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SUPER BOWL OR BUST

Am I responsible for guests who drink too much at my Super Bowl party?

Spoiler Alert: Monday, February 5, 2018, is not a holiday. [i,] But it is still the Monday following America’s most-watched annual sporting event, the Super Bowl. Conventional wisdom is that too much has been invested over 50 years in the marketing of Super Bowl Sunday to change it to a better day like – Saturday. [ii,]

But we all know that no matter which day of the week the Big Game is played, one fact will remain true: alcohol will be consumed at Super Bowl parties. The question is, if you’re hosting a Big Game party at your home, as the “social host” are you responsible for the intoxication of your guests if they negligently cause injury to another person?

In Virginia, the answer is no.

On multiple occasions, the Virginia Supreme Court has adhered to the common law principle that providing alcoholic beverages to someone else, whether as a social host or licensed vendor, is too remote to be a “proximate cause of injury” to a third party resulting from the negligent conduct of the purchaser or consumer of alcohol. [iii] The underpinning of the common law is that individuals, drunk or sober, are responsible for their own wrongful acts, or “torts,” and therefore drinking the intoxicant, not furnishing it, is the proximate cause of the injury. [iv] Each time the Virginia Supreme Court has considered the issue, it has observed that it is not insensitive to the “carnage caused by drunk drivers.” [v] However, the Court has stated that legislators in the Virginia General Assembly are in the best position to deal with the myriad of social, economic, and policy considerations at work in deciding whether to impose civil liability on someone who furnishes alcohol. [vi] In layman’s terms, if the legislature thinks hosts should be held accountable for serving guests too much alcohol, they should pass a law making it so.

Many other states have laws that tie responsibility to the person supplying the alcohol, but Virginia’s longtime stance against imposing liability on social hosts is consistent with the fact that it is one of the last states clinging to the doctrine of “contributory negligence.” Contributory negligence essentially stands for the proposition that if the injured party is even slightly negligent in their own behavior, they cannot recover damages from the party whose negligence caused them injury. [vii] Arguably, the person who consumes enough alcohol to become intoxicated and then proceeds to get into an auto accident bears at least some degree of responsibility. Still, a cautionary caveat should be added: an owner who knows, or has reasonable cause to know, that he is entrusting his car to an unfit driver likely to cause injury to others, may be held civilly liable if it can be shown that such “negligent entrustment” of the motor vehicle to the drunk person was the proximate cause of the accident. [viii] Therefore, while you cannot be held civilly liable for providing alcohol to your guest, you may be liable if an intoxicated guest asks to borrow your car and you consent, give them your keys, and then they  get into an accident causing injury.

In most situations in Virginia, social hosts gracious enough to hold a Super Bowl party legally do not need to worry about the condition of their guests who consume alcohol. However, with discretion being the better part of valor, in dealing with an intoxicated guest heading home from a Super Bowl party, most who host should follow a few common sense tips [ix]:

  •       Serve plenty of food and offer non-alcoholic beverages
  •       Call a taxi, Uber, or Lyft
  •       Find a sober driver to give them a ride
  •       Offer to let them sleep it off
  •       Take their keys and tell them about the penalties for drunk driving [x]

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[i] Although many people would agree that it probably should be a holiday. An estimated 1.5 million people take sick days on the Monday following the Super Bowl, costing an estimated $820 million in lost productivity. Eamon Murphy, Why the Super Bowl should be played on Saturdays, not Sundays, https://www.businessinsider.com/why-the-super-bowl-should-be-played-on-saturday-2014-1, (January 30, 2014).

[ii] See Richard Deitsch, Super Bowl Saturday? Fans would love extra day but NFL not feeling it, https://www.si.com/more-sports/2011/02/04/super-bowl-saturday (Feb. 4, 2011).

[iii] Robinson v. Matt Mary Moran, Inc., 259 VA. 412, 525 S.E.2d 559 (2000); Williamson v. Old Brogue, 232 Va. 350, 350 S.E.2d 621 (1986).

[iv] Id.

[v] Williamson, at 353.

[vi] In Williamson, the Court rhetorically asks: “Should tavern owners alone be subjected to liability or should social hosts be liable, too? If social hosts are liable, will minors be accountable as well? Should the intoxicated purchaser have a cause of action against the tavern owner or the social host? And, should any new rule be retrospective or prospective only in its application?” Id. At 355. It should be noted, however, that criminal liability can be imposed in certain circumstances, for example, in providing alcohol to a minor. For more on underage drinking laws in Virginia, see my blog https://www.burnettwilliams.com/2017/08/contributory-negligence-virginia/ (July 6, 2017).  Additionally, it is a Class 1 misdemeanor to sell alcohol to an intoxicated person.  Va. Code § 4.1-304. Those licensed to sell alcohol may be subject to further administrative sanctions for selling to intoxicated persons. 3 VAC 5-50-10.

[vii] For an in-depth discussion of contributory negligence, see my blog Contributory Negligence in Virginia, https://www.burnettwilliams.com/2017/08/contributory-negligence-virginia/ (Aug. 3, 2017).

[viii] Turner v. Lotts, 244 VA. 554, 557 422, S.E.2d 765, 767 (1992).

[ix] https://www.statefarm.com/simple-insights/safety/ways-to-prevent-drinking-and-driving

[x] For first-time offenders, these include loss of license for 1 year, an ignition interlock device (“blow-and-go”) in your vehicle for at least 6 months, up to 12 months in jail, a $2,500 fine, and alcohol safety classes. Not to mention paying attorney’s fees, court costs, and collateral costs associated with ignition interlock and alcohol classes. See Va. Code §§ 18.2-266, 18.2-270, 18.2-270.2, 18.2-271, 46.2-391.