Ga. Bar Settles Dram Shop Case for $1 Million
Holt demand, spoliation sanction help put end to suit over fatal crash
Katheryn Hayes Tucker - Fulton County Daily Report - August 31, 2010
A Holt demand and a spoliation sanction from Cobb County State Court Chief Judge Toby B. Prodgers were the key ingredients in the $1 million settlement of a wrongful death case against The Sports Grill for serving alcohol to a customer who had a fatal crash on the way home.
The drama continued into the final hour before the settlement deadline set by plaintiffs attorneys James L. Creasy III of Gillis & Creasy and Lloyd N. Bell of Bell & Mulholland, who were fielding calls on their cell phones from their cars and offices until nearly noon on July 15, when Statewide Insurance Co., acting through RCA Insurance, wrote the check rather than risk exceeding the $1 million policy liability limit if the case had gone to trial.
"Frankly, I wish they hadn't settled," said Creasy, the lead plaintiffs attorney. "I'd like to have tried the case."
Creasy had made Holt demands, a demand for settlement of the full amount of available liability insurance, unsuccessfully twice before during nearly two years working on the case. The reason the tactic worked the third time was Prodgers' order granting their motion for spoliation sanctions and striking much of the defendant's evidence. Before Prodgers' order, the defense had served the plaintiff with a $50,000 order of judgment, according to Creasy.
"That was a remarkable ruling," said Brad C. Kaplan of Kaplan & Seifter, who represents the bar owner, Winston's Food & Spirits, but was not involved in the litigation. "It was very unusual." The defense attorney in the case, J. Robb Cruser of Cruser & Mitchell, declined comment and deferred to Kaplan.
Kaplan said the bar owner was "extremely disappointed" with Prodgers' order, which created a practical problem of not being able to present evidence. The company had never faced a dram shop case during 25 years in business, according to Kaplan, who said the owner brought him in near the conclusion of the litigation. "My role was to talk to the insurance company and ask them to do the right thing," Kaplan said.
The issue in the judge's order was four hours of videotape from the night in October 2008 when William Paul Davis IV, now 28, was drinking at The Sports Grill in Austell before he left and crashed into the car driven by Cuneyt Erturk, who was on his way home from work. Erturk was killed. His widow, Trivilla Ross Erturk, is the plaintiff in the case against Davis and The Sports Grill.
The bar recorded over most of the tape, producing only a few "seconds or minutes" according to the judge's order, showing Davis entering and leaving. The order also said the bar destroyed the tabs for two patrons drinking with Davis and that night's "spill sheets," lists showing free drinks given out by bartenders.
"The testimony given by the employees of the Sports Grill would indicate that defendant Davis consumed a certain amount of alcohol during the time he was on the premises, that he was not noticeably intoxicated, and that they had no reason to believe that he would soon be driving," Prodgers said in his May 10 order following a hearing in April. "However, the videos which existed at one time would have given an objective, impartial view of Davis during the entirety of the four hour period he was at the premises and not just the few minutes or seconds which the Sports Grill saved." He called the bar employees' testimony "self-serving."
Although the police did not initially demand the entire four hours of video, Prodgers said the spoliation was "not excusable."
"With respect to the sanctions to be imposed for such spoliation, it is particularly disturbing that the Sports Bar would permit the destruction of the subject evidence after it became aware that a patron to whom it had been serving alcohol was involved in a fatal crash after leaving its premises," Prodgers' order said. "The court hereby strikes those portions of its pleadings whereby it denied that it served alcohol to defendant Davis while he was in a state of noticeable intoxication knowing that he would soon be driving." Those allegations, the judge said, are "deemed admitted."
Bell and Creasy said they believe part of the reason the judge came down as hard as he did on The Sports Grill was the evidence in the part of the video that was played in court during the motion hearing. Over defense objections, they said, they played video showing what happened in the bar after Davis left.
The bartender had just testified that he never "free pours" drinks -- a flashy practice that may please patrons and earn tips as shown in the movie "Cocktail" but can lead to overserving alcohol, they said. In the video made just after Davis left, that same bartender could be seen free pouring drinks. In free pouring, a bartender holds a liquor bottle high and streams it into a glass, rather than measuring it. Creasy and Bell said it also helped their case that Davis admitted in his testimony exactly how much he had to drink in the bar that night: two Long Island iced teas -- which typically contain five kinds of liquor -- and six 16-ounce beers.
Davis refused alcohol tests the night of the accident, but witnesses smelled alcohol on his breath, according to Creasy. Davis faces charges of DUI and vehicular homicide.The bar still contends it was not liable for Davis' actions, Kaplan said. "A high bar has been set for plaintiffs in dram shop cases," he said. He also said "free pouring is not necessarily an indication of overserving." But once Prodgers ruled on the spoliation motion, Kaplan said, the defense had "a practical problem" of not being able to present evidence. "They did not believe they were liable, but based on the legal circumstances, they did what was correct," Kaplan said of the defense. And, he added, "The plaintiff's lawyers did a good job. The case is Trivilla Ross Erturk v. William Paul Davis Jr., Suzanne G. Davis, the Sports Grill a/k/a Winston's Food and Spirits, No. 2009A-1617-6 in Cobb County State Court.
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