For the discussion, research the identified case and consider the following scenario. The two are different events.
- Case: Lyons v. Nasby, 770 P.2d 1250 (Colo. 1989) [Available at Casetext.com]
An invitee of a club member attends a social event,. The event includes an open bar and three bars are set up in different parts of the banquet room to provide full access and coverage. Each bar is worked by two dedicated bartenders and they are assisted as a group by a barback. The invitee is enjoying the event and is able to consume ten drinks, a mix of beer, cocktails, and shots. The invitee is showing clear signs of intoxication with loud speech, crude language and behavior, and stumbling. After being served the eleventh drink, the invitee is stopped by the manager and told he was going to be cut off. Becoming argumentive, the manager decides it is time for the invitee to leave the event. The invitee is angered but is escorted out of the banquet room. Obviously unable to drive, the manager sends two staff members with the invitee, one to drive the invitee’s car and one for transportation back. At the home, the wife is given the keys and the employees leave. After arriving home, the invitee, still angered, grabs the keys and attempts to drive back to the club. On the way, he crashes, hits a tree, and is killed. His car is the only car involved in the accident and he is the only injury/fatality. The tree is on public land.
For the discussion, respond to the following prompts;
- The manager onsite is your subordinate. How would you advise that manager moving forward?
- What would be done differently, if anything?
- Who should be held liable for the accident?
- Other than the intoxication, what other aspects could have been a critical error?
In the discussion, explain how liability would be determined using your current state of residence or a state of your choice. Identify the state in your discussion title. If your first choice of state has already been discussed, you will need to choose another state.
It needs to be a case in the State of Florida. That is why I am ordering the assignment early. Thank You! Cf
Week 6 Reading Material
Imagine you are tending bar in a hotel. A guest has been drinking for several hours and is clearly quite intoxicated. He is stumbling and slurring his words. He orders another drink and you serve the drink. After the drink, he leaves the bar, keys in hand. He drives while intoxicated and causes a serious accident; a passenger in the other vehicle is killed. In this case, the bar continued to serve an intoxicated customer, and did not make any effort to stop the individual from drinking and driving. To understand liquor laws and sales, you do need to know a bit about the history of alcohol sales in the United States. As you may remember, the Eighteenth Amendment created prohibition in 1919; the legal banning of both alcohol production and sale, outside of very minimal medicinal protections. The Twenty-first Amendment of the US Constitution repealed the Eighteenth Amendment in 1933 and allowed the states control of the sale of alcohol in their state (Jefferies & Brown, 2010).
In terms of pastimes and hospitality, alcohol tends to be woven into many events and services, at least provide as an option, for participants to enjoy. The perspective of alcohol consumption has branched in several directions, primarily as a social enhancer as people share drinks and good times or as a social nullifier as people use the effects of alcohol as a suppressant. Admittedly, this understates the two directions and doesn’t account for when they overlap, but the distinction shows that consumption occurs for very different reasons. No matter why a person chooses to consume alcohol, as an enhancer or as a suppressant, the effects of alcohol can create dangerous conditions for the consumer and those in their vicinity. These effects are widely known so it is important for those choosing to sell alcohol or include alcohol in their event to understand those effects and possible outcomes. Outcomes include injury and crimes that may be caused by the impaired mental state created through alcohol affecting the body. The regulation of alcohol sales establishes standards of care to prevent harm related to the consumption of alcohol and intoxication.
Note, being intoxicated [or allowing a patron to become intoxicated] can be determined as the proximate cause for injury.
As commonplace as it may seem, many regulations regarding food handling are not commonly known, such as truth in labeling of food products for sale, but, in comparison, regulations (if even just a base understanding) are readily apparent for alcohol sale and consumption. The sales of liquor are heavily regulated in a number of different ways.
Using an Arizona regulation as reference, legislation may define intoxication, or “obvious intoxication”, as well as account for previous consumption of alcohol outside of the establishment. The burden is placed on the establishment to ensure they are creating and maintaining an environment where alcohol will be responsibly consumed. Depending on a variety of circumstances, the establishment may not be able to eliminate all hazards, but they must show that they did act with reasonable care to prevent harm. For example, an underage patron may present fake identification that fools the server or bartender. Assuming the fake identification is of “good” quality, the act of checking identification may absolve the establishment of liability, provided they didn’t serve the patron after being obviously intoxicated.
Arizona Revised Statute, Title 4: Alcoholic Beverages
4-311: Liability for serving intoxicated person or minor; definition
A. A licensee is liable for property damage and personal injuries or is liable to a person who may bring an action for wrongful death pursuant to section 12-612, or both, if a court or jury finds all of the following:
1. The licensee sold spirituous liquor either to a purchaser who was obviously intoxicated, or to a purchaser under the legal drinking age without requesting identification containing proof of age or with knowledge that the person was under the legal drinking age.
2. The purchaser consumed the spirituous liquor sold by the licensee.
3. The consumption of spirituous liquor was a proximate cause of the injury, death or property damage.
B. No licensee is chargeable with knowledge of previous acts by which a person becomes intoxicated at other locations unknown to the licensee unless the person was obviously intoxicated. If the licensee operates under a restaurant license, the finder of fact shall not consider any information obtained as a result of a restaurant audit conducted pursuant to section 4-213 unless the court finds the information relevant.
C. For the purposes of subsection A, paragraph 2 of this section, if it is found that an underage person purchased spirituous liquor from a licensee and such underage person incurs or causes injuries or property damage as a result of the consumption of spirituous liquor within a reasonable period of time following the sale of the spirituous liquor, it shall create a rebuttable presumption that the underage person consumed the spirituous liquor sold to such person by the licensee.
D. For the purposes of this section, “obviously intoxicated” means inebriated to such an extent that a person’s physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.
Alcohol Server Training
Service training for alcohol is strongly recommended and is legally mandated in some areas. Formal training involves a certification that makes the attendee certified to work in an environment that serves alcohol. Aside from the [hopeful] mitigation of exposure to harm and liability, alcohol training provides employers with a number of advantages. An example of those advantages can be illustrated by the training offered in the state of Missouri (Missouri Department of Public Safety, Alcohol and Tobacco Control, n.d.):
- Helping understanding the laws that govern you and your employees’ behavior;
- Learning how to deal with the highly sensitive issue of intoxicated patrons;
- Guidance in instituting policies and procedures to reduce liability risks;
- Assistance in the detection of false identification; and
- May assist you in obtaining an insurance discount on your liability premiums.
In contrast, failing to utilize trained workers or provide training when needed will increase the likelihood of the business being held accountable for any harm caused by an intoxicated guest.
Maintaining a Liquor License
Licensing will vary from state-to-state; however, there are some basic guidelines that apply in the majority of states. These are widely accepted, and, in some cases, enforced through funding-related policies on the basis of the federal government. For instance, when the federal government wanted to force states to increase the drinking age from 18 years old to 21 years old, highway funding was withheld from states that did not increase the age.
- States may not sell liquor to people under 21 years of age. Some states have laws that allow limited service of alcohol to minors, typically either if a purchased and served by a parent or for religious use.
- States may choose how to sell liquor; whether liquor is available via state-run stores or a wide range of sources, including grocery stores. Regulations are typically different for selling liquor for consumption on premises differ from liquor intended for consumption off premises.
- Individual states may vary widely regarding open containers and the regulation of drinking in public. In most states, patios and porches on private land, like a closed patio available to your guests, are exempted from open container regulations.
- State regulations regarding serving liquor vary widely in terms of server training, bartending regulations, and requirements for waitstaff serving liquor. In many states, for instance, waitstaff can serve liquor prepared at the bar between the ages of 18 and 21, but cannot tend bar or prepare drinks until 21 years old.
A minimum age has been established for legal consumption and all establishments are expected to abide by that regulation. If an establishment fails to verify age, the provision of alcohol to a minor would not only lead to a criminal charge, but also be liability for any harm inflicted by the minor due to failure to adhere to the legal duty of care to prevent the harm. The standard for care in this example would be the authentic attempt to verify age, such as checking identification. If the bartender checks the ID and is honestly fooled, they would not be liable for service to a minor. If they do not check or accept a library card as age verification, they would be liable for service to a minor. It should be noted here that a bouncer anyone other than the bartender verifying age does not absolve the actual server of alcohol [i.e. bartender] from confirming age verification. States where the bartender is liable will hold the bartender liable regardless of another process being utilized.
A common perspective regarding alcohol service and safety is that the consumer is obligated to self-regulate. The premise is that intoxication is a choice. Responsible consumption means planning and taking precautions to mitigate the risks that are associated with inebriation. Therefore, when a customer leaves a restaurant or bar intoxicated, their choices are their own and any injury resulting from those choices is their liability. An issue with this perspective is that alcohol impairs reasoning. Any decision made while intoxicated is affected by impaired reasoning and possibly impaired mental state [depending on degree of intoxication].
Considering the stated issue, it must be recognized that the drunken customer is only one party involved in the process. The seller is also involved. The customer is sold alcohol and the seller is sober and is obligated to serve alcohol responsibly. There is a shared responsibility to serve and consume alcohol responsibly. Cited by Morris, Ohlin, and Sliger (2017), this shared liability was expressed by the decision of the court in Lyons v. Nasby:
“One who stands behind a bar and serves drink after drink to a visibly intoxicated customer engages in behavior which is as opprobrious as that of the customer…. Insulating tavern owners from liability does not send the message that they, as well as their patrons, must be accountable for their actions” (p. 536)
Ultimately, liability is focused on the service of alcohol as a means to “encourage” proper and responsible service. Choosing to serve alcohol or include alcohol in your provided service, it means being able to recognize when alcohol consumption crosses from moderate to excessive and having contingency plans in place to mitigate the risk of harm to the guest, to your other guests, and to anyone that may interact with that drunken guest after they leave your site or event. Contingency planning is far easier than what has been in decades prior with different options for managing service and providing transportation.
You may have heard the term before and not fully understood what it is referring to. Morris, et al (2017) defined a dram shop act as “a statute that holds sellers of alcohol liable when they wrongfully serve someone who then causes injury to a third person” (p. 533). These laws allow injured parties to hold the purveyors of alcohol accountable for injuries caused by someone intoxicated by the purveyor. When an injured party wins a civil lawsuit, the compensatory damages are shared between the intoxicated guest and the seller.
State by state, not every law is the same. States without some form of a dram shop law are Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota and Virginia. Louis J. Terminello, the chair of Greenspoon Marder’s national Hospitality, Alcohol, and Leisure Industry Group in Miami, explained that “Florida, for example, is considered a ‘limited dram shop’ state”, which means that “a person who sells or provides alcohol to a person of lawful drinking age is not liable for damages,” but “they are liable, however, if they knowingly—and unlawfully—serve or sell alcohol to a minor, or knowingly serve someone who is habitually addicted to alcohol” (as cited by Young, 2018, para. 4).
A common factor in dram shop laws is the Obvious Intoxication Test. This test is the determination that the seller knew or should have known that the guest was intoxicated. On the surface, this seems pretty straightforward but there are numerous variables that affect how quickly someone feels effects and displays behaviors associated with inebriation. Many businesses have adopted the measure of counting drinks as an arbitrary means of prevention. The key and a necessity when demonstrating reasonable care is proper training to recognize even subtle cues and contingency planning for when intoxication undoubtedly occurs. This demonstration of reasonable care shows a degree of care afforded to the nature of alcohol consumption.
Nothing should be left to chance.
A social host is an individual or an entity that is hosting a social event.
Like dram shop laws, social host liability can vary state to state. If and when applicable [or now] you will need to learn and understand the laws of your state. States differ on the extent of liability, meaning some states may absolve the host of liability while others hold the host responsible only if a third party is harmed [not just the guest]. Other states focus only on service to minors.
Similar to other demonstrations of reasonable care and duties of care, the key for the social host or the planner is to have a plan in place and account for contingencies. An obvious component of the planning would be determining the disposition of guests that may be too impaired to drive. If the event is held at a hotel, this could be as easy as reserving a block of rooms. There could also be an agreement with a transportation company. Ride sharing would also be an option and event information could be shared with drivers. Failing to implement any protocol for responsible service during and after service would easily be argued as negligence and leave the host and/or planner exposed to liability.
A state example cited by Gasch (2018), an attorney with Cranfill, Sumner, & Hartzog LLP, the North Carolina Supreme Court has recognized a cause of action for social host alcohol liability if the three following elements are present:
- Service of alcohol (wine, beer, liquor, etc.);
- When the host knew or should have known the guest was intoxicated; and
- When the host knew or should have known the guest would be driving shortly thereafter.
Recalling the dram shop standards, you will recognize the Obvious Intoxication test. Naturally, a fix for the planner and the host [when feasible] is to hire a professional bartender or someone that is experienced in service, providing hospitality, and recognizing behavioral cues of intoxication. Hiring a professional demonstrates reasonable care to mitigate the risk and possible harm associated with consuming alcohol. As before, nothing should be left to chance. Plan diligently and make sure your event is in compliance with the law in your state.
For large scale events, the planner and hosting organization should diligently plan for responsible service, managing consumption, and reviewing insurance coverage prior to signing a contract. It is not a given that an insurance policy has a dram shop policy. It also may not cover special or temporary event. A separate dram shop policy may be needed. Herein lies the benefit from also hiring a legal expert for large events. The variances in laws and the uncertainty in what planning would be enough in conjunction with what insurance for the planner, the host, and the venue will permit are all variables that should be examined through a legal expert.
Common tactics to manage consumption, thus demonstrating reasonable care or a minimum level of care to mitigate the risk of harm, include;
- Liability falls to the serving entity
- Utilize workers trained in responsible service and managing consumption
- Reconsider free or open bars
- Provide food and alternative [possibly creative, appealing] beverages
- Consult with insurance company
- Utilize a indemnification clause with any 3rd party purveyor of alcohol
- And communicate with guests their options and reminders to consume responsibly (Hillaird, 2018).
The significant aspect of alcohol sales is that an injured party can hold the seller liable as well as the injurer if it is determined that the seller was negligent in the sale, such as selling to an already intoxicated person. Not only is the owner/operator responsible for the safety of the guest, they can also be held liable for injuries caused by the guest if related to alcohol.
Liability insurance can help to protect bars, including hotel bars, from civil suits as a result of these liability laws. In some cases, liquor liability insurance is packaged separately from other liability insurance. In other regions, it may be packaged together with standard liability insurance for a bar (Larino, 2013).
- Gasch, D. (2018). Preventing alcohol liability for your social gathering. Retrieved from http://www.wilmingtonbiz.com/insights/deedee_gasch/preventing_alcohol_liability_for_your_social_gathering/2273
- Hilliard, T. (2018). 8 ways to limit alcohol liability at meeting and events. Retrieved from https://www.meetingstoday.com/newsevents/industrynews/industrynewsdetails/articleid/32169/title/8-ways-to-limit-alcohol-liability-at-meetings-and-events
- Jefferies, J. & Brown, B. (2010). Understanding hospitality law (5th ed.) Lansing, MI: American Hotel & Lodging Educational Institute.
- Larino, J. (2013). Bars often roll dice on liquor liability coverage. Retrieved from https://www.insurancejournal.com/news/southcentral/2013/04/01/286632.htm
- Missouri Department of Public Safety Alcohol & Tobacco Control. (n.d.). Alcohol server training. Retrieved from https://atc.dps.mo.gov/enforcement/alcohol/server_training.php
- Morris, K., Ohlin, J., & Sliger, S. (2017). Hotel, restaurant, and travel law: A preventative approach. Dubuque, IA: Kendall Hunt Publishing Company
- Young, M. (2018). The legalities if hosting a drink event. Retrieved from https://daily.sevenfifty.com/the-legalities-of-hosting-a-drink-event/
• Appreciate the extent of the regulation of alcohol sales
• Know the categories of people to whom alcohol sales are prohibited
• Understand the consequences of selling alcohol illegally
• Familiarize with the Dram Shop Act and the liability for violation
• Learn the role of liquor liability insurance
• Know strategies to avoid liability
• Familiarize with miscellaneous liquor regulation
Dram Shop Act
Liquor Liability Insurance
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