A common question is who’s responsible when alcohol is a factor in a serious injury? Each year, alcohol related injuries result in hundreds of millions of dollars in medical and dental bills, out-of-pocket expenses, lost wages, and pain and suffering (emotional distress). If alcohol was a factor in your injury, you may be entitled to compensation.
Whether you’ll get compensation or not is complicated. It involves a study of applicable state and federal laws and regulations, underlying circumstances, and an understanding of the concept of negligence. Sometimes liability is crystal clear. Other times, much less so. In this section, we cover important issues related to personal injury claims involving alcohol consumption.
We cover the following topics:
- Common types of alcohol related injuries
- Liquor liability “dram shop” laws
- The doctrine of negligence per se
- When bar bouncers go too far – respondeat superior
- How contributory and comparative negligence can affect your claim
- Filing a claim under a homeowners insurance policy
Common Types of Alcohol Related Injuries
Slip and falls
Slip and fall injuries are common in environments where alcohol is being served. Alcohol impairs the senses, balance, and reflexes. Consequently, the likelihood of slipping and falling increases. Dimly lit bars, nightclubs, and restaurants make climbing steps, moving from carpeted to tiled floors, and walking through spilled drinks more dangerous.
Bar fights frequently happen. Patrons who consume excessive amounts of alcohol often start fights. Verbal arguments can quickly escalate, causing injuries to innocent bystanders. Door men and bouncers employed by bar owners can overreact to perceived confrontations. The excessive force they exert can result in unnecessary injuries.
Alcohol consumption around pools, in conjunction with the sun and heat, can cause a person to fall, hitting his or her head on perimeter surfaces, on diving boards, and on solid objects in and around the water.
Alcohol and other drug consumption is the leading factor in domestic violence in the United States. Men are more likely to assault their partners or family members while drunk or high on other drugs.
Blood and organ injuries
Several diseases linked to excessive consumption of alcohol include cirrhosis of the liver, epilepsy, blood poisoning, blood capillary failure, and several types of cancer.
Driving while intoxicated (DWI) and driving under the influence (DUI) are the leading causes of traffic accidents in the United States. Those who are drunk or high while driving are 90 percent more likely than sober drivers to cause accidents that result in serious bodily injuries and death.
Liquor Liability “Dram Shop” Laws
Under “dram shop” laws, more commonly known as liquor liability laws, courts have ruled bar owners can be held liable for injuries to bar patrons and third parties. Under these laws, when a bartender knows or should know a bar patron is drunk, and continues to serve that patron alcohol, the bar owner can be held liable for injuries the intoxicated patron causes. These laws can also apply to individuals who serve too much alcohol in their homes or at social functions.
Dram shop laws are complex in their definition and application. Each state deals with liquor liability separately. Some states severly limit bar owner liability when an intoxicated patron injures himself, others are more liberal.
Negligence “Per Se”
In most alcohol related personal injury cases, the burden is on the injured bar patron, social guest, or third party to prove the person serving alcohol knew, or should have known, the person they served was drunk or impaired, and despite that knowledge continued to serve them alcohol. This over-serving of alcohol constitutes negligence.
For an injured party to prove negligence will require evidence such as witness statements, surveillance footage, production of bar receipts, and more. Yet, this isn’t always the case. When an injured party can show the over-serving of alcohol directly violated his state’s liquor liability laws, the bartender’s negligence becomes negligence per se (by itself).
When an injured party can show negligence per se existed, he has already met his burden of proof. Gathering evidence is then unnecessary. That’s why it’s important to know how your state’s liquor liability laws apply to your situation.
Example: Overserved bar patron causes car accident
You met your buddy Jim at a sports bar. He was there with his friend Mike who’d already had a few drinks before you arrived. Mike appeared intoxicated to you and anyone who was looking, but the bartender kept serving him drinks. On his way home, Mike caused a car accident, injuring himself and several passengers in another car. The police arrested him at the scene for DUI.
Under Massachusetts state liquor law, for instance, Mass. Gen. L. c. 138, s. 69 (), Mike would not have a case of negligence of any type against the bar. That’s because Massachusetts bars voluntarily intoxicated persons from personal injury claims against the entity that served the alcohol. The injured passengers however, would have the basis of a strong personal injury case against the bar owner.
To establish negligence per se, the injured third parties would only have to show that the bartender knew, or should have known Mike was intoxicated, and yet continued to serve him. A copy of the police report would serve to strengthen the negligence per se claim even more.
Injuries from Bouncers – “Respondeat Superior”
In an effort to maintain order and safety, many nightclub owners employ doormen and bouncers. The idea, in theory, is a good one. Bouncers are supposed to identify trouble before it starts and eliminate it. They normally do this by prohibiting individuals who may appear intoxicated or who have a reputation for violence from entering the club. Bouncers also stop bar fights and eject those who become involved in altercations.
Under the legal doctrine of respondeat superior (Latin for “let the employer answer”), a court may decide an employer is liable for injuries caused by an employee, so long as the employee was acting within the scope of his job duties. This means the bar owner is responsible for injuries caused by his bouncers, whether unintentional or intentional.
The bar owner normally has liability when the injured patron can prove the bouncer used excessive force to stop his participation in a fight, when ejecting him, or when otherwise handling him. In some cases, even when excessive force isn’t used, the basis for a personal injury claim may still exist. The courts evaluate each instance of alcohol related injury on its own merits.
Contributory and Comparative Negligence
Contributory and comparative negligence can factor into your claim. Depending on which state you live in, even the smallest amount of contributory negligence can result in your claim being denied. Or, the percentage of your own negligence may compromise your claim by limiting the amount of your settlement.
Today, the states of Alabama, Maryland, North Carolina, Virginia, and the District of Columbia follow the contributory negligence doctrine. The rest of the states follow various forms of comparative negligence.
If you were hurt in a state following the contributory negligence rule and you contributed to your own injury, even if only slightly, the law completely bars you from recovering even a penny from the negligent party.
If you live in a comparative negligence state, the court compares your amount of responsibility for your injury with the negligence of the other party. So, the percentage of your own negligence leading to your injury will be deducted from your total settlement amount.
Example: Fall in a bar after drinking
You were in a nightclub in Maryland and had several drinks over a short period of time. While walking from the bar to your table, you tripped and fell over a broken floorboard and broke your arm.
You filed a personal injury claim against the club owner asserting he was entirely at fault. When the nighclub’s insurance company checked the credit card receipts for the night you were there, they learned you ordered four drinks in a one-hour period. They denied your claim because you contributed to your own injury by drinking enough alcohol to cause impairment.
If the club was in New York, the courts would compare your negligent behavior (being intoxicated) with the negligence of the club for not repairing the floorboard. You might recover some compensation for your injuries, but your intoxication would lessen the award.
Homeowners insurance may cover alcohol related injuries to third parties in your home, but will not cover injuries to you or other household members. If you were drinking and became injured in someone else’s home or on their property, you may be able to get compensation from the homeowner’s insurance coverage.
There are two ways to recover compensation under homeowners policies. One is under the medical-payments, or med-pay, section of the policy, and the other is under the personal liability section.
Example: Tripped on broken tile
You were at your girlfriend’s house watching a movie. While there, you both had a few too many beers. When the movie finished, you got up to leave. As you did, you stumbled and fell over some broken tile in the hallway and hit your head. You suffered a deep gash on your forehead and a broken wrist.
Consequently, you had medical bills, costs for medications, slings, etc. You also couldn’t work for two days. You asked your girlfriend for the name of her homeowners insurance company so you could file a personal injury claim for your damages.
In an instance like this, you have a choice. You can file under the med-pay section of your girlfriend’s homeowners policy, or under the personal liability section.
Under the med-pay section, you wouldn’t have to prove your girlfriend was negligent. All you’d have to show is you were hurt when you fell over a broken tile at her home. You can get up to $1,000 for your medical bills and medications under med-pay, but unfortunately, it does not cover lost wages or pain and suffering.
Your second choice is to file under the personal liability section of your girlfriend’s policy. Under this section, you might get compensation for your medical bills, out-of-pocket expenses, lost wages and your pain and suffering, but it requires you prove she was negligent for not repairing the broken tile.
If your girlfriend lives in a contributory negligence state, you won’t receive any settlement money. Your intoxication was at least partly responsible for your fall. If she lives in a comparative negligence state, your recovery is subject to that state’s comparative negligence laws. Because of your intoxication, the amount of your recovery is limited.
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