Metropolitan News-Enterprise


Wednesday, January 17, 2018


Page 1


Effort to Skirt Tavern Owner Immunity For DUI Accident Fails in C.A.

First District Finds No Liability Where Employee of a Bar and Grill Took Car Keys from Drunk Patron and Gave Them to His Less Intoxicated Companion


By a MetNews Staff Writer


The First District Court of Appeal has held that a man who was so drunk that he couldn’t walk unassisted out of a bar and grill has no cause of action against the owner of the establishment based on its employee taking the car keys from the patron and giving them to his lesser inebriated companion, whose driving resulted in an accident, injuring the passenger,

Div. One, in an unpublished opinion filed Friday, affirmed a judgment of dismissal following the sustaining of a demurrer, without leave to amend, to the second amended complaint of Adrian Singh. Treated at the hospital for his injuries, he was found to have a blood alcohol content of 0.29.

He and Sudhesh Behari had consumed alcoholic beverages at a Chili’s restaurant over a period of several hours.

In entering the automobile, driven by Behari, Singh failed to put on the seat belt and stuck his legs out the window. Singh was injured after Behari went through a red light, colliding with the vehicle of another motorist.

He sued the restaurant on Sept. 24, 2014. Brinker Restaurant Corporation, which owns Chili’s, a nationwide chain, was later substituted as the defendant.

Statutory Immunity Invoked

It demurred based on Business & Professions Code §25602 which sets forth that while providing alcohol to an obviously intoxicated person is a misdemeanor, no person who does so “shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.”

The 1977 statute specifies in subdivision (c) that the Legislature was abrogating the holdings of two California Supreme Court and one Court of Appeal opinion “in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.”

Justice Kathleen M. Banke wrote:

“Singh has attempted to plead around Business and Professions Code section 25602, subdivision (c) by alleging it was not Brinker’s furnishing of alcohol that caused his injuries, but rather Brinker’s negligent undertaking and entrustment, i.e., taking his car keys and giving them to Behari. Regardless of any interplay between Business and Professions Code section 25602, subdivision (c), and negligent undertaking and entrustment theories, Singh’s negligent undertaking and entrustment claims fail as a matter of law.”

No Negligent Undertaking

She said that liability can be imposed on a Good Samaritan who tries to protect another from harm but whose “negligent undertaking” of that task actually increases the risk of harm.

But Singh failed in his pleading to show how the bar and grill increased the risk of harm to him, Banke said, remarking:

“As the trial court observed, Brinker’s employee took the key from an ‘obviously intoxicated plaintiff’ and returned it to an ‘obviously intoxicated co[m]panion.’ In short, in transferring the car key from Singh to Behari, Brinker left Singh in the same (if not a marginally better) position than he was in before his key was removed from his possession.”

Under negligent entrustment, the jurist continued, liability exists on the part of an owner of a vehicle to a person who is injured in an accident caused by the negligent operation of that vehicle by third party, who was permissibly driving it notwithstanding that the owner knew or should have known of that person’s unfitness to drive.

Singh argued that under two Court of Appeal decisions, liability was imposed on a party that did not own a vehicle that gave permission to an unfit person to drive it, so it doesn’t matter that Brinker did not own the car it let Behari drive.

Banke pointed out that in both cases, permission was given by someone with “legal control over the vehicle.”

She declared:

“Here, in contrast, Brinker did not own or have any legal interest in Singh’s car. Nor did it have Singh’s permission to exercise any control over it. Accordingly, Singh did not allege facts sufficient to state a negligent entrustment claim.”

The case is Singh v. Brinker Restaurant Corp., A148075.

Brinker was represented on appeal by Los Angeles attorney Robert Cooper of Wilson Elser Moskowitz Edelman & Dicker LLP. Singh’s lawyer was Steven H. Henderson of Pittsburg, Calif.


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