Social Host Liability

Steven E. Tomsche, Esq.
Tomsche, Sonnesyn & Tomsche, P.A.
610 Ottawa Avenue North
Minneapolis, MN 55422
Email: [email protected]
The Minnesota Dram Shop Act, also known as the Minnesota Civil
Damages Act, provides as follows:
Subdivision 1. Right of action. A spouse, child, parent, guardian,
employer or other person injured in person, property or means of
support, or who incurs other pecuniary loss by an intoxicated person or
by the intoxication of another person, has a right of action in the person’s
own name for all damages sustained against a person who caused the
intoxication of that person by illegally selling alcoholic beverages. All
damages recovered by a minor under this section must be either, paid to
the minor or to the minor’s parent, guardian, or next friend as the court
Minn. Stat. § 340A.801.
Five elements must be satisfied to establish
liability against a Minnesota liquor vendor:
1. An illegal sale of intoxicating liquor;
2. The illegal sale caused or contributed to the allegedly intoxicated
person’s (AIP) intoxication;
3. The AIP’s intoxication was a direct cause of the plaintiff’s injury;
4. The plaintiff sustained damages recoverable under the Civil
Damage Act (CDA); and
5. Proper notice must be provided to the liquor vendor pursuant to
Minn. Stat. § 340A.802.
Was there a sale or barter of an alcoholic
A sale or barter must involve a bargained-for
exchange for liability to exist under the CDA.
Did cash change hands?
Drinks “on the house”? - for goodwill? future
Sale to an obviously intoxicated person
It is illegal to sell alcoholic beverages to any individual who is
obviously intoxicated. Minn. Stat. § 340A.502. It has been stated
that a sale is illegal when the seller, using his usual and
reasonable powers of observation, sees or should see that the
buyer is intoxicated.
A person is not obviously intoxicated within the meaning of the
dram shop statute simply by virtue of having reached a certain
blood alcohol content level.
There is a distinct difference between the term under the
influence of intoxicating liquor as used in Minnesota’s traffic
statute and the term obviously intoxicated as used in the context
of a dram shop lawsuit.
Sale to a minor or underage drinker (under 21)
A sale to a minor, defined as a person under the age of
21, is expressly prohibited under Minnesota law.
A Minnesota liquor vendor can successfully defend
against the allegation that it served an underage
drinker by establishing by a preponderance of the
evidence that it relied in good faith upon some form of
false ID.
Other Types of Illegal Sales
• Sale to a non-member of a club
• Sale after hours
• Sale on a prohibited day
• On-sale of alcoholic beverage which is consumed off
• Sale of alcohol at an establishment not properly
licensed to serve alcohol
Did the illegal sale(s) cause both the
intoxication and the accident/injury?
(1) Did the illegal sale contribute to the
(2) Was the intoxication a direct/proximate
cause of the plaintiff’s injuries or damages?
Was the intoxication only the “occasion” of the
plaintiff’s injury or damages?
Who Can Sue?
• Spouse
• Child
• Parent
• Guardian
• Employer
• Other person – e.g. fiancé
* Exception: An intoxicated person is prohibited from suing a liquor
vendor for his/her own injuries resulting from his/her voluntary
Who Can Be Sued?
Only the liquor licensee holder can be sued.
• A commercial (“for profit”) liquor vendor
Social hosts cannot be sued under the CDA.
• However, social hosts CAN be sued for serving minors
under Minnesota’s social host liability laws.
• Bodily Injury
• Loss of means of support – “reduction in standard of
living” – economic loss
• Pecuniary loss – “loss of companionship, guidance,
advice, comfort and protection”
• Property damage – “medical bills, damage to motor
vehicle, etc.”
Punitive damages are not allowed.
There is no cap on damages in a liquor liability
Municipal Liability in Dram Shop
A municipal liquor store or bar can be sued under the CDA.
Minn. Stat. § 466.04, subd. 1 limits a municipality’s liability as
Maximum liability. Subdivision 1. Limits
(a) Liability of any municipality on any claims within the
scope of sections 466.01 to 466.15 shall not exceed
(3) $1,000,000 for any number of claims arising
out of a single occurrence, for claims arising on
or after January 1, 2000…
Comparative Fault
General Rule – Comparative negligence/fault of a plaintiff
serves to reduce or bar the plaintiff’s claim in a liquor
• Negligence – failure to use reasonable care
• Complicity – buying drinks for the AIP
* Exception – Comparative negligence/fault of the
intoxicated person is not imputed to an innocent spouse
or children.
Notice Requirements
• Notice for injury/death claims must be given within 240
days of the date of entering the attorney-client
• Contribution claims – Notice must be served within 120
days after the injury occurs or within 60 days after
receiving written notice of a claim for contribution,
whichever is applicable.
Caveat for Auto Insurers
Section 340A.802, subd. 2 provides, in part:
“[in] the case of claims for contribution or indemnity,
the notice must be served within 120 days after the
injury occurs or within 60 days after receiving written
notice of the claim for contribution or indemnity,
which ever is applicable.”
Consequences of Giving Bad Faith Notice
• Liability for actual damages
• Reasonable out-of-pocket attorney fees
Statute of Limitations
All claims/lawsuits must be brought within 2 years of
• Tolling does not apply to a lawsuit brought
pursuant to the CDA.
Joint and Several Liability
Minnesota law provides that a liquor vendor is liable, jointly and
severally, with other tortfeasors.
In the 2003 legislative session, the Minnesota Legislature approved
an amendment to Minn. Stat. § 604.02, subd. 1 that substantially
altered Minnesota law with respect to joint and several liability.
The new law provides:
When two or more persons are severally liable, contributions to
awards shall be in proportion to the percentage of fault attributable
to each, except that the following persons are jointly and severally
liable for the whole award:
1. a person whose fault is greater than 50%...
Joint and Several Liability
The impact of this change in dram shop cases is
enormous because the intoxicated person who caused
the accident typically has both the greatest degree of
fault and least ability to pay a judgment.
Juries typically place about 20% fault on the liquor
establishment when an illegal sale is found and about
80% to the intoxicated driver.
The legislature recognizes that early investigation is crucial in a
dram shop claim. That is why there is a notice requirement of 240
days commencing on the date of the attorney/client relationship
• It is wise to retain a professional investigator to conduct
the investigation.
• The investigator should attempt to interrogate the AIP as
soon as possible.
• The investigation should focus on the location of the
drinking, the amount of alcoholic beverages consumed,
signs of intoxication, potential witnesses, and how the
motor vehicle accident occurred.
Social Host Liability
In Minnesota, social host liability stems from the illegal
act of providing alcohol to an individual under 21 years
There are two causes of action against a social host in
• Minn. Stat. § 340A.801, subd. 6
• Minn. Stat. § 340A.90
Minn. Stat. § 340A.801, subd. 6
Common law claims. Nothing in this chapter precludes
common law tort claims against any person 21 years or
older who knowingly provides or furnishes alcoholic
beverages to a person under the age of 21 years.
Minn. Stat. § 340A.90
Subdivision 1. Right of action. (a) A spouse, child parent, guardian,
employer, or other person injured in person, property, or means of
support, or who incurs other pecuniary loss, by an intoxicated
person under 2 years of age or by the intoxication of another
person under 21 years of age, has for all damages sustained a
right of action in the person’s own name against a person who is 21
years or older who:
had control over the premises and, being in
a reasonable position to prevent the
consumption of alcoholic beverages by that
person, knowingly or recklessly permitted
that consumption and the consumption
caused the intoxication of that person. . .
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