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"
That can be very tough case to prove, first you have to find out which establishment the drunk driver causing the wreck came from. Obviously, he might not be very forthcoming about this information.
The more difficult part to prove is whether or not the driver was "VISIBLY INTOXICATED" Can you find witnesses that remember seeing the intoxicated driver at the bar and remember or be willing to testify that they were visibly intoxicated? Probably not, most of these cases are proven through he police officer's observations and hopefully a blood or breath test. Then hire a toxicologist to testify what the driver's physical appearance would have likely been based on the BAC test by the police or their observations. In many cases the intoxicated driver who caused the accident may have little or no insurance, and certainly not enough to compensate an injured driver or passenger who is severely injured. Thus the possibility of pursuing the bar or restaurant is something that must be investigated in most drinking and driving car accident injury cases.
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.