FRANKFORT, Ky. (Legal Newsline) - A Kentucky court was correct to dismiss a lawsuit against a college student who participated in his fraternity’s beer run the day before another frat member struck and killed a little boy with his car, an appeals court ruled.
There was no way a jury could find Andrew Thompson liable for the death of 4-year-old Marco Shemwell given Thompson’s only involvement was delivering beer to the Alpha Tau Omega fraternity more than 24 hours before the Sept. 18 accident. Shemwell was killed by a vehicle driven by Jacob Heil, an ATO pledge, outside a University of Kentucky football game.
“No reasonable juror could find Thompson’s actions to be the proximate cause of Marco’s death,” the appeals court ruled in a decision by Judge Annette Karem.
Shemwell’s father Benjamin sued ATO and a number of other defendants after the accident, claiming the fraternity served beer to Heil. Most of the defendants settled but Thompson refused, arguing he had only driven another member to a liquor store the day before to buy beer and he’d never met Heil.
Heil attended the ATO party on Sept. 18 but spent another two-and-a-half hours driving to other destinations, eating and consuming more alcohol, before the accident.
A trial court dismissed the case, finding Thompson had no duty to protect Marco from Heil and there was no proximate cause linking Thompson’s beer run to the child’s death. The trial court also rejected sibling loss of consortium claims as not allowed under Kentucky law.
The appeals court upheld the dismissal.
The plaintiffs “provided no evidence that Thompson either directly handed an alcoholic beverage to Heil or was authorized to exercise complete control over the direct dispensing of alcohol to the guests,” the appeals court said.
“Rather, the evidence indicates that Thompson may have contributed money to a fund to purchase the alcohol and drove alcohol from the store to the location where there was to be a party the next day. He did not hand the alcohol to Heil, whom he had never met.”