Dram Shop: Meeting the Evidentiary Standard to Survive Summary Judgment While Strengthening Alternative Causes of Action

Our firm represents people injured as result of the actions of individuals under the influences of alcohol. These civil cases are known as Dram Shop actions. Dram Shop is the legal term which refers to a bar, tavern, or any other establishment where alcoholic beverages are sold to members of the public. Relief for this cause of action is codified in Pennsylvania under the Dram Shop Act (47 P.S.§4-493(1). Under this statute, a plaintiff must prove that the tort-feasor (intoxicated person) was (1) served alcoholic beverages while visibly intoxicated and (2) that the violation of the statute proximately caused the plaintiff’s injuries.

If a bar or other drinking establishment is found liable under this statute the law considers them “negligent per se”. Unlike a common law negligence action, the Court will not consider whether the establishment owed the injured party a duty (obligation) under the law to keep that person free from injury or harm. Visible intoxication is the key issue in these cases and a plaintiff, who is unable to establish any evidence visible intoxication could have their case dismissed before trial on a Motion for Summary Judgment filed by the defense counsel representing the drinking establishment.

A Court may grant a Motion for Summary Judgment when the facts alleged in the civil complaint or brought out during discovery (depositions, answers to interrogatories, and other admissions) demonstrates no genuine issue of material fact. In other words, the Court will dismiss the lawsuit and find that the evidence is so overwhelming in favor of the defendant that a jury could never find in favor of the plaintiff. Summary judgment is only entered in cases where all the issues are clear and free from doubt. If a Court must rule on a summary judgment motion and make inferences to arrive at a decision all inferences are examined in a “light most favorable to the nonmoving party”. While this high evidentiary standard favors the plaintiff, the Court can only look at the facts presented to it in the pleadings (civil complaint, answer, motion) and brought out in discovery.

Dram shop cases are difficult because there is often not a great deal of direct evidence (eyewitness) of a person’s visible intoxication. Due to this lack of direct evidence a plaintiff must meet the evidentiary standard with circumstantial evidence utilizing the observations of witnesses at the time of the incident. While observations normally refer to direct evidence, here our focus is the intoxicated person’s physical characteristics which would include his/her speech, balance, tone of voice, gait (pattern of movement) and the number of drinks consumed after reviewing a bar tab. This list is not exhaustive and so it is important to ask a witness to provide a very detailed account of what occurred if possible. Obviously, the direct observation of the intoxicated person actually consuming alcohol or being served alcohol is ideal evidence but most situations it is difficult to obtain this testimony.

Most individuals have no trouble providing a summarized account of another’s general appearance but have difficulty providing testimony as to the specific number of drinks, the time of those drinks, or the type of drink consumed at the time of the incident. Circumstantial evidence is not only critical to a Dram Shop claim but it is also important when attempting to establish an alternative cause of action under a common law negligence theory. Common law negligence requires that the plaintiff prove by a preponderance of the evidence that the bar owed a duty to the plaintiff, it breached that duty, and that breach proximately caused the plaintiff’s injuries.

A patron in a bar is a business invitee and that status requires that a bar protect him/her from harm as the bar (the defendant) encouraged the plaintiff to enter the premises. A patron’s mere presence within the bar or its curtilage (surrounding exterior) establishes the bar’s duty and any reasonably foreseeable harm which comes to the plaintiff is a breach of that duty. Given that a bar serves alcoholic beverages it is reasonably foreseeable that harm could come to a plaintiff as a result of another’s intoxication. This foreseeability requires that the bar establish procedures to safeguard patrons from harm. These procedures would include sufficient security personnel, cameras, checking ids, and warning posters which details the bar’s obligations under the law with regards to intoxicated individuals and persons under the age of 21. In addition to these procedures a bar should also educate, train, and retrain periodically its employees on safety procedures. The failure to maintain these safety precautions could form basis for a negligence claim against an establishment which could be brought in addition to a Dram shop claim.

In closing, a Dram Shop claim is often difficult to establish but an aggressive attorney who vigilantly conducts an investigation and discovery can substantially increase your chances of a recovery for your injuries. If you have any questions regarding these matters please contact our office.