JSH Reporter JSH Reporter - Fall 2017 - Page 23

FEATURED ARTICLE: DRAM SHOP 023 Defense Arguments Should a Bifurcated Trial be Considered? Without discussing details, there are a number of factual defenses that can be successfully advanced in a dram shop action. You should ask whether any of these apply to the facts of your case. Arizona allows the court to order separate trials on the issues of liability and damages when the evidence and testimony to establish liability is separate and distinct from the evidence and testimony pertaining to damages, and where a Defendant may be unduly prejudiced by a single trial on both issues. This situation can arise where a drunk driver kills an innocent third party whose surviving family members then sue the liquor licensee for over-service of alcohol to the drunk driver. The family members have no knowledge or testimony to offer concerning the events that occurred in the bar relevant to the service of alcohol, and rarely have any testimony to offer about the crash. They simply have testimony to offer about their grief and loss of a loved one. The bar’s liability for over-service of alcohol is dependent upon events that happened at the bar, and involve a different set of witnesses. We have been successful in convincing the court to order bifurcated trials so the jury is called upon to decide the dram shop liability of the bar before the jury hears any testimony about the grief, sorrow and anguish of the wrongful death Plaintiffs. 1. 2. 3. 4. 5. 6. 7. 8. There is insufficient evidence the intoxicated patron was ever present or served at the insured’s bar. There are no independent witnesses, camera footage, or receipts, but only the bare testimony of the intoxicated patron. The intoxication/over-service occurred elsewhere, either before or after visiting the insured’s bar. The insured did not over-serve alcohol to the patron pursuant to documented sales records. The patron did not display signs of obvious intoxication and did not consume a large number of drinks in a short period of time. The patron was an experienced drinker who was adept in masking his impairment. Note: Displaying obvious signs of impairment to a trained police officer at an accident scene an hour after leaving the bar is not conclusive evidence that the patron displayed obvious signs of impairment to a bartender/server at the time the patron was served his last drink. Bartenders and servers are properly trained and experienced, and execute their jobs well. There was little opportunity for the bar employees to observe obvious signs of intoxication even under ideal circumstances. Under Arizona’s comparative fault scheme, most of the fault should rest with the intoxicated patron who voluntarily chose to drink and drive. If the intoxicated patron is the Plaintiff suing for damages, then A.R.S. §12-711 may apply. Under that statute, a jury can choose to disregard comparative fault principles and, instead, find completely against the Plaintiff if the Plaintiff was impaired and his impairment caused his injuries. ABOUT THE AUTHOR WILLIAM SCHRANK Bill’s practice is devoted to defending corporations, businesses and other entities in tort litigation. His areas of practice include: defense of commercial transportation, trucking and motor coach/bus accidents; premise liability and security incidents; wrongful death torts; “Special Event” injuries; liquor and dram shop liability; and food, beverage and other product defects. 602.263.1766 | wschrank@jshfirm.com ABOUT THE AUTHOR LINDA TIVORSAK Linda focused her practice in the areas of insurance defense, criminal defense and employment law. She is expe- rienced defending clients against dram shop/social host liability claims, civil rights and Section 1983 claims, dis- crimination claims (including age, gender, and disability discrimination), claims of wrongful discharge, personal injury claims, and contract disputes. 602.263.1725 | ltivorsak@jshfirm.com