Wednesday, July 21, 2010

House Bill No. 2246

Imagine that you have been selected for Jury Duty and you are called upon to decide a personal injury case. The plaintiff, a young woman, was severely injured when a car driven by an intoxicated young man ignored a steady red light and crashed into her vehicle. The young plaintiff is seeking money damages for the injuries she claims were caused by the intoxicated defendant. If you reside in our Commonwealth, you will be asked to make a decision on the amount of money damages, if any, that should be awarded to the young victim. The intoxicated driver, although this will not be revealed to you, will be represented by an attorney hired through his insurance company and any award against him will, in nearly all instances, be paid by his insurance company. You, as a juror, will hear the evidence presented by "both sides" and at the conclusion of the trial will be asked to decide the case by awarding money damages to the plaintiff. At no time will anyone, plaintiff’s lawyer, defendant’s lawyer or judge be permitted to speak to you about the amount of money damages. You will be asked to determine the amount of money damages in the abstract and may, as many suggest, be relegated to a blind guess. Although you will be asked to make such a decision, no witness will have testified as to the value or lack of value in the plaintiff’s claims, including her claims for pain and suffering.

In cases involving automobile collisions, thirty-seven states and the District of Columbia permit the attorneys to argue and suggest monetary damages. Unfortunately, Pennsylvania remains in the minority.

The Senate of Pennsylvania has the opportunity to remedy this problem. House Bill No. 2246 permits argument on the amount of damages in motor vehicle crash cases. This legislation would bring Pennsylvania in line with the overwhelming majority of states and would certainly help to prevent unfair, unreasonable and "blind guess" verdicts. The legislation does not in any way alter Pennsylvania’s rules of evidence or any other legislation applicable to the trial of a motor vehicle injury case. Most observers, including attorneys who represent the plaintiffs as well as the defendants through the insurance carriers, believe that House Bill No. 2246 would right many wrongs and result in fairer verdicts thereby benefitting both parties involved in the litigation. Most defense lawyers believe that House Bill No. 2246 will help to prevent excessive verdicts, or what many call runaway verdicts, while plaintiffs attorneys believe that the legislation will also prevent the inadequate or unfair verdict when evidence may warrant a different result.

Unfortunately, we in Pennsylvania know all too well the sometimes cumbersome nature of the legislative process. Perhaps House Bill No. 2246 is different. The Bill passed the Transportation Committee on an 8 to 2, largely bipartisan, vote. It also passed the House with relative ease receiving support from both sides of the aisle. Perhaps the Pennsylvania Senate will follow suit. In September the Senate will be asked to vote on this legislation. Many if not all legal scholars support the passage of this legislation. Should the Senate act favorably, most observers believe that Governor Rendell will promptly sign House Bill No. 2246 and help bring clarity and guidance in the resolution of motor vehicle injury claims.

Submitted by:
James T. Davis, Esquire

Monday, February 22, 2010

Civil Liability and the Drunk Driver

Driving while under the influence of alcohol or "drunk driving" is strictly prohibited by the criminal statutes of the Commonwealth of Pennsylvania. A person convicted of "drunk driving" may be sentenced to prison for up to five (5) years. Other penalties, including operator license suspension, out patient and in patient treatment, and the requirement for a motor vehicle interlock device may also be imposed depending on the number of prior convictions, the amount of alcohol in the blood, whether there was an automobile collision and whether someone was injured or killed. Much has been written about the criminal penalties for drunk driving and it seems that the publicity and discussion stops there.

What of the civil liability that might be imposed on a drunk driver who, while under the influence, causes a collision resulting in injury or death to an innocent person? What of the civil liability for the tavern owner when an employee has served alcohol to a visibly intoxicated person or to a minor who is unlawfully obtaining alcohol at the establishment? What of the civil liability for the individual, commonly known as the social host, who provides alcohol to a visibly intoxicated guest or a minor?

The drunk driver who causes injury or death is subject to civil liability for the pain, suffering, inconvenience, medical expenses and wage loss which the negligent act has caused and, in addition, may be subject to punitive damages, which are damages designed to punish one’s outrageous conduct. Although the drunk driver’s automobile insurance carrier may provide protection, that protection may be insufficient to compensate the injured party. However, the insurance contract will not protect against punitive damages. In addition, a victim of a motor vehicle collision with a drunk driver who has elected limited tort which, in this writer’s opinion is a serious mistake, will be treated as if full tort had been elected.

Although Pennsylvania courts have long recognized that a liquor licensee (tavern owner) may be liable for injuries or death cause by an intoxicated driver who was served alcoholic beverages while visibly intoxicated, the courts have yet to recognize social host liability for a similar event. In other words, the homeowner who serves alcohol to a visibly intoxicated person will not be held liable, at least at this point in time, for the injuries caused by the intoxicated person. Pennsylvania courts have recognized social host liability when an adult social host provides alcoholic beverages to a minor, particularly if that minor is visibly intoxicated. The courts have yet to extend this social host liability when the social host is a minor who has provided alcohol to another minor.

Whether the legislature will, in an effort to bring greater restraint and responsibility to the social host, adopt legislation which will impose additional liability on the social host remains to be seen. However, it is likely that these issues will be revisited by Pennsylvania’s Appellate Courts and, as in other states, the Appellate Courts may extend the social host liability to the intoxicated guest as well as the minor guest.

The message is clear to the driver, do not drive drunk for you not only risk prison but also complete financial disaster; to the social host, do not provide alcohol to minors or to an intoxicated person; and, of course, to the tavern owner, do not permit a minor to obtain alcohol in your establishment and never serve the intoxicated patron. A further word of advice to the tavern owner, purchase liquor liability insurance as it may be impractical to constantly police the patrons being served at your establishment.

Submitted by:

James T. Davis, Esquire