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Claim Against Bar for Negligent Service of Alcohol

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DramshopAt approximately 11:30 PM on March 2, 2000, the plaintiff, a 20 year old student, went with three friends (all 20 years old) to a small bar in Roslindale Square. Despite the fact that they were minors, the plaintiff and his friends were not asked to produce identification before entering.

One of the friends who was driving that evening was already “a little buzzed” from alcohol when they arrived at the bar. The group stayed there for approximately two hours. While there, each had at least 4 to 5 beers and two mixed drinks. The driver drank at least that amount of alcohol and probably more.

After they left the bar at approximately 1:30 AM on March 3, 2000, the driver got into his automobile and drove it with the plaintiff in the passenger seat. The other two friends left in another vehicle. They traveled southbound on Washington Street towards the intersection of Enneking Parkway. The driver took a left onto Enneking Parkway and began driving erratically and traveling in excess of 60 mph. Along Enneking Parkway, the driver failed to negotiate one of the curves and wrapped the car into a telephone pole on the passenger side where plaintiff was seated.

Court Suffolk Superior
Amount $3,400,000
Injuries Significant intracranial injury with a cerebrospinal fluid leak; fracture of the right humerous; a right pneumothorax and a peritoneal lavage that revealed gross blood; a fractured pelvis; diffuse injury and question of subdural hematoma; and a large tear in jejunum.
Experts William H. Burke, Ph.D., Life Care Plan

Rosemarie Meissner, economist

Douglas Katz, M.D., neurologist

Immediately following the crash, the driver was transported to the Brigham and Women’s Hospital in Boston where he underwent emergency treatment. Among the diagnostic tests performed on him was a blood alcohol test. According to the medical record, his blood alcohol level following the collision was .294.

The driver was charged with operating under the influence, but before being arrested, he exited the hospital and went to Ireland to escape prosecution. To date, he has not returned to the United States to face the charges.

Plaintiff brought a civil action in 2001 alleging, among other things, a negligence claim against the driver, the owner and operator of the bar, the bartender, the purported manager of the bar, and the premises owner. Plaintiff alleged that the defendants were negligent in serving alcohol to the driver, who was a minor at the time, and when it knew or should have known that he was intoxicated.

The bartender that evening was sole employee on duty that night. Prior to the incident, he, himself had been convicted of operating under the influence of alcohol. In addition, he had minimal training in alcohol service and did not have a system for keeping track of the number of drinks served patrons.

The bar’s owner made the decision to have only one person on duty per shift at all times. The bar never had a bouncer or other person to check IDs for minors. It was left solely up to the bartender to check IDs and identify intoxicated persons. Additionally, defendants did not have any written policies and procedures relative to the service of alcohol at Parkway Gardens

As a result of this incident, the plaintiff sustained the following injuries: significant intracranial injury with a cerebrospinal fluid leak; fracture of the right humerous; a right pneumothorax and a peritoneal lavage that revealed gross blood; a fractured pelvis; diffuse injury and question of subdural hematoma; and a large tear in jejunum. He was admitted to the Brigham & Women’s Hospital on March 3, 2000 and remained an inpatient until March 30, 2000. He was transported to HealthSouth Braintree Rehabilitation Hospital for his severe traumatic brain injury and remained there until August 14, 2001 when he was returned to Brigham & Women’s to undergo a cranioplasty. Following that surgery, he was re-admitted to HealthSouth Braintree on August 17, 2001 and remained there until November 22, 2000.

He was discharged to the care of his 65 year old mother and receives home care at her house to this day. In a neuropsychological evaluation, the plaintiff was described as having a number of significant cognitive impairments, including limited auditory comprehension (1-step commands), day/ time distortion (gave length of stay within the hospital as one day), severely impaired retrograde recall, limited awareness of deficits, and moderate impulsivity.

William H. Burke, Ph.D. specializes in the analysis, treatment planning and case management of individuals with brain and spinal cord injury, amputations, burns, chronic pain, orthopedic injuries and other severe disabilities. He performed an analysis of plaintiff’s future life care needs. Dr. Burke prepared a life care plan which requires ongoing daily assistance and supervision and ongoing medical care. It also outlines plans for the ongoing purchase of orthotics and medical equipment for the plaintiff. The costs associated with this life care plan are in excess of $10 million, with a present value of $5,045,461.

Prior to the crash, plaintiff attended Bridgewater State College, completing two years in the area of business administration. He worked part-time as a stock clerk. Dr. Burke stated that plaintiff was not considered a candidate to return to school or to the competitive labor market and experienced a total loss of earning capacity secondary to his disability. As a male with a work-life expectancy of approximately 45 years, plaintiff had been expected to earn in excess of $1,200,000. Rosemarie Meissner, an economist, indicated that the present value of this economic loss was $819,183.

Defendants vigorously defended this action contending, among other things, that plaintiff and his friends had not been at the bar for a long period of time, and instead consumed their alcohol at another location. In that regard, they offered an alleged witness who testified that he was with plaintiff and his friends that evening and that they went to another bar. In addition, they contended that plaintiff and his friends consumed alcohol in their vehicle based on the fact that some bottles and a case of beer were in the crash vehicle. In addition, defendants took issue with the lost earning capacity claim and nature and extent of the life care plan.

Plaintiff demanded the policy limits available to the defendants ($5,300,000). Following a day long mediation with Jeffrey Stern, the case was settled for a total of $3,400,000. The driver’s insurer paid the policy limits of $100,000 without requiring a release. Plaintiff pursued a default judgment against the driver. In addition to an up front lump sum payment, the plaintiff structured a portion of the settlement which will provide $7,485.00 per month for Life, guaranteed payable for 30 years, with a yield over normal life expectancy of $4,778,424.00.

A default judgment was entered against the driver of the automobile who was not part of the settlement negotiations. On July 18, 2006, after a hearing on an assessment of damages, the court entered judgment in the amount of $9,381,513.36 in favor of the plaintiff. With interest, the judgment will be in excess of $15 million which will not be dischargeable in bankruptcy because the defendant caused injury while operating under the influence of alcohol.

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