The argument itself was impressive. All the justices were deeply engaged in the discussion of the issues. Unlike the U.S. Supreme Court, where Justice Thomas never asks a question, all seven of our justices asked questions of both lawyers. And it was clear from their demeanors that they all were taking the case seriously. After all, the outcome of this case could drastically change the way bars serve alcohol in Connecticut. If the plaintiff gets the court to do away with the requirement of "visible" intoxication to win a Dram Shop case, then the only way a bar can try to protect itself is by either counting the number of drinks a patron has before cutting the drinker off, or requiring every customer to take a breathalyzer test before getting another drink. As the defense lawyer, Elycia D. Solimene, pointed out in the post-argument discussion with the audience of law students and some lawyers, like me, who would want to go to a bar if there were that much checking up by the bartenders. Ron Murphy, the lawyer for the estate of the man who was killed by the drunk driver, claimed that requiring bartenders to count drinks for each customer would not be a big deal. Obviously, Attorney Murphy has never been in a dance club like the ones I go to three or four nights a week. It's laughable to imagine the bartenders at Shrine at Foxwoods or even Up or on the Rocks in Hartford or Alchemy in New Haven or Sin City in Waterbury to go around counting drinks of hundreds of people.
The real policy question is this. How is it possible for people to enjoy the benefits of drinking alcohol, smoking cigarettes, or owning guns or cars for that matter, all legal products, without causing an unacceptable level of carnage to non-drinkers, non-smokers, young black men in hoodies carrying Skittles and Arizona Ice Tea, and non-drinking drivers and passengers? The question was not phrased in such broad terms yesterday at the oral argument in the tragic case of John A. O'Dell, Administrator vs. Kozee, et al., SC18551, but that IS an important underlying issue in these kinds of cases.
The tragic aspect of the case was embodied in the two middle-aged people sitting in front of me in the front row of the moot courtroom at U.Conn. law school in West Hartford. They sat directly behind Ron Murhpy, their lawyer. They are the parents of John O'Dell, the young man killed by the drunk driver. As Ron explained after the argument, John O'Dell had been drinking with his friend, the drunk driver, at the bar. They were in the bar from 7 p.m. until midnight. After leaving the bar, John and his friend got in the friend's car and the friend plowed into the rear of a large truck. John's body was thrown out of the car and into the oncoming lane. Another truck ran over John's body. The defense lawyer said that although she felt the bar had NO responsibility for the death, because there was NO evidence the driver was VISIBLY intoxicated, the autopsy photographs were the worst she'd ever seen. The parents of the dead young man left the moot courtroom immediately following the argument so they did not have to listen to the frank discussion of the case.
In this kind of a case, most juries have a very hard time holding the bar liable. This is because most people can't understand in the first place why the BAR can ever be held liable for the acts of the person who voluntarily drinks liquor at a bar. That is precisely the reason that Connecticut courts decided a long time ago, as a matter of common law, that bars had NO liability for these cases because the LEGAL CAUSE of the tragedy was the drinker's decision to drink, not the bar's decision to sell the alcohol to the drinker. The Connecticut legislature responded by enacting the Dram Shop Act, a very long time ago, to overcome the causation problem and impose a limited form of liability on bars as a kind of cost of doing business and providing a place for people to drink and get drunk. Originally, the maximum damages recoverable under the act was $20,000. That was raised to $250,000 a number of years ago.
In the John A. O'Dell case argued yesterday, Attorney Murphy told us after the argument that the jury awarded the estate $4 million in damages. Juries are not told that the most an estate can recover is the statutory limit of $250,000 if they also find the bar liable. The judge then reduces the award to $250,000. In this case, the trial judge, Lois Tanzer, over the defense counsel's objection, made a pre-trial ruling that the plaintiff did NOT have to prove that the driver was VISIBLY intoxicated to win the case. It would be enough, the court ruled, if the driver could be shown to have been served a drink by the bar when his blood alcohol level was over the legal limit of .08 for drunk driving under the criminal DUI statute. On appeal by the bar, the Connecticut Appellate Court reversed the trial judge's ruling and held that visible intoxication must be shown under the statute, it was not shown by the evidence at trial, and therefore the judgment in favor of the plaintiff had to be set aside, reversed. The Supreme Court then agreed to hear the case since the legal issue is an important matter of public policy.
The Dram Shop death case which was my last trial before I retired was a very hard case to win. It easily could have gone the other way. Sitting through the oral argument of the subtleties of the Dram Shop law, and participating in the discussion afterwards, I remembered how hard I had to work, with my team of investigators, law clerks, legal colleagues, and secretaries to win my case for the family of Donna Amarant, especially her husband George who, like me, is a Wesleyan alumnus. My case was so difficult, so fraught with danger along the way, difficult tactical and strategic decisions, that I framed the Jury Verdict Form in which the jury forewoman confirmed by her signature that the jury had found all the issues in favor of my client, the husband of the dececedent. I also printed on a piece of paper in the framed verdict form a brief history of the case, recounting that the highest pre-trial settlement offer by the bar's insurance company was a measly $1,500 (that's right, only One Thousand dollars for a lovely, intelligent, woman who got killed by a drunken man whom the defense medical doctor testified probably had drunk the equivalent of a case of beer BEFORE he entered the bar and had a few more drinks before leaving and killing Donna Amarant).
I am fortunate to have been referred this case by John Shaw, who referred all his personal injury clients to me for trial. My favorite cases were the hard ones, hard fought, with difficult factual and legal issues, and tough, experienced defense lawyers on the other side. But I'm also delighted that now I can spend my time looking back on those experiences which enabled me to develop the tough emotional skin I now take advantage of to live the kind of life which makes me happy. And I have a virtually unlimited reservoir of experiences to draw upon in my writing.