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Liquor Liability 2019 Update

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Liquor Liability 2019 Update LIQUOR LIABILITY 2 019 UPDATE CONTENTS 1 ALABAMA 60 LOUISIANA 117 OKLAHOMA 5 ALASKA 63 MAINE 119 OREGON 7 ARIZONA 67 MARYLAND 125 PENNSYLVANIA 11 ARKANSAS 70 MASSACHUSETTS 129 RHODE ISLAND 13 CALIFORNIA 73 MICHIGAN 132 SOUTH CAROLINA 17 COLORADO 80 MINNESOTA 133 SOUTH DAKOTA 20 CONNECTICUT 84 MISSISSIPPI 134 TENNESSEE 24 DELAWARE 87 MISSOURI 136 TEXAS 26 DISTRICT OF COLUMBIA 90 MONTANA 139 UTAH 29 FLORIDA 93 NEBRASKA 143 VERMONT 33 GEORGIA 94 NEVADA 147 VIRGINIA 36 HAWAII 96 NEW HAMPSHIRE 148 WASHINGTON 39 IDAHO 101 NEW JERSEY 152 WEST VIRGINIA 43 ILLINOIS 104 NEW MEXICO 153 WISCONSIN 48 INDIANA 107 NEW YORK 156 WYOMING 51 IOWA 110 NORTH CAROLINA 158 Offices 56 KANSAS 113 NORTH DAKOTA 57 KENTUCKY 115 OHIO Wilson Elser (www.wilsonelser.com) helps individuals and organizations transcend challenges and realize goals by offering an optimal balance of legal excellence and bottom-line value. More than 800 attorneys strong, Wilson Elser serves clients of all sizes, across multiple industries and around the world. Wilson Elser has 37 strategically located offices in the United States and one in London. It is also a founding member of Legalign Global, a close alliance of four of the world’s leading insurance law firms, created to assist companies doing business internationally. This depth and scale has made it one of the nation’s most influential law firms, ranked in the Am Law 200 and 53rd in the The National Law Journal’s NLJ 500. LIQUOR LIABILITY REVIEW 2019 UPDATE LIQUOR LIABILITY 2019 UPDATE ALABAMA Alabama 1. STATUTE Alabama’s Dram Shop Act, Ala. Code §6-5-71, provides as follows: (a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages. (b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator. (c) The party injured, or his legal representative, may commence a joint or separate action against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof. ALA. CODE §6-5-71 (2018). The Civil Damages Act, Alabama Code §6-5-70, provides that a parent or guardian of a minor may bring a cause of action against someone who unlawfully provides alcoholic beverages to a minor child. The person selling or furnishing the liquor to the minor must have knowledge or be chargeable with notice of knowledge of the person’s minor status. In 1994, a new statute was enacted which provides for liability to third persons who unlawfully sell or furnish alcohol or a controlled substance to a minor who then causes injury to a third person if the injury was proximately caused by the consumption of alcohol. Conviction under a criminal law relating to an unlawful sale shall conclusively establish an unlawful sale for the purposes of this statute. ALA. CODE §6-5-72(c) (2018). These statutory sections are commonly referred to as the Dram Shop Act (the “Act”). They provide for liability when alcohol is sold “contrary to the provisions of law” or “unlawfully.” Title 28 of the Alabama code regulates intoxicating liquors, and therefore, any violation of a provision of Title 28 would constitute unlawfulness under the Dram Shop Act. In addition, rules and regulations of the Alabama Alcoholic Beverage Control Board and violations thereof would also support a cause of action under the Dram Shop Act. In order to show a violation of the Dram Shop Act, the plaintiff must prove three elements: The sale [or provision of alcohol] must have 1) been contrary to the provisions of law; 2) been the cause of the intoxication; and 3) resulted in the plaintiff’s injury. Attalla Golf and Country Club, Inc. v. Harris, 601 So.2d 965, 967–68 (Ala. 1992). © 2019 Wilson Elser Moskowitz Edelman & Dicker LLP 1 LIQUOR LIABILITY 2019 UPDATE The most frequently cited provision is Ala. Admin. Code 20-X-6-.02(4)1 which provides, “[n]o ABC Board on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated.” In respect of minors, Alabama Code §28-3A-25(a)(3) makes it unlawful for any licensee, or their employees, to furnish alcoholic beverages to any person under the legal drinking age or to permit any person under the legal drinking age to consume or possess any alcoholic beverages on the licensee’s premises. Finally, trial courts recognize violations of municipal codes regulating the sale of alcoholic beverages, happy hours, etc. as consistent with the provisions of the statutes, and allowing a civil cause of action under the Dram Shop Act. It should be noted that the Alabama Supreme Court has repeatedly refused to hold a social host liable under the Dram Shop Act. See Runyans v. Littrell, 850 So.2d 244 (Ala. 2002); Williams v. Reasoner, 668 So.2d 541 (Ala. 1995); Gamble v. Neonatal Assoc., P.A., 688 So.2d 878 (Ala. Civ. App. 1997). Regarding voluntary payment or mental anguish as injuries, the court held that a parent’s voluntary payment of an adult child’s funeral expenses do not constitute an injury to the parent’s property in the context of the Dram Shop Act. Johnson v. Brunswick Riverview Club, Inc., 39 So.3d 132, 138 (Ala. 2009). Further, the court adopted the widely accepted general rule that mental anguish does not constitute an “injury in person” in the context of the Dram Shop Act. Id. at 139. 2. COMMON LAW CAUSE OF ACTION Alabama no longer allows a common law cause of action for the negligent sale of alcohol to a person who is visibly intoxicated. Such a cause of action was previously recognized by the court. Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala. 1984). In Buchanan, the court held the common law claim did not fall within the provisions of the Dram Shop Act because it was prior to the enactment of Regulation 20-X-6-.02 and, therefore, there was no law making it unlawful to serve alcohol to individuals who appeared intoxicated. The court also found a common law cause of action in Putnum v. Cromwell, 475 So.2d 524 (Ala. 1985), where the statutory language was not clear regarding selling versus providing liquor to a minor. These decisions, however, were followed by Ward v. Rhodes, Hammonds and Beck, Inc., supra, and Martin v. Watts, 508 So.2d 1136 (Ala. 1987), which held that there was no common law cause of action. The court in Ward rejected the notion that Buchanan created a new cause of action for negligently dispensing alcoholic beverages. 511 So.2d at 165. The Ward decision essentially held Buchanan and Putnum were limited to their facts. See also, Williams v. Reasoner, supra; Krupp Oil Co., Inc. v. Yeargan, et al., 665 So.2d 920, 924 (Ala. 1995). 3. STATUTE OF LIMITATIONS All actions for negligence causing death or personal injury must be brought within two years. ALA. CODE §6-2-38 (2018). 1 Regulation of the Alcoholic Beverage Control Board. © 2019 Wilson Elser Moskowitz Edelman & Dicker LLP 2 LIQUOR LIABILITY 2019 UPDATE 1 The most frequently cited provision is Ala. Admin. Code 20-X-6-.02(4) which provides, “[n]o ABC Board 4. PROPER PLAINTIFFS on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated.” In respect of minors, Alabama Code The intoxicated person does not have a cause of action under the Dram Shop Act against anyone who §28-3A-25(a)(3) makes it unlawful for any licensee, or their employees, to furnish alcoholic beverages to any person unlawfully serves him alcoholic beverages. Ward v. Rhoads, Hammonds and Beck, Inc., supra. This is also true if under the legal drinking age or to permit any person under the legal drinking age to consume or possess any the intoxicated person is a minor. Maples v. Chinese Palace, Inc., 389 So.2d 120 (Ala. 1980). In Ward, the Alabama alcoholic beverages on the licensee’s premises. Finally, trial courts recognize violations of municipal codes Supreme Court specifically held that only innocent third parties injured by an intoxicated person have a cause of regulating the sale of alcoholic beverages, happy hours, etc. as consistent with the provisions of the statutes, and action against the server of alcohol. allowing a civil cause of action under the Dram Shop Act. The minor also does not have a cause of action under the Civil Damages Act. The Civil Damages Act only It should be noted that the Alabama Supreme Court has repeatedly refused to hold a social host liable grants a cause of action to the minor’s parents or guardian. In Maples, the court held that in a case where a minor under the Dram Shop Act. See Runyans v. Littrell, 850 So.2d 244 (Ala. 2002); Williams v. Reasoner, 668 So.2d is furnished alcohol and dies in an accident proximately caused by the consumption of the alcohol, the parent is the 541 (Ala. 1995); Gamble v. Neonatal Assoc., P.A., 688 So.2d 878 (Ala.
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