Plaintiffs often use the broadest possible language in a complaint to describe conditions that allegedly caused their premises liability accident in order to preserve their causation arguments as discovery unfolds. This often leaves defendants scratching their heads as to what the plaintiff is actually claiming until the issues are clarified in written discovery or depositions. This commonality in Pennsylvania premises liability litigation might change. Recently, in Fenstermacher v. Sands Bethlehem Retail, et. al.., a Northampton County judge cracked down on broad pleading language by granting a defendant’s preliminary objections, thereby striking various terms from a plaintiff’s slip and fall complaint and essentially forcing plaintiff to narrow the scope of issues to be litigated.
First, the judge struck the phrase “dangerous conditions, including but not limited to” from the plaintiff’s complaint, in the context of the defendant failing to inspect the subject area for “dangerous conditions, including but not limited to slippery surfaces.” The judge found that this language did not properly set forth the concise facts upon which plaintiff’s slip and fall claim is based in accordance with Pennsylvania fact pleading requirements. The judge clarified that the term “dangerous condition” may be properly used if it was being used to refer to a specific condition the plaintiff claimed he fell upon, such as a wet soapy substance, but that the “including but not limited to” language indicated that the plaintiff was using “dangerous conditions” as an impermissible catch-all.
The judge also struck the term “similar medical expenses” in the context of the plaintiff claiming he was forced to incur liability for medical treatments, medications, physical therapy and “similar medical expenses.” The judge viewed this as an impermissible catch-all allegation that was unnecessary since plaintiff specified at least some of the treatment he did undergo. The judge’s ruling essentially narrowed the breadth of damages to be litigated.
This ruling is positive for defendants in that it puts pressure on plaintiffs to clearly articulate their claims from the get-go. This will serve to narrow the scope of liability and damages issues for a defendant to litigate, and may help eliminate the element of surprise at depositions.
Thanks to Rachel Freedman for her contribution to this post.