Wampum

I recently wrote about then Governor Bush’s suit against Enterprise Rent-A- Car:

When one of his twin daughters was involved in a fender bender (in which no one was hurt), then Governor Bush filed a lawsuit to recover property damage to the car. I do not know which driver was at fault, but I found it interesting that Bush sued Enterprise Rental-A-Car.

His theory was that the other driver did not have a valid driver’s license and, therefore, that Enterprise should not have rented him a car. I leave it to you to decide if that is an example of looking for a deep pocket with only a tangential relationship to the damage. Bush collected a $2,500 settlement from Enterprise.

David Adesnik of Oxblog thinks that Bush was eminently correct to file the suit:

Damn right Bush should've sued Enterprise. It is ridiculously irresponsible to rent a car to someone who doesn't have a valid license.

I do not think the Bush should have filed the suit, not because I fail to recognize Enterprise Rent-A Car’s irresponsibility, but rather because I do not think that law suits should be filed over trivial matters. No one was hurt in the wreck and Bush’s own insurance policy would have covered the property damage, except for the deductible. I do not find Bush’s suit to be frivolous, but I do not approve of filing law suits over every small matter. Had the stakes been higher, I would have no problem with such a suit against Enterprise Rent-A-Car.

Let’s look at another example of an effort to impose liability for a car wreck on a deeper pocket than the driver at fault.

Jack Townsend was a 25 year-old college graduate in the process of gaining his certificate to be a school teacher. On March 29, 2001 at 10:30 p.m., Townsend was in his Ford Focus driving home in the north Metro Atlanta area.

At the same time, James Serio was driving his Jeep Grand Cherokee Laredo home from the Atlanta airport, located about forty miles south. Serio, a fifty year-old software salesman and youth minister at his church, was returning home from a business trip to Milwaukee.

Serio crossed the center line of the road on a curve and struck Townsend’s car. Townsend was severely injured:

Townsend suffered severe head and orthopedic injuries and has run up more than $1 million in medical bills … He is no longer able to drive, lives with his parents, and has short-term memory loss. The only job he is able to hold is serving soft drinks at a Chick-fil-A restaurant…

Serio plead guilty to drunk driving. His liability for Townsend’s injuries is clear but it is unlikely that he has the assets or insurance coverage to make Townsend whole.

Townsend sued not only Serio but also a deeper pocket, Delta Air Lines.

Serio had been on a Delta flight before getting in his Jeep and heading home. The flight from Milwaukee to Atlanta takes a little less than two hours.

Serio had used frequent flyer miles to upgrade to first class. While in first class, Delta had served Serio 6-8 glasses of red wine. Serio contends that he consumed no other alcohol that night either before or after the flight.

A Georgia statute, OCGA § 51-1-40(b) provides, in part:

a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person … who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage.

Delta holds a Georgia liquor license. You may assume that some of the wine was served to Serio while the plane was over Georgia. An FAA regulation, 14 CFR § 121.575, prohibits airlines from serving alcohol to intoxicated persons but provides no right of action to a third party for violation of that rule.

The issue is whether or not Townsend should have the right to try to prove that Delta falls within the provisions of the Georgia dram shop statute cited above.

That matter is now pending before the Georgia Supreme Court. It appears that no airline has ever been held liable under a state dram shop statute. The Georgia Court of Appeals opinion, upholding Townsend's right to sue Delta, is here.

A very good discussion of the case by Gordon D. McCauley of the California law firm of Hanson Bridgett (arguing that Delta should have no liability) is here (scroll down and look for “Air Scoop: Mistakes”).

It seems obvious that Townsend joined Delta in the suit only because Delta had resources that Serio lacked. If Townsend’s damages were within the insurance coverage held by Serio, there would be no reason to join Delta as Townsend would be made whole in any case, and joining Delta would needlessly complicate an otherwise simple case. In that sense, Townsend was engaged in a search for a deep pocket.

Nonetheless, under the Oxblog rule, as announced above, it is not also true that Delta was “ridiculously irresponsible” in serving Servio 6-8 glasses of wine in less than two hours? Does that lead to the conclusion that “Damn right Townsend should've sued Delta?”

So, what do you think? Is that a case where the plaintiff improperly seeks a deep pocket by suing a party only tangentially related to the event, or is Townsend simply trying to hold Delta responsible for the damages it caused by its violation of a federal regulation and a Georgia statute?