The JSH Reporter JSH Reporter - Fall 2017 | Page 22

FEATURED ARTICLE: DRAM SHOP
022
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.
times has he become intoxicated and driven a vehicle? How
many times has he refused rides when intoxicated, and why? Did
he ask for alternative transportation in this case and, if not, why
not? In this case, did he attempt to hide his intoxication from bar
employees?
What were the details of his presence in the insured’s bar?
What opportunity did he give bar employees to discover he was
intoxicated? Who did he mingle and communicate with while at
the bar? Did he make phone calls or send text messages?
Does he own and use a smart phone? Does he keep the
GPS turned on? Is his smart phone still available for forensic
download?
Best Practices for Deposing Other
Witnesses
Potential witnesses in a dram shop lawsuit include other
individuals who were at the bar (likely consuming alcohol
themselves), bartenders and servers, individuals who saw
the accident/fight or came upon it shortly afterward, law
enforcement officers who investigated the accident/ incident,
and family members and friends of the intoxicated patron.
Although all of these individuals may have observed or
interacted with either the injured party or the intoxicated patron,
their recollection and testimony can be drastically different. They
may have witnessed the intoxicated patron at different times
and places in the hours leading up to the accident/incident. The
purpose in deposing them is to piece together different time
segments and perspectives.
When evaluating witnesses, it is important to find out: (1) what
the witness observed, where and when; (2) how the witness
knows the intoxicated person; (3) how long the witness observed
the intoxicated person; (4) whether the witness was drinking that
evening; and (5) the context in which the witness was interacting
with the person (investigatory purposes, customer service
purposes, or as a fellow patron who was simply in the same
place at the same time.) These factors will also affect how the
witness testifies and how to challenge the witness’s testimony.
For bar managers, bartenders, servers, and security personnel,
it is also important to find out: (1) what they observed and the
extent of their interaction with the intoxicated patron or injured
individual; (2) the extent of their training on serving, cutting off,
or interacting with intoxicated patrons; (3) their responsibilities
on the night of the incident; (4) their previous experience with
cutting off intoxicated patrons and what they do after cutting
off alcohol service; and (5) what measures they take to remove
the intoxicated patron from the premises and find alternative
transportation for the patron.
Employees of the bar are key witnesses because they influence
how a jury will perceive, embrace or reject a bar. Opposing
counsel often tries to portray the bar as a place where servers/
bartenders will encourage patrons to drink more because by
selling more drinks, patrons are happier, patrons will leave larger
tips, and the bar and its employees reap more financial rewards.
Sometimes opposing counsel will focus on the specials offered,
arguing that the specials encourage patrons to drink to the
point of intoxication/excess in order to get more business and
make more money. Admittedly, while the bar may be successful
when it sells more drinks, no establishment will be successful
in the long run if patrons do not feel comfortable going there, or
employees don’t feel comfortable working there, because it is full
of uncontrollable, messy, and recklessly intoxicated people.
Bartenders and servers will be questioned about how they
determine a customer is “obviously intoxicated.” Opposing
counsel may ask them whether they “count drinks” or refer to the
BAC chart, which gives an estimated BAC based on body weight
and number of drinks. While DUI statutes rely on an individual’s
BAC level, dram shop statutes and claims do not identify a
specific BAC for a person to be “obviously intoxicated.” Instead,
civil dram shop law focuses on behaviors and mannerisms of the
intoxicated patron. Further, neither bartenders nor servers have
the training or scientific means to test and determine a patron’s
specific BAC. Nor are they required to do so as part of their job.
Phone Records and Social Media
Discovering phone records and social media from the intoxicated
patron or the injured party and, in some cases, employees, can
be extremely useful (or detrimental) to a case. Phone records and
social media posts can show whether the intoxicated individual
made phone calls, sent text messages, checked in or posted to
social media while he was drinking, telling his friends he was
on his way to the bar, or that he was leaving. Employees may
also discuss their place of employment, or promote the bar/
establishment on their own social media pages, and the bar/
establishment itself can have a certain “image” it portrays on its
own Facebook, Instagram, Twitter feeds, or websites. Sometimes,
bar employees are social media friends with the intoxicated
patron. As a result, it is extremely important to be mindful of what
is posted, sent, or said on social media and the Internet.