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Bars Over Serving Drunks

Driving Drunk cases commonly involve high-speed collisions, serious injuries or death and in many cases limited insurance coverage on the drunk driver.

Some drunk driving losses involve bar or night club liability known as dram shop liability.  These cases can be somewhat complex and require an experienced personal injury lawyer.

Dram shop acts followed the rise of prohibition. In the late 1800s, state legislatures began outlawing alcohol and 36 states ultimately ratified the eighteenth law, some states enacted dram shop acts to create a civil remedy for people injured by intoxicated bar patrons.

The cause of action, which was directed against the vendor (or dram shop) that sold, served, or provided alcohol to an intoxicated person, was named for the dram, a Victorian unit of measurement.

Today’s dram shops acts commonly include not only bars and liquor stores but also convenience and grocery stores with liquor licenses. The acts vary in the liability imposed on a vendor, with some holding vendors strictly liable for an injury to person or property and others imposing link between the vendor and your clients injuries that is strong a duty on a vendor not to imowingly sell or severe visibly intoxicated patrons the vendor knows will soon be driving.

States with no dram shop act (including Delaware, Kansas, Maryland, Nebraska, South Dakota, and Virginia) do not hold vendors accountable for injuries to third parties caused by intoxicated patron.

Nevada and Louisiana have anti-dram shop statues granting immunity to vendors for serving alcohol to adult patrons.

Texas Law provides a cause of action against the bar or alcohol provider, as long as the provider was not merely a private or social host of a private party, where the public was not served and no minor was served at that cased the loss from the private event.

The common law traditionally had little regard for dram shop actions. Courts found a lack of proximate cause between the vendors’ sale of alcohol and the plaintiff injuries and held, as a matter of law, that it was the patron’s alcohol consumption and not the vendors’ alcohol service that was the proximate cause of the injuries. This principle, coupled with a lack of foresees ability between the injuries and the alcohol service, led to holdings based on the concept of personal responsibility. Courts were reluctant to find vendor liability that would shift responsibility away from the drunk driver.

This major view began to shift in the 1980’s when courts began to recognize the importance of vendor responsibility.  Courts reasoned that, when a drunken patron has lost control of his or her reflexes, judgment and sense of responsibility, it become the vendor’s duty to stop serving alcohol.
Some states without dram shop acts where legislatures had either declined to enact or had repealed these acts also began to apply a common law negligence duty to vendors arising from statue, contract, relationship, or other circumstances. These state courts developed this common law liability because public safety was the primary concern. State courts relied on beverage control statues and criminal codes regulating the sale of alcohol to establish the negligence of a vendor to the general public. In considering the existence of a duty, these courts have considered whether these similar statues were designed to promote public safety, to protect an injured party, or to impose a duty on the vendor.

Generally, there is a criminal investigation in cases of driving under the influence (DUI) but that investigation may not extend to the bar where the alcohol was served. Further, evidence may be spread among law enforcement officers, court files and the prosecutor’s files. Bars may destroy inventory records and security videotapes after a short period. Witness may recall a heavily intoxicated patron a few weeks later but not a few months later. Credit card recipes, bar bills and a cell phone records can help establish a timeline for alcohol service, but quickly obtaining information connecting the drunk driver to the bar is the plaintiff lawyers’ most important task.

Video of the field sobriety test.  In most jurisdictions, DUI prosecutions are taken seriously and the information compiled for DUI cases is extensive. Drunk drivers are usually given a field sobriety test at the scene (often videotaped) to establish probable cause to give the driver a breathalyzer test. If the breathalyzer test is refused, the drivers’ blood may be drawn to establish blood alcohol concentration (BAC). Before filing suit, field sobriety videotapes may be obtained directly through a Freedom of Information Act (FOIA) request or state victim’s rights laws, and the tapes can be subpoenaed once the case has been filed.

Evidence of intoxication at the time of service. If there is no videotape at the scene of the arrest, other proof must be submitted to show intoxication. When a breathalyzer or BAC is available, the arresting officers can assist in establishing the BAC at the time of the collision.

A toxicologist can use credit card receipts, bar tabs, a timeline and the BAC to extrapolate the drunk driver’s alcohol level at the time the alcohol was served to him or her. A toxicologist can also explain to a jury what a signs of intoxication someone would exhibit with each drink, such as loud or slurred speech, lack of eye-hand coordination, and decreased motor function. Training in the safe service of alcohol usually includes how to identify the basic signs of intoxication, and a toxicologist’s testimony can demonstrate that a vendor was aware that a patron was intoxicated.
Video of the Breathalyzer test. The second kind of videotape evidence used in DUI prosecutions is generally recorded at the police station when the driver takes the breathalyzer test. The driver is read his or her Miranda rights and the officer administering the test engages the driver in a conversation, usually to demonstrate slurred speech. These videotapes are less helpful in proving the driver’s level of intoxication because of the time lapse between service and the collision, but they can be helpful if the officer asks the driver about the events may be insignificant in the criminal case, but hey can establish a timeline or critical facts in the dram shop case.

This was important in our case because the drunk driver could not testify about where she traveled after leaving the first bar, but on the video of her refusing the breathalyzer test, she recalled drinking in the second bar. This provided the proof necessary to hold the second bar responsible in the case.

The defendant in a dram shop case is generally not the drunk driver, this information is not available through standard adverse party discovery.

The current political and social stigma regarding drunk drivers can work against a dram shop case because juries have been indoctrinated by public campaigns related to personal responsibility, designated drivers and the dangers of drunk driving. The jury must directly relate the actions or inactions of the bar to the plaintiff’s injuries. Understanding the training in the food and beverage industry to prevent alcohol service to minors and intoxicated patrons, as well as vendor’s alcohol service policies and procedures, is an integral part of a successful case.

Many chain restaurants have computerized point-of-sale terminals that keep meticulous records of every sale.

The United States has a long and inconsistent relationship with alcohol-much of it reflected in the history of dram shops acts and that legacy lingers in juror’s perceptions of alcohol and drunk drivers. Mothers against Drunk Driving (MADD) claims almost 3 million supporters at the time when Anheuser-Busch had revenues of 36 billion and almost 11,000 people were dying in alcohol related automobile collisions annually!

The lawyer must consider the publics conflicting attitudes toward alcohol and the possibility of juror bias regarding alcohol and drunk drivers. Jurors may be MADD supporters and share a concern over the danger of drunk drivers, but they may also see drunk driving, but they may also see drunk driving as the responsibility of the driver, not the bar.

The challenge for the trial attorney is to determine how these conflicting perceptions will affect the case.

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