevant hereto, the defendant’s conduct increased the risk of harm that the plaintiff would suffer. Ms. Maloy continues to suffer from her injuries, the effects of which are painful and continuing, and some or all of which may be permanent. Ms. Maloy will be required to undergo and continue extensive physical therapy after her multiple fractures heal and faces the very likely possibility of multiple corrective surgeries in the future.”
In preliminary objections filed on Oct. 25, the Pennsylvania Institute of Technology sought to strike punitive damages from the complaint and strike material which did not conform to the rule of law.
“The complaint contains no specific allegations directed to the alleged actions or inactions of moving defendant which could possibly support allegations of reckless conduct and punitive damages. Plaintiffs’ complaint alleges that punitive damages are warranted because defendant put the receipt of rental income over the safety of the premises due to their allegations that defendant did not have the premises inspected prior to leasing and based upon their inspection, defendant attempted to make repairs with inappropriate screws. Plaintiffs’ complaint also alleges that the deck had rotted and bee-infested wood. These allegations fail to set forth any specific allegations against moving defendant that would support a claim for punitive damages,” the objections stated.
“There is no conduct of moving defendant alleged that could established the “bad motives”, “malicious”, “wanton”, “reckless”, “willful” or “evil” conduct necessary to support allegations of recklessness. Plaintiffs’ complaint does not support that defendant appreciated the risk of harm that plaintiff was exposed to and acted in conscious disregard of that risk. Plaintiffs have failed to set forth any facts sufficient to support the claims of outrageous conduct or to support any claims of recklessness and/or punitive damages.”
Additionally, the objections seek to strike Paragraphs 29, 42(d) and 45 from the plaintiffs’ complaint, for failing to conform to the Pennsylvania Rules of Civil Procedure on specificity of pleading, because they “cite to no specific provisions and must therefore be stricken from the complaint.”
On Nov. 11, plaintiff counsel responded to the defendant’s preliminary objections.
“Plaintiff sustained these injuries because defendant recklessly, carelessly and negligently permitted the blatantly hazardous conditions of the deck to exist, including deteriorated, carpenter bee-infested wood and completely improper and unsafe ‘repairs’ when it had a duty make sure its property is safe and will not cause injury to others,” the response stated, in part.
“Well-settled Pennsylvania appellate case law and applicable codes requires landlords, like the defendant in the instant litigation, to inspect their property and/or have the property inspected by third parties to make sure such deadly, dangerous hazards are corrected before their tenants and/or their licensees are exposed to such situations. Here, when it is confirmed during discovery that the defendant did not follow the law and inspect and make this property safe for individuals like the plaintiff, punitive damages are appropriately and properly considerable by a Pennsylvania jury.”
Plaintiff counsel added that the defendant’s request to strike punitive damages is “factually and legally improper, and entirely premature.”
“The plaintiff is entitled to discovery on the issue of inspection and the defendant’s obligation to make its property safe. After that analysis has been developed factually, then and only then should this Honorable Court consider the proprietary nature of punitive damages in this case. To do so without a factual record is inappropriate,” the response stated.
Delaware County Court of Common Pleas Judge Barry C. Dozor overruled the defense’s objections in a judicial order issued March 14.
“Upon consideration of the preliminary objections of defendant Pennsylvania Institute of Technology to plaintiffs’ complaint, and plaintiffs’ response in opposition thereto and notice of supplemental authority, it is hereby ordered that defendant’s preliminary objections to plaintiffs’ complaint are overruled and defendant shall file an answer to plaintiffs’ complaint within 20 days of the date of notice of this order,” Dozor stated.
UPDATE
Defense counsel filed a motion on June 12 to compel deposition testimony from Maloy, alleging that their case was prejudiced without obtaining it.
“On April 12, 2023, moving defendant emailed plaintiff’s counsel asking if plaintiff’s deposition could go forward on May 1, 2023. Thereafter on April 27, 2023, defendant emailed plaintiff’s counsel that defendant had to get plaintiff’s deposition scheduled and provided four other dates in May. Plaintiff’s counsel responded that they were not available on any of those proposed May dates and to provide alternative dates. They did not provide any dates of their own. Defendant’s counsel responded and provided six alternative dates in June for plaintiff’s deposition. After no response from plaintiff, on May 10, 2023, defendant noticed plaintiff’s deposition for June 8, 2023 at 10 a.m. Plaintiff’s counsel responded that they were not available on June 8 and again provided no alternative dates for plaintiff’s deposition,” the motion to compel said.
“Defendant then provided nine other alternative dates in May and June 2023, trying to accommodate plaintiff’s counsel for plaintiff’s deposition. On May 15, 2023, defendant’s counsel followed up with plaintiff’s counsel requesting they respond regarding plaintiff’s depositions. Plaintiff’s counsel responded that they could schedule her deposition for June 16, 2023 but it might have to be rescheduled if counsel’s trial did not end. Counsel’s trial ended in May. A notice of deposition was sent out. Counsel’s trial did end well before the June 16, 2023. On May 31, 2023, plaintiff’s counsel sent a letter to defendant requesting to reschedule plaintiff’s deposition and asked defendant to again circulate new dates. On June 8, 2023, defendant’s counsel emailed plaintiff’s counsel that we would like to move forward with plaintiff’s deposition as plaintiff’ counsel appeared to not have actual conflict with the date yet. To date, plaintiff has not provided a new date for deposition nor appeared for a deposition.”
According to the defense, the plaintiff’s deposition is necessary to understand and streamline the issues in the case, the defendant will be prejudiced if the deposition does not occur, the defendant has diligently been trying to schedule plaintiff’s deposition since April and have provided countless dates to accommodate plaintiff’s counsel, and therefore, Court intervention is necessary to compel plaintiff’s deposition for June 16, 2023
The defense seeks an order compelling plaintiff to submit to a deposition on June 16, 2023 or within 30 days of entry of that order, or risk sanctions upon further application to the Court.
For a count of negligence, gross negligence, recklessness and loss of consortium, the plaintiffs are seeking damages in excess of the arbitration limits, together with costs of this litigation, delay damages, interest and any further relief this Honorable Court deems just and appropriate.
The plaintiffs are represented by Dion G. Rassias of The Beasley Firm, in Philadelphia.
The defendant is represented by Anne M. Manero of the Law Office of W. Kelly McWilliams, also in Philadelphia.
Delaware County Court of Common Pleas case CV-2022-007574
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com