Boat Accident Lawsuit Tests Dram Shop Liability

OCEAN CITY — A popular resort nightclub is seeking to dismiss a $1 million lawsuit filed in March by a boating accident victim, attempting to hold the establishment responsible in part for the actions of the inebriated skipper who later crashed his vessel into the Route 90 bridge.

Around 1 a.m. on July 5, 2008, a 21-foot fiberglass ski boat carrying 10 people collided with an abutment on the Route 90 bridge in a dense fog, severely damaging the vessel and sending all of its occupants into the murky water with various injuries.

Maryland Natural Resources Police, the Coast Guard and the Ocean City Fire Department responded to the scene, along with some off-duty firefighters in their private boats, and pulled the injured victims, some of whom were clinging to the bridge, from the water as the vessel sank.

The boat operator, Scott Howard Shepard, then 32, of Rockville, was later charged with operating a vessel while impaired, negligent operation and reckless operation and was ultimately sentenced to 30 days in jail.

Scott and his passengers had been at Seacrets before the accident and were later ferried by the nightclub’s water taxi to the vessel moored in the bay.

Nearly three years after the accident, one of the victims, Danielle Vollmar, a former local television meteorologist who now lives in Oklahoma, filed suit in U.S. District Court against Shepard and Seacrets, seeking $1 million from each of the defendants, citing negligence by both parties that led to her injuries.

In the portion of the suit against Seacrets, Vollmar, through her attorneys, attempts to hold the establishment responsible in part for ferrying a clearly intoxicated Shepard to his personal vessel and allowing him to transport nine passengers in dangerous conditions leading up to the accident.

“Seacrets knew or should have known that ferrying and encouraging a severely intoxicated patron such as Shepard to his boat, and then later ferrying the plaintiff to board and depart on the same boat with Shepard, created a condition of danger to the plaintiff and the public,” the complaint reads.

The complaint attempts to illustrate Seacrets’ employees operating the ferry service to moored vessels in the bay should have been aware of Shepard’s condition and the degrading weather conditions before allowing him to shove off with his passengers on board.

“Shepard then met a Seacrets employee, who noticed or should have noticed his severely intoxicated condition, but nonetheless ferried him and his guests offshore to the vessel,” the complaint reads. “Shepard and the ferry operator were also aware that a heavy fog had moved in during the evening and it had settled thickly on the bay.”

Vollmar filed suit in U.S. District Court citing general maritime law and Maryland law in an attempt to evoke “dram shop” liability against Seacrets. Dram shop laws in some states hold bars and restaurants responsible for the actions of their patrons after they leave the establishments, but no such law exists in Maryland. In the absence of dram shop liability in Maryland, Vollmar is attempting to evoke general maritime law in the case, but maritime law applies only to action on the water.

In the weeks following the filing of the lawsuit, Seacrets filed a motion to dismiss the case, citing the absence of dram shop liability in Maryland and the inappropriateness of a maritime law application in the case. A hearing on the motion to dismiss was heard last Tuesday, but the judge had not entered a ruling as of yesterday.

“The facts alleged in Vollmar’s complaint make it clear that any injury she suffered occurred only after she had boarded Shepard’s boat, it had gotten underway, it had traveled up Assawoman Sound, and it had collided with the Route 90 bridge,” the motion to dismiss reads. “Maryland does not recognize a cause of action for dram shop liability. No doubt of that, Vollmar has couched her complaint against Seacrets in terms of negligence under general maritime law.”

Seacrets claims it cannot be held liable to Vollmar under the dram shop theory of liability for anything that happened ashore because there is no such liability in Maryland law and the general maritime law does not extend to the operation of a bar onshore. In short, Seacrets cannot be held liable to Vollmar for anything that happened after she left its water taxi that night because she was “indisputably out of its care, custody and control from that point on.”

“Vollmar may well have a compelling case against Shepard under either the general maritime or Maryland law,” the motion to dismiss reads. “What she does not have is any cognizable claim against Seacrets under either one. Stripped to its essence, Vollmar’s complaint is little more than a scattershot collection of legally fatal attempts to circumvent the absence of a dram shop cause of action under Maryland law. In the end, the only way she can succeed is to invent a new and breathtakingly broad duty that she is asking this court to impose on the owners and operators of water taxi services. No such duty presently exists in the law, nor is there any good, or even conceivable, reason for this court to create one.”