Date of Verdict: Jan. 14.
Court and Case No.: C.P. Philadelphia No. 120601484
Type of Action: Motor vehicle.
Plaintiffs Counsel: John J. Fonash III, Law Offices of John J. Fonash III, Plymouth Meeting, 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: Dr. Walter Hofman, forensic pathologist, Merion Station, Pa.; Andrew C. Verzilli, economist, Lansdale, Pa.
Defense Counsel: Dr. Wilhelmina C. Korevaar, anesthesiology, Bala Cynwyd, Pa.
Comment: On Feb. 25, 2011, plaintiffs decedent Melissa F. Lees, 21, was a passenger in an SUV being driven along Byberry Road in Bensalem by defendant Susan Pond. According to the plaintiff’s pretrial memorandum, Lees, Pond, who was then 20, and another passenger, Caitlin Hennessey, 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. According to the memo, Pond was allegedly speeding before she lost control of the vehicle and struck a utility pole. Lees and Hennessey died.
Melissa’s mother, Susan Specht, sued Kenny’s Bar, CMJ Sheffield and Pond, 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.
Hennessey’s father additionally sued the defendants. The cases were consolidated but subsequently settled separately.
Specht’s memo noted that Pond was not of legal drinking age, and contended that she had been served while visibly intoxicated at each establishment. Specht said Kenny’s was marketed toward young people, and that a friend of Pond’s was at the bar. The friend testified that Pond had been visibly intoxicated.
Specht’s memo further noted that surveillance video from Paddy Whack’s showed Pond consuming alcoholic drinks at the establishment. The memo also said the doorman danced with Pond, safeguarded her drinks, acknowledged allowing underage drinkers into the establishment and admitted to occasionally drinking on the job.
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 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 also contended in its memo that it cards everyone at the door at night. 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.
Kenny’s 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 Pond was speeding, it was raining outside and Lees and Hennessey began arguing and screaming in the car just prior to the accident, which distracted Pond.
Kenny’s 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 the plaintiff was negligent per se because she and Hennessey allegedly furnished Pond with alcohol. The memo further contended that the plaintiff was comparatively negligent because they were aware that Pond was drinking before the accident.
According to Specht’s memo, Lees, who was sitting in the right rear passenger seat, was partially ejected from the vehicle during the collision. The memo said her feet were pinned or wedged in the door well and that her upper body was dragged on the street surface. Autopsy photos showed abrasions of the upper back, the memo said.
The memo also said Specht had to be hospitalized for a breakdown she suffered shortly after learning of her daughter’s death.
The plaintiff’s forensic pathology expert opined that Lees suffered conscious pain and suffering immediately prior to and during the crash.
The plaintiff’s expert economist estimated Lees’ economic loss ranged from $585,959 to $878,001.
Kenny’s disputed the plaintiff’s economic expert and said her economic losses were as low as $52,534.
An anesthesiology expert on behalf of Kenny’s opined that Lees would not have suffered any pre-impact terror due to “cortical activation delay,” which is a multisecond pain delay following an injury.
CMJ also disputed the plaintiff’s economic damages, and contended that the plaintiff did not suffer any conscious pain and suffering.
Lees and the parties agreed to settle for $750,000. Pond, who was insured by State Farm, contributed $250,000, Kenny’s contributed $100,000 and CMJ provided $400,000. Both Kenny’s and CMJ had AmTrust North America as their primary insurer, and CMJ had an excess policy with AIG.
— Max Mitchell, of the Law Weekly •