Miss. casino at fault for drunk driving death

Jessica M. Karmasek Jan. 21, 2011, 10:56am

JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has deemed a casino that continued to serve alcohol to a man on a 16-hour gambling and drinking bender, and who later drove and killed two people, is liable for the deaths.

The Court, in its Jan. 13 opinion, upheld the judgment of a lower court and found the Horseshoe Casino liable under the state's Dram Shop Act for the deaths Rodney Dean caused after leaving the Robinsonville, Miss., casino.

The Dram Shop Act provides "immunity from liability of persons who lawfully furnished or sold intoxicating beverages to one causing damage."

The statute includes the following exception: "The limitation of liability provided by this section shall not apply to... any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated."

On Friday, Aug. 2, 2002, Dean got off of work at 2 a.m. in Memphis, Tenn., and, after picking up his paycheck and briefly stopping at home, he headed for the casino.

A regular customer, Dean had a player's card, and the casino made note of his card number and the time he started gambling -- 4:05 a.m.

Over the next 16 hours, Dean gambled and drank free Corona beer -- at least "two or three" beers per hour, or perhaps more, according to his own testimony -- continually served to him by casino employees.

Dean, who was due back at work in Memphis by 9 p.m., did not leave the casino until close to 8:30 p.m.

Two eyewitnesses testified he was driving 90 to 100 miles per hour when he ran a stop sign and a red light and then slammed into another car, killing its driver, Synithia Harris -- who also had been drinking -- and two passengers, Sarah McCalman and Michael Holmes.

Dean's blood-alcohol level was 0.16 at 10 p.m., and 0.13 at 1 a.m. An autopsy on Harris showed that her blood alcohol content was 0.08.

On Dec. 27, 2002, members of the McCalman and Holmes families filed a wrongful death suit against the casino and Dean, but not Harris.

The circuit court entered a default judgment against Dean, the casino filed an answer, and the matter proceeded to trial.

The jury -- having been instructed to consider the negligence of the two defendants and the driver of the plaintiffs' car, Harris -- returned a verdict of $700,000 for the McCalman survivors and $400,000 for the Holmes survivors.

They allocated fault as follows: Dean 50 percent; the casino 45 percent; and Harris 5 percent.

The court then reduced each award by 5 percent to account for Harris' negligence, entering a judgment of $665,000 for McCalman and $380,000 for Holmes.

The circuit court also specified that the defendants were jointly and severally liable.

The casino appealed the judgment, arguing that it cannot be held liable under the Dram Shop Act and that it cannot be held jointly and severally liable.

Associate Justice Jess H. Dickinson, who authored the Court's opinion, wrote that it found "sufficient evidence" for the jury to find the driver was visibly intoxicated when the casino served him alcohol. The Court affirmed as to the casino's liability.

However, because there was no proof that the defendants "consciously and deliberately pursue(d) a common plan or design" to commit the tort, the Joint and Several Liability Act in effect when the suit was filed limits the casino's liability to 50 percent of "recoverable damages," the Court said.

The act requires a defendant to pay the share of a verdict that a co-defendant can't afford, no matter what percentage of liability is assessed to both.

It is up to the paying defendant to seek repayment from the non-paying one. If the non-paying one has no assets, the paying defendant gets nothing after footing the bill.

"The trial court erred by ignoring this statutory limit," the Court wrote. It reversed and rendered on that issue.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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