The Kickham Comment - Boston Accident Lawyer Blog
A recent case settlement in the area of liquor liability, shows that despite improvement in recent years, there are still bars and restaurants that continue to negligently serve alcohol to intoxicated patrons, when they clearly shouldn’t be doing so.
This recent case involved serious injuries that two female drivers sustained in a Massachusetts car accident when the pickup truck they were traveling in on Interstate 95, was rammed from behind by a drunk driver. The vehicle in which the two plaintiffs were driving was caused to roll over several times before coming to rest on its side, and the occupants sustained serious injuries. The driver of the pickup, 29, suffered multiple rib fractures. The 32-year-old passenger suffered a severe open fracture of her right tibia and fibula, and required several surgeries for the surgical implantation of a metal rod. The offending driver was arrested at the scene, but refused a breathalyzer test, and therefore, no blood alcohol test was resultantly available to introduce as evidence that this driver was intoxcated at the time of the accident, at either the criminal, or civil trial which the plaintiffs instituted against the defendant for monetary damages. Notwithstanding, at deposition during the litigation of the civil case, (note: for obvious reasons, this defendant never would have admitted the following at his criminal trial, but in the civil trial, it was the bar that was the party really “on the hook” not him,) the defendant driver testified that he has consumed approximately 12 beers and four shots of liquor at the bar he was drinking at on the evening in question. That’s damaging evidence enough of negligence against the bar, but it gets worse: Evidence in the form of bar receipts – which the bar did its best to conceal from the plaintiffs’ attorney – showed that the waitress who served the defendant all these drinks, was given a $100 tip for doing so (in other words, for not “shutting off” the customer).
So where does this liability for personal injuires come from, what is it called, and why should the bar owners be held liable for the actions of an irresponsible and greedy waitress? All good questions. First, this type of civil liability – popularly known as liquor liability but known within the legal profession as “Dram Shop Liability” (the term comes from historical case law) – arises from the legal duty that a restaurant, bar or tavern owner owes to its patrons as well as to members of the general public, to train, supervise and monitor its bartenders and wait staff in the responsible practice of serving alcohol. That training, almost universally provided under an industry program known as TIPS (for Training for Intervention ProcedureS.) TIPS is a nationwide program used almost universally in the restaurant and bar industries, to educate and train servers and wait staff in the responsible service, sale, and consumption of alcohol. The whole point is designed to prevent negligence and resulting personal injuries that may follow from patrons becoming overly intoxicated.
The focus is designed to enable bar and wait staff to be able to quickly spot intoxication, and prevent excessive drinking, underage drinking and drunk driving by patrons of the establishment. Importantly, though, bar and restaurant owners are repeatedly warned that a one-time training session for wait staff – not followed up by continual monitoring by restaurant management in the skill or compliance level of its servers – will not be effective in minimizing the chance that a patron may be served too much alcohol. Continuous observation of the wait staff by restaurant management is critical to the program’s effectiveness. If servers aren’t continually watched and monitored by restaurant management for enforcement of the program’s goals, it simply won’t work. Seeking higher tips from “satisfied” customers, bartenders and wait staff are likely to “look the other way” – and that’s exactly what happened in this case. With a ‘wink and a nod,” the waitress serving this intoxicated patron kept serving him (over 12 beers plus hard liquor) and in return received a $100.00 tip on $50.00 bill. That patron then went out, drove while intoxicated, and almost killed two innocent people. Given the high number of fatalties caused by drunk drivers, these two people are quite lucky they survived.
I’ll explain why the restaurant was legally liable for the injuries that resulted when this patron then drove drunk and injured the plaintiffs, in my next post.