Definition of "Intoxication" Clarified
On May 16, 2011, the Connecticut Appellate Court handed down two decisions which clarified the definition of "intoxication" under the Dram Shop Act. By way of background, The Connecticut Dram Shop Act creates liability for a liquor seller who provides alcohol to an intoxicated patron who thereafter causes injury to another person. The Act has three elements: (1) the sale of liquor to (2) an intoxicated person who (3) causes injury or damage to another as a result of the intoxication. There has been an ongoing dispute in Connecticut trial courts over the past several years regarding the second element; that is, what is the definition of an "intoxicated" person? Traditionally, courts had defined intoxication as visible intoxication. In order to establish the second element, the patron had to exhibit some signs of intoxication such as imbalance, slurring, odd behavior, and so on. The unspoken rationale was that the seller would see the intoxication and have an opportunity to stop service. Indeed, all of the safe service training programs concentrate on detecting the signs of intoxication at various levels.
Several years ago, a trial judge in New London held that as the Dram Shop Act didn't specifically say "visible," that intoxication could mean just about anything. While that may seem like a bad decision, it was a classic example of the old saying that "tough cases make bad law." Over time, several other trial court judges across the state held that visibility was not a requirement under the dram act and that a jury could consider other factors, such as blood alcohol level and studies showing what percentage of people would appear intoxicated at particular levels. These decisions culminated in two jury cases where the juries held two bars responsible for injuries caused by intoxicated patrons even though there was no evidence whatsoever of visible intoxication. In each case a young man was killed, resulting in verdicts of $4 million and $1 million. In Zaneski vs. Thirsty Turtle, the judge overturned the verdict, holding that there was no evidence of visible intoxication. In the O'Dell vs. Kozee case, the judge let the verdict stand. Both cases went up on appeal.
The Appellate Court, in two separate decisions by two different judges, held that the standard for the second element of the Dram Shop Act is "visible" intoxication. Unless an intoxicated person manifests some signs that would be apparent to the casual observer, there is no liability under the Dram Shop Act. The importance of these decisions is significant. Indeed, on the O'Dell case both the Connecticut Restaurant Association and the Connecticut Trial Lawyers Association weighed in by filing briefs on opposing sides. Absent a visible standard, "intoxication" could mean anything from the slight warmth after a single cocktail to minor changes in reaction time after a single beer. I tried a case last April for four weeks which resulted in a mistrial after the judge gave a vague definition of intoxication and a hold out juror decided that a single drink resulted in impairment. Further, as stated above, all of the safe service programs focus on visible signs. Absent a visibility requirement, there really is no way to avoid liability short of refusing to sell alcohol at all.
Although signs of intoxication must be visible, this does not mean that the signs actually have to be seen by the liquor seller. So long as the signs are apparent to a casual observer, the second element is satisfied. As such, it is not a defense that the server simply didn't observe the signs that were there to be seen. To avoid Dram Shop liability, a liquor establishment should take advantage of the various safe service programs which are available and make sure that all employees, including wait staff and security, are properly trained and current on their certifications.