Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected.
(00:14):
We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We will also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Dirk Derrick (00:42):
Welcome to the Legal Truth podcast. Today's topic is the truth about claims against drunk drivers and the bars that over-serve them. I'm Dirk Derrick. I'm here with Pearl Carey from our marketing department who is on her third podcast and who is now a professional podcaster.
(01:01):
And Dorsey Strickland, who's an attorney here at the Derrick Law Firm. And we're going to answer questions that the general public has about claims against drunk drivers and the bars that over-serve.
Pearl Carey (01:12):
Absolutely. Well, thank you so much for that introduction. I'm so excited to be here and to get started. So first off, can you briefly explain the concept of liability in drunk driving cases involving bars that are over-serving?
Dirk Derrick (01:25):
Yep. When a drunk driver hits someone out on the roads, it creates two causes of action or two defendants. It's the drunk driver who's driving drunk, and that opens a claim for both actual damages and punitive damages against the drunk driver, but it also opens a claim against the bar if the bar knew or should have been on that the driver was drunk when they were still serving them.
(01:51):
These cases are bad cases, often bad damages. These are cases that we really want to get involved in quickly to go find the evidence, which we're looking at dashcam, anything we can find at the scene to find out if this person who's drunk has just left a bar or bars because we want to get into those bars as quickly as possible to find receipts and evidence and surveillance and evidence of them serving a drunk driver.
Pearl Carey (02:22):
So Dorsey, what kind of laws and regulations in South Carolina do we have to address liability for these bars that are over-serving people?
Dorsey Strickland (02:30):
So South Carolina does not have specific dram shop laws as some states. We do have alcohol control laws and those laws regulate folks or establishments who have alcohol license. You have rules you have to comply with, and among those are a establishment with an alcohol license, can't serve to underage folks and they cannot serve to someone that they know or should know is intoxicated at a time of service. And those statutes create the civil liability for establishments that sell alcohol.
Pearl Carey (03:01):
So how do South Carolina's dram shop laws come into play in these cases?
Dirk Derrick (03:07):
Well, it comes into play if we determine through our investigation that this person has been at a restaurant or bar being served after they were intoxicated, I think of it as a drunk person's responsible for their own conduct until they're visibly drunk or you should know they're drunk.
Pearl Carey (03:28):
Okay.
Dirk Derrick (03:28):
At that point in time, the bar shares in the liability if they continue to serve people who they know is intoxicated or should know based on the number of drinks they've given him or the symptoms or his outward appearance at the bar.
Pearl Carey (03:44):
So I know that we touched on there being some different kinds of ways you can identify that someone is visibly drunk and maybe that that bar should not continue serving them drinks. So I know you said symptoms are some of those factors. What are some other factors that a bar can use to identify if someone is drunk and should not be served anymore?
Dorsey Strickland (04:06):
So one of the first places that bars typically don't do what they should do is a lack of training. There are programs such as there's tips, there's safe serve and a few others. They have online programs, they have programs where people will come to your office and they'll train your staff. That may be the outward signs of intoxication that Dirk mentioned, slurred words, red eyes, stumbling around, some of those things that most anybody would know this person has had too much.
(04:35):
But there's also that time period from which you drink and then you absorb the alcohol and then you start showing those signs. What those servers have to know is they have to know what to look for. They have to know how to talk to folks. They have to know that have I served this person that's 125 pounds, eight drinks in an hour and a half?
(04:53):
Maybe that person isn't showing those signs at that immediate time they serve that eighth drink, but they should know if they're trained appropriately that that's way too much and when that person now leaves, by the time they're 10 minutes down the road, they're dangerous.
Pearl Carey (05:06):
Right. So you said if they're trained appropriately, are there any law surrounding bars having to do this training? Is it mandatory in any sense of the word or?
Dorsey Strickland (05:15):
It's a good question and a good time to ask it. Currently, there is no requirement for any bar to train any bartender.
Pearl Carey (05:22):
Really?
Dorsey Strickland (05:23):
Go in tomorrow, no background check, no nothing, and you can serve alcohol. There's some current legislation that is trying to be pushed in Colombia that would require 60 hours of training before someone is allowed to serve alcohol and make sure that at least every five years they renew a certificate. It shows they have at least been refreshed on these training principles of safe service of alcohol.
Dirk Derrick (05:45):
Just to comment on that, I find it interesting that there are some people in the industry that fight that bill. There's people in the restaurant bar industry, they're trying to fight the law that they should train their employees. Some of the same people are fighting the law that they should have to have a million dollars worth of insurance coverage.
(06:07):
I think it is a little bit about wanting to stay ignorant to the fact somebody's drunk or deniability that you knew somebody was drunk. I just don't understand why they would have a problem spending $60 every five years for people be trained on identifying who's intoxicated.
Pearl Carey (06:25):
It appears like money should not be as much of an issue in the sense of certificate.
Dirk Derrick (06:30):
You look at bars and restaurants and that alcohol business, alcohol has a huge markup. I mean, if you look online somewhere between 26 80% profit margin. They're hiring waitresses and bartenders who make most of their money from tips.
Dorsey Strickland (06:45):
Waitresses I think is $2.13 an hour. Bartenders are generally going to be more paid, more of a larger salary per hour.
Dirk Derrick (06:52):
So they got $2.13 in their workforce, their waitresses. I just don't see why anyone in that industry wouldn't support the law to train people to keep drunks off the road.
Pearl Carey (07:06):
So obviously, maybe some of this might change soon, but when you're building a case against a bar that might have over-served someone, what is some of the evidence that you guys really need to look for in order to build this case?
Dorsey Strickland (07:18):
To piggyback on the training topic, that's one thing. Do they train them? I've done the tips training just so I know how to handle these cases. It took a couple of hours and I think it cost maybe eight bucks.
Pearl Carey (07:29):
Really?
Dorsey Strickland (07:29):
It's not a complex, it's not a long-
Pearl Carey (07:32):
Crazy expensive-
Dorsey Strickland (07:33):
Did it in an afternoon, learned about service of alcohol and I don't serve alcohol. But now I know it. The things as far as just evidence that we look for. One is, if there's any video footage, of course you want to find the video footage. You want to find any receipts, whether it be credit card statements, point of sale software. So when that bartender rings it into their computer system, it lists those drinks.
(07:54):
It should have those by number along with that receipt. It should have the time it was open, the time it was closed. So now we can tell how long that person, the time period for which they consumed whatever amount of drinks it may be. We look for witnesses of course, and take depositions of those folks to see what may have happened that night. Another thing that we can do that is really helpful in cases where someone does get a DUI, many times they do not submit to a blood alcohol test or a breath test.
Pearl Carey (08:23):
Of course.
Dorsey Strickland (08:23):
So we have no real qualitative way of finding out what their blood alcohol level would've been. But there are toxicologists doctors who can come in and look at the person's height, weight, gender, the time they drank X amount of drinks, and they can extrapolate and determine one, what that blood alcohol content would've been within a reasonable range.
(08:44):
And two, if this person was in that range, the signs and symptoms and outward signs they would have shown. That's what we run into a lot from an evidence standpoint is of course the server says, I didn't notice anything wrong with this person. And what those toxicologists can then do and say, if this 125 pound female consumed eight drinks in an hour and a half, her blood alcohol level would have been in this range.
(09:08):
And at this range, these are the outward signs that people will show. And this just medicine. That's not some subjective opinion. That is, we know from studying that if you're at this level, you show these signs and that helps us get over the hurdle of proving that these folks should have known they were intoxicated.
Pearl Carey (09:25):
Right. It keeps the server from maybe claiming like, well, I don't know. It just anything could happen.
Dorsey Strickland (09:30):
Right? And that's generally the response you get. And candidly, if they're not trained, they may not know. They also have that internal conflict of they have to make money and they're getting paid $2.13 an hour and people that you cut off from service probably aren't going to give you a very good tip. So they're worried, do I cut off this person? I don't make money. Is my boss going to be mad and now I've run a customer off?
Pearl Carey (09:54):
Exactly.
Dorsey Strickland (09:55):
And sometimes those servers, although they become the subject of the case, are really not the cause of the issue.
Dirk Derrick (10:01):
Following up on what Dorsey said about evidence and what evidence we use, this is one of those cases where fast investigation is necessary. It may surprise you, but people don't just turn over surveillance camera, credit card receipts, witness statements from inside bars and restaurants.
(10:19):
When we get involved, we immediately try to get the dashcam from the officer's car that worked the wreck because very often, these people are sitting in the back of a car. You can see their intoxication, you can see the shape they're in at the time of the wreck. Very helpful for our time.
Pearl Carey (10:39):
That's the first step?
Dirk Derrick (10:39):
First step.
Pearl Carey (10:39):
Got it.
Dirk Derrick (10:41):
At the same time, on the day that we are hired or the day afterwards we get a letter of preservation served on the bar that tells them you preserve receipts, you preserve surveillance, and you preserve any evidence that this person was in your restaurant or bar drinking the law says they're supposed to preserve that.
(11:01):
It's very important because surveillance cameras overwrite themselves, so you want to get in there fast and preserve it. If they say they don't have something and you have to do some investigation as to whether or not they got videotapes on all the other nights and just don't have it on that night.
(11:16):
But if they get rid of that evidence after we send them a letter of preservation, when you try the case, you may be able to get an instruction from the judge telling the jury that they can assume that that evidence was bad for them if they got rid of it after you told them to hold onto it.
(11:33):
So we're trying on these cases to find out as fast as possible where the driver's coming from and find out what restaurants they've been to so we can do the discovery in that as quickly as possible. And often we go ahead and file a lawsuit as quickly as possible to get in, get the video, get the witness statements, talk to the witnesses. Because if you Myrtle Beach or Charleston, people come and go, they hear this summer, they're gone next summer. You want to get to-
Pearl Carey (12:04):
Things change quickly.
Dirk Derrick (12:04):
Quickly. These cases require fast investigation.
Pearl Carey (12:10):
Speaking of filing these claims quickly, what is the timeline for filing a claim against a bar that might be over-serving their clientele
Dirk Derrick (12:18):
Quickly. Those, we don't usually wait around. I mean, there's cases that you can build and you can get 95, 98% of the facts to evaluate what the real value would be your client without litigation. Dramshop cases aren't those cases. A lot of times against the drunk driver, we have enough evidence to get all the insurance they may have and we'll check to see if they have assets.
(12:44):
But if it's just a drunk driving case, we get the dashcam prove they're intoxicated. Those we're quite often able to get with the Dramshop element takes litigation. And the reason it's important to hold the bars in the restaurants responsible is the law recognizes that this is A, are person over drinking And the person over serving have combined to put this person on the road with our family and have caused the damage.
(13:14):
The truth is, if somebody's got a bunch of DUIs and have the habit of driving drunk, most of those people don't have much insurance if they have any insurance. So they may have minimum limits of $25,000 of liability coverage and they've just hit a family and caused all kinds of damages. So we need to get in and find out if somebody over served them in order to protect them.
Pearl Carey (13:36):
Because that takes longer.
Dorsey Strickland (13:39):
And to the extent that you were asking about the statute of limitations, that is generally three years on these types of cases, but do not ever wait that long.
Pearl Carey (13:47):
Two years?
Dorsey Strickland (13:48):
Right, because in three years all of the evidence is gone, people don't remember well, it's just that's the hard and fast line on it. But do not ever, ever wait that long.
Pearl Carey (13:57):
So what role does insurance play in these cases with the victim and the bar?
Dirk Derrick (14:03):
I'll start it and I'll let Dorsey talk about some legislation up in Columbia now. In South Carolina, the bars have to carry $1 million worth of liability insurance.
Pearl Carey (14:16):
Right.
Dirk Derrick (14:16):
In South Carolina, the drivers only have to carry 25,000 in liability.
Pearl Carey (14:20):
So that's the minimum?
Dirk Derrick (14:21):
That's the minimum.
Pearl Carey (14:22):
Gotcha.
Dirk Derrick (14:23):
So within the first 45 days, we have a paralegal in our firm that her job is to go find all the insurance policies so we can read them and find out what the total coverage is. So we want to know what the total coverage is as fast as possible, and then we look at all the coverages.
(14:39):
In a dram shop case, you'll have the liability on the drunk driver and hopefully your client will have what's called underinsured motorist coverage to cover damages that are above what the drunk driver has. And then you have the dram shop to look at up until just a few years ago, bars didn't have insurance
Pearl Carey (15:00):
Really?
Dirk Derrick (15:02):
2017.
Pearl Carey (15:02):
Oh my gosh.
Dirk Derrick (15:03):
So you'd get a case, a dram shop, it'd be on the LLC's name and they would have no assets in the LLC and no insurance.
Pearl Carey (15:13):
So what do you do then?
Dirk Derrick (15:14):
You do not. I mean, you go without.
Pearl Carey (15:16):
Really?
Dorsey Strickland (15:17):
That's the person that got injured from the result of the drinking in the bar, does without.
Pearl Carey (15:22):
No way.
Dorsey Strickland (15:23):
The bar closes up, opens under a different name and there's-
Pearl Carey (15:26):
No wonder there's new legislation coming into play here. Makes sense.
Dirk Derrick (15:29):
But that was a problem. The state finally recognized that was a problem and we're top 10 in the country as far as death cases that caused a drunk driver. We are a terrible state when it comes to deaths caused by drunk driving.
Pearl Carey (15:42):
Dangerous.
Dirk Derrick (15:43):
So in 2017 they said, Hey, you got to have a million dollars worth of coverage. That has helped a lot of families, a lot of victims and it still and understand bars and restaurants, the majority of them don't have a problem. You go to a restaurant, you drink two glasses of wine or a glass of wine or drink with your meal, those people aren't getting sued. We all know places that over serve people and knock-out people off where underage people can go and drink all they want.
Pearl Carey (16:11):
Absolutely.
Dirk Derrick (16:12):
Those people have caused a liability insurance problem with a lot of people in the state because premiums have gone up because they have not changed.
Pearl Carey (16:24):
Same thing.
Dirk Derrick (16:25):
Same thing. And now they're pushing to do away with some of their liability. If Dorsey wants to talk about that law.
Dorsey Strickland (16:33):
And I think we're talking about what is dram shop liability. I think another part of that is what is not, and that's what they talked about. When you go to dinner and you have a glass of wine with supper and where you have two glasses and you drive home and you're not over the legal limit.
(16:47):
There's a push out there from the insurance lobby at Stockholm that, oh God, if you serve anybody any alcohol and they get a wreck, you're getting sued. One, these cases involve people who are grossly intoxicated and cause catastrophic injury.
(17:02):
So if you have that glass of wine and you bump into somebody on the way home, the bar does not get sued. There's no liability of one. You can't meet the hurdle have to prove that that bar knew or should have known somebody was intoxicated when they serve them the alcohol.
Pearl Carey (17:14):
So it's in these extreme cases where someone is slurring their words or keeps ordering drinks and nobody's cutting them off?
Dorsey Strickland (17:20):
And where they leave and somebody gets really hurt bad.
Pearl Carey (17:23):
Right.
Dorsey Strickland (17:25):
If the person's not injured or injured badly at all, then the liability coverage from that person that was driving drunk usually takes care of them and makes them whole. Where these come into play is where you've got the really excessive drinking and service of alcohol to that person and the catastrophic injuries coupled with it, and those people who are catastrophically injured are the victims.
(17:45):
So in Columbia right now, there's some legislation pushed to do away with the joint and several liability. Dirk talked about it earlier. That is when you have a bar that over-serves a driver who over consumes, it gets behind the wheel and then they cause catastrophic injury.
Pearl Carey (18:00):
So it's all three of those in combination.
Dorsey Strickland (18:02):
What the law says now is you have now joined yourself together to create this harm and you are jointly and severally liable for that without getting too deep into the weeds of the legal stuff. That means that if a jury brings back a verdict, you are both responsible for that full verdict and the innocent person doesn't have to do without cause of percentages of fault created too.
(18:26):
There's a push to get rid of that. The insurance lobby and the bar and restaurant industry are complaining that it costs too much to have this insurance because there are too many of these types of claims made. I think that that's misguided. If there's too many of those claims made, it's because there's too much or service or responsible service going on, not because the insurance is just too high.
Pearl Carey (18:48):
So going forward with the laws that we have now in South Carolina, what kind of damages can I seek if I have been a victim of someone that was driving drunk and may have been over-served?
Dirk Derrick (18:59):
Well, you have both actual damages and punitive damages.
Pearl Carey (19:02):
Okay.
Dirk Derrick (19:03):
Actual damages compensate someone for the injuries they sustain. That's medical bills, lost wages, pain and suffering, loss of enjoyment of life, future medicals, future loss of earnings, mental anxiety, just the elements that the state recognizes as being elements of damages. And that's to compensate to pay back the victim for what they've spent and to fix what you can fix and to also compensate for things you can't fix. If someone's got a lifetime injury, now they got to do... And then you have punitive damages. Punitive damages are to punish reckless wrongdoing.
Pearl Carey (19:44):
So it's more of the principle of it.
Dirk Derrick (19:44):
Yeah, in a typical little church lady pulls out in front of somebody and it is just negligence ran a stop sign, no punitives. In cases where there's drunk driving and serving people who are obviously intoxicated, if it's reckless and the jury finds this is reckless conduct by clear, convincing evidence, then they can award punitive damages, an amount to punish both the drunk driver and the bar.
Pearl Carey (20:07):
Gotcha.
Dorsey Strickland (20:08):
And I think in the punitive damages side, punitive damages are triggered by conscious disregard for the safety of other people. So the easy way of saying that is, you know it's dangerous and you just do it anyway. And if that happens you can then be punished. And another, sometimes they're called exemplary damages, which means to set an example.
(20:25):
So outside of just punishing the person who caused it, the other purpose of punitive damages is to be large enough that society as a whole or that person goes, whoa, we don't need to do that because here's an example of what can happen.
Pearl Carey (20:39):
So they can set precedent sometimes?
Dorsey Strickland (20:41):
Right? Send a message to the community, other bars, other drivers that if you do these things, this may happen. So you should refrain from doing that.
Pearl Carey (20:50):
So that would be the consequence. So if I'm a potential client and I was just a victim of maybe someone that was intoxicated hitting my car or being really injured from that, et cetera, what's the first thing that I should do?
Dirk Derrick (21:04):
Other than hiring the Derrick law firm? Well, whether you hire the Derrick law firm or not, you need to hire an attorney to investigate the case.
Pearl Carey (21:11):
Okay.
Dirk Derrick (21:12):
Like I said, fast investigations are very important. Invest case type and like Dorsey says, not every law firm handles them.
Pearl Carey (21:22):
So after I've hired my attorney and we're talking about my case, et cetera, should I be looking to go to trial or should I be looking more for a settlement situation?
Dirk Derrick (21:30):
When we take a case, we start from day one investigating and building the case and to get the real value. And that involves getting every fact in the world that's relevant to this case. After we get the facts, sometimes you can get them without litigation, sometimes you need litigation.
(21:51):
We then appraise the facts with our focus groups and to be able to give our clients information and the best knowledge we can give them as far as 12 people in the county in which it happened, that 12 jurors think about these facts, these issues and these damages.
(22:08):
We will give it to three groups usually before we go to court, but we're trying to give the client information for them to make the decision whether or not they want to take a settlement or go to court. It not come down to what the real value is and what the client wants to do.
(22:24):
Our policy is once we're hired, we're going to build it the best we can. We don't tell the client the pros and cons saying it's up to the client. They want to try it, we try it. If they want to take the money, we take the money.
Pearl Carey (22:31):
So at the end of the day, it's really up to the client?
Dirk Derrick (22:37):
Absolutely. It is.
Dorsey Strickland (22:38):
And I would say almost a hundred percent clients aren't burning up to just go to trial. They understand the risk that goes along with it and we want to give them the information to make an informed decision.
(22:48):
So while the whole time we're prepping it for trial, we're also working to give them the best information that if a settlement is good, then they've got that information there in front of them. If it's not, we've also worked on the other side to make sure it's ready for trial, if need be.
Pearl Carey (23:02):
Right. So on your side, it's just a matter of giving them the real value and then asking them what they want to do, correct?
Dorsey Strickland (23:08):
Right. You tell them the potential risk, potential benefits and let them make that informed decision.
Dirk Derrick (23:14):
For the first 30 years of practice, it would come down to, "Hey, what do you think? Should I take this offer?" And I would always answer, I don't know for sure. There's always felt like insurance industry had the leverage of time and the leverage of uncertainty that they used against our clients. Our clients don't want to walk out with nothing. A lot of them have lost a whole bunch of stuff up to that point.
Pearl Carey (23:38):
They're in a difficult situation, they want to be done.
Dirk Derrick (23:42):
Difficult time, they've gone through a long, if we've gone into litigation and they've been put in this situation, you tell them, he goes, your options like you really don't have a good answer. We started doing focus groups back in '19 to where we can run this past these jurors to find out how people thought about things and that's the missing link.
(24:04):
Up until then, insurance industry said we think the jury would do this with these facts. We thought they'd do this, but nobody knew for sure. They used the leverage of uncertainty to squeeze their clients. We are now able to give the facts to focus groups, see what they got to say, see what else they want to see, what they think about value and give that to our clients.
(24:26):
And it's been probably the best thing firm has ever done to be able to give people something other than I don't know. And I feel like we've taken it now and flip, taken away that leverage of uncertainty after you do it two or three times, you don't have the exact vertical amount when you do it one time, but you start getting data points.
Pearl Carey (24:49):
You're getting a range.
Dirk Derrick (24:50):
Getting a range and seeing how people respond to things. We never know how a jury's don respond to our client.
Pearl Carey (24:56):
Of course.
Dirk Derrick (24:57):
We never know how a jury's going to respond to the defendant, but if you send it to a focus group or two and there's 98% of them, disbelieve the defendant, 98% think the defendant ought to be punished, you start getting some confidence as far as what's going to happen in court.
Pearl Carey (25:13):
So I know that you guys talked a little bit about how training is really important for certain bars, but going forward, what would you guys say will be the most important in preventing these incidents from occurring where people are getting over-served?
Dorsey Strickland (25:27):
Well, I guess that question would be personally or from a legislative standpoint, there's different answers. I personally, don't do it.
Pearl Carey (25:34):
Right.
Dorsey Strickland (25:35):
Don't drink and drive, tell your kids not to do it.
Pearl Carey (25:36):
Of course.
Dorsey Strickland (25:37):
[inaudible 00:25:38] Those sort of things. From a legislative standpoint, I would encourage anybody who's watching this listening and concerned about drunk driving and what it causes in our community is to reach out, talk to your legislator, whether it be your senator, your representative, and ask them if this new proposals, these new laws that seek to gut the dram shop liability so to speak, and gut recovery for innocent victims, just ask them if this passes, well, innocent victims of drunk driving have less recovery. And the answer's going to be yes. They cannot honestly tell you that not what the answer will be. The answer should be yes. You're talking to politicians. Yes.
Pearl Carey (26:15):
Right. That's the bottom line.
Dorsey Strickland (26:17):
And that really isn't, and I certainly understand some of the arguments that the bars may make about fairness and drunkenness. But the way I look at it is, if I've got a bar who 12 people, by the time it gets to trial, I think maybe we back up and say, we talked earlier about it's not the bar who serves two glasses of wine that gets food, gives a big verdict.
Pearl Carey (26:38):
Of course not, yeah.
Dorsey Strickland (26:39):
In order to be responsible for a single penny to that innocent person, that bar has to be determined by a jury of 12 people who all agree that they violated the rules, that they serve them when they knew or should have known that this person was intoxicated.
(26:53):
So we're past the point of maybe not. 12 people have agreed you broke the rules and now you're responsible for it. So I think it's important that when we get to that point that if a bar has broken the rules, the driver has broken the rules and an innocent person's hurt. If there's any risk or any harm or anything that maybe isn't quite as fair as you'd like it, the driver that's harmed innocently is the one who should get the benefit.
Pearl Carey (27:17):
How do you divide responsibility for the bars over serving people and the drunk driver?
Dorsey Strickland (27:24):
Well, that's a hard question. And the short answer is you don't have to currently. So under the current law, there's joint and several liabilities. So when this whole trial process has run through and the jurors go back to deliberate, they don't have to pick, was the bar 20% or was the bar 50% or was the bar 1%? They just say, was the bar negligent, yes or no? If it's yes, was the driver negligent, yes or no?
Pearl Carey (27:48):
In any capacity?
Dorsey Strickland (27:49):
If they violated the rules that they are obligated to follow, if they did those and that caused harm to the person who was innocent, did they're on the hook for the entire verdict. So they're not required currently delineate a percentage between the two because it is difficult. You have different aspects of liability, different rules, and it's very difficult for jurors to come up with what percentage of the harm was caused by this act.
(28:16):
Also, it's our legislature now has said these are bad enough cases. These are about the only types of cases that have joint several liability. But from a public policy standpoint in South Carolina, we know we've got a drunk driving problem. We know we've got an over-service problem. So our legislators have said, if you do those things, then this is where you end up. That is a deterrent or should be a deterrent, fortunately, hadn't been a severe enough deterrent.
Dirk Derrick (28:42):
And think about this, what the law they're pushing says is they want to be able to go into court and say, this person came to our restaurant. We served him past the level of intoxication and kept serving him when we knew or should have known they were drunk, we wanted to blame him. He should have the majority to blame because he kept drinking the alcohol that we over-served him.
(29:04):
If you think about it, once somebody gets intoxicated and you know they're intoxicated, they don't have the same capacity to make decisions. You are sober and keep giving them alcohol. And then you want to go to court and say, "Hey, we only 1% at fault. He's 99. Because he kept drinking. He kept drinking." So I think it's a ridiculous argument.
(29:26):
And then I also think it's a ridiculous argument they're complaining about the amount of their insurance has gone up. So their position is we have been so bad in South Carolina at serving drunk people and killing people on the road and harming families, taking away daddies. We've been so bad that our insurance premium has gone up to where it's painful for us.
Pearl Carey (29:49):
Wow.
Dirk Derrick (29:49):
So don't change the law about us training our employees rather change the law about how much responsibility we have. Can you imagine if you apply it to individuals, a drunk driver who's been caught three or four times, their insurance goes up, goes up a lot? Can you imagine a drunk driver saying, "Whoa, whoa, whoa, this is not fair? My insurance costs so much money. We need to change the law."
Pearl Carey (30:17):
Right.
Dirk Derrick (30:18):
And that's exactly what they're doing and it's ridiculous. And they're using political power to try to change a law that will harm people, the family who are riding down the road, minding their own business and get hit by drunk drivers.
Pearl Carey (30:32):
So when it comes time to give your client their claim or the real value of their claim, how much is coming from the bar's insurance or this person that was driving drunk's insurance, how does that work out?
Dirk Derrick (30:46):
Well, they're both jointly responsible, which means you don't double dip. If you got a $2 million verdict, you can't collect $2 million against a drunk driver and $2 million against the bar. You can collect against either or both. And it depends on the insurance coverage.
Pearl Carey (31:01):
Okay.
Dorsey Strickland (31:02):
Maybe one way to look at the impact of that law though is to, let's think about a case where somebody is catastrophically injured and call it a million dollar case.
Pearl Carey (31:10):
Okay.
Dorsey Strickland (31:11):
And you were asking about percentages. The bar has a million dollars in insurance. Let's say the at fault, the drunk driver has a hundred thousand dollars in insurance. Under the current law. If that jury comes back and says this is a million dollar case and that innocent victim gets the million dollars.
(31:26):
Under the proposed legislation, let's say they do divide the fault and they say, well, it's 90% on the driver, 10% on the bar, then the driver pays their full $100,000 and then the bar pays an additional 100,000 because it's 10% of the million dollars.
(31:44):
So if you look at the law now, innocent victim of drunk driving now recovers a million dollars for their future and their family, if you look at the proposed legislation, they get $200,000. So they're getting 80% less.
Pearl Carey (31:57):
So it's just the percentage of the overall claim in the end of the day.
Dirk Derrick (32:00):
Yes.
Pearl Carey (32:01):
Okay. Makes sense.
Dirk Derrick (32:03):
Attorneys aren't the only people with a problem with this new legislation. Others against drunk driving or fight the bill. We interviewed Steven Burritt the other day and got his opinion. He's a representative of MADD and got his opinion about the Bill, and we'll play that now.
Steven Burritt (32:19):
We have the advantage of really being able to look at things with a pretty clear focus. Is this going to be good for victims or bad for victims? And so when it comes to any situation where victims who have already had the worst thing in their lives happen to them, their lives have been turned upside down and destroyed.
(32:34):
Again, there's no one involved in any of these cases that have minor situations. These are catastrophic life-changing things. For it to be a situation where a judge or jury could award them a certain amount and then it could come back where they're not going to get that simply for the benefit of another party who could pay but doesn't want to pay.
(32:52):
We can't look at any situation where a victim and granted money doesn't change the tragedy that happened. It doesn't bring anybody back. It doesn't make injuries go away. But it is the only thing sometimes we can do to try to make things better or right.
(33:04):
For a victims who's been wronged in these ways, anything that's going to undercut their ability to get everything that the system says they should get is something that we can't look at with a clear conscious and think that's okay.
Dirk Derrick (33:15):
Who would benefit from the new joint and several liability bill?
Steven Burritt (33:22):
Certainly not victims, which is always where we start with, but there'll be obviously some places that were somewhat responsible for these tragedies happening that will be ultimately paying less under this new view.
(33:34):
And when that's at the expense of the victims who should be getting everything they can or that they deserve from this, obviously, that's not a fair trade, we think. We're going to always put victims first.
Pearl Carey (33:45):
Well, that was interesting. Are we running out of bars in South Carolina?
Dorsey Strickland (33:48):
No. In fact, just the opposite. Before we started this today, we researched the amount of alcohol licenses that have been applied for in South Carolina this year. And currently, through the end of August 2023, more alcohol license requests have been submitted than all of last year or the year before. So there are actually more folks under this climate that we keep hearing about against bars. There are more applications for alcohol license in South Carolina in three quarters of the year than all of last year.
Pearl Carey (34:19):
Wow.
Dirk Derrick (34:20):
This is an insurance industry push to save money is what it is.
Pearl Carey (34:25):
Absolutely.
Dirk Derrick (34:25):
And the truth is this, we do dram shop cases around the state, there's bars that we have sued multiple times. The truth is if they can't train their people to keep drunk people off the road, they should go out of business and let responsible bar owners and responsible restaurant owners run their business. But if they can't afford the insurance because of their own conduct, they should go out of business.
Pearl Carey (34:51):
Seems to be a natural consequence.
Dirk Derrick (34:53):
Yes.
Pearl Carey (34:54):
So going forward with all of these bars opening up, what are some of the problems you might be expecting to see with new cases?
Dirk Derrick (35:02):
Hopefully, with these new people applying for license to sell alcohol. Hopefully, the law will be passed that they have to train their staff if they pass that law, make it mandatory. Educate waitresses and bartenders, reduce the amount of deaths on the road. Hopefully, we can live in a society that people do have the freedom to drink if they want to, but nobody's getting drunk, they not getting on the road and they're not killing our families.
Pearl Carey (35:29):
Absolutely. So I know we've used the term dram shop quite a bit during this podcast. What is the difference between a bar that's over-serving people and a dram shop?
Dirk Derrick (35:39):
A bar and a dram shop's the same thing. Dram shop just comes from 18th century England. I think a dram used to be a small amount of alcohol and they started calling them dram shops because that's where people went and got small amounts of alcohol. And maybe that's a good guideline for us. Maybe we should start serving smaller amounts of alcohol.
Pearl Carey (35:58):
Maybe perhaps. The topic of today's podcast was the truth about claims against drunk drivers and the bars that over-served them. So any final words?
Dorsey Strickland (36:08):
I think on that topic as far as the truth about it, first thing that we need to look at is what Steven said, it's way too much of it happening, hurts a lot of people. The other side of it, from the legal standpoint and the claims, not every drunk driving event is a dram shop case or liquor liability case.
(36:23):
There's not this just crazy amount of them putting bars out of business. This is just not the reality of it. So that in mind, oppose legislation be harmful to the innocent victims of drunk driving and we all need to reach out to our legislators and tell them that.
Pearl Carey (36:37):
Absolutely.
Dirk Derrick (36:38):
And from a personal standpoint, my opinion is understand this is a type of case that needs to be investigated quickly. You need to determine whether or not this is just a drunk driving case or a drunk driver and a dram shop case. And the only way to find out it is to get in fast, investigate all aspects of it, and then preserve the evidence.
Pearl Carey (37:00):
Absolutely. Well, thank you both so much. I really learned a lot about dram shop liability today, so thank you for that and I'm sure our viewers did as well.
Dirk Derrick (37:08):
Thank you.
Dorsey Strickland (37:10):
Thank you.
Voiceover (37:10):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to [email protected]. If you would like to speak to us directly, call us at (843) 248-7486.
(37:26):
If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or worker's compensation claim.
(37:39):
Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick law firm, injury lawyers, and the user.
(38:02):
While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney.
(38:15):
Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date as laws continue to change.
