Missouri Dram Shop Law: Its History and New Direction
Anthony L. Roberts1
Common law rules traditionally have protected dram shop owners against liability incurred from damages caused by intoxicated patrons to third parties. The Missouri General Assembly has addressed trends deviating from this standard by adopting legislation that reduces the scope of the common law but retains its essential character.
I. Introduction
State legislatures and the courts have long struggled over the question of who bears liability when injuries occur as the direct or proximate cause of the consumption of intoxicating liquors. This question has proven especially controversial in regards to dram shop owners who sell intoxicating liquors to patrons, who then injure third parties as a result of intoxication. Historically, in both common and statutory law, Missouri has sought to place the liability on the consumers, not the sellers, of intoxicating liquors. In this manner, Missouri has been in line with common law conceptions regarding dram shop liability. However, liberalizing trends in tort law over the past 30 years have resulted in a reassessment of Missouri dram shop policy in both common and statutory law.
On July 11, 2002, Missouri Governor Bob Holden signed House Bill 1532, enacting the first statutory reform of Missouri dram shop law in more than 15 years.2 Calling the bill “a reasonable division of responsibility between bar and restaurant owners and their customers,” Holden proclaimed the bill to be a middle ground approach to dram shop liability.3 As the latest incarnation of Missouri dram shop law, House Bill 1532 retains the essence, if not the scope, of Missouri's traditional common law approach.
To assist in comprehending the substantial revisions of Missouri dram shop law in recent decades, this article will follow the evolution of Missouri dram shop policy to its current form. This examination will include: statutory and common law attempts to limit dram shop liability; judicial trends away from that standard; and the Supreme Court of Missouri's short-lived affirmation of traditional dram shop law in 1988, followed by its subsequent repudiation in 2000. Finally, the Missouri General Assembly's recent response in HB 1532 (2002) will be examined.
II. A Brief History of Missouri Dram Shop Policy
Attempts by Missouri courts to address dram shop liability for injuries resulting from the consumption of intoxicating liquors date back as far as the 1850s. In Skinner v. Hughes, a dram shop owner was found liable for the death of a slave to whom his shop had sold intoxicating liquor without the permission of the slave's owner.4 The slave later died from exposure on route home after passing out from intoxication. While it appears that the holding has never been overruled,5 the case is generally considered to be anachronistic in that its holding is reflective of a property rights claim regarding the ownership of the slave as opposed to a personal injury claim.6
While Skinner did find liability against the dram shop owner, the common law rule in Missouri (and the nation generally) has been that the consumer, not the supplier, of intoxicating liquor is proximately responsible for any resulting injuries to third parties.7 Statutorily, only Missouri's first dram shop act allowed for unrestricted claims against liquor providers whose goods contribute to injury or property loss.8 However, this provision coincided with the adoption of the 18th Amendment to the United States Constitution prohibiting the sale of alcohol. With the repeal of prohibition, this passage was subsequently rescinded.9 Concurrently with prohibition's repeal, the Missouri legislature criminalized the sale of intoxicating liquors to minors but failed to address the issue of dram shop civil liability.10 In a later assessment of this abrogation, the Supreme Court of Missouri found that “[t]he repeal of the dram shop act did not alter the common law,” but instead “restored questions of dram shop liability to the arena of the common law and the transfiguring touch of the courts.”11
Returned to the purview of the courts, the issue of dram shop liability once again conformed to common law notions. This approach was to remain for several decades to follow. However, in 1983 a Missouri court for the first time recognized a general common law cause of action against dram shop owners. In Carver v. Schafer,12 a dram shop owner was found subject to a common law negligence claim for continuing to serve liquor to an intoxicated patron who subsequently struck and killed a third party with an automobile. The court rejected the common law argument against extending proximate cause to tavern owners, holding that such a position was the “functional equivalent of stating that the tavern owner owed no duty to the decedent.”13 Instead, the court found that the “standard of ordinary care imposed a duty upon [the dram shop] to avoid supplying Mr. Schafer with intoxicating liquor once it became apparent that Mr. Schafer was intoxicated.”14
In reaction to Schafer and other related cases, in 1985 the Missouri legislature and the governor adopted Missouri's first dram shop law since the repeal of prohibition. Section 537.053, RSMo Supp. 1985, sought to re-establish the common law dram shop liability rules that had been losing ground in both Missouri and nationally.15 Written in three sections, § 537.053, RSMo Supp. 1985, seemed a clear statement of the legislature's intent regarding the liability of dram shops. However, later years would prove the section's drafting only muddied identification of that intent.
Sections (1) and (2) of § 537.053, RSMo Supp. 1985, were to reestablish common law rules regarding dram shop liability and specifically repudiate recent deviations. Section (1) dictated that “since the repeal of the . . . dram shop act in 1934,” the policy of Missouri had been the common law of England, in that the furnishing of alcohol beverages was not to be considered “the proximate cause of injuries inflicted by intoxicated persons.”16 Section (2) repudiated several specifically enumerated court decisions contrary to that common law.17 According to the statute, such cases should “be abrogated in favor of” holdings that find that the consumption of alcohol beverages by the patron was “the proximate cause of injuries inflicted upon another by an intoxicated person.”18
Section (3) of § 537.053, RSMo Supp. 1985, suggested, however, that the legislature may not have been as resolute in its affirmation of the common law as Sections (1) and (2) implied. Section (3) established that, regardless of the content of sections (1) and (2), a civil cause of action against a dram shop owner is still available in certain circumstances. An action could be brought if the owner had been convicted or had received a suspended imposition of sentence “arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.”19 Therefore, despite the declaratory statements of sections (1) and (2), a level of dram shop liability was established by the adoption of § 537.053, RSMo Supp. 1985.20
While not completely eliminating dram shop liability, the legislature had erected a high obstacle: the presence of a criminal conviction. The result was a somewhat unusual circumstance in which a prior criminal conviction was required in order to pursue a current civil claim. The difficulty for a plaintiff in such a situation was apparent. The ability to file a claim under § 537.053, RSMo Supp. 1985, was predicated on a local prosecutor choosing to pursue criminal action against a dram shop owner and then actually obtaining a conviction. These two elements were clearly beyond the control of the plaintiff.
Inevitably, injured parties soon surfaced desiring to file claims against dram shop owners under § 537.053, RSMo Supp. 1985, but were prevented from doing so by the inaction of local prosecutors. Therefore, plaintiffs began to explore new options and strategies in hopes of circumventing the criminal conviction requirement.21 Eventually, these strategies challenged the constitutionality of § 537.053, RSMo Supp. 1985.
III. Simpson v. Kilcher: The Missouri Supreme Court Speaks
The Supreme Court of Missouri heard the issue of the constitutionality of § 537.053, RSMo Supp. 1985, in Simpson v. Kilcher.22 On October 6, 1985, an intoxicated Walter Kilcher drove his car across three lanes of highway, over a concrete median and into a motorcycle driven by Richard Simpson.23 Mr. Simpson was injured and filed suit against two defendants: John Q. Hammons Hotels/Holiday Inns, owner of the dram shop known as the Water Wheel Lounge, and Jams, Inc., owner of the dram shop known as The King of Clubs. Mr. Simpson alleged that the employees of the defendants “negligently served alcohol to Kilcher after he had become obviously intoxicated.”24 Based upon its reading of § 537.053, RSMo Supp. 1985, the trial court dismissed Simpson's suit because the defendants had not been convicted of selling liquor to someone who was obviously intoxicated or a minor.25
The plaintiff appealed on numerous grounds, including: (1) § 537.053, RSMo Supp. 1985, created an impermissible obstruction to the courts in violation of Missouri Constitution art. I, § 14;26 (2) § 537.053 violated the separation of powers doctrine of the Missouri Constitution, art. II, § 1;27 and (3) § 537.053 denied equal protection and procedural due process under the Missouri and United States Constitutions.28 The Court found each of these arguments to be unpersuasive. For the purposes of this article, the Court's analysis of issues (1) and (2), obstruction of the courts and separation of powers, is most significant.
First, the Court differentiated between provisions that create claimable rights and those that allow individuals possessing claimable rights access to the courts. The Court concluded the open courts provision of the Missouri Constitution “was not designed to create rights, but only allow a person claiming those rights access to the courts when such a person has a legitimate claim recognized by the law.”29 According to the Court, “subsection 3 of 537.053 is not a precondition to access the courts — it is a condition to the existence of a cause of action.”30 If subsection 3 was not satisfied (i.e., there has been no criminal conviction), a cause of action could not exist. With no recognized cause of action, no obstruction to the pursuit of that non-claim could exist. To the Court, the failure to fulfill subsection 3 meant that the plaintiff lacked a claim ripe for judicial review and “[n]either the constitution nor the cases cited by Simpson can be interpreted as giving a claimant a right to bring into court any grievance he wants.”31 Therefore, the Court found § 537.053 did not create an unconstitutional obstruction to the courts.
Second, the Court dismissed the claim that § 537.053 violated the Missouri Constitution's separation of powers doctrine. The plaintiff asserted that the statute violated the separation of powers doctrine in multiple ways. For the purposes of this article, it is sufficient to review the Court's common theme in rejecting the varying assertions. The Court returned to the same reasoning it used to reject the open courts provision claims: namely,
§ 537.053 legislatively bars a particular tort action unless several specific elements are present. Therefore, a prosecutor's decision to not prosecute could not be an executive decision regarding the ability to adjudicate a claim because no cause of action actually existed. With no cause of action, it would be impossible for an executive branch member, a prosecutor, to interfere in the judiciary function of determining whether a claim may be heard.
The holding of the Simpson majority appeared to conclusively affirm the constitutionality of § 537.053, quelling the liberalizing trends that had inspired the legislature to adopt the provision. However, this victory for Missouri dram shop owners would prove to be more short-lived than anyone would have likely predicted.
IV. Kilmer v. Mun: The Court Shifts Direction
On February 26, 1998, Hui Chan Mun left the Wentzille eatery, Stefanina's Pizzeria and Restaurant, after allegedly consuming several pitchers of beer.32 Mr. Mun drove his car on the wrong side of a divided highway, eventually colliding with a car driven by Thomas Kilmer.33 Mr. Kilmer died at the scene of the collision.34
Mr. Kilmer's family members requested the prosecuting attorney of St. Charles County to file criminal charges against Stefanina's and obtain a conviction so as to allow the filing of a civil action against the restaurant as permitted by § 537.053, RSMo Supp. 1985.35 However, the prosecuting attorney refused.36 After losing a summary judgment motion at the trial level, the plaintiff appealed, claiming that § 537.053 violated the “open courts” provision of the Missouri Constitution.37 The Supreme Court of Missouri accepted certiorari based on its assessment that, in the previous 25 years, challenges based on the “open courts” provision had “resulted in at least nine decisions whose principal, concurring and dissenting opinions offer a variety of analytical approaches for applying this 'open courts' principal.”38 The Court found some of these cases to be “irreconcilable.”39
From its examination of past cases, the Court determined a “coherent line of reasoning” could be gleaned that would “ensure that article I, section 14 retains its vitality while permitting proper deference to legislative enactments.”40 In the opinion of the Court, art. I, § 14:
[P]rohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury.41
The test, therefore, would be whether a barrier erected in pursuit of a remedy for a recognized injury was arbitrary or unreasonable.
42 Applying this test, the majority concluded § 537.053 violated the open courts provision of the Missouri Constitution.
To reach this holding, the Court first concluded that the open courts provision was, in fact, a constitutional right and not merely an aspiratory goal. Since its inclusion in the Missouri Constitution of 1820, the open courts provision had been amended twice.43 Each subsequent revision strengthened the language of the original provision. The original provision stated that the “courts of justice ought to be open to every person . . .” and “justice ought to be administered without sale, denial, or delay.”44 When the constitution was revised in 1870, this language was changed to “shall be open” and “justice should be administered without sale, denial or delay.”45 In the final 1945 revision, “justice should be administered” was also changed to “shall be.”46 The justices found that “when the words 'ought' and 'should' [were] replaced with the word 'shall,' it [was] difficult to escape the conclusion that our drafters changed a passage that could originally have been taken to be mere exhortation to a constitutional provision that is mandatory in tone and substance.”47
Having established the open courts provision as a constitutional right, the Court proceeded to examine the questions of whether a cause of action existed and if the “certain remedy” guaranteed by the “open courts” provision was violated by the statute in question. Rejecting Simpson, the Court found § 537.053 constituted “a recognized cause of action” regardless of the presence or absence of a criminal conviction.48 The Court reasoned only if subsections (1) and (2) of § 537.053 were read in isolation of subsection (3) could it be concluded that the legislature intended to abolish dram shop liability.49 Instead, the Court concluded, § 537.053 recognized a cause of action but made it subject to a criminal conviction.50 Consequently, a criminal conviction would not be required to create a cause of action, only to pursue that action. Thus, the cause of action existed independently of the criminal conviction provision.
Once the Court concluded that the plaintiff did indeed possess an actionable claim, the next question became whether section (3) of § 537.053 created an arbitrary and unreasonable barrier preventing the “certain remedy” of the open courts provision. The Court found that “there [was] no certain remedy if the [plaintiff's] claim” existed entirely on “whether or not the county prosecutor has prosecuted and obtained a conviction of their alleged wrongdoer.”51 If the county prosecutor decided not to prosecute, or failed to obtain a conviction, “then the injured party has no redress for the injury that is recognized by section 537.053.”52 Furthermore, the Court held that the statute resulted in a situation where a prosecuting attorney, not the legislative branch, decided whether there was a cause of action.53 This constituted a violation of the “separation of powers because the determination of whether a civil claim for relief exists is within the province of the legislature, or in the absence of legislative enactment, with court as a matter of common law.”54
The Kilmer case was a dramatic reversal by the Supreme Court of Missouri on the issue of dram shop liability in a relatively short 12-year period. Where the Court had previously found the criminal conviction provision to be an element of the action itself, the new ruling found that criminal conviction was, in fact, an arbitrary and unreasonable barrier to the pursuit of the claim. On a constitutional level, the Court had established a clarifying rule regarding the open courts provision of the Missouri Constitution. On a statutory policy level, the Court preserved dram shop liability while removing dram shop owners' most effective mechanism for limiting that liability. Faced with the potential repercussions of that action, dram shop owners and the hospitality industry wasted no time in trying to push a legislative response to Kilmer.
V. The Legislature Responds: House Bill 1532
In the 2001 legislative session, immediately following Kilmer, legislation was introduced designed to not only overturn the holding, but also eliminate dram shop liability entirely.55 While this legislation found initial committee support, later actions on the floors of both houses restored dram shop liability to some degree. However, no dram shop legislation reached the governor's desk in 2001.56
The 2002 legislative session brought a second, and ultimately successful, attempt to respond legislatively to Kilmer. House Bill 1532 was the product of a cooperative effort from various parties with interests in dram shop liability, including representatives of bars and restaurants, attorneys, retailers and the insurance industry. Distributors of intoxicating liquors figured prominently, arguing that the cost of their liability insurance had skyrocketed since the holding of Kilmer. This coalition met early in the legislative session to craft a compromise bill designed to reduce dram shop liability.57
HB 1532's revision of § 537.053 represents a moderate approach to the issue of dram shop liability, avoiding the more extreme positions of either no liability or open liability. Under the revision, dram shop owners will not enjoy the null liability found in the traditional common law rule, nor would they face the increased exposure created by the Kilmer decision. Instead, dram shop owners now find themselves subject to a lower evidentiary standard than pre-Kilmer, but a higher evidentiary standard than associated with most civil cases. 58
HB 1532 deleted § 537.053(2), RSMo Supp. 1985, and substantially revised section (3).59 The language in section (2) regarding the holdings of specifically enumerated dram shop cases was removed entirely. In its place was inserted a reworked version of the original section (3). Most significantly, the unconstitutional provision regarding prior criminal conviction was removed from the statute. The amended provision allowed for dram shop liability to third parties “when it is proven by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty-one years or knowingly served intoxicating liquor to a visibly intoxicated person.”60
To clarify the new section (2), House Bill 1532 also provided a new definition of a “visibly intoxicated person” in revised section (3). A person is “visibly intoxicated when inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction.”61 Furthermore, a blood alcohol content measure cannot establish prima facie evidence of visible intoxication “but may be admissible as relevant evidence of a person's intoxication.”62
While House Bill 1532 failed to provide an evidentiary standard as high as pre-Kilmer § 537.053, dram shop proprietors did gain some new safeguards. The most significant of these is an enhanced evidentiary standard. Although a civil standard was eventually used to determine liability, pre-Kilmer § 537.053 required a criminal level evidentiary standard to open the door to a civil claim.63 House Bill 1532 returned all evidentiary standards to a civil level.64 Under the revision, dram shop liability can be achieved through a showing of “clear and convincing evidence.” While this is lower than the “beyond reasonable doubt” criminal standard, this was not the lowest civil standard available to the drafters.65 By choosing a standard greater than the minimum “preponderance of evidence” standard, the legislature continued the historical tradition of providing dram shop proprietors with greater protection from civil liability than found in most tort cases.
An additional statutory protection for dram shop owners not found in the original § 537.053 was also adopted. The revision makes admissible a potential defense for claims against dram shop owners for injuries carried out by minors. Evidence “that the seller or seller's agent . . . demanded and was shown a driver's license or [similar] official state . . . identification card [that appeared] to be genuine and” showed the individual as not being a minor is to be considered relevant evidence in determining fault.66 While this subsection benefits dram shop proprietors, it should be noted that the legislature did not limit or entirely eliminate dram shop liability that involves minors. The final change made by House Bill 1532 to § 537.053, RSMo Supp. 1985, prohibits employers from firing employees who refuse to serve visibly intoxicated persons.67
VI. Conclusion
With the adoption of House Bill 1532 (§ 537.053, RSMo Supp. 2002), Missouri dram shop policy took a step away from common law dram shop liability rules. However, this move was not one that completely uncoupled Missouri dram policy from its traditional common law past. While more accessible avenues for claims against dram shop owners are now open, the Missouri legislature has countered this accessibility with increased protections for dram shop owners not available in most civil suits. Through this balancing act, Missouri dram shop owners now find themselves more vulnerable to suits than pre-Kilmer, but still a favored class due to the procedural protections and enhanced evidentiary standards that are now available to them.
Footnotes
1 Anthony L. Roberts is a 1999 graduate of the University of Missouri-Columbia School of Law. He is employed as a Budget and Policy Analyst for the Division of Budget and Planning/Office of Administration in Jefferson City. For assistance in the preparation of this article, he extends his thanks to Jennifer Roberts, Anita Chancey, and his colleagues in Budget and Planning.
2 “Dram shop” refers to drinking establishments where liquor is sold by the drink to be consumed on the premises. This would include most bars, taverns or restaurants. Black's Law Dictionary, 444 (5th ed. 1979).
3 David A. Lieb , Holden Passes Alcohol Liability Law, Moberly Monitor Index & Evening Democrat, July 12, 2002.
4 Skinner et al. v. Hughes, 13 Mo. 440 (1850).
5 See Kilmer v. Mun, 17 S.W. 3rd 545, 553 (Mo. banc. 2000).
6 See Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987); Lambing v. Southland Corp., 739 S.W.2d 717, 720 (Mo. banc 1987).
7 For general discussion of civil liabilities resulting from the sale or furnishing of intoxicating liquors see: Joel E. Smith, Annotation, Common-Law Right of Action for Damage Sustained by Plaintiff in Consequence of Sale or Gift of Intoxicating Liquor or Habit-Forming Drug to Another, 97 A.L.R. 3d 528 (1980); 48A C.J.S. Intoxicating Liquors § 428 (1981 and Cum. Supp. 2003); 45 Am. Jur. 2d Intoxicating Liquors § 553 (1999).
8 1919 Mo. Laws, Intoxicating Liquors, § 6 at 408, 411, read in part: “Every wife, husband, child, parent, guardian, or other person in the state of Missouri, who shall be injured in person or property or means of support or otherwise by any intoxicated person by reason of selling of intoxicating liquors in violation of the provisions of this act, shall have the right of action in his or her name against any person, firm or corporation who shall, by such illegal selling of liquors, have caused or contributed to the intoxication of said person or persons, or who have caused or contributed to any such injury.”
9 Section 311.310, RSMo 1986.
10 Section 311.310, RSMo 1986.
11 Lambling v. Southland Corp., 739 S.W.2d 717, 718 (Mo. banc 1987).
12 Carver v. Schafer, 647 S.W.2d 570, 572 (Mo. App. E.D. 1983).
13 Id.
14 Id. at 575.
15 Section 537.053, RSMo 1986, reads:
1.Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
2.The legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.App. 1983); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App. 1981) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person.
3.Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to section 311.310 RSMo, has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under the age of twenty-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person.
16 Section 537.053(1), RSMo 1985.
17 Specifically, the statute cites the already-discussed Carver case and Sampson v. W.F. Enters., Inc., 611 S.W.2d 333 (Mo. App. 1980); and Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo. App. 1981). Both Sampson and Nesbitt are cases in which common law liability was assigned to dram shop owners who served intoxicating liquors to minors. The assignment of liability in both of these cases was due to the involvement of minors.
18 Section 537.053(2), RSMo 1985.
19 Section 537.053(3), RSMo 1985.
20 This contradiction is later noted by the Supreme Court of Missouri in Kilmer v. Mun, 17 S.W.3d. 545, 551(Mo. banc 2000).
21 These techniques included: claims of retroactivity, see Elliot v. Kesler, 799 S.W.2d 97 (Mo. App. W.D. 1990); Mueller v. JPA Foods, Inc., 767 S.W.2d 110 (Mo. App. E.D. 1989); Lambing v. Southland Corp., 739 S.W.2d 717 (Mo. banc 1987); Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987); claims of negligence, intentional tort, strict products liability, negligent products liability and breach of contract — see Von Ruecker v. Holiday Inns, Inc., 775 S.W.2d 295 (Mo. App. E.D. 1989).
22 Simpson v. Kilcher, 749 S.W.2d 386, 388 (Mo. banc. 1988).
23 Id.
24 Id.
25 Id.
26 Id. at 389.
27 Id. at 390.
28 Id. at 392.
29 Id. at 389.
30 Id.
31 Id.
32 Kilmer v. Mun, 17 S.W.3d 545, 546 (Mo. banc 2000).
33 Id.
34 Id.
35 Id. at 547.
36 Id.
37 Mo. Const. art. I, § 14.
38 Kilmer at 248.
39 Id.
40 Id. at 249.
41 Id. quoting Wheeler v. Briggs, 941 S.W.2d 512, 515 (Mo. banc 1997) (Holstein, C.J., dissenting) (emphasis added).
42 Id. at 550.
43 Id. at 548.
44 Mo Const. art. XIII, § 7 (1820) (emphasis added).
45 Mo. Const. art. II, § 10 (1875) (emphasis added).
46 Mo. Const. art. I, § 14 (1945).
47 Kilmer at 548.
48 Id. at 551.
49 Id.
50 Id.
51 Id. at 550.
52 Id. at 552.
53 Id.
54 Id.
55 See SB 433 & 248 (2001), 91st Gen. Assem., 1st Reg. Sess. (Mo.), HB 421, 91st Gen. Assem., 1st Reg. Sess. (Mo.).
56 HC SS SCS SB 433 & 248 was placed on the House Informal Calendar Senate Bills for Third Reading on May 18, 2001. The session ended that same day before the bill could be taken up again. CCS SS SCS HS HB 421 went to conference committee and passed the House but ran out of time to reach the Senate.
57 David A. Lieb , Holden Passes Alcohol Liability Law, Moberly Monitor Index & Evening Democrat, July 12, 2002.
58 It is worthy of note that, in the passage of a dram shop bill, the Missouri legislature ultimately rejected proposals that would have made bringing a claim against a dram shop owner more difficult. Some of these proposals included: raising the evidentiary standard to “beyond a reasonable doubt”; requiring dram shop actions to be brought within one year; requiring plaintiffs to notify and give written notice to seller within 180 days of seller's conduct creating liability; and the right of contribution by seller against intoxicated individual or minor. These rejections are significant in that they demonstrate a legislative intent to limit obstacles to an action against a dram shop owner. Adoption of these proposals, especially the “beyond a reasonable doubt” standard, might have technically allowed the filing of actions, but as a practical matter might have substantially reduced the plaintiff's chance of success. The rejection of these options demonstrates a legislature clearly moving away from high protections of the traditional common law rules.
59 Section 537.053, RSMo Supp. 2002:
(1) Since the repeal of the Missouri Dram Shop Act in 1934, it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010, RSMo to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
(2) Notwithstanding subsection 1 of this section, a cause of action may be brought by or on the behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises when it is proven by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty–one years of age or knowingly served intoxicating liquor to a visibly intoxicated person.
(3) For the purposes of this section, a person is “visibly intoxicated” when inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction. A person's blood alcohol content does not constitute prima facie evidence to establish that a person is visibly intoxicated within the meaning of this section, but may be admissible as relevant evidence of the person's intoxication.
(4) Nothing in this section shall be interpreted to provide a right of recovery to a person who suffers injury or death proximately caused by the person's voluntary intoxication unless the person is under the age of twenty-one years. No person over the age of twenty-one years or their dependents, personal representative, and heirs may assert a claim for damages for personal injury or death against a seller of intoxicating liquor by the drink for consumption on the premises arising out of the person's voluntary intoxication.
(5) In an action brought pursuant to subsection 2 of this section alleging the sale of intoxicating liquor by the drink for consumption on the premises to a person under the age of twenty-one years, proof that the seller or the seller's agent or employee demanded and was shown a driver's license or official state or federal personal identification card, appearing to be genuine and showing that the minor was at least twenty-one years of age, shall be relevant in determining the relative fault of the seller or seller's agent or employee in the action.
(6) No employer may discharge his or her employee for refusing service to a visibly intoxicated person.
60 Id.
61 Id.
62 Id.
63 This is due to the requirement of a finding of criminal liability for the sale of intoxicating liquor to a person under 21 years or to an obviously intoxicated person prior to initiating a civil action. Section 537.053(3), RSMo 1985.
64 A classic definition of “beyond a reasonable doubt” was presented by the United States Supreme Count in Agnew v. United States, 165 U.S. 36, 51 (1897): “By a reasonable doubt is not meant a possible doubt, but such a doubt arising from the evidence that leaves the minds of jury in a such a state that they cannot say, after having reviewed all the evidence, that they have an abiding conviction, to a moral certainty, of the guilt of the accused.”
65 A preponderance of evidence generally occurs “when the factfinder is satisfied that the fact is more likely true than not true.” 29 Am. Jur. 2d Evidence § 157 (1994). “Clear and convincing evidence is defined in a variety of ways; for example, to establish a fact or an element by clear and convincing evidence a party must persuade the jury that the proposition is highly probable, or must produce in the mind of the factfinder a firm belief or conviction that the allegations in question are true.” Id.
66 Section 537.053(5), RSMo Supp. 2002.
67 Section 537.053(6), RSMo Supp. 2002.
JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 5 - September-October 2003