Jim Porter: Server of alcohol liable for injuries caused by drunken driver?
Special to the Sun
If you are injured by a drunken driver, can you sue the bar or person who served the alcohol? If you are hit by a drunk driver who left a private party, can you sue the party host? What if the drinker was obviously intoxicated when served?
Dram shop laws
Most states have and#8220;dram shopand#8221; laws imposing liability or providing immunity for servers of alcohol. The common scenario is this: bartender or a social host (you, for example) serves alcohol, driver leaves (and avoids the cops sitting outside the bars), and causes an accident that injures or kills someone. That someone or their estate (you, for example) sue the alcohol server and#8212; often because the drunk driver has no assets and is uninsured or underinsured. Here is the law in California.
Any person who sells or gives away alcohol or causes it to be sold or given away and#8220;to a habitual or common drunkard or to any obviously intoxicated personand#8221; is guilty of a misdemeanor and#8212; a crime.
However, the law is different when it comes to civil liability for injuries caused by consumers of alcoholic beverages. In 1987, the California Legislature, reacting to court cases in the late 1970s that imposed liability on people serving alcoholic beverages to intoxicated drinkers, made a specific finding that and#8220;the consumption of alcoholic beverages rather than the serving of alcoholic beverages is the proximate cause of injuries inflicted by another by an intoxicated personand#8221;. The drinker, not the pourer, is the responsible party. Civil Code section 1714 and Business and Professions Code sections 25602 and 25602.1 were enacted granting immunity.
In California, with one exception, there is no civil liability for anyone who sells or gives away or causes to sell or give away alcoholic beverages for injuries to third persons caused by the consumer of the drinks. No matter how much booze is served. This applies to bars as well as social hosts like a private Christmas party. Neither the bar nor the social host is responsible for injuries later caused by their drinkers even if they serve them when they are and#8220;obviously intoxicated.and#8221; Part of the reasoning in the legislation, I assume, is every plaintiff would allege the drinker was obviously intoxicated.
Obviously intoxicated minor
Here is the single exception. Anyone who sells or gives away or causes to sell or give away alcohol to an and#8220;obviously intoxicated minorand#8221; is responsible and#8212; not only for the injuries caused by the minor but for injuries caused to the minor. Minor, of course, is anyone under the age of 21.
Whether a minor is and#8220;obviously intoxicatedand#8221; depends. The courts consider many factors such as bloodshot or glassy eyes, incoherent speech, an unkempt appearance and poor muscular coordination. That would be me and#8212; on a good day. The determination is made by and#8220;a reasonable person having normal powers of observation.and#8221; Whatever that means.
In one case a landlord rented property to an organization for a one-time event at which alcohol was served to a minor. The court found the landlord immune as not having any control over the tenantand#8217;s service of alcohol.
In another case the court found that a security company hired by a restaurant and bar that served alcoholic beverages did not owe a duty to prevent minors from consuming alcoholic beverages.
However, the operator of a bar and restaurant was found responsible when the plaintiff was assaulted and stabbed by another patron. (In his amended complaint the plaintiff cleverly deleted the allegation that the assailant was intoxicated as that gave the bar owner immunity).
Not to sound preachy, but regardless of the law we should all be careful about alcohol consumption. Donand#8217;t be afraid to take an aggressive role to prevent someone from driving when they have had too much. Use a designated driver, call a taxi, call a friend, limit yourself to one or two drinks; sit in the car for awhile and#8212; whatever it takes. Itand#8217;s hard enough to drive on black ice when you are sober.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmand#8217;s web site.