Dram shop actions: The importance of knowing the jurisdiction’s rules on permitting common-law negligence claims
A significant number of dram shop complaints include allegations of common law negligence in addition to the allegations of the liquor liability under the jurisdiction’s relevant statute. A plaintiff may allege the defendant failed to have policies or protocols in place to train employees with regards to the use and consumption of alcohol, the defendant failed to provide transportation for the alleged intoxicated patron, or the defendant failed to prevent the alleged intoxicated patron from operating his/her vehicle. Such allegations, unless specifically codified in the jurisdiction’s dram shop statute, are rooted in common law negligence.
Some jurisdictions, such as Massachusetts, expressly permit common law allegations to be asserted with a dram shop claim. Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990). Similarly, in Rhode Island common law causes of action and defenses are not limited by the dram shop statutory claims. R.I. Gen. Laws § 3-14, See also, Smith v. Tully, 665 A.2d 1333 (R.I. 1995). Also, the dram shop chapter of the Texas Alcohol and Beverage Code does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in personal injury or property damage to the person bringing suit. Tex. Alco. Bev. Code Ann. § 2.02(a).
Perhaps unsurprisingly, there are jurisdictions that expressly bar a plaintiff from prosecuting a dram shop action that includes common-law negligence claims. Alabama no longer allows a common law cause of action for the negligent sale of alcohol to a person who is visibly intoxicated. Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala. 1984). Colorado’s dram shop statute abolished common law causes of action against a vendor of alcohol for damages inflicted upon another by an intoxicated person except as otherwise provided in the dram shop statute. Colo. Rev. Stat. §44-3-801 (2018). In Connecticut, the dram shop statute eliminated any common law negligence causes of action by individuals entitled to recover under the Dram Shop Act, making action pursuant to the Act the exclusive remedy for a seller’s negligence. Conn. Gen. Stat. §30-102 (2018).
There are also jurisdictions that have not concretely determined whether or not allegations grounded in common-law negligence shall be permitted within a plaintiff’s dram shop claim. The Pennsylvania Superior Court in Schuenemann v. Dreemz, LLC, 34 A.3d 94 (Pa. Super. 2011) stated that a plaintiff may also state a claim for common law negligence under the dram shop act. However, the United States District Court for the Eastern District of Pennsylvania addressed this issue in Druffner v. O'Neill, No. CIV.A 10-04298, 2011 WL 1103647, at *1 (E.D. Pa. Mar. 24, 2011), where plaintiff’s complaint alleged a claim against a licensed server of alcohol under the Pennsylvania Dram Shop Act as well as under “common law negligence.” The Druffner court dismissed the common law negligence claims and held that, “it is clear that Plaintiff has failed to state a cognizable claim under common law principles of negligence.” Id. Further, Pennsylvania trial courts have granted preliminary objections on the basis that there does not exist a common law negligence claim under Pennsylvania law. In Philadelphia County, the Honorable Allan L. Tereshko granted preliminary objections in Buskirk v. Lindda K. Woodward, Inc., et al., January Term 2012, No. 3031, where the court found the common law negligence claims alleged by plaintiffs were not permissible claims under the scope of the Pennsylvania Dram Shop Act, 47 P.S. Section 4-497 and/or 47 P.S. Section 4-493. Pennsylvania is but one example of a jurisdiction where getting a plaintiff’s common law negligence claims dismissed against your client in a dram shop case may be dependent upon the court in which the complaint is filed and the judge to whom your motion is assigned.
Clearly, it is incumbent upon defense counsel to review the relevant dram stop statute in the jurisdiction in which the plaintiff has filed suit in order to ascertain whether the jurisdiction is one in which allegations of common-law negligence are permitted as part of the complaint. It is critical to object to these claims prior to filing an Answer in order to strike the non-cognizable claims. Moreover, in the jurisdictions where it is not clear or even unsettled, defense counsel should review that jurisdiction’s state and federal court precedent to see whether the case law and the statutory language provide a basis for moving to strike such common-law negligence claims. Striking improper causes of action from the complaint is an important mechanism for protecting a client from such claims. It may become the difference at trial between a favorable verdict and an adverse verdict.