15 Dram Shop Liability

LibraryElements of Civil Causes of Action (SCBar) (2015 Ed.)

15 Dram Shop Liability

A. Definition

"Dram shop" liability refers to negligence by an establishment licensed to sell alcoholic beverages in serving a minor or intoxicated person.1

B. Elements

In order to recover in any negligence action, the plaintiff must show:

(1) a duty of care owed by the defendant to the plaintiff
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.2

Sometimes the damages element is separated from proximate causation to create four elements.3

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

A duty of care may arise under common law or statute. It is "that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care."4 Dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons.5 The South Carolina Supreme Court has said that in order to show a duty of care based on a statute, the plaintiff must show: "(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."6 The Dram Shop statutes are designed to protect: minors who purchase7 alcohol, members of the public harmed by a minor's consumption of alcohol,8 and third parties injured by the actions of intoxicated persons illegally served.9 The alcohol control statutes do not create a first party cause of action for an intoxicated adult patron.10

There is no common law liability in South Carolina for a social host who serves alcohol to an adult guest when the host knows the guest intends to drive a motor vehicle.11However, where the host promoted excessive consumption of alcohol and abandoned a guest when his health was threatened, the host breached a duty of care to that guest.12

In Marcum v. Bowden,13 the court took the law regarding social hosts in a new direction. An adult social host who knowingly and intentionally serves, or causes to be served, an alcoholic beverage to someone he or she knows — or reasonably should know — is between the ages of 18 and 20 is now liable to that young person served and to anyone else for damages proximately resulting from having served the alcohol.14 The new liability only applies to claims arising after the effective date of the decision.

Often the defendant is a convenience store that is a franchisee. Generally, the franchisor is not vicariously liable for a tort committed on the premises of the franchisee unless the plaintiff can show the franchisor exercised more control over the franchisee than that necessary to ensure uniformity of appearance and quality of services.15

2. A Breach of That Duty by a Negligent Act or Omission

When the plaintiff shows the defendant violated the statute, the second element of negligence has been proven.16 This is proof of negligence per se.17 A violation of an administrative regulation may also constitute negligence per se.18

In Hartfield v. The Getaway Lounge & Grill, Inc.,19 the South Carolina Supreme Court addressed some evidentiary issues regarding proof of the level of intoxication needed to establish a breach of duty. First it permitted expert testimony based on "retrograde extrapolation." The technique allowed the expert to estimate the amount of alcohol consumed over the hours preceding the accident. The expert's opinion was allowed because sufficient circumstantial evidence supported it. Secondly, the court said a trial judge in a civil action may charge the jury that in assessing whether someone knowingly sold alcohol to an intoxicated individual, it is permissible to make an inference from the definition of "being under the influence of alcohol" under the criminal laws. Finally, the court agreed that in determining whether someone negligently served alcohol to an intoxicated person, there is no difference between the "reasonable person" and "should have known" standards. In another case, the court found expert testimony based on a S.L.E.D. analysis using a blood sample lacking a good chain of custody was improperly admitted because an expert could not testify to an opinion predicated on an unreliable test.20

3. Damages Proximately Resulting from the Breach

Violation of the statute is not conclusive of liability.21 The plaintiff must still show the violation was the proximate cause of the injury. The South Carolina Supreme Court has said:

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. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff, therefore, proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.22

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.23

D. Defenses

The applicable statute of limitations is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.24

Other defenses to Dram Shop liability include contributory negligence and assumption of the risk.25

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent26 and that the negligence was the proximate cause of the injuries.27 Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.28

Assumption of the risk is a defense to negligence recognized in South Carolina in two forms: express assumption and implied assumption.29 Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.30 A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.31

E. Damages

Actual and punitive damages32 have been awarded for a violation of the Dram Shop statutes.


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Notes:

[1] See Lydia v. Horton, 355 S.C. 36, 41-2, 583 S.E.2d 750, 753 (S.C. 2003). See generally O'Connor, Last Call: The South Carolina Supreme Court Turns Out the Lights on First-Party Plaintiff's Causes of Action Against Tavern Owners, 50 S.C. L. Rev. 1095 (1999); Eberle, Alcohol Liability in South Carolina: A Host of Legal Issues, 17 S. Carolina Lawyer 34 (2006); McCall, Lydia v. Horton: You No Longer Have to Protect Me From Myself, 55 S.C. L. Rev. 681 (2004); Eberle, Alcohol Liability in South Carolina: A Host of Legal Issues, 17 S. Carolina Lawyer 34 (2006); Robbins & Richardson, The Evolving Law on Social Host Liability in South Carolina, 18 S. Carolina Lawyer 16 (2007); McWilliams, Negligent Entrustment in South Carolina: An Analysis of South Carolina's Consistent Application and Inconsistent Statements of the Standard After Gadson v. ECO Services of South Carolina, Inc., 59 S.C. L. Rev. 633, 652-54 (2008).

[2] Crolley v. Hutchins, 300 S.C. 355, 387 S.E.2d 716 (Ct. App. 1989); South Carolina Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 348 S.E.2d 617 (Ct. App. 1986).

[3] See Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977); Gause v. Doe, 317 S.C. 39, 451 S.E.2d 408 (Ct. App. 1994); Daniel v. Days Inn of America, Inc., 292 S.C. 291, 356 S.E.2d 129 (Ct. App. 1987).

[4] Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797 (Ct. App. 1991).

[5] See S.C. Code § 61-4-580 which provides:

No holder of a permit authorizing the sale of beer or wine or a servant,
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