TOV Injury and Safety Blog

Assault and battery verdict is upheld.

Clarence Russell and Tony Thompson sued Shane and Shawn Novencido for assault and battery.  They recovered an award totaling $150,000.00 from Shane, including $50,000.00 in exemplary or "punitive" damages.  The Defendant appealed.

The action arose out of a fight that occurred at Fenders Bar and Grill in 2006.  Thompson owns Fenders and asked the two brothers to leave when they engaged in a series of verbal exchanges with other customers.  As he followed the brothers out the door, he and Russell were sucker-punched in the face, suffering cuts and bruises. Thompson also suffered a fractured orbital wall. The brothers pleaded guilty to assault and battery but contested the subsequent civil verdict against them.

The Defendant argued that the judge's findings of fact in this bench trial were incorrect and did not support his conclusions.  The Court of Appeals found two minor errors in the factual findings but concluded that over-all, the findings represented a reasonable evaluation of conflicting testimony and were adequate to support the judgment.  Lastly, the Defendants argued that their conduct was not "malicious, reckless or wanton" and therefore exemplary damages were unwarranted:  The Court of Appeals agreed with the Trial Court that administering a beating to an elderly gentleman is sufficiently reprehensible conduct to justify an award of punitive damages.

Court holds violent acts "aren't foreseeable result of illegally serving alcohol" and "willful ignorance" of illegal consumption does not constitute "actual knowledge."

In one of the most disappointing examples of political, activist, result-oriented, injudicious decision-making we have witnessed in 30-plus years of lawyering, the Court of Appeals held in Uplinger v. Howe, et al., that homeowners who hosted an alcohol-laced party for "75-100" guests after their son's junior prom owed no responsibility for grave injuries suffered by one of the attendees.  The 19-year old plaintiff suffered a severe head injury after he was beaten by an intoxicated 24-year-old wielding a baseball bat.  The two "boys" had been involved in a verbal altercation earlier in the night--in the Defendants' polebarn--and the attacker, Jeffrey Howe, returned with companions and weapons to attack the plaintiff, Uplinger.

Bar not legally responsible for returning lost car keys to drunken patron

Devon Allison was at the Mo-Doggie's Bar and Grill in Genessee County with friends.  They were served to the point of visible intoxication and asked to leave.   Allison left her keys at the bar, where they were found by an employee.  She returned some time later, obtained her keys from the bartender and was then killed in a fatal car crash.  Her family sued the bar, arguing that it was negligent in returning car keys to a person known to be visibly intoxicated.

The Court dismissed the family's case.  It held that a statute which precludes a visibly intoxicated person from suing the bar that served him or her to intoxication also precludes this lawsuit.  Even though returning the keys may have been negligent, the court deemed the negligence so inherent to the illegal sale of alcohol--and the legislature's limitation on liabilty for an illegal sale--that the family's action was not allowed.

Court holds that parents cannot sue owners of home for death of drunken minor who committed suicide

The Court of Appeals upheld the dismissal of Rita Costigian v. Kevin Plets and Cindy Plets.  The Plaintiff, Rita, was the mother of Jonathon Costigian and the Personal Representative of his Estate.  She sued the defendants after Jonathan hung himself in the Plets' basement.  Jonathan and the Plets' son had previously consumed alcohol at the Plets' home, apparently, and when the Plets left the house on an evening in May of 2008, a minor drinking party ensued.  When the Plets got home, they kicked some kids out, called parents to let them know what happened, and left the drunken kids to "sleep it off."  In the morning, they discovered Jonathan a suicide in the basement.  His parents sued, arguing that they were negligent in allowing the party to occur and in failing to anticipate Jonathon's suicide.

Bar-bowling alley partially responsible after failing to promptly call police

TMR Amusements, Inc., doing business in Huron County as the "Longshot Lanes Bar & Grill," got hit with a verdict for $160,000.00 after Carl Schnorr suffered massive facial injuries in the TMR parking lot.  Schnorr had been drinking and bowling with friends when his brother-in-law, Dawidowski,  became embroiled in an altercation on the dance floor.  The brother-in-law was ejected from the bar by bouncers, and Schnorr left the bar to investigate, only to find Dawidowski being held by the bouncers so that an assailant could strike him.  When Schnorr approached to interrupt the attack on his brother-in-law, he was struck down and suffered massive facial fractures.  The jury held that the bar was partially responsible for his injuries as a result of its delay in calling police.

Innocent victim cannot sue bar that failed to call police after evicted patron threatened to "pop someone."

Larry Goodman, as P.R. of Akil Goodman's Estate, and David Washington sued The Beach House Bar after Akil Goodman and Washington were shot by a patron who had been evicted from the bar.  Goodman and Washington were random victims of a parking lot shooting spree that resulted after the evicted patron told bouncers that he would "get a gun and pop somebody."  The Plaintiffs argued that the bar should have called police in response to this threat.

Family of drowning victim cannot sue

Ursula St. Clair sued the Bayview Yacht Club after her sister drowned in the Club's Marina.  The sister, Layla Deitz, had been drinking in the Club's bar at a private party when she was kicked out of the bar because she was visibly intoxicated.   She then accompanied William Carleton, II, to his yacht, where the couple were discovered by another boater having sex in a  rigid inflatable boat.  Carleton claimed that Deitz was embarrassed at her circumstances and insisted that he leave.  In any event, he did drive away, leaving the drunken, upset young woman on the dinghy.  Her body was discovered floating near the marina days later with bruises on her legs and a bruise on her temple. 

Dramshop case may go forward

Martin Stott was killed by a drunk driver, Dennis Brown.  Brown had spent the day drinking at several bars, including the Oakwood Lounge, Inc., in Ingham County, where he drank through the lunch and dinner shifts, became loud, and the bartender had to tell him several times to quiet down.  Eventually the bartender  took away his drink and kicked him out.  He proceeded to run down the Plaintiff's Decedent, who was a road construction flagman.

Bar's insurer need not cover damages for waking drunken patron who kills innocent motorist

Badger Mutual Insurance Company provided liability and dramshop coverage for a men's club/bar operated by Ross Enterprises.  The coverage provided $50,000.00 in dramshop coverage and a much larger liability coverage for other acts of negligence.  The "other" coverage excluded any negligent acts where there was also liability by reason of a violation of liquor sales laws.

Restaurant sign falls on waiting patron: she cannot sue for injuries.

Jeanine Cooper-James was waiting for a table at the Texas Roadhouse of Roseville when a neon and metal sign fell off the wall and struck her shoulder.  The sign had been hanging for two years from a chain attached to the wall above a window.  Cooper-James' attorneys argued that the simple fact that the sign fell--which shouldn't happen without negligence--placed the burden on the restaurant to explain why it should not be responsible.  They also argued that since the restaurant failed to preserve the screw that came out of the wall, an inference of fault and responsibility was created by its "spoliation" of evidence.

Doctors lose fight to dismiss malpractice claim because "patient was drunk when he incurred original injury."

Dr. Richard J. Hartman, Jr., D.O.  and Christina Sheely, D.O., allegedly failed to treat compartment syndrome that Donald Beebe experienced after suffering foot injuries in a snowmobile accident.  On his 33d birthday, Beebe drank about 11 cans of beer between noon and 8 p.m. while working on his snowmobile in the garage.  As he drove it accross the lawn, "it dumped me off," and Beebe suffered fractures to the tibia and fibula.  At the E.R., his blood alcohol measured 0.13:  above the legal limit to operate a car or RV in public.  The Defendants treated his injuries.  Five months later he was diagnosed with "sustained flexion contractures of his toes in the right foot...most likely from a deep compartment syndrome in the leg."

State Farm loses effort to deny insurance based on minor discrepancies in claim

Mykhaylo Vovna and Viktor Proshkov sued State Farm in an attempt to collect fairly modest Personal Injury Protection benefits after they suffered injuries in a motor vehicle collision.  State Farm pointed to minor discrepancies and ambiguities in the paper work arising out of the sale of the vehicle and the report of the collision, in an effort to deny benefits.  The trial court took testimony from the parties and concluded that State Farm had not alleged an adequate basis to deny PIP benefits that were due under the policy. 

Court holds that late-identified injuries create question of fact on serious impairment

Sheraille Hinson sued TGI Friday's, Inc., after it served a minor patron Long Island Iced Teas sufficient to achieve a .17 blood alcohol before he ran off the road and hit a tree.  Hinson was injured in the collision.  A fractured femur and other problems were diagnosed and treated surgically at the outset, and she was confined to a wheelchair.  Over the succeeding months, she also struggled with a mild head injury, back problems and an ankle that required surgery.  Most of these issues were not identified when she was first hospitalized.  A doctor did attribute them to the motor vehicle trauma, however. 

Court upholds jury verdict on assault; throws out defamation claim

Shahn Farokhrany sued Marlin Jackson alleging that Jackson assaulted him.  Jackson counter-sued for defamation, claiming that Farkokhrany's original claim that he was struck with a beer bottle caused injury to Jackson's reputation and interfered with his NFL draft standing.  The jury refused to award damages for the assault, and instead awarded damages to Jackson for defamation, and Farokhrany appealed.

Young man who fell from pick-up bed and died cannot sue driver

In a typically hard-hearted Henry Saad opinion favorable to insurance interests, the Court of Appeals this week ruled that Scott Rubio's Estate cannot sue Louis Motowski (and thus his insurer) for wrongful death.  Rubio, Motowski and a third kid planned to drive by a home and throw rocks at it.  All three were apparently very intoxicated.  In the process, Rubio apparently fell out of the pick-up bed while attempting to move to the cab, and suffered a fatal head injury.  Rubio's family claimed that Motowski, as the driver of the truck, was at least fifty percent responsible for the death and owed that share of damages. 

Case against bar dismissed due to victim's failure to give notice of fee agreement

Christopher Dirla sued the Seney Spirit Store, alleging owner liability for a rented snowmobile, and Andy's Seney Bar, Inc., alleging that it sold alcohol to Jason Sunkle after he was visibly intoxicated.  Apparently intoxicated, Sunkle ran over Dirla on the rented snowmobile, causing significant injuries, before fleeing the scene.  Dirla hired an attorney who sent notice to the Spirit Store alleging ownership liability for its rented snowmobile, but failing to raise an issue of dramshop liability.  The Dirlas maintained that they only learned that Sunkle was drinking in the Seney Bar from the owner of the bar in response to the owner liability notice.  As a result, the Dirla's formal notice of dramshop liability was sent to the bar 148 days after they signed a fee agreement, and not within the 120 days required by law.  The trial court dismissed the claim and the Court of Appeals upheld this outcome.  It concluded that the Dirlas and their attorneys had failed to comply with the statutory obligation to provide notice, even though they were initially unaware of the potential dramshop claim, the bar owner was actually drinking with the alleged intoxicated person [AIP] on the night in question, and a notice of injury [relating to the snowmobile rental] was timely provided to the Defendant.

So, the Defendant knew the the AIP got drunk in her bar--drinking with her, no less; knew that he caused someone serious injuries; got notice of the injuries in a timely manner, but didn't get the "dramshop notice" until 28 days late--and is therefore allowed to escape responsibility. This passes for justice?

Bar is entitled to defense from insurer where patron alleges excessive force by bouncer

Mario Kacho sued KSK Hospitality and James Gibbons alleging that Gibbons struck, tackled, or "negligently beat, batter[ed] and wound[ed]" Kacho, injuring his wrist.  KSK tendered the defense of Katcho's claim to its insurer, St. Paul Surplus Lines, which denied coverage.  St. Paul cited its contract language that rejected liability for intentional [non-"accidental"] acts, while KSK argued that it was entitled to a defense under the policy language that stated "We won't apply this exclusion to intentional bodily injury...that results from the use of reasonable force to protect people or property."  Normally, to constitute an "intentional act" an insured must intend both the act and the reasonable consequences of the act, and there was little doubt that by this definition, Gibbons' behavior was "intentional."

Court rejects injured employee's claim arising out of Palace Brawl

Julie Socia sued two Indiana Pacers, Jermaine O'Neal and David Harrison, after she was struck in the head by a thrown chair.  As most of the sporting world knows, a 2004 game between the PIstons and Pacers was canceled after the teams, and then spectators, became embroiled in a fracas that caused several injuries.  Socia was employed at the Palace and was engaged to provide crowd control as the Pacers left the arena's playing floor.  She argued that O'Neal and Harrison re-engaged with the rowdy spectators while leaving the floor and provoked the chair-throwing incident that caused her injury.

Supreme Court reverses discharge of bar from dramshop case: issue left to jury on "visible intoxication."

The Supreme Court overturned a decision of the Court of Appeals last week and reinstated a "dramshop" claim against Bennigan's.  The suit was filed on behalf of two families who lost loved ones in an alcohol-influenced motor vehicle fatality. They sued three alleged alcohol providers, claiming that all three contributed to the intoxicated state of the at-fault motorist, while he was visibly intoxicated.  As with most dramshop claims, the drunk, his companions and the alleged servers all provided self-serving, vague-at-best and hardly credible testimony.  A few years ago, the Engler Majority activists "amended" state law and the rules of evidence to raise the standard of proof for showing that a drunk was visibly intoxicated when served by a licensed establishment.

Family cannot sue driver who struck and killed their sibling

Carol Zink's car struck David Kemeny and killed him, although she never saw him and thought she hit a deer.  Her cell phone records showed that she was on the phone during this approximate time period, but did not prove that she was on the phone at the moment of the impact.  Kemeny was intoxicated at the time and wearing dark clothes. His family argued that the facts  of cell phone use and Zink's failure to see Kemeny created an inference of negligence sufficient to create a question of fact for the jury regarding her negligence. 

Insurer allowed to exclude coverage arising from use of an auto

The Estate of Michael Verschure sued Essex Insurance Co. after Michael was run over in a bar parking lot.  Essex wrote liability insurance on the bar, "Wild Woody's" in Roseville.  Essex denied responsibility for the incident, claiming the events leading to Verschure's death were not an "occurrence" under the policy, that liability was excluded as an "intended injury" and that the broad auto-related injury exclusion in its policy applied to Michael's death.

Court summarily dismisses two bars implicated in multiple fatality

Andrew Gillespie apparently got drunk, despite taking anti-anxiety medication that "multiplies" the effect of alcohol, and crossed the centerline on Hagadorn Road in Lansing.  He caused a wreck that killed two and injured four.   He pleaded guilty to second degree murder in the criminal case that arose out of the collision; the civil case implicated three different potential purveyors of alcohol, Bennigan's, Mason Jar Pub and Quality Dairy Company.  The majority of the Court of Appeals panel considering the case reversed the decision of the trial court and dismissed the claims against the first two [tavern] defendants.