A week ago, a young girl was killed while attending an event at an ice cream shop in the Brewerytown section of Philadelphia. Brewerytown is located in the Northwest section of Philadelphia, just outside of the Art Museum area.
Last Saturday, June 28, a 3 year old girl and her mother were attending an event at a water ice and ice cream shop. The young child was killed when the security gate on the outside of the building detached from the wall and landed on the girl. Bystanders lifted the gate off the girl who was then rushed to a local hospital where she was pronounced dead.
Philly Police Investigating the Accident
This tragic accident is being investigated by the Philadelphia Police Department as well as the Philadelphia Department of Licenses and Inspections (L&I). According to L&I, there were no prior complaints about any issues with the security gate. However, at least one witness indicated that store employees had difficulty with the gate and more importantly, noticed that it was shaky.
Theories of Negligence
Property Owner & Business Owner
Under Pennsylvania law, property owners and business owners alike have a duty to take reasonable care of their properties to avoid accidents and injuries to business invitees. This duty includes a secondary duty to perform reasonable inspections of property to uncover hidden dangers, i.e., dangers that an unsuspecting customer would not be able to discover. This area of law is known as premises liability and encompasses all types of accidents at stores and businesses, including fall down accidents and other mishaps.
In this situation, according to information from the Philadelphia Board of Revision of Taxes, the property owner is a property development company, and according to a local news report, the actual store/business is owned by private individuals. Either one or both could be held liable for this tragic accident. The key issues are whether the lease agreement spelled out who would maintain the security gate, and when the gate was last maintained or inspected and by whom.
The company which originally installed the gate could face liability, if it is determined that the gate was not installed properly. According to the same news report, the investigation is centering on whether the gate was installed incorrectly, i.e., whether the bolts were too short. In addition to the owners and the company which installed the gate, a contractor may be held liable for negligent maintenance and/or work which affected the gate. For instance, façade work may have been performed by a contractor prior to the accident. That contractor may be liable if its work resulted in a structural weakening of the area or otherwise affected the security gate.
Res Ipsa Loquitur
Res ipsa loquitur is an alternative theory which may be appropriate under these circumstances. Under Pennsylvania law, this doctrine allows an injured party to infer negligence from the circumstances. See Quinby v. Plumsteadville Family Practice, Inc. (a 2008 Pennsylvania Supreme Court case) and Toogood v. Rogal (a 2003 Pennsylvania Supreme Court case). In order to use the res ipsa loquitur doctrine in Pennsylvania, the injured party must show the following:
(a) the event is the kind which does not usually occur unless someone was negligent;
(b) the evidence sufficiently eliminates other possible causes, (i.e., conduct of the plaintiff and third parties); and
(c) the negligence is within the scope of the defendant’s duty to the plaintiff.
So long as the injured party is able to demonstrate these 3 elements, the court will allow the issue to go to the jury, which will ultimately decide whether the inference of negligence should be drawn.
In this recent case, it’s unclear exactly how the accident happened or why the security gate fell. What is clear, however, is that someone’s negligence resulted in this little girl’s death, especially given the risk of grave injury posed by the security gate (it weighed 2 tons), and the fact that it was affixed to a commercial business/building (water ice/ice cream store) where there would naturally be more foot traffic than a residential building. Put simply, this accident was sadly preventable.
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