Boesch Case

Boesch v. “Anonymous, Inc.”, Middlesex Superior Court

Type of Action: Dramshop

Injuries Alleged: Shattered spleen; pulmonary contusion; pneumothorax; fractured ribs; fractured jaw; sinus fracture; basal ganglion bleed

Result: $350,000 Settlement During Trial

Date: November 8, 2002

Case Summary:

In March 1999 on an early Sunday morning, a drunk driver crossed the median separating the entrance and exit ramps on Route 3 and Route 113 in Tyngsboro and slammed his Ford Bronco into the injured plaintiff’s pick up. The injured plaintiff, a 40 year old man, was on his way home from playing hockey with some friends. He was extricated with the jaws of life and life flighted to UMass Medical Center for emergency surgery. Although the drunk driver refused a blood test, he subsequently admitted to the charge of operating a motor vehicle under the influence of alcohol causing serious bodily injury and served thirty days in jail. He identified the defendant bar as the last place that he had consumed alcohol prior to the accident.

Following resolution of the criminal case, plaintiff’s counsel obtained an affidavit from the drunk driver stating that he was visibly intoxicated at the time of the accident. Even after providing this affidavit, the drunk driver continued to tell different stories regarding the evening in question. Eventually, discovery and investigation revealed the following facts. On Saturday night, the drunk driver arrived at the defendant bar (which was a separate room of a Chinese restaurant) and was served at least eight beers in approximately an hour and a half by the same waitress. Both the waitress and her boyfriend, however, testified at deposition that the drunk driver did not appear intoxicated prior to being served his last beer. Nonetheless, the waitresses’ boyfriend admitted that shortly before being served his last beer, the drunk driver began crying when the D.J. played a song that reminded him of his ex-girlfriend. The drunk driver then knocked two beer bottles off his table, picked up an ashtray and threw it at the wall where it just missed a woman’s head. The drunk driver then ran out of the bar. The waitress testified both at deposition and at trial that had the drunk driver not left the bar after throwing the ashtray she would have continued to serve him as he was merely depressed about breaking up with his girlfriend. During the first day of his deposition the drunk driver testified that he was not visibly intoxicated at the time he was served his last beer and was not drunk at the time of the auto accident. During the second day of his deposition he finally admitted that before being served his last drink he was showing signs of visible intoxication including bumping into people, having difficulty talking, and, most dramatically, stealing a shot from another patron’s table, drinking it, and slamming it to the floor. At trial, the drunk driver claimed that due to a subsequent accident he had a complete absence of memory regarding the evening in question, and accordingly the trial judge allowed both sides to read in portions of the drunk driver’s deposition. Both the waitresses’ boyfriend and the drunk driver testified that on prior occasions they had been served while intoxicated at the defendant bar.

As a result of the accident, the injured plaintiff sustained a shattered spleen, pneumothorax, fractured jaw, fractured ribs, pulmonary contusion, and other injuries The emergency room trauma surgeon testified by videotape deposition regarding the injured plaintiff’s injuries and the necessary treatment including a splenectomy, insertion of a painful chest tube, and an in-patient hospitalization. By the time of trial the injured plaintiff was no longer suffering from obvious effects of his injuries. The injured plaintiff’s wife also brought a consortium claim.

Defendant was prepared to present additional witnesses who would testify that the drunk driver was not showing visible and obvious signs of intoxication prior to being served his last drink and was prepared to present expert testimony that the drunk driver would not have been showing visible and obvious effects of intoxication after consuming eight beers. Defense counsel also suggested that the drunk driver likely consumed alcohol somewhere after leaving the defendant’s premises. The defendant also maintained that the fact that the drunk driver was not arrested the night of the accident indicated he was not intoxicated and disputed the severity of the effects of the injured plaintiff’s injuries.

The case settled at the start of the third trial day. By this time plaintiff had presented the testimony of the waitress; the waitresses’ boyfriend; the treating trauma surgeon (by videotape); the plaintiff’s passenger; and the drunk driver (who sat mute in a wheelchair while both sides read portions of his deposition testimony). Had the case continued plaintiffs’ next witness was the co-owner of the bar who was also the bartender that night. Plaintiffs also intended to offer expert testimony that the drunk driver would have been showing visible signs of intoxication and, of course, their own testimony. They also intended to call the State Trooper who investigated the accident.

The defendant bar settled for $300,000. Prior to commencing suit the drunk driver’s automobile insurer had tendered its policy limits of $50,000.