Law Review: Who’s liable when the drinker causes an accident?
If a bartender or social host (you at home) serve alcohol (maybe too much) to someone — could be a minor — and the drinker causes an accident, maybe a death, are you or the bartender liable?
DRAM SHOP LAWS
Most states like California have “Dram Shop” laws imposing liability or providing immunity for servers of alcohol. The common scenario is this: Bartender or social host serves alcohol, driver leaves the premises and causes an accident that injures or kills someone.
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. As it should be. The civil — personal liability — side is different.
For decades servers of alcoholic beverages in California were generally immune from lawsuits brought by victims of drunk drivers. The oft-stated finding was and still is, “The consumption of alcoholic beverages rather than the serving of alcoholic beverages is the proximate cause of injuries inflicted on others by an intoxicated person.” The drinker not the pourer is the responsible party.
After a series of (Rose Bird) California Supreme Court cases in the 1970s that made bars potentially liable for serving drinks to someone who drove away and injured or killed someone, the California Legislature in 1978 changed the law back to what it had been.
LIABILITY OF BARS
Bars and bartenders are generally immune from serving alcoholic beverages to their patrons who then drive off and kill someone, no matter how much booze is served — with one exception. A licensee who sells or causes alcoholic beverages to be sold to an “obviously intoxicated minor” loses civil immunity and may be sued for injuries or death caused by the drinking minor (Business and Professions Code §25602.1).
Whether a minor (under 21) is “obviously intoxicated” depends. The courts consider many factors such as bloodshot or glassy eyes, incoherent speech, an unkempt appearance and poor muscular coordination. The determination is made by “a reasonable person having normal powers of observation”.
Other than serving to an obviously intoxicated minor, there is no liability for a bar who serves a (drunk) patron who later crashes and kills someone.
What is the law in California for social hosts who serve alcohol in their home or a private setting?
A social host may be sued by a victim for serving or furnishing alcohol to a minor who subsequently causes injuries or death (Civil Code §1714).
While bars are immune from civil lawsuits unless they serve an obviously intoxicated minor, social hosts allowing alcohol to be furnished to a minor at their home are responsible for a minor’s subsequent driving behavior if they knew or should have known the drinker was under 21.
There is no civil liability (for the server or homeowner) for serving alcohol to adults in a social setting.
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, order a taxi, an Uber or Lyft; limit yourself to one or two drinks. Be smart.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.