C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

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.¹¹ However, 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

Under South Carolina law, statutory liability attaches when a person "knowingly" sells alcohol to an intoxicated person, but there is no requirement as to whether the patron was visibly intoxicated.¹⁹

In Hartfield v. The Getaway Lounge & Grill, Inc.,²⁰ 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.²¹

3. Damages Proximately Resulting from the Breach

Violation of the statute is not conclusive of liability.²² 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.²³

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.²⁴

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Notes:

^[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, agent, or employee of the permittee may knowingly

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