Presenting a live 90-minute webinar with interactive Q&A Dram Shop Liability: Bar, Restaurant and Individual Exposure for Over-Serving Customers and Guests WEDNESDAY , AUGUST 7, 2019 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Drew Hamilton Butler, Shareholder, Richardson Plowden , Charleston & Columbia, S.C. David Lail, Attorney, Yarborough Applegate Law Firm , Charleston, S.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1 .
Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 2.
Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: • Click on the ^ symbol next to “Conference Materials” in the middle of the left- hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. • Print the slides by clicking on the printer icon.
Dram Shop Cases David Lail, Esq. 5 dlail@yarboroughapplegate.com
The Problem 6
Drunk Driving 7
SC : 2 nd in Nation for Drunk Driving Deaths 8
9
The Other Problem 10
Bars Getting Drivers Drunk 11
It is ILLEGAL to Get Patrons Drunk 12
Bars Putting Drunks on the Road 13
The Solution 14
Criminal Side: DUI Convictions 15
Civil Side: Helping Victims & Families 16
Dram Shop Cases 17
What is a “Dram”? A “dram” is a small unit of liquid, and historically, the term was used to describe a small drink of alcohol . 18
What is a “Dram Shop”? 19
“Dram Shop” Law • The area of law that is focused on civil liability in connection with the sale, service, and consumption of alcohol. • In South Carolina, “Dram Shop” Law includes: • “Tavern Liability” • “Liquor Liability” • “Alcohol Liability” • “Social Host Liability” 20
Dram Shop Acts State specific legislation creating civil liability 21
South Carolina NO “Dram Shop Act” 22
The “Dram Shop” Statutes 1. 61-4-580 2. 61-6-2220 3. 61-4-50 4. 61-4-90 5. 61-6-4070 23
§ 61-4-580. Prohibited acts. (A) No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit: (1) sell beer or wine to a person under twenty- one years of age ; (2) sell beer or wine to an intoxicated person ; 24
§ 61-6-2220. Sales to intoxicated persons. A person or establishment licensed to sell alcoholic liquors or liquor by the drink pursuant to this article may not sell these beverages to persons in an intoxicated condition ; these sales are considered violations of the provisions thereof and subject to the penalties contained herein. 25
§ 61-4-50. Sales to underage persons. (A) It is unlawful for a person to sell beer, ale, porter, wine, or other similar malt or fermented beverage to a person under twenty-one years of age. 26
§ 61-4-90. Transfer of beer or wine for underage person’s consumption. (A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of beer or wine in the State…. 27
§ 61-6-4070. Transfer to person under the age of twenty-one years. (A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of alcoholic liquors in the State…. 28
Where do “Dram Shop” Laws Apply? 29
Insurance Coverage! S.C. Dram Shop Bill (S. 116), July 1, 2017 • Requires establishments licensed or permitted to sell alcoholic beverages for on-premises consumption after 5:00 P.M. to maintain liquor liability insurance of at least $1 million . • Applies to both new applicants for liquor permits and licenses, as well as those renewing permits or licenses. 30
Basis for Civil Liability Commercial Civil liability for injuries related to the commercial sale or service of alcohol arises out of violations of 31 state criminal alcohol control statutes.
Basis for Civil Liability Non-Commercial – “Social Host” Civil liability related to the non-commercial provision of alcohol, or social host liability , is 32 based on common law duties – not statutes .
Key Legal Distinctions How to determine whether or not dram shop liability exists 33
Is there a dram shop case? • Who is the Defendant? • Commercial or Non-Commercial? • How old is the Plaintiff? • Adult or Underage? • What type of Plaintiff ? • 1 st Party or 3 rd Party? 34
Commercial Defendant Violations of the “Dram Shop Statutes” 35
Negligence Cause of Action • “Dram Shop Statute” = DUTY • Violation of the Statute = BREACH 36 • Constitutes proof of negligence per se
1 st Party vs. 3 rd Party Commercial Provider Setting: key distinctions under the law 37
Purpose of Dram Shop Liability The purpose of recognizing a private cause of action based on a violation of South Carolina’s dram shop statutes has been to: “ promote public safety , and to prevent an already intoxicated person from becoming even more intoxicated, and thus an even greater risk to the public at large, when he leaves the establishment.” Tobias v. Sports Club, Inc. HOWEVER. . . 38
Limitations on Liability HOWEVER. . . the South Carolina Supreme Court has also held that: “public policy is not served by allowing the intoxicated adult patron to maintain a suit for injuries which result from his own conduct .” Tobias v. Sports Club, Inc . 39
The Statutory Violation Proving a statutory violation to establish the breach 40
The Question (Most Often) Did the bar “knowingly” sell alcohol to an “intoxicated person”? See § 61-4-580 41
Best Place to Start Hartfield v. Getaway Lounge & Grill, Inc. 42
Hartfield - Facts • After visiting visited 3 bars one evening, the second of which was the Getaway Lounge, Hoyt Helton drove his car across the center line and struck another car in which John Erik Hartfield was a passenger. • Helton died at the scene. • Hartfield was transported from the crash scene by helicopter with severe injuries. • SLED toxicologist recorded Helton’s blood 43 alcohol content (BAC) at .212.
Hartfield - Verdict • The trial court granted a directed verdict motion for the first bar Helton visited and the jury could not reach a verdict against the third establishment. • The Supreme Court upheld the $10 million jury award and also affirmed the trial court’s decision to permit Hartfield and his father to pierce the corporate veil of the 44 Getaway Lounge.
Hartfield – Key Evidentiary Takeaways • Expert testimony to determine how many beers Helton would have to have consumed over the hours prior to the crash to reach a BAC of .212 • Sufficient circumstantial evidence presented to provide reasonable support for Expert’s testimony which was properly admitted - .i.e.., timeline; drunken voicemail; testimony on amount of alcohol consumed; etc. 45
Hartfield – Key Evidentiary Takeaways • Trial court charged the jury on a “permissive inference that a person was under the influence of alcohol when that person has a blood alcohol of .10 percent or greater.” • “…The civil remedy is predicated on criminal statutes, thus it should be permissible for a trial judge to charge on the permissive inference of intoxication under our 46 criminal statutes….”
Recommend
More recommend
