Delegate Kathleen Dumais

Democrat, Maryland House of Delegates District 15

Judge throws out case against Dogfish Head Alehouse

Dogfish Head Alehouse cannot be found liable for a 2008 crash that killed a 10-year-old girl until Maryland law is changed, a Montgomery County Circuit Court judge has ruled.

William and Angela Warr, the guardians of the girl, Jazimen Warr, sued the restaurant and bar in December 2010 for $3.25 million, stating the restaurant was partly liable for her death.

On the night she died, workers at Dogfish Head Alehouse in Gaithersburg served a patron 17 beers and saw him drink one shot of an alcoholic beverage before he got into his Land Rover, drove onto Interstate 270 and crashed into a vehicle where Jazimen sat in the back seat, said Jason Fernandez of Silver Spring-based Greenberg & Bederman LLP, who is representing the Warrs.

Under Maryland law, any restaurant that has served alcohol to drivers who are involved in fatal crashes cannot be held liable. The state does not have dram shop laws, which hold third parties liable in such crashes.

Circuit Court Judge Eric M. Johnson wrote in an order released Friday that he hasn’t changed his mind since April, when he had moved to send the case to trial. He had stated that the restaurant should have known better than to serve its clearly drunken patron more drinks that night and let him drive, and therefore it should be held partly liable.

But after reconsidering the case, he wrote in Friday’s order that the Maryland Court of Appeals should consider this case an opportunity to change the law, he wrote.

“The Court of Appeals, thus, is in a unique position where it can harmonize our jurisprudence with current societal conditions without being in conflict with the Maryland legislature,” he wrote.

Andrew Bederman, who also is representing the Warrs, said they will file an appeal so that the courts can review the law.

“I’m hopeful and optimistic that the courts will agree with him and create this cause of action,” he said Friday. “Certainly, if any case has facts to change the law, it is this one.”

Robert B. Hetherington, who is representing JMGM Group LLC, which owns the restaurant, did not return a phone call for comment Friday.

Case to change the law

Johnson recognized in April that his decision to move the case to trial went against 60 years of precedent — specifically three cases in 1951, 1981 and 2000 — but he said then that circumstances have changed since those cases.

Johnson said in November’s hearing that previous courts have hinted that if the facts line up in a future case, and if circumstances have changed, the court could revisit the decision.

Statistics since 2000 show that because there is no regulation to hold restaurants liable, they will continue to sell to any adult customer to increase profits, Johnson wrote.

Johnson also noted in that decision that statistical data since 2000 attributing fatal accidents to drunken driving is staggering.

Hetherington argued in November that no matter how egregious and true the facts of the case are, Johnson cannot make law; only state legislators can.

A bill introduced by Del. Kathleen Dumais (D-Dist. 15) of Rockville on changing dram shop laws due to this case did not pass in the 2011 session.

Bederman said Friday that he believes Johnson has guided the upper courts to change the law, and he is not at all discouraged.

“It is not easy to change the law,” he said. “It is a process. And we are in the process.”

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