Visible Intoxication Standard Affirmed
Visible Intoxication Standard Affirmed, By Jan Trendowski, October 10, 2012
The Connecticut Supreme Court recently issued its written decision in the O’Dell vs. Kozee case, which was a challenge to the visibility standard in Dram Shop cases. The ruling affirmed the visibility standard and pretty much left the law the way it’s been for decades. While the decision has a couple of loose ends, it is a significant relief to liquor sellers and their insurers. The case arose from an incident in 2006 when Joel Pratcher went to the Déjà Vu café in Plainville with a friend, Patrick O’Dell. While he was there, Pratcher stated that he had five beers and three shots. He testified that he was ultimately drunk, but that he did not show any visible signs of intoxication such as slurring or staggering. When the two left, they struck a parked vehicle, ejecting O’Dell, who was then struck by a tow truck and killed. Pratcher had a .187 BAC. The plaintiff’s toxicologist testified that for Pratcher to reach a .187, he had to have at least 20 drinks and that he was in that range while at the bar and being served. Statistically, it is much more likely than not that a person would show visible signs of intoxication at that level. The plaintiff won $4 million but the Connecticut Appellate Court reversed, holding that the standard was visible intoxication, not BAC. The trial judge had told the jury that visible signs were NOT required to prove the plaintiff’s case. The Supreme Court agreed that visible signs were required, though they sent the case back for a second trial under the proper interpretation of the law.
The plaintiff had argued that the standard for liability should be a .08 BAC, like drunk driving. The problem at a .08 is that only a minority of people show any signs at that level. This is why police require a driver to do a roadside test if they suspect intoxication. At a .08, the signs are generally not evident until you force the driver to perform certain tasks. For example, if two people are at .08 and one is sitting still and the other is dancing, it’s more likely that you will see signs in the dancing person. Further, there is really no way for a server to determine a person’s BAC with any accuracy, as it’s dependent on body weight, respiration, gender, tolerance, food, medications, how the reading is taken, time, etc. Finally, the .08 is not a scientific level, but a politically determined level. The level for DUI used to be .15, then .10, then .08 as the political climate changed. It’s like the age for minors, which was 21, then 18, then back up to 21 because of political decisions.
Note that the decision was a majority decision, with two justices dissenting and arguing that a .08 BAC should be the standard for Dram Shop liability. The two justices, Chase Rogers and Dennis Eveleigh, are both very rational and intelligent people, so this decision was not a slam dunk by any stretch of the imagination. From my own perspective, I am pleased with the decision as it affirms a number of earlier decisions that were losing their effect. It should also stop a movement at the trial level where some judges were rejecting the visibility standard and leaving the definition of intoxication wide open. As the Dram Shop statute doesn’t expressly say “visible," the judges felt that they could define intoxication any way they wanted. Some two years ago I spent four weeks on trial with a liquor case. The judge refused to give the jury a definition of intoxication and, after four days of deliberation, the jury was deadlocked 5-1 with one juror insisting that one drink was “intoxication" under the statute.
Another interesting aspect was the number of parties involved in the case. After the appeal was filed, the plaintiff was joined by the Connecticut Trial Lawyers Association and MADD. The defendant bar was joined by the Connecticut Restaurant Association. While the additional parties were not permitted to argue, they did submit briefs of law; and I was pleased to see that the decision cited much of the law from other states, which was detailed in the CRA brief.