JSH Reporter JSH Reporter - Fall 2017 - Page 20

FEATURED ARTICLE: DRAM SHOP 020 GETTING TO THE SOBERING TRUTH OF A DRAM SHOP CLAIM IN ARIZONA AUTHORS: William Schrank & Linda Tivorsak EMAILS: wschrank@jshfirm.com; ltivorsak@jshfirm.com BIOS: jshfirm.com/WilliamJSchrank; jshfirm.com/LindaTivorsak In Arizona, a liquor licensee (restaurant/bar/club) can be held civilly liable for injuries and deaths that are caused–wholly or partially–by the over-service of alcohol. This type of claim is referred to as a dram shop claim and can include injury or death to individuals who are harmed by the alcohol-impaired patron, as well as damages or injuries to the impaired patron himself. In other words, dram shop actions can be brought not only by innocent third-parties who are harmed by the impaired patron, but also by the impaired patron. The purpose of this article is to offer insight and recommendations for investigating, evaluating and defending dram shop claims in Arizona. Although it is not our intention to discuss Arizona’s substantive law on dram shop liability, it is important to understand its general framework to give context to our suggested strategies. Legal Basis for Arizona Dram Shop Law Arizona dram shop law is based on statutory and common law. A Plaintiff need not allege both or prevail on both. Prevailing on either one will impose liability. The statutory claim is a more difficult standard to meet and requires specific elements to be proven. Proving the statutory elements renders the bar negligent per se. But even if the statutory elements cannot be proven, a bar can still be liable under the less demanding common law standard. Consequently, defense of a dram shop case can’t focus simply on defeating the elements of a statutory claim. Statutory Duty: The statutory basis for dram shop liability is set forth in A.R.S. §4-244(14), and A.R.S. §4-311. A.R.S. §4-244(14) makes it unlawful for a licensee or other person to serve, sell, or furnish liquor to a disorderly or obviously intoxicated person, or for a licensee or employee of the licensee to permit or allow a disorderly or obviously intoxicated person to come into, or remain, on the premises, unless it is for no less than 30 minutes to allow for a non-intoxicated person to remove the person from the premises. “Obviously intoxicated” means that a person’s “physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.” In short, a Plaintiff must not only prove a patron was obviously intoxicated, but also that the bar knew the patron was intoxicated and continued to serve the patron and/or allowed him to remain on the premises for over thirty minutes. A.R.S. §4-311 states a licensee is liable for damages, injuries and death if: (1) the licensee sold alcohol to a patron who was obviously intoxicated; (2) the patron consumed the alcohol sold by the licensee and; (3) the consumption of alcohol was a proximate cause of the damages, injury or death. The statute defines “obviously intoxicated” as inebriated to such an extent that a person’s physical faculties are substantially i ɕ)ѡɵЁ́͡ݸͥѱչɑѕͥ)ѥȁͥЁ͙ͥչѥѡЁݽձٔ)٥́Ѽɕͽͽ)Qхєͼ͕́䁙ȁ͕٥Ѽ)ͽЁɥЁѡЁ́Ёѡ)ѡ́ѥɕЁ䁍ɥѕɥ́ݡ)չȵɥ́ɔٽٕ