To defeat the greatest golfer of his time in a court battle, the plaintiffs suing Tiger Woods will have to prove their son was a “habitual drunkard.”
That inelegant term is repeatedly used in the wrongful death lawsuit filed Monday by the parents of Nicholas Immesberger, a bartender at The Woods in Jupiter, Florida, who was killed in a one-car crash in December after leaving the sports bar owned by Woods.
Immesberger’s blood-alcohol level of .256 was more than three times above the legal limit for driving.
The lawsuit, which also names Erica Herman – Woods’ girlfriend and the restaurant’s general manager – as a defendant, alleges Immesberger drank for about three hours at The Woods after his shift was over, getting served despite a known history of alcoholism.
Filed days before Woods began play at the PGA Championship on the heels of his stirring April victory at the Masters, the lawsuit has generated considerable publicity. Whether it has a realistic chance to succeed, particularly in the allegations against him, may be a different story.
Horace Moody, a former chief of law enforcement for Florida’s Division of Alcoholic Beverages and Tobacco who went on to found a training and consulting organization called the Beverage Law Institute, said the plaintiffs face a stiff legal challenge.
The Sunshine State’s courts have defined a “habitual drunkard’’ as “someone whose habit of indulgence in strong drink is so fixed that he cannot resist getting drunk anytime the temptation is offered, with the inebriety frequent, excessive, and the dominant passion.’’
“It’s a very high bar,’’ Moody said. “The words that go along with it are ‘addiction to alcohol.’ A lot of people get it confused, saying, ‘Well, if you go to Alcoholics Anonymous meetings then you’re a habitual drunkard.’ No, not necessarily. The thing about a person addicted to alcohol is they have no self-control, and that’s a big distinction.’’
Florida is one of 42 states with some form of dram shop laws, which allow aggrieved parties to hold alcohol providers responsible for damages caused by patrons who were served negligently, typically when they were visibly intoxicated.
In one well-known case, a jury in 2005 awarded $135 million to the family of a girl who was left paralyzed in a car crash caused by a drunken football fan after a New York Giants game. The stadium’s beer vendor was initially deemed liable for $105 million, though the parties later settled for $25 million.
In this instance, Immesberger’s parents are claiming the loss of his “companionship and affection and protection’’ as well as economic support. He was 24.
However, Florida’s is not a traditional dram shop statute in that it holds establishments that sell alcohol potentially liable only if they willfully serve underage persons (younger than 21) or knowingly furnish alcohol to a “habitual drunkard.’’ The law also uses the term “habitually addicted.’’
As opposed to most other states, there is no penalty for providing alcohol to someone who’s clearly inebriated.
“In spring break, people come down and they get trashed, and it’s perfectly legal to serve them,’’ said Liz Trendowski, a dram shop expert with 25 years in the liquor and hospitality industry.
Trendowski has served as an expert witness in hundreds of cases all over the country, for both plaintiffs and defendants. But she’s reluctant to take cases in her adoptive state of Florida, partly because the standard for the plaintiffs is so hard to meet.
That doesn’t mean Immesberger’s parents don’t have a dram shop case against the restaurant, though it would be harder to make it against Woods and Herman individually.
Based on her experience and the news accounts she has read, Trendowski believes the high blood-alcohol content and the knowledge that Immesberger had a drinking problem – if that can be established – could help sway a properly educated jury, or provide impetus for a settlement.
“A lot of people think, ‘If you didn’t want to be so drunk, you didn’t need to have that drink,’’’ she said. “And that’s where the education comes in with expert reports, with toxicology and with explaining to the jury that there’s a reason alcohol is a regulated product. It’s a central nervous system depressant.’’
Like Trendowski, longtime liquor-liability expert Louis J. Terminello believes the case will be settled, with the insurance carrier for the restaurant providing compensation and Woods and Herman avoiding personal liability.
“The cause of action against Tiger and the bar manager is a little bit strained, especially under Florida law,’’ said Terminello, who chairs the Hospitality, Alcohol and Leisure Industry group for the law firm of GreenspoonMarder and also teaches a class on alcoholic beverage law at the University of Miami School of Law.
“It is not easy to pierce the corporate veil here in Florida, and as a general rule there’s no personal liability in tort on anyone’s part just because you’re an officer, a shareholder, an employee, etc., unless that person actually commits the act or participates in that particular tort.’’
It might be even tougher to prove liability without surveillance video showing Immesberger drinking at The Woods bar, which plaintiffs attorney Spencer Kuvin said at a Tuesday news conference has been intentionally destroyed.
The complaint states that Immesberger consumed alcoholic drinks with Woods and Herman “a few days prior’’ to the fatal accident, but does not put them at the restaurant, let alone serving him liquor, on the day he died.
“The whole lawsuit is replete with, ‘Tiger knew, everybody knew, blah, blah, blah,’ Terminello said, “but that’s not going to be enough under Florida law to bring him in individually.’’
Aaron Larson, a Michigan-based lawyer who has written about alcohol liability, says the laws are different in every state and Florida’s might be unique.
Even elsewhere, he said, the cases against bars and restaurants can prove challenging because of the difficulty of proving a customer was served while visibly inebriated and didn’t also drink after leaving that tavern.
“Even if they knew he was frequently intoxicated,’’ Larson said of Immesberger and The Woods staff, “it could also be that they saw him work entire shifts while sober, creating an argument that, as he could prepare and serve drinks without consuming alcohol, he was able to resist the temptation even when opportunity was present.’’
That would likely fall short of the “habitual drunkard’’ standard.