By April Walsh
Downtown bar owners say that a recent lawsuit against 6th and Vine over a fatal drunk-driving case has them rethinking their policies on alcohol sales to customers who may have had too much to drink.
“Honestly, the same thing could have happened at any bar. We all train the bartenders what to look for. Sometimes, my biggest fear is when someone has already had too much and it isn’t obvious,” said Opie Kirby, the owner of downtown bar, Finnegan’s Wake.
Kirby continued, “We don’t know instantly what someone has had to drink before they came in. We don’t know if they are on drugs. We just have to make the best judgments we can before we serve someone.”
This lawsuit draws the legal responsibility of bar of bar owners into question.
Nearly two years ago a fatal car accident on Reynolds Park Road resulted in the death of David Allen Carmichael and permanent injury of former state legislator Larry Womble. At first, Womble was charged with misdemeanor death by motor vehicle because the first police report indicated his car crossed the centerline. David Freeman, Womble’s lawyer, contacted Steven Arbogast, the Special Deputy Attorney General to reopen the case.
Further investigation determined that Carmichael’s blood alcohol content was nearly four times the legal limit that the time of the accident. All charges against Womble were dropped.
Womble filed a lawsuit against Carmichael’s estate and downtown restaurant 6th and Vine. He is seeking more than $10,000 each in compensatory and punitive damages.
Womble’s lawsuit against 6th and Vine alleges that the bar’s management failed to properly train their employees regarding the sale and service of alcoholic beverages.
“Employees, acting in the course and scope of their employment, continued to serve alcoholic beverages to Carmichael… after they became aware in the exercise of reasonable care, that Carmichael was intoxicated.”
6th and Vine could not be reached for comment.
Caleb Flint, bar manager at Foothills Brewing Company on Fourth Street said that knowing when to stop serving patrons, even with the right training can be challenging.
“The easiest way to tell when someone has had too much to drink is to read their body language,” said Flint.
He looks to see if they are fumbling their money, slurring their words or sloshing their beer around too much.
Flint says sometimes making a mistake can offend customers.
“I once had someone in here stuttering- with a speech impediment. I didn’t serve him because I thought he was drunk. His buddies convinced me that they were telling the truth.”
So, what’s the best policy?
Wake Forest University Law Professor, Jonathan Cardi said that commercial establishments will be held liable if they are not caring for the intoxicated patron in a reasonable way.
Reasonable he said, is for the jury to decide. It could be decided that if they served him even if he was stumbling or slurring, that may be unreasonable.
Flint said there are strategies for dealing with a very intoxicated patron but there is no winning formula. His number one concern is that someone doesn’t get behind the wheel if they have had too much.
“The strategy I always use first is to slow the person down. I try not to be as quick to get someone another drink… I’ll do this while making sure they have something hydrating in front of them like a water or soda.”
Richard Emmett, the original owner of The Garage, a popular night club on West Seventh Street, shared another approach. “They should be refused service, or further service, and an offer should be made to call a cab for the patron or make sure they get home without driving; from a friend, colleague, concerned patron or the bar staff themselves.”
Kirby has similar apprehension, “We’ve had to put people in cabs before. We try to do everything we can but if the person wants to get out of the cab and walk down the street to another bar, we can’t stop them- and I’ve seen that done before.”
Emmett said that bars should protect themselves by keeping detailed records of how much they serve each patron in a given amount of time by using the daily register tape for cash transactions and credit card receipts for credit payments. This way, the establishment has back up documentation to show a patron was not over served.
In the 6th and Vine response to the lawsuit, the establishment denies that Carmichael was over served and that he left the bar extremely intoxicated.
This isn’t the first time that Sixth and Vine has been sued. Tolly Carr, former WXII anchor was involved in a fatal accident in 2007 after drinking at three bars earlier in the evening. 6th and Vine and Burke Street pub both reached settlements with the family of Casey Bokhoven, the man who was killed in the crash. Sounds on Burke Street, the third bar Carr visited that evening filed for bankruptcy.
Kirby said that the most they can do is protect themselves is to have insurance. “I have to ask myself at what point have I not done enough? We are insured for at least two million dollars but that wouldn’t go towards legal fees.
Flint said that it is difficult to tell who is truly capable of driving home without getting a DUI because of the legal limit. “A major concern I have is that someone who blows the limit, .08%, probably is not showing any of the warning signs I described. Lots of people who drink socially would probably have a blood alcohol content higher than that most nights that they drink.”
Emmett said Winston should have stronger regulations and additional entertainment options to counter the drinking culture.
“I think there should be a limit on the number of bars, liquor licenses and or bars that do not serve food on one block and more diverse entertainment options that don’t promote binge drinking.”
Even though the lawsuit is pending, 6th and Vine is still a popular spot for downtown night life.
Kirby said, “I don’t think this has changed business for us or for downtown. I still go to 6th and Vine. I like it there- I know my staff likes it there. It’s still a great spot.”