In O’Dell Administrator v. Kozee, et al, 307 Conn. 107, released as a slip opinion, September 28, 2012, the Connecticut Supreme Court undertook an extensive analysis of the legislative and jurisprudential history of Connecticut’s Dram Shop Act, C.G.S. § 30-102, addressing the specific issue of whether Section 30-102 requires a plaintiff to prove that a patron was “visibly or otherwise perceivably intoxicated” when sold alcoholic liquor in order to prevail on a claim against the purveyor for injuries sustained as a result of the patron’s intoxication. The Court concluded that the Dram Shop Act does require a plaintiff to meet the “visible or otherwise perceivably intoxicated” standard, rejecting the plaintiff’s argument that the statute is intended to impose strict liability for service to an intoxicated person, without any requirement that such intoxication be “visible” to the seller. The court also clarified that although Connecticut requires visible, objective evidence of intoxication, that evidence need not be “obvious.”

While the Court’s decision in O’Dell appears at first glance to be a victory for the defense bar and the hospitality industry, it should be noted that several aspects of the Court’s decision may increase, rather than decrease, the exposure of purveyors of alcohol to liability.

The key aspects of the Supreme Court’s decision may be generally summarized as follows:

1. Although the Dram Shop Act has often been referred to as a “strict liability” statute, the Act imposes strict liability only to the extent that it relieves a plaintiff from having to prove a direct causal connection between the specific sale and the subsequent injuries, not with respect to proof of intoxication at the time of the sale.

2. Although the statute specifically imposes liability upon the seller of alcoholic liquor to “an intoxicated person,” the statute does not define “intoxicated.” The term is subject to considerable interpretation and its meaning varies widely with regard to its legal interpretation, statutory references, and common understanding.

3. The Court distinguished between statutes using the phrase “under the influence” of alcohol (such as that which defines operation under the influence as operation with a blood alcohol level of .08 percent or higher, C.G.S. § 14-222) and the Dram Shop Act statute’s use of the phrase “intoxicated person.”

4. The Court analyzed the history of the Dram Shop Act and related criminal statutes, including C.G.S. § 30-86, penalizing the sale of alcohol to intoxicated persons, and case law which clearly places the burden of determining whether a person is intoxicated prior to selling or purveying alcohol upon the seller. In conducting that analysis, the Court concluded that “. . . [by] placing the burden of determining whether or not the purchaser of liquor is intoxicated upon the seller . . . the State must have assumed that there would be an objective basis from which the seller could make such a determination through reasonable efforts.” (Slip. Opinion, 212 WL 4478434, at *8.) The Court further noted that unlike C.G.S. §14-222, the Dram Shop Act does not designate a specific blood alcohol content as proof of a violation, which “inexorably leads to two conclusions: first, there is no standard of intoxication per se under Section 30-102; and second, the absence of such a standard is wholly consistent with a construction of Section 30-102 that requires proof of perceivable intoxication.” (Id. at *11).

5. The Court also made clear that a plaintiff need not establish that the purveyor of alcohol had actual knowledge of the visibly or perceivably intoxicated state of the allegedly intoxicated person. “It is also self-evident that the statute contains no element of proof of the purveyor’s knowledge or state of mind . . . undoubtedly, when there are perceivable signs of intoxication, in many but not all cases a plaintiff likely would be able to establish that the purveyor at the very least should have known of the patron’s condition. This result does not alter the fact that a plaintiff has no obligation to make such a showing under the Act.” (Id. at *12).

6. The Court further made clear that Connecticut law does not require a plaintiff to establish “obvious” intoxication; rather, the plaintiff need only establish that the AIP’s level of intoxication at the time of service be visible “or otherwise perceivable.”

7. While noting that “[T]here is good cause to question the fairness and incremental gains to public safety of a construction under which a purveyor will be liable for injuries caused by an intoxicated patron even if it has taken every reasonable precaution to avoid selling alcohol to patrons who appear to have reached the point of intoxication,” (*13), the Court also made clear that “the burden of proof articulated [by the courts] is not onerous. As we explain further in Part 2 of this opinion, any perceptible indicator of intoxication at the time of service, including excessive alcohol consumption itself can be sufficient to deem the purveyor on notice of its potential exposure to liability under the Act and thus permit recovery.” (*13, emphasis added) The Court went on to note that in the O’Dell case below, while there had been no testimony from anyone who observed the AIP visibly and obviously intoxicated, the AIP himself and one of his companions had testified to the consumption of more than 10 drinks, and the plaintiff’s toxicology expert had testified that the AIP would have had to consume a minimum of 15 drinks and as many as 20 during the course of the evening in order to reach the blood alcohol content which he was found to have at the time of the subject accident. The Court stated that “in the absence of evidence that [the AIP’s] plan at the outset of the evening was to drink to the point of intoxication, a jury reasonably could find that imbibing to such excess is a visible sign of impaired judgment due to alcohol consumption, one example of competent evidence of intoxication . . . .” The O’Dell court quoted with approval from a decision of the Minnesota Supreme Court, MJOS v. Howard Lake, 287 Min. 427, at 432-35 (1970):

“Although a person is not ‘obviously intoxicated,’ the fact that he is ‘intoxicated’ would be discoverable by reasonably active observation of his appearance, breath, speech, and actions . . . . This may require the supplier of liquor to engage the prospective purchaser in conversation, to note specifically the details of the purchaser’s physical appearance, to observe the purchaser’s conduct during the course of his drinking at the supplier’s establishment, or to scrutinize the actions of the prospective customer in other ways by which the supplier may detect intoxication which is observable even though not obvious.”

The Connecticut Supreme Court noted that “this description of intoxication is consistent with the view expressed by this Court in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341 at 349-50.” (Sanders, a 1985 decision, has long been regarded as the leading Connecticut decision addressing the application of the Dram Shop Act.)

8. The Court remanded the case for a new trial, holding that because the trial court had instructed the parties and the jury that visible signs of intoxication were not required and that the defendant was not permitted to argue or introduce testimony to the contrary, the plaintiff was entitled to rely on the trial court’s ruling, and the Appellate court erred in remanding the case with direction to render judgment for the defendants rather than remanding it for a new trial, which would permit the plaintiff to introduce evidence to support visible or perceivable intoxication on the part of the AIP. The Connecticut Supreme Court explicitly held that “[O]n remand, the plaintiff need prove only that signs of [the AIP’s] intoxication could have been observed, not that it would have been obvious to anyone coming into contact with him.” (Emphasis added) The Court further noted that among the types of evidence which could be presented to the jury to support the plaintiff’s claims of visible or perceivable intoxication would be charge card receipts from the bar on the evening of the accident, and the AIP’s deposition testimony regarding additional cash he spent on drinks, the cost of drinks, and drinks others bought for him. (*14, Note 27).

In summary, while the O’Dell court has made clear that there is no per se standard or BAC level at which a purveyor may be held “strictly liable,” and that the plaintiff must present evidence from which a jury could determine that the AIP showed visible or perceivable signs of intoxication at the time of service, the plaintiff need not prove that such visible or perceivable signs were actually observed by the purveyor, and the evidence which the plaintiff may introduce to prove that such a visible or perceivable state of intoxication existed is quite broad. Indeed, while otherwise dissenting from the majority and arguing that a “strict” or “per se” liability interpretation based upon blood alcohol content is warranted, Justice Eveleigh, joined by Chief Justice Rogers, notably commented:

“Although I agree with the majority that evidence of imbibing to such excess is sufficient evidence to establish a prima facie case and get to the jury, if mere excess drinking at the purveyor’s establishment is sufficient under the majority’s reading of Section 30-102, it seems that the majority is not requiring visible signs of intoxication.”

From the defense perspective, the lowered but still somewhat amorphous standard announced by the majority does leave room for defense counsel to argue with regard to what constitutes visible or perceivable signs of “intoxication” versus being merely “under the influence” of alcohol, and provides room for counsel to appeal to the common sense of lay jurors as to what is reasonable under the circumstances. It appears likely that, going forward, the battle will be fought in the context of what jury instructions will be presented to jurors and what arguments will be permitted under the O’Dell standard.