PITTSBURGH – A proprietor defendant named under Dram Shop liability, in a wrongful death case surrounding a drunk driving accident which killed the plaintiff’s 23-year-old daughter, denies that she overserved the intoxicated driver with alcohol her prior to the crash.
James Eckelberry (individually and as Administrator of the Estate of Kaitlyn Marie Eckelberry) first filed suit in the Allegheny County Court of Common Pleas on April 9, 2021 versus Madisyn Nicole O’Connor of Butler, ALM Industries, Inc. of Valencia, Jay’s Mount Royal Inn, Inc., Mt. Royal Inn, Inc. and Carl J. Barto (individually and doing business as “Mt. Royal Inn”) of Pittsburgh, plus Jay’s Other Place, of Allison Park.
“On Feb. 21, 2020, Madisyn Nicole O’Connor was the operator of a Jeep Cherokee on Route 8 (William Flynn Highway), in or near Hampton, Allegheny County, Pennsylvania. At that same time and place, Kaitlyn Marie Eckelberry was operating a Hyundai Elantra. The Jeep Cherokee operated by defendant Madisyn O’Connor was owned and/or controlled by defendant ALM Industries, Inc.,” the suit stated.
“Defendant Madisyn O’Connor, in operation of the motor vehicle, went left of center, crossed the center line, and struck the vehicle operated by Kaitlyn Marie Eckelberry head on at or near 3802 William Flynn Highway, Hampton, PA 15101. Upon information and belief, plaintiff avers that after the crash, and as a direct and proximate result thereof, Kaitlyn Marie Eckelberry was treated by paramedics at the scene and was pronounced dead at the scene on Feb. 22, 2020.”
According to the lawsuit, defendant Madisyn O’Connor at the time of her operation of the motor vehicle as stated above, was intoxicated and under the influence of alcohol and/or illegal drugs and her ability to operate a vehicle was impaired. Upon information and belief, plaintiff avers that defendant O’Connor’s blood alcohol content was more than three times the legal limit.
After the accident, and as result of her operation of the vehicle, defendant O’Connor was charged with various crimes arising out of the crash including homicide by motor while driving under the influence, homicide by vehicle, involuntary manslaughter, driving under the influence of alcohol, speeding and/or reckless driving.
“In the hours prior to the subject accident, defendant Madisyn O’Connor had patronized as a customer and invitee the establishment of Defendant Jay’s Other Place and then the establishment of defendants Jay Mount Royal Inn, Inc., Mt. Royal Inn, Inc. and/or Carl J. Barto individually and doing business as Mt. Royal Inn,” per the suit.
“While at the establishment of defendant Jay’s Other Place, defendant Madisyn O’Connor was visibly intoxicated but was still sold and/or served alcoholic beverages in that condition by employees and agents of defendant Jay’s Other acting within the course and scope of such employment and agency.”
Attorneys for Carl J. Barto, Mt. Royal Inn & Jay’s Other Place provided an answer to the complaint on May 11, denying that they had overserved O’Connor on the day of the crash and that she had only been present in the bar for 15 minutes.
“It is specifically denied that defendant O’Connor was visibly intoxicated when she patronized Mt. Royal Inn for approximately 15 minutes as an invitee on the day of the subject accident. It is further averred that defendant O’Connor was served one mixed drink, which she did not fully consume, before leaving approximately 15 minutes after her arrival,” the answer read, in part.
“Defendant O’Connor did not present signs that would lead a reasonable person to believe that she was in any way impaired or intoxicated. It is further averred that defendant O’Connor was only served one mixed drink that she did not fully consume at Mt. Royal Inn and therefore defendant Mt. Royal Inn, its agents or employees could not have been aware of defendant O’Connor’s alleged intoxication.”
The answer denied the remaining substantive allegations in the case and countered that defendant O’Connor was never present at the establishment of defendant Jay’s Other Place on the day of the subject accident.
On Feb. 3, the plaintiff filed a motion for leave to file an amended complaint, seeking to add a host of defendants to the case, including: Linsey Messagno, individually and t/d/b/a Double L Bar Inc., Double L Inc.,; ThPF Inc. JThPF Inc. t/d/b/a Ford’s Tavern, Carl J. Barto, individually and t/d/b/a Jay’s Other Place’ JLDB, Inc. and John Doe defendants 1-12.
Allegheny County Court of Common Pleas Judge John T. McVay Jr. approved the motion and thus, an amended complaint was then filed on Feb. 15, including the additional defendants.
O’Connor filed an answer with new matter and a cross-claim on March 11.
“Recovery for the accident, injury and/or damage of which plaintiff complains is barred, reduced or otherwise affected by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Act, if applicable, and/or other statutes of the Commonwealth of Pennsylvania relating to motor vehicle insurance and/or motor vehicle incidents. Ms. O’Connor is entitled to a credit for any collateral source of payment made to the plaintiff, including, but not limited to, those payments made within the scope of 75 Pa. C.S.A. Section 1722,” per the answer.
“To the extent justified by the evidence developed in discovery or the testimony at the time of trial, defendant avers that any award for punitive and/or exemplary damages violates the United States Constitution, and the Constitution of the Commonwealth of Pennsylvania and therefore, plaintiff’s claims for punitive damages should be dismissed with prejudice as a matter of law. To the extent developed through discovery, Ms. O’Connor reserves the right to assert any defense available under Pennsylvania Rule of Civil Procedure 1030.”
O’Connor further asserted a cross-claim for liability against all of her co-defendants for contribution and indemnification.
UPDATE
Defendants Messagno and Double L, Inc. filed preliminary objections to the complaint on April 21, charging that the company was misidentified as “Double L Bar, Inc.” and the plaintiff provided insufficiently-pled claims.
“Plaintiff is incorrect in the identification of defendant Double L, Inc. Plaintiff fails to list specific entity numbers or identifiers as to defendant Double L, Inc. Defendant Double L, Inc. is not registered at either address indicated in plaintiff’s complaint. Accordingly, defendant Double L, Inc. is improperly identified,” per the preliminary objections.
“Plaintiff alleges that defendant Messagno is individually liable under each count. There are no terms or provisions cited that form the basis of any duty owed or specific averments of duties breached by defendant Messagno. Plaintiff’s amended complaint amounts to bald assertions with legal conclusions. There is little in the amended complaint to point to that could be construed as a factual allegation as it pertains to Messagno. The facts that are presented, even if true, fail to support any cause of action.”
For multiple counts of negligence, negligent entrustment, dram shop statute (negligence per se), survival and wrongful death, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, plus court costs, interest, such other and further relief as the Court may deem just and equitable, and a trial by jury.
The plaintiff is represented by Michael P. Marando of Pelini Campbell & Williams, in Canfield, Ohio.
The defendants are represented by Michael F. Fives of Fives & Associates and Edward E. Yurcon of Walsh Barnes & Zumpella, both in Wexford, plus Mark R. Lane of Dell Moser Lane & Loughney and P. Chad Schneider of Caputo & Caputo, both in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-003627
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com