Alcohol

The repeal of Prohibition forced states to address once more the dangers posed by excessive alcohol consumption. The risks are well documented. The National Highway Traffic Safety Administration (NHTSA) estimated that, in 2001, alcohol was involved in 41 percent of all fatal crashes (over 17,000 fatalities). NHTSA also estimates that three out of ten Americans will be involved in an alcohol-related crash sometime during their lives. Alcohol is the most widely used drug among teenagers and is linked to juvenile crime, health problems, suicide, date rape, and unwanted pregnancy. Alcohol-related traffic accidents are the leading cause of death among 15- to 24-year-olds.

In the face of rising concerns about liquor consumption and personal injury, many states chose to regulate alcohol through DRAMSHOP LAWS. A dramshop is any type of drinking establishment where liquor is sold for consumption on the premises. Dramshop statutes impose liability on sellers of alcoholic beverages for injuries caused by an intoxicated patron. Under such statutes, a person injured by a drunk patron sues the establishment where the patron was served. The purpose of dramshop laws is to hold responsible those who enjoy economic benefit from the sale of liquor, thereby ensuring that a loss is not borne solely by an innocent victim (as when the intoxicated person who caused the injuries has no assets and no insurance).

The first dramshop law, enacted in Wisconsin in 1849, required saloons or taverns to post a bond for expenses that might result from civil lawsuits against their patrons. Many states followed Wisconsin's lead, and dramshop laws were prominent until the 1940s, 1950s, and 1960s, when most were repealed. However, the 1980s brought renewed concern over the consequences of overindulgence in alcohol, and public pressure led to the passage of new dramshop statutes. By 1993, 36 states had imposed some form of liability on purveyors of alcoholic beverages for injuries caused by their customers.

All states and the District of Columbia also regulate the sale of liquor to minors or to individuals who are intoxicated. Challenges to the age restriction on EQUAL PROTECTION grounds have been unsuccessful.

Along with statutory measures, most courts have also recognized a common-law CAUSE OF ACTION against alcohol vendors for the negligent sale of alcohol. In Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), the court held that a tavern could be held liable for the plaintiff's husband's death after the tavern served an intoxicated minor who caused the accident that killed the man. The court relied on the public policy concerns underlying liquor control laws. Such laws are intended to protect the general public as well as minors or intoxicated persons, the court reasoned, and therefore the tavern should be held liable if its NEGLIGENCE was a substantial factor in creating the circumstances that led to the husband's death. Under Rappaport, serving as well as consuming alcohol can be construed to be the proximate cause of an injury. A majority of jurisdictions now follow the Rappaport court's reasoning.

In determining the extent of an alcohol vendor's liability, a growing number of courts apply comparative negligence principles. Comparative negligence assesses partial liability to a plaintiff whose failure to exercise reasonable care contributes to his or her own injury. In Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992), and Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988), the plaintiffs sued under dramshop statutes for injuries suffered when they rode with drunk drivers. The courts in both cases recognized the importance of dramshop statutes in protecting innocent victims of drunk behavior. However, they also recognized the need to hold individuals responsible to some degree for their own safety. Under comparative negligence, which divides liability among the parties in accordance with each party's degree of fault, both goals are achieved.

A few courts have extended liability for injuries to social hosts who serve a minor or an intoxicated guest. In Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), the New Jersey Supreme Court found both the host and the guest jointly liable when the guest had an accident after drinking at the host's house. The court based the host's liability on his continuing to serve alcoholic beverages to the guest when he knew the guest was intoxicated and likely to drive a car. Similarly, in Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985), the Wisconsin Supreme Court held that a social host was negligent for serving liquor to a minor guest at a graduation party. The guest was later involved in a motorcycle accident in which the plaintiff was injured. However, the Ohio Supreme Court refused to extend liability to the social host in Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St. 3d 123, 464 N.E.2d 521 (1984). The court in Settlemyer held that assigning liability to a social host is a matter better left to the legislature.

All states and many local governments regulate the sale of alcohol through the issuance of licenses. These licenses limit the times and locations where liquor sales can take place. The government also regulates alcohol through taxation. Current taxes on liquor serve the same dual purpose as did the first excise tax on liquor when it was proposed by ALEXANDER HAMILTON in 1791: they provide a source of revenue for the government and, theoretically, discourage overindulgence. Enforcement of the laws regulating alcohol and taxing it is carried out by the Bureau of ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES (ATF), an agency of the U.S. JUSTICE DEPARTMENT, and the Tax and Trade Bureau (TTB), an agency of the TREASURY DEPARTMENT, respectively. The collection of alcohol revenues is important to the federal government: in 2001, liquor taxes exceeded $7.6 billion.

During the 1980s and 1990s, public awareness of the dangers of alcohol led to a number of changes in the law. Specifically, special interest groups such as MOTHERS AGAINST DRUNK DRIVING (MADD) and Students Against Drunk Driving (SADD) pressured state legislatures to greatly increase enforcement and penalties for driving while intoxicated (DWI). Criminal statutes make DWI a misdemeanor offense. Historically, few persons served jail time unless they were repeat offenders. Moreover, prosecutors often reduced DWI charges to lesser charges, such as reckless driving, so defendants could avoid the stain of a DWI conviction on their driving records.

MADD was formed by mothers of children who had been killed by drunk drivers. They were outraged at the way the criminal justice system treated DWI crimes. A major focus in the 1990s for MADD was convincing state legislatures to reduce the blood alcohol count needed to constitute a DWI offense. Specific blood-alcohol concentration (BAC) limits varied from state to state, but .10 percent BAC usually qualified as driving while intoxicated. MADD sought to reduce the BAC to .08 percent and successfully lobbied many state legislatures. However, alcohol wholesalers, retailers, and the hospitality industry fought a lowered BAC, arguing that it would hurt business and unfairly penalize drivers.

The debate moved to the national level in 1998 when Congress first rejected and then enacted legislation that requires all states to lower the drunken driving arrest threshold to .08 percent. States that failed to change their laws would forfeit millions of dollars in federal highway construction funds. By the end of 2002, one-third of the states had not complied with the law, arguing that studies did not show that a reduction from .10 to .08 BAC saved many lives. Opponents of the law contended that a .08 BOC merely led to thousands of additional arrests of casual drinkers who did not pose a serious safety risk. The additional arrests absorbed more police and prosecutorial resources, which would not be offset by the federal highway funds.

An increased knowledge about the consequences of alcohol consumption also had an effect on the makers of alcohol. Concerned individuals felt that liquor manufacturers had the duty to warn consumers that their product may be hazardous. Before 1987, manufacturers of alcoholic beverages were immune from civil liability for injuries resulting from the use of liquor. Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982), held that the defendant did not have a duty to warn the plaintiff of the dangers of its product. The court stated that the dangers inherent in the use of alcohol are "common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous."

Garrison was followed by other jurisdictions until 1987 when Hon v. Stroh Brewery, 835 F.2d 510 (3d Cir. 1987), signaled a shift in judicial sentiment. In Hon, the plaintiff's 26-year-old husband died of pancreatitis attributable to his moderate consumption of alcohol over a six-year period. The plaintiff alleged that the defendant's products were "unreasonably dangerous" because consumers were not warned of the lesser-known dangers of consumption. The court, relying on the Restatement (Second) of Torts § 402A, held that a product is defective if it lacks a warning sufficient to make it safe for its intended purpose. Since the general public is unaware of all the health risks associated with liquor consumption, the court found the defendant liable for failing to warn the plaintiff.

The reasoning in Hon has been followed in other cases, including Brune v. Brown-Forman Corp., 758 S.W.2d 827 (Tex. Ct. App. 1988), where the court found that the defendant's product was unreasonably dangerous because it bore no warning about the dangers of excessive consumption. The plaintiff's daughter, a college student, died after consuming 15 shots of tequila over a short period of time.

The duty of liquor manufacturers to warn consumers of the hazards of drinking was codified when Congress passed the Alcoholic Beverage Labeling Act of 1988 (27 U.S.C.A. § 215). The act requires all alcoholic beverage containers to bear a clear and conspicuous label warning of the dangers of alcohol consumption.

The United States's long history of ambivalence toward the consumption of alcoholic beverages shows no sign of abating. At the same time that manufacturers are required to warn consumers about the health risks inherent in liquor, some medical studies indicate that certain health benefits may be associated with moderate imbibing.