The family of a man killed in a car crash with the wife of ESPN sportscaster Chris Berman is suing the restaurant that served the other driver drinks right before the accident.
But legal experts say it will likely be an uphill battle for the plaintiffs, who are looking to use Connecticut’s Dram Shop Act to sue the Woodbury-based establishment that allegedly sold Katherine Berman the liquor that allegedly got her drunk, before she had an accident that killed her and another motorist.
The estate of 87-year-old Waterbury resident Edward Bertulis sued the swanky Market Place Kitchen & Bar, claiming Berman was drunk when employees continued to serve her on that fateful day in May 2017. While the lawsuit says Katherine Berman was drunk, the office of the state Medical Examiner has not released the toxicology results.
According to the lawsuit, Berman “suddenly and without warning slammed into the rear end of Mr. Bertulis with such force that the impact caused Mr. Bertulis to be ejected from his vehicle and suffer severe injuries which later resulted in his death.” She had just left the Market Place, according to the complaint.
Connecticut is one of 38 states that have instituted the Dram Shop Act within its statutes. The act makes a business which sells alcoholic beverages to someone who is obviously intoxicated, or close to it, liable to anyone later injured or killed by that drunken patron. While legal experts say the act is needed, they also say proving to a judge or jury that an establishment should be held liable is a tall order.
Susan Filan, a former prosecutor and of counsel at Westport’s Cohen and Wolf, who’s not involved in the litigation, told the Connecticut Law Tribune Tuesday that witnesses to the alleged drinking episode are most certainly needed to prove the case.
“I think there will be a question as to how the plaintiff will prove the establishment knew that she was already intoxicated when they sold her liquor. It will be hard to prove,” said Filan, also a former MSNBC-TV senior legal analyst.
Even if the toxicology results show Berman, 67, was highly intoxicated, Filan said, it still won’t be a sure win for Bertulis’ family.
“It does not necessarily make the case easier to prove because (it could be argued) that she left the establishment and then drank vodka,” Filan said. “You need witnesses and someone to say that they know she drank at the establishment and that what she drank was actually alcohol and not colored liquid and that she swallowed it and did not spit it out. Without that witness (or witnesses), it’s hard to win.”
Those sentiments were echoed by Quinnipiac University law professor John Thomas, who said that the family would need more, even if it did have witnesses to Berman’s drinking and intoxication.
“People’s recollections may not be clear,” Thomas said. “You almost can’t win it without witnesses that were there.”
The lawsuit also brings with it many unanswered questions: It was filed in May in Litchfield Superior Court, but the case proceeded quietly for months, despite its ties to the high-profile sportscaster. It garnered no media attention until this week, when several outlets carried updates. In addition, the estate of Berman was not listed in the lawsuit as a defendant. And, while the police investigation into the incident is now closed, the official report has yet to be released.
Thomas said the fact that it took almost four months before the media caught on to the case “is unusual.”
“The media usually watches the court filings and lawsuits are a matter of public record,” he said. “I presume the media did not recognize any famous names, because it was the man’s estate against the establishment, and Berman was not listed (on the first page) of the lawsuit.”
With regard to going after the Cheshire estate of the Berman family, Thomas suggested the plaintiffs might have already settled with the estate, but the Connecticut Law Tribune could not confirm by press time whether they had.
New Milford attorney Philip Spillane, who is representing the Bertulis estate, declined to comment Tuesday. Spillane is with Hoekenga & Machado.
Filan said it is not unusual for a police report in such a case to not be released unless there is a Freedom of Information Act request. While police are not supposed to let their investigation into a high-profile case affect the final product, Filan said “people realize, in high-profile cases, that their work is likely to be subjected to greater scrutiny. So, it’s human nature to work differently, if you know you are being watched.”
Said Thomas: “The police always want to make sue they’ve done a good job, even more than usual when a case with a famous name is attached. They want to cross their t’s and dot their i’s.”
The restaurant and its owner Elias Hawli are represented by Francis Paola of the Hartford-based Law Offices of Rodd Mantell. Neither Paola nor Hawli responded to a request for comment Tuesday.
In court papers, the Market Place disputes claims that its employees “knew or should have known of the nature and extent of Mrs. Berman’s intoxication.” The defense also denies any violation of the Dram Shop Act.
A pretrial conference is slated for Dec. 5.