PITTSBURGH – A man who suffered a severe spinal cord injury at a house party where alcohol was consumed and argued that his paralysis was the result of the party hosts’ negligence in allowing him to be overserved with alcohol, has settled his case.
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 opposed 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 – which Allegheny County Court of Common Pleas Judge Arnold I. Klein did, dismissing the defendants’ preliminary objections on Aug. 29.
Subsequent to Klein’s denial of their preliminary objections and in an answer and new matter provided on Oct. 28, the defendants once again argued they were not careless or negligent, and demanded strict proof of same at trial. They also contended that the plaintiffs’ version of events were inaccurate.
“Answering defendants admit that they provided and made available certain types of alcoholic beverages for the guests that attended the party. Answering defendants further admit that they hired a bartender, defendant Jeffrey Magnotti, to serve alcoholic beverages for the guests, including mixed drinks and cocktails,” according to the defense’s answer, in part.
“Answering defendants further admit Mr. Magnotti was serving alcoholic beverages in the outside patio/pool house area which contained a bar. Answering defendants further admit that they allowed guests to use a funnel to consume beer. Answering defendants deny that they provided Jell-O shots and individual bottles of Jameson whiskey to guests. Answering defendants admit that plaintiff Andrew Reese consumed alcoholic beverages at the party and exhibited signs of intoxication, the extent of which is still under investigation. Answering defendants deny the balance of the allegations and characterizations as conclusions of law and strict proof thereof is demanded at trial.”
In new matter and affirmative defenses, the defendants continued to reject the allegations that they were negligent in this incident.
“Plaintiffs’ complaint fails to set forth a claim upon which relief can be granted. Plaintiffs’ claims may be barred and/or limited due to the failure to properly preserve, or spoliation of, evidence. Plaintiffs’ claims may be barred by the failure to join necessary and indispensable parties. Plaintiffs may be barred from any recovery because their alleged damages were caused by the acts or omissions of persons over whom answering defendants exercised no control and for whose conduct answering defendants bear no responsibility. Answering defendants did not breach any duties allegedly owed to plaintiff,” the new matter stated.
“Answering defendants performed each and every duty, if any, owed to plaintiffs. No act or omission on the part of answering defendants was the proximate legal direct cause of, or a substantial contributing factor to, plaintiffs’ damages. The act or omissions of individuals or entities beyond the control of answering defendants may have constituted intervening, superseding causes of the alleged incident and claimed damages. Plaintiffs’ claims for damages may be barred or reduced by plaintiffs’ percentage of comparative fault and/or contributory negligence in accordance with the Pennsylvania Fair Share Act. Plaintiffs’ damages are barred and/or limited by the applicable provisions of the Patient Protection and Affordable Care Act.”
“Plaintiffs’ claims may be barred or reduced by the alleged negligence of third parties. Andrew and Courtney Reese had familiarity with the depth of the pool from their prior personal use of the pool on multiple occasions and through accompanying their children’s use of the pool on multiple prior occasions. Plaintiffs have or may in the future receive collateral benefits from collateral source payers as defined under Pennsylvania law. Answering defendants are entitled to a set-off for all such sums paid or payable.”
UPDATE
On May 8, plaintiff counsel filed a praecipe explaining the case had been settled. Terms of the settlement were not disclosed.
“Kindly mark the above-referenced matter settled, discontinued and ended, with prejudice, as to all claims as to all parties,” the praecipe stated.
The plaintiffs were represented by Robert J. Mongeluzzi, David L. Kwass and Benjamin J. Baer of Saltz Mongeluzzi & Bendesky, in Philadelphia.
The defendants were represented by William J. Conroy, Thomas M. Hinchey and Andrew Notaristefano 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