1

SUPERIOR COURT OF THE STATE OF MAJOR

2

3 JAMNER COUNTY

4 GRETCHEN and HANS SUMMERS No.: 2020 01234 9

Individually and as Administrators, Personal
5 Representatives of the Estate of BRUNO
6 SUMMERS, deceased, and as guardians for M.C. DAVOLA’S MOTION FOR PARTIAL
AMANDA and RONNIE SUMMERS, SUMMARY JUDGEMENT
7 individually and DEBORAH SUMMERS,
individually,
8
Plaintiffs,
9

10 vs.

tie
11 EDWARD TAYLOR HARD; M.C. DAVOLA

at
and TULULA DAVOLA, his wife; TOM

Be
12
DONALDSON; MARY APPLE; and JOHN
13 DOE and MARY DOE, his wife, and the DOE n
CORPORATION, d/b/a THE GARAGE
va
14
Defendant
Jo

15
of

16
I. INTRODUCTION AND RELIEF REQUESTED
ty

17
er

Defendant, M.C. Davola, by and through their attorneys, and moves the Court for an
18
op

19
order (1) denying Plaintiffs’ claim of infliction of emotional distress.
Pr

20 II. FACTS

21 The Garage Tavern

22
Defendant M.C. Davola is the owner of The Garage. The Garage is a combination bar,
23
pool hall, and bowling alley operating at 1134 Broadway Ave. in Ruston, Major. Over the past
24

25
eight years, the Garage has seen a general decline in profits from forty-two thousand in 2012 to

26 twenty-six thousand in 2020. Entry 49 at 1.

27

28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 1
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 The Garage tavern maintains a policy against serving patrons that are apparently
2
intoxicated. This policy is not written, but it is communicated with staff. Entry 46 at 2. In The
3
Garage’s history of operation and service of alcoholic beverages, they have only ever received
4
one written warning for an instance of overservice on June 19, 2018. Entry 47 at 3. The Garage’s
5

6 overservice policy is well understood by staff as evidenced by the significant lack of overservice

7 violations. See Id.

8
The September 3 Shooting of Bruno Summers
9
On the night of September 3, 2020, Bruno Summers (Bruno), Plaintiff Deborah Summers
10

tie
(Deborah) and Peter Dean went at the Garage. Entry 17 at 1. It was approximately 7:30 p.m.
11

at
when they arrived. Id. Initially, they spent their time at the bowling alley and shared some drinks.

Be
12

13 Id. At around 9 p.m., the group finished bowling and decided to move over to the bar area of the
n
va
14
tavern. Id. Tom Donaldson (Donaldson) was bartending that night without his renewed license.
Jo

15
Entry 46 at 1. As they walked, Deborah observed Edward Taylor Hard (Hard) also sitting in the
of

16
bar area. Entry 17 at 1. She observed that Hard was “talking real loud.” Id. After seeing him,
ty

17
er

18 Deborah suggested that the party leave the tavern. Id. Bruno, however, decided the party would
op

19 stay. Id. It was then that Hard saw Deborah’s party as well. Id. According to Deborah, Hard
Pr

20
looked around at them, said “look who’s back,” and then returned to conversing with others he
21
was present with. Id. Deborah’s party sat down at a booth away from the bar. Id.
22
Shortly thereafter, Bruno stood and walked towards a nearby restroom immediately left
23

24 of the entrance to the bar. Id. at 2. As Bruno walked, Hard also got up and left the bar, walking

25 towards the same restroom. Id. Hard met Bruno outside the restroom as Bruno was exiting. Id.
26
They exchanged words with each other, apparently in a heated argument. Id. Bruno gestured
27
towards Hard and reached into his pocket. Id. In response, Hard drew a .22 caliber pistol and
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 2
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 discharged it in a general area in front of him. Id. Bruno was struck by the bullet, knocking him
2
to the floor. Id. Hard immediately left the tavern while onlookers called for emergency services.
3
Id. Bruno was taken to Mercy Hospital where he later passed away. Id.
4
Hard’s Arrest
5

6 At approximately 10:10 p.m. that night, Officer Yale and Officer DiJulio responded to a

7 call to apprehend Hard. Entry 19 at 1. They arrived at Hard’s home at approximately 10:30 p.m.
8
Id. Officer Yale went up to the front door while Officer DiJulio covered the rear door. Id.
9
Officer Yale knocked on the front door, and Hard eventually opened it. Id. Officer Yale
10

tie
explained that a shooting had occurred at the Garage and that Hard had been identified as the
11

at
shooter. Id. Officer Yale then asked Hard where his firearm was and requested that he hand it

Be
12

13 over to them. Id. n

va
14
Hard initially did not comply with Officer Yale’s request. Id. Instead, Hard asked what
Jo

15
would happen if he did not allow officers to search his home. Id. Officer Yale responded by
of

16
informing him that they had enough probable cause to obtain a search warrant and would do so.
ty

17
er

18 Id. By this point, two other patrol cars had arrived at Hard’s home and several officers had
op

19 posted by the front door. Id. Hard eventually relented and let officers into his home. Id.
Pr

20
Upon entering the home, Officer Yale observed saw a six-pack of beer was on a coffee
21
table. Id. Officers placed Hard under arrest, and he claimed that he was at home watching TV
22
and drinking. Id. On the floor, Officer Yale observed a .22 caliber revolver in plain view. Id. The
23

24 firearm was collected for evidence, and Officer Yale observed that it contained four live rounds

25 and one expended round. Id. Hard was then taken to the police station where he was questioned.
26
Id.
27
Hard Alcohol Report
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 3
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 After Hard was taken into custody, the Ruston Police Department conducted an Alcohol
2
Influence test. See generally Entry 5. According to the subsequent report, Hard was cooperative
3
throughout the process. Id. at 1. He displayed some elements of inebriation, such as slurred
4
speech, flushed face, moderate-smelling breath, and bloodshot eyes. Id. He also had some trouble
5

6 remaining balanced and touching his nose while awkwardly leaning backward. Id. at 2. His

7 official BAC was measured at .16. Id. However, Hard had several drinks after he left the tavern.
8
Entry 19 at 1. His BAC at the time of the shooting was approximately .09. Entry 46 at 3.
9
Hard and Bruno’s Prior Relationship
10

tie
Hard and Bruno had a tense relationship prior to this incident. Hard was a previous
11

at
partner to Deborah Summers. Entry 17 at 1. They eventually ended their relationship, and

Be
12

13 Deborah subsequently fell in love with Bruno, became engaged, and later married. Id.
n
va
14
On or about August 20, 2020, two weeks before Bruno passed away, Deborah and Bruno
Jo

15
were at the Garage having drinks. Id. Hard was also there. Id. At some point, Hard walked up to
of

16
Deborah and attempted to persuade her to end her relationship with Bruno and be with him. Id.
ty

17
er

18 She and Bruno attempted to leave. Id. When they tried to, Hard allegedly reached out and
op

19 grabbed Bruno around the neck. Id. The two wrestled for a moment. Id. Bruno then struck Hard,
Pr

20
knocking him to the floor and splitting his lip. Id. Hard then allegedly made a threatening
21
statement to Bruno. Id. At this point, Donaldson asked them all to leave the tavern. Id.
22
On or about August 22, 2020, Deborah, Bruno, and Peter Dean were at Bruno’s parents
23

24 home. Id. At some point, the telephone rang. Id. When Deborah picked up the phone, she

25 recognized that Hard was on the other end of the line. Id. According to her, Hard threatened
26
Bruno. Id. She did not respond and Bruno took the phone. Id. Bruno told Deborah that Hard
27

28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 4
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 again threatened him. Id. Bruno then said that he would not allow Hard to harm him. Id. This was
2
the last encounter between Hard and Bruno before the incident on September 3. See id.
3
Additionally, on August 27, 2020, Hard purchased the .22 caliber revolver used in the
4
incident on September 3. Entry 6 at 1.
5

6 Deborah’s Psychological Examinations

7 Deborah has been diagnosed with PTSD since the age of 15. Entry 44 at 1. At that age,
8
she found herself in Juvenile Court for truancy, possession of cocaine, and burglary. Id. After
9
being placed on probation she was placed into psychological counseling to address her emotional
10

tie
difficulties. Id. It was during that counseling that Deborah received her PTSD diagnosis due to
11

at
being molested as a child. Id. at 2

Be
12

13 Deborah received a second PTSD diagnosis after the shooting of Bruno. She was referred
n
va
14
to Dr. Pat Gage (Dr. Gage), a clinical psychiatrist, by her attorneys. Id. at 1. Dr. Gage’s goal was
Jo

15
to assess whether Deborah suffered from PTSD stemming from the shooting. Id. Deborah
of

16
claimed that she suffered panic attacks, shortness of breath, flashbacks, and decrease in appetite
ty

17
er

18 among other alleged symptoms. Id. at 2. Dr. Gage did not conduct any official PTSD diagnostic
op

19 examinations. See id. Dr. Gage concluded that in her subjective medical opinion, Deborah was
Pr

20
experiencing PTSD symptoms due to Bruno’s shooting. Id. at 3.
21
Dr. Gage’s report was reviewed by Dr. Ennis Martinez (Dr. Martinez), a clinical
22
psychologist. Dr. Martinez noted that no official PTSD diagnostic tests were used to assess
23

24 Deborah. Entry 45 at 1. He also notes that Deborah has a history of depression and is genetically

25 predisposed to it as evidenced by Deborah, her mother and her aunt all being prescribed
26
antidepressants. Id. Finally, Dr. Martinez notes that Deborah has been dating and considering
27

28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 5
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 marriage only two months after Bruno’s death, which he observes contradicts her claims of
2
feeling detachment and inability to feel love. Id. at 2.
3
III. ISSUES PRESENTED
4
1. Should the court deny Plaintiff’s claim of intentional infliction of emotional distress
5

6 when 1) Defendant exercised reasonable care and vigilance to protect Deborah and Bruno by not

7 overserving Hard, 2) the injury to Bruno from Hard’s outrageous conduct was not foreseeable,
8
and 3) Deborah’s emotional distress has not manifested in objective symptoms.
9
IV. EVIDENCE RELIED UPON
10

tie
Defendant relies upon the records and files herein, as well as the exhibits attached
11

at
thereto.

Be
12

13 V. ARGUMENT
n
va
14
A. The Court has the Authority to Grant Plaintiff’s Motion
Jo

15
Summary judgement may be granted in such cases where there is on genuine issue of
of

16
material fact and the moving party is entitled to immediate judgement in their favor as a matter
ty

17
er

18 of law. C.R. 56(c). It should also be granted for a defendant if “the plaintiff cannot establish a
op

19 prima facie case for the elements of the claim.” Godron v. Guterson, 367 Maj. 3d 540 (2016).
Pr

20
B. The Court should deny Plaintiff’s claim of intentional infliction of emotional distress
21
a. Defendant exercised reasonable care and vigilance to protect Deborah and
22
Bruno by not overserving Hard.
23

24 In a tavern, the owner “owes a duty to his patrons to exercise reasonable care and

25 vigilance to protect them from foreseeable injury … by other patrons.’ Meva v. Dalbert, 276
26
Maj. 3d 60 (20XX-3). As part of that duty, a tavern owner should consider the level of
27
intoxication of his patrons. See Michaels v. Seawind Tavern, Inc., 208 Maj. 3d 116 (2018). The
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 6
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 sale of alcohol to persons apparently intoxicated is prohibited. M.A.J. §2.1. Additionally, all
2
managers, bartenders, or servers of alcohol are required to have a permit to do so. M.A.J.
3
77.20.010.
4
On the night of September 3, 2020, it was not apparent that Hard was intoxicated.
5

6 According to Deborah’s statement to police, Hard was “talking loudly” when her party arrived at

7 the tavern. Entry 17 at 1. In his statement, Tom Donaldson said that Hard was “acting loud and
8
obnoxious.” Entry 14. While being loud could be a sign of intoxication, it is not enough to
9
determine intoxication with certainty. Loudness, and even obnoxiousness, are character traits that
10

tie
can present themselves regardless of consumption of alcohol. Consequently, Hard’s BAC at his
11

at
time of arrest is not the measure; the measure is what was perceived by witnesses that night.

Be
12

13 Only one witness said Hard was intoxicated, and that statement was made in hindsight. Entry 46
n
va
14
at 2. Defendant’s policy of not overserving patrons, a policy in line with statutory requirements,
Jo

15
was followed. Additionally, while Donaldson did not have his permit up to date at the time of the
of

16
incident, that does not mean his years of experience working as a bartender and avoiding
ty

17
er

18 overserving individuals suddenly vanished. Therefore, because the Defendant did not overserve
op

19 Hard, they abided by their duty to protect patrons.

Pr

20
b. Hard’s outrageous conduct was not foreseeable because there were no signs that
21
Hard was going to shoot Bruno.
22
To demonstrate intentional infliction of emotional distress, the Deborah must show that
23

24 the injurious outrageous conduct was foreseeable. Dilbert, 276 Maj. 3d at 60. The Courts have

25 determined that “[t]he duty to use care to avoid injury to others arises from the foreseeability of
26
the risk created.” Nan v. Brady, 280 Maj. 3d 22 (2018) (citing Dilbert, 276 Maj. 3d. at 60).
27
Additionally, “sobriety must be judged by the way [the injurer] appeared to those about him, not
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 7
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 by what a blood test later reveals.” Michaels v. Seawind Tavern, Inc., 280 Maj. 3d. 116 (2018)
2
(citing Nock v. Newcity, 143 Maj. App. 2d 4 (1991)). Liability should only be extended where
3
the patron who was allegedly overserved is “obviously intoxicated” or “in a state of
4
helplessness….” Smith v. Lice, 269 Maj. 3d 800 (2015).
5

6 In this case, the outrageous act of Hard discharging his illegal firearm in a manner that

7 struck and mortally wounded Bruno was not reasonably foreseeable. As discussed above, it was
8
not apparent that Hard was intoxicated that night. Hard was “loud and obnoxious,” but those are
9
not traits unique to intoxication. He was not obviously intoxicated or in a state helplessness.
10

tie
Further, on that night Hard made no overt statements implying he would become violent towards
11

at
Bruno. According to Deborah’s statement, Hard only said, “[l]ook who’s back” and laughed

Be
12

13 when Deborah entered the bar. Entry 17 at 1. He said nothing else and made no other gestures. It
n
va
14
would be unreasonable to assume that because Hard was “talking loudly” and made a snarky
Jo

15
remark, it should have been foreseeable that he would shoot Bruno.
of

16
Hard and Bruno’s antagonistic relationship is not enough to show Hard’s outrageous
ty

17
er

18 conduct was foreseeable. Hard was jealous of Bruno because of his engagement and subsequent
op

19 marriage to Deborah. This was the primary reason why on August 20, 2020, the two got into a
Pr

20
physical altercation at the tavern. However, after that altercation both Hard and Bruno were
21
promptly asked to leave by Donaldson. Entry 14. This was an adequate response because other
22
than causing a split lip, the altercation was not particularly violent. No police were needed. The
23

24 mere fact that Hard and Bruno got into a fight would not be enough to reasonably foresee that

25 Hard would shoot Bruno two weeks later.

26
The phone call that Deborah and Bruno received from Hard is not relevant to whether
27
Defendant could reasonably foresee Hard’s outrageous conduct. According to Deborah, that call
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 8
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 was received at her home. Defendant was not informed of the call nor the intention Hard
2
expressed in it. Defendant was also not aware of the fact that Hard had illegally purchased a .22
3
caliber revolver. All the Defendant was aware of was the altercation between Hard and Bruno.
4
Because of this, the Hard’s phone call and firearm purchase are not relevant to determining if
5

6 Defendant could reasonably foresee Hard’s outrageous conduct.

7 c. Deborah’s emotional distress has not manifested into objective symptoms

8
because 1) she has an extensive history of mental health treatment and 2) she
9
remarried soon after the incident.
10

tie
To demonstrate the tort of intentional infliction of emotional distress, the Plaintiffs must
11

at
show that the alleged distress is the reaction of a reasonable person. Noe v. Flowers, 281 Maj. 3d

Be
12

13 400 (2012). Additionally, the alleged distress must also “manifest[ ] itself in objective
n
va
14
symptoms.” Id. Because of this difficult objective standard, courts have been reluctant to fully
Jo

15
recognize intentional infliction of emotional distress. Id.
of

16
In this case, Deborah cannot show that her alleged symptoms of distress are objective
ty

17
er

18 manifestations caused by the shooting. Deborah was referred to Dr. Gages for psychological
op

19 evaluation after consulting with counsel. Deborah did not pursue psychological counseling on
Pr

20
her own accord, which shows she did not feel it was necessary to do so until this claim arose. If
21
she was truly affected by the incident, her pursuit of psychological care would have been more
22
vigorous.
23

24 It is also unlikely that Deborah’s symptoms of distress were objectively caused by the

25 shooting because she has a history of counseling for PTSD. When she was 15-years old, she was
26
placed into psychological counseling while on probation for possessing cocaine. Entry 44 at 1.
27
Her therapist at the time diagnosed her with PTSD due to being molested as a child. Id. at 2. In
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 9
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 addition to this diagnosis, Deborah has had a general history of depression. Entry 45 at 1. She
2
was medicated for depression well before the incident. Id. at 1. Dr. Gage’s report fails to
3
reconcile the pre-existence of PTSD and depression with Deborah’s alleged PTSD and
4
depression due to the shooting of Bruno.
5

6 It should also be noted that Dr. Gage’s PTSD diagnosis is based almost solely on the

7 Deborah’s testimony and Dr. Gage’s subjective medical opinion. Dr. Martinez noted several
8
objective psychological tests for PTSD that were not administered. Id. Dr. Gage did not conduct
9
a Personality Assessment Inventory (PAI). Id. Dr. Gage did not conduct a Minnesota Multiphasis
10

tie
Personality Inventory-2 (MMPI-2). Id. Dr. Gage did not conduct a Beck Depression Inventory-II
11

at
(BDI-II). Id. Dr. Gage did not measure Deborah’s symptoms against the Posttraumatic Stress

Be
12

13 Disorder Scale (PDS). Id. These tests are all standard tools for assessing PTSD, and none of
n
va
14
them were used. Because of the lack of thoroughness in Dr. Gage’s evaluation, it is unlikely that
Jo

15
any resulting determination is accurate.
of

16
Finally, it is unlikely that Deborah’s symptoms are objective manifestations stemming
ty

17
er

18 from the shooting of Bruno because she is considering getting remarried within two months of
op

19 Bruno’s death. According to Dr. Martinez’s report, Deborah is dating again and experiencing
Pr

20
ideations of marriage. Entry 45 at 2. If Deborah is experiencing PTSD to the degree alleged in
21
this case, it would be reasonable to assume it would take time to move on due to that distress.
22
However, Deborah has instead re-entering the dating scene a mere two months after her husband
23

24 was shot and killed in front of her. Because of her quick and speedy transition to new romantic

25 pursuits, it is unlikely that any distress she is experiencing is due to Bruno’s shooting.
26
Therefore, because of her prior PTSD diagnosis, her extensive prior psychological
27
counseling, the inaccurate nature of Dr. Gage’s PTSD diagnosis, and her quick transition to
28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 10
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890
1 dating, it is unlikely that Deborah’s symptoms of distress were objectively manifested by the
2
shooting of Bruno.
3
VI. CONCLUSION
4
Bruno Summers’ death was a tragic incident. However, one injustice cannot be rectified
5

6 or compensated by another injustice. Granting Plaintiffs’ claim for intentional infliction of

7 emotional distress would be an injustice to Defendant. Prima facie, Defendant did not breach
8
their duty to protect patrons, Hard’s outrageous conduct was not reasonably foreseeable, and
9
Deborah cannot demonstrate that her symptoms of distress were objective manifestations caused
10

tie
by Bruno’s shooting. For these reasons, the Court should grant Defendant’s motion.
11

at
DATED this 14th of October, 2021.

Be
12

13 n
va
14
Jo

15 By
Jovan Beattie
of

16 MBA#1997
Attorney for Defendant
ty

17
er

18
op

19
Pr

20

21

22

23

24

25

26

27

28
DAVOLA’S MOTION FOR PARTIAL SUMMARY JUDGEMENT – 11
Jovan Beattie
Beattie & Associates
123 Fake St.
Ruston, MA 12345
(123) 456-7890