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Litigation Defenders

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Don't Drink and File... a Lawsuit

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If you can’t remember last night at the bar, you probably shouldn't file a lawsuit when you wake up in the hospital.

A premises liability case is essentially an action alleging negligence. To establish a prima facie case, the plaintiff must, among other things, establish causation.

That is, cause in fact and proximate cause. Basically that means a plaintiff must show – 1) but for defendant’s actions, the incident would not have occurred (cause in fact) and 2) the consequences were foreseeable (proximate cause). If a plaintiff cannot establish cause in fact, the case should be dismissed.

Everyone knows that drinking and driving is dangerous. But drinking and filing a lawsuit can be dangerous to a plaintiff’s case.

In Flaminio v Solbergs Greenleaf Sports Bar, Docket No. 337764, the trial court denied a defendant bar’s motion for summary disposition based on the open and obvious doctrine. The Michigan Court of Appeals, however, overturned the trial court’s decision because the plaintiff could not prove her case beyond speculation or conjecture.

Essentially, the appellate court held the jury would have to guess as to what caused the plaintiff’s fall and thus, her case must be dismissed.

The plaintiff was an employee of the bar. On the night of her fall though, she was there as a patron. She testified she did not drink before visiting the establishment. But while she was there, she consumed “screwdriver” cocktails with her girlfriend, another bar employee who was not working.

At some point during the visit, the two decided to leave the bar. But before leaving, the plaintiff’s girlfriend stepped outside to make a phone call. The plaintiff’s girlfriend came back into the bar and could not find the plaintiff. A bar employee found the plaintiff at the bottom of nineteen steps of concrete stairs that led to the basement. The plaintiff testified at her deposition that she recalls leaving the bar and then waking up in the hospital.

Critically, no one witnessed the plaintiff’s fall. In her complaint, she alleged she fell down the stairs while walking toward the exit and falling into the stairwell door that was left ajar. Dissimilarly, during a recorded statement taken by the bar’s insurer, the plaintiff stated she went to close the open door while leaving and missed the door knob, causing her to fall. Finally, the police report stated the plaintiff tried to brace herself on the door which swung open, causing her fall.

In the end, there were multiple theories as to how the plaintiff ended up at the bottom of the stairs. However, not one theory could be proven beyond speculation and conjecture.

The appellate court ruled a jury would have to guess as to what caused the plaintiff’s fall. And because of that, her case was dismissed. So, suing someone is another thing potential plaintiffs probably shouldn’t do when they’ve been drinking!  

Tags: Liquor Liability, Premises Liability

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