MEDIA – A trio of Chester County defendants have rejected claims that they were responsible for the plaintiff’s being struck by a Port-O-Potty while it was being moved and received serious injuries, allegedly due to the negligence of the backhoe operator tasked with moving the object.
Odette Locher of Springfield first filed suit in the Delaware County Court of Common Pleas on Oct. 17 versus Delmont Utilities, Inc. of Newtown Square, Aqua Pennsylvania, Inc. of Bryn Mawr, Austin Parke of Coatesville and both Jeffrey R. Parke and Jeffrey R. Parke Company, Inc., both of Downingtown.
“On or about July 19, 2022, Ms. Locher was on her daily walk in the 400 block on Maplewood Road, a residential street on which she lives. Plaintiff was walking on Maplewood Road when Austin Parke, an agent and/or employee of defendants, performing duties required by defendants, was pushing a Port-O-Potty down the roadway,” the suit stated.
“Austin Parke used an industrial backhoe to push the Port-O-Potty without a clear line of sight in front of him, as the Port-O-Potty itself obscured and blocked his vision in the direction that he was traveling, resulted in Ms. Locher being struck by the Port-O-Potty and thrown to the ground, after he admitted having her within his sight of vision within the immediate area of his backhoe.”
The suit continued that the defendants are “responsible for the negligent and careless acts and omissions individually and/or of their employees, agents, representatives, and/or licensees, including, but not limited to, those of Austin Parke himself in failing to notice Ms. Locher while moving a Port-O-Potty, despite previously seeing her walking in the immediate area, while working in a residential neighborhood, causing the collision and at such time no named defendant or third-party provided an individual to spot and observe the movement of the subject Port-O-Potty.”
“The failure to take reasonable care to ensure the safety of pedestrians in the residential community resulted in Ms. Locher’s injuries, subsequent damages as the defendants’ actions in moving the Port-O-Potty under such conditions in a populated area are contrary to industry standards. The dangerous condition created by the defendants created a reasonably-foreseeable risk for the exact type of injury that was suffered by the plaintiff and no defendant reported such incident to OSHA, nor were drug and/or alcohol tests administered after the accident. Upon information and belief, defendants are responsible for the care and maintenance of the subject area, and were involved in the performing, ordering, decision-making, and/or overseeing of all such activities at or on the area. At all times material hereto, defendants had a duty to inspect, maintain, repair, discover, eliminate and/or avoid dangerous and hazardous conditions upon the subject area and while performing their work,” the suit said.
“At all times material hereto, defendants owed plaintiff and other persons similarly situated, a duty to ensure that the subject area was reasonably safe; and/or to properly perform the aforementioned maintenance and work duties in a safe and competent manner to make the area safe and to avoid injuries resulting from dangerous conditions created thereon. Defendants breathed their legal duty and/or obligation to plaintiff by failing to maintain a safe and secure property and failing to assure the safety and/or well-being of any and all invitees and/or individuals lawfully in the area. The aforementioned dangerous condition created by the defendants was not corrected and/or eliminated and/or avoided prior to the incident on or about July 19, 2022, which is the subject of this present complaint.”
On Dec. 5, defendant Aqua Pennsylvania, Inc. provided an answer and new matter in the case, which further denied the plaintiff’s substantive allegations.
“Plaintiff’s complaint fails to state a cause of action against Aqua Pennsylvania, Inc. upon which relief can be granted. Aqua Pennsylvania, Inc. is a holding company that does not supply water service in Pennsylvania. Aqua Pennsylvania, Inc. did not perform any construction activities where and when alleged. Plaintiff’s alleged injuries and damages, if proven, were caused by a person or entity which Aqua Pennsylvania, Inc. did not control or have any duty to control. Plaintiff’s claims are, or may be, barred by her execution of a release. Plaintiff’s claims are, or may be, barred by the expiration of the applicable statute of limitations. Plaintiff’s claims are, or may be, barred by the doctrines of collateral estoppel or res judicata,” per the defendant’s new matter, in part.
“If the averments of plaintiff’s complaint are proven true and correct at the time of trial or hearing in this matter, then plaintiff’s damages were caused solely by the carelessness, negligence, lack of due care or breach of contract of defendants Delmont Utilities, Inc., Austin Parke, Jeffrey R. Parke and Jeffrey R. Parke Company, Inc., the existence of any liability on the part of Aqua Pennsylvania, Inc. being expressly denied. Defendants Delmont Utilities, Inc., Austin Parke, Jeffrey R. Parke and Jeffrey R. Parke Company, Inc. are alone liable to the plaintiff, or jointly liable to plaintiff on the cause of action declared in plaintiff’s complaint, the existence of any liability on the part of Aqua Pennsylvania, Inc. being expressly denied.”
On Dec. 12, the plaintiff replied to the new matter and denied it in its entirety.
“Paragraphs 67 through 73 of answer of defendant’s to plaintiff’s complaint with new matter and cross-claim is believed to be a conclusion of law and, therefore, does not require a response to the extent a response is deemed necessary, the averments are denied. Moreover, strict proof is demanded at time of trial,” the reply stated.
“Paragraphs 74 through 76 of answer of defendant’s to plaintiff’s complaint With new matter and cross-claim is not believed to be directed towards responding plaintiff and, therefore, no response is necessary to the extent a response is deemed necessary, the averments are denied. Moreover, strict proof is demanded at time of trial.”
UPDATE
On Jan. 15, defendants Austin Parke, Jeffrey R. Parke and Jeffrey R. Parke Company, Inc. filed an answer, new matter and a response to the cross-claim denying any liability for the subject incident.
“Answering defendants did not owe plaintiff a duty. Answering defendants did not breach any duty owed to plaintiff. Plaintiff’s claims against answering defendants are barred by the doctrine of intervening cause. Plaintiff’s claims against answering defendants are barred by the doctrine of superseding cause. Any acts or omissions of answering defendants were not a proximate, factual or legal cause of plaintiff’s alleged damages. At all times, answering defendants acted with due care under the circumstances. If it is determined that answering defendants are liable on plaintiff’s cause of action, such liability being specifically denied, then plaintiff’s recovery should be limited or reduced in accordance with the Pennsylvania Comparative Negligence Act,” the new matter stated.
“By plaintiff’s actions at the date, time and place alleged in the complaint, plaintiff did assume the risk of any and all damages that she alleges to have incurred. If plaintiff suffered any damages as alleged, the same were caused solely or primarily by plaintiff’s own carelessness and negligence. If plaintiff suffered any damages as alleged, the same were caused by the acts and/or omissions of persons and/or entities over whom defendant had no control and no right or duty to control. If plaintiff suffered any damages as alleged, the same were caused by conditions over which defendant had no control or duty or right to control.”
For counts of negligence, negligent entrustment and vicarious liability/respondeat superior, the plaintiff is seeking damages in excess of $50,000, together with interest, costs, reasonable attorney’s fees and any other amounts as this Court deems appropriate.
The plaintiff is represented by Thomas A. Musi Jr. of Musi Merkins Daubenberger & Clark, in Media.
The defendants are represented by William E. Remphrey Jr. of Margolis Edelstein, Judith H. Ring of Marshall Dennehey and Charles B. Stokes of Russo & Gould, all in Philadelphia.
Delaware County Court of Common Pleas case CV-2023-008814
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com