Risk Assessment: Accountability at the Bar
A respected liquor liability expert and consultant, M. Randy Durnal has assisted attorneys and insurance companies and testified for both plaintiffs and defendants. Specializing in liquor liability cases that involve over serving, training inadequacy, service to minors and acts of violence, Mr. Durnal has over 20 years of experience and expertise in this area. He has excellent advice for operators and management regarding risk assessment.
An operator or manager can assess the risk of their venue(s) either with the help of their employees or on their own. Randy suggests including employees in order to get the best possible feedback. He has developed a questionnaire with around 40 questions on it that are designed to ferret out any issues and provide accurate information. Different operators, however, may want to develop their own questions that are specific to their venue. When using a form, it’s best to allow the employees to remain anonymous to encourage absolute honesty. Also, operators should think about offering employees an incentive for their participation.
Consider simple yes or no statements for the form: “I like the owner,” and “I like the manager,” may seem irrelevant but nothing could be further from the truth. If these statements garner negative responses, that represents a huge liability issue that will come back to hurt you. Other valuable information-finding questions for the form revolve around hypothetical but possible scenarios regarding over service and liability. Staff members should be instructed to answer whether not they feel they or the venue would be liable in each scenario. If they answer that they don’t feel there’s any liability in a given situation, it’s an indication that they would engage in that behavior, putting the venue in jeopardy. For the best results, instruct employees to skip any questions that don’t apply to them. Randy recommends performing this type of risk assessment every 3, 4 or 6 months.
In order to further assess liquor liability risk, operators can use secret shoppers. Background checks, particularly bouncers (to avoid on-premise violence as much as possible), should be commonplace for all new hires, as should drug tests. Speaking of drug tests, management should consider random drug tests for existing employees. Other factors that should be considered when assessing risk are the square footage of the venue, the total amount of points of sale, total number of employees on duty at a time and the overall number of patrons on-site at a time. A factor that many operators may be overlooking is the transportation methods available both to and from a particular venue: Do patrons walk? Drive their own cars? Come by cab, Lyft or Uber? Are they taking the bus, subways or trains?
Risk assessment isn’t just about identifying problems, fully realized and potential. Management and ownership is responsible for minimizing liability whenever possible. The verification that new policies and practices are being enacted to lower potential risk is a key to successful risk management. However, it needs to be understood that the more policies written and enacted, the more policies that have to be enforced and that can be attacked by opposing counsel during a liquor liability case.
Operators should certainly know the liquor liability laws and case law of the states in which their venue is located; the biggest risk factor for every operation is each state’s laws. Florida, for example, says that you have to be a habitual drunk and the bar has to have knowledge of that habitual behavior before they can be found liable in a liquor liability case while New Mexico law states that if a person is a 0.15, the venue is liable for serving an intoxicated patron. Finally, it’s important to know that some issues cannot be changed in order to lower risk. An example of such an issue is a venue that experiences a high level of guest traffic. After all, who wants to be less busy?