PITTSBURGH – Daimler Trucks North America has objected to claims made by an Allegheny County man, who said he suffered grievous physical injuries when the Freightliner tree removal vehicle he was standing next to suddenly moved without warning due to a failed brake system – thus trapping him next to the stump grinder mechanism.
Joseph Zawacki first filed suit in the Allegheny County Court of Common Pleas on Oct. 26 versus Sidelines Tree Service, LLC of Oakdale, Utility One Source Forestry Equipment, LLC of Lynchburg, Va., A&R Truck Repair, Inc. of Cecil and Daimler Trucks North America, LLC (c/o CT Corporation System), of Harrisburg.
“This matter stems from an incident whereby plaintiff suffered gruesome, permanent injuries arising out of an incident that occurred at a site location at 332 Fawcett Church Road, Bridgeville, Pennsylvania, 15071, while performing tree removal services on or about Oct. 27, 2021. On Oct. 27, 2021, plaintiff Adam Yokim, Casey J. Bonincontro and agents/assigns/workers of defendant Sidelines were at the site location. On that date, the Freightliner was parked on a 5’ grade as the gear shift was in neutral with the parking brake engaged while plaintiff was situated next to a stump grinder. Although the Freightliner maintained a stationary position for several minutes, the Freightliner suddenly moved forward while Mr. Bonincontro was positioned in front of it and made contact with him, causing him to spin out of the Freightliner’s path of travel and break his cell phone in the process,” the suit said.
“After the Freightliner struck and pushed Mr. Bonincontro aside, the Freightliner continued to move forward and, while plaintiff was positioned next to the stump grinder, the Freightliner forcibly struck, crushed, and pinned plaintiff between it and the stump grinder, resulting in catastrophic injuries. In an effort to extract plaintiff from the Freightliner’s debilitating pressure, another vehicle had to be utilized to strike the bumper of the Freightliner to provide enough room for plaintiff’s release, leaving plaintiff fixed between the stump grinder and the Freightliner for several minutes. A purchase invoice in plaintiff’s possession indicates defendant Sidelines bought the Freightliner from defendant dealer on April 6, 2017 for a purchase price of $83,060.00, including shipping.”
The suit added that in order to maintain the Freightliner in a parked position, the operator must place the gear in the neutral position and engage the parking brake.
“At all times relevant and material hereto, the Freightliner suddenly rolled forward, despite being in a stationary position for several minutes, while the Freightliner was in the neutral position with the parking brake engaged. No properly-functioning vehicle should roll forward while parked, or more specifically while in the neutral position with the parking brake engaged. A Sept. 19, 2022 inspection report created by Fyda Freightliner Pittsburgh, Inc., a Freightliner dealer and maintenance service provider, indicated the Freightliner had an inoperable emergency pump, caused by a brake booster pump internal failure. A Sept. 27, 2022 inspection report created by Fyda indicated the Freightliner’s parking brake was not holding in neutral, caused by components seizing,” the suit stated.
“An Oct. 4, 2022 inspection report created by Fyda indicated the parking brake was still not properly holding while the Freightliner was parked on hills, caused by a broken parking brake cable that had been stretched. On that same date, Fyda’s maintenance mechanic tried to adjust the parking cable at midship adjustment, but it seized, causing the mechanic to remove and replace the midship parking cable, the driveshaft, and the parking drum. An Oct. 10, 2022 inspection report created by Fyda indicated, once again, the parking brake was not holding while the Freightliner was parked on hills, caused by internal component failures and cables. Fyda’s maintenance mechanic noted the Freightliner rolled forward but not in reverse while the parking brake was engaged.”
The suit further alleged that Zawacki suffered a litany of leg, spinal and rib fractures, necrosis, infection, and a host of other permanent injuries, necessitating the plaintiff to incur nearly $2.6 million in medical bills.
UPDATE
Daimler Trucks North America, LLC filed preliminary objections in the suit on Nov. 28, countering that nine different paragraphs from the complaint should be stricken, for inclusion of specific evidentiary basis relating to the case’s claims – something which is permitted at trial, but not in an initial pleading, according to the defendant’s counsel.
“The crux of plaintiff’s strict product liability, negligence and breach of warranty claims against DTNA is that DTNA placed into the stream of commerce the subject vehicle without ‘a braking system or mechanism necessary to prevent [it] from suddenly moving forward’ while in neutral position with the parking brake engaged, and/or was defectively designed and/or manufactured, making it dangerous and unsafe, and causing it to move forward and injuring plaintiff,” the objections stated.
“For the apparent purpose of establishing that the subject vehicle was defective at the time of the incident, plaintiff pleads the specific evidentiary basis upon which plaintiff intends to prove his claims and damages at trial. The inclusion of references to these supposed evidentiary sources are violative of Pennsylvania Rule of Civil Procedure 1019(a) because they constitute evidence from which material facts may be inferred, which are not permitted to be alleged in a complaint.”
The objections added that the plaintiff further violated Pennsylvania Rule of Civil Procedure 1019(a) when they provided “an overly exhaustive and sensationalized list of [their] alleged injuries and damages that resulted from the incident.”
By that rationale, defense counsel argued that Paragraphs 16, 26-31 and 33-34 should be stricken from the complaint.
For multiple counts of negligence, breach of warranty and strict liability, 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 Richard G. Talarico of Woomer & Talarico, in Pittsburgh.
The defendants are represented by John T. Pion, James M. Girman and Brian L. Shepard of Pion Nerone Girman Winslow and Smith, Miles A. Kirshner and Erin Lynn Bock of Margolis Edelstein, James M. Evans, Chandler L. Cleveland and Alice S. Johnston of Segal McCambridge Singer & Mahoney, and Paul R. Robinson of Meyer Darragh Buckler Bebenek & Eck, all also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-012473
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com