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.

By STEFANIE THOMAS

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.

SHARED RESPONSIBILITY

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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DRAM SHOP AWARD:

Wednesday, Aug. 17, 2011

By Deanna Boyd

FORT WORTH -- The family of a woman killed in December 2009 when an intoxicated off-duty Fort Worth police officer plowed into her car has sued the now-imprisoned man.

Relatives of Sonia Baker allege that Jesus Cisneros' actions that early December morning constituted gross negligence and were the result of "conscious indifference" to the safety, rights and welfare of Baker. The family is seeking unspecified damages.

The lawsuit was filed Aug. 3 in Tarrant County.

Cisneros, who resigned from the Police Department shortly after the wreck, pleaded guilty to intoxication manslaughter during his trial in November and was sentenced by a jury to the maximum of 20 years in prison.

During the trial, Cisneros took the stand and admitted broadsiding Baker's PT Cruiser about 2:15 a.m. on Dec. 11, 2009, after drinking eight beers and four shots of liquor during another officer's birthday party at the Pour House on West Seventh Street. He had actually begun drinking while still on duty as part of an unauthorized undercover investigation into human trafficking.

Cisneros also acknowledged speeding through two red lights in his city-owned vehicle before the wreck at Columbus Trail and Evening Star Drive. Tests revealed a 0.17 blood-alcohol level.

Baker, a married dialysis technician with two sons, now ages 5 and 6, was on her way to a fast-food restaurant to get breakfast for her family. She was pronounced dead at the scene.

Baker's family had sued the Pour House under the state's Dram Shop Act, which allows those who sell alcohol to an obviously intoxicated person to be held liable for resulting damages.

According to Tarrant County records, that suit was dismissed in March after the parties reached a settlement in which the bar and its affiliates agreed to pay almost $600,000

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DRAM SHOP AWARD:

Saturday, July 23, 2011

A former gas station attendant has won a multi-million dollar award in damages in a lawsuit arising from a drunk driver accident in 2008. Witnesses said Barron Hilton was driving his Mercedes-Benz the wrong way on the Pacific Coast Highway before the being involved in an accident with the gas station employee. A companion of the hotel heir said Hilton was involved in at least one accident as he drove his car near Malibu earlier in the day. Eventually, Hilton pulled into a gas station in Malibu.

It was in the lot that witnesses say Hilton struck the gas station attendant with his Mercedes-Benz. Police claimed Hilton was involved in a drunk driving accident. The hotel heir was charged with driving under the influence of alcohol or drugs after the crash. His blood alcohol content was measured at .14 after the crash and Hilton pled no contest to the DUI charge. The hotel heir was 18 at the time of the crash.

The gas station attendant who was struck in February 2008 filed a personal injury lawsuit against Hilton in relation to the California car accident. The man required extensive surgeries due to the injuries he sustained in the accident. The man says he is permanently disabled as a result of the personal injuries.

Hilton denies he was driving the car on the night of the accident. He says he has amnesia and only remembers sitting on a bench after the crash.

A judgment in the civil suit was entered earlier this month awarding damages to the gas station attendant. The award includes damages for pain and suffering, medical expenses and loss of earnings. Additionally, the judgment includes punitive damages. California law allows victims of drunk driver accidents to seek punitive damages in a civil suit related to the accident.

Source: Los Angeles Times

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DRAM SHOP AWARD:

June 15 2011

WESTMINSTER Md. A record-setting judgment from a Carroll County jury which awarded almost $12 million to the crippled victim of a drunk driving accident.

Derek Valcourt reports the decision came like a surprise in the conservative county where juries arent known to dole out large awards in lawsuits.

Part of the reason the $11.8 million verdict was such a surprise is since the event that crippled the victim was little more than a fender bender.

What happened at a Westminster intersection almost five years ago forever altered Michael Harris life. Its not only changed me except its changed my entire family Harris said.

While Harris sat at a red light on Route 140 he was rear-ended by repeat drunk driver Stephanie Ann Richardson who later fled the scene. Though the minor event barely damaged his lorry doctors trust it triggered a rare nerve condition called complex regional pain syndrome leaving the once energetic landscaper wheelchair-bound with crippling pain and lesions on his armament and legs.

His family hired Robert Weltchek and his law partners to sue the drunk driver and her insurance company. A Carroll County jury rejected the defenses arguments that Harris medical problems were not caused by the accident and awarded him $2.6 million for future medical expenses $800000 for past and future lost wages $256000 to modify his home $5.6 million for non-economic damages and $2.5 million for the effect on his marriage.
It was evident to the jury that this car accident albeit a relatively minor car accident caused this cascading of events a downward spiral that continues to this day said Weltchek.

The massive judgment means peace of mind for Harris like he tries to live with the crippling condition.

DRAM SHOP AWARD:

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DRAM SHOP CASE:

BARRY MASSEY  Associated Press
June 28, 2011 - 4:33 pm

SANTA FE, N.M. — The family of two siblings killed in a car accident can seek damages against a tribal casino for serving them alcohol after they became intoxicated, the state's highest court has ruled. Santa Ana Pueblo's casino had argued that the legal dispute should be handled in tribal court rather than in a state court. The state Supreme Court disagreed in a ruling on Monday.The unanimous decision permits a wrongful death lawsuit to move ahead against the Santa Ana Star Casino near Bernalillo.The case was brought by the mother and other family of Michael and Desiree Mendoza, a brother and sister who were killed in a car crash in July 2006 after attending a wedding reception at the casino. It's unclear which of the two were driving the car. The lawsuit claims their deaths were caused because the casino continued to serve them alcohol after they were intoxicated. A pueblo liquor ordinance prohibited the casino from serving alcoholic drinks to an intoxicated person.

David Plotsky, an Albuquerque lawyer for the Mendozas' mother and Desiree's two children, said Tuesday the ruling means "the tribal casinos are subject to the same set of laws and accountability as a nontribal bar or tavern." "I think it's fairly important because there is a lot of patronage of the casinos and whenever alcohol is involved there needs to be clarification that the state liquor liability laws are going to apply to activities on tribal casino property. That wasn't clear until now," said Plotsky.

New Mexico has a so-called "dram shop" law that permits intoxicated patrons to sue state-licensed bars to recover damages for their injuries. A state statute also allows claims by third parties — such as a motorist injured by a drunken driver — against a bar that served the intoxicated person. However, the casino is licensed by the pueblo — not the state — to sell alcohol. The casino contended a state court lacked jurisdiction over it. The justices said the damage claims against the casino were allowed under legal precedents in case law. The court also said a provision in a gambling compact between the state and the tribe provides for state courts to handle cases involving injuries to casino visitors.

The case goes back to a state district court in Albuquerque, which had dismissed the lawsuit. Richard Hughes, a lawyer for Santa Ana's casino, said his client was reviewing the decision and considering its legal options. He said the ruling "by no means determines the outcome of the case" and whether the casino will be held liable for damages.

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Defense Attorneys win dram shop case because their client had proper safe guards in place and a good system of care for alcohol service. This verdict specifically exemplifies the need for good alcohol servicng policies and procedures. If they DID'T have this in place, then they most likely would have suffered $5,000,000.00 in damages (see red below).

DRAM SHOP NON-AWARD:

Hartline Dacus Attorneys Win Defense Verdict for Adult Entertainment Company

This jury trial ended in victory for the Defendant after attorneys of the firm successfully defended a publicly traded adult entertainment establishment in a case involving an automobile-pedestrian accident that resulted in the death of a 43 year-old man.

Dallas, TX (PRWEB) June 30, 2011

Hartline Dacus Barger Dreyer LLP today announced a jury trial victory after attorneys Darrell Barger, Brian Rawson and Stephanie Roark successfully defended their client in a two week Dram Shop liability trial in Harris County, Texas. The client is a publicly traded adult entertainment establishment with nightclubs in major markets across the U.S. According to court documents, the case involved an automobile-pedestrian accident that resulted in the death of a 43 year-old man in 2007. The driver of the vehicle was an adult entertainer, who was driving home from work at the defendant’s nightclub when the accident occurred. She had a blood-alcohol level almost four times the legal limit, and eventually pled guilty to felony intoxication manslaughter. Relatives of the victim filed suit against the nightclub, alleging the defendant was negligent in continuing to serve alcohol to an obviously intoxicated person, and then allowing her to drive home from the defendant’s establishment.

“While we certainly feel a great deal of sympathy for the family of the victim in this tragic accident, we were confident that our client had not been negligent in this situation. We knew we needed to mount a strong defense to prove that the company played no part in the criminal actions of this independent contractor,” said Darrell Barger, a partner in the Corpus Christi office of Hartline Dacus Barger Dreyer LLP.  The jury heard testimony from a variety of expert witnesses and was presented with a reconstruction of the accident. The plaintiff’s counsel claimed the victim experienced unimaginable conscious pain and suffering when he was struck by the entertainer’s vehicle and asked the jury to award $5 million plus punitive damages to the family of the victim.

Defense counsel argued that their client had safeguards in place to prevent serving alcohol to someone obviously intoxicated, as well as to prevent their patrons from driving under the influence of alcohol. The defense also brought in expert witness to establish that alcohol played no role in the accident. After hearing testimony from both sides, the Harris County jury of seven men and five women deliberated and returned a verdict for the defense on June 15, 2011.

SOURCE: Hartline Dacus Barger Dreyer LLP

Cause Number: 2009-07180
Court: 334th Judicial District Court, Harris County, Texas

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Debra Friedman, Staff Writer greenwichtime.com - Updated 09:57 p.m., Thursday, May 5, 2011

STAMFORD -- A national restaurant chain has agreed to pay $1.5 million to the family of a 20-year-old Riverside man who was killed in a 2008 drunken-driving accident, according to court records.

The settlement came just as lawyers for Dave & Buster's and the family of Joseph Borselio were getting ready to pick a jury during the initial phases of a trial in state Superior Court.

Borselio, 20, was killed in September 2008 while riding his bicycle after Douglas Moore, 25, of Riverside, struck him during a late-night accident on Sheephill Road.

Moore was driving home from Dave & Buster's in West Nyack, N.Y., at the time of the accident. Lawyers for the Borselio family claimed the restaurant chain, which is based in Texas, overserved Moore. The restaurant denied those claims.

"It was resolved as part of confidential settlement agreement," said Borselio family Attorney Eric Smith, of the Stratton Faxon law firm. "As you would expect, this was yet another very stressful time for the family, so they were pleased to be able to put this matter behind them."

A message seeking comment on the settlement was left with representative for Dave & Buster's.

Although the settlement was listed as confidential -- and Smith declined to release or discuss the dollar amount -- the figures were recently filed with the Greenwich probate court. A probate court judge must sign off on the agreement before it is finalized.

"Dave & Buster's and or its insurers are willing to tender the (gross) sum of one million five hundred thousand dollars in full and final settlement of the claims pursuant to a confidential settlement," states a probate court memo written by Smith.

The memo states the restaurant still disputes the Borselios' allegations, despite agreeing to the payout.

After deducting attorneys fees and expenses relating to the case, Smith estimated that the Borselio family would receive between $900,000 and $975,000, according to the memo.

That sum will be in addition to the $300,000 the family received from Moore's insurance company last year as part of the same lawsuit.

In addition to Moore, four restaurant senior executives were named in the 2009 lawsuit, which invoked a dram shop law whereby commercial establishments may be held liable for injuries or deaths that result from patrons involved in drunken-driving accidents.

Police said Moore, who is serving four years in jail, had a blood-alcohol content of 0.21 the night of the crash. The legal limit is 0.08.

Lawyers for the restaurant planned to call Moore and several Dave & Buster's managers to the stand to show that he was not overserved. They also planned to call several people who are listed as witnesses as well as economists and officials from the Greenwich Board of Education and ShopRite, who were to present school and employment records. Borselio worked at ShopRite in Stamford at the time of his death.

Lawyers for Borselio's family planned to call Greenwich medical personnel, several witnesses and police officers and family members. An economist and other experts were also expected to testify about Borselio's potential life earnings, although Dave & Buster's was trying to block some of those experts from taking the stand, according to court records.

A probate court judge is set to rule on the proposed settlement amount on June 2.

DRAM SHOP AWARD:

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22-year-old held in man's death - Police say he ran down victim in Mesa bar's parking lot after fight

by Allison Oswalt - Mar. 18, 2011 12:00 AM
The Arizona Republic

A 22-year-old man accused of running down and killing a Mesa man near Southern Avenue and Dobson Road was arrested Wednesday on charges of second-degree murder, police said.

The victim, who has been identified as 29-year-old Antoine Beaty of Mesa, was pronounced dead at a hospital on Wednesday.

Mesa police arrested Derrick M. Antone, who admitted that he had not planned on running the victim over but only "hit him to see him fly out of the way."

The Wednesday incident at Uncle Monkey's bar in Mesa began around 2:45 a.m. as Antone was leaving the bar with several friends, police said.

Beaty asked Antone for a ride home from the bar, and Antone agreed because one of Antone's female friends wanted to "hook up" with Beaty, police said.

Beaty began arguing with one of the women and started assaulting her and another woman in the vehicle, police said.

After Antone and Beaty got out of the van and started to fight in the parking lot, the two women pulled out lug wrenches and began hitting the victim, police said.

Beaty responded by throwing rocks at the two women and then ran away, police said.

Police said Antone and the two women got back into the van with the intent to hit Beaty.

Antone told police that he did not want to hurt Beaty seriously but that he estimated he had accelerated to 35 mph while chasing him.

Police said that Antone said he ran over a curb and lost control of the vehicle, hitting a pole.

He told police he was unaware he had hit Beaty, police said.

Beaty was taken to the hospital, where he was pronounced dead.

Police said that video surveillance shows the van driving in deliberate circles after hitting the curb and does not appear to be "out of control."

Antone was booked on charges of second-degree murder, failure to stop at an accident involving a death and extreme DUI.

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DRAM SHOP AWARD:

by John Pirro, Staff Writer - Thursday, March 10, 2011

DANBURY -- A lawsuit against a Candlewood Lake bar stemming from a July 2008 drunken boating accident that killed two people and injured two others has been settled without trial.

Lawyers representing Down the Hatch in Brookfield, and three of the victims -- Jason Wanat, Kevin Sullivan and William D'Addio -- agreed to the settlement Tuesday, the day that jury selection in the case had been scheduled to begin in state Superior Court.

Because of a confidentiality agreement, the amount of the settlement was not disclosed. But the state's Dram Shop Act, under which the lawsuit was filed, limits damage awards to $250,000 to be divided among all parties.

Wanat, who was killed, and Sullivan, who was critically injured, were passengers in the speedboat operated by Richard Layton Jr. that collided with D'Addio's bass boat shortly after they left the lake side bar in Brookfield.

Layton, who state Department of Environmental Protection police said had a blood-alcohol level of .19, more than twice the legal limit, was also killed in the crash.

The suit claimed employees of the bar continued to serve Layton alcohol even though he was clearly intoxicated.

"I can't talk about the numbers, but I believe all the parties were satisfied that the matter has been settled," said Danbury attorney David Bennett, who represents Sullivan.

Citing the confidentiality agreement, who represented Wanat's estate, declined to comment other than to confirm the case had been resolved.

Attorneys for D'Addio and Down the Hatch couldn't be reached Wednesday and neither could Scott Parente, permittee at Down the Hatch. The restaurant is closed for the season and two Brookfield telephone numbers listed for Parente weren't in service.

Although D'Addio, Sullivan and the Wanat estate were on the same side during the Danbury case, they are opposing parties in a much larger and more complex lawsuit pending at state Superior Court in Waterbury.

In that case, the Wanat estate and Sullivan are suing D'Addio and more than 70 other defendants, including the Candlewood Lake Authority, members of the Candlewood Lake Patrol, the New York bass fishing club that sponsored the fishing tournament in which D'Addio was a participant when the collision occurred and the municipalities bordering the lake. That case is far from ready for trial, the attorneys said.

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