________________________________________________
RACHEL ESTHER, Individually and as : PHILADELPHIA COUNTY
Administratrix of the Estate of Dana Esther, Deceased : COURT OF COMMON PLEAS
Plaintiff :
: JANUARY TERM, 2022
v. : No. 000084
:
GOOD TIMES PUB, INC. d/b/a GOOD TIMES PUB; :
DYLAN ROLLING; SUSAN ROCK, :
Defendants :
__________________________________________
ORDER
AND NOW, this 6 th day of June 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.
It is further ORDERED trhat Plaintiff’s Rachel Esther’s claims against Defendants are
DISMISSED WITH PREJUDICE.
BY THE COURT:
___________________________________
2
Temple Made, P.C.
….., 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
v. : 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:
1. 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.
2. Plaintiff also brought claims of negligent infliction of emotional distress as well
as wrongful death.
3. Plaintiff alleges that Decedent was drinking at Good Times Pub until she became
visibly intoxicated.
3
4. Plaintiff alleges that Susan Rock continued to serve drinks to Decedent, despite
seeing that she was intoxicated.
5. 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.
6. Plaintiff alleges that as Decedent was attempting to cross Sunshine Avenue to
return home, she was struck head-on by a vehicle travelling southbound.
7. 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.
8. Plaintiff alleges that she observed emergency medical personnel attending to
Decedent. She also watched as they lifted Decedent onto the ambulance.
9. 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.
I. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER TO
PLAINTIFF’S CLAIM FOR NEGLEGENT INFLICTION OF
EMOTIONAL DISTRESS BECAUSE PLAINTIFF DID NOT WITNESS
HER MOTHER’S ACCIDENT
10. The facts stated by Plaintiff are insufficient to give rise to a cause of action for
negligent infliction of emotional distress because the presence requirement has not been met.
11. 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
4
is buffered against the full impact that presence and observation would have entailed. Id. 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.
12. 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.
13. 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.
14. 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.
15. 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.
5
16. 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.
17. 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.”
18. 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.
19. 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.
20. 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.
21. Defendants’ duty of care does not extend to when Decedent arrived safely at her
house. Therefore, Plaintiff’s negligence claim against Defendants fails.
22. 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.
6
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 6th day of June, 2022.
Respectfully Submitted,
___________________________________
Temple Made, P.C.
…., Esquire
Identification No.: 300530
1725 North Broad Street
Philadelphia, PA 19122
(215) 555-1084
attorney@templemadepc.com
Attorneys for Defendants
This was a good attempt and the document was well formatted but you didn’t follow the
assignment, which was to only attack the NIED claim. You also omitted other required parts,
including citing to the record, a summary conclusion, and a fully developed argument based on
the NIED claim. Your writing is generally good so if you follow the instructions for
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )