Lawsuit: Applebee’s overserved pedestrian

SANTA FE – In a different twist on litigation over fatal crashes, a Taos restaurant and its corporate owners are being sued for allegedly serving too much booze to a pedestrian, not a drunken driver.

The estate of Julian Varela, a lawyer and at one time a probate judge, says in its state court lawsuit that the Applebee’s Neighborhood Grill and Bar in Taos overserved Varela before he walked out of the restaurant drunk and into the street and was killed by a pickup driven by a teenager.

Varela’s blood alcohol content, as determined from lab results on a blood sample taken from him the night of the Dec. 29, 2011, crash, was 0.314 percent. That’s about four times the presumed level of intoxication for a driver in New Mexico.

Applebee’s employees shouldn’t have overserved Varela with 20-ounce “Brewtus” beers and should have known he “was visibly intoxicated and through the exercise of reasonable care they could have, and should have, prevented Julian Varela from leaving the Taos Applebee’s while being intoxicated” before he was struck and killed, the suit maintains.

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The lawsuit, using internal Applebee’s emails and records, also tries to make the case that Applebee’s corporate leadership had a policy to drive up liquor sales, particularly late at night.

This policy “created a dangerous situation” and “it was reasonably foreseeable” that someone would be overserved alcohol “and injure himself/herself or others,” the suit argues.

Anthony G. Lopez of Taos, one of two lawyers who filed the suit for the Varela estate, said he couldn’t say at this point where he got the Applebee’s records and emails cited in the suit.

Julian Varela

Julian Varela

While lawsuits against liquor establishments that have served drunken drivers involved in fatal crashes or other accidents are not uncommon, Lopez said he didn’t know if there has been a previous suit targeting overserving of a pedestrian.

Lopez declined to say more, adding that he didn’t “want to try our case in the media.”

A spokesman for Applebee’s corporate offices said the chain doesn’t comment on pending litigation.

The lawsuit says Varela, who was 49, apparently had already had several beers while visiting a friend in Peñasco before he was dropped off at Applebee’s “to continue drinking” at 6:30 p.m. the night he was killed.

He was served “several” Brewtus beers “when it was reasonably apparent that he was intoxicated,” the suit says, and his ability to “think and act as a prudent person” became “severely diminished and impaired.”

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He was served his last beer at 8:06 p.m., then walked out at 8:26 p.m. and into the southbound lane of Paseo del Pueblo Sur, where the truck knocked him into the air. He was pronounced dead at the hospital about three hours later.

According to a Taos News report, the Applebee’s was subsequently barred from selling liquor for three days and paid a $3,000 fine as part of a stipulated agreement with the state Alcohol and Gaming Division on a citation for serving to an intoxicated person.

Much of the 38-page lawsuit is dedicated to citing Applebee’s policy documents, restaurant logs and police reports to show Applebee’s management wanted to see more booze sales and that the Taos restaurant had a history of problems with drunks, fights, assaults and other problems.

The suit refers to an August 2010 email to Applebee’s area “coaches” and managers that says, “As you know, we established a year-end target for our BWL (beer, wine, liquor) mix at 18% of total sales.” The message adds, “We have a great opportunity not just to drive additional alcohol sales, but also food.”

It says managers competed for bonuses “based, in part, (on) the sale of alcoholic beverages,” and that the “area coach” over six Applebee’s, including the one in Taos, increased alcohol sales by 6.2 percent in years 2009 and 2010. The suit says there were “contests” among different Applebee’s over alcohol sales.

AmRest LLC, which the suit says operates more than 100 Applebee’s outlets, in 2010 established a goal for the Taos restaurant to make at least 20.9 percent of total sales from booze, which the restaurant exceeded for various periods, the suit says.

The lawsuit also cites about 90 incidents recorded from April 2008 through November 2011 in police reports, and AmRest’s and Applebee’s own log entries of fights, drunks, overserving, assaults, rowdiness, tire slashings, gunshots, threats and other incidents at the restaurant.

AmRest “ignored” the incidents “which establish that the Taos Applebee’s was overserving,” the suit maintains. The company also refused a request by managers for security cameras and security personnel, and “put corporate profits over the safety of its customers and the Taos public at large,” the suit contends.

The suit also names the then 17-year-old driver of the truck that hit Varela as a defendant, maintaining he was negligent. At the time of the crash, police said neither speed nor alcohol was a factor, and the teen was not cited.

The suit seeks punitive and other damages.

Meanwhile, the Applebee’s in Santa Fe is being sued by multi-DWI offender James Ruiz, who is serving a 40-year sentence for killing two teenage sisters after driving drunk and crashing into their car on Cerrillos Road in 2010.

The suit, filed in March, contends Applebee’s and another Santa Fe restaurant were negligent in serving Ruiz alcohol on the day of the crash when he was “obviously intoxicated.”

The family of the two girls also is suing Applebee’s and its parent company for overserving Ruiz.

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