Do you think that businesses that serve alcohol should be liable if one of their customers injures someone while driving drunk? Dram shop laws establish the liability of liquor stores, taverns, restaurants, and other businesses that serve alcoholic beverages. A “dram” is a small amount of liquid. Generally, if a business serves alcohol to a visibly intoxicated person, that business is liable if the person injures someone while drunk. Serving alcohol to a minor who subsequently causes injury may also result in dram shop liability. Finally, if a bar serves alcohol to a “habitually intoxicated” person, dram shop liability may apply. The laws vary from state to state.
Establishing visible intoxication can be challenging. Ideally, the customer will admit to excessive drinking, but that does not necessarily equate to visible intoxication. Eyewitness testimony can help establish that the customer was behaving erratically, an indicator of visible intoxication. Police often conduct field sobriety tests after a crash. This can show that the driver had red and/or watery eyes, alcohol on his or her breath, was unable to walk steadily, etc. The closer in time these tests are to when the driver was served alcohol, the easier it will be to prove the driver was visibly intoxicated when served. The blood alcohol reading is another important piece of the puzzle. An accident reconstruction expert may be able to show that the driver’s speed was extreme. This is additional proof, albeit indirect (circumstantial), of visible intoxication.
Some criticize these laws based on concern for personal responsibility. They feel that the drunk driver alone is legally responsible for his her actions. The critically injured plaintiff, though, may wish to pursue a “deep pocket” (the bar) if the driver’s coverage is inadequate. Bars and restaurants typically have more liability insurance than individuals. One million dollars is a typical amount. Without this coverage, the bar or restaurant could be put out of business by a large verdict.
Under joint and several liability laws, the insurer for the business may have to pay the lion’s share of a verdict if they are proven to be as little as 1% at fault. These laws vary from state. Is this fair? To the business and its insurer it may not seem so. But it is to the catastrophically injured plaintiff. States that apply a 1% rule consider it in society’s interest for the injured person to be fully compensated, even if the insurer for a party that was only minimally responsible has to pay most of the verdict. In most states, including Pennsylvania, this rule has been eroded. See http://www.pajustice.org/PA/index.cfm?event=showPage&pg=LegislativeAlerts.
A True Story
Every once in a while an event occurs that reminds me why I went to law school. I recently attended a sentencing hearing in a drunk driving case. The driver was nearly triple the legal limit when he crashed into another car at 103 mph. The car overturned and an innocent man lost his life. I represented his estate in a claim against the driver and the bar that served the driver alcohol while he was visibly intoxicated.
At the hearing, the driver and several members of his family testified. There were many expressions of sorrow and regret. Both families were devastated and the tears flowed—not just between the two families. In the end, after 90 minutes of wrenching testimony, the judge handed down the sentence that both sides had agreed to in advance, 5½ years in jail. Why go through this intense hearing? What good was served?
At the hearing, the driver and his family were able to express their deep and genuine sorrow and regret to the deceased’s family. After the driver was led away by deputies, the families met in a private room. They spoke from the heart, embraced, cried together, and spoke of ways to keep the dearly departed in their memory. They gathered together in a prayer circle, hand in hand. I believe that for both families, true healing began that day. It was a blessing to have been a part of a legal process that worked to the benefit of all.
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