Dram Shop Essay, Research Paper

Dram Shop Liability

Definition Dram shop liability, is grounded in the common law theory of negligence. Although imposes criminal dram shop liability, no such comparable statute exists for purposes of establishing civil liability. Thus, recovery by third parties is only available by establishing the elements of a common law negligence claim, i.e., duty of care, breach of the duty of care, and damages causally relate to the breach. Nonetheless, a violation of a criminal statute does constitute some evidence of a Defendant’s negligence. Two sections of M.G.L. c. 138 are pertinent in this respect: which prohibits the sale of alcoholic beverages to persons under the statutory minimum age, and which prohibits the sale of alcoholic beverages to intoxicated persons. Therefore, a Defendant’s conduct which is violative of these statutory prohibitions is indicative of a breach of duty and may give rise to civil liability.

Persons to Whom a Duty is Owed

The Intoxicated Patron: The statutory duty not to sell or deliver alcoholic beverages to intoxicated persons applies to and is intended to protect, among others, the intoxicated patron. However, an intoxicated person may recover against a licensed vendor of alcoholic beverages for personal injuries, property damage or consequential damages arising out of the service of alcohol only if the proprietor acted in a willful, wanton or reckless manner in serving the patron alcohol.

Third Persons: The statute is also intended to protect members of the general public. Accordingly, a tavern keeper who sells alcoholic beverages to an intoxicated patron may be held civilly liable to a third party who is injured by the intoxicated person. Initially, courts were hesitant to extend liability to a tavern keeper for all injuries which might result from a violation of M.G.L. c. 138. Thus, early cases focused on whether the intoxicated patron’s action was a reasonably foreseeable consequence of the violation of the statute. This standard was applied to liquor liability claims involving the use of a motor vehicle, as well as non-motor vehicle-related liquor liability claims.

Dram Shop Act

In order to sustain a case of action under the Dram Shop Act the plaintiff must show:

1. That the plaintiff was injured by an intoxicated person

2. The intoxicated person who caused injury to the Plaintiff, was a patron of the Defendant s establishment, was visibly intoxicated while he was staying at the establishment, and was continued to be served alcohol after the Defendant knew or should have known he was intoxicated.

3. The Plaintiff’s injury was causally related to the intoxicated condition of the Defendant’s patron.

MATTHEW WEIS v. GERALD WAYNE HODGE d/b/a PETE’S SAKE PUB and JASON DEBCZAK

Defendant Gerald Hodge is the owner of Pete’s Sake Pub in Detroit. Hodge’s son, Michael (hereafter “Hodge”), is the pub’s manager and serves as bartender. On the evening of May 14, 1993, Hodge was tending bar, and defendant Debczak (the assailant), Jacqueline Notchel, Barbara Trebovich and Tim Cheatham were in the pub. Debczak had arrived early in the evening and was still there at 2:00 a.m., the morning of May 15.

Witnesses gave varying accounts of Debczak’s state of intoxication at 2:00 a.m. Notchel testified that Debczak was staggering, slurring his speech, and acting obnoxious. Debczak himself testified that he was intoxicated, and that Hodge served him at least eight beers and three shots, prior to the assault. Hodge testified that Debczak did not appear to be intoxicated, and that he had only consumed three or four beers while he was in the bar.

Around 2:00 a.m., plaintiff Weiss arrived at the pub, looking for his girlfriend. The girlfriend was a regular customer, and plaintiff disapproved of her patronization of the pub. There was also antipathy between plaintiff and Cheatham, apparently because plaintiff was jealous of Cheatham’s friendship with the girlfriend. Notchel told plaintiff that his girlfriend was not there, and then she asked plaintiff for a ride home.

The testimony was conflicting about the next transaction: Debczak testified that Cheatham offered to pay Debczak $20 if he would assault plaintiff. Cheatham testified that Debczak removed $20 from Cheatham’s wallet and offered to assault plaintiff if Cheatham would buy him more drinks.

Shortly thereafter, Notchel, Trebovich and plaintiff left the pub — Debczak was waiting outside with a beer bottle in his hands. Debczak began to swear and speak abusively to plaintiff, and Debczak then smashed the beer bottle over plaintiff’s head. The two struggled. Plaintiff, Notchel and Trebovich all testified that Hodge emerged from the pub carrying a pool bridge, and attempted to strike plaintiff with it. Plaintiff then got a baseball bat from his car to defend himself. Hodge testified, however, that he went outside to break up the fight and ordered the group to disperse; and that plaintiff then ran into the pub with a bat and smashed a window. According to Hodge, at that point he chased plaintiff out of the pub with a pool bridge, although Hodge denied hitting plaintiff. Notchel and Trebovich took plaintiff to the hospital.

Plaintiff sued Debczak for intentional tort, and he sued Gerald Hodge on a dram shop theory, alleging that plaintiff lost time from work, incurred medical expenses, and suffered other physical, neurological and psychological injury as a result of the assault. The jury found: (1) that plaintiff was injured by Debczak, (2) that Gerald furnished alcoholic liquor to Debczak when he was visibly intoxicated, (3) that the furnishing of alcoholic liquor to Debczak was the proximate cause of plaintiff’s injuries, (4) that plaintiff had incurred damages of $175,000, and (5) that plaintiff’s injury was twenty percent attributable to Debczak’s conduct, and eighty percent attributable to Gerald Hodge. The trial court denied Gerald Hodge’s motion for new trial and for remittitur.

Gerald Hodge then moved in this Court for a remand, arguing that our decision in Rogalski v Tavernier, 208 Mich App 302; 527 NW2d 73 (1995), precluded dram shop liability when the allegedly intoxicated person (”AIP”) has committed an intentional tort. Gerald Hodge’s motion for remand was granted. On remand, the trial court determined that Rogalski should not change the outcome of the case.

Introduction/Background

One issue that I found insane, during one of the lectures we had on negligence, was the dram shop liability.

It concluded, that a owner of an establishment may be held liable for the acts of their patrons who drink and later drive while intoxicated.

I understand what the reason why they have it, probably its because the owner is to have control over the patrons that are in the bar and see to it that they behave in a social, ethical manner. No problems, so far, but her comes the tricky part. The owner of the establishment should not only have control over the patrons in the bar, they should also control what they do after leaving the bar. How much responsibility could a person be held liable to?

Isn t it up to the individual himself/herself to take responsibility over their own actions?

I will try to get some insight into this law, what the plaintiff must show in order to sustain a case, and to whom the duty is owed.

Conclusion

For me as an former bartender, I cannot under any circumstances understand the logic with this law. This law is ridiculous, it makes people look like fools, and in some way, it has a certain connection with communism. Why communism? People depend on the State, you are to stupid to make your own rights and wrongs, the State will therefore make them for you.

People cannot walk around thinking, that everyone will do everything for them. You have to take responsibility, for your own actions and not blame them on someone/something else. This law is a typical example of that. What kind of democracy is this?

The conclusion will not be a quote but a joke.

One night a police officer was staking out a particularly rowdy bar for possible violations of the driving under the influence laws. At closing time, he saw a fellow stumble out of the bar, trip on the curb, and try his keys on five different cars before he found his.

Then, the bar patron sat in the front seat fumbling around with his keys for several minutes. Everyone left the bar and drove off. Finally, he started his engine and drove off.

The police officer was waiting for him. He stopped the driver, read him his rights, and administered the Breathalyzer test. The results showed a reading of 0.0. The puzzled officer demanded to know how that could be. The driver replied, ” Tonight I’m the designated decoy.”