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Driving the dram-shop case: too often, victims of drunk drivers are left with devastating injuries - and are poorly compensated for their losses. Use these techniques to enforce the law that says liquor licensees are responsible when they serve alcohol to visibly intoxicated patrons.

Article Excerpt
On January 17, 2001, Joe's life changed irrevocably. While working as a road flagman, Joe was struck, thrown more than 100 feet, and left for dead by a drunk driver who had spent the previous evening and early morning hours drinking at a bar that he owned. The accident left Joe, a husband and father, a quadriplegic, unable to feel anything below his chest or to move his arms and legs.

Several hours after the accident, the drunk driver turned himself in. More than 10 hours after the accident, a blood test revealed that his blood-alcohol concentration (BAC) was .12. The legal limit in Joe's state was .10.

Joe sued the driver and the bar, alleging that the driver was drunk long before he left the bar and should not have been allowed to continue drinking. Joe's expert toxicologist calculated that the driver's BAC when he was at the bar would have been .20 to .24. At those levels, the toxicologist testified, the defendant driver would have been visibly intoxicated.

The driver denied this, claiming that he wasn't intoxicated at the time of the accident, but that he drank a water glass full of whiskey after he drove home and before he turned himself in. The bar's insurance company refused to settle for the bar's policy limits, deeming Joe's case a "no pay" claim.

The jury found for Joe, awarding him more than 70 times the limits of the defendent bar's insurance policy.

Although Joe's accident is unfortunately common--of the 42,642 people killed in motor vehicle accidents in 2006, (1) more than 17,000 were victims of alcohol-related collisions (2)--its resolution is not. Several possible sources of recovery are available for a person injured by a drunk driver, including the defendant's car insurance, uninsured or underinsured motorist benefits, and victims' compensation funds; still, victims of collisions caused by drunk drivers are often not adequately compensated for their damages.

That is why dram-shop actions are important. As in Joe's case, when victims can prove that their injuries are a result of a bar improperly serving alcohol to a person who causes injury to himself or to another person, liquor liability actions can provide a critical means of compensation.

Forty-two states and the District of Columbia impose dram-shop liability on liquor licensees. The rationale for enforcing such liability is that a license to serve alcohol is a privilege bestowed by the government with certain responsibilities attached.

This responsibility is often limited by legislatures in different states. When statutory caps are in place, they typically place limits on an individual's right to full compensation for the pain, suffering, and loss of life's pleasures caused by a drunk driver.

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Only eight states--Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota, and Virginia--have not passed dram-shop laws. The rationale most commonly cited by courts in these states for not imposing dram-shop liability is that the customer's consumption, not the bar's service, of alcohol is the proximate cause of the injury. (3)

In states that enforce dram-shop liability, the standard that most courts apply is visible intoxication. This standard removes from the liquor licensee the burden of scientifically determining a customer's actual level of...

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