In its first look at the issue in more than 30 years, Maryland’s high court on Thursday affirmed that bars cannot be held liable for the harm their drunk customers cause after leaving their premises.
If Maryland is to join the 44 other jurisdictions that impose some form of dram-shop liability, the change must come from the legislature, the Court of Appeals held.
With its decision, which found Dogfish Head Alehouse Gaithersburg was not liable for the death of a 10-year-old girl, attention now shifts to the General Assembly — which has in recent years rejected such legislation.
Del. Luiz R.S. Simmons, who has proposed dram-shop liability bills in recent years, held out little hope for immediate change.
“The liquor lobby has a phalanx of lobbyists who are aligned against any change in the law,” said Simmons, D-Montgomery. “I don’t see any change next year.”
Simmons, however, voiced hope that the November 2014 elections will bring “significant enough change in the General Assembly” to weaken the lobby’s grasp and permit a “moderate” dram-shop liability measure to be enacted. The legislation could perhaps include a cap on damages and proof of liability based on the high standard of “clear and convincing evidence,” unusual in a civil action, Simmons said.
“I have come to believe that some moderate form of dram-shop liability is an essential instrument to help deter drunk driving and the carnage on the roads,” he added.
J. Steven Wise, a lobbyist for the Maryland State Licensed Beverage Association, which represents bars, did not return telephone messages seeking comment on Simmons’ remarks Thursday. Wise, an attorney, is with Schwartz, Metz & Wise P.A. in Annapolis.
Simmons’ comments came after the Court of Appeals, which created the current standard in 1951 and last considered the issue in 1981, on Thursday declined to change it by a single vote.
The 4-3 decision rejected arguments from William and Angela Warr’s lawyer that bars have a duty not to serve anyone who is visibly drunk due to the foreseeable consequence that he or she will soon be driving away and cause a collision that kills or maims someone.
“In this case, the Warrs do not assert any relationship existed between themselves and Dogfish Head, and, therefore, there cannot be a duty owed to them by the tavern with respect to the harm caused by a third person,” Judge Lynne A. Battaglia wrote for the majority. “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.”
Battaglia’s 33-page majority opinion drew an angry 64-page dissent from Judge Sally D. Adkins, who accused the court of “a fundamental misunderstanding of the duty of care.”
“I would hold that the common law of Maryland imposes an ordinary duty of reasonable care on a commercial vendor of alcohol not to continue to serve alcohol to any person ‘visibly under the influence of alcohol,’” Adkins wrote.
“It is reasonably foreseeable that a patron visibly under the influence of alcohol may drink and drive and cause a serious accident due to the effects of alcohol,” she added. “The conduct of a tavern in selling to visibly intoxicated persons is morally blameworthy and imposing this duty simply invokes a common-law remedy to increase compliance with existing obligations of the tavern.”
The Warrs’ attorney, John Vail, also assailed the decision, saying the Court of Appeals has “renewed the license of Maryland bars to kill one person every month.”
Vail called it “very frustrating” for an appellate attorney to come within a single judge’s vote of enabling bars to be held liable for drunk-driving deaths.
“It’s particularly hard because … I got a chance to meet the Warr family and saw how devastated they were by this and how much they wanted to hold the bar responsible for the damage it did,” said Vail, of the Center for Constitutional Litigation P.C. in Washington.
Robert B. Hetherington, attorney for Dogfish Head Alehouse’s owner, JMGM Group LLC, did not return telephone and email messages seeking comment Thursday. Hetherington is with McCarthy Wilson LLP in Rockville.
Forty-three states and the District of Columbia have some form of dram-shop liability, although several states limit it to liability for serving minors, according to a tally by Mothers Against Drunk Driving.
In their $3.2 million lawsuit, the Warrs alleged that the Dogfish Head Alehouse negligently sold alcohol to Michael Eaton when he was already drunk, then allowed him to drive off in his Land Rover on Aug. 21, 2008.
The Warrs claimed he had started a tab at 5 p.m. and did not close it until 10:45 p.m., only to begin another one a short time later. Employees refused to serve Eaton after he became aggressive and violent, but they did not stop him from driving away, the lawsuit alleged.
According to the complaint, Eaton sped at 100 mph on I-270 in Rockville and crashed into the Jeep Cherokee being driven by William Warr, injuring him and killing his granddaughter Jazimen. The crash also seriously injured Angela Warr and another granddaughter, Cortavia Harris.
Eaton drove 1,000 feet beyond the crash and called 911 to report he had hurt his arm in an accident. He mentioned no other injuries before ending the call and driving away, prosecutors said in the criminal case against him.
Eaton, who was not party to the lawsuit, was convicted of vehicular manslaughter and leaving the scene of an accident involving injury. He was sentenced to 20 years in prison, with 12 years suspended, and five years’ supervised probation in July 2009.
On April 29, 2011, Montgomery County Circuit Judge Eric M. Johnson rejected the bar’s motion to dismiss the Warrs’ lawsuit, saying the state’s stance on dram-shop liability was “ripe to the core” for a change.
Johnson, however, granted summary judgment for the bar on Jan. 20, 2012, saying he was bound by the Court of Appeals’ precedent.
The Warrs successfully asked the high court to hear their appeal.
Joining the majority opinion were Chief Judge Mary Ellen Barbera, retired Chief Judge Robert M. Bell and Judge Clayton Greene Jr.
Judges Glenn T. Harrell Jr. and Robert N. McDonald joined Adkins’ dissent.
WHAT THE COURT HELD
William Warr et al. v. JMGM Group LLC, CA No. 57 Sept. Term 2012. Reported. Opinion by Battaglia, J. Dissent by Adkins, J. Argued March 12, 2013. Filed July 25, 2013.
Can a bar be held liable for the harm caused by an intoxicated patron off premises?
No; Maryland law does not recognize such a duty of care but adheres “to the principle that human beings, drunk or sober, are responsible for their own torts.”
John Vail for petitioner; Robert B. Hetherington for respondent.
RecordFax # 13-0725-20 (99 pages).