PITTSBURGH – An Allegheny County man insists that he suffered a long list of injuries when an intoxicated fellow patron of Rivers Casino drunkenly fell on his right leg, and has refuted the casino’s attempts at rejecting liability for the events in question.
Thomas C. Taraba first filed suit in the Allegheny County Court of Common Pleas on June 16 versus Holdings Acquisition Co, L.P. (doing business as “Rivers Casino”), of Pittsburgh.
“On or about Jan. 7, 2022, at approximately 11:30 p.m., plaintiff was patronizing the Drum Bar area of the premises. At that same time, a visibly intoxicated patron of the casino lost their balance and fell backwards onto plaintiff’s right leg, causing severe injuries. At all times relevant and material hereto, defendant owed plaintiff, and other patrons similarly situated, a duty not to sell, furnish or give any alcoholic beverages to a visibly intoxicated person,” the suit stated.
“At all times relevant and material hereto, defendant continued to serve the patron while he was visibly intoxicated. At all times relevant and material hereto, the patron was severely inebriated, had very limited control of his motor functions, and presented a danger to fellow patrons in his immediate vicinity, including to plaintiff.”
The suit continued that the plaintiff suffered the following injuries: Complex tear of right lateral meniscus; Peripheral tear of right medial meniscus; Extensive bruising of the right thigh; Extensive bruising of the right foot; Extensive bruising of the right ankle; Effusion of the right knee; Swelling of the right thigh; Edema of the lower right leg; Right knee pain; Right thigh pain; Right ankle pain; Right foot pain; Bruises, contusions and other injuries in or about nerves, muscles, bones, tendons, ligaments, tissues and vessels of the body; and nervousness, emotional tension, anxiety and depression.
Rivers Casino filed preliminary objections on Aug. 24, seeking to strike allegations of “recklessness”, “reckless conduct” and likewise, the demand for punitive damages.
“At the outset, Taraba’s general and conclusory allegations in this matter, even if true, do not support a claim for punitive damages against Rivers. In that regard, Taraba has failed to plead any specific facts which may establish evil motive or ill will on the part of Rivers. Upon review of the complaint, however, Taraba has not averred specific facts which establish that Rivers’ agents, servants or employees served the unknown patron alcohol while he displayed visible signs of intoxication such as slurring of speech, impaired motor function, glassy eyes, etc. Moreover, Taraba also has not averred specific facts which establish, circumstantially such as through direct eyewitness testimony and/or observations, that Rivers’ agents, servants or employees served the patron alcohol while he appeared visibly intoxicated. In addition, Taraba has not averred facts such as the patron’s alleged blood alcohol level (BAC) which could establish when the patron began to display visible signs of intoxication, or whether he displayed such signs at the time he was allegedly served alcohol by Rivers’ agents, servants or employees,” the objections stated.
“Accordingly, Taraba has failed to plead specific facts which can establish that Rivers’ agents, servants or employees had a subjective appreciation of the potential risk of harm to Taraba which would result from them allegedly furnishing of alcohol to the unidentified patron. As such, accepting the pleadings as true, Rivers’ agents, servants or employees could not have acted, or failed to act, in conscious disregard of that risk. Although Taraba uses words such as ‘intentional’, ‘reckless’, ‘willful’ and ‘wanton’ to describe Rivers’ alleged conduct, the mere recitation of these ‘magic words’ does not transform the conduct into ‘extreme behavior’ worthy of an award of punitive damages. Indeed, aside from Taraba’s general use of these ‘magic words’, he fails to set forth any specific facts surrounding Rivers’ alleged service of alcohol to the patron while he was visibly intoxicated which could constitute ‘intentional’, ‘reckless’, ‘willful’ or ‘outrageous’ conduct. Therefore, Taraba’s claim for punitive damages and any reference to Rivers’ alleged ‘reckless’, ‘willful’ or ‘wanton’ and/or similar conduct should be stricken from the complaint, including but not limited to those averments set forth at Paragraph 17 of the complaint, as well as in Taraba’s prayers for relief.”
In a Sept. 11 response to the preliminary objections, the plaintiff maintained that his allegations of “recklessness”, “reckless conduct” and the demand for punitive damages were properly put forward.
“Plaintiff has sufficiently alleged facts necessary for imposing punitive damages and is warranted in including averments of recklessness at a procedural stage where no discovery has yet commenced. After all, [it] is clear that only through discovery can the plaintiff ascertain what the defendant knew or should have known about the risk involved and to require the plaintiff to plead specific facts about a defendant’s state of mind at the time a lawsuit is initiated is an undue burden. Because plaintiff has sufficiently pled a prima facie cause of action for the tort of negligence, [this] entitled plaintiff to plead recklessness generally,” the response brief stated.
“Lastly, plaintiff cannot fail to address the unreasonable pleading requirements defendant attempts to impose on plaintiff. Defendant’s conclusory allegation that plaintiff has not averred specific facts that defendant served the unknown patron alcohol while he displayed visible signs of intoxication is entirely unwarranted. Plaintiff pled defendant continued to serve the patron while he was visibly intoxicated, and specifically averred ‘at all times relevant and material hereto’ the patron was ‘severely inebriated, had very limited control of his motor functions, and presented a danger to fellow patrons in his immediate vicinity, including plaintiff. Defendant’s assertion that plaintiff had to make averments about specific eyewitness testimony and the patron’s blood alcohol level are manifestly inappropriate and unjustified where no depositions, written interrogatories and other fact-based discovery has taken place. These assertions are more appropriate points to be addressed at the close of discovery. Accordingly, defendant’s request for this Honorable Court to strike Paragraph 17 from plaintiff’s complaint with prejudice and all claims for punitive damages must be overruled.”
Allegheny County Court of Common Pleas Judge Daniel D. Regan sustained the preliminary objections, in an Oct. 4 order.
“It is hereby ordered, adjudged and decreed that defendant’s preliminary objections to plaintiff’s complaint are sustained without prejudice. Paragraph 17 of plaintiff’s complaint and all demands and/or prayer for relief are stricken without prejudice. However, plaintiff is granted leave to conduct discovery on this issue and raise said claim if sufficient facts are [learned] during discovery,” Regan said.
UPDATE
An Oct. 20 answer from the defendants argued that the events in question were ones over which Rivers Casino did not have control and/or responsibility, that the plaintiff’s alleged injuries and/or damages pre-existed and/or predated the events in question and the plaintiff was contributorily negligent, among other defenses.
In a Nov. 6 reply to the new matter, the plaintiff countered that the defendant’s new matter were nothing more than conclusions of law, to which no official response was required – and that to the extent any factual averments are made, the same are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029(e).
For counts of negligence and violating the Dram Shop Act, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, together with courts costs, interest, punitive damages, and such other relief as this Honorable Court may deem just and equitable.
The plaintiff is represented by Richard G. Talarico of Woomer & Talarico, in Pittsburgh.
The defendant is represented by Bruce E. Rende of Robb Leonard Mulvihill, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-007557
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com