ALLENTOWN – A federal judge has denied a dismissal motion from Wind Creek Bethlehem Hotel & Casino, in a lawsuit brought by the father of an intoxicated man trying to find their hotel room and who claimed Bethlehem Police Department officers assaulted him when they confronted the duo.
David Brill of Perkasie first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 13 versus Ofc. Madisyn Einfalt, Ofc. Jeremy Banks, Ofc. Robert Constable, John Doe Police Officers 1-3, Wind Creek Bethlehem, LLC, Wind Creek Realty, LLC and John Doe, Inc.
The suit said the incident occurred Feb. 13, 2022, at the Wind Creek Bethlehem Hotel and Casino. At that point in time, Brill’s son Karl was intoxicated and told to leave the casino floor, so Brill went to give him a key, so he could get on the elevator and up to their room.
Instead, the suit said, police in the casino were hostile to the men, despite their directions to Karl to stay quiet. Brill said he was pushed by police as they tried to arrest Karl, where his arm was twisted behind his back and broken.
On April 8, defendant Wind Creek Bethlehem, LLC motioned to dismiss the count for negligence and the request for punitive damages, for failure to state claims upon which relief could be granted.
“With regard to Count III of the complaint, plaintiff has made numerous allegations of how moving defendant should have trained its employees differently. However, many of these allegations have no relationship to this case. For example, plaintiff alleges moving defendant ‘failed to warn person lawfully upon the premises of the dangerous conditions existing thereon’ but there are no allegations of any dangerous condition of the premises contained anywhere in the complaint,” per the dismissal motion.
“Other suggested areas of alleged security failures are completely unsupported. Plaintiff alleges, for example, that moving defendant ‘failed to have an adequate number of trained, qualified security employees on duty,’ but asserts no facts to establish that more or less security would have avoided the incident complained of. Plaintiff’s suggestion that moving defendant had a duty to train in each of these areas and breached that duty is conclusory. There are also no allegations that would suggest moving defendant knew of the need for training in each of the suggested areas or of the need to supervise its employees in such respects.”
The motion added that the plaintiff’s negligence claim fails because the plaintiff failed to show that his rights were violated and as a result, there was no causal connection between any alleged breach of duty by the moving defendant and any harm to the plaintiff.
Furthermore, the motion added that the plaintiff’s failure to supervise claims fail, since the moving defendant “must have failed to prevent any intentional harm by an employee acting outside the scope of his employment” – but, the stipulation “entered into by and between counsel for the plaintiff and the undersigned makes clear that moving defendant’s security personnel were acting within the course and scope of employment at all times and accordingly, such claims are properly dismissed, with prejudice.”
“Instantly, plaintiff’s complaint is devoid of any factual allegations sufficient to properly support the myriad of conclusory allegations of negligence asserted. Compare the absence of any factual support for the negligence allegations in the complaint with the undisputedly authentic video footage and it is clear that plaintiff cannot make out upon which relief can be granted for negligence as to moving defendant,” the motion continued.
According to the motion, the request for punitive damages fared no better.
“Under Pennsylvania law, in order for claims for punitive damages to proceed, the pleading must allege specific conduct by each party that was outrageous in nature and that demonstrates intentional, willful, wanton or reckless behavior. Moreover, it is well-settled that punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake or errors of judgment. In fact, even gross negligence is insufficient to impose punitive damages,” the dismissal motion said.
“Plaintiff offers nothing in the way of facts to support the conclusion that moving defendant engaged in conduct so egregious so as to warrant the imposition of punitive damages. Rather, the undisputed video evidence paints a picture to the contrary and completely undermines the entitlement to a claim for such category of damages. Notwithstanding the results or injury to the plaintiff, the actions and conduct of the moving defendant arose out of the assistance with law enforcement performing their governmental duties. Such conduct does not arise to the level requiring the imposition of punitive damages. Accordingly, plaintiff’s references to recklessness and claims for punitive damages should be dismissed.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher denied the motion to dismiss, in a judicial order handed down on May 28.
“Plaintiff brings two counts against defendant Wind Creek Bethlehem, LLC including negligence and assault and battery. Defendant moves to dismiss the negligence count. In order to establish a negligence claim, plaintiff must allege ‘(1) The existence of a duty or obligation recognized by law; (2) A failure on the part of the defendant to conform to that duty, or a breach thereof; (3) A causal connection between the defendant's breach and the resulting injury; and, (4) Actual loss or damage suffered by the complainant.’ Here, plaintiff alleges negligent and/or reckless actions that would constitute a breach of defendant’s duty of care and possible causes of damages. Although defendant argues that ‘many of the allegations have no relationship to the case’, some of the allegations do. Specifically, plaintiff alleges that defendant failed to train the security guards on how to respond in an appropriate manner to a situation involving safety and to have proper policy and procedures in place to prevent injury to plaintiff. These allegations are relevant because plaintiff also alleges that a security guard employed by defendant along with the police officers committed an assault and battery during the incident where plaintiff was injured. Assuming these allegations to be true, a showing of negligence is possible at this stage of litigation,” Gallagher said.
“Additionally, defendant seeks to have punitive damages dismissed. Although defendant only discusses punitive damages for negligence, plaintiff also seeks punitive damages for the assault and battery count. Even though defendant asserts that punitive damages are not applicable for ordinary negligence cases, the Supreme Court of Pennsylvania has found otherwise. At this stage in the litigation, the alleged assault and battery and the corresponding alleged negligence could amount to the required outrageous, willful, wanton or reckless conduct necessary to establish punitive damages.”
For counts of excessive force, assault and battery and negligence, the plaintiff is seeking, jointly and/or severally, damages in excess of $50,000 in compensatory damages, punitive damages, costs and such other further relief the court shall deem appropriate.
The plaintiff is represented by Kevin P. O’Brien of Stampone Law, in Cheltenham.
The defendants are represented by David J. MacMain and Anthony Montalbano of MacMain Leinhauser in West Chester, plus Brittany Czerniakowski and Ian T. Baxter of Post & Schell, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:24-cv-00644
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com