PITTSBURGH – A state court judge has denied preliminary objections from the hosts of a party where a man suffered a severe spinal cord injury at a house party in a swimming pool accident, allegedly after being over-served with alcohol.
Andrew Reese and Courtney Reese of Export first filed suit in the Allegheny County Court of Common Pleas on June 3 versus Thomas E. Zahn of Pittsburgh, Cara Perricelli Zahn of Murrysville and John Doe.
“On or about the evening of July 18, 2020, defendants Thomas E. Zahn and Cara Perricelli Zahn hosted a social gathering at their home, which would last into the morning hours of July 19, 2020. Defendant John Doe is a fictitious name for the bartender working at the party at 1218 Twelve Oaks Ct., Murrysville, PA 15668 on July 18, 2020 and into the morning hours of July 19, 2020,” the suit said.
“The name of this individual, after reasonable investigation, is unknown to plaintiffs. The use of a fictitious name is permitted under Pennsylvania Rule of Civil Procedure 2005, allowing the use of fictitious names due to plaintiffs’ inability to ascertain the party’s identity despite diligent efforts, so as to preserve a cause of action against said defendant within the applicable statute of limitations.”
The Zahns invited the Reeses to the adult-only party, who accepted the invitation, to which the Zahns provided alcohol for their guests to consume, including: A fully-stocked bar with hard alcohol, beer and other alcoholic drinks next to their swimming pool; funnels for consuming beer; Jell-O shots; Individual bottles of Jameson whiskey; and specialty cocktails.
Knowing their guests would become intoxicated, the Zahns pre-arranged for Ubers to provide rides home to the guests, including the plaintiffs.
“Unsurprisingly, plaintiff Andrew Reese became intoxicated. The defendants knew Mr. Reese was intoxicated, but encouraged him to drink more. Because of the defendants’ knowledge as to Mr. Reese’s intoxication and observations of his behavior, including but not limited to, observing Mr. Reese attempt to dive into the pool from a second-floor height and observing Mr. Reese dive headfirst into the shallow end of the pool, the defendants knew and/or should have known that Mr. Reese was a danger to himself and others,” the suit stated.
“Defendants failed to remove Mr. Reese from the party. Defendants Thomas E. Zahn’s and Cara Perricelli Zahn’s pool had no warnings against diving. Defendants Thomas E. Zahn and Cara Perricelli Zahn failed to mark their pool clearly with depth indicators. At approximately 12:02 a.m. on July 19, 2020, Mr. Reese and Mr. Zahn wrestled and grappled on the pool deck near the shallow end of the pool. Mr. Reese attempted to push Mr. Zahn and Mr. Reese’s momentum carried him stumbling toward the edge of the pool. Mr. Reese jumped into the air and dove into the shallow end of the pool. Mr. Reese entered the shallow end of the pool headfirst and struck his head on the bottom of the Thomas E. Zahn’s and Cara Perricelli Zahn’s pool, suffering injuries, including a spinal cord injury which has left Mr. Reese a quadriplegic.”
According to the plaintiffs, the defendants’ negligence is the direct and proximate cause of this incident.
In preliminary objections to the complaint filed June 28, the Zahns oppose the plaintiffs’ version of events and said they did not breach any duty to Mr. Reese.
“While Mr. Reese sustained significant spinal injuries, the allegations in the complaint establish that those injuries are solely the result of his own decision-making, and not of any breach of duty owed by the Zahns. To the contrary, Pennsylvania’s social host doctrine precludes any liability under the facts as alleged in the complaint and plaintiffs cannot avoid that result by attempting to frame their claims as a premises liability action,” the objections stated.
“Further, plaintiffs cannot set forth a cognizable claim under any other theory of liability, as the social host doctrine precludes the existence of any duty based on the gratuitous provision of alcohol to an adult, which is the underlying basis of all of plaintiffs’ claims. The factual allegations of the complaint do not establish that the Zahns owed, or breached, any duty to Mr. Reese, and the Court should dismiss the complaint with prejudice pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), for its legal insufficiency.”
The Zahns added that the allegations of plaintiffs’ complaint “fail to set forth a duty cognizable under Pennsylvania law.”
“Pennsylvania’s courts routinely have followed the rationale in Klein v. Raysinger and emphasized that it is the alcohol-consuming adult, rather than any social host or other alleged facilitator, who bears sole responsibility for the result of his or her intoxication. The allegations of plaintiffs’ complaint fall squarely within the social host doctrine, requiring dismissal pursuant to Rule 1028(a)(4) for failure to state a claim against the Zahns, as a matter of law,” per the objections.
“While plaintiffs attempt to frame their allegations as premises liability claims, and other theories of liability, the crux of their liability theory is that the Zahns, personally and/or through the bartender, served Mr. Reese alcohol or otherwise made alcohol available at their private party, and that Mr. Reese became intoxicated to the point where he was a danger to himself. The bases of their liability claims, in large part, are that the Zahns failed to send Mr. Reese home, remove Mr. Reese from the party and/or the property, stop him from drinking, stop serving alcohol and/or stop the party. Accordingly, any alleged danger Mr. Reese encountered was the sole product of his own decision to consume alcohol to the point of intoxication.”
In an Aug. 19 response, the Reeses stood by their claims and asked the Court to throw out the Zahns’ preliminary objections.
“Plaintiff Andy Reese was horribly injured when he dove into the swimming pool of defendants Tom and Cara Zahn. Mr. Reese’s spinal cord was severed. As a result, He has no feeling in his lower body and very limited use of his upper body. Mr. Reese is now permanently dependent on the care of others,” the response stated, in part.
“Defendants Tom and Cara Zahn’s preliminary objections must be overruled. Plaintiffs have a well pled complaint in conformity with the Pennsylvania Rules of Civil Procedure and stated numerous appropriate theories of liability. This includes: Mr. Zahn grabbing Mr. Reese as he dove into the pool and directly causing Mr. Reese to strike the bottom of the pool and suffer these injures; Mr. Zahn and Mrs. Zahn providing services to Mr. Reese and doing so in a negligent manner, directly causing Mr. Reese’s injuries; and Mr. Zahn and Mrs. Zahn having a dangerous condition on their property which directly caused Mr. Reese’s injuries.”
The response concluded by stating that the defendants “improperly requested that this Court make factual determinations prior to the record being developed, which is not the appropriate standard” – and that, rather, the plaintiffs’ complaint “has stated recognized theories of liability sounding in negligence, which, at a minimum, reasonable minds could differ on each of these theories of liability.”
UPDATE
Allegheny County Court of Common Pleas Judge Arnold I. Klein dismissed the defendants’ preliminary objections on Aug. 29.
“And now, this 29th day of August 2022, it is ordered as follows: The preliminary objections of defendants Thomas and Cara Zahn are denied,” Klein said.
For multiple counts of negligence, negligent infliction of emotional distress and loss of consortium, the plaintiffs are seeking damages in excess of the arbitration limits and in excess of $50,000 in compensatory damages, delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, interest, allowable costs of suit and brings this action to recover the same.
The plaintiffs are represented by Robert J. Mongeluzzi, David L. Kwass and Benjamin J. Baer of Saltz Mongeluzzi & Bendesky, in Philadelphia.
The defendants are represented by William J. Conroy and Thomas M. Hinchey of Campbell Conroy & O’Neil, in Berwyn.
Allegheny County Court of Common Pleas case GD-22-006842
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com