The family of a choir minister killed on his way home from church after being struck by a drunk driver recently suffered another blow when the $37 million dram shop verdict against the establishment that served alcohol to that driver was overturned – on a technicality.
Boston drunk driving injury lawyers know that while having a strong case is certainly important, how a legal team pursues it can be equally critical.
In Volcano Enterprises, Inc. v. Rush, the issue the Alabama Supreme Court addressed was the lack of notice service to the defendant prior to trial.
The plaintiffs hired a designated agent for process service – basically to help notify the defendant of the litigation. But when the defendant could not be located (there were allegations he was purposely avoiding service) the judge allowed notification by publication in a local newspaper. However, the state supreme court determined that not enough was done to find the defendant, and thus tossed the verdict.
So even though the family secured a $37 million verdict against the night club that served the drunk driver (who was found liable for $3 million), plaintiffs will now have to decide whether to start over.
Dram shop laws vary from state-to-state. Some allow the pursuit of litigation against social hosts who serve alcohol to minors or those already intoxicated. Others limit potential liability to establishments that sell alcohol.
Massachusetts does not have a specific dram law statute, so the guiding principles are based in case law. There is liability for vendors of alcohol that serve to minors and intoxicated adults. There is also limited liability for social hosts who serve to minors. However social hosts who serve to intoxicated adults generally can’t be held liable.
In the Volcano case, the at-fault driver was an off-duty police officer who met with a colleague at a strip club after work. According to court records, the officer consumed liquor in his vehicle while he waited for his friend to arrive, and was already intoxicated by the time he entered the establishment.
Once there, he and his friend reportedly continued to consume copious amounts of alcohol, after which they got in separate vehicles to leave. The defendant officer was allegedly driving somewhere between 100 and 120 miles-per-hour at the time of the crash that killed the minister. He survived, was arrested, fired and later convicted and sentenced to more than a dozen years in prison.
He was ordered by the criminal court to pay restitution, but the family still pursued civil action against him. They also sought to hold the club liable for serving him alcohol when staff knew or should have known he was highly impaired.
The service agent reportedly attempted to serve the club owner at his residence, but it had been damaged by a tornado. The agent also went to the club on a few occasions, but did not find the owner. After those attempts, plaintiffs requested – and were granted – the ability to serve notice via publication.
The defendant never showed up to defend himself, and the plaintiffs won their case. It was only at that point that the defendant surfaced and appealed.
Upon review, the state supreme court indicated that the burden of proof was on the plaintiffs to prove that all possible measures to notify the defendant had been exhausted, and/or present evidence that the defendant was actively avoiding the servicing process. The court ruled the plaintiffs hadn’t met that burden, and the error was not harmless because the defendant had no opportunity to defend himself.
If you or someone you love has been injured a Boston drunk driving accident, call for a free and confidential appointment at (617) 777-7777.
Volcano Enterprises, Inc. v. Rush, May 9, 2014, Alabama Supreme Court
More Blog Entries:
State Trooper Accused of Being Drunk, Refuses to Cooperate After Accident, May 12, 2014, Boston Drunk Driving Injury Lawyer Blog