Joseph Fuscaldo v. Bradford Agonito, et al.: A man who was badly injured after his drunken pal smashed head-on into a stone wall in Greenwich settled lawsuits against his friend and a bar that served them, but he failed to win damages in a trial involving another establishment.

Joseph Fuscaldo, then 26, met his friend, Bradford Agonito, at the Sundown Saloon in Greenwich on the evening of March 14, 2008. Agonito had already been to a happy hour in Manhattan from 6 to 8 p.m. before heading up to Greenwich.

After spending some time at the Sundown Saloon, Fuscaldo rode with Agonito to the Ginger Man restaurant, also in Greenwich, where the two men drank more alcohol.

On the way home from the Ginger Man, at about 12:30 a.m., Agonito collided with a stone wall alongside Valley Road in Greenwich, according to Fuscaldo’s lawyer, Sean K. McElligott, of Koskoff, Koskoff & Bieder in Bridgeport.

McElligott said Agonito’s vehicle hit the roadside wall, flew 12 feet into the air, struck a tree atop the wall, and then smashed front-end first into the road, coming to rest in the middle of an intersection.

Fuscaldo was badly injured in the crash, tearing an artery that fed into his intestines. His stomach filled with three liters of blood. "The surgeon saved his life at Stamford Hospital," said McElligott.

The surgery involved removing more than two feet of his large intestine. Fuscaldo can no longer digest certain foods and needs B-12 supplements. He also fractured his left collar bone in the crash.

Agonito, meanwhile, was charged by police with driving under the influence; he registered a 0.20 blood alcohol level in post-crash tests, well above the legal limit of 0.08.

The injured Fuscaldo sued Agonito, the driver, for negligence. He also filed claims against the Sundown Saloon and the Ginger Man restaurant under the state’s dram shop statute, accusing them of serving a visibly intoxicated Agonito.

Prior to trial, McElligott settled Fuscaldo’s claim against Agonito for an undisclosed amount.

After the dram shop trial began late last year before Judge William Rush in Bridgeport Superior Court, McElligott also settled with the Ginger Man restaurant.

McElligott also said he could not divulge the terms of that settlement. The deal was struck on the second day of evidence. The trial then resumed, with the Sundown Saloon as the sole defendant.

An expert toxicologist from Maine, Richard Parent, testified for the plaintiff, claiming that based on Agonito’s BAC at the time of the crash, he had to be showing signs of intoxication.

Another toxicologist, Charles McKay, from Hartford, testified for the bar, stating that Agonito had been in the bar relatively early and the evening and that it was unlikely he was showing signs of intoxication at that point. It wasn’t until the men were drinking at the Ginger Man restaurant that Agonito begin to show signs of intoxication, McKay testified

The lawyer for the Sundown Saloon, Jan Trendowski, of Trendowski & Allen in Centerbrook, said his expert came across as more credible to the jury.

"What it boils down to in these liquor cases is, at what point do most people show signs of intoxication?" said Trendowski. "Most toxicologists agree at 0.15 that more people than not start showing signs of intoxication. That’s based on a whole bunch of studies consolidated into a single study."

The plaintiff’s lawyers did not request a certain dollar amount from the jury at the trial, according to Trendowski, but the state’s dram shop statute caps damages at $250,000.

After the four-day trial, the jury deliberated for about four hours and then sided with the defendant. Trendowski, who admitted he hoped the claim against his client would get dropped after Fuscaldo settled with the driver and the Ginger Man, was pleased his client wasn’t found liable by the four-female, two-male jury.

"The plaintiff didn’t prove that the bar had done anything wrong," said Trendowski. "People from the bar really presented well also. They are more of a restaurant than a bar; the owner more of restaurateur than a nightclub owner."

McElligott admitted the case against the Sundown Saloon was the tougher case to prove because the men had been drinking there a number of hours before the accident. Nevertheless, he said no one should feel sorry for Fuscaldo when it came to his legal claims, as he settled with two of the defendants.

"He did very well," McElligott said.•