Summary:

In this episode of The Millennial Lawyer Podcast, Attorney Mark Shirian discusses the legal consequences of injuries that occur in bars, nightclubs, and lounges. From bouncer violence to overserving alcohol and negligent security, Mark explains the key laws that protect victims in New York and when an establishment can be held responsible for injuries caused by intoxicated patrons. He also shares insights into dram shop laws, evidence challenges, and how insurance companies often try to shift blame in these cases.

Key Timestamps:

00:00 – Introduction: When a night out turns into a legal issue

01:00 – Common injury cases from bars and nightclubs

02:30 – Understanding New York’s dram shop laws

04:00 – Overserving alcohol and serving minors

05:00 – Bar defenses and proving intoxication

06:00 – What negligent security means and how it applies

07:30 – How much force bouncers can legally use

09:00 – Are bars responsible once a drunk patron is removed?

10:30 – Gathering evidence: witness statements and surveillance

12:00 – How insurance companies handle bar injury claims

13:30 – When victims lose protection under dram shop law

15:00 – Suing individuals vs. insured establishments

16:30 – Final advice: understanding your rights after a bar injury

Transcript:

Hello and welcome back to the Millennial Lawyer Podcast with Mark Shirian. Mark is a New York litigation attorney and founder of Mark David Shirian PC known for securing seven figure results in personal injury, employment, and complex civil cases. My name is Kevin Rosenquist and today we’re talking about what happens when a night out turns into a legal nightmare. From bouncer violence to bar fights. Mark, welcome back. 

Great to be back. 

So, uh, yeah, I’ve been to my fair city clubs late at night, and seen some crazy stuff. There’s no doubt about it. What kind of injury cases tend to come out of bars, nightclubs, and lounges out there in New York? 

Unfortunately, I’ve gotten a good amount of these cases in the past, and I’ll tell you, right off the bat, when you’re dealing with bars and clubs, one thing that we see a lot is excessive force by bouncers. You know, I understand that that’s their job to remove patrons from danger or if that actual patron is a problem to remove that actual patron. But I do see and and unfortunately you see this across the country, bouncers or security staff using excessive force. So that’s one. Number two, one thing we see a lot is when bars and clubs are, um, there’s an allegation against them that they overserved the patron and that patron causes injuries to another patron of the bar or gets in a car unfortunately and injures or god forbid kills somebody on the road. So, those are the two big things that we see. Whether it’s an actual bouncer using excessive force, a negligent security claim where they’re not securing the property well enough, and then third, over intoxicating patrons that then cause to be a danger to our clients, whether they’re a patron of that actual property or elsewhere. So, those are the three big categories. Negligent security, excessive force, and what we call a dram shop claim against the bar for intoxicated patrons. 

So, outside of that one, obviously, if a bar is found to be over serving people, that’s on the bar. But, you know, for other injuries, for other situations, how responsible is the bar or club or club in these scenarios? 

Okay. Well, in other words, you’re asking about the dram shop law in New York. Um, so it the way I know the law, it really is it can go two ways. Um, so number one, obviously you are in the state of New York, you have to be 21 years or older to consume alcohol. So, if the allegation is that a bar served alcohol to an underage uh patron, that in and of itself, whether they’re intoxicated or not, okay, you have to just show that they were impaired by the alcohol, but that’s a violation in and of itself, serving alcohol to a minor. So the law is, in other words if you serve alcohol to a minor and that minor goes and injures somebody, the bar could be on the hook just for the fact that they served alcohol to a minor. So that’s one. Then what we see mostly is when a bar overs serves a patron and that patron goes and causes injuries. So the law is that they have to ensure that they are not overserving their patrons. And there are different ways you can tell that the patron that you’re serving shouldn’t really be served any more alcohol. Um and I can give you those examples. You know, you see them stumbling, you see them slurring, you hear them slurring their speech. Uh surveillance video really comes into play when we’re dealing with these cases. But the bars have a responsibility to make sure that they are not overserving their patrons with alcohol. So if a fight happens, you know, a lot of times it is someone obviously, I’d say nine times out of 10 is probably over served in some capacity, but not always. 

So do the bars try to say, “Hey, this person wasn’t intoxicated.” Like what is their defense as a general rule? 

That’s a great question and I’ve dealt with this head-on. Uh, yes. That’s the first thing they’re going to say. That patron, good luck proving that this patron was actually intoxicated or that we served them alcohol. Maybe they were drunk before and they came in and we didn’t provide them with the alcohol and it’s not our fault. So, it isn’t usually for a bar to throw out a case, they actually have to prove that they did not serve that patron alcohol. So, it works kind of both ways. Mhm. Um, but yes, they will make that argument that they were drunk from before or they weren’t drunk and they mysteriously don’t have any receipts or tabs of that particular patron. Um, I will say when you’re dealing with a case like this, it is important to at least get the patron who caused the injury, somehow identify them because that would make it a lot easier to prove that they were served alcohol by that. 

I think you mentioned a term called negligent security before. What are the rules around that and how do they apply to nightlife venues? 

Yeah. So obviously venues need, they have a responsibility to make sure that their establishment is safeguarded and is safe. The way I deal with negligent security claims is you look at the ratio. Ratio meaning how many patrons are in the bar and how many guards do they have? Is it just one outside? Is it one inside? There usually should be one outside, one inside. Right. So if there is a, let’s say like you said before a fight breaks out, how much notice did they have before that fight broke out and how long did that fight go for? Because if the fight went for 10 minutes and nobody came in to stop that fight, that could be an issue for them. But if it’s a two-second fight or a 5-second fight and it wasn’t within the purview of the actual security guard, then that’s a tough negligent security claim. But if it went on for a long time or if things were escalating to a point where they had an opportunity to prevent it from breaking out, that could be a very good negligent security claim. So that’s how those usually go. 

There we mentioned the bouncers being a little excessively physical and removing someone. I’ve personally have seen it before where I’m like boy that seemed a little harsh and you know or a little unnecessary. How much are they allowed to be physical when they remove patrons? Is there a law about what crosses the legal line? Is it kind of a gray area there? How does that generally unfold? 

I would say it’s a gray area. Um I would also say that it really depends on a lot of different factors. How big is the bouncer? How big is the patron that’s being removed? How big of a danger is that patron? Yeah. That’s where deposition testimony really comes into play. So, you know, based on needs to be relative to the danger that’s being posed and what the circumstances are. Um, so it is all relative. Obviously, they do have the right to remove patrons as they see fit if that patron does pose a danger, but it needs to be relative to what the danger is. It can’t be excessive where you’re injuring people. Yeah, there’s got to be a line there. 

Yeah, for sure. Now, is there a responsibility to the bar or the bouncer as far as like, you know, what happens after that person is removed from the property? Because, you know, sometimes people are pretty drunk and pretty intoxicated and really messed up and you throw them out and just leave them to their own devices. If something were to happen to that person, can the bouncer or the club be liable at all? 

That’s a really good question. Um, I believe I looked at the law on this because I had a very similar case. If the bars were responsible to call the ambulance for every single drunk patron,  they’d be out of business, right? So, they have an obligation to their patrons, right, and to their staff. Um, but I would say common sense also comes into play as well. Um, so if someone is requiring immediate medical attention and it’s an emergency, yes, you should call the ambulance. But are they responsible to make sure that everybody gets home safely? Uh, not necessarily, right? That’s pretty tough to do. Yeah. No. Uh, that would be a pretty big burden on them to make sure that everyone is getting to their homes safely. Yeah. after a night out of drinking. So, it is all relative. I know from the research that I’ve done previously on a similar case, it’s a very high standard and they don’t have much of an obligation to make sure that once a patron is removed that they get home safely and they’re not injuring themselves or anybody else. So, right, I looked at it. It is a very very tough burden. 

Yeah, I would assume so. When it comes to evidence in these cases, I mean, obviously surveillance video is the best. You know, a lot of clubs have it. Um, that’s obviously really useful, but like I. I think of witness statements and witness statements are a little weird when you’re late at night in a bar and presumably people have been hanging out and drinking and having fun and all that. I mean, do you run into situations where it’s pretty easy to poke holes in a witness statement because of the fact that they were also intoxicated? 

I’m thinking about this one particular case and yes because they’re usually, let’s say you’re out with friends and you had some drinks, you caused injury to somebody, your friends are not going to come back and say yeah you know Joey was drunk, you had a lot to drink and he caused these issues your, you know, your friends are not going to come in and say that and you don’t know the other patrons of the bar. So, it’s very difficult. But what what we usually do, I think getting security guards in for depositions, getting the staff members in there that were there that evening is a good place to start to see if there’s any inconsistencies of what the protocols are of the bar and whether they actually stuck to those protocols on that particular evening and whether they recall ever serving that patron or not. And that’s where you can build a case if you find any sort of inconsistencies with respect to the employees that were there that evening. You may not get much from the actual patrons, but the employees and the staff is a very good place to start. That’s where I usually start. 

Obviously, we’ve talked about insurance companies that don’t typically like to just throw money around and pay out at the drop of a hat. So, how do they handle these kinds of situations? Do you see them try to pin the blame on the victims? Do they try to poke holes in it because of the alcohol being involved? Like, what are some of their tactics? 

Totally. Yeah. In my first ever dram shop case, they tried to make it seem that my client was the aggressor, you know. And I believe in that case, the defendant who was intoxicated plead guilty to a crime. So we were able to show that hey, you know what, the patron of your club and plead guilty to assaulting my client. So, how could my client be the aggressor if this patron pleaded guilty to an assault? So, yes, they will try to cast blame on your client. I will say though with the dram shop law there is a caveat that if it is proven that you yourself were intoxicated at that time, you do not get the benefit of the law. So it is and that is what I will say that does make sense. I don’t think that’s unfair. Um, if you were intoxicated yourself and um, you know, you got injured by another intoxicated patron, it kind of cancels each other out. I guess that’s just how they think of what the law is, but I guess they don’t want to reward patrons for also being intoxicated because that could lead to your own injuries. So that’s a big caveat when it comes to these types of claims against the bar that you don’t get the benefit of the dram shop act if you yourself are intoxicated. 

But you can still, I would assume, go after the person, right? Because the person who assaulted you because I mean I’m pretty when I’ve had my I’ve been intoxicated before and I’m a happy guy. You know some people are mean and like you know if the mean guy punches the happy guy, you still have a case, right? 

You still have a case, but uh let me let you in on a little secret. Attorneys are not going to for the most part, suing an individual is difficult because suing it most individuals won’t be able to cover a settlement or any sort of verdict if you’re able to prove those sort of civil allegations against an assailant. And yeah, bankruptcy is always an option, but it’s just that most injury attorneys would rather go after an establishment where there’s insurance and that’s to the benefit of everyone because you can ensure that you will eventually get paid what you’re owed on a certain claim. Now, you could always go after the property owner, property owner owns the building, whether there’s equity. We’ve also had a very similar situation. But again, in that case, you know, property owner filed for bankruptcy, there wasn’t insurance. I mean, it becomes messy. My point is when you’re dealing with an entity that’s not insured or an individual that doesn’t have a lot of assets, it is very difficult to collect on that sort of claim. Which is why, yes, you could sue the individual, but the chances of you actually collecting what you’re owed on that claim is uh it’s not a good situation. Very low chances. 

So, what I’m hearing is if I’m going to get punched at a bar, make sure it’s by a rich guy. Make sure it’s by a rich guy. And make sure that you’re able to bring the bar or club on the hook. 

Yeah, that’s what you want to make sure. 

All right. Well, thanks for that, Mark. And, you know, if you’ve been hurt at a bar or a nightclub, you may have more legal options than you think. Contact Mark at shirianpc.com to explore your rights. And don’t forget to subscribe to our channel, leave us a review. We very much appreciate it. Mark, it’s always great chatting with you. 

Thanks so much. 

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