Date of Verdict: Jan. 14.
Court and Case No.: C.P. Philadelphia No. 110803267
Type of Action: Motor vehicle.
Plaintiffs Counsel: Kevin R. Marciano, Marciano & MacAvoy, Media, Pa.
Defense Counsel: Matthew P. Mann, Barry McTiernan & Wedinger, Trevose, Pa., for Kenny’s Bar and Restaurant Inc.; Charles B. Stokes, Russo & Toner, Trevose, Pa., for CMJ Sheffield Inc.; Lee H. Rosenau, Dion, Rosenau, Smith, Menszak & Aaron, Philadelphia, for Pond.
Plaintiffs Experts: G. John DiGregorio, toxicology, Philadelphia; Kevin E. O’Connor, accident reconstruction, Phoenixville, Pa.; Dr. Wayne K. Ross, neuropathology, Lancaster, Pa.; Andrew C. Verzilli, economist, Lansdale, Pa.
Defense Counsel Dr. Wilhelmina C. Korevaar, anesthesiology, Bala Cynwyd, Pa.
Comment: On Feb. 25, 2011, plaintiffs decedent Caitlin Hennessey, 22, was a passenger in an SUV being driven along Byberry Road in Bensalem by defendant Susan Pond, according to the plaintiff’s pretrial memorandum. Hennessey, Pond, who was then 20, and another passenger, Melissa F. Lees, had allegedly consumed alcohol at Kenny’s Spirited Eatery, which was owned by defendant Kenny’s Bar and Restaurant Inc., and Paddy Whacks, a bar and restaurant owned by defendant CMJ Sheffield Inc., the memo said. According to the memo, Pond was allegedly speeding before she lost control of the vehicle and struck a utility pole. Hennessey and Lees died.
Hennessey’s father, Joseph Francis Hennessey Jr., sued Pond, Kenny’s Bar and CMJ Sheffield, alleging that Pond was negligent in the operation of her vehicle and for driving while intoxicated, and that Kenny’s Bar and CMJ Sheffield violated the Dram Shop law.
According to Hennessey’s memo, Pond’s BAC was 0.212 and she pleaded guilty to homicide by vehicle while under the influence of alcohol and DUI. The memo also said that Pond testified she smoked marijuana before leaving for Kenny’s Bar.
Pond also testified that she was not carded when she entered Kenny’s Bar and she did not sign a certificate, the memo said. A friend of Pond’s testified that he saw her at Kenny’s Bar and she appeared drunk, as she had slurred speech and impaired balance, the memo said.
The plaintiff’s memo contended that, after leaving Kenny’s Bar, Pond drove Caitlin Hennessey and Lees to Paddy Whacks. According to the memo, video footage showed that the three were not carded and that Pond was dancing and consuming alcohol.
The memo said the Paddy Whack’s manager admitted the bar had not used its ID scanner on the night in question. The bouncer, the memo said, also admitted that the three were not carded, that he danced with Pond, that he occasionally drank while at work, that he saw patrons drunk at the bar at least once a week, that the bar had no policy for flagging visibly drunk patrons, that he had no training regarding recognizing drunk patrons, that Pond appeared drunk and that he had let underage people into the bar on prior occasions. According to the memo, some staff, including waitress bartenders, knew Pond.
The plaintiff’s toxicology expert, G. John DiGregorio, opined that Pond would have been exhibiting signs of intoxication, that she was not safe to drive, and that the intoxication would have impaired her driving.
The plaintiff’s accident reconstruction expert opined that Pond was going about 85 mph when the vehicle spun sideways and then struck the pole at about 60 mph.
Pond’s pretrial memo said the bars were liable for allowing a visibly intoxicated and underage person to consume alcohol in their establishments.
In its pretrial memorandum, Kenny’s Bar contended that Pond had not consumed alcohol on its premises, that she was not visibly intoxicated while there and that the plaintiff was comparatively liable for allowing an intoxicated, underage person to drive.
Kenny’s Bar also contended in its memo that it cards everyone at the door at night, and that it carded Hennessey. The bar noted that Pond’s friend testified that he had been carded and that data from the card scanner showed Hennessey’s ID information. The bar also contended that police found the driver’s license of a 22-year-old woman who resembled Pond in Pond’s car following the accident.
The bar argued that the bartenders were all certified, the bartenders received continuous training and the policies that the bar used were derived from the Responsible Alcohol Management Program, which the plaintiff contested in his memorandum.
Kenny’s Bar also contended in its memo that Pond’s friend testified that he never saw her consume alcohol at the bar and that she was on the dance floor most of the time.
The memo also said that Pond was speeding, it was raining outside and Hennessey and Lees began arguing and screaming in the car just prior to the accident, which distracted Pond.
Kenny’s Bar further alleged that Paddy Whack’s was negligent, and said in its memo that videos showed the establishment violated the Dram Shop law.
CMJ contended, in its pretrial memo, that Hennessey was negligent per se because Hennessey and Lees furnished Pond with alcohol. The memo further contended that Hennessey was comparatively negligent, as Hennessey and Lees were aware that Pond was drinking before the accident.
The plaintiff’s memo contended that Hennessey was in pain before she died. The memo further noted that Hennessey had been accepted to Kutztown University and she was close with her nuclear family.
The plaintiff’s expert neuropathologist opined that, although the cause of death was traumatic brain injury, she sustained injuries after the vehicle struck a curb but before it hit the pole. He further opined that Hennessey would have suffered two to five seconds of pre-impact terror and that smoking marijuana several hours before the accident would not have had any effect on Pond’s driving.
The plaintiff’s economic expert opined that Hennessey’s lifetime earning capacity was between $1.2 million and $2.3 million.
Kenny’s Bar disputed the plaintiff’s economic expert and said her economic losses were as low as $366,031.
An anesthesiology expert on behalf of Kenny’s Bar opined that Hennessey would not have suffered any pre-impact terror due to “cortical activation delay,” which is a multisecond pain delay following an injury.
CMJ also contended that Hennessey died instantaneously, and disputed the plaintiff’s economic damages.
Following mediation, Hennessey and the parties were not able to settle the case; however, before trial, the parties settled for $2 million. Pond, who was insured by State Farm, contributed $250,000, Kenny’s Bar contributed $1.375 million and CMJ provided $375,000. Both Kenny’s Bar and CMJ had AmTrust North America as their primary insurers, and CMJ had an excess policy with AIG.
— Max Mitchell, of the Law Weekly