Montana Court Upholds Notice Rule in Lawsuits Against Bars

January 7, 2010

A sharply divided Montana Supreme Court has upheld a state law that requires someone planning to sue a bar over liability in a drunken driving crash to notify the bar within 180 days of the crash.

The Supreme Court issued the 4-3 ruling in a lawsuit filed by Cary and Terra Rohlfs over a June 2006 drunken driving crash that seriously injured Cary Rohlfs. The driver, Joseph Warren, had been drinking for much of the day at the Stumble Inn in Victor, Mont.

The Rohlfs sued the bar just over a year after the crash, alleging it was liable for continuing to serve alcohol to an obviously inebriated customer. A District Court dismissed the case because the bar did not receive proper notice.

The Rohlfs argued the 180-day limitation, enacted by the Legislature in 2003, was prohibited by special legislation that protected bar owners and added a burden to victims of drunken driving crashes.

The majority, in an opinion written by outgoing Justice John Warner, rejected those arguments, saying it was not up to the courts to second-guess the Legislature. Chief Justice Mike McGrath and Justice Jim Rice signed Warner’s opinion while Justice Brian Morris concurred, but said he would have considered an appeal on the constitutionality of the law as applied in this case.

The Rohlfs have 10 business days after the opinion was filed to petition the court to reconsider.

“Because this is so important to everybody in our state, we are considering our options on behalf of our clients,” David Paoli of Missoula, attorney for the Rohlfs, said.

Attorneys for the Stumble Inn declined comment.

Justices William Leaphart, Patricia Cotter and James Nelson dissented, noting the purpose of the 180-day notice was so bar owners who might not have known about a crash could gather and preserve evidence that could be more difficult to obtain later. The justices said providing notice would have been superfluous in this case because the crash happened just as Warren pulled out of the bar parking lot, and bar employees knew it occurred.

Cotter and Nelson agreed with the Rohlfs that the law requiring the 180-day notice is”special legislation” that places an extra burden on someone injured in a drunken driving crash.

Nelson’s 47-page dissent tracks more than 70 years of state alcohol laws, court rulings and legislation and says “the present policy of protecting purveyors of alcohol at the expense of the victims of drunk drivers can only be characterized as ‘Neanderthal.'”

“The supreme irony of the court’s decision is that as this opinion is being handed down, the Legislature, the attorney general, local law enforcement agencies and citizens across the state are demanding an end to Montana’s ‘culture’ and ‘deadly tradition’ of alcohol abuse and drunk driving,” Nelson wrote.

“Perhaps the lesson to be learned … is not that the tavern industry needs all the protections that the Legislature has lavished on it, but that alcohol purveyors need to shoulder their share of responsibility for the carnage on our highways,” Nelson wrote.

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