A former stripper's unusual negligence lawsuit appears headed for trial after a judge ruled she can sue a Birmingham, Ala., club for encouraging her to drink on the job and then letting her drive home in “a highly intoxicated state” after her shift.

A jury may now get to decide whether Patsy Hamaker was solely responsible for wrecking her car after work on Oct. 18, 2007, leaving her disfigured and with a broken back -– or whether The Furnace club is liable for failing to protect her from the risks of consuming alcohol as an expectation of her employment.

The trial is set for Oct. 26 in Jefferson County (Ala.) Circuit Court and could take jurors behind the scenes of a club where, according to court documents, dancers earn commissions ranging from $5 to $900 on sales of “Dancer Drinks” to customers that cost from $12 to $2,500. The Furnace pockets the rest.

“Ms. Hamaker was a leading seller of drinks, if not the leading seller of 'Dancer Drinks,' for The Furnace, and they profited handsomely from her sales,” she said in a brief opposing the club's motion for summary judgment.

Judge Caryl Penney Privett denied the motion in a Jan. 16 order without giving any explanation. But the ruling means she rejected the club's argument that the exclusive remedy for negligent or unlawful dispensing of alcohol is Alabama's dram shop act, which only applies to third-party claims against alcohol vendors.

“Although Plaintiff attempts to state claims for negligence and/or wantonness against BIT, there is really only one claim, a Dram Shop Action,” the motion said, referring to The Furnace owner BIT, Inc.

In the only direct precedent, the Texas Supreme Court found a stripper's “decision to consume alcohol over a four-hour period was not entirely voluntary,” citing evidence that the stripper's employer “exercised control over her alcohol consumption.” D. Houston, Inc. v. Love, 92 S.W.3d 450 (2002).

The Furnace cited two Alabama dram shop cases, but Hamaker said in her reply brief that in neither of those cases

was the consumption of alcoholic beverages a part of the intoxicated person’s employment such that they were expected to drink with “guests” of their employer. In neither of these cases was the intoxicated person compensated for the number of drinks purchased for them as Ms. Hamaker was in the present matter. In neither of these cases did the employer of the intoxicated person have rules in place to protect the person from leaving the establishment and driving while intoxicated, and then completely disregarded its own rules which resulted in injury to the intoxicating person.

Hamaker's blood-alcohol level was more than twice the legal limit when she had her accident. She is claiming compensation of more than $95,000 in medical and vehicle-repair bills and lost income of $2,500 per month, but The Furnace contends she sold only one dancer's drink, a $22 half-bottle of wine, that night.

Another factual issue is whether Hamaker should have been given a Breathalyzer test before she left work. A former manager has testified the club never checked a dancer for intoxication the entire time he was employed there, but the club has said it did not have a Breathalyzer at the time of Hamaker's accident.

The Furnace has also denied requiring dancers to drink at work. Its “Dancer Handbook” says, “Solicitation of alcoholic (or non-alcoholic) beverages is a violation and is prohibited. You may NEVER ask a guest to buy you a drink – it is not only against company policies, but rude.”

By Matthew Heller
2/1/09