If an untested and novel legal theory succeeds, the wife and brother of a binge drinker with a string of drunken driving arrests could be held civilly liable for the death of a bicyclist because they supplied the car, insurance and alcohol to the driver.

The Northern California case uses a conspiracy theory to expand third-party liability as a means to avoid traditional limits on culpability under state dram-shop laws.

Dram-shop laws shield bar owners and social hosts from civil liability if they supply alcohol to a drinker who later causes a death.

Although the theory may be a long shot, a state judge has allowed the suit to proceed to discovery. The suit seeks damages from the wife and bar owner/brother of Joseph Lynchard, 74, of Santa Rosa, Calif.

Lynchard ran over a cyclist after a lunchtime drinking binge with his alcohol level three times the legal limit, according to the Sonoma County, Calif., lawsuit, Black v. Lynchard, No. SCV 236858.

"Our position is there has to be joint action in support of a wrongful act, that wrongful act in this case is [Lynchard's] drinking," said Patrick Emery, a Santa Rosa personal injury attorney representing the family of Kathryn Black, a 43-year-old cyclist.

ACTIONS OF CONSPIRACY?

Emery said that Lynchard's wife transferred all his assets to her name after an earlier accident and got him auto insurance. His brother, owner of Eddie's Bar, bought Lynchard a pickup truck and supplied him with drinks the day of the accident. All this, Emery argues, shows a conspiracy to commit an illegal act, allowing Lynchard to drive while drunk.

If Emery succeeds, it could hold those to account who supply alcohol in the most egregious cases. "It would open courts to a limited number of circumstances, when someone other than the driver is responsible for putting that individual in motion," Emery said.

Mark R. Mittelman, attorney for bar owner Eddie Lynchard, said, "There is no conspiracy here and they are not going to be able to prove conspiracy." Mittelman has already knocked out a claim for negligent service of alcohol. "So they've gotten creative," he said.

"This [suit] is going to go down the tubes as a good shot, but there is nothing in the law that authorizes an end-run around the dram-shop law," Mittelman said.

Lynchard faces a separate criminal charge of second-degree murder.

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