This shouldn’t come as a shock; we predicted it last February, when the criminal case ended in acquittal. But Eddie DiDonato Jr., a former lacrosse star at Villanova and the son of a prominent partner at the Fox Rothschild law firm, has filed a civil lawsuit against Gerald Ung, the Temple Law School student who shot DiDonato in January 2010 in the Old City section of Philadelphia.
Gerald Ung isn’t the only defendant. DiDonato is suing a half dozen other parties, relying on various theories of liability. Let’s think of this as a Torts final exam: Who else might DiDonato be suing besides Ung? What causes of action can you see?
Let’s take a closer look at the lawsuit, filed on behalf of DiDonato by one of Pennsylvania’s leading personal injury lawyers….
DiDonato is represented by Robert J. Mongeluzzi, a founding partner of Saltz Mongeluzzi Barrett & Bendesky. According to one of our Philadelphia tipsters, Mongeluzzi “is one of the top PI guys in Philly.” As reflected in his website bio, he’s the king of construction accident cases, but has experiences in other areas as well.
Let’s go through the complaint, paragraph by paragraph:
¶¶ 1-35: These paragraphs list and provide information about all the defendants. In addition to Ung, DiDonato is suing — you guessed it — various Philadelphia drinking establishments that were patronized by Ung, DiDonato and friends on the evening in question (January 17, 2010). The bars being sued are Eulogy Belgian Tavern, Khyber Pass Pub, Paradigm Restaurant & Bar, Field House Sports Bar, and — my personal favorite — Lucy’s Hat Shop.
Philly readers: Any thoughts on these fine watering holes? Also, note the minor typo in this section: “principal” place of business, not “principle” place of business.
(Yes, we have typos all the time here on Above the Law — perhaps in this very post. But we aren’t filing this with a court of law.)
¶¶ 36-44: These are the allegations about the incident itself. In terms of the shooting, the complaint keeps it simple (a wise move in my view):
The complaint then alleges that Eulogy Tavern and Khyber Pass served alcohol to Gerald Ung, even though “he was in a visibly intoxicated condition.” According to the complaint, this was “in direct violation of the Pennsylvania Dram Shop Act” and “a direct and proximate cause of Plaintiff’s injuries.”
One of our sources, a defense-side lawyer in Philadelphia, sums up the theory of the case as follows: “They presumably think Ung is judgment proof, and are really going hard after the dram shop defendants to get the bucks.”
The strategy makes sense. And Robert Mongeluzzi has experience with dram shop cases. As noted on his website, he secured a $20 million in one Dram Shop Act case (after the tavern was hit with a $75 million verdict; the insurer refused to settle for the tavern’s policy limit of $1 million).
Suing the bars that served Ung is obvious. These next few paragraphs are more interesting:
The complaint goes on to allege that the “negligent sale of alcoholic beverages … to Thomas Kelly and Andrew DiLoretto [sic] was a direct and proximate cause of Plaintiff’s injuries.”
Who are Thomas Kelly and Andrew DiLoreto? As you may recall, they were the friends of DiDonato who were with him on the evening of the shooting. (DiLoreto was the fellow doing chin-ups on some scaffolding, before the DiDonato crew had its run-in with Ung and his friends.)
Here’s what one of our tipsters had to say about their being mentioned in the complaint: “Interesting that they throw DiDonato’s two friends (Kelly and DiLoreto) under the bus — if they were ‘visibly intoxicated,’ what about their drinking buddy Eddie?”
(For the record, DiDonato testified in the criminal case that he was sober that evening. One of our readers expressed skepticism — “Does he really seem like the kind of guy to be sober at 2 a.m. on a weekend night?” — but that is what DiDonato has previously stated, under oath.)
¶ 45: Here we get details about how DiDonato was injured by the shooting. According to the complaint, DiDonato “suffered serious and debilitating injuries to his abdomen, left hand, left clavicle and back, …. severe neurological impairment, inability to control his bowels, depression and severe neurologic injuries.”
¶¶ 46-48: Count 1 alleges negligence by Eulogy Belgian Tavern and Khyber Pass Pub, for serving alcohol to the visibly intoxicated Gerald Ung.
¶¶ 49-51: Count 2 alleges negligence by Eulogy Belgian Tavern, Lucy’s Hat Shop, Paradigm Restaurant & Bar, and Field House Sports Bar, for serving alcohol to the visibly intoxicated Thomas Kelly and Andrew DiLoreto.
(Note that Kelly and DiLoreto hit up twice as many establishments as Gerald Ung. It should surprise no one that a pair of Lacrosse Bros have higher alcohol tolerance than an Asian guy, even the kind of Asian who packs heat.)
¶¶ 52-58: Count 3 alleges assault and battery by Gerald Ung. Shooting someone would appear to constitute “harmful and offensive contact” with the shooting victim’s body — but Ung has several possible defenses here, which will surely be explored if this goes to trial.
¶¶ 59-62: Count 4 alleges negligence by Gerald Ung. The gist of the allegation here is that Ung, even if he had some right of self-defense, “act[ed] with excessive and unreasonable force” under the circumstances presented.
¶¶ 63-65: Count 5 seeks punitive damages from the dram shop defendants.
¶¶ 66-68: Count 6 seeks punitive damages from Gerald Ung.
Good luck getting punitive damages — or any damages at all, for that matter — out of Gerald Ung. As noted above by one of our sources, Ung is presumably judgment proof. His criminal defense lawyer at trial, renowned defense attorney Jack McMahon, won a nice acquittal for him — but it probably cost Ung a pretty penny. As we wrote at the time of the acquittal, “the services of Jack McMahon don’t come cheap. The Ungs easily owe McMahon six figures.”
And it’s doubtful that Gerald Ung has the earning capacity to generate much free cash flow. As we noted as recently as yesterday, the legal job market isn’t great right now, especially for young lawyers. And is Gerald Ung even a lawyer? This incident happened while he was still in law school, and it’s not clear that Ung ever completed his studies. (If you know what Gerald Ung is up to these days, please text us, at 646-820-8477, or email us, at firstname.lastname@example.org.)
So what’s going to happen in the civil suit of DiDonato v. Ung? It’s not clear, but expect supporters of Gerald Ung to rally around their man. As one well-wisher wrote on the Facebook wall for the group We Support Gerald Ung, just after Ung was found “not guilty” in the criminal case, “I would love to see the jerk sue you in civil court and watch as your attorney rips him a new one. Things are going to be okay, Gerald. You have your life back.”
P.S. Bonus question for tort law geeks: Could Gerald Ung turn it around on Eddie DiDonato, by countersuing? Check out this interesting theory floated by plaintiff’s lawyer Max Kennerly, shortly after Ung’s criminal trial concluded.
DiDonato v. Ung: Complaint [Philadelphia Court of Common Pleas]
DiDonato v. Ung: Civil Docket Report [Philadelphia Court of Common Pleas]
DiDonato vs. Ung, or Vice Versa? Civil Lawsuits After A Criminal Acquittal
[Litigation & Trial / Max Kennerly]
We Support Gerald Ung [Facebook]