Law School Case Brief
Berg v. Zummo - 00-1699 ( La. 04/25/01), 786 So. 2d 708
When a bar serves alcohol to a minor and that minor causes damage to another because of his intoxication, La. Rev. Stat. Ann. § 9:2800.1 does not immunize the bar from liability, nor is it absolutely liable; instead, the court must determine whether the vendor violated general negligence principles, applying the traditional duty/risk analysis.
Plaintiff Matthew Berg filed a negligence action against defendant Philip Zummo, alleging that Zummo and several of his companions accosted and beat him. At his criminal trial, Zummo testified that he was only 17 years old at the time of the incident, and that he had been drinking inside “The Boot” immediately before the incident. Based on this testimony, Berg amended his petition to name The Boot as a defendant and alleged that The Boot’s negligence in serving Zummo alcohol was a proximate cause of his injuries. After a four day jury trial, the jury rendered a verdict in favor of Berg, finding that the actions of The Boot in serving alcoholic beverages to Zummo was a cause in fact, although it may not be the only cause in fact of the damages suffered by Berg. Furthermore, the jury found that the intoxication of Zummo was a proximate cause of the damages suffered by Berg. The state appellate court reversed, finding that, as a matter of law, “merely serving alcohol to an underage person who becomes intoxicated and causes injury to others or to himself is not an 'affirmative act' which can result in liability of the bar.” In addition, the court of appeal reversed the punitive damages award, finding, as a matter of law, that the punitive damages statute did not allow the imposition of punitive damages against persons who have allegedly contributed to the driver's intoxication. Berg was granted a writ of certiorari to the Supreme Court of Louisiana.
- By serving alcoholic beverages to a minor, could defendant tavern/bar be held liable for injuries caused by the minor to a third person?
- Could the defendant tavern/bar be held liable for punitive damages?
The Supreme Court of Louisiana held that in the absence of a "dramshop" act, a traditional duty/risk analysis was applied to the question of the liability of the establishment that had served alcohol to the defendant minor. Under that analysis, a vendor of alcoholic beverages had a duty to refrain from selling or serving alcohol to a minor. If a vendor failed to conform its conduct to that standard, and that substandard conduct was both a cause in fact and a legal cause of injuries to a plaintiff, resulting in actual damages, the vendor would be liable for those damages. However, as the punitive damages provision under La. Civ. Code Ann. art. 2315.4 was intended to penalize only intoxicated drivers of motor vehicles, a vendor of alcohol would not be liable for punitive damages for selling or serving alcohol to an intoxicated person whose intoxication while operating a motor vehicle caused injury.
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