$1,600,000 – Delco Drunk Driving Case

Philadelphia lawyers earlier this spring secured two settlements totaling $1.1 million from the remaining defendants in a lawsuit stemming from the death of a 21-year-old man who was struck by a drunk driver and whose family witnessed his fatal cardiac arrest minutes later. The settlements with the tavern in the case, and with the driver's girlfriend, completed a $1.6 million global settlement for the plaintiffs, lawyers in the case said.

Michael F. Barrett

The precise amounts agreed to be paid by the tavern, which settled in March, and the girlfriend, who settled in April, have been kept confidential, said plaintiff's attorney Michael Barrett of Saltz Mongeluzzi Barrett & Bendesky. The agreement with the girlfriend was reached after a mediation with mediator Edward Edelstein of ADR Options, Barrett said.

Anthony D. Damiano, a West Chester solo practitioner who represented the driver's girlfriend, and Jonathan M. Field of Mintzer Sarowitz Zeris Ledva & Meyers, the defense attorney for the bar owners, confirmed that the total amount of the two recent settlements created a global figure of $1.6 million for plaintiffs in the case.

Last fall, according to docket entries in the case, the driver in the case and the business he owns agreed to a settlement of $500,000. Barrett also confirmed the earlier settlement.

The driver's answer acknowledged he had resolved the case in exchange for the payment of the total policy proceeds of all available insurance policies.

Barrett said he expects petitions for court approval of the two recent settlements will be filed this month. Barrett said he would not comment further on the case because defense counsel and he agreed to not comment on the case beyond what is in the court papers.

Citing the attorneys' agreement, Barrett said he would not comment on plaintiffs' theory of liability against the girlfriend or the tavern; what insurance policies of the girlfriend's case might have been implicated; whether there were mitigating factors regarding the tavern; and what the breakdown between the girlfriend's and the tavern's settlements were.

According to the docket, Judge Charles B. Burr II ruled against the girlfriend's and the bar's preliminary objections to plaintiffs' claims, but the plaintiffs did agree to withdraw their claim for punitive damages against the girlfriend. No motions for summary judgment were filed, according to the docket.

Damiano and Field also cited the attorneys' agreement in declining comment on specific aspects of the case.

Anthony J. Christopher was sitting in a parked car on Summit Avenue in Concord Township, Delaware County, around 9:30 p.m. Feb. 27, 2007, when the car was hit in a head-on collision by a Dodge Durango driven by Gary Niederland, according to the plaintiffs' amended complaint in Deane v. Mack's Boardwalk Pizzeria and Bar .

Niederland pleaded guilty to homicide by vehicle and aggravated assault and was sentenced to four to 10 years in state prison, court papers said.

Niederland was found to have a 0.167 blood alcohol count and cocaine in his system, the complaint alleged.

Christopher was waiting in the car while his brother, Robert, went to pick up his mother, Jennifer, from work, the complaint said. Jennifer and Robert Christopher witnessed Anthony's cardiac arrest at the scene of the accident, the administration of CPR to Anthony and his transfer to Crozer-Chester Medical Center, where he was pronounced dead, the complaint said.

The stakes of the case increased when Jennifer Christopher committed suicide May 29, 2008, and her body was found by her daughter, according to the complaint.

The plaintiffs sued Niederland; Niederland's business, Niederland Contracting Inc.; the business entities related to the bar that allegedly served alcoholic beverages to Niederland on the day of the incident, Mack's Boardwalk Pizzeria and Bar and Chadds Ford Hospitality Inc., located at 109 Wilmington Pike, Chadds Ford; and Debra A. Gerstenberg, who on the day of the crash was Niederland's girlfriend, according to court papers.

Plaintiffs included the representative of Anthony Christopher's estate and the estate of his mother, Jennifer Christopher; Robert Christopher, who witnessed the death of his brother, Anthony; and Jennifer Christopher's minor daughter.

Their cause of action included a dram shop claim against the bar owners.

Niederland consumed alcoholic beverages at Mack's for several hours prior to 5:40 p.m., when he left the bar, the complaint alleged.

Niederland returned to Mack's at 7 p.m. visibly intoxicated, but a Miller Lite beer was poured for Niederland before he was even seated at the bar, the complaint alleged.

When a bartender and bartender apprentice at Mack's agreed to stop serving alcohol to Niederland, the apprentice allegedly poured a Miller Lite for another patron that Niederland took for himself without interference, the complaint said.

Mack's said in its answer that it had no control over Niederland forcibly taking that beverage.

When Niederland left the bar at 8 p.m., "staggering and bouncing off tables," Mack's manager, George Skilling, made Niederland return to the bar before driving him home and giving his keys to Gerstenberg, Niederland's girlfriend, the complaint said.

The driver's girlfriend, according to the complaint, was negligent, careless and reckless for leaving Niederland in her home alone while he was visibly intoxicated "when she knew or should have known that he would use other car keys within her home to operate a motor vehicle."

Gerstenberg went to Mack's without Niederland around 8:35 p.m.

Niederland drove to and from the bar two more times in the next hour, leaving the first time in his Corvette and leaving the second time in the Durango to which Gerstenberg had earlier been given the keys, the complaint alleged.

The plaintiffs alleged in the complaint that Gerstenberg was negligent, careless and reckless in returning to Niederland the keys to his Durango when she allegedly knew he could not safely operate a motor vehicle.

On his way from Mack's after his fourth visit to the bar that day, Niederland first crashed his Durango into a telephone pole on Watkins Avenue in Concord Township, the complaint said. Niederland then crashed the truck head-on into the Honda Civic Christopher was sitting in as his mother and brother were walking toward the vehicle.

In the defendants' answers to the plaintiffs' amended complaint, all of the claims were denied.

But Gerstenberg said, raising a new matter, that Niederland appeared sober when he demanded his keys, and that she had no control, or a legal relationship requiring her to have control, over Niederland.

Mack's said, raising a new matter, that the Mack's defendants did not serve Niederland while he was visibly intoxicated and that, even if it was proven that the Mack's defendants had served Niederland, "such actions were not a proximate cause of the incident." Mack's also said it was Niederland's and Gerstenberg's negligence or other liable conduct that was responsible for the plaintiffs' injuries.

Driving Niederland home was "above and beyond defendants' duty," the answer said.

Charles E. Haddick Jr. and James DeCinti of Dickie McCamey & Chilcote, the defense attorneys for Niederland until September, could not be reached for comment.

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