Baltimore Sun, March 11, 2013:
“If you’re going to load up somebody with liquor, at least be responsible so they don’t get behind the wheel,” said the Rev. William Warr of Urbana , the child’s disabled grandfather who, with his wife, Angela, were raising Jazimen and her sister Cortavia Harris. Cortavia suffered a broken hip in the wreck.
Dogfish Head Alehouse has fought back, urging the Court of Appeals to reject the Warrs’ claim. An attorney representing the corporation that owns the tavern declined to comment on the pending case.
Bar and restaurant owners are among those watching the case closely.
Legal reporters sometimes get legal details wrong to the supreme irritation of attorneys, but this is an excellent article from Sun reporter Andrea Siegel both on the tragic events of the death of 10-year-old Jazimen Warr nearly five years ago and the appellate litigation on the issue of tavern or bartender liability for the injuries committed by their drunken patrons off-premises.
I think the industry lobbyists and the plaintiffs’ attorneys who urge the Court to impose or not to impose liability have some respectable arguments. At common law, taverns didn’t bear liability for the acts of their patrons, but their patrons generally walked home; riding a horse under a pitch-black sky isn’t easy sober and a innkeeper’s out of town visitors generally stayed the night. No one at common law had a fuel-propelled death cart, and horses can only be guided, not mechanically steered at high speed. Patrons who got drunk at a public house generally did not have a convenient way to go get more lit at another pub; while London had a few potentials for pub crawls, the sheer effort of travel on foot between pubs and ultimately back home in the dark made the pub crawl a mostly modern concept. Accordingly, an English “landlord” or barkeep in the days of the formation of the common law would likely have few drunks enter his pub on a pub crawl. Today that is quite possible in e.g. Fell’s Point.
If bars are responsible for preventing drunken driving of their patrons, they have to have a way to measure drunkenness and prevent the drunks from driving; per Peter Drucker, management requires measurement. I suppose one could mandate breathalyzers at the Bar, but their are a number of problems with that. Another could be for the bar to estimate the BAC based on the number and timing of drinks, but it could get awkward. (“Prove to me how fat you are and maybe my manager will let you have a third shot.”) The other thing that can be done is to control parking – you don’t get a ________ drink unless your designated driver is identified, your parking space, etc. But you don’t have to be a defense attorney to see multiple problems with that approach. (“Jane, come get me in my car and bring me the keys, I am driving us back.”)
We could impose draconian anti-alcohol laws, such as making it a crime to get into the driver’s seat of a car after even one drink; such were the laws in the former German Democratic Republic, but we usually do not look to Germany, let alone East Germany, for our approach to criminal justice (and almost all of Germany has a more elaborate system of urban planning and public transit than does the sprawl-it-out-baby United States.) If bars are responsible for some of their patrons’ acts, is it strict liability? Some standard of negligence or gross negligence? Is the mere violation of a liquor license rule evidence of negligence; if so, with 24 local liquor boards, we could have county-level bar negligence law in this state. Who in the bar is responsible for patron supervision on such matters? Do bouncers have to watch patrons get into the backseat, and call the police if they don’t?
The facts of this case are pretty extreme. According to the reports, the patron of the Gaithersburg Dogfish Alehouse (where I have indeed enjoyed a fine meal in good company with responsibly consumed beer) consumed perhaps 17 drinks – probably sufficient to pickle Jabba the Hutt. While if such an Olympic consumer of beer were in a large party that might be missed, no bartender is going to forget a 17-drink bar tab for one drinker. You don’t have to be a DUI attorney, an alcohol counselor, a breath tech for the police or a liquor license investigator to know that someone who drinks 17 of ANYTHING – water, diet Coke, Gatorade – is engaging in some extreme behavior. Seventeen 12-ounce beers have a total volume of over a gallon and a half. While it’s not unheard of for problem drinkers to knock down even a 24-beer case at home on an extended bender, in a bar it’s unusual enough behavior that the bar manager should have been notified that someone needed to be 86ed at probably the 9th drink or earlier (cut off and kicked out safely into the custody of a responsible adult or police officer.)
The Court of Appeals is, as a whole, not an adventurous court looking to make a mark and get written up in all of the law journals for doing something “innovative.” The Court of Appeals declined to interpret same-sex marriage to be a mandate of the equal protection clause, the due process clause or even the Maryland-specific equal rights amendment to the state constitution; it took confidence in the ability of the General Assembly to solve this problem in that matter and does so often. It is jealous of its own prerogatives and jurisdiction but often reluctant to expand it into areas where the General Assembly has not placed a boundary marker. I suspect that the Court might entertain imposing liability in cases of gross negligence only, but that is a no-money-on-the-table hunch. The decision will be a very interesting read and probably will deserve a place on the list of top 100 Maryland cases for practicing attorneys to read.