Mother sues drunk driver, Austin bars for putting teenage daughter in permanent vegetative state

David Maly

Thirteen-year-old Ekia Smith will remain in a permanent vegetative state for the rest of her life after she was hit by a drunk driver in August.

Kylie Doniak, a former UT student and soccer star, is also struggling with serious brain injuries after a similar accident. Doniak’s parents filed suit in August against the owners of two downtown bars where they believe the driver that hit their daughter was served alcohol far beyond the legal limit to operate a motor vehicle. Now Smith’s mother is doing the same — filing suit against two downtown bars she says over-served Lauren Cherry, a woman charged with failure to stop and render aid after hitting Smith.

A lawsuit was filed Nov. 20 by Kimberly Jenkins, Smith’s mother, against Cherry, the parent company of Barcelona bar and the parent company of Toulouse bar, both of which are on East Sixth Street west of Interstate Highway 35. The suit alleges the bars served Cherry until she was at more than three times the legal limit to lawfully operate a motor vehicle. It goes on to state that Cherry was not offered transportation by the bars or stopped from driving her motor vehicle.

According to the suit, Cherry went on to strike Smith with her car, who was walking in her neighborhood in North Austin. Smith suffered a traumatic compressed brain injury and permanent life-threatening injuries as a result of the accident.

Carl Barry, the family’s attorney, said Smith nearly died from the accident and it is a miracle she is even alive.

“She was in the hospital for 15 days on life support in Brackenridge,” Barry said. “All the doctors told her family in a day or two, ‘Listen, we are going to pull the plug in the next couple days. Start making funeral arrangements. She is not going to live.’ So they pull the plug, and she miraculously starts to breathe on her own.”

Barry said Smith will now have to live the rest of her life with no cognitive brain function.

Barry said he hopes the suit will provide much-needed financial support for Smith, as her medical bills could total $18 million over her lifetime. He also said he hopes the suit urges local bar owners to be more responsible in the oversight of their employees. He said the suit was not inspired by the Doniak lawsuit.

Barry said the owners of the bars have not yet responded to the suit.

Brendan Puthoff, owner of Barcelona, said an internal investigation into Cherry’s actions at the bar that night show the bar’s staff acted responsibly.

“We didn’t have a part in it,” Puthoff said. “My heart aches for the family.”

Puthoff said he plans to respond to the lawsuit within the legal 20-day limit.

Cherry and the owners of Toulouse were not available for comment.

Suzanne Kaplan, an attorney for the Doniak family, said Doniak is currently under a conservatorship and has a long road ahead of her. Kaplan said the Doniaks’ suit against Vice and its parent company, Ckan Inc., and the now-closed downtown nightclub Fuel and its former parent company Yassine Enterprises, is currently in the discovery phase. She said she has high hopes that justice will be served.

Printed on Tuesday, December 4, 2012 as: Mother sues drunk driver, bars for accident