3 Things You Need to Know ASAP If You Are Seriously Injured by A Drunk Driver
We have recently begun representing a client and her child who were very seriously injured in a car accident when they were hit head on by an alleged drunk driver. My hope is to provide helpful information to anyone who may unfortunately find themselves (or a loved one) in a similar tragic situation.
As soon as reasonably possible after being injured by a drunk driver a person must get answers to the following three questions:
(1) Does the Drunk Driver have Adequate Insurance to Fully Compensate you for your Injuries?
To answer this question, you most certainly will need the assistance of an experienced personal injury lawyer. The first thing we do when a client comes to us after being seriously injured in a car accident caused by a drunk driver is investigate insurance coverage. We do this in several ways. We will obtain all police reports that were generated because of the accident that may identify insurance carriers. We will then immediately put those insurance companies on notice that we represent the client and require them pursuant to Massachusetts law to provide us with the drunk driver’s insurance coverage limits.
In very serious cases, it’s unlikely the drunk driver will have adequate car insurance to provide full coverage for our clients often catastrophic injuries. There are times however when our client’s injuries are less severe and the drunk driver’s coverage is sufficient. If that is the case, then we will pursue our client’s claim directly against the driver of the car.
If, however we determine that the drunk driver’s insurance coverage is inadequate to fully compensate our client, we will investigate whether there are other at fault parties, such as a bar or restaurant who over served the drunk driver. (I will discuss in a subsequent blog the issues that arise if the person was drinking at private party or residence) This leads us to our next question.
(2) Where did the Drunk Driver Consume the Alcohol which made him Drunk?
If we can determine where the drunk driver consumed alcohol, we will then investigate whether the bar or restaurant bears any responsibility for putting the drunk driver on the road in an intoxicated state. Discovering where a defendant had his or her last drink is often very difficult. Occasionally a police report will indicate where the defendant was drinking but oftentimes that information is missing. People arrested for drunk driving often don't provide much information to the police for obvious reasons as they face serious criminal penalties. Most people are aware that it is in their best interest not to divulge too much information after being arrested. In many cases, we will follow the criminal prosecution of the drunk driver closely and see what that process reveals with respect to where the drunk driver was drinking. If the criminal case goes to trial, we will sit in on the trial to see what the testimony of the witnesses reveals.
If we can determine the identity of an establishment that served the defendant alcohol, we will then move on to step three.
(3) Do you have a legal claim against the bar or restaurant that served the drunk driver alcohol?
In Massachusetts, to successfully sue a bar or restaurant for injuries a drunk patron causes in a car accident, the following must be proven:
- the drunk driver was a customer of the restaurant or bar;
- the bar or restaurant served the drunk driver alcohol;
- alcohol was served while he or she is intoxicated;
- and this alcohol was served under circumstances from which the bar or restaurant knew or reasonably should have known the drunk driver was intoxicated when he was served;
- the drunk driver operated a motor vehicle while intoxicated;
- such operation of the drunk driver’s car was reasonably foreseeable by the bar or restaurant;
- and a person of ordinary prudence would not have served the person in the same or similar circumstances;
- and such operation of a motor vehicle caused the client's death or injury within the scope of the foreseeable risk.
If you can establish each of these elements you may be able to proceed against the bar or restaurant in addition to the drunk driver for compensation. These types of cases are called a dramshop cases.
Dramshop cases are difficult and successfully prosecuting one requires a thorough investigation and good lawyering. Massachusetts law requires in order to be successful in a dramshop case the injured party must show that the bartender (or server) knew or should have known that the customer being served was intoxicated. Now this can present a host of challenges for you and your lawyer. You may not have the benefit of blood tests or breathalyzer results confirming intoxication, witnesses may disappear or be reluctant to provide information which you will need. You and your attorney will also want to investigate whether the bartenders and serving staff were properly trained to serve alcohol and how to identify the subtler signs of intoxication. Unfortunately, answers to most of these questions can only be obtained (if ever) by filing a lawsuit and subpoenaing witnesses to testify and requiring the bar or restaurant to produce documents and surveillance video of the date in question. Again, it can’t be stressed enough, an experienced attorney is a must in a dramshop case as they are more likely to go to trial than other less serious car accident cases.
The best thing you can do if you are injured in a car accident and want to be fairly compensated is to understand your legal rights before you make any decisions. Before you speak to an insurance company adjuster, sign or submit any paperwork or hire a lawyer, you owe it to yourself to get as much information as you can, so you can make a smart decision on what you need to do next. At Spada Law Group, we offer free consumer guides and videos that answer many of the questions car accident victims have. Take a look, download our free information or contact us for a free consultation. Learn what Spada Law Group is all about and how we might be the right personal injury lawyers for you and your dramshop case.