Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:06-cv-00581-GMS

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Filed 10/05/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FRANCIS TULLY, Plaintiff, v. ANTHONY COLLICK, Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-0581 (GMS)

TRIAL BY JURY OF SIX DEMANDED

DEFENDANT'S ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES 1. 2. 3. 4. Admitted upon information and belief. Admitted upon information and belief. Admitted upon information and belief. It is admitted that on or about the 5th day of August, 2004, the Plaintiff was at the home

of the Defendant located at 928 Clayton Street, New Castle, Delaware. It is further admitted that the Plaintiff was at the Defendant's home after the Defendant inquired of his local Sear's store regarding replacement windows. The Defendant denies specifically inviting the Plaintiff to his home for any purpose. 5. 6. Admitted upon information and belief. Denied as stated. It is admitted that upon returning from his car, the Plaintiff appeared at

Defendant's door way with an injury to his left shin. 7. 8. Denied. Answering Defendant is without sufficient information or knowledge to either admit or

deny the averment of this paragraph of the Complaint. 9. Denied as stated. The Defendant did call 911 for the Plaintiff.

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10.

Answering Defendant is without sufficient information or knowledge to either admit or

deny the averments of this paragraph of the Complaint. 11. Answering Defendant is without sufficient information or knowledge to either admit or

deny the averments of this paragraph of the Complaint. 12. Answering Defendant is without sufficient information or knowledge to either admit or

deny the averments of this paragraph of the Complaint. 13. Denied. COUNT I 14. reference. 15. 16. 17. 18. Denied. Denied. Denied. Denied. COUNT II 19. reference. 20. 21. 22. Denied. Denied. Denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff's causes of action are barred in whole or in part by the applicable statute of limitations. Answering Defendant incorporates its responses to paragraphs 1 through 18 herein by Answering Defendant incorporates the responses to paragraphs 1 through 13 herein by

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THIRD AFFIRMATIVE DEFENSE Plaintiff's causes of action are barred in whole or in part by the assumption of a known risk and/or contributory negligence. FOURTH AFFIRMATIVE DEFENSE Plaintiff's causes of action are barred in whole or in part by the provisions of the Delaware Comparative Negligence Act. Plaintiff was comparatively negligent in the following manner: (a) (b) same circumstances; (c) conditions; (d) He was otherwise negligent. FIFTH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries as alleged in his Complaint, which is herein strictly denied, then such injuries were caused by the acts or omissions of entities/individuals over which/whom Answering Defendant had no control nor legal duty to control. SIXTH AFFIRMATIVE DEFENSE At all times material hereto, Answering Defendant acted with due care and proper care under the circumstances. SEVENTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate his damages. EIGHTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of the persons to the within action. He walked in an area with open and obvious defective and/or dangerous He failed to maintain a proper lookout; He failed in his duty to use the due care a reasonable person should use under the

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NINTH AFFIRMATIVE DEFENSE Plaintiff has failed to join indispensable, necessary and proper parties. TENTH AFFIRMATIVE DEFENSE Answering Defendant neither knew nor by reasonable care could have known of any defective or dangerous condition at its premises. ELEVENTH AFFIRMATIVE DEFENSE If a defective or dangerous condition existed on the premises as alleged in the Complaint, then such condition was open and obvious. TWELFTH AFFIRMATIVE DEFENSE Plaintiff's injuries were not causally related to the incident at issue. THIRTEENTH AFFIRMATIVE DEFENSE Answering Defendant hereby gives notice that it intends to rely upon such other and further affirmative defenses which become available or apparent during pretrial discovery or litigation proceedings in this action and hereby reserves the right to assert any such affirmative defenses which are incorporated herein by reference and made a part hereof as though set forth fully herein. WHEREFORE, Answering Defendant respectfully requests that this cause of action against him be dismissed with prejudice. REGER RIZZO KAVULICH & DARNALL LLP

/s/ Cynthia G. Beam, Esquire Cynthia G. Beam, Esquire Delaware State Bar I.D. No. 2565 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Dated: October 5, 2006

Case 1:06-cv-00581-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FRANCIS TULLY, Plaintiff, v. ANTHONY COLLICK, Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-00581 (GMS)

TRIAL BY JURY OF SIX DEMANDED

CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 5th day of October, 2006 that two true and correct copies of Defendant's Answer to Complaint with Affirmative Defenses have been served electronically and/or by first class mail, postage prepaid, upon the following: Frank Marcone, Esquire 2530 N. Providence Road Media, PA 19063 REGER RIZZO KAVULICH & DARNALL LLP

/s/ Cynthia G. Beam, Esquire Cynthia G. Beam, Esquire Delaware State Bar I.D. No. 2565 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Dated: October 5, 2006

Case 1:06-cv-00581-GMS

(REV. 07/89) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS OF THE REVERSE OF THE FORM.)

Document 10-2 Filed 10/05/2006 CIVIL COVER SHEET

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I (a) PLAINTIFFS FRANCIS TULLY

DEFENDANTS ANTHONY COLLICK
C O U N T Y O F R E S ID E N C E O F FIR S T LIS T E D D E FE N D A N T N E W C A S T LE (IN U .S. PLAIN T IF F C A SE S O N LY) N O T E : IN LA N D C O N D E MN A T IO N C A S E S, U S E TH E LO C A T IO N O F T H E T R A C T O F LA N D IN V O LV E D

b) C O U N T Y O F R E S ID E N C E O F FIR S T LIS T E D P LA IN T IFF
(E XC E P T IN U .S . P LA IN T IFF C A S E S)

N /A

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) Frank Marcone, Esquire, 2530 N. Providence Road, Media, PA 19063 II. BASIS OF JURISDICTION
(PLACE AN X IN O NE BO X O NLY)

ATTORNEYS (IF KNOW N) Cynthia G. Beam, Esquire c/o Reger Rizzo Kavulich & Darnall LLP, 1001 Jefferson Plaza, Suite 202, Wilmington, DE 19801 III. CITIZENSHIP OF PRINCIPAL PARTIES
BOX (For D iversity C ases O nly) DEFENDANT PTF DEF Citizen of This State 91 91 Citizen of Another State Citizen or Subject of a Foreign Country 9 2 92 93 93 (PLACE AN X IN ONE FOR PLAINTIFF AND ONE BOX FOR PTF DEF ncorporated or Pricipal Place 9 4 94 Of Business in This State Incorporated and Principal Place 9 5 9 5 Of business in Another State Foreign Nation 9 6 9 6

9 1 U.S. Government 9 2 U.S. Government Defendent

9 3 Federal Question : 4 Diversity (Indicated Citizenship of Parties in Item III)

IV. CAUSE OF ACTION (CITE THE U S CIVIL STATUE U ND ER W HICH YOU ARE FILING AND W RITE A BRIEF STATEM ENT OF CAU SE D O N OT CITE JU R ISD IC TIO N STATUE S U N LESS D IVER SITY)

V. NATURE OF SUIT (PLACE AN x IN ONE BOX ONLY)
CONTRACT 9 9 9 9 110 Insurance 120 Manne 130 Miller Act 140 Negotiable Instrument PERSONAL INJURY 9 310 Airplane 9 315 Airplane Product Liability 9 320 Assault, Libel & Slander 9 330 Federal Employers' Liability 9 340 Manne 9 345 Manne Product Liability 9 350 Motor Vehicle 9 355 Motor Vehicle Product Liability TORTS PERSONAL INJURY 9 362 Personal Injury-Med Malpractice : 365 Personal Injury -Product Liability 9 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 9 370 Other Fraud 9 371 Truth in Lending 9 380 Other Personal Property Damage 9 385 Property Damage Property Liability FORFEITURE/PENALTY 9 610 Agriculture 9 620 Other Food & Drug 9 625 Drug Related Seizure of Property 21 USC 881 9 630 Liquor Laws 9 640 R.R. & Truck 9 650 Airline Regs 9 660 Occupational Safety/Health 9 690 Other LABOR 9 710 Fair Labor Standards Act 9 7 2 0 L a b o r /Mg mt . Relations 9 7 3 0 L a b o r /Mg mt . Reporting & Disclosure Act 9 740 Railway Labor Act 9 790 Other Labor Litigation 9 791 Empl. Security Act Ret. Inc. BANKRUPTCY 9 422 Appeal 28 USC 158 9 423 Withdrawal 28 USC 157 PROPERTY RIGHTS OTHER STATUES 9 422 State Reapportionment 9 410 Antitrust 9 430 Banks and Banking 9 450 Commerce/ICC Rates/etc. 9 460 Deportation 9 470 Racketeer Influenced and Corrupt Organizations 9 810 Selective Service 9 850 Securities/Commodities/ Exchange 9 875 Customer Challenge 12 USC 3410 9 891 Agricultural Acts 9 892 Economic Stabilization 9 893 Environmental Matters

9 150 Recovery of Overpayment & Enforcement of Judgment 9 151 Midicare Act 9 152 Recovery of Defaulted Student Loans (Excl. Veterans) 9 160 Stockholders Suits 9 190 Other Contract 9 195 Contract Product Liability

9 820 Copyrights 9 830 Patent 9 840 Trademark

SOCIAL SECURITY 9 861 HIA (1395ff) 9 862 Black Lung (923) 9 863 DIWC/DIWW (405(g)) 9 864 SSID Title XVI

REAL PROPERTY 9 210 Land Condemnation 9 220 Foreclosure 9 230 Rent Lease & Equipment 9 240 Torts to Land 9 245 Tort Product Liability 9 290 All Other Real Property

CIVIL RIGHTS 9 441 Voting 9 442 Employment 9 443 Housing/ Accommodations 9 444 Welfare 9 440 Other Civil Rights

PRISONER PETITIONS 9 510 Motions to Vacate Sentence Habeas Corpus: 9 530 General 9 535 Dealth Penalty 9 540 Mandamus & Other 9 550 Civil Right

9 865 RSI (405(g)) FEDERAL TAX SUITS 9 870 Taxes (U.S. Plaintiff or Defendant) 9 871 IRS -- Third Party 26 USC 7609

9 894 Energy Allocation Act 9 895 Freedom of Information Act 9 900 Appeal of Fee Determination Under Equal Access to Justice 9 950 Constitutionality of State Statues 9 Other Statutory Actions

VI. ORIGIN
from 9 1 Original Proceeding Judgment

(PLACE AN x IN ONE BOX ONLY)
Transferred from 9 2 Removed from 9 3 Remanded from 9 4 Reinstated or State Court Appellate Court Reopened CHECK IF THIS IS A CLASS ACTION : 5 another district (specify)

Appeal to D istrict

9 7 Judge 9 6 Multidistrict Litigation Magistrate

Eastern District of PA
DEMAND $ Check YES only if demanded in complaint: JURY DEMAND:_9 YES 9 NO

VII. REQUESTED IN

COM PLAINT: ___9 UNDER F.R.C.P 23 VIII. RELATED CASE(S) (See instructions) IF ANY
DATE

JUDGE _________________________ DOCKET NUMBER _____________________ SIGNATURE OF ATTORNEY OF RECORD

October 5, 2006
UNITED STATES DISTRICT COURT

/s/ Cynthia G. Beam, Esquire (Delaware State Bar I.D. No. 2565) COVER.USD