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How to Prove a Dramshop Claim
Q. HOW DOES AN ATTORNEY TAKE THE LAWS MADE BY THE
LEGISLATURE AND MAKE THEM WORK FOR A CLIENT?
A. The attorney must ultimately be prepared to try every case to a jury
and to prove
to the jury the elements of the dramshop laws. The attorney then proves
how
the liquor establishment violated those laws and became the cause of the
client’s
injury or death.
Q. WHAT ARE THE ELEMENTS OF THE DRAMSHOP ACT THAT NEED
TO BE PROVED TO A JURY?
A. Minnesota statute §304A.801 - 802 allows a person who
is injured by a drunk
driver the right to sue the bar that caused the intoxication. Minnesota
courts
have developed 4 elements required to prove up a dramshop action in
Minnesota:
1. There must have been an illegal sale of intoxicating liquor.
2. The illegal sale must have contributed to the person’s intoxication.
3. The person’s intoxication was a direct cause of plaintiff’s damages.
4. The plaintiff was damaged. |
1. ELEMENT #1 - ILLEGAL SALE
Q. WHAT CONSTITUTES AN ILLEGAL SALE?
A. There are 3 primary illegal sales by the vendor:
1. Sales to obviously intoxicated persons are illegal.
Minn. Stat. §
340A.502. subd.2.
a. DEFINITION: “Obviously intoxicated” has
been defined in court
decisions as the following: In order for there to be an illegal sale
the
person to whom the sale is made must be intoxicated to such an extent
that the seller, using his usual and reasonable powers of observation,
sees
or should see that the buyer is intoxicated. There must be such outward
manifestation of intoxication that a person using his reasonable
powers of
observation can see or should see that such person has become
intoxicated. It does not require proof of any specified amount ofdrinking,
but simply proof that as a result of drinking intoxicants, a
person has lost control to any extent of his mental or physical faculties
which should be observable by the seller. AIP means “allegedly
intoxicated person.”
1. There is a difference between the terms “under the influence
of
intoxicating liquor” and “obviously intoxicated.”
2. High blood alcohol reading alone is not, as a matter of law, sufficient
to prove “obvious intoxication.”
3. The testimony of eye witnesses can assist in proving “obvious
intoxication.”
4. An elevated blood alcohol concentration (BAC) and the testimony of
a toxicologist is helpful to prove “obvious intoxication.”
5. The attorney proves obvious intoxication by demonstrating the BAC,
circumstantial evidence, such as length of time in bar, number of
drinks, erratic driving and circumstances surrounding the accident.
b. The server has only the duty to “use his usual and reasonable
powers of observation.”
c. This law applies to the sale of any alcoholic beverage containing
at least one-half of one percent alcohol by volume.
d. Direct evidence is when witnesses testify that a person was
intoxicated and showed signs of intoxication.
e. Circumstantial evidence (number of drinks, BAC, manner of
driving and autopsy report) is just as important as direct evidence.
f. Admissibility of Blood Alcohol Reports:
With proper foundation, reports of laboratory analysis of alcohol
content in the blood of the AIP are ordinarily admitted to show the
state of intoxication of the person whose test was taken. The
standard for the admissibility of blood alcohol tests is the same in
criminal and civil cases
g. Medical Records:
AIP’s medical records are inadmissible unless he has put his
condition in controversy and requires expert medical testimony. |
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2. Sales
to minors are illegal. Minn. Stat. § 340A. 503.
a.Proof of Age is the problem.
b. A good faith defense is used by the seller if proof of age for
purchasing
or consuming alcoholic beverages was accepted and based upon the
following:
1. A valid driver’s license with photograph and date of birth;
or
2. A valid identification card from Minnesota, another state or province
of Canada including photo and date of birth of licensed person; or
3. In the case of a foreign national (from a nation other than Canada), a
valid passport; or
4. A valid military identification card issued by the U.S. Dept. Of
Defense (Green Active Military I.D.); or
5. The defendant must establish, by a “Preponderance Of The
Evidence,” reasonable and good faith reliance upon one of these
methods of proof of age and upon doing so is relieved of liability for
a sale which is otherwise illegal. In other words, the seller is “off
the hook.” |
c. It is not necessary to prove intoxication at the time of sale, because
the
sale is illegal by virtue of the fact that it is made by a minor.
d. However, it is necessary to prove whether the illegal sale caused the
minor’s subsequent intoxication and whether the intoxication caused the
accident out of which the actions are brought. It is easier to prove
intoxication and causation than it is to prove “obviously intoxicated.”
e. If a minor to whom an illegal sale is made subsequently gives the
intoxicants to an adult and the adult thereafter causes an accident, “the
illegality of such a sale is not erased” regardless of whether the adult
is
sober or intoxicated.
3. Miscellaneous other illegal sales.
a. Sales After Hours (Minn. Stat. § 340A.504) such as sale
of drinks after 1:00
a.m. and the sale of off-sale liquor after 10:00 p.m.
1. The purpose of the off-sale law is to regulate the industry rather
than
create civil liability. The purpose of regulating sales after 1:00
a.m. is
because such sales took place late at night “when the likelihood
of
overindulgence and the resultant hazards with which the Act is
concerned is enhanced.”
2. The victim must show that the off-sale caused the intoxication
and that
the intoxication also contributed to cause the injury.
b. Sales on Prohibited Days (Minn. Stat. § 340A.504).
1. A sale on a prohibited day would be considered an illegal sale
for
purposes of the Dram Shop Act.
c. Sales at Prohibited Locations (Minn. Stat. § 340A.412,
subd.4).
1. There are no known cases under this section.
e. Prohibited Intoxicants (Minn. Stat. § 340.A506).
f. Sales to Non-members of Clubs (Minn. Stat. § 340A.404,
subd. 1(3)).
1. This section allows some municipalities to issue “on-sale” licenses
to
bona fide clubs and veteran organizations. The license permits sales
to
“members and bona fide guests only.” Technically, therefore,
a sale to a
non-member who is not a bona fide guest is illegal and the seller
will be
liable if that sale causes or contributes to intoxication and that
intoxication causes injury.
2. ELEMENT #2 - ILLEGAL SALE CONTRIBUTED TO
THE PERSON’S
INTOXICATION
Q. HOW DOES THE ATTORNEY PROVE THAT THE ILLEGAL SALE
CAUSED OR CONTRIBUTED TO THE ALLEGED INTOXICATED
PERSON’S (AIP) INTOXICATION?
A. By looking at all of the surrounding circumstances, proof must
show a practical
and substantial relationship between the illegal sale and intoxication.
1. The intoxicants consumed as a result of illegal sales need
not be the sole
cause of intoxication, just a proximately contributing cause.
2. The definition of intoxication used to determine whether
the AIP isintoxicated is as follows: “When any person from
the use of intoxicating
liquors has
a. affected his reason or faculties, the symptoms would be
present relatively
early in a drinking episode and observed by many people. In
fact,
intoxication probably requires far less drinking than what
the word
‘intoxication’ had previously meant.
b. rendered himself incoherent of speech, or
c. caused himself to lose control in any manner to any extent of the action
or motions of his person or body.
Q. ARE THERE ANY RECOGNIZED DEFENSES TO THE ILLEGAL SALES
CAUSATION?
A.There are two accepted defenses:
1. Lapse of time between the sale and the accident
a.This is the better defense. Courts have held that proof of intoxication
“becomes of less probative value as more time elapses between the
time
such person leaves the seller’s premises and the time of
the accident
causing the injury.” Time may also be a factor where the
only drink sold
was consumed seconds or minutes before either the incident
or accident.
The alcohol may not have been fully absorbed in the blood stream
by the
time of the accident.
2. Minimum amount of consumption. However, even a small quantity
of
intoxicants is sufficient to meet the “contributing cause” requirements.
3. ELEMENT #3 - PERSON’S INTOXICATION
IS DIRECT CAUSE OF
DAMAGE
Q. HOW DOES THE ATTORNEY PROVE THE PERSON’S
INTOXICATION
IS A DIRECT CAUSE OF PLAINTIFF’S DAMAGES(ELEMENT #3)?
A. This intoxication must be a “proximate” cause of plaintiff’s
injuries.
1. The attorney must prove that the intoxicationof the AIP
actually caused the
Plaintiff’s injuries. For example:
a. The intoxication of an AIP who runs a red light and broadsides
another
vehicle certainly causes the Plaintiff’s injuries.
b. If a Plaintiff crosses over the centerline head-on into
an AIP, the injuries
of Plaintiff are caused entirely by factors other than the
AIP’s
intoxication. It fails to establish the causal connection
between his
injuries and the illegal sale.
c. When an obviously intoxicated Plaintiff was removed from
a bar and
subsequently injured by the bouncer, the intoxication may
have been the
occasion for her ejection from the bar, but it did not cause
her injury.
The bouncer caused her injuries.
4. ELEMENT # 4 - PLAINTIFFWAS DAMAGED BY THE
INTOXIFICATION
Q. HOW DOES THE ATTORNEY PROVE THAT THE PLAINTIFF WAS
DAMAGED?
A. The plaintiff must have measurable damages recoverable
under the act.
Minnesota statute § 340.801 provides a cause of action
for certain persons
“injured in person, property, or means of support, or who incurs
other pecuniary
loss.”
1. Damages for Personal Injury: the measure of damages
for bodily injuries
sustained by a person entitled to recovery under the Dram
Shop Act is
identical to the measure of damages recoverable in an ordinary
negligence
action. (See following sections G - K for more on damages).
2. Survivors of a decedent and injured persons recover
damages for pecuniary
loss and loss of means of support.
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