DRAMSHOP CASES

Your client has been severely injured by a drunk driver who, based on elevated blood alcohol content, pleads guilty to DUI. The drunk driver’s liability insurance carrier immediately offers the paltry limit of its minimum coverage policy. You recommend accepting the policy limit without spending any money or time on the case because this approach will give your client the best net results. Rather than suggesting a contingency fee arrangement, you bill the client for the small amount of time you have in the case, feel good about your results, and close your file.

As the pessimist says, “No good deed will go unpunished!” If this scenario applied to you in the past year, you may need to back up or you may have to put your malpractice insurance carrier on notice.

Deposing the drunk driver before setting such a case is a must. At the very least, get a sworn statement from the drunk driver. You may learn, like I did, that the drunk driver had been drinking for several hours at the local tavern where he passed out. But, while maintaining the “party atmosphere” advertised by the bar, the cocktail waitress awoke the drunk driver in waiting to serve him another tequila shooter. His itemized credit card receipt substantiated the 12 shooters he had. The waitress knew him from parties past. She knew he demonstrated all the traditional signs and symptoms of intoxication. But she didn’t want to offend him or peeve the boss by cutting him off.

No liability or fault under Tennessee’s dram shop attaches to a social host[1] or merchant[2] for gratuitously providing alcoholic beverages. In either circumstance, the legislature has declared “. . . the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.”[3]

However, under limited circumstances, sellers of alcoholic beverages in Tennessee may be liable for injuries caused by intoxicated persons. Tenn. Code Anno. §57-10-102 provides:
Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.



A cause of action for negligent sale of alcoholic beverages was recognized by the Tennessee Supreme Court in Brookins v. The Roundtable, Inc., 624 S. W. 2d 547 (Tenn. 1981). But, the code section quoted above, adopted in 1986 governing the liability of sellers of alcohol, now determines the civil liability of a seller of alcoholic beverages rather than common law concepts of negligence and negligence per se that imposed duties defined under criminal statutes .[4]

Exceptions to the legislative declaration that consumption, rather than sale, is the proximate cause of injures caused by intoxicated persons provide a cause of action in two limited circumstances: sales of alcoholic beverages to 1) a person under age twenty-one or 2) a person already obviously intoxicated.

In the first exception, the seller must know the purchaser is a minor. Sale to one minor who supplies the alcohol to another minor tortfeasor is not covered under the act. The purchasing minor tortfeasor must consume the alcoholic beverage so sold and that consumption must directly cause the accident.[5]

The second exception requires a sale to a person already “obviously intoxicated.” Defining the phrase “obviously intoxicated” may directly affect the outcome of a dram shop case. Defendants want to frame these cases so that “obviously intoxicated” means severely drunk with super-elevated blood alcohol concentrations. Plaintiffs will oppose the suggestion that “obviously intoxicated” means “more intoxicated” or “severely intoxicated”. If the State considers a person with a .08 g% blood alcohol concentration “intoxicated”, shouldn’t “obvious” signs and symptoms of that condition meet the requirement of Tenn. Code Anno. §57-10-102?

While no definition of “obviously intoxicated” has been provided by the legislature and no Tennessee appellate court has provided a precise definition, some direction exists in defining the term for a trier of fact. “Intoxication” is defined in Tennessee Pattern Instructions - Civil as follows:

A person is intoxicated when that person’s physical and mental abilities are impaired as a result of drinking an alcoholic beverage. The impairment must be to the extent that the person is unable to act with ordinary or reasonable care, as would a sober person under the same or similar circumstances.[6]

Under our DUI laws, “intoxication” means “under the influence of an intoxicant.” The definition for “under the influence of an intoxicant” in Tennessee Pattern Instructions - Criminal is more detailed, and, frankly, is easier to work with in pursuing a dram shop case:

The expression "under the influence of an intoxicant covers not only all well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of taking intoxicants or drugs in any form and which deprives one of that clearness of mind and control of oneself which one would otherwise possess. In this situation, it would not be necessary that the person be in such a condition as would make [him] [her] guilty of public drunkenness. The law merely requires that the person be under the influence of an intoxicant or drug. The degree of intoxication must be such that it impairs to any extent the driver's ability to operate a vehicle.[7]

The phrases “obviously intoxicated” and “visibly intoxicated” have been used interchangeably by other courts throughout the country.[8]

In passing the Alcohol Server Responsibility and Training Act of 1995[9], the legislature gave the Tennessee Alcoholic Beverage Commission authority to promulgate rules to implement that law. Accordingly, the Tennessee ABC determined the primary legislative purpose in passing the Alcohol Server Responsibility and Training Act of 1995 was to prevent intoxication-related deaths, injuries, and other damages through responsible alcohol serving practices and awareness.
The Tennessee ABC defines “visibly intoxicated” as follows:
An impairment of an individual's mental or physical faculties as a result of drug and/or alcohol consumption accompanied by a perceptible act, series of acts, or by the appearance of an individual which clearly demonstrates such impairment.[10]

The traditional burden of proof in criminal cases is the most prominent feature of this civil cause of action. Proof of each element of the cause of action “beyond a reasonable doubt” is only slightly more complicated that the burden of proof carried by the State in the typical DUI case. The complication concerns proof of the “obvious” or “visible” element.

The Alcohol Server Responsibility and Training Act of 1995 requires alcohol merchant employee-servers to have permits to sell alcoholic beverages. To obtain a permit, servers must receive and pass a test on alcohol awareness training. Server training programs must be approved by Tennessee ABC. Approved training programs[11] teach recognition of the traditional signs and symptoms of intoxication. Alcohol servers are subjected to criminal sanctions for improper sales of alcoholic beverages[12]. These typical signs and symptoms of intoxication are the cannon fodder for dram shop cases. Tennessee appellate courts have not addressed the relationship between the dram shop law, the server training law, and a cause of action for failure to properly train alcohol servers.

While limited in scope and onerous in application, Tennessee’s dram shop law may provide a means to recovery for those who suffer the misfortune to be injured by a drunk driver who has little or no liability insurance coverage. At the very least, investigation of injuries caused by drunk drivers should include a careful look at potential dram shop liability.


[1] Biscan v. Brown, 160 S. W. 3d 462 (Tenn. 2005).
[2] LaRue v. 1817 Lake, Inc., 966 S. W. 2d 423 (Tenn. App. 1997).
[3] Tenn. Code Anno. § 57-10-101(Acts 1986).
[4] Worley v. Weigels, 919 S. W. 2d 589 (Tenn. 1996).
[5] Worley, supra.
[6] Tenn. Pattern Instructions: Civ. § 4.10 (2005).
[7] Tenn. Pattern Instructions: Crim. § 38.01 (2005).
[8] 45 Am. Jur. 2d “Intoxicating Liquors”.
[9] Tenn. Code Anno. § 57-3-701 et seq. (Acts 1995).
[10] Tenn. Comp.R. & Regs. Ch. 0100-8-.02. DEFINITIONS.(9).
[11] TIPS (Training for Intervention Procedures), BARCODE, CARE (Controlling Alcohol Risks Effectively), ServSafe, SPIRITS (Sound Procedures in Reaction and Intervention Techniques of Alcohol Service), TASK (Tennessee Alcohol Server Knowledge), and Top Shelf have been approved.
[12] Tenn. Code Anno. §57-4-203; Tenn. Code Anno. §57-5-301.


originally published in Tennessee Trial Lawyers Magazine, Winter 2005-2006