WEST DES MOINES, Iowa -- Officers Susan Farrell and Carlos Puente-Morales were transporting inmate Tosha Hyatt to Des Moines last March, when Benjamin Beary hit their vehicle head-on.
Now, the officers' families have filed wrongful death lawsuits against the West Des Moines bar that served Beary earlier that night, The Keg Stand.
Lawyers representing the officers are using a code in Iowa law called the Dramshop Act to try and hold The Keg Stand legally responsible.
“You have to prove the bar served an alcoholic beverage to a patron when they knew or should have known the patron was either intoxicated or would become intoxicated from the service of the drink,” said the Farrell family’s lawyer Tom Henderson.
Guy Cook, the lawyer representing The Keg Stand, says there's no way the bartenders would have known Beary was intoxicated, saying he has video evidence showing Beary was not acting drunk.
“The law requires proof of sale and service of alcohol to a visibly intoxicated person. The bottom line, merely because a driver in a crash might have alcohol in their system, even if in excess of the legal limit to drive, does not prove bartenders at The Keg Stand served Beary after he showed visible signs of intoxication to establish liability against the bar,” said Cook.
A trial lawyer independent from the case says proving the bartenders should have known Beary was intoxicated can be done in two ways: witness testimony, or working backwards from Beary's blood alcohol content, which was almost three times the legal limit.
“You look at four drinks to get to the legal limit, another hour each to maintain it, if you're there two to three hours, you're talking 12 to 14 drinks. And if they can show the decedent was served 12 to 14 drinks they can say all they want, 'oh I didn't know that person was under the influence of alcohol,' well you know what? You should have,” said Mark Pennington.
The Iowa Restaurant association feels that the Dramshop laws, which have been in place since the 30s, need to be updated.
“One of the problems with current dram laws is it doesn't take into account whether someone received alcohol, or purchased alcohol, or consumed alcohol other than at the restaurant or bar," said Restaurant Association President Jessica Dunker.
Cook, who has lectured on Dramshop laws, plans to use that in his defense, arguing that in the half hour between when Beary left and the time of the crash, he could have consumed alcohol that the bartenders wouldn't have known about.
Pennington believes that is not a legal defense.
“It only dissipates about a drink an hour. If they can place him in the bar drinking, I think there is trouble for that drinking establishment, they've got problems,” he said.
Lawyers representing the Beary family say they have issued a notice to The Keg Stand that they also intend to sue, but have not yet filed the lawsuit.