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Store Is Penalized Millions in DWI Death

By Scott Sandlin
Copyright © 2008 Albuquerque Journal; Journal Staff Writer
    A Santa Fe jury has awarded $14.5 million in damages in a DWI fatality in which the driver was allowed to drink while at work at an Albuquerque-area gas station.
    But the defense contends he was not an official employee when the 2003 accident occurred, and the decision is expected to provide fodder for appeals on the limits of employer liability.
    The bulk of Friday's jury award was punitive damages against the store that allegedly sold beer to the drunken driver— who jurors decided was an employee of the store.
    Dean Durand was the driver of the 1996 Ford Bronco that sideswiped several vehicles and crashed into a motorcycle driven by Daniel Ralph Gutierrez, who later died of his injuries.
    The jury awarded compensatory damages of $3.25 million to the estate of Gutierrez, $1 million to his mother, Janet Jaramillo, and $100,000 to each of his three sons, now 17, 14 and 8, for emotional distress.
    It also awarded $10 million in punitive damages against the store owner at the time, Meteor Monument LLC, and $10,000 in punitive damages against Durand.
    The trial was held in Santa Fe, where Meteor has its registered agent.
    The jury assigned 40 percent of the fault to Durand and 60 percent to Meteor Monument.
    Durand, 60, is serving a 10-year sentence in state prison. He pleaded guilty in 2004 before Judge Neil Candelaria to vehicular homicide, three counts of great bodily injury and one count of abuse of a child, all stemming from the accident.
    Albuquerque attorney Jake Vigil, who represented the Gutierrez family and estate in last week's civil trial before Judge Tim Garcia, said the case included facts all too familiar to New Mexicans.
    Before the Aug. 31, 2003, accident, Durand had been allowed to buy and drink alcohol while at work— while he was already drunk— at the Alameda Meteor store at Second and Alameda NW, according to the lawsuit.
    The defense took the position that Durand was not an employee of the company— he did not appear on the payroll— and his "job" never involved leaving the premises, according to Pete Domenici Jr., who represented Meteor Monument.
    Durand worked various jobs at the gas station, according to the lawsuit. Vigil said Durand worked cleaning up oil and gas and picked up trash for payment in cash.
    He said Durand often spent his days at the store and was allowed to purchase liquor there— typically three times a day— and was even permitted to trade his warm beers for colder ones.
    On the day of the accident, Durand left the store to give a friend a ride home and allegedly used heroin and other drugs mere minutes before heading back to the store.
    The fatal accident occurred on Second Street near Alameda around 7 p.m. Hours later, Durand's blood alcohol tested at 0.09, over the state's presumed level of intoxication, Vigil said.
    It was on the way back to the gas station that Durand veered into oncoming traffic on Second Street, sideswiping several cars and injuring an 8-year-old boy— the basis for the child abuse charge.
    Gutierrez and a friend, both on motorcycles, were then struck by Durand.
    A nurse who was a passenger on the friend's bike was expected to lose her leg because of injuries from the impact but was able to keep it after 10 surgeries, Vigil said.
    Gutierrez died after 40 days in a coma after suffering traumatic brain injury, according to the lawsuit. He turned 32 while he was in the hospital.
    The station at the time was a Conoco franchise that leased its state-issued liquor license from a company called El Boracho Inc., a misspelling of the Spanish word for "drunk." Vigil said that company was dismissed from the lawsuit by the judge, but the company's name choice drew scorn from potential jurors.
    "It was a very sympathetic and a very sad case, but we think the jury really did not follow the instructions," Domenici said Tuesday. He said Durand was not acting within the scope of his employment if he was an employee, so punitive damages are not allowed by law.
    He said the company believes a sympathetic jury took a liberal view to give such a sizable award.
    "We believe this judge or a higher court will not hold the company responsible," he said.