Dram Shop Liability in South Carolina

“Dram Shop Acts” are state statutes that impose civil liability on barkeepers for the injuries a customer causes to third parties when they knew, or should have known, that such customer was intoxicated when they served him.

 

South Carolina does not have a Dram Shop Act per se, but in Hartfield v. The Getaway Lounge & Grill, Inc.,  a decision that was rendered on July 26, 2010, the Supreme Court of South Carolina demonstrated that South Carolina can be very forceful in imposing liability on bar owners under other legal theories.

 

The case involved a customer who spent a night bar hopping.  His second stop of the night was at The Getaway Lounge & Grill, where he arrived at 7:15 and left between 9:30 and 10:00.   One of the owners of The Getaway testified that he did not appear intoxicated while he was there.   He then stopped by yet another bar where he may or may not have consumed more alcohol. 

 

At approximately 10:51, the customer drove his vehicle across the center line of a roadway and struck plaintiff Hartfield’s car.  The customer died in the crash.  Fluid samples taken from his body indicated that his blood alcohol content (“BAC”) was .212 (at the time of the accident the legal limit in South Carolina was .10).  At trial, a forensic chemistry expert, using a method known as “retrograde extrapolation,” estimated that his BAC when he left The Getaway must have been between .18 and .20 and that, therefore, “he would have been grossly intoxicated and exhibiting symptoms of intoxication.”

 

Although South Carolina does not have a Dram Shop Act, it is illegal in South Carolina to  “knowingly” serve alcohol to any person who is intoxicated.  Furthermore, at the time of the accident South Carolina DUI law stipulated that there is a “permissive inference” that a person was under the influence if that person has a BAC of .10.  The Getaway’s liability was predicated on the violation of these two criminal statutes.  As Justice Toal stated, “[b]ecause South Carolina does not have a Dram Shop Act, our civil remedy arises out of criminal statutes.” 

 

The Getaway countered with a number of arguments: that the testimony of the forensic chemist was “speculative,” that the deceased customer’s fluid samples were obtained in a manner that violates South Carolina’s implied consent laws, that the customer would have had to be “visibly” intoxicated when he left The Getaway for liability to attach.

 

The Supreme Court rejected all of these arguments.  The Court stated that there was sufficient circumstantial evidence to support the forensic chemist’s expert testimony.  And although the fluid samples may have been obtained in violation of applicable statutes, this violation would only affect admissabilty of such evidence in a criminal proceeding.  Finally, the Court noted that the statute that prohibits sales of alcohol to intoxicated persons merely makes it illegal to “knowingly” sell alcohol to intoxicated persons, there is no requirement that such person be “visibly” intoxicated.

 

On the basis of these arguments, the Supreme Court upheld the trial court’s $10 million verdict against The Getaway Lounge & Grill  and its owners.