Dram Shop / Victim of Drunk Driving

Alcohol-related accidents often cause life altering injuries or death.  As many as 4 out of 10 traffic deaths in South Carolina are attributable to drunk driving, which is well above the national average.  Often the drunk driver does not have sufficient insurance or assets to make the injured person whole.  However, it is possible that there may be other persons or businesses that are legally responsible for this wrongful act, such as a restaurant, bar, store, or establishment that sold or served alcohol to that driver when he was intoxicated.  This area of law is referred to as dram shop litigation and it is unique, both from a legal and a practical perspective.  At Clawson Fargnoli, LLC, we have extensive experience litigating dram shop cases and knowledge of the steps that must be taken to maximize the injured party’s recovery.

The Drunk Driving Epidemic in South Carolina South Carolina has the second highest rate of deaths from impaired driving in the nation.  Over 3,800 people have been killed in South Carolina in the past decade in motor vehicle accidents involving a drunk driver. Over 22,000 Driving Under the Influence (DUI) arrests are made in South Carolina each year, but efforts of law enforcement have not been enough to reverse this drunk driving trend of more than 300 motorists per year losing their lived due to drunk driving in South Carolina.

Immediate Action is Crucial Following a DUI Accident Dram shop cases are fact intensive cases and require attorneys who are experienced in navigating the hospitality industry and able to supervise the timely collection and analysis of police reports, receipts, video, social media, and eyewitness statements. It is important that a dram shop attorney be hired as soon as possible after a drunk driving accident, so that all potentially relevant evidence can be collected and all potential sources of recovery explored.  If you or a loved one have been the victim of a drunk driver, contact us to discuss the legal options available to you.

South Carolina Dram Shop Law The laws governing civil liability for bars and restaurants relating to irresponsible service of alcohol are often referred to variously as dram shop laws, tavern liability, liquor liability, alcohol liability or social host liability. South Carolina statutory and common law governs the liability of restaurants, bars, nightclubs, social clubs, liquor stores, convenience stores and even individual people (social hosts) with respect to liability for the service of alcohol. In lieu of dram shop laws in our state, dram shop liability in South Carolina is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons. The relevant statutes are as follows:

  • “No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit: (1) sell beer or wine to a person under twenty-one years of age; (2) sell beer or wine to an intoxicated person…” S.C. Code Ann. § 61-4-580.
  • “A person or establishment licensed to sell alcoholic liquors or liquor by the drink pursuant to this article may not sell these beverages to persons in an intoxicated condition.” S.C. Code Ann. § 61-6-2220.
  • “It is unlawful for a person to sell beer, ale, porter, wine or similar malt or fermented beverage to a person under twenty-one years of age.” S.C. Code. Ann. § 61-5-50.
  • “It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of beer or wine in the State….” S. C. Code. Ann. § 61-4-90.
  • “It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of alcoholic liquors in the State….” S. C. Code. Ann. § 61-6-4070.

In recognizing a private cause of action for a violation of these statutes, the Court of Appeals stated that their purpose is to promote public safety, and to prevent an already intoxicated person from becoming even more intoxicated, and thus an even greater risk to the public at large, when he leaves the establishment.  Tobias v. Sports Club, 332 S.C. 90, 92 (S.C. 1998).

A plaintiff must show that the bar knowingly sold alcohol to the intoxicated person. The proper standard of proof of this is whether the bartenders negligently served alcoholic beverages to a person who, by his appearance or otherwise, would lead a prudent man to believe that the person was underage or intoxicated. Knew or should have known is an articulation of an objective reasonable person standard.  Hartfield v. Getaway Lounge, 697 S.E.2d 558 (2010).  Thus, the present standard clearly establishes that the requisite proof is not limited to visible intoxication only, but also encompasses a scenario where the bar served so many alcoholic beverages to an individual that a reasonable bartender could expect that the individual was or would become intoxicated.

If a restaurant or a bar knew or should have known that it was serving an intoxicated person, whether by signs of visible intoxication or based upon the type, number and time period over which the customer consumed alcoholic drinks, that restaurant or bar can be held liable for the resulting injuries and damages proximately caused by the drunk driver. Furthermore, the jury may infer that the alleged intoxicated person was intoxicated if their BAC was 0.08 or higher.  Hartfield v. Getaway Lounge, 697 S.E.2d 558 (2010).

Liquor Liability Insurance Many commercial general liability policies exclude liquor liability coverage.  Until recently, bars and restaurants were not required to have liquor liability coverage.  Fortunately, the state legislature recognized the problem this posed for victims of drunk driving and mandated that bars and restaurants provide proof of a minimum of $1,000,000 in liquor liability coverage in order to renew their alcohol permits and licenses.  This action eliminated a massive barrier to making victims of drunk driving whole.

Toxicology Proving that the drunk driver was intoxicated at the time of the sale or service of alcohol is crucial to successfully litigating a dram shop case.  There are several methods that can be employed to accomplish this.  Frequently, the services of a forensic toxicologist are required to perform various extrapolations.  An anterograde extrapolation can be employed to calculate a Blood Alcohol Content (BAC) based off video, paper receipts or point of sale system data, or witness testimony regarding the number and type of drinks consumed by the drunk driver over a given period of time.  A retrograde extrapolation can be employed to calculate a BAC at an earlier time based off a breath alcohol or blood alcohol test performed by law enforcement or medical personnel following an accident.  Additionally, a forensic toxicologist can offer opinions regarding the signs and symptoms that the drunk driver would have been displaying at the time of service based upon the calculated BAC.

Social Host Liability There are certain circumstances when an adult homeowner may be held liable for allowing consumption of alcohol by minors on their property.  An adult social host who knowingly and intentionally serves, or causes to be served, an alcoholic beverage to a person he knows or reasonably should know is between the ages of 18 and 20 is liable to the person served and to any other person for damages proximately resulting from the host’s service of alcohol.  Marcum v. Bowden, 372 S.C. 452 (2007).  These cases involve homeowner’s insurance, which can be difficult to navigate, making selection of competent counsel crucial.

Dram Shop / Victim of Drunk Driving / Social Host Attorney It is important to retain counsel who are experienced in evaluating and litigating dram shop and social host cases to maximize the value of your case.  These cases are often very complex and require a good working knowledge of the hospitality industry, point of sale systems, video systems, and forensic toxicology, as well as a willingness and ability to act quickly to preserve crucial evidence.  If you have been the victim of drunk driving, please contact us to discuss the legal options available to you.