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On dram shop liability in Maryland

For decades now, Maryland courts have made clear that they will not usurp the role of the legislature and create dram shop liability when the legislature has declined to do so.

The argument against dram shop liability is that a person, drunk or sober, should be responsible for his own behavior. We can’t expect taverns to babysit their patrons and, as is often argued, the conduct of the tavern is too far attenuated from the harm to reasonably attribute causation to the tavern.

But recent Maryland cases seem to demand that there be some line upon which we tell those who serve alcohol to intoxicated persons that they cannot cross. There has to be some accountability for a situation that is created or made worse by the action or inaction of the tavern.

Recently, The Daily Record reported on another case in Maryland that may change precedent with regard to the potential liability of taverns. That case involved a claim against Seacrets, a restaurant/bar/night club in Ocean City, stemming from allegations that an ejected patron was assaulted and raped in the Seacrets’ parking lot.

Video surveillance showed the patron was so intoxicated that she was swaying and ultimately fell over. A Seacrets employee helped her up and escorted her out of the bar and to the parking lot, where she was later attacked.

Seacrets filed a motion for summary judgment, arguing that it did not own the premises on which the patron was assaulted, Maryland does not recognize dram shop liability and the patron was contributorily negligent and assumed the risk.

That motion was denied in the U.S. District Court because the court found that a jury could reasonably conclude that the patron would not have been attacked had Seacrets followed procedures.

The court found that a jury could conclude the harm sustained by the plaintiff was reasonably foreseeable because the tavern kicked her out of the bar without doing anything to connect her with her friends or belongings.

So was this really a dram shop case or a different animal altogether?

It seems that the federal court’s view of the potential liability of Seacrets arose from its conduct in ejecting a severely intoxicated patron out of the establishment “without any means by which to safely return to her hotel” and not solely from the over-service of alcohol to an intoxicated patron. The federal court spoke of “foreseeability,” bar policies and common sense.

It is clear that the federal court wasn’t recognizing dram shop liability in Maryland but that the plaintiff had sufficiently alleged a cause of action for negligence against Seacrets.

In 2011, the Maryland Court of Special Appeals made the very same distinction between dram shop liability and negligence.

In Troxel v. Iguana Cantina, the plaintiff brought suit against a tavern for injuries he sustained as a result of a physical altercation with intoxicated, underage patrons.

The tavern filed a motion for summary judgment arguing that Maryland does not recognize dram shop liability and that the plaintiff failed to state a cause of action for negligence. The trial court granted the tavern’s motion.

The Court of Special Appeals disagreed, finding the plaintiff sufficiently alleged that Iguana Cantina allowed a dangerous condition to exist on its premises- increased violence on college nights at the tavern. The court found the plaintiff sufficiently alleged facts upon which relief could be granted under a premises liability theory of negligence.

The court cited to the Supreme Court of Delaware, which said that although a cause of action for dram shop liability should not be judicially created, this does not “foreclose the liability of everyone who serves alcohol to an intoxicated person.”

There is a possibility that Maryland will do more than to recognize the potential for tavern premises liability.

The Maryland Court of Appeals is set to hear oral argument in March on another case that may affect Maryland common law with regard to dram shop liability. In Warr, et al. v. JMGM Group, LLC, it was alleged that a patron spent nearly 6 hours at a tavern, consumed 20 alcoholic beverages, left the bar and was involved in an accident that killed one and injured three others.

If Court of Appeals finds in favor of the plaintiffs in Warr, there is no question that cases like Troxel and Seacrets become more easily won by the plaintiffs.

But even without dram shop liability in Maryland, there seems to be a growing trend of Maryland cases recognizing tavern liability when there is additional action or inaction by the tavern that contributes to the occurrence or makes the situation worse.

This trend is appropriate — taverns shouldn’t be insulated from liability simply because they serve alcohol. If they are negligent and create or contribute to a dangerous situation, they should be liable to their patron and/or third parties injured as a result.


  1. As an attorney who does liquor licensing work, I would tell those who might not know that all places that serve alcohol are licensed by local boards. It is against the law to serve intoxiczted or underage patrons. While the court system is considering whether to impose dram shop liability, certainly any citizen of the county where incidents as described above should contact the local liquor board to find out what they are doing about an establishment that seems to have been involved in such an incident. The board can hold a hearing to determine whether the establishment, if guilty, should be fined, have their license to sell suspended (which is a financial burden) or even have their liquor license revoked, which basically puts the establishment out of business. It seems there are rarely any articles about what local boards did when licensed establishments are involved in incidents such as these

  2. Could not disagree more. Somehow personal responsibility is an endangered species.

  3. Great article, Sarah. What some commentators fail to notice is that the theory of liability in the Troxel and Seacrets is collateral to the Dram Shop theory. Rather, the establishment, through action or inaction, created a risk nearly independant of the actual consumption of alcohol. The fact that the plaintiff in Seacrets was drunk is important, but she could have consumed the alcohol anywhere. Same with Troxel. The source of the alcohol is immaterial; it was the fact that a bunch of underage knuckleheads weren’t removed by bar staff and/or Iguana Cantina had inadequate security. Again, collateral issues.