LANCASTER – A mall security firm has denied charges of gross negligence and cross-claim liability, in litigation brought by two shoppers allegedly injured while escaping from a shooting incident at the Park City Mall more than two years ago.
Lucy A. Mendenhall of Lancaster County and Wendy A. Mendenhall of Connecticut first filed suit in the Lancaster County Court of Common Pleas on April 4, 2022 versus Brookfield Properties (a.k.a. “Brookford Properties Retail, Inc.”, “Brookfield Development” and “Brookfield Property Partners”) of New York, N.Y. and Allied Universal Security Services (a.k.a. “C&D Enterprises”), of Conshohocken.
“On Oct. 17, 2021, Lucy and Wendy Mendenhall went to the Park City Mall at 319 Park City Center, Lancaster, PA 17601 to shop and spend time together. On that date, however, they would become victims of a senseless act of violence, when an altercation occurred between multiple individuals at the mall. One of those individuals was Jeremiah Josiah-Alberto Sanchez. At the time, Sanchez was armed with a firearm, which he had carried into Park City Mall, in violation of mall policy. During the altercation, Sanchez’s gun discharged,” the suit said.
“The altercation began in the hallway leading from the middle common space to J.C. Penney and continued toward H&M. The firearm was first discharged at or near the common hallway outside Tabarek International Food. Sanchez’s discharge of the firearm caused panic in the Park City Mall. Sanchez’s rounds struck several individuals, including an innocent bystander. More than 50 innocent bystanders were in the vicinity of the altercation and thus, the line of fire. A mass exodus from the Mall resulted from the discharge of Sanchez’s firearm. The resulting exodus and stampede caused Lucy and Wendy to be knocked down and trampled, sustaining severe injuries as they tried to escape the scene.”
The suit added that despite a history of gun violence at other Brookfield mall locations throughout the United States, which should have put the defendants on actual notice of the risk of gun violence and the need to combat it, the defendants allegedly did not implement and/or enforce a policy capable of doing that.
“In addition to the above-described history of gun violence at Brookfield locations around the U.S., Park City Mall specifically has a history of crime and violence. In the five years up to and including the subject incident, the police were called regarding an incident or complaint at the location of the Park City Mall more than 2,000 times. In the five years up to and including the subject incident, these 2,000 calls included more than ten fights and/or assaults,” the suit stated.
“This history of crime at the mall was known to defendants. The history of crime at the mall put the defendants on actual notice of the risk of violence and the need to combat it. Despite such an awareness, defendants did not reasonably and adequately combat the risk of violence, and specifically gun violence, at defendants’ locations including the mall.”
Defendant Allied Universal Security Services filed preliminary objections in the case on May 9, 2022, seeking to strike matter which it found to be both “scandalous and impertinent” in these proceedings – in violation of Pennsylvania Rules of Civil Procedure 1028(a)(2).
“Specifically, plaintiffs’ complaint has a section titled ‘History of Gun Violence at defendant Brookfield’s Properties’ which does not have any relevance to the events that occurred at the Park City Mall. These averments allege other shooting at other malls outside of Pennsylvania and are simply trying to include irrelevant and prejudicial statements about gun violence at other malls. For example, plaintiffs state: ‘Gun violence is a reality in the United States, and one that has affected Brookfield locations in the last several years.’ Plaintiffs allege a firearm detecting dog at one Georgia property and describes in detail shootings at Wisconsin, Maryland and Georgia properties. Whether or not there have been other shooting at other malls across the country has no bearing on the legal proofs necessary for plaintiffs to prove their allegations of negligence against the defendants pursuant to Pennsylvania law,” according to the objections.
“Plaintiffs’ resuscitation of the history of gun violence at other out of state properties do not further plaintiff’s legal argument and are prejudicial. The Superior Court of Pennsylvania has addressed the issue of negligent security by holding that the duty to protect patrons from the acts of a third party ‘only arises if the business owner has reason to anticipate such conduct.’ Whether there were violent incidents at other stadiums had no bearing on that Court’s decision. Therefore, other acts of gun violence at other malls across the country have no relevance here and should be stricken from the complaint.”
Brookfield Properties filed an answer to the complaint and new matter on May 24, 2022, denying the plaintiffs’ allegations as conclusions of law to which no official response was required.
“Plaintiffs’ claims are barred and/or reduced pursuant to the statute of limitations. Plaintiffs’ claims are barred and/or reduced pursuant to his own comparative negligence. Plaintiffs’ alleged injuries and damages were caused by individuals/entities other than answering defendant. Answering defendant did not act negligently, carelessly, or recklessly with regards to plaintiffs’ alleged incident. Plaintiffs’ injuries and damages are not causally related to any improper acts/omissions of answering defendant,” according to the defendants’ new matter.
“Plaintiffs’ claims are barred by plaintiffs’ failure to join indispensable parties. Plaintiffs failed to take precautions to ensure their own safety. ‘Brookfield Properties’, ‘Brookfield Properties Development’, and ‘Brookfield Property Partners’ are not proper legal entities. Brookfield Properties Retail Holding, LLC manages the premises commonly known as Park City Mall. Park City Center, LLC owns the premises commonly known as Park City Mall.”
Brookfield Properties also asserted a cross-claim against its co-defendant Allied Universal Security Services, for joint and several liability with answering defendant, and/or liable over to answering defendant for contribution and/or indemnification both at law and by contract.
After an amended complaint was filed on May 27, 2022 and likewise a second set of preliminary objections from Universal Security Services, Lancaster County Court of Common Pleas Judge Thomas Sponaugle denied the preliminary objections in a July 28, 2022 order.
“Upon consideration of defendant, Universal Protection Service, LLC, doing business as ‘Allied Universal Security Services’ (incorrectly identified as ‘Allied Universal Security Services’, also known as, ‘C&D Enterprises’) preliminary objections to plaintiffs’ amended complaint and any and all responses thereto, it is hereby ordered and decreed that said preliminary objections are denied,” Sponaugle said.
In an Aug. 18, 2022 response to the defendant’s new matter, the plaintiffs have denied the veracity of the mall company’s conclusions.
“Paragraphs 45-52 contains legal conclusions that requires no response. To the extent a response is required, these paragraphs are denied. After reasonable investigation, plaintiffs are without information or knowledge sufficient to form a belief with respect to the allegations in Paragraphs 53-54, therefore same are denied and specific proof thereof is demanded at the time of trial,” the plaintiff’s response stated.
On March 30, counsel for all parties jointly filed a stipulation to add Jeremiah Josiah-Alberto Sanchez, the man responsible for discharging the gun inside the mall, as a defendant to the action.
“It is hereby stipulated and agreed by and between the plaintiff and defendants, that defendant Universal Protection Service, LLC (doing business as “Allied Universal Security Services”) has consent from all parties to file a joinder complaint against Jeremiahs Josiah-Alberto Sanchez,” the stipulation stated.
An April 24 stipulation agreed to by all parties would see plaintiff Lucy Mendenhall dismissed from the case, due to a past diagnosis of dementia.
“According to plaintiff Lucy’s (DOB: 5/22/1936) treatment providers, plaintiff Lucy has cognitive function impairments dating back to 2020 and was diagnosed with dementia. For these reasons, plaintiff Lucy is deemed incompetent for the purposes of this litigation and therefore will not further engage in written discovery, provide deposition testimony, participate in private mediation, and testify at the time of arbitration and/or trial in this matter. Plaintiff Lucy may still be evaluated by independent medical examiners and/or experts in this matter,” the stipulation stated.
“Plaintiff Lucy’s claims in this lawsuit shall survive, and her interests moving forward shall be protected by her Power of Attorney, Melissa Walker. Counsel executing this Stipulation hereby represent and warrant that they are authorized to do so by their respective clients, and their representatives and insurers, if any. This stipulation may be executed in counterparts and shall be considered effective when executed on behalf of all parties. Facsimile or photocopy reproduction of signatures shall have the effect of original signatures.”
UPDATE
Universal Protection Service, LLC (doing business as “Allied Universal Security Services”) replied to Brookfield Properties’ answer and cross-claim of liability on Nov. 20 and denied both it and the concept that it is in any way a party in the instant case, fully.
“Answering defendant denies it is liable to any party in this lawsuit under any theory of law or facts and strict proof is demanded. By way of further answer, this averment is denied as conclusions of law,” per the company’s reply.
For multiple counts of negligence, carelessness and/or gross negligence, the plaintiffs are seeking damages, jointly and severally, in excess of the mandatory arbitration limits, in addition to any other relief this Honorable Court deems appropriate.
The plaintiffs are represented by Nathaniel L. Foote of Andreozzi & Foote, in Harrisburg.
The defendants are represented by Sharon Piper Donovan, Joanne R. Rubinsohn and Samuel T. Cooper of BBC Law, plus Jeffrey H. Quinn and Ariel A. McKeever of Dickie McCamey & Chilcote, all in Philadelphia.
Lancaster County Court of Common Pleas case CI-22-01874
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com