March 17, 2010

Suit calls strip club negligent in killing

TREVOR MAXWELL

— By

click image to enlarge

Robert Wagner, 28, missing Gray man found murdered

Staff Writer

Two years ago, on the night Robert Wagner was murdered, the young Gray mortgage broker and two friends spent more than five hours at Platinum Plus, a strip club in Portland.

Wagner, Steven Clark and Ian O'Hora each had more than 10 drinks -- mixtures of vodka and Red Bull, a highly sugared and caffeinated drink that's marketed as an energy booster.

According to court testimony, the men then switched over to Red Bull with no alcohol at 1 a.m., before driving to Clark's house an hour later.

That's where an argument broke out -- and Clark shot Wagner, one of his best friends, twice in the head.

Clark is serving a 43-year sentence for the crime at the state prison in Warren.

Now, a lawsuit filed by Wagner's family is raising two questions: Should the club pay a price for the death of Robert Wagner? And did the actions of Platinum Plus and an individual server that night have a direct connection to the murder?

The lawsuit, filed this month in Cumberland County Superior Court, alleges wrongful death and negligence and names Platinum Plus, one of its employees, O'Hora and Clark as defendants.

The attorney for Wagner's estate claims the club served the men liquor when they were clearly drunk, then served straight Red Bull to mask the alcohol impairment.

''Platinum Plus serves Red Bulls without alcohol from 1 a.m. to closing to promote the 'caffeine high' and energy to drive home, which prevents the patrons from realizing the degree of intoxication,'' said the complaint, filed by Andrews Campbell, a Bowdoinham lawyer who is working for the estate of Wagner.

The complaint, received at the court Feb. 12, was filed just before the two-year statute of limitations was to expire.

Paul Clement, director of operations for Platinum Plus, declined comment Tuesday. He said he had not yet seen a copy of the lawsuit.

Red Bull and other energy drinks have come under fire recently from legislators in Maine and across the country.

Critics say the companies that make them are not doing enough to warn consumers about mixing the drinks with alcohol.

Pre-mixed drinks that combine caffeine and alcohol -- such as Miller Brewing Co.'s Sparks and Anheuser-Busch's Bud Extra -- also are the subject of increased scrutiny.

Maine Attorney General Steven Rowe has been a vocal critic.

Last week, he urged the federal Tobacco Tax and Trade Bureau to investigate the ingredients of the Sparks and Sparks Plus alcoholic energy drinks.

''Caffeine is a stimulant that can mask feelings of intoxication, giving drivers the false impression that they can drink more and function normally,'' Rowe said in the statement released Feb. 21. ''This is a recipe for disaster.''

Plaintiffs carry the burden of proof in wrongful-death lawsuits, said Jennifer Wriggins, a professor at the University of Maine School of Law in Portland.

''There has got to be a wrongful act, neglect or default that causes the death. That is the bar,'' Wriggins said.

Campbell will have to prove that Wagner's death was a foreseeable and imminent result of negligence by Platinum Plus and the server.

Some state laws favor immunity for bars and other establishments that serve liquor, while other states provide very little protection against tort lawsuits. Maine falls somewhere in the middle, Wriggins said.

The Maine Liquor Liability Act, passed by the Legislature in 1987, allows plaintiffs to sue individual servers. But the law limits the circumstances under which lawsuits can be brought.

It also encourages training of employees. If a server has taken a state-approved server education course, and the establishment has responsible policies for employees, those facts can be used as evidence that the server was not negligent.

A jury in a Maine court can award compensation for lost wages and other economic losses in a wrongful death case. Damages for non-economic losses, such as loss of companionship, are capped at $500,000. A jury can award as much as $75,000 in punitive damages if it finds that the wrongful act or neglect was carried out with malice.

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

tmaxwell@pressherald.com

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