Does a bartender at a commercial business have any responsibility when serving alcohol?
The answer is generally, yes. Under Oklahoma’s dram shop laws– laws governing bars that serve alcohol– a bartender who over-serves a visibly intoxicated patron can be held criminally liable, but, as discussed in greater detail below, there are several factors that make proving liability difficult.
The evidentiary problems with dram shop cases typically involve the bartender’s knowledge of the customer’s level of intoxication, and the ability to exclude other possible sources of intoxication.
The recent arrest of bartender Debra Davidson highlights a situation where these two evidentiary considerations do not present a barrier to prosecution.
According to reports, Davidson over-served Jose Lozada at the Big Easy Lounge in Tulsa. Lozada was so intoxicated that other patrons said he was dropping money on the ground. After leaving, Lozada crashed his moped approximately one mile away and later died at the hospital. His BAC was nearly three times the legal limit of 0.08%.
In Davidson’s case, there is evidence that Lozada was so heavily intoxicated that his behavior was noticed by other patrons. This provides evidence of Davidson’s knowledge, demonstrating that she either knew or should have known that Lozada was already intoxicated when she served him.
Additionally, the evidence that Lozada crashed only one mile from the bar with a BAC nearly three times the legal limit provides strong evidence that he did not become intoxicated someplace other than the Big Easy Lounge. The high BAC level is also evidence that Davidson continued to serve Lozada well after he was already intoxicated.
Assuming no other evidentiary problems, are Davidson and the Big Easy Lounge potentially liable to Lozada’s Estate?
No, an intoxicated driver cannot maintain a civil damages claim for his own injuries against a tavern. See Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, 813 P.2d 508. In 2011, a panel of the Oklahoma Court of Civil Appeals declined to expand Todd to cover damages incurred by the inebriated driver. See Been v. MK Enterprise, Inc., 256 P.3d 1040 (Okla.Civ.App.2011).
What about an innocent third-party?
Yes, in Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla. 1986), the Oklahoma Supreme Court recognized that one who sells intoxicating beverages for on premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person.
In other words, where a bartender sells alcohol to a noticeably intoxicated person, and that intoxicated person thereafter causes injury to a third party, the bartender and the tavern can be held responsible for civil damages. This includes a passenger riding with the intoxicated driver. See Bennett v. 2 Poor White Boys, Inc., 973 P.2d 896 (Okla.Civ.App. 1998).
Establishing dram shop liability is a fact specific endeavor. Promptly locating witnesses, performing a critical analysis of policies, and interviewing employees will often hold the key to determining whether dram shop liability exists.
If you have questions about dram shop liability, contact the personal injury attorneys at Bryan & Terrill, 918-935-2777.