Hill v. RT Corp. et. al., No. 85-2-13 Bncv (Wesley, J., Feb. 10, 2014).

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VERMONT SUPERIOR COURT

SUPERIOR COURT CIVIL DIVISION Bennington Unit Docket No. 85-2-13 Bncv

Joseph Hill,

Plaintiff.

v.

RT Corporation, JJ&J Inc., and Chase Eutzy,

Defendants.

Order Granting Plaintiff’s Motion to Amend Complain t

Plaintiff sues Defendants under Vermont’s Dram Sho p Act. Plaintiff seeks to amend his complaint to add an additional defendant, Doug’s on Main Street, and to request punitive damages against the RT Corporation. The RT Corporat ion opposes amending the complaint to claim punitive damages, arguing that the amendment is futile since Plaintiff cannot prove the RT Corporation acted with malice.

According to Plaintiff’s amended complaint, Plaint iff was a passenger in an automobile that crashed, causing her to suffer injuries. The R T Corporation operated a bar named Ryan’s. Before the crash, Ryan’s served alcohol to the driv er—Chase Eutzy. Ryan’s served Mr. Eutzy alcohol when he “was apparently under the influence of intoxicating beverages.” Ryan’s also had a history of serving patrons that were visibly into xicated. After leaving Ryan’s Mr. Eutzy went to Doug’s on Main Street and consumed more alcohol. Sh ortly after leaving Doug’s, Mr. Eutzy crashed his car and injured Plaintiff.

The issue in this motion is whether the Court shou ld allow Plaintiff to amend his complaint to seek punitive damages against the RT C orporation. Beyond twenty days after the date of service, “a party may amend the party's ple ading only by leave of court or by written consent of the adverse party; and leave shall be fr eely given when justice so requires.” V.R.C.P. 15(a). The trial court has discretion in allowing a mendment of a complaint. Shahi v. Madden

, 2008 VT 25, ¶ 6, 183 Vt. 320. Courts allow amendmen t where there is no prejudice and the

amendment is not frivolous. Id. ¶ 7. In considering the appropriateness of punitiv e damages, the Court evaluates “reprehensibility of the defendant' s conduct.” Id. ¶ 26 (internal quotations omitted). Courts look at malice, whether a plaintif f suffered a physical harm, whether the conduct posed a risk to the safety of others, and h ow many times the conduct occurred. Id. ¶ 26.

The Vermont Supreme Court has ruled that plaintiff s may seek punitive damages based on violations of the Dram Shop Act. See Clymer v. Webster , 156 Vt. 614, 631–32 (1991); see also 7 V.S.A. § 501 (Vermont’s Dram Shop Act). In Clymer , commercial vendors sold alcohol to

a driver who crashed his car and killed the deceden t. 156 Vt. at 617–18. Among other things, the estate sought punitive damages. Id. at 618. The defendants argued the Dram Shop Act co uld not2

give rise to punitive damages because it was a stri ct liability statute. Id. at 631. The Vermont Supreme Court disagreed and found a reckless violat ion of the Dram Shop Act could expose the defendants to punitive damages. See id. at 633.

In this case, the Court allows Plaintiff to amend his complaint to seek punitive damages because there is no prejudice to the RT Corporation and the amendment is not frivolous. See V.R.C.P. 15(a). According to the stipulated schedul ing order, the parties had until February 10, 2014 to seek to bring in third-parties. The parties also have until July 10, 2014 to finish discovery and until August 10, 2013 to file pre-tri al motions. The trial, and even the close of discovery, is months away. Moreover, Plaintiff seek s damages against the RT Corporation based on the same conduct pled in his original complaint. There is no prejudice to Defendant.

The amendment is not frivolous. Plaintiff claims Ry an’s served patrons that were visibly intoxicated and served Mr. Eutzy while he was appar ently intoxicated. Repeatedly serving alcohol to intoxicating patrons poses a risk to pub lic safety and allegedly injured Plaintiff. See

Shahi , 2008 VT 25, ¶ 26. Serving alcohol to an obviously intoxicated patron could be sufficient to show a reckless disregard for public safety. See Clymer , 156 Vt. at 631–33. Accordingly, the Court will allow Plaintiff to amend his complaint.

The RT Corporation’s arguments against amendment ar e more appropriate for a summary judgment motion or for consideration by the finder of fact. The RT Corporation maintains that there is no record of it repeatedly over serving pa trons. Further, Mr. Eutzy traveled to Doug’s and consumed additional alcohol before the crash, w hich would have increased his impairment. These arguments go to whether Plaintiff can support his claim for punitive damages, but not whether he can allege a valid claim. For the purpos es of pleading, the Court will allow Plaintiff to seek punitive damages.

Order

The Court GRANTS Plaintiff’s motion to amend his complaint..

Dated and signed electronically at Bennington, Verm ont on February 12, 2014.

John P. Wesley Superior Court Judge