Tuesday, May 3, 2011

Should Bartenders be Held Liable for the Behavior of their Customers?

             It happens every night in bars, clubs, and restaurants all across the country.  Thousands of people pack into their local bars and nightclubs for a variety of reasons. Some go to get hammered, some go to hang out with friends, and some go to find love, but what they all have in common is that they all will have a drink in their hand. But how do you know who’s had too much and are they going to make smart decisions after they leave? According most laws across the country, known as “Dram Shop Acts”, it is the bartender’s responsibility to monitor the patron’s intoxication level and cut them off if they have had too much. But why can’t people take responsibility for them and know their own limitations?
 The Massachusetts General Laws Part I Title XX Chapter 138 Section 69 says “No alcoholic beverage shall be sold or delivered on any premises licensed under this chapter to an intoxicated person.” ("General Laws: CHAPTER 138, Section 69") Therefore it is illegal for anyone to sell alcohol to somebody who is already drunk. Bar owners have to carry insurance to cover for these instances when a patron goes causes damage or injury because they are subject to hefty fines if found liable.
The Massachusetts General Laws state that in any hearing by a licensing authority under the first paragraph of section 64 where a licensing authority finds that a licensee under section 12 has served or sold alcohol or alcoholic beverages either to a person under 21 years of age in violation of section 64 or to an intoxicated person in violation of section 69 within the 24 months immediately preceding the date of the alleged violation that is the subject of the hearing, the licensing authority may require, in addition to imposing any other sanctions, as a condition precedent to any modification, reinstatement or renewal of the license that the licensee provide a certificate of insurance for liquor liability providing security for the liability of the licensee to a limit of not less than $100,000 to any 1 person and $200,000 to all persons; provided, however, if the licensee is required to obtain insurance coverage under said section 12, then the licensing authority may increase the limits set by said section 12. Limits imposed or increased under this section shall be set at the discretion of the licensing authorities. ("General Laws: CHAPTER 138, Section 64A")
So if a patron leaves a bar gets in his car and crashes into another car and kills somebody, the bartender and the bar owner may be found liable for the death of the other person. “In Massachusetts, someone who suffered physical injury, property damage, or consequential damage may sue a licensed liquor seller who served an intoxicated person. New Hampshire makes a seller liable if he negligently or recklessly provides alcoholic beverages to a minor or intoxicated individual. Proof that someone served without requesting proof of age is admissible as evidence of negligence.” (Duffy, "Dram Shop Acts")
One example of a lawsuit involving dram shop acts is the case of Whiddon v. Federated Mutual Insurance Company. In this case the mother on the behalf of the Plaintiff, Angela Whiddon, who was a minor, sued the owner of a liquor store. “The mother's daughter was injured while riding in a car operated by an underage driver, who got behind the wheel after buying alcohol at the owner's store. The mother filed a dram shop suit against the owner.” (138 Fed. Appx. 663, 2005 U.S. App. LEXIS 13670 (5th Cir. Miss. 2005)). In this case the mother received partial judgment in the matter.
The next example is the case of Thibodeau v. Slaney in the Supreme Judicial Court of Maine. In this example the defendant invited the plaintiff over to help stain his roof. “Before arriving at the house, appellant consumed several alcoholic beverages, and several more beers in the house. When appellant climbed on the roof to stain the peak of the house, he fell and sustained numerous injuries.”(2000 ME 116, 755 A.2d 1051, 2000 Me.) The defendant was found not liable under The Maine Liquor Liability Act due many factors including the plaintiff’s inability to prove that the statute applied to him.
This final example comes from the Supreme Judicial Court of Massachusetts. The case is Cimino v. The Milford Keg Inc. In this case a man sues The Milford Keg, a local bar, after one of their patron’s leaves the bar and runs over the plaintiff’s son on the sidewalk and kills him. According the case file, “The child's father brought actions for wrongful death, conscious pain and suffering, and negligent infliction of emotional distress.” (385 Mass. 323, 431 N.E.2d 920, 1982 Mass) The jury made a judgment for the father. Although the bar owner was found liable, the court did noted that the tavern did not owe a duty to refuse to serve liquor to an intoxicated patron unless the tavern knew or reasonably should have known that the patron was intoxicated.
In these cases it has been shown that for the most part the alcohol distributors were found liable for the actions of their patrons. This is unfair because it isn’t always black and white when it comes to determining who has had too much. It should be up to the patron’s to know their own limits. People need to take personal responsibility for themselves. If people decide to drink they should be held responsible for their actions while intoxicated, instead of relying on the bar tender to cut them off, and prevent them from getting behind the wheel of a car.
Works Cited
Duffy, Daniel. "Dram Shop Acts." OLR Research Report. 20 Dec. 2005. Web. 21 Apr. 2011. <http://www.cga.ct.gov/2005/rpt/2005-R-0922.htm>.
Cimino v. Milford Keg, Inc. , 385 Mass. 323, 431 N.E.2d 920, 1982 Mass. LEXIS 1297 (1982)
"General Laws: CHAPTER 138, Section 64A." 187th General Court of the Commonwealth of Massachusetts. Web. 21 Apr. 2011. <http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter138/Section64A>.
"General Laws: CHAPTER 138, Section 69." 187th General Court of the Commonwealth of Massachusetts. Web. 21 Apr. 2011. <http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter138/Section69>.
Thibodeau v. Slaney , 2000 ME 116, 755 A.2d 1051, 2000 Me. LEXIS 115 (2000)
Whiddon v. Federated Mut. Ins. Co. , 138 Fed. Appx. 663, 2005 U.S. App. LEXIS 13670 (5th Cir. Miss. 2005)

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