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Tuesday, May 29, 2007
 
Hancock v. Mike Shannon's Steaks and Seafood

The title is the caption to a lawsuit filed last week in Missouri state court by Dean Hancock, the father of St. Louis Cardinals reliever Josh Hancock and the executor of Josh's estate. Josh was killed in a car accident April 29 when the rented SUV he was driving slammed into the back of a stopped tow truck in the left lane of a multi-lane highway in St. Louis. Hancock had left one bar (Mike Shannon's) and was on his way to a second bar to meet his girlfriend. Reports indicate Hancock had a blood-alcohol level of 0.157, was traveling above the posted speed limit, and talking to his girlfriend on his cell phone when the crash occurred. Stories on the accident and the lawsuit here, here, and here. A copy of the complaint can be downloaded about halfway down in this story.

There are three basic claims in the lawsuit. The first, against Mike Shannon's restaurant/bar and Patricia Shannon Van Matre, the manager of the bar, seeks damages under Missouri's dram shop law. The claim is that Hancock, a regular at the bar, spent approximately 3 1/2 hours drinking there on the night in question and became visibly intoxicated, but the restaurant continued to serve him drinks anyway. The second claim alleges negligence against the tow truck company and the tow-truck operator, claiming that the driver was negligent in stopping in the left lane of the highway and keeping the truck (and stalled car) there for a lengthy period of time, without providing adequate warning to motorists, such as flashing lights or flares. The third claim alleges negligence of against Justin Tolar, the driver of the stalled car that the tow truck had stopped to help. Tolar's car had struck the median, spun out, and stalled in the left lane of the highway.

The dram shop claim is the focal point of the suit, the one that has received the most attention, the most unique claim, and likely the most difficult to prove. Missouri's law, amended in 2002, permits liability when it is "proven by clear and convincing evidence that the seller . . . knowingly served intoxicating liquor to a visibly intoxicated person." Mo. Rev. Stat. § 537.053(2). "Visibly intoxicated" means "inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction." § 537.053(3). A high BAC is evidence of voluntarily intoxication, but cannot alone establish the fact. Moreover, the law expressly prohibits recovery for injuries resulting from one's own voluntary intoxication. § 537.053(4). This presumably means the law permits third-party liability against a bar (A is injured by B's drunk driving, sues the bar at which B got drunk), but not first-party liability (A is injured as a result of his own drunk driving, sues the bar at which he voluntarily drank and got drunk). A good discussion of the history of dram-shop liability and of Missouri's new law is here.

The fact that the law seems to disallow first-party dram-shop liability probably defeats this claim at the start. The prior version of Missouri's dram shop law was held to allow first-party claims, although that statute required only that the "intoxicating liquor is the proximate cause of the personal injury or death sustained by such person." The explicit prohibition on claims involving voluntary intoxication should command a different result in the typical first-party claim such as this--someone willingly goes to a bar, drinks, gets drunk, and is injured.

The complaint tries to get around the voluntary intoxication language by alleging that Hancock's intoxication was involuntary, thus not within the statutory exception. But I am not sure how this can be the case. In general, one can be said to be involuntarily intoxicated only when a person did not knowingly consume the intoxicating substance (i.e., someone slipped him a Mickey). No one suggests that is what happened here. My speculation is that the plaintiff rests on some notion that the bartenders at Shannon's continued to give Hancock drinks beyond the point that he was (or could be) aware that he was drinking and getting drunker; so even if he went to the bar voluntarily and even if he initially voluntarily consumed alcohol, at some point he was drinking and getting drunk not of his own volition. I doubt this works as a matter of law. Moreover, even if Hancock clears that hurdle, he must put together a lot of evidence (more than the ordinary civil standard of more-likely-than-not) that Josh exhibited signs, visible and obvious to Shannon's bartenders and staff, of physical dysfunction caused by alcohol consumption. The spiked BAC will not be enough.

The negligence claims against the tow-truck company and driver and against the stalled motorist sound like something from a torts exam. Still, neither claim seems beyond the pale. If the motorist was negligent in hitting the median and stalling his car out, then he may (and should) be responsible for resulting injuries to any other driver on the road. Imagine that Tolar, driving negligently, had bounced off the median and struck Hancock's car as it came immediately behind him; no one would question that Tolar might be liable. The only difference here is that Hancock did not come upon Tolar's car until 20 minutes later. But the principle--Tolar drove negligently and contributed to the injuries to another driver--remains the same. Similarly, the tow truck driver/company were obligated to conduct themselves in a careful manner--specifically by either moving the car out of the traffic lane or providing warnings to motorists.

What sets this situation apart--and what has some commentators screaming about frivolous lawsuits, the out-of-control tort system, and loss of personal responsibility (you have to page down a bit)--is everything that Josh did that contributed to the accident: He was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning. I especially liked Overlawyered's suggestions for other people Hancock should have sued, including the cell-phone manufacturer and the girlfriend.

But the tort system long ago moved to a regime of comparative negligence--a plaintiff's own negligence may reduce the amount he can recover from responsible defendants, but it does not necessarily eliminate all recovery (unless the plaintiff is more responsible for the accident than the defendants). This contrasts with the old Common Law rule of contributory negligence, where any small amount of plaintiff negligence (just 1 %) precluded all recovery. So even if Hancock contributed to the accident by driving under the influence, so, too, perhaps, did Tolar's and the truck driver's behavior. The question now becomes how much each is responsible--and that is a question for the jury.

Moreover, comparative negligence is an affirmative defense--it is on the defendant(s) to introduce the issue, plead it, and to prove it. An affirmative defense is the defendant saying, in essence, "yes, what the defendant says happened did happen, but here is something that limits or eliminates my liability"(here, the plaintiff's own negligence). Right now, all we have is Hancock's Complaint--which (as I tell my civ pro students ad nauseum) is simply the plaintiff's best-foot-forward version of what happened that, for the moment, we take as true. We need to wait for more facts and evidence to come out. News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers. We are an "adversary" judicial system. Hancock has put forward his initial version of events; it now is (and should be) on the defendants to put forward their best legal and factual versions. Then we ultimately can figure out what happened and who was responsible.

My guess is that Hancock loses. The dram shop claim does not work as a matter of law, given the language of the amended statute precluding claims based on one's own voluntary intoxication. The negligence claims likely fail, since Hancock's own negligence seems to outweigh that of the motorist and the tow truck (although that one probably goes to a jury). But I disagree that it is so obvious, ab initio, that all of these claims are so laughably weak. Let the system play itself out.



Updates: Wednesday, May 30:

Some additions, explanations, and elaborations in response to e-mails and comments:

First and most important for the negligence claims: Missouri follows a "pure" comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable, the plaintiff still could recover 1 % of the harm he suffered. This contrasts with a "modified" comparative negligence system, in which the plaintiff is precluded from recovery (and his claim defeated) if his negligence reaches some point (either 50 % or 51 %, depending on the jurisdiction). In practical terms, that means Hancock's negligence claims simply will not simply be defeated (as I initially stated) because of Hancock's arguably greater responsibility. It also means the claims likely go to trial for jury determination. We must determine the facts as to what Tolar and the tow-truck driver did or did not do, because even a small amount of negligence would require one or both to pay a small amount of damages to the plaintiff (an amount reduced by Josh's own negligence). Unless all the evidence shows that, as a matter of law, neither Tolar nor the truck driver was negligent, a jury must measure out what portion of responsibility either bears.

Second, Professor Sheila Scheuerman, co-editor of Torts Prof Blog (who was kind enough to link to this post), had a good explanation for the visceral negative reaction many people have to this lawsuit: The problem is that the reductio summary of the suit--"father of dead drunk driver sues restaurant and others involved in crash"--runs counter to intuitive ideas about "justice." I think this is correct as an explanation for much of the public (and blogosphere) response. And it illustrates why we try so hard to get our students to step back from that initial, intuitive, empassioned reaction and to think through the entire issue with care and reason.





7 Comments:

I really appreciated this post. It not only was well thought out, but well researched as well. I also kind of felt I was back in school (torts class). I also liked the reference to Overlawyered.com especially since after reading the plaintiff's claim, one gets the impression that in our society its ALWAYS someone else's fault for everything. Just ask Adam Jones aka "Pacman"....

Anonymous Anonymous -- 5/30/2007 10:14 AM  


"News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers."

Radio stations KEZK and Y 98 recorded the accident scene on their security camera. A St. Louis TV station posted a lengthy video clip on their website of the events leading up to the accident. I didn't see the video myself before the TV station took it down, but it was widely reported in the St. Louis media and discussed on websites. The excerpt below was posted on a Cardinals fan forum:

"The image is captured by a security camera at radio stations KEZK and Y 98.

Next in the video viewers see a tow truck from Eddie's towing backing up.

Ten minutes later you can see the headlights of two cars traveling side by side.

The car on the outside passes right by tow truck.

The other is Hancock's SUV."

I believe that all the events leading up to the accident were in the video turned over to the police, so it's incorrect to assert that there are "factual disputes" as to the sequence of events and the timeline. The tow truck's flashing lights were on and other drivers managed to negotiate the obstacle safely for 10 minutes before Hancock came along chatting (some reports said texting) on his cell phone. Wasserman should ccheck the "facts" more carefully before he describes them as "disputed."

Anonymous Anonymous -- 5/30/2007 10:30 AM  


Even in a comparative fault regime, it is usually the case (e.g., New York) that a ">50% at fault" plaintiff cannot sue a "<50% at fault" defendant. Hopefully such a rule exists in Missouri.

No reasonable juror could find Hancock less than 50% liable for his own death.

Blogger KipEsquire -- 5/30/2007 12:13 PM  


Missouri follows a pure comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable (as might be the case here), the plaintiff still could recover 1 % of his damages.

Blogger Howard Wasserman -- 5/30/2007 2:15 PM  


I expect quick, small settlements from the insurance companies for the tow truck and the other car that had crashed -- roughly the cost of defending the case. If there is no de minimus cutoff, there is little chance of being exonerated.

I'm not much of a fan of the 50% cutoff, but 1% seems silly as well.

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Blogger sushilsingh -- 12/01/2007 6:14 AM  


TV station posted a lengthy video clip on their website of the events leading up to the accident. I didn't see the video myself before the TV station took it down, but it was widely reported in the St. Louis media and discussed on websites.
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