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Questions Presented Can Jane Healed get financial compensation from Red’s Tavern? Brief Answers Yes, if Jane can prove that Raymond was “visibly intoxicated” when he was served by Red’s Tavern, she can recover from Red’s Tavern. Statement of Facts Jane Healed has retained our law firm to represent her to recover damages for her injuries. On November first, 2011, Jane was on her way home from work. As Jane approached the intersection of 14th Street and Child’s Street the light turned yellow, and the vehicles in front of Jane stopped, causing her to be stuck in the intersection.Waiting to enter the intersection from Child’s Street was a 1985 Trans Am driven by Charles Raymond.

Raymond is a mechanic for a transmission shop, Allegretto and Sons. Earlier that afternoon, Raymond volunteered to deliver a transmission because the regular driver could not make the delivery. Allegretto agreed to let Raymond make the delivery, but told Raymond not to stop at Red’s Tavern on the way.

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Raymond laughed and told Allegretto “don’t worry boss, I’ll save you a beer. ” Raymond left Allegretto and went to Red’s Tavern.Raymond was a “regular” at Red’s Tavern, and he has frequently gotten “obnoxiously and aggressively drunk” at Red’s. In his deposition, Raymond reveals that he arrived at Red’s Tavern at approximately 5:pop. M. (25:4-7). Raymond drank four shots of bourbon and four beers at Red’s in forty-five minutes. As Raymond “staggered” out of Red’s another customer said, “Man is that guy loaded.

” Tony Simpson, the bartender and owner of Red’s said, “so what else is new. ” Upon leaving Red’s at about 5:pop. M. Raymond states that he directly got into his car and continued his route of delivery (18:9-17).

Raymond had been convicted on two prior occasions of driving while intoxicated. His license had been suspended three times before and was still suspended on that day, as he sat at the corner of 14th and Child’s, waiting for the light to turn green. The light turned green for Raymond. Raymond pushed his gas pedal all the way to the floor the instant the light turned green. At 6:pop. M.

, the Trans Am roared into the intersection, striking Cane’s car’s broadside.Cane’s car was pushed thirty feet across the intersection into a steel pole. After Jane was hit, her seat belt broke, and she went face-first into the windshield. She had severe facial lacerations, and a fractured skull. She also had broken ribs and her left lung was punctured.

At about 7:pop. M. , Raymond voluntarily took a breathalyzer test at the police station.

The test results showed a BACK of . 13 and Raymond was charged with his third DUD (26:8,9,15). Four weeks since the accident, Jane Healed remains hospitalized.She continues to suffer from sever migraine-type headaches. In the least, she must expect two more plastic surgeries —a requirement of her Job—for at least a year.

Her face will probably carry some of the scars forever. Jane was to be promoted before her recovery finished. Her raring of $55,000, was to increase by at least $15,000 per year. The estimated damage of her vehicle is $10,000.

Jane cannot fill her promotion’s position in time. She will probably lose her prospects and her current Job as a result of this accident.Analysis Jane Healed may have a cause of action against Red’s Tavern for negligence. Generally, a plaintiff may maintain an action in negligence if the plaintiff proves (1) a legal duty or obligation requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on the pendant’s part to conform to the standard required; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage.

Patterson v. Thunder Pass, Inc. , 214 Razz. 435, 153 P.

D 1064 (Razz. App. 2007). A. Did Red’s Tavern owe a legal duty or obligation to Jane Healed? The first element of negligence manifests from the legal duty or obligation owed by Red’s Tavern to Jane Healed. In Brigandage v. Velvet Dove Restaurant, Inc.

, 725 P. Ad 300 (Kola. 1986) the court held that “[O]en who sells intoxicating beverages for on the premises institution has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. ” In Brigandage…

, a passenger in a car was injured after the driver that car was served alcohol.The passenger sued the bar, but the bar argued that it owed no duty to the passenger. The court of appeals rejected that argument. The appellate court held that it was foreseeable that patrons may travel by automobile from the bar. Because automobile use is so commonplace, the publics risk of injury is much increased if an intoxicated patron gets behind the wheel off car. The appellate court stressed that while the old “common law’ rule might have relieved the tavern of liability, the “modern trend” was to impose liability on the tavern owner.Liability is imposed because tavern owners are in a better position to prevent the foreseeable harm by refusing to serve a “visibly intoxicated” patron.

In this case, Red’s Tavern was a vendor of alcohol. Thus, like the tavern in Brigandage… , they owed a duty not to serve a Messily intoxicated patron.

” That duty was owed to the traveling public, and Jane Healed was a member of the traveling public the day she was struck by Raymond vehicle. Therefore, Red’s Tavern owed a duty to Jane Healed to not serve Raymond if Raymond was “visibly intoxicated. ” B.Did Red’s Tavern breach the duty owed by serving a “visibly intoxicated” patron? While the existence of a duty is a question of law for the court, whether that duty has been breached is a question of fact for the Jury. Bash v. Hunt, 332 Ill.

App. Ad 980, 773 N. E. Ad 1213 (2002). Since Red’s liability may be established with the proof of Raymond Missile intoxication,” the issue of sufficient evidence is of main importance. The success of Jane Healers case is a matter of understanding what evidence a Jury views to determine whether Raymond was Messily intoxicated” at the time of Red’s service.In Vickers v. Polish American Citizens Club of Town of Terrified, Inc.

, 422 Mass. 606, 646 N. E. Ad 429 (Mass. 1996), the plaintiff sought recovery for damages from when she was struck by an intoxicated driver who had Club had failed to exercise its duty of care, that its service caused the driver to drive negligently and consequently injure her.

The defendant Club’s motion to summary judgment was granted and then affirmed by the appellate court. Plaintiff Vickers id not provide direct evidence for proof of the driver’s demeanor at the time of service by the defendant.Moreover, the plaintiff did not meet the burden of proof: the only evidence presented was that of the patron’s “subsequent intoxication” at the scene of the accident. The plaintiff attempted to only use the evidence of “subsequent intoxication” as a substantial point of inference of the injuring driver’s intoxicated condition prior to the collision. The court held that the plaintiffs leap in reasoning was “unsupported by additional probative evidence, direct or recirculation, bearing on [the patron’s] conduct or demeanor at the club, [and] would not permit a reasonable inference to a sufficient degree of probability..

.. If the court had allowed the sole presentation of “subsequent intoxication” as evidence, liability would be imposed on the basis of unacceptable speculation by a Jury. The use of “subsequent intoxication” as sole evidence was insufficient; however, the court did recognize that it could play an important role. Subsequent evidence may “bolster other evidence tending to prove that a patron already showing obvious signs of intoxication was served with alcoholic beverages by a licensee [or tavern owner]. Hence, a Jane Healer’s claim of Red’s liability will stand strongly before a Jury if its evidence is supported by facts bearing on Raymond conduct or demeanor at the defendant’s Tavern, as well as subsequent evidence of intoxication. The Statement of Facts for Cane’s case contains both components of direct factual evidence of Raymond demeanor, and also subsequent or evidence of intoxication.

For the direct component, there is testimony of Raymond demeanor, from a witness at Red’s Tavern: “Man that guy is loaded. Witness testimony also describes Raymond bodily conduct as showing visible intoxication: Raymond “staggered” on out of the Tavern’s front door. As a result, Jane Healed may effectively “bolster” this testimony with the subsequent evidence of Raymond breathalyses results that read a . 13 BACK and followed with a DUD charge. By having factual direct evidence and also subsequent evidence, we are able to confirm that the driver was showing signs of intoxication when served liquor by defendant Simpson tavern. Such a confirmation advancesPlaintiff Healer’s case against Red’s Tavern, by offering compelling proof of Defendant Simpson negligence and liability. Camino v. The Milord Keg, Inc.

, 385 Mass. 323 (1982) defines in further detail as to what will stand sufficiently before a Jury as evidence off patron’s Missile intoxication. ” Similarly, the plaintiff was seeking recovery of damages sustained when a drunk driver, served at the defendant’s establishment, struck the plaintiff with his car. Although the plaintiffs evidence was a matter of dispute raised by the defendant, the appellate court held that plaintiffCamino met the burden of proof. Plaintiff Casino’s evidence used witness testimony regarding the patron’s demeanor, showing Missile intoxication” at time of service. The court held that testimony of the driver’s “loud and vulgar conduct and the defendant’s service to [the driver] of a large number of strong alcoholic drinks were each sufficient to put the defendant on notice that it was serving a man who could potentially endanger others. ” Meaning, the testimony of the patron’s conduct and knowledge of a foreseeable increased risk of injury to the public.

From Camino… , the actual knowledge of intoxication can be inferred from indirect or direct circumstantial evidence, such as the number amount and alcoholic strength of beverages consumed, the time involved, the person’s behavior at the time, and the person’s condition shortly after leaving. When applied to Jane Healer’s case, the factual record of direct and indirect evidence satisfies the standard of knowledge used in Camino… By which a Jury determines intoxication.

In applying the criterion of Camino…

He Statement of Facts provides that Raymond drank four beers and four shots of bourbon, within fourth-flee minutes. Raymond “loaded” demeanor and conduct of “staggering” is observed at Red’s before the accident. Shortly after leaving, Raymond driving conduct causes the accident and the police’s use of a breathalyses “bolsters” the burden of proof of showing that Raymond was negligently served by Red’s Tavern and intoxicated while driving. The factors used in Camino…

To “put a defendant on notice” are apparent in Campbell v. Carpenter, 279 Or. 37, 566 P. Ad 893 (Or. 1977). Campbell…

‘s issue was not whether the driver was Messily intoxicated” at the time of her departure from the defendant’s tavern. Specifically, it as “whether there was substantial evidence from which the trial court, as the Trier of facts could have properly found that at the time [the patron] was served the last (or any) drink prior to leaving the tavern she was Visibly intoxicated. ” The defendant disputed the plaintiffs evidence did not uphold their claim of the Tavern’s negligence.

Therefore, Campbell…

Revoked the court to determine that the element of time was instrumental in finding a tavern liable for the foreseeable injury sustained by a third party. The court’s review affirmed a Jury’s ability to determine the tavern’s negligence based on the evidence presented. Campbell…

Included the use of testimony regarding the time involved, the amount and strength of liquor consumed, as well as the patron’s demeanor and conduct at the tavern and shortly after leaving the tavern. Evidence also included that of subsequent intoxication from a blood sample taken from the drunk driver, and the testimony of a toxicologist.The evidence that the patron was served beer until she had eight beers within the time of two hours was given emphasis by the higher court. The court believed that “the trial court could have properly found from this evidence that the defendants had intentioned to serve beer to [the patron] after she was Visibly intoxicated.

” Although the patron left with her ex-husband, it was established that she had arrived with her own vehicle. Therefore, the court would reject the effort a defendant’s claim to not knowing, at the time patron’s departure, that the patron would drive her own car.The court held that it was Just as likely that she would drive; as it was Just as likely that her ex-husband would drive. Because of that likelihood, her fatal accident was reasonably foreseeable and the tavern’s service while she was visibly intoxicated revered as grounds for their negligence and liability. With the available facts of Jane Healers case, there is evidence to satisfy the above four cases that shaped the criterion used to determine Missile intoxication. ” One issue that can be distinguished from Campbell.

.. ‘s subject matter to that of Jane Healers case is the issue of time.The court in Campbell..

. Emphasized that the service’s continuance of two hours was enough to put the defendant on notice of Missile intoxication” and in Jane Healers case facts is that Raymond was only at Red’s tavern for forty-five minutes. However, if the patron in Campbell…

As served her eight beers within an even shorter amount of time, a Jury could infer, “on the basis of common sense and experience,” that the patron would be showing outward signs of intoxication during the time of the tavern’s service Gotten v. Graves, 40 Mass. App. Ct. 155, 159, 662 N. E.

Ad 711 (1996). D.Proximate Cause: The direct chain of cause to Healers injuries Following this body of reason is the fundamental case of Rapport v. Nichols, 31, N. J.

188, 156 A. Ad 1. Nichols… Has shed light on the issue of testing tavern negligence insofar as its rule is applied within the case history developed through Fragrance v.

Velvet Dove Restaurant Inc. And Campbell v. Carpenter. Nichols.

.. Imposed the rule of the verifiability of unreasonable risk to the public and established the Judicial system’s view that the proximate cause of the injuries is concurrent with the event of a tavern’s negligence.Hence, the first wrongful act and “final injurious occurrence [are linked] and if” they are reasonably foreseeable then, the last result as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause” Nichols v. Rapport.

In taking from Nichols… It is understood that the issue of proximate cause is, like its origin of negligence, a question for the Jury to decide. Because proximate cause stems from the event of tavern negligence, a causal chain of relation is not breached by any intervening causes.The evidence of proximate cause within Jane Healers case is even more clearly defined.

The testimony that provides Defendant Simpson admittance to his own negligent sale to Raymond, and further negligence of allowing Raymond to “stagger” out of his tavern, is apparent in the record of Defendant Simpson remark that the event was not new and, in turn, an “expected action” of Raymond. This evidence is most compelling for the Jury’s ability to find that Defendant Simpson had created a situation, involving the unreasonable risk to the public, “because of the expected action of another” Nichols v.Rapport. Red’s Tavern, as testimony identifies, was aware that Raymond was precisely that “other” who’s drunk driving was an “expected action of. ” To further the success of Jane Healers case in court, Raymond testifies, as noted before, that he went straight from Red’s to his course of travel that ended at the scene of his collision with Jane Healed. Such evidence of proximate cause before a Jury shows that the chain of causal relation was never breached between the travel of Raymond from leaving Red’s and his arrival at the intersection of Child’s SST.Thus, not only does the testimony provide the proximate cause for the Jury, it provides an even stronger connection of Defendant Simpson negligence. By course, Defendant Simpson negligent sale of alcohol to Raymond stands as the direct and proximate cause of the damages sustained by Jane Healed.

C. Damages According to 26 Coded 1, 569: A successful plaintiff in a third-party liability action may recover for damages rationally caused by the defendant’s negligence. “The plaintiff may recover medical expenses, lost wages, future earnings, and emotional distress damages. Presented to the court for recovery. These damages include, but are not limited to, the expenses from the time of the accident on forward. These expenses are, Cane’s hospitalizing, cost of an increased need of medical care, medication, at least two major plastic surgeries, the continued suffering of chronic head aches, the emotional suffering of her life long facial scarring, the wage loss of $70,000 and future wage loss f an additional $1 5,000 increase per year, and property damage of her vehicle that is estimated at $10,000.

Conclusion In summary, Jane Healed may successfully get a financial compensation from Defendant Simpson, Red’s Tavern. As the memo’s discussion upholds, the existing factual evidence obtained is sufficient enough to prove the “modern trend” of liability in common-law negligence. The cases examined provide that Red’s tavern owed the public, Jane Healed, the duty of not creating a foreseeable heightened risk with the negligent sale of alcohol.

The duty of Red’s tavern can be found by a Jury to eve been breached.The history of cases note that the evidence a Jury views to find negligence and “visible intoxication” compares analogously to the nature of Jane Healer’s case facts and, thus, sufficiently support the finding of Raymond Missile intoxication” at time of Red’s sale. In the furtherance of Healers case, the evidence of proximate cause stems from the dual existence of Red’s negligence and Raymond apparent intoxication. Furthermore, Raymond testimony provides that the event of Red’s negligence and his apparent intoxication are in direct proximate causal relation o the damages that Jane Healed sustained from the accident.Lastly, as the Cause of Action Against Tavern Owners provides, the specific damages sustained by Jane Healed are resulting from the proximate cause of Red’s negligence and may be recovered. In taking the components of this memo’s facts and discussion together, all of the criterion adequately stands for the precise relation of the four elements of common-law negligence.

Beyond substantial proof, the satisfaction of the elements of common-law negligence indicate the success of Jane Healers financial recovery from Red’s Tavern.

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