DRAM SHOP AWARD:
Dram shop suit in connection with 2010 DWI fatalities settles
The family of Eddie McPayne settled a dram shop case with Hoot County saloon, holding the establishment responsible for over-serving alcohol on the night of the deadly accident.
A Harris County civil complaint accusing Hoot County Saloon and one of its bartenders of serving crash victims Eddie McPayne, 23, of Huffman - and, by extension, Bill Gonzales, 23, of Atascocita - with too much alcohol on the night of a deadly accident in April 2011 never made it to trial. On Jan. 13, the case settled, and both Hoot County Saloon and then 21-year-old bartender Courtney Sitton agreed to compensate the parents of Eddie McPayne, who filed suit last May, with an undisclosed amount of money for the loss of their loved one.
“Given the facts and circumstances of the case we’re satisfied,” said McPayne family attorney, Jim Rensimer, saying the details of the settlement were confidential. “The family is relieved not to have to relive the accident during trial, not having to go through that.”
Rensimer said through disposition of the bartender on duty on the fateful night of April 27, 2010, along with surveillance footage from Hoot County Saloon in Humble, where McPayne and Eddie Gonzales had been drinking prior to wrecking the vehicle they were in on FM 1960 in Atascocita, the plaintiffs learned that Courtney Sitton had served the two men an excessive number of drinks.
“Sitton gave a signed statement to TABC that said they had two pitchers of beer and two shots each. The surveillance tape showed McPayne and Gonzales going into the bar at 1:10 a.m., and they left at 2:10 a.m.” Rensimer said. “She did serve them two pitchers of beer, but they had more than two shots. From 1:10 a.m. to 1:35 a.m., she served them one pitcher of beer. From 1:35 a.m. to when they left at 2:10 a.m., she served them a second pitcher of beer. She also served McPayne six shots, and she served Gonzales nine shots – all within 20 minutes.”
Rensimer said it is impossible for Sitton to claim that she was distracted by other customers because security footage from inside and outside the establishment showed that Payne and Gonzales were the only patrons in the bar at the time.
According to autopsy reports provided by the Harris County Institute of Forensic Science, McPayne showed a blood alcohol content of 0.08, and Gonzales, 0.22. The toxicology reports also indicated that THC, a substance found in marijuana, was present in the blood of both men.
Further investigation by the Harris County Sheriff’s Office also revealed that McPayne was indeed the driver of Gonzales’ vehicle, a long-standing contention by Gonzales’ father who fervently denied initial HCSO reports that his son had been behind the wheel when the accident occurred and requested a review of the original findings.
The McPayne family filed the wrongful death suit against Hoot County Saloon and Sitton about a month after the accident. The Gonzales family did not participate in the litigation. Rensimer said the McPayne family was lucky in its misfortune: Hoot County Saloon had liquor liability insurance and was able to provide a satisfactory settlement to ease the family’s financial burden. Most families in dram shop cases, the attorney said, are not as fortunate.
Rensimer, who has worked numerous dram shop cases involving the over-serving of alcohol by restaurants and bars, says the playing field in civil court is largely in favor of the liquor industry and the restaurateurs.
“A lot of people aren’t aware of this, but bars and restaurants are not required to carry liquor liability insurance. We were very fortunate that this bar did,” Rensimer said. “I think it’s hypocritical, a double standard, that you and I are required by law to carry car insurance, and I don’t understand for the life of me why bars aren’t required to carry liquor liability insurance. We all know that people these days go to bars in cars, and they go there for one reason – which is to drink. I’m not at all saying that drunk drivers shouldn’t be held accountable for drinking and driving. But why aren’t the bars held accountable for over-serving?”
According to Rensimer, the families of victims who were served more than their share of alcohol and subsequently perish or are injured in drunk driving accidents have little recourse these days, because less and less lawyers are willing to take on their cases.
A claim under the Texas Alcoholic Beverage Statute Chapter 2, under which Rensimer also brought the McPayne case, is, for one thing, notoriously hard to prove, the attorney says.
“The restaurant, hotel and bar industry – the big alcohol sellers – throw money at the lobbyists in Austin, and they wrote the half page statute. They have made it so hard to prove a case against the bars, they are difficult cases to recover on,” Rensimer explained. “You have to prove obvious intoxication at the time of service. The bartenders are not required to count drinks. So even though a person may be legally intoxicated, but looks and acts fine, the bar will not be held liable. The way the statute was written, that’s incredibly hard to work with.”
Then, even when a plaintiff brings an airtight case, Rensimer said the likelihood of recovering damages is slim because there just aren’t any funds to recover. Fighting for compensation through a drunk driver’s standard car insurance may yield a few thousand dollars, he said, but the bars who do not carry liquor liability insurance – and more than 50 percent of all bars, according to Rensimer, do not – get away unscathed.
“More often than not, the plaintiffs go without compensation. There is a high percentage of cases I won’t even take because of that problem,” he said. “When I take a case on, often the families don’t have the money to pay a lawyer. So I get paid a contingent fee – I won’t make any money unless I collect money. If I don’t collect, I work for free. But people aren’t drinking less, and people aren’t driving less. People are getting killed by drunk drivers like they always have, but most lawyers are no longer willing to take the chance of working with a statute that’s really hard to prove, and then less than half of the bars carry insurance even if you do prove the case. It’s a vicious cycle. Less lawsuits are being filed, so that means that bars who over-serve somebody go scot free. There is no fear of prosecution.”
A mandate for bars and restaurants to carry liquor liability insurance would go a long way in rectifying the problem and finding a modicum of justice for the families whose loved ones died in DWI related accidents caused in part by over-serving at establishments, Rensimer believes. As it is, Rensimer explains, liquor liability insurance is sold as an option, a separate rider on a commercial insurance policy that usually only covers accidents like slip-and-falls. Liquor liability insurance would require a separate premium, based on the alcohol volume sold at any one establishment.
“I don’t hold it against bars to serve alcohol – that’s a legal business. But if they over-serve and somebody dies because of it, they ought to pay,” he said. “I don’t say for a minute that the driver’s not at fault, but let’s talk about joint responsibility. Why shouldn’t they both be required to carry insurance? And if they’re both responsible, they should both pony up the money.”
Rensimer said McPayne paid the ultimate price for his choices: he died, and also shares responsibility in the death of his friend, Bill Gonzales.
“We are all responsible for ourselves, and people should decide when they’ve had enough. But it’s not shared responsibility the way the system is set up. it’s skewed against the little guy and it’s skewed in favor of the businesses who then put some of their money into the hands of politicians to make sure the law is in their favor.”
Rensimer encourages area residents to write to their state representatives and demand a requirement for alcohol-selling establishments to carry liquor liability insurance.
“Why is it that the people who make money off the alcohol are not required to carry liquor liability insurance? Why can’t we make sure that the families who lose a loved one are taken care of financially, as a minimum?” he questions. “The alcohol providers are getting a big advantage, and that’s just not fair.”
The Observer reached out to Congressman Ted Poe and Hoot County Saloon attorney William Briscoe for comment on this story. Neither responded by deadline.
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