PITTSBURGH – Counsel for a local man is seeking a state court to transfer to arbitration its case against a Giant Eagle supermarket in Export, where their client alleged he fell through an exposed section of the store flooring during a shopping trip.
Robert Lydiard first filed suit in the Allegheny County Court of Common Pleas on Sept. 1, 2023 versus Giant Eagle Corporate (Main). Both parties are of Pittsburgh.
“The events hereinafter complained of occurred on or about Aug. 7, 2023 at approximately 6:30 p.m. at defendant, Giant Eagle Corporate (Main)’s grocery store located at 4810 Old William Penn Hwy., Export, PA 15632,” the suit said.
“At the above time and place, plaintiff was shopping for groceries with a small shopping cart, when, without warning the cart’s front wheel caught a unsealed gap in the concrete floor, about 2-3 inches wide, causing the plaintiff to flip over the cart and suffer serious injury.”
The suit provided that according to the store manager, the 2-3 inch gap in the unsealed floor was there for an extended period of time, ran approximately 20 feet long and the defendant “knew and/or should have known about the dangerous, hazardous and unsafe condition that existed for an unreasonable period of time.”
“Plaintiff’s injuries and damages were caused by and were the direct and proximate result of the negligence of the defendant Giant Eagle Corporate (Main), as follows: Defendant failed to ensure its walkways and isles were in a safe condition for its patrons, including the plaintiff; Defendant failed to inspect and maintain its property; Defendant failed to warn or otherwise disclose to plaintiff the dangerous condition; Defendant failed to ensure that the space between concrete flooring slabs were properly sealed; Defendant failed to use due care and to employ reasonable and customary methods of maintaining its property and such other acts of negligence as may be revealed during the course of discovery and/or at the time of trial of this matter,” the suit stated.
“As a direct and proximate result of the negligence of defendant Giant Eagle Corporate (Main), plaintiff Robert Lydiard suffered and sustained serious and severe personal injuries, some or all of which may be permanent in nature, as follows: Damaged right rotator cuff, concussion, post-concussion symptoms, hand and mouth lacerations, left ankle sprain, sciatica and coccyx pain, contusions throughout his body and other injuries as may be yet undiscovered and will be revealed in the medical records.”
Giant Eagle filed an answer in the action on Sept. 21, 2023, which denied the allegations in their entirety and provided new matter in the company’s own defense.
“At all times relevant and material to this action, Giant Eagle’s agents, employees, servants, workers, and/or representatives were not negligent and acted with reasonable,, ordinary and prudent care and skill with, respect to the inspection, operation and maintenance of the areas under their control of the Giant Eagle store located at 4810 Old William Penn Highway Export, PA 15238,” the new matter stated.
“The incident described in plaintiff’s complaint and the injuries and damages allegedly sustained by plaintiffs may have resulted from the intentional or negligent acts and/or conduct of third-parties or entities which negligent or intentional acts or conduct may have constituted an intervening or superseding cause and that these persons or entities were not agents, workers, representatives, servants, tenants or employees of Giant Eagle and were not acting within the course or scope of any employment with Giant Eagle. Plaintiff’s claims are limited or otherwise barred by the plaintiff’s failure to mitigate damages. Plaintiff’s claims are barred by her own contributory/comparative negligent and/or assumption of a known risk.”
The plaintiff replied to the new matter on Oct. 9, 2023, denying it in its entirety.
“Paragraph 17 of the new matter is an incorporation paragraph to which no response is necessary, if a response is deemed necessary then the same is denied. Paragraph 18 of the new matter is denied. The allegations of Paragraph 18 constitute conclusions of law to which no further responsive pleading is required, and therefore said allegations are deemed to be denied. Paragraph 19 of the new matter is denied. The allegations of Paragraph 19 constitute conclusions of law to which no further responsive pleading is required, and therefore said allegations are deemed to be denied,” the reply stated.
“Defendant’s new matter skips paragraphs 20-26, the same are denied if they exist. Paragraph 27 of the new matter is denied. The allegations of Paragraph 27 constitute conclusions of law to which no further responsive pleading is required, and therefore said allegations are deemed to be denied. Paragraph 28 of the new matter is denied. The allegations of Paragraph 28 constitute conclusions of law to which no further responsive pleading is required, and therefore said allegations are deemed to be denied.”
A Feb. 15 motion to compel discovery from the plaintiff and his counsel sought in-store video footage of the incident in question.
“By correspondence dated Sept. 22, 2023, counsel for Robert Lydiard served defendant’s counsel with plaintiff’s first set of requests for admissions, interrogatories and requests for production. On or about Oct. 4, 2023, counsel for Giant Eagle Corporate (Main) served plaintiff’s counsel with defendant’s answers to plaintiff’s requests for admissions, but did not respond to plaintiff’s interrogatories or request for production of documents,” the motion stated.
“On Feb. 2, 2024, undersigned counsel attempted to confer with defense counsel regarding the necessity of this motion and did not receive a response. Undersigned counsel is aware of defendant’s internal policy not to produce video of the incident and specifically requests the same be produced with defendant’s discovery responses. Defendant’s counsel has failed to respond to discovery in violation of Pennsylvania Rules of Civil Procedure 4006 and 4009.12 (2023).”
Allegheny County Court of Common Pleas Judge Philip A. Ignelzi granted the motion the very next day, Feb. 16, and stipulated the store would have 30 days to respond to plaintiff’s counsel discovery motion.
On March 4, plaintiff counsel followed up with a second motion to compel discovery, seeking “any video footage and substantive video of the incident, and its surrounding events in its possession within three days of this order and prior to plaintiff’s deposition.”
“Instantly, plaintiff seeks the in-store video of the incident and the surrounding events of the incident. This is clearly substantive evidence that needs to be produced prior to the deposition of the plaintiff. This is not ‘surveillance video’ taken by defendant after the fact. Nothing in the Pennsylvania Rules of Civil Procedure or Pennsylvania case law permits defendant to withhold the video plaintiff seeks. It would be severally prejudicial to not produce this video to plaintiff. Defendant would then be able to tailor its deposition questions to make it look like plaintiff is being inconsistent and plaintiff’s counsel would have no opportunity to clarify any inconsistencies (because he will not have access to the video,” the second compel motion stated.
“Moreover, if the Court would deny this motion, then it would create an immeasurable amount of potential issues. Parties could withhold dash camera footage, police body camera footage, doorbell footage and security footage, the same with any audio recordings or photographs that contains even the slightest impeachment value. There is no threat of prejudice against the defendant if the video is produced. Defendant has eyewitness accounts, incident reports, and other evidence to try to impeach the plaintiff; note, these documents have been produced to plaintiff. The in-store substantive video is no different. If defendant’s argument is that it will be prejudiced because plaintiff will be able to refresh his memory with the video, that is not prejudicial. Parties regularly review substantive evidence prior to depositions to refresh their memory, there is nothing inappropriate about this practice.”
However, Ignelzi denied the plaintiff’s motion on March 7.
“Upon consideration of plaintiff Robert Lydiard’s motion to compel production of in-store video footage of the incident, it is hereby ordered, adjudged and decreed that the motion is denied, and it is further ordered that defendant shall produce any video footage and substantive video of the incident, and its surrounding events in its possession forthwith upon the conclusion of plaintiff’s deposition,” Ignelzi said.
Plaintiff counsel responded with a motion for reconsideration on March 11.
“The Court’s March 6, 2024 order is void of any explanation or rationale in denying plaintiff’s request for the substantive evidence to be produced prior to plaintiff’s deposition. Plaintiff respectfully suggests this Court committed an error of law in denying plaintiff and his counsel the ability to see the video of the incident prior to his deposition. The video is undoubtedly one of the most important pieces of substantive evidence in the case. There is no Rule of Civil Procedure or Pennsylvania case law that would allow defendant not to produce the in-store camera footage of the incident prior to plaintiff’s deposition. In fact, this decision is in direct opposition to the Court’s ruling in Capenos v. Greentree Hardware & Electric, Inc.,” the reconsideration motion stated, in part.
“The precedent being set by this Court’s March 6, 2024 order could theoretically allow a defendant to withhold substantive video until the very last hour of discovery until they decide to notice and take plaintiff’s deposition. Note, plaintiff’s counsel had two other cases against defendant. Not having the video severely hinders plaintiff’s ability to prosecute the case: a) The court’s ruling allows the defendant to determine the pace of litigation when it is the plaintiff’s responsibility to diligently prosecute the claim; b) Plaintiff’s general approach to cases is to obtain written discovery and documents, then take depositions of the defendant and witnesses, but those depositions would be incomplete if plaintiff cannot ask about the contents of the video; c) Plaintiff has not scheduled depositions of the defendant in this matter because plaintiff does not have the most vital piece of evidence regarding the claim, the video; d) Additional discovery that may stem from the video is delayed; e) Not having the video produced with other substantive evidence delays retaining experts or determining what experts need to be retained; f) Not obtaining the video delays possible investigation into other witnesses that may need to be contacted or identified; g) Delaying the production of the video runs the risk of evidence being spoiled, including but not limited to the video, any additional video and potential witnesses; h) Delaying the production of the video completely hinders the case from moving forward until defendant wants to depose the plaintiff; and i) Delaying the production of the video hampers any possible settlement negotiations.”
UPDATE
Ignelzi, again, denied the plaintiff’s motion for reconsideration on April 1.
This led Lydiard to motion to transfer the case to arbitration four days later, on April 5.
“This action stems from a slip/trip-and-fall incident which occurred on or about Aug. 7, 2023, when plaintiff was at defendant’s grocery store and his shopping cart wheel caught a gap in the flooring causing him to fall and suffer injuries. The complaint was filed early in this matter, prior to plaintiff completing treatment. Plaintiff does not concede that his injuries are worth $50,000 or less, but in hopes of resolving this matter quicker and to avoid additional costs, plaintiff is willing to arbitrate the matter. No party will be prejudiced by this move to arbitration,” the transfer motion stated.
For one count of negligence, the plaintiff is seeking actual economic and non-economic damages in an amount to be determined at trial, pre-judgment and post-judgment interest and all such other relief as the Court deems necessary, just and proper.
The plaintiff is represented by Eric Chaffin, Patrick Booth and Mark Malone of the Law Offices of Chaffin Luhana, in Pittsburgh.
The defendant is represented by James F. Rosenberg of Marcus & Shapira, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-010327
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com