Businesses where alcohol is served, sold, or both have existed since at least 900 C.E. Getting home from the bar, tavern, or restaurant has always been complicated by inebriation. The advent of motor vehicles added danger for others, although the four-legged variety also exists as a hazard.
Businesses selling or serving liquor typically use an "obvious intoxication test" to determine if a patron is in danger of or has already been overserved. In addition, most states have dram shop laws, which can allow victims of drunk driving accidents to also file a third-party civil suit against the supplier of the alcohol.
Bars may also find themselves facing liability if a customer suffers alcohol poisoning or some other alcohol-related injury due to being overserved. Determining if a bartender, waitress, or bouncer should have known that a person should be cut off is often easier said than done. Since even a single injury or death to a friend or a loved one from a drunk driver is one too many, bars need to be vigilant in assessing the condition of their customers.
That's a Dram Shame
Bars have the difficult task of walking the fine line between allowing people access to alcoholic drinks, which is their main source of income, and knowing when to cut those same customers off when they've had too much.
At what point is a bartender liable for negligence because they're overserving alcohol to an intoxicated person who might subsequently get in a car accident from drunk driving?
Judging a person's sobriety without using a testing device like a Breathalyzer is not an exact science. Bartenders, wait staff, and bouncers have more experience than most when it comes to spotting signs of intoxication. But they don't know if the person was drinking before they arrived, if they're drinking on an empty stomach, and so on.
In addition to trying to avoid drunk driving accidents, bar owners are also motivated to keep from overserving customers to avoid being named in civil lawsuits under dram shop laws. While the name may sound like an obscure 1990s New Wave band, dram shop laws exist in more than 80% of U.S. states.
Their scope and strength vary by jurisdiction, but in general, dram shop liability laws allow the victim (or their survivors) to sue the person or establishment that overserved the drunk driver for damages. These include wrongful death claims and property damages, as well as medical expenses.
The damages paid out in a civil suit for a drunk driving accident might be split between the driver and the source of the intoxicating drinks, depending on state law.
Drunk driving accidents aren't the only way a bar can face liability for overserving patrons. A person who suffers an injury or ends up with alcohol poisoning from continuing to be supplied with drinks when they were clearly drunk may have grounds to sue the places they drank at as well.
However, many states limit or bar recovery for injuries to the intoxicated person themselves (first-party claims), especially if their own voluntary intoxication was the cause. States also follow different rules of contributory and comparative negligence. This means that someone who gets too drunk of their own volition can only recover damages proportional to another party's fault, or none at all.
One Bourbon, One Scotch, One Beer (and One Lawsuit)
So, what sort of sorcery are bartenders, bar staff, and bouncers supposed to employ to determine when a person has tipped over from functional to impaired? The "obvious intoxication test" is often the benchmark, which is similar to the "any reasonable person" metric used for other liability and negligence cases.
Simply put, if any reasonable person would say that another person is intoxicated and shouldn't be given any more alcoholic beverages, the bar's employees should be able to make the same determination.
However, it can be a rather subjective yardstick to measure by, and finding a bar liable under dram shop laws is not a sure thing.
While each state with dram shop laws has its own unique statutes, successfully proving liability often relies on proof that:
- There is a proximate cause between the alcohol sale and intoxication
- The bar sold alcohol to a visibly intoxicated person, which violates their duty of care
- Injuries were sustained either by or because of the intoxicated patron, such as in a DUI accident
- Intoxication was at least one cause of the third-party damages
Proximate cause is a key element here. Not all alcohol sales result in liability — there must be a foreseeable risk of harm.
Given that most people at bars are drinking, their own level of inebriation can undermine testimony to the intoxication of others. It is possible for bars to be exonerated from being the cause of a dangerous or lethal situation, as blood alcohol content (BAC) can be used to determine how drunk a person was and when.
While the overall number of drunk driving accidents has decreased due to more public awareness and increased law enforcement, over 30% of traffic accident fatalities involve at least one inebriated motorist. With it extremely unlikely that ignition interlock systems will be mandatory for all cars, bar employees will need to remain vigilant in spotting and cutting off those who have had too much.
Keep in mind that not only bars can be sued for injury related to someone being overserved. Social host liability laws mean that if an intoxicated individual leaves your house to drive home and causes an injury instead, you might be on the hook as well. As a host, it's a good idea to keep an eye on how much your guests are drinking. Collect car keys when your guests arrive, if necessary. Don't let last call mean the end of someone's life.
Related Resources:
Negligence and the "Reasonable Person" (FindLaw's Accident and Injury Law)
Will I Get My Underage Friend in Trouble if I Seek Medical Help When They Are Drunk? (FindLaw's Law and Daily Life)
Wrongful Death Overview (FindLaw's Torts and Personal Injury Law)
