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Law Review: Is the server of alcohol liable for injuries caused by a drunk driver?

 

If you are injured by a drunk 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 “Dram Shop” laws imposing liability or providing immunity for servers of alcohol. The common scenario is this: bartender or a social host serves alcohol, driver leaves, and causes an accident that injures or kills someone. That someone or their estate sues the alcohol server — 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 “to a habitual or common drunkard or to any obviously intoxicated person” is guilty of a misdemeanor—a crime. That’s the criminal side.



IMMUNITY

However, the law is different when it comes to civil liability (lawsuits) 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 servers of alcoholic beverages to intoxicated drinkers, made a specific finding that “The consumption of alcoholic beverages rather than the serving of alcoholic beverages is the proximate cause of injuries inflicted by another by an intoxicated person.” 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 at a home or 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 “obviously intoxicated.” Part of the reasoning of the legislation, I assume, is every injured plaintiff would allege in court that the drinker was obviously intoxicated. Which would essentially eliminate the immunity.



OBVIOUSLY INTOXICATED MINOR

Here is the single exception. Anyone who sells or gives away or causes to sell or give away alcohol to an “obviously intoxicated minor” is responsible — 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 “obviously intoxicated” 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 — on a good day. The determination is made by “a reasonable person having normal powers of observation.” Whatever that means.

COURT CASES

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 tenant’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 wisely deleted the allegation that the assailant was intoxicated which had provided the bar owner immunity).

BE SMART

Not to be preachy, but regardless of the law we should all be careful about alcohol consumption. Don’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 or Uber, call a friend, limit yourself to one or two drinks; sit in the car for a while — whatever it takes. It’s hard enough to drive on black ice when you are sober. This column is a revised version of an earlier Law Review.

Jim Porter is an attorney with Porter Simon licensed in California, with offices in Truckee and Tahoe City, and Reno. These are Jim’s personal opinions. Jim’s practice areas include real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com


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