Friday, November 7, 2014
C.A. Revives Wrongful Death Suit Against Brewer of ‘Four Loko’
By KENNETH OFGANG, Staff Writer
The Fifth District Court of Appeal yesterday reinstated a suit against the maker of a caffeinated alcoholic beverage by the father of a man shot to death by Fresno police.
Brett Fiorini claims his son Ron, a 23-year-old college student at Fresno Pacific University, drank two 23.5-ounce cans of Four Loko before he brandished a shotgun and was shot 63 times by officers in October 2010.
According to police reports, officers responded to a call from Fiorini’s roommate, who said Fiorini was “high or drunk and had a gun.” He came out of his house with a shotgun pointed at the officers.
Fiorini’s father sued City Brewing Company, LLC,, the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability. He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola.
He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior.
Judgment on Pleadings
Fresno Superior Court Judge Kristi Culver Kapetan granted City Brewing judgment on the pleadings, holding that the company was immune under the dram shop statutes, which generally protect a defendant who “furnishes” an alcoholic beverage to a person of legal drinking age from liability for damages resulting from the beverage’s consumption.
But Justice Dennis A. Cornell disagreed, saying that City Brewing, as the manufacturer, didn’t furnish a beverage.
Cornell explained that under Business and Professions Code §25602, the immunity is limited to persons who have supplied an “alcoholic beverage pursuant to subdivision (a) of this section.” That subdivision relates to a person “who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person.”
The justice added that “[t]he scope of this statutory limitation is not ambiguous.” Since the brewer, bottler, and labeler of a product does not sell, furnish or give a beverage to anyone, let alone a drunkard or an intoxicated person, it is not immune under §25602 or related provisions, he said.
Nor, he went on to say, does the immunity for manufacturers of “common consumer products” under Civil Code §1714.45 apply as a matter of law.
“That statute lists alcohol as such a product, but plaintiff has alleged Four Loko was unreasonably dangerous due to the combination of high levels of alcohol and stimulants and the risk posed by stimulants that mask the intoxicating effect of the alcohol,” the justice wrote “The allegations about the interactive effect of Four Loko’s ingredients preclude us from finding, as a matter of law, that Four Loko’s combination of alcohol and stimulants constitutes a ‘common consumer product’ within the meaning of Civil Code section 1714.45, subdivision (a)(2).”
The dangers presented by the mixture of substances whose effects are well known to the public when they are used separately, but not together, might not be well known to most consumers, the justice said.
The U.S. Food and Drug Administration notified the makers of Four Loko in November 2010 that the agency considered caffeine an unsafe additive. In response, the manufacturer, which had sold the drink since 2005, reformulated it to remove the caffeine, and earlier this year took the product off the market entirely in order to settle a lawsuit brought by local and state officials from around the country.
The case is Fiorini v. City Brewing, LLC, 14 S.O.S. 5009.
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