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AMI1902Dramshop Liability—Sale to an Intoxicated Person

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1902
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 19. Dram Shop
AMI 1902 Dramshop Liability—Sale to an Intoxicated Person
Arkansas law prohibits an alcoholic beverage retailer from selling alcoholic beverages to a person who the retailer knows or reasonably should know is clearly intoxicated.
(Plaintiff) alleges and has the burden of proving the following:
First, that (Defendant) sold alcoholic beverages to (Intoxicated Person); and
Second, that (Defendant) knew or reasonably should have known that (Intoxicated Person) was so obviously intoxicated at the time of the sale that [he][she] presented a clear danger to others; and
Third, that such sale was a proximate cause of (Plaintiff's) damages.
NOTE ON USE
Do not use AMI 606 with this instruction.
COMMENT
This instruction is based on Ark. Code Ann. § 16-126-104.
To establish a prima facia case under § 16-126-104, the plaintiff must allege that the intoxicated person caused the injury. See Sluder v. Steak and Ale of Little Rock, Inc., 361 Ark. 267, 275, 206 S.W.3d 213, 217 (2005). The statute adds a specific requirement that proof of proximate cause include a causal link between the intoxicated person and the injured third party. Id., 206 S.W.3d at 218; see also AMI 501 (definition of proximate cause).
Ark. Code Ann. § 16-126-104 provides the following affirmative defense:
It shall be an affirmative defense to civil liability under this section that an alcoholic beverage retailer had a reasonable belief that the person was not clearly intoxicated at the time of such sale or that the person would not be operating a motor vehicle while in the impaired state.
The Committee has declined to provide a separate instruction for the affirmative defense for two reasons. First, it is unclear whether there is a difference between “reasonably should have known” in the claim and “reasonable belief” in the defense; thus, the affirmative defense might inadvertently shift the initial burden of proving the elements of the claim from the plaintiff to the defendant. Second, because the affirmative defense uses the disjunctive ‘or,’ the verbatim instruction of the jury from the statute might inadvertently provide a defense in cases not involving the operation of a motor vehicle.
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