1) What should I do if hit by an intoxicated driver?

If you were hit by a drunk driver, stay calm, get safe then call 911. Help the injured. Clearly describe your location and the circumstances of the loss. Do not confront the intoxicated driver but do exchange insurance information. Document the scene with photographs and video if possible.

2) Will the bad driver’s DUII conviction increase the value of my injury claim?

Possibly. Intoxicated driving is reckless conduct which could justify punitive damages. Punitive damages are damages designed to punish the drunk driver. Oregon law requires a judge’s permission to add a claim for punitive damages (in addition to claims for pain & suffering and economic loss available in all injury claims).

Most insurance policies do not cover punitive damages claims. Some insurers decide to pay punitive awards anyway to protect against suit from the bad driver for failure to take reasonable steps to settle within policy limits. Further complicating matters, in Oregon 70% of punitive damages awards go to the State of Oregon. See ORS 3.735.

TIP: The district attorney for the governmental entity where the crash occurred may also choose to pursue criminal charges against the intoxicated driver. Cooperate with the district attorney as a conviction will usually help your civil case. The District Attorney typically will not release the police report until prosecution is complete.

TIP: A person who drives intoxicated is more likely to engage other irresponsible behavior, such as driving uninsured. So, if you are hurt by a drunk driver, request a copy of your own insurance policy right away so you will better know your rights should you need to make an uninsured claim under your own auto policy.

3) Might a tavern owner be held responsible for injuries caused by an intoxicated patron?

Yes but Oregon law requires 180 days advance written notice to the bar of the injury claim. In addition, as of 2016 special proof is required to prevail in a case against the bar. See, Deckard v. Bunch 358 Or 754 (2016); ORS 471.565 37. In Deckard the Oregon Supreme Court found that for a bar responsible for injuries caused by an intoxicated patron, the injured person must prove:

1. The bar customer was visibly drunk; and,
2. It was “reasonably foreseeable” that the customer would drive away. Id.

Unlike Oregon Washington State does not re quire proof that bar knew its’ patron was intoxicated for the bar to be liable. See, Fault v. Albertson 166 Wn 653 (2009). In Washington it’s illegal to sell alcohol to “any person apparently under the influence…” RCW 66.44.200. Laws holding drinking establishments responsible for harm caused by drunken patrons are known as “dram shop” laws. A “dram” is the old English term for a shot of alcohol. Thus, a “dram shop” is an establishment selling alcohol.

TIP: Dram shop claims against bars and taverns require prompt expert investigation before surveillance video is destroyed and witnesses disappear. Successful dram shop resolution often requires early, hands on investigation by a savvy private investigator.