IN THE SUPERIOR COURT OF THE STATE OF MAJOR IN AND FOR THE COUNTY OF JAMNER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 IN THE SUPERIOR COURT OF THE STATE OF MAJOR IN AND FOR THE COUNTY OF JAMNER GRETCHEN and HANS SUMMERS Individually and as Administrators, Personal Representatives of the Estate of BRUNO SUMMERS, deceased, And as guardians for AMANDA and RONNIE SUMMERS; RONNIE SUMMERS, individually and DEBORAH SUMMERS, individually, Plaintiffs, vs. M.C. DAVOLA, sole proprietor of THE GARAGE TAVERN Defendant. Case No.: 0 SUMMARY JUDGMENT ON PLAINTIFF S CLAIM FOR NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Defendant, M.C. Davola, by and through his attorney, moves the Court for an order for summary judgment of Plaintiffs claim for negligent and intentional infliction of emotional distress because Plaintiffs have failed to establish all necessary elements of the claim, and defendant owed no duty to Plaintiffs related to this claim. Page 1 (--

2 I. STATEMENT OF THE CASE A complaint alleging wrongful death, negligence, and negligent and intentional infliction of emotional distress was filed in the Major Superior Court on November 1, by Plaintiffs Hans, Gretchen, Ronnie, Amanda, and Deborah Summers against Defendants Edward Taylor Hard, M.C. Davola, Davola s Wife, Tom Donaldson, Mary Apple, and the Garage Tavern. Plaintiffs and Defendants have completed interrogatories, requests for documents, requests for admission, depositions, and discovery. A trial date has been set. II. STATEMENT OF FACTS The material facts leading up to the shooting of Bruno Summers at the Garage Tavern are not in dispute. On August,, a fight broke out between Edward Hard and Bruno Summers at the Garage Tavern in Ruston, Major. Ex.. Mr. Hard was apparently upset with Mr. Summers relationship with Deborah Miller, who had previously dated Mr. Hard, but was now engaged to Mr. Summers. Ex.. Mr. Hard grabbed Mr. Summers from behind as Mr. Summers and Ms. Miller were leaving the Garage. Ex.. Mr. Summers fought back, and in the ensuing tussle, threw Mr. Hard to the ground, causing injuries that required him to go to the hospital for a broken tooth. Ex.. Two weeks later, on September,, Mr. Hard and Mr. Summers met again at the Garage. Ex.. Mr. Summers came to the Garage with his new wife, Deborah Summers (née Miller and a friend, Peter Dean. Id. Upon seeing Mr. Hard in the bar area of the Garage, Mr. Summers and the others moved to the pool hall area of the establishment to avoid contact with Mr. Hard. Id. See Ex.. Page (--

3 Page Some time later, Mr. Summers left his table in the pool hall portion of the Garage to go to the bathroom. Ex.. As he came out, he encountered Mr. Hard apparently going into the restroom. Id. The two exchanged some words, after which Mr. Hard drew a gun and shot Mr. Summers in the chest. Id. Mr. Hard fled the bar and was later arrested at his home. Ex.. At the time of his arrest, Mr. Hard had a blood alcohol level of zero-point-one-six (0.. Ex.. Deborah Summers claims to have seen the shooting and rushed to Mr. Summers side after he was shot. See Exs.,. She remained with him until police and paramedics arrived. Id. Peter Dean called Mr. Summers parents, Hans and Gretchen, who were babysitting Mr. Summers two children, Ronnie and Amanda. Ex.. Upon getting the call, Hans and Gretchen Summers came to the Garage, bringing Ronnie and Amanda with them. Id. Hans Summers approached the door to the Garage with Ronnie Summers just as Bruno Summers was being placed on a stretcher by paramedics. Id. Mr. Summers was transported to Mercy Hospital in Ruston. Id. Though showing early signs of a full recover, Mr. Summers took a turn for the worse in the hospital and died on September,. Ex.. Following the shooting, an investigation determined that, while the events of September were tragic, the Garage did not fall below industry standards for the reasonable care of patrons. Ex.. The report also concluded that the operation of the Garage Tavern was not the cause of the eventually fatal shooting. Id. Two days after the shooting, but before Bruno Summers death, Plaintiff Deborah Summers sought treatment for stress and anxiety and was prescribed Valium. Ex.. A later examination diagnosed Ms. Summers as a mild hysteric with a history of hysteric displays, and concluded (--

4 that her agitation was the result of her personality type. Ex.. While a psychological evaluation conducted for this litigation found Ms. Summers was suffering from Post-Traumatic Stress Disorder (PTSD, that same evaluation revealed that Ms. Summers has been sexually abused as a child. Ex.. A separate review of the psychological evaluation determined that the diagnosis of PTSD was based largely on self-reporting by Ms. Summers and not on standard psychological tests. Ex.. The review also found Ms. Summers suffered from a history of depression that was the likely result of a life-long malady, not the shooting of Bruno Summers. Id. Page Since the shooting, Plaintiff Ronnie Summers claims to have suffered nightmares, but cannot remember what they are about. Ex.. Ronnie has also been diagnosed with PTSD by the same psychiatrist who examined Deborah Summers, and for the same express purpose of this litigation. Id. III. ISSUES PRESENTED 1. Whether the Court should dismiss Plaintiffs claim for negligent and intentional infliction of emotional distress when Plaintiff Deborah Summers emotional distress was not caused by witnessing Bruno Summers injuries?. Whether the Court should dismiss Plaintiffs claim for negligent and intentional infliction of emotional distress when Plaintiff Deborah Summers emotional distress is not the reaction of a normally constituted reasonable person?. Whether the Court should dismiss Plaintiffs claim for negligent and intentional infliction of emotional distress when Plaintiff Ronnie Summers is not a reasonably foreseeable plaintiff?. Whether the Court should dismiss Plaintiffs claim for negligent and intentional (--

5 infliction of emotional distress when Plaintiffs Hans Summers, Gretchen Summers and Amanda Summers have proffered no evidence of emotional distress manifested in objective symptoms?. Whether the Court should dismiss Plaintiffs claim for negligent and intentional infliction of emotional distress when Defendant M.C. Davola owed no duty to Plaintiffs Hans Summers, Gretchen Summers, Amanda Summers, or Ronnie Summers? IV. ARGUMENTS AND AUTHORITIES Claims for infliction of emotional distress, also known as outrageous infliction of emotional distress (OIED generally occur when a plaintiff witnesses a fatal injury to a victim as a result of the defendant s outrageous conduct. See Noe v. Flowers, 1 Maj. d 00 (0. Frequently, the plaintiff is a family member of the victim. Id. But State of Major courts have recognized the precariousness of this claim. Id. Wise courts have been reluctant to hastily recognize OIED because of the difficulty of quantifying intangible injuries, the tenuous link between a defendant s behavior and a plaintiff s subjective emotional response, the specter of a flood of fraudulent claims, and the scope of liability for defendants. Id. Consequently, to prevail on such a claim the plaintiff must prove significantly more than the basic elements of negligence, i.e. duty and breach of duty. Id. The plaintiff must also prove that the defendant s act was outrageous or reckless to a reasonable person, that the plaintiff was foreseeable, that the emotional distress was caused by observing the injured victim, that the mental distress was the reaction of a normally constituted reasonable person, and that the distress manifested itself in objective symptoms. Id. These elements are supported by both case law, and State of Major Pattern Jury Instructions. See Noe, 1 Maj. d at 00, Ex.. Page (--

6 Page Summary judgment should be granted if the plaintiff cannot establish a prima facie case for the elements of a claim. Gordon v. Guterson, Maj. d 0 (0. Here, Plaintiffs have failed to make a prima facie case on all elements of the claim because (1 Deborah Summers emotional distress was not caused by observing Bruno Summers; ( Deborah Summers distress is not the reaction of a normally constituted reasonable person; ( Ronnie Summers is not a reasonably foreseeable plaintiff; ( Hans, Gretchen, and Amanda Summers have proffered no evidence of objective symptoms of distress; and ( Defendant M.C. Davola owed no duty to Plaintiffs Hans, Gretchen, Amanda, and Ronnie Summers. 1. Deborah Summers Emotional Distress Was Not Caused By Observing Bruno Summers Injuries. Deborah Summers emotional distress is the result of trauma she suffered as a child, and was not caused by witnessing injuries to her husband. To hold a defendant liable in an OIED claim, the plaintiff must prove a causal link between what the plaintiff observed at the scene and the resulting emotional distress. Gordon, Maj. d at 0. In Gordon v. Guterson, the plaintiff, Laura Gordon, was driving to a ski resort. Id. Her brother, in a separate vehicle ahead of her, was involved in a crash. Id. Ms. Gordon came upon the crash and saw her brother severely injured lying in a ditch and calling her name. Id. She subsequently suffered panic, anxiety, and ongoing emotional distress. Id. A psychologist attributed her distress directly to observing her brother s injuries and death. Id. Here, Deborah Summers emotional distress was not caused by observing injuries to Bruno Summers because her emotional distress was caused by trauma she suffered as a child. A psychological evaluation conducted for the plaintiff in connection with this litigation revealed that Ms. Summers was sexually abused by her father when she was a young girl. Ex.. A therapist at the time diagnosed her with Post Traumatic Stress Disorder (PTSD. Id. The evaluation also revealed (--

7 that Ms. Summers attempted suicide twice, and reported that she suffered from depression for three years from the ages of to. Id. Furthermore, a review of that evaluation concluded that Ms. Summers has a history of depression, a genetic predisposition to depression, and that her symptoms are the likely result of a life-long malady. Ex.. Ms. Summers emotional distress clearly pre-dates her observation of events at the Garage on September,. Her emotional distress necessarily could not have been caused by witnessing injuries to her husband because she already suffered from that emotional distress. Page The psychological evaluation also notes that past episodes of PTSD make a person more susceptible to subsequent episodes. Ex.. So even if the court finds that Ms. Summers observations contributed to her emotional distress, it was merely an additional factor, and not the actual cause of the emotional distress.. Deborah Summers Is Not A Normally Constituted Reasonable Person Because Of Her Previous Emotional Distress. Because of her prior diagnosis of PTSD and history of mental problems, Deborah Summers emotional distress is not the same reaction as a normal person would experience. To bring a claim for OIED, the plaintiff must show that her mental distress was the reaction of a normally constituted reasonable person. Noe, 1 Maj. d at 00. In Noe v. Flowers, the parents of a four-yearold girl suffered emotional distress after witnessing unsuccessful attempts to save their daughter from drowning. Id. The court affirmed judgment for the plaintiffs, clearly intimating that the parents had met the burden of proving that their distress was the reaction of normally constituted reasonable people. Id. In the present case, however, Deborah Summers reaction is not that of a normally constituted reasonable person because of her existing condition and her personality type. As noted (--

8 above, Ms. Summers already suffered from PTSD at the time of her husband s shooting. Ex.. Additionally, in a medical evaluation after the shooting, Ms. Summers was diagnosed as a mild hysteric with a history of hysteric displays. Ex.. The examination concluded that Ms. Summers agitated condition was a reflection of her personality type. Id. Unlike the parents in Noe, whose reaction to the death of their daughter was implicitly deemed normal and reasonable, Ms. Summers emotional reaction to her husband s injuries cannot be because a normally constituted reasonable person is not presumed to already be suffering from PTSD or chronic hysteria. Page. Ronnie Summers Is Not A Reasonably Foreseeable Plaintiff. Even if the Defendant should be held liable for emotional distress caused by what some witnesses observed on September,, Ronnie Summers is not an eligible plaintiff because his appearance at the Garage was not reasonably foreseeable. Not all bystanders who observe bodily injury caused by a defendant s negligence are foreseeable plaintiffs. Noe, 1 Maj. d at 00. It would be unreasonable for a defendant to compensate all bystanders whose emotions were disturbed by the conduct. Id. Turning again to Noe v. Flowers, the court held that the parents present at the scene of their child s drowning in a lake were foreseeable plaintiffs. Id. Similarly, in Gordon v. Guterson, the plaintiff, who was travelling in convoy with the victim, was deemed a reasonably foreseeable plaintiff because she arrived at the scene shortly after the crash. Gordon, Maj. d at 0. Both Noe and Gordon acknowledge that family members who are present at a scene or arrive shortly thereafter are foreseeable plaintiffs. See Noe, 1 Maj. d at 00, Gordon, Maj. d at 0. Here, while Ronnie Summers is the son of Bruno Summers and a family member, he is still not a reasonably foreseeable plaintiff. Ronnie Summers was brought to the Garage only after Peter Dean called Bruno Summers parents, Hans and Gretchen, to inform them of what happened. Ex.. (--

9 It would not be reasonably foreseeable that the elder Summers would bring a young child to the scene of a bar shooting because a crime scene is a potentially dangerous place and a reasonable guardian would not expose a child to a possibly dangerous situation. Unlike the parents in Noe who were at the lake with their daughter, Ronnie Summers was not present at the Garage with his parents he was brought there later. Id. And unlike the sister in Gordon who was travelling in caravan with her brother and arrived on the scene moments later, Ronnie Summers would not have come to the Garage if not for Hans and Gretchen Summers bringing him there. Id. Page. Hans, Gretchen, And Amanda Summers Have Proffered No Evidence Of Distress Manifested In Objective Symptoms. Plaintiffs prima facie case fails on the claim of OIED because three of the Plaintiffs have not shown any evidence of suffering emotional distress at all. To raise an OIED claim, a plaintiff must prove that any emotional distress manifested itself in objective symptoms. Gordon, Maj. d at 0. Returning to Gordon, the plaintiff reported suffering from panic, anxiety, shock, and ongoing emotional distress. Id. She was diagnosed with PTSD. Id. Here, while Plaintiffs have tendered psychological evaluations for Deborah Summers and Ronnie Summers, there is no evidence offered to show any emotional distress suffered by Hans, Gretchen, or Amanda Summers. Exs. -. Short of the Complaint itself, there are no reports, depositions, evaluations, or statements indicating that Hans, Gretchen, or Amanda Summers are experiencing emotional distress, much less showing objective symptoms. Id. As these Plaintiffs have made no offer of proof whatsoever, the claim should be dismissed.. M.C. Davola Owed No Duty To Plaintiffs Hans, Gretchen, Amanda, And Ronnie Summers. Even if the court accepted Plaintiffs assertion of experiencing emotional distress without a show of proof, the claim still fails because Defendant M.C. Davola did not owe a duty to Hans, (--

10 Gretchen, Amanda, or Ronnie Summers. To prevail on a claim of OIED, a plaintiff must prove the basic elements of negligence namely that the defendant owed a duty to the victim, and that the defendant breached that duty. Ex.. A tavern owner owes a duty to his patrons to exercise reasonable care to protect them from reasonably foreseeable injury. Meva v. Dalbert, Maj. d 0 (0. A tavern owner is not an insurer of the safety of his patrons. Meva, Maj. d at 0. In Meva v. Dalbert, a tavern owner was held liable for injuries to a patron after a shooting. Id. Conversely, in Nan v. Brady, a tavern owner was deemed not liable for injuries to a patron who was shot during an altercation at the bar. Nan v. Brady, 0 Maj. d (. And in Michaels v. Seawind Tavern, a bar owner was not liable for injuries after a patron was shot when a gun accidentally discharged. Michaels v. Seawind Tavern, 0 Maj. d (. While the holdings in these cases vary, what they all have in common is that the injured parties were all patrons of the tavern. See Meva, Maj. d at 0, Nan, 0 Maj. d at, Michaels, 0 Maj. d at. In each case, the courts held that the tavern owner had a duty to the patrons, but differed on whether that duty imposed liability. Id. Page Here, Defendant M.C. Davola has no duty to Hans, Gretchen, Amanda, or Ronnie Summers simply because they were not patrons of the Garage Tavern on September,. Hans and Gretchen Summers brought Amanda and Ronnie Summers, both minors, to the Garage only after Peter Dean called them. Ex.. There is no evidence that they even entered the Garage. Id. Deborah Summers testimony indicates that Hans Summers brought Ronnie Summers to the entrance, but not inside the Garage premises. Id. Because a tavern owner owes a duty to his patrons, and because Hans, Gretchen, Amanda, and Ronnie Summers were not patrons of the Garage, the defendant necessarily does not owe a duty to these plaintiffs. Assuming that Defendant still owed a duty to Plaintiff Deborah Summers, her claim for OIED still fails for the reasons stated above. (--

11 V. CONCLUSION State of Major courts have expressed serious concerns about claims of OIED, and a justified reluctance to recognize them. The courts have noted that such claims are inherently fraught with risk because of the difficulty in measuring an intangible injury such as emotional distress, and the equally difficulty task of verifying that a plaintiff s emotional distress was, in fact, caused by a defendant s actions. These risks leave the court and defendants vulnerable to an onslaught of fraudulent claims, and leave defendants open to almost unlimited liability. Thus this court should carefully scrutinize such claims to ensure that plaintiffs have met the fair and reasonable bar that the courts have established. Because the Plaintiffs here have failed to make a sufficient prima facie case on all of the elements for a claim of OIED, and because the Defendant owed no duty to Plaintiffs, Defendant respectfully requests that the Court grant this Motion for Summary Judgment on Plaintiffs Claim for Negligent and Intentional Infliction of Emotional Distress. RESPECTFULLY SUBMITTED this th Day of December,. For the defendant: ETHAN MORRIS, WSBA # DOUGLAS, MOON, PELLUER, BRUNELL, HOBERT & TUIASOSOPO (-- Page (--

12 DECLARATION OF ETHAN MORRIS Page 1 IN THE SUPERIOR COURT OF THE STATE OF MAJOR IN AND FOR THE COUNTY OF JAMNER GRETCHEN and HANS SUMMERS Individually and as Administrators, Personal Representatives of the Estate of BRUNO SUMMERS, deceased, And as guardians for AMANDA and RONNIE SUMMERS; RONNIE SUMMERS, individually and DEBORAH SUMMERS, individually, Plaintiffs, vs. M.C. DAVOLA, sole proprietor of THE GARAGE TAVERN Tavern. case file. Defendant. I, Ethan Morris, declare as follows: Case No.: 0 DECLARATION OF ETHAN MORRIS, ATTORNEY FOR DEFENDANT M.C. DAVOLA 1. I am the attorney for Defendant M.C. Davola, sole proprietor of The Garage. I have thoroughly inspected the case file and all documents therein.. The exhibits attached hereto are true and correct copies of the originals found in the. Based on my examination of this case file, I am incorporating the following exhibits as evidence of defendant s motion for partial summary judgment: Exhibit : Exhibit : Entry #: Ruston Police Department Report Entry #: Alcohol Influence Report (--

13 Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Exhibit : Entry #: Death Certificate of Bruno Summers Entry #: Dental Record of Ed Hard Entry #: Letter and Hospital Records of Bruno Summers Entry #: Statement of Tom Donaldson to Ruston Police Dept. Entry #: Statement of Deborah Summers to Ruston Police Dept. Entry #: Scale Diagram, The Garage Tavern Entry #: Garage Tavern Photos Entry #0: Photos After Shooting of Bruno Summers Entry #: Complaint for Damages Entry #: Jamner Co. Health Dept. Exam of Deborah Summers Entry #: Neva Co. Medical Services Exam of Deborah Summers Entry #: Report and Files of Dr. Pat Gage Entry #: Report of Dr. Ennis Martinez Entry #: Dr. Dale Thompson, Operations Practices Report Exhibit : Exhibit : Entry #: State of Major Civil Jury Instructions Entry #: Research Memoranda on Wrongful Death; Emotional Distress I declare under the penalty of perjury under the laws of the State of Major that the foregoing is true and correct to the best of my knowledge. DATED this th day of December,. ETHAN MORRIS WSBA # Attorney for Defendant DECLARATION OF ETHAN MORRIS Page (--