An Allegheny County trial judge has ruled that plaintiffs injured in an automobile accident with a drunken driver cannot recover under a claim that a defendant liquor licensee violated Pennsylvania Liquor Control Board Regulations by serving the driver more than one free alcoholic beverage, without first showing that the driver was visibly intoxicated at the time.

Allegheny Court of Common Pleas Judge R. Stanton Wettick Jr. said the plaintiffs may bring common law negligence claims against the defendants who supplied alcohol to the driver, but must first show that the driver was served while visibly intoxicated.

In Sims v. Frank B. Fuhrer Holdings, according to Wettick, defendant James Doubt, driving extremely fast while intoxicated on July 10, 2010, entered into the oncoming lane of traffic and collided first with plaintiff David W. Clinton’s vehicle and then with plaintiff James Pratt’s truck. Both Clinton and Pratt, as well as Doubt’s passengers, plaintiffs Broc Austin and Jonathan Sims, were injured in the collisions.

Prior to the accident, Doubt had been drinking at an establishment owned by defendant Three John’s Inc., according to Wettick. Defendant Frank B. Fuhrer Holdings Inc., a liquor licensee, had been running a promotion through which it provided free beer to Three John’s customers.

The plaintiffs filed separate complaints against Fuhrer Holdings and Three John’s, which were subsequently consolidated into a single action, according to Wettick.

While none of the parties dispute that the plaintiffs may be entitled to compensatory damages if they are able to show that Doubt was served while visibly intoxicated, they disagree on whether the plaintiffs may recover on a claim of negligence per se based on the defendants’ alleged violation of Section 13.53 of the LCB Regulations, Wettick said.

According to Wettick, Section 13.53 allows representatives of liquor manufacturers and licensees to provide free alcohol on the conditions that it is limited to one standard-sized drink — 12 fluid ounces of beer — per patron and is not contingent on the purchase of any other alcoholic beverage.

The plaintiffs allege that Doubt consumed more than one free beer provided by Fuhrer Holdings before leaving Three John’s on July 10, according to Wettick.

The plaintiffs argue that they may recover under a claim of negligence per se, alleging that the defendants violated Section 13.53, without having to prove that Doubt was visibly intoxicated, Wettick said.

The defendants, meanwhile, argue that all references to Section 13.53 should be stricken because there can be no recovery without a showing of visible intoxication, according to Wettick.

Wettick said he agreed with the plaintiffs that Section 13.53 shall have the same force as a part of the Liquor Code, but also agreed with the defendants that any cause of action based on the provisions of the LCB or a regulation with the same status is governed by Section 4-497 of the Dram Shop Act, which imposes liability on a licensee only when there is a showing that a licensee provided liquor to a visibly intoxicated patron.

“Plaintiffs argue that under the case law they may pursue a common law negligence claim against defendants,” Wettick said. “However, this is not what they seek to do. Instead, they seek to base a claim on a regulation that is subject to 47 P.S. Section 4-497.”

The plaintiffs pointed to the Lancaster County Court of Common Pleas’ 2010 ruling in Rivero v. Timlin, which held that Section 4-497does not provide the exclusive remedy for injuries stemming from a liquor licensee’s violation of the Dram Shop Act.

However, Wettick noted, the Rivero court said common law claims of negligence can only be asserted “‘once the threshold level of negligence has been established, i.e., serving a visibly intoxicated patron.’”

“Although I am not sure how it improves a plaintiff’s lot, I have no problems with plaintiffs being permitted to pursue common law negligence claims against those who serve a visibly intoxicated patron,” Wettick said. “Consequently, I am sustaining defendants’ preliminary objections to the negligence counts in the plaintiffs’ complaints only to the extent that recovery is sought against the licensee without a showing that the customer who inflicted the damage was furnished alcohol when visibly intoxicated.”

Wettick did overrule the defendants’ preliminary objections seeking to strike the plaintiffs’ punitive damages claims.

“It is possible that evidence introduced to establish that defendants served a visibly intoxicated person may support a finding of reckless indifference,” Wettick said.

Counsel for Sims, Christopher M. Miller of DelVecchio & Miller in Pittsburgh;; counsel for Clinton, Cynthia M. Danel of Edgar Snyder & Associates in Pittsburgh; and counsel for Austin, Andrew J. Leger Jr. of Pittsburgh, could not be reached for comment at press time.

Counsel for James and Donna Pratt, G. Christopher Apessos of Pittsburgh-based Ainsman, Levine & Drexler said he disagreed with the ruling.

“Certainly Judge Wettick is well respected, but I don’t agree,” Apessos said. “I think it kind of runs afoul of the negligence per se argument.”

Fuhrer Holdings’ attorney, Paul J. Walsh III of Litchfield Cavo in Pittsburgh, said he felt Wettick “made the right call.”

Three John’s attorney, Lynn E. Bell of Davies, McFarland & Carroll in Pittsburgh, could not be reached for comment.

Zack Needles can be contacted at 215-557-2493 or Follow him on Twitter @ZNeedlesTLI.

(Copies of the five-page opinion in Sims v. Frank B. Fuhrer Holdings, PICS No. 12-2431, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •