Below is a scenario for a Statement of Facts On April 23, 2009, at approximately 9:00 p.m., Mary Diamond (age 19) started to cross June Street, a public way in the city of Worcester, with her friend Justina Bell (age 19). Mary wore a black dress, dark stockings, and dark shoes. Both girls began to cross the street near the intersection with May Street, approximately 10 feet from a crosswalk. They were headed Bailey’s Bar and Grille. At approximately 6:00 p.m. that evening, Allison Shea (age 21) arrived at the Last Chance Saloon in Worcester. Her friend, Ellen Marks (age 21), drove them to the saloon. Ellen drank heavily, and by 8:00 p.m. was so intoxicated that she passed out in the bar. Allison only had two beers.
The bouncer at the Last Chance Saloon told Allison to “get her friend home.” He then carried Ellen to Ellen’s car, followed by Allison. Allison obtained the keys from Ellen, who awoke while being carried, and vomited and passed out again. The bouncer placed Ellen in the front passenger seat, and Allison drove them away at approximately 8:45 p.m. Allison drove from the bar onto June Street. After stopping at its intersection with May Street, she proceeded to take a right turn. While in the process of making the turn, a car stopped in front of her with its headlights illuminating the street. Allison swung around the car, made the turn, and struck Mary Diamond. Police and rescue personnel arrived at the scene. Police on the scene had Allison perform some field sobriety tests. She missed the letter T when she recited the alphabet, and failed to touch her index finger to her nose. The police officers formed the opinion that Allison was under the influence of alcohol. They arrested her. At 10:30 p.m., Allison elected to take a breathalyzer and scored a 1.2. On June 14, 1999, Allison pleaded guilty to Operating While Under the Influence of Alcohol.
Mary Diamond was taken to UMASS/Memorial Medical Center. Her neck, legs, and arms were broken. She was paralyzed by the accident. She has hospital bills of $257,000, doctor bills of $53,000 and requires constant care. Since her discharge from the hospital, she has lived with her parents. Her mother performs the majority of daily care, such as feeding her. She is not expected to improve. A blood alcohol reading taken after the accident revealed 0%. She has no memory of the accident and cannot speak. We currently are in litigation. We have sued, The Last Chance Saloon, Allison Shea and Ellen Marks, the owner of the car driven by Allison.
Through her attorney, Marks has asked for a judgment on the pleadings or in the alternative that the court grant summary judgment in her favor. She has brought the motion pursuant to Rules of Civil Procedure 12(c) and 56. The essence of the motions is that Marks is claiming that we have failed to make out a cause of action against Marks because she was merely the owner and not the negligent driver. I need you to draft a persuasive memorandum on the one issue of whether we have alleged a cause of action against Marks.
For this assignment you may assume that either motion is valid and that the pleadings contain all of the above information. The judge has told me, he will throw out our suit against Marks if I cannot persuade him otherwise.