South Carolina Court of Appeals Upholds Grant of Directed Verdict in Dram Shop Case
By Christian Stegmaier
In a December 17th opinion, the South Carolina Court of Appeals upheld the grant of directed verdict in a Greenwood County Dram Shop action, holding the plaintiff failed to meet the requisite standard for recovery. This opinion is instructive for our state’s hospitality entities, which serve alcohol, the insurers that write their risk, and the counsel that represent them.
In Hartfield v. McDonald, after an evening out at several drinking establishments, Hoyt Helton crossed the centerline of a highway in a car he was driving. Helton’s vehicle struck a car in which Jon Hartfield was a passenger. Helton died at the scene. Testing conducted after the accident revealed Helton’s blood alcohol content (BAC) was .212. Hartfield was seriously injured. As a result of his injuries, Hartfield requires assisted living arrangements for the remainder of his life.
Robert Cockrell, one of two owners and managers of the Pub, was tending bar at the Pub on that particular day and testified Helton arrived between 4 and 4:15 p.m. Helton exited the Pub at approximately 5:30 p.m. Cockrell did not see Helton again until he was closing for the night at 7 p.m., when he saw Helton sitting on a bench in front of the Pub. In addition, Cockrell testified he neither served Helton a beer, nor saw him drinking while he was inside the establishment, and testified Helton was not in possession of a beer on the bench when Cockrell left.
Helton later visited two other establishments, The Getaway Lounge & Grill and The Carolina Lounge. Evidence existed, which supported an argument Helton was served alcohol at both of these locations.
Hartfield filed suit against Cockrell, individually, and the Pub; The Getaway Lounge & Grill and The Carolina Lounge. Hartfield contended each of the defendants was negligent, grossly negligent, careless, reckless, willful and wanton, under a rubric of dram shop liability, and that the defendants’ actions were the direct and proximate cause of the injuries and damages he received.
Section 61-4-580 of the South Carolina Code prohibits the sale of beer or wine to an intoxicated person. That section specifically provides:
No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit:
(2) sell beer or wine to an intoxicated person[.]
At the close of the plaintiff’s case, Cockrell and The Pub moved for directed verdict, asserting there was no evidence Helton had been sold any alcohol while at The Pub. The plaintiff – apparently knowing the lack of evidence concerning a sale was problematic – sought to cure the situation by attempting to introduce expert testimony pertaining to retrograde extrapolation analysis. In other words, the plaintiff – using Helton’s BAC level at the time of testing, attempted to demonstrate Helton was in fact intoxicated at The Pub using mathematical analysis. The circuit judge prevented this testimony from being presented to the jury and granted Cockrell and The Pub’s motion. On appeal, the Court of Appeals affirmed, holding:
Section 61-4-580(2) clearly states that an actual sale of alcohol to an intoxicated person is prohibited. (emphasis added). Even taking the evidence at trial in the light most favorable to Hartfield, as we are required to do on review of a motion for a directed verdict, the record is simply devoid of any evidence that the Pub actually sold Helton alcohol while he was there, or that Helton was drinking while present. As a result, we need not decide whether retrograde analysis would be admissible in a proper case because, in the absence of evidence of a sale, the directed verdict was properly granted.
Bottom Line Analysis: In South Carolina, where there is a lack of evidence of a sale of alcohol to a patron ultimately blamed for injury due to intoxication, there will be no liability to the alcohol permit holder for such injuries via a Dram Shop cause of action, as permitted under § 61-4-580. No expert testimony employing mathematical analysis will cure the inability of a plaintiff to present evidence of a sale.