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George Fusner
George Fusner
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I-40 McCrory Lane Death Due to DUI

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News Channel 2 and the Tennessean reported the death of a young woman on Interstate 40 at McCrory Lane early Wednesday Morning May 6, 2009. According to the reports a man from Centerville named Ian McClellan was driving the wrong way on the interstate and hit the car driven by Katie Kerr of White Bluff head on. She died at the scene.

Guess what? Alcohol was involved. The reports are that Mr. McClellan started drinking at 3PM on Tuesday in Spring Hill. What day was Tuesday? Cinco de Mayo day which literally means May 5. Any excuse for a drinking holiday.

Who is responsible for Katie’s death? First and foremost its Mr. McClellan. How much insurance does Mr. McClellan have to compensate Ms. Kerr"s heirs? I don’t know, but I doubt very much. Now the lawyer part.

Ms Kerr’s heirs are entitled to recover an array of damages for her death. If I am right and Mr. McClellan has little or no insurance were do they turn. First, to the parties that served or sold the alcohol. In Tennessee we have a Dram Shop Act. It is codified at Section 57-10-101 and 102. It says:

Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

Thus to have a recovery against a person over 21 you must prove that the alcohol was sold or served to an "obviously" intoxicated person. That may seem easy, but is not. First the investigation must start sooner rather than later before memories fail. Were was he drinking, who was there, what did the bartender see? Then the tough part, the heirs must prove their case "beyond a reasonable doubt." Wait thats a criminal standard for convicting someone of a crime. Yeap, but that is the standard in this civil matter. If it was a regular car wreck the Plaintiff has to prove its case by a "preponderance" of the evidence which means that the fact is probably true. That is a much lower burden that "beyond a reasonable doubt."

Who was the legislature protecting when they passed the law? NOT the ordinary people for sure.

What else can the family do? Investigate signage. The Channel 2 report mentions 3 other head on crashes for wrong way driving on the Interstates around Nashville in the recent months. Often the entrances are poorly marked. Look at the one at I-40 at 96 close to this tragedy? How about the ramps at Exit 172 in Dickson? The State may bear some responsibility as well.

The best advice is to hire an experienced attorney now.