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GAZETTE
i SEPTEMBER 1991
Civil Liability for the Supply and Sale
of Intoxicating Alcohol
Massachusetts Experience
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!
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
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
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).
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