On Wednesday FOX 7 spoke with the owner of a 6th Street bar named in a lawsuit filed by the family of a teen who is now in a vegetative state. The family claims the driver who hit the teen was over-served and then got behind the wheel.
Thirteen-year-old Ekia Smith as her family knew her is gone. Her body still blinks, yawns and coughs, but her mother will never hear her voice again. She no longer has any brain function.
"She's just breathing, she's just breathing, nothing else," Ekia's mom Kimberly Jenkins tearfully said.
On August 17th Ekia was with friends outside her apartment complex off Metric Boulevard in North Austin when police say 25-year-old Lauren Cherry struck her. She left the scene, but then returned and was arrested for failure to stop and render aid.
Ekia's attorney, Carl Barry, says he's obtained evidence Cherry was three times over the legal limit at the time of the crash and in his mind she was over-served by the two 6th street bars she told officers she went to before the crash.
"She never should have been this drunk and those bars let her get this way," Barry said.
"I wouldn't want another person to go through this again. I wouldn't want the idea of people thinking it won't happen to them," said Jenkins.
For that reason, Ekia's mother filed a lawsuit against Cherry, the Barcelona bar and the bar Toulouse.
On Wednesday, FOX 7 spoke with Barcelona owner, Brendan Puthoff.
"It looks like she and two friends were in there and ordered three drinks at one time and she only had one drink with us about 12:27 a.m. about three hours before the wreck happened," Puthoff said.
TABC opened an investigation shortly after the incident. According to Captain Harry Nanos, that investigation is at a standstill pending further evidence. TABC can file charges for over-serving.
Since 2011, the agency has canceled a liquor license at one Austin business for selling to an intoxicated person. That was at the Applebee's on South I-35.
Four other establishments have received warnings including Third Base on West 6th that Puthoff also owns.
Barcelona has no offenses of the sort.
"Our hearts bleed for the family who is going through this right now. I don't think it means that the bar was responsible for the actions the driver too," Puthoff said.
Attorney and former prosecutor Mindy Montford says the case will be tough to prove.
"The main problems are going to be proving that bartender had the knowledge that this individual given all the other individuals and everything that's going on at one particular time in an establishment knew that that person was so intoxicated, even knowing that continued to serve that person," Montford said.
"Number two they're going to have to prove that the bars had either just as much liability as the driver or more."
Barry who has filed lawsuits against other bars for injury crimes and won, says at least it will send a message, which is Ekia's family's hope.
"What this is saying is listen start serving more responsibility because I personally feel there is a real lack of responsibility in how bars serve their patrons," Barry said.
Austin Police have not released the blood alcohol content level or BAC of Cherry. The case is in the district attorney's hands pending more possible charges.