Customer Left Alone on Treadmill in Sears Falls Down

Sears Corporation was sued in premises liability for a fall sustained by a customer enticed to try out a treadmill.  Pennsylvania personal injury lawyer  Joseph Chaiken of Philadelphia, Pennsylvania obtained a $150,000 verdict in this fall down lawsuit of Gerben v. Sears Roebuck.

In this case, the female plaintiff, in her 60's at the time, suffered injury in a fall which occurred at the defendant's department store as an alleged result of the negligence of a store employee in leaving the plaintiff on an activated treadmill for an extended period of time. The plaintiff contended that she fell as she attempted to deactivate the treadmill. The plaintiff customer testified that a sales representative employed by the defendant Sears invited her to try out one of the floor model tread mills on display. As the plaintiff was operating the treadmill, the salesman walked away. The plaintiff testified that before the salesman walked away, she specifically asked him how to deactivate the machine. The plaintiff related that when she attempted to deactivate the machine as per the salesperson's previous instructions, the machine failed to turn off and instead, began to run faster, causing her to be thrown to the floor.

The plaintiff introduced an incident report of the accident written by the defendant's manager. The report stated that "customers should not be left alone on the treadmills." The statement was allowed into evidence as an admission by a party.

The plaintiff's treating physician testified that the plaintiff suffered epicondylitis (inflammation) of the elbow as a result of the fall, for which surgery was performed. The plaintiff's husband testified that as a result of the injuries suffered in the accident, he is now forced to perform all duties required of maintaining the household.

The defendant denied that the plaintiff was left alone on the treadmill and argued that the plaintiff was comparatively negligent in attempting to operate the equipment on her own. The defendant additionally argued that the plaintiff's complaints pre-existed the subject accident, noting that the plaintiff had been previously treated for arthritic hip problems prior to the subject fall.

The jury found the defendant 75% negligent and the plaintiff 25% comparatively negligent. The $ 150,000 gross award was molded accordingly.

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Target Employee Sees Puddle and Leaves to Get Safety Cones, Patron Falls in Mean Time

Pennsylvania personal injury attorney Edward Chacker of Gay, Chacker & Mittin obtained a great result in a slip and fall case against a Pennsylvania Target Store.  On July 21, 2003, plaintiff Christina Walker, 40, retail clerk, was in a Target store in the Philadelphia area when she slipped and fell on water in an aisle resulting in a premises liability lawsuit.

Claiming premises liability, Walker sued Target Stores Inc. and Target Corp. The plaintiff maintained that a pharmacist on duty at the time of the incident was in the aisle when a customer reported a spill. After being notified, the pharmacist left the aisle to retrieve warning cones. Walker then slipped on the spilled liquid. Plaintiff's counsel argued that the pharmacist was negligent for leaving the hazardous spill in the aisle and failing to protect Target's customers.

The defendants denied the allegations. Defense counsel contended that Walker was at fault because she was not paying attention where she was walking.

The day after her fall, Walker woke up with a severe headache. She visited her family physician, complaining of dizziness, blurred vision and pain in her back, left foot and left elbow. She had a CAT scan, which came back as normal. Soon after, she had an EMG and was diagnosed with a status post-cerebral concussion, lumbar strain and sprain, right C5 and left L5 radiculopathy, bilateral C8 and right L5 radiculopathy, right epicondylitis, sprain of the plantar fascia of the left foot and post-concussion syndrome. She began physical therapy, which she underwent through May 2004.  A year after the accident, Walker still complained of blurred vision, headaches, neck and upper back pain, and some numbness and tingling in her upper extremities and lower left leg. She saw neurologist Steven Mazlin for ongoing treatment. Mazlin testified that Walker's condition resulted from her slip and fall, and that the fall exacerbated a previously quiescent migrainous disorder and "unmasked a case of so-called latent MS."Walker was also diagnosed with a disc bulge at L5-S1, for which she underwent chiropractic treatment from February 2004 to February 2006. In 2006, she received three Lidocaine injections and was fitted with orthoses.  In addition, she was diagnosed with depression and anxiety.

Walker sought $54,420 in past medical specials and $9,761 in past lost wages, having missed 18 weeks of work. She sought an unspecified amount for past and future pain and suffering.

After a three-day trial, the jury found Target liable and awarded Walker $250,000 in damages.

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Fall Over Concrete at Renovated Target Store Leads to Verdict

A Pennsylvania Target Store was the originating site of premises liability lawsuit resulting in a sizable verdict.  In the matter of McCune v. Irwin & Leighton, Co., the plaintiff was expertly represented by Pennsylvania personal injury lawyer Brandon Swartz of top tier Philadelphia law firm, Swartz Culleton. 

This case arose in the course of Plaintiff's work when he was delivering rubbish containers to a Philadelphia construction site.  During his work, he exited his truck and tripped and fell over a chunk of cement. The plaintiff brought suit against the general contractor and a demolition subcontractor working on a construction project at the site. The defendant general contractor argued that the cement did not constitute a dangerous condition, the plaintiff was comparatively negligent and that it was not responsible for the cement being in the area of the plaintiff's fall.

At the time of the incident, the defendants were working on a project to renovate a Target Store in Philadelphia. The rubbish containers were delivered to a staging area which was designated for that purpose. The plaintiff testified that he pulled his truck into the staging area, opened the door, stepped out and fell over a piece of concrete. The concrete chunk was approximately 6" x 6".  Testimony established that the defendant general contractor had sole responsibility for calling the plaintiff's employer and requesting delivery of the rubbish containers. The plaintiff argued that the defendant general contractor breached its duty to make sure that the staging area was safe prior to calling for the delivery.


The plaintiff called a civil engineer who testified that the plaintiff's position, approximately four feet from the ground in the cab of the truck, precluded him from seeing the construction debris which was under his door. This expert contended that the plaintiff's field of vision was such that the obstacle would not have been visible to him as he exited his truck.

The plaintiff, age 52 at the time, was diagnosed with a ligament tear as a result of the fall. He underwent surgery to repair the ligament and complained of continuing ankle pain and difficulty ambulating. The plaintiff's orthopedic surgeon opined that a future ankle fusion or ankle replacement was possible.
At the time of trial the plaintiff had not returned to work due to the injury. The plaintiff's vocational expert testified that the plaintiff could not return to his former position and is permanently limited to sedentary employment. As a result, the plaintiff claimed a diminished future earning capacity as a result of the ankle injury.

The defendant general contractor maintained that it was not responsible for the condition which caused the plaintiff's fall and the plaintiff could not establish where the piece of concrete had come from or how long it had been in the dumpster staging area. The defense argued that the subcontractor demolition company was performing demolition work and the chunk of concrete at issue was obviously a part of the old section of the building which had been demolished. The defense also contended that the large chunk of concrete was open and obvious and should have been noticed and avoided by the plaintiff when he drove into the staging area.


After a four day trial, the jury found the defendant general contractor 90% negligent and the plaintiff 10% comparatively negligent. The defendant subcontractor was found not negligent. The plaintiff was awarded $825,000 in damages and his wife was awarded $10,000 for her loss of consortium, for a total verdict of $ 835,000, reduced accordingly.

This was a great outcome for the plaintiff given the facts of the case.  Congrats to the plaintiff and attorney Swartz for a great outcome.

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Costco Sued for Defective Automatic Door

A Pennsylvania Costco was successfully sued for products liability and premises liability as a result of an allegedly defective automatic door.  The plaintiff in this case was well represented by Pennsylvania personal injury attorney Joe Melillo.

In this premises liability lawsuit brought against a Pennsylvania Costco and other, the plaintiff, Lear was seriously injured on December 8, 2004, when he entered a Pennsylvania Costco.  As the plaintiff entered, the store's automatic doors closed on him.The automatic doors of the Costco's Wholesale Store closed abruptly as Lear entered the store, causing him to be thrown to the groud.

Lear suffered a broken hip that left him debilitated and unable to walk. He lived in the Jewish Home after his hospital stay. He developed pressure sore ulcers as a result of his debilitation. The sores became infected, leading to his death from sepsis on June 23, 2005.

The Costco entrance was equipped with a motion sensor that caused the doorway to open. The doorway's photoelectric hold-open beams were positioned at a height above the ground that allowed the doors to close while a pedestrian was partially within the doorway. The family alleged that there was no presence sensor installed with the doorway though the technology was available when Costco and its doorways were constructed. A presence sensor aims to prevent the doorway from closing on pedestrians who move slowly through, or stop within, the doorway area.  

Costco relied on its architect Mulvanny G2 Architecture Corp. to select an appropriate doorway model and features. The plaintiffs family alleged that the architect and Kajima Construction Services Inc., the general contractor that installed Costco's automatic sliding door system, should have understood the nature of Costco's business and the characteristics of its customers. The family claimed that the accident and the plaintiff's injuries were the result of Costco's careless, reckless and negligent actions.

 The defendants agreed to pay the following amounts to the plaintiff's family: $50,000 from Costco; $50,000 from Mulvanny; $35,000 from Kajima; $25,000 Harrisburg Glass; $50,000 Overhead Door Corp.; $50,000 Automatic Door Enterprises. Each party agreed to pay its own attorney fees and costs. The parties admitted no wrongdoing or liability.

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Great Outcome in Tough Manhole Cover Fall Down

Since I have been reviewing a lot of premises liability slip/trip and fall lawsuit outcomes in Pennyslvania I thought I would write about a great outcome recently obtained by my good friend and awesome Pittsburgh personal injury lawyer, Chris Apessos of Ainsman, Levine & Drexler.

In the case of Alegre v. Folino Construction the plaintiff and attorney Apessos had a legitimate but tough liability case.  Specifically, at about 7 am on September 25, 2010, the plaintiff was walking through a crosswalk in Bellevue when she tripped and fell on an exposed and raised manhole cover.  Before the fall, the defendant contractor had been hired by the Borough of Bellevue to remove bricks from the crosswalk and replace them with an asphalt coating.  As of the time of the fall, the defendant contractor had stripped the bricks exposing and causing to be raised from the ground the manhole cover.  This created a lip sticking up from the ground that ultimately caught the plaintiff's foot and caused her to fall.  The problem was that at the time of the fall, the defendant had not gotten around to asphalting the area such that the manhole cover was, again, flush with the ground.  It is somewhat understandable that the contractor was not able to get everything done at one.  What was unreasonable, however, was the fact that when the defendant finished pulling the bricks that exposed the manhole, they just left the condition for another day.  The defendant failed to put up any warning signs on either side of the crosswalk to alert pedestrians of the change.  Worse yet, the defendant did nothing to highlight the manhole- you often see this done with fluorescent orange spray paint.  Because of this, the raised manhole did not jump out to the plaintiff.  To her, it looked like it was still essentially flush with the ground and did not raise any additional care on her part.

As a result of her fall, the plaintiff suffered a torn meniscus and loosening of her dental implants- a pretty significant fall.

Despite the above, this is a very tough case to win.  Juries place a big burden on plaintiffs to watch where they are going.  In hindsight, jurors, like all of us, often think "well I would have seen that...why didn't she?"  And defendant's prey on this sentiment with arguments of "open or obvious" and comparative negligence that the plaintiff herself failed to exercise due care.

After a close arbitration verdict in favor of the defendant, attorney Apessos appealed the case to the Allegheny County general docket.  The case was tried two days ago in front of Judge Colville.  After hearing all the evidence, Judge Colville entered an order in favor of the plaintiff in the amount of $22,950.  Judge Colville, which seems completely fair under the circumstances all assessed that the plaintiff was 40% negligent herself.  As such, the final verdict was reduced to $13,770- a great outcome nonetheless.

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Trip Over Beanbag Chair in Target Leads to Verdict

A Pennsylvania Target store was successfully sued for premises negligence related to a bean bag chair left in an aisle.  The plaintiff in this Pennsylvania trip and fall lawsuit was well represented by Pennsylvania personal injury attorney William E. Averona.

In the case of Davis v. Target Corporation, the plaintiff alleged that the Target store allowed a dangerous condition to exist in its store in the form of bean bags and a soft chair left in one of the aisles. As a result, the plaintiff claimed that she was caused to fall. The defendant denied notice of the condition and also argued that the condition was open and obvious and not dangerous.

The plaintiff was a 25-year-old female who was shopping in the defendants Springfield, Pennsylvania Target Store. She testified that she left her shopping cart at the top of an aisle and obtained a large box of shelving. As the plaintiff was walking back to her cart with the large box, she testified that she observed an older lady approaching her from the opposite direction. The plaintiff testified that she stepped sideways to allow the lady to pass, but the edge of the box she was carrying caught on a display shelf to her right, she tripped over a bean bag which was in the aisle and fell to her knees. The plaintiff was diagnosed with chondromalacia of both knees as a result of the fall. Her physician testified that future knee surgery is recommended.

The defendant argued that the plaintiff had seen the bean bags on her way to pick up the shelving and that she was aware of their location. The defense also maintained that there was no evidence as to who had moved the furniture into the aisle or how long it had been there before the plaintiff's fall. The defense contended that it had a reasonable policy of store inspection and cleanup and that it was not negligent.
The jury found the defendant 90% negligent and the plaintiff 10% comparatively negligent. The plaintiff was awarded $ 150,000 in damages, reduced accordingly. The defendant has filed a motion for new trial based on the court's preclusion of evidence that the plaintiff was arrested at the scene for possession of marijuana.

Assumption of the risk via "open or obvious" arguments is a prime defense raised in almost all premises liability lawsuits.  Pennsylvania looks to Sections 343 and 343A of the Restatement (Second) of Torts for guidance.  These Restatements of the Law preclude liability for a land owner where an invitee is injured as a result of a condition whose danger is known or obvious to the invitee, unless the owner anticipated the injury despite the invitee’s knowledge or the obviousness of the condition.  Arguably, where a danger is “open or obvious,” the possessor of land does not owe the invitee a duty to take precautions against or warn of open or obvious dangers.    

Under Pennsylvania law the assumption of the risk doctrine applies to absolve the landowner from liability for injuries sustained if the plaintiff: (1) knows of the risk or hazard, and (2) voluntarily proceeds in that activity.

There is substantial uncertainty as to the status of the assumption of the risk doctrine in Pennsylvania.  Which party bears the burden to establish these elements is currently the subject of debate in Pennsylvania courts.  Uncertainty arises as to whether assumption of the risk is part of the duty analysis, therefore making it a question of law and placing the burden of proof on the plaintiff or a question of fact for the jury.  Traditionally, assumption of the risk was viewed as an affirmative defense placing the burden of proof on the defendant.

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Man Falls Due To Defective Toilet Seat in Best Buy Store

In researching Pennsylvania premises liability negligence lawsuits filed against Best Buy only a few cases turned up.  The only fall lawsuit I found against Best Buy Stores was the matter of David v. Best Buy handled in Federal Court by Pennsylvania personal injury lawyer Arthur Novello.

In Davis, on May 8, 2005, the plaintiff , 75, and retired pharmacist, was in Oceanside, Calif., visiting his son when he used the public restroom of a Best Buy retail store. Davis alleged that while he was using the toilet for its intended use, the toilet seat, without warning, dislodged and caused him to fall to the floor, resulting in multiple injuries.  Davis sued Best Buy Co. Inc. for premises liability, alleging a dangerous condition.

Plaintiff's counsel argued that Best Buy failed to properly test and inspect the toilet seat before usage, and the company also failed to exercise due and reasonable care and caution under the circumstances in view of the foreseeable dangers and foreseeable accidents and injuries that could occur or result in using said toilet seat.

Counsel for Best Buy denied the allegations, asserting there was a lack of notice regarding the alleged defect. Due to the lack of notice, contended counsel, there was no reasonable exercise of care that the store could have performed since Best Buy did not know the toilet seat would dislodge.

Davis flew home from California to Philadelphia the next morning and sought medical attention at Thomas Jefferson University Hospital for pain in his right elbow. He was diagnosed with aggravation of preexisting lateral epicondylitis and underwent injection therapy through the hospital over the course of a year.

Davis sought about $4,000 for past medical bills and an unspecified amount for past pain and suffering.

The jury returned a verdict in the plaintiff's favor for $12,000.

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