PHILADELPHIA – CVS Pharmacy has filed to dismiss litigation from a customer in its Ridley Park store who alleged that negligence on the part of the store and a worker - who says he didn't work there at the time of the accident - caused her to fall and become severely injured nearly two years ago.
Linda Leon first filed suit in Philadelphia County Court of Common Pleas on April 23 versus CVS Pharmacy, Inc., Robert McAlpin and John Doe, all of Ridley Park, plus CVS Health Corp. (c/o Altus Group US, Inc.) of Woonsocket, R.I.
“On or about Sept. 24, 2022, at approximately 5:30 p.m., plaintiff was a business invitee, licensee and/or otherwise legally on defendants’ premises. At all times relevant hereto, defendants, individually, jointly and/or through its agents, servants, franchisees, workmen and/or employees, had a duty to keep and maintain the aforesaid premises in a reasonably safe condition for those persons lawfully thereon, including plaintiff,” the suit said.
“On or about Sept. 24, 2022, while on defendants’ premises, plaintiff was caused to trip and fall over milk crates with coolers stacked on top, which were sticking out past the end of the aisle, causing serious and permanent personal injuries on account of which this action is brought. At or about the same date, time and place in question, and for some period of time prior thereto, defendants, acting individually, jointly and/or by and through their agents, servants, franchisees, workmen and/or employees, negligently and/or carelessly allowed and permitted dangerous and unsafe conditions to exist, including but not limited to, the conditions which directly resulted in the plaintiff’s injuries.”
The suit added that multiple components of negligence on the part of the defendants directly caused the plaintiff’s injuries.
“As a direct and consequential result of the negligent and/or careless conduct of the defendant, described above, the plaintiff suffered various serious and permanent personal injuries, serious impairment of bodily function and/or permanent serious disfigurement and/or aggravation of pre-existing conditions, and others ills and injuries, including to the right shoulder, as well as pain in both knees, all to plaintiff’s great loss and detriment. As a result of these injuries, all of which are permanent in nature and all of which are to plaintiff’s great financial detriment and loss, plaintiff has in the past, is presently and may in the future suffer great anguish, sickness and agony and will continue to suffer for an indefinite time into the future,” the suit stated.
“As an additional result of the carelessness and/or negligence of defendants, plaintiff has suffered emotional injuries, along with the physical injuries suffered. As a further result of plaintiff’s injuries, plaintiff has in the past, is presently and may in the future undergo a great loss of earnings and/or earning capacity, all to plaintiff’s further loss and detriment. Furthermore, in addition to all the injuries and losses suffered by plaintiff, plaintiff has also incurred or will incur medical, rehabilitative and other related expenses for which he makes a claim for payment in the present action.”
The defendants removed the case to the U.S. District Court for the Eastern District of Pennsylvania on May 30, citing the diversity of citizenship between the parties and the amount of damages in question.
On May 31, the defendants motioned to dismiss the case’s claims against defendant McAlpin, arguing that not only had not been served with the complaint, he had not worked at the store in question for nearly three years prior to the incident and thus, had no knowledge of the pertinent circumstances.
“In her complaint, plaintiff alleges that Robert McAlpin: 1) Was personally aware of the milk crates with coolers sticking into the walk aisles; 2) Personally knew about CVS’ safety guidelines; 3) Knew that CVS should inspect its floors; 4) Failed to implement CVS’ policies; 5) Failed to periodically inspect the Store; 6) Failed to properly train employees; 7) Failed to properly train employees; and 8) Negligently managed the premises,” the dismissal motion stated, in part.
“However, not only was Robert McAlpin not present at the store on Sept. 24, 2022, the date of plaintiff’s accident, McAlpin had not worked at the store for years beforehand. In his affidavit…McAlpin testifies: “1) From February 2015 to October 2019, I was employed by Pennsylvania CVS Pharmacy, L.L.C. as a Photo Lab Technician, Shift Supervisor and, finally, an Operations Supervisor at 410 East Chester Pike, Ridley Park, PA; 2) I never held a managerial title while working at the store; 3) I have not worked at the store since October 2019; 4) On Sept. 24, 2022, I was not employed or present at the store; 5) I have never owned or leased 410 East Chester Pike, Ridley Park, PA and, on Sept. 24, 2022, had no responsibility or duties at the store; 6) On Sept. 24, 2022 and presently, I am employed at 306 East Baltimore Ave., Media, PA as an Operations Manager for Pennsylvania CVS Pharmacy, L.L.C.; 7) I have no personal knowledge of events described in plaintiff’s complaint or the circumstances of her alleged fall and, to the best of my knowledge, I have never met Linda Leon; and 8) I have not been employed or resided at the store since October 2019 and have not been served a copy of the lawsuit in this case.”
On those grounds, the defendants asserted that McAlpin be dismissed from the suit.
For four counts of negligence, the plaintiff is seeking damages in excess of $75,000, plus all costs and other relief this Court deems necessary.
The plaintiff is represented by Marc I. Simon of Simon & Simon, in Newtown Square.
The CVS defendants are represented by Charles W. Spitz and Joel H. Feigenbaum of Post & Schell, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-02301
Philadelphia County Court of Common Pleas case 240403068
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com