Direct Evidence Not Required in Dram Shop Case
by Jessica Agnelly Krawczyk
In Nokes v. HMS Host USA, LLC, et al., 353 S.W.3d 6 (Mo. App. W.D. 2011), reh’g, transfer to Mo. Sup. Ct. denied, Nov. 1, 2011, app. for transfer denied, Dec. 20, 2011, the Missouri Court of Appeals, Western District, reversed the circuit court’s entry of summary judgment in a dram shop action holding that a plaintiff may rely on direct evidence, circumstantial evidence and expert testimony to prove a defendant “knowingly” served intoxicating liquor to a visibly intoxicated person if such evidence is relevant and admissible. In making its finding, the Court made no determination whether the evidence Plaintiffs presented in the consolidated action was “clear and convincing” as mandated by Missouri’s Dram Shop Statute, Mo. Rev. Stat. section 537.053, but clearly held that the evidence that Plaintiffs did present was sufficient to demonstrate a genuine issue of material fact regarding all elements of the cause of action. The Court clearly rejected the Defendant's argument that the Plaintiffs must present direct evidence that Defendant “knowingly” served intoxicating liquor to a visibly intoxicated person. Accordingly, Nokes has clarified the law and confirmed the legal standard for summary judgment in a dram shop case.
Generally, “Dram Shop” laws make it possible for bar owners, alcohol servers and, to a much lesser extent social hosts, financially liable if a customer becomes intoxicated and causes injuries, death or property damage. This is a change from the common law that was generally hostile to this cause of action. Either by statutory codification or case law, forty-three states and the District of Columbia have recognized some form of dram shop liability. Only Delaware, Kansas, Maryland, Nebraska, Nevada, South Dakota and Virginia, have failed to adopt any type of dram shop liability. Further, there are varying circumstances in which a State will recognize dram shop liability. For example, Wisconsin limits liability to those who procure, sell, dispense or give away alcoholic beverages if they knew or should have known that the underage person was under the legal drinking age, W.S.A. § 125-035(4)(b); Louisiana also permits liability if intoxicating beverages are sold or served to underage persons, L.S.A.-R.S. 9:2800.1.B.; Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So.2d 880, (Ct. App. 1993); Florida also acknowledges liability if sold or furnished to an underage person or “knowingly” served to a “person habitually addicted to the use of any or all alcoholic beverages,” F.S.A. § 768.125; while Mississippi provides liability if intoxicating beverages are sold to an underage person or “when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated.” Miss. Code Ann. § 67-3-73(2) and (4). (endnote 1).
Missouri’s Dram Shop statute is found at section 537.053 and provides the exclusive remedy for third persons injured as a result of the sale of liquor to an intoxicated driver. From the mid-1980s until 2002, in order to establish a dram shop claim in Missouri, the Plaintiff had to show that the seller of the intoxicating liquor “pursuant to section 311.310, RSMo, ha[d] been convicted or ha[d] 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.” Section 537.053.3 (Cum. Supp. 1985) (endnote 2). Further, this earlier statute specifically instructed that previous cases finding dram shop liability against taverns who served intoxicating liquor: (1) to an underage intoxicated driver who was injured; (2) to an underage intoxicated driver who injured his passenger; and (3) to an intoxicated driver who injured a third party, were “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.” Section 537.053.2 (Cum. Supp. 1985).
Missouri’s Dram Shop statute was amended in 2002 and currently states, in part, “… 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 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.” Section 537.053.2 (2002). The statute explains that “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.” Section 537.053.3. The statute further states that “[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.” Section 537.053.3.
Before the Court’s decision in Nokes, it was widely believed that the Plaintiff was required to present eye witness testimony stating that the intoxicated person was acting intoxicated and being served liquor. However, the Nokes Court rebuked that assertion stating “the statute requires only that impairment be ‘shown,’ not that someone must observe a visibly intoxicated person.” Nokes, 353 S.W.3d at 12. The Court held that direct evidence, as well as circumstantial evidence and expert testimony may be presented to prove a defendant “knowingly” served intoxicating liquor to a visibly intoxicated person if such evidence is relevant and admissible.
Specifically, in Nokes, the Plaintiffs presented evidence of a drink receipt that showed Jeffrey Chiarelli consumed four “double” whiskey cocktails with a splash of coke between 4:34 PM and 6:22 PM at the Defendant’s restaurant. Id. at 8. Further, Chiarelli recalled drinking another whiskey cocktail between 7:30 PM and 7:45 PM. Id. After Chiarelli’s vehicle collided with a vehicle driven by Eustolio Gutierrez and containing passengers Sandra Nokes and Diana Gutierrez, the responding officer noted that Chiarelli had slurred speech and the smell of alcohol on his breath. Id. The police report also indicated that Chiarelli’s speech was “slurred”; his eyes were “red,” “bloodshot,” and “watered”; and he had a “strong” odor of alcohol on his person. Id. at 8-9. Chiarelli failed the field sobriety test, and the responding officer believed that Chiarelli was “intoxicated and not capable of safely operating a motor vehicle.” Id. at 9. At 11:20 PM, Chiarelli’s blood alcohol level was .169%. Id.
Plaintiffs also presented evidence of an expert toxicologist who opined that each of the “doubles” Chiarelli drank at the restaurant contained 3.5 ounces of whiskey and at the time Chiarelli ordered his second cocktail, his blood alcohol concentration would have been approximately .10%. Id. (endnote 3). When he ordered his third cocktail, his blood alcohol concentration would likely have been .15% and at the time he ordered his fourth cocktail, Chiarelli’s blood alcohol concentration would have been between .175% and .18%. Id. The toxicologist also testified that prior to consuming his second drink; Chiarelli would have begun showing significantly uncoordinated physical action or dysfunction, including noticeable changes in facial appearance, demeanor and attitude, a release of inhibitions, loss of judgment and a “loss of the fine sense of intellect.” Id. Finally, the toxicologist opined that “Chiarelli would have demonstrated obvious signs of the effects of alcohol where it was clear to anyone–any trained observer that he would have the observable signs of the effects of alcohol. . . .” Id. There was other expert testimony which essentially bolstered the evidence that Plaintiff presented. The Court acknowledged that while the blood concentration level standing alone is insufficient to demonstrate that a genuine dispute exists concerning whether Chiarelli was visibly intoxicated, it is relevant as to whether he was visibly intoxicated. Id. at 12.
1. For a complete lists of states, please see the U.S. Department of Transportation National Highway Traffic Safety Administration, Digest of Impaired Driving and Selected Beverage Control Laws, DOT HS 810 827, Twenty-Fourth Edition, August 2007. http://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Articles/Associated%20Files/HS810827.pdf