The Dram Shop Act

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Q: A couple of weeks ago, an acquaintance and I were in the bar area of a fancy restaurant.  After a few drinks, we got into an argument.  She swung her purse at me.  It hit me in the face.  What happens if I sue the restaurant?

A: You will presumably allege that your acquaintance, in an intoxicated state, intentionally swung her purse at your face and that the owners had maintained, controlled, and operated the restaurant in violation of the Dram Shop Act.

The Dram Shop Act targets people who unlawfully assist in the furnishing of liquor.  The definition of ‘unlawful’ is provided by Alcoholic Beverage Control Law § 65.  Section 65 prohibits furnishing alcoholic beverages to a person actually or apparently under the age of twenty-one, a visibly intoxicated person or a habitual drunkard.  Under the Dram Shop Act, a victim, such as you, has a right of action against anyone who unlawfully contributed to the intoxication.

The restaurant will surely request its insurer to provide a defense, but many commercial policies have a provision excluding from coverage injuries caused by an assault or battery committed by a customer.  In that case, the insurer is not obligated to defend and indemnify the restaurant.  You could collect only from the restaurant’s own assets, not from its insurance.

What is ‘visible intoxication’?  Proof of high blood-alcohol count sometimes is enough to infer that the intoxication should have been visible.  So too if your acquaintance five minutes before entering the restaurant had been driving in the wrong direction with her lights off – ignoring the warnings of other drivers, who sounded their horns and flashed their lights.  Direct signs are best: e.g., droopy eyes, fragmented, incoherent and irrational speech, and a tearful or irritable demeanor.

In many cases under the Dram Shop Act, an important issue is how to handle a jury’s allocation of fault.  Perhaps this restaurant was less responsible than a previous tavern – having failed to observe the effect of previous alcohol upon your acquaintance when it served her one extra drink.  Perhaps someone else had already pushed her ‘over the line’ and is more at fault.  What the law demands is that the jury allocation have a ‘rational basis’.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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