Dram shop laws address the liability of a provider of alcohol for the actions of the person who consumes it. A ‘dram’ refers to what was once a common measure of whiskey. A dram shop is any commercial establishment that offers alcohol for consumption on the premises.
Dram shop laws are state laws imposing liability on business establishments for the damage done by persons they provided alcohol to when they were not legally supposed to. More than 40 states in the US have some type of dram shop law. Most states do not impose liability unless the provider of alcohol was aware or should have been aware that an adult consumer was intoxicated.
Dram Shop Laws in Oklahoma
Violating dram shop laws can result in both criminal and civil penalties. Title 37 of the Oklahoma Statutes addresses the responsibility for providing alcohol to intoxicated persons. The Oklahoma Alcoholic Beverage Control Act prohibits anyone from knowingly selling, delivering, or furnishing alcohol to anyone:
- Who is intoxicated
- Who is legally insane
- Who has mental deficiencies
- Who is under 21 years old
The law is hardest on violators who knowingly provide alcohol to a minor when someone is injured or killed as a result of the minor’s conduct. Such violation is classified as a felony and punishable by up to 5 years in prison and a $5,000 fine.
Although statutes prohibiting the sale of alcohol to intoxicated persons had been on the books for many years, it wasn’t until 1986 that the Oklahoma Supreme Court first decided the issue of civil liability for injuries to a third party after a restaurant served alcohol to a customer who was noticeably intoxicated and got into a car accident after leaving the restaurant.
In Brigance v. Velvet Dove Restaurant, Inc., the court held that a seller of alcohol for on-premises consumption has a duty to take reasonable care not to sell liquor to a customer who is noticeably intoxicated. The court concluded the restaurant was liable for the injuries caused by its customer because it was reasonably foreseeable a drunk customer would pose a serious risk of harm to others when the customer got behind the wheel.
Prior to Brigance, providers of alcohol for on-premises consumption did not have any liability to third parties for injuries caused by intoxicated customers. The issue was legal causation. Providing the alcohol was not considered the proximate cause of a third party’s injuries. It was the consumption of alcohol that caused the injuries – and consuming alcohol was the choice of the customer.
Strong public interest in safety on the roads, common knowledge of the risks associated with drinking and driving, and the restaurant knowing the customer was intoxicated and was going to be driving likely contributed to the decision to impose civil liability on alcohol providers who knowingly over-serve patrons on-premises.
Indications that a Person is Noticeably Intoxicated
As part of the licensing process for retailers who wish to serve alcohol on premises, the Alcoholic Beverage Law Enforcement Commission (ABLE) requires the completion of a certified training program designed to encourage the responsible serving of alcohol. ABLE instructs those serving alcohol to be alert for the following common signs of intoxication:
- Loud talking, uncontrolled laughter, yelling
- Vulgar language and/or inappropriate gesturing
- Slurred speech, difficulty walking, poor coordination, slowed reflexes
- Moodiness, aggressive behavior, or belligerence
- Vomiting or signs of becoming ill
The Oklahoma Supreme Court’s Recent Expansion of Dram Shop Liability
A recent Oklahoma Supreme Court decision is causing concern among retailers who sell alcohol for off-premises use. It had been previously established that anyone who knowingly sold or furnished alcohol to a minor for consumption on or off premises could be held liable for injuries caused by the minor. But the court’s recent decision would extend dram shop liability to retailers who sell alcohol to intoxicated adults for off-premises use.
In Boyd v. ASAP Energy, Inc., a convenience store clerk sold beer to a customer who later the same evening caused a car accident resulting in significant injuries to third parties. The customer had apparently been drinking most of the day. The store had a policy against selling to intoxicated persons, and the clerk had been trained to identify signs of intoxication. The clerk had noticed nothing suspicious when he sold the customer the beer. The sale of the beer to the customer had taken place between 5 and 6 hours before the accident occurred.
The court’s decision has been criticized as placing an unfair burden on retailers who sell alcohol for off-premises consumption. The law in Oklahoma requires an alcohol provider have some indication that a customer is intoxicated. Unlike the situation where alcohol is served on premises, sales to customers for consumption off premises involve very little interaction with the customer and provide very little opportunity to observe whether a customer appears intoxicated. The court’s decision seems to overlook what the convenience store clerk knew about the customer.
There is also a problem with the proximate cause. In Boyd, the sale of alcohol took place more than 5 hours before the accident. Even if the convenience store clerk knew he was selling alcohol to a customer who appeared intoxicated, there is a lot of opportunity for intervening causes – like additional alcohol consumption – between the sale of the alcohol and the accident.
Dram Shop Liability and Tribal Immunity
Indian tribes in Oklahoma – as elsewhere – are given a limited sovereign status by Congress and are allowed the ability to self-govern independent of other state laws. In order to be liable for injuries under state law, a tribe must waive its immunity from a particular type of liability.
Oklahoma operates more tribal casinos than any other state in the nation. There are 33 tribes operating at least 143 casinos. Tribal gaming is the second largest industry in Oklahoma and generates more tribal gaming revenue than any state other than California. Tribal casinos are immune from dram shop liability.
Tribal immunity has come under fire from ABLE since the Oklahoma Supreme Court’s decision in Sheffer v. Buffalo Run Casino. In Sheffer, the court upheld tribal immunity finding that a waiver of immunity was not implied by having a license to serve alcohol and only an express waiver of immunity will expose a tribal casino to dram shop liability. ABLE would like to see an express waiver of immunity tied to a tribal casino’s ability to renew its license to serve alcohol.
How to Know if Dram Shop Liability Applies
Any time someone is injured in an accident caused by an intoxicated individual, the potential for dram shop liability exists. Providers of alcohol for off-premises use are now likely to face more scrutiny about alcohol sales making defending dram shop liability under current law more difficult.
Proving dram shop liability is about proving a provider of alcohol should have recognized the potential for harm to others due to a person’s age or incapacity. A personal injury attorney with experience handling alcohol-related injuries can determine whether the behavior of an alcohol provider was sufficient to expose the provider to dram shop liability.