When a restaurant, bar, or any vendor of alcohol is served with a lawsuit based on a patron’s alleged intoxication, the common reaction is typical of anyone else served with a lawsuit: “Great, so now what?”
The easy answer to that question is generally going to be that you should contact your insurance carrier. Slightly more difficult to answer is what documents should you be collecting for your attorney in the meantime. While the specific answer to that question will vary with every case, there are a few common items that will almost always be relevant to a liquor liability case.
In order to understand what documents to look for, it’s important to know the reason you’re being sued. Ala. Code § 6-5-71 is Alabama’s Dram Shop Act, which provides a cause of action against any person who sells, gives away or otherwise disposes of alcohol “contrary to the provisions of law.” Selling alcohol that is contrary to the law is a seemingly broad and ambiguous classification; however, Alabama Courts have suggested the purpose of the Act is to punish those entities that continue to serve alcohol after a person has become “visibly intoxicated.” See, McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320 (Ala. 1991).
As a result, it’s the alleged service to a patron who was visibly intoxicated that is typically the subject of liquor liability cases.[1] It’s important to note the distinction between visible and legal intoxication. While legal intoxication is a blood alcohol concentration of .08 or greater in Alabama, visible intoxication is not as quantifiably cut and dry. Instead, visible intoxication is often established (and defended) through a combination of documentation and witness and expert testimony.
Which brings us back to what documents and information you should be looking for after you receive service of the complaint. The short answer is anything that will shed light on whether there was a sale to the patron in question while he/she was visibly intoxicated. This can include, but is certainly not limited to, the following:
- Receipts or tickets of any alcohol sales to the patron in question, as well as anyone accompanying him/her.
- Any photos or videos (security or otherwise) of the patron at your establishment.
- If the time period is known, a list of any servers/bartenders/doormen who were working during the time period in question.
- A list of any other witnesses with information about the incident at issue.
- A copy of any incident logs maintained by the entity.
- Receipts or tickets of any food sales to the patron in question.[2]
- Any alcohol training your staff had received relevant to the time period in question.
The above information should be fairly reasonable to obtain if you’re sued shortly after the incident, but dram shop actions may be filed up to two years after the accident giving rise to the complaint. As a result, when a lawsuit is filed, there may only be a piece or two of evidence remaining to assist you with the defense of your case, and little to no witness recollection. This makes it all the more important to initiate discussions with your attorney as soon as possible after you receive service of the complaint.
[1] There are other causes of action including service to minors and employees drinking the job
[2] Because the consumption of food plays a part in the rate at which the body metabolizes alcohol this information is often useful to experts in assessing the potential level of intoxication.