Time of sunset becomes key to proving lodge was negligent

Time of sunset becomes key to proving lodge was negligent

Natalie White

(This article originally ran in Lawyers Weekly USA, Boston, MA, another Dolan Media publication.)

A Moose Lodge in Bellingham, Wash., was ordered to pay $14 million to victims of a car crash that occurred after a bartender at the lodge served drinks to her intoxicated boyfriend.

The most challenging aspect of the case was piercing the loyalty of lodge members, according to plaintiffs’ attorneys James DeZao and Steven J. Chance.

Unlike most dram shop cases, this lawsuit was against a private members-only club.

This was a private club, basically an old boys drinking network, said DeZao. They take an oath to uphold the fraternity. They definitely stonewalled us and circled the wagon. It wasn’t until we went outside the circle that we got information to make our case. We learned in a case like this you really have to think outside the box and go to peripheral sources.

The Accident

Bianca Faust, 48, of New York and her son were visiting Faust’s daughter Bianca Mele and her newborn in April 2000. On the night of the accident, Faust was driving along LaBounty Drive when a van driven by Moose Lodge member Hawkeye Kincaid, 57, swerved into her lane and crashed into her car, the plaintiffs’ attorneys said.

Kincaid was rushed to the hospital, but died a short time after the accident. Chance said blood work showed Kinkaid’s blood-alcohol level was 0.14, significantly higher than the legal limit of 0.08.

Chris Faust was 7 years old when the crash left him paralyzed from the waist down. His mother, who was driving, suffered a broken nose, a broken knee and facial lacerations. Her injuries required a knee replacement and she still has scars on her face.

Faust’s daughter, Bianca Mele suffered two broken wrists and facial lacerations. Her infant escaped the accident uninjured.

After a four week trial, a Whatcom County jury awarded $10.2 million to Chris Faust, $2.1 million to his mother, $1.7 million to her adult daughter and $10,000 to the daughter’s husband for loss of consortium.

Piercing the Brotherhood

On April 21, 2000, the Bellingham Moose Lodge No. 493 was hosting a dinner for members. The key issue in the case was whether Kincaid was already drunk when the bartender, who was also his girlfriend, served him drinks at the lodge.

Everyone agreed that more than two dozen people showed up for the Friday night event, run by the lodge’s women’s auxiliary. Yet finding witnesses who were at the lodge that night was problematic. DeZao and Chance were only able to identify the few members mentioned in the police report. Those members said they could not recall who else was there that night, Chance said.

This was important to us because a person has to be served alcohol when he already appears to be under the influence, and this is an objective standard, explained Chance. We needed witnesses, but they kept saying that he didn’t appear to be under the influence and he only had a few beers. We couldn’t ask anyone else. We knew there were lots of other people there that night, but they kept saying they couldn’t remember anyone else who was there.

The bartender/girlfriend, along with three Lodge members and a Lodge member’s wife, testified that Kincaid did not appear intoxicated while he was at the bar and that he only had two beers.

Frustrated, Chance and DeZao cast a wider net, including friends and family of Kincaid.

Their persistence paid off.

Kincaid’s daughter told them that the bartender admitted to her that Kincaid was drunk, that they had a fight and he left, but that she never should have let him drive. Another friend said the bartender said the same to her.

Because she was a defendant in the lawsuit, that is considered an admission of a party, and we could introduce that as evidence, Chance said.

Another key to the case was the time Kincaid left the lodge. Witnesses at the lodge said they could not say exactly when Kincaid left, but that they thought it was between 5:30 and 6 p.m. If that was accurate, there was quite a bit of time between his departure and the accident, which would have given him time to drink alcohol in another setting before the accident.

But two lodge witnesses gave the testimony Chance needed when they mentioned that Kincaid left at dusk.

We argued to the jury that they just weren’t going to get straight information from these witnesses, said Chance. They had taken an oath to become members, an oath to defend their brothers, a very self-protecting oath – and in this instance they were really walking the line. But one of the members said he remembered Kincaid pulling out of the parking lot behind him, he didn’t know what time, but that it was about dusk. Another member said he left at about 7:15 to 7:30 and that it was dusk.

Sunset that night was 8:11 p.m.

The court told the jurors that it was established fact that sunset was at 8:11 p.m., and from talking with the jurors afterward they said that turned out be an important fact for them, Chance said.

DeZao and Chance said they also argued that the lodge was negligent in not exploring the bartender’s past job experience. If they had, they would have found that she had previously been in trouble for alcohol-related incidents, such as serving her boyfriend and ignoring customers, and drinking and serving after hours, Chance said.

Kincaid became a member shortly after the bartender was hired.

They should have looked into her prior employment history, said Chance. It would have been prudent for them to contact prior employees and check. Because they didn’t, we argued negligent supervision and management.

The plaintiffs’ attorneys said they expect the verdict to be appealed. Insurance is likely to be responsible for damages.

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