How Can Alcohol Affect my Personal Injury or Wrongful Death Claim?
Posted on behalf of RizkLaw on Feb 28, 2017 in Personal Injury
Many unsightly injuries and devastations occur at the hands of alcohol. Just last year, approximately 10,265 people died in a drunk driving incident, up 3.2% from 2014 statistics. If alcohol was a factor in your personal injury case, you may be interested in knowing whether or not that can affect your claim.
Besides suing the alcohol-impaired driver who caused the accident, depending on the circumstances around your case you may be able to file a claim against the bar, bartender, or server who did not utilize discretion when serving the driver alcohol. In Oregon, “dram shop” laws are laws that place liability on the entities that sell alcohol for the negligent and reckless actions of their impaired patrons. Almost all states have some type of dram shop protections for victims of drunk drivers.
What is "Dram Shop"?
The term dram refers to a unit of measure by which alcohol used to be measured. A dram shop was an establishment in 18th Century England that sold gin by the spoonful, or “dram.” In the time before dram shop laws, courts did not usually allow parties to sue businesses that sold alcohol for over-serving, since the serving itself did not cause the injury or death. Today, 43 states and D.C. have at least some dram shop law in effect for which an injured party or the family of an injured party are able to sue alcohol vendors or retailers for monetary damages.
Put simply, dram shop cases are those in which businesses that sell and serve alcohol are sued for serving a patron too much to drink. There are third and first party dram shop cases in which an establishment can be partially liable for a personal injury or wrongful death.
A first party dram shop case is one in which the inebriated patron is also the injured party. In this case, the intoxicated person sues the establishment for serving too much to drink. This type of dram shop case is not permitted in most states as people should be held accountable for their actions. In some states, only minors are allowed to file a first party dram shop lawsuit. First party cases are extremely difficult to pursue because it’s tough to persuade a jury to sympathize with someone who should have known when he or she was not fit to drive.
Throughout Oregon, the most commonly pursued dram shop suits are third party suits. In one such suit, the business that serves the alcohol is considered the third party. This is when an intoxicated person injures another person due to the negligent or reckless act of consuming too much alcohol. Many states allow these types of cases, and it can be beneficial to the injured party when the intoxicated driver does not carry sufficient insurance to pay for all the damages he or she caused.
In Baker v. Coslin 25 OR 147 ( 2016) the Oregon Supreme Court relied on legislative history in finding a plaintiff must prove fault by clear and convincing evidence and that violation of Oregon’s liquor liability statute ORS 471.565 does not create an independent claim. In doing so, the Oregon Supreme Court overruled decades legal precedent. Prior to Baker, a showing of negligence was not required to prevail on a dram shop claim. Going forward Plaintiffs must prove a patron was served while visibly drunk AND it was reasonably foreseeable that patron would drive away from the serving establishment. Most significantly, the Court held that ORS 471.565, requires proof by clear and convincing evidence, a high standard of proof. As a result, prompt professional investigation supervised by a lawyer is more important than ever.
Should I sue the seller of alcohol in my case?
As in any other matter of personal injury, negligence or recklessness must be demonstrated.
Dram shop cases are difficult to pursue due to the matter of proving fault. It is almost impossible to determine whether a bartender knew that a patron was drinking on an empty stomach, already impaired from drinking at a previous establishment, or had a low tolerance for alcohol — any of these circumstances could be cause for a patron quickly becoming intoxicated at that particular establishment. It’s also difficult to prove that a bartender could “reasonably foresee” that the patron would get into a vehicle and cause harm to another.
A serious injury or wrongful death case can leave anyone with considerable hardship. If you or someone you know has been hurt by a drunk driver, you may be able to file a civil claim for your damages. Call RizkLaw at (503) 245-5677 for a free evaluation of your case by an experienced Portland personal injury attorney.