The Maryland courts have once again declined to hold tavern and bar owners responsible for the acts of their intoxicated patrons.
The Court of Appeals has held that Maryland does not recognize a cause of action against a tavern for harm caused by an intoxicated patron, off premises, in the absence of a special relationship between the tavern and the person harmed or between the tavern and the actor who caused the harm. Absent such a relationship, the court held, the tavern does not owe a duty to the injured party to prevent the harm caused by the intoxicated patron.
The issue is called dram shop liability. “Dram shop” is an archaic term for a bar or tavern. Dram shop liability refers to the potential liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer.
The court’s ruling began with a tragic auto accident in August 2008. Michael Eaton began drinking beer and liquor at 5:00 pm at the Dogfish Head Alehouse in Gaithersburg. Eaton allegedly ordered fourteen bottles of beer and two drinks of hard liquor and drank at least one other drink that was purchased for him. Eaton stopped drinking around 10 p.m. that evening and left, but returned to the Dogfish Head about forty-five minutes later and allegedly ordered three more bottles of beer and a shot of tequila. After being served the tequila, Eaton was informed by his server that he was not going to be served any more alcohol. After Eaton left the bar that night, he was involved in an accident on Interstate 270 which injured a family and led to the death of one of their daughters.
William J. Warr, Jr. and Angela T. Warr filed suit in the Circuit Court for Montgomery County against JMGM Group, LLC, which owns the Dogfish Head Alehouse, to recover damages for the injuries they and their daughter, Cortavia, suffered and for the death of their second daughter, Jazimen.
The Warrs said that Eaton had struck the car that Warr was driving and that Eaton had been served alcohol while he was “clearly intoxicated” at Dogfish Head. Because members of the Dogfish Head’s staff had served Eaton alcohol while he was so compromised, the Warrs alleged, the tavern had breached its duty to them to “not furnish alcohol to intoxicated persons.”
The Warrs claimed five causes of action in their complaint, all related to negligence. In each count, the theory of liability was that Dogfish Head had a duty to refuse to provide alcoholic beverages to an individual who was either visibly intoxicated or who was considered a “habitual drunkard.” The Warrs told the trial court that the employees of Dogfish Head knew that Eaton was a “habitual drunkard” and that they knew, or should have known, that he was visibly intoxicated and, yet, they still served him alcohol, which was the cause of the accident.
A finding of negligence requires that the following elements be proved: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury resulted from the defendant’s breach of the duty. Duty is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.”
In granting Dogfish Head’s request to throw the case out of court, the trial court judge said he was bound by previous court decisions in which dram shop liability was not recognized as a cause of action in Maryland. He also said that the circuit court was not the appropriate forum for making a radical change in the state’s common law.
The Warrs asked the Court of Special Appeals to review the decision; but, before the case could be heard in the intermediate appellate court, the Court of Appeals decided that it would take the case to consider whether it should recognize dram shop liability.
After noting that it had failed to adopt dram shop liability in 1951 and in 1981, the court relied on a case decided last year — Barclay v. Briscoe — in reasoning that, absent a special relationship, there was no duty on the tavern to control Eaton’s behavior – a necessity for the Warrs’ case. “Our most recent pronouncement in which we did not define a duty to the general public with respect to harm caused by a third party was Barclay v. Briscoe,” the court noted.
In Barclay, the court was asked to consider whether an employer was liable to an injured motorist when an employee, who had been working for 22 hours, was involved in a car accident on his way home. The duty to the public that was asserted was based on the argument that the employer was liable to the public for failing to prevent the risk that a fatigued employee posed to the motoring public. “We noted that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a special relationship exists either between the actor and the third person or between the actor and the person injured,” the court said. The court also observed that it had expressly stated that the fact that an actor realizes or should realize that an action on his part was necessary for another’s aid or protection does not impose a duty to take such action.
The concept of special relationships, then, between the party sued and the injured party is the important point in determinations of liability in third party duty cases, the court said, adding that it had consistently recognized that, in the absence of control or a special relationship, there can be no duty to an injured person for harm caused by a third party. The court noted that the Warrs had not alleged a special relationship between Eaton and the bar.
The court concluded that Dogfish Head did not owe a duty to the Warrs because it provided alcohol to Eaton. “Simply put, we just do not recognize a duty; instead we adhere to the principle that human beings, drunk or sober, are responsible for their own torts,” the court said.
The court’s decision was not unanimous. Several judges signed off on a lengthy dissent.
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