Fell Outside Restaurant After Being Overserved Alcohol...

by Kim

On January 5th myself and friend of mine went to a Pub and Eatery that we are both employed at. We ordered a round of beers and I faintly recall a shot of southern comfort. As the night progressed, our server and bartenders provided me with several 20 oz beers and an unknown amount of whiskey shots who were bought by several "regulars" that I know from my employment.

The night is not very clear to me, possibly due to the level of alcohol in my system. But I do know I was never refused alcohol service and I was on my way to my vehicle to drive myself home.

Leaving the pub, walking along the sidewalk in boots, jeans and a winter coat, I at some point fell dangerously hard to the ground and hit my head in the back near the occipital bone. At that point I was unconscious. I woke up briefly to my head in agony, reached back to touch my head and felt it was wet, I looked at my fingers and could see they were blood soaked.

A patron, not the bar, called for an ambulance. I woke up again briefly some time later and was incoherent, I did not know where I was. I do remember waking up in a small room and was told I was at the closest hospital and they were waiting for a trauma hospital with a neurosurgeon willing to take me.

I passed out again and did not wake up until the next day. I have no recollection of timelines as I was displaced, in excruciating pain, could not see (light sensitivity), could not understand simple statements (I was told this later on in the week the other hospital had to send its own ambulance to pick me up). I do recall a neurosurgeon introduce himself as a doctor and was told I was in the ICU trauma center at _______ Medical Center.

The doctor advised me that I was very lucky to be with them and the 6 hour window to have my stitches replaced was almost up, that he needed to re-suture my head and also add staples. I was praised that I withstood the amount of pain the process entailed. He also told me that CAT scans showed multiple blood clots and I was scheduled for my 3rd CT scan at 6 am. They later moved it up to 3:30am. They did not allow me any fluids or food because they stated there was a great possibility that I would need surgery to remove the blood clots to save my life.

I was in horrific pain. I was put on a regular timed morphine and was given Norco, an anti-seizure medicine, a stool softener, and an anti-anxiety medication (I suffer from Panic disorder and have been treated for many years). The doctor changed/added to my pain meds several times as the morphine was the only medication helping subdue my pain.

I was monitored every hour, and given additional morphine every other hour. As a result I was unable to sleep until after I was released on 1/09/2012. I could not be offered more than ice chips to eat until the second day due to the possibility of surgery. During my entire stay I had eaten one slice of dry wheat toast and a packet of crackers, although on stool softeners I was unable to pass a bowel movement until 01/14/2012 which resulted in incredible stomach pain from the time I was admitted until the 14th.

I was in complete shock. I was visited by the hospital's Pastor and given communion and blessed twice. I was seen by several doctors and had 5 to 6 CT scans in the hospital alone. I was discharged and had a doctor's appointment in the following week at the hospital. The medical staff there recommended me to a Ear, Nose and Throat specialist due to my hearing issues, sensitivities and jaw clenching as a result of this incident.

My first follow up with my neurosurgeon was on January 14th. I was given a CT scan and the doctor advised me that my clots need to be continually monitored every six weeks until they are dissipated. I have had a constant pain on my left neck line causing me to be unable to turn my head to the right, therefore he ordered an x-ray. I was issued 500mg of Naproxen for that injury, but was advised to take as little as possible to avoid blood thinning effects which would reverse the progress on my clots.

I asked the doctor to release me to work, but he said he did not think I should tend bar or do anything standing up at this point. I advised him if I did not I would lose my job and I could not afford that, and that I only worked part time. He agreed to part time but advised me to cease working at the first feeling of something being wrong. I advised him I work 2-3 ten hour shifts and he said he would not approve anything more than 5 hour shifts until our next appointment.

I went into the Pub to speak to my managers about my issue and 2 of them refused to speak to me. I called to speak to the GM the next day and he stated "maybe they did not recognize you (again I was with my co-worker friend)". I stated that was impossible because our bill was issued an "employee discount". I asked if I was fired and he said I would need to come in about availability.

I attempted a second time this past week to go in and speak with him, this time with 2 letters from my neurosurgeon and a copy of my upcoming appointments. I went to give them to the manager to pass on to the General Manager as he was "unavailable", and the woman manager acted as if she did not know me, and the other male manager looked away.

I explained to the female I had a letter for the GM and she asked what my name was. When given my name, she said "I have your last paycheck in the back, stay here". This morning I called to speak to the GM once again, and was told by the hostess at 10:44am that he was not there.

I feel as if I am only being let go because of the incident. I took a picture of the schedule the night of the 5th (I did not have a pen and paper) so I can prove I was scheduled to work that Sat, Sun and then on the 14th. To me it shows they would not have fired me other than for this issue, which I feel because of my looks now (bald spot on back of my head) along with the way they mishandled the incident on the night I suffered a life threatening injury, they are discriminating against me.

My husband who is the main financial provider in our family (which includes myself, him and our 3 minor children) has also lost wages for several days off he took at the time of my injury.

My injury is causing me different issues every day, memory loss is so significant I cannot have a proper conversation without losing my train of thought. I am in excruciating pain in both my head and neck. My hearing is damaged, although unknown to what level and for how long. I have an aching scar on my head that is visible through my hair. I am falling into a depression and I have panic attacks daily.

I am trying to live a normal life. Previous to my bar tending job I was in a career I loved and planned to go back to when my children were older. The career involves the safety of others and entails wearing an ear radio. If my hearing does not improve I will never again return to my trained and experienced field.

I have plenty of examples and documents showing how near to losing my life I was in this situation. I have not been able to work and my medical bills are piling up to more than I ever thought possible. I have not received all of them but my insurance company has already notified me of their intent to pursue a refund from the business.

Did the restaurant act inappropriately by over-serving me the night of my injuries and then not helping me? Is it legal for them to have fired me? Is there anything I can do to remedy this situation? Thank you for any information you can give.

Visitor Question:
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ANSWER for "Fell Outside Restaurant After Being Overserved Alcohol...":

Kim (Illinois):

Let's address your questions one at a time...

1. Did the restaurant act inappropriately by over-serving you on the night of your injuries?

The restaurant did not act inappropriately. You claim they over-served you. Of all people, you as a bartender should have been aware of the effects the continuing ingestion of alcohol has on a person. You certainly can't feign naivete.

Voluntary intoxication is not a defense to any criminal action. Although you were clearly not involved in any criminal activity, a similar standard applies in civil cases. You would be hard-pressed to convince a judge or jury it was the restaurant's fault, and not yours, for your becoming obviously extremely intoxicated.

From the evidence you present you were so intoxicated as to have registered well above the .08% statutory limit of intoxication in the State of Illinois.

2. Did the restaurant have a legal duty to help you?

The restaurant did not have a legal duty to help you. As far as they knew you walked out of the pub. While you were in the pub you didn't suffer any injuries. Your injuries occurred once you were off the pub's premises. The bartender probably knew you were intoxicated. But then again 90% of the people who stop for drinks in pubs are intoxicated by the second or third drink. A .08% alcohol level occurs almost universally when a person ingests more than 2 drinks within a given hour.

If the bartender had reason to believe you were going to drive your vehicle he should have protected the pub from civil liability by attempting to dissuade you from driving by calling a cab or otherwise talking you out of driving. There isn't any evidence you were going to drive.

3. Is it Legal for them (the restaurant) to have fired you?

Unless you were working under a Contract of Employment, the restaurant had an almost absolute right to fire you for just about any reason. Firing you though as a result of your race, gender, age or sexual preference might support a claim of discrimination.

4. Is there anything you can do about the "situation"?

Not really. You are an adult. On the night of January 5th, 2012 you failed to act like one. You can't blame other people because you decided to drink until you were almost in an alcoholic coma.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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