Defense Digest

No Dram Shop Liability In Delaware

In two related opinions granting the defendants' motions for summary judgment, the Delaware Superior Court dismissed wrongful death and survival actions brought against a social host, a tavern and its bartenders, who served alcohol to a driver involved in a fatal accident, finding that there is neither a statutory nor common law basis for dram shop or social host liability for the actions of an intoxicated guest in Delaware.

The matter of Shea v. Matassa, Del. Super., Civ. A. No. 05C-07-224-PLA, arose from a July 18, 2004, head-on collision in which Delaware State Police Corporal Christopher Shea was struck and killed by a vehicle driven by Philip Healy, who also died in the accident. Healy's sister, defendant Kathryn Matassa, served him alcoholic beverages at her home until approximately 11:30 p.m., when Healy drove to defendant XL Group's business, the Arena's Bar & Deli, where he consumed several more alcoholic beverages served by employees of Arena's, including defendant Christopher Bisaha and another bartender identified in the lawsuit as "John Doe." The autopsy performed on Healy determined that his blood alcohol level was 0.336, more than four times the legal limit in Delaware of 0.08.

Matassa sought summary judgment under Delaware precedent, holding that a social host owes no duty to provide safe premises to a business invitee who was struck by an intoxicated guest. DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988). Further, under Delaware's premises guest statute, 25 Del. C. § 1501, landowners are free from liability for injuries caused to guests in the absence of "willful or wanton disregard of the rights of others."

The tavern owner, XL Group, and its bartenders, Bisaha and "John Doe," sought summary judgment "on the ground that neither the Delaware Courts nor the Delaware Legislature recognize either a statutory or common law cause of action against a tavern owner for injuries suffered by third parties as a result of the tortious act of an intoxicated patron."

The plaintiffs, acknowledging that they were arguing for a change in the law, pressed the public policy concerns and urged the Superior Court to create a common law cause of action in the face of legislative inertia on the issue of dram shop liability. In support of their position, the plaintiffs pointed out that less than a week prior to this accident, Delaware's DWI statute, 21 Del. C. § 4177, was amended to lower the legal blood alcohol limit from 0.10 to 0.08, as well as the redirected focus of the State's Alcoholic Beverage Control Commissioner from licensing to enforcement. These changes, argued the plaintiffs, illustrate Delaware's "growing concern for the safety of its citizens as it relates to the responsibility of commercial servers of alcohol to ensure that their patrons are served in a responsible and appropriate manner." The plaintiffs bolstered their arguments with data and statistics from other states showing the effect and advantages of dram shop legislation or judicial acceptance of a common law cause of action in reducing alcohol-related traffic fatalities by ten percent or more, and they put a fine point on their presentation with a statistical analysis showing that, per capita, Delaware's "alcohol related fatality trend is one of the deadliest in the nation."

Recounting 25 years of well-established, monolithic Delaware Supreme Court precedent finding no dram shop liability and legislative inaction on the issue, the Superior Court observed that "the parties cannot dispute the fact that the Supreme Court has consistently and historically appealed to the General Assembly to address the public safety concerns raised here."

Recognizing the tragic circumstances of the accident, the court commented that "the gruesome death of a police officer in the line of duty caused by a driver whose blood alcohol concentration was nearly four times the legal limit is certainly ample justification for attracting the court's attention on this issue and there is little doubt that such a statute would serve the best interests of the citizens of Delaware."

In spite of the persuasive facts and public policy arguments, the Superior Court held that "nothing plaintiffs have argued either expressly or impliedly abdicates the Delaware Supreme Court's singular authority to overrule its prior cases or exempts lower courts from generally applicable principles of stare decisis. To find otherwise would be a dangerous usurpation, not only of the State Supreme Court authority, but also of the legitimate right of elected legislatures to create causes of action by statute." Shea v. Matassa, Del. Super., Civ. A. No. 05C-07-224-PLA, 2006 Del. Super. LEXIS 13, Ableman, J., Op. & Ord. (Jan. 10, 2006).

The plaintiffs' approach in seeking social host liability against Matassa, the social host, was premised upon similar public policy arguments and bolstered by their argument that "the alcohol industry is highly regulated by the General Assembly, while social hosts are not." Incorporating by reference the rulings in the earlier-argued and decided opinion and order granting XL Group's summary judgment motion, the court held that "it would be anomalous for this court to find that social hosts may be liable in light of my previous holding that dram shop liability does not exist in this state."

The trial court, thereafter, summarily concluded that "it is not within the power of a trial court to create a new common law cause of action, and I again emphasize that while I am sympathetic to the tragedy of Christopher Shea's death, I am unwilling to usurp the authority of the Supreme Court and the legitimate right of the Legislature to create such a cause of action." Shea v. Matassa, Del. Super., Civ. A. No. 05C-07-224-PLA, 2006 Del. Super. LEXIS 146, Ableman, J., Op. & Ord. (Mar. 31, 2006).

The plaintiffs appealed both decisions to the Delaware Supreme Court, where it is in the briefing stage. The Supreme Court requested amicus curiae briefs from the plaintiffs' bar, the defense bar, and the tavern industry.

In reading the Superior Court's decisions, the dilemma confronting the trial judge is palpable. While "justice" is defined differently, depending upon which side of the bar one stands, the trial judge was striving to achieve the balance required by separation of powers principles and striving to maintain the due respect for established precedent that brings stability to our system of justice.

The trial court's opinions may be read as a call to action in support of dram shop legislation. However, in tone and tenor they are little different from the Supreme Court precedents upon which the dismissals depend. Of note in that regard is the Supreme Court's oft-repeated observation from its first decision denying any common law dram shop liability cause of action that "the General Assembly is in a far better position than this Court to gather the empirical data and to make the fact finding necessary to determine what the public policy should be as to a dram shop law, and the scope of any such law." Wright v. Moffit, 437 A.2d 554, 556 (Del. 1981).

If the Supreme Court is consistent, it will likewise uphold its own precedents and reach the same conclusion; this is a matter best left to elected representatives.

*Scott Shannon is an associate in our Wilmington, Delaware office. He can be reached at jsshannon@mdwcg.com or (302) 552-4329.