The Gazette 1991

i SEPTEMBER 1991

GAZETTE

Civil Liability for the Supply and Sale of Intoxicating Alcohol Massachusetts Experience

Company X has for years permitted its employees to hold an informal 'happy hour' each Friday evening. Although Company X does not supply or subsidise the purchase of alcoholic beverages, it does make space available for the occasion and presumably also supplies cups, ice, and the like. No effort is made by Company X to prohibit the drinking of alcohol by persons under 21 years of age, the minimum legal drinking age in Massachusetts being 21. Company

violated this provision. (See Langemann -v- Davis, 398 Mass. 166, 168 n.2 (1986). Although Company X as a corporation does not itself furnish alcoholic beverages, the concern is that it might be held vicariously res- ponsible for its employees who actually purchase the alcohol and . . . [a company] might be held vicariously responsible for its employees who . . . purchase alcohol and deliver it to the premises." deliver it to the premises. In any case, Company X's criminal law exposure under this statutory provision is, at the least, problematic. Second, regardless of the potential for criminal penalties * (Gregory Glynn is the resident Irish solicitor and US Associate in the US office of the Dublin firm of Arthur Cox).

My first Christmas in Ireland, after five years in Massachusetts was illuminating, the main reason being the diligent Garda enforcement of the criminal law against drunken driving. In the United States over the last several years there has been a public demand for a complete crackdown on drunken driving. Considerable success has resulted in stricter civil laws being passed in a number of the indi- vidual states to curtail drunken driving. A lot of this success is due to voluntary organisations, most particularly the lobby organisation known as Mothers Against Drunk Driving (MADD). The laws of these states are sometimes referred to as "Dram Shop" statutes or civil liability statutes. They impose liability on the seller of intoxicating alcohol when a third party is injured as a result of the intoxication of the buyer where the sale has caused or contributed to such intoxication. Several states' laws apply to gifts as well as sales of alcohol. Also, in some instances, a remedy is given to the dependant family of a seriously injured third party for loss of support of the "breadwinner', just as it would apply if the third party died. In Massachusetts, there are no 'Dr am Shop' s t a t u t es wh i ch impose civil liability against one who furnishes alcoholic beverages to a person who becomes intoxi- cated and thereafter negligently injures or kills a third person. In Massachusetts, any civil liability in such cases is still grounded in the common law of negligence - thus offering a more useful comparison for Irish lawyers. The following is a Massachusetts' case study!

by Gregory Gl ynn* Solicitor

X does not receive any form of compensation as a result of these gatherings. At least two sets of legal issues are raised by this example. First, under Massachusetts law, it is a criminal offence to sell or deliver alcoholic beverages to any person under 21 years of age. Specifically, M.G.L. c.138, Section 34 provides that "whoever makes a sale or delivery of any alcoholic beverage or alcohol to a person under 21 years of age . . . shall be punished by a fine of not more than $2,000 or by imprisonment for not more than six months, or both." It is not at all clear whether Company X, by simply, providing space for these weekly get-togethers, is "selling" or "delivering" alcoholic beverages to underage individuals. However, in a recent case, the Massachusetts Supreme Judicial Court suggested that a social host who provided alcoholic beverages to a minor may be found to have

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