Drinking While DrivingSales representatives of Bedlam Pharmaceuticals invited a client’s employee Fonda Looney to join them for lunch. After lunch and an afternoon of drinking at Sam n’ Ella’s Pub & Cafe, a heavily intoxicated Nurse Looney drove home at speeds up to 95 mph when she rammed into another car killing the infant in the passenger seat. Tests confirmed her blood-alcohol content was more than twice the presumed level of intoxication when the fatal accident took place. The mother of the deceased child filed a wrongful death lawsuit against Nurse Looney, her employer, Bedlam Pharmaceuticals, and Sam n’ Ella’s Pub & Cafe where Looney was wined and dined.

Can Bedlam Pharmaceuticals and their sales reps be held liable for injuries caused by Nurse Looney? How about Sam n’ Ella’s?

Liquor Liability Laws. In Texas, it is not likely that Bedlam Pharmaceuticals and their sales representatives will be held liable. Given the ultimate power of guests to control their own alcohol consumption and the absence of any legal right of the host to control the guest, the Texas Supreme Court finds any argument for shifting legal responsibility from the guest to the host, who merely makes alcohol available at social gatherings, unconvincing. In the absence of a promise to arrange a safe ride home, for example, the Texas Supreme Court has declined to impose a duty on social hosts to prevent their intoxicated guests from inflicting injury on others.

However, for Sam n’ Ella’s, there is a possibility of liability. The Texas Alcoholic Beverage Code, commonly known as the Dram Shop Act, provides that a person who sells or serves alcoholic beverages under a license or permit can be held liable for damages to others on proof that (1) it was apparent to the provider that the individual was obviously intoxicated so as to present a clear danger to himself/herself and others, and (2) the intoxication was the proximate cause of the damages suffered.

Not all states view the conduct of the social hosts the same as Texas. In a case deciding relative liabilities for a fatality under similar facts, The New Mexico Supreme Court recently concluded that its liquor liability act does permit a lawsuit against social hosts who recklessly provide alcohol to guests in a licensed establishment.

Tilting the Scales in Your Favor.  Be careful who you and your company wine and dine, and what is promised to your guests.

Tilting the Scales to Manage Your Legal RiskEither do not make promises to your guests about taking care of them if they get intoxicated, or, if you do, follow through. Although one does not generally have the duty to control another person or to aid a person in distress, one who chooses to exercise that control or provide the aid must do so responsibly and not make the circumstances worse.

Whitney Crowne Corporation dba Midnight Rodeo v. George Distributors, Inc., 950 S.W.2d 82 (Texas App-Amarillo 1997, _____).

Gina Delfino v. Don Griffo and Craffty, LLC dba Uptown Sports Bar & Grill, Opin. #2011-NMSC-015, in the Supreme Court of th Ste of New Mexico (April 8, 2011)

“Wining, Dining Clients Can be Costly for Firms,” Albuquerque Journal, Monday, May 23, 2011 by Scott Sandlin

Carter v. Abbyad, 299 S.W.3d 892 (Tex. App. Austin 2009, ___)