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In September 1993, an intoxicated Adam Jarrett, 19, stepped out of a bar in Washington, D.C., and was struck by a car. He died a day later. The death has triggered a first-impression ruling by a District of Columbia appellate panel holding that although local liquor laws don’t provide for liability, Washington bars may be found negligent if an underage customer gets drunk and injures himself or others. The three-judge panel did more than conclude that the bar could be held liable. It held 2-1 that the bar could not defend itself by saying that the teen-ager’s heavy drinking was willful and reckless, and that he assumed the risk of injury. The opinion applies to taverns that serve underage or intoxicated patrons. HIGH BLOOD ALCOHOL Jarrett, a George Washington University student, had a blood alcohol level of 0.298 near the time of the accident, the panel said. As a result, Winston’s, an M Street bar, may be on the hook. It allegedly served at least three shots of alcohol and four or five bottles of beer to an already-intoxicated Jarrett. Assumption of risk is an inapplicable defense in this context, wrote Judge Inez Smith Ruiz in the majority opinion, because an underage, intoxicated person “is deemed incapable, as a matter of law, of relieving the tavern keeper of the duty” imposed by D.C. liquor law, D.C. Code �25-121. Dissenting, Senior Judge John W. Kern III said that the issue of whether Jarrett assumed the risk is one for the jury. Jarrett had three fake IDs, indicating an intent to flout the law, Kern wrote. Moreover, Jarrett’s friends testified that he had drunk four to six cups of beer before going to Winston’s, the judge noted. The decision reverses summary judgment and remands for trial. Jarrett v. Woodward Bros., No. 96-CV-1715 (D.C.). The plaintiff’s lawyer Patrick M. Regan, a senior partner at Regan, Halperin & Long, in Washington, said that he’s happy the court found liability and eliminated an obstacle to recovery. Allowing a bar to argue assumption of risk almost always blocks recovery in cases such as this, Regan said. Such a defense, he said, would “wipe out” the liquor law that supposedly protects underage drinkers. The tavern’s lawyer, Richard T. Tomar, who heads the litigation department at Washington’s Margolius, Mallios, Davis, Rider & Tomar L.L.P., said that the court was wrongly legislating. “I don’t think the law supports liability here,” he said. He added that his client will not ask for a rehearing. All but a few states have “dram shop” laws, by statute or in case law, that impose liability on bars for damage done to others by drunk customers, said Ronald S. Beitman, who has litigated liquor liability cases for nearly 20 years and is co-author of a book on the subject. Most, however, do not allow ex-patrons to sue for injuries that they themselves suffered, unless they are minors. The Washington plaintiffs still need to convince a jury, noted Beitman, a partner at Kistin, Babitsky, Latimer and Beitman, in Falmouth, Mass. Despite a trial judge’s instruction, it may be hard to overcome jurors’ feelings that “he’s really not a kid,” he said of Jarrett. That point was also made by Michael K. Gillis, chairman of the Liquor Liability Litigation Group of the Association of Trial Lawyers of America and a partner at the plaintiffs’ civil litigation firm of Gillis & Bikofsky, in Newton Centre, Mass. “These are not easy cases,” Gillis said. Although the opinion favors plaintiffs — “I certainly am going to keep it in my quiver with the arrows if the issue comes up in Massachusetts” — he said that jurors are apt to agree with the dissenting judge. The dissenter wrote of Jarrett, “He was in control of these decisions; no one coerced him or tricked him into having obtained false documents and then drinking excessively that night.”

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