Negligence Per Se & Alcohol in Premises Liability
By Kyle Brady
State legislatures routinely pass laws that prevent unnecessary harm and promote safety. For example, cars must stop when approaching a school bus to allow children to safely board; motorists must always wear seatbelts; and hospitals cannot turn away patients in need of emergency care regardless of their ability to pay. The laws associated with the consumption of alcohol are no different. In South Carolina, it is illegal to sell alcohol to anyone under 21 years old or to anyone in an “intoxicated condition.” Of course, these laws primarily aim to prevent harm to the purchaser of alcohol and those affected by the purchaser’s consumption. See Whitlaw v. Kroger Co., 306 S.C. 51, 54-55, 410 S.E.2d 251, 253 (1991). What’s rarely discussed outside of legal circles is that these laws can pack a serious punch to alcohol vendors due to the doctrine of negligence per se.
Typically, a person claiming negligence must establish the defendant failed to use reasonable care and that failure caused the plaintiff’s injuries. This reasonable care standard may be difficult to prove, especially in the context of alcohol consumption. However, negligence per se expands tort liability by imposing a duty of care arising from a statute. In other words, a person acts negligently when they violate the law. However, the resulting harm must be harm that the statute was designed to prevent.
Under a negligence per se theory, “[T]he plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.” Id. at 53, 410 S.E.2d at 252. By requiring an evaluation of the essential purpose of a statute, negligence per se may only be found when a cause of action comports with the statute’s legislative intent.
While there are many statutes that could potentially give rise to a negligence per se action, this article focuses on the most common statutory duties of care concerning alcohol: to not sell alcohol to an underage person and to not serve alcohol to an intoxicated person.
In Whitlaw, the South Carolina Supreme Court stated, “The statutes in this case are designed to prevent harm to the minor who purchased the alcohol and to members of the public harmed by the minor’s consumption of that alcohol.” Id. at 54-55, 410 S.E.2d at 253. Although many statutes have been amended since Whitlaw, the current equivalent states,
To permit or knowingly allow a person under twenty-one year of age to purchase or possess or consume alcoholic liquors, beer or wine in or on a licensed place of business which holds a license or permit issued by the Department is prohibited and constitutes a violation against the license or permit.
S.C. Code Ann. Regs. § 7-200.4.
Similarly, “A person engaged in the sale of alcoholic liquors who knowingly sells the alcoholic liquors to a person under the age of twenty-one is guilty of a misdemeanor … .” S.C. Code Ann. § 61-6-4080(A). Despite the requisite mental state, knowingly, “Failure of a person to require identification to verify a person’s age is prima facie evidence of a violation of this section.” S.C. Code Ann. § 61-6-4080(B).
Many people are surprised to know that alcohol vendors could be on the hook for millions of dollars from a single sale of alcohol by an inattentive bar tender. Imagine this:
A minor walks into a bar after a high school football game. Unknown to the bartender, the minor accepted a challenge from his friend minutes prior to see who could chug the most liquor in a minute. Needing something to wash it down with, the minor orders a beer. The bartender fails to ID the minor because he appeared mature enough to have a beer. The minor gulps down the beer before deciding he better drive home before his parents get worried. He gets behind the wheel of his lifted truck, passes out on the interstate, crosses over the center line, and kills a family of four in a head-on collision.
In this illustration, the bar violated state law by knowingly serving an individual under 21 years old. The purpose of this statute is to prevent harm to those that could be reasonably affected by the minor’s consumption, including the innocent family of four driving down the interstate. Making matters worse for the bar, South Carolina’s apportionment of fault statutes do not protect establishments liable for damages stemming from the sale of alcohol. As a result, the bar’s single sale of a beer to the minor would subject it to 100% of the damages resulting from the family’s deaths.
Nevertheless, there are limitations in certain instances. Even though it may be a valid path to recovery when a person is overserved, an intoxicated person who purchases alcohol from a tavern may not recover for injuries to themselves under a negligence per se theory. In 1998, the South Carolina Supreme Court held, “South Carolina does not recognize a ‘first party’ cause of action against the tavern owner by an intoxicated adult predicated on an alleged violation of S. C. Code Ann. §§ 61-5-30 and/or 61-9-410 (1990). Tobias v. Sports Club, 332 S.C. 90, 91, 504 S.E.2d 318, 319 (1998). The two statutes described in Tobias are now codified at S.C. Code Ann. §§ 61-6-2220, 61-4-580(2).
The first statute provides, “A person or establishment licensed to sell alcoholic liquors or liquor by the drink pursuant to this article may not sell these beverages to persons in an intoxicated condition; these sales are considered violations of the provisions thereof and subject to the penalties contained herein.” S.C. Code Ann. § 61-6-2220.
The second statute is deemed to be violated when a permit holder or their servant, agent, or employee knowingly sells beer or wine to an intoxicated person upon the licensed premises covered by the holder’s permit. See S.C. Code Ann. § 61-4-580(2) (emphasis added). This statute was broadly interpreted in 2010 when the South Carolina Supreme Court held, “The statute does not contain a requirement that the intoxicated person be visibly intoxicated, only that a person ‘knowingly’ sell beer or wine to an intoxicated person.” Hartfield v. Getaway Lounge & Grill, Inc., 388 S.C. 407, 418, 697 S.E.2d 558, 564 (2010). Further, the court stated the proper standard was “whether the bartenders negligently served alcoholic beverages to a person who, by his appearance or otherwise, would lead a prudent man to believe that person was intoxicated.” Id. at 419, 697 S.E.2d at 564 (citing Daley v. Ward, 303 S.C. 81, 87, 399 S.E.2d 13, 16 (Ct. App. 1990)). Reasoning, “In our view, ‘knew or should have known’ is an articulation of an objective ‘reasonable person’ standard.” Id.
In Tobias, the South Carolina Supreme Court disagreed with the Court of Appeals’ finding, “[A]nother of the statutory purposes was to protect the intoxicated person from their own incompetence and helplessness, and therefore concluded the intoxicated patron himself was entitled to bring a negligence suit for a statutory violation.” Tobias at 92, 504 S.E.2d at 319 (1998). In other words, the South Carolina Supreme Court did not find sufficient legislative intent to decide the essential purpose of the statute was to protect someone from harm to themself arising from their own overconsumption of alcohol. Conversely, the statute was intended to protect third parties from this kind of harm.
Additionally, “After establishing negligence per se, the Plaintiff must then prove that the violation of the statute was causally linked, both in fact and proximately, to the injury.” Whitlaw at 55, 410 S.E.2d at 253. Specifically, “Proximate cause requires proof of (1) causation in fact and (2) legal cause. Causation in fact is proved by establishing the injury would not have occurred ‘but for’ the defendant’s negligence. Legal cause is proved by establishing foreseeability.” Id. at 54, 410 S.E.2d at 253.
In Crolley, the plaintiff failed to establish a causal link between being overserved by a bartender and the injuries sustained while attempting suicide in jail later that night. See Crolley v. Hutchins, 300 S.C. 355, 387 S.E.2d 716 (Ct. App. 1989). The Court of Appeals reasoned, “One does not expect a person to attempt suicide as a natural and probable result of being served a drink while intoxicated.” Id. at 357, 387 S.E.2d at 718 (Ct. App. 1989).
On the other hand, the causal chain between selling alcohol to minors and injuries sustained thereafter may be evaluated using the following factors:
(1) the quantity and character of the beverages purchased; (2) the time of the sale; (3) the place of sale; (4) the character of the vicinity; (5) the seller’s opportunity to observe other persons on the premises or in a vehicle with the underage purchaser; (6) statements and behavior of the underage purchaser or any companions; and (7) any other relevant circumstances of the sale or the seller’s knowledge.
Steele v. Rogers, 306 S.C. 546, 552, 413 S.E.2d 329, 332 (Ct. App. 1992).
Besides furnishing alcohol to minors or intoxicated persons, negligence per se may occur when other statutes are violated. For example, in South Carolina ABL license holders are only permitted to sell liquor by the drink, not the bottle. See S.C. Code Ann. § 61-6-1630. Also, laws concerning alcohol liability are constantly changing. Recently, laws applicable to wineries and micro-distilleries became effective on May 17, 2021. See2021 Bill Text SC S.B. 619. One law to arise from this act states, “Wines containing more than sixteen and one-half percent of alcohol by volume may be sold only in licensed alcoholic liquor stores or in establishments licensed to sell and permit consumption of alcoholic liquors by the drink.” S.C. Code Ann. § 61-6-1540(B).
The extensive laws and regulations surrounding ABL licenses may be difficult to comply with, especially considering their continuously evolving nature. Further, South Carolina’s unique alcohol liability case law often necessitates the assistance of counsel with specialized expertise. To avoid incurring civil liability when furnishing alcohol, proactive business owners should consult an experienced attorney to assist them in developing effective staff-training protocols.
Contributor: Justin Lawlor