The Court of Common Pleas of York County, Pennsylvania recently granted the Motion for Summary Judgment brought by Callahan & Fusco on behalf of their client, one of the defendant contractors, dismissing the plaintiffs’ action against the client. See Tully, Declan, et al. v. Durazo Construction Specialties, LLC, et al.
The underlying suit arises from an accident that took place on April 6, 2019, when a minor fell into a below ground pool still under construction, outside his parents’ property. As a result of the accident, the minor struck his head, face, and other body parts sustaining injuries therein. On July 25, 2019, the minor’s parents filed suit against the general contractor and the various sub-contractors involved in their pool’s construction alleging claims of negligence resulting from the defendants’ failure to fence off the in-ground pool under construction at the plaintiffs’ home, a claim for negligent infliction of emotional distress alleging that the parents witnessed their child fall into the unfinished pool, and a claim for breach of contract against all defendants for their respective failure to perform the work they were contracted to do on the plaintiffs’ pool adequately and completely and for reasons unrelated to the April 6 incident.
After the conclusion of the plaintiffs’ depositions and the concrete subcontractor co-defendant’s deposition, the moving party, a pool liner sub-contractor co-defendant, filed their Motion for Summary Judgment, requesting the court to dismiss them from the underlying matter. In support of their motion, the moving party argued that even if plaintiffs’ alleged facts are accepted as true, at no point did they breach a duty owed to the plaintiffs in the course of their work on the premises nor did they materially breach any contract between them and the plaintiffs. Specifically, the co-defendant argued they never undertook a duty to maintain, erect, or inspect the safety fence installed at the construction site. The moving co-defendants addressed plaintiffs’ contention of contractual breach, by pointing out that they never entered a contract with the plaintiffs, instead the only contract they entered into was with the general contractor, as such there was no prima facie case to support plaintiffs’ allegations of a material breach of contract. Regarding plaintiffs’ negligent infliction of emotional distress, co-defendants argued at no point did plaintiffs witness nor observe their child’s accident.
The record supported the moving party’s argument as it contained testimony of the concrete subcontractor co-defendant, affirming that the subcontractor removed the plastic safety fence installed during the construction of the plaintiffs’ pools upon receiving permission by the plaintiffs. The testimony also provided that not only did plaintiffs approve the removal of the safety fence, but plaintiffs were also going to put the safety fence back up. The record contained testimony of the plaintiff, revealing that she did not see her child fall into the pool and only witnessed her child after the accident. These admissions proved to be key in granting the co-defendants’ Motion for Summary Judgment.
From a defense perspective, Tully teaches us the importance of discovery and how every stage provides a new opportunity to continually improve existing strategies. Therefore, prior to engaging in litigation, it is crucial to select an experienced defense counsel with a keen eye to details who can adapt to revelations brought forth through discovery in the best interest of the client.