MEDIA – An Upper Darby tavern is looking to open and strike a default judgment levied against it, in the case of a Philadelphia woman attending a birthday party at the tavern and who alleged she was shot by another patron who had been allegedly over-served with alcohol during his stay.
Lashawnda Dixon of Philadelphia first filed suit in the Delaware County Court of Common Pleas on Nov. 15 versus L&D 7160, Inc. (doing business as or also known as “Rudy’s J&M, Inc.” and Rudy’s Tavern) of Upper Darby, plus John Doe Nos. 1-10.
On the night in question, June 10, 2021, the suit alleged that defendant John Doe No. 1, a patron of defendant Rudy’s Tavern who was unknown to plaintiff Dixon, consumed so many alcoholic beverages which were arranged by defendant Rudy’s Tavern, that he became boisterous violent and aggressive to other patrons present on the premises, causing danger to patrons and employees therein.
“Plaintiff Dixon on June 10, 2021 was a patron at defendant Rudy’s, who had rented tables from it at a rate of $300 to enjoy a birthday party of a friend,” the suit said.
“On June 10, 2021 at about 1 a.m., plaintiff Dixon was exiting defendant Rudy’s upon conclusion of the birthday celebration, when defendant John Doe No. 1 shot plaintiff Dixon in her foot while agents, servants, employees and/or security personnel of defendant Rudy’s looked on and failed to intervene.”
Dixon added that her shooting injuries and damages were caused “by the negligent, reckless, grossly-negligent and/or willful/wanton action and/or inactions of defendant Rudy’s, by continuing to serve alcoholic beverages to the visibly-intoxicated defendant John Doe No. 1, in violation of the requirements of the Pennsylvania Liquor Code.”
“As a result of this shooting, plaintiff Dixon has suffered an injury which is permanent irreparable and severe. As a further result of the defendants L&D 7160 Inc.’s negligence, plaintiff Dixon was unable to attend to her daily duties and occupation, thereby suffering a loss of earnings and/or impairment of earning capacity, which plaintiff Dixon may continue to suffer for an indefinite time in the future, which such loss of income and/or impairment of earning capacity,” the suit stated.
“As a further direct and proximate result of defendants L&D 7160, Inc.’s actions, negligence and/or carelessness, plaintiff Dixon has suffered in the past and may suffer in the future, inconvenience, embarrassment, emotional distress, humiliation, scarring, pain and suffering and loss of life’s pleasures, all to plaintiff’s great detriment and loss financial and otherwise.”
On Jan. 3, plaintiff counsel filed a praecipe to obtain a default judgment, given the lack of legal response from the defendant. Three days later, on Jan. 6, the Delaware County Court of Common Pleas’s Office of Judicial Support certified the default judgment, in an amount yet to be determined.
After the default judgment was entered, the defendant answered the litigation the same day, on Jan. 6.
The tavern vigorously denied serving the patron to the point of intoxication, that the patron Doe became boisterous, violent and intoxicated, that there was inadequate security, that the employees lacked proper training, and that the dangerous patrons were permitted to remain on the premises.
According to the establishment, while it admitted the shooting incident took place, it argued that it occurred outside of the premises either on the sidewalk, street or parking lot.
“Plaintiff’s complaint fails to state in whole or in part a cause of action against defendants upon which relief can be granted. Plaintiff’s alleged cause of action is barred by the applicable statute of limitations. No acts or omissions on the part of answering defendant, his servants, agents, and/or employees was a substantial factor in causing the injuries described in plaintiff’s complaint. Plaintiff’s alleged claims are barred, or subject to reduction pursuant to the provisions of the Pennsylvania Comparative Negligence Act. Plaintiff’s alleged cause of action is barred because, plaintiff assumed the risk of her injuries alleged in the complaint,” the answer’s affirmative defenses stated, in part.
“If plaintiff was injured as alleged, said allegations being specifically denied, then said injuries were caused through the sole carelessness recklessness and/or negligence of the plaintiff. If plaintiff was injured as alleged, said allegations being specifically denied, then said injuries were caused through the sole carelessness, recklessness and/or negligence of the third parties over whom answering defendant had no control or duty to control. Plaintiff has failed to join indispensable necessary and proper parties. Plaintiff’s claims are barred by the applicable Workers’ Compensation Act. Plaintiff’s claims are barred by statutory and/or common law.”
The tavern countered that “if the plaintiff was injured as alleged, said allegations being specifically denied, then such injuries were caused by the criminal acts of third parties over whom answer had no control or duty to control.”
On Jan. 24, the plaintiff replied to the tavern’s new matter, characterizing it as nothing more than conclusions of law to which no response was required – and that if a response were mandatory, the allegation was denied and strict proof of it was demanded at trial.
UPDATE
The tavern initially filed to open and strike the default judgment within 10 days on Jan. 7, but to no response or avail from the Court – leading the defendants to re-file for action on such a motion, with support from opposing counsel.
“Plaintiff commenced this action by way of complaint filed on Nov. 15, 2021 and the complaint was served on Dec. 2, 2021. Plaintiff mailed a 10-day notice of default to defendants on Dec. 23, 2021. Counsel for defendant entered his appearance on Jan. 5, 2022 and filed an answer and new matter on Jan. 6, 2022, however the default judgment had been entered on the same date,” the motion stated.
“On Jan. 7, 2022 defendants filed a petition to open within 10 days of the default pursuant to Section 237.3(b) along with a proposed answer and new matter. The parties request that this Honorable Court to grant defendants’ petition to open the default judgment in the above matter.”
For multiple counts of negligence, Dram Shop liability and punitive damages, the plaintiff is seeking damages, individually, jointly and/or severally in excess of $50,000, plus costs, delay damages, punitive damages and all other damages to be determined at the time of trial.
The plaintiff is represented by James T. Marsh of Justice Law Center, in Philadelphia.
The defendants are represented by John J. McCreesh IV of McCreesh McCreesh & Cannon, in Upper Darby.
Delaware County Court of Common Pleas case CV-2021-009377
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com