Instructions

FACT PATTERN: This morning your supervision attorney called you into her office and handed you a slim manila folder containing a few sheets of paper. "We have just been retained by Ms. Jane Healy to represent her in this matter," she said. "All we have thus far is a sheet of facts which is probably incomplete. The contents of the folder included the following: The Client's name is Ms. Jane Healy, who resides at 483 Moore Dr., in River City. She is 32 years of age, single, ad a successful public relations specialist. She works for Ajax, Inc., a large firm, and is number two in the public relations department. She earns $95,000 per year. The firm likes her work. Jane has already been told that she will become head of her department when her boss retires in about 4 months. She can expect to be delegated a great deal of responsibility, and receive a raise of at least $15,000 per year. At 5:30 p.m. one month ago, Jane Healy was on her way home from work. Traffic was heavy, and Ms. Healy was running late. She had a date at 7:00 pm and wanted to get home in time to change clothes, feed her cat, and freshen up before her date arrived.

She was driving west on 14th Street, about 4 blocks from her home. As Jane approached the intersection of 14th Street and Childs Street, the signal light there turned yellow. Even though the speed limit in that area is 25 miles per hour, Jane admitted later to the investigating police officer that she had accelerated to about 35 miles per hour as she tried to beat the yellow light through the intersection. As she entered the intersection, traffic in front of her unexpectedly stopped, and she had to suddenly step on her brakes to avoid hitting the car in front of her. When the light changed to red, Jane remained stranded in the intersection because the traffic in front of her remaining at a standstill. While Jane Healy was stranded in the middle of the intersection, Charles Raymond was driving south on Childs Street in his 1985 Trans Am, and he had stopped at the same intersection for the red light. Totally disregarding the fact that the intersection was blocked and had not cleared of east/wet traffic, Mr. Raymond floored the gas pedal the instant the light turned green. He roared into the intersection, striking Ms. Healy's BMW broadside, knocking Jane against the left side door of her car, and smashing Jane's car into a street power pole on the southwest corner of the intersection. At the moment of impact with the pole, Ms. Healy's seat belt broke. As a result of this accident, Jane's skull was fractured, three ribs were broken, with one rib puncturing her lung, and her face was very badly slashed by broken glass. Although it has been 4 weeks since the accident, Jane is still hospitalized. Her doctors have told her that she must expect at least 2 more plastic surgeries to repair the damage to her face. Since the accident, Jane has also suffered from severe migraine-type headaches. Because of her disfiguring injuries, she cannot face the publicwhich is a requirement of her jobfor at least a year, and will probably carry some facial scars for the rest of her life. Jane Healy's firm, Ajax, Inc., is sympathetic, however, they have told her that it cannot leave open the assistant vice president position to which she was to be promoted in approximately 3 months from now. Even worse, if Jane cannot meet the public for an unknown period of time, they must hire someone who can meet the demands of the job. Ajax, Inc., has offered Jane a year's severance payout, but this accident has probably resulted in the loss of her present job and her future prospects in this type of career. Charles Raymond, the driver of the car that struck Jane Healy's automobile, is a mechanic at Allegretti & Sons, a large local company that rebuilds automobile transmissions and engines. Raymond was convicted of drunk driving in November of 2010 and again in June of 2015. On both occasions, he was sentenced to 60 days in the county jail and a $500 fine. In 2010, his 60-day sentence was suspended; in 2015, Raymond served 35 days. Last year, he was arrested again for drunk driving, but negotiated a plea bargain for a reduction of the charges to reckless driving, for which he served 10 days in jail and paid a $500 fine. On all 3 drunk driving convictions, the Court suspended Raymond's driver's license, and at the time of the accident, Raymond's license was still suspended. On the day of the accident, Raymond's boss, Vincent Allegretti, asked Raymond, as had many times in the past, to deliver a transmission to a body shop in River City on his way home from work. Raymond agreed. Mr. Allegretti knows of Raymond's fondness for alcohol, and also of his driving record, although Mr. Allegretti did not know whether Raymond's last license suspension was still in effect when he asked him to do this after- work errand. Mr. Allegretti was also aware that Raymond often stopped at Red's Tavern throughout the day whenever he was transporting parts for Mr. Allegretti's business or when he was on his lunch break. In fact, Mr. Allegretti had counseled Raymond in the past about staying sober during work hours. Allegretti & Sons has a

blanket liability insurance policy on all of their employees and vehicles, with a maximum limit of $1 million per person per accident, plus coverage for property damage. After Raymond left work the day of the accident, he decided to stop at Red's Tavern before he delivered the transmission to the shop in River City. Charles Redmond is a regular customer at Red's, and he frequently gets obnoxiously and aggressively drunk. That day, Raymond had at least four straight shots of bourbon, plus four beers, all in approximately 45 minutes. As Raymond staggered from the bar and left through the front door, one of the other patrons in Red's commented, "Man, that guy is loaded." The regular bartender, Tony Simpson, who often serves Raymond, responded, "So what else is new?" STATUTES: ORS 471.410 ORS 471.412 ORS 471.565 CASES: Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977) Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (1986). Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

This is my legal memo I just want someone to read over it before I submit it if I need to add anything, anything I can improve, etc.

MEMORANDUM

To: Carol A. Kingman

From: Samantha Charlie

Re: Healy v. Red Tavern

Date: May 8, 2022

Issues

Under Oregon law, is Red Tavern bar liable for the harm caused to Jane Healy?

Brief Answers

Yes. A host that serves alcohol to an already intoxicated person, and caused damage to another individual, is responsible for their actions under Oregon law.

Statement of Facts

Ms. Jane Healy, who resides at 483 Moore Dr., in River City. She is 32 years of age, single, ad a successful public relations specialist. She works for Ajax, Inc., a large firm, and is number two in the public relations department. She earns $95,000 per year. Healy has already been told that she will become head of her department when her boss retires in about 4 months. She can expect to be delegated a great deal of responsibility and receive a raise of at least $15,000 per year.

At 5:30 p.m. one month ago, Healy was on her way home from work. Traffic was heavy, and Healy was running late. She had a date at 7:00 pm and wanted to get home in time to change clothes, feed her cat, and freshen up before her date arrived. As Healy was nearing her home, she did attempt to beat the light whilst going 10 mph over the speed limit at the intersection of 14th Street and Childs Street heading west. The attempt came to a halt due to unexpected traffic ahead of her. Due to the unexpected traffic, Healy was left in the middle of the intersection at a standstill traffic.

Around this time, Charles Raymond was driving south on Childs Street in 1985 and stopped at the same intersection as Healy. Neglecting the clear view of traffic, Raymond, then, floored his car at the intersection when the light turned green striking Healy's BMW broadside, knocking Healy against the left side door of her car, and smashing Healy's car into a street power pole on the southwest corner of the intersection.

As a result of this accident, Healy's skull was fractured, three ribs were broken, with one rib puncturing her lung, and her face was very badly slashed by broken glass. Although it has been 4 weeks since the accident, Healy is still hospitalized. Her doctors have told her that she must expect at least 2 more plastic surgeries to repair the damage to her face. Since the accident, Healy has also suffered from severe migraine-type headaches.

Because of her disfiguring injuries, she cannot face the publicwhich is a requirement of her jobfor at least a year and will probably carry some facial scars for the rest of her life. Healy's employment status is also currently pending due to the expectations from her firm, Ajax, Inc., she was supposed to get a promotion but also, due to the nature of the accident cannot even meet the public. Ajax, Inc., has offered Healy's a year severance payout, but this accident has probably resulted in the loss of her present job and her prospects in this type of career.

Raymond has a history of drunk driving and has had three drunk driving convictions in the past prior to this accident. He has paid a total of $1,000 in fines, 45 days served in jail, and a suspended license, which, was still suspended during the accident with Healy. On the day of the accident Raymond's boss requested a favor to deliver a transmission to River City; aware of most of Raymond's drinking issues and some of his law enforcement history but his boss was unaware of the license suspension. Mr. Allegretti (the boss) had counseled Raymond in the past about staying sober during work hours. Allegretti & Sons has a blanket liability insurance policy on all their employees and vehicles, with a maximum limit of $1 million per person per accident, plus coverage for property damage.

After Raymond left work the day of the accident, he decided to stop at Red's Tavern before he delivered the transmission to the shop in River City. Raymond is a regular customer at Red's, and he frequently gets obnoxiously and aggressively drunk. That day, Raymond had at least four straight shots of bourbon, plus four beers, all in approximately 45 minutes. As Raymond staggered from the bar and left through the front door, one of the other patrons in Red's commented, "Man, that guy is loaded." The regular bartender, Tony Simpson, who often serves Raymond, responded, "So what else is new?"

Analysis

ORS 471.410

"A person may not sell, give or otherwise make available any alcoholic liquor to any person who is visibly intoxicated."

ORS 471.412

"A licensee or permittee is not in violation of subsection (1) of this section if the licensee or permittee makes a good faith effort to remove any unconsumed alcoholic beverages from the person's possession when the licensee or permittee observes that the person is visibly intoxicated."

ORS 471.565

"The provisions of this subsection apply only to claims for relief based on injury, death, or damages caused by intoxication and do not apply to claims for relief based on injury, death, or damages caused by negligent or intentional acts other than the service of alcoholic beverages to a visibly intoxicated patron or guest."

Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977).

"A professor of toxicology testified, that, in his opinion, such a blood alcohol content at that time for a woman of her weight, would indicate that if she stopped drinking at 6 p.m. she would still probably be showing "outward symptoms of intoxication" at 6:50 p.m.... He also testified, however, that even five and one-fourth beers would "build up" a blood alcohol level of .24 percent in a woman of her size and that at that level such a person would be "under the influence" and would probably show "outward symptoms" of intoxication."

Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (1986).

"When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm . . . to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent."

Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

"Liquor licensees, who operate their businesses by way of privilege rather than *206 as of right, have long been under strict obligation not to serve minors and intoxicated persons and if, as is likely, the result we have reached in the conscientious exercise of our traditional judicial function substantially increases their diligence in honoring that obligation then the public interest will indeed be very well served."

Conclusion

Thus, a host who continues to serve alcohol to an already intoxicated person is liable for the damages of another.

Recommendation

1. Tony Simpson, the regular bartender would have to be interviewed:
2. Were you aware that you are not supposed to serve alcohol to an already intoxicated person?
3. What signs did you notice about Raymond?
4. What is the protocol when someone tries to leave drunk? Are you supposed to let them leave?
5. Charles Raymond, the man who hit Jane Healy should be interviewed:
6. How much do you recall drinking that night?
7. What are your height and weight? With this information, we can determine the BAC (blood alcohol content) of the time the event occurred.
8. Video surveillance of the night to look at Raymond's body language would help. To prove he was visibly intoxicated, stumbling out of the bar, maybe even audio to confirm any slurred speech.