Eight-year-old Abdallah Khader of Arlington, Texas, died last Sunday morning. Abdallah had been in a near vegetative state for nearly six years since being brain damaged in a 2009 crash with a drunk driver, nearly brain-dead, strapped to a chair, and frequently suffering from pneumonia which necessitated the use of oxygen. The immediate cause of death has not been published, but it had been expected for some time that the child would ultimately die of lung failure.
Abdallah was two years old in 2009 when his family’s 2003 Honda Accord, which was stopped at a red light, was rear-ended at high speed by a Ford F-250 pickup truck driven by Stewart Richardson, then 44. Though he was properly restrained in a car seat, Abdallah suffered skull fractures when the back seat was “obliterated” by the impact, according to Arlington police. As a result, 80 percent of Abdallah’s brain was destroyed by contusions and strokes.
Richardson’s blood alcohol content was about three times the legal limit at the time of the crash, and he was charged with intoxication assault. This was far from Richardson’s first experience driving while intoxicated-he had seven prior DWI convictions in four different states.
Richardson was charged with intoxication assault and other offenses, but remains in a Tarrant County jail awaiting trial. The criminal case was the subject of a long legal battle over whether prosecutors could use Richardson’s out-of-state convictions to seek enhancement of Richardson’s sentence to possible life in prison. The trial court sparked outrage in granting Richardson’s motion to quash the sentence enhancement paragraphs in the indictment, but that decision was reversed by the Second Court of Appeals last year.
It was discovered that Richardson was drinking at two Mansfield bars that night-Mr. B’s Sports Grill and Applebee’s. A receipt showed that Mansfield had purchased 23 drinks at Applebee’s in two hours, and was found by TABC to have had three 24-ounce beers and three shots in an hour at Mr. B’s. Mr. B’s alcohol permit was cancelled by TABC (though new ownership has since obtained a new permit) for illegal sale of alcohol to an intoxicated person.
The Khader family sued Mr. B’s and Applebee’s under the Texas Dram Shop Act, a statute under which bars, restaurants, and other sellers of alcohol-as well as their employees-may be held liable for damages if it serves an obviously intoxicated person and that person later hurts or kills another, such as in a drunk driving collision. This law imposes a high standard for plaintiffs to meet, requiring them to prove that it was apparent to the bar’s employees that, when he was served, the intoxicated person was so obviously intoxicated that he presented a clear danger to himself or others. Also, there is a “safe harbor” defense that allows the bar (but not the employees themselves) to escape liability if the bar requires all of its employees to take the TABC Seller Training course and if the server was actually TABC certified. The bar may lose this protection, however, if it is found to have directly or indirectly encouraged its employees to violate the law. Despite the difficulty of prevailing in such a suit, Applebee’s settled with the Khaders before trial for an undisclosed amount.
Anyone who operates a business that sells alcohol owes the public a duty to serve responsibly. The Khader case was an instance where at least two bars plainly failed in that duty, with tragic results. In the end, at least one of the bars had to bear some financial responsibility for the damage it caused, though it undoubtedly required months, if not years, of perseverance for Khader’s family and their attorneys.
If you or someone you know has been harmed by a drunk driver, contact an attorney at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner by calling (713) 222-7211 or toll free at 713-222-7211.