Drunk drivers who sue over their accidents, cont’d

by Walter Olson on January 31, 2012

Max Kennerly thinks we should understand their point of view. Earlier here, here, etc., etc.

{ 18 comments }

1 peter 01.31.12 at 7:30 am

I like this one

“Most everyone agrees that, if a bar keeps serving a customer alcohol until they’re intoxicated…….. be able to sue both the bar customer and the bar.”

I think he is mixing up “Most everyone” with “Most lawyers who can see dollar signs”

This whole thing started with the notion that you can sue if you keep on feeding someone alcohol to someone who is so obviously drunk that they have lost all sense of reason or could die, to you can sue someone if any alcohol is in someone who then does something bad.

Trust the lawyer to take something sensible and reasonable, apply it to the opposite extreme and they claim that most people agree.

2 Ron Miller 01.31.12 at 9:09 am

I see Max’s point of view here but I do disagree. I think being drunk should be either contributory negligence or lead to a finding of fault that exceeds 50% (and destroys the claim in most states). But can’t we debate the issues instead of just tearing apart trial lawyers?

3 Max Kennerly 01.31.12 at 9:26 am

Peter,

Do you really believe the victims of drunk driving accidents shouldn’t be able to sue bars that serve visibly intoxicated individuals? You dance around the issue and imply that, but seem hesitant to state it outright.

Ron,

All of the people mentioned in my post have significant comparative fault issues (and frankly I wouldn’t ever represent a drunk driver suing the estate of his victim, nor would most trial lawyers I know), but I don’t think that means the bars should be allowed to talk a walk. We should all be responsible for our actions, even if others act in equally bad or even worse ways.

4 Frank 01.31.12 at 9:39 am

” if a bar keeps serving a customer alcohol until they’re intoxicated”

This quote doiesn’t say anything about serving visibly intoxicated patrons.

Among the reasons the state uses breathalyzers and blood tests is because often one cannot determine a person is intoxicated by looking at them.

easy to say someone else should determine when a drinker is intoxicated. How about when the waiter at the 5 star BYOB says “Sorry, you folks can’t finish that ’82 Petrus, I think you’ve had enough.”

5 John Burgess 01.31.12 at 10:24 am

Perhaps bars should be required to install video camera coverage of all areas in which alcohol is served. Too, requiring a breath analysis before drinks are put on a table — each round — would serve to insulate bar owners from questionable claims. Then, another breath test should be required before a customer leaves the bar or restaurant, before s/he has the opportunity to get behind the wheel.

Yes, drunken driving can be reduced!

I’ve lived in countries that take contributory negligence to what we would see as an extreme…

Your parked car was hit? If only you’d parked around the corner, it wouldn’t have been. The car that hit you was in the wrong lane? Pity you didn’t start out sooner or later; the accident would have been avoided.

If the myriad ways in which this kind of casuistry can be abused isn’t obvious, I don’t know what is.

6 Ron Miller 01.31.12 at 10:25 am

Really, I can live with the waiter at the 5 star restaurant cutting someone off. I really can. He/she will have to endure.

Max, I support dram shop laws: http://www.marylandinjurylawyerblog.com/2010/03/dram_shop_in_maryland.html

But when the plaintiff is the drunk themselves, this is where I step off. Sure the bar is “liable” on some level. But there comes a point where your culpability is so high – getting drunk and driving – that I think is should bar you from making a claim. So I guess that is allowing the bar to “take a walk.” I don’t like that outcome but I think it is the lesser of evils.

7 DEM 01.31.12 at 11:09 am

Comparative fault is not much of an answer. The local watering hole will still have to endure the expense and uncertainty of a trial to figure out whether it will be deemed to be 10% at fault, 50%, or perhaps something more. Congratulations Mr. Bar Owner — you’ve wagered your entire business on this trial, and you were only 5% at fault! Now cough up that money plus the $100,000 it took to try the case. Don’t you feel like you’ve won? Next time you’ll be more “careful” and make decisions on behalf of your adult patrons.

8 peter 01.31.12 at 12:18 pm

Max Kennerly “Do you really believe the victims of drunk driving accidents shouldn’t be able to sue bars that serve visibly intoxicated individuals?”

Thanks for pointing out that I may not have made my position totally clear. For those who think I may have danced around the point and are hesitant to state it outright. I apologise. In setting my position totally clear – Yes I do.

How the the bar owner to know that who they are serving alcohol to is driving? He may be a passenger, or walked, or taken a taxi, or taken a bus, or suffering from a medical condition that has the symptoms of being drunk, or…, or… or or or.

Say someone gets agressive when drunk, walks out of a bar and stabs someone, is the bartender at fault?

Say someone has a drink and walks in front of a bus, is the bar owner at fault?

Say I have a drink and then go sub-aqua diving (a big no-no). Is the bartender at fault if I die?

Say someone has a drink against medical advice because they suffer from a severe allergic-type reaction from alcohol and dies, is the Bartender at fault? (Personally involved at this one because someone at my party died under these exact circumstances, and I was the sober one trying to perform CPR and mouth-to-mouth recusitation through his vomit. I found out at the inquest that he had been banned from drinking by his doctor due to this physical reaction. No blame was attached to me or anyone else at the party as he was held to be the author of his own misfortune).

I can think up any number of circumstances where alcohol could be a cause of a misfortune. Putting the blame on a bar owner for the unknown (and even unknowable) consequences of their actions can only be something a Lawyer dreams up.

(PS In case I am accused , again, not being totally clear, I am not saying that the servers of alcohol should be totally absolved of their actions under any circumstances. See previous post)

9 mike 01.31.12 at 12:28 pm

If the bar employees hold you down and pour alcohol down your throat, then yes liability, Short of that and I say no liability.

10 DEM 01.31.12 at 1:23 pm

Should we go a step further and prohibit the sale of 6 packs unless the buyer signs a sworn affidavit that he will not drink all 6 bottles in one evening? Also, it seems that liquor shouldn’t be sold at retail in anything other than 3 ounce servings (one per customer per day, of course). If we’re going to blithely dismiss individual responsibility and liberty so easily, let’s at least be thorough about it.

11 Ron Miller 01.31.12 at 1:54 pm

Again, DEM, I’m not a huge fan of your rhetoric. You don’t need to use this hyperbole to make your point. George Will had a quote on this, saying that life is lived on a slippery slope. Taxation could become confiscation, police could become Gestapos. But the benefits of police and taxation make us willing to risk that we have the wisdom to know where to draw the line.

Finding a crazy place at bottom of the cliff is not furthering your argument.

12 Flemur 01.31.12 at 1:54 pm

Do you really believe the victims of drunk driving accidents shouldn’t be able to sue bars that serve visibly intoxicated individuals?

Yes.

13 Hugo S. Cunningham 01.31.12 at 11:42 pm

I agree with most of the posters here who believe a drunk driver should not profit from his own misconduct. I am more sympathetic to dram-shop suits by victims of drunk drivers, however. Admittedly, the dram shop’s guilt doesn’t usually rise to the level of outright criminality. But if dram shop liability is a “cost of doing business” for which insurance is bought, dram shops that effectively combine assertive employees and social atmosphere to reduce drunk driving will gain a major cost advantage over their competition.

14 DEM 02.01.12 at 12:09 am

Ron, criticizing my syle of argumentation is a poor substitute for addressing the substance of it. Anyway, I’d be a lot more confident in our alleged “wisdom” in line-drawing if we weren’t already operating in a world where the legal practice of serving alcohol to adults can lead to ruinous tort liability for the criminal acts of third parties — something that probably would have been considered “crazy” years ago. Not to mention that the plaintiffs’ bar clearly has zero interest in drawing a reasonable line. They want to draw as large a circle as possible that encompasses every potential deep pocket. And in thousdands upon thousands of tort cases, they need only a handful of unwise judges to fall for it. Alas, there is no shortage.

If you had a limiting principle in mind here, one might expect you to offer it up. As it happens, you seem to be saying that hopefully someone will think of something at some future date. Not exactly confidence inspiring.

15 J.T. Wenting 02.01.12 at 6:37 am

“Do you really believe the victims of drunk driving accidents shouldn’t be able to sue bars that serve visibly intoxicated individuals? ”

yes. You and you alone are responsible for your binge drinking. What’s next, you going to sue Jack Daniels for them not preventing you from buying those 20 bottles you stockpiled over a period of 2 months before you downed them all and ended up in the ER with alcohol induced coma?
‘Cause that’s the logical conclusion if you claim that those selling you the booze are responsible for what happens with you after you drink it.

16 J.T. Wenting 02.01.12 at 6:41 am

“’ve lived in countries that take contributory negligence to what we would see as an extreme…

Your parked car was hit? If only you’d parked around the corner, it wouldn’t have been. The car that hit you was in the wrong lane? Pity you didn’t start out sooner or later; the accident would have been avoided.”

Sounds like the Netherlands, where a law like that was in place.
Drunk cyclist hits a legally parked car, at night on an unlit street he’s riding along with no lights of his own.
Judge decides the owner of the car is responsible for all damages including the medical bills of the cyclist because by law cars are always at fault for accidents involving cars and cyclists (apparently even if the car is parked, in a marked parking spot, and noone’s sitting in it).
That law was changed however, now the car has to be in traffic for it to apply…

17 Ron Miler 02.01.12 at 11:21 am

Again, REM, you can’t make up your own facts. There is no trend towards tougher (or weaker) dram shop laws. You want to reestablish traditions that never existed. The reality is that there are far more curbs on personal injury case and there has been no meaningful change in dram shop laws. We can argue over whether this is a good thing or a bad thing but, again, we can’t argue over simply facts.

18 a_random_guy 02.02.12 at 5:01 am

Really, dram-shop laws make little sense, and for lots of reasons. Here are three:

(a) You cannot easily tell when someone is over the legal limit. Especially people who drink regularly have a high tolerance, and intoxication does not show.

(b) You have no idea what the person is going to do when they leave your premises. If someone has no intention of driving themselves home, there is no problem. Why you be responsible for knowing your customers’ intentions?

(c) This is part of the idiotic trend of the last decades: everything is somebody else’s fault. Your customers are all grown up now. They are the ones drinking alcohol. They are responsible for their actions.

IMHO, the main reason that dram-shop laws came into existence was the search for deeper pockets to sue.

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