Freedom Line

The goals of dram shop liability bear a striking resemblance to most third-party torts — to remove blame from the responsible individual and get some money from a profitable industry in the process.

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Blame it on the Bars

By Erin Murphy

Nothing gets the plaintiffs’ bar going like alleged "evil empires" with deep pockets — big tobacco, gun manufacturers and profitable corporations are always at the top of the list. Not to be discounted is the alcohol industry, which has been battling dram shop liability claims for decades.

Under dram shop liability laws, a party injured by an intoxicated person can sue establishments contributing to that person’s intoxication. The possibilities for passing the buck are endless. Take two friends who go out drinking, get in a fight, and one punches the other. The injured friend can then sue the bar. Also, most dram shop laws cover serving alcohol to a minor. Thus in Texas, minors can sue a drinking establishment for their own injuries sustained while intoxicated. In other states, dram shop liability extends to serving the "habitually intoxicated." Accordingly, an alcoholic’s family can sue the bar that "let" him squander away the family’s savings.

The wide variety of dram shop laws across the states suggests that the extent to which bars may be blamed for a drunken person’s behavior at least gives some states pause. A couple of hold-out states impose no dram shop liability — most notably Nevada, whose tourist industry would probably go out of business otherwise. In another small group of states, such as Alabama, Alaska, and Michigan, liability is limited to illegal alcohol sales, such as serving minors or known alcoholics.

However, the vast majority of states allow for recovery simply when the defendant knew (or should have known) the customer was intoxicated — a fuzzy test in application. Imagine the typical weekend hot spot, where the interaction between the two bartenders serving about thirty patrons at once rarely amounts to more than a two-word order and a cursory "thanks." Perhaps patrons could shout "Bud Light" through a breathalyzer, or walk a straight line from one end of the bar to other to demonstrate their sobriety. What of customers who buy multiple drinks at a time? Maybe a few busboys could be set aside to follow them back to their friends and ask each one to stand on one foot and recite the alphabet.

Some states have at least attempted to address this problem through more exacting tests. Missouri’s recently revised dram shop law requires proof that the party demonstrates "significantly uncoordinated physical action or significant physical dysfunction." In Texas, a patron must be so obviously intoxicated that he presents a clear danger to himself and others.

Some states appear to have abandoned any pretext of fairness. Take Massachusetts, where a patron exhibiting "loud and vulgar" behavior was determined to be "visibly intoxicated," and a bar was sued for serving a customer who left, drank at two more bars, and then got into a car accident three hours later. In New York, toxicologists who never saw the "visibly intoxicated" patron are allowed to give their expert opinions on how anybody that drunk must have been showing it.

Then there are the extremes. Under Illinois’ dram shop law, plaintiffs can recover after demonstrating: 1) proof of sale of alcohol to the patron; (2) injuries sustained by the patron; (3) proximate cause between the alcohol sale and intoxication; and (4) that intoxication was at least one cause of the third party damages. Notably absent from that list is that the defendant knew or should have known the patron was intoxicated, meaning that every person who sold the patron alcohol, whether or not he was intoxicated at the time, can face some degree of liability. Thus a savvy plaintiffs’ attorney sues not only the local bar where the third party drank himself silly, but also the popular chain restaurant where he had a few drinks with dinner. Liability can then extend to casinos and convenience stores; one Illinois court allowed a lawsuit against a company that dropped off self-serve barrels of beer at a union picnic.

The goals of dram shop liability bear a striking resemblance to most third-party torts — to remove blame from the responsible individual and get some money from a profitable industry in the process. At least one can appreciate Illinois’ courts honesty in stating that the dram shop act is intended "to place responsibility for damages caused by intoxicants on those who profit from the sale of alcohol … [and] to protect the health, safety, and welfare of the people from the dangers of traffic in liquor." After all, everyone knows the real problem is not the person who has 15 or 20 drinks and then drives himself home, but rather the bartender who thought the patron’s friends were driving him home, or worse yet, the restaurant that didn’t realize it was the starting point for an all-night bar hop. At least Illinois courts understand that someone has to protect their citizens from the "dangers of traffic in liquor" — and it only takes one game at Wrigley Field to see what a good job they’re doing.

Whether dram shop liability actually succeeds in increasing responsibility among establishments serving alcohol is by no means clear, but one fact is certain. That people aren’t responsible for their own behavior when alcohol is involved is a message that no law should be sending.

Erin Murphy is a Contributing Editor with the Center for Individual Freedom.

[Posted January 29, 2004]

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