Sadly, thousands of innocent people lose their lives every year due to the actions of drunk drivers, and even thousands more suffer serious injuries. In the past decade (more accurately, from 2013–2022), the percent change in alcohol-impaired driving fatalities per 100,000 people in Oregon has increased by over 108%, the highest percentage increase in the nation. Almost one-third of all car accident fatalities are caused by drunk drivers. Our criminal justice system endeavors to punish the guilty, but what about the innocent victims?
If you were injured in a car accident caused by an impaired or intoxicated driver, there are several options available to you in seeking compensation for those injuries. Making a claim against the car insurance of the at-fault drunk driver is the first logical step. Following that up with a claim against your own insurance under your UIM (Underinsured Motorist) coverage should also be considered. This article, however, will focus on your right to pursue an action against the commercial purveyor or social host that furnished the at-fault driver with alcohol.
OREGON LIQUOR LIABILITY (DRAM SHOP) CLAIMS
In Oregon, claims against a commercial purveyor or social host serving alcohol are governed by ORS 471.565. The statute allows victims injured by a drunk driver to make a claim against the commercial business (e.g., bar, tavern, restaurant, liquor store, etc.) or social host that served the at-fault party (defendant) alcohol. The statute prohibits serving alcohol to someone who is visibly intoxicated. The key term is “visibly” intoxicated. This is an objective test: Was the defendant showing visible signs of intoxication, such as speech or motor impairment, while being served alcohol?
The statute does not define or limit what the list of visible signs of intoxication may include. Likely, evidence of slurred speech, bloodshot eyes, staggered walking, falling over, aggressive behavior, lack of coordination, delayed cognition, and similar signs of inebriation will support that conclusion. Once this evidence is established, the offending provider of alcohol can be held liable under Oregon Dram Shop law.
One caveat is the admonition against contributing (by way of encouraging or facilitating) to the intoxication of the offending party. Plaintiffs (victims) will be barred from pursuing a dram shop claim if they are found to have substantially contributed to the intoxication of the defendant (at-fault driver). What the terms “substantially contributed” include is fact-based. This analysis can get technical. In one case, the court found that:
“An affirmative finding that any such conduct was not a significant and material factor in the patron or guest’s intoxication will depend on the broader circumstances of the intoxication—namely, the existence of facts that make it more likely than not that the plaintiff’s conduct, even if encouraging the purchase or consumption of alcohol or facilitating its consumption, was not a significant and material factor given the overall circumstances of the case.”
HIGHER BURDEN OF PROOF
Unlike ordinary negligence claims, where the burden of proof is “preponderance of the evidence,” commonly referred to as the “more likely than not” rule, in a dram shop claim the burden of proof is elevated to the “clear and convincing” standard. Clear and convincing means the facts supporting the claim must be “highly probable” or “much more probably true” than other possibilities.
To put this in context, if you are pursuing a dram shop claim against a bar where the defendant was served alcohol before the crash, you would have to prove that it was highly probable that the defendant was exhibiting visible signs of intoxication while still being served more alcohol.
This higher burden also extends plaintiff’s exculpation from contributing to defendant’s intoxication. Plaintiff (victim) will be barred from pursuing a dram shop claim if they are found to have substantially contributed to the intoxication of the defendant (at-fault driver). What the terms “substantially contributed” include is fact based. This analysis can get technical. In one case the court found that “an affirmative finding that any such conduct was not a significant and material factor in the patron or guest’s intoxication will depend on the broader circumstances of the intoxication—namely, the existence of facts that make it more likely than not that the plaintiff’s conduct, even if encouraging the purchase or consumption of alcohol or facilitating its consumption, was not a significant and material factor given the overall circumstances of the case”. But, at the end of the day, it will be the plaintiff’s burden to prove by clear and convincing evidence they did not substantially contribute to defendant’s intoxication.
NOTICE REQUIREMENT UNDER OREGON DRAM SHOP LAW
Pursuing a dram shop claim can be legally complex. Unlike, for example, a typical car crash claim, dram shop claims require prior notice. If the claim for damages resulted in wrongful death, the notice to the at-fault party (bar, tavern, social host, etc.) must be given within one year after the date of death. If the claim for damages is for injuries other than death, the notice to the defendant must be given within 180 days after the injury occurs.
Note: The rule requires notice WITHIN 180 days of the date the injury happened, NOT 180 days before filing a claim or lawsuit. To complicate matters further, the rule does make concessions for the “discovery” of such a claim under dram shop law. The “discovery rule” is complex and fact-specific. An experienced attorney should be able to advise you if your claim falls under the “safeguard” of the discovery rule.
WHY PURSUE A DRAM SHOP CLAIM?
The painful truth is that too many innocent people are seriously injured or killed by the reckless abandon of a few. Compounding that truth is the reality that offending drivers are facilitated by equally culpable providers of alcohol—either derelict in their duty to monitor their patrons or guests, or worse, in the case of commercial purveyors, knowingly choosing profits over safety.
Whatever the case may be, the law aspires for the victim, or their family, to be made whole. Pursuing a claim against the offending driver is one option. However, that option often does not afford the victim full compensation. The offending driver will rarely have adequate insurance coverage to pay for their transgression. That is one reason making a claim against the provider of alcohol would be advisable.
While liability insurance coverage for commercial purveyors of alcohol may vary, the Oregon liquor liability law does require that they carry at least $300,000 in coverage.
If you are a victim of a drunk driver accident, you have options. Filing a claim against the at-fault driver is certainly one. You may also be eligible for benefits through one or more uninsured/underinsured motorist policies. But often, to receive adequate compensation, you will need to pursue a dram shop claim against the offending provider of alcohol.
At Shlesinger & deVilleneuve, we have helped thousands of Oregonians get justice for their case. We have expertly handled hundreds of cases involving drunk drivers, getting justice for the victims. Let us do the same for you!
