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All Things In Moderation:
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Lawyers Weekly Press

Trend Seen By Some In Liability For Liquor Service

Establishing liability in cases involving alcohol-related deaths and injuries can be a daunting task for plaintiffs' lawyers.

However, recent cases indicate that the challenge of convincing a skeptical court that the tavern or restaurant that served drinks to an offending individual should be charged with responsibility is not impossible to meet.

The Supreme Judicial Court and the Appeals Court have issued decisions in recent months in which both a country club and a bar were held accountable for alcohol-related mishaps that occurred after patrons became drunk.

Attorneys who handle liquor liability matters indicated that there may be a pattern in this area on the part of judges and juries toward holding liquor establishments accountable.

This apparent trend comes despite hesitancy evidenced by Massachusetts courts in holding homeowners liable for "social host" liability.

"I think there is [a trend]," said Boston lawyer David P. Dwork, who in 1995 settled a liquor liability case against a bar for more than half-million dollars. "Juries don't have sympathies for bars serving intoxicated people. Those are claims that juries can empathize with."

Attorney Leonard C. Reizfeld of New Haven, Conn., who represented the plaintiff in the recent Appeals Court decision that took up this issue, added that "courts are more aware of alcohol being a problem. ... The key is holding someone accountable. The problem with bars is that bartenders work on tips. There's a built-in incentive to over serve."

Head To Tobin

In February, the SJC decided Tobin, et al. v. Norwood Country Club, Inc. (Lawyers Weekly No. 10-034-96), a suit brought by the executor of a minor who became intoxicated after consuming drinks purchased by other guests at a private party. After leaving the defendant country club the minor was later killed by a car when she walked onto a highway.

The court ruled that the club owed the deceased minor a duty of care to refrain from making alcohol available to her and that it was foreseeable that she was receiving alcohol through other guests, even though there was no "hand-to-hand" selling or serving of alcohol.

According to Arthur F. Licata of Boston, who represented the plaintiff in Tobin, the case -- at the least -- is part of a trend in the area of underage drinking.

"As recently as 10 years ago alcohol was a rite of passage for young people," Licata observed. "But now it's too costly in life [for courts to tolerate]."

Licata cited a report issued by the office of Gov. William F. Weld last summer concluding that underage drinking in the commonwealth is "extremely prevalent" -- one in four liquor licensees were found to serve minors -- and that lawmakers, police forces, communities and government agencies should turn their attention to this problem.

David Ramsay of the Office of Consumer Affairs and Business Regulation reported that a bill calling for stricter penalties for underage drinking, H 38, has been passed by the Massachusetts House and is currently in the Senate.

The Tobin decision "definitely paves the way in terms of problems of proof," noted Braintree practitioner Frank Riccio, who obtained a $4.75 million liquor liability verdict in 1994.

Riccio noted the significance of the SJC not being dissuaded by the lack of evidence that the minor had received liquor directly from country club.

"The SJC looked at the totality of the circumstances. Where the facts are such that they are clearly negligent, that's enough to put them on the hook," he added.

Open Graves

Last month, the Appeals Court rendered its decision in Gottlin, et al. v. Graves, et al. (Lawyers Weekly No. 11-053-96), upholding a jury's finding of negligence after a woman, who had been drinking at the defendant tavern, accepted a ride home from an apparently intoxicated fellow patron and was severely injured when the man's car hit a tree.

The court concluded that, given the evidence presented, a rational juror could have concluded from the evidence that the bartender should have known that the man was intoxicated when she served him his last beer.

Reizfeld, who, with cocounsel Paul M. Novak of Worcester, represented the plaintiff in Gottlin, said that there was ample evidence that the bartender had over served a number of patrons that evening.

According to Reizfeld, the standard that courts require taverns to meet may not be strict enough.

"I don't think it's enough of a burden on them," he stated, noting that a major uproar would ensue if pharmacists dispensed drugs in the same manner that bartenders serve drinks. "Alcohol is no less of a drug than Percocet," he stated.

But Jack D. Curtiss of Greenfield, who handled the case for the defendant in Gottlin, noted that the jury actually found the bartender just 15 percent negligent, and the driver of the car 85 percent negligent.

However, due to provisions regarding joint and several liability, the bar was held accountable for the full amount of the damages.

"I think that jurors are probably reluctant to impose liability on bars," related Curtiss, who added that he has heard jurors make comments indicating that a person who has become intoxicated at a bar should be responsible for his actions thereafter.

Licata pointed out that Gottlin may have dispelled any confusion among practitioners as to the standard to which bartenders must adhere.

"There's no question that it's `should have known,'" Licata affirmed, referring to the Gottlin court stressing that actual knowledge was not a prerequisite to liability.

Dram Shop Lifting

The key to establishing liability in dram shop cases, practitioners said, is marshalling enough details to convince a judge or jury that the establishment should have been aware that patrons were becoming intoxicated.

"These are very fact-specific cases," stated Licata. "Juries are conservative, but they are just so affronted by the disregard [of the law] by some of these commercial establishments."

However, a case brought on behalf of an innocent third party injured by a drunk driver and one brought on behalf of a drunk driver for his or her own injuries pose two very different scenarios, lawyers indicated.

"Juries don't have sympathy for one who gets drunk and then gets injured," offered Philip E. Murray, who represented the defendant in Tobin. "They take a more strict look at the evidence. You have a fear of the emotional effect in those cases."

Novak revealed that in Gottlin his client had been drinking on the night in question and was "nearly comatose," a detail that may have made the jury less sympathetic to the woman who was a passenger in the car when the accident occurred -- and a detail that was precluded from evidence by the judge.

"Clearly a jury would have taken that into account," he added.

Licata noted that, pursuant to G.L. c. 231, § 85T, an intoxicated person who person injures himself after drinking at the establishment of a liquor licensee may only bring suit if the licensee's behavior was "wilful, wanton or reckless."

"Right there, that's a hurdle," he said.

Beast Of Burden

One of the policy arguments that attorneys practicing in this area have had to contend with is whether taverns, bars and the like should bear the burden of responsibility for liquor-related injuries and deaths.

"I have no doubt that they're the gatekeepers," Curtiss offered. "There's a tremendous responsibility on their shoulders."

Even though he perceived no pro-plaintiff trend in liquor liability cases, Curtiss said that "just one case [against a bar] probably scares people."

Murray noted that since Tobin he has received many phone calls from licensees who may be reconsidering whether it is prudent for them to serve booze.

"A number have decided that they're not going to hold functions anymore," he stated.

Dwork pointed out that "the argument is that [licensees] are in the best position to control intoxication. ... It's incumbent upon them to recognize that they have an obligation."

Riccio agreed that liquor-dispensing establishments should be recognized as those in the best position to determine who is drunk and who is not.

The recent decisions, according to Riccio, mean only that bars and taverns are "going to have to do what they're supposed to do."

A bartender's or tavern proprietor's duty to patrons is appropriately more strict than that of a "social host," or a private individual hosting a party at a residence, said lawyers.

"You're dealing with a layperson," said Novak. "Whether they know what the law is [as compared to a] commercial establishment, who is in the business of distributing liquor, that's a big leap."

Licata agreed that holding party hosts to the same strict rules as taverns would be illogical.

"That's where the courts have been more cautious," he stated. "We don't want to go to prohibition."

The Boston, Massachusetts Personal Injury Law firm of Arthur F. Licata, P.C. handles Lawyers Weekly Press for clients throughout Massachusetts including Suffolk County, Norfolk County, Plymouth County, Middlesex County, Worcester County, and Essex County, and cities such as Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy. Mr. Licata is also admitted to practice in the state of New York. He routinely takes cases by referral from other attorneys located throughout the New England region and the United States.

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