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Terwilliger v. Kitchen

In case brought by estate of deceased killed in car accident caused by intoxicated driver, judgments affirmed; imposition of vicarious liability on car owner was appropriate because she was without fault but secondarily liable for acts of her son, the driver; decedent's knowledge of driver's intoxication did not bar recovery because decedent's negligence was less than driver's negligence; court's determination that bar served driver while he was visibly intoxicated was supported by evidence.

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� 1 Jo-Mare, Inc., T/A Club Allure; Jo-Mare, Inc., T/A Klub Kix and Jo- Mare, Inc., appeals the judgments entered March 13, 2000, following the court’s ruling on appellant’s post-trial motions in this wrongful death and survival action.

� 2 Michael P. Stefancin (Stefancin) was a passenger in a car owned by Maryann B. Kitchen (vehicle owner) and driven by Kevin Eugene Kitchen (Kitchen). *fn1 The car struck a telephone pole, killing Kitchen instantly. Stefancin sustained severe injuries from which he later died. On the evening of the accident, both Kitchen and Stefancin had been consuming alcohol at Klub Kix, a business establishment operated by appellant. Kitchen, who did not possess a valid driver’s license at the time of the accident, *fn2 was found to have a blood alcohol content of .16% at or near the time of the accident while a urine sample revealed an alcohol content of .2%.

� 3 The estate of Michael P. Stefancin, through its administrators Nancy Terwilliger and John J. Stefancin, Sr., *fn3 alleged appellant served alcohol to Kitchen while he was visibly intoxicated in violation of the Dram Shop Act *fn4 � 4-493(1), Unlawful acts relative to liquor, malt and brewed beverages and licensees, and, therefore, was liable for Stefancin’s injuries and death. Additionally, Stefancin’s estate alleged the vehicle owner was liable for negligent entrustment of her automobile to her son and that Kitchen was liable for his negligence in driving while intoxicated.

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