Imagine you’re enjoying a few beers with friends at a local watering hole when suddenly another bar patron hauls off, slugs you, and breaks your jaw. Unfortunately, Gus, the slugger, is an intoxicated unemployed construction worker with $20 in his checking account. His entire assets consist of the boots he’s wearing and a 1980 Buick.
Who’s going to pay your medical bills? And until the doctor removes the pins from your jaw, who’s going to cover your lost wages? How about the cost of the antibiotics? What about your pain and suffering? You know Gus probably doesn’t have any insurance. So who’s going to pay?
Dram Shop Laws
Under dram shop laws (a dram is a unit of weight), bar and club owners who profit from selling alcoholic beverages to obviously intoxicated persons can be liable for the property damage and injuries the intoxicated patron causes.
Dram shop laws are warnings to bar and club owners, making it clear that if they continue to serve alcohol to intoxicated patrons, they’ll become responsible for the patron’s actions, especially when those actions result in injuries to others.
Today, 42 states have their own forms of dram shop laws. Only Delaware, Louisiana, Nebraska, Kansas, Maryland, Nevada, South Dakota, and Virginia don’t have any such laws.
To protect themselves from injury claims and lawsuits resulting from violations of dram shop laws, many bar and club owners have eliminated “Buy One, Get One Free,” “Ladies Drink Free Night,” and other celebrations of alcohol consumption. These actions help, but they can’t entirely protect bar and club owners from patrons determined to create problems.
To more fully protect themselves, most owners carry bodily injury insurance policies. In addition to covering injuries caused by a patron, bodily injury insurance also covers things like food poisoning, slip and falls, cuts and bruises, burns, and other injuries.
Bars, Nightclubs and The Law
The courts hold bar and nightclub owners to a high legal duty of care (obligation) to do everything reasonably possible to protect their patrons from foreseeable harm. When an owner fails in his duty of care and a patron gets injured, the injured patron can file a claim or lawsuit for compensation.
Foreseeable means the bar or club owner must know, or should know her actions or omissions, or those of her employees, may result in injuries to patrons.
The courts use the term foreseeable because every harm can’t be anticipated. Sometimes unforeseeable events beyond the control of bar or club owners occur. When unforeseeable events injure patrons, the courts normally don’t consider the owner to have breached their duty of care.
In Gus’ case, if the bartender knew Gus was drunk and still served him, the bar owner is responsible for your damages. The possibility of an intoxicated patron exhibiting belligerent tendencies toward others is foreseeable in a bar setting.
However, what if Gus came into the bar already intoxicated, and before he had a chance to order a drink he slugged you? Is the bar owner liable? Probably not. In this case, Gus’ actions were unforeseeable.
Proving violations of Dram Shop Laws
The problem often seen in dram shop injury claims is foreseeability. How can a bartender tell when a patron is intoxicated? What if a nightclub is large enough to require several bartenders at one time? How can one bartender know how many drinks another bartender served to any one patron? Should bartenders require each patron to pass a breath test before ordering each drink? That would be impractical and virtually impossible.
That’s exactly why bar and nightclub owners carry bodily injury insurance policies. These policies cover everything from intoxicated patrons who slug it out with other patrons, to slip and fall accidents on beer-soaked floors – and everything in between.
Liability for Injuries
If a drunken bar patron injures you, or you slipped and fell, or you got hurt in some other way and intend to file a personal injury claim against the bar, you have to meet what the courts refer to as your burden of proof.
This means you don’t automatically receive an insurance settlement just because Gus slugged you, or you cut your head when you fell off a broken bar chair. You have to prove the bar’s negligence resulted in your injury. You have the burden to show sufficient evidence to prove your claim.
In a bar or nightclub setting, your burden of proof includes showing:
- The bar or club owner had a duty of care to protect you from injury.
- The injury-accident was reasonably foreseeable and therefore breached (violated) the owner’s duty of care.
- The owner or employee’s negligence resulted in your real damages.
Duty of care – In most cases, the presumption is the bar had a legal obligation to protect you.
Reasonably foreseeable – The bar owner or his employees knew, or should have known there were circumstances that could cause injury.
Damages – Your medical bills, out-of-pocket expenses, lost wages and pain and suffering.
Comparative and Contributory Negligence
Although you have a right to compensation for injuries sustained in a bar or club, whether you contributed to your own injury or not may limit your compensation.
Alabama, Maryland, North Carolina, Virginia, and the District of Columbia follow the contributory negligence rule. It states that if you contribute to your own injuries, even slightly, you can’t recover any amount of money for your damages.
For example, if while at a bar in a contributory negligence state, you have a few too many beers and slip and fall on some spilled nachos, cracking your skull, the bar won’t have to pay you anything. In this case, your intoxication, no matter how slight, completely bars you from compensation, regardless of the bar’s negligence.
However, if the bar was in a comparative negligence state, the percentage of your contribution to your fall lessens your compensation, but doesn’t eliminate it. For example, if the insurance company assessed your intoxication as 20 percent of the reason you fell, and your total damages were $10,000, you would only receive $8,000.
Of course, you don’t have to agree with the insurance company. You can negotiate for a higher settlement by arguing your intoxication was responsible for a much lower percentage of your fall. If that doesn’t work, you can file a lawsuit.
Evidence to Prove Your Claim
You know what you have to prove to win your claim. Now, how do you prove it? You prove it with evidence. Evidence is the foundation of your injury claim. Here’s what you’ll need to do:
Ask for medical assistance
If you suffer a serious injury, ask the bar owner to call 911. Certainly, a broken jaw requires paramedics and a trip to the local emergency room. The paramedics write a report which directly links your injury to the assault. Your hospital admitting chart and the treating doctor’s written diagnosis and prognosis continue the link.
If your injuries aren’t serious, you still have to immediately notify the bar owner or manager. If one isn’t on the premises, tell the bartender. Get her full name and give a detailed explanation.
For example, if you cut your hand on an exposed piece of wire, show her the cut and ask for some bandages and alcohol. Tell the bartender you’re on your way to the hospital or local clinic to have your wound treated. This establishes a link from your injury to your treatment.
Get the name of the bar’s insurance company. If the bar owner isn’t available, ask the bartender to have him call you right away. Leave your cell number, work and office phone numbers, and even your email address.
Confirm the injury
The type of injury and its circumstances determine the form of confirmation you need. When Gus slugged you, he committed the crime of assault. The police should come to the bar and conduct an initial investigation. If they believe Gus slugged you without legal provocation, they should arrest him. The arrest report will document not only the assault but also the type of injury you suffered, the name and address of the bar, and time and date the assault occurred.
In another example, if you slipped on a beer-soaked floor, injuring your arm, you must go directly to the bartender, the club manager, or the owner. Tell him where you fell, and show him the beer you slipped on.
Many clubs are dark. It usually takes time for your eyes to adjust. It may be virtually impossible for you to see a floor mat raised an inch or so above the ground. If you stumbled over the mat and hit your head on the doorframe, you must bring your injury to the bar owner’s attention immediately.
It will be too late to report the injury after you get home and realize you suffered a concussion. The bar owner will surely say you could have hit your head on any number of objects after you left his establishment.
Get witness statements
Witnesses can make or break your injury claim. In Gus’ case, you may find several other patrons who noticed Gus becoming more belligerent each time he downed another beer. Most patrons of clubs are there to enjoy themselves and may resent a boisterous patron. As a result, they may notice each time Gus is served another drink.
Ask the witnesses to tell the police what they saw. The police will take down their statements and record their names and contact information in the police report.
In another example, a witness may notice a broken chair. The witness may have even reported it to the club’s manager. If you sat on the chair and fell back, injuring your neck or head, the witness statement confirming he previously reported the chair will make your injury claim more credible.
Take pictures and video
Photographs and video make great evidence. Most cell phones today can take photographs and video. Make the most of your phone to acquire evidence in support of your injury claim. Don’t forget to turn on the date and time stamp function.
Darkened bars and clubs are difficult places to take clear photos and videos, so use the flash. In Gus’ case, a video and audio of his belligerent movements and the sound of his slurred words help to prove intoxication.
In another example, if you suffer an injury from a bolt sticking out of the wall, an audio recording of the waitress saying she repeatedly told the club owner “someone is going to get hurt on that bolt,” is gold. It’s known as an admission against interest and it clearly shows negligence. Statements like those make very strong evidence. Have her give you her name and contact information.
Dealing With the Insurance Company
You now have the police report, witness statements, photographs, and even video recordings. You also have copies of your medical records to date along with receipts for any costs.
Call the bar’s bodily injury insurance company. Tell the representative you need to file an injury claim. He’ll refer you to a claims adjuster. Be sure to write down the claim number the adjuster gives you. It’s your reference for future communications.
When the adjuster speaks with you, she’ll probably ask for your recorded statement. As long as you’re giving the minimum information asked, it’s okay. If you refuse, it may delay the processing of your claim. Always be honest, but don’t volunteer any information about your own contributory negligence. It’s wise not to give a statement until you speak with an attorney.
Offer to send the adjuster copies of all your damages to date. If you’re still getting treatment, the adjuster will probably tell you she’ll discuss a settlement once you fully recover and all your damages are complete.
Do you need an attorney?
If your injuries are soft tissue, meaning minor cuts, bruises, and the like, you can probably handle your own claim. If though, your injuries are the more serious hard injuries like a broken jaw, head injury, scarring, or second- or third-degree burns, you’ll need an attorney .
In hard injury cases, attorneys can access through subpoena power the bar’s business records. An attorney can take the depositions (recorded statements) of other patrons, bartenders, and even the owner.
When it comes to serious injuries, there’s just too much at stake for you to handle the claim yourself. In these cases, attorneys will almost always get a much higher settlement than you could on your own.
See an example of a bar injury demand letter here.
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