Question

Background Information: Jack owns a pub. One evening, Jim, a friend, comes into the pub and orders a drink. Over a period of approximately two hours, Jim orders and drinks a variety of alcoholic beverages. Shortly before the pub closes, Jim pays for his drinks and leaves the pub. Jim gets into his car and drives away. On his way home, Jim is involved in a motor vehicle accident. Assignment Questions:

1. Explain the nature of the tort that Jack would be found to have committed.

2. Are there any defences available to Jack? Explain what these defences are.

Answer 1

1. Nature of tort Jack is found to have committed:

A "dram shop law" is a law that governs lawsuits over injuries caused by people who bought alcoholic drinks at bars or restaurants. All states have dram shop laws.

A dram shop case is a lawsuit against a bar, tavern, restaurant, or other establishment that sells alcoholic drinks, brought after one of the establishment's patrons got drunk and got into an accident.

If you get hit by a drunk driver and can prove that the driver got drunk in a bar, you may have a dram shop case against that bar, depending on the evidence.

There are two main types of dram shop cases, first party dram shop cases and third party dram shop cases.

First-Party Dram Shop Cases

A “first party” dram shop case exists when the injured plaintiff is the person who was sold the alcoholic drinks. Some states explicitly bar first party dram shop cases.

Even where state law allows such a claim, first party dram shop cases are very difficult to win. The reason is that juries tend to think that people should be responsible for their own actions. If someone gets drunk at a bar, drives away, and gets into a car accident, that person is going to have a very difficult time convincing a jury that it was the bar, and not the person him/herself, who should be responsible for his/her injuries.

There is one exception to this rule -- first party dram shop cases involving minors. If a minor child is served at a bar, gets drunk, and gets injured, juries will often hold the bar responsible.

Third-Party Dram Shop Cases

A “third party” dram shop case exists when the injured person is someone other than the drunk person. So, if you are hit by a drunk driver, and the driver got drunk at a bar, you would potentially have a third party dram shop case against the bar.

Dram Shop Laws

Dram shop laws usually spell out one or more of the following legal issues:

• the legal standard that a plaintiff must meet in a dram shop case
• key evidence in a dram shop case, and
• the maximum damages in a dram shop case

The Legal Standards in Dram Shop Cases

Generally, a plaintiff in a third party dram shop case need only prove that the defendant bar was negligent. Proving negligence in a dram shop case generally boils down to proving that the bartenders/servers continued to served a patron that they knew or reasonably should have known was drunk.

Some states allow for enhanced damages if the plaintiff can show that the defendant’s actions were reckless. A reckless action is more “unreasonable” than a negligent action. A reckless action is when a person knew or should have known that his or her action was likely to be unreasonably safe and went ahead and did that action anyway. Plaintiffs in a first party dram shop case often don’t have a choice; they generally have to prove that the defendant bar acted recklessly.

Important Evidence in Dram Shop Cases

Dram shop laws often identify certain types of evidence as being particularly significant with respect to the bar’s liability. For example, some dram shop laws state that the following is evidence that the bar was negligent:

• the bar served someone without requesting proof of age
• the bar served a person who appeared to be intoxicated
• the bar served someone after closing time
• the bar served someone who would likely become intoxicated as a result of the amount that was served to that person.

Dram shop laws also may outline evidence that may show that the bar was not negligent. For example, the following policies are the types of policies that may be admissible at trial as evidence that the bar was not negligent:

• the bar sends its servers to an approved server education course
• the bar encourages its customers not to become intoxicated
• the bar promotes the availability of nonalcoholic beverages
• the bar encourages its customers to take a taxi home if they have had too much to drink.

Damages in Dram Shop Cases

Some states place caps on the amount of injury compensation (damages) that a plaintiff in a dram shop case can be awarded. These caps can be as low as $250,000.

Notice Requirements and Shorter Statutes of Limitations in Dram Shop Cases

Some states have mandatory notice requirements that can be as short as 60 days. This means that the injured person has to give formal written notice to the bar within 60 days of the accident that he/she intends to file a dram shop claim against the bar.

A statute of limitations sets the length of time that an injured person has to file a lawsuit against potential defendants. Depending on the type of claim and the state, statutes of limitations can range from one to six years. But some states have shorter statutes of limitation in dram shop claims than for general personal injury claims. To find the standard (not dram shop) time limits for each state.

Each state places a time limit on filing a personal injury case after you've been injured.

Each state has a law that sets a deadline for filing a personal injury lawsuit. These laws are called statutes of limitations, and the "clock" typically starts running on the day of the accident or injury that triggered the lawsuit. If you don't go to court and get your case filed before the deadlines listed below, you'll likely lose your legal right to bring a lawsuit over the incident.