Paralyzed Drunk Drive Can’t Sue Restaurant

5246784-2400x1600A 24-year-old drunken driver who was paralyzed below the neck when she crashed into another car as she drove the wrong way down Interstate 5 suffered another blow in court this week: The Oregon Court of Appeals ruled she can’t sue the Southwest Portland restaurant that served her drinks.

The ruling comes on top of another Court of Appeals decision that went against Ashley Schutz last fall.

The court found then that Schutz wasn’t entitled to worker’s compensation from SAIF, the state-chartered worker’s insurance company, because her catastrophic injuries didn’t arise out of her employment even though she claimed she became drunk during a work-related function.

In 2010, Schutz, now 28, filed an $18.7 million lawsuit against La Costita, claiming the Mexican restaurant on Southwest Barbur Boulevard served her so much alcohol that she lost her ability to make safe decisions. She also faulted the restaurant for failing to call her a cab.

Schutz’s suit claims that on Dec. 12, 2008, she felt pressured to accompany her boss and two other co-workers from O’Brien Constructors to the restaurant because she was worried about keeping her job as an office worker and didn’t want her boss to think she didn’t like him. After four hours of drinking, she drove off in her 2001 BMW about 9 p.m., according to her suit. At Southwest River Parkway and Harbor Drive, she entered an exit ramp to northbound I-5 and crashed into an Acura. Her blood-alcohol level was .24 percent — three times the legal limit for driving.

A passenger in the Acura suffered minor injuries, but Schutz broke more than a dozen bones. Among them were her C4 and C5 vertebrae, making her a quadriplegic. Schutz was convicted of drunken driving and fourth degree assault, and sentenced to two days in jail and one year of probation. Her medical bills and therapy at the time of the 2010 filing had reached about $900,000, with another $5 million in future care costs expected.

Even though the restaurant is now removed from her suit, Schutz is still seeking millions in Multnomah County Circuit Court from the remaining defendants: O’Brien Constructors and her former boss. She claims her boss bought her so much alcohol that she lost her ability to stop drinking. A trial date has not been set.

Schutz’s suit is extremely rare. Attorneys say it’s almost unheard of for drunken drivers to sue Oregon bars or restaurants for injuries they suffered. Although still rare, it’s more common for people to sue when they’re hit by a drunken driver.

Oregon lawmakers, however, were prepared for a case like Schutz’s. This week’s Court of Appeals opinion cites a law passed in 2001 in response to a man who sued a Coos Bay restaurant for selling him so many drinks that he passed out and tumbled down a staircase, badly injuring himself.

The law bans customers — who voluntarily drink — from collecting money from bars and restaurants when they hurt themselves as a result. In Schutz’s case, the Court of Appeals determined that that law applies because despite her claims that she didn’t voluntarily drink, she in fact did. Schutz’s attorney didn’t return a phone call seeking comment. Mark Scheer, the Portland attorney for the restaurant, praised the decision.

“The statute is very clear that if you drink and drive and have an accident because you drink and drive, you are not allowed to bring a lawsuit against the entity that served you alcohol,” Scheer said. In 2011, Multnomah County Circuit Judge David Rees, who originally dismissed La Costita as a defendant, awarded the restaurant nearly $6,000 for its costs — the bulk of it legal fees. Schutz hasn’t paid. And the restaurant hasn’t sought to collect that money.

“This is a very terrible and unfortunate accident,” Scheer said. “Our sympathy and condolences go out to Ms. Schutz.” After the crash, Schutz moved to California, where she is working on her recovery, according to news accounts. She can been seen in a 2011 photo, posted online by the Carlsbad, Calif.-based Project Walk, taking a step with the assistance of a walker. A 2012 YouTube video shows her using her arms to scoot along a bench and into a wheelchair.

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