The JSH Reporter JSH Reporter - Fall 2017 | Page 21

FEATURED ARTICLE: DRAM SHOP
021
Common Law Standard: The common law standard does not
require that the patron be obviously intoxicated. Rather, a
licensee can be held liable if, from other facts, it should know
the patron is intoxicated, even in the absence of obvious signs
of impairment. The classic example is serving a patron 4 drinks
in 30 minutes, or multiple shots in a span of minutes. The
bar should know the patron will be intoxicated from the rapid
consumption of multiple drinks in a short time span. Bar owners
and other licensed sellers of liquor in Arizona have a duty of care
and may be held liable when/if they sell liquor to an intoxicated
patron or customer under circumstances where the licensee or
his employees knew, or should have known, that such conduct
creates an unreasonable risk of harm to others who may be
injured either on or off the premises. What Role does the Intoxicated Patron
Occupy?
Investigating the Insured Licensee Is the Intoxicated Patron the Plaintiff who
is Suing the Bar?
How a judge/jury/mediator perceives the merits of a dram shop
action depends heavily upon not only the precipitating actions
of the bar employees, but also on the bar’s culture, reputation
and alcohol-related incidents. Opposing counsel will make every
effort to portray the liquor licensee in a bad light. Consequently,
it is important to thoroughly investigate the licensee’s business
and operations by doing the following:
Covert inspection/surveillance: Often, when we are assigned
a new case, we are complete strangers to the bar owner/
manager. This allows us to make a personal covert visit to the
establishment before we meet with management to discuss the
claim. We get a “real life” picture of the culture, clientele, staffing,
operations, property configuration and location of surveillance
cameras. This allows us to be better prepared in asking key
questions, and also alerts us when the insured may be telling us
something inconsistent with our observations.
Personal Meeting with the Insured: This involves a formal
meeting at the bar with all managers and employees on duty
at the time in question. We educate them “collectively” about
the claim and AZ law before we meet with them individually to
discuss their knowledge and recollection of the particular events.
This meeting allows us to evaluate the strength, weakness and
effectiveness of their potential testimony, and what type of
physical impression they will make. We also discuss the role the
bar plays in the community such as sponsoring or hosting fund
raising and charity events, and sponsoring sports teams.
Other Information to Obtain from the Insured: (1) Employee
Work Shift Sheets; (2) Alcohol Service Training Certificates for
all managers, bartenders, and servers; (3) Employee Handbook;
(4) Bartender Manual; (5) Bar Incident Log Book; (6) Alcohol and
food sales for the night in question; (7) Credit card receipts and
cash sale records; (8) Photos of glassware used to serve drinks;
(9) Surveillance Camera Footage; (10) Marketing and Promotional
Materials; (11) Website, Facebook, Instagram and Twitter Posts.
Information to Obtain About the Insured from Other Sources:
(1) Local police calls to the insured property in a 2-3 year period;
(2) Crime Grid Activity Report for the square mile around the
Insured’s business; (3) Violations and Inspections from the State
Liquor Licensing Agency; (4) Local court search for prior lawsuits
and settlements.
Is the intoxicated patron a named Co-Defendant in the lawsuit?
Sometimes, the intoxicated patron is not named as a Defendant
in the lawsuit because he is remorseful about his conduct, and
will “own” responsibility for his actions. On the other hand, if he
makes an undesirable impression, opposing counsel will likely
want him in the lawsuit to “tarnish” the bar.
Has the intoxicated patron reached a settlement with the
Plaintiff, and if so, what are the terms? Is it a complete Release,
or is it a Covenant not to Execute? Are there cooperation clauses
in the settlement papers or supporting documents?
Is he charged criminally? Is the criminal case resolved or still
pending? If resolved, what statements did he make during the
criminal case, particularly in pre-sentencing? If criminal charges
are still pending, it is unlikely he can be deposed and, if he is,
he will refuse to answer most questions by claiming the Fifth
Amendment privilege.
Does the intoxicated patron “own” his decisions and conduct,
and express remorse? Or, is he angry at the bar and motivated to
take the bar down with him? Is he trying to avoid responsibility
and blaming the bar for his victimization?
Is the intoxicated patron a regular or frequent customer of the
bar, or a one-time stranger? What bar employees know or are
familiar with him? Has he been a problem patron before? Do any
bar employees connect with him on social media?
Best Practices for Deposing the
Intoxicated Patron
Whenever possible, the intoxicated patron should be the first
person deposed. We want to know his version of the events, and
whether he has his own agenda to serve in the context of the
lawsuit. We want to quickly discover the role he occupies in this
litigation.
From the onset, we should be candid about the civil lawsuit
against the bar and explain to him why the bar can be (and is
being) sued. If he is the remorseful type who “owns his conduct”
he may give testimony favorable, or at least not prejudicial, to the
bar.
If he has been criminally charged and/or convicted, we want to
cross-examine him on the results of the charges, his plea, his
statements and the terms of his sentence. A guilty plea is an
admission that he is responsible for the harm he caused.
His past drinking practices and behavior are vital. Is he an
experienced drinker who has developed a tolerance to alcohol,
and who can mask signs of intoxication at relatively high blood
alcohol levels? How often does he drink, where, and with whom?
Which family members and friends have seen him intoxicated
on other occasions? Is he a binge drinker? How many previous