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MO Dram Shop liability

"Dram Shop" cases are drunk driving injury cases pursued by the injured party, or their surviving family as a wrongful death claim, against the bar or restaurant that may have over served the intoxicated driver that caused the car accident.

Under Missouri Statute § 537.053 a Dram Shop case has three main elements to the cause of action:

1. The claim must be brought (1) "by or on behalf of any person who has suffered personal injury or death"

2. Against a "person licensed to sell intoxicating liquor by the drink for consumption on the premises . . ."

3. Clear and convincing evidence the seller "knowingly served intoxicating liquor to a visibly intoxicated person"

Typically, the more difficult part of Dram Shop cases to prove is whether or not the driver was "VISIBLY INTOXICATED." Whether a defendant is intoxicated may be proven by any witness who had a reasonable opportunity to observe him. State v. McCarty, 875 S.W.2d 622, 623 (Mo. App.1994); State v. Corum, 821 S.W.2d 890, 891 (Mo.App.1992). [I]ntoxication is a "`physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.'" [State v. Ruark, 720 S.W.2d 453 (Mo.App.1986) ] at 454 (quoting State v. Blumer, 546 S.W.2d 790, 792 (Mo.App. 1977)).
The "VISIBLY INTOXICATED" portion of the dram shop law has recently been discussed by the Missouri Court of Appeals, Western District, in Nokes v HSM Host USA LLC, WD Court App Opinion 9/13/2011. In the Nokes case, the trial court granted summary judgment in favor of the defendant because the Plaintiff did not have any direct evidence that the driver was "visibly intoxicated", meaning an eye witness or videotape. The Appellate Court overruled that requirement stating:
"Nokes's evidence regarding Chiarelli's level of intoxication, taken together with the drink receipts, the police report, and the expert testimony that such a level of intoxication would produce outward manifestations of intoxication was sufficient to demonstrate the existence of a genuine issue of material fact as to whether the Host defendants knowingly "served intoxicating liquor to a visibly intoxicated person." Section 537.053."

Thus, in Missouri visible intoxication can be proven by circumstantial and indirect evidence, eye witnesses not required