PITTSBURGH – A state court judge has denied the defense’s preliminary objections in a wrongful death lawsuit surrounding the drowning death of the plaintiff’s wife, during a vacation the two had taken to St. Martin to celebrate their 35th wedding anniversary.
William Cook (individually and as Executor of the Estate of Lora Lynn Cook) of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on April 8 versus AM Resorts, L.P. and ALG Vacations Corporation (doing business as “Apple Vacations”) of Newtown Square, and Travel Leaders of Pittsburgh.
“Before July 2021, defendant Travel Leaders, sold an all-inclusive Apple Vacation package to Secrets St. Martin Resort and Spa to plaintiff William Cook and his wife, decedent, Lora Lynn Cook. The sale of the vacation package occurred within Allegheny County, Pennsylvania. The all-inclusive Apple Vacation included a seven-night stay at Secrets St. Martin Resort and Spa, dining, drinks, pool and beach wait service, daily maid service, daytime activities, nightly entertainment, theme parties, oceanfront bars and entertainment, airfare and ground transportation,” the suit said.
“The reservation confirmation sent from defendant Travel Leaders to plaintiff William Cook and his wife, decedent Lora Lynn Cook, contained the Apple Vacations logo. On Aug. 7, 2021, plaintiff William Cook and his wife, decedent Lora Lynn Cook, arrived at Secrets St. Martin Resort and Spa. On Aug. 8, 2021, at approximately 11 a.m., decedent Lora Lynn Cook, went swimming in the ocean at the beach at Secrets St. Martin Resort and Spa. Suddenly, plaintiff William Cook saw his wife, decedent Lora Lynn Cook, face-down in approximately four feet of water.”
The suit added that plaintiff William Cook called for help and rushed into the water to save his wife, pulling her onto the beach contained within the property of Secrets St. Martin Resort and Spa. After getting his wife onto the beach, he continued to call for help. Guests of the resort responded and attempted to perform CPR on the decedent, the suit continued.
“At no time did any employee or personnel from Secrets St. Martin Resort and Spa provide any assistance or render any first aid to decedent Lora Lynn Cook, despite numerous calls for help by plaintiff William Cook and other guests. After approximately 30 minutes, a physician, not affiliated with Secrets St. Martin Resort and Spa, arrived on the scene and provided first aid, including an AED. The physician was unable to resuscitate decedent Lora Lynn Cook. At approximately 12 p.m., decedent Lora Lynn Cook, was pronounced dead by the physician on the beach of Secrets St. Martin Resort and Spa. Mrs. Cook’s body was covered with a blanket and was later taken to a nearby hospital,” the suit stated.
“At no time during the rescue and attempts at resuscitating Mrs. Cook, did any staff or employees of Secrets St. Martin Resort and Spa provide any assistance or render any aid. There were no lifeguards at the beach or nearby pools at the Secrets St. Martin Resort and Spa. Decedent Lora Lynn Cook’s official cause of death was drowning. Decedent Lora Lynn Cook’s death was caused by the joint and several negligence of defendants. As a result of the death of his wife, plaintiff William Cook claims all recoverable damages pursuant to the Pennsylvania Wrongful Death Act, 42 Pa.C.S.A. Section 8301 and Survival Act, 42 Pa.C.S.A. Section 8302.”
In preliminary objections filed on Aug. 2, the Delaware County-based defendants countered that the case lacks subject matter jurisdiction and was brought in an improper venue – adding that the case should have been brought in a Delaware County court.
“Allegheny County Court of Common Pleas does not have subject matter jurisdiction over the plaintiff’s claims as the incident appears to have occurred entirely in St. Martin. Accordingly, plaintiff’s complaint should be dismissed and they can re-file their action in St. Martin. Plaintiff’s complaint should be dismissed due to improper venue. If the complaint is not dismissed, the matter should be transferred to the Delaware County Court of Common Pleas, where moving defendants are located,” the objections stated.
“Moving defendants do not have a registered office or principal places of business in Allegheny County. None of the moving defendants ‘regularly conduct business’ in the County of Allegheny. The only proper venue against moving defendants is Delaware County. The alleged incident did not occur in Allegheny County, and no transaction or occurrence took place in Allegheny County out of which the cause of action arose.”
The plaintiff answered the preliminary objections on Aug. 19.
“In 2021, over the course of several months and numerous consultations, plaintiff and decedent, consulted with defendant Travel Leaders about an all-inclusive vacation to the Caribbean to celebrate their 35th wedding anniversary. Said consultations occurred within Allegheny County, Pennsylvania,” the answer to the objections stated, in part.
“To the extent a response is required, the averments are specifically denied. By way of further answer, it is specifically denied that the Fair-Trade Contract is enforceable in this case or plaintiff is bound by the Fair-Trade Contract. Plaintiff’s complaint specifically alleges that defendants owned, operated, maintained and marketed the Secrets St. Martin Resort and Spa. Because defendants owned, operated, maintained and marketed the Secrets St. Martin Resort and Spa, the Fair-Trade Contract does not apply. Accordingly, plaintiff’s complaint should neither be dismissed nor transferred to Delaware County.”
Travel Leaders filed an answer including new matter and a cross-claim on Sept. 23.
“Plaintiffs failed to mitigate their damages, plaintiffs’ claims are barred by the statute of limitations and plaintiffs failed to state a cause of action for which relief can be granted. Defendant asserts the absence of legal duty as an absolutely bar to plaintiffs’ claims. Defendant asserts the contributory or comparative negligence of plaintiffs in failing to mitigate their damages or notify defendant of any discrepancies or problems,” the answer stated.
“Defendant asserts that some or all of plaintiffs’ damages have already been paid. Defendant assert that plaintiffs’ claims may be barred in whole or in part by the doctrine of collateral estoppel. Defendant asserts that plaintiffs’ claims may be barred in whole or in part by impossibility of performance on the part of defendant. Defendant asserts that plaintiffs’ claims may be barred in whole or in part by the doctrines of laches, waiver, immunity from suit and statutes of fraud.”
In a cross-claim, Travel Leaders redirects liability for the incident to its co-defendants – which those same co-defendants denied in a response filing on Oct. 4.
UPDATE
On April 4, Allegheny County Court of Common Pleas Judge Andrew Szefi overruled the defense’s preliminary objections.
“It is hereby ordered that the preliminary objections filed on behalf of defendants AM Resorts, L.P. and ALG Vacations Corp. (doing business as “Apple Vacations”), are overruled. Defendants must answer plaintiff’s complaint within 30 days,” Szefi stated.
For multiple counts of negligence and negligent infliction of emotional distress, the plaintiff is seeking damages, jointly and severally, in excess of the jurisdictional arbitration limit, plus interest, costs and a trial by jury.
The plaintiff is represented by Joshua P. Geist of Goodrich & Geist, in Pittsburgh.
The defendants are represented by William J. Taylor Jr. and Enrico C. Tufano of Wilson Elser Moskowitz Edelman & Dicker in Philadelphia, plus John R. Biedrzycki III in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-003860
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com