Attorney Article

Bar Owners Beware: The Hidden Danger of Serving “Just One More” Drink

October 25, 2017

Author: Kathryn Anne Grace

Bar Owners Beware: The Hidden Danger of Serving “Just One More” Drink - Wilson Elser - Attorney ArticleSociety has long known and countenanced the effects of alcohol on behavior. Taverns in fact flourished as places where people could go to freely alter their behavior. It then became necessary for taverns to deny service to those whose behavior was too altered, despite their pleas for “just one more drink.” The only problem is that it is difficult to tell when patrons should be protected from themselves and told “no.” But dram shop laws now may be forcing tavern owners to solve that problem quickly  or face serious unexpected consequences.

Dram shop laws make tavern owners liable for the negligent acts of their patrons under certain conditions, even long after patrons leave the tavern. But with each new dram shop law comes the renewed burden of dealing with the “just one more” problem. Sometimes even neighboring jurisdictions come up with vastly different interpretations. For example, Maryland’s dram shop law is narrower than D.C.’s, and nearby Virginia has no dram shop law at all.

In June 2017, an appellate court in New Jersey granted summary judgment to a defendant based on New Jersey’s dram shop law. In Felegi v. Stoney Brook Grille, a plaintiff was stabbed outside of a restaurant by a man who admitted to being drunk in the restaurant. On the restaurant’s motion for summary judgment, the plaintiff proffered the drunk man’s admission that he was drunk and another witness’s testimony that everyone at the restaurant was drunk. Still, the trial court granted and the appellate court affirmed summary judgment in favor of the restaurant. The New Jersey courts required direct evidence of visible intoxication or an expert report establishing visible intoxication. Instead, both the trial and appellate courts viewed plaintiff’s evidence inconsequential as to whether the drunk man appeared drunk.

However, the case may have turned out differently in the District of Columbia. D.C. does not have an express dram shop law, but D.C. Code § 25-781 imposes regulatory fines and penalties on license holders that sell or deliver alcoholic beverages to a person under 21 years of age, an intoxicated person or any person who appears to be intoxicated, or a person of notoriously intemperate habits. In addition, in 1987, the District of Columbia Court of Appeals ruled that a violation of D.C. Code § 25-781(b) can serve as the basis of a negligence action against a tavern per se because the statute was enacted for the purpose of public safety. This interpretation functionally turned D.C. Code § 25-781 into a dram shop law.

But D.C.’s “dram shop law” has told its taverns not only to deny service to visibly drunk patrons but also to patrons who are not yet visibly showing signs of being drunk. In other words, D.C. has a different answer than New Jersey does for when to avoid serving “just one more.” D.C.’s law could encompass the Felegi plaintiff’s claims because a drunk man’s affirmation that he was drunk at the time he was served could be enough to get a plaintiff past summary judgment.

D.C. § 25-781 presents unique challenges because of its public safety purpose. Therefore, dram shop decisions in other jurisdictions may be completely inapplicable in D.C. and vice versa. With D.C. trial courts left to decide many issues on their own, tavern owners and their insurers need to make sure that they strictly comply with regulatory statutes such as D.C. Code § 25-781. Otherwise, serving “just one more” to the wrong patron could leave them facing much more than they bargained for. 

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