Defendants Good Times Pub, Inc. d/b/a Good Times Pub

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RACHEL ESTHER, Individually and as : PHILADELPHIA COUNTY

Administratrix of the Estate of Dana Esther, Deceased : COURT OF COMMON PLEAS

Plaintiff :

: JANUARY TERM, 2022

: No. 000084

GOOD TIMES PUB, INC. d/b/a GOOD TIMES PUB; :

DYLAN ROLLING; SUSAN ROCK, :

Defendants :

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ORDER

AND NOW, this ___ day of _______________ 2022, upon consideration of the Preliminary Objections of Defendants Good Times Pub, Inc. d/b/a Good Times Pub; Dylan Rolling; and Susan Rock, to Plaintiff Rachel Esther’s Complaint, and any response or reply, it is ORDERED that the Defendants’ Preliminary Objections are SUSTAINED. Rachel Esther’s claims against Defendants are DISMISSED WITH PREJUDICE.

BY THE COURT:

___________________________________

Temple Made, P.C.

[YOUR NAME], Esquire

Identification No.: 300530

1725 North Broad Street

Philadelphia, PA 19122

(215) 555-1084

attorney@templemadepc.com

Attorneys for Defendants

________________________________________________
RACHEL ESTHER, Individually and as : PHILADELPHIA COUNTY

Administratrix of the Estate of Dana Esther, Deceased : COURT OF COMMON PLEAS

Plaintiff :

: JANUARY TERM, 2022

: No. 000084

GOOD TIMES PUB, INC. d/b/a GOOD TIMES PUB; :

DYLAN ROLLING; SUSAN ROCK, :

Defendants :

Defendants Good Times Pub, Inc. d/b/a Good Times Pub; Dylan Rolling; and Susan Rock (“Moving Defendants”), by and through their attorney, [Insert Your Name], hereby file their instant Preliminary Objections to Plaintiff’s Complaint, and in support thereof, state as follows:

Plaintiff Rachel Esther brought this suit in her individual capacity and as Adminatrix of the Estate of Dana Esther (“Decedent”) alleging negligence in the demise of Decedent.
Plaintiff also brought claims of negligent infliction of emotional distress as well as wrongful death.
Plaintiff alleges that Decedent was drinking at Good Times Pub until she became visibly intoxicated.
Plaintiff alleges that Susan Rock continued to serve drinks to Decedent, despite seeing that she was intoxicated.
Eventually, Decedent and her co-workers left. One of her co-workers drove her home and ensured she arrived safely and entered her house. Plaintiff alleges that Decedent left the house and went to see Mr. Ross, a neighbor across the street.
Plaintiff alleges that as Decedent was attempting to cross Sunshine Avenue to return home, she was struck head-on by a vehicle travelling southbound.
Plaintiff alleges that Mr. Ross witnessed Decedent being hit by the vehicle. Mr. Ross informed Plaintiff of the accident and Plaintiff rushed to her mother’s side. Decedent was motionless and bleeding profusely.
Plaintiff alleges that she observed emergency medical personnel attending to Decedent. She also watched as they lifted Decedent onto the ambulance.
Plaintiff alleges that she suffered emotional distress as a result of watching her mother lie motionless and bleeding profusely, as well as her being lifted into the ambulance.

PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER

The facts stated by Plaintiff are insufficient to give rise to a cause of action for negligent infliction of emotional distress.
The “presence” requirement of Section 46(2) corresponds to an element required in the context of claims for negligent infliction of emotional distress, where the “critical element for establishing such liability is the contemporaneous observation of the injury to the close relative.” Mazzagatti v. Everingham, 512 Pa. 266, 279-80, 516 A.2d 672, 679 (1986). Where one is not present at the scene of tortious conduct, but instead learns of it later from a third party, he is buffered against the full impact that presence and observation would have entailed. at 279, 516 A.2d at 679. “By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system. Id.
The presence requirement has not been met. Plaintiff was not present at the time Decedent was being hit by the vehicle on Sunshine Avenue.
Plaintiff learnt of Decedent’s demise when she was informed by Mr. Ross, the neighbor who actually witnessed Decedent being hit by the vehicle.
In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the supreme court addressed the issue of when a claimant should be permitted to recover damages for negligently caused mental distress. In this seminal case the supreme court adopted a three factor test to determine whether the injury to the plaintiff was reasonably foreseeable: (1) Whether the plaintiff was located near the scene of the accident as contrasted with the one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.
Plaintiff only meets the third element of the above three-factor test. There is no doubt that Plaintiff and Decedent were close relatives. Plaintiff is Decedent’s daughter and they lived together.
As to factor 1, Plaintiff was not located near the scene of the accident. She was a distance from it. Plaintiff was in the house at the time of the accident. It is Mr. Ross who informed her of the accident. Plaintiff ran out of the house after the accident had already happened.
As to factor 2, the alleged shock and emotional distress suffered by Plaintiff was not an emotional impact from the sensory and contemporaneous observance of the accident. This is because she did not witness the accident. The emotional distress and shock allegedly suffered by Plaintiff was as a result of learning of the accident from Mr. Ross after it had occurred. Therefore, Plaintiff’s claim of negligent infliction of emotional distress fails.
The court in Mazzagatti, supra held, “[t]hese principles, which require that the defendant’s breach of a duty of care proximately cause plaintiff’s injury, have established the jurisprudential concept that at some point along the causal chain, the passage of time and the span of distance mandate a cut-off point for liability.”
The span of distance mandates a cut-off point for liability of Defendants. Since Decedent was allegedly visibly intoxicated, she was driven home by her co-worker who ensured she arrived at her house safely.
On her own accord, Decedent went to Mr. Ross’ house across the street. Plaintiff was in the house as Decedent went to visit Mr. Ross.
Defendants’ cut-off for liability for negligence is where Decedent arrived safely and actually went into the house. From there, she was under the care of Plaintiff.
Defendants’ duty of care does not extend to when Decedent arrived safely at her house. Therefore, Plaintiff’s negligence claim against Defendants fails.
Defendants are not liable for Decedent’s wrongful death. Her demise came about as a result of being hit by a vehicle as she was crossing the road. The accident was as a result of the driver’s negligence, not that of Defendants.

REASONS WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request this Honorable Court to sustain their Preliminary Objections, dismiss all claims brought by Plaintiff, and subsequently sign the attached Proposed Order.

Dated this ____ day of June, 2022.

Respectfully Submitted,