Maria Fitchett
121 Cady Street
Rochester, NY 14608
(585) 664-9860
Appellant in pro per
supreme court of new york
appellate division – fourth department
| maria fitchett,Appellant,vs.benderson development company, llc; ed kane; tjx companies inc. (marshalls); and ernie herman,Respondents. | Case No.: 2019-1265Appeal No.:appellant’s brief |
Dated this ___ day of ____________________, 2021.
Respectfully Submitted,
___________________________________
Maria Fitchett,
Appellant in pro per
Table of Contents
A. JURISDICTIONAL STATEMENT
- This Court has appellate jurisdiction granted by the Constitution of the State of New York § 7 and 8.
- This is an appeal from a decision of the New York Supreme Court, County of Monroe (the “Trial Court”), dated January 29th, 2021. Exhibit 1.
B. STATEMENT OF ISSUES
- The issues raised in this appeal are whether Appellees owed Appellant duty of care; whether Appellees breached that duty of care; and whether Appellant’s injury was as a result of breach of that duty of care.
C. PARTIES
- Appellant Maria Fitchett is a female adult of sound mind and a resident of 121 Cady Street, Rochester, NY 14608.
- Appellee Benderson Development Company is a limited liability company in the business of renting commercial space to tenants. The company’s business address is 100 Chestnut Street #1120, Rochester, NY 14604.
- Appellee Ed Kane is a male adult of sound mind and an employee of Benderson Development Company, LLC. He was, and continues to be sued in his personal and official capacity as a Risk Management Professional.
- Appellee TJX Companies Inc. (Marshalls) is a company registered in the State of Massachusetts. At all material times, TJX Companies Inc. was a tenant of Benderson Development Company, LLC at 720 Jefferson Road, Market Square Shopping Center.
- Appellee Ernie Herman is a male adult of sound mind and an employee of TJX Companies Inc. He was, and continues to be sued in his personal and official capacity as the Chief Executive Officer of TJX Companies Inc.
D. STATEMENT OF FACTS
- On or about March 28th 2016, Appellant was shopping at Marshalls Department Store at approximately 2:30pm. She completed her purchases and exited the clothing store.
- As she was approximately 5 feet from Marshalls Department Store, she was hit on the top of her head and shoulder by a metal garbage lid (bonnet) that was propelled through air by a gust of wind.
- The metal garbage lid (bonnet) was supposed to be properly secured to the receptacle with a security cable located outside Marshalls Department Store but it was not.
- An ambulance from the town of Henrietta and the Monroe County Sheriff arrived at the scene and took reports of what had happened.
- Appellant complained of head trauma and dizziness and she was rushed to hospital. She was treated and later discharged that day.
- Appellant went to see her doctor on March 27th 2016 to get medical attention.
- As a result of being hit by the metal garbage lid (bonnet), Appellant suffered a bump and a concussion to the head, damage to her spine, damage to the tendon on her right shoulder, and stiffness to her neck. She was also unable to sleep because of the injuries and became depressed.
E. PROCEDURAL HISTORY
- Appellant filed her Complaint for Negligence on March 28th, 2019.
- Appellees filed an Answer to the Complaint denying all allegations made by Appellant.
- Appellees filed a Notice of Motion with Affidavit of Matthew A. Lenhard, Esq. and attached exhibits on September 9th, 2020.
- Appellees also filed a Memorandum of Law on September 9th, 2020.
- Appellant filed an Opposition to Appellee’s Notice of Motion and a Motion for Summary Judgment on November 4th, 2020.
- Appellees filed a Reply Affirmation of Matthew A. Lenhard, Esq. on November 10th, 2020.
- Appellant filed an exhibit showing weather conditions on November 17th, 2020.
- The Trial Court considered the above pleadings and entered an order granting Appellee’s Motion for Summary Judgment, denying Appellant’s Cross-Motion for Summary Judgment and dismissing the matter.
- Appellant now seeks redress from this Honorable Court.
F. LEGAL ARGUMENT
a. Negligence by Appellees
- The Restatement (Second) of Torts defines negligence as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.
- The Restatement (Second) of Torts § 282 outlines the elements of negligence as (1) the existence of a legal duty that the defendant owed to the plaintiff; (2) defendant’s breach of that duty; (3) plaintiff’s sufferance of an injury; and (4) proof that defendant’s breach caused the injury.
- Appellees had a duty of care to ensure that the building as well as all structures and fixtures outside the building were well maintained and in good condition so that it would be safe for those in and around the building. The metal garbage lid (bonnet) was supposed to be properly secured to the receptacle with a security cable. Appellees were fully aware of the defect but elected not to do anything about it. There were invoices for lid replacements. Appellees had a duty of care to ensure that the garbage lid (bonnet) was properly secured to the receptacle with a security cable.
- Appellees breached the duty of care by failing to properly secure the garbage lid (bonnet) to the receptacle with a security cable.
- As a result of Appellees’ breach of duty of care to properly secure the garbage lid (bonnet) to the receptacle with a security cable, it was blown away by a gust of wind and it landed heavily on Appellant’s head and shoulder, injuring her.
- Appellant suffered a bump and a concussion to the head, damage to her spine, damage to the tendon on her right shoulder, and stiffness to her neck as a result of being hit by the garbage lid (bonnet). Were it not for the negligence of Appellees, Appellant would not have suffered the physical injuries. She also endured untold pain and misery as a result of being hit. Appellant incurred medical costs to treat her injuries in the sum of $______.
- In Solomon v. City of New York, 66 NY 2d 1027 (1985), the court held as follows: “To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v. Glens Falls City School Dist., 53 NY 2d 325, 333, citing Prosser, Torts § 30, at 143 [4th ed]).” Appellant has established all the aforementioned elements, thereby proving a prima facie case of negligence against Appellees. Appellees are therefore liable to pay Appellant damages for breach of contract.
b. Error of the Trial Court
- The Trial Court erred by failing to find that Appellees owed Appellant duty of care, that they breached that duty, and that Appellant suffered as a result of breach of that duty. Appellant has clearly proved all elements of negligence according to statute and case law, thereby establishing a prima facie case.
- The Trial Court erred by dismissing Appellant’s action. Appellees were clearly negligent and Appellant suffered as a result of their negligence. The Trial Court ought to have found them liable and subsequently awarded them damages.
c. Bias by the Trial Court
- Appellant has reason to believe that the learned judge of the trial court was biased against her. The learned judge claimed to know Appellees’ attorney very well. For instance, the learned judge allowed Appellees’ attorney to make a racist remark towards Appellant.
- Judges are supposed to be impartial at all times and should ensure that all litigants, whether attorneys or self-representing litigants, are accorded a fair trial. The learned trial judge favored Appellees’ attorney because he appeared in the courthouse 3-4 times a week. When Appellant stated that Appellees’ attorney had made a racist remark, the learned trial judge said that Appellees’ attorney could never utter a racist remark.
- At the hearing for the Motion for Summary Judgment, the learned judge allowed the admission of hearsay evidence by Appellees’ attorney. The rule for hearsay evidence is outlined in Article 8.01 (1)(a) of New York State’s Civil Practice Law and Rules which expressly provides as follows: “Hearsay is not admissible unless it falls within an exception to the hearsay rule as provided by case law or statute or as required by the Federal Constitution or the New York State Constitution.” The learned judge should not have allowed Appellees’ attorney to enter inadmissible evidence. Appellant strongly believes that if the hearsay evidence had been disallowed, the outcome of the hearing would have been different.
G. PRAYER FOR RELIEF
REASONS WHEREFORE, Appellant respectfully requests this Honorable Court to grant her the following reliefs:
- Reverse the Trial Court’s judgment entered on January 29th, 2021;
- A Declaration that Appellees are liable for negligence;
- Award Appellant general damages in the sum of $1,500,000.00;
- Award Appellant punitive damages; and
- Any other relief that this Honorable Court deems necessary and proper.
Dated this ___ day of ____________________, 2021.
Respectfully Submitted,
___________________________________
Maria Fitchett,
Appellant in pro per
VERIFICATION
I, Maria Fitchett, being duly sworn depose and say that I am the Appellant in the above-entitled action, that I have read the foregoing Appellant’s brief and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this 1st day of November, 2021.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the _____ day of __________________, 2021 by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
Matthew A. Lenhard, Esq.
Rupp Baase Pfalzgraf Cunningham, LLC
The Powers Building, Suite 300
Rochester, NY 14614
(585) 381-3400
Dated this ____ day of ____________________, 2021.
Respectfully Submitted,
___________________________________
Maria Fitchett,
Appellant in pro per
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