PITTSBURGH – A Pennsylvania resort has objected to allegations that it was liable for injuries suffered by one-half of a New Jersey couple, due to an uneven drop-off between a cement walkway and a pebbled path which led to the husband-plaintiff falling off his motorized wheelchair.
James Garibaldi and Agatha Garibaldi of Chatham, N.J. first filed suit in the Allegheny County Court of Common Pleas on Aug. 30 versus Nemacolin Woodlands, Inc. (doing business as “Nemacolin Woodlands Resort”) of Farmington.
“On July 21, 2023, plaintiffs James Garibaldi and Agatha Garibaldi were business invitees of the defendant who were lawfully on the premises as guests. Plaintiff James Garibaldi is an individual who is dependent on the aid of a motorized wheelchair to move about and travel certain distances. At all times relevant hereto, plaintiffs were informed by the defendant that the defendant’s premises was a handicapped accessible area. At all times relevant hereto, the defendant also provided plaintiff-husband with a motorized wheelchair to use while he was on the premises,” the suit stated.
“At all times relevant hereto, the motorized wheelchair used by the plaintiff while on the premises of the defendant was owned by the defendant. Then and there, the plaintiff was a business invitee to whom the defendant owed a reasonably duty of care to keep its commercial premises free of dangerous conditions. Then and there, plaintiff and plaintiff-wife were moving along a cement walkway from one area of the resort to another – plaintiff was in his wheelchair provided by the defendant and plaintiff-wife was walking behind him. At all times relevant and material hereto, there existed a dangerous, defective, hazardous and unsafe condition on the premises of the defendant, characterized by an uneven walkway.”
The suit continued that the plaintiff reached the end of the cement walkway while in his motorized wheelchair, which ended in a grassy area to the front and a pebbled stone path to the left.
“Then and there, the wheelchair occupied by the plaintiff tipped over due to the height difference between the cement walkway and pebbled path. Then and there, the plaintiff fell violently from his wheelchair to the ground, which resulted in serious personal injuries and other damages to him,” the suit said.
“As a direct and proximate result of the negligence of the defendant as aforesaid, the plaintiff fell violently to the ground from his wheelchair and suffered the following injuries, some of which may be permanent: Traumatic left femoral neck hip fracture; sepsis syndrome; hematoma of the left lateral thigh; hematoma leukemoid response; transfusion-reaction; surgical-induced venous thrombosis; bruising, contusions and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues and vessels of the body; permanent surgical scarring; temporary and permanent disfigurement, debilitating pain and increased risk of future surgeries.”
UPDATE
Nemacolin Woodlands filed preliminary objections in the matter on Sept. 26, seeking to strike multiple portions of the complaint for “insufficiently vague allegations against moving defendant, as well as scandalous or impertinent matter.”
“Throughout the complaint, plaintiffs set forth allegations related to duties that were owed to unnamed patrons, who are not the plaintiffs. Moving defendant is unable to properly respond to plaintiffs’ allegations related to unnamed patrons. In addition, these types of allegations leave open the possibility that plaintiffs could seek damages on behalf of unnamed patrons who are not the plaintiffs in this lawsuit. Accordingly, moving defendant respectfully requests that this Honorable Court strike the allegations contained in plaintiffs’ complaint that relate to unnamed patrons,” the preliminary objections said.
“Furthermore, plaintiffs allege that moving defendant failed to keep its sidewalk and walkways up to code, but fails to identify the specific regulation(s) thereof with which moving defendant failed to comply. Moving defendant is entitled to know which specific code and regulations are the subject of plaintiff’s claims in order to formulate its defenses, and plaintiff’s failure to identify such regulations renders moving defendant unable to properly defend the claims against it. Accordingly, allegations related to unidentified Pennsylvania code and regulations must also be stricken from plaintiffs’ complaint.”
The defendant also seeks to “strike scandalous or impertinent matter from a pleading, [since] the allegations are ‘immaterial and inappropriate to the proof of the cause of action’ and improperly ‘casts a derogatory light’ on itself”, not to mention being vague and unspecific, in its own view.
“The plaintiffs’ complaint alleges that moving defendant failed to properly supervise its agents, servants, and employees in Paragraph 22(e). However, there are no allegations anywhere in the complaint to suggest that this allegation could be pertinent to the plaintiffs’ alleged injury, Mr. Garibaldi’s fall from his wheelchair. For example, it is never suggested that the alleged failures of supervision caused or contributed to the July 21, 2023 fall. Presumably, this paragraph was included within the complaint for the limited purpose of casting the moving defendant in a derogatory light. Accordingly, this paragraph should be stricken from the complaint as scandalous or impertinent matter,” the objections continued.
“Moving defendants would emphasize that plaintiffs’ complaint is littered with general references to a dangerous condition, without identification of the specific dangerous condition that is being referenced. Accordingly, moving defendants respectfully request that this Honorable Court strike these references in the complaint or order that plaintiffs amend their complaint to clarify the specific dangerous condition being alleged. Next, moving defendant asserts that the following paragraphs of the complaint are general allegations that improperly leave room for plaintiffs to later assert new theories of negligence that are not contained in the complaint and are exactly what the [Pennsylvania Supreme] Court…sought to avoid.”
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the arbitration jurisdiction of this Court, together with the costs of action and other relief as may be just.
The plaintiffs are represented by Benjamin W. Schweers of the Law Offices of Kapusta & Schweers, in Pittsburgh.
The defendant is represented by Marc T. Thirkell and Alexander B. Possino of Gordon Rees Scully Mansukhani, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-010243
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com