Estate of Brian K. Turner vs Moose Lodge et al

Two weeks before the trial was scheduled to begin before Justice Brian DeJoseph in Onondaga County Supreme Court, the Plaintiff entered into a settlement with all parties.

On April 12, 2003 at 6:40 p.m., decedent, Brian K. Turner, a short-order cook, and decedent, Rose M. Williams, a factory worker, were passengers of a vehicle driven by Plaintiff and Administratrix of the Estate of Brian K. Turner, Liza A. Turner, homemaker and mother of four, who was driving in the Town of Lysander, Onondaga County, when her vehicle was struck head on. Defendant, Steven M. Vulcan, was driving an automobile owned by Andrew E. Kenneson, which crossed over a double yellow line while traveling 80 mph in a 45 mph zone. The collision resulted in the almost immediate death of Liza Turner's mother, Rose M. Williams, and Brian Turner, her husband, died one hour and 50 minutes later. Liza Turner suffered severe injuries to both lower extremities, as well as other internal injuries.

The Defendants, Vulcan and Kenneson, had been drinking first at Vulcan's father's house, then at the American Legion Vernice Suttle Post, and then drove to the Loyal Order of the Moose, Baldwinsville Lodge No. 644, and then finally ended up at Hearns Showboat, Inc. All of the Defendants drinking took place between 11:30 a.m. and 6:30 p.m. on April 12, 2003. Since bartenders at all of the establishments testified during pre-trial discovery that neither Vulcan nor Kenneson showed signs of visible intoxication, Plaintiffs' counsel relied upon Vulcan's Blood Alcohol Content (BAC) of .23%, which was as a result of a blood test taken at St. Joseph's Hospital where he was treated for his injuries. Since Vulcan's BAC of .23% was taken some four hours post-accident, Plaintiffs' expert toxicologist would have testified at trial that, at the time of the collision, Vulcan's BAC would be somewhere between .27 and .29%. After Vulcan's recovery from his own injuries, he pleaded guilty to vehicular manslaughter, vehicular assault, based upon his intoxicated state and was sentenced to up to seven years in prison. Vulcan was released in July 2009.

Plaintiffs' claimed that the Defendant bars violated New York State's Dram Shop Law (General Obligation Law §11-101) and was prepared to offer expert testimony that, while at the American Legion, the driver of the automobile would have had a BAC of approximately .10 to .12 by the time he left that establishment, and signs of visible intoxication should have been evident to the bartender. Further, while at the Moose Lodge, toxicology evidence through expert testimony would have indicated that Vulcan's BAC would have been between .23 and .27 and, by the time he left Hearns Showboat, his BAC would have been even higher. Plaintiffs' experts were prepared to testify that, based upon the Widmark Formula and its extrapolation-back theory, signs of visible intoxication should have been evident to bartenders at all three establishments based upon Vulcan's known BAC from his blood draw while at the hospital. Plaintiffs' toxicology experts would have testified that Vulcan had between 19 and 21 twelve-ounce bottles of beer between 11:30 a.m. and 6:30 p.m.

Defense counsel repeatedly contended that Vulcan had only consumed 9 bottles of beer, which was consistent with his deposition testimony and that he showed no signs of visible intoxication at any of the establishments. Defense counsel for the Moose Lodge would have proffered toxicological evidence that both Vulcan and Kenneson must have consumed other alcoholic beverages at some other location between the time they left the Moose Lodge bar and the time of the incident that neither Vulcan or Kenneson would attest to. Testimony from the bartenders indicated that Vulcan and Kenneson were served three beers at the American Legion; three beers while at the Moose Lodge; and one beer at Hearns Showboat. Vulcan and Kenneson further testified that they had two beers each while at Vulcan's father's house earlier in the day.

Plaintiffs' toxicology proof would have indicated that it was impossible to have a blood alcohol reading of .23, some four hours post-accident, by merely consuming 9 bottles of beer over a 7-hour period of time.