Thus, we find it significant that the Defendants actively pursued Pennsylvania residents as patrons. In Sommers v. 13300 Brandon Corp., 712 F. Supp. 702, 703 (N.D.Ill. 1989), an Indiana resident injured in an automobile accident in Indiana sued an Illinois tavern for negligently serving alcohol to the driver of the car. The defendant moved to dismiss the claim on the grounds that Illinois law did not recognize the claim and that the statute of limitations had run on any statutory claim. Id.
The court held that Indiana law governed, finding that Indiana law provided for a cause of action. To the extent that it would find the tavern liable, Indiana law was consistent with Illinois policy. Id. The court also found it significant that since the tavern was near the Indiana-Illinois border, it should have expected Indiana customers and the potential for a suit under Indiana law. 712 F. Supp. 702 at 706.
Likewise, by consciously catering to the Pennsylvania market, the potential for a suit under Pennsylvania law becomes predictable. The Defendants actively solicited the Philadelphia crowd, specifically the Italian and Jewish market, by mailing promotional flyers to Philadelphia residents. Plaintiff's Brief, Exhibit J, pp. 2-4; see also Plaintiff's Brief, Exhibit A. Having taken advantage of the Pennsylvania market, it is reasonable for the Defendant to plan for and expect a suit under Pennsylvania's strict liability standard.
B. Motion for Summary Judgment
Having decided that Pennsylvania law governs, we now address the Defendant's motion for summary judgment. Summary judgment may be properly granted if, when viewed in a light most favorable to the non-moving party, the pleadings, depositions, answers to interrogatories, and affidavits show that there is no genuine issue as to any material fact. Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771, 774-75 (Pa.Super. 1992); McDonald v. Marriott Corp., 388 Pa. Super. 121, 564 A.2d 1296, 1297-98 (Pa.Super. 1989). Once a motion for summary judgment is made and supported, it is the non-moving party's responsibility to show that genuine issue of fact exists. Id. Thus, under Pennsylvania law, in order for the plaintiff to avoid the summary judgment, he must demonstrate sufficient issue of fact that 1) the defendant served him alcoholic beverages while he was visibly intoxicated and 2) that this conduct proximately caused the injuries. Id.
After viewing the evidence in a light most favorable to the non-moving party, we must conclude that there is genuine a issue of fact that 1) the Defendant did serve alcoholic beverages to the Plaintiff while he was visibly intoxicated and 2) that this conduct proximately caused the death. Therefore, for the reasons outlined below, the Defendant's motion for summary judgment must be denied.
Although the Pennsylvania statute does not define visibly intoxicated, the statute emphasizes visible, physical manifestations. Laukemann v. Com., Pa. Liquor Control Bd., 82 Pa. Commw. 502, 475 A.2d 955, 956 (Pa. Cmwlth. 1984) Thus, the statute does not hold the licensee liable for any physical manifestations such as an elevated blood alcohol level that are not externally apparent. 475 A.2d at 956-57. Such visible manifestations include loud and boisterous behavior, blood-shot eyes, poor coordination and slurred speech.
Id. at 955.
The court in McDonald v. Marriott Corp., 388 Pa. Super. 121, 564 A.2d 1296, 1299 (Pa. Super. 1989) granted the defendant's motion for summary judgment finding that even if the plaintiff was visibly intoxi-cated, her intoxication was apparent to no one else. No one had asked her to leave, or to keep quiet, or even to quit drinking. Moreover, the plaintiff did not allege whether she exhibited this behavior before she was served her last drink or if anyone let alone an employee saw her exhibit any such behavior. Id.
In contrast, the Plaintiff in this case presents sufficient evidence that Michael was visibly intoxicated and that the Defendant subsequently served him alcohol while he was visibly intoxicated. First, Michael's behavior was sufficiently loud and obnoxious to attract the attention of one of the Club's bouncers. Plaintiff's Brief, Exhibit K. Additionally, at one point, he slammed a drink on the bar and spilled it, catching the bartender's attention. Plaintiff's Brief, Exhibit G, p. 2. The bartender asked an accompanying friend if he could control Michael's behavior and the friend replied that Michael was drunk. Id. Secondly, following that incident, the bartender continued to serve one or two additional alcoholic drinks to Michael. Id. ; see also Plaintiff's Brief, Exhibit K.
The Plaintiff has also raised a genuine issue of fact of whether the Defendant's conduct proximately caused the injury. Defendant contends that throwing up twice, two and one-half hours of sleep and successfully driving ten miles at a speed of 110 miles-per-hour cannot be the result of serving alcohol to a visibly intoxicated person. Pennsylvania law, however, merely requires that the licensee's conduct be a substantial factor in causing harm to another. Majors, 416 Pa. at 270. The licensee need not have foreseen nor should have foreseen the extent or manner of harm in order to be held liable. Id.
Here, Michael appeared to be intoxicated up to the point he entered his car. During the drive back from the bar, he at one point got out of the car to vomit. Plaintiff's Brief, Exhibit K. His friends had to retrieve him because he wandered onto the highway oblivious to any danger. Id. Ten minutes later, Michael vomited a second time that evening out of the car window. His friends felt that his condition was such that it did not appear that he could drive and were sufficiently concerned that one of them offered to follow him home. Id. Michael, however, did not respond and left very quickly before anyone had a chance to follow him. Id. The police estimated the Plaintiff's speed at the time of the wreck at 111 miles-per-hour. Plaintiff Brief, Exhibit S, p.6. Finally, the coroner reported a blood alcohol level at the time of death as .11%.
Under Pennsylvania's dram shop law, in order for the Plaintiffs to avoid a summary judgment, they must demonstrate a genuine issue of fact that the Defendant served alcohol to Michael while he was visibly intoxicated and that it was that conduct that proximately caused the accident. When viewed in a light most favorable to the Plaintiffs, the evidence supports the Plaintiffs' claim that Michael was visibly intoxicated, the Defendant did serve him alcohol after he was visibly intoxicated and it was that conduct that proximately led to Michael's death. We find, therefore, that a sufficient issue of fact remains so as to preclude the entry of summary judgment in the Defendant's favor.
ORDER - June 29, 1993, Filed
AND NOW, this 28th day of June, 1993, upon consideration of the Defendant's Motion for Summary Judgment and the Plaintiffs' response thereto, it is hereby ORDERED that
the Defendant's Motion for Summary Judgment is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.