PITTSBURGH – A nanny who filed suit against her former employers and claimed they fired her after their child struck her on the head with a wooden figurine and caused her to suffer a concussion, has agreed to drop her claim for punitive damages for now.
Bethany Phillips of Oakmont first filed suit in the Allegheny County Court of Common Pleas on Sept. 26 versus Christopher Duerr, Helen Duerr and Patricia Sims, all of Pittsburgh.
“Plaintiff Bethany Phillips is a highly qualified and experienced nanny who has worked for several families in the Pittsburgh area with great success. Phillips began working as a professional nanny for defendants Christopher and Helen Duerr on Nov. 29, 2021. Phillips was tasked with caring for the couple’s two year-old daughter, H.D. At the time of her hiring, Phillips was told by Mr. and Mrs. Duerr that they hoped for her to be a longtime employee who would care for H.D. and any additional children that the family welcomed. Phillips enjoyed her position with the Duerr family and took pride in providing excellent care to H.D,” the suit stated.
“Through her employment, Phillips worked 37 hours per week at a rate of $23 per hour. Phillips spent her time focused on providing age-appropriate childcare to H.D., including conducting learning activities, listening to music, playing games, doing arts and crafts and dancing together. It is important to note that H.D. was both large for her age and acted out aggressively with no visible signs or warnings. Mr. and Mrs. Duerr were aware of H.D.’s aggressive outbursts and did not work to correct or discipline H.D. and did not allow others, including Phillips, to discipline H.D. in a way to eliminate these behaviors. Despite the child’s propensities, Phillips was instructed by Mr. and Mrs. Duerr to not punish or reprimand H.D. in any manner. As a result, Phillips focused on re-directing H.D. to other activities at times when she became aggressive or agitated without prior warning.”
The suit continued that on March 7, 2022, Phillips went to the Duerrs’ home, as scheduled, to render nanny services to H.D. At that time, Mr. and Mrs. Duerr were away at a local hospital, where Mrs. Duerr was in the process of giving birth to the couple’s second child.
In anticipation for the birth of their second child, Mrs. Duerr previously informed Phillips that her mother, Patricia Sims, would to come to their home and care for H.D. during the time period when the couple was occupied at the hospital.
Mrs. Duerr told Phillips that Ms. Sims would be in charge of both the household and H.D. while she and Mr. Duerr were unavailable, but she requested that Phillips still come to the home on those dates in order to provide consistency for H.D. Phillips agreed.
“On March 7, 2022, Ms. Sims, was present at the Duerrs’ home to provide care to H.D. when Phillips arrived for the purpose of providing consistency for the child. At some point during the mid-morning on March 7, 2022, Phillips, Ms. Sims and H.D. were sitting together in the first-floor living room located off of the kitchen in the Duerrs’ home. Ms. Sims was seated on the couch, and Phillips was seated on the floor where she was playing with H.D. For a brief moment, H.D. walked behind Phillips, though she remained in the room and within the sight of Ms. Sims. Unbeknownst to Phillips, H.D. picked up a decorative bird figurine with a wooden base. The figurine, which was approximately eight-to-twelve inches in height, was located in the living room on top of a lamp table that was not far from where Phillips was seated. This hard, decorative object was within the reach of H.D,” the suit said.
“Without warning or provocation, H.D. walked up to Phillips from behind and slammed the figurine onto the top of her head. Ms. Sims, who was facing the child as H.D. grabbed the object and approached Phillips, provided no notice or warning of the obvious danger of the approaching child. Phillips immediately felt extreme pain in her head. In response, Ms. Sims told Phillips to put the bird on a top shelf in the cupboard and then gave Phillips an ice pack and encouraged her to sit on the couch. Phillips almost immediately developed light sensitivity and Ms. Sims gave her a pair of sunglasses to wear to help with her headache. Phillips did her best to pull herself together amid extreme pain in her head and eyes; however, she was disoriented and unable to cope with the discomfort. In the afternoon, she went home for the rest of the day, leaving H.D. in the care of her maternal grandmother — who had been designated to provide her care by Mr. and Mrs. Duerr.”
As Phillips said she began to experience worsening symptoms of head pain and brain fog, Mrs. Duerr, who had given birth to her second child that day, called Phillips from the hospital.
Mrs. Duerr asked Phillips if she was okay, and Phillips briefly described her symptoms. Ultimately, Mrs. Duerr told Phillips that she should take off the following day to rest. Phillips agreed and sent her congratulations to the family for welcoming their new baby.
“The next day, March 9, 2022, Phillips visited her primary care physician, Dr. Christina Alimin. She underwent a CT scan and was diagnosed with a concussion. As a result, Phillips was prohibited from all activities, including driving, for seven days. Phillips informed Mr. and Mrs. Duerr that she was unable to work for the following week, in accordance with the physician’s order. On March 16, 2022, Phillips had a virtual follow-up appointment where, despite her ongoing symptoms, she was cleared to return to work. She immediately contacted Mr. and Mrs. Duerr to inform them that she would return to work the following morning; however, Mr. and Mrs. Duerr told her that her employment was terminated, effective immediately, because the family did not feel that she could provide loving care for H.D. in light of the incident. As time passed, Phillips’ concussion symptoms did not improve, and she began treating at the UPMC Concussion Institute with Dr. Jonathan French, a neuropsychologist,” the suit said.
“Under the care of Dr. French, Phillips reported experiencing ongoing migraines, difficulty with eye pain and pressure, cognitive problems, sleep disturbance and neck pain. Dr. French diagnosed Phillips with a cerebral concussion as a result of being hit on the head by a wooden object and prescribed vestibular therapy. Phillips was additionally referred to the Headache Clinic, where she began treating under the care of Dr. Claire Yanta, a neurologist specializing in concussion. Under the care of Dr. Yanta, Phillips reported headaches, nausea, eye pain and pressure, and light sensitivity, in addition to her existing symptoms. Dr. Yanta diagnosed Phillips with post-traumatic concussion syndrome and prescribed her a course of dexamethasone and rizatriptan. To date, Phillips continues to experience headaches on a nearly daily basis ranging from dull to debilitating. Her long-term prognosis is unclear, and she continues to take medication and seek appropriate treatment.”
On Oct. 24, the Duerr defendants filed preliminary objections to the plaintiff’s complaint – charging that the negligence and recklessness allegations were improperly pled, and thus should be dismissed.
“Plaintiff’s complaint failures to appropriately contain separate counts against the applicable defendants and fails to identify the specific cause of actions asserted. Instead, plaintiff simply alleges one vague count of ‘negligence’ against the defendants. In a complete reading of plaintiff’s complaint, it appears plaintiff is proceeding with a claim for negligent supervision as there is no recognized cause of action under Pennsylvania law for allowing ‘access to hard objects’ or failing to ‘discipline’ a child. As a matter of black-letter law, the defendants’ two-year-old child is incapable of being found negligent. Further, parent/child relationship by itself is insufficient to render the parents liable for the tortious acts of their children, liability may attach where the negligence of the parents makes the injury possible,” the objections stated, in part.
“Plaintiff is alleging these defendants failed to ‘supervise’ the two-year old at the time these defendants were not present and at the time when Plaintiff was hired, employed and paid to supervise the two-year-old as her nanny. It is entirely unclear how plaintiff can assert and/or proceed with a claim that defendants failed to supervise the child at the time the plaintiff was employed to do such a thing. There is absolutely no support under Pennsylvania law for a claim of negligence against these defendants. As a matter of law and fact, there was no duty applicable to the defendants, and even if there was, there was clearly no duty breached for failure to provide supervision based on the facts alleged in plaintiff’s complaint. Along these lines, Pennsylvania law is clear, even if a prima facie case of negligent supervision could be supported, that defendants would not and cannot be liable under such given the lack of ‘ability and the opportunity to exercise said control at the time of the incident’ seeing that the defendants were at the hospital for the birth of their second child when this alleged incident occurred. Based on the applicable and controlling black-letter Pennsylvania law and the facts asserted, there is no basis for any negligence claim against the Duerr defendants.”
The named defendants also asserted that the recklessness and punitive damages claims are insufficiently-pled.
“Plaintiff’s complaint is apparently arguing the Duerrs are liable under a negligent supervision theory, despite the fact plaintiff was hired, employed and present in the home, when the Duerrs were not, to provide said supervision. Further, plaintiff notes that Ms. Sims was also present at the home for the purposes of supervision of the minor, in addition to the plaintiff. The Superior Court has recently ruled that recklessness and punitive damages can be pleaded generally. Nevertheless, plaintiff still is required to properly assert some factual allegations that supports a finding that these defendants acted in a way that was more than negligent. At this time, plaintiff has failed to aver sufficient facts to even support a negligence claim, let alone, to meet the high standard required for punitive damages,” the objections continued.
After the plaintiff separately filed a response and refuted the defense’s preliminary objections on Nov. 21, Allegheny County Court of Common Pleas Judge Alan D. Hertzberg sustained the objections in a Dec. 1 judicial order.
“It is hereby ordered, adjudged and decreed that defendants’ preliminary objections to plaintiff’s complaint are sustained. It is hereby ordered as follows: Any and all claims for recklessness, wanton/willful conduct and/or punitive damages against the Duerr defendants are dismissed,” Hertzberg ruled.
UPDATE
The Duerr defendants then filed an answer and new matter on Jan. 17.
“Defendants hereby incorporate their responses to Paragraphs 1 through 55 above by reference herein as if fully set forth. Plaintiff’s claims are barred or limited by the doctrines of contributory negligence, comparative negligence and/or assumption of the risk. To the extent that discovery reveals, plaintiff’s alleged injuries were caused by her own actions or inactions and not because of any actions or inactions of defendants. Plaintiff’s claims are barred to the extent that discovery reveals that the incident and plaintiff’s alleged injuries and damages were caused solely by and/or exclusively by circumstances over which these defendants did not have any control and/or responsibility and/or by supervening, intervening and/or independent causes over which these defendants did not have control and/or responsibility and not in any manner whatsoever by the actions and/or inactions of these defendant. Defendant has been advised by counsel and therefore aver that some or all of plaintiff’s expenses for medical treatment and the like, and some of plaintiff’s lost wages incurred as a result of the accident and following the accident were entitled to be paid by an insurance carrier. If any of these expenses and/or wages is permitted to be introduced into evidence as items of damage, and if a verdict is entered in plaintiff’s favor, these defendants claim a right of set-off against the verdict in an amount equal to those expenses,” their new matter stated.
“The Duerrs’ at-issue minor child did not possess any aggressive tendencies. As a matter of law, the Duerrs’ two-year-old minor child is incapable of being found negligent. Plaintiff has failed to assert a prima facie case of negligence against the Duerrs as a matter of law and fact. Plaintiff never complained in writing and/or text message about any aggression issues prior to the alleged incident. As discovery may show, plaintiff’s alleged injuries are the result of pre-existing conditions and were not caused by the actions or inactions of these defendants. Plaintiff’s claims are barred by the statute of limitations. Plaintiff failed to mitigate damages.”
In response, the plaintiff replied to the new matter on Jan. 26, terming it as conclusions of law which require no response.
Four days later, on Jan. 30, counsel for the plaintiff and the Duerrs mutually stipulated to strike the claim for punitive damages, without prejudice – meaning it could return to the action in the future.
For one count of negligence, the plaintiff is seeking damages in excess of the jurisdictional limits of compulsory arbitration, plus all costs, interest and such other and further relief as this Honorable Court may deem just and equitable.
The plaintiff is represented by Robert F. Daley, Kirstin F. Kennedy and Adriana Frontino of Robert Peirce & Associates, in Pittsburgh.
The defendants are represented by Robert A. Loch and Andrew D. Shannon of Robb Leonard Mulvihill, plus Rebecca Sember Izsak of Thomas Thomas & Hafer, all also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-011263
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com