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Philadelphia County

The male plaintiff, age 66 at the time of injury, filed this action against the owner and manager of a convenience store after he was attacked and beaten by five youths ws truck, threw up his hands in frustration and began to yell at the plaintiff. The driver denied that he intended to waive the plaintiff across the street. The settling driver testified that the beverage truck stopped suddenly and the plaintiff ran out in front of this truck, leaving insufficient time for him to avoid the accident.

The defendant’s orthopedic surgeon testified that the plaintiff’s carpal tunnel syndrome was related to the repetitive motion associated with her employment as a seamstress and was not traumatically induced by the automobile accident. The defendant also argued that the plaintiff was comparatively negligent for running into the street in the middle of the block and for not waiting for traffic to clear, or crossing the street in a pedestrian crosswalk.

The plaintiff filed a $________ PIP action against the insurance carrier for the settling truck owner which was consolidated with the tort action. The settling defendant added the insurance carrier for the beverage truck as an additional defendant in the insurance claim, alleging that this defendant was an "involved" vehicle under the No Fault Statute and, therefore, required to provide PIP benefits to the plaintiff. The defendants stipulated that if the defendant beverage truck was found to be negligent in the underlying tort trial, its insurance carrier would pay for half of the plaintiff’s PIP claim with the settling insurance carrier hile he was restocking the store’s candy shelves. The plaintiff claimed that the defendant store owner failed to provide adequate security measures to deter crime and the manager’s employees failed to take appropriate action to assist him. The plaintiff sustained multiple injuries in the attack, including a torn rotator cuff which required surgery. The defendants argued that the store’s Robbery and Violence Prevention Program had been adopted by the National Association of Convenience Stores as a model program and that the plaintiff escalated events by fighting his assailants.

The defendants also disputed the extent, nature and causal relationship of the plaintiff’s alleged injuries.

The plaintiff testified that on January 18, ________, he was a self- employed candy vendor who stopped at the defendants’ store on a Saturday morning at 9:30 a.m. to collect payment. The store manager was not present, payment could not be made and the plaintiff decided to restock the store’s candy shelves, according to his testimony. The plaintiff testified that while he was inside the store, five young men attacked him, beat him and took approximately $________ in small bills from his pocket, which had been collected from other stores that day. The assailants ran into the subway, police sealed the subway and the plaintiff was able to p 7 3 identify three of the five men who attacked him. The plaintiff was then treated and released from the hospital.

The plaintiff’s security expert testified that the defendants failed to follow the crime prevention program which was in place.

The store clerks should have moved out into the aisles when they were not waiting on customers, the windows should not have been obstructed with signs, and surveillance cameras and security guards should have been in place, according to the plaintiff’s expert. The plaintiff also contended that the store clerks failed to react quickly enough in calling the police or otherwise coming to his assistance.

The plaintiff’s general practitioner testified that the plaintiff sustained a torn rotator cuff of the right shoulder in the attack, requiring surgery. The plaintiff also sustained a left wrist injury causing development of a prominent bony spur and numbness of the fingers and aggravated a preexisting lumbar herniation, according to his expert. The plaintiff’s medical specials were approximately $________. He also claimed that he could not return to his candy business on a full-time basis and lost approximately $________ in past and future wages as a result of hiring his son to do work he formerly performed.

The defendants’ security expert testified that the store had adequate security measures and opined that the robbery was prompted by the assailants seeing a large roll of cash in the plaintiff’s pocket. The store windows were clear enough to allow visibility into the store and statistics show that surveillance cameras, although helpful in identifying criminals, do not deter crime, according to this expert. The defendant’s expert also opined that the store clerks acted appropriately in telephoning the police and that the store made a reasonable decision in employing guards only on Thursday, Friday and Saturday nights.

The defendants read transcripts of the plaintiff’s prior testimony in criminal proceedings stemming from the attack in which the plaintiff testified that he was initially attacked at the candy shelves, then ran to the front door and tried to prevent the assailants from escaping, when a second attack occurred. At trial, the plaintiff denied that he attempted to prevent the escape. The defendants argued that the plaintiff’s injuries were enhanced by his fighting with the attackers.

The defendant’s orthopedic surgeon testified that the plaintiff sustained a temporary aggravation of degenerative osteoarthritis of the left wrist and aggravation of a pre-existing lumbar disc herniation in the incident, as well as cuts and abrasions. The defendant’s orthopedic surgeon also testified that it was unclear whether the plaintiff’s shoulder surgery was necessitated by the altercation, or by his medical history of bicipital tendonitis and biceps rupture of the right shoulder. The jury found that the defendants were not negligent.

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