By Geri L. Dreiling, Esq.
No one at a bar needs to actually observe a patron’s intoxication in order for the bar to be held liable under Missouri’s dram shop law for the deaths of two people killed by a drunken driver, the Missouri Court of Appeals, Western District has ruled.
The dram shop law’s requirement that a bar knowingly serve a visibly intoxicated person may be established through direct and circumstantial evidence as well as expert witness testimony.
The Court concluded that the evidence regarding the 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 merit reversal of the summary judgment for the bar.
The closely watched decision in Nokes, et al. v. HMS Host USA, et al., which prompted amicus briefs from both the Missouri Association of Trial Attorneys and the Missouri Restaurant Association, was handed down on Sept. 13.
Randall L. Rhodes, Bradley D. Kuhlman and Chad C. Lucas of Kansas City represented the families of the drunken driving accident victims. Kansas City lawyers Paul L. Wickens and Robert H. Houske represented the bar.
Four Cocktails Before Flight
The patron consumed four Maker’s Mark cocktails with a splash of coke, each one a double containing 3.5 ounces of alcohol, at the Bud Stadium Club in the Kansas City International Airport before boarding a flight to Dallas. A drink receipt showed the four drinks were served between 4:32 and 6:22 pm. No one at the bar recalled seeing the patron. He then had one cocktail on the plane.
After landing in Dallas, he got behind the wheel of a car. He was involved in an automobile collision that killed two passengers in the vehicle he hit and injured the driver of the other vehicle. The responding police officer noticed the patron’s speech was slurred, his eyes were red, bloodshot and watered and he smelled of alcohol. The patron failed a field sobriety test and a blood test taken about four hours after he left the Stadium Club showed a BAC level of .169 percent.
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.
The plaintiffs presented the deposition testimony of a toxicologist who opined that the patron’s BAC was between .175 and .18 percent when he ordered his fourth drink. He also stated that the patron would have begun showing uncoordinated actions, significant physical dysfunction, facial appearance changes, changes in demeanor and a loss of inhibitions before ordering his second drink.
A toxicologist retained by the patron’s employer admitted that there would have been significant physical dysfunction after the four drinks and that anyone paying attention would have seen the patron was drunk.
The toxicologist retained by the bar also admitted that most social drinkers are visibly intoxicated when their BAC reaches .15 percent.
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
Writing for the Court, Special Judge Zel M. Fischer noted that 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 argued that because no one at the bar observed 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 a person’s BAC was relevant it didn’t establish a prima facie case. However, the families also presented the testimony of the officer who responded to the accident, the drink receipts and the expert testimony of toxicologists. That evidence, the Court concluded, was sufficient to create a genuine 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.