This summer I had the opportunity to spend time on Cape Cod in Massachusetts. If you’ve never been to the Cape, you are truly missing out. Home of the Kennedys, lobstah rolls and Christmas Tree Shops, the Cape attracts summer visitors of all ages and nationalities. Daytime activities include going to the beach and playing miniature golf. At night, however, social activities are pretty much limited to eating at a restaurant, hanging at a bar, or drinking at home. People on the Cape drink. A lot. The first clue is the sheer number and size of the liquor stores. The main retailer is a super store that goes by the name of Luke’s Super Liquors and has five locations on the relatively small peninsula. A visit to the Luke’s closest to me revealed an interior that rivaled the size of a small supermarket and stocked everything from Pabst’s to imported French wine. If you’re paying close attention, though, you will quickly discover that all is not well in Barnstable County. I was standing in the checkout line at Luke’s, about five people deep. Three of the people, however, were together and appeared to be purchasing one single bottle of liquor. It seemed to be taking forever. As I stood there waiting for my turn, two things became clear. First, the members of the group were young tourists from an Eastern European country. Second, the cashier was carding each person in the party. Unfortunately for us, one of the people had an expired passport with a current visa and a current passport with no visa. It took the cashier quite a while to figure out that the customer was legit. In the meantime, I began chatting with the woman directly in front of me. I asked her what she thought was going on and she revealed that she too had run into trouble with this cashier. About an hour prior, the woman had been in the store with her elderly grandfather. When they approached the check stand, the cashier refused to sell her grandfather a bottle of wine because the woman had not brought her identification with her. Given that her grandfather was clearly over 21, and even had his identification, this seemed very strange. When my turn finally came, I couldn’t resist making a comment to the cashier about her obsessive need to card everybody in the store. It turns out that Luke’s policy, and the policy of many liquor stores in Massachusetts, is to card everybody in the party. If someone does not have identification, or is underage, nobody can buy the alcohol. Being the quick thinker that I am, I quipped “So, high school kids know to stay in the car when someone is buying for them?” Nope. Luke’s patrols the parking lot and if they notice people waiting, either around the building or in a car, they will not sell alcohol to the party who entered the store. On its face, the identification policy at Luke’s seems ridiculous. But, if you know about dram shop laws, it all makes perfect sense. Dram shop laws have been around since the 1800’s and forty states have them. Early laws imposed liability on tavern owners who served alcohol to minors or intoxicated persons. In the United States, the term dram shop law is a generalized legal term that refers to a class of laws imposing liability, either criminal or civil, on an individual or entity for the act of providing alcohol. Most people familiar with the term equate it’s meaning to activities of liquor stores or eating establishments, such as bars and restaurants. Some states even impose dram shop liability on private homeowners or party sponsors; this type of non-commercial liability is often known as “social host liability”. Although the most common harm addressed by dram shop laws is injury caused from drunk driving, the laws have also been triggered for bar fights or other bad behavior stemming from intoxication. Dram shop laws are largely regulated by state law, and states differ with regard to whether they impose dram shop liability, social host liability, or both. States also differ with regard to whose drinking activity is covered by the law, as well as to whom the establishment or individual owes a duty of care. Most dram shop laws were passed with the intent of protecting the general public from drunk drivers. They put the burden on those in the best position to prevent the harm — the sober bar keep who can keep track of how much someone has had to drink and interact with customers to detect intoxication levels.
Dram Shop Laws
The most common imposition of dram shop liability is for the sale of alcohol to minors or intoxicated people who later leave the bar and cause injury or death to a third party. All states outlaw the sale of alcohol to minors and some, including Texas, allow even the minor himself to sue the dram shop for his own injuries. Liability for serving alcohol to already intoxicated patrons, on the other hand, differs by state. Many states require the plaintiff to show that the defendant knew or should have known that the patron was already in an intoxicated state. In Missouri, a new law requires the patron to be uncoordinated or physically dysfunctional before imposing liability. However, as with many negligence-based causes of action, laws are not uniform as to when the liability attaches to the customer. In Texas, the patron must be a clear and present danger. In Massachusetts, where Luke’s Super store is located, dram shop law is common law and has not yet been codified. In addition to liability for third parties who are injured as a result of the intoxication, the patron himself can sue the bar for negligence. See O’Hanley v. Ninety-Nine, Inc. 421 N.E.2d 1217 (1981). In order to prevail, there must be willful, wanton or reckess conduct on the part of the establishment. Conversely, a social host has no liability for injuries sustained by an adult guest. How to determine dram shop liability in Massachusetts was established almost thirty years ago with the case Cimino v. The Milford Keg (1981). The Court declared that in order to be held liable for the actions of a drunk customer in Massachusetts, he or she must be visibly intoxicated; being drunk, loud and vulgar qualifies. The plaintiff proved that the bar served an already intoxicated customer at least six White Russians prior to allowing him to head to another bar with drink in hand. When that bar refused to serve him, he left in his vehicle and ended up killing a pedestrian. For many years, Illinois did not even impose liability on establishments whose sale of alcohol to an individual resulted in personal injuries. In maintaining the ban on dram shop liability, Illinois lawmakers felt that furnishing alcohol was not the cause of alcohol-related incidents. Instead, it was only the actual drinking of alcohol that resulted in liability. Even in cases where judges felt that dram shop liability should apply to a specific personal injury suit, they felt constrained by separation of powers and waited for the Illinois legislature to change the laws. Illinois’ first Dram Shop Act was passed in 1872. The law imposed liability, although somewhat limited, on liquor stores, taverns, and restaurants that sold alcohol to a person who became intoxicated from that alcohol and later caused physical injury to someone else. Under present Dram Shop law in Illinois, recovery in any lawsuit for personal injury caused by intoxication filed against the establishment who sold the alcohol is limited slightly less than $60,000 for personal injury and $70,000 for loss of wages. Given these small recovery amounts, most victims of dram shop incidents do not file suit against drinking establishments. To recover damages in Illinois, a plaintiff need only prove that selling the alcohol was a proximate cause of the intoxication and that the intoxication was a cause of the injury. In fact, an Illinois court found dram shop liability where a supplier dropped off self-serve kegs at a picnic. However, recovery for dram shop liability is barred for someone who was involved in the drinking. For instance, if a passenger in a drunk driving accident attempts to sue the bar for his injuries, he will likely be barred from recovery if it is shown that he was also at the bar, drinking with the driver. In New Jersey, the dram shop law extends to social hosts, imposing liability even when the alcohol is given away for free. For adult drunk drivers, the ability to sue an establishment for their own injuries is reduced by the patron’s own negligence. New York’s dram shop law applies to places that provide alcohol to persons who are visibly intoxicated or habitual drunkards. The law is codified in NY General Obligations Law section 11-101, and provides for punitive damages. In order for dram shop liability to attach, common sense factors such as unsteady gait, slurred speech, or glazed and bloodshot eyes should be considered. However, the patron cannot file suit against the bar at all. Businesses that make money by serving alcohol to people who later go and get behind the wheel are easy targets for anti-drunk driving advocates. However, studies have shown that states with fairly narrow dram shop laws, such as Michigan and Alaska, have below-average drunk-driving fatality rates. Illinois, on the other hand, has the most sweeping of all states dram shop laws yet has a fatality rate that is above the national average. Variations on traditional dram shop laws have been popping up. For example, lawsuits have been filed against alcohol producers or even drinking buddies, which significantly expands the traditional notions of duty of care, proximate cause, and even product liability law. In California, dram shop liability is limited to selling alcoholic beverages to obviously intoxicated minors; there is no social host liability except for when a parent permits his child, or a child’s friend, to drink or use drugs at home and then drive with a blood alcohol content above .05 or under the influence of a controlled substance. If the child causes a traffic collision, the parent is subject to a misdemeanor and up to one year in jail and a $1000 fine. How a dram shop law can impose liability on a drinking establishment for the actions of its patrons can be illustrated by the recent case against O’Leary’s Restaurant & Bar located in St. Louis, Missouri. O’Leary’s used to be owned, at least in part, by actor John Goodman. On March 20, 2009 Christine Miller, a 41-year-old police officer assigned to the Sunset Hills station in suburban St. Louis, went to nearby O’Leary’s Restaurant with some friends and allegedly drank herself into an intoxicated state. After leaving the bar, Miller drover her 2001 Mitsubishi Eclipse the wrong way, about a mile from her home, and stuck a 1997 Honda Accord at approximately 1:45am, killing four people and injuring another. The four who died were graduate students at Eastern Illinois University. Miller also suffered serious head injuries in the accident and was, at one time, in critical condition. Approximately three hours after the accident, Miller’s blood alcohol content still measured a staggering .169, over twice the legal limit. Miller was charged with four counts of felony manslaughter and a single count of felony assault. Because of her severe head injuries, Miller was placed under house arrest and was required to wear an ankle bracelet. Understandably, the parents of the five students filed a civil suit against Miller for wrongful death and personal injury, alleging that she was driving under the influence of alcohol and was driving on the wrong side of the street at the time of the accident. However, O’Leary’s Restaurant is also being sued for continuing to serve Miler even though she was intoxicated. The lawsuit alleges that employees at O’Leary’s knew that Miller was intoxicated and did not stop her from driving her car or call her a cab. The suit also alleges that the bar served Miller, despite the fact that she had slurred speech and an unsteady gait.
Social Host Liability
Like it or not, alcohol plays a large role during social and business functions. Typical dram shop laws do not apply to these situations as the alcohol is provided for free. Some states impose liability on hosts for the actions of guests who become intoxicated either on the host’s property or at a function sponsored by the host. The statutes typically cover dispensing, selling or giving. Although closely related to dram shop law, social host liability has not been adopted by all states and, where it has been imposed, typically covers incidents of providing alcohol to minors. However, state courts increasingly extend liability to social hosts that knowingly give alcohol to intoxicated guests at cocktail parties, frat parties, weddings, and office parties. For years, Illinois did not impose social host liability in cases where alcohol was provided to a guest for free. Even if the guest became intoxicated by drinking only the alcohol provided by the host and later got into a car accident or assaulted someone in a fight, the host could not be held legally responsible for damages in a civil suit. The insulation from social host liability even applied to situations where alcohol had been provided to minors. Cool parents who bought alcohol for their kids and kids’ friends, or even hosted drinking parties, could not be held liable if the drunken kids then got behind the wheel and killed somebody. In the mid 1990’s, Illinois appellate courts showed an inclination to begin lifting the bar on social host liability, especially in cases where giving alcohol to minors resulted in fatal car accidents. However, the Illinois Supreme Court rejected these attempts at imposing social host liability, punting the issue to the Illinois legislature.In 2003, a high school hazing incident at a powderpuff football game at Glenbook North High School resulted resulted in a bloody brawl that sent five girls to the hospital and numerous disciplinary measures being imposed by school officials. Local media explored the issue of parental liability for the incident, focusing attention on the fact that parents sponsored the event. Recently, however, lawmakers in Illinois have been moving toward making it harder for social hosts to escape liability for injuries arising from excessive drinking. It’s no longer fun to be the “cool” parent. Since the Drug or Alcohol Impaired Minor Responsibility Act of 2004, adults who give alcohol or other intoxicating substances to a person under 21 can be held liable for damages that arise due to the intoxication, even if the minor only injures himself. Not all situations, however, will impose liability on the parent as persons who do not “wilfully supply” the alcohol will not be held liable. For instance, if your child steals liquor from the liquor cabinet, gets drunk and injures someone, you may not be held liable if you had no reason to believe that you teen would do such a thing. In essence, parents are now strictly liable for injuries caused by teens who become intoxicated from alcohol supplied to them by the parent. Unlike Illinois’ traditional dram shop law, there are no monetary liability limits when alcohol was given to a minor. In addition, attorney’s fees and punitive damages are available to plaintiffs. Unlike under typical dram shop laws where the negligence of the drinker is taken into consideration when imposing liability, the DAIMRA excludes any contributory negligence of the minor thus making it possible for that minor to recover full damages. Given that punitive damages are rarely covered by homeowner insurance policies, parents in Illinois should certainly think twice before providing alcohol to minors. While it is likely that some parents will not take heed of warnings to take care in providing alcohol to minors, the effectiveness of the new law has already been proven. One of the first personal injury lawsuits filed under DAIMRA, arising from a drunk driving accident that occurred just one month after the law became effective, resulted in a settlement of $1.625 million. In October 2004, a sixteen year old Illinois teen, named Melissa Wolkomir, sustained serious injuries in a car accident. Wolkomir and three friends left a Halloween party being held at a barn in Wisconsin that provides equipment and services for hay rides. Kegs of beer were on tap for attendees, and the hosts did not card at the door or hire servers to check IDs. Even though only adults were formally invited to the party, the minors were able to get in. Although the girls smuggled alcohol, which would have relieved party organizers of liability for providing the alcohol, the teen driver had two beers from the keg. The girls left the party around 11:30pm and the driver made an illegal turn onto the highway. A semi-truck hit the girls’ car and Wolkomir, the only teen to sustain injuries, was thrown from the back seat onto the ground. She suffered neurological injuries which left her unable to properly use her left arm and leg. Police who arrived on scene administered a breathalyzer to the teen driver and found her blood alcohol content to be .08. She was cited for driving under the influence and later pleaded guilty to a DUI. Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.