Illinois Dram Shop Act: Bars can be liable too!

We’ve all heard the saying, “When you drink and drive, you lose.” In Illinois, however, it may not just be the driver and the individual he or she collides with who has something to lose. The very bar or tavern owner that served the driver alcoholic beverages can also be held liable for damages. The Illinois’ Dram Shop Act, otherwise known as, the Liquor Control Act, holds commercial establishments liable for any damages or injuries caused by intoxicated persons, provided that the following can be proven:

1. The vendor sold alcohol to the patron
   1. See: Wessel v. Carmi Elks Home, Inc., 133 Ill. App. 2d 902. The court held that the Act denominated as wrong-doers the operators and owners of dram shops who caused the intoxication of persons who subsequently caused injury to others. The court held that such liability was not subject to shifting.);
2. Injuries or damages were in fact caused by the patron;
   1. See: Hernandez v. Diaz, 31 Ill. 2d 393, 202 N.E.2d 9, 1964 Ill. LEXIS 269 (Ill. 1964).The actual damages need not be inflicted by the intoxicant in a “by” case; the cause of action can arise from an outside factor so long as plaintiff can prove causal connection between the intoxication and the injury.
3. The business was the proximate cause of the intoxication; and
   1. See: Hernandez v. Diaz, 202 N.E.2d 9 (Ill. 1964) In order to prevail in a dram shop action in Illinois, the plaintiff must prove that the intoxication was caused by consumption of liquor provided by the defendant, and that the injury, property damage, or loss of means of support or society was caused by the act of an intoxicated person.
4. The intoxication was at least one major cause in the third-party’s injury.
   1. See: Kingston v. Turner, 505 N.E.2d 320 (Ill. 1987) In order to “cause” the intoxication the liquor must be a material and substantial factor in the intoxication. There is no limit for providing a de minimis amount of liquor.
   2. See: Haw v. 1933 Grill, Inc., 297 Ill. App. 37. Since plaintiff’s action was for an injury which she claimed resulted in consequence of her husband’s intoxication, it was incumbent upon her to show that such intoxication was the, or at least a, contributing proximate cause of the injury.

Historically, the Illinois’s Dram Shop Act differed from other states in that Illinois law did not require that the business had knowledge or reason to know that the patron they were serving was intoxicated. See, Tresch v. Nielsen, 57 Ill. App. 2d 469, where the court held that “liability is imposed upon the defendant without the necessity of proving fault; all that is necessary is to show that the defendant dram shop keeper sold or gave alcoholic beverages which contributed to the intoxication, and that the injury was caused by such intoxication.” 207 N.E.2d 109, 1965 Ill. App. LEXIS 772 (Ill. App. Ct. 1st Dist. 1965).

Presently, Illinois conforms to the majority opinion that there should be a “notice” requirement that the bar or tavern served a patron who appeared in some manner to be visibly intoxicated while they continued to serve them. See, Welch v. Convenient Food Mart No. 550, 106 Ill. App. 3d 131, 62 Ill. Dec. 96, 435 N.E.2d 894, where the court held that “liability may be imposed when the dram shop operator knows or should know that the alleged intoxicated person will be a consumer of the intoxicant. This rule requires more than knowing merely that unspecified, absent persons will be drinking; that is, the dram shop must have actual or constructive knowledge that a particular person will be drinking.” 1982 Ill. App. LEXIS 1800 (Ill. App. Ct. 4th Dist. 1982).

If these elements are met, it leads to the question of what, if anything, an injured party can collect from the bar or tavern that over-served the patron that injured them. Under the Illinois Dram Shop Act, recoverable damages against a commercial alcohol provider can include an injured person’s medical expenses, pain and suffering, loss of means of support, society, and/or lost wages, subject to a statutory limit to the amount recoverable under the statute. However, this statutory limit changes each year. For this reason, Section 6-21(a) of the Liquor Control Act of 1934 (235 ILCS 5/6-21(a)) requires the Comptroller to determine the liability limits for causes of action brought under the Act in accordance with the consumer price index-u (CPI-U) each year.

For the year of 2018, according to the U.S. Bureau of Labor Statistics, the liability limits are as follows:

• For causes of action involving persons injured, killed, or incurring property damage on or after January 20, 2018, the judgment or recovery under the Liquor Control Act of 1934 for injury to the person or property of any person shall not exceed $68,777.44 for each person incurring damages; and
• For causes of action under the Liquor Control Act of 1934 for either loss of means of support or loss of society resulting from the death or injury of any person on or after January 20, 2018, the judgment or recovery shall not exceed $84,061.32.

See:https://illinoiscomptroller.gov/agencies/resource-library/statutorily-required/dram-shop-liability-limits-2005-2018/

On one hand, under the Dram Shop Act, a bar or tavern may defend themselves by pointing to the injured person’s contributory conduct and their relationship to the intoxicated patron to reduce their own liability. Examples of this sort of contributory negligence includes harmful conduct such as provoking the patron into a bar fight or insisting that the patron drive despite being aware of their intoxication. On the other hand, the Illinois Dram Shop Act allows an injured party to recover from multiple bars or taverns if they contributed to the over-serving of alcoholic beverages to them, which led to such injuries, if the aforementioned elements are satisfactorily met.

Specifically, the Illinois Dram Shop Act provides that:

“Every person who is injured within this State, in person or in property, by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person, licensed under the laws of this State or any other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the territorial limits of this State, causes the intoxication of such person.” 235 ILCS 5/6-21.

Similarly, the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq.) allows a cause of action for contribution against one whose liability arises from an alleged violation of this Act. See, Morgan v. Kirk Bros., Inc., 111 Ill. App. 3d 914, 67 Ill. Dec. 268, 444 N.E.2d 504, 1982 Ill. App. LEXIS 2663 (Ill. App. Ct. 2d Dist. 1982).

In that same vein, the Illinois court in Monsen v. De Groot, 130 Ill. App. 3d 735, 86 Ill. Dec. 199, 475 N.E.2d 5, emphasized the public policy significance of contribution actions, holding that “allowing contribution actions based on violations of this section is consistent with its purpose of holding tavern owners liable for injuries caused by an intoxicated person. In fact, disallowing contribution actions against dram shops could result in allowing a tortfeasor to escape liability when, by law, he may have been partially responsible for the loss. 1985 Ill. App. LEXIS 1573 (Ill. App. Ct. 1st Dist. 1985).

For all the reasons mentioned above, the old adage, “when you drink and drive, you lose” is not limited to the intoxicated driver and the person he or she may injure; it also may pertain to the bars and taverns that over-served them along the way.

We, at Goldstein Bender & Romanoff, have successfully recovered money for persons injured due to a tavern’s negligence. Call us today for a free consultation.

— Christine S. Kim