JACKSON V. TULLAR
DAMAGES:  Dram Shop and Punitives
TORTS:  DRAM SHOP; APPORTIONMENT OF FAULT; PUNITIVE DAMAGES
2005-CA-001006
PUBLISHED; AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN PART
JUDGES: DIXON PRESIDING W/ABRAMSON AND HENRY CONCURRING
PRIOR OPINION DATED 3/2/07 WITHDRAWN
LOWER COURT: McCRACKEN CIR. CT.
DATE RENDERED: 6/1/2007

The CA affirms as to the amount of compensatory damages and reverses as to the punitive damage award. The case is remanded for a new trial on the issue of apportionment of liability between the parties.

Jackson was an injured passenger in an alcohol-related single vehicle MVA where Duncan was the driver. The parties went to several bars that night; their last party stop was the Ginger & Pickles nightclub where they were served a “pickle bowl,” a concoction of pure grain alcohol and Kool-Aid. Jackson ultimately sued bar owners, shareholders, and her carrier. The case went to trial against the driver, the last bar to serve him, and the bar’s owner. The jury was instruction on a 4-way apportionment of fault between the plaintiff, the driver, the second-to-the-last bar to serve them and the last bar to serve them. The jury assessed fault as follows: 10% to plaintiff; 20 % to driver; and 35% to bar. The jury awarded compensatory damages of $1,600,000. The jury then found the driver, the last bar and the last bar’s owner to be grossly negligent, but only assessed punitives against the last bar ($350,000) and its owner ($150,000). On appeal, all parties challenge the apportionment of fault.

In DeStock #14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999), the Kentucky Supreme Court examined the language of KRS 413.241, commonly referred to as the Dram Shop Act, and concluded that liability may be imposed upon a dram shop despite the statute’s express declaration that a dram shop’s actions cannot, as a matter of law, be considered the proximate cause of any injury inflicted by an intoxicated person. This means the tortfeasor remains primarily liable while the dram shop is secondarily liable. Also, the dram shop and the tortfeasor are not concurrently negligent, but instead have committed two separate and independently tortuous acts. Because of these distinctions, the apportionment is improper. The instruction should have required the jury to apportion fault between just the driver and the passenger. Then, only after the jury found the driver to have some percentage of fault, should the jury have determined whether the elements of the Dram Shop Act were satisfied such that either or both dram shops could be held secondarily liable. Because it is now impossible to know how the jury might have apportioned under this instruction, the case must be reversed and remanded for a new trial.

Both parties also appeal the award of punitive damages. CA concludes that punitives cannot be recovered in a dram shop action.

Digested by John Hamlet