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Mark Bello
Mark Bello
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Family of Brain-Injured Child Settles Lawsuit against a Texas Applebee’s

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In 2009, a two-year-old child suffered extensive brain damage after the car he was riding in was struck by a repeatedly convicted drunk driver. The toddler was strapped in his car seat when a pick-up truck slammed into the back of his family’s vehicle while waiting at a red light. The intoxicated driver had a blood alcohol level three times the legal limit. The child requires round-the-clock care; doctors said 80% of his brain has been destroyed he will never be able to stand, sit, walk, or speak. The child’s parents filed a lawsuit against the drunk driver and a local Applebee’s seeking $10 million to cover the child’s physical needs, past and future medical expenses, emotional and mental anguish, as well as their loss of earnings to care for their son. Three years later, the couple reached an undisclosed settlement.

Obviously, the impaired driver should be held responsible, but what about Applebee’s? Most states, including Texas, have Dram Shop Laws that hold commercial establishments accountable for injuries that result when they serve a customer that is obviously intoxicated to the point that the drunk person presents a clear danger to themselves and others. In order for a cause of action under the Texas Dram Shop Act to be successful, a plaintiff must show proof that, at the time the alcohol was served, the individual who later caused harm was obviously intoxicated to the point that he or she presented a clear danger.

Under the Dram Shop Act, a vast majority of states allow victims of drunk driving accidents (or their families) to hold restaurants and bars accountable for serious injuries or death caused by an intoxicated patron if the establishment knew, or should have known, the customer was intoxicated — a fuzzy test in application. These laws exist to ensure the public safety by making sure that alcohol-serving establishments are liable in their involvement with customers and their sale of alcohol. When these businesses are driven by profits and neglect to oversee their patron’s alcohol consumption, they can be held partially responsible for the negligence of the patron’s drunk driving accident. In Texas, a patron must be so obviously intoxicated that he presents a clear danger to himself and others. This case is an excellent example of this application of the law; the plaintiff showed proof via receipts that Applebee’s served this guy over 20 drinks in less than two hours (and let him walk out, probably to get into his car and drive away). The patron should have been visibly intoxicated; there should have been no “fuzziness” about his condition when he left Applebee’s.

The couple is still fighting to hold the drunk driver responsible for his actions; he still has not gone on trial. Although he has numerous prior convictions and charges of driving under the influence, his past convictions are not admissible due to a technicality: the convictions are from four other states and the records have been kept out of Texas courts. The couple’s pleas have not gone completely unheard; the state passed the Abdallah Khader Act (named after this innocent little boy) which doubles the amount of time that an alleged drunk driver can spend in prison for intoxication assault cases to 20 years and the amount of time someone with the blood alcohol content (BAC) of .15 or higher can spend in jail to one year.

Mark Bello has thirty-five years experience as a trial lawyer and thirteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice and Public Citizen, Business Associate of the Florida, Mississippi, Connecticut, Texas, and Tennessee Associations for Justice, and Consumers Attorneys of California, member of the American Bar Association, the State Bar of Michigan and the Injury Board.