Most states have passed laws that impose liability on businesses that sell alcoholic beverages to people who are visibly intoxicated, such that if the person later causes a motor vehicle accident as a result of their intoxication the business may be held liable for injuries to persons other than the drunk driver who are injured in the accident. Most dram shop laws do not permit claims to be made by the injured patron, or restrict those claims to patrons who were minors at the time of the sale or service of alcohol.
These laws are often referred to as "dram shop laws", based upon the word "dram" which refers to a small serving of liquor. Although use of that word has become rare, as has reference to bars and taverns as "dram shops", the term continues to be used to describe these laws.
To prove liability under a typical dram shop statute, for a business to be liable for an accident that results from its sale of alcohol to a patron, it is necessary for the injured person to prove all of the following:
- The defendant business sold alcohol to the patron;
- The patron was visibly intoxicated at the time of the sale;
- The sale of alcohol to the patron proximately caused the patron's intoxication;
- As a result of the patron's intoxication, the patron subsequently caused a motor vehicle accident; and
- The plaintiff was injured as a result of the accident.
Some laws may provide a lower burden of proof when service of alcohol is made to a minor, or may allow minors to sue for their own injuries if they are inolved in motor vehicle accidents as a result of the service of alcohol by a commercial business. Some dram shop laws are very narrow, creating liability only where the business had reason to know that the patron was a habitual drunk, or where it can be demonstrated that the business had actual knowledge that the patron would soon be driving a motor vehicle.
In the absence of a dram shop statute, or where a state's dram shop law does not apply, it is generally difficult to prove liability for the service of alcohol to a patron who later causes injuries.
- Negligence: It is difficult to prove a liquor vendor's liability under a theory of negligence, as the patron's later decision to operate a vehicle while intoxicated will typically be regarded as a superseding cause, meaning that even if the store was negligent
- Recklessness: To succeed in a recklessness claim, it is necessary to prove that the defendant knew that the sale or service of alcohol to the patron posed a substantial risk to the lives and safety of others, and acted with a lack of concern for their safety.
In the absence of a dram shop law, even when a patron leaves a bar, gets directly into a vehicle, and almost immediatley causes an accident, even if it can be proved that the patron was served while visibly intoxicated, it can be very difficult to establish liability on the part of the bar. For a negligence-based claim, the bar can argue that it had no reason to believe that the patron was driving, or would not find a safe way to get home based upon his own awareness of his intoxication. The standard for proving negligence is high, and the bar can again argue that it had no reason to believe that the patron would act irresponsibly after leaving its premises.
As dram shop laws vary by state, and not all states have passed dram shop laws, when evaluating the potential liability of a liquor vendor it is necessary to look at the specific dram shop law for the state where an accident occurs.
Dram shop cases can be difficult to prove, as people who are involved in drunk driving accidents often consume alcohol in multiple locations. Even if the driver consumed alcohol in only one location, it may be difficult to prove where the consumption occurred or the extent of the driver's intoxication at the time of service.
Defenses to a Dram Shop Action
Common defenses to a dram shop case include:
- No proof of intoxication at the time of sale: Dram shop laws often require that the patron be so intoxicated that it will be readily apparent that service of alcohol to the patron will pose a danger to the patron or to others. Even if a law has a lesser requirement, it can be very difficult to prove the extent of the patron's intoxication at the time of service.
- No proof that the intoxication resulted from the sale: Many people who are involved in drunk driving accidents will be found to have consumed alcohol at multiple businesses, and possibly also to have consumed alcohol that they privately possessed. It can be difficult to establish when and where a drunk driver was last served.
- No proof that the bar was aware that the patron was a minor: If the patron used a false ID, and liability is premised upon the patrons' being underaged, the bar may be able to avoid liability by arguing that it reasonably relied upon the age listed on the false ID.
As dram shop laws are often narrowly drafted, the dram shop statute of any given state may also provide a liquor vendor with additional defenses.
Practical Difficulties in Dram Shop Litigation
The businesses most at risk of being sued for a dram shop violations are bars, particularly dive bars and bars that cater to younger (and perhaps underaged) consumers. As bars are aware of the potential for liability, they often structure their business operations so as to minimize their exposure to claims for damages. Thus, while a damage award from a death or serious injury could be well into the six or seven figure range, the defendant bar might turn out to be little more than a shell company with minimal assets.
For example, the business operations of a bar might be under a corporation that employs all of the bartenders and staff, and manages day-to-day operations, but may be leasing the premises in which it operates, all of its equipment, and even its glassware from one or more separate corporations. Faced with liability, the bar owner might be able to shut down the corporation that technically served the alcohol, create a new corporation, pick up the former corporation's leases, and continue to do business without missing a beat, even as the corporation that is liable for the injuries is left with little more in the way of assets than a small liability insurance policy.