Liquor Liability Involvement

• Author: Leonard Bucklin
• Pages: 721-752

62-1 (Rev. 4, 8/08)

62. Liquor Liability Involvement

This chapter has a coordinated suite of dis-

covery forms for cases in which liquor is

involved. The forms include:

• Checklist for deposing the intoxicated

person;

• Checklist for deposing a witness to the

drinking;

• Checklist for interviewing, deposing,

or examining at trial the investigating

police officers regarding alcohol

involvement in the situation they

investigated;

• Demand for production of documents,

to be used before you depose a com-

pany or establishment that furnished

alcoholic beverages; and

• Checklist for deposing the establish-

ment, or the social host, that furnished

alcoholic beverages.

There are more than just forms in this chap-

ter. We include power litigation case-handling

advice for cases involving alcoholic consump-

tion. In addition to informative text on the sub-

jects involved, you will find a number of spe-

cial tactical insights marked as “Tip.”

Those “building blocks” again.

As we have advised elsewhere in this book,

use checklists in “building block” fashion. You

will recognize that the forms in this chapter are

designed to be natural building blocks for your

depositions. The building block approach

allows you to pull together those particular

checklists that apply to your situation, and

assemble them in different patterns for differ-

ent cases. Thus, for example, if you as the plain-

tiff’s attorney deposing a drinking driver in a

motor vehicle accident, and the intoxicated

person was driving a company car, you would:

(1) Use our form “Checklist — Deposing

the Driver in an Auto Accident” as the

base for your examination of the drink-

ing driver; and then

(2) Add our form “Checklist — Driver

Under Control of Defendant Com-

pany,” to establish employer liability;

and then

(3) Add our form “Checklist — The Intox-

icated Person (The IP),” to establish the

alcohol intake.

With this trio of checklists assembled in

building block fashion you are efficiently

preparing your deposition questions for the

driver. You are using blocks of questions with

which you are already familiar from other dep-

ositions; hence you do not have to spend much

time reviewing those “blocks” before going out

the door to the deposition. Or suppose the case

is a premises fall-down case, and you are the

defense attorney. Then you would:

(1) Use our form “Checklist: Defendant’s

Deposition of Slip & Fall Plaintiff”; and

then

(2) Add our form “Checklist — The Intox-

icated Person (The IP),” to establish the

alcohol intake.

Another good example of the efficiency of

the building block approach involves our stan-

dard interview/deposition/testimony check-

list for police officers in motor vehicle accident

investigations. You will have used the police

officer checklist so much in your cases that the

questions in that building block will be a sec-

ond nature to you. (“Second nature,” noun. An

acquired behavior that is so long practiced as to

seem innate.) It’s then simple to add the

“Checklist — Police Officer re: Liquor Involve-

ment” from this chapter. Review that addi-

tional building block, and you can be off to the

police officer’s deposition in a liquor liability

case with maximum efficiency and sureness.

Do not regard the checklists as only applica-

ble to commercial bars and paid bartenders.

Most state laws impose special responsibility

on all those who serve alcoholic beverages,

whether or not the drinker paid for the drink.

This gives the plaintiff another defendant than

the tortfeasor whose hand directly caused the

injury to the plaintiff. In many states, not only

bars and commercial purveyors of liquor, but

also social hosts, can be sued under the liquor

liability law. Socially providing drinking

includes office parties. The number one prob-

lem that businesses face with holiday parties is

potential liability as a social host under liquor

laws. If a person is served alcoholic drinks at a

company party on or off the company premises

and then injures himself/herself, or someone

else, in an accident, the company might be held

liable if the drinks caused intoxication. It’s not

only the business hosting the party that is a

potential defendant, the bartender at the party

can be a litigation target. When a social host,

especially a business as a social host, is

involved, the checklists in this chapter are use-

ful, just as they are in for-profit sales of alco-

holic beverages.

The forefront four.

Telling jurors a storyline which they will

willingly accept is a major attainment of suc-

cessful trial lawyers. Jurors have preconceived

values about alcoholic consumption and the

moral worth of persons involved in drinking or

in providing drinks. Moving the jurors past

their preconceived values to the action you

want them to take requires you to tell the story

of the event in a way which motivates the jurors

toward a verdict in your favor.

The storyline you present for your side of the

case must be based on the facts you select to

emphasize. The facts upon which you will

build that storyline ordinarily must be dug out

by depositions from unwilling witnesses with

personal stakes in the outcome of the case.

While doing the necessary digging, you must

understand you are developing a proposed sto-

ryline to be presented to a settlement confer-

ence or to a jury. Attorneys deposing a person

with knowledge of the sales and drinking of the

alcoholic beverages want to learn four main

items for the storyline they will present. Those

four main items should be the subjects in which

you seek exquisite detail, so that you have all

the details you need for your storyline.

Details will have the emotional drivers and

the memory hooks for the jury. Instead of

merely finding that three drinks were served,

you want the details of whether the waiter

went to the table five minutes after the second

drink was served, and a guy with a red shirt

ordered “a round,” and the waiter cleared six

empty glasses from the table, and the waiter

did not check the physical status of everyone at

the table before serving a “round.” We call the

four main storyline items (upon which you will

develop the details for a memorable storyline)

the “forefront four” — because they should be

at the forefront of your mind. All else is second-

ary to the alcohol storyline. The forefront four,

in which you want exquisite detail, are:

1. The drinks the involved person imbibed

(from all sources on the date of the acci-

dent),

2. The visible, audible, and odoriferous

appearances of the involved person (when

he entered, during the drinking, and

when, after drinking, he left the defen-

dant provider),

3. The control exercised by the defendant

provider over the situation (the alcoholic

beverage service policies of the defen-

dant provider and the directions, con-

trol, and training of wait staff), and

4. The physical actions of the person who

handed over the specific alcoholic beverages

to the involved imbiber.

The checklists in this chapter cover those

four main items. They go further, pointing you

to many additional areas of possible interroga-

tion. But always keep the above four items in the

forefront of your depositions, especially if you

plan on introducing the deposition into evi-

dence at the trial, or plan on using the deposi-

tion as a power tool for settlement.

§62.1 Special Tactical Tips in Liquor

Liability Litigation

Initial choice of law.

The substantive law of liquor liability varies

from state to state. The special relief, if any, to

a person who has been injured because of the

sale of an alcoholic beverage to a torfeasor,

ordinarily will not be the same in adjoining

states. The variance of state laws may be signif-

icant in your case if the drinking was on one

side of a state line and the accident on the other

side. You may have a choice of jurisdiction for

the litigation’s venue.

§62.1 BUILDING TRIAL NOTEBOOKS 62-2

Plaintiff’s counsel — before issuing a com-

plaint, consider carefully the laws of both

states, and in which you are likely to be more

successful.

Defendant’s counsel — as soon as you

receive the complaint, consider whether a

motion for dismissal on the ground of forum

non conveniens will be a good tactic, or whether

there is some other way of moving the case to

the alternative jurisdiction.

Amount of insurance of liquor seller ver-

sus that of drinking driver.

It is not unusual that the insurance coverage

of a commercial liquor seller is greater than that

of a drinking driver. Plaintiff’s counsel should

be alert to the fact that a tortfeasor with limited

insurance coverage and the possibility of an

excess judgment against him/her has a vested

interest in securing settlement contribution

from the liquor seller. That may give you unex-

pected testimonial help.

Plaintiff’s counsel — use to your plaintiff’s

advantage the primary tortfeasor vested inter-

est in settlement. Have a friendly discussion

with the tortfeasor’s attorney well before the

deposition. Point out the advantage of plaintiff

responding affirmatively to your future deposi-

tion questions designed to show the bartenders

should have stopped selling to him. You may be

surprised how enthusiastically a defendant

driver who knows he will be “nailed” on drink-

ing will be on the subject of how obviously

drunk he was (“The bartender should have seen

I fell down getting on the bar stool”), and vol-

unteering opinions (“That bartender knew I

was drunk and took advantage of me”).

Defendant’s counsel for the liquor seller and

bartender — be alert to the above plaintiff’s tac-

tic as a possibility. Counter it with your own

friendly pre-deposition discussion with the tort-

feasor’s attorney. Point out your tender concern

that plaintiff and your bartender client might

settle separately at the courthouse steps, and

“you sure don’t want to have your plaintiff on a

deposition record unnecessarily volunteering

statements about being obviously intoxicated,

when we are out of the case.” Point out that

defendants should not be unnecessarily volun-

teering information to help the plaintiff, but

rather only responding to plaintiff’s discovery.

Alcohol awareness — server intervention

— training of bartenders and wait staff

Many states have some variant of requiring a

holder of a liquor sales license to have staff

trained to spot a customer who is about to

become intoxicated and trained to cut off sales to

the drinker at that point. For example, Maryland

state law requires both on-sale and off-sale retail

alcoholic beverage establishments to maintain at

least one person who has been certified in an

approved alcohol awareness training program.

In Hafford, Howard, Kent, Montgomery, Wash-

ington, and Wicomico Counties, licensees are

required to have a certified person employed in

a supervisory capacity and present during the

hours in which alcohol may be sold. Although

state law does not require licensees in other

counties to have a certified representative pres-

ent at all times, the county or city might require

it for the county or city license (e.g, the City of

Annapolis Rules and Regulations require a certi-

fied person on premises at all times when alcohol

is served). As other examples, the District of

Columbia requires every on-sale manager to

submit a copy of his/her certificate showing

completion of an alcohol awareness training pro-

gram within the previous two years from a

Board-approved training provider with any

manager’s license renewal application. Santa

Monica, California, requires “a mandatory alco-

hol-awareness training program for all employ-

ees having contact with the public.”

These alcohol awareness programs might

better be called “server intervention” pro-

grams. Typically these programs train bar-

tenders and wait staff on the effects of alcohol

on the body, signs of intoxication, the legal

responsibilities of servers, ways to cut off serv-

ice to people who are drinking too much, how

to handle intoxicated persons, and the manage-

ment practice that should be used to support

server intervention.

The importance of these server intervention

programs to litigation is that a server or man-

ager or owner who has attended a program

can be the subject of extensive cross-examina-

tion regarding “what should be done.” The

deponent becomes in effect your own expert

on “what should have been done,” allowing

the jury to contrast that with what actually was

done by the servers.

62-3 LIQUOR LIABILITY INVOLVEMENT §62.1

(Rev. 4, 8/08)