A Montgomery County Circuit judge is deciding whether to send to trial a lawsuit that would hold a Gaithersburg restaurant partially liable for a fatal car crash.

Robert B. Hetherington of Mccarthy Wilson LLP, the attorney representing Dogfish Head Alehouse, asked Judge Eric M. Johnson on Thursday to rule in favor of his client without a trial.

Johnson is drafting a decision.

The guardians of the 10-year-old girl who was killed in the crash sued Dogfish Head in December for $3.25 million, accusing the restaurant of serving an obviously intoxicated man, who drove away and crashed into their car.

They are attempting to hold the restaurant partly liable for all injuries in the crash.

Johnson ruled in April to send the case to trial, after Hetherington asked him to dismiss it.

In his April decision, Johnson wrote that the restaurant's staff could and should have predicted that the man might drive recklessly and kill or seriously injure someone.

In most states, but not in Maryland, vendors may be held civilly liable if they serve an obviously drunken patron, who then causes a crash that injures others. This is referred to as dram shop liability.

Hetherington argued that because there is no dram shop liability law in Maryland, Dogfish Head should win the case.

Jason Fernandez of Greenberg and Bederman LLP, the guardians’ attorney, accused Hetherington on Thursday of making no new arguments and presenting no new facts when asking for the judgment.

Fernandez said after the hearing he is well aware this will be a lengthy battle.

“My hope is that [in his decision] Judge Johnson follows the analysis and reasoning of his last judgment,” he said.

A gutsy decision

Across the nation, appellate courts and state legislatures have created dram shop laws.

As of April, 37 states hold vendors liable or partly liable when they serve a drunken patron who then causes a crash; 44 states do so for vendors who serve someone under 21.

Enactment of such a law in Maryland is long overdue, Johnson wrote in his April decision.

Some attorneys, including Fernandez, called Johnson’s decision to hear the case in a trial court gutsy.

Maryland judges have previously ruled that creating dram shop laws should be the duty of the state legislation or appellate courts, not trial courts.

Hetherington reminded Johnson on Thursday that if the case goes to trial, the jury must be instructed to apply Maryland law as it stands.

Fernandez argued that Johnson’s April decision, which implied that the law should be changed, could be used to instruct the jury.

That decision has garnered nationwide attention attorneys from across the United States have been calling Johnson and Hetherington, the two said in court Thursday.

“I had no idea [the court’s decision] was to cause the firestorm that it has,” Johnson said Thursday.

He added that he did not mean to imply that he did not intend to rule the way he did.

The story so far

On Aug 21, 2008, staff at Dogfish Head Alehouse opened a second tab for Michael D. Eaton, 35, of Fairfax, Va.

They should have known better, Montgomery County Circuit Court Judge Eric M. Johnson wrote in April.

The restaurant served Eaton three more beers and another shot, after his first tab had included 14 drinks and two shots. Eaton then got in his Land Rover, drove south on Interstate 270, and was traveling between 88 and 98 mph when he crashed into the back of a Jeep Grand Cherokee, killing Jazimen Warr, 10, who was in the center back seat.

Eaton pleaded guilty in July to manslaughter with a vehicle and failure to remain at the scene of an accident where the defendant knew or should have known that death occurred.

He is serving eight years in jail after being sentenced to 10 years with two years suspended for manslaughter and 10 years with all years suspended for failing to remain at the scene.

Jazimen’s guardians, William and Angela Warr, sued Dogfish Head Alehouse in December for $3.25 million, attempting to hold the restaurant partly liable for all injuries in the crash.

Johnson is deciding whether to send the case to trial.

jbondeson@gazette.net