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Noah Shapiro of Zarwin Baum.  Courtesy photo Noah Shapiro of Zarwin Baum. Courtesy photo

Under the Pennsylvania Dram Shop Act, 47 P.S. Sections 4-493(1) and 4-497, a licensed alcohol server, or “licensee,” such as a bar or restaurant, may be held liable for serving alcohol to either a minor (under 21) or an adult who is “visibly intoxicated.” Visible intoxication is not required in cases involving service to a minor. A dram shop violation is negligence per se, so if the violation is the cause of the plaintiff’s injuries the defendant licensee is liable. See, Miller v. Brass Rail Tavern, 702 A.2d 1072 (Pa. Super. 1997). In order for a plaintiff to recover under the Pennsylvania Dram Shop Act two elements must be proven: that the patron was served alcoholic beverages by a licensee while visibly intoxicated or a minor; and that this violation of the statute proximately caused the plaintiff’s injuries. See, Johnson v. Harris, 615 A.2d 771 (Pa. Super. 1992). The second element is satisfied if intoxication from the alcohol served contributed to the accident in question. A licensee may raise the comparative negligence of an intoxicated patron as a defense in a dram shop action. This includes the comparative negligence of a minor. See, Matthews v. Konieczny, 527 A.2d 508 (Pa. 1987). In addition to typical compensatory damages for economic and noneconomic losses, punitive damages are recoverable in dram shop actions and have resulted in some of the largest verdicts in Pennsylvania. See, Tuski v. Ivyland Case, 888 A.2d 19 (2005) (approximately $75 million verdict including approximately $43 million in punitive damages).

Determining whether a patron that was served was a minor is always a straightforward task, whereas determining whether a patron was visibly intoxicated is a much more nuanced analysis. Visible intoxication consists of signs of intoxication that are externally apparent, such as slurring or stumbling, e.g., Speicher v. Reda, 434 A.2d 183 (Pa. Super. 1981). Blood alcohol concentrations (BAC) alone are insufficient to prove visible intoxication. See, Johnson v. Harris, 615 A.2d 771 (Pa. Super. 1992). Even expert testimony that a patron would have been visibly intoxicated at the time he was served based on their BAC at some later time is by itself insufficient to prove visible intoxication. However, a plaintiff can still prove a dram shop violation in the absence of direct eyewitness evidence that an individual was served alcohol while visibly intoxicated, through circumstantial evidence. See, Fandozzi v. Kelly Hotel, 711 A.2d 524 (Pa. Super. 1998). Circumstantial evidence such as the number of drinks consumed and subsequent observations of visible intoxication such as at the scene of an accident, combined with blood alcohol levels and related expert testimony are typically sufficient to get a plaintiff to a jury.

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