Dram Shop Litigation

In the past decade a major body of law has developed around accidents involving people who have been served alcoholic beverages in restaurants and bars, the so-called “dram shop” cases. Our courts have determined that if the owner of a bar serves an alcoholic beverage to a driver who then has an accident, the owner may be liable for damages if the alcohol consumed at the bar has sufficiently impaired the senses of the operator to be a cause of the accident.

Stating the rule is easy, but proving “impairment” resulting from a specific drink can be challenging. Suppose an intoxicated driver has been to four bars prior to the accident; are all four liable, or only the bar that last furnished the drinks? Or, suppose the driver has had five beers at one bar and though he is “under the influence” when he goes to a nearby bar next, he holds his liquor well and shows no outward sign of intoxication; should the owner of the last stop be liable? Is it fair to hold liable the owner who serves a drink which caused a calm and still sober person (before the drink) to go over the edge? Under the Vehicle Code, the presumption of intoxication arises at a blood alcohol level of .10% which for some people might be two drinks; it is not unusual for many people to show no visible signs of intoxication at that level.

More difficult is the question of just what is “under the influence”; the criminal standard under the Vehicle Code does not necessarily apply to civil cases. There are those who argue that any ingestion of alcohol can impair the senses to some degree. Where is the line to be drawn, and how is any test to be applied many months later; especially if no police were called to the scene or where an unconscious driver has been rushed to a hospital emergency room, and circumstances make a blood test impractical?

Assuming that the proof is adequate to establish that a bar furnished the drink which was the “cause” of an accident, the jury awards can be quite large because they often involve serious injuries or death. And, the circumstances can border on the bizarre; for example, consider the case of the person who sits in a bar drinking for several hours, goes out and wraps his car around a tree, then sues the bar owner for letting him become intoxicated – and wins! Not an uncommon result.

Insurance premiums for many restaurants to cover this potential risk have risen precipitously to the point that they have literally driven some restaurants out of business. Since the Statute of Limitations for personal injury is two years, an owner may innocuously serve an unknown customer a drink in the middle of a busy evening, hear not a word for 23 months, and then be served with process in litigation involving serious injuries. Witnesses are long-gone, memories have faded, and the bar owner is faced with a very serious threat to his or her existence. It should surprise no one that insurers are loathe to write this type of insurance.

The regulation of alcohol and its use has always proved challenging; because of the potential risk to innocent people from its misuse, society has always countenanced a stricter standard of accountability among those who dispense it. Thus the evolution of the “dram shop” laws, problematic as they may be to administer at times.

Oh yes, about that quaint term: dram shop is an Eighteenth Century English term for barroom.
– Ken Butera

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