Date: 11-22-2013

Case Style: Sukhbinder Matharu v. Justin Taylor Hill

Case Number: CJ-2011-7446

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: E. Ed Bonzie

Defendant's Attorney: Brad Boberson and Erin J. Rooney for Justin Taylor Hill

Jeff R. Beeler and Gregory D. Winningham and Tayler J. Coble for Spam, Inc. d/b/a Cafe' Nova

Tim N. Cheek and D. Tiddles for Cyprus Amax Minerals Company

Sarah J. Timberlake for Sipango

Description: Sukhbinder Matharu sued Justin Taylor Hill, Cafe' Nova and Sipango on auto negligence (car wreck) theories claiming:

1. At all times material hereto, Plaintiff was a resident of Oklahoma City, Oklahoma County, Oklahoma.

2. At all times material hereto, Defendant Justin Taylor Hill, was a resident of Norman, Cleveland County, Oklahoma, and the operator of an automobile on April 17, 2010, which collided with Plaintiff’s vehicle at 1-35 near 1-235 and 1-40 in Oklahoma City, Oklahoma.

3. As a result, Plaintiff sustained severe injuries and incurred expenses and damages as follows:

a. Medical expenses incurred and expected to be incurred in the Iliture;

b. Mental and physical pain and suffering, past, and fUture;

c. Lost earnings and impairment of earning capacity;

d. other damages to be determined during discovery;

e. Property damage.

all of which are in excess of Ten Thousand Dollars ($75,000.00).

4. Defendant’s conduct was wanton, and reckless and constituted gross negligence and warrants an award for punitive and exemplary damages in excess of $75,000.00 against Defendant.

5. WHEREFORE premises considered Plaintiff demands damages in an amount in excess of $75,000.00, and punitive damages in excess of $75,000.00, plus attorney fees, costs, and interest and all other relief the Court deems equitable and proper.

Defendant Justin Taylor Hill appeared and answered as follows:

1. Defendant is without sufficient information to either admit or deny the allegations and statements contained within numerical paragraph 1 of Plaintiffs Petition.

2. Defendant denies the allegations and statements contained within numerical paragraph 2 of Plaintiff’s Petition.

3. Defendant denies the allegations and statements contained within numerical paragraph 3 of Plaintiff's Petition.

4. Defendant denies the allegations and statements contained within numerical paragraph 4 of Plaintiffs Petition.

5. Defendant denies the allegations and statements contained within numerical paragraph 5 of Plaintiffs Petition.

AFFIRMATIVE DEFENSES

1. The conditions and/or injuries of which Plaintiff complains constitute preexisting conditions and/or conditions sustained prior to the alleged incident, which were neither caused, nor aggravated by this Defendant, and for which this Defendant is not liable.

2. Plaintiff’s alleged injuries and damages were caused, in whole or in part, by the negligence of a third party or parties over whom this Defendant had no control, and for whose acts this Defendant is not responsible.

3. If it is shown that this Defendant, or any person acting on his behalf, was negligent, which negligence is specifically denied, the negligence of Plaintiff exceeded any such negligence on the part of this Defendant, thereby barring Plaintiff from recovery.

4. Plaintiff assumed the risk of any injury.

5. Plaintiff’s injuries or damages, if any, were the result of an unavoidable accident or sudden emergency.

6. Any damages which Plaintiff may have suffered were the result of superceding and/or intervening causes for which this Defendant cannot be held responsible.

7. Plaintiff has failed to mitigate his alleged damages.

8. Plaintiff’s medical treatment was unreasonable and unnecessary.

9. This Defendant reserves the right to list additional Affirmative Defenses or assert additional claims as discovery progresses, and as additional information becomes known and available.

WHEREFORE, the Defendant, Justin Taylor Hill, respectfiilly requests that judgment be entered in his favor, and that he be awarded all costs extended in the defense of this matter, and for such other and further relief as this court may deem just and proper.

Defendant Tennis 2000, Inc. d/b/a The Sipango Lounge appeared and answered as follows:

1. Paragraph 1 is admitted based on information and belief.

2. Paragraph 2 is admitted.

3. Paragraph 3 is admitted based on information belief.

4. Paragraph 4 is admitted.

5. Paragraph 5 is admitted.

6. Paragraph 6 is admitted based upon information and belief

7. Paragraph 7 is admitted based upon information and belief.

8. Paragraph S is admitted.

9. Paragraph 9 is denied.

10. Paragraph 10 is admitted.

11. Paragraph 11 is denied with respect to this Defendant.

12. Paragraph 10 is denied with respect to this Defendant.

13. With respect to 13, Defendant Sipango denies any injuries, expenses or damages were the direct result of its alleged actions. Defendant is without sufficient information at this time to admit or deny the nature and extent of Plaintiffs injury and therefore these allegations are denied.

14. Paragraph 14 is denied.

15. Defendant Sipango denies it was negligent in any manner and further denies it violated any relevant statutes. It further denies it served Defendant Justin Taylor Hill any alcoholic beverages on the April 16 or 17, 2010.

16. This accident was caused by the acts of third parties over whom this Defendant had no control and for whose actions this Defendant is not responsible.

17. Plaintiffs claims for punitive damages against this Defendant is not supported by facts or circumstances, is unconstitutional and violates the due process clause of the Oklahoma and United States Constitutions.

WHEREFORE, Defendant Sipango prays for judgment in its favor and for such other relief as the Court deems just and proper.


The Pre-Trial Order approved by the parties and the Court provided in part, as follows:

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2. General Statement of Facts:

a. What: Dram Shop case/automobile accident Wrongful death of Ashley Madison Personal injury to Sukhbinder Matharu

b. Where: Interstate 35, Oklahoma City, Oklahoma County, Oklahoma

c. When: April 17, 2010

d. Who: Plaintiffs, Sukhbinder Matharu and Lisa Madison, individually, and as personal representative of the Estate of Ashley Madison, deceased; and Defendants, Café Nova and Justin Hill.

e. Other:

3. Plaintiff’s Contentions:

Plaintiff Sukhbinder Matharu

Grounds for Recovery Applicable Statute, Orclinance, Common Law Rule

a. Negligence—Both Defendants - Common Law

b. Negligence-Dram Shop Liability — Café Nova - Common Law

c. Punitive Damages - 23 O.S. SEC. 91

d. Negligence per se - 37 0.S. sec. 241

e. Negligent Infliction of emotional distress - Common Law

f. Intentional Infliction of emotional distress - Common Law

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Spam, Inc. d/b/a Nova Cafe moved for summary judgment in its favor asserting:

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In the early morning hours of 04/1 7/10, Justin Hill mistakenly drove his motor vehicle in a northerly direction on southbound 1-235 striking a vehicle driven by Plaintiff Sukhbinder Matharu. Mr. Matharu was not seriously injured, but his passenger, Ashley Madison, was killed. Mr. Hill’s blood alcohol level was later determined to be 0.22 g/100 mL. Earlier that day after paying the last installment of his DUI fine, Mr. Hill smoked marijuana, before visiting a friend’s house and four taverns in two cities where it is estimated that he had at least five beers, one or two shots, and two mixed drinks.

Two of the taverns, The Sipango Lounge and Café Nova, have been sued by Plaintiffs for serving Justin Hill, allegedly while he was a visibly intoxicated patron of each establishment. Even so, not one witness has testified that Justin Hill was visibly intoxicated while at Café Nova. No evidence has been presented that Justin Hill was even served at Café Nova, although Justin Hill does claim to have been served there. Three witnesses, Adrian Stachmus, Suzanne Geist Busby, and Vanessa Garrison who were present with Justin Hill at Café Nova, deny that justin Hill was served at Café Nova and instead testified that he is mistaken as the shots and mixed drinks he attributed to Café Nova were actually purchased and consumed at VZD’s, a tavern not sued by Plaintiffs. In short, no evidence exists that Café Nova violated any duty to Plaintiffs. Consequently, Plaintiffs have failed to make a prima facie showing that Café Nova served Justin Hill, a visibly intoxicated patron. Under this circumstance, Café Nova cannot be held liable and summary judgment is appropriate.

UNDISPUTED MATERIAL FACTS

1. Justin Hill is six-foot-four-inches tall and weighed approximately 170 pounds on 04/1 6/10. See Exhibit 1, Answers to Café Nova’s Interrogatories to Justin Taylor Hill, Answer to No. 12.

2. Justin Hill smoked a marijuana cigarette around 4 PM on 4/1 6/1 0. See Exhibit 1, Answers to No. 3 and No. 11; Exhibit 2, Deposition of Justin Hill, taken December 20, 2012, 12:2.

3. The only food consumed by Justin Hill on 04/16/10 consisted of a chicken breast and green beans, which he ate around 6 PM. See Exhibit 2, 18:13-1 5.

4. Justin Hill drank at least one beer at his friend’s house around 9 PM on 4/1 6/1 0. See Exhibit 2, 20:4-6.

5. Justin Hill drank at least three beers at Bill’s Tavern around 10 PM on 4/16/10. See Exhibit 1, Answer to No. 3; Exhibit 2, 21:19-25, 22:1-3.

6. Justin Hill was at Bill’s Tavern when he and Adriane Stachmus began texting each other about meeting in Oklahoma City. See Exhibit 2,21:19-25,22:7-18.

7. Justin Hill’s cell phone records show that between 11:21 PM and 11:28 PM on 04/16/10, he was near the cell phone tower located at Lindsey and Berry Streets in Norman. See Exhibit 10, Cell Phone Records.

8. At 11:45 PM on 04/16/10 on his way to The Sipango Lounge, Justin Hill was near the cell tower located at Highway 9 and Berry Road in Norman. See Exhibit 10.

9. At 11:52 PM on 04/16/10 on his way to The Sipango Lounge, Justin Hill was near the cell tower located at 1-35 past Westheimer Airport in Norman. See Exhibit 10.

10. At 11:53 PM on 04/16/10 on his way to The Sipango Lounge, Justin Hill was near the cell tower located at 1-35 and Franklin Avenue in Norman. See Exhibit 10.

11. At 12:03 AM on 04/1 7/10 on his way to The Sipango Lounge, Justin Hill was near the cell tower located at 1-35 and SE 25th Street in Oklahoma City. See Exhibit

10.

12. At 12:05 AM on 04/1 7/10 on his way to The Sipango Lounge, Justin Hill was near the cell tower located at 1-235 and East Reno Street in Oklahoma City. See Exhibit 10.

13. Between 12:18 and 12:24 AM on 04/17/10, Justin Hill arrived at The Sipango Lounge and texted Adriane Stachmus to find out that she and the rest of the group were at another tavern nearby. See Exhibit 1, Answer to No. 3; Exhibit 2, 23:13- 25; Exhibit 10.

14. Justin Hill ordered a beer and finished it before leaving The Sipango Lounge, which took approximately twenty minutes. See Exhibit 2, 24:11-14.

15. Justin Hill testified walked across the street to meet Adriane Stachmus, Suzanne Giest Busby, and Vanessa Garrison at Café Nova. See Exhibit 1, Answer to No. 3; Exhibit 2,22:18-25, 23:13-25, 24:15-1 7; Exhibit 3, Deposition of Adriane Stachmus, taken May 13, 2013, 20:11-13.

16. Adriane Stachmus and Suzanne Giest Busby testified they met Justin Hill not at Café Nova, but at VZD’s. See Exhibit 3, 17:21-25, 18:1-3, 21:10-14,43:11-25, 44:1-4; Exhibit 5, Suzanne [Geist] Busby Deposition, taken on May 13, 2013, 20:13-20.

17. Adriane Stachmus, Suzanne Geist Busby, and Justin Hill admit that Justin Hill was unfamiliar with The Sipango Lounge, Café Nova, and VZD’s, having never been to these taverns prior to 4/16/10. See Exhibit 1, Answer to No. 2; Exhibit 2, 22:15- 17, 23:19-22,49:6-10, 57:10-13; Exhibit 3, 21:6-8, 22:5-7,43:20-24; Exhibit 5, 20:19- 20.

18. The Sipango Lounge, Café Nova, and VZD’s are situated within a one block radius near Western Avenue and NW 43rd Street. See Exhibit 6, Map.

19. Adriane Stachmus, Suzanne Geist Busby, and Vanessa Garrison testified that Justin Hill spent at least one if not “several” hours at VZD’s talking intimately with Adriane Stachmus seated atatable. See Exhibit 3, 18:25, 19:1-2, 21:19-22, 22:5-10, 23:4-5, 43:25, 44:1-3; See Exhibit 4, Vanessa Garrison Deposition, taken May 13, 2013, 62:19-21; Exhibit 5, 19:19-25, 20:1-8.

20. Justin Hill testified he drank one or two shots and had two mixed drinks while at Café Nova. See Exhibit 1, Answer to No. 3; Exhibit 2, 24:23-25, 25:1-5; Exhibit 3,23:17-25,24:1-2.

21. Adriane Stachmus and Vanessa Garrison testified Justin Hill drank one or two shots and had two mixed drinks not while at Café Nova, but while at VZD’s. See Exhibit 3, 33:10-1 3, 44:4-24, 45:12-25,46:1-2; Exhibit 4, 37:3-10; 42:3-25, 43:1-10; 69:7-15

22. Justin Hill has VZD’s confused with Café Nova. See Exhibit 4, 62:3-9: 69:3-6.

23. The fact that Justin Hill does not remember being in VZD’s for several hours drinking with Adriane Stachmus calls into question his memory of having drinks at Café Nova. See Exhibit 4, 62:19-25, 63:1-2.

24. Justin Hill testified that after consuming the one or two shots and two mixed drinks, he moved to a table, after which, he cannot remember anything. See Exhibit 1, Answer to No.3; Exhibit 2, 25:3-5, 29:6-25, 30:1-25, 31:1-13, 57:16-21, 63:10-1 2, 75:10-1 2.

25. Prior to 1:30 AM on 04/1 7/10, Justin Hill, Adriane Stachmus and Suzanne Giest Busby walked from VZD’s to Café Nova. See Exhibit 3, 46:3-7.

26. During the walk to Café Nova, no witness observed Justin Hill exhibiting any behaviors associated with being intoxicated. See Exhibit 3, :24:3-7, 26:2-1 5, 29:6- 10, 46:8-1 5; Exhibit 5,28:13-25.

27. Vanessa Garrison testified that she was at Café Nova when she first meet Justin Hill and Adriane Stachmus entering the tavern. See Exhibit 4, 20:14-19, 21:6-16.

28. While at Café Nova, Justin Hill, Adriane Stachmus, Suzanne Giest Busby, and Vanessa Garrison were within fifteen feet of each other in an open space as they mingled and had conversations amongst themselves. See Exhibit 3, 29:15-1 8, 46:16-25, 47:1-23; Exhibit 4, 43:1-6.

29. While at Café Nova, no witness saw Justin Hill ordering, being served, paying for a drink, holding a cup, or drinking any alcoholic beverage. See Exhibit 3, 28:20-22, 30:20-21, 54:21-22; Exhibit4, 25:15-25, 26:1-4, 41:15-23, 42:3-14, 46:24- 25, 47:1-5, 47:24-25, 48:1-6, 67:9-14; 69:14-1 5, 75:14-1 6.

30. No bills of sale, invoices, or receipts showing that Justin Hill purchased or was sold alcohol at Café Nova have been produced. See Exhibit 7, Response of Defendant Café Nova/Spam, Inc., to Co-Defendant Justin Hill’s First Set of Interrogatories, Requests for Production of Documents, and Requests for Admission, Response to Interrogatory No. 20 and Response to Request for Production No. 26.

31. While at Café Nova, no witness saw Justin Hill exhibiting any behaviors associated with being intoxicated. See Exhibit 3,29:20-25, 33:21-24, 40:24-25, 41:1, 45:5-11, 48:2-12, 50:12-15, 51:4-11; Exhibit4, 67:16-21, 77:17-19; Exhibit 5,29:25, 30:1-14.

32. When Justin Hill is intoxicated, he is louder than normal, laughs more, and is looser than normal, based on past experiences witnessing him being intoxicated. See Exhibit 3, 52:19-25, 53:1-8.

33. When Justin Hill left Café Nova at approximately 1:45 AM on 4/17/10, no witness saw Justin Hill exhibiting any behaviors associated with being intoxicated. See Exhibit 3,48:21-25,49:1-17; Exhibit 4, 43:11-25, 45:1-21, 50:17-25, 51:1-1 2, 52:3-8, 67:19-20, 75:17-22; Exhibit 5, 31:3-1 9.

34. It is “surprising”, “confusing”, and “shocking” that Justin Hill could have been intoxicated while at Café Nova because he was not belligerent, did not have bloodshot eyes, and did not appear intoxicated or drunk to the witnesses. See Exhibit 3, 50:6-15; Exhibit4, 30:15-19, 53:2-7; Exhibit 5,30:18-23.

35. If anything, Justin Hill’s actions drinking excessively prior to being in Café Nova contributed to the incident because he never had a drink while at Café Nova. See Exhibit 4, 30:15-19,47:6-18, 51:19-23, 52:9-15; 58:25, 59:1-3.

36. Justin Hill’s appearance both when he entered and left Café Nova would be a zero on a scale of zero being sober and ten being intoxicated. See Exhibit 4, 52:3- 8.

37. Even Justin Hill does not recall being visibly intoxicated while at Café Nova. See Exhibit 1, Answer to No. 7; Exhibit 2, 52:8-1 5, 5 7:2-9, 58:22-24.

38. No one was concerned that Justin Hill would be driving after leaving Café Nova. See Exhibit 3,49:15-17; Exhibit 4, 45:19-25.

39. It is possible that Justin Hill drank alcohol after leaving Café Nova. See Exhibit 2, 75:1 5-24; Exhibit 4, 66:6-12.

40. The Justin Hill sitting in the police car cursing and admitting that he was drunk is not how he appeared at Café Nova. See Exhibit 4, 58:1-9.

41. At approximately 2:06 AM on 4/17/10, justin Hill was involved in a fatality motor vehicle collision. See Exhibit 8, Accident Report.

42. Justin Hill’s blood was drawn at 2:50 AM on 4/1 7/10. See Exhibit 9, Blood Alcohol Test.

43. Justin Hill’s blood alcohol level was determined to be 0.22 g/100 mL. See Exhibit 9.

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Unless Plaintiffs show that Café Nova served a visibly intoxicated patron, it may not be held liable for damages due to Justin Hill’s drunken driving. See 37 0.S. § 537(2). Plaintiffs may not rely on the allegations of the pleadings, or the bald contention that facts exist, to defeat a properly supported motion for summary judgment. Weeks v. Wedgewood Vill., Inc., 19760K 72, ¶ 11, 554 P.2d 780 (where mere assertion in petition of negligence of lifeguards, in absence of proof of negligence or breach of duty, was insufficient to refute properly supported motions for summary judgment); Gabler v. Holder & Smith, Inc., 2000 OK CIV APP 107, ¶ 16, 11 P.3d 1269, 1 274 (citing Zaragosa v. Oneok, Inc., 1984 OK CIV APP 53, ¶ 6, 700 P.2d 662). It is axiomatic that the mere fact an injury occurs carries with it no presumption of negligence. Gillham v. Lake Country Raceway, 2001 OK 41, ¶ 7, 24 P.3d 858. Moreover, the burden is on the plaintiff to show the existence of negligence by the defendant. ki.

The three witnesses who were at Café Nova with Justin Hill all testified that they never saw Justin Hill visibly intoxicated while at the tavern. Even though these four individuals were in a small, confined space with no more than fifteen feet separating them, not one witness saw Justin Hill order or be served alcohol while at Café Nova. No one saw Justin Hill pay for a drink, nor did these witnesses see Justin Hill with a cup in his hand. Moreover, no one saw Justin Hill with bloodshot eyes or any other symptom of intoxication: No one heard Justin Hill speak in a voice louder than necessary; no one saw Justin Hill unable to walk or unsteady in his gait. No one remembers Justin Hill appearing to be intoxicated while walking to Café Nova, while inside Café Nova, or after last call, when everyone was leaving Café Nova.

While in a typical dram shop case we know that the patron was served in the tavern, here, we have no evidence that Justin Hill was even served while he was in Café Nova. Instead, Plaintiffs appear to be relying on an ability to presume that since Justin Hill had a high blood alcohol level after the incident, he must have been visibly intoxicated while at Café Nova. Such reliance by Plaintiffs, is however, problematic based on the law.

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Outcome: Dismissed without prejudice as to Sipango. Settled for an undisclosed sum and dismissed with prejudice as to Justine Taylor Hill.

Plaintiff's Experts:

Defendant's Experts:

Comments: