When I first start working as a personal injury lawyer, I didn’t grasp how most “dram shop” lawsuits worked in practice. Most everyone agrees that, if a bar keeps serving a customer alcohol until they’re intoxicated, and the customer gets in a car accident and injures someone, then that other person should be able to sue both the bar customer and the bar. But what about the drunk driver? Why would a jury believe that the bar, and not the drunk driver, is responsible?

I thought about the answer as I read three separate stories of unsympathetic plaintiffs who played a role in their own injures, two at Walter Olson’s Overlawyered and one at Daniel Cummins’ Tort Talk.

Olson links to two stories about lawsuits filed by drunk drivers, “Driver guilty of Christmas DUI manslaughter sues victim” and “South Carolina Woman Sues Bar For Paralyzing Car Accident.” In the first story:

Authorities said Belniak was driving between 75 and 85 mph when his pickup smashed into the back of McWilliams’ Chevrolet Tahoe. The SUV crumpled. Gerard Bassi died at the scene. Denise Bassi died in surgery that day. Linda McWilliams was taken off life support a week later.

Authorities said Belniak had alcohol, Xanax and evidence of cocaine in his system.

Belniak had a history of driving infractions. He’d faced DUI charges twice before. One of those times, in 2003, New Port Richey police searching his Ford Mustang found a gallon of the intoxicant GHB, commonly known as the “date rape” drug. Belniak served 17 months in prison after pleading no contest to trafficking the drug.

In 1994, Belniak hit and killed a pedestrian on U.S. 19 near Fivay Road. The woman later died. Belniak was not charged.

The accident happened in 2007, and the drunk driver, Belniak, has since plead guilty to DUI manslaughter and has been sued by the decedents’ estates. The reason it’s back in the news is because Belniak has since filed a lawsuit against the estate of the deceased driver of the other car, alleging “McWilliams was in the left turn lane and ‘because of his sheer negligence’ McWilliams abruptly changed lanes, ‘making it impossible’ for Belniak to avoid the collision.” Notably, his lawyer “said she hopes her lawsuit will be joined with [the case filed against him by the estates], so a jury will hear both sides” at trial. We’ll come back to that.

In the second story,

A South Carolina woman is suing the bar that served her alcohol as a minor the night she had a car accident that left her paralyzed. …

Hess was 20 years old on Aug. 8, 2009 when she went to Jock’s Sports Grill in Beaumont, S.C. for a game of billiards, according to her lawsuit.

She alleged that she ordered an alcoholic drink at the bar and was served without being asked for her identification. The legal drinking age in South Carolina is 21.

Hess accused the bar of several forms of negligence, including failure to “request and examine proof of identification,” serving alcohol to minors, and “failing to ascertain whether Plaintiff was impaired by the consumption of alcoholic beverages at the time Plaintiff purchased the alcoholic beverage.”

At about 1:05 a.m., Hess left the bar driving her own car and had a serious accident.

Finally, Cummins describes a recent Pennsylvania Superior Court opinion in which the owner of a vehicle allows their intoxicated and unlicensed friend to drive their vehicle, and then rides along as passenger. An accident inevitably happens, and the owner of the car sues the driver and the bar or restaurant that served them.

I wrote about some of these issues before when discussing the New Jersey Supreme Court’s recent opinion allowing drunk drives to file their own dram shop claims, focusing then on how these claims by drunk drivers are in many instances useful for ensuring their victims get adequate compensation, by opening up new avenues of insurance coverage.

There’s also a more fundamental issue: few doubt a person is negligent if they consume “alcohol, Xanax and cocaine” before driving, if they’re underage then drive to a bar to drink with no way home but their own car, or if they lend their car to an unlicensed and intoxicated driver (or, as I also mentioned after the Ryan Dunn drunk driving accident, if they get in the car with an intoxicated driver).

But let’s assume, for the moment, that the allegations in each of the lawsuits mentioned above are true. Maybe the deceased driver really did abruptly change lanes. Maybe the bar really did serve a minor without checking identification, and continued serving her once she was already visibly intoxicated. Maybe the unlicensed and intoxicated driver, despite the inexplicable vote of confidence from her friend, was negligent. (I’m pretty sure the latter two are true.)

If so, then why should the intoxicated plaintiff — culpable as they might be — be denied their own claims and defenses arising from other party’s negligence?

Consider the first story, the Belniak / McWilliams lawsuit. Belniak has already plead guilty to DUI manslaughter, and so has already conclusively established all of the facts necessary for the decedents’ relatives to complete the tort of negligence. He and his insurer will pay. But should that make him 100% responsible for their damages, if in fact McWilliams, too, contributed to the accident? Why not make him 90% or 85% or whatever percentage the facts warrant?

What of the 20-year-old who went to a bar, got drunk, and then was paralyzed in an accident afterwards? She’s responsible for her own injuries — but so is the bar that illegally served her alcohol and illegally served her after she was visibly intoxicated. Should their insurance company get a free pass because the bar was partly, but not entirely, responsible for what happened?

What we’re really talking about here is whether a person’s own negligence should terminate any right they have to compensation (“contributory negligence”) or whether the responsibility should follow the parties’ respective fault (“comparative negligence”). Most states use comparative negligence, but insurance companies have put a lot of money into trying to make contributory negligence the law again. Truth is, in terms of sound and fair legal policy, all of these debates were largely settled more than a generation ago. As the California Supreme Court explained back in 1975,

It is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the “all-or-nothing” approach of the doctrine of contributory negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault. Against this have been raised several arguments in justification, but none have proved even remotely adequate to the task. The basic objection to the doctrine — grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability — remains irresistible to reason and all intelligent notions of fairness.

Indeed, as that Court continued in its opinion, and as I learned through enough time practicing law, juries typically have “fairness” in abundance, and have no trouble holding plaintiffs accountable for their own mistakes while also ensuring others at fault live up to their responsibilities. But with the aggressive efforts of the insurance-company-sponsored “tort reform” movement, however, “intelligent notions of fairness” have been lost, with all the emphasis placed on denying plaintiffs’ compensation whenever possible and making insurance companies as profitable as possible.