The JSH Reporter JSH Reporter - Fall 2017 | Page 23
FEATURED ARTICLE: DRAM SHOP
023
Defense Arguments Should a Bifurcated Trial be Considered?
Without discussing details, there are a number of factual
defenses that can be successfully advanced in a dram shop
action. You should ask whether any of these apply to the facts of
your case. Arizona allows the court to order separate trials on the issues
of liability and damages when the evidence and testimony to
establish liability is separate and distinct from the evidence
and testimony pertaining to damages, and where a Defendant
may be unduly prejudiced by a single trial on both issues. This
situation can arise where a drunk driver kills an innocent third
party whose surviving family members then sue the liquor
licensee for over-service of alcohol to the drunk driver. The
family members have no knowledge or testimony to offer
concerning the events that occurred in the bar relevant to the
service of alcohol, and rarely have any testimony to offer about
the crash. They simply have testimony to offer about their grief
and loss of a loved one. The bar’s liability for over-service of
alcohol is dependent upon events that happened at the bar, and
involve a different set of witnesses. We have been successful in
convincing the court to order bifurcated trials so the jury is called
upon to decide the dram shop liability of the bar before the jury
hears any testimony about the grief, sorrow and anguish of the
wrongful death Plaintiffs.
1.
2.
3.
4.
5.
6.
7.
8.
There is insufficient evidence the intoxicated patron was
ever present or served at the insured’s bar. There are no
independent witnesses, camera footage, or receipts, but
only the bare testimony of the intoxicated patron.
The intoxication/over-service occurred elsewhere, either
before or after visiting the insured’s bar.
The insured did not over-serve alcohol to the patron
pursuant to documented sales records.
The patron did not display signs of obvious intoxication
and did not consume a large number of drinks in a short
period of time. The patron was an experienced drinker who
was adept in masking his impairment. Note: Displaying
obvious signs of impairment to a trained police officer at an
accident scene an hour after leaving the bar is not conclusive
evidence that the patron displayed obvious signs of
impairment to a bartender/server at the time the patron was
served his last drink.
Bartenders and servers are properly trained and
experienced, and execute their jobs well.
There was little opportunity for the bar employees to
observe obvious signs of intoxication even under ideal
circumstances.
Under Arizona’s comparative fault scheme, most of the
fault should rest with the intoxicated patron who voluntarily
chose to drink and drive.
If the intoxicated patron is the Plaintiff suing for damages,
then A.R.S. §12-711 may apply. Under that statute, a jury
can choose to disregard comparative fault principles and,
instead, find completely against the Plaintiff if the Plaintiff
was impaired and his impairment caused his injuries.
ABOUT THE AUTHOR WILLIAM SCHRANK
Bill’s practice is devoted to defending corporations, businesses and other entities in tort litigation.
His areas of practice include: defense of commercial transportation, trucking and motor coach/bus
accidents; premise liability and security incidents; wrongful death torts; “Special Event” injuries;
liquor and dram shop liability; and food, beverage and other product defects.
602.263.1766 | [email protected]
ABOUT THE AUTHOR LINDA TIVORSAK
Linda focused her practice in the areas of insurance defense, criminal defense and employment law. She is expe-
rienced defending clients against dram shop/social host liability claims, civil rights and Section 1983 claims, dis-
crimination claims (including age, gender, and disability discrimination), claims of wrongful discharge, personal
injury claims, and contract disputes.
602.263.1725 | [email protected]