Trial Magazine

Moulton v. UTGR, Inc., No. PC-2012-1477 (R.I. Super. Ct. Oct. 28, 2016).

On the evening of Apr. 24, 2010, Alissa Moulton; her boyfriend, Alexander Arango; and two friends were involved in a car crash less than five miles from the Twin River Casino in Lincoln, R.I. The three passengers and the driver, Arango, were all under 21—Moulton and Arango were 18. Moulton suffered catastrophic injuries that led to permanent tetraplegia.

Attorneys Mark Mandell, Yvette ­Boisclair, Zachary Mandell, and George Santopietro of Providence, R.I., represented Moulton at trial against Twin River Casino. The complaint alleged violations of the Rhode Island Liquor Liability Act and common law negligence. Moulton claimed that the casino was negligent in serving alcohol to Arango—a visibly intoxicated minor—and in letting him leave the casino while intoxicated.

After a ­five-week trial, the jury found that Twin River was negligent and had violated Rhode Island’s dram shop statute, awarding Moulton more than $13 million. Prejudgment interest increased the total award to more than $21 million.

Mandell described this as the most difficult trial of his 42-year career. First, three of the four passengers in the car stated that Arango did not drink at the casino. Arango told state police that he did not drink at the casino. He did say he drank 6 ounces of vodka at Moulton’s house before the four left for the casino. Arango’s friend, Jose Diaz, a passenger in the car, also told state police that Arango did not drink at the casino. The third passenger, Christina Sinapi, ­testified at deposition that Arango did not drink at the casino. Moulton, the fourth passenger, testified that she was out of Arango’s presence for 30 minutes and did not know if he consumed alcohol at the casino.

Holding an establishment liable for overserving customers who then cause alcohol-related injuries is extremely difficult. Most people will find the drunk driver liable but not the restaurant, bar, or casino.

Mandell explained how dram shop laws rarely help consumers. “These laws were initially meant to protect people and to allow them to bring claims against establishments that recklessly or negligently overserve alcohol to minors or to visibly intoxicated customers who then cause harm,” he said. Mandell explained that lobbying from the beverage and hospitality industries has resulted in many states’ dram shop laws being protective of defendants.

In some jurisdictions, Mandell noted, it is nearly impossible to win a dram shop case. And often, the dram shop statute is the only law under which plaintiffs may sue for this type of injury. Fortunately, Rhode Island law allowed Moulton to sue under both the state’s dram shop statute and the common law.

But the challenges did not end there. Jurors often demonstrate “defensive attribution”: the belief that they would have done something different to avoid being injured if they were in the same situation as the plaintiff. “It’s a matter of decision science,” Mandell said. “Jurors tend to believe that they would have done something different, even if that’s totally unrealistic.”

This psychological phenomenon is especially harmful in drunk driving cases. Many jurors want to find the driver completely responsible, so Mandell knew he had to shift the jurors’ focus to the casino’s actions. “They are not two separate causal entities,” he said. “You don’t get drunk unless someone overserves. There’s a shared responsibility.” 

Mandell stressed the overall case frame to the jurors—that the casino failed to do its job. It served a minor to the point of visible intoxication. Its staff let Arango leave without any intervention. If Twin River had implemented appropriate policies and trained and supervised its staff properly, Arango would not have been served alcohol and would not have been allowed to leave the casino—and Moulton’s life-altering injuries would not have occurred.

At trial, Mandell emphasized that this was not a singular incident but part of a system failure. Twin River staff was inadequately trained. Reports showed that customers became visibly intoxicated inside the casino multiple times a week.

State troopers and an eyewitness observed that Arango was slurring his speech, was combative, and that his eyes were severely bloodshot at the crash site. The crash occurred just minutes after Arango drove away from the casino. This was the key “I just can’t get over issue” for the plaintiffs.

The case was tried chronologically backward. Focus was placed on Arango’s intoxication at the crash site early in the examination of witnesses.

Then there was Arango and Moulton’s relationship: They lived together and were raising two children together. Mandell knew that the jurors might find it difficult to award damages because of Moulton’s relationship with Arango. “If a jury ever thought Arango would benefit because he lives with Alissa and is the father of her two children, it would be very difficult to get justice for her,” he said. Arango’s mere presence in Moulton’s life was a line of attack used by the defense. Mandell explained that the jurors could have taken issue with the fact that Arango would benefit, even indirectly, from the settlement—for example, by using the family van.

Mandell deconstructed this defense strategy. “That was one of the biggest points of the defense: to attack Mr. Arango,” he said. To avoid this potential pitfall, a trust was set up for Moulton before the settlement. “We’ve never set up a Medicaid-qualifying trust before a settlement,” he said. “We had three cotrustees: Alissa’s two grandparents (who were her legal guardians) and a bank. The trust was a Rhode Island trust. Under the terms of the trust, Arango can never be a trustee and can never receive any money from the trust.”

To make sure that the jurors would be aware of the trust, Mandell filed a motion to make the grandparents coplaintiffs. That motion was granted despite vigorous opposition. “We explained to the jury that the trust would prevent Mr. Arango from accessing any of the money,” he said. “That was one of the most important things we did to reframe the case.”

Mandell also presented evidence of the damaging and permanent effects of Moulton’s injuries. She has only limited use of her wrists, hands, and fingers. She cannot walk or stand and must rely on a wheelchair for the rest of her life. She requires assistance for everyday tasks such as showering, dressing, and caring for her young children.

Although Moulton’s life will never be the same, she now has the ability to have full-time attendant care. She will be able to purchase a van, needed medical devices, and medication. She still lives with Arango and their two young children. Mandell said, “She’s a fighter, and she’s courageous.”