PITTSBURGH – One-half of a New Jersey couple who alleged that a resort’s uneven drop-off between a cement walkway and a pebbled path led to the husband-plaintiff falling off his motorized wheelchair and seriously injuring himself, has passed away.
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.”
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.”
In an Oct. 2 response to the objections, the plaintiffs insist their case has met all pleading standards.
“The crux of this case is a claim of negligence against Nemacolin for failing to maintain its walkway and keep them clear from a dangerous condition. When read in its entirety, the complaint clearly places Nemacolin on notice of this claim. As described in the complaint, Nemacolin provided James Garibaldi with a motorized wheelchair to be used on the property including its walkways. The walkway James was traversing in his wheelchair came to an end with a grassy area to his front and continued into a peddled path to his left,” the plaintiffs’ response stated.
“Garibaldi was forced to maneuver his wheelchair in the area that connected the cement walkway with the peddled path. As described in the complaint, there was a height difference between the cement walkway and the peddled path created an uneven drop-off that caused James’ wheelchair to tip over, and he was thrown to ground which resulted in a left hip fracture. There can be no doubt that the claims asserted against Nemacolin pertain to the existence of this defect in the walkway and the defendant’s failure to timely correct the dangerous condition. As such, Nemacolin’s preliminary objections should be overruled, and it should be ordered to answer the complaint.”
The plaintiffs further argued that the complaint contains no scandalous or impertinent matter, contrary to the defendant’s position.
“Nemacolin contends that several paragraphs in the complaint contain scandalous and/or impertinent matter and, therefore, should be stricken. These allegations, however, are clearly relevant and material allegations regarding Nemacolin’ s conduct and/or inaction as it relates to this matter, and Nemacolin’s preliminary objections should be overruled. In order for an allegation to be deemed scandalous or impertinent, it must be immaterial and inappropriate to the proof of the cause of action. The right to strike an impertinent matter ‘should be sparingly exercised and only when a party can affirmatively show prejudice.’ Here, the allegations against Nemacolin can hardly be considered immaterial. The complaint, as a whole, alleges an actionable negligence claim against Nemacolin. Nemacolin contends that allegations pertaining to its supervision and training of its employees and/or the lack thereof with regard to the maintenance of its walkways are somehow immaterial to this cause of action and were included ‘for the limited purpose of casting [Nemacolin] in a derogatory light,” the response added.
“This position is absurd. All of these allegations clearly discuss the actions, or inactions, of Nemacolin in the context of maintaining a safe walkway free from a dangerous condition. All of these allegations are clearly relevant. The specifics of these allegations will be, and can only be, uncovered by conducting discovery. As alleged in the complaint, Nemacolin acted through its agents and/or servants and/or employees who were acting in the course and scope of their employment and in furtherance of the business of Nemacolin. The actions or inactions of Nemacolin’s employee with regard to walkway maintenance is obviously material to this cause action and there is clearly nothing ‘scandalous’ about those allegations. The complaint contains no scandalous or impertinent matter. As such, Nemacolin’s preliminary objections alleging the same must be overruled, and it should be ordered to answer the complaint.”
UPDATE
After the filing of an amended complaint on Nov. 6, plaintiff counsel filed notice on Nov. 29 of the death of co-plaintiff James Garibaldi.
“The death of James Garibaldi, a party in the above action, during the pendency of this action is noted upon the record,” per the notice.
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 plaintiff is represented by Benjamin W. Schweers of Dean Omar Branham Shirley, 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