When Brandy Ferguson filed a lawsuit against The Rum Jungle about the death of her 27-year-old husband, she stepped into an area of legal liability not popular with many jurors.
Her husband died, she alleged, because the bar sold alcohol to his already drunken brother, Christopher Ferguson. His brother then drove the car and his passenger into an oak tree near Flint.
The courtrooms are clean and tidy. The automobile accidents that lead people to the courtroom are not.
At the scene, witnesses said they saw a 21-year-old who was so drunk that he at first did not realize his brother was a passenger and who, when he did realize it, made frenzied but unsuccessful efforts to save his big brother.
The big brother, James Ferguson, was survived not just by a wife, but by two children.
Attorney Cole Portis said many juries try to avoid placing the responsibility on the vendor.
“Many juries can’t get past the fact that the person who caused the wreck was the person who consumed all the alcohol,” said Portis, a lawyer who has represented many clients in claims against alcohol vendors. “They want to know why in the world are you holding liable somebody who sold the alcohol to him.”
In Alabama, those who sell alcohol to a customer who is visibly intoxicated are liable for injuries the person causes to others as a result of being drunk.
Vendors are not liable for injuries to the intoxicated person.
Before the enactment of the law banning sales to someone who is drunk, called the Dram Shop Act, vendors had no such liability. As horses gave way to cars on the trip back from the tavern, however, pressure to place responsibility upon bartenders and their employers grew.
Portis, who works at the Montgomery firm of Beasley Allen Crow Methvin Portis and Miles, said setting aside juror prejudices is tough.
“The reality is, because they have a license to sell alcohol, they have an extra duty placed upon them by the law of Alabama,” Portis said.
Portis said Alabama juries are so reluctant to impose the liability spelled out by the Dram Shop Act that trial lawyers have to begin educating jurors before they are selected.
“You tell your potential jury at the front end, ‘OK, here’s the law. I know some of you may not agree with it, but this is the law. Can you follow the law?’ ”
Portis said that primes the jury for the request that a plaintiff’s lawyer makes at the end of the trial.
“You say, ‘OK, here’s the law and here are the facts. You have no choice.’ But that’s easier said than done with many jurors,” Portis said.
Evidentiary rules prevent lawyers from telling the jury the financial reason for suing alcohol vendors. That reason usually involves insurance. If the intoxicated driver has inadequate insurance coverage, the vendor may be the only solvent defendant.
Common in ‘70s, ‘80s
Dram Shop Act cases were common in the 1970s and early 1980s, but are rarer now. Portis suspects the decrease stems from the fact that the state Alcoholic Beverage Control Board does a better job educating vendors on when not to serve patrons.
ABC’s education coordinator, Jan Byrne, said those serving alcohol and those riding with someone who may have been drinking, should watch for the same signs.
Clues include slurring of speech, bloodshot eyes, staggering, breath smelling strongly of alcohol, difficulty handling money, animated behavior, and loud or boisterous behavior.
Byrne said a responsible vendor should pay attention to how many drinks he serves to a patron.
“That is not a requirement, but it is part of responsible service,” Byrne said. “The server needs to be aware of the amount of alcohol ingested by a patron.”
In lawsuits against vendors, plaintiffs must present evidence suggesting that the patron was visibly drunk when served. Portis said while this is usually contested by the bar, it is not hard to prove.
Witnesses who were in the bar at the time are the best evidence, Portis said, but experts hired by the plaintiff’s lawyer can also provide evidence.
By calculating the blood-alcohol level at the time of a wreck, scientists can testify as to the patron’s probable condition when he bought the drinks.
Mary Jane Conahan, coordinator for the Morgan County chapter of Mothers Against Drunk Driving, said legal issues should not cloud the imperative: People who are drunk must stay out of that driver’s seat.