Visible Intoxication and Civil Liability: When Does One Drink Become One Too Many?
Liability for social hosts and licensed servers will usually attach only if the individual who consumed alcohol (and subsequently drove drunk) was perceptibly intoxicated at the time of service. But even as to “visible intoxication,” there are differences in meaning and application.
By Mark R. Scirocco
March 11, 2021
A social host or bar that serves alcohol to an intoxicated guest may face civil liability if the guest later drives drunk and injures a third party. The legal framework that governs claims against hosts and dram shops varies, however, based upon where and by whom the alcohol is consumed. While one law governs negligence claims against licensed servers (e.g., bars, restaurants, and liquor stores), a separate statute regulates lawsuits brought against individuals who legally serve alcohol to others in their homes. Still yet another set of rules applies to claims against homeowners who host gatherings in which alcohol is served to minors.
One common feature in all of the above frameworks is the element of “visible intoxication.” That is, liability for social hosts and licensed servers will usually attach only if the individual who consumed alcohol (and subsequently drove drunk) was perceptibly intoxicated at the time of service. But even as to “visible intoxication,” there are differences in meaning and application. Understanding these distinctions is crucial for the prosecution or defense of a litigant’s claim.
Visible Intoxication in the Dram Shop Act
The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, commonly known as the Dram Shop Act, makes clear that a licensed alcoholic beverage server can only be held liable in the event of service to either: 1) a visibly intoxicated person; or 2) a minor whom the server knew or should have known was under the age of 21. Thus, aside from a situation involving a minor, in which case the service of any alcohol can lead to civil liability, a dram shop will not be found negligent absent a showing of a guest’s visible intoxication.
The Supreme Court’s decision in Mazzacano v. Estate of Kinnerman, 197 N.J. 307 (2009), is helpful in understanding visible intoxication in a dram shop setting. That case involved a social club that dispensed alcohol at a yearly pig roast. Guests served themselves beer from a tap, which nonetheless qualified as “service” by the club under the Dram Shop Act. One of the guests left at the end of the event and lost control of his car, causing the deaths of himself and three others people.
The question presented in Mazzacano was whether the social club had an independent duty to monitor guests’ self-service of alcohol. The court ruled that the failure to monitor alone was not enough to hold the social club accountable under the Dram Shop Act. Instead, a showing had to be made that the guest was allowed to drink while he was visibly intoxicated. In Mazzacano, no one observed signs of visible intoxication in the guest who later drove drunk. Thus, a verdict in favor of the social club was justified.
Visible Intoxication in the Social Host Liability Act
Turning to claims that can arise when ordinary social hosts legally serve alcohol—over 21 serving over 21—in their homes, the Social Host Liability Act also makes visible intoxication a necessary element of liability. The social host is responsible only if he “willfully and knowingly” provided alcoholic beverages “[t]o a person who was visibly intoxicated in the social host’s presence,” or “[t]o a person who was visibly intoxicated under circumstances manifesting reckless disregard of the consequences as affecting the life or property of another[.]”
The Social Host Liability Act defines visible intoxication as “a state of intoxication accompanied by a perceptible act or series of actions which present clear signs of intoxication.” This is the same definition of visible intoxication that applies in the Dram Shop Act. The Social Host Liability Act goes a step further, however, by offering explicit guidance on the levels of blood alcohol concentration as connected to visible intoxication. If there is “less than 0.10% by weight of alcohol in the blood” then there is an “irrebuttable presumption” that the guest was not visibly intoxicated in the social host’s presence. Thus, in the face of a guest who was intoxicated with less than 0.10% blood alcohol concentration, the social host is absolved of liability. Meanwhile, in the event of “at least 0.10% but less than 0.15% by weight of alcohol in the blood” there is a “rebuttable presumption” that visible intoxication was lacking.
The specificity with which the Social Host Liability Act addresses visible intoxication gives an added layer of protection to those who legally serve alcohol in their homes. This undoubtedly reflects the Legislature’s judgment that there is a societal benefit to such gatherings. Furthermore, the legal service of alcohol in the home can be accompanied by sensitive social realities, such as a host serving clients or a boss. Not only can such gatherings be awkward to police, but adults who legally serve alcohol in their homes are not ordinarily an affront to public safety. As such, the Social Host Liability Act limits a host’s liability to an express set of defined circumstances involving visible intoxication.
Visible Intoxication of Minors Served in the Home
But what about a case in which the social benefit of a gathering is questionable or altogether nonexistent? The Supreme Court addressed precisely such a situation in Estate of Narleski v. Gomes, 244 N.J. 199 (2020). That case involved a gathering in which alcohol was illegally provided to 19- and 20-year-old minors by a 19-year-old host. Because neither the Dram Shop Act nor the Social Host Liability Act governs such conduct, the court imposed a duty on the underage host as a matter of common law. In doing so, the court made clear that the minor guest’s visible intoxication is an essential element of any claim.
There is a question, however, as to whether the guest must be visibly intoxicated at the time he was served or, instead, at any point while in the host’s presence. To illustrate this distinction, imagine a case in which an underage social host invites other minors to his home to consume alcohol. Upon arrival at the house, the underage guests are sober. The guests consume several shots of hard alcohol in quick succession, but because no one previously had anything to drink, there is no sign of visible intoxication when the drinking occurs. Once drinking has stopped, however, perceptible signs of intoxication begin to manifest. One guest, after being visibly intoxicated in the host’s presence, drives drunk from the home and kills a third party.
In such a case, should the host be absolved of liability merely because the underage guest was not visibly intoxicated at the time of service? The court’s opinion in Estate of Narleski offers conflicting answers to this question. On the one hand, the court ruled that there is no liability unless the social host knowingly serves or allows service to a visibly intoxicated underage guest. On the other hand, the court recognized the host’s duty to take steps to prevent a guest from operating a car if the guest “becomes” visibly intoxicated.
Ultimately, there is good reason to believe that courts will not excuse a social host of liability in the face of evidence that a minor guest was visibly intoxicated while at the gathering. The overriding framework of the court’s decision in Estate of Narleski is this State’s strong public policy against drunk driving. The dangers of drunk driving are particularly apparent when it comes to those who are underage and have a lower alcohol tolerance. As the court pointed out, drivers between the ages of 16 and 20 are 17 times more likely to die in a crash when they have a BAC of 0.08% or higher.
For guests under 21, signs of visible intoxication—at the time of service or otherwise—may lead to a host’s being subject to civil liability. Were this not the case, courts would in effect create a loophole that would sanction the very activity that the Supreme Court has so strongly condemned.