MEDIA – A man who crashed his motorcycle while under the influence of alcohol and suffered spinal and leg injuries as a result insists that the pub overserved him alcoholic beverages and allowed him to drive at the end of the night.
Roger Lee Burke and Colleen Burke of Upper Chichester first filed suit in the Delaware County Court of Common Pleas on April 14 versus Tumble Inn (doing business as “Pub on the Pike”), its owner Joseph Magee and two other John and Jane Doe owners, all of Prospect Park.
“Upon information and belief on or about April 15, 2021, plaintiff Roger Lee Burke, started drinking alcoholic beverages at Tumble Inn, located in Prospect Park, Delaware County, Pennsylvania at approximately 8 p.m. Plaintiff continued drinking a significant amount of alcohol throughout the night and into the early morning hours of April 16, 2021, to which he consumed approximately 13 beers and one shot of distilled spirits,” the suit said.
“Upon information and belief, on or about April 15, 2021, and continuing into the early morning hours of April 16, 2021 (8 p.m. to 2 a.m.) at Tumble Inn, plaintiff was served alcoholic beer and distilled spirits as a patron by the employee bartender. Upon information and belief, plaintiff and employee bartender had developed a personal relationship, and at some point during the night the two decided that when the bar closed, the bartender would follow plaintiff to her residence in Marcus Hook, Delaware County, Pennsylvania.”
The suit added that despite the visibly intoxicated state of plaintiff Roger Lee Burke, the defendants served him additional alcoholic beverages.
“At approximately 2:15 a.m. on April 16, 2021, a visibly intoxicated plaintiff exited Tumble Inn and with the bartender following closely behind in her personal vehicle, began operating his Harley Davidson motorcycle on a public highway. At approximately 2:22 am on April 16, 2021, on the ramp from Stewart Avenue (Exit 8) to I-95 South (Vietnam Veterans Memorial Highway), Ridley Park Borough, Delaware County, Pennsylvania, plaintiff lost control around the curve of the on ramp and was thrown from the motorcycle,” the suit stated.
“As a result of said accident, plaintiff sustained serious head injuries and was transported to the Crozer-Chester Hospital by Tinicum Township Medic Unit. As a result of said accident, plaintiff suffered serious injuries, consisting of but not limited to, a brain bleed, cervical fracture, right tibia fracture, neck and low back pain and mood swings. As a result of said accident, plaintiff was in a coma for three days, hospitalized for three weeks, and in rehabilitation for four weeks after that.”
The suit said that by serving additional alcoholic beverages to plaintiff Roger Lee Burke, the Tumble Inn defendants “created a dangerous and hazardous condition for plaintiff and the general public.”
On Aug. 21, defense counsel filed preliminary objections in response to the lawsuit, countering that its allegations of common law negligence related to the Dram Shop Act and of recklessness, reckless conduct and the demand for punitive damages were in error and should be stricken from the complaint.
“If plaintiff Roger Lee Burke is able to prove that he was served alcohol while visibly intoxicated, it is not necessary to establish other negligent acts. Consequently, all general negligence allegations in plaintiffs’ complaint relating to the service and/or monitoring of alcoholic beverages should be stricken. Specifically, Sub-Paragraphs 33(e), (f), (g), (i), (k) and (l) improperly set forth general negligence claims under the guise of statutory dram shop causes of action against moving defendants and must be stricken from the complaint,” according to the objections.
“Further alleged deficiencies regarding training and supervision, i.e. policies and procedures with its staff, failure to hire, failing to call 911 and failing to have drink limits do not set forth a viable cause of action against the moving defendants pursuant to the Pennsylvania Dram Shop Act. Accordingly, these general negligence claims set forth in Sub-Paragraph 33 (e), (f), (g), (i), (k) and (l) must be stricken. If these general negligence averments are not stricken, the jury would be confused regarding the appropriate legal standards for these allegations that all stem from the same conduct of the moving defendants’ business. Additionally, if these general negligence averments are not stricken moving defendants will be forced to conduct a fishing expedition during the discovery process which is contrary to the letter and spirit of the discovery rules in Pennsylvania.”
The objections continued that the allegations relating to “recklessness”, “reckless conduct” and the demand for punitive damages “appear to be boilerplate negligence allegations” – rather than an example of outrageous conduct with a reckless indifference for the rights of others, a criterion needed to attain punitive damages.
“Plaintiffs Roger Lee Burke and Colleen Burke have failed to plead any evidence that moving defendants had knowledge of a visibly intoxicated patron(s) and exhibited a conscious disregard, evil motive or reckless indifference to justify a claim for reckless conduct and/or punitive damages. The complaint clearly states that plaintiffs’ alleged injuries were the result of the actions of plaintiff, Roger Lee Burke, leaving on his motorcycle even though as the complaint concedes he had another available ride from the bartender,” the objections stated.
“Visibly intoxicated’ is a legal conclusion with no facts to impute knowledge of such visible intoxication to moving defendants. As a matter of law, all references to ‘recklessness’, ‘reckless’ conduct and claims for punitive damages in plaintiffs’ complaint should be stricken, without prejudice, based upon the lack of factual allegations to support plaintiffs’ claims.”
UPDATE
Plaintiff counsel answered the preliminary objections on Sept. 8, charging that the plaintiffs’ claims were indeed valid.
“Plaintiffs concur that no federal or state appellate court in Pennsylvania has addressed the specific issue of whether Section 4-493 (i) or Section 4-497 of the Dram Shop Act offers the exclusive remedy for an injury resulting from a violation of that Act. Defendants argue that as such the court and the instant matter can properly rule that the liquor code statute at issue pre-empts common law negligence claims. Obviously, the court is not compelled to rule in such fashion. Further, the court is not compelled to rule in the same fashion as that of neighboring counties as asserted by the moving defendants. Plaintiffs believe this matter and all negligence allegations of plaintiffs’ complaint relating to the service and/or monitoring of alcoholic beverages should remain in the complaint and fairly considered by the ultimate finder of fact,” according to the answer.
“Plaintiffs believe that the allegations of recklessness or reckless conduct should not be dismissed or stricken from the complaint but rather decided by the ultimate finder of fact. Plaintiffs fairly present allegations of conduct showing a reckless indifference to the plaintiff and to others. Plaintiffs’ complaint is not merely boilerplate, but fairly states a cause of action indicating outrageous conduct on behalf of the defendants resulting ultimately in catastrophic injuries to the plaintiff.”
For counts of negligence (Dram Shop Act) and loss of consortium, the plaintiffs are seeking, jointly and severally, damages in excess of $50,000, exclusive of costs pre-judgment interest, post-judgment interest and punitive damages.
The plaintiffs are represented by Joseph A. Malley III of Malley Law, in Media.
The defendants are represented by Steven P. Cholden and Sharon Piper of BBC Law, in Philadelphia.
Delaware County Court of Common Pleas case CV-2023-003225
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com