HELP FOR THOSE INJURED BY NEGLIGENT ALCOHOL SALES OR CONSUMPTION.
Did you know you can have a civil case for money damages arising out of DUI related injuries?
OVER-SERVICE AT BARS OR RESTAURANTS
The beverage license is a privilege issued by the government. Its issuance is conditioned by the bar or restaurant's agreement to act in the public interest. In most states, employees of bars or restaurants are forbidden to sell alcoholic drinks to a patron to the point they are obviously intoxicated. Bars and restaurants have an obligation to provide training to their employees to look for signs of alcohol intoxication. If they fail to have such training or if they fail to stop serving a patron, and then, if that person creates an accident or kills someone on the road while driving, the bar or restaurant can be held responsible for these injuries. In some states a "first party" action can be brought if the person served is hurt in the accident while in other states only a "third party" action involving people hurt by the drunk driver can be filed.
Over-service can be shown in many different ways. If the drunk driver is far above the legal limit, if patrons of the bar noticed staggering or other signs of intoxication, if the credit card or purchase document show a significant amount of alcohol in a short period of time, if the person was so drunk they had to be kicked out by the bouncers then these things can be brought to bear in a civil lawsuit for monetary damages.
INJURY ARISING OUT OF ALCOHOL SALES TO THOSE UNDER 21 YEARS OF AGE
It is unlawful and negligent for any retail store, bar or restaurant to serve or sell alcohol to anyone under the age of 21. In virtually all states, if a person under 21 becomes intoxicated after being allowed to purchase or consume alcohol without their identification being checked, a civil lawsuit is allowed if that minor hurts or kills himself or others in a car accident. Most states allow for a lawsuit when an establishment allows an underage drinker to purchase alcohol after producing fake identification (that of a different person, different picture, out of state identification or any other identification card that looks suspicious). If someone becomes intoxicated under the age of 21 from such purchase and hurts himself or others there can be a civil lawsuit.
Thirty-eight states and the District of Columbia have determined that their public policy interests are better served by placing some responsibility for over-service or over-consumption on the alcohol server or the licensee through the civil justice system. These dram shop laws provide a plaintiff legal standing to bring a lawsuit against the bar or restaurant or store where the alcohol was purchased for an alcohol related injury or death. Most instances that bring rise to a civil dram shop lawsuit stem from a traffic crash. Other causes of action, however, relate to homicide, sexual assault, and other incidents where the intoxicated patron loses the ability of self-regulation.
Standards for dram shop lawsuits vary widely among states. Those standards include prohibitions of service to intoxicated, visibly intoxicated or obviously intoxicated patrons, or when it should have been known that the patron was intoxicated. One state prohibits service to a drunken person in a criminally negligent manner. Another allows a civil action when the service was to a person clearly intoxicated. Several states require proof that the alcohol service was done in a reckless manner or that the alcohol was provided with reckless disregard to the rights of others. Other states require proof that the patron was intoxicated to the extent he or she presented a clear and present danger to self or others. Florida allows a dram shop action only when the alcohol service was to someone habitually addicted to alcohol. This standard is particularly difficult because alcoholics do not carry or present identification cards identifying them as such and rarely make self-admissions to bartenders.
CASES INVOLVING "SOCIAL HOST LIABILITY"
In many states, civil liability for injuries can be established if homeowner serves or over-serves alcohol to a social guest. The most common type of this type of social host problem is when a parent allows a high school son or daughter to have a "keg party" allowing minors to become intoxicated and kills himself or others when driving. However, liability for over service of an adult can also be pursued if that adult is allowed to drive and causes a serious accident or injury. In many instances with social situations, a friend or family member knew or should have known that the person being served is obviously intoxicated, might have a high tolerance for alcohol without having obvious affects, or that a person is on medications and should not be drinking.
Beverage retailers should have written policies that address, at a minimum, the prevention of the sale of alcoholic beverages to persons under the age of 21, including an apparent age that triggers an ID request, acceptable forms of identification, and how to properly examine and verify an ID; and policies to prevent over-service and service to an intoxicated patron including identification of an intoxicated patron, identification of a patron habitually addicted to alcohol, discontinuance of alcohol service and the provision of alternate transportation. When a beverage retailer does not have written policies, application of responsible retailing practices will be inconsistent and will be subject to the interpretation of the individual employees. Servers and bartenders will have no point of consistent reference guiding their actions and behavior. In fact, their interpretation may even vary from day to day without the consistency provided by a written policy. The lack of written policies also limits the licensee's ability to provide effective and consistent oversight and employee training.
The business practices of bars and restaurants should be designed to mitigate the risks presented by the business model, clientele, location, and environment. Beverage licensees have an obligation to prevent law violations regardless of the size of their establishment or their success. For example, happy hour and other gender, price, time, or quantity based drink specials and promotions are legal, however, they contribute significantly to the probability of patron over-service and service to minors. The court will look at these practices to determine if the beverage retailer appropriately scaled their intervention and prevention practices in response to the risks at their business. While many beverage retailers will seek to explain that they were unable to adequately control consumption by minors or over-consumption in their establishment because they had 1000 patrons going to 5 internal bars, dram shop liability does not diminish simply because the business is financially successful. Responsible retailing practices are scalable to meet the risks, if the retailer chooses to utilize them.
CASES INVOLVING ALCOHOL SERVED AT BUSINESS EVENTS
Many businesses host dinners, cocktail parties, and other get-togethers at which alcohol is served. Some of these events are catered and some involve employees self-serving themselves alcoholic drinks. In either instance, if an employee over-indulges and become intoxicated, leaves the party and becomes a menace on the road causing injury, the business can often be held responsible. A person or corporation putting on a business party has an obligation to reasonably monitor the consumption of alcohol at their event. Service should be terminated to persons who show obvious signs of intoxication. Such persons should be assisted in finding alternative transportation to driving home.
NON-AUTO ALCOHOL RELATED INJURIES
The negligent service of alcohol can come into play in a number of other contexts. Some examples include:
- An intoxicated person is allowed to buy a gun and then they shoots someone.
- Someone is over-served alcohol and commits assault or rape
- Someone who is over-served and crashes a golf cart
- Someone falls and is injured after over-service
- Alcohol is involved in off-road ATV or other type of accident.
WHY IS TIME OF THE ESSENCE?
It is extremely important to move quickly in these type of cases for the following reasons:
- Video/digital surveillance is present in most retail stores at the point of purchase. However, these records may only be kept 30 to 90 days and must be requested for them to be preserved. Likewise, video surveillance tapes often exist in bars which can show the pattern of over-service to a patron.
- The receipts of alcohol purchases are important and must be obtained and kept. Often the receipts will falsely claim the I.D. has been "checked or verified" when in fact that does not occur.
- Often a drunk driving defendant who has caused the injury will have a court appointed or privately obtained criminal attorney. It is important to make contact with the criminal attorney before the criminal case is resolved to ensure possible cooperation.