Restaurant not liable for DUI crash

An Asheville restaurant and sports bar franchise has successfully fended off a $350,000 dram shop suit, according to its attorney.

Defendant William Erickson had been drinking at LJ Wings, also a defendant, before causing a car crash that injured the plaintiff, he conceded. Erickson stipulated to his negligence, said LJ Wings attorney Jeremy Stephenson of Golding, Holden & Pope in Charlotte, but a jury found that the restaurant did not share in that negligence.

According to Stephenson, Erickson was served alcohol at LJ Wings on Aug. 5, 2015, from 11 a.m. until about 6 p.m. Receipts show that he purchased 19 drinks, but testimony, Stephenson said, showed that he was buying drinks for friends as well as for himself.

About 6 p.m., a bartender said that he “saw something off” with Erickson, so he took Erickson’s beer and gave him food and water. The bartender asked Erickson how he was getting home, Stephenson said, to which Erickson replied that he had called a friend.

“Unknown to Wings, Erickson had actually driven himself away,” Stephenson said.

An hour later, Erickson struck the plaintiff’s vehicle on I-26, causing minor injuries to the plaintiff’s finger and neck.

Erickson blew a .18, more than twice the legal limit, and eventually pleaded guilty to driving under the influence.

According to Stephenson, his client demonstrated at trial “extensive training materials given several times per year.” He said that bartenders testified that they counted drinks and saw no signs of intoxication until Erickson was cut off; even then, Erickson — a regular at the restaurant — did not appear to be “substantially or materially impaired.”

“No witness testified that Erickson actually appeared intoxicated while at Wings,” Stephenson said. He added that Erickson’s carrier offered to settle immediately after the accident, but that plaintiff’s counsel refused.

The plaintiff, Dung Trang, was not present at any time during trial, Stephenson said.

According to Stephenson, the plaintiff’s expert toxicologist testified that Erickson most likely would have shown signs of intoxication while at Wings, while Doug Scott, testifying in rebuttal, opined that those opinions were “speculative, unreliable, and not scientific.”

A mistrial was granted when a clerk found a law review article in the jury room, Stephenson said, but after the dismissal of the jury foreman for cause and two other jurors for health issues, the plaintiff’s motion for mistrial was withdrawn.

Stephenson added that the case was significantly delayed when Judge Marvin Pope referred plaintiff’s counsel to the North Carolina State Bar for, Stephenson says, “admittedly video recording Defense counsel alone in a room with a Defense witness, and then trying to use such secret video as settlement leverage and as a trial exhibit.”

The attorney, Lakota Denton of Asheville, claimed that he inadvertently left his video camera running during a deposition in his office, according to Pope’s order holding further proceedings in abeyance pending a state bar investigation.

Denton did not return a request comment prior to this story’s original publication, but recently contacted Lawyers Weekly and provided a Nov. 30, 2017, Buncombe County Superior Court order authorizing him to re-enter as plaintiff’s co-counsel, and stating that the state bar found “insufficient evidence to impose discipline” upon Denton. The grievance was dismissed for lack of probable cause, Pope wrote in the order.

“I regret that Mr. Stephenson continues his personal attacks on me and my character despite the State Bar dismissing the grievance he filed against me,” Denton wrote in an email.

Ultimately, the trial lasted for five days and the jury deliberated approximately 10 hours before finding LJ Wings not liable.

An offer of judgment of $5,000 remains pending on post-trial motion for costs, Stephenson said.

Both Denton and another attorney for the plaintiff, Lucas Baker of Concord, declined to comment on the pending litigation.

“I doubt very seriously that this case is over and therefore it would not be appropriate for me to comment on the case at this time,” Baker wrote in an email.

Follow Heath Hamacher on Twitter @NCLWHamacher

VERDICT REPORT — DRAM SHOP

Amount: $0 (Defense verdict)

Demand: $350,000

Injuries alleged: Finger and neck injury

Most helpful experts: Doug Scott of Drug and Alcohol Risk Management, Inc. in Lillington Case name: Dung Thang Trang v. LJ Wings, Inc. and William Robert Erickson

Court: Buncombe County Superior Court

Judge: J. Thomas Davis

Case No.: 15-CVS-4470

Date of verdict: March 27

Attorneys for plaintiff: Lakota Denton of Asheville and Lucas Baker of Concord

Attorneys for defendants: Jeremy Stephenson of Golding, Holden & Pope in Charlotte for LJ Wings, and Ellen Wortman of Marshall, Williams & Gorham in Wilmington for Erickson