Jenkins, E. v. Krivosh, J. ( 2015 )

J-A29044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELVIN W. JENKINS, II AND : IN THE SUPERIOR COURT OF
MARY ANN JENKINS, HIS WIFE : PENNSYLVANIA
:
Appellants :
v. :
:
JOHN R. KRIVOSH, MARY FRANCES :
VENN AND HERON’S LANDING, LLC :
T/D/B/A OLDE STONEWALL GOLF CLUB :
:
Appellees : No. 2045 WDA 2014
Appeal from the Order July 17, 2014
in the Court of Common Pleas of Lawrence County,
Civil Division, No. 11212 of 2012 C.A.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2015
Elvin W. Jenkins, II (“Elvin”), and his wife, Mary Ann Jenkins
(collectively “the Jenkinses”), appeal the Order granting summary judgment
in favor of Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club
(hereinafter “Heron’s Landing”).1 We reverse the Order entered in favor of
Heron’s Landing, and remand for further proceedings.
In its Opinion, the trial court set forth the relevant factual and
procedural background, as follows:
On December 31, 2011, [] Krivosh left his residence at
approximately 8:00 a.m. and traveled with friends to search for
campsites in Tidioute, Pennsylvania. They stopped for lunch at
approximately 12:00 noon and [] Krivosh drank one beer. He
eventually returned home at approximately 4:00 p.m. [] Krivosh
1
Defendants, John R. Krivosh (“Krivosh”) and Mary Frances Venn (“Venn”),
are not parties to this appeal.
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then made arrangements to meet [] Venn at [Heron’s Landing]
for drinks. Prior to going to [Heron’s Landing], [] Krivosh drank
two “gulps” of vodka directly from the bottle, which he estimated
was approximately eight ounces. He then placed the vodka
bottle in his vehicle[,] as he intended on consuming more of it
later to celebrate New Year’s Eve.
[] Venn arrived at [Heron’s Landing] first[,] between 6:00
and 6:30 p.m. She ordered a vodka tonic with a twist of lime.
Shortly thereafter, [] Krivosh arrived and ordered himself and []
Venn a vodka tonic. They were seated at the bar among 10 to
15 other patrons[,] and began conversing when [] Krivosh
informed [] Venn that he was terminating their relationship. []
Krivosh consumed his drink and ordered another vodka tonic.
He drank half of the second vodka tonic before departing
[Heron’s Landing].
[] Krivosh left [Heron’s Landing] first[,] and was followed
by [] Venn. Both individuals drove separately in their own
vehicles, but [] Venn followed [] Krivosh as, according to her
deposition testimony, she did not know the route to return
home. They eventually arrived at a traffic light. Once the light
changed to green, [] Krivosh sped away[,] and [] Venn
temporarily lost sight of his vehicle. As [] Krivosh was driving
outside of [] Venn’s view, [] Krivosh attempted to navigate a
curve in the road, [] crossed into the other lane of the roadway
and struck a vehicle operated by [] Elvin [], who was severely
injured. [] Venn approached the site of the accident[,] and []
parked her vehicle behind [] Krivosh’s truck.
After the collision, [] Krivosh exited his vehicle and
approached the [Jenkinses’] vehicle[,] where he noticed that the
driver, [Elvin], was trapped. [] Krivosh returned to his vehicle
and disposed of the vodka bottle by throwing it over the hillside.
Michael Paul Allen [“Allen”] observed [] Krivosh throw the vodka
bottle over the hill[,] and stated in his affidavit that [] Krivosh
could not walk straight. [Allen] also explained that [] Krivosh
had to hold onto his truck to stand up, his speech was slurred,
his eyes were bloodshot and glassy, and he was obviously
intoxicated.
Patrolman Jon W. Disher [“Officer Disher”] of the Ellwood
City Police Department testified in his deposition that he
responded to a communication informing him of an automobile
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accident[,] and he arrived on the scene of the accident at 7:42
p.m. Upon arrival, Officer Disher observed [] Krivosh leaning on
his vehicle in an attempt to balance himself. [Officer Disher]
approached [] Krivosh and he observed that [] Krivosh had
glassy, bloodshot eyes, he was swaying in a circular motion and
he emanated an odor of alcohol. [Officer Disher] began
speaking with [] Krivosh, who was attempting to keep his mouth
closed in an effort to hide the odor of alcohol. [Officer Disher]
questioned [] Krivosh concerning the bottle of alcohol that he
threw over the hillside, which [] Krivosh denied. However,
Officer Matthew Liberatore, also from the Ellwood City Police
Department, recovered a vodka bottle after the hillside was
illuminated by the local fire department. [] Krivosh insisted that
he did not drink from the bottle [,] and only drank at [Heron’s
Landing].
At that time, Officer Disher administered field sobriety
tests to [] Krivosh. The first field sobriety test administered was
the horizontal gaze nystagmus, which consists of the police
officer holding a pen in front of the potentially intoxicated person
and moving it to the right and left side. Upon performing the
test, [] Krivosh’s eyes did not track the pen and jumped from
one position to the other, which indicated that he had a blood
alcohol content [“BAC”] over [0].10[%]. Next, Officer Disher
administered the walk and turn test, in which [] Krivosh was
instructed to walk nine steps forward with his heel placed just in
front of the toes of his opposite foot, turn around and then walk
nine more steps in that manner. [] Krivosh failed on the first
nine steps and had one misstep on the second nine steps.
According to the police report, Officer Disher also administered a
portable breath test, which indicated that [] Krivosh’s [BAC] was
[0].09[%]. Officer Disher then placed [] Krivosh under arrest
and transported him to Ellwood City hospital to undergo a blood
test to determine his [BAC], which revealed that he had a [BAC]
of 0.154[%]. Officer Disher testified that, upon first approaching
[] Krivosh, it was apparent to any reasonable person that he was
intoxicated.
Trial Court Opinion, 2/10/15, at 3-7 (footnote omitted, paragraph spacing
added).
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On October 16, 2012, the Jenkinses commenced this action by filing a
Complaint, wherein they asserted claims against Heron’s Landing based on
its alleged violation of the Dram Shop Act, 47 P.S. § 4-493.2 On January 17,
2014, Heron’s Landing filed a Motion for summary judgment. On July 16,
2014, the trial court granted Heron’s Landing’s Motion for summary
judgment. The Jenkinses filed a timely Notice of Appeal and a court-ordered
Statement of Errors Complained of on Appeal.
On appeal, the Jenkinses raise the following issues for our review:
1. Whether the trial court erred in disregarding substantial
circumstantial evidence that [] Krivosh was visibly intoxicated
at the time he was served alcoholic beverages at [] Heron’s
Landing[?]
2. Whether the trial court failed to weigh the evidence of record
in the light most favorable to the non-moving party[?]
3. Did the trial court err in relying upon the oral testimony of co-
defendants [] Krivosh, [] Venn, and Heron’s Landing []
employee, Dale Thompson [“Thompson”], in deciding
[Heron’s Landing’s] Motion for summary judgment[,] when a
jury would be free to disregard any such testimony?
Brief for Appellants at 5 (capitalization omitted, issues renumbered for ease
of disposition).
2
The Pennsylvania Dram Shop Act provides, in pertinent part, that it shall
be unlawful
[f]or any licensee or the board, or any employee, servant or
agent of such licensee or of the board, or any other person, to
sell, furnish or give any liquor or malt or brewed beverages, or
to permit any liquor or malt or brewed beverages to be sold,
furnished or given, to any person visibly intoxicated….
47 P.S. § 4-493(1).
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Our standard of review of an order granting a motion for summary
judgment is well-established:
We view the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material fact and
it is clear that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered. Our scope of
review of a trial court’s order granting or denying summary
judgment is plenary, and our standard of review is clear: the
trial court’s order will be reversed only where it is established
that the court committed an error of law or abused its discretion.
Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation
omitted).
Because the Jenkinses’ first two issues are related, we will address
them together. The Jenkinses contend that, under Pennsylvania law, they
may establish a facility owner’s violation of the Dram Shop Act by
circumstantial evidence that a patron was visibly intoxicated when he was
served alcoholic beverages by the facility owner. Brief for Appellants at 22
(citing Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524 (Pa. Super. 1998)).
The Jenkinses assert that they have produced substantial circumstantial
evidence that Krivosh was visibly intoxicated when Heron’s Landing served
him alcoholic beverages. Brief for Appellants at 24. In support, the
Jenkinses point to Krivosh’s testimony that he had consumed at least eight
ounces of vodka prior to his arrival at Heron’s Landing, and then consumed a
vodka tonic at Heron’s Landing prior to purchasing, and being served, his
final alcoholic beverage at Heron’s Landing. Id. The Jenkinses also point to
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the report of Karl E. Williams, M.D., M.P.H. (“Dr. Williams”), from which it
could be inferred that Krivosh had consumed eight to nine drinks, and had a
BAC level of 0.172% at the time he left Heron’s Landing. Id.
The Jenkinses further claim that Krivosh’s high level of intoxication, at
the time he was served alcoholic beverages at Heron’s Landing, is evidenced
by events that occurred shortly after he left the facility. Id. at 25. In
support, the Jenkinses point to (1) Venn’s testimony that she observed
Krivosh accelerate to a high level of speed after he had stopped at a red
light; (2) Allen’s statements that he had observed Krivosh traveling at a high
rate of speed through a turn in the road, causing his vehicle to travel
sideways and strike a mailbox located in Allen’s front yard; (3) the
statements of Allen and Officer Disher that, following the accident, Krivosh
displayed obvious signs of intoxication, including leaning across the hood of
his vehicle trying to balance himself, holding onto the back of his vehicle,
staggering and swaying, having glossed over and bloodshot eyes, having
slurred speech and smelling of alcohol; (4) Krivosh’s failure of field sobriety
tests administered by Officer Disher; and (5) the results of Krivosh’s blood
alcohol test after the accident, which established his BAC at 0.154%. Id.
The Jenkinses assert that the trial court failed to weigh the evidence of
record in the light most favorable to them, as the non-moving party, when
considering Heron’s Landing’s Motion for summary judgment. Id. at 26. In
particular, the Jenkinses point to Dr. Williams’s report, and claim that the
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trial court failed to consider the alcohol consumption levels indicated therein,
and instead concluded, in a light most favorable to Heron’s Landing as the
moving party, that Krivosh had consumed a lesser amount. Id. at 26-27.
According to the Jenkinses, had the trial court properly considered the
evidence in a light most favorable to them, as it was required to do, the
evidence was sufficient to raise a question of material fact regarding
Krivosh’s level of intoxication while inside Heron’s Landing, requiring
submission of the case to the jury. Id.3
In order to establish liability under the Dram Shop Act, it is not
sufficient for a plaintiff to establish merely that alcoholic beverages were
served to a patron, or that the patron was intoxicated at the time he caused
injury to another. See Fandozzi, 711 A.2d at 527. Rather, for dram shop
liability to attach, evidence must be produced indicating that the patron was
served alcohol at a time when he was visibly intoxicated. Id.; 47 P.S. § 4-
493(1). To meet this standard, a plaintiff need not offer direct evidence
regarding the patron’s visible intoxication. See Fandozzi, 711 A.2d at 527.
Rather, a plaintiff can prove dram shop liability through circumstantial
evidence that an individual was served alcohol at a time when he was visibly
3
The Jenkinses also argue that Heron’s Landing spoliated evidence relevant
to their claim, including videotape footage and cash receipts. Brief for
Appellants at 27. The Jenkinses contend that they were entitled to an
inference that that the contents of the videotape and the cash receipts would
have been unfavorable to Heron’s Landing. Id. However, based on our
conclusion, infra, that the circumstantial evidence presented by the
Jenkinses is sufficient to raise a question of material fact, we need not
address this issue.
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intoxicated. Id. Accordingly, we examine the Jenkinses’ circumstantial
evidence of Krivosh’s level of intoxication when he was at Heron’s Landing.
As noted by the trial court, the Jenkinses presented evidence that
Krivosh was at Heron’s Landing for approximately one hour.4 Krivosh had
consumed some amount of alcohol prior to arriving at Heron’s Landing,5 but
drank only one and a half drinks while he was at Heron’s Landing.6 Krivosh
stated that he drank no alcohol after leaving Heron’s Landing. See Trial
Court Opinion, 2/10/15, at 5. An inference exists that the accident occurred
approximately ten minutes after Krivosh left Heron’s Landing. See id. at 20
n.5 (indicating that Officer Disher testified that the drive from Heron’s
Landing to the accident scene takes approximately ten minutes). Following
the accident, Officer Disher and Allen observed Krivosh in an extremely
intoxicated condition. Specifically, they observed Krivosh staggering and
swaying in a circular motion, leaning on his vehicle in an effort to balance
himself, slurring his speech, smelling of alcohol and displaying glassy,
4
Venn testified that she arrived at Heron’s Landing between 6:00 p.m. and
6:30 p.m., and that Krivosh arrived soon thereafter. See Trial Court
Opinion, 2/10/15, at 4. Officer Disher arrived at the accident scene shortly
after the accident occurred, at approximately 7:42 p.m. See id. at 5.
5
Krivosh stated that he drank two large gulps from a vodka bottle prior to
going to Heron’s Landing, which he estimated to be approximately eight
ounces. See Trial Court Opinion, 2/10/15, at 4.
6
See Trial Court Opinion, 2/10/15, at 4.
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bloodshot eyes. See id. at 5. Krivosh also failed three field sobriety tests
administered by Officer Disher following the accident. See id. at 5-6.
The Jenkinses also submitted the expert report of Dr. Williams to
explain how Krivosh could have consumed enough alcohol to register a BAC
of 0.154% approximately one hour after leaving Heron’s Landing.7 Dr.
Williams’s report indicates, through use of relation-back extrapolation
methods, that Krivosh’s BAC would have been even higher (0.172%) when
he left Heron’s Landing. According to Dr. Williams, Krivosh’s BAC level
indicates that eight to nine alcoholic drinks were present in his blood stream
at the time of the accident.8
This Court has refused to find a question of material fact with respect
to visible intoxication solely on the basis of expert relation-back testimony.
See Fandozzi, 711 A.2d at 528. However, a question of material fact may
be created when an expert’s relation-back conclusions are supported by
additional circumstantial evidence indicating that the patron may have been
visibly intoxicated while he was in the establishment in question. See id.
Given Krivosh’s visibly intoxicated condition shortly after leaving
Heron’s Landing, and his BAC of 0.154% approximately one hour after
leaving Heron’s Landing, a jury could reasonably infer that Krivosh was
7
The Jenkinses presented evidence that Krivosh’s BAC was measured at
8:35 p.m. See Dr. William’s Expert Report, 5/13/14, at 2.
8
Any dispute with respect to Dr. Williams’s method of calculation, or the
conclusions drawn from his calculations, would go to the weight to be
accorded his testimony. See Fandozzi, 711 A.2d at 528.
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exhibiting visible signs of intoxication when he was inside Heron’s Landing,
even in the absence of Dr. Williams’s report. See Fandozzi, 711 A.2d at
529. Thus, we conclude that the Jenkinses have raised a question of
material fact as to whether Krivosh was visibly intoxicated at the time he
was served alcoholic beverages at Heron’s Landing, and this issue should
have been submitted to the jury. Accordingly, the trial court erred by
granting summary judgment in favor of Heron’s Landing.
Based on our disposition as to the Jenkinses’ first two issues, we need
not address their final issue.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
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ELVIN W. JENKINS, II and MARY IN THE COURT OF COMMON PLEAS
ANNA JENKINS,
LAWRENCE COUNTY, PENNSYLVANIA
Plaintiffs,
CIVIL DIVISION
VS.
NO. 11212 OF 2012
JOHN R. KRIVOSH, MARY FRANCES
VENN and HERON'S LANDING, LLC,
t/d/b/a OLDE STONEWALL GOLF
CLUB,
Defendants.
C) ,,
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<:!:'
.z; 6 ~w
~-1
APPEARANCES CJ 419 Pa. Super. 541, 615 A.2d 771 (1992) and
Conner v. Duffy, 438 Pa. Super. 277, 652 A.2d 372 (1994);
Ill. The Court failed to consider the record in the light most favorable to the non-
moving party;
IV. The Court erred by disregarding substantial circumstantial evidence that John R.
Krivosh was visibly intoxicated at the time he was served alcoholic beverages at
Shakespeare's Restaurant;
V. The Court erred in failing to consider circumstantial evidence that, ten minutes
after leaving the facility owned by Heron's Landing, Defendant Krivosh could not
walk straight, had to hold onto his truck to stand, had slurred speech, bloodshot
and glassy eyes and appeared obviously intoxicated to Michael Paul Allen;
VI. The Court failed to consider circumstantial evidence that Officer Disher observed
Mr. Krivosh leaning on his vehicle in an attempt to balance himself, he had glassy,
bloodshot eyes and he was swaying in a circular motion;
VII. The Court erred in failing to consider the circumstantial evidence that Officer
Disher testified that it would be apparent to any reasonable person that Mr.
Krivosh was intoxicated ten minutes after leaving Shakespeare's Restaurant;
VIII. The Court ignored the law concerning summary judgment when it decided to
accept the testimony of Mr. Krivosh that he drank eight ounces of alcohol prior to
going to Shakespeare's Restaurant when there is evidence that he could have
consumed 16 ounces of alcohol at that time;
IX. The Court erred in acknowledging that a plaintiff can prove that an establishment
served alcohol to a visibly intoxicated person through circumstantial evidence and
ssso then proceeding to ignore that law;
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X. The Court failed to follow the Superior Court's decision in Fandozzi v. Kelly Hotel,
Inc., 711 A.2d 524 (Pa. Super. 1998);
XI. The Court erred in failing to find that the expert report provided by the Plaintiffs
was supported by the circumstantial evidence creating an issue of material fact;
XII. The Court failed to consider the circumstantial evidence of the spoliation of
evidence by Heron's Landing as it relates to the destruction of the videotape and
the cash receipts;
XIII. The Court failed to consider the circumstantial evidence of Defendant Heron's
Landing's violation of Pennsylvania Liquor Laws in general;
XIV. The Court erred in weighing the evidence to determine that Mr. Krivosh consumed
eight ounces of vodka prior to being served at Shakespeare's Restaurant when
there was circumstantial evidence to suggest that Mr. Krivosh consumed
considerably more vodka than that;
XV. The Court erred in concluding that the record was devoid of any reference that
Mr. Krivosh was unable to control his vehicle when Michael Paul Allen provided
an Affidavit that just prior to the accident Mr. Krivosh's vehicle was traveling at an
extremely high rate of speed and was traveling sideways. Mr. Allen's Affidavit
further provided that Mr. Krivosh's pickup truck slammed into Mr. Allen's mailbox
as it was sliding sideways. Mr. Allen's Affidavit further provided that the pickup
truck continued to slide sideways for about 100 feet and hit a guardrail on the
south side of Wampum Avenue and that when the pickup truck hit the guardrail, it
spun counterclockwise and then hit the vehicle driven by Elvin Jenkins in Mr.
Jen kin's lane of travel, head on;
XVI. The Court erred in suggesting that Mr. Kirovsh's intoxicated appearance
approximately ten minutes after leaving Shakespeare's Restaurant was not
circumstantially indicative of his appearance at Shakespeare's Restaurant; and
VII. The Court erred in finding that it is somehow important to note that Mr. Krivosh
was able to throw a vodka bottle over a hill just after a high-speed collision.
On December 31, 2011, defendant John Krivosh left his residence at
approximately 8:00 a.m. and traveled with friends to search for campsites in Tidioute,
Pennsylvania. They stopped for lunch at approximately 12:00 noon and Defendant
Krivosh drank one beer. He eventually returned home at approximately 4:00 p.m.
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Defendant Krivosh then made arrangements to meet defendant Mary Frances Venn at
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Shakespeare's Restaurant & Pub (hereinafter "Shakespeare's Restaurant"), which is
owned by Defendant Heron's Landing, for drinks. Prior to going to the restaurant,
Defendant Krivosh drank two "gulps" of vodka directly from the bottle, which he
estimated was approximately eight ounces. He then placed the vodka bottle in his
vehicle as he intended on consuming more of it later to celebrate New Year's Eve.
Defendant Venn arrived at Shakespeare's Restaurant first between 6:00 and 6:30 p.m.
She ordered a vodka tonic with a twist of lime. Shortly thereafter, Defendant Krivosh
arrived and ordered himself and Defendant Venn a vodka tonic. They were seated at
the bar among 10 to 15 other patrons and began conversing when Defendant Krivosh
informed Defendant Venn that he was terminating their relationship. Defendant Krivosh
consumed his drink and ordered another vodka tonic. He drank half of the second
vodka tonic before departing the restaurant. Defendant Krivosh left the restaurant first
and was followed by Defendant Venn. Both individuals drove separately in their own
vehicles", but Defendant Venn followed Defendant Krivosh as, according to her
deposition testimony, she did not know the route to return home. They eventually
arrived at a traffic light. Once the light changed to green, Defendant Krivosh sped away
and Defendant Venn temporarily lost sight of his vehicle. As Defendant Krivosh was
driving outside of Defendant Venn's view, Defendant Krivosh attempted to navigate a
curve in the road, he crossed into the other lane of the roadway and struck a vehicle
operated by plaintiff Elvin W. Jenkins, who was severely injured. Defendant Venn
approached the site of the accident and she parked her vehicle behind Defendant
Krivosh's truck. After the collision, Defendant Krivosh exited his vehicle and approached
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It must be noted that the vehicle being driven by Defendant Krivosh was registered in Defendant Venn's name .
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the Plaintiffs' vehicle where he noticed that the driver, Mr. Jenkins, was trapped.
Defendant Krivosh returned to his vehicle and disposed of the vodka bottle by throwing it
over the hillside. Michael Paul Allen observed Defendant Krivosh throw the vodka bottle
over the hill and stated in his affidavit that Defendant Krivosh could not walk straight. He
also explained that Defendant Krivosh had to hold onto his truck to stand up, his speech
was slurred, his eyes were bloodshot and glassy, and he was obviously intoxicated.
Patrolman Jon W. Disher of the Ellwood City Police Department testified in his
deposition that he responded to a communication informing him of an automobile
accident and he arrived on the scene of the accident at 7:42 p.m. Upon arrival, Officer
Disher observed Defendant Krivosh leaning on his vehicle in an attempt to balance
himself. The officer approached Defendant Krivosh and he observed that Defendant
Krivosh had glassy, bloodshot eyes, he was swaying in a circular motion and he
emanated an odor of alcohol. Officer Disher began speaking with Defendant Krivosh,
who was attempting to keep his mouth closed in an effort to hide the odor of alcohol.
The officer questioned Defendant Krivosh concerning the bottle of vodka that he threw
over the hillside, which Defendant Krivosh denied. However, Officer Matthew Liberatore,
also from the Ellwood City Police Department, recovered a vodka bottle after the hillside
was illuminated by the local fire department. Defendant Krivosh insisted that he did not
drink from the bottle and only drank at Shakespeare's Restaurant. At that time, Officer
Disher administered field sobriety tests to Defendant Krivosh. The first field sobriety test
administered was the horizontal gaze nystagmus, which consists of the police officer
holding a pen in front of the potentially intoxicated person and moving it to the right and
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left side. Upon performing this test, Defendant Krivosh's eyes did not track the pen and
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jumped from one position to the other, which indicated that he had a blood alcohol
content over .10 percent. Next, Officer Disher administered the walk and turn test, in
which Defendant Krivosh was instructed to walk nine steps forward with his heel placed
just in front of the toes of his opposite foot, turn around and then walk nine more steps in
that manner. Defendant Krivosh failed on the first nine steps and had one misstep on
the second nine steps. According to the police report, Officer Disher also administered a
portable breath test, which indicated that Defendant Krivosh's blood alcohol content was
.09 percent. Officer Disher then placed Defendant Krivosh under arrest and transported
him to Ellwood City Hospital to undergo a blood test to determine his blood alcohol
content, which revealed that he had a blood alcohol content of 0.154 percent. Officer
Disher testified that, upon first approaching Defendant Krivosh, it was apparent to any
reasonable person that he was intoxicated.
On October 16, 2012, the Plaintiffs filed suit seeking damages against Defendant
Krivosh, Defendant Venn and Defendant Heron's Landing. The claims against
Defendant Heron's Landing are based upon alleged violations of the Dram Shop Act.
On November 20, 2012, Defendants Krivosh and Venn filed Preliminary Objections To
Complaint, which were overruled in part and sustained in part by Opinion and Order of
Court issued by the Honorable Eugene E. Fike, Senior Judge, dated May 7, 2013. In the
interim, Defendant Heron's Landing filed its Answer, New Matter and Crossclaims on
February 28, 2013. The Plaintiffs then filed an Amended Complaint on May 14, 2013, to
which Defendant Heron's Landing filed an Answer, New Matter And Crossclaim To The
Plaintiffs' Amended Complaint on June 18, 2013. Eventually, Defendant Heron's
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Landing filed its Motion For Summary Judgment on January 17, 2014, which argued that
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the Plaintiffs have failed to present evidence to create a question of fact that employees
of Defendant Heron's Landing served alcohol to Defendant Krivosh when he was visibly
intoxicated and the Plaintiffs should not be provided with additional time to procure a
toxicology expert as that, by itself, is not sufficient evidence to permit the Plaintiffs' claim
to survive summary judgment. The Plaintiffs have filed the expert report of Karl E.
Williams, MD, MPH, on May 15, 2014, with their Brief In Answer To Defendant's Motion
For Summary Judgment. Therefore, the Court no longer had to address that issue as
the Plaintiffs did not need further time to procure an expert report. The Court, in its
Order and Opinion dated July 16, 2014, granted Defendant Heron's Landing's Motion
For Summary Judgment and dismissed all the claims against it as the Plaintiffs were
unable to provide any evidence that the Defendant was visibly intoxicated when he was
served alcohol at Shakespeare's Restaurant. The Plaintiffs have now appealed and
asserted 17 errors concerning the Court's decision to grant summary judgment;
however, all of those assertions pertain to whether the Plaintiffs have presented
sufficient evidence to establish an issue of material fact regarding whether Mr. Krivosh
was visibly intoxicated when he was served alcoholic beverages at Shakespeare's
Restaurant. As such, the Court will address all of the issues contained in the Plaintiffs'
Statement Of Errors Complained Of On Appeal as a whole.
The purpose of the Summary Judgment Rule is to eliminate cases prior to trial
where a party cannot make out a claim or defense after the relevant discovery has been
completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The
mission of the summary judgment procedure is to pierce the pleadings and to assess the
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rule exists to dispense with a trial of the case or, in some matters, issues in a case,
where a party lacks the beginnings of evidence to establish or contest a material issue.
Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied,
(1996), certiorari denied, 519 U.S. 1008 (1996).
Any party may move for summary judgment in whole or in part as a matter of law
whenever there is no genuine issue of any material fact as to a necessary element of the
cause of action or defense which could be established by additional discovery or expert
report or if, after the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the cause of action or defense which
in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.
Summary judgment may be granted only in cases where it is clear and free from doubt
that there is no genuine issue as to any material fact and that the moving party is entitled
to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d
59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648,
650-651 (Pa. Super. 1999). If the non-moving party does not respond, the trial court
may grant summary judgment on that basis. Pa.R.C.P. No. 1035.2(d); see a/so Harber
Philadelphia Center City Office Limited v. LPCI, L.T.D., 764 A.2d 1100 (Pa. Super.
2000).
When determining whether to grant a motion for summary judgment, the Court
must view the record in the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be resolved against the
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moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000).
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In passing on a motion for summary judgment, the court must examine the record in a
light most favorable to the non-movant and resolve any doubt in his favor. Swartley v.
Hoffner, 734 A.2d 915 (Pa. Super. 1999). Summary judgment is proper only when the
uncontroverted allegations in the pleadings, depositions, answers to interrogatories,
admissions of record, and submitted affidavits demonstrate that no genuine issue of
material fact exists, and that the moving party is entitled to judgment as a matter of law.
P.J.S. v. Pennsylvania State Ethics Comm'n, 555 Pa. 149, 153, 723 A.2d 174, 175
(1999).
Only when the facts are so clear that reasonable minds cannot differ, a trial court
may properly enter summary judgment. Basile v. H&R Block, supra. Thus, a proper
grant of summary judgment depends upon an evidentiary record that either (1) shows
the material facts are undisputed or (2) contains insufficient evidence of facts to make
out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa.
Super. 2001). It is not the function of the Court ruling on a motion for summary judgment
to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania
Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).
The Plaintiffs' claims against Heron's Landing are based upon 47 P.S. §4-493(1 ),
which states:
It shall be unlawful-
(1) Furnishingliquoror malt or brewed beverages to certain persons.
For any licensee or the board, or any employe[e], servant or agent of such
licensee or of the board, or any other person, to sell furnish or give any
liquor or malt or brewed beverages, or to permit any liquor or malt or
brewed beverages to be sold, furnished or given, to any person visibly
53RD intoxicated, or to any minor ... (emphasis added).
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In an action based upon a violation of the Dram Shop Act, the plaintiff is required to
establish the following: "(1) that an employee or agent of [the defendant] served the
[plaintiff] alcoholic beverages at a time when he [or she] was visibly intoxicated; and (2)
that this violation of the statute proximately caused his [or her] injuries." Fandozzi v.
Kelly Hotel, Inc., 711 A.2d 524, 525, 526 (Pa. Super. 1998) (citing Johnson v. Harris,
419 Pa. Super. 541, 548-550, 615 A.2d 771, 775 (1992)). A plaintiff can establish that
an establishment served alcohol to a visibly intoxicated patron through circumstantial
evidence in the absence of direct eyewitness evidence. _kl, 711 A.2d at 526. A licensee
will not be held liable based upon any consideration, such as blood alcohol content, that
is not externally apparent as the law focuses on visible signs of intoxication. Laukemann
v. Com., Pennsylvania Liquor Control Bd., 82 Pa. Cmwlth. 502, 506, 475 A.2d 955, 956-
957 (1984). 'The practical effect of the law is to insist that the licensee be governed by
appearances, rather than by medical diagnosis." _kl
The Plaintiffs cite to Fandozzi for the proposition that visible intoxication can be
proven in the absence of direct eye witness testimony. In Fandozzi, the decedent
walked a distance of one mile from his hunting camp to the Kelly Hotel where the
decedent began consuming alcoholic beverages. A bartender recalled serving him two
alcoholic drinks prior to asking for him to pay a cover charge and another drink after
speaking with him. The bartender did not recall what the decedent was drinking or the
total number of drinks he consumed. The decedent then exited the Kelly Hotel where he
was observed by three individuals either on the porch in front of the Kelly Hotel or on the
adjacent road. One of those individuals was the co-owner of the Kelly Hotel, who was
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working the door. He said goodbye to the decedent and watched him walk across the
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street where he fell to the ground. The co-owner attempted to help him up and noticed
that the decedent was staggering and his speech was slurred; however, the co-owner
did not notice those signs of intoxication prior to the fall. The co-owner then helped the
decedent back to the front porch where the decedent slept for a while. He then
attempted to walk, but fell again in the middle of the street. Another individual testified
that she observed the decedent when he was leaving the Kelly Hotel at some time after
9:30 p.m. He seemed to be very intoxicated and was staggering before he fell in the
middle of the street. She offered to drive the decedent home in a friend's vehicle. A
teen-age boy, who was accompanying that individual, also observed the decedent
stagger and fall in the street. He stated that the decedent smelled of alcohol and had
slurred speech. The individual and the teenage-age boy were unable to understand the
decedent when he explained where he lived due to his slurred speech and both stated
he smelled of alcohol. The decedent was unable to identify exactly where he lived, so
they left him at the entrance to a campground about a mile away from the Kelly Hotel.
Early the next morning, state troopers found the decedent lying on the side of the road
near the entrance of the campground. The troopers noticed that he had a head injury,
was bleeding and demonstrated a high degree of intoxication. He was taken to the
hospital where a blood test revealed that he had a blood alcohol content of 0.214
percent. The decedent died from the injury to his head. The appellants filed suit against
the Kelly Hotel among other defendants. The trial court granted summary judgment in
favor of the Kelly Hotel on the issue of liability under the Dram Shop Act. It must be
noted that the appellants offered an expert report stating that the decedent's blood
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alcohol content at the time he left the hotel would have been .30 percent and he would
have displayed visible signs of intoxication while in the Kelly Hotel.
The Fandozzi Court initially stated that it is not enough to serve a patron alcoholic
beverages, for civil liability to attach, there must be evidence that the patron was served
alcohol when he or she was visibly intoxicated. Fandozzi, 711 A.2d at 527 (citing Holpp
v. Fez. Inc., 440 Pa. Super. 512, 515-517, 656 A.2d 147, 149 (1995)). The Court also
noted that the appellants have failed to produce any direct evidence that the decedent
was visibly intoxicated at the time he was served alcohol, but there was sufficient
circumstantial evidence to create a jury question on that issue. ~ The Fandozzi Court
reasoned that the appellants presented circumstantial evidence that the decedent was
visibly intoxicated, which included the decedent drank alcohol for two hours at the hotel,
he was observed by three witnesses in an extremely intoxicated condition, either on the
porch of the Kelly Hotel or in its close proximity on the adjacent street, he was stumbling,
he fell twice on the street, had slurred speech, smelled of alcohol, he could not identify
the location of his hunting camp and he fell asleep on the porch of the Kelly Hotel. ~ In
addition, a blood alcohol test taken approximately six hours after the decedent left the
hotel indicated that he had a blood alcohol content of 0.214 percent. The appellants
also provided an expert report that stated the decedent's blood alcohol content would
have been .30 percent when he was at the hotel and he would have demonstrated signs
of visible intoxication. The Court explained that the medical testimony alone is
insufficient to create an issue of material fact concerning visible intoxication. ~. 711
A.2d at 5289 (citing Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771, 776 (1992)).
53RD
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issue of material fact, but the medical testimony by itself did not. kl The Court
reasoned, "Appellants have presented evidence that [decedent] drank more than the
equivalent of fourteen twelve-ounce beers during the two hours he was at the Kelly
Hotel; that immediately after he left, he was stumbling and falling to the ground, and
could not identify where he lived; that he was still highly intoxicated when found by police
more than four hours later; and that his blood alcohol content was 0.214 percent
approximately six hours after leaving the Kelly Hotel." kl, 711 A.2d at 529. Therefore,
the Fandozzi Court determined that the trial court improperly granted summary judgment
in favor of Kelly Hotel as there was an issue of material fact concerning whether the
decedent was visibly intoxicated at that time he was served alcohol at the hotel. .!st., 711
A.2d at 529.3
The Plaintiffs also cite to Couts v. Ghion, 281 Pa. Super. 135, 421 A.2d 1184
(1980), which is a plurality decision of the Pennsylvania Superior Court.4 In that case,
Dean P. Ghion (hereinafter "Ghion") attended a business meeting hosted by a soft drink
distributor, Refreshment Products, Inc., at a restaurant and motel operated by Holiday
House, Inc. The attendees of the meeting, including Ghion, were furnished with alcohol.
Ghion consumed eight alcoholic beverages at the meeting and ate lunch after the
3
The Plaintiffs assert that this Court erred in failing to follow the Court's ruling in Fandozzi. That case is
distinguishable from the current matter, as the decedent was observed by three individuals while on or near the Kelly
Hotel premises and they noticed the decedent staggering, slurring his speech, he fell on two occasions in the street
and he fell asleep on the porch of the Kelly Hotel. These observations were all in relation to the decedent attempting
to leave the Kelly Hotel. In the current matter, the only testimony provided from Shakespeare's Restaurant is from
Defendant Venn, who stated that Defendant Krivosh did not appear to visibly intoxicated while at the restaurant or
when they were leaving. Hence, Fandozzi is distinguishable from the current case as the case contained testimony
that the decedent was visibly intoxicated as he attempted to leave the Kelly Hotel and, in the current matter, the
testimony indicates that Defendant Krivosh was not visibly intoxicated while inside of Shakespeare's Restaurant or
upon leaving the same. The Plaintiffs merely presented testimony of Officer Disher and Mr. Allen concerning
53RD Defendant Krivosh's condition at the time of the accident and testimony concerning his blood alcohol content.
4
JUDICIAL The Pennsylvania Supreme Court has stated that plurality opinions do not have precedential value. Commonwealth
DISTRICT v. Baldwin, 604 Pa. 34, 42, 985 A.2d 830, 835 (2009) (citing Kelley v. State Employees' Ret. Bd., 593 Pa. 487, 932
A.2d 61, 67-68 (2007)).
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meeting concluded. At 5:00 p.m., Ghion went to a bar located elsewhere in the Holiday
House restaurant where he drank two more alcoholic beverages. He finished the drinks
at 5:15 p.m. and left the Holiday House, Inc. in his automobile. Ghion was then involved
in an accident at 6:00 p.m. as he was driving on Route 30 North and his vehicle crossed
the double yellow line. He was traveling in the westbound lanes when he struck a
Toyota pickup. The driver of that vehicle died as a result of the collision. Within
minutes, a police officer arrived to investigate the scene. He observed Ghion walking
with a staggering gait and he detected a strong odor of alcohol. Ghion also fumbled
through his wallet and dropped some cards when he was asked to provide his driver's
license and registration. Additionally, Ghion's speech was slurred. The appellant not
only filed suit against Ghion, but against Refreshment Products, Inc. and Holiday House, ·
Inc. for serving Ghion alcohol when he was visibly intoxicated. The trial court granted
summary judgment on behalf of Refreshment Products, Inc. and a compulsory nonsuit in
favor of Holiday House, Inc. As a result, the appellant appealed to the Superior Court of
Pennsylvania arguing that the trial court erred in entering judgment as there were issues
of material fact concerning whether Ghion was visibly intoxicated when those parties
served him alcohol.
The Court initially stated that Refreshment Products, Inc. could not be held liable
under the Dram Shop Act as the Courts have refused to impose liability upon persons
who are not licensed and engaged in the sale of intoxicants. kl, 281 Pa. Super. at 140,
421 A.2d 1187 (citing Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973)). The Couts
Court then focused its attention on Holiday House, Inc. The Court determined that the
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evidence presented was sufficient for that issue to be submitted to a jury. kl, 281 Pa.
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Super. at 142, 421 A.2d 1188. The appellants' evidence included testimony concerning
Ghion's substantial alcohol consumption, his erratic driving, failing to utilize the lights on
his vehicle, the appearance of intoxication noted by the police officer and improperly
excluded evidence of his blood alcohol content. The Court stated, "Despite the lack of
direct evidence bearing on Ghion's condition when he was served his last drink, we think
that the jury could have reasonably concluded that he was visibly intoxicated at that
time." kl Therefore, the Couts Court affirmed the trial court's decision to enter summary
judgment in favor of Refreshment Products, Inc. and reversed the trial court's entry of a
compulsory nonsuit concerning Holiday House, Inc. kl
Defendant Heron's Landing argues that this case more similarly resembles
Johnson, 419 Pa. Super. 541, 615 A.2d 771. In that case, the appellants were involved
in a one-vehicle automobile accident after frequenting several local drinking
establishments with friends. The appellants argued that the drinking establishments
violated the Dram Shop Act by serving the driver alcohol when she was visibly
intoxicated. The driver picked up her passenger at approximately noon at his mother's
residence where he resided. They went to the Chestnut Street Inn where they had three
12-ounce beers. At 1 :00 p.m., the appellants walked to nearby Sunbury Eagles where
they consumed several 16-ounce beers. They then watched a movie before driving to
the Milton Eagles, which they soon left because it was crowded. Apparently, they went
to the Milton American Legion where the passenger drank beer and gambled. The
driver vaguely remembers consuming beer there as well. The appellants also stopped at
the Halfway House; however, the appellants were not served alcohol there. They used
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the bathroom and left that establishment. Soon thereafter, the appellants were involved
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in a one-vehicle accident. The appellants filed suit seeking damages against the
drinking establishments that they visited for violations of the Dram Shop Act.
The appellees filed motions for summary judgment arguing that there was no
evidence that the appellants were served alcohol while they were visibly intoxicated.
The trial court granted those motions and noted that the only evidence that the
appellants were visibly intoxicated came from the appellants' expert report stating that
the driver's blood alcohol content would have been higher than .226 percent when she
left the Halfway House and it would have been .07 percent when she began drinking at
the Sunbury Eagles. According to that report, the driver's blood alcohol content would
have exceeded .10 percent during the time when she was drinking at the Sunbury
Eagles and would have exceeded .15 percent by the time they left that establishment.
The expert also opined that a person with those blood alcohol contents would have
shown visible signs of intoxication, including a decreased capacity for hearing resulting
in speaking louder, decreased dexterity, diminished motor skills, compromised reaction
time, slurred speech and sometimes bloodshot eyes. The trial court reasoned that the
expert report was based upon the effects of alcohol on the average person and not
personal observations of the appellants on the day in question. The appellants filed an
appeal to the Superior Court of Pennsylvania asserting that there is a genuine issue of
fact as to the driver being served while she was visibly intoxicated as she was served
alcoholic beverages at all of the establishments and the expert report outlines the typical
signs of intoxication the average person would have displayed given the driver's
estimated blood alcohol content.
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The Johnson Court agreed with the trial court's ruling and explained that when
examining whether a person is visibly intoxicated, the courts should place emphasis on
what can be seen and not focus as much on blood alcohol content. ~' 419 Pa. Super.
at 551, 615 A.2d at 776 (quoting Laukemann v. Com., Pennsylvania Liquor Control Bd.,
82 Pa. Cmwlth. 502, 506, 475 A.2d 955, 956-957 (1984)). The Court explained, "A
review of the Record displays that there is nothing to indicate that [the driver] was served
while visibly intoxicated at any of the drinking establishments. Quite the contrary is true.
[The passenger] asserted in his deposition testimony that [the driver] was not visibly
intoxicated the day of the accident." ~ Moreover, the Court determined that the expert
testimony did not create a question of fact as it is merely an attempt to relate back the
blood alcohol content when the appellants were at certain establishments before the
accident and it indicates the visible signs of intoxication that the average person would
demonstrate. ~. 419 Pa. Super. at 552, 615 A.2d at 776. However, there is no
indication that the driver's reaction to alcohol ingestion would be the same as the
average person's response. ~ Thus, the appellants have failed to produce any witness
to support their position, the trial court properly granted summary judgment. ~
The Superior Court of Pennsylvania addressed a similar case to the current
matter in Conner v. Duffy, 438 Pa. Super. 277, 652 A.2d 372 (1994). In that case, the
driver collided with the appellant while driving home from a Philadelphia Phillies baseball
game hosted at Veteran's Stadium in Philadelphia, Pennsylvania. The driver was
arrested and charged with driving under the influence. The appellant filed suit asserting
claims of negligence against the concessionaire at the Stadium and the Philadelphia
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Phillies for serving the driver while he was visibly intoxicated. The concessionaire and
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{
I
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the Philadelphia Phillies moved for summary judgment, which was granted by the trial
court. The appellant filed an appeal to the Superior Court of Pennsylvania. The
appellant offered the deposition testimony of one of the driver's friends who attended the
baseball game. He stated that beer purchases were made at the stadium and the driver
drove erratically when exiting the stadium. The arresting police officer also testified that
the driver appeared to be intoxicated approximately one hour after the baseball game
concluded. He exhibited slurred speech and blood shot eyes. The appellant contended
that the results of the field sobriety tests, blood alcohol tests and "relation back"
testimony by the appellant's expert demonstrated that the driver would have appeared
intoxicated during the time he was at the stadium.
The Conner Court emphasized that the driver's friend testified that the driver did
not appear to be intoxicated at the stadium and his erratic driving was attributed to his
unfamiliarity of the roadways as he missed the turn to enter Interstate 95. ~. 438 Pa.
Super. at 282, 652 A.2d at 374. The friend also stated that he was not concerned about
the driver's ability to operate the vehicle. ~ In addition, the friend could not testify to
ever seeing the driver purchase beer from the concession stand or the usherette. ~.
438 Pa. Super. at 282, 652 A.2d at 375. In fact, the friend stated that the five of them
who went to the game together, alternately purchased beer based upon who wanted a
beer at that particular time. ~ The Court explained there was no nexus between the
beer purchases and the driver's visible intoxication as the only certain testimony
provided by the friend was that the driver did not appear to be intoxicated. ~ As a
result, the appellant's only proof of visible intoxication was the driver's appearance at the
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Super. at 283, 652 A.2d at 374. The appellant contended that the evidence presented
was sufficient to demonstrate that the driver was visibly intoxicated when he was served
alcoholic beverages pursuant to the Court's decision in Couts. The Conner Court initially
noted that Couts is a plurality opinion and is not binding on the Court's decision. kt_ The
Court also distinguished Couts from Conner as there was a lack of erratic driving, the
difference in time that elapsed between the blood alcohol testing and the accident and
there was testimony from the friend that the driver consumed more beer in the vehicle
after leaving the stadium. kt_ Thus, the Conner Court affirmed the trial court's decision
to grant summary judgment in favor of the appellees. kt_
In the case sub judice, Defendant Krivosh made arrangements to meet Mary
Frances Venn at Shakespeare's Restaurant for drinks. Prior to leaving to travel to the
restaurant, Defendant Krivosh drank two "gulps" of vodka for a total consumption of
approximately eight ounces. He placed the bottle of vodka in his vehicle and then
departed for Shakespeare's Restaurant. Defendant Venn arrived at the restaurant first
and was later joined by Defendant Krivosh, who ordered a vodka and tonic for both of
them. They began conversing and Defendant Krivosh informed Defendant Venn that he
was terminating their relationship. Defendant Krivosh consumed that beverage and
ordered another one. He drank half of that beverage and paid for the drinks with a $20
bill prior to leaving the restaurant. Defendant Venn left shortly thereafter and followed
him into the parking lot. Defendant Krivosh and Defendant Venn entered their vehicles
and Defendant Krivosh drove off followed by Defendant Venn. After traveling a short
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distance5, they arrived at a traffic light and Defendant Krivosh sped away when the light
turned green. Defendant Venn lost sight of his vehicle at that time. As Defendant
Krivosh was driving outside of Defendant Venn's view, he crossed into the other lane of
the roadway and struck the Plaintiffs' vehicle, which caused Elvin W. Jenkins to suffer
severe injuries. The distance from the traffic light to the site of the accident was
approximately a quarter of a mile. Defendant Venn approached the site of the accident
and she parked her vehicle behind Defendant Krivosh's truck. Defendant Krivosh exited
his vehicle and approached the other vehicle where he realized that Mr. Jenkins was
trapped inside. Defendant Krivosh returned to his vehicle and attempted to dispose of
the vodka bottle over a nearby hillside. Patrolman Disher then arrived at that scene and
observed that Defendant Krivosh had glassy, bloodshot eyes, he was swaying in a
circular motion and he emanated an odor of alcohol. Defendant Krivosh was attempting
to keep his mouth closed in an effort to hide the odor of alcohol. Officer Disher then
administered three field sobriety tests, which Defendant Krivosh failed. One of the field
sobriety tests was a portable breath test, which indicated that Defendant Krivosh's blood
alcohol content was .09 percent. Mr. Krivosh was transported to Ellwood City Hospital
and submitted to a blood alcohol test, which revealed he had a blood alcohol content of
0.154 percent.6 The Plaintiffs provided an expert report from Karl E. Williams, MD, MPH,
who utilized methods of relation back extrapolation to determine that Defendant Krivosh
would have had a blood alcohol content of 0.172 percent when he was at Shakespeare's
Restaurant or the equivalent of eight or nine alcoholic beverages. He opined that is a
5
Officer Disher testified that the drive from Shakespeare's Restaurant to the site of the accident would last
53RD approximately ten minutes depending on the traffic lights.
6
JUDICIAL The Defendant's blood alcohol content was provided to the Court through the Police Crash Reporting Form created
DISTRICT by Officer Matthew Liberatore of the Ellwood City Police Department and the Affidavit of Probable Cause authored
by Officer Disher relating to the Defendant's criminal charges for driving under the influence.
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level of intoxication at which any casual observer would notice that Defendant Krivosh
was visibly intoxicated.
This case is similar to Conner as there is no direct testimony that Defendant
Krivosh was visibly intoxicated while being served alcoholic beverages at Shakespeare's
Restaurant.7 Defendant Venn testified in her deposition that Defendant Krivosh did not
appear to be intoxicated while at the restaurant. The two were able to engage in an in
depth conversation with no signs of intoxication.8 Moreover, the Plaintiffs did not provide
any testimony from any restaurant employees or other patrons of Shakespeare's
Restaurant that Defendant Krivosh appeared to be visibly intoxicated, such as having
difficulty walking, slurring his words, having a significant number of drinks or the length of
time Defendant Krivosh was at Shakespeare's Restaurant. Defendant Krivosh and
Defendant Venn testified that he had only one and a half vodka tonics at the restaurant
before paying the bill and departing, which is substantiated by his testimony that he paid
with $20. Only two drinks were served to the Defendant at Shakespeare's Restaurant
and there is no evidence that he was visibly intoxicated while served or at anytime inside
Shakespeare's Restaurant. The Plaintiff has also failed to produce evidence that
7
The Plaintiffs contend that the Court erred in failing to distinguish Conner from the current case. The Court
provided a thorough analysis of the Conner case and determined that it was factually similar to the current case as a
friend of the driver in Conner testified that the driver did not appear to visibly intoxicated at the stadium and the
Court emphasized that the friend's testimony was the only definitive testimony concerning the driver's condition. In
the current case, Defendant Venn's testimony that Defendant Krivosh did not appear to be visibly intoxicated at
Shakespeare's Restaurant is the only testimony provided to this Court concerning his condition when he was served
alcohol by employees of Defendant Heron's Landing. The Plaintiffs make the distinction that the driver's friend in
Conner was a non-party to the suit; however, the Court does not find that Defendant Venn's status as a party
invalidates her testimony that Defendant Krivosh was not visibly intoxicated because her interests in the matter are
not the same as Defendant Heron's Landing and it is unlikely that her testimony in that regard was influenced by her
status as a defendant.
8
The Plaintiffs contend that the Court could have and should have disregarded Defendant Venn's and Defendant
53RD Krivosh's testimony as their interests were aligned with the interests of Defendant Heron's Landing. The Court
JUDICIAL disagrees as they may have been more willing to place blame on Defendant Heron's Landing for the accident instead
DISTRICT of themselves. Moreover, Defendant Venn's testimony is the only evidence provided to this Court describing
Defendant Krivosh's condition inside of Shakespeare's Restaurant.
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Defendant Krivosh was having difficulty in Shakespeare's Restaurant or that he was
visibly intoxicated in the parking lot. In addition, there is no evidence of erratic driving
during the ten-minute drive prior to Defendant Krivosh's failure to navigate the bend
causing the collision with the Plaintiff's vehicle. The record is also devoid of any
reference that Defendant Krivosh was unable to control his vehicle other than his
testimony that it seemed like his truck steering was not responding when he attempted to
navigate the curve in the road. The Plaintiffs rely entirely upon the testimony of Officer
Disher9 and the affidavit of Mr. Allen, who both observed Defendant Krivosh after the
accident. They both stated that Defendant Krivosh appeared to be visibly intoxicated
when they observed him. It must be noted that when Defendant Krivosh was observed
by Mr. Allen he had just been in a high speed collision with another vehicle, yet he still
had the wherewithal to throw the vodka bottle, which was half empty, over the hill.10 Mr.
Allen also stated that he observed Defendant Krivosh operating his vehicle immediately
before the accident occurred, which was after Defendant Krivosh sped up to avoid being
followed by Defendant Venn. The Plaintiffs have provided the expert report of Dr.
Williams to demonstrate that Defendant Krivosh's blood alcohol content would have
been 0.172 percent when he was at Shakespeare's Restaurant and it would have been
9
The Plaintiffs assert that the Court erred in failing to consider that Officer Disher testified it would be apparent to
any reasonable person that Defendant Krivosh was intoxicated approximately ten minutes after leaving Heron's
Landing. However, that testimony is not admissible at trial as Officer Disher is not permitted to speculate as to how
a reasonable person would interpret Defendant Krivcshs condition nor is he permitted to render a legal conclusion as
to what a reasonable person would have observed concerning Defendant Krivosh. At trial, Officer Disher would only
be permitted to render his observations of Defendant Krivosh.
10
In the Plaintiffs' Statement Of Errors Complained Of On Appeal, they assert that the Court erred in finding the fact
that Defendant Krivosh was able to throw the vodka bottle over a hill just after the accident was important. This fact
indicates that Defendant Krivosh was still cognizant of his environment, which is another indication of a lack of
53RO visible intoxication. This was not the sole fact relied upon by the Court and it is merely referred to as part of the
JUDICIAL Court's reasoning to be analyzed along with the other facts and evidence that the Court was presented. The
DISTRICT Defendant seems to take offense to the wording initially used by the Court, which stated, "It is important to note ... "
However, the Court was not emphasizing that fact over any of the other facts that it recited in its analysis.
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apparent to a casual observer that he was visibly intoxicated. According to Conner, that
"relation back" testimony is insufficient to create a question of fact to permit the issue of
visible intoxication to be decided by a jury. The Court will also note that the terminology
utilized by 47 P.S. § 4-493(1) indicates that an establishment may not serve alcohol to
any patron that is visibly intoxicated at the time the alcoholic beverage is served.
(emphasis added). In this case, there is no evidence or testimony that Defendant
Krivosh appeared visibly intoxicated while he was at Shakespeare's Restaurant. In fact,
Defendant Venn testified to the opposite that Defendant Krivosh did not appear to be
intoxicated and she could not smell alcohol on his breath. The Plaintiffs have not
presented any evidence demonstrating that Defendant Krivosh was slurring his words at
Shakespeare's Restaurant, he was unable to walk properly or he was driving erratically
prior to the accident. To uphold Plaintiff's theory would unnecessarily impose liability
upon any establishment serving alcoholic beverages when there has been testimony by
a police officer that a driver is under the influence despite a complete void of direct
evidence that the driver was visibly intoxicated when he was served alcohol at the
establishment.11
The Plaintiffs contend that the Court failed to consider the circumstantial evidence
of Defendant Heron's Landing's violations of Pennsylvania Liquor Laws in general.
11
The Plaintiffs argue that the Court erred in acknowledging that the Plaintiffs were permitted to establish their case
through circumstantial evidence and then proceeding to ignore the law. The Court did not ignore the law regarding
the Plaintiffs' ability to prove visible intoxication through circumstantial evidence. Conversely, the Court applied the
law as it is established by the existing case law that is binding upon this Court's decision. The Court considered the
Plaintiffs' circumstantial relation back testimony and found that there was no indication that Defendant Krivosh was
visibly intoxicated when he was served with alcohol at Shakespeare's Restaurant. In fact, any relation back evidence
presented by the Plaintiffs deals with the condition of Defendant Krivosh at the time of the accident and fails to
53RD correlate with the direct evidence that was provided to the Court. After an examination of the Court's thorough
JUD IC IA L analysis of this matter, it is disingenuous for the Plaintiffs to assert that the Court ignored applying the law in this
DISTRICT matter as the Court clearly set forth the established standards for reviewing a case dealing with visible intoxication
and it examined, in detail, prominent cases involving that issue.
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However, circumstantial evidence of general violations of the Pennsylvania Liquor Laws
do not have any relevance to the issues raised in Defendant Heron's Landing's Motion
For Summary Judgment as it claimed Defendant Krivosh was not visibly intoxicated
while at Shakespeare's Restaurant. Any violations of the Pennsylvania Liquor Laws by
Defendant Heron's Landing that do not concern serving alcohol to Defendant Krivosh fail
to establish that Defendant Krivosh was visibly intoxicated when he was at
Shakespeare's Restaurant on the night of the accident.
The Plaintiffs assert that Defendant Krivosh consumed approximately 16 ounces
of vodka at his residence prior to leaving for Shakespeare's Restaurant as evidenced by
the half-empty vodka bottle he attempted to discard after the accident. However, there is
no testimony or evidence demonstrating that Defendant Krivosh consumed more than 8
ounces of vodka prior to departing for Shakespeare's Restaurant. It is entirely plausible
that Defendant Krivosh consumed vodka from that bottle at another time, either prior to
the date of the accident or after he left Shakespeare's Restaurant. Additionally, the only
evidence concerning the amount of vodka missing from the bottle was provided by Dr.
Williams, who stated that Officer Disher provided him with a bottle of vodka that
contained 203 cubic centimeters of vodka remaining from the original volume of 750
cubic centimeters. There is no testimony as to when the entirety of the missing 547
cubic centimeters was consumed. Therefore, the Court finds that the Plaintiffs have
failed to present evidence creating a material fact regarding whether Defendant Krivosh
was visibly intoxicated when he was served alcohol at Shakespeare's Restaurant.
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DISTRICT
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'ENNSYLVANIA 24
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The Plaintiffs assert the Court erred in failing to consider circumstantial evidence
of the spoliation of evidence by Defendant Heron's Landing as it relates to the
destruction of the videotape and the cash receipts.
The decision to impose sanctions is within the discretion of the court and
sanctions should not be imposed without some willful disregard or disobedience of an
order of court or another obligation which is expressly stated. Pompa v. Hojnacki, 445
Pa. 42, 45, 281 A.2d 886, 888 (1971) (citing Rapoport v. Sirott, 418 Pa. 50, 56, 209 A.2d
421, 424 (1965)). Here, Plaintiffs seek to impose spoliation sanctions on Defendants
because Defendants are no longer in possession of the surveillance videotape and the
cash receipts.
Courts have adopted the spoliation doctrine which allows for an inference that
evidence destroyed by one party would have been unfavorable to the position of the
offending party. Mount Olivet Tabernacle v. Edwin L. Wiegand Division, Emerson
Electric Co., 781 A.2d 1263, 1269 (Pa. Super. 2001) (citing Schmid v. Milwaukee Elec.
Tool Corp., 13 F.3d 76 (3rd Cir. Pa. 1994)). The spoliation inference has both
prophylactic and punitive effects. kl Under this rule the court may impose various
sanctions, which include: "dismissal, striking out pleadings or portions thereof,
prohibiting the introduction of evidence, and permitting the inference at trial that the
destroyed evidence would have been harmful to plaintiff." Troup v. Tri-County
Confinement Sys., 708 A.2d 825, 828 (Pa. Super. 1998) (citing Robinson v. Alston, 413
Pa. 296, 197 A.2d 40 (1964)).
The Pennsylvania Supreme Court has provided the following factors to aid the
53RO
JUDICIAL court in deciding the proper penalty for spoliation:
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(1) the degree of fault of the party who altered or destroyed the evidence;
(2) the degree of prejudice suffered by the opposing party, and (3) the
availability of a lesser sanction that will protect the opposing party's rights
and deter future similar conduct. Shroeder v. Commonwealth, 551 Pa.
243, 250-251.
In deciding the proper sanction for spoliation, the court should apply the least
drastic sanction, such as a curative instruction that would both remedy the problem of
the missing evidence, if applying any sanction at all. Sebelling by & through Sebelling v.
Yamaha Motor Corp., USA, 705 A.2d 904, 907 (Pa. Super. 1998).
The Court must determine the degree of fault attributable to Defendant and in
order to do this the Court must examine "two components: responsibility, and the
presence or absence of bad faith." Mount Olivet Tabernacle, 781 A.2d at 1270. Also, if
comparable evidence exists then the prejudice created by the spoliation of the evidence
is removed. O'Donnell v. Big Yank, 696 A.2d 846, 848-849 (1997) (citing Quaile v. Carol
Cable Co. Inc., 1993 U.S. Dist. Lexis 2745 (E.D. Pa. 1993); Martin v. Volkswagen of
America, Inc., 1989 U.S. Dist. Lexis 8087 (E.D. Pa. 1989)); See also Amico v. Radius
Communications, 2001 Phila. Ct. Com. Pl. Lexis 89 (2001).
The spoliation of papers or documents, which the party ought to produce gives
rise to an unfavorable presumption as that party's conduct may be properly attributed to
his knowledge that the document itself would operate against him or her during the
litigation process. Ward v. Torchia, 49 Pa. D. & C. 4th 315, 321-322 (2000). The Ward
Court held that spoliation applied to a real estate broker who knowingly withheld the
identity of a person the broker wrongfully let onto the property. !.g_,_ (emphasis added).
Dale Thomson, the general manager for Shakespeare's Restaurant, testified that
53RD
JUDICIAL there were security cameras installed in the restaurant on the night of the accident. He
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;)ENNSYLVANIA 26
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was able to view those videos for 15 days and then they would be recorded over. Mr.
Thomson was not sure as to whether those recordings could be preserved for later
viewing as he never attempted to save a recording from that system. He also testified
that Shakespeare's Restaurant utilized a point of sale system called Digital Dining to
record the sales of alcoholic beverages and food. However, he stated that Digital Dining
did not have the capabilities of maintaining a record of what's been purchased or billed
for at Shakespeare's Restaurant, but he had daily reports, which included a report for
every bartender showing their total sales and how the sales were made either through
cash or credit cards. There is a general report that is produced as well for the entire
operation for the day and a profit report that shows where all the money came from
relating to the different departments. Mr. Thomson also described a detailed credit card
report that listed all of the credit cards that were processed that day. He explained that
there are no records preserving a receipt for alcohol purchases that are paid in cash
detailing the exact beverages that were purchased other than the receipt. That
information would be shown on the server's report with a line item indicating there was a
check for a certain amount and it was paid in cash. Furthermore, a detailed report from
the night of the accident would not be available as it is only preserved for 18 months
before it is purged from the system. Mr. Thomson stated that he did not attempt to
preserve the reports demonstrating the cash receipts from the day of the accident upon
receiving notice of the current lawsuit as it would be impossible to identify which
transaction involved Defendant Krivosh as he paid in cash. It must be noted that Mr.
Thomson attempted to research the credit card report to determine if Defendant
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Krivosh's name could be found on that report, which it was not as he paid in cash.
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Based upon those facts, the Court finds no reason to impose spoliation sanctions
upon Defendant Heron's Landing at the current stage of the litigation as the records
were not intentionally discarded to destroy evidence. The surveillance tape from the
date of the accident was erased automatically 15 days after it was recorded and Mr.
Thomson, who was in charge of those recordings, did not know of a method for
preserving that recording. At the time that the surveillance video would have been
erased, Defendant Heron's Landing would not have had notice that it was going to
become a defendant in the current suit and it had no reason for taking extra measures to
ensure that the surveillance video was preserved. Similarly, Mr. Thomson attempted to
search the daily reports for Shakespeare's Restaurant for the date of the accident when
he received notice that Defendant Heron's Landing was named as a defendant in the
current case. However, there would not have been a detailed report of Defendant
Krivosh's transaction as he paid in cash and his identity would not have been associated
with a particular receipt. The Court finds that Mr. Thomson made a reasonable effort to
attempt to locate records that may have stated Defendant Krivosh's drink order on the
night of the accident, but was unable to identify his receipt because he paid in cash.
Hence, the Court is not willing to impose spoliation sanctions or make an adverse
inference from the unintentional destruction of the surveillance video and cash receipts
in the current matter.
For the reasons set forth in this Opinion, the Plaintiffs' Appeal should be denied in
its entirety.
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JUDICIAL • .. ~
DISTRICT
·yn/ORIGINA.L
WRENCE COUNTY 20\SFEB l O A IQ: 20
PENNSYLVANIA 28
HELEH i. MORG;.\h,
?RO AHO CLERK