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A Holiday Gift to Reckless Bar Owners? Not a Good Idea
January 20, 2009
The Legal Intelligencer
For the last year that records are complete, 2006, 556 people died on Pennsylvania highways as a result of alcohol abuse. Each of these deaths is a tragedy, and it is especially cruel when it comes at the time of year that is supposed to be fueled by joy and family, not trips to emergency rooms and cemeteries.
It has gotten better. In 2001, for example, 646 people died in such accidents. In the early 1980s, the number of deaths exceeded 1,000. And perhaps the improvement is the result of a team of players acting together to stop the alcohol-fueled carnage on our highways: more aggressive police policies, the relentless Mothers Against Drunk Driving, responsible press attention, people who are not afraid to take cases to court and their lawyers.
Who are the wrongdoers? People who hold parties without watching for people who stumble out of their homes, the drunk drivers themselves and bar owners and their tenders who serve people who are obviously drunk or even possibly younger than 21.
In the midst of the past season, attorneys Timothy Gilsbach and Erin Gilsbach wrote an article in this newspaper advocating that bar owners get an extra special holiday gift that would relieve them of responsibility for serving people who are visibly intoxicated (“Re-evaluating First-Party Liability Under Pa.’s Dram Shop Law,” Dec. 31, 2008). They don’t dispute that people who are killed or harmed by drunk drivers should be able to file lawsuits against reckless bar owners. They argue that Pennsylvania courts should be blocked from holding a bar responsible in a lawsuit brought by the drunk driver himself.
On its face, their argument may make some superficial common sense. Should drunk drivers be able to benefit from their own lack of personal responsibility? But if you think about the role the law and courts play as partners in the fight against drunk driving, it is clear that the current law enabling lawsuits by drunk drivers against bar owners is the right public policy for our state. The law has been that way for many years, passing the test of time and making us all safer.
The writers fail to cite all of the laws regarding dram shop liability. They only cite to 47 P.S. 4-497. The aforementioned law needs to be read in conjunction with 47 P.S. 493, which states in part that “it shall be unlawful” for bars to serve persons who are visibly intoxicated. This means that if a bar serves a drunk and he or she is injured, the bar is responsible. No one condones drinking and injuring oneself. If a drunk is really at fault, there is a law in place to allow justice to prevail. It is called comparative negligence.
One common factor to people who abuse alcohol and the irresponsible bar owners is repetition. They are people who, as the song goes, “don’t want to go to rehab,” and bar owners who would rather ring up another double rather than call a taxi for a drunk customer. The writers advocate personal responsibility. What about the bar owners who fail to obtain free alcohol awareness training for their employees? Even better, since Pennsylvania does not require mandatory dram shop insurance, what about bar owners who do not obtain it, then when they get sued cry poor? If a law should be changed, there should be mandatory insurance coverage for liquor license holders. Many other license holders in Pennsylvania are required to have insurance – why should bars get a free pass?
One basic value of the law is to send messages that make our society safer, especially to discourage people to repeat bad behavior. When a tragedy occurs because of a driver who’s drunk, coming from a bar which should have recognized a customer’s inebriated condition, the law says that bar owners should get a message loud and clear that they are dealing with a product no less dangerous than a speeding car or a lead painted toy on a store shelf. The bar owner has to exercise responsibility because the thing they sell is dangerous to others on the highway and the customer himself. And that customer may lose the judgment to act responsibly as shot after shot is served.
The law as it stands encourages vigilance on the part of bar owners. But the writers of the recent article would turn down the volume of the message the law seeks to send. It is argued that the law has developed this way as a result of “activist judges” who have mangled the intent of the statutes governing bars and taverns.
I disagree. The legislators who wrote the law and the judges who interpreted them knew exactly what they were doing: protecting the public.
An important part of my law practice is representing people who suffer because of the outrageous conduct of bar owners. (Many tavern owners are responsible.)
All of these stories are tragic, like the single mother who was killed by a drunk driver served by a reckless bar. It happened around this time of the year. But these stories happen year-round.
I have been working with MADD for many years, inspired by their mission and the people who walk into my office with stories that break your heart. We know that we must keep every weapon in the arsenal to encourage bar owners to do their job: regulating the way their dangerous product is served. Along with tough police officers and their policies, MADD, courts, brave victims and their lawyers, one of the weapons is a tough dram shop law. This is one holiday present that bar owners should not look for.
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