The lawyer for a Penn State freshman hit by an SUV and critically injured in December said a State College restaurant might face a civil lawsuit for the role he says it played in the driver's alleged intoxication.
Zola New World Bistro, 324 W. College Ave., received notification Monday of possible future litigation against it for allegedly "over-serving" alcohol to the defendant, Katherine A. Applegate, and her roommate during a span of four hours the night of the crash, said Gary Ogg, the victim's family lawyer.
Ryan Fonash, the restaurant's general manager, said the letter was received and forwarded to the restaurant's liquor liability insurance carrier.
Police said Applegate, 23, of 824 Elmwood St., drove drunk and struck Michael Drauch, 18, on the 600 block of East College Avenue. The incident occurred near the Meridian apartment complex at about 1:45 a.m. Dec. 2, according to court documents.
The civil lawsuit would have to prove that Zola served Applegate and/or her roommate, Quinn Patten, with full knowledge that she was "visibly intoxicated," in which case it could be legally responsible for the damages incurred, Ogg said.
Ogg said the amount of time Applegate and Patten spent at Zola and the number of drinks served to them poses a liability issue.
According to a transcript of Applegate's Dec. 20 preliminary hearing, Patten, a Penn State student, said she and Applegate went to Zola at about 9 to 9:30 p.m. and stayed until about 1 a.m.
While at the restaurant, Patten said she had "around three to four drinks ... a Cosmopolitan, Spring Fling and a Vodka tonic," and that she was unsure how much Applegate drank, but that they were mixed drinks, according to the transcript.
According to the hearing transcript, Patten testified that they went to Zola to see her boyfriend, Michael Spangler, who works as a bartender there. When asked if Spangler gave the women deals on their drinks, Patten said he did not give them free drinks or lower prices, according to the transcript.
Ogg said a toxicologist should be able to evaluate Applegate's blood-alcohol content (BAC) and determine how many drinks she would have had to consume to have a certain reading at the time it was taken.
According to court documents, Applegate's BAC was .208 percent during her arrest at 3 a.m. Dec. 2. Applegate faces criminal charges of accidents involving death or personal injury, DUI and failing to obey driver's license restrictions.
According to the transcript, Patten testified that she told Applegate "something along the lines of 'I wasn't OK to drive.' [Applegate] said that she was OK, and we left."
Court documents indicate Patten is the owner of the Ford Explorer driven the night of the accident.
William Arbuckle, Applegate's attorney, said neither woman should have driven.
"The accident was a tragedy," he added, declining to comment further.
Ogg said it is likely the lawsuit will be filed, but there is no set timeline.
"It's difficult to do anything with this kind of case before you really know what [Drauch's] needs will be," he said. "It's only two months. Really, it's kind of premature."
Drauch is displaying "significant" cognitive problems, Ogg said, and hasn't yet walked without assistance from a walker.
"His short-term memory is bad. Just concentration, processing information, is a problem for him," Ogg said. "But his speech is a little more deliberate now. He's out of the woods as far as the acuteness ... everybody's thankful he's alive."
Drauch was transferred in early January from the Geisinger Medical Center in Danville to the HealthSouth Harmarville Rehabilitation Hospital in Pittsburgh.
Ogg said Drauch should be discharged from the Harmarville hospital in about a month, but he will need extensive 24-hour care for about six to eight months after that.
"We're just kind of waiting for his medical condition to define itself," he said, "and that could be awhile."
