Businesses often wine and dine clients and potential clients for business development and marketing. The wining part of the equation will on occasion lead to some pretty disastrous consequences. The recent New Mexico Supreme Court case of Delfino v. Griffo addressed the responsibility for these consequences under the state‘s liquor liability laws (otherwise known as dram shop laws).

New Mexico‘s dram shop liability laws have been long established. Under the dram shop provisions of the Liquor Liability Act, restaurants, bars, hotels and the like have routinely been held responsible for injuries and other damages resulting from over serving patrons whuch often come in the form of DWI auto accidents. The Act also addresses social hosts such as individuals serving alcohol in their homes. The Delfino case stretched the definition of “social host” to include businesses that entertain clients or associates with alcohol.

Delfino involved several pharmaceutical representatives who wined and dined Alicia Gonzales, a female employee of doctor‘s office, for 8 hours jumping from one bar and restaurant to the next as the Ms. Gonzales became more and more intoxicated. In the end, they gave her a pat on the back, put her in her car and sent her off to collide with a family resulting in the wrongful death of a seven year old boy and badly injuring the other occupants in the car.

The defendant pharmaceutical companies and their employees all claimed and successfully argued at the district court level that the definition of “social host” applied only to the service of alcohol in private settings. The district court agreed that “social host” could not apply to alcohol served in a liquor establishment. Effectively, the district court would have limited liability to the bars and servers of alcohol despite the true source and purpose of the alcohol.

The New Mexico Supreme Court disagreed following the law in numerous other states that hold liable not only the server of alcohol but also the person or in this case the company representatives who purchase the alcohol. The Court stated “We conclude that the Liquor Liability Act permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment.”

The Court agreed with the plaintiff‘s argument that these settings give “special control over their target business related guest…” In other words, the whole point of the exercise is to get the person intoxicated which in this case was quite successful. Ms. Gonzales got in her car over twice the legal limit of alcohol and 14 minutes later killed a young child.

The Delfino case is remarkable as much for the ruling that holds businesses and corporations responsible for long established and dangerous marketing practices as for the fact that each and every one of the three corporate pharmaceutical companies and their employees attempted and were first successful at evading completely their responsibility for the tragedy caused by those practices.

This evasion of responsibility for harms to the innocent is repeated time and time again by corporations each and every day, and as often as not, they are successful. And for holding them responsible, New Mexico has been labeled a judicial hellhole by the U.S. Chamber of Commerce and the American Tort Reform Association. That should tell you all you need to know about corporate responsibility.

DISCLAIMER

In drunken driving auto accidents, liability for the injuries and damages to innocent drivers and/or pedestrians may be spread across several different parties. Some liability is pretty clear under the dram shop liability laws and standard theories of negligence. Other possible avenues for compensation have been made more evident in recent criminal case developments.

Under common law negligence, the drunken driver is obviously liable for injuries and damages caused in a DWI car accident. In fact, the drunken driver may be held liable for punitive damages above and beyond compensatory damages.

Under dram shop laws in New Mexico, it is also clear that the bar or other provider of alcohol may be held liable for injuries and damages suffered as a result of an auto accident involving a drunken patron or guest. Dram shop liability may be imposed on a variety of providers of alcohol including bars, restaurants, retail liquor establishments, social hosts, and even airlines.

These bases for liability have been long and well established in New Mexico. One less common and less clear basis of liability that has arisen recently in criminal DWI vehicular homicide cases is passenger liability. In the case of State v. Marquez, a passenger was convicted of vehicular homicide along with the driver of the vehicle. The facts of the case were rather extraordinary with clearly reckless and dangerous behavior on the part of both the driver and the passenger.

Not every case will involve the level of recklessness and comparative negligence on the part of the passenger as involved in State v. Marquez. However, the question of possible passenger liability under comparative and contributory negligence theories should be addressed in every DWI auto accident. Not all passengers will be held responsible for the acts of a drunken driver.

There are those cases where the passenger may be held partially or even equally liable. After all, it may very well be the passenger that put the driver behind the wheel knowing full well of the dangers to innocent drivers and pedestrians. Liability of passengers for DWI car accidents will be determined on a case by case basis so injured parties should be aware of and explore these possible claims.

DISCLAIMER

New Mexico is home to many Indian Casinos. They are very popular. Like any other business, particularly casinos, there are countless ways for patrons to be injured. When a personal injury occurs at or near an Indian Casino, the first and most important question is whether or not there is sovereign immunity protecting the tribe or pueblo form suit in New Mexico State courts.

For the most part, tribes and pueblos enjoy sovereign immunity against any kind of legal action. This includes everything from personal injury claims to contract disputes. Sovereign immunity means that suits against the tribes or pueblos must be brought in tribal court. This poses a very significant and often overwhelming challenge to plaintiffs.

In case of Indian Casinos or gaming, there is qualified immunity. Under the Indian Gaming Compact, the tribes and pueblos waive immunity for suits by visitors or patrons for personal injuries suffered in relation to the gaming enterprise.

Often times, when personal injuries occur at or near a gaming facility, the tribe or pueblo will attempt to argue that the accident and consequent injuries and damages were unrelated to the gaming enterprise. Many times, the connection is clear such as when a casino patron is injured while gambling at the casino, or while entering or exiting the casino prior to or following gambling activities. However, there is most definitely some gray area.

The New Mexico courts have generally shown great deference to the sovereign immunity claims of the State‘s many tribes and pueblos. The New Mexico Court of Appeals significantly curtailed tribal immunity in the case of Mendoza v. Tamaya Enterprises. This case involved a wrongful death suit against Tamaya by the guests of the Indian resort killed in a drunken driving accident following a wedding reception. There was no indication that the guests were there for gaming purposes but the New Mexico Court of Appeals found that there was no immunity for the tribe allowing the wrongful death suit to proceed in state court. The case is now on appeal to the New Mexico Supreme Court.

The case will have significant implication for guests and patrons of Indian resorts centered around Indian gaming, which is New Mexico is generally the case. As it stands, guests of the many truck stops, gas stations and restaurants adjacent to Indian Casinos face very difficult immunity issues in case of personal injury. Clearly, it is in the tribes‘ interest to extend the reach of immunity to all activities that do not actually occur inside the gaming facility itself.

Indian casino based resorts play host to countless visitors, many of which are there for events other than gaming. The position of the tribes and pueblos would leave little or no recourse for guests injured at weddings, parties, fundraisers, conventions, hotels, and bars on Indian casino grounds. This is clearly in the financial interests of these hugely profitable casino based resorts. Unfortunately, the interests of the visiting public are directly opposed to tribal immunity which will often bar recovery for claims no matter how great the negligence of the tribal enterprise and no matter how great the injuries

DISCLAIMER

Dram shop liability has been pretty clearly established in New Mexico for quite some time. Under the dram shop laws, a bar or restaurant may be held liable for the over-service of alcohol to a patron who later causes injuries and other damages suffered by innocent third parties.

Often the over-intoxicated patron also suffers injuries and even wrongful death. The injuries to both the innocent third party as well as the over-served patron most frequently occur in car accidents. The question that most often comes up is whether the over-served patron has a claim against the bar or restaurant for its negligent over-service of alcohol.

In the past, and in many states still, the over-served patron would have no claim against the bar or restaurant. Many states follow contributory negligence law in these types of cases. Under contributory negligence, any amount of fault on the part of the injured party will bar a personal injury claim against even a vastly more negligent defendant.

New Mexico on the other hand follows comparative negligence doctrine. Under comparative negligence, an injured party may still bring a claim despite his or her own negligence. However, any recovery for injuries and damages will be reduced proportionately to his or her own negligence or fault.

Even under comparative negligence standards, New Mexico courts were reluctant to allow claims by persons injured as a result of their own intoxication. However, that changed under the2010 New Mexico Court of Appeals ruling in Mendoza v. Tamaya.

Under Mendoza v. Tamaya, no longer is an intoxicated person barred from making claims under dram shop theories of negligence. Instead, the court ruled that the principles of comparative negligence should be applied here as in all other cases of negligence and harm.

The court basically stated that the law prohibiting an intoxicated person from bringing a claim were outdated in light of New Mexico‘s adoption of comparative negligence. The court did not buy into the defense‘s tired old argument that the plaintiff would be allowed to prosper his own negligent intoxication. The argument was particularly unpersuasive in that case as in many such cases where the person allegedly prospering from his own negligence was in fact killed in the accident.

DISCLAIMER

It is has long been the case that injured third parties may bring a dram shop action for the negligent service of alcohol to an intoxicated patron. Typically, these cases arise where the intoxicated patron takes to the road injuring innocent third parties in auto accidents.

In the case of Mendoza v. Tamaya Enterprises, New Mexico Court of Appeals broadened the protection of the dram shop laws to the intoxicated patron. The Court also made clear that an Indian casino or resort waived its sovereign immunity under the Indian Gaming Compact for the negligent service of alcohol on its premises.
The case involved a single vehicle car accident where two of the occupants were killed. The accident occurred following a wedding reception at the Tamaya resort where the deceased were served alcohol despite their obvious intoxication.

New Mexico law plainly prohibits the service of alcohol to intoxicated persons. It has long been held in New Mexico and elsewhere that third parties injured as a result of the negligent service of alcohol may bring a personal injury action against the server. However, in the past, the intoxicated person has been prevented from bringing a similar action. It was reasoned that a person should not be allowed to benefit from his or her own wrongful acts.

The Court in Mendoza disagreed with the prior position which predated New Mexico‘s adoption of the doctrine of comparative negligence. The Court reasoned that an intoxicated person should not be completely barred from recovery for negligent service. Instead, principles of comparative negligence should be applied in the apportionment of fault. The court stated that comparative negligence “supplanted the all-or-nothing bar of contributory negligence and doctrines, such as complicity, assumption of risk, and other defenses rooted in the claimant‘s negligence…”

In addition to the extension of dram shop protections to intoxicated patrons, the Court rejected the defendant casino‘s argument that the claims should be heard in tribal court. The Court determined that the claims and the wrongful behavior leading to them were plainly contemplated in the Indian Gaming Compact‘s waiver of tribal immunity. As a result, Indian casinos and resorts will be held to the same dram shop standards as all other restaurants, bars and liquor establishments.

The Albuquerque Journal had an interesting article last week regarding the refusal of some stores to sell alcohol to drivers with interlock licenses. This seems to be an obvious tool for the reduction of DWI/DUI related auto accidents. Though there are a few vendors that have adopted the policy, most have not. The question arises why more do not adopt the policy of refusing the sale of alcohol to DWI/DUI offenders on interlock drivers licenses.

Drivers arrested for DWI/DUI face automatic license revocation by New Mexico Motor Vehicles Division. In addition, the courts impose a separate and independent license revocation following a criminal conviction for DWI/DUI. Drivers with revoked licenses due to DWI/DUI arrests or convictions must obtain a special interlock license and install an ignition interlock device on their vehicle. Driving in violation of these terms carries up to one year in jail.

The owner of Albuquerque‘s Jubilation Wine & Spirits was quoted in the Albuquerque Journal article as saying that he is refusing the sale of alcohol to those with interlock licenses to do his part in helping to keep drunk drivers off the road. This is certainly admirable on his part and it is unfortunate that more store owners do not take the same position. There is no law that prohibits the sale of alcohol to drivers with interlock licenses. Does the store have a duty to keep drunk drivers off the road despite the lack of law to that effect? It seems that they may under simple dram shop liability theories.

As part of every DWI/DUI charge, there are conditions of release that prohibit drinking and driving. This seems to go without saying. There is also the condition that the defendant consume no alcohol at all while the case is pending. Likewise, upon conviction, the same prohibition against the consumption of alcohol applies throughout probation.

DWI/DUI drivers cannot legally use alcohol so they certainly have no business purchasing it. There is no good reason to allow the sale of alcohol to drivers with interlock licenses. The sale of alcohol to a person known to have a problem with drinking and driving, who clearly as a term of his conditions of release or probation is prohibited by court order from using alcohol, creates a plain threat to the safety of the driving public.

Jubilation is on the right track. Others who fail to follow the lead may do so at their peril. Dram shop liability laws provide a very good model for holding irresponsible store owners liable for damages and harm caused as a result of serving up alcohol to those known to be a threat to the public. A bar cannot sell alcohol to someone that is already intoxicated because this poses a threat to public safety. Does the same rationale not apply to selling alcohol to DWI/DUI offenders currently under driving restrictions due to the danger they pose to the public?

There are two approaches to attacking DWI/DUI. First and most obviously, the drunken drivers must be held accountable. Secondly, the source of the alcohol can be addressed. The State has not seen fit to prohibit the sale of alcohol to DWI/DUI offenders. It seems only a matter of time before personal injury lawsuits are filed against alcohol vendors for these irresponsible and indefensible practices that will inevitably at some point lead to tragedy. Perhaps these lawsuits will help to reduce the number of DWI/DUI drivers on New Mexico roads.

DISCLAIMER

Related Reading:
Reach of New Mexico Dram Shop Laws Extends to Business Wining & Dining
Dram Shop Liability Issues Not Always Apparent
Dram Shop Liability: Shifting Burden of Proof

Collins & Collins, P.C.
Albuquerque Attorneys

There have been a couple of recent decisions involving very large damage awards against bars for the drunken actions of their patrons. The cases fall under dram shop and premises liability laws that protect the visitors, patrons and customers of such drinking establishments. These case involved obvious dram shop and premises liability. Other cases of negligent or reckless service of alcohol may not be as obvious. This is particularly so in auto accident cases.

The Tennessee case of Maddy v. Ruby Tuesday Inc. involved a jury award of $10 million. A poorly trained 21 year old bartender had served a patron 19 beers over a three hour period. The drunken patron ended the evening by smashing a beer mug in the face of another patron, severing the victim‘s carotid artery. The bartender testified that she did not recall seeing any corporate training videos prohibiting the service of any customer more than three drinks in an hour.

A Texas appellate court upheld a $1.48 million verdict for damages related to a barroom brawl at the Del Lago Golf Resort & Conference Center. Much like the Tennessee case, the employees of the bar were clearly untrained or undertrained. The brawl involved a wedding party and a Sigma Chi fraternity reunion party. The problem for the defendant was that witnesses testified that the brawl had begun brewing hours before the actual fight broke out. Rather than address the problem, the bar‘s staff continued the heavy flow of liquor and then at the end of the evening herded both parties into the parking lot where the melee erupted.

Certainly, a bar cannot always be held responsible for the drunken behavior of its patrons. However, in cases like these where the bar actually creates the danger through the over-service of alcohol while ignoring possible dangers to other patrons, the bar will be held responsible for the damages resulting from the negligent behavior of its staff.

In fact, dram shop laws in most states, including New Mexico, require that bartenders and staff be trained to both detect and avoid the over-service of alcohol. The dangers of severe intoxication are well known, from the drunken bar brawls in these cases to the horrible DWI/DUI auto accidents that regularly result from the negligent service of alcohol at bars, restaurants and nightclubs.

The severe injuries and deaths that occur as a result of negligent bartenders and waitresses are too numerous to count. In these cases, the negligence of the bars in question are obvious. However, in cases involving auto accidents, the injured persons or their surviving family members fail to or are unable to trace the accident back to these negligent or reckless practices. In late night auto accidents, the possibility of such negligence should be explored. Due to chronic level of underinsured drivers in New Mexico, the bar that began the train of events that led to the accident may be the only possible source of financial recovery for the injured or deceased person‘s damages.

DISCLAIMER

Related Reading:
Change In Evidence Requirements For Dram Shop Claims
Dram Shop Liability: Shifting Burden of Proof
New Mexico Dram Shop Liability Extended to Protect Intoxicated Patrons

Collins & Collins, P.C.
Albuquerque Attorneys

Auto accidents are among the leading causes of death of teenagers and young adults (ages 15-24) in New Mexico. Youth, drinking and driving is a lethal mix with often lethal consequences. The DWI/DUI laws and underage drinking laws in New Mexico are very strict to avoid the tragedy of youthful DWI/DUI accidents.

There are strict laws against underage drinking including felony charges for providing alcohol to underage drinkers. These penalties can be particularly harsh for service of alcohol to minors. However, despite these laws, minors often manage to obtain alcohol as a result of negligent or reckless bartenders, hosts, clerks or cashiers. Unfortunately, this negligence or recklessness can result in catastrophic injury and sometimes wrongful death.

Fortunately, New Mexico law holds these individuals and entities accountable for the damages caused by their negligence under dram shop laws, social hosts laws, and criminal laws designed to protect individuals from such behavior.

A recent case in California illustrates the law, the possible harm, and the potential recovery for injuries arising out of dram shop or negligent social host situations. The case of Apodaca v. Bradley involved two 20 year olds, Joshua Apodaca and Sean Patrick Bradley, who were served alcohol at a Sonoma County winery during a wedding reception, and then again at convenience store following the reception. The two were served alcohol at the wedding reception despite failing to present identification. Even more remarkably, they were later sold alcohol by a convenience store again with no identification which they then consumed in the store‘s parking lot.

Bradley who was driving crashed his car into a rock wall as the two travelled home. Apodaca suffered closed head traumatic brain injuries. Apodaca‘s brain injuries led to severe and permanent cognitive and motor deficits.

Unlike New Mexico, apparently California does not have formal dram shop laws. Instead, the lawsuit was brought under specially enacted laws to address teenage DWI/DUI. The result was a $3.1 million settlement. The winery contributed policy limits of $3 million under its insurance policy. The parents of Bradley contributed their policy limits of $100,000. Bradley himself contributed $5000.

The $3.1 million can never fully compensate Apodaca for all of the damages associated with his severe traumatic brain injury. Apodaca will likely suffer a lifetime of pain and suffering, loss of enjoyment of life, and permanent mental and physical limitations. The loss of income and earnings over his lifetime associated with his injuries are hard to calculate due to his youth. Rest assured, however, even a moderate income over his working life would approach the value of the settlement.

Instead, the bulk of the settlement proceeds will go toward a lifetime of medical care and expense for Apodaca. There will likely be little left to address his remaining damages. Unfortunately, this is often the reality of auto accidents, where there is inadequate insurance to compensate injured persons. In New Mexico, a $3.1 million settlement in an auto accident is extremely rare due to the high level of uninsured/underinsured motorists in the State. Though the settlement cannot possibly compensate Apodaca for his injuries, it is far better than the outcome in most DWI/DUI accidents where there simply is no insurance or financially responsible party to compensate the accident victim other than his or her own uninsured/underinsured motorist coverage.

DISCLAIMER

Related Reading:
Dram Shop Liability: Shifting Burden of Proof
Change In Evidence Requirements For Dram Shop Claims
The Potential Costs of “Cool” Parenting are High During High School Graduation Season

Collins & Collins, P.C.
Albuquerque Attorneys

Dram shop lawsuit in results in $1 million damages verdict against a bar that served the intoxicated driver that struck and killed a bicyclist while returning home from the bar. The driver, Melissa Arrington, had been drinking at Berky‘s bar prior to the accident. At the time of the accident, Ms. Arrington was driving while intoxicated with a breath alcohol level of .15, almost twice the legal limit.

The parents of Paul L‘Euyer brought the suit under the wrongful death statute on behalf of their son. The suit was filed in Tucson against both Berky‘s Bar and Melissa Arrington. The suit against Berky‘s was brought under the state‘s dram shop laws that are common in many states, including New Mexico. Dram shop laws hold bars, taverns, and restaurants liable for serving intoxicated persons who later injure innocent parties.

The lawsuit also named Melissa Arrington individually. Ms. Arrington was later convicted and sentenced to 10.5 years for vehicular homicide. Despite her undisputed liability, her insurance company was able to settle on her behalf for only $25,000.

The case raises several important points. First, bars and restaurants are liable for negligently serving alcohol to intoxicated persons who are later involved in accidents or even intentional torts. The damages against bars and restaurants can be substantial as was the case in the case of Berky‘s who has since closed its doors.

The case also illustrates the issue of underinsured motorists. Ms. Arrington, who is now in prison, carried only $25,000 in liability coverage, the statutory minimum insurance liability policy limits in most states, including New Mexico. If not for the insurance of Berky‘s, Mr. L‘Euyer‘s parents would likely have recovered only $25,000 for their son‘s death. Sadly, a lawsuit simply would not have been feasible in light of Ms. Arrington‘s minimal insurance coverage.

Though the news accounts do not address whether Mr. L‘Euyer carried uninsured and underinsured insurance coverage, had Berky‘s not been in the chain of negligence, Mr. L‘Euyer‘s total recovery would have been only $25,000. Over 1 in 6 motorists nationally are uninsured. Greater percentages are grossly underinsured. The rates are even higher in New Mexico which leads the nation in uninsured motorist at 29%.

The fact is if you are involved in an car or automobile accident in New Mexico, the other driver will likely be uninsured or underinsured leaving you and your family to bear the costs of the accident, injuries, and the loss of income on your own.

DISCLAIMER

Related Reading:
Reach of New Mexico Dram Shop Laws Extends to Business Wining & Dining
Dram Shop Liability: Shifting Burden of Proof
New Mexico Dram Shop Liability Extended to Protect Intoxicated Patrons

Collins & Collins, P.C.
Attorneys at Law