SERVING THE OBVIOUSLY INTOXICATED
Can You Be Sued for Serving that Drunk?
By Ralph B. Saltsman with Stephen Warren Solomon
And Stephen A. Jamieson
In California, by statute, ABC licensees enjoy limited protection
from liability after serving an obviously intoxicated person who
injures a third party while intoxicated. Social hosts’
protection from that type of liability is even more complete. ABC
licensees are not liable for third party injuries after serving an
obviously intoxicated person who injures someone only if the
obviously intoxicated person is 21 years old or older. Social
hosts are protected even where the obviously intoxicated person is
under 21.
Both words “obviously” and “intoxicated” are crucial. The
intoxication must be obvious. A customer with an astronomical
blood alcohol level who is not exhibiting objective symptoms might
not come within the statutory scope. What are some objective
symptoms? Typically the intoxicated person has coordination
problems leading to swaying, staggering, stumbling, falling,
difficulty finding money and even holding that drink. He or she
may be loud, incoherent, and obnoxious. Exercising good judgment
is difficult. Clothing may be disheveled. Sometimes
unconsciousness is an objective symptom. Watch for bloodshot
watery eyes and flushed face. The strong smell of alcohol is a
standard. Vomiting may be a symptom as well.
It isn’t important to the law where this person became
intoxicated, only that you (or your employee) served him or her
while that customer was obviously intoxicated. In the following
scenario, Fred enters your licensed premises while exhibiting many
of these objective symptoms. He is served by you or your employee
and then he leaves. Fred somehow figures out how to get into his
car, manages to get the key into the ignition and start the
engine. His luck changes while driving southbound in the
northbound lane when he collides head on with a van carrying three
people. Elizabeth and John are killed; Rodney will be paralyzed
forever. Fred forgot to get a driver’s license and had no
insurance. On the way to the hospital, Rodney retains the Personal
Injury law firm Sokkem Hard & Howe. Time to worry?
Yes and no. The Alcoholic Beverage Control will file an accusation
and seek a substantial penalty, perhaps even revocation. You can
worry about that. Your bartender (or sales clerk) will be cited or
arrested and prosecuted in the criminal justice system for serving
an obviously intoxicated person and perhaps for felonies related
to the death and injury (e.g. manslaughter or even murder). He or
she can worry about that. But will you be sued for the deaths of
Elizabeth and John and the injuries sustained by Rodney? As a
licensee you may be immune from civil liability for death or
injury to a third party injured by a patron or customer who was
served an alcoholic beverage while obviously intoxicated. Further
inquiry is needed.
California statute explicitly protects any “person who sells,
furnishes, gives, or causes to be sold, furnished or given away,
any alcoholic beverage” from civil liability “to any injured
person or the estate of such person for injuries inflicted on that
person as a result of intoxication by the consumer of such
alcoholic beverage.” The statutes at issue conclude it is “the
consumption of alcoholic beverages rather than the serving of
alcoholic beverages that is the proximate cause of the injuries
inflicted upon another by the intoxicated person.”
In other words, the drinker may be liable. The seller, furnisher,
or giver is not liable. This applies to licensees and social hosts
as well. However, if Fred is under 21, the civil liability
immunity provided by that statute is silent as to obviously
intoxicated minors, and the legislature adopted a different
statute that directly applies. The legislature did therein
explicitly allow for liability against a licensee who sells,
furnishes or gives away (or causes these acts) if the obviously
intoxicated person is a minor.
In 1978, in reaction to three California Supreme Court decisions
dealing with liability of those who provide alcohol to obviously
intoxicated persons, the legislature amended Business and
Professions Code Section 25602, added Section 25602.1 and amended
Civil Code Section 1714 to create an immunity umbrella under
various circumstances. Section 25602 creates civil immunity for
licensees who sell to obviously intoxicated persons, but is silent
as to obviously intoxicated minors. Section 25602.1 creates
liability against licensees (or those who are required to be
licensed) who sell, give away or furnish alcoholic beverages to an
obviously intoxicated minor. Section 1714 creates immunity stating
that furnishing alcohol is not the “proximate cause” of
injuries resulting from intoxication, using identical language to
25602, and then concludes: “No social host who furnishes
alcoholic beverages to any person shall be held liable accountable
for damages suffered by that person, or for injury to the person
or property of, or death of, any third person, resulting from the
consumption of those beverages.”
Another scenario: at a raging party at your house, your serve your
guests an extraordinary amount of liquor. There are minors present
and adults, and everyone is over consuming to bacchanalian excess.
Mary, a 17 year old, is semi-comatose from drinking and injures
someone with her car while driving home. Later that night, Benson
falls into a drunken sleep holding a lit cigarette in his mouth.
He sleeps soundly on the couch where he fell, and the ensuing fire
severely burns Benson, his friend Hilda asleep on the same couch,
and a few others less severely. Now do you worry?
As social host, you most likely do not face civil liability for
any of this debacle. By statute, as social host you are not liable
in civil litigation for injuries (Mary’s or others) caused by
young Mary’s accident. You aren’t even liable for burns
sustained by Benson, Hilda and others.
What the Court of Appeal did in Biles v. Richter (1988) was to
note that sober folks probably are more careful smokers than drunk
folks, but regardless of how clever the injured guests’ lawyers
were, liability would necessarily be based on consumption of
alcohol, and the statutes disallowed this. The Court imagined a
fictitious Marx Brothers movie where the brothers stand guard over
drunken smokers:
“The danger associated with smoking on
living room furniture is ordinarily appreciated by adults who
are sober. To be sure, accidents repeatedly happen when, for
example, a person falls asleep on a couch or in bed. But sober
adults are ordinarily alert to the danger and are able to take
steps to minimize or avoid it. We do not believe sober adult
smokers pose so great a risk that a social host can fulfill his
or her duty to a sleeping guest only by being present beside
other guests who smoke to supervise them. As a practical matter,
a contrary conclusion would require the hosts of large parties
to station smoker-watchers next to large potted plants, where
they could ever-so-discreetly keep tabs on guests who smoked.
While this scene might have played well in a Marx Brothers
movie,[footnote omitted] we do not think contemporary life
should imitate art in this instance.”
The Court in this case determined no liability could be found
against the host.
Beware: there may be a few instances where liability could still
be found. If a licensee or an employee creates some extra duty to
a patron, the court could conceivably find liability not directly
related to the service of alcohol to that patron who may be an
obviously intoxicated person. This summer the California Supreme
Court signaled a potential erosion of more general immunity to
licensees. In Delgado v. Trax Bar & Grill (August 2003), the
Court of Appeal reversed a jury award for damages to a patron who
had been lured out of a bar by a gang to a parking lot where he
was severely beaten (without respect to the anyone’s state of
sobriety). The Court of Appeal stated, “The unforeseeable
criminal acts of third persons do not impose a duty on premises
owners to prevent such acts.” The Court quoted a 1993 Supreme
Court case. The Supreme Court granted a hearing in Delgado and may
reverse a ten year trend that had protected bar and restaurant
owners.
Social hosts, bar or restaurant owners and owners of markets are
all protected by statute from civil liability where a “guest”
or patron is served while obviously intoxicated and then injures a
third party. Licensees and those required to be licensed are not
immune from liability if the third party is injured by a patron
who was an obviously intoxicated minor to whom your employee
served alcohol. In that instance, the ABC files an accusation, the
selling employee gets prosecuted, and you get sued. Time to worry?
Time to call your lawyer.
Solomon, Saltsman & Jamieson are
attorneys practicing in the areas of ABC law, ABC Appeals Board
cases, and all related Land Use Matters such as City and County
Conditional Use Permits, Variances, Police and Fire permits,
Entertainment law, and Gambling Law; as well as Business and
Personal Injury litigation. Solomon, Saltsman & Jamieson can
be reached at 800 405 4222."
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