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Parents of Elkhorn High student who died in 2018 sues Kwik Shop for supplying alcohol
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Parents of Elkhorn High student who died in 2018 sues Kwik Shop for supplying alcohol

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The parents of an Elkhorn High School student killed when he drove off the road after consuming alcohol that was sold by a Kwik Shop clerk have filed a wrongful-death lawsuit against the chain.

Jessica Kinnersley filed a lawsuit this fall on behalf of the estate of George Gervase, the 17-year-old who died in October 2018 after his Nissan Maxima left the road and hit a pole near 192nd and Pacific Streets. Kinnersley, George’s mother, was joined at a hearing Thursday by George’s father, George Gervase Sr.

An Omaha police investigation determined that a Kwik Shop clerk sold alcohol to two teens who then turned around and sold it to George Gervase. Gervase’s blood alcohol content was .217. The legal limit for adults to drive is .08.

The lawsuit alleges that Kwik Shop failed to adequately supervise the clerk, Kevin Hart.

Kevin Hart

Hart

“Kwik Shop did little to nothing to investigate or identify sale of alcohol to minors, and did little to nothing to properly train (employees) or restrain employees from selling alcohol to minors,” attorney Daniel Fischer alleges in the lawsuit.

Kwik Shop asked Judge Timothy Burns on Thursday to dismiss the case. An attorney for Kwik Shop, Matthew Rusch, said Gervase’s family cannot collect because of a law passed by the Nebraska Legislature in 2007.

That law holds bars and liquor stores responsible for deaths or injuries to third parties as a result of a crash caused by a drunken teen. However, the law has a carve-out that says that liquor stores don’t have to pay for the death of the intoxicated minor himself.

“No cause of action under the Minor Alcoholic Liquor Liability Act shall be available to the intoxicated person, his or her estate, or anyone whose claim is based upon injury to or death of the intoxicated person,” the law says.

“This is a terrible, tragic situation,” Rusch said Thursday. “It’s a terrible event, and Kwik Shop extends its condolences. But that being said ... we have to look at Nebraska law. ... And in looking at Nebraska law, it’s clear there is no recognized cause of action.”

Fischer disagreed. He argued that the 2007 law does not prohibit the estate from attempting to collect under common-law arguments that Kwik Shop was negligent in selling to a minor.

George I. Gervase

Gervase

Burns will decide in coming weeks whether the lawsuit can proceed.

Coincidentally, Burns oversaw the criminal case against Hart. Burns sentenced the 30-year-old Hart to a year in prison and 18 months of supervised release after he pleaded no contest to procuring alcohol for a minor. Having completed his year in prison, Hart is currently serving his parole term.

Hart told the judge at the time of his sentencing that he had been using illicit drugs, which may have affected his decision-making.

“I cannot begin to express how sorry I am,” Hart said at sentencing. “It was the single most unintelligent and moronic action I’ve made in my life. It’s the first thing I think of when I wake up and the last thing I think of when I go to bed. ... I know I can never undo (it).”

From late August until Oct. 11, 2018, the teens, ages 16 and 17, bought alcohol from Hart at the store more than two dozen times. At times, the teens would text Hart.

“So can we come in and buy alc?” one text read.

“Yep, just got in,” Hart responded.

That night, Gervase had contacted the boys through Snapchat to request two kinds of liquor — Four Loko Gold and Captain Morgan.

The boys went to the gas station. Hart hit a button on the cash register that allowed him to override the age check.

The boys turned around and sold some of the alcohol to Gervase and his friend. Surveillance video from Elkhorn High School showed a white pickup truck meeting a dark-colored car — thought to be the Nissan Maxima that Gervase was driving — in the parking lot about 11:45 p.m.

From there, Gervase and his friend ended up at a female teen’s house, where a group of teens had gathered. Most of the teens were drinking excessively, an attorney has said. A stepfather of one of the girls came downstairs to find a group of drunken teens and kicked them out of his house.

No one is sure what time Gervase crashed.

An accident reconstruction expert determined that Gervase was headed south on 192nd Street, traveling at a high speed, when his car left the roadway.

Gervase wasn’t spotted until dawn.

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Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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