Plan B Forum

This is like a question on the LSAT -- pick out the least wrong answer, or in this case, the least bad actor.

In a highly unusual case, a drunken driver who was struck by another drunk driver is suing that driver for $1.6 million.

Sarah Grace Anderson had a blood alcohol content of .11 percent when Nathan William Wisbeck, who had a blood alcohol content of .19 percent, ran through a stop sign in Southeast Portland and struck Anderson's minivan at about 2 a.m. on May 26, 2013. The legal limit for driving is .08 percent.

Anderson, 29, suffered some broken bones and other injuries. Her passenger, Stephen Alan Person, died. He was 28.

The suit, which was filed Monday in Multnomah County Circuit Court by Portland attorney Ryan Hilts, doesn’t mention that Anderson was intoxicated -- although the suit does correctly state that Anderson had the right-of-way. She pleaded no contest last year to driving under the influence of intoxicants, and was allowed to enter a diversion program.

In an added twist, Anderson is also suing a sober driver, Sapearya Sao, whose Toyota Corolla had been struck by Wisbeck a minute or so before she was struck. Sao called 9-1-1, reported Wisbeck’s license plate and chased Wisbeck for about a mile -- even though a 9-1-1 dispatcher told Sao to stop chasing Wisbeck, according to a defense attorney and the lawsuit. But Sao, then 25, remained hot in pursuit of Wisbeck.

Wisbeck, then 26, later told authorities that he was speeding -- police say 50 mph in a 25 mph zone -- because he wanted to get away from Sao. As Wisbeck’s GMC Sierra truck blasted through a stop sign at Southeast 20th and Madison Street, he struck Anderson’s Ford Windstar.

Wisbeck also suffered injuries -- including a black eye -- in the second crash. But most of his wounds were sustained as he sat in his wrecked truck and three men walked up to him and punched him more than 10 times in the head, according to witnesses.

Wisbeck was sentenced in January to 7 ½ years in prison, and his driver’s license was revoked for life. He pleaded guilty in Multnomah County Circuit Court to second-degree manslaughter, third-degree assault, hit-and-run driving and driving under the influence of intoxicants.

During the January hearing, Wisbeck apologized and said he wakes up every morning in shame because of what he did. He also listened to seven relatives and friends of Person speak about their loss.

Among those who spoke was Anderson. Anderson said she struggled to find an answer “in facing death with someone and then being allowed to live. ...I don’t know why, why did I live?”

She said although it felt trivial to talk about it, she lost her job and her health insurance.

Anderson also is suing Sassy’s Bar & Grill and the Triple Nickel Pub, where Wisbeck had been drinking before the crash. The suit faults employees at both establishments for allegedly serving Wisbeck when he was visibly intoxicated, which if found to be true, is a violation of Oregon law. The suit also faults the bars for allegedly failing to stop Wisbeck from driving off in his truck while drunk.

Anderson’s suit seeks $100,000 for her medical expenses, and $1.5 million for her pain and suffering.

-- Aimee Green

http://www.oregonlive.com/portland/inde ... _drun.html

Well, I would hope that one's relative state of inebriation would be only one factor that the Finder of Fact would consider in determining who is at fault. It is entirely possible for a drunk, or someone driving on a suspended license, or a 12-year-old, could be involved in an accident and be completely without fault.

But I ain't no litigator, so that's only my uninformed opinion.

I've seen worse fact patterns. This one is actually pretty easy to sift through, though it presents numerous issues.

As a threshold matter, driving under the influence is a traffic offense, but it is not necessarily negligence per se (although it may be evidence of negligence). And even if it were automatic negligence to drive with a BAC over .08 (or at any level), negligence is only half the story; there has to be some injury that was actually caused by that negligence. You can be as negligent as you want all day long, but if it does not cause any injury, you've got no liability to anyone.

At first glance here, Anderson's intoxication has little apparent causal relation to the accident in which her passenger was killed. She had the right of way to enter the intersection and was evidently not speeding or otherwise operating the car in a reckless or careless manner. However, right-of-way does not give you license to ignore whatever else may be happening on the roadway. With some very finely tuned expert testimony, you might be able to show that Anderson's intoxication distracted her and slowed her reaction time, and but for the effects of alcohol she could have avoided the accident or at least lessened its severity.

Wisbeck, whose truck struck Anderson's minivan, has all kinds of negligent conduct going for him, all of which were likely substantial contributing factors to the accident. He was intoxicated, he was speeding, he ran a stop sign, and he was fleeing a prior accident. He knew or reasonably should have known that someone would likely be injured by his conduct, and in fact Anderson's passenger was killed and she was injured in the resulting collision.

But Wisbeck was helped along his way to disaster by one or both of the bars at which he had been drinking and by the idiot who was pushing him into a high-speed chase. Given his blood alcohol content, Wisbeck was most probably visibly intoxicated while still being served at the bar. Under most states' "dram shop" laws, any drinking establishment that served him while he was visibly intoxicated is responsible for the subsequent injury he causes. "Visible intoxication" is the somewhat arbitrary line at which the law deems a person to be no longer able to take responsibility for his actions.

The three guys who punched Wisbeck in the head are a red herring as far as the MVA case goes, but there are definitely assault charges waiting if they are identified.

It seems to me that the real questions in this case are 1) in what respective percentages will liability be apportioned among the drivers, and 2) whether Wisbeck's liability will have to be totally absorbed by the bar or bars that served him while intoxicated, effectively giving him a pass for getting drunk and causing a fatal MVA, but providing a more solvent source for compensation of his victims.

BTW, I'd take Anderson's case in a heartbeat.

The deceased passenger (whose only fault in this scenario was the bad judgment of getting in a car with a drunk driver) clearly has a claim against everyone, through his estate. The driver, Anderson, who was drunk driving, is not a sympathetic plaintiff, especially with respect to the pain and suffering damages (I'm sure her insurer would be happy to collect the medical damages from one of the other tortfeasors). So, she has an uphill battle convincing a jury that she should get anything beyond her medical damages.

Plus, where is the recovery going to come from? The deceased has probably already tapped out the auto insurance policies of the main culprit (Wisbeck) and the pursuing idiot (Sao), and any disposable assets. This leaves the two bars where Wisbeck did his drinking. Anderson has to show by clear and convincing evidence that each bar served Wisbeck while he was visibly intoxicated. The first bar almost certainly wins as it will be harder to show he was visibly drunk there. This leaves only the second bar to try to recover from. Again, the deceased may have already recovered from that bar's insurance, and since these are not highly lucrative entities which have lots of assets to attach, there may not be a lot to get. But most cases settle and all of the facts often aren't reported since they might get in the way of a good story, so who knows.

Well I guess it depends on the type of insurance, but most auto liability policies have two limits, one for a single victim and the other for multiple victims, so adding Anderson opens a bigger well of money. Add to that anyone having an umbrella policy and there may be some pretty deep pockets. And, FWIW, wrongful death damages in auto accidents are usually far more limited than injuries, especially permanent ones, as pain and suffering damages for people dying quickly are usually low.

As for Anderson being an "not a sympathetic plaintiff", I would think a lot of jurors would differentiate between a blood alcohol level of .11% and .19% (nearly 2.5 times the legal limit) (not to mention reckless driving and fleeing the scene of an accident), and the reckless driving of the idiotic chase; taking into account that Anderson appeared to be in the right (or at least have the right of way), I think it likely a jury would find for her and award her damages.

Tough to prove that the person was 'visibly drunk' when they were served unless you have reliable witnesses to corroborate. It would depend on the size of the person and what the timing was for their alcohol consumption as well as the timing for the BAC testing. Most people at .1 are not sufficiently impaired so that it is, or ought to be, obvious to someone physically and mentally engaged in a different task such as serving in a restaurant/bar. And it takes time for additional alcohol to be absorbed and be effective so they could easily have served 4 more drinks which would put a petite male Portlander* over 0.19 g/Dl .


yrs,
rubato

* They big in Portland. Real big. The Kaiser Hospital nurses up there call a 250lb pregnant woman a "Kaiser Small".

Long Run wrote:The driver, Anderson, who was drunk driving, is not a sympathetic plaintiff, especially with respect to the pain and suffering damages (I'm sure her insurer would be happy to collect the medical damages from one of the other tortfeasors). So, she has an uphill battle convincing a jury that she should get anything beyond her medical damages.

It is not at all certain that a jury would ever hear anything about Anderson's alcohol consumption if the case were to go to trial. As I said above, unless there is expert evidence that her BAC was actually a substantial contributing factor in causing the accident, it would be irrelevant to any issue of fault, and any reference to it would be excluded from evidence as its prejudicial effect would outweigh any probative value. Even if Anderson's alcohol consumption were to come in, its effect could be minimized by comparing it to the other much more significant factors causing the accident, and making the argument that the truly culpable parties were blaming the victim for their own negligence.

Long Run wrote:Plus, where is the recovery going to come from? The deceased has probably already tapped out the auto insurance policies of the main culprit (Wisbeck) and the pursuing idiot (Sao), and any disposable assets.

This is the second tragedy of far too many personal injury (especially auto) cases. Too many people carry minimal coverage that is nowhere near sufficient to pay for medical treatment, let alone compensate for even the most common injuries. I see Oregon has a 25/50 mandatory minimum auto liability insurance requirement (i.e., $25,000 for injury to one person, $50,000 total per accident), which is marginally better than my own state's 15/30 limits, but Oregon PIP (medical expense coverage) is only $15,000 -- an amount easily exhausted by a single surgery (in NJ, our standard PIP coverage is a more reasonable $250,000).

Long Run wrote: This leaves the two bars where Wisbeck did his drinking. Anderson has to show by clear and convincing evidence that each bar served Wisbeck while he was visibly intoxicated. The first bar almost certainly wins as it will be harder to show he was visibly drunk there. This leaves only the second bar to try to recover from.

Why do you assume that? I don't see any mention anywhere in this story about when he was at either bar or how much alcohol was consumed at each. It could be that he spent several hours or more at Bar #1, got stinking drunk there, and then staggered over to Bar #2 where he was served only one drink before heading out on the road.

I have tried dram shop cases. The most important thing to establish is the time the person left any/each drinking establishment and the time the BAC was measured. Everything else can be filled in with expert toxicology analysis to show when, within a 10-minute window along that timeline, a person would have exhibited visible intoxication. If you can then show that he was served in or after that window, you have proved the case. (Oregon for some reason has a "clear and convincing" standard of proof for dram shop cases; I don't see why bar owners should be entitled to this extra defense to liability for their own negligence that no one else gets. Here in NJ it's the ordinary "preponderance of evidence" standard, or "more likely than not.")

Long Run wrote:Again, the deceased may have already recovered from that bar's insurance, and since these are not highly lucrative entities which have lots of assets to attach, there may not be a lot to get.

In my experience, many bars -- especially when part of a restaurant and/or owned/operated by professionally managed business entities -- have significant liability insurance coverage, generally in the multiple millions of dollars. The liquor license alone is often very valuable, and other business assets and real property can add up.

Big RR wrote:And, FWIW, wrongful death damages in auto accidents are usually far more limited than injuries, especially permanent ones, as pain and suffering damages for people dying quickly are usually low.

While that is sometimes the case, there would likely be a very substantial economic loss claim here. Because the decedent was only 28, in rough numbers he had a work-life expectancy of another 37 years; if he were making $50,000 a year, even with no prospect for real increase in earning capacity (net of inflation), that's still $1.85 million in economic damages alone.

rubato wrote:Tough to prove that the person was 'visibly drunk' when they were served unless you have reliable witnesses to corroborate. It would depend on the size of the person and what the timing was for their alcohol consumption as well as the timing for the BAC testing. Most people at .1 are not sufficiently impaired so that it is, or ought to be, obvious to someone physically and mentally engaged in a different task such as serving in a restaurant/bar. And it takes time for additional alcohol to be absorbed and be effective so they could easily have served 4 more drinks which would put a petite male Portlander* over 0.19 g/Dl .

As I noted above, you don't need a "reliable witness to corroborate" visible intoxication when you have expert testimony, although it's certainly helpful. The reality is that no server is going to admit that s/he served a visibly intoxicated person, and his drinking buddies (if any) would not be likely to admit they let their visibly intoxicated friend drive off to cause death and mayhem. Further, people in the bar/restaurant industry are or should be trained with respect to alcohol service, particularly in monitoring the number and type of drinks served and actively looking for signs of intoxication in patrons. If they are not adequately trained, or failed to recognize the signs that science tells us were reasonably certain to be there, then that is an added element of negligence on their part.

Everything else can be filled in with expert toxicology analysis to show when, within a 10-minute window along that timeline, a person would have exhibited visible intoxication.

If you won with that, then I can only assume that you were up against some pretty poor lawyers...

Expert testimony on this can cut either way. A decent lawyer would bring in expert testimony to show that a long time heavy drinker, ( and I'm sure they'd have people to come into to testify that this guy would qualify in that category) wouldn't necessarily show visible signs of intoxication with a .19 BAC, especially in the casual atmosphere of a bar setting. (It's not like they're administering sobriety tests.)

Eyewitnesses on both sides would also likely be a wash, since they could all probably have their testimony impeached based on their own relative levels of impairment, (since they were all sitting in a bar drinking: "And how many drinks had you had? And how good was the lighting? And how noisy was it? And how close were you sitting to the defendant, and how closely were you observing him?")

Sure if the guy was so falling down drunk that everybody noticed, that would be one thing, but that's highly unlikely. (For one thing, bartenders rarely serve additional drinks to people that clearly inebriated, or who are causing a noticeable scene.)

It's just *so* easy to play a lawyer on the internets . . . .

One of the first things you learn, in actual practice, is not to speculate or make assumptions. You establish the actual facts, and work with what you've got.

Good advice Guin...

I hope Sue's listening....

I wasn't referring to Sue's comments.

I don't know why not...

She's engaging in pure speculation regarding the facts of this case as much as I am.

Jim, I'm not speculating on the facts in this case; I'm merely outlining the way such a case would be litigated. And in case you missed it, I have litigated these cases, and actually tried two of them (one win, one loss).

In the case I lost, the drunk driver was in fact a long-time (>30 yrs) alcoholic, and one of the defenses was that he had a "high tolerance" and/or was practiced at masking his symptoms. My alcohol expert was able to account for those variations very well. I think I lost because on the timeline issue we could only just barely squeeze him into the visible intoxication window for his last drink, and at that point it was a difficult fact issue as to whether he was actually showing the signs before he was served. I think the jury gave the bar the benefit of the doubt, because it was a popular and rather upscale local restaurant rather than a "problem" bar in the community; it was easier to pin all the blame on the drunk.

As an aside, my go-to alcohol expert is a dead ringer for Christopher Walken. I don't know if that is a plus or minus.

One word:

Cowbell

And in case you missed it, I have litigated these cases

No, I didn't miss it at all; hence my first comment:

If you won with that, then I can only assume that you were up against some pretty poor lawyers...

I'm not speculating on the facts in this case;

Well that's funny, because to me your post looks chock-a-block with speculation; here's just one example:

It could be that he spent several hours or more at Bar #1, got stinking drunk there, and then staggered over to Bar #2 where he was served only one drink before heading out on the road.

And regarding the case you lost, you appear to be speculating there as well, when you assume that the "high tolerance" argument didn't play a role in the jury decision. Unless you spoke with the jurors, which from what you wrote doesn't seem to be the case:

In the case I lost, the drunk driver was in fact a long-time (>30 yrs) alcoholic, and one of the defenses was that he had a "high tolerance" and/or was practiced at masking his symptoms. My alcohol expert was able to account for those variations very well. I think I lost because on the timeline issue we could only just barely squeeze him into the visible intoxication window for his last drink, and at that point it was a difficult fact issue as to whether he was actually showing the signs before he was served. I think the jury gave the bar the benefit of the doubt, because it was a popular and rather upscale local restaurant rather than a "problem" bar in the community; it was easier to pin all the blame on the drunk.

Lord Jim wrote: Well that's funny, because to me your post looks chock-a-block with speculation; here's just one example:

It could be that he spent several hours or more at Bar #1, got stinking drunk there, and then staggered over to Bar #2 where he was served only one drink before heading out on the road.

That was not speculation; that was positing an alternative explanation to Long Run's speculative presumption that "[t]he first bar almost certainly wins as it will be harder to show he was visibly drunk there. This leaves only the second bar to try to recover from." My whole point was that there was nothing in the article to suggest either as the actual truth.

Lord Jim wrote:And regarding the case you lost, you appear to be speculating there as well, when you assume that the "high tolerance" argument didn't play a role in the jury decision. Unless you spoke with the jurors, which from what you wrote doesn't seem to be the case

I really don't remember if the defense expert actually tried to make the "high tolerance" argument once we got to trial; as I recall, most of the dispute centered on pinning down exactly when the driver had been served his last drink. Frankly, I remember only that the defense expert was less than impressive all around, and I didn't need to spend a whole lot of time on crossing him. (He was a hired gun flown in from out of state, while my guy has an extensive background as a Rutgers researcher and advisor to various state and federal agencies on alcohol policy.) And you're right, in NJ we're not permitted to speak to jurors after the trial, which I find more than a bit frustrating, since I would love to know what they liked and what they didn't for purposes of future trials. In this particular case, my view was formed by my own impression of how the witnesses were playing, together with the judge's comments after the verdict and, most importantly, the opinions of the court reporter and courtroom deputy.

Sue U wrote: As I noted above, you don't need a "reliable witness to corroborate" visible intoxication when you have expert testimony, although it's certainly helpful. The reality is that no server is going to admit that s/he served a visibly intoxicated person, and his drinking buddies (if any) would not be likely to admit they let their visibly intoxicated friend drive off to cause death and mayhem. Further, people in the bar/restaurant industry are or should be trained with respect to alcohol service, particularly in monitoring the number and type of drinks served and actively looking for signs of intoxication in patrons. If they are not adequately trained, or failed to recognize the signs that science tells us were reasonably certain to be there, then that is an added element of negligence on their part.

That's a good point. There is an education, certification and permit program to serve alcohol drinks in a bar. No guarantee that the educating took, though.

(Oregon for some reason has a "clear and convincing" standard of proof for dram shop cases; I don't see why bar owners should be entitled to this extra defense to liability for their own negligence that no one else gets. Here in NJ it's the ordinary "preponderance of evidence" standard, or "more likely than not.")

Two reasons. The first, is that the taverns are usually the deepest pocket and thus the easiest target, and yet the real culprit is the drunk. Thus, since the plaintiff is going after a secondary cause of the accident, the burden should be on the plaintiff to show that the tavern, which is in the business of serving drinks after all, went beyond the line in serving someone clearly impaired. The second reason is that the restaurant/bar lobby had enough intensity and clout to push this through over the legislative effort brought by the trial lawyers association and other interested parties.

Sue U wrote:"...

rubato wrote:Tough to prove that the person was 'visibly drunk' when they were served unless you have reliable witnesses to corroborate. It would depend on the size of the person and what the timing was for their alcohol consumption as well as the timing for the BAC testing. Most people at .1 are not sufficiently impaired so that it is, or ought to be, obvious to someone physically and mentally engaged in a different task such as serving in a restaurant/bar. And it takes time for additional alcohol to be absorbed and be effective so they could easily have served 4 more drinks which would put a petite male Portlander* over 0.19 g/Dl .

As I noted above, you don't need a "reliable witness to corroborate" visible intoxication when you have expert testimony, although it's certainly helpful. The reality is that no server is going to admit that s/he served a visibly intoxicated person, and his drinking buddies (if any) would not be likely to admit they let their visibly intoxicated friend drive off to cause death and mayhem. Further, people in the bar/restaurant industry are or should be trained with respect to alcohol service, particularly in monitoring the number and type of drinks served and actively looking for signs of intoxication in patrons. If they are not adequately trained, or failed to recognize the signs that science tells us were reasonably certain to be there, then that is an added element of negligence on their part.

You would need expert testimony about the person's appearance when the drinks were served to convict for serving someone who was 'visibly' intoxicated. As I said, the timing of the drinks would make a large difference as well. If the accident occurred shortly after several drinks were consumed the alcohol would be in the process of being absorbed so that the measured BAC 30 min or 60 min later could be significantly different. If he had finished drinking an hour or more before the accident the BAC would go down by ca 0.020 to 0.025 per hour (for a male) so that timing matters. It helps to get the BAC as close to the time of the accident as possible.



yrs,
rubato

Long Run wrote:

(Oregon for some reason has a "clear and convincing" standard of proof for dram shop cases; I don't see why bar owners should be entitled to this extra defense to liability for their own negligence that no one else gets. Here in NJ it's the ordinary "preponderance of evidence" standard, or "more likely than not.")

Two reasons. The first, is that the taverns are usually the deepest pocket and thus the easiest target, and yet the real culprit is the drunk. Thus, since the plaintiff is going after a secondary cause of the accident, the burden should be on the plaintiff to show that the tavern, which is in the business of serving drinks after all, went beyond the line in serving someone clearly impaired. The second reason is that the restaurant/bar lobby had enough intensity and clout to push this through over the legislative effort brought by the trial lawyers association and other interested parties.

The second reason is certainly more likely the case, because the first is just atrocious public policy. If anything, taverns should be subject to lower requirements for proving liability because by definition they are in the business of creating alcohol-related hazards and resultant property damage, personal injury and death. Because of the dangers of alcohol consumption, particularly in conjunction with motor vehicle operation, taverns properly should be held to a higher standard of care. Instead, the Oregon dram shop statute shields them substantially by requiring proof of "visible intoxication" before there can be any liability at all, and further prohibits all liability to the very customers who they get drunk in service of their own profit. Adding a "clear and convincing proof" standard of evidence on top of that is just gilding the lily, giving taverns an additional out for avoiding responsibility for the consequences of their own negligence. It's just perverse.

Further, simply being the "deepest pocket" does not make anyone the "easiest target," or any less culpable for their own actions; any claimant would still have to show a violation of the duty of reasonable care. But if a tavern has substantial liability insurance coverage, it is because it recognizes its actual potential for causing or contributing to serious harm. (By contrast, it is highly doubtful that a cotton candy vendor would require a $10 million liability policy.) Alcohol is not a "secondary" cause of a drunk-driving accident, it is generally the primary cause, and responsibility properly lies with both the person who consumed it and the person who served it. As it is usually understood, the whole point of the "visible intoxication" thing is to set a point at which the drinker can no longer be said to be able to conduct himself with reasonable care, and to impose responsibility for his subsequent actions on the person or entity who got him into that condition. Making it a barrier to liability turns its purpose on its head.