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| All things take time |
By Elizabeth Kruska
This is an interesting case about when a very particular kind of plaintiff may file a very particular kind of lawsuit.
Basic facts: Leonard Audet was killed in a motor vehicle accident involving Paul Smith. Paul Smith also died in that accident. Before he drove, Paul had been drinking at a bar called Corner Pocket. Corner Pocket was owned by V-Twin, LLC. Scott Abbott was a member of V-Twin, LLC and owned and operated the Corner Pocket on the day of the crash. Leonard was in a relationship with Diana Boland, who was pregnant with their unborn daughter, Awen, at the time of the crash.
Diana became the administrator of Leonard’s estate. She also filed suit against the defendants under the Dram Shop Act and the Wrongful Death Act. She filed, in part, on behalf of Awen, who was around three years old at the time of filing. I’ll collectively call V-Twin, LLC and Mr. Abbott “The Bar” because this appeal only has to do with the dram shop case, and nothing to do with the wrongful death case.
The Bar filed a motion to dismiss the dram shop case, arguing that Awen had no standing. When her dad died she was not born yet – she wasn’t even a viable fetus yet. The trial court denied this motion, reasoning that suit was filed after Awen was born. At the time she was a living child, and had her dad lived, she would have had the benefit of his financial support because he would have had the legal duty to support her. The Bar appeals. SCOV affirms.
Here’s the deal. The Dram Shop Act is meant to be liberally construed, because it’s meant to put financial liability onto bar owners whose service leads to injury of others. If a bar overserves someone and as a result there’s injury or death to another person, that third person has the ability to sue and hold the bar responsible for their part in the incident. Other states have run into similar fact patterns, and have permitted subsequently born children to sue.
The question is one of when the injury accrues. The Bar tried to argue that the injury here accrued at the date of the car accident. Awen argues the injury to her couldn’t possibly accrue until she was born. Because she was born a living person, that’s the date her injury accrued.
SCOV takes a look at Vermont’s child support statutes. In terms of child support, there’s no obligation for a parent to support the unborn child prior to birth. However, once the child is born, that’s when the obligation to support begins. The same is true for Mr. Audet. Had he lived, he would have had to have started supporting Awen as soon as she was born.
Since we’re looking at the loss of financial support from a parent for a child, it makes sense that a child could be able to make this recovery as soon as the child accrues the injury. If the child was already born, the injury accrues immediately. If the child isn’t born yet, it accrues when the child is born. SCOV thinks it would have been a really unfair result if Mr. Audet had other children who were already born and could recover, but Awen couldn’t because of the order of her birth.
So, SCOV affirms the trial court and permits Awen’s Dram Shop Act case to go forward.
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