The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
OPINION AND VERDICT OF THE COURT
Plaintiff filed this action in negligence pursuant to 28 U.S.C. § 1332. Plaintiff is an over the road truck driver. On June 6, 2004, Plaintiff parked his tractor-trailer in the truck parking lot of the Flying J. Travel Plaza located in Carlisle, Pennsylvania. The property is owned by CFJ Properties and is operated by Flying J., Inc. Flying J. PDG, Inc. caused construction of the plaza by third parties. On June 6, 2004, Plaintiff fell in the parking lot and alleges he received injuries as a result of the fall. He brings this action in negligence and seeks damages only for pain and suffering. A non-jury trial was held on April 21, 2008.
The following facts were either stipulated by the parties or found by the court.
1. Defendant CJF Properties owns the subject real estate located at 1501 Harrisburg Pike, Carlisle, Pennsylvania.
2. Defendant Flying J. Inc. is an entity that operated, maintained and controlled the Flying J. Travel Plaza located in Carlisle, Pennsylvania on the date of the accident.
3. The Flying J. PDG Inc. caused the Flying J. Travel Plaza to be constructed or designed by contracting with third parties for design and construction services.
4. Plaintiff was a business invitee at the Flying J. Travel Plaza.
5. Plaintiff tripped over a curb and fell on June 6, 2004 at approximately 10:00 a.m.
6. Plaintiff would have tripped over the curb and fallen even if the drainage ditch into which he fell did not exist.
B. Findings of Facts by the Court*fn2
At trial, the following evidence was presented. On the day before the accident at issue, Plaintiff reported to the Carlisle Hospital complaining of pain in the face, headaches and dizziness. He was treated for an ear infection. He had balancing problems the evening of June 5, 2006.*fn3
Plaintiff testified that immediately before he tripped and fell, he was inspecting his rig and was not looking where he was going. He was aware, however, of the curb over which he allegedly tripped. He further testified that he observed his wife, stepdaughter and dog on the ...