"Harley's Case"

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HARLEY STURGIS,

Petitioner and Appellant,

v.

THE DEW DROP INN

and

MORAVIAN COUNTY SHERIFF'S DEPARTMENT,

Defendants and Respondents.

FACTUAL BACKGROUND:

Harley Sturgis is paraplegic who uses a wheelchair as a result of a tragic motorcycle accident. Although he cannot walk, he regained full use of his upper body after his accident, lives on his own, has a full time job, likes to lift weights and play wheelchair basketball. He also joined Alcoholics Anonymous, realizing that his drinking led to his accident, and attends regular meetings.

Harley drove a specially equipped van containing a wheelchair lift that allowed him to enter and exit the van without assistance, and hand controls which allowed him to drive by himself. He was very familiar with the operation of all its special features and joked that he could "drive it with my eyes shut." He used the van for about 5 years, and with proper maintenance, both the van and the wheelchair lift inside of it would probably be serviceable for at least another 10 years. The van is very expensive to replace, so Harley took very good care of it. It was his most precious possession.

On the night of July 10, 2000, during a week when the Heck's Angels Motorcycle Club came to the city of Brno, Montana for its national convention, Harley decided to visit a local bar, The Dew Drop Inn, and party with some old friends he hadn't seen in years. While at the bar, Harley "fell off the wagon" and started drinking again. The service was slow due to the large number of rowdy patrons, so at least four times he rolled up to the bar in to order drinks for himself and all his friends, each time loudly shouting comments like, "Get outta the way you [bleeping] bikers, I'm comin' through!" or "Lookit these wheels, I'm my own [bleeping] designated driver!" As his intoxication increased, he ran into several patrons on his drink runs, though fortunately his fellow bikers considered him something of a fallen hero, and took such bumps with remarkably good humor.

A bartender testified that he would take Harley's orders but got into an argument because Harley wanted to deliver the drinks to his friends himself in order to get them there faster. In spite of Harley's protests, the bartender said that he made the servers deliver the drinks because Harley was prone to popping wheelies and doing other wheelchair tricks as he traveled from the table to the bar. Once, he tipped over backwards, but was apparently unharmed. By his own admission and the testimony of the bartender, Harley consumed at least 6 beers and "chased" most of them with a shot of whisky before calling it a night and heading for home.

As he was driving home, Harley ran a red light and his van was hit on the side by a driver in a Hummer. Due to the angle of impact and the state of the art restraint system in the van, Harley was badly shaken, but apparently uninjured. However, the van, including the wheelchair lift, was totaled.

When the police arrived, they noticed Harley smelled strongly of an alcoholic beverage, and wanted him to take a breath test, but he cussed them out and refused. Based on the accident, his behavior and the odor, the police arrested him for Driving Under the Influence of Alcohol (DUI).

Because of the Heck's Angels Convention, the Brno Police were overwhelmed with arrests, and had enlisted the aid of the Moravian County Sheriff's Department. Because all police cars were needed for patrol and for arresting seriously violent people, the Sheriff's Department had borrowed a school bus to transport non-combative arrestees to the jail. Because Harley became less belligerent after his arrest, and in fact began to weep and "cry in his beer" about getting drunk and losing his van, he was classified as "cooperative" and the police called for the bus to pick him up for transport to the jail.

When the bus arrived, it was about half full of people, most of them sitting two to a seat, all with handcuffs holding their hands behind their backs. The Police and the Sheriff's Deputies on the scene lifted Harley into the bus and sat him in a seat by himself, then handcuffed his hands in front of his body. He asked that he be seatbelted due to his disability, but was informed that the bus had no seatbelts, and was told that he was handcuffed in front so he could hold on to the seat in front of him because they knew he couldn't use his legs to help stay in the seat. Nonetheless, when the bus drove around a sharp corner, Harley was unable to maintain his balance in the seat without use of his legs, and he was too drunk to keep a solid grip on the seat, so he fell very hard on the floor of the bus, sustaining a concussion, a dislocated shoulder, a broken collarbone, and a couple of cracked ribs along with other cuts and bruises.

At the hospital, a blood test taken over two hours after the accident showed that Harley had a blood alcohol concentration (BAC) of .157, over one and one-half times the so-called "legal limit." Once he sobered up, Harley was determined to stay sober, and after returning to his regular AA meeting, he decided to plead guilty to the DUI and accept the consequences.

However, the consequences were worse than he thought: his insurance wasn't good enough to fully cover his medical expenses, which included extensive physical therapy on his shoulder, and his doctor recommended additional surgery because it was injured so badly that he had trouble using his wheelchair, and he couldn't play wheelchair basketball or pump iron any more. One reason he had trouble getting money for his shoulder surgery was because his new injury did not interfere very much with his ability to use phones and computers to perform his job. On top of everything else, his vocational rehabitation counselor refused to help him get a new van due to his DUI. The counselor suggested he get a motorized wheelchair and take the bus.

Therefore, in an effort to cover his medical costs and to obtain the transportation he considered necessary for maintaining his active and independent lifestyle, Harley sued the Dew Drop Inn under Montana's Dram Shop Act for serving him alcohol when he was in a visibly intoxicated state, and also sued the Moravian County Sheriff's Department, alleging that their failure to provide transportation appropriate for his disability was illegal discrimination under the Montana Human Rights Act. He asked for compensatory damages, including, but not limited to, a finding of joint and several liablity by the Police Department and the Dew Drop Inn for all his medical and rehabilitation expenses, injunctive relief against the Police Department to make them purchase police vehicles that can safely transport wheelchair-bound arrestees, and requested that the Dew Drop Inn replace his (very expensive) specially-designed van.

Because of budget cuts, the administrative agencies in charge of investigating Harley's Montana Human Rights Act complaint could not hold an administrative hearing within their 12 month statutorily-mandated time limit and so, pursuant to MCA 49-2-509(3)(d), Harley asked the Judge to consolidate his discrimination charge against the Sheriff with his tort claim against the Dew Drop Inn and filed his entire case in District Court.

In the 37th Judicial District Court, a jury found for Harley on both issues, awarded sizeable monetary damages to cover his injuries and a new van, and ordered the County to purchase a transport vehicle capable of carrying wheelchair-bound arrestees. However, District Judge Carrie Nation reversed the jury verdict, in a rare but legal procedure called a judgment notwithstanding the verdict (or JNOV), holding that the jury did not properly apply the law to the facts, and delivered a long lecture from the bench about the need for people to take personal responsibility for their actions and not look for others to blame. The Judge then held that no reasonable jury could find the Dew Drop Inn liable for serving a "visibly intoxicated" patron if he was able to pop wheelies and operate a wheelchair lift, and that the Sheriff's Department reasonably accommodated Harley by handcuffing his hands in front of his body; that he was injured due to his own irresponsible intoxication.

Harley appeals the JNOV of the District Court Judge, arguing that the jury correctly applied the law to the facts.

Issue One: Under the dram shop act, MCA 27-1-710 and related law, is the Dew Drop Inn liable for their actions in serving alcohol to Harley?

Issue Two: Under the Montana Human Rights Act, MCA sections 49-2-308 and 49-3-205, did the Sheriff's Department discriminate against Harley by failing to reasonably accommodate Harley's disability when they transported him?

Editor's note: Moravian 37 is a variety of malt barley grown in Montana. Malt Barley is used in brewing beer. Moravia is now part of the Czech Republic, but was also the ancestral homeland of many Montanans. Brno was the capital of Moravia.

STATUTES AND CASE LAW:

Statutes:

MCA § 16-3-301

MCA § 16-6-304

MCA § 16-6-314

MCA § 27-1-710 (Dram Shop Act)

MCA § 49-3-101 (Montana Human Rights Act&endash;MHRN)

MCA § 49-2-308 (MHRN)

MCA § 49-3-205 (MHRN)

Case Law:

Cusenbary v. Mortenson, 1999 MT 221, 296 Mont. 25, 987 P.2d 351

Jevning v. Skyline Bar, 223 Mont 422, 726 P.2d 326 (1986)

Nerhing v. LaCounte, 219 Mont. 462, 712 P.2d 1329 (1986)

Gorman v. Easley, 257 F.3d 738 (8th Cir. 2001)

Barnes v. Gorman, 536 U.S. 181 (2002)

Hainze v. Richards, 207 F. 3d 795 (5th Cir. 2000)

NOTES ON AUTHORITIES:

On the Dram Shop liability issue, Jevning was one of the very first cases decided under the then-new Dram Shop Act and does a good job of explaining the law. Cusenbary is one of the most recent, and presents good arguments on both sides of the issue in the opinion and dissent. Nehring v. LaCounte was the underlying case which created Dram Shop liability in Montana and led to the enactment of MCA § 27-1-710. (Therefore, these laws are a good example of the interactions between the Judicial and Legislative branches of government).

On the disability issue. Gorman v. Easley is a leading federal case on accommodation of people with disabilities during arrests, using the Americans with Disabilities Act, which is used in interpret the Montana Human Rights Act (Title 49, MCA) when there is no case law in Montana on a particular issue. Gorman has been edited to exclude irrelevant side issues. Barnes v. Gorman is the US Supreme Court Case that followed, which left intact the holding of the lower court on the underlying disability issues, but reversed only on the punitive damage award. Barnes has a little bit of additional law to add, and has also been edited down for length, and Attorneys can ignore the parts that discuss punitive damages, as they are not at issue here. Hainze is another police-related disability case, and different from Gorman because in Hainze the court found no discrimination, thus giving attorneys on both sides some useful arguments.