• The Bar Is Set: A Liquor Licensee's Duty to Third Persons in a Civil Suit
  • December 21, 2009 | Author: Donald L. Carmelite
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Harrisburg Office
  • With increasing regularity, third party plaintiffs file suits against liquor licensees and attempt to attach duties to the licensees beyond what the law prescribes. In these claims, a third party plaintiff is one who sues the liquor licensee for damages caused by a customer who was served alcohol, while visibly intoxicated, by the licensee. As defense counsel for liquor licensees, we must file Preliminary Objections to these Complaints and challenge any claims asserting extra duties on the licensee beyond the only duty a licensee owes a third party pursuant to 47 P.S. § 4-497 of the Liquor Code. Simply, a licensee must not serve a patron alcohol if they appear visibly intoxicated at the time of service.

    In Kortum v. IK Second Street Associates, No. 2007-CV-9746 (CCP Dauphin, January 4, 2008), Judge Kleinfelter's opinion sustaining the defendant's Preliminary Objections is a recent example of our success in employing this strategy. In Kortum, the alleged intoxicated person ("AIP") operated his motor vehicle while illegally intoxicated and struck the plaintiff head-on, killing himself and causing serious injuries to the plaintiff. The plaintiff sued the bar pursuant to a liquor liability theory as the AIP patronized the bar hours prior to the accident. The plaintiff properly pled a claim against the bar for the alleged service of alcohol to a person who was visibly intoxicated. However, the plaintiff's Complaint also pled claims against the bar for its alleged breach duty to:

    • protect members of the public from the dangers and hazards proposed by intoxicated persons and/or persons incompetent to handle alcohol;
    • not serve alcohol to persons incompetent to handle alcohol;
    • failing to maintain and provide adequate and necessary security and monitoring to protect patrons from the foreseeable and likely consequences of service of alcohol to visibly intoxicated persons;
    • failing to prevent the alleged intoxicated person from exiting the bar;
    • failing to protect the plaintiff from the foreseeable criminal acts of the alleged intoxicated person;
    • failing to take any steps to protect the plaintiff from the foreseeable risks of a person driving while intoxicated;
    • not foster an atmosphere conducive to drinking to excess and drinking of alcohol beverages thereby causing a foreseeable risk of severe injury or death; and
    • failing to exercise a requisite degree of care necessary to the alleged intoxicated person prior to his leaving the premises so as to protect himself and other drivers on the road from the foreseeable dangers and consequences of a severely intoxicated person driving a motor vehicle.

    We successfully filed Preliminary Objections to these claims in reliance upon the Superior Court's decision in Hiles v. Brandywine Club, 662 A.2d. 16 (Pa Super. 1995), appeal denied, 675 A. 2d. 1249 (Pa. 1996). Judge Klienfelter's opinion explains that in Hiles, the Superior Court held that with the exception of cases involving minors, Section 4-497 of the Liquor Code "shields liquor licensees from liability to third persons, unless the customer invoking the injury exhibits signs of visible intoxication at the time he/she is served." Moreover, the Superior Court held that Section 4-497 of the Liquor Code provides the exclusive prerequisite for imposing civil liability on a licensee.

    Another case where the court sustained our Preliminary Objections was Myers v. Red Lion Café, No. S-632-204, (CCP Schuylkill, June 7, 2004). In Myers, the restaurant/tavern employed the AIP. After finishing his shift, the AIP had lunch in the restaurant and then drinks with family in the tavern. The AIP then left the tavern and caused a motor vehicle accident. The plaintiff asserted that the licensee had three additional duties beyond Section 4-497 of the Liquor Code. Specifically, plaintiff claimed that the bar had a duty to:

    1. prevent the driving of an intoxicated patron;
    2. not to create an image of a place where patrons could drink excessive amounts of alcohol; and
    3. to not condone excessive drinking by its employees

    Again, Judge Domalakes held that Section 4-497 of the Liquor Code imposes only the duty upon a liquor licensee to refrain from selling, furnishing or giving liquor to any customer when the customer is visibly intoxicated. Therefore, the plaintiff's claims of extra duties beyond that scope were dismissed from the Complaint.

    As such, the Superior Court set the bar for interpreting the Liquor Code as it applies to third party complaints against liquor licensees. With the aid of decisions from Judge Kleinfelter in the Dauphin County Court of Common Pleas and Judge Domalakes from the Schuylkill County Court of Common Pleas, we continue repelling plaintiffs' attempts to lower that bar and increase the duties owed to a third party plaintiff by liquor licensees. We should persist waging this battle until the plaintiffs' bar ceases pleading duties owed by liquor licensees for which the Liquor Code and case law reject.