AUSTIN -- A family is fighting 6th Street bars after an accused drunk driver paralyzes and incapacitates their daughter. Kim Jenkins and Catherine Henry believe the driver, 25-year-old Lauren Renee Cherry, was over-served alcohol when investigators say she struck and nearly killed 13-year-old Ekia Smith.
Police were called to the Walnut Creek Crossing Apartments near Cedar Bend and Metric Boulevard around 2:30 a.m. August 18, 2012. Police say Cherry had fled the scene but was arrested when she returned to the apartments an hour later.
"A hard day for me was when I found out they had the school dance. I'm friends with her friends on Facebook. They were all posting, getting ready for the dance and I could hear her saying, 'Mom I need something to wear to the dance,'" said Kim Jenkins, talking about her daughter, Ekia Smith.
Instead, Ekia wore a hospital gown and a feeding tube. Her grandmother describes her as a happy teenager.
"Talkative, bubbly, intelligent, energetic with A, B Honor Roll," said Catherine Henry.
The volleyball player with dreams of becoming a DPS officer now has no brain activity.
"She had so many dreams and so many things she wanted to do," said Jenkins.
Jenkins says her daughter and four others were having a sleep-over. They went to the sidewalk at the front of the Walnut Creek Crossing Apartments to wait for a fifth friend to arrive. That's when investigators say Cherry was driving home from the bars. According to an arrest affidavit for Cherry, her car left the road and drove onto a sidewalk, hitting Ekia, knocking her into a metal fence, cracking her skull.
"When Miss Cherry hit my granddaughter, she destroyed all our lives. I think the bars care more about a profit. They really over-served her. It was like giving her ammunition to go out there and hurt herself," said Henry.
The family is suing the owners of two 6th Street bars, Barcelona and Toulouse.
"The reason we're doing this is not all about profit. There are so many deaths. Maybe some bar owner that has children will think first; maybe they'll think about a life over a profit," said Henry.
Brendan Puthoff is the owner of Barcelona.
"As a father and as a business owner this is my worst nightmare. I do believe that our staff was absolutely responsible in the service of alcohol. I do absolutely believe by and large our staff does the right thing identifying those people who are intoxicated," said Brendan Puthoff.
Carl Barry is the family's lawyer.
"A, you have got to drink and drive responsibly. It's getting out of control. B, there has to be a responsibility to serve responsibly as well. This woman was three to four times over the legal limit at the time of the accident," said Barry.
When doctors took Ekia off life support, they gave her 30 minutes to live. So far, she's lived 102 days in the hospital and three days at home.
"As a grandmother, I wish it was me and not Ekia," said Henry.
Ekia will need constant care. Her grandmother has converted her living room into a bedroom. Her mother cannot afford to stay home with her anymore.
"Sometimes I feel like she's already gone. I don't any other parent to go through this. Having traumatic brain injury, in her state, this will be her life. This will be her life," said Jenkins.
According to TABC, Barcelona has been clean since 2009. Toulouse, had several violations, including failure to report a breach, sale to a minor and sale to an intoxicated person. A spokeswoman for TABC says they conducted a source investigation into both clubs but did not obtain enough evidence to file a case against them. She says that means TABC could not prove the bars were at fault.