Articles Posted in Alcohol/Liquor Liability

If you’ve ever seen the movie Animal House you know the havoc that is wreaked from too much drinking, and the hazing that tragically still goes today on at many college fraternities around the United States.

It’s always been pretty much acknowledged, at least tacitly, that this movie was based on the drinking culture that has for many years been reported at Dartmouth College in Hanover, New Hampshire, one of the world’s preeminent Ivy League colleges. Perhaps you’ve heard the nickname for Dartmouth’s location? No, not Hanover, but Hangover, New Hampshire.

We’ll all that reported alcohol abuse may be at least slowing down, as Dartmouth College this past Thursday announced that it will ban hard liquor on campus. It will also forbid pledging at Greek sororities and fraternities – an event that usually entails binge drinking – and the college will require all students to undergo a special four-year program designed to prevent sexual violence.

It’s the Holiday Season, and that means house parties, correct? My parents, neighbors and relatives had them each year, and they were always fun, lighthearted events. The only thing most people needed to be really concerned about was whether your oddball relatives would cooperate, or whether the food would be good. However, things are different nowadays, aren’t they? (Note: I didn’t say “better,” I said “different.”)

In the newest social development to give rise to the ongoing debate of whether people these days think & act foolishly, or prudently, consider Exhibit “A” on that topic: It seems that an idea is circulating around the internet, suggesting that Massachusetts residents who plan on throwing a holiday party in their home, might want to present a Liability Waiver to their guests who arrive at the front door. Yes, you read that correctly: A Liability Waiver, otherwise known as a Release of Liability, supposedly waiving any liability claims against the homeowners, for any injuries the guest might suffer at or after the gathering to which the guest has been invited. Presumably, this idea was cooked up to supposedly protect the homeowner if the guest was injured because he or she drank too much alcohol at the party, and somehow became injured at or immediately after the party. This idea arose over the internet, presumably because the non-lawyer people who dreamed this idea up, think that it will actually work.

Not exactly. The legal reasons for this are twofold: 1) First, such a waiver would only act to possibly – though not certainly – prevent a liability claim by the guest, and the guest only, for injuries he or she suffered as a result of becoming intoxicated at the party. Such a Release would not act to automatically prevent a successful claim against the homeowner under Massachusetts social host law. It might act to reduce the homeowner’s proportion of negligence within the case if an issue of comparative negligence were raised, but how much protection it would provide would be highly variable case-to-case, and would be highly dependent on the surrounding facts and circumstances particular to each case. 2) No such Release or Waiver would ever act to bar liability claims of third parties who might be injured as the result of a drunken party guest. For example, if a guest became intoxicated at a house party, left the house, drove away in his car and struck and injured or killed an innocent third party, that third party would still be able to sue the homeowners under the Massachusetts social host law.

Almost everyone knows about the tragedies of drunk driving. What a lot of people don’t know about, is the subject of civil liability that can attach to drunk driving. When people do think of this subject, they commonly think of the damages that a victim of drunk driving might be able to receive from the insurance company that insured a car driven by the drunk driver. That’s very common in Massachusetts car accident cases, and it’s an area that our firm specializes in.

But what a great many people don’t know about is the liability that can attach to the business or other source that provided or served the alcohol to the drunk driver. Categorically, these sources are usually restaurants, bars & taverns, or non-commercial hosts of parties, receptions or similar events. Civil liability law permits individuals who are injured as the result of negligent service of alcohol to bring suit against any of these categories of potential defendants. When the defendant is a business such as a bar or restaurant, the liability is usually based on “Dram Shop Laws“, which are specific state statutes that impose liability on liquor license holders or their promotional partners (known legally as “licensees.”) Such statutes are designed to encourage responsible alcohol service, and to provide a mechanism for third parties to file suit for injuries or deaths that result from a liquor law violation. When the defendant is not a business such as a restaurant or bar, but is instead a homeowner who threw a party or function at which alcohol was served, and injuries resulted allegedly due to over-serving someone alcohol, the liability is known as “social host liability.” This liability stems from specific laws stating that social hosts (i.e., non-commercial hosts of a party or function, etc.) who provide alcohol to their guests can be held legally responsible for injuries or damages that may result to someone if alcohol has been provided irresponsibly to an attendee of the function.

In addition, suits for damages resulting from the over-service of alcohol can also be based on common negligence. This body of law defines “negligence” as the failure to act in a manner that a reasonable person would act under the same or similar circumstances. These types of lawsuits can be brought by innocent victims who are injured by an intoxicated person, and they can also be brought by the intoxicated person himself. Juries can award monetary damages to compensate victims for the damages they suffered due to the intoxicated person, and sometimes, they can issue punitive damages to further punish the defendant when particularly egregious evidence is presented. Awards can range from a few thousand to millions of dollars.

Massachusetts just got a lot more sane in the area of dealing with the legalities of liquor liability, particularly with the need for ready compensation to pay for injuries and damages that often follow negligent service of alcohol by a licensed bar or restaurant. These injuries and damages usually result from a Massachusetts motor vehicle accident, but can injuries stemming from a patron being over-served alcohol at a bar or restaurant can also occur without any vehicular accidents being involved. On May 28 2010, Governor Deval Patrick signed into law Chapter 116 of the Acts of 2010, which amends M.G.L. Chapter 138 Section 12, the relevant law in Massachusetts that governs issuance of liquor licenses to bars and restaurants.

It may come as a surprise to many readers, but previous to the enactment of this legislation, bars and restaurants were not required to carry liquor liability insurance in Massachusetts. Not in any amounts, at all. Shocking, isn’t it? Consider: If you own or operate a restaurant in Massachusetts, you are required to produce proof to the local (i.e., city or town) licensing authority of a number of different things before you can be issued a license to operate (known legally as a “victualler’s license.”) The facility needs to pass inspections by the local Board of Health, adhere to state labor laws, produce proof of workers’ compensation insurance, contribute to the state unemployment insurance system, and (almost always) carry a policy of General Liability insurance. But to be issued a liquor license, while you would have to you surmount several additional hurdles before being issued such a license, you would not have had to produce evidence of a policy of liquor liability insurance, at all.

Why is this so important? Because almost all General Commercial Liability insurance policies don’t provide liability coverage for legal damages and injuries that result from the negligent service of alcohol by bartenders and/or wait staff. So while you could swallow a piece of glass in a restaurant and the owner’s general liability policy would almost certainly pay for damages, and while you could suffer a slip and fall accident on site and there would also be coverage to pay for your damages, there wouldn’t be coverage if someone in that restaurant was negligently over-served alcohol, then left the facility and caused injury to you while intoxicated. The stark reality is that up until now, the majority (though not all) bars and restaurants in Massachusetts “went naked” when it came to liquor liability insurance. If someone was unlucky enough to be injured by (usually) a drunk driver who was negligently served alcohol at a bar or restaurant, they had to get simultaneously lucky enough that the OUI driver had been served at a facility that carried liquor liability insurance. If the bar or restaurant who negligently served the alcohol didn’t have a specific policy of liquor liability insurance, there was often no source of money to pay a liability judgment. In that case, collecting on a judgment rendered in a plaintiff’s favor, was often impossible. I’ve blogged about this in the past.

In my previous post on this topic, I discussed a recent case involving Massachusetts liquor liability, and what that kind of case consists of. Now I’ll explain why a bar or restaurant can be held liable if a patron who becomes intoxicated at that restaurant, later injures someone as a result of that intoxication.

Legal liability in a case like this arises from the negligence of restaurant management in failing to adequately hire, train, and monitor the skills and activities of its servers and/or wait staff who serve alcoholic beverages. If the restaurant management in this case had properly hired, monitored and supervised the waitress involved, they would have seen that this waitress was deliberately ignoring the restaurant’s legal duty to spot and prevent patrons from being served too much alcohol, and the resulting Massachusetts car accident and injuries suffered by the plaintiffs here, would not have occurred. The legal argument used by this plaintiff (and similar plainitffs,) is that the restaurant management: 1) Had a legal duty to prevent patrons from becoming overly-intoxicated at its establishment (accomplished through appropriate enforcement of the highly effective TIPS program); 2) That the restaurant management “knew or should have known” that if it did not hire adequate personnel and monitor its wait staff for compliance with this program, one or more patrons would become excessively intoxicated and very possibly cause injuries to third parties – in essence, that the accident was “foreseeable”; 3) That such an accident or injuries did occur, and that it occurred due to the intoxication of that customer; and 4) That the plaintiff(s) suffered damages as a result.

As to exactly how a skilled plaintiff’s attorney proves to a jury that negligence occurred, a variety of techniques can be used (depending, of course, on the expertise level of the attorney representing you.) In this case, the attorney for the plaintiffs was prepared to call an expert witness – a medical biochemist – to testify as to what the expected – and observable – signs and symptoms of intoxication would have been in this case, and the plaintiff was also prepared to call an expert consultant who was a certified TIPS trainer. That expert would have testified that this bar’s policies and procedures in monitoring and enforcing the TIPS program were lax and inadequate. Further, as to evidence, the plaintiff’s attorneys fought very hard to find and secure the bar receipt for the customer who later engaged in drunk driving and caused this accident, which the restaurant did everything they could to hide. That receipt showed that the waitress involved, received a $100 tip for a $50 bar tab from the defendant driver. This was key to establishing the restaurant’s negligence in failing to monitor the skill level and TIPS enforcement pattern of this waitress. If a jury ever saw this receipt, and saw the financial ‘reward’ given to this waitress for over-serving this drunk driver, it would have been devastating to the defense and to the restaurant.

A recent case settlement in the area of liquor liability, shows that despite improvement in recent years, there are still bars and restaurants that continue to negligently serve alcohol to intoxicated patrons, when they clearly shouldn’t be doing so.

This recent case involved serious injuries that two female drivers sustained in a Massachusetts car accident when the pickup truck they were traveling in on Interstate 95, was rammed from behind by a drunk driver. The vehicle in which the two plaintiffs were driving was caused to roll over several times before coming to rest on its side, and the occupants sustained serious injuries. The driver of the pickup, 29, suffered multiple rib fractures. The 32-year-old passenger suffered a severe open fracture of her right tibia and fibula, and required several surgeries for the surgical implantation of a metal rod. The offending driver was arrested at the scene, but refused a breathalyzer test, and therefore, no blood alcohol test was resultantly available to introduce as evidence that this driver was intoxcated at the time of the accident, at either the criminal, or civil trial which the plaintiffs instituted against the defendant for monetary damages. Notwithstanding, at deposition during the litigation of the civil case, (note: for obvious reasons, this defendant never would have admitted the following at his criminal trial, but in the civil trial, it was the bar that was the party really “on the hook” not him,) the defendant driver testified that he has consumed approximately 12 beers and four shots of liquor at the bar he was drinking at on the evening in question. That’s damaging evidence enough of negligence against the bar, but it gets worse: Evidence in the form of bar receipts – which the bar did its best to conceal from the plaintiffs’ attorney – showed that the waitress who served the defendant all these drinks, was given a $100 tip for doing so (in other words, for not “shutting off” the customer).

So where does this liability for personal injuires come from, what is it called, and why should the bar owners be held liable for the actions of an irresponsible and greedy waitress? All good questions. First, this type of civil liability – popularly known as liquor liability but known within the legal profession as “Dram Shop Liability” (the term comes from historical case law) – arises from the legal duty that a restaurant, bar or tavern owner owes to its patrons as well as to members of the general public, to train, supervise and monitor its bartenders and wait staff in the responsible practice of serving alcohol. That training, almost universally provided under an industry program known as TIPS (for Training for Intervention ProcedureS.) TIPS is a nationwide program used almost universally in the restaurant and bar industries, to educate and train servers and wait staff in the responsible service, sale, and consumption of alcohol. The whole point is designed to prevent negligence and resulting personal injuries that may follow from patrons becoming overly intoxicated.

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