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Marsico v. Marsico

United States District Court, W.D. Pennsylvania

June 1, 2015

RORY M. MARSICO, Defendant


Maurice B. Cohill, Jr. Senior District Court Judge

Pending before the Court is Rory M. Marsico's ("Defendant") Motion for Summary Judgment [ECF No. 27] pursuant to Rule 56 of the Federal Rules of Civil Procedure and L.R. 56.1 of the Local Civil rules of the United States District Court for the Western District of Pennsylvania. Defendant seeks dismissal of the case, alleging that North Carolina law applies and that Louis S. Marsico ("Plaintiff) was contributorily negligent, thus barring any recovery for his injuries sustained when he fell through the floor in Defendant's bathroom.

On March 25, 2014, Plaintiff filed a Complaint in Civil Action [ECF No. 1] seeking compensatory damages as a result of injuries caused by a fall through Defendant's unfinished bathroom floor. Plaintiff alleges that his injuries are due to Defendant's negligence, specifically, that the Defendant failed to warn of the concealed dangerous condition of the floor before Plaintiff entered the bathroom.

On June 2, 2014, Defendant filed his Answer to Complaint [ECF No. 5] generally denying the allegations. On February 27, 2015, Defendant filed the Motion for Summary Judgment [ECF No. 27], claiming that there are no genuine issues as to any material fact, and Defendant is entitled to judgment as a matter of law. For the reasons set forth below, while agreeing that North Carolina tort law controls the case at bar, Defendant's Motion for Summary Judgment is denied. Defendant is not entitled to judgment as a matter of law.

I. Standard of Review.

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986).

In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150(2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny. 139 F.3d 386, 393 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48. An issue is "genuine" if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See Id. "Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

II. Relevant Facts.

Plaintiff is the father of Defendant [ECF No. 30 at 1]. Plaintiff is a lifelong resident of Pennsylvania and Defendant is a former resident Pennsylvania [ECF No. 30 at 1]. Defendant now resides in High Point, North Carolina but continues to maintain consistent contact with his family [ECF No. 30 at 1]. Defendant invited his parents to his home in North Carolina and Plaintiff and his wife accepted the invitation and travelled to North Carolina to visit their son [ECF No. 30 at 2]. At the time of the visit, Defendant was in the process of remodeling the bathroom in his home [ECF No. 30 at 2]. Plaintiff was aware of the construction going on in Defendant's home at the time of invitation [ECF No. 30 at 2] and believed that he and his wife would be doing "grunt" work in assisting his son with the remodeling process [ECF No. 31 at 2].

Plaintiff has spent his entire professional career in the construction business as an engineer or construction company owner [ECF No. 30 at 3]. However, Plaintiff, in deposition, testified that he has never worked with tools in his life and that he is not a craftsman [ECF No. 30 at 3]. Defendant, while working as a salesman and bartender, worked with and assisted his friends on their home remodeling projects, as well as undertaking other projects of his own [ECF No. 30 at 3].

In the past, Defendant would ask Plaintiff for construction advice, and when asked, Plaintiff would oblige and provide assistance [ECF No. 30 at 4]. During the father's trip to visit his son in North Carolina, Defendant requested help from Plaintiff in remodeling his bathroom, to which Plaintiff father obliged [ECF No. 30 at 4]. During the weekend trip, Plaintiff assisted Defendant with the remodeling project for 8-10 hours the day before the accident occurred [ECF No. 30 at 4].

On the day before the accident, Plaintiff suggested that Defendant glue and screw down the plywood to cover the open floor joists [ECF No. 30 at 5]. The next day, when his parents returned to the home, Defendant requested that Plaintiff inspect the areas where electrical switches and outlets would be installed in the bathroom [ECF No. 30 at 6]. Without asking about the status of the plywood, Plaintiff entered the bathroom construction area and fell through the floor where the floorboard was not secured [ECF No. 30 at 6]. A floor joist was not properly placed under the plywood [ECF No. 30 at 6]. As the plywood was not properly anchored, it acted like a diving board and flipped, causing the Plaintiff to fall through the floor at an area between the joists and where two pieces of plywood met [ECF No. 30 at 7]. The fall caused Plaintiff to jam his armpit in the floor joist and shattered Plaintiffs humerus bone [ECF No. 31 at 3]. Plaintiff immediately sought medical attention for his injuries [ECF No. 31 at 3].

Plaintiff later testified to looking into the bathroom, and observing all of the plywood on the ground, covering all open areas with no overlaps, all cut and fit with holes in them [ECF No. 30 at 6]. From this observation, Plaintiff believed that the holes in the plywood were filled with screws, and that Defendant had followed Plaintiffs suggestion from the day before [ECF No. 30 at 6].

III. Legal Analysis.

Defendant seeks summary judgment and argues two matters: (1) Defendant states that North Carolina's common-law defense of contributory negligence will bar recovery and is controlling rather than Pennsylvania's statutory defense of comparative negligence (42 Pa. Con. Stat. ยง 7102 (2014)); (2) Defendant contends that Plaintiff was contributorily negligent as a matter of ...

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