Posted on 12/12/2004 7:33:21 AM PST by XXXXX88XXXXX
Appeals court decision means it's no longer just the last bar that is liable in drunken-driving cases, attorney says.
Curtis Breton finished his firefighting job at 7:30 a.m. on April 20, 2001, and went on an all-day bender, drinking up to a case of beer.
At 10:11 p.m., while speeding 100 mph, he killed himself and two teenage boys in a fiery, head-on crash on U.S. 127. Blood tests indicated Breton was drunk.
The big question remains: Did he appear drunk to those who served him?
In what plaintiffs' attorneys called a landmark decision, the Michigan Court of Appeals recently overturned a Jackson County Circuit Court ruling that excused the Beach Bar at Clark Lake from a civil suit brought by the boys' families.
Judge Chad Schmucker ruled against the plaintiffs, saying they were "required to show by positive, unequivocal, strong and credible evidence" that Breton was visibly intoxicated when he was served at the Beach Bar.
The appeals court said such a heightened burden of proof is not required. Citing evidence from depositions that the Beach Bar might not have been Breton's last stop, and he likely appeared drunk, it said a jury should sort it out. The Beach Bar is back in the suit.
Breton also drank at the Eagles Nest, an establishment on the south side of Clark Lake, and a pub in Jackson earlier that day after a pickup hockey game. Only the two Clark Lake bars were sued; the stop at the Jackson bar was early in the day, at lunch, and Breton would not have been visibly drunk then, attorney Dennis Hurst said.
Hurst, representing the family of Lance N. Reed, said the appeals court addressed the 1986 dramshop legislation for the first time, and made a significant ruling.
"They are saying, for the first time, that it is no longer just the last bar to serve a person on the hook," he said. "Any bar you drink at can be liable."
The law presumes the last bar to serve a drunken person is responsible, but the presumption is legally rebuttable. It is alleged the Eagles Nest last served Breton, and that he went back to the Beach Bar shortly before the crash to hit on a waitress but was not served.
The waitress, identified in court papers as Lindsey Mizerik, had served Breton and fellow firefighter John Marsh two pitchers of beer from 5 to 6 p.m. Earlier in the day, they played hockey, drank beer with lunch, worked on a dock, and drank more beer, witnesses said.
According to court papers, they left the bar and each drank two beers in a 10-minute period. They returned to the Beach Bar at 8 p.m., each drinking two more beers. They shared a pizza and left for the Eagles Nest at 9 p.m.
They drank one more pitcher of beer and left the Eagles Nest at 9:50 p.m. Mizerik said Breton stopped at the Beach Bar around 10 p.m. to ask her out, but did not drink.
She said he did not appear drunk. Several others who encountered Breton that night -- including former Fire Chief Mike Hendges and his former youth hockey coach, Robert Potts -- said they did not think he was intoxicated.
A toxicologist for the plaintiffs stated in depositions Breton drank up to 25 drinks, and that would have affected his central nervous system. He would have shown visible signs of drunkenness, the doctor said.
"The standard to rebut the presumption is the presentation of competent and credible evidence that it was more probable than not that Mr. Breton was visibly intoxicated when he was served at defendant's bar," the appeals court ruled.
The Court of Appeals reversed Schmucker's dismissal and remanded it back to Jackson County for trial. A jury can decide when Breton was served and whether he likely appeared drunk.
John Ketzler, a Sterling Heights attorney representing the parents of the other victim, Adam Kuenner, said it is significant that the appeals court ruled circumstantial evidence can overcome the presumption rule.
Circumstantial evidence Ketzler has offered includes statements that Hendges, after the crash, discovered Marsh drunk at his home, and that Marsh's wife tossed him out of the house that night for being drunk.
"She knew he was stinking drunk," Ketzler said.
James and Susan Kuenner consider the Court of Appeals decision a win for their cause to curb drinking and driving.
"Our goal was accomplished," said James Kuenner, who along with his wife became an anti-drunken-driving activist after their son's death. "The published decision will be used to guide future cases, and will put more responsibility on establishments that serve alcohol."
Susan Kuenner decorated her truck with the pictures of the boys and a message that a drunken driver killed them. It is her mission to shock motorists into not drinking and driving.
Especially troubling to the Reeds and Kuenners was the fact that Breton was a firefighter who saw the dangers of drunken driving firsthand at the scene of car crashes.
An expert for the defense testified in depositions that Breton drank up to 25 beers in nine hours, and had a dozen drinks in his system when his truck crossed into the southbound lane that night. His blood-alcohol level was 0.215 percent -- more than twice the legal threshold.
Reed and Kuenner, both popular Addison High School seniors, had traveled to Jackson with another carload of friends to see a movie, but ended up shopping. Kuenner was driving the second of two cars bound for Addison.
It was track season, spring and the warm-and-fuzzy period when seniors bask in the smorgasbord of life choices.
Breton, meanwhile, was driving from Clark Lake to Jackson, apparently to his home on the west side of town.
At a quarter mile south of Hart Road, in a flat, open stretch of road, Breton's truck veered into the southbound lane at ferocious speed. The first driver in the Addison group was able to bail into the ditch. Kuenner had no time to react.
The vehicles collided and burst into flames, charring all three occupants. Friends of Kuenner and Reed sobbed in the glow of the fire, unable to help.
Anyone who drives U.S. 127 south of Jackson knows well the memorial site with two crosses and a message: A drunk driver killed our boys.
The Reeds and Kuenners were devastated, as were the Breton family, his friends and fellow Summit Township firefighters. Numerous witnesses can vouch for Breton's character, but that is not the issue.
"The drunk driver is ultimately responsible," Hurst said, "and so are the people who should have known better than to serve him."
Curtis Breton finished his firefighting job at 7:30 a.m. on April 20, 2001, and went on an all-day bender, drinking up to a case of beer.
At 10:11 p.m., while speeding 100 mph, he killed himself and two teenage boys in a fiery, head-on crash on U.S. 127. Blood tests indicated Breton was drunk.
Every car should have a mandatory breathalizer to start up.
First the Liberals sued tobacco companies because smokers didn't want to take responsibility for their actions.
Then the Liberals sued gun makers because criminals didn't want to take responsibility for their actions.
Then the Liberals sued fast food businesses because fat people didn't want to take responsibility for their actions.
And now the Liberals are suing bars because drunk people don't want to take responsibility for their actions.
Next up: Liberals will start suing car manufacturers because reckless drivers don't want to take responsibility for their actions.
It's time we destroyed this Leftist malaise while it can be stopped. God help us if it advances beyond its present level of sheer insanity.
You know, I bet you are right. What are bars (or restaurants that serve alcohol, for that matter) supposed to do if someone comes in sober, and they ultimately cut him off when s/he appears drunk? Are they responsible? Don't get me wrong...drunk drivers...well, let's say I have no polite words for what I think of that. I still believe in personal responsibility, and holding tavern owners responsible in the scenario I brought up makes me pretty mad. Serving someone who comes in drunk, just to make a buck is pretty irresponsible, and probably should be punished in some way, though, imo.
Go to liquor store, buy drink of prefrence. Immeadiatly drive to your house, give car keys to wife, sit on your front porch or whatever, then drink to your hearts content. This has worked for me. I do it a couple of times a year. Labor Day, Memorial Day, Fourth of July,( If not on duty that day or the next) If you go out to a holiday party, don't drink-saves a lot of trouble. Wait until you get home for the night.
It's essential that the next SCOTUS put "personal" back into personal responsibility.
Had a local pub here get sued over a guy who only blew .06 after 2 beers and had a wreck. Legal limit=.08. Owners eventually won, but it broke them.
Nobody forces an individual to drink. If the individual isn't staggering drunk how can a bartender be expected to evaluate the degree of intoxication if the individual had arrived late or not consumed a few drinks in their presence? Does the bartender have to monitor every patron, prior to serving, to establish if they are driving or arrived by cab or bus or afoot? Does a walking drinker get served more drinks than a driving drinker. A bartender just serves alcohol as a job. They are not psychologists or counselors or whatever. Just because a person was placed at a particular location does not establish behavioral evaluation. A busy bartender serves multiple patrons and has no way of knowing how many drinks were consumed (if any) prior to a patrons arrival.
It is unfortunate people were killed however, but what ever happened to personal responsibility? Is it all about getting money to make things better? I do not condone drunk driving. But placing blame on several establishments over a period of many hours goes way to far.
how about forming a group called: Mothers FOR Personal Responsibility
The enablers excuses seem to work well for trial lawyers
.
"...the warm-and-fuzzy period when seniors bask in the smorgasbord of life choices."
Ack! Block that metaphor!
Suing the liquor stores is the next step. Shouldn't they be able to recognize habitual alcoholics (e.g., repeat customers)?
A man walked into a bar holding an alligator. He asked the bartender, "Do you serve lawyers here?" The bartender said, "Yes, we do!" "Good," replied the man. "Give me a beer, and I'll have a lawyer for my alligator."
I used to work in a restaurant/bar. Its often tough to tell when someone is having a good time vs. being drunk. This is especially true when you have a group of people, getting served pitchers of drinks, with lots of laughing and horsing around. This is putting way too much burden on the often overworked, servers. Are they supposed to have masters degrees in psychology, with hidden cameras monitoring the customers? Also, who is going to want to frequent a bar staffed by safety Nazis? No fun of any kind.
Exactly, Mr. Ex is a manager for a popular area bar and grill...we actually had a discussion about this very topic the other night. Course, MR. Ex doesn't drink much, and so has no problems stepping up to cut someone off if they are giving the wait staff a hard time. They work too hard to put up with that kind of nonsense. I should know, I used to be a cocktail waitress back in my early 20's. I have unpleasant memories from having to cut people off...thank goodness I had bouncers to back me up. Cutting folks off can be downright scary sometimes when you're dealing with someone who is belligerent and ticked off because they're "just having a good time".
I'm with you guys on this one. Thats why I think bars should offer greater incentives for those of us who are designated drivers.
What did I get for being the designated driver last night? I got to pay almost 2 bucks for every Pepsi I drank and 6 bucks for a burger. Then I got a hassle from the owner for pointing it out.
Hmmm...I'll have to take that one up w/ Mr. Ex...I don't know what his place's policy is, but it sounds like a good idea to have your drinks free. Sorry, but I don't think you should eat for free, though. That would be something you should take up w/ your dinner companions. :)
"That would be something you should take up w/ your dinner companions. :)"
That's true. Most bars do let me drink freebie Pepsi, and a couple of the bartenders who knew me from my drinking days do give me a break on the food. Think I'll take that up with the drinkers that I drive around next time.
I used to know of a couple of places where the designated drivers ate and drank free. I don't know of too many places that have that practice anymore.
But it was definitely an incentive for DDs. A group of us would take turns at being the DD when we would all get together.
And so what types of machines or detection equipment are the trial lawyers or the gov. going to buy for the bars?
It is tragic when an accident like this happens,and about as tragic when innocentpeople are blamed for it and thier livlehood taken away.
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