A Refresher on California Anti-Dram Shop Laws and Liability for Serving Alcohol: Purton v. Marriott International
If you are close to my age (54), you remember the alcohol-fueled, employer-sponsored holiday party — some would say employer-mandated. Yes, those parties still occur, but social mores and legal risks have reduced enthusiasm for such events. Me…I don’t miss them.
Last month, the California Court of Appeal issued a decision that reminds employers of the risks of hosting such an event, even a tame one. Purton v. Marriott International Inc. (Fourth Appellate District, July 31, 2013). The case also is a good jumping off point to refresh our knowledge about California anti-dram shop laws and the liability of the social host.
These are the facts in Purton: Marriott hosted its annual holiday party for its employees and management. In an effort to control the festivities, only beer and wine was to be served and each attendee was limited to two drink tickets. One of the employees decided a little pre-party lubrication could not hurt, and he drank a beer and a shot before going to the party. He also brought a flask of whiskey with him.
During the evening, the bartender working the party refilled his co-worker’s flask with Jack Daniels from the hotel’s liquor supply. Eventually the whiskey-infused employee, with others in tow, safely returned home. He had nothing more to drink. Alas he did not stay at home, and instead decided to drive a co-worker to his home. During that trip the employee struck Dr. Purton’s car, killing Dr. Purton. The employee’s blood alcohol level was .16. He pleaded guilty to gross vehicular manslaughter.
Dr. Purton’s parents sued the employee and Marriott. This case does not turn on California anti-dram shop laws or California’s broad based civil immunity for servers of alcohol. Instead, Purton turns on an employer’s liability for torts committed by an employee within the scope of employment. Specifically, the issue was whether this employee was acting within the scope of his employment when he left his home, after safely arriving there from the party. Marriott argued that its liability terminated when the employee arrived home safely from the party. Marriott argued that the negligent act causing the injury must occur while the employee is acting within the scope of his employment. The court disagreed. For the court, it was sufficient that the alcohol consumption occurred during the scope of employment, and in this case, alcohol consumption at an employer-sponsored event was within the scope of employment. The court further reasoned that it was foreseeable that an intoxicated employee would drive home, and foreseeable that he may not stay at home.
The court reversed the trial court’s order granting Marriott’s motion for summary judgment, and sent the case back to be tried in front of a jury. The jury will determined whether “the proximate cause of the accident, [the employee’s] intoxication, occurred at the party.” This case is notable first, because it demonstrates that California anti-dram shop laws and social host immunity will not protect an employer. Second, one has to ask: if it is foreseeable that an intoxicated employee will return home and then later get into his car and cause an accident; is it not also foreseeable that a “buzzed employee” might go home, drink some more, and then get into his car and cause an accident? Is the employer potentially liable in that scenario? As I said at the outset, spirited, employer-sponsored holiday parties … not so much anymore. Purton is one good reason why.
Purton is an employer respondeat superior — vicarious liability — case. It does not apply to bars (unless they are hosting a party for their employees) or social hosts. California law immunizes providers of alcoholic beverages from civil liability for merely furnishing alcohol, with a couple of limited exceptions. Bus. & Prof. Code s. 25602(b). For bars (establishments or persons licensed or required to be licensed), the exception is for furnishing or selling alcohol to obviously intoxicated minors. Similarly, anyone else who sells alcohol to an obviously intoxicated minor can be held civilly liable for injuries caused by the minor’s intoxication. Bus. & Prof. Code s. 25602.1. For social hosts, until recently, the immunity was even broader — social hosts were was not liable for the conduct of their inebriated guests. Beginning January 1, 2011, the exception for social hosts was narrowed. Adults who knowingly furnish alcoholic beverages at his or her residence to a minor (under 21) can be held liable for injuries caused to or by the inebriated minor. Civil Code s. 1714(d). Other than those exceptions, however, neither a bar nor a social host can be sued for over-serving someone who gets drunk and then causes an accident.
A word of caution to bar-owners and bartenders: just because your civil exposure is limited, that does not mean you can over-serve your adult customers with impunity. Leaving aside the ABC’s broad regulatory authority, it is a misdemeanor to to serve an obviously intoxicated person. Bus. & Prof. Code s. 25602(a). And California courts have allowed local prosecutors, using the Unlawful Liquor Sale Abatement Law, to shut down bars for habitually over-serving their customers. Pen. Code s. 11200; People v. Schlimbach (2011) 193 Cal.App.4th 1132.
The California Supreme Court has accepted a case on social host liability, which is currently pending: Ennabe v. Manosa. In that case, a 20-year-old female hosted a party at a vacant rental property owned by her parents. The teen charged some of her guests an admission fee ($3-$5). Some of that money was used to buy additional alcoholic beverages during the party. For that fee, party-goers were allowed to enjoy music played by a disc jockey and also were given access to the communal food and drink, including alcohol.
One of the guests, a minor, was obviously intoxicated. After drinking for a while at the party, the host asked the minor to leave. He did; but as he was driving away, he struck and killed another party-goer. The parents of the deceased party-goer sued the host. The parents claimed that, because the host charged admission, she was not a “social host” and therefore was not protected by the immunity given to social hosts (the broad immunity predating January 1, 2011). Instead, they claimed that the host could be held liable for selling alcohol to an obviously intoxicated minor — the standard applicable to bars. The Court of Appeal disagreed, and entered judgment in favor of the host. Ennabe v. Manosa (2010) 190 Cal.App.4th 707. Because the social host immunity statute was amended in 2011 (after Manosa) and now imposes liability on adults who knowingly furnish alcohol to minors at their homes, the significance of the pending Supreme Court decision likely will be limited. But if the Supreme Court were to reverse the Court of Appeal and hold that, because she collected admission, the 20-year-old host can be held under the bar standard — for selling to an obviously intoxicated minor — that would further erode the immunity extended to social hosts.
That’s all I have for now. Easy lessons to take away from all this: One for social hosts: don’t host a party where alcohol is being served to minors. Two for employers: the “spirited” holiday party….ehhh hate to be a party-pooper but… Three for everyone: Taxis.
