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Jun 12, 2011 08:35 AM

BYOB and Liability

In many states, Florida, Pennsylvania, New York, California and many others, you may bring your own adult beverage to a restaurant, whether or not they have their own adult beverages and whether or not they charge for corkage . Please give me this without argument as not germane to the issue of the thread. My question is if l go to a restaurant with an excess of my own wine, spirits, or whatever, leave the establishment somewhat impaired and take out a group of nuns in a Volkswagen, who besides me is legally liable for the intoxication? Does the restaurant put itself at risk for my impairment, even if all they did was serve me food, as l have brought my wine, my opener, my glasses, and my whatever ?

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  1. Interesting question. I'm not a lawyer so really have no idea. But being raised in NJ (where this is common), I've never heard of a lawsuit against any of the local restaurants that allow this. I've also never seen anyone bring an excess of wine/spirits in these circumstances. Typically people either bring a bottle or two of wine or a six pack of beer.

    At least that has been my experience.

    1 Reply
    1. re: thimes

      In NJ, the owner of a BYOB is not allowed to permit consumption of alcoholic beverages (beer & wine only are ever permitted) during hours when alcohol is not permitted to be served, by minors, or by someone who is already intoxicated. Thus, if the accident is caused by a driver who was drinking at a BYOB in such a impermissible way, liability of the restaurant may be established.

    2. There are too many variables here to give you a bright-line rule.

      Generally -- and I stress "generally" in the strongest possible way -- the restaurant owner would not be liable.

      Now, that said, many states have laws that impose a duty upon a bartender to take some form of action if he sees that a customer is inebriated beyond the point of being sober enough to drive home. What actions? And how inebriated? Those are generally questions of fact left to the jury, or trier-of-fact.

      The restaurant BYOB case may be a bit different than what transpires at a bar, however. If the BYOB policy has no corkage or a flat corkage, then one could argue that the restaurant cannot possibly know how much liquor was consumed and, hence, no duty would attach to the restaurant owner to ensure that someone with a BAC above legal limit is let out on the streets, etc.

      Too many variables to provide a bright-line rule, I'm afraid.

      Hope that helps.

      1. Liability is going to be a function of state law, so an answer that's correct in one jurisdiction may be incorrect in another. So take any answers you get here as general musings rather than legal analysis. That said...

        Some states have dram shop statutes, and some of those laws impose liability that doesn't hinge on the sale of alcohol. In addition to statutory liability, there can be common-law tort liability for misconduct by the restaurant or for "in concert" wrongdoing.

        In my experience, wine brought to a restaurant is typically opened and served by restaurant employees in restaurant glassware. Under these circumstances, the restaurant has an obligation to stop serving an obviously intoxicated patron, and failure to do so can result in liability.

        An Illinois case found potential liability where a club neither provided nor served the alcohol, but put the drunk patron behind the wheel of his (valet-parked) car and ordered him to leave the premises. The court found that the plaintiff stated a claim by arguing that the club gave "substantial assistance or encouragement" to the patron, and was therefore liable for his tortious conduct.

        So, long story short - it's going to depend on the facts of the case and the jurisdiction where it happens, but the restaurant may have liability.

        1. if you drink and if you drive, then only you are responsible for the intoxication. people shouldn't try so hard to blame others for their own actions.

          32 Replies
          1. re: jamieeats

            It isn't the patron who's suing the restaurant, it's the innocent person s/he injured while driving home drunk. If a restaurant or bar continues to serve an obviously intoxicated patron with the knowledge that that person will be driving, the establishment is legally and morally responsible for any injuries the customer causes.

            1. re: alanbarnes

              legally, perhaps.

              morally, not so fast!....personally I ascribe to personal responsibility, so barring someone force feeding you Chianti all night, that guilt lies on you and you alone, buster!

              morals: the idea that everyone else should behave a certain way.....your way.

              1. re: nkeane

                As between the drinker/driver and the bar, I agree with you completely. But as between the bar and an innocent third party - the bar is less responsible than the drinker/driver, but is still responsible.

                1. re: alanbarnes

                  Thus to put this question further. You come to my home for dinner. l am a teetotaler. you bring your own beverage, drink, leave, drive into the zoo damaging many animals, thus l am liable as well ?

                  1. re: Delucacheesemonger

                    This is really jurisdiction specific.
                    The bar owner holds a license from the state and is deemed a professional. It is reasonably foreseeable that he/she knows when a patron has had too much alcohol.
                    The homeowner, a layman, is not expected to know this when executing ordinary care, especially if that homeowner is a non-drinker and does not provide the alcohol.

                    It would be interesting to see a case like this in New Jersey, which has been at the forefront of extending dram shop like liability top homeowners.

                    1. re: bagelman01

                      Reason for the thread. As l use BYOB's a lot, l fear some clod in Ohio does drive into a schoolbus after BYOBing, the restaurant is mightily sued, and in a slow wink of an eye, BYOB is closed forever. Nice greyhound, BTW, had whippets and borzois

                      1. re: Delucacheesemonger

                        The sad fact is, in our glorious litigious society; the lawyers will sue everybody within 500 feet!! If you are a dining partner at a BYOB place and you supply the wine/alcohol to the suspect you will be included in, at a minimum, the civil action for sure. It many times even reaches to the auto manufacturer, etc. Personal responsibility seems to be valued less and less today: and everybody is a "victim". Life is not risk free there are consequences to your and my actions.

                        1. re: ospreycove

                          Things have changed.................
                          It varies widely by jurisdiction, but lawyers can be subject to heavy penalties for frivolous lawsuits. They can't just sue everyone within 5oo feet, but a suit can be dismnissed by a judge for failure to include a party. No attorney wants to bring sanctions upon hum/herself, and as most Personal Injury cases are taken on a contingency basis, the attorney would not bear the cost of suing one who would yield no hope of recovery.

                          That said, as a disclaimer, I do not practice personal Injury law, my oractice is in other areas of the law.

                          1. re: ospreycove

                            Right. Somebody who's paralyzed by a drunk driver should just suck it up and get over themselves. Just because you can't use your legs any more and have to wear a colostomy bag doesn't give you the right to act like a "victim."

                            As for the thousands of children orphaned every year by DWI accidents, it's simply unfair to expect the person who killed their parents to pay for their support. Are there no prisons? Are there no poor houses?

                            1. re: alanbarnes

                              Alan, you grossly missed my point. In my post the "victim" was the drumk who does not have the personal moral/responsible fiber to be accountable for his/her own actions. As I stated life is not risk free....there are consequences for your and my wanton disregard of responsible behavior.

                              1. re: ospreycove

                                Do you really believe the courts are being clogged with litigation filed by people seeking damages for injuries they caused themselves while driving drunk? I hate to break it to you, but that just isn't happening.

                                Most of those lawyers who will "sue everybody within 500 feet" are seeking additional sources of recovery for the innocent people injured by the drunk drivers' misconduct. And bars that continue to serve obviously intoxicated patrons (and even social hosts who get their guests liquored up and send them out on the highway) are far more culpable than the pedestrian who got run over because s/he happened to be in the wrong place at the wrong time.

                                1. re: alanbarnes

                                  No, but "shared liability" is better for the criminal than 100% culpability. As for the lawyers; the more people they can bring into the civil action the more they, the lawyers, profit, one should not think they aree doing it for any other reason or following their "moral compass".

                                  1. re: ospreycove

                                    Shared liability isn't "better for the criminal." The drunk driver will always be primarily liable for his misconduct, and those who incur vicarious liability because of that conduct are entitled to contribution and indemnity.

                                    And it's absolutely false that an increased number of defendants automatically increases a lawyer's fee. The problem, though, is that far too many times the drunk driver doesn't have a license, let alone insurance or assets. So the lawyer has to bring in other parties who are less culpable, but still responsible for the accident. As between those people and the innocent victim, what's wrong with forcing those who have some culpability to pay for their misconduct?

                                    1. re: alanbarnes

                                      Alan, I see your point; but that does not change the bias of lawyers and their pursuit of the "Gold", I know that, first hand, in a commercial liability case.

                                      1. re: ospreycove

                                        Of course the lawyers are doing it for the money. It's their job. It's how they make a living. If all the doctors, engineers, and schoolteachers in America were working for free, then maybe we could criticize the lawyers for taking money for doing their jobs. Until then, I can't see how your objection has any basis.

                                    2. re: ospreycove

                                      "As for the lawyers; the more people they can bring into the civil action the more they, the lawyers, profit"
                                      WRONG....if the client wins $250,000 from one defendant, or $250,000 paid in part by 4 defendants, the lawyer's fee is the same (Typically 1/3). But the lawyer's costs are far higher when he/she has to investigate multiple defendants, spend more hours at trial when the plaintiff is subject to examination by each defendant's lawyer and the plaintiff's lawyer has to examine each defendant and/or their witnesses.

                                      I'd much rather sue one defendant for my wronged/injured client than many in hopes of the same award. My client's loss is worth X dollars, it does not increase to X+Y dollars just because there are multiple defendants.

                                      Furthemore, we are talking about a civil suit for damages, there is NO criminality involved here, just torts and negligengence. And personally I'd rather have a Sacher or Dobisch Tort(e) than a personal injury client.

                                      1. re: bagelman01

                                        Bagel, isn't it more like the agreed 30-40% contingency, plus expenses???

                                        In the case I , my company, was involved in first the individual was convicted in a criminal court; then sued in a civil court.

                                        In the above discussion, last time I check a DUI was not a civil matter.

                                        1. re: ospreycove

                                          The expenses don't go upm if you have to spend 3 bdays in the courtroom instead of 1 because of multiple defendants. You don't get paid for more depositions and interrrogatories, only the expense of the court reporter goes to the client.

                                          Only the government prosecutes criminals. That fact that someone is ajudged DUI, does not automatically make him/her negligent and liable for your injury.
                                          Some state have caps on the lawyers fee in PI cases and the higher the verdict the lowerr the actual percentage is.

                                          I don't take personal injury cases, but do take negligence and tort suits in business dealings.

                                          Also, be aware that almost every state disallows contingency fees in criminal, divorce and support/custody cases.

                                          Also, usually the victim can't pay the expenses, unless he/she wins and the attorney may have to front these for years.

                                          A starting attorney on his/her own can not afford to finance most sizable personal injury cases, laying thousands fro private investigators, medical reports, depositions, etc. In this area, most surgeons want $500 minimum to submit a patient report to the attorney.

                            2. re: Delucacheesemonger

                              Here in Connecticut there is limited BYOB, but I have enjoyed it. I don't think you have to fear it being stopped due to a crash or suit, any more than the banning of alcohol sales in restaurants for the same reason. the state benefits from the alcohol taxes, whether levied on the restaurant or the bottle shop level.
                              The Greyhound is our 'late' Bailey, a retired/rescued racer who fell victim to the counterfeit/tainted Chinese Wheat Gluten 4 years ago. We now have 2 other rescues, who only eat domestic kibble with meat fresh off the grill.

                          2. re: Delucacheesemonger

                            Again, it's fact specific. Most jurisdictions recognize at least some social host liability, but it isn't strict liability; the conduct of the host has to be considered.

                            If I sneak out back and take a few belts from a flask, there isn't a court in the world that's going to blame my host for my intoxication. On the other hand, if you're a teetotaler but hand me a beer bong and keep filling it while leading chants of "Chug! Chug! Chug!", there's a decent chance you'll be on the hook if I cause a wreck.

                            1. re: alanbarnes

                              Where does the proximate cause question end?

                              We hold the bartender (or bar) liable for the acts of a drunk driver.

                              Why not hold the parents of that drunk driver also liable for failing to rear their child to not drink and drive?

                              What about the the liquor manufacturer? (Yes, yes, I know that question's been answer in the negative, but you get the point.)

                              At some point, there needs to be individual responsibility and just because a harm goes unredressed, civilly, doesn't make it necessarily something out of the ordinary, or something that requires such moral outrage as to impute liability up the chain of causation.

                              1. re: ipsedixit

                                I'm all for personal responsibility. Specifically, I believe that nobody should be immune from liability for the reasonably foreseeable consequences of their tortious actions just because someone else might be more culpable. The legislatures of most states (and the courts in all of them, I believe) agree. (Section 876 of the Restatement of Torts is on point, too.)

                                Just to be clear, I'm not advocating that the drunk driver have a remedy against the place that served the drinks. And AFAIK that's not a claim that's going to go anywhere fast in any jurisdiction. But I have no problem with providing an innocent third party with a claim against the establishment under appropriate circumstances.

                                I use "appropriate circumstances" advisedly. Strict liability would be problematic here. But in most (all?) jurisdictions, civil liability only attaches when the restaurant / bar / server's conduct is pretty egregious. There's a lot of false information out there (much of it disseminated by institutions that purport to teach servers applicable law), but I haven't seen a single published case where a restaurant or a bar owner was held liable without having engaged in conduct that any reasonable person would consider irresponsible or worse.

                                As far as proximate causation goes, it's a no-brainer. When a customer is noticeably impaired, planning to drive, and nevertheless served additional drinks, an automobile accident is exactly the type of harm that would be anticipated. Palsgraf, baby...

                                1. re: alanbarnes

                                  That's all fine and good, but ultimately what's "egregious" or "significant misconduct" is a jury question.

                                  All the statues and common law rules that extend liability beyond the actual driver do, for all practical purposes, is simply allow a plaintiff to survive the pleading stage, at which the underwriters for the establishment will usu. step in and negotiate a settlement to avoid costly and protracted discovery.

                                  Even if the harm is foreseeable, I'm so sure holding the bar liable is the morally right thing to do.

                                  What morally wrong thing did the bar do?

                                  It served a legal substance to an individual who (presumably) was of age to consume such a substance.

                                  Did it serve more than it should? Maybe, but the bar is in the business of making money -- certainly not something that is morally reprehensible.

                                  If the harm is so foreseeable and certain, shouldn't the city station police officers outside of every bar to administer Breathalyzer tests to each patron that walks out?

                                  1. re: ipsedixit

                                    "... at which the underwriters for the establishment will usu. step in and negotiate a settlement to avoid costly and protracted discovery. " Sorry, but that's incorrect.

                                    Anybody who works in the industry can tell you that insurers segregate payment accounts and decision-making authority for indemnity and defense. Adjusters do not consider the cost of conducting litigation; their analysis is limited to the issues of liability and damages. You can disagree as to whether it's the best way to handle claims, but the fact is that it's the model insurers use.

                                    As far as the moral wrong, it depends on the jurisdiction. In most if not all jurisdictions, the establishment has to have actual notice of serious intoxication. Not some suspicion that the customer wouldn't pass a breathalyzer, but objective things like loss of gross motor control. Some places also require constructive notice that the customer will be driving.

                                    Liability doesn't attach for serving one drink too many. But if a bouncer pulls a puking drunk out of the bathroom, physically places him behind the wheel of a car, and orders him to drive away (yes, this is an actual case) the bar can and should be held liable for the injuries that driver causes to innocent third parties.

                                    1. re: alanbarnes

                                      Wow, an education in a nutshell!! I think I will either get a chauffeur to drive me around or only have wine w/dinner at home LOL; after listening to all the above it makes one think they should have been born 100 years earlier!!!!

                                      1. re: ospreycove

                                        Yeah, those really were the good ol' days, weren't they? Back when drunk driving was legally and socially acceptable? What's the world coming to?

                                        Frankly, I'd rather live in a society where I'm less likely to get killed by someone else's irresponsibility. If that means I need to take a cab home occasionally and retrieve my car in the morning, it's a price I'm more than willing to pay.

                                        1. re: alanbarnes

                                          alanbar .......Not exactly I was thinking more of a horse and buggy and a Winchester '94 by the door, being self sufficient and enjoy the liberties that the USA once enjoyed. Now I settle for a small island community off the S.W. coast of Florida.

                                          1. re: ospreycove

                                            Hate to break it to you, but the good old days weren't.

                                            1. re: alanbarnes

                                              Well, I try to interpret them to being "the good old days that were!!", as I just came back with dinner, fresh caught on a no motor Kayak, caught 3 nice Pompano, just like the "old days"...............Will grill them over a wood fire tonight.

                                      2. re: alanbarnes


                                        Regardless of how the decision is made between the claims adjusters and risk litigation dept., wouldn't you agree that these dram shop laws essentially are a pleadings tool for the plaintiff?

                                        It doesn't really matter how high the standard of liability might be set because ultimately it is a question of fact.

                                        Not in my bailiwick, so I don't know, but how many of these published decisions were actually the result of summary judgment, as opposed to a trial decision?

                                        I can't imagine many defendants prevailing on a demurrer or a 12(b)(6) where dram shop laws/statutes are applicable. And conversely, I can't imagine many plaintiffs actually prevailing by summary judgment motion when the issue is so factually intensive.

                                        1. re: ipsedixit

                                          You're right, it ultimately does come down to the facts. But personal injury cases are inherently fact-driven. They're seldom decided at the pleadings stage or on summary judgment. For better or worse, it's just the nature of the beast.

                                          Which loops back in to the OP's question - because the facts of each individual case are different, it's impossible to give a simple yes-or-no answer to the question of whether liability will be imposed.

                          3. re: nkeane

                            legally, perhaps.............................
                            The OP was very SPECIFIC in asking about LEGAL responsibility, not morality.

                            This is how I and the rest of the lawgrads make our living, we leave morality up to the social scientists, religionists, etc.

                      2. Nuns don't let nuns drink and drive ;)