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InFocus: Dram Shop Laws and Emergency Medicine

Roberts, James R. MD

doi: 10.1097/01.EEM.0000396890.94502.d4
InFocus
Dram shop laws attempt to balance public safety with personal responsibility, but some would argue that this concept is unfair and flawed. Nonetheless, if you stagger into Al's Katnip Café obviously intoxicated, and Al serves you another drink, both of you might be in trouble. State laws differ, but all require that there be proof that an establishment or party host served a minor or provided more alcohol to someone who was “visibly intoxicated.” Because no mere mortal can accurately relate a blood alcohol determination to a specific outward appearance, proof of intoxication is usually required by a blood alcohol level combined with eyewitness testimony. If such is proven, Al is liable for your subsequent car wreck, and will be ordered by the courts to pay for injuries to a third party. Also, if a bar fight breaks out, Al may have to pay to fix another patron's broken jaw from your drunken assault. In some states, Al may even have to pay for your broken neck when you fall down the stairs in your own home.

Dram shop laws attempt to balance public safety with personal responsibility, but some would argue that this concept is unfair and flawed. Nonetheless, if you stagger into Al's Katnip Café obviously intoxicated, and Al serves you another drink, both of you might be in trouble. State laws differ, but all require that there be proof that an establishment or party host served a minor or provided more alcohol to someone who was “visibly intoxicated.” Because no mere mortal can accurately relate a blood alcohol determination to a specific outward appearance, proof of intoxication is usually required by a blood alcohol level combined with eyewitness testimony. If such is proven, Al is liable for your subsequent car wreck, and will be ordered by the courts to pay for injuries to a third party. Also, if a bar fight breaks out, Al may have to pay to fix another patron's broken jaw from your drunken assault. In some states, Al may even have to pay for your broken neck when you fall down the stairs in your own home.

Most mentally coherent individuals in this country believe that it's a bad idea to furnish alcohol to minors, or to give more alcohol to someone who is already obviously drunk. While one might intuit that the intoxicated individual would have more sense than to continue drinking, that is not the case with the average American or with almost any college student or teenager.

It is likewise a well accepted tradition that the person, establishment, or bartender or waitress who continues to ply an obviously intoxicated patron with yet more alcohol should bear some responsibility if the imbiber injures someone while under the influence of their product. To hold such alcohol-dispensing entities legally and financially responsible for property damage and hellacious injuries and deaths perpetrated by the intoxicated, most states have instituted dram shop laws.

The intent of such legislation is to hold accountable those who serve alcohol to visibly intoxicated individuals and minors if that intoxicated individual subsequently injures a third party or property. The term was coined after the 18th century tavern, called a dram shop. A dram is a small unit of measure, often along the lines of a teaspoonful, and it was a common way to sell alcohol prior to the invention to the keg and the 40 oz beer.

When considering this concept and the nuances of dram shop laws, one must also focus on the questionable ability of anyone to correlate measured blood alcohol levels with outward appearance. The quintessential question is, how do you tell when someone is too intoxicated to drink anymore? Obviously, there are gray areas, but such clairvoyance is exactly what is required of drinking establishments and bartenders under dram shop laws.

Alcohol Levels Do Not Accurately Predict Physical or Mental Impairment in Ethanol-Tolerant Subjects: Relevance to Emergency Medicine and Dram Shop Laws

Roberts JR, Dollard D

J Med Toxicol 2010;6(4):438

This article that Dr. Dollard and I wrote summarizes past literature and current knowledge of the relationship between blood alcohol levels and the appearance of sobriety. Included are a summary of the dram shop law concept and an analysis of the value of measuring blood alcohol levels.

A 35-year-old man presented to the emergency department after a seizure. His mild confusion at the scene was attributed to a postictal state, and he appeared normal during EMS transport and upon ED arrival. He was coherent, alert, and oriented, and he relayed accurate demographic information as well as a past medical history of seizures and anticonvulsant noncompliance. He was comfortable and had no medical complaints. When examined by the emergency physician, the patient had normal cognition, speech, and affect, and failed to demonstrate any overt signs of alcohol intoxication. The patient actually got off the gurney and walked to the bathroom without incident.

Routine testing returned a blood alcohol level of 515 mg/dL, a “critical level,” according to the lab. The patient was examined again, and no findings of intoxication were found. Armed with the knowledge of this gargantuan ethanol level and with a focus on possible neurologic impairment or cognitive dysfunction of that individual, a second physician also was unable to discern any overt signs of intoxication. Simply because of the massive ethanol level, the patient was admitted to the hospital. An uneventful course pursued. At no time did the patient display any adverse effects of an alcohol level that has been referred to as “lethal” in most textbooks.

Six examples from the older medical literature are cited, and conclusions were similar. When evaluated by trained medical personnel, individuals presumably very tolerant to ethanol can appear totally unaffected by markedly elevated ethanol levels. In addition, physicians, case workers, police, and even alcohol counselors are unable to relate a specific blood alcohol level accurately to outward appearance. Most observers underestimate the alcohol level when attempting to correlate the lab test with the patient's physical and mental condition. The lack of concordance between quantitative blood alcohol testing and outward signs of intoxication calls into question the value of routine alcohol testing and instituting various clinical or social decisions based solely on any specific alcohol level.

The authors also discuss a similar quandary faced by purveyors of alcohol. Most states in this country have dram shop laws, which hold responsible a bar, individual, or party host who supplies alcohol to a minor or to an obviously intoxicated individual when that individual subsequently injures a third party. Simple stated, dram shop laws make it incumbent upon the alcohol server to halt further alcohol distribution to someone who is “visibly intoxicated.” If one does not adhere to this legal mandate, one can be held responsible for the actions of the intoxicated patron.

For dram shop laws to apply, it must be proven that the alcohol imbiber was visibly intoxicated, or obviously a potential danger to himself and others when he received additional alcohol. The operative word here is “visibly intoxicated,” a term usually not defined by a specific statute. This mandate requires a lay person to assess alcohol impairment by outward signs and actions, even though sobriety clearly does not correlate with any specific blood alcohol level. Because the legal definition of intoxication by every state is an alcohol level of 80 mg/dL or higher, documenting this elevated ethanol level in light of a subsequent injury or automobile accident might retrospectively imply prior visible intoxication at a party or drinking establishment.

Given the massive tolerance to alcohol demonstrated in this case, an observation borne out by everyday common sense, even an alcohol level commonly reported to be lethal may not necessarily produce even a hint of intoxication to trained medical personnel. Using a blood alcohol level to conclude retrospectively that intoxication must have been obvious is folly, totally unscientific, and unfair to the alcohol provider. This observation also calls into question the routine practice of quantifying alcohol levels in the ED, and using the numerical results alone to draw clinical inference of the degree of impairment, or to support further observation, medical interventions, or additional testing. Essentially, to conclude that a subsequent alcohol level is per se evidence of serving alcohol to an obviously intoxicated person is a faulty and spurious analysis. As we concluded, if experienced physicians cannot reliably predict alcohol levels based on outward appearance, how could a bartender or a party host be expected to do so?

Comment: The vagaries of various jurisdictions notwithstanding, most state laws prohibit serving alcohol to a visibly intoxicated person, with legal and financial consequences if a third party is harmed. Serving alcohol to a minor also falls under this caveat. Importantly, some states even allow the intoxicated individual or their families to file suit for damages for their intoxicated loved one's own injuries, even though they voluntarily continued to drink alcohol in an admitted drunken state. The question of whether one should evoke personal responsibility to hold one's liquor use in check is a question that has support and criticism. Dram shop laws are usually invoked when an individual is involved in an assault or car accident, an elevated alcohol level is found in the felon or driver, and the injured party sues the driver or assaulter for financial compensation. An entire legal profession has sprouted to commence such litigation activity. If your jaw is broken in a bar fight, you may be able to sue the bartender who gave that last beer to your assailant. Some states limit financial recovery; others do not.

Thankfully, courts have generally held that a quantified alcohol level by itself is not evidence of prior visible intoxication. This is an enlightened legislative concept, but it doesn't always filter down to a jury verdict. It's not rocket science that some tolerate a given burden of alcohol better than others, and everyone knows someone who drinks like a fish and never gets drunk or visibly impaired. Tolerance can be of mammoth proportions. But a drunken driver causing death or devastating injury is an emotional issue, and someone is to blame. One might conclude that it is solely the intoxicated individual's fault, but such a conclusion is incorrect by current case law.

While most dram shop laws refer to licensed establishments, the law also defines an individual as a social host with similar responsibilities when orchestrating a party or other event where alcohol is supplied. Fraternity parties and schools also may be held accountable in some states. The social host definition, however, usually only refers to minors, and some states do not consider a social host liable for adults drinking in his home. The law has been extended to football stadiums, company picnics, and various company-sponsored events, but I could not find specific reference to what happens if your teenager steals your vodka, passes it around at the prom, and injuries result. Reader help is appreciated on this one.

It is somewhat variable how different states attempt to decide whether dram shop laws have been violated. Ferreting out the specifics is the challenge for attorneys, experts, and the lay jury, and one can readily appreciate how it depends on one's interpretation and mindset. Some states consider the seller liable if he is “negligent” or “recklessly” provides alcoholic beverages to a minor or intoxicated person, but try defining those terms. Serving someone without requesting proof of age is admissible evidence of negligence in some venues. If a beer distributor drops off a keg at a teenager's party and injuries ensue, that seller of alcohol has been found liable, probably because they “should have known what might happen.”

The law may apply simply because alcohol is served after hours or someone is not licensed. Some states are as vague as requiring only “a reasonable expectation” that someone is under the influence to meet the definition “visibly intoxicated.” Other states contend that an establishment is liable for “continuous and excessive serving.” One state's definition of “visibly intoxicated” includes the observation that a patron required assistance getting into a car. Proving “visibly intoxicated” usually requires eyewitness testimony, but some states invoke the vague “reasonable and prudent layperson” definition of intoxication. Merely failing to check an ID for age is often a dram shop law violation if a minor is involved. If the alcohol is served in a rented building, some states hold the building's owner liable.

Most states prohibit the intoxicated person from suing the seller for his own injuries, although courts have been liberal, and it may depend on the emotion of the case. If the seller's conduct was found to be willful or reckless, claims for injury to the intoxicated person himself may be allowed.

With these caveats in mind, many establishments now have specific training and educational tactics for their employees. It goes a long way for an establishment to prove they have checked IDs rigorously, have given instruction, or provided approved education seminars to their employees about the subtle and overt signs of intoxication. Some institute videotaping on a continuous basis. I would posit that most employees don't consider themselves the culprit if someone wants to drink and drive, especially when the tip is dependent on the bar bill. The courts, however, do not share that definition of personal responsibility.

Other proactive activity proving the bar's good intentions include encouraging patrons not to become intoxicated, serving nonalcoholic drinks and food, and offering rides home to those who are drunk. I assume that allowing beer pong would be viewed as encouraging excessive alcohol consumption. Fortunately, most laws immunize sellers from civil damages for refusing to serve someone because of lack of proof of age or other good faith efforts to prevent intoxication. –

Comments about this article? Write to EMN at emn@lww.com.

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Nuances of Various Dram Shop Laws

In general, dram shop laws allow someone who has been injured or harmed by an intoxicated person to sue the establishment that served alcoholic beverages to a “visibly intoxicated” individual. Damages can be awarded for property damage, bodily injury, or death caused by the alcohol consumption.

Definitions of “visible intoxication” are vague, poorly defined, varied, and open to significant interpretation. No specific blood ethanol level is per se evidence of “visible intoxication.” Alcohol levels are considered circumstantial evidence to be interpreted in light of the entire scenario.

Many states allow claims against an individual, called a “social host,” when that person serves alcohol to a minor outside of an establishment licensed to serve alcohol (such as in a private home or at a party). This may not be applicable to adults in many states. Many states invoke the prudent layperson definition of “visibly intoxicated,” or hold establishments liable if they “should have known a person was intoxicated.”

In New Hampshire, one facet of intoxication is defined as needing active assistance getting into a car. Reckless conduct can be defined as continuous and excessively serving alcohol to an extent that it creates a substantial risk of death by alcohol poisoning. Maine deems sellers liable if they “negligently or recklessly” provide alcoholic beverages to a visibly intoxicated individual or to a minor. It also makes a seller's attendance at an approved server education training course and implementation of responsible server practices admissible as evidence that the server was not negligent.

In many states proof that someone was served alcohol without requesting proof of age is admissible as evidence of negligence. In Massachusetts, the intoxicated person can sue for damages if the seller's conduct was willful, wanton, or reckless. Vermont makes a seller liable if he provides alcoholic beverages to a minor, an apparently intoxicated person, someone after closing time, or someone who it would be “reasonable to expect” would be under the influence of alcohol as a result of the amount served.

Rhode Island law provides that liquor licenses do not authorize the sale or delivery of alcoholic beverages to “a person of notoriously intemperate habits.” If the alcoholic beverage was sold or provided in a rented building, some laws also make the building's owner liable under the same conditions. Other laws provide that service is not negligent or reckless if the server is following “responsible business practices.” These include, among other specified activities:

  • Encouraging patrons not to become intoxicated.
  • Promoting the availability of nonalcoholic beverages and food.
  • Promoting safe transportation.
  • Prohibiting employees from drinking alcoholic beverages while working.

Read more about the state laws mentioned here at http://1.usa.gov/DramShopLaws.

Dr. Roberts

Dr. Roberts

© 2011 Lippincott Williams & Wilkins, Inc.