If you do personal injury work, it is a given that at some point you will get a call from someone who got the tar beat out of him after a confrontation with a belligerent, drunken patron at some bar. What theories of recovery do you pursue? Sure, you have the Illinois Dramshop Act, 235 ILCS 5/6-21, as one avenue of recovery. But Dramshop cases have special challenges. First you have to prove the attacker[also know as the “allegedly intoxicated person” or AIP] was drunk AND importantly, got drunk at the bar where the incident occurred. Don’t count on the bartenders or wait staff to give you much help. Those folks might be pouring drinks as a second job trying to pay the bills. They need to money and won’t be in any hurry to testify the AIP was drunk. And the bar owner will never be of assistance. [I once had a bar owner testify at trial that in 30 years she had NEVER seen an intoxicated person in her tavern. Two jurors actually rolled their eyes when they heard that portion of her testimony]. And finally, the Illinois Dramshop Act has caps on damages. Currently, the recovery is limited to only $67,356.23 to persons injured or killed as a result of a violation of the Act.
Any more appealing options? Yes – simple negligence. A dramshop theory is based on the bar providing liquor to the intoxicated patron. But a bar can be liable under general negligence principles for failing to take action after a patron gets drunk. If bar personnel are on notice the patron is verbally harassing other patrons they may have a duty to show intervene. Similarly if bar personnel are aware a drunken patron is physically harassing another patron, they may have a duty to protect that patron. If the situation continues to deteriorate the bar may have an obligation to call the police or take other affirmative steps to protect the patron. The bar’s failure to act, once personnel are on notice as to the inappropriate behavior of the drunk, may constitute negligence. It goes without saying that the facts leading up the injury will be key.
There may of course be culpability for failure to provide adequate security/bouncer personnel. That discussion merits its own post.
I couldn’t find an appropriate picture of a bar fight to include, so instead went with a photo of Sam Elliott playing Wade Garrett, the legendary but very Zen bouncer in the 1989 film Roadhouse.
The movie is only so-so. But Sam Elliott is way cool, just like he is in every movie.