A CT Supreme Court Oral Argument: How is the Dram Shop Statute to be interpreted? Is it necessary to prove a drunk driver was VISIBLY intoxicated when the bar served him to prevail in a wrongful death claim against the bar?

The last jury trial I had when I was in my old law firm was a Dram Shop case against a bar in Chester, Connecticut.  My client, the late-Donna Amarant, was driving on Route 154 in Haddam when Richard Roy crossed the center line in his pick-up truck and hit Donna's VW Jetta head-on, killing her.  I sued the bar, claiming the bartender sold Mr. Roy another drink, after he was already intoxicated.

The bartender claimed he never noticed any signs of intoxication in Mr. Roy, despite the fact that Roy had sat on a barstool across from the bartender for over 2 hours before getting back in his truck and killing Donna Amarant.  Mr. Roy's blood alcohol level was well-over the legal limit at the time of the collision, based on blood-test results at the hospital on Mr. Roy.  But expert testimony from our toxicologist and the defense emergency room doctor said that an alcoholic may or may not show visible signs of intoxication even at very high blood alcohol levels.

In our case, I called three witnesses before the jury who testified that Mr. Roy was severely and quite visibly intoxicated at the scene of the collision, which was only minutes after he had left the bar and had his last drink.

The defendant bar's insurance company offered us $1,500 (yes, one thousand five hundred dollars) before trial.  We turne it down and the jury found in our favor on all the issues.  The insurance carrier then paid us the maxiumum amount recoverable in these cases, even where a death results, and that is $250,000 (two hundred fifty thousand dollars).

In these cases, it would be much easier to win if all the injured party had to prove was that the defendant was over the legal limit, objectively, at the time he was last served by the bartender.  Proving "visible" intoxication is a much higher burden.  I was able to do so in my wrongful death case, but most of these cases go in favor of the defendant bar.  Few bartenders would ever admit they served a visibly intoxicated patron.  And most potential witnesses, people who hang out in bars, are themselves not in any condition to testify soberly about the defendant's state of sobriety.

The legal issue of what must be proven by the injured party to win a case against a bar is still an open question.  And that brings me to what I have planned for this morning.  I'm going to see how Law is Made in our Supreme Court.  Or how Law is Interpreted.  Depending on how you look at the role of judges in interpreting statutes.

I'm going up to U.Conn. Law School to watch an oral argument in a session of the CT Supreme Court held at the school.  The case is a Dram Shop case involving a bar which was sued for allegedly serving an already-drunk person more alcohol, after which the patron went out and killed somebody in his car.  The issue on appeal is this: Does the injured plaintiff have to prove that the bar patron was VISIBLY intoxicated when he was served at the bar or merely that the bar patron was objectively over the legal limit for drunk driving, regardless of whether the effects of the alcohol were apparent to a reasonably attentive bartender.  The Dram Shop statute itself does not address the point explicitly and only speaks of the duty of bars not to served "intoxicated" persons.  Courts over the years have suggested that VISIBLE intoxication must be proven.  The plaintiff in the case before the Supreme Court this morning is claiming that the statute, which does not include an explicit "visible" intoxication element, does not require an injured person to prove that the bartender could have seen the person was intoxicated before serving him.  That interpretation would, in essence, make the statute what's called a "strict-liability" law.  The other interpretation, defended by the defendant bar, that the statute requires proof of "visible" intoxication, would make the standard of proof more akin to that in an ordinary negligence case.

I know the plaintiff's lawyer, Ron Murphy of New Britain and hope to get a chance to talk with him after the oral argument.