Boston Accident Lawyer Blog

In my previous post on this topic, I discussed a recent case involving Massachusetts liquor liability, and what that kind of case consists of. Now I’ll explain why a bar or restaurant can be held liable if a patron who becomes intoxicated at that restaurant, later injures someone as a result of that intoxication.

Legal liability in a case like this arises from the negligence of restaurant management in failing to adequately hire, train, and monitor the skills and activities of its servers and/or wait staff who serve alcoholic beverages. If the restaurant management in this case had properly hired, monitored and supervised the waitress involved, they would have seen that this waitress was deliberately ignoring the restaurant’s legal duty to spot and prevent patrons from being served too much alcohol, and the resulting Massachusetts car accident and injuries suffered by the plaintiffs here, would not have occurred. The legal argument used by this plaintiff (and similar plainitffs,) is that the restaurant management: 1) Had a legal duty to prevent patrons from becoming overly-intoxicated at its establishment (accomplished through appropriate enforcement of the highly effective TIPS program); 2) That the restaurant management “knew or should have known” that if it did not hire adequate personnel and monitor its wait staff for compliance with this program, one or more patrons would become excessively intoxicated and very possibly cause injuries to third parties – in essence, that the accident was “foreseeable”; 3) That such an accident or injuries did occur, and that it occurred due to the intoxication of that customer; and 4) That the plaintiff(s) suffered damages as a result.

As to exactly how a skilled plaintiff’s attorney proves to a jury that negligence occurred, a variety of techniques can be used (depending, of course, on the expertise level of the attorney representing you.) In this case, the attorney for the plaintiffs was prepared to call an expert witness – a medical biochemist - to testify as to what the expected – and observable - signs and symptoms of intoxication would have been in this case, and the plaintiff was also prepared to call an expert consultant who was a certified TIPS trainer. That expert would have testified that this bar's policies and procedures in monitoring and enforcing the TIPS program were lax and inadequate. Further, as to evidence, the plaintiff’s attorneys fought very hard to find and secure the bar receipt for the customer who later engaged in drunk driving and caused this accident, which the restaurant did everything they could to hide. That receipt showed that the waitress involved, received a $100 tip for a $50 bar tab from the defendant driver. This was key to establishing the restaurant’s negligence in failing to monitor the skill level and TIPS enforcement pattern of this waitress. If a jury ever saw this receipt, and saw the financial ‘reward’ given to this waitress for over-serving this drunk driver, it would have been devastating to the defense and to the restaurant.

In the end, the defendant restaurant opted to avoid a trial (a smart move on their part,) and the case settled for $1.9 million. This case illustrates two key things to remember: 1) In Massachusetts, bars and restaurants can be held liable for injuries or death to third parties caused by its customers who become intoxicated at their establishments, and then drive drunk; 2) When choosing a Norfolk County Massachusetts personal injury lawyer, who you choose is critical. If your lawyer doesn’t have the experience and skill to know how to get results in these types of Massachusetts personal injury cases, you may well not get very good results. It takes, experience, expertise, and skill to bring defendants in personal injury cases, to pay adequate damages when they’re legally responsible for causing someone else’s injuries. We know how to get those results. Call us for a free consultation if you, a loved one, or someone you know has been injured due to someone else’s negligence.

A recent case settlement in the area of liquor liability, shows that despite improvement in recent years, there are still bars and restaurants that continue to negligently serve alcohol to intoxicated patrons, when they clearly shouldn’t be doing so.

This recent case involved serious injuries that two female drivers sustained in a Massachusetts car accident when the pickup truck they were traveling in on Interstate 95, was rammed from behind by a drunk driver. The vehicle in which the two plaintiffs were driving was caused to roll over several times before coming to rest on its side, and the occupants sustained serious injuries. The driver of the pickup, 29, suffered multiple rib fractures. The 32-year-old passenger suffered a severe open fracture of her right tibia and fibula, and required several surgeries for the surgical implantation of a metal rod. The offending driver was arrested at the scene, but refused a breathalyzer test, and therefore, no blood alcohol test was resultantly available to introduce as evidence that this driver was intoxcated at the time of the accident, at either the criminal, or civil trial which the plaintiffs instituted against the defendant for monetary damages. Notwithstanding, at deposition during the litigation of the civil case, (note: for obvious reasons, this defendant never would have admitted the following at his criminal trial, but in the civil trial, it was the bar that was the party really "on the hook" not him,) the defendant driver testified that he has consumed approximately 12 beers and four shots of liquor at the bar he was drinking at on the evening in question. That’s damaging evidence enough of negligence against the bar, but it gets worse: Evidence in the form of bar receipts – which the bar did its best to conceal from the plaintiffs’ attorney – showed that the waitress who served the defendant all these drinks, was given a $100 tip for doing so (in other words, for not “shutting off" the customer).

So where does this liability for personal injuires come from, what is it called, and why should the bar owners be held liable for the actions of an irresponsible and greedy waitress? All good questions. First, this type of civil liability – popularly known as liquor liability but known within the legal profession as “Dram Shop Liability” (the term comes from historical case law) – arises from the legal duty that a restaurant, bar or tavern owner owes to its patrons as well as to members of the general public, to train, supervise and monitor its bartenders and wait staff in the responsible practice of serving alcohol. That training, almost universally provided under an industry program known as TIPS (for Training for Intervention ProcedureS.) TIPS is a nationwide program used almost universally in the restaurant and bar industries, to educate and train servers and wait staff in the responsible service, sale, and consumption of alcohol. The whole point is designed to prevent negligence and resulting personal injuries that may follow from patrons becoming overly intoxicated.

The focus is designed to enable bar and wait staff to be able to quickly spot intoxication, and prevent excessive drinking, underage drinking and drunk driving by patrons of the establishment. Importantly, though, bar and restaurant owners are repeatedly warned that a one-time training session for wait staff – not followed up by continual monitoring by restaurant management in the skill or compliance level of its servers – will not be effective in minimizing the chance that a patron may be served too much alcohol. Continuous observation of the wait staff by restaurant management is critical to the program’s effectiveness. If servers aren’t continually watched and monitored by restaurant management for enforcement of the program’s goals, it simply won’t work. Seeking higher tips from “satisfied” customers, bartenders and wait staff are likely to “look the other way” – and that’s exactly what happened in this case. With a ‘wink and a nod," the waitress serving this intoxicated patron kept serving him (over 12 beers plus hard liquor) and in return received a $100.00 tip on $50.00 bill. That patron then went out, drove while intoxicated, and almost killed two innocent people. Given the high number of fatalties caused by drunk drivers, these two people are quite lucky they survived.

I’ll explain why the restaurant was legally liable for the injuries that resulted when this patron then drove drunk and injured the plaintiffs, in my next post.

File this new development under “Solve One Problem; Create Another.” For years, car manufacturers have tried to make their vehicles operate as quietly as possible. Helps keep noise pollution down, and helps maximize the sounds produced by the internal audio system, right? Those efforts usually revolved around minimizing engine noise in the only real engine most people had ever known – the internal combustion engine. But along the way, and somewhat unexpectedly, came the hybrid gas-electric engine, and with it as new phenomenon: A completely silent car when "on" but not moving, or moving at slow speeds (usually under 15 MPH.)

What’s the problem? When hybrid cars are “idling” at a stop sign, or moving but at speeds usually less than 15 MPH, they are powered by the hushed electric motor of the electric-gas hybrid. The gasoline-powered engine only kicks in when speeds exceed 15 MPH – at that point, the engine produces sound similar to most car engines you now hear. It doesn’t take a genius to see the trouble here: More motor vehicle accidents and injuries when hybrids are at stop signs, or moving slowly. Since a great majority of these types of motor vehicle accidents will happen when cars have been stopped at intersections or moving slowly in parking lots, a great many of them will likely involve pedestrians. By the way: Don’t be fooled into thinking that a pedestrian can’t be hurt that badly by a motor vehicle traveling at 15 MPH or less. Trust me: A person can be killed or seriously injured when hit by a car traveling at even 10 MPH. I’ve seen it before: Horrific injuries involving paralysis, even death.

This is no small problem. As hybrids proliferate and major auto manufacturers prepare to launch battery-electric only vehicles (even more silent than hybrids,) many see the growing injury threat to pedestrians. To deal with this unexpected problem, automotive engineers are researching how they might actually add some noise back into the hybrid models now being manufactured. But how to do this without re-creating the noise-polluting car engines that most people always hated? Nissan is now developing the “Leaf”, their version of an all-electric (vs. hybrid) car, and they’ve recently tested some of their ideas for “artificial” noises to officials at the National Highway Traffic Safety Administration, as well as focus groups. Some possibilities? A Chime; a melody from a popular song; even possibly a futuristic “whirring.” There is also some talk that Congress may issue a measure requiring vehicles to produce "non-visual" warnings to pedestrians. Cars such as Tesla's Roadster, Nissan's Leaf and General Motors' Volt, will depend entirely on battery electric power, and may be even quieter than existing hybrids.

Advocates at the National Federation of the Blind, which has understandably raised this safety issue with automakers and government officials, have suggested that electric cars make sounds similar to those of gas-powered cars. According to John Par, director of strategic initiatives for the group, "Society is conditioned to that sound..” Others are concerned that if a variety of different noises are allowed, electric cars could merely add another element of noise to the typical urban cacophony. Obviously, a universally workable solution to the problem isn’t easily found. But Fisker Karma, a luxury electric vehicle, will reportedly feature an integrated audio system that will both alert pedestrians as well as give the car a "distinctive audio signature" that will be "reflective of the car's advanced technology," according to a spokesman.

Surprisingly, spokespersons at Tesla say the company has no intention of incorporating "fake noises” into their vehicles. The company is known for manufacturing the completely electric Roadster, a $109,000 luxury product that is popular with eco-conscious celebrity customers. My opinion as a Boston car accident lawyer: Let a few catastrophic injury lawsuits be filed against them, let a few juries decide that their intentional decision to make these vehicles completely undetectable to the ear was negligent and irresponsible, and they’ll change their minds fast. As they should.

Producing an eco-conscious car is great. Doing it in a way that increases the likelihood of often serious injuries or deaths to innocent pedestrians (as Ford did in the 1970’s with the infamous Pinto,) is negligent and irresponsible.

Note to Tesla and other similarly-minded auto manufacturers: Wake up and hear the engine. (Even just a little.)