Benish v. Smeltzer

Defense Verdict

Date of Verdict: Nov. 20, 2019.

Court and Case No.: C.P. Allegheny No. GD-16-021987.

Judge: Michael A. Della Vecchia.

Type of Action: Premises liability.

Injuries: Leg fracture.

Plaintiffs Counsel: Michael E. Megrey, Woomer & Talarico. 

Plaintiffs Expert: Victoria M. Langa, orthopedic surgery; Pittsburgh.

Defense Counsel: Thomas W. Summers, Summers, McDonnell, Hudock, Guthrie & Rauch, Pittsburgh.

Defense Expert: Charles J. Burke III, orthopedic surgery; Pittsburgh.

Comment:

On March 2, 2015, plaintiff Kenneth Benish, 52, a service technician, slipped and fell at 307 Pappan Drive, in Imperial. Benish suffered a leg fracture. He claimed that he slipped and fell on snow and ice.

Benish sued the property owner, Mary Ann Smeltzer. Benish alleged that Smeltzer was negligent for allowing a dangerous condition to exist. At the time of the accident, Benish was in the course and scope of his employment assisting Smeltzer, who was having car trouble. Benish alleged that he was walking on Smeltzer's driveway when he slipped on ice, slid about a foot and a half forward and fell, landing on his right ankle. Benish's counsel argued that Smeltzer did not take appropriate measures to prepare for his arrival, as she failed to eliminate the ice from the driveway by treating it properly with salt or some other anti-slip substance. Smeltzer's negligence in failing to adequately treat the driveway surface caused Benish's accident, his counsel argued.

The defense maintained that Benish was contributorily negligent. According to the defense, prior to the accident, Benish walked on Smeltzer's driveway to access her vehicle without any difficulties. If there was snow or ice in the driveway, he should have avoided it when he rewalked on the driveway after looking at Smeltzer's vehicle, the defense contended.

Following the accident, Benish drove himself to an emergency room and was X-rayed. He was diagnosed with a sprain of the right ankle. He was given crutches and pain medication, and was discharged with instructions to follow up with an orthopedist.

Benish was ultimately diagnosed with a nondisplaced fracture of the right distal fibula. He came under the care of an orthopedic surgeon and was put on a course of physical therapy, which he follow through June 2015, more than three months after the accident. He received no additional further treatment.

Benish's orthopedic surgeon attributed Benish's injuries and treatment to the accident. The physician determined that Benish made a good recovery.

Benish testified that he was severely restricted following the accident, as he was unable to work for 16 weeks and had difficulty standing for long periods and lifting heavy objects. He stated that he continues to experience occasional ankle pain after prolonged periods of standing. Benish sought to recover $8,163.03 in medical costs and $9,004 in lost wages, plus damages for past and future pain and suffering.

The defense's expert in orthopedic surgery testified that Benish made a full recovery with no ongoing restrictions, as evidenced by the fact that he had been released to his job duties with no limitations.

The jury found that Smeltzer was not negligent.

This report is based on information that was provided by defense counsel. Plaintiffs counsel did not respond to calls for comment.

—This report first appeared in VerdictSearch, an ALM publication