What to Do If You Were Injured by a Drunk Driver (Podcast)
In this podcast, Paul Kelley talks with John Maher about what to do if you are injured by a drunk driver. He explains your rights and when you should contact an attorney. Then, he talks about what type of compensation you may be entitled to.
John Maher: Hi, I’m John Maher. I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 30 years of collective experience in handling personal injury and wrongful death claims. Today we’re talking about what to do if you were injured by a drunk driver. Welcome, Paul.
Paul Kelley: Hey, John. How you doing today?
Legal Consequences of Driving Under the Influence
John: Good, thanks. Paul, what constitutes driving under the influence or DUI, and what are the legal consequences if you’re found guilty for that offense?
Paul: Sure. Most states have pretty tough DUI laws. There’s some differences from state to state. I’ll focus on Kentucky because that’s where I’m at today, but I think this is probably true for most places. You’ve probably heard the term .08 or .10. That’s blood alcohol level.
Under Kentucky, the presumptive intoxication level is .08. That means that if a blood draw or under a breathalyzer test, if someone, it registers .08 or above, they were presumptively intoxicated. There are ways to rebut that presumption. It’s very difficult to do, particularly if there is a wreck or some sort of injury that’s resulted from the incident giving rise to the DUI. But there are certainly situations where people can have those levels in their blood alcohol content and still not be intoxicated.
But quite frankly, when they register .08 or above, then the burden really shifts to them at that point to prove that they were not legally intoxicated at the time that they were pulled over or the time that there was a collision or something of that nature.
The legal consequences for those found guilty of DUI are significant. There’s usually a jail sentence that’s associated with that. Frequently, in a lot of states, including Kentucky, for a first offense, that’s typically probated, meaning people don’t actually serve that time, but they can if they have subsequent violations. There’s heavy fines associated with it. It can be hundreds of dollars if not in thousands of dollars for first offenses. There are license suspensions that are going to be appropriate and will be mandated. There are requirements that people undergo education for alcohol awareness to make sure that they understand what the repercussions are of driving while intoxicated. When people have subsequent DUIs, which unfortunately occurs, then there are stiffer penalties for a second, a third, and a fourth. Eventually, it will have your license taken away for a very long time and could result in significant prison time.
That’s assuming that no one’s injured in a DUI situation. If someone’s injured or someone’s killed, well then there’s a whole new level of problems that the drunk driver has. Frequently, they’re charged with manslaughter. Sometimes they’re charged with varying degrees of murder, aggravated assault; a wide range of offenses that will put them in jail for a significant period of time for causing injury to people. All of those cases are different depending on the facts of the case, and how much they drank, and the mechanism of how injuries occurred.
But the bottom line is I think we’ve been working very hard in this country through most of my life, to try to eliminate or reduce drunk driving incidents and accidents. The consequences are significant for those that violate those laws, and they’re very significant for people that cause injury or death as a result of a DUI collision.
Injuries Caused by Drunk Driving
John: Okay, and what are some of the different ways that somebody could be injured by a drunk driver?
Paul: Sure. Your standard situation would be the drunk driver that hits another car and injures the driver and the passenger of that car or truck or whatever. That’s probably one of the more common ways.
There’s also the passengers that are in the vehicle driven by the drunk driver. People should not get in vehicles that are being driven by someone who’s intoxicated, but unfortunately it happens and frequently they’re injured or killed as a result of the driver being intoxicated and being reckless and careless.
Then frequently pedestrians are hit. We see this all the time. It’s really tragic. You’ll have someone who’s broken down on the side of an interstate, not much room on the shoulder. Maybe they’re waiting for a tow truck, maybe the tow truck driver is hooking their car up, and somebody crashes into them and injures or kills them on the highway, and all they were doing was trying to get their car up and running again and get it out of the way.
Those are frequent ways. Of course, there are other ways that intoxicated people generally can harm people. There’s motorcycle wrecks, there’s recreational vehicle wrecks, again, causing injury to passengers, to other drivers, to pedestrians. The bottom line is, unfortunately, when drunk drivers are on the road, the law of averages says they will cause a catastrophic injury or death at some point, and we don’t know when it’ll happen and we’re all vulnerable when we’re out on the roads on any given day.
What to Do If You’re Injured by a Drunk Driver
John: Right. If somebody is injured by a drunk driver in one of those ways that you just mentioned, what are some of the first things that they should do?
Paul: Well, unfortunately, typically people are catastrophically injured. In the situation that I described where they’re hit by a car on the interstate while they’re waiting for their car to be hooked up to a tow truck, they’re going to receive significant medical care.
Under Kentucky Law, we have a bit of a time, we have a couple years to be able to pursue and investigate a claim. You obviously have a claim against the intoxicated driver. That’s easy. It’s one that, quite frankly, people would win almost a hundred percent of the time.
But at some point, we want to figure out where that person was drinking, how did they become intoxicated, because there’s always a possibility that there’s somebody else that can be held accountable for causing a DUI collision. Under Kentucky law, and almost all states have something similar, we have what are called dram shop laws.
A dram shop is basically a professional bar, restaurant, any public place that sells liquor, alcohol for money, and they all have responsibilities under the law to not over-serve people, to not serve visibly intoxicated people, obviously intoxicated people.
One of the first things that people should do once they hopefully begin their recovery from their injury or their families, when the families begin to recover from whatever occurred, is they need to consult with a lawyer. You’re not going to get any of the answers to those questions on your own. Occasionally, the drunk driver, if they survived the crash, occasionally they’ll tell the police, “Oh, I was drinking at this restaurant down the street.” Sometimes you get that kind of information and it can help kickstart, but frequently you don’t. It requires some investigation. I don’t think most people are equipped to be able to track that information down without the assistance of a lawyer.
You need to research folks, lawyers that do this kind of work, and hire one to conduct the investigation for you because there is a difference. Again, I’m going to focus on Kentucky because that’s where I’m at, but there is a difference in how long you have to investigate a claim against the drunk driver versus how long you have to investigate the claim against the dram shop. We have two years from the date of collision to investigate the claim for the drunk driver because that’s controlled by the Kentucky Motor Vehicle Reparations Act. We’ve carved out a special two-year statute of limitations for motor vehicle collisions, including a DUI.
But the claim against the dram shop, the bar, the restaurant, the place serving liquor, we still only have one year from the date of the collision, essentially, to pursue a claim, to file a lawsuit against that entity.Time goes by fast. If it takes you three months to hire a lawyer and you don’t know where the driver was drinking, well then that only gives about nine months to be able to figure it out. Obviously, if you wait longer, then it just shortens the period of time.
It’s critical to contact someone to represent your interest, who can start conducting the investigation. We’ll do a lot of things to try to figure that out. It very well may be, John, that they were drinking at home or drinking with a buddy-
John: Sure.
Paul: Or drinking somewhere that we just can’t hold anyone accountable other than the drunk driver. That certainly happens. But more… Well, I don’t want to put statistics on it, but frequently, people go to these bars, many are very responsible and follow the law and do what they’re supposed to do, but many, they just don’t care and they’ll just serve somebody as much alcohol as that person wants and will pay for. When that happens, then catastrophic things happen.
How Does a Personal Injury Lawyer Help?
John: Right. What are some of the ways that an experienced personal injury lawyer like yourself can help somebody who’s been injured by a drunk driver?
Paul: Absolutely. First, we’re certainly going to try to get as much information as we can from the driver. Typically, the driver will be represented by an attorney. Sometimes they’re not. But we want to see if the driver and the driver’s attorney will give us information as to where they had been drinking.
That’s one thing we do. We collect all of the police reports. If there happened to be an accident reconstruction, sometimes state police departments will do accident reconstructions on state highways. We want to collect all that information. We want to collect any investigations that are being conducted by the police because obviously a crime has been committed, they’re going to charge the drunk driver with a DUI and a whole litany of offenses for causing the collision.
We want to get all that information because a lot of what we need to figure out, such as where the person had been drinking and how much they drank, may have already been done by the police. But the police won’t just give that to anybody. It takes some time and some hoops to jump through in order to get that information. There’s information you can get through open records request. There’s information that’s protected from dissemination in the open records request.
Once we get some idea of where the person was drinking, then we start scouring around for video. Video is very important. I hate to tell everybody, but you’re videoed all the time, whether you know it or not. You’re videoed on the sidewalks, you’re videoed in establishments, you’re videoed on the highways. There are cameras everywhere. We try to identify where those cameras are, see if we can find any information at all concerning all of the parties that are at issue. We want to get information on our clients, see if we can kind of reconstruct where they had been and what they had done. We want to try to reconstruct what the defendant, the driver, has done.
We want to notify any possibly at-fault parties that we’re conducting an investigation. We send letters to them and say, “Don’t destroy anything. Don’t get rid of the videotape. Don’t get rid of credit card receipts. Don’t get rid of anything and everything that could be associated with that night.” If they do and we end up filing a lawsuit, that can have negative repercussions for them if there are things that would’ve helped us prove our case that they got rid of. It’s 50/50, Sometimes they do. They just take my letter, wad it up, throw it in the trash and say, “Come and get us.” Other times, yeah, they save the stuff and we get it. Sometimes it’s useful, sometimes it’s not. Sometimes it’s neutral. But those are important things to be able to do.
Then at some point, we want to interview witnesses, if there was more than one person who was involved in the collision, if we identify bartenders, waitstaff, employees of the establishment, and customers that were there. There’s a wide variety of weapons that we have at our disposal to be able to investigate and ultimately prove the case against the dram shop.
Why You Need Experienced Legal Representation
John: Right. All of these things that you just mentioned really sound like things that an experienced professional like yourself, a lawyer… you know what to do, you think of all of these things. These are not things that your average person would just be able to go and investigate themselves.
Paul: I couldn’t imagine any person that doesn’t do this for a living being able to get most of this information. Certainly, there are situations where maybe they’re connected to the defendant in some way, but once the defendant is represented by a lawyer, represented by usually insurance companies involved, you can’t talk to them. That’s completely off limits. You can only talk to them with the lawyer’s permission.
The last thing that anybody wants is to, A, try to investigate on their own and try to figure things out before going to talk to a lawyer. The next to last thing that you want to do is retain somebody that practices real estate law, or does contract work, or something else.
John: Right. Like, “My uncle’s a lawyer, he is going to represent me.” Yeah.
Paul: That’s right. We all have our specialties or things that we have unique experience with. There’s a lot of people that certainly do what I do, and there’s a lot of people that don’t. But you don’t want someone having to research, well, what should I be doing in this situation when that case comes in?
Because nine months or six months or even a year, it just blows by so fast. I live in a world of deadlines and I get to the end of every day and I leave my head scratching, what happened to today? How is it 5:00, 6:00? Here we are, it’s almost the end of April. How are we done with a third of the year already? Time goes by fast. Every day that you don’t have someone working for you is every day that you are not going to be able to be successful.
Just remember that the drunk driver usually has insurance. The insurance company knows about it immediately, so they’re conducting their investigation. They have a multi-day, if not multi-week jump on you. If there was a dram shop, a liquor establishment that was at issue or responsible for causing or contributing to the intoxication, they’re probably going to know about it before the plaintiff will, before the injured party’s lawyer will. Everybody’s getting a big drop on you.
It’s tough because if you’ve broken your arm and leg and five ribs and have a bad injury, hiring a lawyer is probably not at the very top of the list. But it certainly has to be toward the top and you can’t waste a lot of time. I can do a lot of work while you’re recovering. I can get a lot accomplished while you’re recovering. You worry about you. You worry about getting healthy, physical therapy, just the recovery process. You let us worry about collecting the evidence necessary to determine whether you’ve got a case against somebody other than the drunk driver themselves.
Types of Damages in DUI Injury Cases
John: What types of damages can be recovered in a personal injury lawsuit against a drunk driver or a dram shop, and how are these damages calculated?
Liquidated Damages
Paul: Sure. There’s what we call the hard damages or the liquidated damages. You’ve got medical expenses, both past and future. You’ve got any lost income suffered by the injured party. Those are easily calculated. God forbid if there’s a death, you can get funeral expenses. Those are easily calculated. The expenses are what they are.
Obviously, with respect to lost income, that can be a little tricky depending on what the injury is. There are some people that are going to get to go back to work six months later and they’re only going to lose six months. When they go back to their job, it’s business as usual.
There are some people that may never get to go back to the job they had before and have to go back to something that they were earning far less. Some people are completely disabled and can never work again. They’re some people that have died.
John: It must be hard to know where somebody’s going to be in, say, five years from now, whether they’ll be able to work or not.
Paul: That’s true. We certainly can get some insight into that based upon the nature of the injury, and doctors can give information, and there are experts that can give information and advice. But yeah, we have no idea. Somebody may break their leg in three or four places and their job is to work on the railroad, a very physically demanding job.
Everybody has different thresholds. Everybody has different desires as to what they want to do. Some people throw their hands up in the air and say, “I just can’t do that anymore. I’m not even going to try.” Some people are stubborn and like, “I’ve worked my entire life, and darn it, I’m not going to stop now.” The beauty-
John: People recover in different ways, too. Somebody might work really hard and get fully back to health. Then another person might struggle with that and it could be years before they even get 80% back or something.
Lost Earning Potential
Paul: Absolutely. One of, I think, the best part of Kentucky law and a lot of state law is we’re not really doing a future prediction of what that person is going to lose. What we’re doing is, looking at the impact on their ability to power and labor to earn money. We’re not saying, “Oh, well, Mr. X made $50,000 a year and he would get a 5% increase for the next 20 years, and this is what he would get.” We look at Mr. X’s total package; education level, work history level, any certificates they have, their whole body of work and their life.
What the economists do or what they can do is say, “This person has this kind of earning capacity based upon education, training, and experience,” and put a number on that. The jury’s job is not to just accept that carte blanche and say, “Okay, well, the economist says two and a half million dollars.” The jury can say, “We think that based on what we’re hearing, that more than likely this person will be able to get back and do something in a year or so, so we’re going to award $500,000 for future impairment, the power and labor to earn money.”
If you’ve got a death, well then that’s a different situation. If you’ve got somebody that’s 40 years old and they pass away with a 25, 28, 30-year work-life expectancy, people are going to understand that and calculate damages accordingly.
We can’t go into the Kentucky statutes and have some sort of formula that says, “This is what you do.” It’s all unique based upon the particular victim’s situation and there are experts and economists that can assist us in doing that.
Pain and Suffering
Those are what we call the liquidated damages. Beyond that, you have other types of damages. I’m sure everybody’s heard of pain and suffering. Pain and suffering is not a liquidated damage. It is subjective in a lot of respects. We will go to juries and ask juries to make its determination based upon the person’s injuries as to what their pain and suffering could be. Again, there’s no guide that we can go to that says, “Soft tissue back injury, this is what you get. Broken leg, this is what you get.” It’s all going to be based upon the unique circumstances of that individual, and then certainly what the jury ultimately thinks that this person has suffered.
Obviously, John, if somebody becomes a paraplegic, juries are probably going to award significant amounts of money in that situation. Of course, nobody wants to be a paraplegic. Nobody wants to not be able to walk again, to be wheelchair-bound, and have those kinds of injuries. But certainly, the more severe the injury, the more significant that a jury’s going to put on pain and suffering.
You probably hear soft tissue injuries all the time. People have a back strain, a muscle pull, just some bruising that occurs, things that typically resolve. Lots of times, juries are certainly not going to award a lot of money for pain and suffering in those situations. But it’s all available and it’s all largely based upon, A) obviously what the jury thinks about your evidence, but certainly the way it impacts the victim’s life. Everything impacts people differently. Professionals that maybe don’t use their body for their job, white collar workers, they might be able to handle injuries differently than somebody that has to go work a brutally physical job every day.
Pain and suffering I think has an impact on that. I can sit at my desk for hours upon hours and my back is probably in better shape sitting than standing all day. But some people, they don’t have that luxury. Every-
John: Yeah. For some people, it might be hurting them every time they move and they’re moving constantly all day long.
Paul: Absolutely.
John: Right.
Loss of Consortium
Paul: Absolutely. There’s pain and suffering. You can also get, if someone is married, there’s something called loss of consortium. Loss of consortium is kind of a nebulous term. It refers to the loss of companionship or the impact on companionship services of the victim spouse.
Again, there’s no formula for that. Frequently, we see situations where people have died in a catastrophic collision or some event like that. That’s the ultimate loss of consortium. The living spouse literally lost the person that they were planning on spending their entire life with. Now at age 40, they’ve lost that person. Juries can award money for damages as a result of that loss. That’s unique just to the spouse, not to the victim themselves.
Punitive Damages
In some situations, juries can award punitive damages. Punitive damages or punishment damages, they are meant to punish and deter. We see situations in these cases all the time where you’ve got a bar or some sort of restaurant that has policies in place, and the policies say that you shouldn’t serve somebody more than so many drinks in an hour.
You should require people to eat along with their alcohol consumption at some point to prevent them from becoming more intoxicated. If somebody’s visibly intoxicated, you should not give them more alcohol. You should make arrangements or try to make arrangements to prevent that person from getting into a vehicle and driving.
Lots of times, places will have those policies, but the problem is they don’t follow them. It’s just written words in a book and they don’t follow them. They don’t offer customers food. They don’t try to restrict the drinking. There are some places that unfortunately give away alcohol, which in a lot of respects, there are a lot of places it’s not really legal, but there are ways that they can get around it, and they do it. There are some places that promote intoxication.
In those situations, if you can prove that, you can get punitive damages. You can get a jury to say, “Mr. Bar, you should not have served this much alcohol to this person. You should not have done what you did, and you knew better than that. You know that if somebody’s sitting at a bar and you serve them 10 beers and five straight bourbons, they’re probably going to be beyond intoxicated, and we can hold you not only responsible for causing the injuries, but we can punish and hopefully try to deter you from doing it the next time.”
Again, there’s no formula or calculation that can be performed for punitive damages. Our Supreme Court has given some guidance. They don’t really like to see awards more than three or four times the compensatory damages. All those other things, the medical expenses, lost wages, pain and suffering. But that having been said, every situation’s unique and sometimes they’ll uphold punitive damages awards for bigger than that.
But those are the damages that are available. Our experience is that lots of times if someone was drinking at a bar and became intoxicated and got into a collision, typically there were lots and lots of violations of both policy or industry norms. Some places don’t have those policies. Well, just because you don’t have the policy doesn’t mean you can just do whatever you want. Then we look at the industry norms. What’s the standard of care? You probably hear about standard of care for doctors or lawyers. Well, there’s a standard of care for bars. If you choose not to adopt your own policies and follow those policies, well that’s bad too. That just means that you just wanted to serve as much alcohol to people and get as much money as you could from that person. What they did when they walked out your door is somebody else’s problem. Kentucky law, and a lot of states, not every state, but a lot of states allow juries to punish them for that kind of conduct.
Contact Us If You’ve Been Injured by a Drunk Driver
John: All right. Well, that’s all really great information, Paul. Thanks again for speaking with me today.
Paul: Thanks, John.
John: For more information about personal injury and wrongful death claims, visit the law firm of Satterley & Kelley at SatterleyLaw.com or call 855-385-9532.