The Dram Shop Act Prevails
by Michael Blahy
Timing is everything, when defending oneself from a claim, brought on by someone injured by an intoxicated patron of your establishment.
Steven and Audra Fell went to of the First Street Saloon in Idaho Falls, a bar owned and operated by Fat Smitty’s, LLC (Fat Smitty’s), on November 26, 2016. LaDonna Hall (LaDonna) and her mother, Pamela Hall (Pamela) were also at the bar. During the evening, Pamela had caused some problems, but was allowed to continue indulging. Just before closing, Pamela started yelling and screaming while looking for her cell phone. Rachel Lynn Welker-Mate and Alex Clawson, two of the bartenders, escorted Pamela from the bar. Hall followed them out, hoping to calm down her mother, but the two got into a physical fight.
The bartenders and the Fells rushed out to break up the fight. Audra Fell and LaDonna began fighting, and Welker-Mate forced Audra Fell back into the bar. LaDonna then stabbed Steven Fell multiple times in the abdomen. He entered the bar bleeding and was taken to a hospital for treatment.
Hall was arrested.
Over sixteen months, 491 days later, Fat Smitty’s was served with a complaint alleging that “Fat Smitty’s owed the Fells a duty to:
“warn them, as invitees, of any hidden or concealed dangers in the First Street Saloon”; that Fat Smitty’s “knew or should have known that LaDonna Hall was a dangerous individual.” And breached its duty “by failing to warn [the Fells] of the danger that Hall posed,”
keep the First Street Saloon in a reasonably safe condition”; “failing to properly train its agents or employees,”
protect them from reasonably foreseeable injury at the hands of other patrons”; “failing to cease service to LaDonna Hall and/or remove her from [the First Street Saloon’s] premises”
The Fells argued that this negligence, directly and proximately “caused the Fells to sustain personal injuries.”
Fat Smitty’s moved for summary judgment, claiming:
“the Fells failed to provide timely notice to Fat Smitty’s of their intent to pursue a cause of action against them as required by Idaho’s Dram Shop Act”
“the Fells cannot prove that Fat Smitty’s owed them a duty, nor can they prove that Fat Smitty’s was a proximate cause of their injuries”
“Steven Fell engaged in witness tampering by messaging Welker-Mate, one of the First Street Saloon bartenders, on Facebook and asking that she provide favorable testimony at trial in exchange for money”
The Fells opposed summary judgement argueing
Their claim is a common law cause of action, not a dram shop cause of action
As a tavern keeper, Fat Smitty’s “had a duty to exercise reasonable care to protect its patrons from reasonably foreseeable injury at the hands of other patrons”
Steven Fell’s message to Welker-Mate was not done in bad faith; Steven Fell merely wanted “the witnesses [to] provide consistent, honest testimony” at trial.
The district court entered a ruling on April 12, 2019, that Hall was undisputedly intoxicated at the time of the stabbing, thereby the dram shop act applies, “including its 180-day notice provision, with which the Fells failed to comply”. The case was dismissed and the Fells appealed.
Over the years, the Supreme Court of the State of Idaho had tried a number of cases, where they had ruled that the consumption of alcohol, rather than the selling was the proximate cause of injuries or damage inflicted by intoxicated persons. In 1986, the legislature enacted “the Idaho Dram Shop Act, which outlines the civil liability imposed on a furnisher of alcoholic beverages for a plaintiff’s injuries caused by an intoxicated person”. The supreme court said that the law must be considered in whole, rather than selected parts. “The language of section 23-808, when read as a whole, is capable of only one reasonable interpretation: section 23-808 applies in all cases where the facts demonstrate that the furnishing of alcoholic beverages by a dram shop or social host may have been a proximate cause of a plaintiff’s injuries“.
In this case, the Fells and witnesses on behalf of the Fells testified to the level of intoxication of LaDonna with statements like “LaDonna Hall and her mother arrived at the bar and drank heavily, both becoming highly intoxicated”, “knew that LaDonna Hall was extremely intoxicated, to [the] point where she was a danger to the other patrons”, “LaDonna Hall had been drinking heavily throughout the evening”, “Fat Smitty’s did not train its agents or employees on . . . how to refuse service to a customer” and “Fat Smitty’s breached its duty to the Fells by failing to cease service to LaDonna Hall and/or remove her from Bar premises”.
Subsection 2 of the Dram Shop Act specifies that it applies in this case.
(2) No claim or cause of action may be brought by or on behalf of any person who has suffered injury, death or other damage caused by an intoxicated person against any person who sold or otherwise furnished alcoholic beverages to the intoxicated person, except as provided in subsection (3) of this section.
Subsection 3 and 3(b) indicate that a claim against the server may be appropriate.
(3) A person who has suffered injury, death or any other damage caused by an intoxicated person, may bring a claim or cause of action against any person who sold or otherwise furnished alcoholic beverages to the intoxicated person, only if:
(b) The intoxicated person was obviously intoxicated at the time the alcoholic beverages were sold or furnished, and the person who sold or furnished the alcoholic beverages knew or ought reasonably to have known that the intoxicated person was obviously intoxicated.
The Idaho supreme court said “alcohol and the service of alcohol was undeniably a factor in this case, thereby squarely implicating the Dram Shop Act”.
Subsection 5 of the Dram Shop Act specifically limits the time in which notification of an action must be made.
(5) No claim or cause of action may be brought under this section against a person who sold or otherwise furnished alcoholic beverages to an intoxicated person unless the person bringing the claim or cause of action notified the person who sold or otherwise furnished alcoholic beverages to the intoxicated person within one hundred eighty (180) days from the date the claim or cause of action arose by certified mail that the claim or cause of action would be brought.
The Supreme Court of the State of Idaho summarized as follows:
. . . Drawing all reasonable inferences in the Fells’ favor, there is simply no genuine issue of material fact whether intoxication played a role—likely a large one—in this tragic incident. Therefore, the district court correctly concluded that Fat Smitty’s was entitled to summary judgment as a matter of law.
Accordingly, we affirm the district court’s ruling that the Dram Shop Act applied in this case, thereby requiring the Fells to notify Fat Smitty’s of their intent to file a claim against them within 180 days of the incident. Because they failed to do so, summary judgment was appropriate.
The judgement ended with a footnote:
“Our decision today illuminates at least one troubling weakness in Idaho’s Dram Shop Act: the statutory language may unintentionally provide a perverse incentive for dram shops and social hosts to provide alcohol to individuals known to be dangerous in order to access the procedural benefits conferred by the Act.”
(STEVEN CHRISTIAN FELL and AUDRA FELL, v, FAT SMITTY'S L.L.C. (The Supreme Court of the State of Idaho, Docket No. 46993))
Decision: July 2020
Published: July 2020
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