Decision of the week: Nokes, et al  v. HMS Host USA et al, wherein the Missouri Court of Appeals reversed a summary judgment for the bar, concluding that evidence as to the bar patron’s level of intoxication,

taken together with the drink receipts, the police report, and the expert testimony that such a level of intoxication would produce outward manifestations of intoxication was sufficient

to warrant its decision.

In NY and most other states, the dram shop law’s requirement is  that a bar knowingly serve a visibly intoxicated person  and that may be established through direct and circumstantial evidence.

Nokes, et al…, Background

The patron consumed four Maker’s Mark doubles, each containing 3.5 ounces of alcohol, at the Bud Stadium Club in the Kansas City International Airport before boarding a flight to Dallas. The bar receipt noted the four drinks were purchased between 4:32 and 6:22 pm. No one at the bar recalled seeing the patron. Said patron also admitted to having one cocktail on the plane.

After arriving in Dallas, he got behind the wheel of a vehicle and shortly thereafter, was involved in an automobile collision that killed two passengers in the vehicle he hit and injured the other vehicle’s  driver. The responding police officer noticed the his slurred speech , his eyes were red, bloodshot and red eyes and that he reeked of alcohol. The bar patron failed a field sobriety test and a blood test taken about four hours after he left the Stadium Club yielded a  .169 BAC.

The families of the decedents sued the owner of the Stadium Club and several other defendants asserting liability pursuant to Missouri’s dram shop law.

Because no one working in the bar remembered the patron, the bar sought summary judgment on the grounds that there was no evidence that it knowingly served a visibly intoxicated person. The trial court granted the motion for summary judgment and the plaintiffs appealed.

Missouri’s Dram Shop Law

Missouri’s dram shop statute, Section 537.053(2), has three elements.

“The claim must be brought (1) ‘by or on behalf of any person who has suffered personal injury or death . . .’ against a (2) ‘person licensed to sell intoxicating liquor by the drink for consumption on the premises . . .’ and demonstrated by clear and convincing evidence that the person (3) ‘knowingly served intoxicating liquor to a visibly intoxicated person . . .’”

The issue in the case before the Court involved the third element. The bar’s position was  that because no one at the bar observed/recalled the patron intoxicated, the evidence was insufficient to establish that the patron was a visibly intoxicated person.

The Court disagreed, stating that establishing visible intoxication did not require observation. Instead, the definition of visible intoxication was defined as inebriated to the extent that physical function and coordination were significantly impaired.

While relevant, a person’s BAC , in and of itself,  didn’t establish a prima facie case. However, the families also presented the responding police officer’s testimony, the drink receipts and the expert testimony of toxicologists (including that of the bar’s toxicologist who conceded that the patron’s alcohol intake during the time period in which he was served would have rendered the patron intoxicated). That evidence, the Court concluded, was sufficient to create an issue of material fact as to whether the bar knowingly served alcohol to a visibly intoxicated person.

The trial court’s judgment was affirmed in part, reversed in part and remanded.

The Future of Dram Shop Case Evidence

In dram shop cases, our operatives have focused heavily on including statements from identified witnesses in our investigations.

We’ve experienced a shift towards non-cooperation among witnesses in the past few years but, for evidence collection purposes, this change appears to be heavily moderated by the defendant’s use of credit/debit cards to purchase alcoholic beverages.  Also, people are publicly announcing their presence at drinking establishments (via 4Square, Twitter,  smart phone gps apps…).  Leave alone the number of public drinking pics and vids posted everywhere online,  (i.e., YouTube, FaceBook, Flickr…).

The bottom line is, don’t drink and drive but if you do, understand the signficant consequences.

BNI Operatives: A step ahead.

As always, stay safe.

Related articles

• How do you handle a guest who has had too much to drink and wants to purchase more (wiki.answers.com)

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