Birmingham Personal Injury Lawyer - intoxicated

Its no "accident" when you run over bicyclists after drinking all night

Danny Feldman — Tue, 25 Aug 2009 12:08:38 GMT

Three cyclists recently were hit and injured in Baldwin County by a 28 year old driver who apparently had been out drinking all night and had yet to go to bed. See article at http://blog.al.com/live/2009/08/two_baldwin_county_cyclists_hi.html. Interestingly, this 28 year old "child" still lived at home with his parents. After the incident, the father of the 28 year old driver issued a statement advising that thoughts and prayers went out to the bicyclists and their families for this terrible "accident." According to the article, the 28 year old driver had been out drinking all night and refused a breath test. A blood test was taken and although results have not yet been released, I believe that there is a very good chance that these tests will show that this young man was drunk when the wreck occurred at 8:30 in the morning.

Staying out all night drinking, then driving around drunk, losing control of your vehicle and then running over cyclists is no "accident." Rather, had one of the cyclists died, which easily could have happened, the case is one of vehicular homicide. Calling something an "accident" when it really is a deliberate action taken without regard for the health and well-being of the general public, cyclists included, really is an attempt to minimize the seriousness of the wrongdoing involved. While it may be true that this motorist did not mean to run over these cyclists, the fact of the matter is he did mean to get drunk; he did chose to stay up all night; after drinking and staying up all night, he did decide to drive his car - consequences be damned.

This case hits close to home in Baldwin County where another young man on two separate occassions separated by only a couple of years, got drunk and killed cyclists. Tragic, but hardly an "accident," especially the second time.

Here in Birmingham, I handled a case 5 years ago where a man, only a few years younger than the one here at issue, and like the one here, still living at home with his parents, went out, got drunk and ran over 3 cyclists on Lakeshore Drive. He fled the scene, dragging one of the cyclist's bikes under his car for more than a mile. His mother made him turn himself in and when he took a blood test a couple of hours later, we were able to determine through expert testimony from a toxicologist, that his blood alcohol level at 7:30 am on a Sunday morning was about twice the legal limit. Discovery revealed that this young man had had a serious of incidents, including arrests and convictions for public drunk, disturbing the peace, DUI's etc. However, each time, his penalty was quite minor, maybe attendance at an alcohol abuse class. Even in the incident described above, he spent only one night in jail because, fortunately, the cyclists involved did not die and they decided not to press assault charges.

I wonder about Mr. Maple, the 28 year old in Mobile. I would be very surprised, indeed, stunned, if he did not have a number of arrests and/or convictions, for DUI and the like. The article states that he was able to leave by posting a $1,000 bail. Has he learned a lesson? Will he quit going out and getting drunk and threatening not only himself, but every other motorist, cyclist or pedestrian that gets in his way? I bet not - and that's too bad for all of us.

Originally posted at InjuryBoard by Danny Feldman

Accidents Caused by Drunk Drivers - Part 3

Jon Lewis — Thu, 30 Apr 2009 09:00:00 GMT

We have discussed various claims regarding drunk drivers. One claim we haven't discussed is called a "Dram Shop" claim. This is a claim against a bar or package store which sold alcohol contrary to the provisions of law. This claim is created by statute and was not allowed at common law. The actual wording of the Alabama statute is as follows:

Section 6-5-71

Right of action of wife, child, parent, or other person for injury in consequence of illegal sale or disposition of liquor or beverages.

(a) Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.

(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.

(c) The party injured, or his legal representative, may commence a joint or separate action against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof.

The statutory language begs the question, "What is disposing alcohol contrary to the provisions of law?" Typically, that means selling alcohol to a customer who is "obviously" intoxicated. This will typically require a witness to testify that he/she witnessed the drunk individual falling over his feet, stumbling, slurring, and/or smelling of alcohol. This is usually the most difficult part of these cases - finding the witness.

These cases can also be proven via the toxicology reports. If the blood alcohol content of the individual was such that he/she would have been falling over drunk in the bar, you might be able to prove the case as well. Although, there is some authority that you would still need a witness.

These cases arise when someone is allowed to get drunk as a skunk at a bar, leave, get in his car, and goes out and kills or injures someone. Additiionally, a claim could arise on behalf of the individual's family members who are dependent upon the person. For example, if Joe Smith gets sloppy drunk at Acme Bar, leaves, and gets killed because his car runs off the road, Joe Smith's children would have a claim against Acme Bar because they relied on Joe Smith for support.

Another method of showing that alcohol was sold "contrary to the provisions of law" is to show that the alcohol was sold to a minor. This is also covered in the Statute:

Section 6-5-70

Furnishing liquor to minors.

Either parent of a minor, guardian, or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority. Only one action may be commenced for each offense under this section.

Many times, minors, the age of 19 in Alabama contrary to most states and 21 for purposes of alcohol sales, are sold alcohol by a package store or bar. These entities have a duty to check the age of the individual and make sure that their employees are properly trained so that they do not sell alcohol to minors. If they do sell alcohol to a minor and the minor is injured or killed, the parents of the minor would have a dram shop claim against the package store or bar.

These statutes were created to encourage the proper sale of alchohol and prevent injury and death. The statutes are penal in nature such that punitive damages are allowed against the seller as a result of their wrongful actions.

In part 4 of this series, I will discuss some issues and flaws with this law. You will be surprised at some of the unbelievable things the State of Alabama allows/encourages.

Do you have any opinions on drunk drivers and dram shop claims? We want to know. Let us have your opinions.

Originally posted at InjuryBoard by Jon Lewis

Accidents Caused by Drunk Drivers - Part 2

Jon Lewis — Mon, 20 Apr 2009 16:18:16 GMT

From a civil standpoint, there are several courses of action you can take in the event you or a loved one are injured as a result of a drunk driver's actions. The first, and obvious, choice is to file a lawsuit against the drunk driver for negligence and wantonness. Negligence involves proving that the drunk driver breached a duty to others sharing the road. Clearly, when one drives under the influence of alcohol, they are breaching a duty to others on the roadways and putting lives in danger.

The second cause of action is called wantonness. Wantonness is

the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty an injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced the injury. Alabama Pattern Jury Instructions 29.00.

In plain English, wantonness is acting in a reckless manner without caring for the health and safety of others. Drinking alcohol and driving clearly meet that definition.

What is the difference between wantonness and negligence? Negligence only allows for compensatory damages - those damages which compensates the injured victim, i.e.: medical bills, pain and suffering, lost wages, etc. Wantonness allows for punitive damages as well - damages to punish the drunk driver for his wanton action.

Another potential cause of action is a claim for negligent entrustment. Negligent entrustment would be a claim against the owner of the vehicle if the drunk driver did not own the vehicle. In that type of claim, you would have to be able to prove that the owner knew or should have known that the driver was an incompetent driver. In such a case, you need to obtain the driving record and the criminal record of the drunk driver. If the drunk driver had had a DUI in the past, the owner should never have let him drive his car.

Finally, if the drunk driver is on the job at the time of the wreck (believe it or not, this happens), the employer will be responsible for the injuries he inflicts. The employer could also have some issues of their own if they knew or should have known that the employee was likely to drive under the influence of alcohol, i.e.: previous DUI's, problems with previous employer, prior warnings, etc.

Another cause of action, which I will addres in Part 3 of this series, is called a Dram Shop action. This type of civil claim is set forth in the Alabama Code. Stay tuned and let us know if you find this information helpful.

Originally posted at InjuryBoard by Jon Lewis

Driving Impaired

Danny Lehane — Wed, 15 Apr 2009 10:54:26 GMT

We all are aware of the 22 year old pitcher for the California Angels who was killed last week by a driver that was intoxicated over three times the legal limit. Sadly, injuries and death caused by drunk or impaired drivers is an all too common occurrence. Inexplicably, people continue to drive despite being intoxicated or impaired. One would be hard pressed to find a more careless and irresponsible action than being in such a condition and (attempting) to operate a vehicle.

I have handled a great deal of injury cases caused by drunk or impaired drivers. While a lot occur later in the night, a great deal of these wrecks occur between 7:00 a.m. and 5:00 p.m. (Frankly, if you are getting high or hammered in the middle of the day, you have bigger issues than being a self absorbed irresponsible driver…but I digress.) The point is there are individuals driving impaired at all hours of the day, every day of the week. We all drive as defensive as we can but when a drunk, impaired, high, etc., driver blows through a red light at 60 m.p.h. and is coming straight at your door, there is not a whole lot you can do.

The solution to this problem falls at the feet of each person. We toughen laws, and people still drive while impaired. The only real solution is to hope that those who operate their vehicles while they are impaired stop doing so before they kill themselves or others.

Originally posted at InjuryBoard by Danny Lehane

Asleep at the Wheel

Jon Lewis — Wed, 04 Jun 2008 14:20:20 GMT

On Monday, June 2, 2008, a horrible collision occurred on U.S. 280 in Mountain Brook. According to the Birmingham News, a 20-year old Auburn University student, Heather Eagan, may have fallen asleep, crossed the median, and killed Mary Anne Blake, the wife of former Birmingham City Councilman, Dr. Jimmy Blake. Miss Eagan was apparently driving back to Auburn from Illinois.

This type of collision shows how dangerous driving can be and what can happen if you lose focus on the road. Falling asleep, using a cell phone, drinking and driving, and violating the rules of the road in general can lead to accidents, injuries, and death. As a result, our system of laws allows for compensation to the victims of these accidents. This type of system not only compensates those who were injured, but it also punishes those who kill others on our roadways (Alabama only allows punitive damages for wrongful death, and look for more information on that in future articles on our site).

We want this system to work so that people will obey the laws and driver carefully. If they don't, there will be financial consequences and, possibly, criminal consequences. When you are on the roadways of Alabama, pay attention and be considerate of other drivers. Driving while drowsy risks other people's lives. Driving while on a cell phone risks other people's lives. Driving while intoxicated risks other people's lives. Is it worth it? Obviously not. All of these things can wait until you are no longer in a moving vehicle.

Originally posted at InjuryBoard by Jon Lewis

Club Liable for Stripper's Car Accident?

Jon Lewis — Wed, 28 May 2008 11:00:00 GMT

This is an interesting case. The Birmingham News reported in its May 27 edition that Patsy Hamaker has sued her employer, the Furnace, as a result of a single car collision which occurred after work one evening. According to the article, the club encourages dancers to increase liquor sales by giving them a percentage of the drink sales. As a result, Ms. Hamaker allegedly became highly intoxicated and was allowed to leave work in that state.

Without knowing more facts, it is difficult to assess whether the Furnace would have liability in this situation. Surely, the club's owners will deny the allegations. Furthermore, even if they agree that they encouraged their dancers to increase drink sales of customers, they will most certainly argue that they do not encourage their dancers to actually drink the beverages and get drunk.

While I would not argue that this is a frivolous case, it will definitely lead to such arguments simply given the facts, and the tort reformers are probably licking their chops. They will argue that the employee should be responsible and not get intoxicated. But, this is a business which allegedly encourages intoxication because it leads to more money. Whether you approve of strip clubs or not, an employer of such a business should never allow an employee to leave work intoxicated. In fact, the employer should have a duty not to allow an employee to leave work intoxicated. This should be the case not only to protect the employee but, also, to protect the other motorists.

Originally posted at InjuryBoard by Jon Lewis