LIQUOR LIABILITY PRESENTED BY: Getman, Schulthess & Steere Three Executive Park Drive Bedford, NH (603)

Getman, Schulthess & Steere

Statutory Law: 507-F:3 Defendants.33 Any person licensed or required to be licensed under RSA 178:1, I and any employee or agent of such person who commits an act giving rise to liability, as provided in RSA 507-F:4 and 5, may be made a defendant to a claim under the provisions of this chapter. Getman, Schulthess & Steere

?Last Year’s Adjuster’s Conference?

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-F:2, I. Getman, Schulthess & Steere

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-F:2 II., 507-F:5. Getman, Schulthess & Steere

NEGLIGENCE STANDARD RSA 507-F:4 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-F:4 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. Getman, Schulthess & Steere

Wrongful Death Cases Which 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…” Getman, Schulthess & Steere

Wrongful Death Cases Which 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? Getman, Schulthess & Steere

There is No Clear Answer…But -

Wrongful Death Cases Which Standard Applies? 556:12 “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. Getman, Schulthess & Steere

Wrongful Death Cases Which Standard Applies? However – even in consortium cases, damages are reduced by the primary plaintiff’s comparative fault RSA 507:8-a “Where fault on the part of the claimant or the claimant’s 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 556:12 (II & III) “[W]here 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....”. Getman, Schulthess & Steere

NOTICE RSA 507-F:4 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-F:4(IV). Getman, Schulthess & Steere

RSA 507-F:4 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. Getman, Schulthess & Steere

RECKLESS STANDARD RSA 507-F:5 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.” Getman, Schulthess & Steere

RECKLESSNESS Recklessness can be demonstrated when: (a) Active encouragement of intoxicated persons to consume substantial amounts of alcoholic beverages. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

RSA 507-F:I(IX) “’Service of alcoholic beverage’ or ‘service’ means any sale, gift, or other furnishing of alcoholic beverages.” Getman, Schulthess & Steere

Statute is Exclusive Remedy for Negligent Claims: Because RSA 507-F:8 provides that the remedies contained in the chapter are exclusive, RSA 507–F:4 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. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

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-F:6 II. Getman, Schulthess & Steere

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

Service to minors: RSA 507-F:6 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 179:8, for all persons seeking service of alcoholic beverages who may reasonably be suspected to be minors. Getman, Schulthess & Steere

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

VALID IDENTIFICATION  A motor vehicle driver’s license;  An identification card issued by the director of motor vehicles;  An armed services identification card; and  A valid passport Getman, Schulthess & Steere

Service to intoxicated persons: RSA 507-F:6 III provides that evidence of responsible business practices may include, but is not limited to: (1)Comprehensive training of the defendant and the defendant’s employees and agents who are present at the time of service of alcoholic beverages. Getman, Schulthess & Steere

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 defendant’s premises Getman, Schulthess & Steere

(2)Promote availability of nonalcoholic beverages and food Getman, Schulthess & Steere

(3)Promote safe transportation alternatives other than driving while intoxicated Getman, Schulthess & Steere

(4)Prohibit employees and agents of defendant from consuming alcoholic beverages while acting in their capacity as employee or agent Getman, Schulthess & Steere

(7)Maintain an adequate number of trained employees and agents for the type and size of the defendant’s business Getman, Schulthess & Steere

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 507:7-d (NH’s comparative negligence statute) suggesting that RSA 507:7-d would not be applicable in actions under RSA 507-F. This issue has not yet been addressed by the NH Supreme Court. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

Privileges: RSA 507-F:7 provides privileges from tort actions which might be brought against a defendant by reason of the defendant’s attempt to engage in what the statute defines as reasonable business practices. Getman, Schulthess & Steere

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 179:8; 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 person’s intoxication. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

Privileges: 4. Enumeration of these privileges in RSA 507-F:7 does not limit a defendant licensee’s right to assert any other defense to a civil liability claim otherwise provided by law. Getman, Schulthess & Steere

SOCIAL HOST LIABILITY Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

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 disregard[ed] a substantial and unjustifiable risk’ of a high degree of danger.” Getman, Schulthess & Steere

CASE LAW Negligence v. Reckless Standards: Estate of Thompson ex rel. Kelly, N.H. Superior Court (2001) Getman, Schulthess & Steere

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. Getman, Schulthess & Steere

Don’t Drink on Your Lunch Break Getman, Schulthess & Steere

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