Visible Intoxication Under Michigan's Dramshop Law

Whether an after-work happy hour, televised sporting event or an all-night celebration, many different events draw patrons to their local bars. While these times can be occasions for fun and socializing, bars and driving are not necessarily a safe cocktail. According to the Michigan Annual Drunk Driving Audit, there were 6,271 people injured and 351 people killed in crashes involving alcohol or drugs in 2009.

Dramshop laws were created to deter bars from over-serving customers. If a patron is over-served and is then involved in a drunk driving accident, the bar may be liable for civil damages.

Michigan Liquor Control Code

The Michigan Liquor Control Code (Dramshop Act) allows certain people to bring a lawsuit against a bar if it illegally served an intoxicated or underage client who then causes injury, death or property damage. The act provides the exclusive means to recovery against bars and does not apply to wholesale licensees. In order to recover:

  • The victim must suffer property damage or personal injury
  • The damage or injury must be caused by a minor or visibly intoxicated person because of the unlawful selling, giving or furnishing of alcohol to the minor or visibly intoxicated person
  • Unlawfully furnishing alcohol to the minor or visibly intoxicated person must be the proximate cause of the injury or damages

The law affords a cause of action for an "innocent third party" or for the spouse, child, parent or guardian of the innocent individual. That is, the allegedly intoxicated person (AIP) or minor and anyone who contributed to the intoxication do not have a claim against the server of alcohol.

Generally speaking, the injured person must provide written notice to the bar within 120 days of retaining an attorney. The lawsuit must be started within two years after the injury to or death of the innocent third party and must name the AIP or minor as a defendant.

Dramshop actions differ from the doctrine of social host liability, under which a person or entities other than bars may be held liable for furnishing liquor to an underage person who then injures or causes the death of another person.

Proof of Visible Intoxication

The outcome of many dramshop cases hinges on whether the AIP was served while visibly intoxicated. According to the Michigan Model Civil Jury Instructions, a person is visibly intoxicated if his or her intoxication would be apparent to an ordinary observer. The issue of visible intoxication is a fact question and can be proven by circumstantial evidence and reasonable inferences.

One source of evidence of the AIP's condition is a BAC test, whether administered at the hospital, the police crime laboratory or a medical examiner's office. Plaintiffs also frequently rely on expert witness toxicologists regarding the likely blood alcohol content (BAC) of the AIP after consuming a prescribed amount of alcohol, and what effect those drinks probably had on the AIP. However, in a 2006 case, the Michigan Supreme Court limited the use of expert testimony alone to establish visible intoxication. In that case, the plaintiffs relied on suppositions drawn from BAC tests even though four eyewitnesses alleged they saw no signs that the AIP was visibly intoxicated. The court explained that while expert post hoc analysis may demonstrate actual intoxication, it does not prove that others witnessed visible intoxication.

In light of this, although standard for visible intoxication is objective - that is, whether the intoxication would be apparent to an ordinary person -plaintiffs may increasingly rely on the subjective statements of other patrons at the bar, that is, direct eyewitness testimony. An appellate court decision from 1987 appears to allow lay witnesses to testify about their perception of the AIP.

Furnishing alcohol to a minor is per se unlawful and does not require evidence that the minor was visibly intoxicated.

Defenses by the Bar

There are a number of defenses available to bars, including but not limited to:

  • There is a rebuttable presumption that a bar has not committed any act creating liability under the Dramshop Act if it was not the last bar to serve the driver
  • The bar may present evidence that it was adhering to responsible business practices, although it is unclear what effect this would have on liability
  • The bar may present evidence that the minor exhibited false identification showing him or her to be of drinking age

Victims of drunk driving accidents should contact a skilled personal injury lawyer to talk about the accident and whether they may have a claim against an establishment that over-served the other driver.