Montgomery County Circuit Court Judge Eric M. Johnson will decide for the second time whether to send a case to trial that could hold a Gaithersburg restaurant partly liable for a patron’s deadly crash.

After hearing a request on Friday from JMGM Group LLC, which operates Dogfish Head Alehouse, to rule on the case before it goes to trial early next year, Johnson said he will soon write a formal decision. His previous decision on the case came nearly two months after the court hearing.

Johnson had ruled in late April to send the case to trial. But Robert Hetherington, who is representing JMGM Group LLC, told Johnson again Friday that the case should not go to trial. Under Maryland law, Dogfish Head Alehouse, or any restaurant that has served alcohol to drivers who are involved in fatal crashes, cannot be held liable, Hetherington said.

William and Angela Warr, the guardians of Jazimen Warr, 10, sued the restaurant and bar in December for $3.25 million, stating the restaurant was partly liable for Jazimen’s death. Jazimen was killed in an August 2008 crash involving a man who had been served drinks at Dogfish Head.

Workers at the restaurant served Michael D. Eaton, 35, of Fairfax, Va., 17 beers and saw him drink one shot of an alcoholic beverage before he got into his Land Rover, drove onto Interstate 270 and crashed into a vehicle where Jazimen sat in the back seat, said Jason Fernandez of Silver Spring-based Greenberg & Bederman LLP, who is representing the Warrs.

The driver 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, according to Montgomery County court records.

Dogfish Head Alehouse was a "link in the chain of causation," Johnson wrote in the April decision, and should be held partly responsible for the consequences that came from the driver’s recklessness.

A trial date is set for March 12.

Hetherington said that no matter how egregious and true the facts of the case are, Johnson cannot make law; only state legislators can.

They passed up the chance when considering a bill in this year’s session, Hetherington said.

The bill was introduced by Del. Kathleen Dumais (D-Dist. 15) of Rockville.

“Unless I slept through constitutional law class, the legislative branch makes the law, the executive branch enforces the law and the judicial branch interprets the law,” he said.

Johnson recognized in April that his decision went against 60 years of precedent — specifically three cases in 1951, 1981 and 2000 — but he said circumstances have changed since those cases.

Johnson said Friday that previous courts have hinted that if the facts line up in a future case, and if circumstances have changed, the court could revisit the decision.

Recent data show that because there is no regulation to hold restaurants liable, they will continue to sell to any adult customer to increase profits, Johnson wrote in April.

Johnson also noted in that decision that statistical data since 2000 attributing fatal accidents to drunken driving is staggering.

Fernandez wants the case to be heard in a trial, he said after the hearing Friday.

“It is the only way for the court to see that the residents of Maryland want there to be civil liability for bars,” he said. “It is the only way to let the people decide.”

The Warrs said after the hearing that they would not give up, and are fighting so that law can be in place for future victims of crashes.

The family is reminded of the importance of what they are doing when they see crashes on TV and talk to others, William Warr said.

“The determination and tenacity stays there,” he said. “This will not go away.”

jbondeson@gazette.net