RECONSTRUCTING THE EVENING OF THE DRAM SHOP TRAGEDY UNDER GEORGIA LAW
DRAM SHOP LIABILITY DISCOVERY / DEPOSITION METHODS & OTHER PRACTICAL CONSIDERATIONS
by: John A. houghton
I. General Considerations
In drunk driving collisions involving severe injuries or wrongful death, there is almost assuredly not sufficient coverage unless the impaired driver was at the wheel of a commercial vehicle. Drunk drivers by their nature generally do not maintain significant levels of liability insurance coverage. Given the high rate of recidivist or repeat DUI offenders, often times these drivers are uninsured.
So how do you find coverage for your loss at the hands of an impaired driver? Georgia law, like a number of jurisdictions, places an obligation on bar and restaurant owners to not serve noticeably intoxicated individuals who they know or should know may be driving soon. Dram Shop cases require the Plaintiff’s lawyer to do an exhaustive investigation into the events leading up to the Defendant’s decision to get behind the wheel.
The starting point for introducing evidence supporting a Dram Shop claim is provided by statute in Georgia. Under O.C.G.A. § 51-1-40, if an alcohol provider in the exercise of reasonable care should have known that the recipient of the alcohol was noticeably intoxicated and would be driving soon, he or she will be deemed to have knowledge of that fact. See Riley v. H&H Operations, Inc. 263 Ga. 652, 655 (1993)
II. Gathering the Evidence
How do you prove that the bar or restaurant failed to exercise reasonable care when serving the DUI defendant alcohol? Dram shop litigation requires extensive research into the investigative records of law enforcement, close monitoring of the criminal prosecution, and immediate requests to the potential at-fault establishment to preserve all video and business records from the evening in question. (Spoliation Letters form enclosed in appendix) The diligent practitioner will put these cases in suit with minimal delay to obtain the subpoena power to gather any and all surveillance video and bar receipts of the establishment. Credit card transactions and phone records of the drunk driver should also be obtained to help piece the night back together.
a. Should Have Known of Noticeable Intoxication
Reviewing the bar surveillance video with scene witnesses, as well as with the defendant in deposition can help identify additional patrons who may have helpful information regarding the condition of the driver. Credit card transactions and point of service sales receipts should be among the first records requested in discovery (See standard Dram Shop discovery requests and interrogatories provided in appendix)
Customers and servers at the bar can generally be very helpful in providing testimonial evidence of the ‘noticeable intoxication’ of the DUI defendant, as many of these offenders frequent the same establishments on a regular basis.
Most restaurants with liquor liability coverage will have policies and procedures that servers are required to follow when serving alcohol. In theory, these servers should be trained to identify outward signs of impairment. Go through each of these impairment indicators when taking the deposition of the servers and restaurant personnel.
Additional signs of impairment include increased volume levels, slurred speech and aggressive conduct among multiple other indicators. Through the discovery process, often aggravating evidence is uncovered that demonstrates how little the dram shop employees did to prevent the tragedy with all the warning signs that were present.
The Defendant himself in his plea hearing or subsequent deposition will often divulge valuable information about who he was with and how impaired he was on the evening in question. The offender’s lack of clarity of the events can be used to further establish the element of noticeable intoxication.
Although these Defendant drivers are certainly adverse to your client’s interests at the outset of the case, they often will provide helpful testimony about their over-service of alcohol once they plead guilty. The Defendant driver may try to dilute his own guilt by attempting to direct blame at the bar or restaurant for continuing to serve him. These drunk driving offenders have no financial interest in protecting the restaurant or bar. This can be quite helpful in trial when it comes time for a jury to apportion fault amongst multiple named defendants.
b. Should Have Known May Be Driving Soon
One of the more difficult elements of the Dram Shop claim is proving the alcohol provider knew or should have known that the intoxicated offender would be driving soon.Prior to deposing company personnel, make certain that you have received a full document production from the defense on policies and procedures.Over-Consumption Prevention policies usually require company personnel to take affirmative action to inquire if a patron is driving.
These policies help establish the duty of care that should have been followed by the servers in determining if an offender would be driving soon.
A violation of this over-consumption policy in failing to determine if a guest will be driving soon can serve as sufficient evidence to satisfy the ‘should have known’ element of the Dram Shop claim.
The common counterargument by the defense is that a violation of company policy and procedure does not amount to the requisite knowledge needed to establish a dram shop claim. However, the cumulative effect of these servers testifying that little or nothing was done in compliance with these rules is quite compelling in the face of a summary judgment motion. Additionally, it can be argued that these policies and procedures provide the definition of the standard of reasonable care to be followed by the alcohol provider.
The underlying principle of Dram Shop claims is that these alcohol providers are the last line of defense between impaired drivers and the motoring public.Through methodical discovery efforts and well-directed examinations of witnesses, evidence of these claims can be shaped to support a very strong theory of liability.