PITTSBURGH – A local woman maintains that a restaurant was negligent in placing a wire bread rack on its premises, causing her to trip and fall during a visit to that same restaurant more than a year and a half ago.
Margie Mamula first filed suit in the Allegheny County Court of Common Pleas on June 19 versus Carrick Poultry, Inc. (doing business as “Frisch’s Restaurant”). Both parties are of Pittsburgh.
“On or about Jan. 27, 2022, plaintiff Margie Mamula was a business invitee to the defendant’s restaurant business, intending to purchase food items for her use. On or about Jan. 27, 2022, plaintiff entered the defendant’s restaurant to make a purchase of food. She went to the deli counter to see what food options existed, and then proceeded to try and move into position to make her purchase near the register. The defendant’s food and deli products were displayed behind the counter in a long deli case,” the suit said.
“The defendant’s menu and price board were located behind the counter, mounted high on the wall. The line was disorganized and customers were waited upon in no particular order. The counter/register area was very busy and packed with customers. The defendant had no method of placing customers in an organized line or providing numbers to be called to place orders.”
The suit added that the plaintiff’s attention was drawn to the menu board and she was trying to get in position among other customers to make her purchase, when she came into contact with a long wire rack the defendant had placed in front of the counter, which was filled with bread products.
“All business invitee customers at the defendant’s restaurant must use the counter service to place their order before picking up their food order. In the process of looking at the menu board and in trying to get in ‘line’ at the counter, plaintiff’s foot caught on the wire bread rack, causing her to trip and fall to the ground. The plaintiff sustained serious and permanent injuries in her fall,” the suit stated.
“The injuries and injuries sustained by the plaintiff were the direct and proximate result of the negligence of the defendant in placing the metal wire bread rack in a location where defendant knew or should have known customers would walk to make purchases, knew or should have known could be obscured by the presence of other many customers standing in a disorganized line waiting to make a counter purchase and knew or should have known that the attention of customers would be drawn toward the menu and price board, mounted high on the wall behind the counter. The accident and resulting damages were in no way caused or contributed to by any negligence on the part of the plaintiff.”
Mamula claimed to have sustained a fracture to the right proximal humerus, non-displaced fracture of the left superior and inferior ramus, strains, sprains and bruising to the right shoulder, strain, sprain and bruising to the left hip, fractures to her pelvis, a right proximal wrist fracture, strains, sprains and bruising to the right wrist, atrial flittering/fibrillation, general anxiety and other serious and permanent injuries.
The defense filed preliminary objections on July 31, claiming that Pennsylvania Rules of Civil Procedure 1028(a)(2) and 1028 (a)(4) preclude the plaintiff’s claims.
“To the extent that plaintiff claims that defendant is negligent due to a mass of disorganized customers, having a deli case with a menu behind it on the wall, and having bread racks in front of the deli case, these purported conditions were all open and obvious to plaintiff upon her arrival at the premises. Nonetheless, plaintiff made a knowing decision to remain in the business and attempt to patronize it. Further, plaintiff admits in her complaint that she was looking at the menu while trying to maneuver in line, not where she was stepping thereby allegedly resulting in her fall. The alleged fall is not the consequence of any hidden dangerous condition, but instead, the consequence of plaintiff having her attention on the menu while trying to navigate the interior of the business,” per the objections.
“Plaintiff’s averments at Paragraphs 5, 6 and 7 of her complaint serve no legal purpose and will only confuse a fact finder. The averments should be struck. Defendant has no control over how customers organize themselves when looking at its deli case and menu. Plaintiff readily admits that she went to the case to look at the options available for purchase. This is likely what every other customer was doing in the allegedly disorganized line. Likewise, plaintiff mentions that defendant had a menu board behind the deli case on the wall, making it unnecessary for plaintiff to even go to the deli case to look at purchase options. This was a decision that she made on her own. Additionally, having a deli case and a menu board on a wall behind it are not facts that, if proven, amount to negligence on the part of the defendant. Throughout the community, delis have cases of food and menus mounted on walls. This is similarly the case in a multitude of restaurants throughout the local community where you order food at a counter. The court can take judicial notice of these facts. These alleged acts of defendant are ordinary and customary within the food service industry in Allegheny County and, as a matter of law, cannot amount to a showing of negligence if proven because of the community-wide prevalence. Therefore, the mention of the deli case and menu board should be struck from the complaint as impertinent because, even if proven, the facts are meaningless and likely to confuse a jury as to the ultimate issues in the case.”
UPDATE
After two amended versions of the complaint were filed, the defendant came back with an answer and new matter on Oct. 13.
“Plaintiff did not trip over a bread rack. Plaintiff’s alleged fall was caused by her becoming lightheaded and dizzy while on defendant’s premises, due in no part to any act or omission of defendant. The condition that plaintiff complains of was open and obvious. Plaintiff assumed the risk of entering a busy retail location with display stands. The incident complained of was solely or partially the result of plaintiff’s own negligence. Defendant did not violate a duty of care owed to plaintiff. Defendant was not the factual or proximate cause of plaintiff’s injuries or damages. To the extent that discovery may reveal, plaintiff is barred from recovering medical expense reimbursement in excess of the amounts accepted as full payment in satisfaction by any medical care providers,” according to the new matter, in part.
“To the extent that discovery may reveal, plaintiff has already been fully-compensated from a collateral source. To the extent that discovery may reveal, plaintiff’s alleged damages were the result of pre-existing conditions unrelated to the event complained of, in plaintiff’s second amended complaint. To the extent that discovery may reveal, plaintiff’s alleged damages should be reduced to the extent that they were caused by any other person or entity that is not defendant. Defendant is entitled to all set-offs and contributions applicable under Pennsylvania law. To the extent that discovery may reveal, plaintiff’s claims are barred by her failure to mitigate her alleged damages.”
An Oct. 23 plaintiff reply to the new matter denied it as conclusions of law, to which no official response was required.
For a lone count of negligence, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, plus all costs, interest and such other and further relief as this Honorable Court may deem just and equitable.
The plaintiff is represented by Thomas D. Hall and Terry L.M. Bashline of the Law Offices of Hall & Copetas, in Pittsburgh.
The defendant is represented by Kenneth J. Hardin II and Ryan W. French of Hardin Thompson, also of Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-007573
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com