The Connecticut Appellate Court Defines "Intoxicated" for Dram Shop Liability
By Connecticut Attorney, Richard P. Hastings
When intoxicated in the colloquial sense is not intoxicated for liability purposes.
This week the Connecticut Appellate Court decided the case of O'Dell v. Kozee, which involved a wrongful death claim commenced under Connecticut's Dram Shop Act. In this case, the defendant left a restaurant where he was drinking while playing in a billiards league. He left the restaurant, while he was admittedly drunk, and got into an accident resulting in the death of the Plaintiff's decedent.
Under Connecticut General Statute § 30-102, to be successful in an action pursuant to The Dram Shop Statute a plaintiff must prove that there was:
- a sale of intoxicating liquor ;
- to an intoxicated person;
- who, as consequence of such intoxication, causes injury to the person or property of another.
In this appeal taken by the Defendant, the Plaintiff argued that he was not required to prove "visible intoxication" on the part of the Defendant but merely that intoxicating liquor was sold to an "intoxicated" person not a "visibly intoxicated" person. The Court held that the Plaintiff was correct in his assertion that section 30-102 does not contain the phrase "visible intoxication." However, our Supreme Court has defined the word "intoxication" in Sanders v. Officers Club of Connecticut, Inc. (1985) by stating that: "To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be `dead-drunk.' It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so."
In Sanders, the Court did not use the exact term "visible intoxication" but its definition clearly establishes that a person must exhibit some type of physical symptomology in such a way that an observer could reasonably perceive that the individual was under the influence of alcohol to some noticeable extent.
Although the Defendant admitted he was drunk and various other evidence tended to prove he was intoxicated, such as a toxicology report showing a .187 Blood Alcohol Content and the testimony of a witness, the Court found that the Defendant was intoxicated in the colloquial sense of the term but such evidence was not sufficient to prove that he was intoxicated as specifically defined in Sanders for purposes of the Dram Shop statute.
Accordingly, the Appellate Court held that no evidence was presented to show that the Defendant was visibly intoxicated which was fatal to the Plaintiffs claim. In other words, the Court found that the Defendant had to have been shown to exhibit proof of visible or perceivable intoxication for the Plaintiff to prevail.
It will be interesting to see what happens with this case after it is heard and decided by the Connecticut Supreme Court.