Dram Shop Act Found to Pre-Empt Common Law Negligence Claims Against Liquor Licensees Unless Unless Service to Visibily Intoxicated Person Proven

In the case of Murray v. Frick, No. 2021-CV-1254 (C.P. Leh. Co. May 2, 2022 Caffrey, J.), the court reasoned that, given the prior precedent defining §4-497 of the Pennsylvania Dram Shop Act as a limiting provision that protects a licensee from liability to third party unless the patron was visibly intoxicated, the court found that the provision operated to preempt common law negligence claims asserted by the Plaintiff against the Defendant liquor licensee. As such, the court sustained the Defendant’s Preliminary Objections in part.

According to the Opinion, the Plaintiff alleges that he was injured in a motor vehicle accident that occurred when his vehicle was struck by a tortfeasor Defendant who ran a red light. The Plaintiff asserted that, prior to the accident, the tortfeasor Defendant driver had been drinking alcohol at two (2) different bars. As such, the Plaintiff asserted common law negligence claims against the owners of the bars.

The Defendants filed Preliminary Objections asserting that the allegations in the Plaintiff’s Complaint seeking to hold the Defendant liquor licensees as liable in common law negligence were legally insufficient as a matter of law. The Defendant company relied upon §4-497 of the Pennsylvania Liquor Code, that is, the Dram Shop Act, to assert that a claim against a licensee under the Dram Shop Act is the exclusive remedy available to a person who has been injured as a result of the sale of alcohol to a visibly intoxicated person.

The court in this matter found no appellate guidance on the issue of whether §4-497 preempts a common law negligence claim and noted a split of authority among the Courts of Common Pleas on the same. 

However, in reviewing the Pennsylvania Superior Court case of Detweiler v. Brumbaugh, in which that court described §4-497 as a liability limiting provision, this court reasoned that the provision should be construed as protecting a licensee from liability to third parties unless the patron at issue was served while visibly intoxicated.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Source of image:  Photo by Tembela Bohle on www.pexels.com.

 

Employer Running Golf Tournament Found to Be Social Host Under Dram Shop Claim (Not Liable)

In the case of Klar v. Dairy Farmers of America, Inc., No. 10863 of 2015 (C.P. Lawr. Co. Jan. 15, 2021 Cox, J.), the court issued a Rule 1925 Opinion for appellate purposes with regards to the trial court’s granting of a Motion for Judgment on the Pleadings against the Plaintiff and in favor of an employer in a case in which the court ruled that an employer who collects contributions for a social event was still considered to a social host with respect to any liability claims under the Dram Shop Act. Based upon this ruling, the trial court dismissed the Plaintiff’s negligence claims against the employer.

According to the Opinion, the Pennsylvania was injured in a motor vehicle accident when the vehicle operated by the Defendant driver struck the Plaintiff’s motorcycle.

The Defendant driver was an employee of Dairy Farmers of America. That employer had sponsored a golf outing and encouraged its employees to attend. The employees made a monetary contribution to offset the cost of the greens fees, food, and alcohol. After collecting the contributions from the employees, the employer paid for the event in its entirety.

The Plaintiff alleged that, at the event, the Defendant driver consumed an amount of alcohol that raised his blood alcohol level beyond the legal limit. The Defendant driver then proceeded to drive and was involved in the accident with the Plaintiff.

The Plaintiff sued the Defendant driver as well as his employer under negligence claims. The employer filed a Motion for Judgment on the Pleadings arguing that it was not liable under the Dram Shop Act because it was a social host.

In this matter, the court followed Pennsylvania law in which other courts had declined to impose liability on non-licensed person who furnished alcohol to individuals for no renumeration. The court ruled that, in order for the Plaintiff to hold the employer liable in this situation, the Plaintiff was required to show that the employer was a person “selling” liquor.

Here, the court noted that the alcohol expense was only a portion of the expenses that the employer paid for the gold event.

While the court recognized that, under case law pertaining to the collective purchase of alcohol, social hosts could be employers or other entities as well as individuals. The court noted that, under Pennsylvania law, social host status did not disappear because the furnishing of alcohol was collective rather than gratuitous.

However, in this matter, the court held that the payment of a fee to defer the costs of the gold outing, with alcohol being only an incidental part of the fee and without any other evidence of the commercial sale of liquor, did not support a claim for either common law negligence or negligence per se against the employer.

As such, in this Rule 1925 Opinion, the trial court requested that the appellate court uphold the trial court’s decision dismissing the Plaintiff's negligence claim against the employer.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 3, 2021).

Preliminary Objections Sustained Where Only Conclusory Allegations Set Forth in Dram Shop Action

In the case of Shultz v. Barnes, No. 18-CV-1308 (C.P. Lyc. Co. July 19, 2019 Linhardt, J.), the court sustained several Preliminary Objections filed by a Defendant in a liquor liability motor vehicle accident case given that the Plaintiff failed to allege sufficient facts to support various claims. 

According to the Opinion, the Plaintiff was the administrator of the estate of a decedent who was killed in a motor vehicle accident caused by a tortfeasor driver. The Plaintiff alleged that the tortfeasor driver was driving a motor vehicle under the influence of alcohol. 

In addition to suing the driver, the Complaint also identified the company that operated the bar where the tortfeasor driver was drinking prior to the accident as a defendant in this case. The owner and president of that bar was also listed as a defendant.  

 The Defendants filed various Preliminary Objections to the Complaint.  

The court sustained the Defendants’ Preliminary Objections to the count in the Complaint alleging a violation of the Dram Shop Act.  

The defense had argued that the Plaintiff had only provided conclusory allegations that the Defendants knew that the tortfeasor driver was visibly intoxicated while he was at the bar.   The court granted these Preliminary Objections and noted that it was not sufficient for a Plaintiff to simply allege that alcoholic beverages were served to patrons in order to support a Dram Shop action.  

The court noted that the Plaintiff failed to assert any facts regarding the physical appearance of the tortfeasor Defendant driver in terms of whether he was visibly intoxicated or not while he was served at the bar.   Although this Preliminary Objection was sustained, the Plaintiff was granted an opportunity to file an Amended Complaint.  

Relative to the Preliminary Objections filed by the individual Defendant, the court found that the Plaintiff failed to allege sufficient facts to pierce the corporate veil.   Again, the Plaintiff was granted an opportunity to file an Amended Complaint in this regard.  

The court also sustained Preliminary Objections to the Plaintiff’s wrongful death claim given that that claim was brought not only on the Plaintiff’s behalf but also on behalf of entities who were allegedly entitled to damages for reasonable hospital, nursing, and medical expenses, as well as funeral expenses, burial expenses and other losses.  The court noted that, under the Rules of Civil Procedure, such allegations were improper in a wrongful death claim.  As such, the Preliminary Objections in this regard were sustained.   Again, the Plaintiff was granted leave to file an Amended Complaint.

Lastly, the court also sustained Preliminary Objections to the allegations of recklessness and the claims for punitive damages under a finding that the Plaintiff failed to allege sufficient facts to support these allegations.   The court noted that, should discovery later reveal facts supporting an award of punitive damages on separate claims, the Plaintiff would be allowed to seek an amendment at that time.   

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (August 27, 2019).    

Punitive Damages Allowed to Proceed in Case Involving Alleged Driving While Intoxicated

In the case of Yzkanin v. Hammerjax, LLC, No. 18-CV-2260 (C.P. Lacka. Co. March 1, 2019 Nealon, J.), the court addressed Preliminary Objections seeking to strike allegations of reckless, willful, and wanton conduct along with a claim for punitive damages in a Dram Shop liability action.  

According to the Opinion, this matter arose out of an accident that occurred after the Plaintiff was a patron at the Defendant’s tavern and the tavern’s employees allegedly continued to serve the Plaintiff alcohol even though he was allegedly visibly intoxicated due to the fact that the Plaintiff was allegedly drinking excessively for an extended period of time.  

In other words, the Plaintiff Yzkanin alleged that he was drinking excessively on the night on question and then got into an accident after he left the tavern and then sued the tavern for continuing to serve him alcohol when he was visibly intoxicated. 

According to the Opinion, this case was also consolidated with the claim of the other Plaintiff who was in the other vehicle that was involved in the accident with Plaintiff Yzkanin.   That Plaintiff also sued the tavern Defendants under a Dram Shop action and made claims for recklessness and punitive damages.  

In his Opinion, Judge Nealon cited to the law that holds that punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

Wanton or reckless conduct was further defined to refer to those instances when an actor has intentionally completed an act of unreasonable character in disregard of a risk known to him or a risk so obvious that he must have been aware of it and so great as to make it highly probable that harm would result.   The court additionally referred to the law that a mere showing of negligence, or even gross negligence, will not support a claim for punitive damages.  

After applying the law to the facts alleged in the Plaintiff’s Complaint, the court overruled the Defendant’s Preliminary Objections filed against the Plaintiff’s allegations of wanton, willful, and reckless conduct and also overruled the Preliminary Objections to the claims for punitive damages.   In so ruling, the court noted that the Defendants remained capable of testing the viability of the punitive damages claims later by way of a Motion for Summary Judgment.  

Anyone wishing to review a copy of this decision may click this LINK

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP.  

Summary Judgment Granted in Claim That Employee Was Driving Drunk

In the case of Huff v. Moser, No. Civil 14-S-773(C.P. Adams Co. May 14, 2018 George, J.), Judge Michael A. George of the Adams County Court of Common Pleas issued a Rule 1925 Opinion requesting the Superior Court to affirm his entry of summary judgment in a fatal motor vehicle accident case.     

In his trial court decision, Judge George concluded that the Plaintiff’s Complaint failed to allege a viable claim for vicarious liability on the part of a Defendant employer for actions of the employee who allegedly struck and killed a victim while driving the company car under the influence of alcohol. 

The court ruled in this fashion as none of the negligence allegations involved conduct committed during the course and scope of the driver’s employment.   The court emphasized that there were no specific allegations in the Complaint that the Defendant driver was working or acting within the course and scope of his employment at the time of the accident.   

The court additionally noted that, even if the Plaintiff had properly pled a claim for vicarious liability on the part of the employer for the actions of the driver, there was a lack of any factual dispute that would entitle the case to proceed to a jury on the liability issues presented.  

More specifically, the court noted that it appeared to the Plaintiff’s claim that the employer had a duty to secure a vehicle from being operated by an unlicensed driver who had been expressly prohibited from operating the vehicle. Judge George stated that he had not located any case law which placed a duty upon one to take affirmative steps to avoid criminal acts of another where there was no obvious known risk of such criminal acts.  

Anyone wishing to review a copy of this decision may click this LINK.

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  

Dram Shop Liability Arises Both From Statute and Common Law

In a recent decision in the case of Jones v. Scavone, No. 2015-CV-8830 (C.P. Luz. Co. April 15, 2016 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas issued a detailed Order in which she denied Preliminary Objections filed against a Plaintiff’s Complaint alleging violations of the Dram Shop Act along with common law negligence claims against, among others, a tavern defendant.  

In overruling the Preliminary Objections, the court specifically stated that a “tavern owner owes a common law duty independent of statute to conduct themselves with reasonable care and prudence dispensing alcohol and to protect others from visibly intoxicated persons.”   

 

Anyone wishing to review this Order may contact me at dancummins@comcast.net.

 

 

 

 

Pennsylvania Superior Court Decision on Sufficiency of Evidence To Corroborate and Render BAC Evidence Admissible [Non-Precedential]

In its recent non-precedential decision in the case of Coughlin v. Massaquoi, No. 3367 WDA 2014 (Pa. Super. 2016 Ford Elliot, P.J.E., Stapile, and Strassburger, J.J.) (Strassburger, J., concurring) (Mem. Op. by Ford Elliot, P.J.E.) the majority of the Superior Court concluded that the expert testimony presented at the trial below in this matter was sufficient corroborating evidence to permit the admission of the decedent’s BAC in a civil litigation matter.   

This matter involves a Plaintiff’s decedent, who was struck and killed by a motor vehicle while the decedent was crossing the street.   Evidence was presented in the  matter that the decedent was heavily intoxicated at the time of the accident.  

The trial court had denied the Plaintiff’s Pre-Trial Motion In Limine to exclude evidence of the decedent’s intoxication, including the toxicology report and the expert testimony of a toxicologist.   Ultimately, the jury determined that the Defendant’s negligence was not a factual cause of the Plaintiff’s decedent’s fatal injuries.  

On appeal, the Plaintiff argued, in part, that the trial court had erred in denying its Motion In Limine seeking to preclude evidence of the Plaintiff’s decedent’s post-mortem BAC of .313 when there was allegedly no additional independent cooperative evidence of intoxication.  The Plaintiff also asserted that the trial court erred in allowing the testimony of the Defendant’s toxicologist expert.  

The Pennsylvania Superior Court noted that the Plaintiff was arguing that the decedent’s BAC was inadmissible as a matter of law where there is no independent corroborated evidence of intoxication such as slurred speech, odor of alcohol, unsteady gait, etc.   Moreover, the Plaintiff asserted that there was no evidence as to the decedent’s whereabouts prior to the accident or any independent eyewitness testimony to support any inference that the decedent had been drinking and/or was heavily intoxicated prior to the accident.   The Plaintiff further asserted that the decedent’s BAC, in and of itself, was insufficient for the issue of intoxication to go to the jury.  In response to these contentions by the Plaintiff, the Pennsylvania Superior Court wrote, “We disagree.”   See Coughlin at p. 6.  

The Pennsylvania Superior Court stated its analysis by noting that the trial court judges enjoy a broad discretion regarding the admissibility of evidence.   The court also noted that it is well-settled law of this Commonwealth since 1927, under the case of Critzer v. Donovan, 289 Pa. 381, 137 A. 655 (1927), that, where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication.  [Other citations omitted].  

The court noted that Pennsylvania law also provides that evidence of intoxication must reasonably establish a degree of intoxication with producing unfitness to drive or reckless or careless driving is the matter at issue in a case.  This rule was extended under Pennsylvania law regarding the admissibility of evidence tending to establish intoxication on the part of a pedestrian.  

With regard to pedestrians, evidence of intoxication is inadmissible unless it proves unfitness to be crossing the street.   Furthermore, the rule of law is that no reference should be made to a pedestrian’s use of alcohol unless there is evidence of excessive or copious drinking.  

The court also noted that, under Pennsylvania law, the theory behind allowing a blood alcohol level to be admitted into evidence of a civil case is that it is relevant circumstantial evidence relating to intoxication.   However, blood alcohol level alone may not be admitted for the purpose of proving intoxication.   Generally, there must be other evidence showing the actor’s conduct which suggests intoxication.  In such instance, and if other safe guards are present, the courts would allow the admission of blood alcohol level evidence.  See Coughlin at p. 8-9.  

In this matter, the defense toxicologist expert testified that an individual with a BAC greater than .31 would be unfit to cross the street safely.   The expert therefore testified that, with a BAC of .313, the decedent would have been unable to safely cross the street.   The court noted that, although there was no eyewitness testimony to corroborate the fact of the decedent’s intoxication, no evidence of slurred speech, staggered gait, etc., no witness who saw the decedent consume alcohol prior to the accident, and no witness who saw the decedent attempt to cross the street, the court stated that it has been held, under Pennsylvania law that the “other” evidence of intoxication necessary to render admissible the results of a blood alcohol test do not have to consist of third-party eyewitness testimony, but may consist of expert testimony describing the effects of a particular BAC level on a person.   See Coughlin at p. 11. [citations omitted].  

In the matter before it, the Pennsylvania Superior Court found that the Defendant’s toxicologist’s expert testimony was sufficient corroborating evidence for the admission of the decedent’s BAC result.   As such, the Superior Court found that the trial court did not abuse its discretion in denying the Plaintiff’s Motion In Limine or Post-Trial Motion for a New Trial.  

Anyone wishing to review this currently non-precedential Majority Opinion may click this LINK.
The non-precedential Concurring Opinion by Judge Strassburger can be viewed HERE 

I note that the handling defense attorney, Joseph Hudock of the Pittsburgh office of Summers McDonnell, Hudock & Guthrie noted his intention to petition the court to make this decision a published Opinion (and therefore precedential). 

UPDATE:  This decision has since been published by the Pennsylvania Superior Court and is, therefore, precedential.

Commentary:  It is believed that this may be the first time that a Pennsylvania appellate court has ruled that the “other” evidence necessary to secure the admission of a blood alcohol content (BAC) reading before a jury can consist of merely testimony from an expert toxicologist.  
 

Punitive Damages Claim Allowed to Proceed in DUI and Dram Shop Civil Actions

A punitive damages claims were allowed to proceed in a Dram Shop Act action in the Montgomery County Court of Common Pleas case of Robertson v. Valley Forge Beef & Ale, Inc., PICS Case No. 16-0225 (C.P. Montg. Co. Jan. 19, 2016 Smith, J.).  

This matter arose out of a motor vehicle accident allegedly caused by a driver who had been allegedly served alcohol while visibly intoxicated at the Defendant’s bar.   The Defendant driver was later convicted of a DUI and reckless and careless driving. 

In their civil action Complaint, the Plaintiff alleged that each of the Defendants’ conduct was separately outrageous, willful, intentional, and done with conscious indifference.  The Plaintiff sought punitive damages.  

The court applied the well-settled law that punitive damages could be sought in a case involving a DUI Defendant driver and with respect to a Dram Shop action against a tavern.

In its overruling of the Defendant’s Preliminary Objections to the Plaintiff’s Complaint, the court did state that, if discovery confirmed that the Plaintiff was unable to establish outrageous conduct and/or reckless indifference, the defense retained the right to proceed on a Motion for Summary Judgment.

 Anyone desiring a copy of any of the above cases may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427 and provide the PICS Case Number noted and pay a small fee.


Source:  "Case Digests," Pennsylvania Law Weekly (March 1, 2016).

 

Recent Dram Shop Cases of Note

Jenkins v. Krivosh, PICS Case No. 14-1224 (C.P. Lawrence Co. July 16, 2014 Cox, J.)


Plaintiff's failed to present sufficient evidence to create question of fact to proceed to jury on issue of whether employees served alcohol to a visibly intoxicated person.  Motion for Summary Judgment by Defendant granted.


Source: "Most Wanted Opinions" in "Digest of Recent Opinions" in Pennsylvania Law Weekly (Sept. 2, 2014).  Call Instant Case Service at Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee to secure a copy.






Faust v. J.P. MacGrady's, 58 Northampton 331 (Nov. 19, 2013)


Defendant's preliminary objections to Plaintiff's punitive damages count in a dram shop case denied where Plaintiff alleged sufficient facts in support of claim of outrageous conduct by tavern where Plaintiff asserted that the tavern disregarded known risk of serving visibly intoxicated person while knowing that the patron would be driving home.  Case involved a subsequent fatal car accident.


Source: "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (Sept. 1, 2014).  Call1-800-932-0311 ext.2880 to request a copy for a small fee.

Judge Amesbury of Luzerne County Addresses Liability of a Car Valet Service

In his recent decision in the case of Moranko v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 2011-CV-10312 (C.P. Luz. Co. Jan. 3, 2013 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas reviewed the issue of the responsibilities owed by a valet service of an establishment with respect to returning a motor vehicle to an allegedly visibly intoxicated person.

According to the opinion, the Plaintiff’s decedent arrived at a Pennsylvania casino and utilized the valet service on the premises. The Court’s Opinion noted that, while no one apparently saw the decedent consume any alcoholic beverages on the premises, at approximately 7:30 p.m. that evening, the decedent was allegedly seen by other patrons in a bar area of the casino in an allegedly visibly intoxicated state.

By 8:02 p.m., the decedent requested his car from the valet service. The Opinion notes that the decedent’s vehicle was delivered the decedent at approximately 8:11 p.m. The decedent was then involved in a fatal one-vehicle accident after leaving the casino premises.

In the Complaint filed on behalf of the decedent, there was a Dram Shop claim alleging service of alcohol to a visibly intoxicated person and a negligence claim based upon the delivery of the decedent’s vehicle to him while he was allegedly visibly intoxicated.

This case came to the Court by way of a Motion for Summary Judgment filed by the defense.

After applying the facts to the applicable law, the Court entered summary judgment in favor of the Defendant on all claims.

With respect to the Dram Shop claim, the Court noted that there was no direct evidence in the records to support the allegation that the Defendant had served the decedent with alcoholic beverages while he was visibly intoxicated.

In this regard, the Court noted that the decedent was on the premises for a relatively short period of time and that there were other unrelated vendors on the premises who could have sold alcoholic beverages to the decedent.

The Court disagreed with the Plaintiff’s argument that there was sufficient circumstantial evidence to allow this case to proceed to trial. The Court stated that, under the circumstances, any finding by the jury in favor of the Plaintiff under the record before the Court would be based upon mere speculation and conjecture.

With regards to the claim of negligence against the valet service, the Court stated that there was no Pennsylvania law that supported an argument that the valet service owed a duty to the decedent as alleged by the Plaintiff.

In its analysis, the Court reviewed the law of bailment and stated that, any refusal by the Defendant to return property in a mutual bailment, such as was present in the valet service arrangement, could possibly constitute a conversion. Accordingly, summary judgment was entered in favor of the Defendant on this claim as well.

Anyone wishing to review Judge Amesbury's decision in Moranko may click this LINK.

I send thanks to Attorney David Heisler of the Scranton office of Cipriani & Werner for bringing this case to my attention.


UPDATE:  To review the Tort Talk Post on the Superior Court Opinion affirming the trial court's decision in this matter and to see the Link to the Pennsylvania Supreme Court Order denying the Petition to Appeal to that Court, click HERE.