The Kentucky Court of Appeals has assured us that Kentucky's Dram Shop Act did survive its decision in Taylor v. King, 345 SW3d 237 (Ky App 2010). The Court, in an opinion written by Chief Judge Glenn Acree, explained in Carruthers v Edwards, No 2011-CA-1612 (August 10, 2012), as follows:
In Taylor, this Court declared unconstitutional KRS 413.241's provision governing proximate cause "to the extent it would prevent a fact-finder from determining whether an injury was a foreseeable consequence of a dram shop's improper service of alcohol. In do doing, we explained "the legislative finding regarding proximate causation in KRS 413.241(1) intrudes upon the fact-finding role of the courts." Accordingly, in light of Taylor, KRS 413.241's presumption or imputation of proximate cause no longer exists.
The relevant sections of KRS 413.241 "imposing liability upon a dram shop or its creation of a priority of liability between the dram shop and the intoxicated tortfeasor," however, remain unchanged. KRS 413.241 still imposes a duty upon a dram shop and its employees, before selling or serving alcohol to a person, to use their powers of observation to perceive readily visible warning signs that a person is intoxicated, and to refrain from serving or selling alcohol to that patron. KRS 413.241(2). If the dram shop or its employees fail to perceive, or simply ignore, those warning signs, the dram shop may be held liable pursuant to KRS 413.241 provided the dram shop's negligent conduct is also the proximate cause of the plaintiff's injuries.
In sum, while Taylor struck down as unconstitutional the presumption of proximate cause codified in KRS 413.241(1), it neither addressed nor held the remainder of KRS 413.241 unconstitutional. Dram shop liability -- under specifically delineated circumstances -- still exists in this Commonwealth, as does the statutory limitation on liability.
The opinion by Chief Judge Acree was joined by Judges Denise Clayton and Janet Stumbo.
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