Dram Shop Lawsuits: Third-Party Liquor Liability & Crime

When drunk drivers get behind the wheel and hit the road, their criminal actions can have devastating consequences – both for accident victims and their families. The criminal justice system, however, isn’t equipped to handle the full scope of damage that a serious car accident causes.

Police officers, investigators and criminal prosecutors are experts in holding drunk drivers accountable to society, punishing offenders for their unsafe decisions. Accident survivors, though, along with their families, can feel left behind as the prosecution reaches its conclusion.

Compensation Within The Criminal Justice System

Despite its obvious dangers, drunk driving remains an extraordinarily large problem in the United States. Government estimates suggest that up to 300,000 people hit the road under the influence of alcohol on a daily basis.

Nearly one-third of all motor vehicle-related deaths involve alcohol-impaired drivers, according to statistics from the Centers for Disease Control & Prevention. That amounts to over 10,000 people, every year, who are killed in crashes caused primarily by a driver’s intoxication. Thousands more are left to battle severe injuries.

Severe car accidents leave millions of drivers, passengers and pedestrians struggling to deal with life-changing physical injuries, lasting emotional trauma and a mountain of new financial obligations.

Restitution

Long-term support is hard to come by. Some victims will be lucky enough to secure financial restitution as an element of the drunk driver’s court sentence.

This form of compensation is rare – most survivors will have to demand restitution from their judge. It’s also relatively limited, covering only out-of-pocket losses that can be proven with a receipt or bill. That leaves compensation for physical pain and emotional suffering out of the equation entirely.

More importantly, restitution hinges on whether or not the drunk driver is convicted in the first place – a resolution far less common than you might expect. In fact, Mothers Against Drunk Driving has found that the average drunk driver has driven under the influence of alcohol more than 80 times before their first arrest, to say nothing of their first conviction.

Victim’s Compensation Funds

State-operated victim compensation funds make up for this problem, offering survivors and their families a measure of financial security without the requirement of an arrest or conviction. It cannot be said more clearly: these compensation programs help thousands of crime victims every year and represent a major improvement over the criminal justice system of previous decades.

It’s also true, however, that compensation funds, just like court-ordered restitution, leave much to be desired. Victim compensation programs act as a safety net, catching survivors who would otherwise be left impoverished after a crime. They only cover necessary financial losses and could never be considered a source of long-term financial support.

How Civil Lawsuits Help Crime Victims Recover

The only way that most crime victims, including survivors of drunk driving accidents, secure lasting compensation is by filing a civil lawsuit. Likewise, families who have lost loved ones in car accidents may be eligible to pursue a wrongful death lawsuit, demanding compensation from those parties responsible.

There’s no excuse for getting behind the wheel when you shouldn’t. Nor should we be lenient with bars, restaurants, and nightclubs that serve people alcohol in violation of the law. Thankfully, we don’t have to be. Today, 43 states and the District of Columbia have some form of dram shop law, allowing injury victims to hold alcohol retailers accountable for serving intoxicated patrons.

In practice, most dram shop lawsuits will include claims for compensation against both an alcohol retailer and the drunk driver. For obvious reasons, this “dual claim” model may not be possible in cases when the offender cannot be identified, like hit and run accidents.

Dram Shop Laws

While these laws can differ in dramatic ways, altering a plaintiff’s legal position, their basic form is consistent. The vast majority of states hold establishments that are licensed to sell alcohol to a high legal standard.

As a result, victims often have the right to secure compensation from licensed establishments that serve alcohol to patrons who go on to commit crimes, like causing an accident under the influence.

This right isn’t comprehensive. Most state laws, for example, apply an “obvious intoxication” or “apparent intoxication” test to judge whether or not a retailer was negligent in serving alcohol.

In most cases, an alcohol retailer (including liquor shop cashiers and bartenders) cannot be found to have served alcohol negligently unless the patron was obviously intoxicated at the time of serving. Other states restrict these lawsuits further, allowing only claims in which an underage drinker is served alcohol. A small minority of jurisdictions allow dram shop lawsuits in all situations, regardless of the offender’s age or state of intoxication.

Though they obviously overlap with criminal statutes, dram shop laws are not criminal laws. They can only be enforced through civil lawsuits. In fact, their true purpose is to grant injury victims the right to file a civil lawsuit against an alcohol retailer whose negligence led, however indirectly, to severe injuries.

Liquor-Related Negligence

Negligent alcohol service can be difficult to prove in practice. It usually comes down to a bartender or retailer’s failure to notice the visible signs of intoxication. Most cases will rely on the testimony of eyewitnesses to show that the patron in question appeared drunk, but was served more alcohol anyway – a clear violation of every state’s laws.

The final step is to prove that the patron’s intoxication had some causal relationship to the accident or assault in which a victim was injured, along with a demonstration of how the victim’s injuries resulted in financial damages.

Examples Of Bar & Restaurant Negligence

Note, as a point of clarification, that it’s not necessary to prove that a bartender knew a patron was drunk. The standard that courts use will be whether or not the bartender should have known that the patron was intoxicated. Moreover, serving a visibly-intoxicated patron isn’t the only form of negligence for which licensed establishments can be held liable:

• Serving someone without requesting proof of identification
• Serving someone after the bar or restaurant’s closing time
• Serving someone an amount of alcohol likely to make them intoxicated
• Offering a happy hour special in states where happy hours are illegal

In the same manner, some state laws define a number of facts that could reduce a licensed establishment’s liability, like promoting non-alcoholic beverages or having servers go through an accredited education program.

Visible Signs Of Intoxication

The definition of legal intoxication, unlike other criminal acts, is nearly identical across all 50 states: a blood alcohol concentration (BAC) over 0.08 percent. Utah is the only exception, where, in 2017, Governor Gary Herbert signed into a law a bill that lowered the State’s blood alcohol content limit to 0.05 percent.

While BAC is the hallmark of legal intoxication in criminal courts, it usually doesn’t enter civil courtrooms. There’s just no feasible way for a bartender or liquor store cashier to check someone’s BAC. Instead, civil courts look to obvious visible signs of intoxication:

• Blood-shot eyes
• Slurred speech
• Loud, boisterous behavior
• Stumbling or instability on one’s feet

These are just the basics. Many states, like Oregon, provide even more specific guidance, supplying licensed drinking establishments with extensive lists of things to look out for. Oregon’s list includes 50 different signs of visible intoxication, instructing bartenders and liquor shop owners to educate themselves on their legal responsibilities and protect public safety.

Injuries Involving Intoxicated Minors

Minors are a different story. The majority of states remove the “visible intoxication” requirement when someone under the age of 21 is allowed to purchase alcohol. Since serving a minor is always illegal, whether or not the minor is already drunk, alcohol retailers can be held partially accountable for the subsequent actions of an intoxicated minor.

First-Party Dram Shop Lawsuits

Most dram shop lawsuits are filed by people who were injured by an intoxicated person’s actions or mistakes, but that might not be the only option. Several states have outlined a second cause of action, allowing intoxicated patrons to sue negligent bars or restaurants themselves.

In these “first-party” dram shop claims, the plaintiff argues that, despite being visibly intoxicated, a licensed retailer continued to supply them with alcohol, a fact that exacerbated their intoxication further and ultimately led to personal injuries.

Most states only allow this sort of lawsuit in specific circumstances, namely when a minor is illegally served alcohol and ends up hurting themselves.

Assault & Battery

Dram shop lawsuits can also be filed over injuries sustained in bar or nightclub fights. When an intoxicated patron ends up lashing out at someone else, the establishment can be held accountable for violating any applicable state liquor liability laws. This liability may even extend to fights that break out on the street.

Histories Of Violence

The duty to protect patrons is even higher in bars or nightclubs where fights or other outbreaks of violence are common. In more-dangerous establishments, property owners have a substantial legal duty to establish appropriate security procedures:

• Using plastic cups, rather than glass, to reduce the risk of serious injury
• Employing multiple bouncers
• Hiring licensed security guards

As in the case of drunk driving, assailants are almost always liable for civil damages when they attack or otherwise injure someone else. These cases, however, in which the attacker becomes the defendant, can be hard to get off the ground.

When the assailant doesn’t have insurance or personal assets to cover the victim’s losses, it’s usually not economically feasible to pursue them in court. That’s why many injured victims turn their attention and resources to suing the establishment that served the attacker, rather than the attacker him or herself.

States Without Dram Shop Laws

To date, only eight states have failed to recognize the importance of holding negligent alcohol sellers liable for injuries that their patrons cause:

• Delaware
• Kansas
• Louisiana
• Maryland
• Nebraska
• Nevada (rare exceptions for injuries caused by underage drinkers)
• South Dakota
• Virginia

In these states, alcohol retailers cannot be held liable for the actions of their patrons, no matter how negligent the establishment was. The assumption, for these jurisdictions, is that the consumers of alcohol, rather than servers, should bear the burden of any liability for injuries and property damage caused by their actions. Again, this still leaves the door open to a personal injury lawsuit against the drunk driver or assailant.

Social Host Laws

Some jurisdictions have extended, with important variations, the liability that covers licensed alcohol retailers to people who host social gatherings. Under a number of state-based social host laws, social hosts can be held accountable for providing minors with alcohol.

If a minor is injured, or injures someone else, due to intoxication, the private homeowner or party holder responsible for serving the alcohol could be on the hook for monetary damages.

Does Social Host Liability Cover Intoxicated Adults?

In a select number of states, this social host liability is even broader, covering visibly-intoxicated adults who are nonetheless given alcohol. To hold a drunk driver accountable under social host laws, plaintiffs generally need to prove both of the following facts:

• the host knew their guest was already intoxicated
• the host had reason to believe that their intoxicated guest would be driving soon

As we’ve already mentioned, social host laws vary widely from state-to-state. Some jurisdictions have even passed laws to grant social hosts broad immunity from lawsuits. Most rule out the possibility of “first-party” claims, in which an intoxicated guest would sue a social host for providing alcohol.

More Dram Shop Resources

• Dram shop liability for bar fights
• Drunk driving accidents
• Social host liability