Staying Off the Witness StandAugust 28, 2012 By: Robert Plotkin
I recently sat in on the deposition of a bar owner embroiled in a liquor liability civil suit. At issue was whether the defendant’s bartender had acted negligently when serving alcohol to the defendant who subsequently caused an accident that resulted in injuries to innocent third parties.
The plaintiff’s attorney grilled the restaurateur about his drink pricing, portioning and happy hour promotions. When the lawyer finished his interrogation into the service of alcohol in the crowded, under-staffed bar, the owner admitted that the bartender would have no way of knowing whether the plaintiff had been over-served alcohol, an admission that completely undermined the bar’s defensive strategy.
Liquor liability litigation is a thriving industry. As society continues tightening restrictions on the consumption of alcohol, on-premise operators are well advised to reevaluate their policies from a risk/reward perspective. Many long accepted pouring practices are now viewed not only as irresponsible but fraught with liability.
For example, the time has come to prohibit the service of “doubles.” Where is it written that a bar is compelled to honor a patron’s request for a double? Any way you look at it, they’re more than twice as potent as a regularly portioned drink. Compounding the problem is that people typically consume doubles at the same rate as regularly prepared drinks, which increases the rate at which the alcohol is absorbed into the person’s bloodstream.
When a guest does order a double, the bartender need only respond that house policy now prohibits serving doubles and then inquire if the person would care for a regularly prepared drink.
Should you decide to continue the practice, be wary of people who are looking to consume that much alcohol that quickly. An alarm should go off in the back of your head when someone orders a double as the likelihood of experiencing a problem with the person in question hovers in the probable range.
Equally outdated and untenable is the practice of allowing bartenders and servers a post-shift drink or allowing employees to drink at the bar when they’re off-duty. Both “old school” holdovers are loaded with liability.
First, removing this “perk” can prevent your bartenders from over-pouring, undercharging or simply giving away free drinks to co-workers—all of which are temptations when serving friends and coworkers. Prohibiting post-shift drinks is also a positive move, as it reduces the possibility of employees becoming intoxicated at work or leaving your business location under the influence.
Serving pitchers of draft beer is also a practice laden with liability. The concern is that a bartender or server is typically not in a position to intervene and prevent one person in a group from consuming most or all of the beer in the pitcher. The lack of any viable portioning controls creates a sizeable window of vulnerability.
Another problematic area involves how bartenders portion spirits at your bar. In the United States, free pouring remains the most popular measuring technique with owners and bartenders alike. It involves dispensing liquor without the use of jiggers, relying rather on a bartender’s internal count or cadence to estimate the rate of flow. Free pouring is fast, stylish, and requires minimal training for bartenders to attain proficiency.
From a liability standpoint though, it’s the riskiest, most costly measuring technique. The free-wielding method makes it far too easy for bartenders to over-portion liquor into drinks, a costly practice that places the public at risk, and greatly increases your exposure to alcohol-related liability.
For example, adding an extra ¼ ounce of spirits to a cocktail whose recipe calls for an ounce results in the drink’s cost percentage jumping 20%. After the fifth time it happens, you’ve essentially lost a drink’s worth of liquor, as well as the sales proceeds it would have generated. Potentially more damaging is that each drink now contains 20% more alcohol.
Under-pouring is an equally vexing problem. By shorting the liquor portion in four drinks by a scant ¼ ounce, the bartender will have created a surplus ounce of liquor, which can be then be sold off in a drink and the sales proceeds pocketed. The scheme doesn’t adversely impact liquor pour cost, so the theft will invariably go undetected. The true victims are your guests and the bar’s good name.
Finally, indiscriminately doling out free drinks suggests an operation run amuck. Excessive “comping” is an expensive practice that reduces sales, raises pour cost and increases the operation’s exposure to liquor liability. Make sure your policies clearly delineate your position on free drinks. On the other hand, complimentary drinks are a time-honored means of acknowledging regulars and contributing to the joy of special occasions, such as guests’ birthdays and anniversaries. Doing away with this tradition would be as wrong as mandating the use of Dixie cups.
Watching the bar owner squirm and wither under the intense questioning of the plaintiff’s attorney was a sobering, unpleasant experience. Trust me, you don’t want to endure that kind of scrutiny. Hopefully all of your alcohol-related policies are sound enough to be read in open court without causing jurors to roll their eyes.