Suppose, just suppose, that you are the Aspen Art Museum.
On occasion, you make your gallery spaces available for a price for social events.
At some of these social events, alcohol is served.
Following one such event, at which he consumed some of the alcohol that was served, a guest hires a cab to take him to another location. En route, the guest attacks the cab driver, tosses him out of the vehicle and steals the cab. The guest is arrested a few minutes later and charged with, among other things, assault and driving while intoxicated.
The injured cab driver brings suit for damages for his injuries. The defendants in the case are the obstreperous guest and -- you know what's coming, don't you? -- the Aspen Art Museum.
As the Aspen Times reports, the Museum did not provide or serve whatever alcohol the guest consumed. "The museum leased its space to the . . . group [holding the event], which was not affiliated with the facility and only renting it as a party venue."
That’s why Brad Ross-Shannon, a Denver-based attorney who is defending the museum on behalf of its insurance company, Travelers, will seek a court order to have it dismissed from the lawsuit.
'The claims against the museum absolutely have no merit,' Ross-Shannon said. 'It’s our hope and intent to be dismissed from the suit.'
But according to [cab driver] Nesvat’s attorney, Jeff Wertz, the museum is liable because it violated what is known as the 'Dram Shop Act,' by knowingly and willfully serving [alleged assailant] Talton alcohol when he was visibly intoxicated.
[Aspen Times story via Donn Zaretsky's Art Law Blog.]
I cannot comment on how this will pan out in Colorado, but California galleries and museums can rest easy. "Dram Shop" liability -- liability for the damage caused by the direct wrongdoing of someone to whom you provided alcohol -- is recognized in a number of states, but is significantly restricted in California law.
The controlling statute is California Business & Professions Code section 25602 [PDF link], which provides for criminal misdemeanor liability for those who sell, furnish or give away alcoholic beverages to "any habitual or common drunkard or to any obviously intoxicated person." However, under that same statute, the Legislature has specified that there is no civil liability for damages "to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage" running from the provider of alcohol, whether as a commercial seller (e.g., a liquor store, restaurant or bar) or in a purely social setting (e.g., hosting a party or Sunday afternoon football get-together in your home).
For several years in the mid-1970's California did impose broad liability on alcohol providers for injury caused by the recipients of the inebriating beverages. That liability was recognized by the state Supreme Court in 1971 as to commercial sellers of alcohol, then expanded to non-commercial social hosts in 1978. That last extension was a step too far for Californians: the Legislature (or those in a position to make their opinions known through the Legislature) promptly amended section 25602 to include the current prohibition on civil liability for the intoxication of others. The amended version of the statute includes this somewhat unusual subsection --
(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah's Club (16 Cal.3d 313) and Coulter v. Superior Court ___ Cal.3d ___ [the "social host" case] be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.
-- which is the legislative equivalent of telling the Supreme Court and other creative jurists: "We mean it, man!"
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For Reference: The website for Mothers Against Drunk Driving -- which consistently endorses imposition of the broadest possible liability on alcohol providers -- provides a state by state summary of Dram Shop laws.
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The cover illustration on the Penguin edition of Zola's L'Assommoir, above, is "The Hangover" by Henri de Toulouse-Lautrec, various versions of which, by the original artist and others, can be examined here.
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* UPDATE [101907]:
Anyone care to wager how long it will take before I receive a cease and desist letter from MADD requiring me to change the title of this post? [Via Radley Balko -- who previously noted the mysterious dearth of actual mothers in MADD's upper echelons.]
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