Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Finnerty v. Wiley

April 17, 2007

MICHAEL FINNERTY AND LYNN FINNERTY, HIS WIFE, PLAINTIFFS,
v.
STEPHEN W. WILEY AND PAMELA S. WILEY, DONALD W. ORTH AND LUCIA A. ORTH, AND OAK RIDGE CONSTRUCTION COMPANY, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Presently before the Court is Defendants Donald W. and Lucia A. Orth's Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 13.) For the reasons set forth below, the Court will grant this motion. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a).

BACKGROUND

On October 6, 2006, Plaintiffs Michael and Lynn Finnerty filed their Complaint (Doc. 1) in this Court. Therein, they allege: Defendants Donald W. and Lucia A. Orth ("the Orths") owned a lake house located at 5 Lakeview Drive, Pocono Pines, Pennsylvania. (Doc. 1 ¶¶ 6 and 7.) The Orths' lake house was constructed by Defendant Oak Ridge Construction Company ("Oak Ridge"). (Doc. 1 ¶ 8.) The lake house had a wooden deck attached to it. (Doc. 1 ¶ 6.) On March 23, 2001, the Orths sold the lake house to Defendants Stephen and Pamela Wiley ("the Wileys"). (Doc. 1 ¶ 7.)

On July 23, 2005, Plaintiff Michael Finnerty ("Mr. Finnerty") was a guest at the lake house. (Doc. 1 ¶ 9.) At approximately 10:15 p.m., Mr. Finnerty was standing on the deck when it collapsed. (Doc. 1 ¶ 10.) As a result of the deck's collapse, which was caused by the reckless and negligent conduct of Defendants, Mr. Finnerty sustained serious, painful and disabling injuries including, but not limited to, post-traumatic herniated lumbar discs, a post-traumatic back compression fracture, multiple contusions and abrasions, depression, emotional anguish and distress, some or all of which may be permanent. (Doc. 1 ¶¶ 10-11.) Mr. Finnerty has been unable to work since suffering his injuries. (Doc. 1 ¶ 12.) Mr. Finnerty has incurred, and will continue to incur, medical expenses. (Doc. 1 ¶ 12.) Mr. Finnerty has also endured significant pain and suffering, some or all of which will continue to be endured in the future. (Id.) Mr. Finnerty has incurred a loss of an ability to enjoy life's pleasures, disfigurement, mental anguish, emotional upset, and other damages, some or all of which will continue into the future. (Id.)

In Count I of Plaintiffs' Complaint, Mr. Finnerty asserts a claim for negligence against the Wileys, as owners of the lake house. (Doc. 1 ¶¶ 13-15.) In Count III, Mr. Finnerty asserts a claim against Oak Ridge, alleging that it was negligent in constructing the lake house. (Doc. 1 ¶¶ 19-21.) In Count IV, Plaintiff Lynn Finnerty ("Mrs. Finnerty") asserts a claim for loss of consortium against the Wileys, the Orths and Oak Ridge. (Doc. 1 ¶¶ 22-23.)

In Count II, which is the count relevant to the Orths' motion, Plaintiffs alleged that:

17. At all times relevant and material hereto, the Lake House that the Orths sold to the Wileys contained a defective and dangerous condition in that the deck was not constructed in accordance with accepted construction practices or in accordance with local, state and national building codes and statutes and was improperly affixed to the Lake House.

18. The Orths knew or in the exercise of reasonable care should have known of this defective and dangerous condition. (Doc. 1 ¶¶ 17-18.)

On December 12, 2006, the Orths filed a Motion to Dismiss Plaintiffs' claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 13.) The Orths filed a brief in support of their motion on December 21, 2006. (Doc. 15.) Plaintiffs filed their brief in opposition on January 4, 2007. (Doc. 16.) The Orths did not file a reply brief within the allotted time period. Consequently, the Orths' motion is now ripe for disposition.

LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.