Date: 10-01-2012

Case Style: Patty L. Walters v. J. Herzog and Sons, Inc. d/b/a Oakwood Mall

Case Number: CJ-2011-232

Judge: Dennis Hladik

Court: District Court, Garfield County, Oklahom

Plaintiff's Attorney: Michael Roberts

Defendant's Attorney: Carolyn S. Smith and Thomas A. Paruolo

Description: COMES NOW the Plaintiff, Patty L. Walters, and for her cause of action against the Defendant, J. Flerzog and Sons, Inc., d/b/a Oakwood Mall, states as follows:

1. The Plaintiff, Patty L. Walters, is a resident of Enid, Garfield County, Oklahoma.

2. The Defendant, J. Herzog and Sons, Inc., d/b/a Oakwood Mall, is a corporation doing business in Oklahoma.

3. The cause of action asserted herein arose in Garfield County, Oklahoma.

4. The District Court of Garfield County, Oklahoma has jurisdiction over the parties and claims asserted herein.

5. Venue of this action is appropriate in Garfield County, Oklahoma.
6. On October 22,2010, the Plaintiff, Patty L. Walters, was a customer at the Oakwood Mall at 4125 W. Owen K. Garriott in Enid, Oklahoma.

7. The Defendant had a duty to the public to ensure it’s sidewalks were safe to the public.

8. The Defendant failed to properly maintain it’s sidewalks on October 22, 2010.

9. The Defendant breached it’s duty to the public and Patty L. Walters.

10. The Defendant was negligent.

11. As a result of the Defendant’s negligence, the Plaintiff sustained injuries to her mind and body.

12. The Plaintiff is entitled to judgment against the Defendant in an amount in excess of
$10,000.00.

WHEREFORE, premises considered, the Plaintiff, Patty L. Walters, prays for judgment against the Defendant, J. Herzog and Sons, Inc., d/b/a Oakwood Mall, in an amount in excess of $10,000.00 for actual damages; and for such other and further relief as is just and equitable.

COMES NOW, Defendant J. Herzog and Sons, Inc., d/b/a Oakwood Mall, and for its Answer to Plaintiff’s Petition, states and alleges as follows:

1. This Defendant admits the allegation contained in Paragraph 1 of Plaintiff’s Petition.

2. In response to Paragraph 2 of Plaintiff’s Petition, this Defendant states it is a foreign corporation doing business in the State of Oklahoma.

3. This Defendant admits the allegation contained in Paragraph 3 of Plaintiff’s Petition.

4. This Defendant is without sufficient information to either admit or deny the allegation contained in Paragraph 4 of Plaintiff’s Petition.

5. This Defendant is without sufficient information to either admit or deny the allegation contained in Paragraph 5 of Plaintiff’s Petition.

6. This Defendant admits the allegation contained in Paragraph 6 of Plaintiff’s Petition.

7. Paragraph 7 of Plaintiff’s Petition asserts a legal conclusion to which no response is required. Nonetheless, to the extend Paragraph 7 assert factual allegations, such allegations are denied and this Defendant demands strict proof thereof.

8. This Defendant denies the allegations asserted in Paragraph 8 of Plaintiff’s Petition and demands strict proof thereof.

9. This Defendant denies the allegations asserted in Paragraph 9 of Plaintiff’s Petition and demands strict proof thereof.

10. This Defendant denies the allegations asserted in Paragraph 10 of Plaintiffs Petition and demands strict proof thereof.

11. This Defendant denies the allegations asserted in Paragraph 11 of Plaintiffs Petition and demands strict proof thereof.

12. This Defendant denies the allegations asserted in Paragraph 12 of Plaintiffs Petition and demands strict proof thereof.

For further answer and defense, this Defendant avers as follows:

FIRST AFFIRMATIVE DEFENSE

Plaintiff’s Petition fails to state a claim against Defendant upon which relief can be granted and Plaintiff is therefore not entitled to recover herein.

SECOND AFFIRMATIVE DEFENSE

Defendant denies it was in any way or manner negligent or that they caused or contributed to Plaintiffs injuries, if any.

THIRD AFFIRMATIVE DEFENSE

Defendant denies it owed any legal duty to Plaintiff with regard to the allegations contained in Plaintiff’s Petition and Plaintiff is therefore not entitled to recover herein.

FOURTH AFFIRMATIVE DEFENSE

Any alleged item or condition upon which Plaintiff allegedly fell was open and obvious.

FIFTH AFFIRMATIVE DEFENSE

Any negligence on the part of Defendant, if any, was less than the negligence of Plaintiff; such negligence on the part of Plaintiff was greater than or equal to any alleged negligence on the part of Defendant and Plaintiffs negligence should bar or reduce any recovery on the part of Plaintiff against Defendant.

SIXTH AFFIRMATIVE DEFENSE

Any injuries or damages suffered by Plaintiff were proximately caused or contributed to by the negligence or comparative fault of third parties, over whom Defendant had no control and for whose acts Defendant is not responsible.

SEVENTH AFFIRMATIVE DEFENSE

The incident described in Plaintiff’s Petition was an unavoidable accident, casualty or misfortune over which Defendant had no control, and Defendant is therefore not responsible for Plaintiff’s damages, if any.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff’s damages, if any, were brought about by a supervening or intervening cause for which Defendant is not responsible.

WHEREFORE, having answered Plaintiffs Petition, Defendant prays that judgment be entered in their favor and that they be awarded their attorneys’ fees, costs and any further relief the Court deems equitable and proper.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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