By CHRIS REGAN

The recent decision in the case of William J. Warr, Jr., et al. v. JMGM Group, LLC, d/b/a Dogfish Head Alehouse illustrates how a fuzzy-headed strand of libertarianism is taking hold in our politics. The case concerned the death of a ten-year-old black child named Jazimen Warr. Jazimen was killed while doing nothing wrong because a bar decide to serve, then over-serve, then over-serve again, a habitual known drunkard named Michael Eaton.

The Maryland court's decision, purportedly rooted in a notion of "control," reflects a reflexive, doctrinaire libertarianism that represents poor law and poor policy for this country.

Originally, libertarianism was a concept devoted to emphasizing our freedoms, but for many, it has become a doctrine more akin to "libertinism" -- freedom from any moral restraint -- in the United States. These radical libertarians hold that we are not free until we are free to harm others, that we are not free until we are free to be reckless in the use of our freedoms, or, as in this case, not free until we are free to nullify the freedoms, even the very lives, of others. The William J. Warr, Jr., et al. v. JMGM Group, LLC, d/b/a Dogfish Head Alehouse decision shows this libertinism masquerading as libertarianism.

As carefully detailed by Samantha Winter in yesterday's blog entry on the case, there is no question that the Supreme Court of Appeals of Maryland had every legal tool it needed to impose liability on the bar which served over fifteen drinks to Michael Eaton before allowing him to leave the bar, return in a state of obvious intoxication and load up with several more drinks before driving away to end Jazimen Warr's life.

Yet the Court's narrow-minded focus on a doctrine of "control" led it to find that even though Michael Eaton was well past being a sensate human being, let alone a rational one capable of judiciously employing his freedoms, the law would consider only him to have been in "control" of his actions that night. The bar, also quite obviously in control of its actions and quite obviously in control of Eaton's liquor supply, had no responsibility whatsoever (in the eyes of the Court). Besides the fact that nearly every state has found a way to do what the Maryland court claimed it could not, three obvious problems with the Court's reasoning come to mind.

First of all, a critical purpose of the tort system and our courts of justice in general is to serve as a deterrent against reckless conduct. Civil liability is supposed to deter dangerous, wrongful and undesirable conduct. The problem with deterrents as applied to an individual such as Eaton -- 15 drinks in Eaton -- is that he was well past deterrents of any meaningful sort. The Court's decision treats Eaton as though he were rational, when in fact he was near-dead drunk, and focuses all of its deterrent power on someone who can't be deterred.

Essentially, the Supreme Court of Appeals of Maryland said that Eaton was free to do as he pleased, ordering more drinks despite obvious intoxication, and the bar was even more free to serve them up -- not only free to do it, but free of any consequences for doing it. The fact that serving alcohol to the visibly intoxicated is negligent, and that harm to innocent motorists is an entirely predictable consequence of doing so, is simply ignored by the Court's discussion of "control," which totally ignores the need to deter reckless tavern owners such as the "Dogfish Head Alehouse," who drastically over-serve their patrons in pursuit of profit.

Second, the Court's decision, and even the dissent to some extent, wholly fails to recognize the critical role that for-profit activity plays in a situation like the tragic death of Jazimen Warr. The habitual over-serving of drunks is big business. DUI statistics and the awful death toll that goes with them in Maryland are a grim testament to the willingness of sellers of alcohol to over-serve and then turn a blind eye when drunks are turned loose on the roads.

The profitable nature of this business for taverns, sporting events and other venues is undeniable. Particularly because alcoholic beverages are so heavily regulated, one can easily imagine the Supreme Court of Appeals of Maryland choosing a different path and imposing civil liability in order to protect the safety of the driving public. As the dissent powerfully explains, focus on the safety of the traveling public is sorely needed when it comes to drunk driving in Maryland.

The people of Maryland, people like Jazimen Warr, put their lives in the hands of elected officials and trust them to make the right decisions to protect public safety from those who abuse freedoms -- those like Eaton and Dogfish Head -- but in this case, the Court simply dropped those lives and more will be lost in the future as a result of this decision.

This brings us to a final point -- the Maryland court's needless batting of the ball back into the court of the legislature. Doubtless hoping to be lauded for the "judicial restraint" label so sought-after these days, the court made the opposite error -- failing to exercise the specific powers entrusted to it by the constitution and the people of Maryland. Cases like Warr v. Dogfish Head are exactly what courts are for.

The simple fact is that Dogfish Head is a part of the community in which it exists. It takes advantage of the local tax base, the roads, the people who live there, the police protection, the fire protection, the markets for goods and services that are provided by all of the other citizens. Since Maryland gives all this to Dogfish Head (and its corporate parents), it is not too much to ask in return that, just like everybody else, just like doctors, just like nursing homes, just like auto manufacturers and other corporations, that Dogfish Head should be required to act reasonably.

This ancient principle of the common law -- that we all have a duty to show reasonable care towards one another -- is what the Maryland court rejected in Warr v. Dogfish Head. The holding of the Maryland Court was that Dogfish Head will not be accountable for its actions, no matter how unreasonable or reckless it was to over-serve Eaton. Taverns and taverns alone are instead granted immunity based on the absurd notion that it was Eaton who was really in "control" of the situation after Dogfish Head served him 15 beers and 2 shots of hard alcohol and another mixed drink, and then served him 5 or 6 more after he returned to the bar, all while visibly intoxicated. It was the duty of the court to see the facts in front of it, and find that the tavern was negligent and its negligence contributed to Jazimen Warr's tragic death.

No one is more free in Maryland because of what its high court did with this case. I'd rather live in a country where Jazimen Warr is alive than one in which Dogfish Head is "free" to serve Michael Eaton his 19th, 20th and 21st beer of the night. Once Eaton went around the bend of total drunkenness, the people in "control" of the situation made choices -- the choice to repeatedly keep serving him -- and they should be held responsible for those choices to protect the freedom of everyone else to live in reasonable safety. For a court not to see that in this day and age exhibits a form of "judicial libertinism" -- taking a perverse pride in refusing to step up and protect the innocent from wrongdoers by enforcing justice -- again, the very thing that courts are for.

The Maryland court should have considered itself duty bound to make the right decision -- not to simply push that decision off on other branches of government. Negligence and proximate cause have been the wheelhouse of common law courts for hundreds of years -- this court didn't need permission to do the right thing, it needed willingness to do the right thing and for some reason, that willingness wasn't there. A chance to do justice was lost in this case and even worse, a message was sent -- "freedom," in Maryland, means the "freedom" to roll the dice with the lives of the innocent in pursuit of a few more dollars' profit.

Chris Regan is an attorney in the Wheeling office of Bordas & Bordas. This editorial appeared on the firm's blog.

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