Monday, July 29, 2013

Maryland bars are not automatically responsible for death caused by a drunk customer.

On July 25, 2013, Maryland's highest court affirmed that a bar has no duty to actively prevent mayhem caused by it's drunk patron who kills or maims with his car. The case is Warr v. JMGM (doing business as "Dogfish Head Alehouse "), and it affirms long standing principles of Maryland law even while bringing tears to the eyes.

Ten year old Jazimen Warr was killed by a drunk driver whose chosen watering hole was the Dogfish Head Alehouse.  Here's her picture, as it appeared on an NBC affiliate's website. Her sister and parents were also injured in the crash.

The driver, Michael Eaton, was driving his Range Rover on a suspended license, and evaded police for 14 hours after leaving the scene of the accident. The manhunt included dogs and a police helicopter. While the police searched, young Jazimen was pronounced dead at the hospital.

The Warr family sued Dogfish Head Alehouse in 2010, knowing that Maryland law was stacked against them despite a case built on the following facts, as alleged in the complaint:

The evening of Aug. 21, 2008, Michael Eaton arrived at the Gaithersburg bar and restaurant, and started a tab. One witness told investigators he stayed for six hours. Sometime after 10 p.m., according to state police records, he paid for 14 bottles of Corona and two "Lemon Drop" shots.
He opened a second tab -- three Coronas and a shot of tequila -- closing it out at 10:55 p.m., according to the police records. He purchased drinks for himself and others, according to police records.
After leaving the bar, records say, Eaton climbed into a Range Rover and headed south on Interstate 270, reaching an estimated speed of 88 to 98 mph. He plowed into the back of the Warr's Jeep, kept going, left his vehicle, fled on foot, made his way to a hotel and turned himself in the next afternoon.
Bar employees later testified that Mr. Eaton was a habitual drunkard, but that they shut him off by 11:00 P.M. and offered to call him a cab.  He refused and somehow stumbled to his Range Rover.

The Circuit Court for Montgomery County granted a motion for summary judgment made before trial by Dogfish Head Alehouse. This is a motion that is filed after all the facts are discovered, and it requests that the court consider the current state of Maryland law to determine whether the Plaintiff has any chance at winning at trial. The court applies the existing law to the undisputed material facts, and makes a decision- The Plaintiff either has a shot at trial, or the Plaintiff has absolutely no shot to prevail at trial. 

Maryland law has long prevented persons injured by bar patrons from suing the establishment where they got drunk. Maryland has long resisted the national trend to hold sellers of alcohol responsible for the death and destruction caused by drunk patrons. The Legislature has elected not to create statutes that impose civil liability for bars because of the acts of their drunk customers, and the courts have refused to impose duties on their own. The law since at least 1951 has been this simple declaration, found in a Court of Appeals decision:
Simply put, we just do not recognize a duty; instead we adhere to the principle that "[h]uman beings, drunk or sober, are responsible for their own torts.
The Warr trial judge was bound by this law. He was duty bound to apply this declaration of law to the facts of the Warr case, regardless of the horrific death visited on Jazimen by Mr. Eaton. The trial court granted summary judgment in favor of Mr. Eaton because his victims had no shot at trial. 

The Court of Appeals pulled the case up from the intermediate appellate court to decide, as a broad matter of Maryland public policy, whether this principle of law would be declared dead letter in Maryland, or whether it would continue to insulate alcohol sellers from civil judgments where even states heavily favoring individual rights, such as Texas, Arizona and Pennsylvania, have adopted some form of "dram shop" liability.

The law will remain unchanged in Maryland for the foreseeable future. The Court of Appeals found no good reason to change the law, on it's own, while inviting the legislature to re-visit the issue. The court noted that while the politicians have elected to impose criminal penalties on bars for serving under aged or intoxicated customers, they have not taken any action to impose civil penalties.

But consider this: Beer, wine and liquor are taxed at rates ranging from nine cents to $1.50 per gallon.  In 2012, the State of Maryland collected over $31 Million dollars on these three items alone. It is all documented in the Alcohol & Tobacco Tax Annual Report. Tax revenue from the sale of alcohol is simply intoxicating to the State's politicians.

This decision does leave open a slight window for judicial change in this law. If a future case involves a bar employee actively promoting the act of driving, perhaps by stuffing the drunk into the driver's seat, the reasoning of this court would impose some liability on the bar employee and perhaps his employer. We will just have to wait and see.