On Monday, May 13, 2011, the Connecticut Appellate Court handed down two decisions which affirmed the “visible intoxication" standard for liability under the Connecticut Dram Shop Act, Connecticut General Statutes Section 30-102. Until these decisions came down, the visibility standard was being eroded by various trial court decisions which were allowing proof of intoxication by other methods, such as blood alcohol content and reaction time impairment, both of which are nearly impossible to observe at levels below .10. On May 14, I began jury selection on a dram shop case. The plaintiff submitted a pleading requesting that the jury be allowed to consider non visible proof of intoxication, even instructions that a finding of “substantial intoxication" was sufficient to trigger liability under the Act. The plaintiff’s request did not define “substantial intoxication," a term which I had never seen in Connecticut case law.
With the new appellate decisions in hand, the court gave the long standing “Saunders" definition of intoxication to the jury which expressly stated that visible intoxication was a requirement. Note that the Saunders definition has been given in Connecticut cases for decades, and it is only in the last few years that trial courts began playing with the language. After three days of trial and five hours of deliberation, the jury returned a verdict in the defendant’s favor. Although the alleged intoxicated person was at .14 at the time of the collision, testimony by two toxicologists established that the driver could not have been visibly intoxicated at the time of last service. The last service had occurred nearly two hours before the collision and immediately after the driver had consumed at least 5 shots of whiskey in the parking lot before entering the establishment. In short, the driver consumed all of the alcohol within a 20- minute span and was served well before the alcohol had fully entered his bloodstream. Witnesses at the bar described the driver as somewhat talkative at the bar, but not exhibiting signs that a casual observer would consider as intoxication.
While the jury wrestled with sympathy for the plaintiff, they adhered to the law and returned a verdict for the defendant. The significance of the case is that it was the first I’ve tried since the visibility standard was confirmed. It was much less confusing to the jury than other cases I’ve tried, since various judges have been putting their own spin on the visibility standard. In some cases the judge would simply add a few lines telling the jury they could consider other factors than visibility, such as blood alcohol levels and drinking pattern. At its worst, the jury sent a question to the judge asking for a clarification of the definition of intoxication, and the judge replied that there was no clear definition. That jury deadlocked, and four weeks of trial went down the drain.
Although the visibility standard is now clear, it is still a standard which liquor servers must adhere to. A little prevention and risk management goes a long way toward preventing Dram Shop claims and making them easier to defend if they are brought. Responsible service training is an issue in each of the cases I’ve tried over the past few years. While standards for the hospitality industry are now so clearly defined, TIPS training is available for free from a number of Connecticut Wholesalers and there is literally no excuse for having untrained employees. Aside from servers, security and floor staff should also be trained as they are equally responsible for identifying and dealing with intoxicated patrons.