South Carolina Lawyer
SC Lawyer, January 2006, #1.
Alcohol Liability in South Carolina: A Host of Legal Issues
South Carolina LawyerJanuary 2006Alcohol Liability in South Carolina: A Host of Legal IssuesBy Kevin R. EberleSouth Carolina was one of the early states to recognize the liability of one who provides alcohol in violation of state law to those injured by the unlawful conduct. The state first recognized such an action in a slave case decided in 1847. See Harrison v. Berkley, 32 S.C.L. (1 Strob.) 525 (1847). Harrison was an action against a saloon-keeper who illegally sold whiskey to the plaintiff's slave; an 1817 state law had made criminal the sale of alcohol to slaves. The plaintiff sought to recover for the death of the slave who had died from exposure after falling by the roadside while drunk. The court ruled for the plaintiff, holding that since the sale had been made by the defendant in violation of state law, the plaintiff was entitled to recover for the damages incurred by reason of the unlawful act. Even though the statute did not expressly provide for such relief, the court found that the plaintiff had been within the special ambit of the statute's protections and could therefore bring the action.
During the last century and a half, the support of the South Carolina courts for such actions has varied. In some cases, the courts have approved liability against those who violated state alcohol laws, while in others the plaintiffs have been denied recovery as a matter of law. In each case, the courts have recognized the viability of a negligence action in theory, but have either permitted or denied relief based on the characterization of the plaintiffs (social or commercial hosts) and defendants (first-party or third-party victims). In a recent pair of cases involving the liability of those who gratuitously provide alcohol to minors, the South Carolina Supreme Court has introduced a new and important distinction into the resulting matrix.
Negligence per se
South Carolina has never recognized a general common law duty to avoid the provision of intoxicating drinks to either incompetent adults or children. The justification has been given that it is the drinking of the alcohol and not its supply that is the intoxication. See Tobias v. Sports Club, Inc., 323 S.C. 345, 348, 474 S.E.2d 450, 451 (Ct. App. 1996) (citing 45 Am. Jur. 2d Intoxicating Liquors§ 553 (1969)) (subsequent history omitted). Nevertheless, there have been several cases imposing liability for just such conduct. The courts in those cases have relied upon the doctrine of negligence per se.
In a traditional negligence action, the plaintiff has the burden of proving the following: (1) a duty on the part of the defendant, (2) breach of that duty by an act or omission or commission and (3) that such breach of duty was the proximate cause of the plaintiff's injuries. Sherrill v. Southern Bell Telephone & Telegraph Co., 260 S.C. 494, 197 S.E.2d 283 (1973). A negligence per se action is simply a subset of traditional negligence suits. The plaintiff still has the burden of proving the three essential elements, but the existence of a statute establishes a duty apart from any common law support for the duty. See Freeman v. Colwell Mortgage Corp., 297 S.C. 335, 342, 377 S.E.2d 108, 110-11 (Ct. App. 1989).
The statutes that are most likely to be cited govern provision of alcohol either freely or as a sale. First, it is against the law to sell alcoholic beverages to persons "in an intoxicated condition." S.C. Code Ann. § 61-6-2220 (West Supp. 2004) ("No person or establishment licensed to sell alcoholic beverages . . . may sell these beverages to persons in an intoxicated condition . . . "); see also S.C. Code Ann. § 61-4-580(2) (West Supp. 2004). Second, despite the fact that the general age of majority is 18, it is unlawful in South Carolina to provide alcoholic beverages to those persons under the age of 21. S.C. Code Ann. § 61-4-90 (West Supp. 2004) ("It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption beer or wine at any place in the State."); S.C. Code Ann. § 61-6-4070 (West Supp. 2004) (same prohibition as to "alcoholic liquors"). These related statutes cover slightly different scenarios. the former are generally cited in those cases involving commercial establishments that sell alcohol to minors whether or not the minors are intoxicated at the time of sale, and the latter are generally relied upon in those cases involving social hosts who gratuitously provide alcohol to minors.
Of course, simply identifying a relevant statute does not create liability. There remain other issues including, for example, proving that the individual served alcohol in violation of § 61-6-2220 was truly intoxicated at the time of service. See Steele v. Rogers, 306 S.C., 546, 413 S.E.2d 329 (Ct. App. 1992) (explaining that one is under the influence of alcohol when its ingestion results in the impairment of the person's faculties and that proof of intoxication may be by either eyewitness testimony as to a person's appearance or admission of the...