This document summarizes strategies for handling dram shop liability cases in Washington state. It discusses: 1) Social hosts are generally not liable for injuries caused by intoxicated guests, while commercial establishments can be liable if they serve obviously intoxicated patrons who then cause injuries. 2) Case law established that social hosts are not liable even if they serve alcohol to minors. 3) Commercial establishments may be liable to third parties injured by patrons served while obviously intoxicated, though proving obvious intoxication is difficult without eyewitnesses. 4) More recent cases have lowered the standard of proof from "obviously intoxicated" to "apparently intoxicated," making it easier for plaintiffs to establish commercial establishment liability

1. PRACTICAL STRATEGIES FOR HANDLING A DRAM SHOP CASE
Edward K. Le, Esq.
Edward K. Le, PLLC
135 Park Ave N.
Renton, Wa 98057
425 336-2255
www.edwardkle.com
edward@edwardkle.com
Washington formerly had a Dram Shop Act before 1955 codified in former R.C.W.
4.24.100 which allowed persons to file a claim against any person who, by providing
intoxicating liquors, caused the intoxication of such person. However, the statute was repealed
in 1955 and since then, actions against tavern keepers, bars, and establishments that sold alcohol
relied upon common law principles of liability and negligence. Since then, the body of case
authorities has carved out some notable rules and exceptions that should be recognized by
personal injury practitioners.
A. Social Hosts Who Are Not in the Business of Supplying Alcohol or Intoxicants Are
Usually Not Liable
One of the first cases was Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d
897 (1969), where an employee got drunk after an annual Christmas party organized by his
employer, was allowed to leave in his own car, and struck a pedestrian while driving home. The
pedestrian, Mr. Halvorson, sued the employer. The court ultimately determined that non-
commercial providers of intoxicants could not be held liable for injuries caused by those “able-
bodied” persons they provided alcohol to although the court left the door open to possible
1 | P a g e

2. exceptions to the general rule of non-liability, stating that if the rule was going to be changed, it
has to be through legislative rather than judicial means.
After Halvorson, there were numerous cases that were decided on the same issue.
However, the one thing that remained consistent is that social hosts are not held liable for
injuries caused by those who were provided alcohol in a social setting. This applies to either to
injuries the intoxicated guests caused to innocent third parties or to themselves. See Hulse v.
Driver, 11 Wn.App. 509, 524 P.2d 255 (1974) (supplying alcohol at social event to minor driver); Callan
v. O'Neil, 20 Wn.App. 32, 578 P.2d 890 (1978) (sale of alcohol to minors, passenger killed); Estate of Kelly By and
Through Kelly v. Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995) (decedent intoxicated); Baughn v. Malone, 33 Wn.App.
592, 656 P.2d 1118 (1983) (adult passenger/supplier, minor driver); Estate of Bruce Templeton ex rel. Templeton
v. Daffern, 98 Wn.App. 677, 990 P.2d 968 (2000) (minor decedent driver’s estate sues adult party host and landowners for
furnishing alcohol to minor); Tallariti v. Kildare, 63 Wn.App. 453, 820 P.2d 952 (1991) (suit vs. defendant, his employer, and
general contractor for collision caused by intoxicated employee who consumed alcohol at party on job-site)
Burkhart v. Harrod, 110 Wn.2d 381, 755 P.2d 759 (1988) (Wife of decedent motorcyclist v.
social host); Cox v. Malcolm, 60 Wn.App. 894, 808 P.2d 758 (1991) (Infant passenger vs. step-grandfather/social host).
Mills v. Estate of Schwartz, 44 Wash.App. 578, 722 P.2d 1363 (1986) (BYOB employer social host, minor driver). Each of these cases
stands for the proposition that a social host, such as an employer, or a party host, are generally not held liable as a matter of law
unless there is definitive proof that alcohol was furnished to persons who were “….obviously intoxicated,
helpless, or in a special relationship to the furnisher of the intoxicants.” See Dicksinson v.
Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986).
B. Social Hosts are Not Liable Even If they Sell Alcohol to Minors
The basic rule of non-liability even extends to minors who caused injuries to third
persons, the courts reasoning that laws prohibiting the sale of intoxicants to minors were
2 | P a g e

3. designed specifically to protect the minor, and not those who might come into contact with the
minor.
Courts continued, however, to consistently protect minors from themselves, and have
consistently recognized minor’s causes of action relating to the sale to, and consumption of
intoxicants by, minors that result in injuries to the minor purchaser, or other minors they may
pass the alcohol along to. See Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834 (1983), and
Torres v. Salty Sea Days, Inc. 36 Wn.App. 668, 676 P.2d 512 (1984) At least, they do so when given the
opportunity in cases that are properly pled and argued. See Wilson v. Steinbach, 98 Wn.2d 434,
656 P.2d 1030 (1982)
C. Commercial Purveyors and Establishments May Be Held Liable Only to Third
Parties if They Serve Guests or Patrons Who Are “Obviously Intoxicated”
Unlike a social host, one consistent theme that our courts announced repeatedly through
the years is that commercial purveyors and establishments are held to a different standard and
can be found liable to third persons injured by their patrons if the third party could prove that the
intoxicated driver was sold intoxicants was “obviously intoxicated.” However, the patron or
guest who got intoxicated himself or herself are not endow with the same right to pursue a cause
of action for their own injuries against the establishment. See Estate of Kelly By and Through Kelly v.
Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995)[where the Supreme Court held that first-party individual such as a patron or a
business invitee who overconsume alcohol and drives afterwards are not extended the same protection as a third party who is hurt
by such patron].
Proving over-service and meeting the “obviously intoxicated” standard was not an easy task.
The requirements to establish and prove that a bar or tavern served “an obviously intoxicated”
patron was often a herculean problem for most plaintiff attorneys and many, if not most, cases were often
dismissed on summary judgment because the trial courts would invariably require convincing
3 | P a g e

4. proof that the intoxicated driver had been sold or served the intoxicants while he or she was
already “obviously intoxicated.” Usually, to overcome summary judgment, a claimant had to
provide witnesses who saw the patron drunk and being served or admission testimony from the
employee of the establishment itself that they were serving to an individual who clearly
demonstrated signs of impairment. See Purchase v. Meyer, 108 Wn.2d. 220, 737 P.2d 661 (1987).
Appearance at time of purchase was the relevant standard, not the appearance of the driver
subsequently at the accident scene. Since these establishments and their employees rarely, if
ever, will concede that they knowingly would serve alcohol to a patron driver who was
“obviously intoxicated,” the plaintiff attorney would have to seek out independent witnesses to
verify the appearance of intoxication. The “appearance at time of sale and consumption”
requirement made the results of subsequent blood alcohol tests drawn by the arresting officer
irrelevant and useless in most cases.
The notable exception, of course, is when the intoxicated patron driver himself admits to
consuming an inordinate amount of drinks immediately before the collision. For example, in
Dickerson v. Chadwell, Inc., 62 Wn. App. 426, 814 P.2d 687 (1991), the driver there admitted
that he had 15-20 drinks in 3 ½ hours immediately prior to the collision. The Supreme Court
held that based upon the number of drinks, there was sufficient circumstantial proof to warrant
the case to be submitted to a jury.
The Dickerson v. Chadwell, Inc. holding was significant in several regards. It marked
the first time that Washington courts allowed circumstantial evidence to be used as evidence to
meet the “obviously intoxicated” threshold. The Court held that (1) observations of signs of
obvious intoxication close in time to the last sale or consumption of the intoxicant, and/or (2) an
admission of quantities consumed is sufficient to raise an inference of obvious intoxication.
4 | P a g e

5. Dickinson at pages 464-65.
Dickinson is also important in another respect. There, the defendants were not only the
driver, but also the driver’s employer who hosted the party where alcohol was consumed, and the
commercial establishment where the party was held. The employer sought to escape liability by
arguing that it did not “serve” alcohol to Mr. Edwards, while the restaurant sought to escape
liability by arguing that it did not “sell” the alcohol to Mr. Edwards. The court refused to accept
either argument, stating that “the relevant inquiry is who had the authority to deny further service
of alcohol when intoxication became apparent.”1
A second basis of liability against the party host/employer was found in Dickinson, where
the court laid out the proof requirements necessary to establish respondeat superior liability in
cases where employers host parties for employees, hold that a plaintiff may recover from a
banquet-hosting employer if the following prima facie case is proven:
1. The employee consumed alcohol at a party hosted by the employer which was held to
further the employer's interest in some way and at which the employee's presence was
requested or impliedly or expressly required by the employer.
2. The employee negligently consumed alcohol to the point of intoxication when he knew or
should have known he would need to operate a vehicle on some public highway upon leaving
the banquet.
3. The employee caused the accident while driving from the banquet.
4. The proximate cause of the accident, the intoxication, occurred at the time the employee
negligently consumed the alcohol.
5. Since this banquet was beneficial to the employer who impliedly or expressly required the
employee's attendance, the employee negligently consumed this alcohol during the scope of
his employment.
1
See Halligan v.
Pupo, 37
Wash.App. 84,
88-89, 678 P.2d
1295 (1984)
5 | P a g e

6. The employer is, therefore, vicariously liable under respondeat superior on the ground
that the proximate cause of the accident occurred while the employee was acting within the
scope of his employment.
D. The Evolving Standard of Proof Requirements; From “Obviously Intoxicated” to “Apparently
Intoxicated”
Barrett v. Lucky Seven Saloon, Inc.152 Wash.2d 259, 96 P.3d 386 (2004) changed the rules of the game.
After decades of the dram shop repeal, the Supreme Court announced a new standard of proof towards demonstrating whether a
commercial establishment may be held liable or not. There, the plaintiff was injured in an automobile accident caused by a driver
and patron of the Lucky Seven Saloon. The patron admitted that he had consumed at least two or three pitchers of beer and then
climbed into his car and drove away. While driving, he fell asleep at the wheel, crossed the centerline, and collided with Barrett.
His blood alcohol content at the time was one and a half times over the legal limit.
Barrett’s counsel contended that the Lucky Saloon served the driver when he “was obviously intoxicated,
under the influence of liquor and apparently under the influence of alcohol.” The complaint alleged
violations of the common law “obvious intoxication” standard, as well as the “apparent intoxication” standard set forth in R.C.W.
66.44.200
2
and WAC 314-16-1503
.
The trial court refused to adopt the “apparent intoxication” standard contained either in
R.C.W. 66.44.200 or in WAC 314-16-150(1) nor gave the plaintiff’s proposed instruction regarding the
violation of statute/administrative regulation referencing that standard. After a defense verdict,
Barrett appealed. The case eventually wound up in the Washington Supreme Court where the
2
R.C.W.
66.44.200 states
in pertinent part
as follows:
(1) No person shall sell to any liquor to any person apparently under the influence of liquor.
3
314-16-150. No sale of liquor to minors, intoxicated persons, etc.
(1) No retail licensee shall give or otherwise supply liquor to any person under the age of twenty-one years,
either for his/her own use or for the use of his/her parent or of any other person; or to any person
apparently under the influence of liquor; nor shall any licensee or employee thereof permit any person
under the said age or in said condition to consume liquor on his/her premises, or on any premises adjacent
thereto and under his/her control.
6 | P a g e

7. issue was determined to be of first impression and carefully framed as to whether the “apparently
intoxicated” standard in RCW 66.44.200(1) established a standard for liability against a
commercial purveyor.
The Court held that it was. The Court was also very definitive in holding that there is a
big distinction between what it appears to “obvious” from what appears to be “apparent.” The
Court held that the two terms are not synonymous and that the “obviously intoxicated” standard
is more unfavorable to a claimant than they “apparently intoxicated” standard, which has a
different connotation to jurors.
As the Dickerson court suggested, the dictionary definitions of “apparently” and
“obviously” establish a distinction: “apparently” is defined as “in an apparent manner:
seemingly, evidently,” whereas “obviously” is defined as “in an obvious manner:
certainly.” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE 103, 1559 (2002) (emphasis added). The definitions of the
adjectives likewise show that “apparently” implies less certainty than “obviously.” The
word “apparent” is defined as “readily perceptible to the senses” and “ capable of being
readily perceived by the sensibilities or understanding as certainly existent or present”; in
contrast, “obvious” is defined as “readily perceived by the senses” and “readily ...
perceived by the sensibilities or mind.” Id. at 102, 1559 (emphasis added). While these
definitions support Division One's conclusion that “unlike the determination of
something obvious, determination of something apparent requires at least some reflection
and thought,” Dickerson, 62 Wash.App. at 435 n. 4, 814 P.2d 687 (emphasis added),
other definitions reinforce the conclusion that the adverb “apparently” implies less
certainty than “obviously.” For example, the word “obvious” is also defined as “so
simple and clear as to be unmistakable” and “disappointingly simple and easy to discover
or interpret.” WEBSTER'S THIRD, supra, at 1559. Whereas these definitions establish
that something is “obvious” when it is virtually certain to the senses or understanding,
definitions of “apparent” approach the opposite end of the semantic spectrum, suggesting
that something that is “apparent” may be “distinct from or contrary to reality or truth” or
may “describe a semblance contrary to truth and actuality.” Id. at 102-03. Thus, these
definitions of the adjectives likewise support the potentially distinct definitions of the
adverbs-“obviously” as “certainly,” “apparently” as “seemingly.
In sum, we accept the parties' position that the two standards-“apparently under the
influence” and “obviously intoxicated”-differ meaningfully.”
Based upon the linguistic analysis of the two terms, the Court then determined that
R.C.W. 66.44.200(1) did indeed established a standard of care for commercial purveyors of
7 | P a g e

8. alcoholic beverages. Interestingly, while the court was careful to explain that its decision did
not constitute a real change in existing law, the decision was embraced as a landmark among
plaintiff’s attorney.
In essence, Barrett not only changed the standard by which commercial sellers’ behavior
are judged, it allowed new types of circumstantial evidence to be presented in prosecuting the
dram shop case. Yes, the plaintiff must still present evidence the intoxicated driver was
“apparently” intoxicated at the time he was furnished with alcohol. And yes, a blood alcohol test
result, by itself, would still usually be not enough to meet the burden of proof. However, the
holding clearly loosen the harsher requirements established earlier in Dickinson, where there
must be direct observation of the intoxicated driver that were made close in time between the
consumption and the collision to support the inference of “apparent intoxication.”
E. Post-Case Authorities Following Barrett v. Lucky Saloon
Since Barrett, the case law seems mixed. For example, in Faust v. Albertsons, 143
Wn.App. 272, 178 P.3d 358 (2008), Division II of the Court of Appeals reversed a jury verdict in
favor of plaintiffs who were injured when their vehicle was struck by an intoxicated driver. The
court acknowledged and reaffirmed the standard set in Barrett - the “apparent intoxication”
standard, but held firm to the long line of cases requiring evidence of “apparent intoxication” at
the time of service, and not at the time of the collision.
To meet the legal standard, then, plaintiffs must still present evidence that the imbiber
was “seemingly” or “apparently” drunk at the time alcoholic beverages were served to him or
her. There simply is no allowable substitute for direct observation, either at the time of actual
consumption, or after an event that occurred in very close proximity to the time of last
8 | P a g e

9. consumption. If the direct or circumstantial evidence does not show that service occurred in the
face of “apparent” or “seeming” intoxication, the evidence will almost certainly be deemed
insufficient to raise an issue of fact as to over-service.
Under the referenced cases, proof of the intoxicated persons BA numbers, alone, still will
not get you to the jury. There must be evidence based on direct observation that the offender was
served while apparently intoxicated. The issue was addressed in Weber v. Budget Truck Rental,
LLC, 161 Wash. App. 1011 (2011),
“[B]ecause the standard of liability revolves around appearance, any direct or circumstantial
evidence must address actual rather than assumed appearance. Under this rule, jurors are not
permitted to make an inferential leap of the ‘driver's BAC was X, so he must have appeared
drunk’ type.”11
Predmore's testimony is of exactly this type and is similarly insufficient to prove
Turner appeared intoxicated at the time of the rental.
If the basis of the claim is injury due to the criminal behavior of an intoxicated person,
other than driving while intoxicated, for example, assaultive behavior, claimant must present
proof that the alcohol purveyor had actual notice of the violent propensities of the intoxicated
person. The issue was addressed in Cameron v. Murray, 151 Wn.App. 646, 214 P.2d 150 (2009).
There, a young man was assaulted at a party where minors were served alcohol. He died four
months later of injuries found to be caused by the assault. His parents sued. The court, describing
the proof required, stated at page 654,
Liability will not be imposed unless the furnisher had more specific notice that the
intoxicated person has violent propensities. It is not enough to rely on the general notion
that bad things happen when crowds of young people get very drunk together. Even in
Parrilla, the closest Washington case Cameron can offer in her attempt to get past
Christen, the court found it significant that (1) the driver was specifically aware of the
passenger's impairment and (2) the harm was caused immediately upon allowing the
passenger to get control of the bus, not at “a remote future time by an unknown
individual.” Parrilla, 138 Wash.App. at 440, 157 P.3d 879.
The Cameron scenario is distinguishable from cases where the purveyor has notice of
threatening behavior, or threats of violence made by the eventual assailant. There, the seller has a
9 | P a g e

10. duty to intervene, based on his duty as a landowner/business to provide invitees with reasonably
safe premises. So, when he behavior that causes injury is criminal, there will be no liability unless the
defendant knew, or had reason to know, of the actor’s violent propensities and that criminal behavior was
within the realm of foreseeable behaviors. This is true whether or not the purveyor is a social host or a
commercial purveyor of alcohol, and whether or not the criminal actor is an adult, or a minor. See
Christen, supra.
F. Practical Strategies to Handle a Dram Shop Case
Dram shop cases can pose challenges. The unwary practitioner can easily get his case
dismissed on summary judgment if he is not ready to aggressively prosecute his case from day
one. The rest of the tips below are to give you some more practical insights about what to do to
effectively prosecute a dram shop case.
1. Review the Case Law to Understand the Legal Standards and Necessary Proof
Requirements to Overcome Summary Judgment.
Above all else, the first thing you should do to serve your clients well is to review all of
the relevant dram shop case law before undertaking your investigation. These cases are not
cheap, require a lot of experts, and are often defended very vigorously. In virtually every dram
shop case, you should expect that the defense will file a motion for summary judgment. It is
important that you know this in mind so that you can anticipate its eventuality and collect the
necessary information you need to overcome it.
2. Hire A Competent Investigator Immediately
You have listened to the prospective clients, or their surviving heirs, share the horror of
the accident event. You have decided to investigate the claim further. There are several questions
10 | P a g e

11. that can and must be answered to determine the viability of the over service claim. The decision
to file suit must be based on an objective assessment of the facts, to include whether there are
sufficient facts to overcome summary judgment.
Often, more usually than not, the difference between whether you have a winning or a
losing dram shop case will depend on how fast or early you are able to immediately conduct
investigation of the bar. This is because the most damning evidence against a bar or liquor
serving establishment is direct evidence of the bar’s service of alcohol to an intoxicated customer
or to a minor. However, it has been my experience that bartenders, waiters, and waitresses will
rarely admit to having served a patron who was apparently or visibly intoxicated. They will
usually “toe the line” of their employer and will not cooperate with you. There are many bar
owners who work as the bartenders themselves. Hence, in any event, it will be difficult to
obtain informal information from the bartenders, waiters or waitresses that will significantly help
your case.
It has been my experience that you will need to look to other sources of proof, such as
the drunk driver’s own admissions (perhaps obtained in the course of a criminal proceeding or in
a Statement of Probable Cause), observations of other bar customers and witnesses to the drunk
drivers conduct at the scene of the accident, and opinions of expert toxicologists.
Identifying bar patrons who were there at the same time as the drunk driver can be
challenging, but not insurmountable. Obtaining the prosecutor’s file may help you find
witnesses that you may usually find difficult to obtain on your own since most individuals feel
compelled to assist law enforcement if there is an underlying criminal case. However, it is my
experience that these same witnesses may not share the same compulsion to assist a private
attorney. This is where a good private investigator comes in handy, especially one who is
11 | P a g e

12. familiar with the area around the bar can also identify the bar’s usual customers on a particular
night. If the investigator is not familiar with the business, then he should at least “stake out” the
best for a week or two to understand the regular patrons who may frequently come there. They
tend to congregate with their friends and buddies at these “watering holes” and may have
important information about how much the driver was drinking that night, whether such driver
show any signs or appearance of intoxication, and whether the bartender or any
waiters/waitresses stop giving the driver any further drinks at the first sign of intoxication like
the following.
If this route does not yield results, considering subpoenaing all of the credit card receipts
or bar tabs or obtained them through written discovery so that these other patrons who were there
the night the driver caused injuries may be tracked down.
Once these witnesses are interviewed, make sure that it is recorded by your investigator.
With regards to those potential eyewitnesses who are able to talk about signs of intoxication the
drunk driver exhibited the night of the incident but that the bar continued to serve him or her
nonetheless, depose these witnesses immediately to preserve their testimony for trial.
If the bar later argues that these eyewitness testimony from bar patrons is not believable
because they were intoxicated themselves, note the inherent contradiction in their defense. On
the one hand, the bar is claiming that the driver was not served while visibly intoxicated. Yet,
now on the other hand, it is now at the same time claiming that everyone else in the bar was too
intoxicated to provide credible evidence. So, how would they know enough to recognize that
these other patrons were drunk but not the same driver who eventually caused your client’s
injury?
12 | P a g e

13. 3. Immediately Initiate Contact with Law Enforcement and Offer Cooperation
Most of the best evidence you will collect in a Dram Shop case is from the local police
department or Washington State Patrol. For example, if the accident in your client’s case is
severe enough, the local prosecuting attorney’s office will have already conducted much of your
investigation for you. If it is a collision that occurred on the freeways or highways, the
Washington State Trooper are of immense help. These agencies conduct extensive investigation
about the collision to prosecute the drunk driver. In addition, if your case is serious enough, the
city or state, through its major crash unit, will performed an accident reconstruction to
reconstruct how the events occurred. The prosecuting municipality or state may have hired a
toxicologist who can provide critical details as to the driver’s impairment at the time of the arrest
and at the same extrapolate what the driver’s BAC levels were at the time he/she left the bar.
This free discovery is not only invaluable to your case, it is a gift you simply cannot turn
down. The only drawback, however, is that you must typically wait for the criminal case to
conclude to obtain these files because most prosecutors do not want to waive their work product
privilege until a plea is entered.
For the patient plaintiff’s attorney, however, they usually contain a wealth of
information, including the defendant driver’s criminal history; the blood alcohol content
obtained from the driver, the Breathalyzer test, the Widmark’s formula, the statement of
probable cause that may elicit how much alcohol the driver consumed before leaving the
establishment, the relevant accident facts, the vehicle black box data of the driver, the accident
reconstruction performed by the trooper or office, witness statements relating to how the driver
was driving before the collision, witness statements as to how much the driver consumed at the
bar, speed estimates, and the field sobriety report regarding the level of impairment of the
driver. These are all golden information that are invaluable to helping you prove your case or at
13 | P a g e

14. the very least, overcome summary judgment at a later date.
While you are doing this, search out the crime victim’s advocate for your client so that
person can more fully keep you apprise of information. Under Washington laws, there is a
Crime Victim’s Act that allows your client to be apprised of all criminal proceedings and the
right to be kept in the loop about information that are disbursed or shared with the public. As
you proceed through the investigative process, having an alliance with the advocate can be a
boon for your later suit against the establishment as the advocate can marshal the assistance you
need from the law enforcement officers who did the investigation and the prosecutors who
collected the evidence to prosecute the driver.
4. Review the Field Sobriety Test Video
If there is a field sobriety test video taken by the officer or trooper at the scene of arrest,
these videos will be highly valuable evidence for you later on. These videographic evidence is
especially helpful if the collision occurs soon or within a relatively short period of time after the
driver left the bar or tavern. You can then later argue that the impairment that were visibly
observed on the video were so apparent to an average observer that it is difficult to understand
how a bartender or waiter could have missed these obvious impairment signs when the driver
was drinking and left.
5. Issue and Serve a “Notice Against Spoliation of Evidence” or a “Notice of Litigation
Hold” to the Commercial Establishment
Once your client comes in and signs up to be your client, the first think you should do is
issue and serve a Notice against Spoliation of Evidence. In addition, you should consider
14 | P a g e

15. promptly filing a lawsuit and issuing Notice of Litigation Hold. The purpose is to make sure
that the bar or liquor serving establishment does not erase any videos from any surveillance
cameras, trashed any bar patron receipts, or remove any documents, signs, flyers, or materials
that would incriminate or portray the business as a party haven for drinkers. It is possible that
some bars or taverns have closed caption security cameras to record and videotape the night of
the incident because they rely on the cameras to provide for their own safety and serve as a
deterrence to criminal activities at the establishment. Naturally, these videos can offer damning
evidence against the bar by potentially showing how the driver acted and move the night he was
drinking and later causing the collision.
An even better is to file a lawsuit and go obtain a TRO ex parte against the destruction or
spoliation of any evidence from the establishment. This way, you can asked for a permanent
order against the spoliation of these important evidence in a later motion to show cause.
6. Serve Freedom of Information Act [FOIA] Requests on the Liquor Control Board
And Local Law Enforcement Agencies to Obtain Information about the Bar
There is a treasure trove of useful information that may exist about the establishment
where the driver had been drinking. Consider retaining an investigator to obtain all public
records on the history of bar such as obtaining the application, permit, and safety history and
complaints. In Washington, for example, the state’s liquor control board can provide a bar’s
liquor license applications, renewals, violations, and previous citations for over-service to an
adult or service to a minor. A bar’s owner usually signs these documents under penalty of
perjury, so if the owner disputes the records, these documents may be used either in depositions
or at trial against him or her.
Also send out FOIA requests to obtain police reports from prior disturbances and
15 | P a g e

16. incidents at the bar. How many DUI arrests has the police or state trooper made with regards to
the bars patrons? Are there certain nights where more arrests are made compare to other nights?
Were there occasions where the police were called to remove drunken patrons, make arrests for
disorderly conduct, or break up fights? The bar may be listed as the complaining witness on
these reports. If so, use them to question the bar’s owner or manager about the atmosphere
encouraged or permitted there.
Seek the CAD [Criminal Activity Details] reports for alcohol related offenses or criminal
incidents, including drunken assaults, DUIs, and disorderly conduct geographically surrounding
the area where the bar is located.
All of these “other similar incidents” evidence serve as powerful circumstantial evidence
that are not only persuasive to jurors in establishing the lax enforcement nature of the bar with
regards to allowing drunk patrons to leave, but also substantiate their reckless disregarding for
members of the innocent public who may eventually be injured by one of these patrons.
7. Conduct a Personal Visit to the Establishment Where the Driver Had Been
Drinking
A visit to the bar in question also provides invaluable information—especially if you go
at the same time of day or night that the drunk driver was there. You will be able to observe the
bar’s liquor-serving policies, its atmosphere, and the sight lines from the bar into the service area
of the establishment. In some instances, you may find that the bar or liquor establishment may
have advertised a promotion or event which encourage or fostered an atmosphere of intoxication.
For example, there were event nights at some bars that our firm investigated that offered half-
price drinks on certain nights of the week. Others had slogans such as “Drink ‘Til You Drop” or
16 | P a g e

17. “Pound ‘til You Pee.” Still others had very rowdy or raucous crowds on some weekend nights
where they were so understaffed to the proportionate ration of drinking patrons that the
bartenders or employees were oblivious to the state of their patrons and could care less how
much drinks these patrons were ingesting. While these are not direct evidence of how the driver
who injured your client may be intoxicated on the day of the incident, it is good circumstantial
evidence of “patterns, practices, and procedures” relating to the indifference of the bars to the
intoxication state of their patrons. At the very least, these evidence may help you argue that the
serious lack of crowd control and perpetual understaffing contributed to a lax policy of
monitoring enforcement and an atmosphere where widespread intoxication is tolerated.
8. Investigate the Training Provided to Employees to Recognized Apparently
Intoxicated patrons
Bar owners and operators have a duty to train their employees, bartenders,
waiters/waitresses, and others to monitor patrons who they served drinks to for classic signs of
intoxication such as consumption of large amounts of alcohol such as:
• the odor of alcohol on the drinker
• slurred speech
• staggering gait
• poor hand-eye coordination
• glassy or bloodshot eyes
• loud and obnoxious behavior
• decreased ability to comprehend and follow instructions
• decreased motor function
• Increased aggressiveness.
During discovery depositions, investigate what these employees were trained or
17 | P a g e

18. instructed on to monitor these signs. Were they trained to listen to the customers, engage them
in conversation to evaluate for these symptoms, watch what they are drinking, observe them as
they walk to the restroom, or see if they can consistently put their drinks back on coasters or
napkins? These are important areas of inquiries to investigate. Additionally, did the bar or
commercial establishment create any type of programs to give their employees training to meet
their responsibility to the public or did they just delegate this function to their employee’s
discretion?
9. Conduct Thorough Written Discovery of the Commercial Establishment
Dram-shop cases pose many challenges, especially because they often involve competing
versions of the same story due to the effect alcohol has on memory. You need to thoroughly
investigate the case, assess the credibility of individual witnesses, and work with qualified
experts to develop the evidence you need to defeat defenses and get justice for your client. In
fact, dram shop cases are often dependent on aggressive early discovery. You should consider
filing suit immediately so that you can jumped on early discovery. As often with most
incidents and events, people’s memories fade, evidence gets lost, and powerful evidence that
could have materially assist your case has now been deleted or tossed away. This is why you
need to file early get an Order to Preserve the Evidence. Once done, immediately serve written
discovery to request the following items from the bar:
• Surveillance video, which may show the driver’s actions. Send a letter to all potential
defendants at the investigation’s outset, advising them that surveillance videos are critical
evidence and should be preserved.
• Credit card receipts. These often provide good evidence of intoxication by showing
excessive numbers of drinks ordered at one time; excessive tipping; and inappropriate
completion of the receipt (writing the tip or total in the wrong place or signing the receipt
18 | P a g e

19. in the wrong place).
• Training manuals, especially handbooks that outline the responsibilities of bartenders,
waiters, and waitresses.
• General interrogatories and requests for production of documents that identify the
necessary information you need to depose essential eyewitnesses at the bar on the day or
night in question. Interrogatories should be served to identify the bartender who was on
duty at the bar at the time in question and what their roles were. Every bartender on duty
then should be deposed.
• Once eyewitnesses are identify, depose them early so their memories are still fresh.
10. Depose Every Bartender Who Was Present the Day/Night the Driver Was Served
Deposing every bartender who was working at the bar or establishment the night the
defendant driver injured your client is crucial. It is from these depositions that you will find out
critical information relating to their training, the policies that they were instructed, how these
polices were enforced or not, and what instructions they receive about state law with respect to
serving alcohol to minors and/or patrons who appear to be intoxicated. Some questions may
help elicit important information:
• Does the bar encourage the sale of alcohol?
• What are the drink specials, and do they encourage people to drink more or bring in
bigger crowds?
• Do large crowds make it more difficult to monitor for signs of visible intoxication?
• Are you trained to keep track of the number of drinks a patron consumes or to establish a
19 | P a g e

20. baseline for a patron’s behavior before the first drink is served?
• Does the bar enforce a drink limit, and if so, are customers permitted to drink more if
they are not driving?
• Have you ever served a customer who appeared intoxicated?
• Have you ever had to cut off a customer from service? If so, how often and what is the
procedure? Is a flag book or log kept, in which individuals are flagged for drinking too
much, fighting, or failing to pay bar tabs?
Because bartenders seldom admit serving a visibly intoxicated patron, try to get them to
agree that intoxication is a sliding scale. That is, people do not become visibly intoxicated at
once. Rather, it’s a process, and bartenders are the front line in protecting both that driver and the
process from harm because it is they who are empowered with the obligation to slow down that
process before anyone gets hurt.
After the bartenders agree that intoxication is a sliding scale, occurring as a process, ask
them what they do when they notice the first signs of intoxication. Some bartenders will answer
that they will ignore the customer for a time or slow down service of alcohol. Those answers are
admissions that they have violated the law, because they did not stop service entirely.
Knowing what behaviors a drunk driver is likely to exhibit while intoxicated will help
you show how servers may identify intoxication. One government report demonstrated that
different classes of people are more likely to show different signs of intoxication.6 For example,
a drunk young man is more likely to become aggressive, while a drunk older man is more likely
to become amorous.
One study has shown that server intervention plays a small role in injury prevention,
20 | P a g e

21. because servers have little incentive to cut off service to drunk customers.7 Because bartenders
rely largely on tips for their income, when a bartender is forced to cut off a patron, part of his or
her income stream has been eliminated for that night, and possibly longer. To counteract the
economic incentive to keep serving drunk patrons, the bar must have a strong policy that
encourages servers to do otherwise.
11. Prepare to Rebut and Address the Common Defenses
Invariably, dram-shop cases are usually defended on several fronts. Anticipate and be
prepared to address these common defenses. The first defense that most commercial
establishment defendant usually argue is that the patron was not served while they were
apparently intoxicated because the driver did not appear to be visibly drunk. In fact, the
waiters, waitresses, or bartenders from these businesses are likely to say that they do not recall
who the driver was and that it is their policy not to serve anyone who is visibly intoxicated. To
overcome this defense, present as much circumstantial evidence of intoxication as you can
gather. Hire a good toxicologist who can conduct a temporal or “relation-back” analysis to
extrapolate what the defendant’s BAC level was at the time he left the bar to demonstrate that at
such a level, the symptoms of impairment and intoxication was such that it would be difficult to
ignore and that the driver was probably exhibiting signs of intoxication while drinking at the bar.
However, be prepare to anticipate that the defense will likely contest this toxicology testimony
vehemently and argue that it is impossible to know with certainty the rate at which a person
metabolizes alcohol. The way to handle this is to have the toxicologist explain that there are
standard and accepted ranges of metabolism and that the driver’s BAC was clearly in this range,
given his height and weight, even if his metabolism rate may not be known precisely.
The second defense you may encounter these same establishment to argue is that even if
21 | P a g e

22. the drunk driver had a high BAC at the bar, he or she was not visibly intoxicated because the
driver is tolerant of alcohol. The “tolerance effect” defense is based on the general concept that
the more a person drinks, the less likely they are to show visible signs of intoxication during any
one drinking episode. Hence, a person who is tolerant of alcohol may be impaired by drinking
but his intoxication may not be as apparent. Be aware of this and consider a strategy of not
conducting discovery or asking the driver about his/her drinking history during deposition. The
reason is that if the driver testifies that he or she is tolerant of alcohol, the plaintiff must concede
that the driver’s BAC would have to be extremely high, or at least higher than the test results
showed, in order to display signs of intoxication that bar employees would be expected to notice.
Another strategy would be to go ahead and ask the question but move to exclude it
through a motion in limine at a later time if it is damaging to your case. This all depends on a
variety of factors. For example, the younger a person is, the less time he or she has had to
become tolerant of the effects of alcohol. Further, look at the driver’s criminal history. If they
argue that they are tolerant of alcohol, then there should be no reason why they have been
arrested so many times for DUI. A person who appears sober while impaired should not have
multiple arrests for alcohol-related offenses.
Third, you may encounter a defense raised from the establishment that since everyone in
the bar was loud and having a good time, nobody appeared overly intoxicated. This is a dubious
argument you can apply “judo law” and turned it around on the establishment. Argue that a
noisy bar is more of an excuse than a defense since the law makes no exception to liability for
bars that allow a loud or rowdy environment. Even the most raucous bars are obligated to
follow the law and protect the public from the potential harm of a drunk driver. Further, if the
bar can’t manage their own business to operate in an orderly way, then how can they entrusted to
22 | P a g e

23. protect the public?
G. Conclusions
Dram shop cases are not easy cases to pursue. Successful recoveries in the dram shop
case often boils down to the aggressiveness and tenacity of the plaintiff attorney during the early
stages of the case. However, with the right mindset and a strong solitude, justice can be
obtained for the deserving clients.
23 | P a g e