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Man paralyzed in '02 accident now suing bars that served him

Judge rules case can go forward

On an early May morning three years ago, Robert E. Nunez II got into a horrific car crash in Malden after a night of bar-hopping during which he says he had eight drinks of vodka and soda. The accident left him a paraplegic.

Nunez, a 2001 graduate of Revere High School, acknowledges in court papers that he was driving drunk and also carrying a phony ID card because he was just 19 at the time, too young to legally drink in Massachusetts. Nevertheless, a state judge has ruled he can sue two bars for negligence on the grounds that they allegedly breached their duties by serving an underage customer.

As in most states, Massachusetts allows lawsuits against bars that serve an obviously intoxicated customer who injures or kills someone while driving. But those claims are typically filed by an innocent bystander; for example, a pedestrian who is hit.

Drunk drivers who are hurt also occasionally sue for damages. But such claims are far less common, in part because state law requires such motorists to prove that the bars showed ''willful, wanton, or reckless" disregard for their intoxication while serving them -- a very high standard.

Suffolk Superior Court Judge Ralph D. Gants said Nunez lacked the evidence to make such a claim against Carrabba's Italian Grill on Route 1 in Peabody and The Palace on Broadway in Saugus. But the suit can go to trial anyway, he said, because Nunez had presented enough evidence that the bars violated their duty not to serve someone under the legal drinking age. To prevail, Nunez need only prove negligence, a much lower standard, the judge said.

''In short, since it is a crime for a tavern to serve alcohol to an underaged adult, a tavern has a legal duty to not serve alcohol to anyone it knows or reasonably should know is under 21 years of age," Gants wrote earlier this month. ''That duty is owed not only to any third party injured by the underaged adult but to the underaged adult himself."

Lawyers for the bars decried the ruling in interviews this week.

Matthew Perkins, the lawyer for Carrabba's, said the ruling ''leaves the door open for adult, but underage, drinkers to hold the commercial establishments responsible for their own illegal actions." Thomas Drechsler, the lawyer for The Palace, said he is considering appealing it to a single justice of the state Appeals Court.

But Nunez's lawyer, Richard I. Clayman, said Massachusetts law has an appropriately ''paternalistic" view of people under the age of 21 when it comes to alcohol, and Gants's ruling recognized that.

Nunez ''was drunk because he was served, and he was knowingly served, and then he got behind the wheel, which he shouldn't have," Clayman said.

As a practical matter, Nunez's claim ''has very little jury appeal" because he had no business drinking in the bar, said Andrew C. Meyer Jr., a personal injury lawyer with no connection to the case.

The court papers said Nunez was carrying a false ID card and wearing an old bracelet that the Palace gives to customers believed to be 21 or older.

Nunez is receiving treatment for his paralysis at a rehabilitation center in Carlsbad, Calif., said his lawyer, and could not be reached for comment.

Nunez went to Carrabba's, where he had worked as a waiter and knew employees, around 7 p.m. on May 10, 2002, according to Gants's decision. He said he had six drinks of Grey Goose vodka and soda along with a meal. Nunez said the employees knew he was under the legal drinking age and he was not charged for the food or drinks.

He left the restaurant around 9:30 p.m. and drove home in a sports utility vehicle. Soon afterward, he went out again and drove to The Palace, where employees also knew him, the ruling said. He had two more drinks.

Sometime between midnight and 1 a.m., he was driving home when he was in a collision at an intersection in Malden. His SUV, which state troopers later determined was traveling 47 miles per hour, collided with a car that went through a red light at 11 miles per hour, according to Gants's decision. The SUV rolled over and Nunez, who was not wearing a seat belt, was thrown from the vehicle.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

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