a. DEFINITION: “Obviously intoxicated” has been defined in court decisions as the following: In order for there to be an illegal sale the person to whom the sale is made must be intoxicated to such an extent that the seller, using his usual and reasonable powers of observation, sees or should see that the buyer is intoxicated. There must be such outward manifestation of intoxication that a person using his reasonable powers of observation can see or should see that such person has become intoxicated. It does not require proof of any specified amount of drinking, but simply proof that as a result of drinking intoxicants, a person has lost control to any extent of his mental or physical faculties which should be observable by the seller. AIP means allegedly intoxicated person.
1. There is a difference between the terms "Under the influence of intoxicating liquor" and "obviously intoxicated."
2. High blood alcohol reading alone is not, as a matter of law, sufficient to prove obvious intoxication.
3. The testimony of eye witnesses can assist in proving obvious intoxication.
4. An elevated blood alcohol concentration (BAC) and the testimony of a toxicologist is helpful to prove obvious intoxication.
5. The attorney proves obvious intoxication by demonstrating the BAC, circumstantial evidence, such as length of time in bar, number of drinks, erratic driving and circumstances surrounding the accident.
b. The server has only the duty to use his usual and reasonable powers of observation.
c. This law applies to the sale of any alcoholic beverage containing at least one-half of one percent alcohol by volume.
d. Direct evidence is when witnesses testify that a person was intoxicated and showed signs of intoxication.
e. Circumstantial evidence (number of drinks, BAC, manner of driving and autopsy report) is just as important as direct evidence.
f. Admissibility of Blood Alcohol Reports: With proper foundation, reports of laboratory analysis of alcohol content in the blood of the AIP are ordinarily admitted to show the state of intoxication of the person whose test was taken. The standard for the admissibility of blood alcohol tests is the same in criminal and civil cases
g. Medical Records: AIP's medical records are inadmissible unless he has put his condition in controversy and requires expert medical testimony.
2. Sales to minors are illegal. Minn. Stat. 340A. 503.
a. Proof of Age is the problem.
b. A good faith defense is used by the seller if proof of age for purchasing or consuming alcoholic beverages was accepted and based upon the following:
1. A valid driver's license with photograph and date of birth; or
2. A valid identification card from Minnesota, another state or province of Canada including photo and date of birth of licensed person; or
3. In the case of a foreign national (from a nation other than Canada), a valid passport; or
4. A valid military identification card issued by the U.S. Dept. Of Defense (Green Active Military I.D.); or
5. The defendant bar must establish, by a "Preponderance Of The Evidence," reasonable and good faith reliance upon one of these methods of proof of age and upon doing so is relieved of liability for a sale which is otherwise illegal. In other words, the seller is off the hook.
c. It is not necessary to prove intoxication at the time of sale, because the sale is illegal by virtue of the fact that it is made by a minor.
d. However, it is necessary to prove whether the illegal sale caused the minor's subsequent intoxication and whether the intoxication caused the accident out of which the actions are brought. It is easier to prove intoxication and causation than it is to prove obviously intoxicated.
e. If a minor to whom an illegal sale is made subsequently gives the intoxicants to an adult and the adult thereafter causes an accident, the illegality of such a sale is not erased regardless of whether the adult is sober or intoxicated.
3. Miscellaneous other illegal sales.
a. Sales After Hours (Minn. Stat. § 340A.504) such as sale of drinks after 1:00 a.m.or 3:00 a.m. and the sale of off-sale liquor after 10:00 p.m.
1. The purpose of the off-sale law is to regulate the industry rather than create civil liability. The purpose of regulating sales after 1:00 a.m. or 3:00 a.m. is because such sales took place late at night when the likelihood of overindulgence and the resultant hazards with which the Act is concerned is enhanced.
2. The victim must show that the off-sale caused the intoxication and that the intoxication also contributed to cause the injury.
b. Sales on Prohibited Days (Minn. Stat. 340A.504).
1. A sale on a prohibited day would be considered an illegal sale for purposes of the Dram Shop Act.
c. Sales at Prohibited Locations (Minn. Stat. 340A.412, subd.4).
1. There are no known cases under this section.
e. Prohibited Intoxicants (Minn. Stat. 340.A506).
f. Sales to Non-members of Clubs (Minn. Stat. 340A.404, subd. 1(3)).
1. This section allows some municipalities to issue “on-sale licenses to bona fide clubs and veteran organizations. The license permits sales to members and bona fide guests only.
Technically, therefore, a sale to a non-member who is not a bona fide guest is illegal and the seller will be liable if that sale causes or contributes to intoxication and that intoxication causes injury.
2. ELEMENT #2 - ILLEGAL SALE CONTRIBUTED TO THE PERSON’S INTOXICATION
Q. HOW DOES THE ATTORNEY PROVE THAT THE ILLEGAL SALE CAUSED OR CONTRIBUTED TO THE ALLEGED INTOXICATED PERSON’S (AIP) INTOXICATION?
A. By looking at all of the surrounding circumstances, proof must show a practical and substantial relationship between the illegal sale and intoxication.
1. The intoxicants consumed as a result of illegal sales need not be the sole cause of intoxication, just a proximately contributing cause.
2. The definition of intoxication used to determine whether the AIP is intoxicated is as follows: When any person from the use of intoxicating liquors has
a. affected his reason or faculties, the symptoms would be present relatively early in a drinking episode and observed by many people. In fact, intoxication probably requires far less drinking than what the word ‘intoxication’ had previously meant.
b. rendered himself incoherent of speech, or
c. caused himself to lose control in any manner to any extent of the action or motions of his person or body.
Q. ARE THERE ANY RECOGNIZED DEFENSES TO THE ILLEGAL SALES CAUSATION?
A. There are two accepted defenses:
1. Lapse of time between the sale and the accident
a.This is the better defense. Courts have held that proof of intoxication becomes of less probative value as more time elapses between the time such person leaves the seller's premises and the time of the accident causing the injury. Time may also be a factor where the only drink sold was consumed seconds or minutes before either the incident or accident. The alcohol may not have been fully absorbed in the blood stream by the time of the accident.
2. Minimum amount of consumption. However, even a small quantity of intoxicants is sufficient to meet the contributing cause requirements.
3. ELEMENT #3 - AIP PERSON'S INTOXICATION IS DIRECT CAUSE OF DAMAGE
Q. HOW DOES THE ATTORNEY PROVE THE PERSON’S INTOXICATION IS A DIRECT CAUSE OF PLAINTIFF’S DAMAGES(ELEMENT #3)?
A. This intoxication must be a“proximate” cause of plaintiff's injuries.
1. The attorney must prove that the intoxicationof the AIP actually caused the Plaintiff's injuries. For example:
a. The intoxication of an AIP who runs a red light and broadsides another vehicle certainly causes the Plaintiff's injuries.
b. If a Plaintiff crosses over the centerline head-on into an AIP, the injuries of Plaintiff are caused entirely by factors other than the AIP's intoxication. It fails to establish the causal connection between his injuries and the illegal sale.
c. When an obviously intoxicated Plaintiff was removed from a bar and subsequently injured by the bouncer, the intoxication may have been the occasion for her ejection from the bar, but it did not cause her injury. The bouncer caused her injuries.
4. ELEMENT # 4 - PLAINTIFFWAS DAMAGED BY THE INTOXIFICATION
Q. HOW DOES THE ATTORNEY PROVE THAT THE PLAINTIFF WAS DAMAGED?
A. The plaintiff must have measurable damages recoverable under the act. Minnesota stat. 340.801 provides a cause of action for certain persons injured in person, property, or means of support, or who incurs other pecuniary loss.
1. Damages for Personal Injury: the measure of damages for bodily injuries sustained by a person entitled to recovery under the Dram Shop Act is identical to the measure of damages recoverable in an ordinary negligence action.
2. Survivors of a decedent and injured persons recover damages for pecuniary loss and loss of means of support.
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