JSH Reporter JSH Reporter - Fall 2017 - Page 21

FEATURED ARTICLE: DRAM SHOP 021 Common Law Standard: The common law standard does not require that the patron be obviously intoxicated. Rather, a licensee can be held liable if, from other facts, it should know the patron is intoxicated, even in the absence of obvious signs of impairment. The classic example is serving a patron 4 drinks in 30 minutes, or multiple shots in a span of minutes. The bar should know the patron will be intoxicated from the rapid consumption of multiple drinks in a short time span. Bar owners and other licensed sellers of liquor in Arizona have a duty of care and may be held liable when/if they sell liquor to an intoxicated patron or customer under circumstances where the licensee or his employees knew, or should have known, that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises. What Role does the Intoxicated Patron Occupy? Investigating the Insured Licensee Is the Intoxicated Patron the Plaintiff who is Suing the Bar? How a judge/jury/mediator perceives the merits of a dram shop action depends heavily upon not only the precipitating actions of the bar employees, but also on the bar’s culture, reputation and alcohol-related incidents. Opposing counsel will make every effort to portray the liquor licensee in a bad light. Consequently, it is important to thoroughly investigate the licensee’s business and operations by doing the following: Covert inspection/surveillance: Often, when we are assigned a new case, we are complete strangers to the bar owner/ manager. This allows us to make a personal covert visit to the establishment before we meet with management to discuss the claim. We get a “real life” picture of the culture, clientele, staffing, operations, property configuration and location of surveillance cameras. This allows us to be better prepared in asking key questions, and also alerts us when the insured may be telling us something inconsistent with our observations. Personal Meeting with the Insured: This involves a formal meeting at the bar with all managers and employees on duty at the time in question. We educate them “collectively” about the claim and AZ law before we meet with them individually to discuss their knowledge and recollection of the particular events. This meeting allows us to evaluate the strength, weakness and effectiveness of their potential testimony, and what type of physical impression they will make. We also discuss the role the bar plays in the community such as sponsoring or hosting fund raising and charity events, and sponsoring sports teams. Other Information to Obtain from the Insured: (1) Employee Work Shift Sheets; (2) Alcohol Service Training Certificates for all managers, bartenders, and servers; (3) Employee Handbook; (4) Bartender Manual; (5) Bar Incident Log Book; (6) Alcohol and food sales for the night in question; (7) Credit card receipts and cash sale records; (8) Photos of glassware used to serve drinks; (9) Surveillance Camera Footage; (10) Marketing and Promotional Materials; (11) Website, Facebook, Instagram and Twitter Posts. Information to Obtain About the Insured from Other Sources: (1) Local police calls to the insured property in a 2-3 year period; (2) Crime Grid Activity Report for the square mile around the Insured’s business; (3) Violations and Inspections from the State Liquor Licensing Agency; (4) Local court search for prior lawsuits and settlements. Is the intoxicated patron a named Co-Defendant in the lawsuit? Sometimes, the intoxicated patron is not named as a Defendant in the lawsuit because he is remorseful about his conduct, and will “own” responsibility for his actions. On the other hand, if he makes an undesirable impression, opposing counsel will likely want him in the lawsuit to “tarnish” the bar. Has the intoxicated patron reached a settlement with the Plaintiff, and if so, what are the terms? Is it a complete Release, or is it a Covenant not to Execute? Are there cooperation clauses in the settlement papers or supporting documents? Is he charged criminally? Is the criminal case resolved or still pending? If resolved, what statements did he make during the criminal case, particularly in pre-sentencing? If criminal charges are still pending, it is unlikely he can be deposed and, if he is, he will refuse to answer most questions by claiming the Fifth Amendment privilege. Does the intoxicated patron “own” his decisions and conduct, and express remorse? Or, is he angry at the bar and motivated to take the bar down with him? Is he trying to avoid responsibility and blaming the bar for his victimization? Is the intoxicated patron a regular or frequent customer of the bar, or a one-time stranger? What bar employees know or are familiar with him? Has he been a problem patron before? Do any bar employees connect with him on social media? Best Practices for Deposing the Intoxicated Patron Whenever possible, the intoxicated patron should be the first person deposed. We want to know his version of the events, and whether he has his own agenda to serve in the context of the lawsuit. We want to quickly discover the role he occupies in this litigation. From the onset, we should be candid about the civil lawsuit against the bar and explain to him why the bar can be (and is being) sued. If he is the remorseful type who “owns his conduct” he may give testimony favorable, or at least not prejudicial, to the bar. If he has been criminally charged and/or convicted, we want to cross-examine him on the results of the charges, his plea, his statements and the terms of his sentence. A guilty plea is an admission that he is responsible for the harm he caused. His past drinking practices and behavior are vital. Is he an experienced drinker who has developed a tolerance to alcohol, and who can mask signs of intoxication at relatively high blood alcohol levels? How often does he drink, where, and with whom? Which family members and friends have seen him intoxicated on other occasions? Is he a binge drinker? How many previous