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Top court hears case on bar’s liability

ANNAPOLIS — An attorney for the grandparents of a 10-year-old girl killed by a drunk driver urged Maryland’s top court Tuesday to revive their $3.2 million lawsuit against the Gaithersburg bar that allegedly served the motorist past the point of inebriation and let him drive away.

Attorney John Vail pressed the Court of Appeals to overturn decades of its precedent and rule that bars can be held liable for the death and destruction their drunk customers cause after they leave.

Society has a better understanding of the harm caused by drunk driving than it did 32 years ago, when the court last held that bars were immune from so-called dram shop liability, said Vail, who represented William and Angela Warr. Thus, the court should now hold that bars have a duty “not to serve anyone who is visibly drunk,” added Vail, of the Center for Constitutional Litigation P.C. in Washington, D.C.

But Robert B. Hetherington, attorney for Dogfish Head Alehouse’s owner, JMGM Group LLC, said the high court’s rationale for not holding a bar liable for its customers’ conduct outside the establishment has not changed since its 1981 ruling in Felder v. Butler.

“A man is responsible for his own actions,” Hetherington said.

Any decision to hold taverns liable for their drunk customers’ actions would mark “a sweeping change in the law” and therefore should be made by the General Assembly and not the high court, he added.

“Matters of public policy are generally left to the legislature,” Hetherington said, adding the General Assembly has spoken on the issue by failing to pass legislation in 2011 and 2012 that would have provided for dram shop liability.

Del. Luiz R.S. Simmons, who co-sponsored those bills, said Tuesday that the Court of Appeals is the last hope for dram shop liability, which is “a lost cause in the legislature.”

Lobbyists for bars and alcohol wholesalers and retailers “have effectively stifled any effort toward change and will for the foreseeable future,” said Simmons, D-Montgomery. “There is no stronger lobby down here than the alcohol lobby.”

Forty-three states and the District of Columbia have some form of dram shop liability, although several states limit it to liability for serving minors, according to a tally by Mothers Against Drunk Driving.

At the Court of Appeals on Tuesday, several judges questioned the attorneys as the jurists considered whether to overturn precedent.

Chief Judge Robert M. Bell indicated that Vail’s proposed standard of holding bars potentially liable if they continue to serve a visibly drunk customer patron might be too lenient, as the patron by that point is already inebriated and could cause harm when they leave.

“Does that [standard] make a lot of sense?” Bell asked.

Judge Sally D. Adkins suggested that perhaps the time had come for the court to permit dram shop liability. She noted that in the Warr case, the bar allegedly served the customer about 20 drinks over a period of nearly six hours before letting him drive away.

The alehouse “exercised control when they served him drink after drink after drink,” Adkins said.

But Judge Glenn T. Harrell Jr. said imposing dram shop liability could compel a club that serves a bottle of liquor to a group of customers to keep watch over them to ensure sobriety.

“[Do] you have to surveille that table?” Harrell asked. “[Do] you run in and snatch the bottle away?”

In its lawsuit, the Warr family alleges Dogfish Head Alehouse negligently sold alcohol to Michael Eaton when he was already drunk, then allowed him to drive off in his Land Rover on Aug. 21, 2008.

Eaton — who is not a party to the lawsuit — sped at 100 miles per hour down I-270 in Rockville and crashed into the Jeep Cherokee being driven by William Warr, killing his granddaughter Jazimen, the lawsuit alleges. The crash also seriously injured Warr, Angela, and another granddaughter, Cortavia Harris, each of whom attended Tuesday’s arguments.

“The high-court appeal “is an opportunity to establish what should be in effect,” Warr said after the session in reference to dram shop liability. “It is an uphill battle all the way. The number one focus is the law.”

The Warrs claim Eaton started a tab at 5 p.m. and did not close it until 10:45 p.m., only to begin another one a short time later. Employees refused to serve Eaton after he became aggressive and violent, but they did not stop him from driving away, the lawsuit alleges.

Eaton drove 1,000 feet beyond the crash and called 911 to report he had hurt his arm in an accident. He mentioned no other injuries before ending the call and driving away, prosecutors said in the criminal case against him.

In 2009, Eaton was convicted of vehicular manslaughter and leaving the scene of an accident involving injury. He was sentenced to 20 years in prison, with 12 years suspended, and five years’ supervised probation in July 2009.

On April 29, 2011, Montgomery County Circuit Judge Eric M. Johnson rejected the bar’s motion to dismiss the Warrs’ lawsuit, holding that perhaps the time had come to enable Maryland courts to hold bars liable for the damage their drunk customers cause after they leave.

Johnson, however, granted summary judgment for the bar on Jan. 20, 2012, saying he was bound by the Court of Appeals’ precedent.

Limits on time, distance

The Warrs successfully asked the high court to hear their appeal without having it first considered by the intermediate Court of Special Appeals.

Vail said a bar’s liability for its departed customers’ actions could be “closely circumscribed geographically and in time” to the damage caused by their drunkenness.

Jazimen was killed just about 45 minutes and a few miles after Eaton left the bar, Vail said.

But Hetherington, in urging the high court to hold to its precedent, said a bar’s potential liability for a customer’s acts ends when he or she leaves the premises. While a bar could be held liable for injuries sustained in a bar fight, it cannot be liable for harm caused by a customer who’s gone, Hetherington added.

But Harrell said such blanket immunity might be too great.

“You are arguing for ‘out of sight, out of mind’,” Harrell said.

The high court did not indicate when it will render a decision in the case, Warr et al. v. JMGM Group LLC, No. 57, September Term 2012.