Appellate Bailout in Pennsylvania Dram Shop Case
Pennsylvania – Hospitality Litigation
- Pennsylvania Superior Court passes on opportunity to clarify exclusivity for Pennsylvania Dram Shop Act.
- Verdict upheld where drunk driver dies in single-vehicle accident, but reduced by nearly half for driver's own negligence.
- Challenged evidence of bar policies and practices mistakenly characterized by court as a "defense" to allegations that bar served drunk driver while visibly intoxicated.
In an opinion filed November 4, 2011, the Pennsylvania Superior Court opted to pass on an opportunity to resolve decades of divergent and inconsistent trial court decisions as to whether a dram shop cause of action may be premised upon a common law theory of liability. Otherwise stated, does the Pennsylvania Dram Shop Act offer the exclusive remedy for claims involving injuries or death resulting from the service of alcoholic beverages to a visibly intoxicated patrons?
In Schuenemann v. Dreemz, (2011 Pa. Super. LEXIS 3737, November 4, 2011), the court affirmed the judgment of the trial court in Philadelphia County. The trial court denied the motion for new trial of the defendant bar (Dreemz) following a jury verdict against the bar for more than $2.95 million.
The case involved the tragic death of 23-year-old Brynn Schuenemann (decedent), a patron at Dreemz during the evening hours of November 4, 2006. After consuming some quantity of alcohol at Dreemz, the decedent drove her vehicle into a pole at a high rate of speed, dying shortly thereafter. The estate sought damages in a civil complaint, alleging the bar had violated §4-493 of the Pennsylvania Liquor Code (Dram Shop Act) which prohibits liquor establishments from serving alcohol to visibly intoxicated patrons. Following a five-day jury trial in May 2010, a Philadelphia County jury determined that Dreemz had served Schuenemann at a time when she appeared visibly intoxicated and that her intoxication had caused her death. The jury further determined that the decedent was 49 percent comparatively negligent, thus, reducing the verdict accordingly.
The primary focus of Dreemz's appeal involved whether the trial court improperly allowed the estate to present a general negligence/common law claim against the bar despite the clear language of §4-493 and §4-497 limiting the estate's cause of action to the service of alcohol to a visibly intoxicated person. Section 4-493 (1) generally controls situations in which patrons injure or kill themselves after consuming alcohol, while §4-497 (added to the Liquor Code in 1965) provides immunity to the bar in cases where a third person is injured off the licensed premises, except where the patron causing injury or death is served while visibly intoxicated.
Over objection, the trial court permitted the introduction of the bar's internal policies and practices, including manuals detailing the training of employees and policies, including the calling of taxicabs for intoxicated patrons. Curiously, the trial court had concluded that such evidence was "appropriate rebuttal to the Dreemz defense that its personnel were trained." The evidence at issue took the form of deposition testimony where employees were asked by plaintiff's counsel about alcohol training mandated by the state (RAMP), as well as the bar's answers to interrogatories in which the plaintiffs requested information from the bar as to alcohol service training.
Using language that defies logic, as well as existing case law, the Superior Court noted that by answering questions at depositions and by way of answers to interrogatories, the bar had "asserted" a defense that its employees were trained and certified. As such, the policies and practices of the bar related to training/certification, taxicabs and the offering of food and coffee to intoxicated guests, were put on trial, thus shifting the focus from visible intoxication to obligations extraneous to the service of a visibly intoxicated patron.
In some states, evidence of appropriate training or certification has been legislated as a statutory "defense" (Safe Harbor) to a dram shop cause of action. No such defense exists in Pennsylvania. Accordingly, most trial courts in Pennsylvania over the past fifteen years have correctly stricken allegations related to the failure to train or supervise staff, the failure to take car keys or prohibit an intoxicated patron from driving or the failure to "promote an atmosphere conducive to the safe consumption of alcohol." For the most part, trial courts have recognized and applied a common sense approach to §4-493 (1) and §4-497. While any bar's practices or policies may be admissible under certain circumstances, the bar's training and other policies as evidence can represent no more than violations of these policies and do not extend the duty mandated by §4-493 and §4-497 by allowing for liability other than serving a visibly intoxicated patron.
In Hiles v. Brandywine Club, (662 A.2d 16, Pa. Super. 1995), a dram shop case tried to verdict in Chester County by this writer, the Superior Court affirmed the judgment of the jury verdict in favor of the Brandywine Club in a case where the intoxicated patron had left the bar and killed an innocent victim some hours later and some distance from the bar, thus invoking §4-497. The court noted:
The evolution of licensee liability continued with the addition of 47 P.S. §4-497 in 1965 . . . which specifically limits the liability of licensees to third parties injured by a licensee's customer . . . §4-497 shields liquor licensees from liability to third persons unless the customer invoking the injury exhibits signs of visible intoxication at the time he/she is served.
As the drunk driver in Hiles was alleged to have been served after hours, the plaintiff sought relief under the "after hours" section of the Liquor Code, having failed to convince a jury that the drunk driver defendant had been served when visibly intoxicated. The Superior Court noted:
We decline Hiles' invitation to utilize the unlawful act of "service after hours" as another avenue by which to impose liability on licensees. §4-497 is clear; imposing liability on licensees for third party injuries is governed by the specific provisions of 4-497. We need not look elsewhere in disposing of the third party liability issue instantly before us.
The Hiles decision was affirmed without opinion by the Pennsylvania Supreme Court.
Accordingly, as early as Hiles in 1995, it appears that §4-497 of the Dram Shop Act is offered by our appellate courts as the exclusive remedy to third party injuries resulting from a violation of the Dram Shop Act. When confronted with the opportunity in Schuenemann to do the same relative to §4-493, unfortunately, the Superior Court "blinked" and sidestepped the exclusive remedy dilemma entirely by ruling that the trial court's evidentiary decisions (denying the defendant's motion in limine to preclude the evidence) did not rise to the level of reversible error. As such, the decision offers no guidance as to dram shop exclusivity and will not change the way dram shop cases are litigated. Trial courts will continue to get it right, eliminating allegations of an expanded "duty" on the part of the bar to provide services including taxicabs, breathalyzers or removing a patron's keys in an effort to safeguard the patron's travel home. Despite the verdict, juries will also continue to get it right, sanctioning irresponsible conduct by adult consumers of alcohol.
*Scott, a shareholder in our Philadelphia, Pennsylvania, office, can be reached at 215.575.2714 or firstname.lastname@example.org.
Defense Digest, Volume 18, No. 1, March 2012