Should a Drunk Driver Be Allowed to Sue the Bar That Overserved Her?

The fearless lawyers at Pickett Dummigan brought an unusual lawsuit a while back regarding a drunk driving accident. They represent Ashley Schutz for extremely serious injuries that she received after she drank way too much alcohol and then caused a car crash. The suit is complex and has multiple defendants and causes of action, but in this post, I’ll be focusing on one small and very interesting part of the case, which involves part of Ms. Schutz’s claim against La Costita, the bar that served her the alcohol.

I can already hear the question: “But it was Schutz’s fault that she drank and drove; how could she sue the bar for a crash that was her own fault?” Read on, intrepid blog-reader! 

This particular portion of her lawsuit alleges that the bar served her far more alcohol than they should have. Her blood-alcohol level was three times the legal limit after the crash. Bars are required to have servers who are trained well and who abide by the OLCC’s rules. One of those rules is that they may not serve someone who is “visibly intoxicated.” Was Schutz visibly intoxicated, and did La Costita serve her anyway? We’ll never know, at least as things stand now, because the Oregon Court of Appeals has upheld a law, ORS 471.565, stating that a person who was drinking may not sue the bar that overserved them, without any regard for the actual facts of the particular situation.

Does this law make sense? Well, a lot of people think so. If a bar over-serves Jack, who drives a car into Alice, then Alice can sue the bar for getting Jack too drunk, but Jack cannot sue the bar. It’s a law for personal responsibility. Jack got himself drunk, and shouldn’t be able to put that responsibility onto the bar that served him.

That’s the argument anyway. Counter-argument: now the bar gets away scot-free for breaking the OLCC guidelines regarding over-serving. And make no mistake: La Costita served a 24-year-old woman who was out drinking with her boss, and they served her enough to get her to THREE times the legal limit. Depending on her body weight and how much time passed, that’s probably six to nine drinks, though it could be even more.

Based on the Court of Appeals decision, one of the arguments that her lawyer Randy Pickett made was that the law prohibiting people from suing a bar that overserved them violates Article I Section 10 of the Oregon Constitution. This is a much-beloved section of our state’s Constitution that reads: ” . . . every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” So Picket’s argument is that ORS 471.565 is unconstitutional because it leaves Schutz with no remedy for an injury done to her by the restaurant.

A jury already has the duty to compare the negligence of different parties before issuing a verdict, i.e. they have to make the decision as to who is at fault and to what extent. So if a jury decided that Schutz was 50% responsible (she should have stopped drinking sooner, or taken a taxi), but La Cosita was also 50% responsible (they should have stopped serving her sooner, or called her a taxi), then La Cosita would be responsible for 50% of any damages.

And what’s more, if La Cosita was 49% or less responsible, they wouldn’t have to pay anything at all, according to Oregon comparative negligence laws. So there’s already a mechanism in place by which a jury of our peers can determine whose fault it was. ORS 471.565 takes away the chance to have a jury consider the facts of this particular situation and make an informed decision. It takes away Schutz’s right to her day in court, and I hope the Supreme Court holds it to be unconstitutional.

The Court of Appeals took this argument seriously but decided against it based on Oregon Supreme Court cases already on the books. I don’t have any inside information on this case, and I have not spoken with any of the lawyers involved in it, but my guess is that Pickett Dummigan expected to lose in the Court of Appeals, and that their plan is to use this case to ask the Supreme Court to reconsider the constitutionality of ORS 471.565.

As I said at the start, it takes a brave lawyer to bring a case that asks the Supreme Court to make a law unconstitutional. They will be putting in years of litigation, and lots of time and expense, without any hope of recouping any of it if they don’t win. And it’s a long shot. Portland personal injury lawyers like Pickett, and others who are willing to take on this kind of litigation risk, are heroes in my book.