md court of appealsThe Maryland Court of Appeals narrowly upheld a lower court's ruling yesterday that found a bar owner not liable for the death of a drunk driver's victim. In a 4 to 3 decision—which included a dissenting opinion—the court ruled that the state legislature is the place to make any changes to the state's liability law. Maryland is one of only seven states that lack an explicit so-called "dram shop liability" statute. Such laws hold bar owners partly responsible for the damage done by customers who the bar continued to serve after they were "visibly intoxicated." In the case at hand, William J. Warr, Jr. vs. JMGH Group, LLC, Michael Eaton spent about six hours in the Dogfish Head Alehouse in Gaithersburg and drank more than 20 drinks before leaving on August 21, 2008. The bar staff finally cut Eaton off and offered to call him a cab, but he refused, getting into his vehicle and driving it more than 88 miles an hour into the Warrs' vehicle, according to the dissenting opinion. One of the daughters, Jazimen Harris, died in the crash. She was 10 years old. The Warrs sued the Dogfish Head's corporate owner and the circuit court duly found in favor of the bar, but with some reservation. "The facts of this case undoubtedly could serve as the impetus to adjusting Maryland jurisprudence on the topic of dram shop liability," the circuit judge wrote. "This Court, however, is not the proper Court to make such a radical change in Maryland jurisprudence." The Court of Appeals picked up the case "to consider, once again, whether we should adopt dram shop liability," according to the decision by Judge Lynn Battaglia, who was joined by Judges Clayton Greene, Jr. and Mary Ellen Barbera (Chief Judge Robert M. Bell retired before the decision was published but, we are assured, sided with the victors). "We shall decline to impose dram shop liability on Dogfish Head in the absence of any duty owed by the tavern to the Warrs." In Maryland, the judge explained, nobody owes anyone a duty to protect them from the harm of a third person—even if they could control or prevent that third person's harmful actions. The decision cites two previous dram shop liability decisions, in 1951 and 1981, and even makes use of a 1986 Anne Arundel County case in which a police officer encountered a drunk person behind the wheel of a running automobile, instructed the drunk to park the car and not drive it, and left. The drunk then ran over a pedestrian, who sued the cop, among others. "The Circuit Court granted the defendants' motion to dismiss on the issue of public official immunity, which we affirmed," Battaglia wrote. "We went on to state, however, that even if immunity were not applicable, liability could not attach because the officer did not owe the plaintiff a duty." About 220 people die in Maryland each year in drunk driving accidents, Judge Sally Adkins wrote in a dissent joined by Judges Glenn Harrell and Robert McDonald. The court said in 1981 that it would interpret the law as is has been traditionally "for now," awaiting action by the legislature. "After thirty-two years of inaction by the General Assembly, I urge that we no longer sit idly by, and refuse to help, as people continue to die," Adkins wrote. The dissenters say the majority got the law wrong in its analysis of the "duty" owed to third parties: "not only does the Majority disregard our precedent, but its new analysis is inconsistent with our established duty-of-care jurisprudence," Adkins wrote. The dissent then goes on to consider a risk analysis model for the law, and concludes that the bar created the risk:
In this case, Eaton entered JMGM's bar at approximately 5 P.M. on August 21, 2008. For the next six hours, the bar allegedly served him at least twenty-one alcoholic beverages to the point of Eaton becoming violent and aggressive. The bar, thus, took a non-dangerous Eaton and, by serving him drink after drink after drink, helped to transform him into a dangerous Eaton. Based on these facts, the jury could reasonably conclude that the bar's conduct, in over-serving Eaton, actively created a risk of harm to the Warrs and others, by exposing the Warrs to a greater risk than they would have faced absent the bar's conduct.
Such conduct is "misfeasance" under common law, the judge wrote, and thus it is not necessary for there to be a particular law covering dram shop liability for the bar to be liable for damages. Nevertheless, Maryland's law holds.  

TORT LAW – NEGLIGENCE – DUTY – DRAM SHOP LIABILITY by citypaper