The Reasonable Efforts Defense

 

Liquor liability in Connecticut was traditionally only allowed through the Dram Shop Act, which is essentially strict liability. There are a few technical defenses to a Dram case, but they are extremely limited. Over the past few decades, Connecticut courts have allowed other causes of action, and with the advent of the newer causes of action. the reasonable efforts defense has been used in a number of cases. 

 

By Jan C. Trendowski, Esq.

October 31, 2013

 

Liquor Liability in Connecticut was traditionally only allowed through the Dram Shop Act, which is essentially strict liability.  If you were able to prove the three elements of the statute, you had proven your case.  Just as a refresher, the three elements are:  (1) the sale of an alcoholic beverage; (2) to an intoxicated person; (3) who thereafter causes injury or damage to the person or property of another person.

 

There are a few technical defenses to a Dram case, such as the lack of the statutory notice, but they are extremely limited.  Over the past few decades, Connecticut courts have allowed other causes of action, such as reckless service, sale of alcohol to a minor, and provision of alcohol to an employee.  With the advent of the newer causes of action, I have been able to use the "Reasonable Efforts" defense in a number of cases.  This is a defense which has been used in other states but which is not effective against a Dram claim as the defendant's knowledge or level of care are irrelevant to the elements listed above.  With a common law negligence claim, however, the amount of care exercised by the defendant is relevant to whether the defendant breached a duty to the plaintiff.

 

I recently tried a case where the claim was that the defendant had served a minor and also served an intoxicated person.  While there was no question that there was a sale to a minor, a large part of our defense was the procedures we used to stop minors at the door and the training we used to avoid serving intoxicated patrons.  Insofar as the door procedures, we brought in the "door kit," which was a steel box containing age statement forms, ID checking books with photographs of proper IDs, confiscated IDs to show the quality of fake IDs, and count clickers used to monitor the number of people in the establishment.  The owner testified about how he did not use a bar code reader because a valid license belonging to someone else would pass.  He felt that a bar scanner made security lazy, and he wanted them to actually check the face of the person presenting the ID.  The confiscated IDs showed the jury the quality of what is available over the internet.  Further, the owner testified as to the hidden codes in CT drivers' licenses, which are not that much of a secret but are not widely known among minors.  In short, the owner presented extremely well and had the goods to back up his testimony.

 

Insofar as the sale to an intoxicated person, we were able to show that the bartenders had been through safe service programs, such as TIPS or SMART, and that the operations manuals emphasized no sales to minors or intoxicated patrons.  I believe that the safe service programs serve a number of useful purposes, but the bulk of the information they teach is simply common sense.  There are no secret tricks or signs of intoxication which can only be gotten from a safe service program.  The jury concluded both that the age checking procedures were more than adequate and that the bar had made reasonable efforts to avoid serving intoxicated patrons.  How this information is presented to a jury is up to the lawyer, but the information has to be there to work with.  To the extent I am able to present a responsible operation to the jury, I do now.  For example, with a happy hour, is there finger food available?  Are all servers empowered to cut off a patron without consulting a manager?  Are bartenders told to check IDs if they wish to regardless of whether there's someone checking at the door?  Notably, I just finished a case in Washington, D.C. where the plaintiff's liquor standards expert gave the opinion that any bartender who has not taken a safe service program has breached the standard of care for the hospitality industry.  While I was able to contradict him on cross examination, that doesn't always work.  Putting the staff through any of the recognized programs goes a long way towards a reasonable efforts defense.

 

For more information or any questions regarding this article, please contact Attorney Jan Trendowski at JanTrendowski@TrendowskiLaw.com.

 

UPDATE

 

You'll recall that some months ago I wrote an article about how difficult the current law in Connecticut is regarding notice of assaults  Over the past three years I have lost assault cases where the notice of the assault was bad dancing, a dirty look, and an argument over the Red Sox.  The Connecticut Appellate Court held that bad dancing was, indeed, notice of an assault.  I appealed to the State Supreme Court which held on October 29, 2013 after briefs and oral argument, that they didn't want to decide the issue and dismissed the appeal.  See Wood vs. Club LLC.  They neither affirmed or denied the Appellate Court decision, but their dismissal leaves the Appellate decision in place.  As such, notice of an assault is pretty much anything the jury decides.  Not a great legal situaiton, but is what it is.  Check the blog at www.TrendowskiLaw.com for earlier newsletters on the issue.

 

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