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Wednesday, April 18, 2012

A CT Supreme Court Oral Argument: How is the Dram Shop Statute to be interpreted? Is it necessary to prove a drunk driver was VISIBLY intoxicated when the bar served him to prevail in a wrongful death claim against the bar?

The last jury trial I had when I was in my old law firm was a Dram Shop case against a bar in Chester, Connecticut.  My client, the late-Donna Amarant, was driving on Route 154 in Haddam when Richard Roy crossed the center line in his pick-up truck and hit Donna's VW Jetta head-on, killing her.  I sued the bar, claiming the bartender sold Mr. Roy another drink, after he was already intoxicated.

The bartender claimed he never noticed any signs of intoxication in Mr. Roy, despite the fact that Roy had sat on a barstool across from the bartender for over 2 hours before getting back in his truck and killing Donna Amarant.  Mr. Roy's blood alcohol level was well-over the legal limit at the time of the collision, based on blood-test results at the hospital on Mr. Roy.  But expert testimony from our toxicologist and the defense emergency room doctor said that an alcoholic may or may not show visible signs of intoxication even at very high blood alcohol levels.

In our case, I called three witnesses before the jury who testified that Mr. Roy was severely and quite visibly intoxicated at the scene of the collision, which was only minutes after he had left the bar and had his last drink.

The defendant bar's insurance company offered us $1,500 (yes, one thousand five hundred dollars) before trial.  We turne it down and the jury found in our favor on all the issues.  The insurance carrier then paid us the maxiumum amount recoverable in these cases, even where a death results, and that is $250,000 (two hundred fifty thousand dollars).

In these cases, it would be much easier to win if all the injured party had to prove was that the defendant was over the legal limit, objectively, at the time he was last served by the bartender.  Proving "visible" intoxication is a much higher burden.  I was able to do so in my wrongful death case, but most of these cases go in favor of the defendant bar.  Few bartenders would ever admit they served a visibly intoxicated patron.  And most potential witnesses, people who hang out in bars, are themselves not in any condition to testify soberly about the defendant's state of sobriety.

The legal issue of what must be proven by the injured party to win a case against a bar is still an open question.  And that brings me to what I have planned for this morning.  I'm going to see how Law is Made in our Supreme Court.  Or how Law is Interpreted.  Depending on how you look at the role of judges in interpreting statutes.

I'm going up to U.Conn. Law School to watch an oral argument in a session of the CT Supreme Court held at the school.  The case is a Dram Shop case involving a bar which was sued for allegedly serving an already-drunk person more alcohol, after which the patron went out and killed somebody in his car.  The issue on appeal is this: Does the injured plaintiff have to prove that the bar patron was VISIBLY intoxicated when he was served at the bar or merely that the bar patron was objectively over the legal limit for drunk driving, regardless of whether the effects of the alcohol were apparent to a reasonably attentive bartender.  The Dram Shop statute itself does not address the point explicitly and only speaks of the duty of bars not to served "intoxicated" persons.  Courts over the years have suggested that VISIBLE intoxication must be proven.  The plaintiff in the case before the Supreme Court this morning is claiming that the statute, which does not include an explicit "visible" intoxication element, does not require an injured person to prove that the bartender could have seen the person was intoxicated before serving him.  That interpretation would, in essence, make the statute what's called a "strict-liability" law.  The other interpretation, defended by the defendant bar, that the statute requires proof of "visible" intoxication, would make the standard of proof more akin to that in an ordinary negligence case.

I know the plaintiff's lawyer, Ron Murphy of New Britain and hope to get a chance to talk with him after the oral argument.

8 comments:

  1. You know what Bob, you're a piece of shit. And a hypocrite. Now you're filtering comments on your blog? What happended to free speech? What....too many people making you look bad? You do a fine job of that on your own. No one is going to read your blog now. Watch how many hits you have compared to before. The only reason anyone even read this blog was for the comments. No one is interested in your boring blabber.

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    1. Dear Whining Anonymous (April 18, 2012 at 6:47 a.m.),

      I only filter out the Comments which make defamatory remarks about my wife and children. Some of those are pretty vile and not worthy of publication or response.

      I have NO problem with your calling me any names your heart desires. I have no control over how you interpret my life or my artistic productions. I DO believe in free speech, but some words don't rise to the level of "speech," in my opinion. For example, I would not publish child pornography, which is NOT, as you may or may not know, entitled to protection under the First Amendment. I am, in any event, not a government so I'm not bound by the First Amendment. I grant you the ability to publish your Comment on my blog out of the goodness of my heart.

      As for whether my writing here is blabber or boring, I'll leave that judgment to you and my hundreds of other daily readers.

      All best,

      The Free Speech Guy

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  2. Drunk driving is what I like to do. I like drunk driving with you. Take me up on it Bobby. Can you squeal like a pig? Let's find out

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    1. Dear Drunken Anonymous (April 20, 2012 at 12:10 p.m.)

      Get to bed early tonight and you'll have that much more time tomorrow morning to deal with your hangover.

      All best,

      A Sober Man

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  3. It is not a crime if I kill a squirrel. Why then do we differentiate between mammals? Let's set a standard. For the love of Gandolf.

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    1. Dear Squirelly Killer Anonymous (April 21, 2012 at 4:21 p.m.),

      It may be a crime, if it's a pet squirrel. Then you could be charged with cruelty to animals.

      As for mammals like you, there is NO difference between you and a squirrel. As for highly intelligent, gifted mammal/human beings such as me, we are prized greatly for our creativity.

      That IS the standard, Gandolf Murphy.

      All best,

      Human More than Human

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  4. You claim to be an ├╝bermensch in your last post. As a Jew that's extremely offensive. I read the attacks on you and you are well to deflect them. Why then do you now take on an old Nazi stance. If you wrote it you meant it. Explain the prejudices that led up to This

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    1. Dear Saul Green,

      I only meant to use the term in the classical Nietzschean sense of a Man Beyond Good and Evil as conventional society defines good and bad behavior. Nietzsche probably was one source of inspiration for Nazi theorists and apologists, but I assure you I am neither a Nazi sympathizer nor an anti-Semite. To the contrary, I despise anti-Semitism and consider myself an "honorary Jew." I went to a large Jewish high school in Philly, was the honorary Gentile at many bar mitzahs and, later, weddings, and my best friend Joe is a Jew from Latvia by way of Poland and Israel. When I went to the congregational church and studied the bible for 30 years in once-a-week study sessions of The Jacob Group, my favorite part of the bible is the Jewish bible (Old Testament).

      I am delighted that you have read the attacks on me and support my decision to deflect them rather than sit silently by, as my own brother has advised, without responding. I have a hard time with the Christian idea of "turning the other cheek."

      My attackers are, I believe, people who either do not understand me or understand me and resent my freedom from the ordinary constraints of polite society. That is the only reason I sometimes call myself an ubermensch. (I have no umlaut key on my laptop.) Remember that Nietzsche was a 19th century philosopher who never heard of Nazism.

      Yours is, at least, an intelligent, thought-provoking Comment and I hope I've fairly met your challenging question. If not, please ask for more clarification and I will readily provide it. Please write to me again. If you ever want to get together to talk about anything, just let me know. So many of the Comments here are inane and not worthy of response, but I refuse to sit idly by when attacked without justification.

      All best,

      A Man Who Loves Judaism and Jews

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