WHY LOCAL BARS AND RESTAURANTS NEED TO WORRY ABOUT INTOXICATED PATRONS
The purpose of this article is to provide Arizona's restaurant and bar owners with a deeper understanding of the risks associated with intoxicated patrons. There are several ways for restaurants and bars to be held liable for the negligent and/or wrongful acts of their intoxicated patrons. The most popular theory of liability in the business is known as “dram shop liability."
Before 1983, the common law rule in Arizona was that a tavern (i.e. establishment that sells alcohol) owner could not be held liable for injuries sustained off-premises by third persons as the result of the acts of an intoxicated tavern patron, even though the tavern owner's negligence in serving that patron was a contributing cause of the accident. In 1983, however, the Arizona Supreme Court decided in its decisions in Ontiveros v. Borak andBrannigan v. Raybuck, that the common law doctrine of non-liability for tavern owners should be abolished in Arizona. In Ontiveros, the court further concluded that tavern owner liability could be premised on statutory authority, specifically A.R.S. § 4-244(14) (making it unlawful for a licensee to furnish alcohol to an intoxicated person). In its decisions, the supreme court held that a tavern owner is under a duty, imposed both by common law principles and statute, to exercise affirmative, reasonable care in serving intoxicants to patrons who might later injure themselves or an innocent third party, whether on or off the premises. If a tavern owner breaches that duty of reasonable care, the owner may be held liable for injuries or damages caused by his or her negligence.
The plaintiff, in bringing such an action against a tavern, must prove “causation", or “causation-in-fact", which exists if a tavern’s conduct contributed to the final result and if that result would not have occurred but for the tavern’s conduct.
Three years after the Ontiveros and Brannigan matters were decided, the Arizona legislature passed A.R.S. § 4-311, apparently in an effort to more specifically codify the law established by Ontiveros regarding licensee liability for serving intoxicated persons or minors. Subsection (A) of A.R.S. § 4-311 (2002) provides that a licensee is liable for property damage and personal injuries if a court or jury finds that: (1) the licensee sold spirituous liquor to a purchaser who was obviously intoxicated; (2) the purchaser consumed the spirituous liquor sold by the licensee; and (3) the consumption of the spirituous liquor was a proximate cause of the injury or property damage. "'[O]bviously intoxicated' means inebriated to such an extent that a person's physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction, that would have been obvious to a reasonable person." A.R.S. § 4-311(D); accord A.R.S. § 4-244(14).
In practice, if a Plaintiff files a lawsuit under the “Dram Shop Act," the counts charged would be statutory negligence (which means violating one of the statutes discussed above + causation), and the general claim of negligence.
As the Arizona Supreme Court in Ontiveros v. Borak and Brannigan v. Raybuck established, negligence requires a plaintiff to prove 4 basic elements in order for a tavern to be found liable under the basic negligence theory:
(1) a legal duty or obligation requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
a. Duty: A tavern owner is under a duty, imposed both by common law principles and statute, to exercise affirmative, reasonable care in serving intoxicants to patrons who might later injure themselves or an innocent third party, whether on or off the premises.
(2) a failure on the defendant's part to conform to the standard required;
a. Breach: If a tavern owner breaches that duty of reasonable care, the owner may be held liable for injuries or damages caused by his or her negligence.
(3) a reasonably close causal connection between the conduct and the resulting injury; and
a. Causation: Even if the tavern breached its common law and statutory duties to the plaintiff, the plaintiff must still show causation, and actual causation, or "causation-in-fact," exists if a defendant's act contributed to the final result and if that result would not have occurred but for the defendant's conduct.
(4) actual loss or damage (i.e. physical or property damages).
A tavern owner may be relieved of liability for an injury to which the owner has in fact made a substantial contribution if a plaintiff's injury occurs due to a later, intervening event of independent origin for which the owner is not responsible. To constitute a cause relieving the tavern owner of liability, the intervening event must have also been superseding: that is, it must have been unforeseeable by a reasonable person in the position of the tavern owner and, when looking back after the event, the intervening event must appear extraordinary. Thus, if an injury is produced by an intervening and superseding cause, even though the original negligence may have been a substantial factor in bringing about the injury, the original actor is not legally responsible therefor because the necessary proximate causation is lacking.
Written by: Lawrence M. Lazzara, Jr., Esq.