On January 17, 2001, Joe's life changed irrevocably. Whileworking as a road flagman, Joe was struck, thrown more than 100 feet,and left for dead by a drunk driver who had spent the previous eveningand early morning hours drinking at a bar that he owned. The accidentleft Joe, a husband and father, a quadriplegic, unable to feel anythingbelow his chest or to move his arms and legs.
Several hours after the accident, the drunk driver turned himself in. More than 10 hours after the accident, a blood test revealed that his blood-alcohol concentration (BAC) was .12. The legal limit in Joe's state was .10.
Joe sued the driver and the bar, alleging that the driver was drunk long before he left the bar and should not have been allowed to continue drinking. Joe's expert toxicologist calculated that the driver's BAC when he was at the bar would have been .20 to .24. At those levels, the toxicologist testified, the defendant driver would have been visibly intoxicated.
The driver denied this, claiming that he wasn't intoxicated at the time of the accident, but that he drank a water glass full of whiskey after he drove home and before he turned himself in. The bar's insurance company refused to settle for the bar's policy limits, deeming Joe's case a "no pay" claim.
The jury found for Joe, awarding him more than 70 times the limits of the defendent bar's insurance policy.
Although Joe's accident is unfortunately common--of the 42,642 people killed in motor vehicle accidents in 2006, (1) more than 17,000 were victims of alcohol-related collisions (2)--its resolution is not. Several possible sources of recovery are available for a person injured by a drunk driver, including the defendant's car insurance, uninsured or underinsured motorist benefits, and victims' compensation funds; still, victims of collisions caused by drunk drivers are often not adequately compensated for their damages.
That is why dram-shop actions are important. As in Joe's case,when victims can prove that their injuries are a result of a barimproperly serving alcohol to a person who causes injury to himself orto another person, liquor liability actions can provide a critical meansof compensation.
Forty-two states and the District of Columbia impose dram-shop liability on liquor licensees. The rationale for enforcing such liability is that a license to serve alcohol is a privilege bestowed by the government with certain responsibilities attached.
This responsibility is often limited by legislatures in different states. When statutory caps are in place, they typically place limits on an individual's right to full compensation for the pain, suffering, and loss of life's pleasures caused by a drunk driver.
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Only eight states--Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota, and Virginia--have not passed dram-shop laws. The rationale most commonly cited by courts in these states for not imposing dram-shop liability is that the customer's consumption, not the bar's service, of alcohol is the proximate cause of the injury. (3)
In states that enforce dram-shop liability, the standard that most courts apply is visible intoxication. This standard removes from the liquor licensee the burden of scientifically determining a customer's actual level of intoxication and replaces it with a responsibility that is workable in a bar setting.
It's common knowledge that, as a general rule, the higher a person's BAC, the more intoxicated he or she will appear. Therefore, the more alcohol a person is served, the more the liquor licensee should watch for signs of intoxication.
Classic signs of visible intoxication, which every person who serves alcohol should be aware of, include
* consumption of large amounts of alcohol
* the odor of alcohol on the drinker
* slurred speech
* staggering gait
* poor hand-eye coordination
* glassy or bloodshot eyes
* loud and obnoxious behavior
* decreased ability to comprehend and follow instructions
* decreased motor function
* increased aggressiveness.
Bar owners and operators can monitor these signs by listening to customers, engaging them in conversation, watching what they are drinking, observing them as they walk to the restroom, and seeing if they can consistently put their drinks back on coasters or napkins. Additionally, bars can participate in several programs that give employees training to meet their responsibility to the public. (4)
Investigation
If the accident in your client's case is severe enough, the local district attorney's office will have conducted much of your investigation for you. Typically, you must wait for the criminal case to conclude to obtain these files. However, they usually contain a wealth of information, including the defendant driver's criminal history; the criminal charges; conviction or plea information; relevant accident data; vehicle black box data, if available; an accident reconstruction; witness statements; measurements and speed estimates; BAC levels; what and where the driver had been drinking; and a field sobriety report.
Written discovery. Through written discovery, request the following items from the bar:
* Surveillance video, which may show the driver's actions. Send a letter to all potential defendants at the investigation's outset, advising them that surveillance videos are critical evidence and should be preserved.
* Credit card receipts. These often provide good evidence of intoxication by showing excessive numbers of drinks ordered at one time; excessive tipping; and inappropriate completion of the receipt (writing the tip or total in the wrong place or signing the receipt in the wrong place).
* Training manuals, especially handbooks that outline the responsibilities of bartenders, waiters, and waitresses.
General interrogatories and requests for production of documents should al low you to gather most of the information needed to depose witnesses. Interrogatories can identify who was on duty at the bar at the time in question and what their roles were. Every bartender on duty then should be deposed.
Additional documentation. Consider retaining an investigator to obtain all public records on the bar. In Pennsylvania, for example, the state's liquor control board can provide a bar's liquor license applications, renewals, violations, and citations. A bar's owner usually signs these documents under penalty of perjury, so if the owner disputes the records, these documents may be used either in depositions or at trial against him or her.
Also obtain police reports from prior disturbances at the bar. Police may have had to remove drunken patrons, make arrests for disorderly conduct, or break up fights. The bar may be listed as the complaining witness on these reports. Use them to question the bar's owner or manager about the atmosphere encouraged or permitted there.
A visit to the bar in question also provides invaluable information--especially if you go at the same time of day or night that the drunk driver was there. You will be able to observe the bar's liquor-serving policies, its atmosphere, and the sight lines from the bar into the service area of the establishment.
Evidence
The most powerful evidence in these cases is direct evidence of the bar's service of alcohol to an intoxicated customer. However, bartenders, waiters, and waitresses will rarely admit to having served a patron who was visibly intoxicated. Usually, you will need to look to other sources of proof, such as the drunk driver's own admissions (perhaps obtained in the course of a criminal proceeding), observations of other bar customers and witnesses of the drunk driver's conduct at the scene of the accident, and opinions of expert toxicologists.
Identifying bar patrons who were there at the same time as the drunk driver can be challenging, but the prosecutor's file may help you if there is an underlying criminal case. A good private investigator familiar with the area around the bar can also identify the bar's usual customers on a particular night.
Credit card receipts or bar tabs obtained through written discovery may also identify other patrons. Depose any potential eyewitnesses about signs of intoxication the drunk driver exhibited as the bar continued to serve him or her.
Circumstantial evidence. Circumstantial evidence can be critical if no eyewitnesses are willing or able to testify that the drunk driver was visibly intoxicated while being served. Several states allow dram-shop liability in the absence of direct evidence that the bar served a visibly intoxicated patron. However, these states differ on whether circumstantial evidence is enough by itself or whether it must be coupled with expert testimony on BAC and visible intoxication at the time of service. (5)
Circumstantial evidence of intoxication can be deduced from a drunk driver's actions. Did the driver cross the center line of the road, drive the wrong way on a one-way street, drive at night without lights, strike a parked car or guardrail before the accident, or drive faster or slower than normal?
Additional circumstantial evidence can be deduced from whether the accident was immediately reported to the police (a drunk driver would hesitate to report the accident until he or she sobered up); whether the driver was dressed and acting appropriately at the accident scene; whether the road was straight or curved (if a driver cannot navigate safely on a straight road, it often indicates impairment); and whether the crash involved one or multiple vehicles (a single-vehicle crash implicates only the drunk driver).
Be creative with information gleaned from the prosecutor's file. If the accident involved a single vehicle, focus on the actions of the driver while drunk and sober. For example, during depositions, ask the driver if he or she was familiar with the area and ever drove on the road where the crash occurred while sober. If so, ask whether the driver had ever had trouble navigating the roadway or had ever had an accident there while sober.
Also ask how far the crash was from the last bar in which he or she was drinking--in other words, determine how far the driver managed to drive the night of the crash as opposed to the distance he or she may have driven safely while sober. Answers to such questions may be used as circumstantial evidence of intoxication.
Expert toxicologist testimony. Many jurisdictions permit testimony of an expert toxicologist. However, they vary widely in the proof they require for a "relation-back" analysis of a drunk driver's BAC. In relation-back testimony, an expert toxicologist gives an opinion, based on a BAC gathered after the accident, about what a drunk driver's BAC would have been at the time he or she was served at the bar. The expert should also be able to say that a person with such a BAC would have been exhibiting signs of visible intoxication while being served at the bar.
Relation-back testimony is most effective when used in conjunction with other evidence of intoxication at the time of service or shortly after. For instance, a toxicologist can use the driver's actions at the crash scene to support an opinion that the driver would have been displaying visible signs of intoxication earlier at the bar.
Bartender depositions. Be sure to depose every bartender on duty the night the drunk driver was served. Question them extensively about any training they received regarding the service of alcohol and their understanding of state law and the bar's policy with respect to service. These questions may help elicit important information:
* Does the bar encourage the sale of alcohol?
* What are the drink specials, and do they encourage people to drink more or bring in bigger crowds?
* Do large crowds make it more difficult to monitor for signs of visible intoxication?
* Are you trained to keep track of the number of drinks a patron consumes or to establish a baseline for a patron's behavior before the first drink is served?
* Does the bar enforce a drink limit, and if so, are customers permitted to drink more if they are not driving?
* Have you ever served a customer who appeared intoxicated?
* Have you ever had to cut off a customer from service? If so, how often and what is the procedure? Is a flag book or log kept, in which individuals are flagged for drinking too much, fighting, or failing to pay bar tabs?
Became bartenders seldom admit serving a visibly intoxicated patron, try to get them to agree that intoxication is a sliding scale. That is, people do not become visibly intoxicated at once. Rather, it's a process, and bartenders usually try to slow down that process before they stop it.
After the bartenders agree that intoxication is a sliding scale, occurring as a process, ask them what they do when they notice the first signs of intoxication. Some bartenders will answer that they will ignore the customer for a time or slow down service of alcohol. Those answers are admissions that they have violated the law, because they did not stop service entirely.
Knowing what behaviors a drunk driver is likely to exhibit while intoxicated will help you show how servers may identify intoxication. One government report demonstrated that different classes of people are more likely to show different signs of intoxication. (6) For example, a drunk young man is more likely to become aggressive, while a drunk older man is more likely to become amorous.
One study has shown that server intervention plays a small role in injury prevention, because servers have little incentive to cut off service to drunk customers. (7) Because bartenders rely largely on tips for their income, when a bartender is forced to cut off a patron, part of his or her income stream has been eliminated for that night, and possibly longer. To counteract the economic incentive to keep serving drunk patrons, the bar must have a strong policy that encourages servers to do otherwise.
Common defenses
Dram-shop cases are usually defended on several fronts. Defendants usually argue, first, that the patron was not served while visibly intoxicated; second, that even if the drunk driver had a high BAC at the bar, he or she was not visibly intoxicated because he or she is tolerant of alcohol; and third, that everyone in the bar was loud and having a good time, so nobody appeared overly intoxicated.
Bartenders are likely to say that they do not recall the plaintiff and that it is their policy not to serve anyone who is visibly intoxicated. To overcome this defense, present as much circumstantial evidence of intoxication as you can gather.
If you work with a toxicologist who conducts a relation-back analysis and concludes that the drunk driver was probably exhibiting signs of intoxication while drinking at the bar, the defense is likely to vigorously contest his or her testimony, arguing that it is impossible to know with any certainty the rate at which a person metabolizes alcohol. However, there are standard and accepted dissipation rates, which your toxicologist should be able to explain.
The second defense, tolerance, is based on the concept that the more a person drinks in general, the less likely he or she is to show visible signs of intoxication during any one drinking episode. The argument is that a person who is tolerant of alcohol may be impaired by drinking but is less likely to be visibly intoxicated.
Understanding this defense, some plaintiff lawyers choose not to ask drunk drivers about their drinking history. They reason that if the drunk driver testifies that he or she is tolerant of alcohol, the plaintiff must concede that the driver's BAC would have to be extremely high--usually higher than the test results showed--in order to display signs of intoxication that bar employees would be expected to notice.
There may be legitimate reasons to avoid asking about drinking history, although it may prove more helpful to get this information in discovery and then try to exclude it, via a motion in limine, if it is damaging to your case. Indeed, whether you ask questions about the driver's drinking history should depend on a variety of factors. For instance, the younger a person is, the less time he or she has had to become tolerant of the effects of alcohol. In addition, review the driver's criminal history: A person who appears sober while impaired should not have multiple arrests for alcohol-related offenses.
Finally, that a bar is noisy is more an excuse than a defense, although it can be used to your advantage. Dram-shop acts make no exception to liability for bars that allow a loud, boisterous environment, and even the rowdiest bars are responsible for carrying out their obligations under the law.
In a similar vein, the defense may argue that eyewitness testimony from bar patrons is not believable because they were intoxicated themselves. To defeat this argument, note that the defense is claiming that the driver was not served while visibly intoxicated, but at the same time it is claiming that everyone else in the bar was too intoxicated to provide credible evidence. This will help you show that the bar created an atmosphere that encouraged intoxication.
Dram-shop cases pose many challenges, especially because they often involve competing versions of the same story due to the effect alcohol has on memory. You need to thoroughly investigate the case, assess the credibility of individual witnesses, and work with qualified experts to develop the evidence you need to defeat defenses and get justice for your client.
Prepare your dram-shop case with resources from the AAJ Exchange
The AAJ Exchange can help members prepare cases involving dram-shop liability. For more information, visit www. justice.org/exchange, call (800) 344-3023, or send a fax to (202) 337-0977.
Documents and document sets
Gil v. Guzino. Request for attorney fees by the plaintiff's counsel, including a detailed summary of the strategies that led to victory, in a case alleging that an establishment served liquor to patrons whom it knew were intoxicated. (No. LR3933)
Hickingbotham v. Burke. The plaintiff's summons, brief, and amended summons in a case holding that New Hampshire recognizes social-host liability if service of alcohol was reckless. (No. LR2532)
Hilliard v. QMTD, Inc. The plaintiffs' complaint and the defendant's answer and amended answers in a case alleging dram-shop liability. The complaint alleged the bar had served alcohol to a patron who later drove a car that hit a man and his fiancee. (No. LR4073)
Marcellus v. Gridiron Sports Bar, Inc. The plaintiffs' petition and jury demand in a case that alleged driving while intoxicated and dram-shop liability. (No. LR2982)
Pickett v. Kroger Co. The plaintiffs' amended complaint, discovery requests, and trial brief in a case alleging sale of alcohol to a minor. (No. LR2066)
Super v. Agora Syndicate, Inc. The plaintiff's complaint, the defendant's motion for summary judgment and supporting memorandum of law, the plaintiff's response and memorandum of law in opposition to the defendant's summary judgment motion, and the reproduced record of the underlying case regarding coverage under a nightclub's commercial general liability policy in a case alleging bad faith and violation of the state unfair insurance practices act. The plaintiff claimed that the nightclub's insurer had failed to notify the club of its decision to deny coverage or explain the reasons for the denial. (No. LR3594)
Abstract set
A collection of verdicts, settlements, and opinions that have appeared in the Law Reporter from 1993 to the present involving dram-shop liability. (No. AS039)
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Notes
(1.) Natl. Hwy. Traffic Safety Admin., Motor Vehicle Traffic Crash Fatality Counts and Estimates of People Injured for 2006 (Sept. 2007), DOT HS 810 837, http://tinyurl.com/3xnlao.
(2.) Id. at 67.
(3.) See e.g. Wright v. Moffitt, 437A.2d 554 (Del. 1981); Bland v. Scott, 112 P.3d 941, 946 (Kan. 2005); Wright v. Sue & Charles, Inc., 749 A.2d 241, 243 (Md. Spec. App. 2000); Holmes v. Circo, 244 N.W.2d 65, 68 (Neb. 1976); Hinegardner v. Marcor Resorts, 844 P.2d 800 (Nev. 1992); Wegleitner v. Sattler, 582 N.W.2d 688, 691 (S.D. 1998); Williamson v. Old Brogue, Inc., 350 S.E.2d 621, 623 (Va. 1986); see also La. Stat. Ann. [section] 9:2800.1 (1997).
(4.) See e.g. Training for Intervention Procedures (TIPS), ServSafe (created by the National Restaurant Association Educational Foundation), and Responsible Alcohol Management Program (RAMP, created by the Pennsylvania Liquor Control Board).
(5.) See e.g. Pierce v. Albanese, 129 A.2d 606, 616 (Conn. 1957); Northside Equities v. Hulsey, 567 S.E.2d 4, 5-6 (Ga. 2002); Koshman v. Glass Pitcher, Inc., 334 N.E.2d 880, 885 (Ill. App. 1975); Delta TauDelta v. Johnson, 712 N.E.2d 968, 973 (Ind. 1999); Fandozzi v. Kelly Hotel, 711 A.2d 524, 527 (Pa. Super. 1998).
(6.) Natl. Hwy. Traffic Safety Admin., Host and Server Determination of Alcohol Intoxication Level DOT HS 807 639 (June 1990), http://ntl.bts.gov/ lib/25000/25800/25890/DOT-HS-807-639.pdf.
(7.) Katherine Ker & Paul Chinnoch, Intervention in the Alcohol Server Setting for Preventing Injuries, Cochrane Database of Systematic Reviews 2006, Issue 2, www.cochrane.org/reviews/en/ ab005244.html.
MICHAEL J. HOPKINS is an associate with Saltz, Mongeluzzi, Barrett & Bendesky in Philadelphia.