By Emily Harris Gant

A holiday party should be a celebration. But with it comes responsibility. An event that is not adequately supervised when its comes to the service and consumption of alcoholic beverages can turn a celebration into a tragedy, for both guest and host alike.

The law governing liability for the over-service of intoxicating beverages is 100 years old this year. Enacted in 1905, the Dramshop Act abrogated the common law rule, exposing commercial hosts to liability if the “circumstances [were] sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication.”1 After the Legislature repealed the Dramshop Act in 1955, the Washington Supreme Court adopted the general common law rule, determining that “[i]t is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men.”2

Under modern common law, commercial hosts are not liable for furnishing alcohol, except in limited circumstances.3 Recently, however, the Washington Supreme Court determined that a criminal statute, RCW ¤ 66.44.200(1), announced a civil standard of liability for commercial hosts. The statute provides: “No person shall sell any liquor to any person apparently under the influence of liquor.”4 Under the common law and RCW ¤ 66.44.200(1), the duty of care depends on the status of the plaintiff.

First-Party Plaintiffs
A commercial host is not liable to adult patrons whom it over-serves -- negligently or otherwise -- and who then are injured.5 In short, intoxicated patrons do not have a cause of action under the common law. As for a statutory claim, the Washington Supreme Court has stated that RCW ¤ 66.44.200(1) protects the public health, safety and welfare, not intoxicated patrons.6 Accordingly, the statute does not impose a civil duty of care on commercial hosts to adult patrons.

Minors are an exception to the general rule. Commercial hosts and vendors may not provide alcohol to minors.7 Consequently, commercial hosts and vendors owe a duty of care to: (1) the minor patron; (2) any minors who receive alcohol from the minor patron; and (3) third persons foreseeably injured by the minor patron or any minors who received alcohol from the minor patron.8

Third-Party Plaintiffs
The analysis with respect to adult patrons changes dramatically when the intoxicated patron injures someone else. A commercial host is liable to a third party if it over-serves an adult patron who then injures the third party. Commonly, third-party liability arises after a drunk-driving accident. Until recently, there was some confusion about whether the patron had to be “obviously intoxicated” or merely “apparently under the influence of liquor” when served for liability to be triggered.

The Washington Supreme Court resolved this question in Barrett v. Lucky Seven Saloon, Inc.9 There, Ned Maher drank at least two pitchers of beer at the Lucky Seven Saloon over a three-hour period. While driving home, Maher fell asleep, crossed the centerline and collided with Jeffrey Barrett’s car. Barrett suffered profound and permanent injuries.10

Barrett sued the Lucky Seven, alleging that it negligently over-served Maher. The trial court rejected Barrett’s proposed jury instructions, which provided that the Lucky Seven was not permitted to serve Maher if he was “‘apparently under the influence of liquor.’”11 The jury rendered a defense verdict and the Court of Appeals affirmed.12

The Supreme Court reversed, holding that under RCW ¤ 66.44.200(1) a commercial host is liable for a third party’s injuries if it served an adult patron who was “apparently under the influence of liquor.”13 The Court did not provide a definitive meaning of the phrase “apparently under the influence of liquor.” However, it noted that “apparent” is generally defined as “seemingly.”14

Avoiding Liability for Over-service

Commercial hosts can best avoid liability by training their employees. Under WAC 314-17-015, there are two types of permits for persons who serve alcohol for on-premises consumption or who supervise the sale of alcohol for on-premises consumption: (1) a mixologist permit for managers, bartenders and people who draw wine or beer from a tap or spirits from a dispensing device; and (2) a server permit, which is required for people who take orders, deliver alcohol or pour beer or wine into a customer’s glass at the table.

Under RCW ¤ 66.20.320, server training should include the physiological effects of alcohol and the effects of alcohol in combination with drugs; liability and legal information; driving while intoxicated; intervention with the problem customer, including ways to stop service and to deal with the belligerent customer, and alternative means of transportation to get the customer safely home; and methods for checking proper identification of customers. A mixologist permit has more stringent requirements.

Quasi-commercial hosts are those who do not sell intoxicating liquors, but who have a business interest in furnishing it to their guests.15 Thus, employers or other businesses who furnish alcohol at an office party or an open house are considered quasi-commercial hosts. Under the common law, quasi-commercial hosts generally have the same liability as commercial hosts.16 Further, quasi-commercial hosts may be vicariously liable for the actions of their employees.17

To date, Washington appellate courts have not examined the liability of quasi-commercial hosts in light of RCW ¤ 66.44.200(1). As the statute only prohibits the sale of alcohol to persons “apparently under the influence of liquor,” it is unlikely that this statutory standard applies to quasi-commercial hosts.

Due to the inherent differences between social and commercial hosts, social hosts are not liable for the over-service of alcohol.18 When describing those differences, Washington courts have noted that social hosts are not as capable of monitoring their guests’ alcohol consumption as their commercial and quasi-commercial counterparts.19 Further, the Supreme Court has stated:

While liability for commercial providers affects only a narrow slice of our populations, social host liability would touch most adults in the state on a frequent basis. Because social hosts are generally unaccustomed to the pressures involved in taking responsibility for the intoxication of their guests, we cannot predict how well social hosts would respond when the scope of their duties would be so ill defined.20

Again, minors are an exception to the rule. When a social host furnishes alcohol to a minor or allows a minor to consume alcohol on premises under his or her control, the social host is liable for the minor’s injuries.21 Social hosts are not, however, liable to a third party injured by the intoxicated minor.22

The Bottom Line
Commercial hosts have the highest standard of liability for over-service and their servers and bartenders are required to undergo training. Quasi-commercial hosts are less regulated, but still have exposure. Social hosts have the least liability, but may be liable when they furnish alcohol to minors or allow minors to consume alcohol on premises under their control. The bottom line is that anyone who serves alcohol should establish a plan to reduce the likelihood of over-serving and to effectively deal with guests who over-imbibe. n