LIQUOR LIABILITY

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LIQUOR LIABILITY

• PRESENTED BY
• Getman, Schulthess Steere
• Three Executive Park Drive
• Bedford, NH 03110
• [phone]

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Statutory Law

• 507-F3 Defendants.33
• Any person licensed or required to be
• licensed under RSA 1781, I and any
• employee or agent of such person
• who commits an act giving rise to
• liability, as provided in RSA 507-F4
• and 5, may be made a defendant to a
• claim under the provisions of this
• chapter.

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?Last Years Adjusters Conference?
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Who can bring suit

• RSA 507-F separates plaintiffs into 2 classes
• 1. Any person damaged by the negligent service of
  alcoholic beverages (except for the person who
  becomes intoxicated) as a result of the conduct
  of an intoxicated patron of a licensee may bring
  action against the server of the alcoholic
  beverages. RSA 507-F2, I.

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• 2. The intoxicated person may bring suit.
  Although a person who becomes intoxicated may not
  bring an action for negligent service of
  alcoholic beverages against the person or entity
  that served him the beverage, he may bring such
  action when the service of the beverages was
  reckless. RSA 507-F2 II., 507-F5.

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NEGLIGENCE STANDARD

• RSA 507-F4 applies to cases involving an
  innocent third party
• who is injured by an individual who was over
  served alcohol by
• the defendant. A defendant may be liable under
  RSA 507-F4 when
• the defendant knows or if a reasonably prudent
  person in like
• circumstances would know that the person being
  served is a
• minor or is intoxicated.
• This a negligence standard.

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Wrongful Death CasesWhich Standard Applies?

• The Statute
• a person who becomes intoxicated may not
  bring an action for negligent service of
  alcoholic beverages against the person or entity
  that served him the beverage, he may bring such
  action when the service of the beverages was
  reckless

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Wrongful Death CasesWhich Standard Applies?

• Are estates and consortium plaintiffs considered
  to have inherited the standard that would apply
  to the decedent when he is the one who
  over-consumed alcohol?

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There is No Clear AnswerBut -
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Wrongful Death CasesWhich Standard Applies?

• 55612 Damages for Wrongful Death, Elements
• Estate damages are based on the injury suffered
• by the decedent.
• BUT
• Consortium damages are based on the injury
  suffered to the consortium plaintiff.

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Wrongful Death CasesWhich Standard Applies?

• However even in consortium cases, damages are
  reduced by the primary plaintiffs comparative
  fault
• RSA 5078-a Where fault on the part of the
  claimant or the claimants spouse is found to
  have caused, in whole or in part, the injury to
  the spouse on which the claim for loss of
  impairment of consortium is based, damages
  recoverable shall be subject to diminution . . .
  .
• RSA 55612 (II III) Where fault on the part
  of the decedent . . . is found to have caused, in
  whole or in part, the loss complained of, damages
  recoverable shall be subject to diminution . . .
  .. 

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NOTICE

• RSA 507-F4 further provides that
• VII. A defendant is not under a duty to recognize
  signs
• of a person's intoxication other than those
  normally
• associated with the consumption of alcoholic
• beverages except for intoxication resulting in
  whole or
• in part from other drugs consumed on defendant's
• premises with defendant's actual or constructive
• knowledge.
• RSA 507-F4(IV).

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RSA 507-F4 V No Duty to Investigate
A defendant does not have a duty to investigate
whether a person being served alcoholic beverages
intends to serve the alcoholic beverages to other
persons off the premises.
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RECKLESS STANDARD

• RSA 507-F5 provides that a person who becomes
• intoxicated may bring an action against a
  defendant for
• serving alcoholic beverages only when the server
  of such
• beverages is RECKLESS.

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RECKLESSNESS

• Recklessness can be demonstrated when
• (a) Active encouragement of intoxicated persons
  to consume substantial amounts of alcoholic
  beverages.

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RECKLESSNESS

• (b) Service of alcoholic beverages to a person,
  16 years of age or under, when the server knows
  or should reasonably know the patron's age.

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RECKLESSNESS

• (c) Service of alcoholic beverages to a patron
  that is so continuous and excessive that it
  creates a substantial risk of death by alcohol
  poisoning.

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RECKLESSNESS

• (d) The active assistance by a defendant of a
  patron into a motor vehicle when the patron is so
  intoxicated that such assistance is required, and
  the defendant knows or should know that the
  intoxicated person intends to operate the motor
  vehicle.

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RSA 507-FI(IX)

• Service of alcoholic beverage or service
• means any sale, gift, or other furnishing of
• alcoholic beverages.

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Statute is Exclusive Remedy for Negligent Claims

• Because RSA 507-F8 provides that the
• remedies contained in the chapter are
• exclusive, RSA 507F4 supersedes the
• common law to the extent that the
• elements of the action under the statute
• differ from the elements of a common law
• action for negligent service.

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Defenses Responsible business practice defense

• Service of alcoholic beverages is not
• negligent or reckless if the defendant, at
• the time of the service, is adhering to
• responsible business practice.

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• Responsible business practices are those
• business policies, procedures, and actions,
• which an ordinarily prudent person would
• follow in like circumstances.
• a. Service of alcoholic beverages to a person,
  with actual knowledge that the person is a minor
  or is intoxicated, is not a responsible business
  practice. RSA 507-F6 II.

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• b. Evidence of responsible business practices is
  relevant in determining whether a defendant who
  does not have actual knowledge of a plaintiffs
  age or intoxicated condition should have known
  the age or intoxicated condition of the person.

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Service to minors

• RSA 507-F6 VI provides that evidence of
• responsible business practice includes but
• is not limited to
• (1) Management policies, which assure the
  examination of proof of age as required by RSA
  1798, for all persons seeking service of
  alcoholic beverages who may reasonably be
  suspected to be minors.

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Service to minors

• (2) Comprehensive training of employees who are
  responsible for such examination regarding the
  detection of false or altered identification.

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VALID IDENTIFICATION

• A motor vehicle drivers license
• An identification card issued by the director of
  motor vehicles
• An armed services identification card and
• A valid passport

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Service to intoxicated persons

• RSA 507-F6 III provides that evidence of
  responsible
• business practices may include, but is not
  limited to
• (1) Comprehensive training of the defendant and
  the defendants employees and agents who are
  present at the time of service of alcoholic
  beverages.

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Evidence of responsible management policies,
procedures, and actions

• Includes, but is not limited to, policies,
  procedures, and
• actions which
• (1) Encourage persons not to become intoxicated
  if they consume alcoholic beverages on the
  defendants premises

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• (2) Promote availability of nonalcoholic
  beverages and food

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• (3) Promote safe transportation alternatives
  other than driving while intoxicated

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• (4) Prohibit employees and agents of defendant
  from consuming alcoholic beverages while acting
  in their capacity as employee or agent

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• (7) Maintain an adequate number of trained
  employees and agents for the type and size of the
  defendants business

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Defenses Comparative Negligence

• Prior to passage of RSA 507-F, this defense was
  available to
• common-law actions against liquor licensees for
  negligent
• service of alcoholic beverages. See Ramsey v.
  Anctil, 106
• N.H. 375 (1965).
• There is nothing in the language of RSA 507-F or
  RSA 5077-d
• (NHs comparative negligence statute) suggesting
  that RSA
• 5077-d would not be applicable in actions under
  RSA 507-F.
• This issue has not yet been addressed by the NH
• Supreme Court.

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Defenses Defense of Complicity

• (1) This is a defense recognized under the dram
  shop acts in most jurisdictions
• (2) One who has participated in bringing about
  the intoxication of another cannot recover
  against the tavern keeper
• (3) Rationale A civil damage act does not
  contemplate giving a remedy to one who joins in
  or participates in contributing to the violation
  of it.
• (4) The issue of the availability of this defense
  in actions under RSA 507-F has not yet been
  addressed by the NH Supreme Court.

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Privileges

• RSA 507-F7 provides privileges from
• tort actions which might be brought
• against a defendant by reason of the
• defendants attempt to engage in
• what the statute defines as
• reasonable business practices.

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Privileges

• 1. No licensee may be held civilly liable for
  damages
• resulting from the refusal to serve alcoholic
  beverages to
• any person who fails to show proof of age as
  required by
• RSA 1798 appears to a reasonable person to be a
  
• minor or is refused service of alcoholic
  beverages by a
• defendant in a good faith effort to prevent that
  persons
• intoxication.

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Privileges

• 2. No licensee may be held civilly liable for
  retaining
• documents presented as proof of age, provided
  such
• retention is for a reasonable length of time in a
  good faith
• effort to determine whether the person is of
  legal age or
• to notify law enforcement authorities of a
  suspected
• violation of law.

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Privileges

• 3. No licensee may be held civilly liable for
  using
• reasonable force to detain a person who is
  attempting to
• operate a motor vehicle while intoxicated for a
  reasonable
• period of time necessary to summon law
  enforcement
• officers.

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Privileges

• 4. Enumeration of these privileges in RSA
  507-F7
• does not limit a defendant licensees right to
  assert any
• other defense to a civil liability claim
  otherwise provided
• by law.

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SOCIAL HOST LIABILITY
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SOCIAL HOST LIABILITY

• Common Law
• Hickingbotham v. Burke,
  140 N.H. 28, 662 A.2d 297
• (1995)
• FACTS The defendants hosted a Halloween party
  at their residence
• and served plaintiff Hickingbotham alcoholic
  beverages during the
• party, including beer from a keg, and continued
  to provide him with
• alcohol throughout the evening, even though they
  knew or should have
• known that he was under the age of twenty-one and
  becoming
• increasingly intoxicated. Hickingbotham left the
  party in a motor vehicle
• and was involved in an accident. He sued the
  defendants, Bonnie Burke
• and Mark Vemullan, alleging that they, as social
  hosts, were liable for
• injuries he suffered after they served him
  alcohol at a party held at their
• home.

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HOLDING

• We hold that a plaintiff who is injured as a
  result of
• a social host's service of alcohol may maintain
  an
• action against that social host, so long as the
  plaintiff
• can allege that the service was reckless. A
  social
• host's service of alcohol would be reckless if
  the host
• consciously disregarded a substantial and
• unjustifiable risk of a high degree of danger.

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CASE LAW

• Negligence v. Reckless Standards
• Estate of Thompson ex rel. Kelly, N.H.
• Superior Court (2001)

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Innocent third parties need only prove negligence
in cases alleging social host liability.

• The statute distinguishes between the person who
  consumes the alcohol and third parties,
  permitting the former to recover only when a
  defendant's provision of alcohol is reckless, but
  allowing the latter to recover in cases involving
  mere negligence. Public policy supports such a
  distinction because an innocent third party
  should be able to recover upon a lesser showing
  than a guest or employee, who must bear some
  responsibility for his or her own voluntary
  intoxication.

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• Dont Drink on Your Lunch Break

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