PITTSBURGH – A state court judge has granted defense preliminary objections, in a case brought by the mother of a man who died as a result of drowning in the pool of a Comfort Inn hotel in Pittsburgh.
Olah Mandley (individually and as Personal Representative of the Estate of Israel Mandley, decedent) of Duquesne first filed suit in the Allegheny County Court of Common Pleas on Dec. 11 versus Mohammad Saleem and Mohammad Tanvir (both doing business as “Comfort Inn Conference Center Pittsburgh”), both of Pittsburgh.
“At all times material hereto, defendants acted by and through their agents, servants and/or employees acting within the scope of their authority and going in and about the business of defendants. At all times material hereto, defendants owned, operated and maintained a swimming pool on the premises for the use of its members and invitees, at which it had undertaken to provide lifeguards and other services for the protection and safety of those persons swimming in the pool,” the suit stated.
“This lawsuit has become necessary due to the drowning death of decedent on or about July 24, 2023. On the date in question, decedent was present at defendants’ hotel, Comfort Inn Conference Center, located at 699 Rodi Road, Pittsburgh, PA 15235. At all relevant times, the pool, its equipment, enclosures and appurtenances were owned, operated, controlled and managed by defendants. Decedent died as a direct result of defendants’ negligent and/or grossly negligent conduct.”
The suit continued that the plaintiff, the decedent’s mother, is entitled to recover damages related to his death, that the decedent did not file suit during his lifetime and no other suits have been filed to recover damages for the wrongful death of the decedent.
“The drowning of decedent was the direct and proximate result of the negligence and carelessness of defendant and its failure to exercise that degree of care due and owing to decedent, in one or more of the following particulars: a) Failing to properly train its employees; b) Failing to properly supervise its employees; c) Failing to hire, manage, train, and supervise competent employees; d) Failing to timely and/or adequately react to decedent’s drowning; e) Failing to timely and/or adequately respond to decedent’s drowning; f) Failing to take appropriate and reasonable action to protect decedent; g) Failing to inspect, maintain, and repair the subject pool, pool area, enclosures, gates and/or pool equipment; h) Failing to inspect, maintain, and/or provide adequate safety equipment; i) Failing to implement adequate safety policies and/or procedures; j) Failing to enforce adequate safety policies and/or procedures; k) Failing to comply with applicable ordinances, regulations, laws, and industry standards; l) Vicariously liability for the acts and/or omissions of their employees; m) Other acts and/or omissions that would be deemed negligent, negligent per se, and/or grossly negligent; n) Defendants’ acts and/or omissions proximately caused decedent’s injuries, death, and plaintiffs’ resulting damages. Further, defendants acted knowingly and/or recklessly, committing gross negligence. Accordingly, plaintiffs are entitled to and seek exemplary damages,” the suit said.
“The persons entitled by law to recover damages for decedent’s death have or may have sustained all or some of the following damages: a) The cost of hospital, medical, nursing, drugs, appliances and kindred expenditures and all other costs incident to the treatment of decedent; b) The cost of funeral and burial expenses occasioned by decedent’s death; c) The past and future loss of the value of the services, assistance, comfort, guidance, counseling, companionship and society of decedent; d) The past and future loss of any pecuniary benefits which would have been received from decedent; e) The expenses of the administration of decedent’s Estate; and f) Such other losses and damages as are recoverable by law or statute.”
The defendants filed preliminary objections to the complaint on Jan. 18, seeking to strike allegations of gross carelessness and reckless conduct at Paragraphs 7, 12(m) and 12(n) of the complaint, as well as the vague references to unspecified ordinances, regulations, laws, and industry standards in Paragraphs 12(k) and 12(m), with prejudice.
“The allegations within plaintiff’s complaint, generally and specifically, cannot support an award of recklessness of gross negligence because plaintiffs fail to allege sufficient facts to demonstrate the requisite level of mental state and culpability on the part of defendants. The operative facts, as alleged in plaintiff’s complaint, include simply that decedent drowned due to defendants’ lack of training, supervision, monitoring, inspection, maintenance of the pool, and maintenance of the associated equipment. These allegations, if somehow proven, would support only plain and ordinary negligence sounding in premises liability – certainly not recklessness or gross negligence on the part of defendants. Indeed, plaintiff’s complaint is devoid of factual allegations giving rise to an inference that defendant’s alleged acts or omissions rose to the level of recklessness or gross negligence as opposed to mere negligence,” the objections stated, in part.
“Plaintiff generally asserts that defendants were negligent in ‘failing to comply with applicable ordinances, regulations, laws and industry standards’ and ‘other acts and/or omissions that would be deemed negligent, negligent per se, and/or grossly negligent.’ These vague references to unspecified duties of care and unspecified ordinances, laws and industry standards fail to comply with Pennsylvania Rules of Civil Procedure 1019(a) and 1028(a)(3). Specifically, these amorphous and open ended allegations do not notify defendants of which acts plaintiff will support her claims with. Pennsylvania courts have repeatedly cautioned defendants that they must move to strike conclusory general or open-ended liability claims which are either too general or lack underlying supporting factual allegations, otherwise plaintiff will be permitted to amend the theory of the case even during the trial itself.”
The objections continued that “such boilerplate and open-ended claims of damages and negligence, which would allow the plaintiff to amend the complaint after the statute of limitations has run, should not be permitted to stand if challenged. This is particularly true regarding the allegation that defendant failed to ‘comply with applicable ordinances, regulations, laws and industry standards.”
“Such an allegation provides defendant with absolutely no notice as to what laws or industry standards plaintiff will cite to at trial to support her claims. Additionally, this allegation may set forth the basis for a negligence per se claim at the time of trial and accordingly, Pennsylvania law requires plaintiff to specifically state the laws and regulations she claims were violated by defendant,” the objections stated.
The plaintiff responded to the preliminary objections on Feb. 2, largely denying them as conclusions of law to which no official response was required. In response to other objections questioning the validity of the complaint, the plaintiff maintained they were groundless.
“Plaintiff’s complaint speaks for itself. To the extent the averments mischaracterize or misquote plaintiff’s complaint, they are denied. To the extent that this…implies that plaintiff’s complaint fails to comply with any requirements of the Pennsylvania Rules of Civil Procedure and/or that moving defendant’s preliminary objections have merit, it is specifically denied. To the contrary, plaintiff's complaint complies in all respects with the rules and laws of the Commonwealth of Pennsylvania,” the response stated.
UPDATE
On Feb. 29, Allegheny County Court of Common Pleas Judge Mary C. McGinley granted the preliminary objections.
“Upon consideration of defendants’ preliminary objections, brief in support and any responses or replies thereto, it is hereby ordered that said preliminary objections are granted. It is further ordered that plaintiff is granted leave of 30 days within which to amend the pleading to provide more specificity with respect to Paragraphs 12(m) and 12(n) of the complaint, or in other portions of the complaint, as well as the vague references to unspecified ordinances, regulations, laws and industry standards in Paragraphs 12(k) and 12(m),” McGinley said.
For counts of survival and wrongful death, the plaintiff is seeking damages in excess of the amount requiring referral to arbitration in Allegheny County, together with costs.
The plaintiff is represented by Noah M. Wexler and Trevor A. Courtney of Arnold & Itkin, in Houston, Texas.
The defendants are represented by Joseph V. Lesinski of Marshall Dennehey, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-014155
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com