C&P Wins Novel Decision Regarding Alcoholic Beverage Regulation

Recently, the D.C. Superior Court, Honorable Michael L. Rankin, granted (in part) Clinton & Peed’s motion for partial summary judgment in a novel wrongful death case, Kaba v. El Tio of D.C., Case No. 2017 CA 6032 B (D.C. Sup. filed Aug. 30, 2017), involving over-service of alcohol to a person of “notoriously intemperate habits.”

D.C.’s Alcoholic Beverage Control Act was signed into law on January 24, 1934 in the post-Prohibition Era, prohibiting the sale or delivery of alcohol “to any intoxicated person or to any person of notoriously intemperate habits or to any person who appears to be intoxicated.” D.C. Alcohol Beverage Control Act, Pub. L. No. 73-85, 48 Stat. 319, 331 (1934). This prohibition codified similar prohibitions that had existed for centuries. See, e.g., Fink v. Garman, 40 Pa. 95 (1861) (finding an innkeeper liable after a person of “known intemperate habits” “became so inebriated that he fell from his horse under the wheels of his wagon, and was instantly killed”). Although the statute has undergone some changes over the years, the prohibition on service to habitual drunkards has remained. Nevertheless, we are aware of no case enforcing the prohibition in the District.

In Kaba, Clinton & Peed’s client, a widow, sued restaurant El Tio of DC under a theory of negligence per se arising from the death of her husband, who patronized the restaurant two to three times a week from about October 2014 through May 2015. According to El Tio, the decedent arrived at El Tio on May 13, 2015 around 6:00 or 7:00 pm, already intoxicated, and stayed at the restaurant for approximately four hours. During that time, El Tio admitted to serving him at least two beers and a margarita with a four-ounce shot of tequila. The decedent collapsed in the restaurant on his way out the door, and was taken to the emergency room, where they discovered that he had a blood alcohol content of 0.202—more than 2.5 times the legal limit. The decedent remained at the hospital in critical care for over three months before dying of complications.

In his ruling on summary judgment, the Court issued several novel rulings:

  • First, the Court held that the statute prohibiting service to a “person of notoriously intemperate habits” was enacted to protect such persons from their own consumption of alcohol. This decision built upon the holding of Jarrett v. Woodward Bros., 751 A.2d 972, 984-85 (D.C. 2000), which found that the same statute was designed to protect intoxicated underage patrons from injuries sustained as a result of their intoxication.

  • Second, the Court held that the theories of contributory negligence and assumption of risk are not available in cases of negligence per se arising from over-service to a “person of notoriously intemperate habits.”

  • And third, for the first time in history, the Court found that a restaurant was liable in negligence per se for over-service to a “person of notoriously intemperate habits.” Specifically, the Court found that the decedent “showed up at El Tio two to three times a week, and on at least one instance per week [he] was already intoxicated. Further, El Tio created a three-drink maximum policy for [the decedent around November 2014] due to his habit of showing up intoxicated and becoming too intoxicated. Plaintiffs have therefore established that El Tio’s employees knew that the decedent was a habitual and excessive drinker,” and thus violated the statute when it served him alcohol on May 13, 2015.

The Court’s ruling necessarily implies that El Tio also violated the statute two to three times a week every time it served alcohol to the decedent after establishing the alleged three-drink maximum policy, as the policy was allegedly enacted because of his “notoriously intemperate habits.” It also implies that the restaurant’s actions entitle his widow to punitive damages: the restaurant’s employees knew they were serving alcohol to a habitual drunkard, and “reckless[ness] toward the safety of the plaintiff” is sufficient to justify punitive damages. Croley v. RNC, 759 A.2d 682, 695 (D.C. 2000). A pretrial conference is scheduled for July 2019, and the case is set to go to trial on the remaining issues—including causation and damages—shortly afterwards.

The case should serve as an important reminder to establishments licensed by the Alcohol Beverage Regulation Authority to review their policies and practices, and ensure compliance with all of the service regulations, including those that apply to persons of “notoriously intemperate habits.”

Timothy Clinton