August 26, 2001 -The Death that Changed the Law
The thunderstorms broke over Connecticut's northwest hills early in the afternoon. At one house in rural Norfolk, the crashing in the sky was loud enough to wake four college girls who slept late. It was May and all the girls were classmates just finishing exams at the end of their first year at Harvard University. The host was Sarah Craig, the youngest. She had just turned 18.
Sarah and her three friends got up to find the power out and quickly made the inconvenience into fun. They began playing Scrabble and Trivial Pursuit by candlelight in the large, darkened house not far from the town center. When the lights came back on around 10 p.m., they were able to cook dinner and shower. Then around 11:30, they told Sarah's mother they wanted to go for a walk. The weather had cleared and they were restless from having spent the day inside. Their walk was a short one. They went only as far as the town green. They sat for a moment under the stars, then started back to Sarah's, less than a half mile away on Route 272, the two-lane scenic highway that intersects with Route 44 in Norfolk center.
The girls did not walk facing traffic. But they were careful to stay inside the white line marking the shoulder of the highway. Whenever they saw the headlight glow of an approaching car, they edged even farther onto the shoulder. Street lights overhead added to their feeling of safety.
The girls walked in a one-two-one file. Sarah led the way. Behind her, side by side, came Lucy Yen and Jennifer Weiss. Ruby Hsu brought up the rear. Lucy would remember that only three cars had passed and that they were nearing Sarah's house when they sensed the approach of a fourth vehicle. Lucy actually turned to look at it. It seemed bigger than a car, but it was moving slowly. Lucy turned forward again. As the lights got closer, all the girls again veered toward the shoulder.
The next thing Lucy remembered was flying through the air and wondering, "How could this happen?" The impact threw her into Jennifer. They fell together in the grass by the side of the road.
It was Ruby, the last in line, who ran to Sarah's house screaming, "Mrs. Craig, Mrs. Craig, Sarah has been hit by a car!" Valerie Craig, her fianc� and Ruby got into Valerie's van to go to Sarah. But they stopped near the end of the driveway. The vehicle that hit Sarah - a Toyota pickup -- had carried her toward home before halting. From the end of her driveway, Valerie could see a man bending over Sarah. When she got close, Valerie could smell alcohol on the man's breath.
Sarah's eyes were open, but she could not speak. Afraid to touch or move her daughter, Valerie knelt over her as her eyes lost focus and her breathing grew ragged. Sarah's 14-year-old brother Sam, who had come to the scene after dialing 911, stood by watching. Valerie didn't know who finally pulled her away from Sarah. But she rode in the ambulance that took her to Winsted Hospital and then in the helicopter that airlifted her to Hartford Hospital.
Lucy, flown to another hospital, was discharged the following morning. Sarah, however, had a fractured skull. Police concluded she'd cartwheeled headfirst onto the hood of the pickup. At Hartford Hospital tests showed she was brain-dead. Her official death, after her vital organs were harvested for donation, came two days after the accident. State Police fixed the time of her fatal injury at 12:18 a.m. May 22, 1996. A breath test administered to the driver of the pickup at 1:24 a.m. showed an alcohol level of .219, more than twice the legal limit. Later, a police analysis of the accident concluded that because there was little damage to the pickup, the driver had been going no more than 25 miles an hour and had at least seven seconds to avoid hitting the girls.
"Alcohol impairment significantly impairs the operator's ability to perceive a pedestrian and properly position the vehicle to avoid contact," the police report said. "It has also been observed that operators impaired by alcohol will fixate upon observed objects and steer the vehicle into rather than avoiding the stimulus."
For the driver of the pickup, the wheels of justice turned swiftly. In November 1996, a judge in Litchfield Superior Court sentenced 28-year-old Steven Driscoll to five years in prison to be followed by five years' probation on a charge of second-degree manslaughter with a motor vehicle. The judge told Driscoll that once on probation he would not be allowed to drive or take a single drink. Still, the punishment was less than Driscoll might have gotten. Counting several lesser charges that Driscoll also pleaded guilty to, his maximum sentence could have been 11 1/2 years.
At the sentencing, Driscoll's lawyer, Christopher Cosgrove, a publicdefender, and his family and friends urged the judge to treat him with sympathy. Driscoll had grown up in Norfolk, a town of only 2,000, and was well known there. He'd been an altar boy, graduated from the regional high school and served in the Army. "He has been a nice person in a nice small community," Cosgrove said, citing support from Driscoll's parish priest and school principal.
Driscoll's father, Edward, denied the Craig family's assertion that his son felt no remorse for having hit Sarah. An aunt said Sarah's death was the second great tragedy in Driscoll's life. The first had occurred just months earlier, when his mother fell and was fatally injured carrying firewood up from the cellar. Driscoll lived with his parents. Letters of support said that at the time his mother fell, he was home recuperating from a back injury. She wouldn't let him fetch the firewood. When Sarah was killed, Driscoll had begun working as an equipment operator in a gravel pit.
The prosecutor, David Shepack, painted a much different picture of Driscoll. Most notably, Shepack said that Driscoll already had one arrest for drunken driving. In July 1995, he'd been pulled over near the Norfolk green and confessed to the officer who stopped him, "I am cocked. I am rocked. You got me," Shepack told the court. A charge of driving under the influence was dismissed after Driscoll completed an alcohol education program.
Shepack said that the night eight months later when he ran into Sarah and her friends, Driscoll had spent three hours in a restaurant and taproom just north of the Norfolk green locals call The Pub. He left shortly before midnight. State police who interviewed nearly three dozen people during their investigation into the accident reported Driscoll drank four rum and cokes at The Pub. But he also had bought a six-pack of beer after getting out of work. Shepack said Driscoll's blood alcohol test showed he had "on board his system" the equivalent of 11 1/2 shots of 80-proof liquor.
A sealed pre-sentencing report indicated Driscoll had a long-standing drinking problem, Shepack said. Some of his previous employers found him unreliable and one, Shepack said, believed he was shielded by "the closed ranks of the town of Norfolk where he was born and bred." Valerie, her ex-husband John, their son Sam and Lucy Yen all spoke at the sentencing. Their common theme was that Sarah's death was no accident.
"He [Driscoll] knew full well the effects of alcohol in his system. He knew full well he was risking not only his own life but the lives of anyone else on the road," John Craig said. Sam said he could not chase from his mind the image of his sister lying limp on the pavement. "I don't agree that eventhe maximum sentence is enough to punish him," Sam said. Lucy said Driscoll chose to drive drunk. "Let us use this case then to show drunken drivers across the country [our] refusal to let our loved ones become a statistic. We will not be silenced, not even by death," she said.
Valerie, who spoke first, said it was ironic that Sarah had been "killed by a drunk," since she herself had resolved never to drink. She said she was still struggling to comprehend Sarah's death. In Norfolk, where Yale University runs its famed summer music program, people regularly walk the same route Sarah did. "I took it myself all summer, every night, trying to understand how my daughter took a short walk and never came home," Valerie said. Several times, Valerie referred to Sarah as a star. "This miracle that was my daughter would have accomplished far greater things than I ever accomplished," she said.
For the sentencing, Valerie put together an album of letters from Sarah's teachers and classmates to show the judge how extraordinary Sarah had been. At the Talcott Mountain Academy of Science in West Hartford, where she leapt a year ahead of her normal grade, Sarah had shown an early genius for math. Her teachers at the elite Hotchkiss School in Salisbury wrote she was one of the brightest, most joyful students they'd ever had. Her senior year, she talked the school into letting her take an unheard-of double course load. At graduation, she collected prizes in poetry, mathematics, computer science, economics, religion and drama.
The theater, apparently, was first among her passions. She worked on every student production during her years at Hotchkiss. At Harvard as a freshman, she'd produced an Edward Albee play and won the honor of being picked to stage a Byron epic at the Harvard's Loeb Drama Center when she returned as a sophomore.
The court album included remarks the dean of Harvard College made at a memorial service for Sarah. He said that even juniors and seniors were awed by her energy. The Hotchkiss faculty dean wrote a letter that touched on the moral question of whether one life can be valued over another. "As a Christian, I find it difficult to conclude ... that because Sarah was such an exceptional person that the loss of her life somehow means the man who killed her deserves a greater punishment than the one he might receive if he had killed someone who was not doing much with her life. In fact one might argue that I should be asking for some kind of mercy to be shown here," the dean wrote.
But the Hotchkiss dean did not urge mercy either. Barring mitigating circumstances, Driscoll, he wrote, should get "the maximum sentence for the thoughtless killing of this fine young woman." Sarah did not come from a wealthy family. Scholarships covered half her Harvard tuition, and Valerie borrowed money to send her and her brother to private school. Both she and Sarah's father made their livings as off-beat entrepreneurs. John Craig deals in "photographica:" old cameras, camera equipment, old photographs and books about photography. Valerie, who graduated from Bulkeley High School in Hartford and once taught school in the area, established an herb and spice emporium in the old carriage house next to their home in Norfolk. After their divorce in 1984 John moved to Torrington, but they continued to share their children's lives.
Neither believed that Driscoll was solely responsible for Sarah's death. Valerie, who remained in Norfolk, was especially troubled by the town's reaction. She overheard the gossip that the girls had been drinking and wandered into the road. She believed friends of Driscoll were engaging in perverse harassment when they gunned their car engine near Sam on nights he walked home from a job at a nearby inn. She even began to doubt the thoroughness of the police investigation. Doctors, she said, told her Sarah's head injury wasn't consistent with landing on a hood and she was suspicious Sarah's remains may have been mishandled after her autopsy. Wanting to know precisely how her daughter died, Valerie hired private investigators and eventually sued the local funeral home that buried her and had her body disinterred. The case is pending, and her questions remain unanswered.
Valerie, however, had no doubts about why her daughter died. Searching for a way to come to terms with her daughter's death, she visited Alcoholics Anonymous meetings and contacted the MADD (Mothers Against Drunk Driving) organization. A MADD representative told her people in small towns often were inclined to blame the victim when the driver was local. At Driscoll's sentencing, Valerie had said pointedly, "Killing people with a gun when you are drunk is not OK. Killing people with a truck when you are drunk is not OK either. Our community of Norfolk needs to hear that."
Valerie thought the town that sheltered Driscoll indirectly shared the blame for Sarah's death. But she also wanted to make someone in particular shoulder some of the blame. He was David Davis, the owner of The Pub, where the evidence suggested Driscoll had become dangerously drunk. She and her ex-husband urged the lawyer who sued Driscoll over Sarah's death to also sue Davis.
Davis clearly was vulnerable under the state's Dram Shop Act. First adopted in 1872 before drinkers drove and significantly revised when Prohibition ended in 1933, the act makes sellers of liquor "to an intoxicated person" liable for injuries caused as a result of the drinker's drunkenness. The act was intended to give victims a right they never had. Under old common law, the very act of swallowing the drink was held to sever "the chain of proximate causation" between a purveyor of alcohol and the drinker's later actions. But since it was last changed in 1961, the Dram Act has capped the amount of damages a seller might pay. For a single victim, the limit is $20,000. For multiple victims, if say the driver killed Sarah's friends, too, the limit is $50,000. Victims, or their families, could sue a seller outside the Dram Act, but they would have almost no chance of winning. In 1990, the state Supreme Court, hearing the latest in a series of cases that in one way or another challenged the insufficiency of the Dram Act, ruled the act barred ordinary negligence suits.
The 1990 case was argued by Hartford lawyer F. Timothy McNamara on behalf of a family named Quinnett. Their 5-year-old son Benjamin had been killed one midnight when a drunken driver ran their car off Route17 in Durham. The driver could not say how he got to Durham from the bars in West Haven and Branford where he drank six shots of tequila and 12 beers.
The Craigs' original lawyer filed the necessary notice of intent to sue Davis, but was not willing to pursue the case given the odds against winning anything more than a token $20,000. At that point, Valerie began searching for a lawyer who would take the case. Her quest led her to a young Torrington lawyer named Christopher Wall.
Wall had an unusual background. He was a fourth generation lawyer. His grandfather Thomas, who once served as the Litchfield County state's attorney, still came into the office. His great-uncle Robert had been a judge. Christopher Wall, an adopted child, did not immediately follow in the family footsteps, however.
During his 20s, he worked as an insurance adjuster while attending the University of Connecticut Law School at night. His high grades earned him a spot on the law review and he graduated in 1994. When Valerie found him, he'd only been practicing a couple of years, handling routine personal injury and accident cases. He avoided telling prospective clients about his sideline in another profession. Wall sings lead vocals for a hard rock band called Powertripp. This summer, the band, which has performed at Toad's Place in New Haven, began cutting its first CD.
Despite the 20-year difference in their ages, Valerie Craig and Wall immediately took to one another. From his work as an insurance adjuster and lawyer, Wall had come to the same conclusion Valerie did in the aftermath of Sarah's death. Both believed the Dram Shop Act was nearly useless as a deterrent to drunken driving.
"We license drivers and we license sellers of liquor. Isn't there something we can do to interfere with the cycle that goes on between the two?" Valerie said, during an interview at the humble offices of Wall, Wall & Frauenhofer on Main Street, catty-corner from the historic Warner Theatre. "Even in the beginning, the police came to me and said, 'This is such a tragedy.' I mean [the driver] willfully put those girls in danger. To say it was an accident -- that's an insult," she said.
She said her conversation with the MADD representative hadn't given her much hope; the organization seemed more concerned with the driver than the seller. "She seemed to be a person who had seen a lot of this type of injustice ... she had resigned herself to the way things are," Valerie said.
"I knew I had a shot when I met Chris," she said. Turning toward Wall, she said, "What did you say to me Chris? 'I think you've got a 1 percent chance'? "
They were sitting at a glass-topped conference table covered with old photos of Wall's lawyer ancestors. "Our chances are still very bad," Wall cautioned her. "We've known right from the beginning in all likelihood we're not going to get anywhere." It was early June, soon after the fifth anniversary of Sarah's death. Both client and lawyer were in a state of nervous anticipation. They were awaiting a state appellate court ruling on their long-shot case. Three appellate judges in Hartford had heard the oral arguments on Nov. 1, 2000. "Their first question out of the block was, how can we rule in your favor and not overturn Quinnett?" Wall said. He'd been expecting their decision since March. He wondered and worried why the judges were taking so much time. Wall actually had brought two suits against Davis and The Pub, which was also known as the Hawk's Nest. One on behalf of Sarah's estate had been stayed while he appealed the more complex suit brought on behalf of the Craigs themselves. It sought damages on 10 counts of negligence and recklessness; for the emotional distress inflicted on Valerie and Sam as bystander victims and for the loss of Sarah's consortium. "We're stretching [the law] on both ends," Wall admitted.
Leaving aside the core question of whether Davis could even be sued outside the Dram Act, Wall's suit was asking the court to redefine "bystander" and also "consortium." Connecticut law allows only spouses to sue for loss of consortium, not parents or children. The right of bystanders to an accident to sue for emotional distress, rather than the primary victim, had been established by the state Supreme Court only in 1996.
That ruling involved a fatal accident in New Haven. A woman named Mary Clohessy was crossing Hillhouse Avenue at its intersection with Trumbull Street, holding her two young sons by the hand on either side of her, when a passing car clipped one of the boys in the head with its side-view mirror. The driver wasn't drunk, but he was speeding and the Clohessys were in a crosswalk. The mother and brother had actually witnessed the death. Valerie and Sam hadn't seen Sarah get hit. But they saw her dying, immediately afterward.
Wall originally argued his case before veteran judge Walter Pickett Jr. in Litchfield Superior Court. In September 1998, Pickett granted the defense motion to strike all the counts against Davis. His 2 1/2-page decision swept aside the consortium claims and, in rejecting the claims of emotional distress, relied heavily on the Supreme Court ruling in Quinnett and the "chain of causation" logic.
"Although the plaintiff makes an attempt to undercut this decision, it is a logical extension of Quinnett that it would not be proper to base a bystander emotional distress claim on negligent service of alcohol, since the proximate cause of any emotional distress is the action of the intoxicated [person] and not the seller of alcohol," Pickett wrote.
Wall said he expected Pickett to rule against him. Trial judges do not like to make new law, nor do many like cases brought on principle. He said Pickett knew the Craigs already had collected about $500,000 in compensation for Sarah's death from auto insurance policies, and didn't stand to get much more. (Valerie said she used her share to pay off school loans.) Wall said he had a standard contingency fee arrangement with Valerie. Both insisted they weren't pursuing the case for money.
Valerie said seeking a change in the law was the best way she could find of coping with Sarah's death. "Sarah and I were very close. Sarah would have wanted me to do what I could," she said. Grief counseling groups she'd attended had not eased her sorrow. "Someone would tell their story and I'd be a wreck. I knew what they were going through and I'd end up sobbing," she said.
"This is something that can benefit the next mother," she said one day in Wall's office, then turned to him for reassurance. "Even if we lose, Chris, you know we've made a dent in the wall," she said. "It's worth doing. I just hope it's more than a dent," Wall said. Valerie said her belief that the law needed reform hardened after Driscoll's sentencing when she got the full file of the state police investigation into Sarah's death. The file contained statements by two former Pub employees who told police that after Davis bought The Pub in 1992, he encouraged them to push drinks. One of the ex-employees said she specifically warned Davis that Driscoll was one of several Pub regulars who didn't hold their liquor well and should be shut off after a couple of drinks. Davis did not work in The Pub the night of the accident, and the police file contained conflicting statements about whether Driscoll looked drunk that night. But the information that Driscoll had a known drinking problem gave Wall the wedge he needed to at least try to make a case.
He knew that the Supreme Court had "carved out" two exceptions to the general rule that bar owners could not be sued outside the Dram Act. The first dated from 1980, when the court allowed the estate of James Kowal, who had been killed by a drunken driver on old Route 9 in Haddam, to sue the owner of the local Hutch Restaurant for recklessness. In that case, Kowal's lawyer said the driver actually had been tossed out of the Hutch for being too drunk, then was served again when he returned. Recklessness is much harder to prove than negligence. It requires virtual foreknowledge that an accident would happen. Crucially, however, the court in the Kowal decision said the state legislature never intended the Dram Act to be an injured party's "exclusive remedy" against a seller of alcohol.
The second exception was more recent and more pertinent. In 1988, the court began to close the break in the old "chain of causation" principle when it ruled that minors, unlike adults, could not be held responsible for the decision to drink. The ruling was made in the case of Christopher Ely, who was killed by another teenager leaving a graduation keg party in Ridgefield. In 1996, the court expanded Ely to allow negligence suits against bars that provide alcohol to minors.
Wall hoped to "carve out" a third exception. He decided to argue that Driscoll's alcoholism, if it could be proven, should give him the same status as a minor; that is, someone who also could not make a responsible decision to drink.
In his brief to the appellate court, he wrote, "The logic behind these two Supreme Court decisions [on minors] is even more appropriate when applied to an alcoholic. Not only is the alcoholic not able to deal responsibly with the effects of alcohol but he may also lack the ability to stop himself from consuming alcohol. The case is yet more compelling when the seller knows of the patron's illness and his lack of capacity to fully understand the risks associated with intoxication (as alleged) and yet serves the alcohol and makes a profit."
To win his appeal Wall did not have to prove that Driscoll was an alcoholic and that The Pub knew it. Those would be factual claims for a jury to decide. But to get to a jury he had to get around the Quinnett interpretation of the Dram Act.
The Supreme Court decision in the Quinnett case was a split one that actually gave Wall hope. Ignoring the Kowal case, the three-judge majority said, in effect, that the state legislature clearly intended the Dram Act to be the recourse of drunken driving victims against sellers of alcohol. "The issue is not whether one disapproves of irresponsible drinking and its too often tragic results ... but rather whether this court can intrude where the legislature has chosen to act," the opinion said.
The two dissenting judges, however, wrote with rare passion. "Enough is enough," then Chief Justice Ellen Ash Peters said in her dissent. "This court should no longer be the roadblock that prevents a jury from considering whether ... a commercial vendor of alcohol has taken suitable precautions ... to avoid injuries to those who are foreseeably at risk and whose injuries are in fact proximately caused by the sale of alcohol."
Peters said, "it is illogical to continue the fiction" that a driver's decision to drink freed the vendor from liability. She said the majority decision left social hosts open to liability suits, while giving "substantial immunity only to those who are in the business" of selling liquor. Peters' dissent was almost as long as the majority opinion. In his short concurring dissent, the late T. Clark Hull praised Peters' "impeccable logic." Hull quoted Victor Hugo, saying, "Greater than the tread of mighty armies is an idea whose time has come."
In his brief, Timothy McNamara, the attorney who represented the Quinnett family, argued the automobile made the Dram Act outdated. "Nowadays, it is very likely that someone will have driven to a bar and after drinking drive home," he wrote. McNamara said recently that he considered Peters' strong dissent a partial victory. He said that at the time many lawyers expected the court would upset the Dram Act, given the growing societal pressure to crack down on drunken driving.
Peters had noted that Connecticut was out of step with the trend in federal and state courts to make sellers more vulnerable to lawsuits. As early as 1970, a Wisconsin judge had said that the old rationale behind banning negligence suits had been "sadly eroded by the shift from commingling alcohol and horse to the commingling of alcohol and horsepower."
Hull cited the anti-drunken-driving sentiment in the legislature. Indeed, the year after the Quinnett decision, reform-minded legislators introduced two different bills to strengthen the Dram Shop law. One would have doubled the liability limits it allowed. The other would have permitted suits for negligence, precisely what McNamara and now Wall wanted. Neither bill got to a vote. In 1999, the last legislative attempt to toughen the Dram Act came to the same end. The bill, which would have raised liability limits to $1 million, was co-sponsored by Sen. Edith Prague of Columbia, a tireless and frustrated drunken-driving opponent. In a recent interview, Prague said the apathy of lawmakers and the opposition of liquor and restaurant lobbyists blocked dram reform. The usual argument, she said, is that exposure to higher damages would raise insurance rates and unfairly penalize responsible bar or restaurant owners. No state agency knows how many bars carry dram insurance, since the law does not require it. For those that do, the cost probably is now a minimum of $1,000 to $1,500 a year, according to an insurance department analyst.
Prague said she became dedicated to stopping drunken driving years ago after her 21-year-old niece was killed by one on Route 6 in Chaplin. "I still remember the phone call from her mother, screaming, 'Libby's dead. Libby's dead,' " Prague said. "She was a wonderful kid, but that doesn't matter. It was a human life."
At the time she spoke, Prague was still bothered by the legislature's failure to lower the legal blood alcohol limit to .08 and was upset by the arrest for drunken driving of her ally, Rep. Kevin Ryan of Montville. She told a staffperson to put a note in her file for the 2002 legislative session to reintroduce a bill increasing the Dram Shop liability limits. "The dollar amount is really preposterous," she said. "Is a life worth $20,000? Is that all a life is worth? And $50,000 for a carful of people? That's ridiculous. I think if I had to choose between the Dram Shop [with higher limits] and the right to sue, I'd take the right to sue."
Prague said an article about Wall's case would be a public service. "I don't think people even think about it or are aware there's a Dram Shop Act and there is limited liability," Prague said.
The national MADD organization favors strong dram shop laws. In a recent survey rating the states on their anti-drunken-driving efforts, MADD gave Connecticut an overall grade of C-minus. The survey did not rate Dram Shop laws. Bernie McLoughlin, the public policy liaison for the Connecticut MADD chapter, said it had been concentrating on other anti-drunken-driving measures such as lowering the legal limit. "The Dram Shop Act is quite an antiquated law," he said. "Maybe it's an area that needs to be revisited by a number of different people, including MADD."
When Wall filed his appeal of the Craig case, he included only the four counts he thought had the best chance of winning. Those were the claims against Davis and The Pub of negligently and recklessly inflicted bystander emotional distress on Valerie and Sam.
In his defendant's brief, Davis's lawyer, Patrick Walsh of Ridgefield, argued basically that the Supreme Court's Quinnett decision barred claims of negligence and that Wall's claims of recklessness merely parroted the claims of negligence. (In a brief phone interview, Walsh said everyone felt Sarah's death was a tragedy and asked for time to review the case. Last week, he said neither he nor Davis wished to comment.)
Wall and Valerie as well had conflicting feelings about what they hoped the appellate court might do. If it agreed with them, it meant they'd have won a small but important "carve out" from the Dram Shop law. But if they lost, they could appeal to the Supreme Court where they could argue for bigger changes in the law. "I'm fearful about winning and not having a chance to get to the Supreme Court," Wall said. "I can't believe that if I can get before them and look them in the eye, I can't believe a reasonable person wouldn't agree with what I have to say. It just seems so right."
In late July, Wall and his wife left for a camping vacation at Old Orchard Beach in Maine. They arrived on Saturday and Wall said his wife managed to keep him from calling in to his office on Monday. Stressed out from work and rehearsing with the Powertrippers, Wall said he needed a vacation badly. But on Tuesday, July 31, Wall couldn't stop himself from calling the office. When he did, his secretary told him he'd gotten advance notice that the appellate court had reversed Judge Pickett's decision.
"Reversal didn't mean a lot, because I thought we had a good chance on recklessness because of Kowal. Three and five [the negligence claims] were the counts I really cared about," Wall said, after his return from Maine. By then he had read the appellate decision, which was officially released on Aug. 7. He had won on all counts.
"I was ecstatic. I was very ecstatic," Wall said. "It's the best-written appellate decision I've read in a long time. I don't think I would have written it any better if I were writing it myself."
Valerie too loved the clarity of the decision. "They didn't waffle at all," she said. "The piece de resistance," she said, came at the end. The judges were unanimous. In one passage that particularly pleased Valerie, the decision said: "The defendants have asserted a timeworn argument that the common law does not recognize a cause of action for the negligent sale of intoxicating beverages to an adult. The defendants argue that the sale of liquor was not the proximate cause of the plaintiffs' injuries because Driscoll voluntarily consumed the alcohol, and his operation of the motor vehicle was an intervening event that broke the chain of causation. We disagree." In another passage, the decision said: "The plaintiffs seek to carve out another exception to the common law similar to the one that now exists for negligent service to minors. The plaintiffs argue that alcoholics, common drunkards or individuals who are unable to control their consumption of alcoholic beverages are a separate and distinct class because, like minors, they are not able to deal responsibly with the effects of alcohol. The plaintiffs' claim is compelling in the face of their allegations that the defendants knew or should have known of Driscoll's inability to control his consumption of alcohol."
In allowing the recklessness claims to stand, the court pointed to Davis' alleged policy of serving to "intoxicated patrons of The Pub, Driscoll in particular." To support their opinion, the judges cited the Dram Act itself, which, after all, recognizes there is a link between selling alcohol to a drunk person and the damage the person may later cause. The decision also noted that the same state criminal statute that makes it illegal to sell liquor to a minor, also makes it illegal to sell liquor to "an intoxicated person, or any habitual drunkard."
The decision also cited Peters' dissent in Quinnett at length. When McNamara was informed of the decision, he said, "I think it's wonderful. ... I simply am sorry it came too late for the Quinnetts." He guessed the appellate judges had taken a long time with the decision, expecting it would be reviewed by the Supreme Court. "It's a breakthrough. I'm not sure you'll have to prove he [a drunken driver] is a known alcoholic" to sue for negligence, McNamara said. "This does a lot for other people coming along," he said. To do something "for the next mother" is what Valerie Craig wanted all along. "I've succeeded in what my goals were, as long as this is not reversed," she said. Even if she were to lose the case against Davis, if it goes to trial as it now may, she said she'd be satisfied. "All that would mean is the jury didn't uphold the facts in this case. The law of the case is now different," she said.
"I gained a lot of respect for the law through this experience," she said. "I understand it's not perfect. I understand where they're coming from. The law can't be about justice. It has to be about upholding a certain set of rules. ... We just ran into a bad rule." Valerie said the appellate judges knew nothing about Sarah being a Harvard student. All they knew was the pertinent facts: that she was fatally injured by a drunken driver near the intersection of Routes 272 and 44 in Norfolk and that her mother and brother saw her dying.
Valerie said she considered Wall to be part of Sarah's generation. "They have a quiet little revolution going ... They are very moral. They are the stewards of the world. They are very aware. They were weaned on political double talk," she said a few days after learning of the court ruling. She was disappointed she couldn't reach Wall to talk to him. "The little twerp is on vacation," she said. Last Tuesday, Wall was informed by Davis' attorney that they intend to appeal to the Supreme Court. The high court may choose not to hear the case at all, letting the lower court ruling stand. But Wall, like Valerie, half hoped the Supreme Court does take the case. They could lose their "carve out" if the court reverses the appellate decision. But they could win an even bigger victory if the Supreme Court goes beyond the appellate ruling and upsets Quinnett. "Obviously there's a potential the law of the land could change ... That would be our grand slam," Wall said.
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