PITTSBURGH – One defendant has dodged a default judgment, in a Michigan family’s lawsuit alleging that an improperly placed duck crossing sign outside a Pittsburgh-area Holiday Inn hotel was the cause of injuries they sustained.
E.Z. (a minor, by and through his parents), Jeff Zaker and Antoinette Zaker of Brownstown, Mich. first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 17 versus JSKLD Hospitality Enterprise, LLC of Belle Vernon, SAP Hotels, LLC (doing business as “SAP Hospitality Management”) of Bucyrus, Ohio, InterContinental Hotel Groups of Atlanta, Ga. and Hockey Time Productions, Inc., also of Ohio.
“Minor plaintiff and his father, Jeff Zaker, stayed at the Holiday Inn Express Pittsburgh – North from Oct. 7, 2022 through Oct. 9, 2022. They were staying at this hotel so that the minor plaintiff could participate in a hockey tournament. This hockey tournament was organized and managed by defendant Hockey Time Productions. As part of this, Hockey Time Productions secured blocks of rooms for hockey tournament participants and their families. Hockey Time Productions website currently requires out-of-town hockey tournament participants such as the minor plaintiff and his family to reserve hotel rooms through Hockey Time Productions, from a list of approved hotels. This requirement for hockey tournament participants and their families to reserve a hotel room through Hockey Time Productions was in place at all relevant times,” the suit stated.
“Hockey Time Productions failed to properly inspect and assess the hotel to determine whether the premises were safe for the hockey tournament participants and their families, or in the alternative, Hockey Time Productions failed to inspect and assess the hotel at all. If Hockey Time Productions had made a proper inspection and assessment, it would have discovered that the premises were unsafe, as is set forth in this complaint. The property is not located near a farm nor in the immediate vicinity of the habitat of wild ducks such that ducks would cross the hotel entranceway with any frequency warranting the use of a ‘Slow Duck Crossing’ sign. Its placement and use were not reasonable. The hotel is located next to a large trucking terminal and all around the hotel are cement/asphalt commercial enterprises. With the motivation to generate a laugh for the hotel’s employees and/or its patrons, an authorized agent, acting within the scope of their agency with SAP and/or JSKLD, (whose identify will be determined through discovery), purchased and erected a ‘Slow Duck Crossing’ in a strip of grass between the parking lot and the hotel’s entrance.”
The suit added that the hotel caters to families of minors who come to attend a hockey tournament on a regular basis as the hotel is close to the Alpha Ice Complex and during the weekend in question, the hotel was filled to capacity with multiple hockey teams of kids.
“On Oct. 8, 2022, plaintiff collided with the ‘Slow Duck Crossing’ sign, located in a strip of grass between the drop-off/pick-up lane in front of the hotel and the hotel parking lot. The sign itself had no functional purpose, as the drop off/pick up lane at the Holiday Inn Express was not an actual duck crossing. Traffic did not actually need to slow for ducks to cross from the parking lot to the hotel. Instead, the Holiday Inn Express staff, who lured ducks onto the hotel property with food scraps, installed the sign as a gag prop. In the alternative, if ducks actually crossed the drop-off/pick-up lane at the Holiday Inn Express, it was an artificial traffic condition or attractive nuisance created by JSKLD and/or SAP to lure the ducks to that location with food scraps. No engineering judgment or studies were done of physical or traffic factors to justify the use, location or safety perimeters of the duck crossing sign,” the suit said.
“The use and placement of the Duck Crossing sign did not conform to industry standards, guidelines, and/or customs. The sign was made of metal and had sharp edges, and was affixed to a metal pole. The top of the sign is approximately 59 inches above the ground. The sign is located in an area that is heavily traveled, as it is located between the front parking lot and front entrance of the Holiday Inn Express. The sign did not have any reflective tape or any other illuminating device so that it could be seen at night. The area the sign was in was not illuminated. The sign was installed on the hotel property by a manager of the Holiday Inn Express, who was an employee or agent of JSKLD and/or SAP, or in the alternative was installed by another employee or agent of JSKLD and/or SAP, and/or in the alternative was installed at the direction of or with the permission of JSKLD and/or SAP and/or InterContinental. Following plaintiff’s collision with the sign, minor plaintiff received emergency care in Pittsburgh and has been treating thereafter. As a result of the collision with the sign, plaintiffs suffered severe harm, including scaring to face and emotional trauma.”
On July 10, defendants JSKLD and Hockey Time Productions each filed answers to the complaints, complete with affirmative defenses, cross-claims against their respective co-defendants and counterclaims for negligence against the plaintiffs.
“Plaintiffs’ claims, including but not limited to E.Z., are barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act. Plaintiffs, including E.Z., assumed the risk of any and all injuries and/or damage which they are alleged to have suffered. Plaintiffs’ complaint fails to state a claim upon relief can be granted. The damages alleged by Plaintiffs in their complaint did not result from the acts or omissions of JSKLD, but from actions and/or omission of third-parties over whom JSKLD had no control or obligation to control. The negligent acts or omissions of other persons or entities may constitute a superseding and/or intervening cause of the injuries claimed by plaintiffs. The alleged acts or omissions of JSKLD were not a factual cause or legal cause of plaintiffs’ alleged injuries, losses or damages. JSKLD had no notice or knowledge of the defect as alleged by plaintiffs, which bars plaintiff’s recovery,” per JSKLD’s affirmative defenses.
“Defendant JSKLD asserts that it did breach any alleged duty to minor plaintiff or plaintiff parents. Defendant JSKLD asserts that the sign at issue, to the extent that it was a dangerous condition, which is denied by JSKLD, then the sign was open and obvious. Defendant JSKLD asserts that minor plaintiff’s actions in failing to observe his surroundings was the proximate and factual cause of his injuries. Defendant JSKLD asserts that allegations in this case do not warrant a recovery for punitive damages against JSKLD under Pennsylvania law. Defendant JSKLD asserts that the allegations in this case do not warrant a recovery for attorney’s fees or other court costs. Defendant JSKLD Hospitality Enterprise, LLC reserves the right to raise additional defenses up to and including the time of trial.”
Meanwhile, Hockey Time Productions asserted defenses of its own.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiffs’ claims and any alleged injuries and/or damages are barred by plaintiff E.Z.’s contributory negligence, carelessness and/or recklessness generally and in the following particulars: a) in failing to look where he was going; b) in failing to exercise that degree of care and caution for his own safety as required under the circumstances then and there existing; c) in engaging in horse play and/or rough housing with others; d) in carelessly failing to observe an open and obvious condition of the duck crossing sign; e) in colliding with a clearly visible object through inattentiveness and/or horseplay; f) in darting into the path of the sign through inattentiveness and/or horseplay; g) in stepping back into the path of the sign; h) in failing to traverse the path he was taking across the area where the sign was located in a safe manner; and i) in failing to see what was then and there to be seen while traversing the area where the sign was located,” according to their defenses, in part.
“Plaintiffs’ claims are limited by, barred by, and/or subject to Plaintiff’s contributory and/or comparative negligence and the Pennsylvania Fair Share Act. Plaintiffs’ claims are barred because any harm, injuries, or damages were the result of plaintiff E.Z.’s knowing, voluntary assumption of the risk of injury, including but not limited to engaging in horse play at or near the sign. The alleged injuries and/or damages claimed by the plaintiff were pre-existing and/or were the result of intervening and/or superseding causation not of defendant Hockey Time’s doing and over which defendant had no control. The actions or omissions of third persons, parties, or entities were the sole cause or a cause of plaintiff’s accident and/or injuries for which defendants are neither responsible nor liable.”
Both individual defendants levied cross-claims against each of their fellow co-defendants and argued the minor’s parents were collectively negligent in failing to prevent the child from roughhousing with his teammates near the sign in question, which they contend was the proximate cause of the child’s injuries.
The plaintiffs motioned for default judgment against SAP Hotels, LLC on July 20.
“Minor plaintiff, by and through his parents, filed a complaint on May 17, 2023 against several defendants for injuries he received on the premises of the Holiday Inn Express Pittsburgh – North. Plaintiff served defendant SAP Hotels, LLC with a summons and complaint pursuant to Federal Rule of Civil Procedure 4(c) on May 22, 2023 and May 23, 2023 at different addresses. Defendant SAP Hotels, LLC is a limited liability company, and is not a minor. SAP Hotels, LLC was required to file an answer by July 10, 2023, pursuant to an order of Court,” the motion stated.
“Defendant SAP Hotels, LLC has not filed an answer as of July 20, 2023, which is well past this deadline. No attorney has filed an entry of appearance on behalf of defendant SAP Hotels, LLC. The Clerk entered a default against defendant SAP Hotels, LLC pursuant to Federal Rule of Civil Procedure 55(a) on July 20, 2023. Plaintiff’s claim is not for a sum certain or a sum that can be made certain by computation. Plaintiff requests that the Court enter a default judgment against SAP Hotels, LLC as to liability and conduct a hearing to determine the amount of damages, pursuant to Federal Rule of Civil Procedure 55(b)(2).”
UPDATE
However, the potential entry of default against SAP Hotels, LLC was overturned by U.S. District Court for the Western District of Pennsylvania Judge Robert L. Colville on Aug. 3.
“Plaintiff’s motion for default judgment against defendant SAP Hotels, LLC (doing business as “DBA SAP Hospitality Management” is denied as moot),” Colville said.
For premises liability negligence, the plaintiff is seeking compensatory damages (including past and future medical expenses), punitive damages, attorney’s fees, costs and expenses, interest and any other relief that this Honorable Court deems just and proper.
The plaintiff is represented by Richard E. Shenkan of Shenkan Injury Lawyers, in New Castle.
The defendants are represented by James Patrick Cullen of Marshall Dennehey Warner Coleman & Goggin and Jamie L. Lenzi of Cipriani & Werner, plus Marie Milie Jones, Jason A. Rosenberger and Maria N. Pipak of Jones Passodelis, all in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00835
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com