PRINTER'S NO. 1672
No. 1434 Session of 1989
INTRODUCED BY SALOOM, COLAIZZO, McCALL, NOYE, OLASZ, STABACK,
BELARDI, BILLOW, HALUSKA, KOSINSKI, ROBINSON, TIGUE,
D. W. SNYDER, LESCOVITZ, JAROLIN, VEON AND BUNT, MAY 22, 1989
REFERRED TO COMMITTEE ON LIQUOR CONTROL, MAY 22, 1989
AN ACT
1 Amending the act of April 12, 1951 (P.L.90, No.21), entitled, as
2 reenacted, "An act relating to alcoholic liquors, alcohol and
3 malt and brewed beverages; amending, revising, consolidating
4 and changing the laws relating thereto; regulating and
5 restricting the manufacture, purchase, sale, possession,
6 consumption, importation, transportation, furnishing, holding
7 in bond, holding in storage, traffic in and use of alcoholic
8 liquors, alcohol and malt and brewed beverages and the
9 persons engaged or employed therein; defining the powers and
10 duties of the Pennsylvania Liquor Control Board; providing
11 for the establishment and operation of State liquor stores,
12 for the payment of certain license fees to the respective
13 municipalities and townships, for the abatement of certain
14 nuisances and, in certain cases, for search and seizure
15 without warrant; prescribing penalties and forfeitures;
16 providing for local option, and repealing existing laws,"
17 further providing for the liability of certain licensees for
18 serving alcoholic beverages.
19 The primary legislative purpose of the act is to prevent
20 intoxication-related traumatic injuries, deaths and other
21 damages, as specified in this act. The secondary legislative
22 purpose is to establish a legal basis for obtaining compensation
23 for those suffering damages as a result of intoxication-related
24 incidents in accordance with the provisions of this act.
25 The General Assembly of the Commonwealth of Pennsylvania
1 hereby enacts as follows:
2 Section 1. Section 497 of the act of April 12, 1951 (P.L.90,
3 No.21), known as the Liquor Code, reenacted and amended June 29,
4 1987 (P.L.32, No.14), is repealed.
5 Section 2. The act is amended by adding an article to read:
6 ARTICLE IV-A.
7 Retail Licensee Liability.
8 Section 401-A. Short Title.--This article shall be known and
9 may be cited as the "Pennsylvania Alcoholic Beverage Retail
10 Licensee Liability Act."
11 Section 402-A. Definitions.--When used in this article, the
12 following words or phrases, unless the context clearly indicates
13 otherwise, shall have the meanings ascribed to them in this
14 section.
15 "Adult" shall mean any person who is of legal age to purchase
16 alcoholic beverages.
17 "Alcoholic beverage" shall mean all liquor and malt or brewed
18 beverages as defined in section 101.
19 "Intoxicated person" shall mean an individual who is in a
20 state of intoxication.
21 "Intoxication" shall mean an impairment of a person's mental
22 or physical faculties as a result of drug or alcoholic beverage
23 use so as to diminish that person's ability to think and act in
24 a manner in which an ordinarily prudent and cautious person, in
25 full possession of his or her faculties and using reasonable
26 care, would act under like circumstances.
27 "Minor" shall mean any person under twenty-one years of age.
28 "Premises" shall mean the land, building and all
29 appurtenances specifically designated in each retail liquor
30 license where alcoholic beverages may be kept and sold in
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1 accordance with board regulations.
2 "Retail liquor licensee" shall mean any person, partnership,
3 association or corporation holding a hotel, restaurant, club,
4 distributor, public service liquor license or other license
5 issued under this act for the sale of liquor or malt and brewed
6 beverages at retail.
7 "Service of alcoholic beverages" or "service" shall mean any
8 sale, gift or other furnishing of alcoholic beverages.
9 Section 403-A. Plaintiff.--(a) Any person who suffers
10 damage as provided in section 407-A may bring an action pursuant
11 to this act, subject to the limitation found in subsection (b).
12 (b) A person who becomes intoxicated may not bring an action
13 pursuant to section 405-A against a defendant for serving
14 alcoholic beverages to such person.
15 Section 404-A. Defendants.--Any of the following persons who
16 commits an act giving rise to liability, as provided in sections
17 405-A and 406-A, may be made a defendant to a claim under the
18 provisions of this article:
19 (1) An alcoholic beverage retail licensee, and any employe
20 or agent of such a licensee.
21 (2) A person who, at the time of such act, was required by
22 law to have had an alcoholic beverage retail license, and any
23 employe or agent of such person.
24 Section 405-A. Negligent Service of Alcoholic Beverages.--
25 (a) A defendant, as defined in section 404-A, who negligently
26 serves alcoholic beverages to a minor or to a visibly
27 intoxicated person is liable for resulting damages, subject to
28 the provisions of this article.
29 (b) Service of alcoholic beverages to a minor or to a
30 visibly intoxicated person is negligent if the defendant knows
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1 or if a reasonably prudent person in like circumstances,
2 adhering to responsible business practices as defined in section
3 409-A, would know that the person being served is a minor or is
4 intoxicated.
5 (c) Proof of service of alcoholic beverages to a minor
6 without request for identification shall form a rebuttable
7 presumption of negligence.
8 (d) Service of alcoholic beverages by a defendant to an
9 adult person who subsequently serves a minor off the premises
10 does not constitute service to minor unless a reasonably prudent
11 person in like circumstances would know that such subsequent
12 service is reasonably likely to occur.
13 (e) A defendant does not have a duty to investigate whether
14 a person being served alcoholic beverages intends to serve the
15 alcoholic beverages to other persons off the premises.
16 (f) A defendant is not chargeable with knowledge of a
17 person's consumption of alcoholic beverages or other drugs off
18 the defendant's premises unless the person's appearance and
19 behavior, or other facts known to the defendant, would put a
20 reasonably prudent person on notice of such consumption.
21 (g) A defendant is not under a duty to recognize signs of a
22 person's intoxication, other than those normally associated with
23 the consumption of alcoholic beverages, except for intoxication
24 resulting in whole or in part from other drugs consumed on the
25 defendant's premises with the defendant's actual or constructive
26 knowledge.
27 Section 406-A. Reckless Service of Alcoholic Beverages.--(a)
28 The service of alcoholic beverages is reckless when a defendant,
29 as defined in section 404-A, intentionally serves alcoholic
30 beverages to a person when the server knows, or a reasonable
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1 person in his position should have known, that such service
2 creates an unreasonable risk of physical harm, to the drinker or
3 to others, that is substantially greater than that which is
4 necessary to make his conduct negligent.
5 (b) A defendant who recklessly provides alcoholic beverages
6 to another is liable for resulting damages.
7 (c) Specific serving practices that are admissible as
8 evidence of reckless service include, but are not limited to,
9 the following:
10 (1) Active encouragement of intoxicated persons to consume
11 substantial amounts of alcoholic beverages.
12 (2) Service of alcoholic beverages to a person, sixteen
13 years of age or younger, when the server has actual or
14 constructive knowledge of the patron's age.
15 (3) Service of alcoholic beverages to a patron that is so
16 continuous and excessive that it creates a substantial risk of
17 death by alcohol poisoning.
18 (4) The active assistance, by a defendant, of a patron into
19 a motor vehicle when the patron is so intoxicated that such
20 assistance is required and the defendant knows or should know
21 that the intoxicated person intends to operate the motor
22 vehicle.
23 Section 407-A. Damages.--(a) Damages may be awarded for all
24 injuries recognized under the Commonwealth's common law.
25 (b) Punitive damages may be awarded in all actions based on
26 reckless service, as defined in section 406-A. Punitive damages
27 may not be awarded for actions based on negligent service, as
28 defined in section 405-A.
29 (c) Damages may be recovered under 42 Pa.C.S. §§ 8301
30 (relating to death action) and 8302 (relating to survival
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1 action) as in other tort actions.
2 Section 408-A. Common Law Defenses.--Defenses applicable to
3 tort actions based on negligence and recklessness in this
4 Commonwealth may be asserted in defending actions brought
5 pursuant to this article.
6 Section 409-A. Responsible Business Practices Defense.--(a)
7 A defendant's service of alcoholic beverages is not negligent or
8 reckless if the defendant, at the time of the service, is
9 adhering to responsible business practices. Responsible business
10 practices are those business policies, procedures and actions
11 which an ordinarily prudent person would follow in like
12 circumstances.
13 (b) The service of alcoholic beverages to a person, with
14 actual or constructive knowledge that such person is intoxicated
15 or is a minor, constitutes an unreasonable business practice.
16 Evidence of responsible business practices pursuant to this
17 section is relevant to determining whether a defendant who does
18 not have actual knowledge should have known of the person's
19 intoxicated condition or age.
20 (c) Evidence of responsible business practices may include,
21 but is not limited to:
22 (1) comprehensive training of the defendant and the
23 defendant's employes and agents who are present at the time of
24 service of alcoholic beverages; and
25 (2) responsible management policies, procedures and actions
26 which are in effect at the time of such service.
27 (d) For the purposes of service to intoxicated persons,
28 evidence of comprehensive training includes, but is not limited
29 to, the development of knowledge and skills regarding the
30 responsible service of alcoholic beverages and the handling of
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1 intoxicated persons. Such training shall be appropriate to the
2 level, kind and type of responsibility for each employe and
3 agent to be trained.
4 (e) For the purposes of service to intoxicated persons,
5 evidence of responsible management policies, procedures and
6 actions may include, but is not limited to, those policies,
7 procedures and actions which are implemented at time of service
8 and which:
9 (1) Encourage persons not to become intoxicated if they
10 consume alcoholic beverages on the defendant's premises.
11 (2) Promote availability of nonalcoholic beverages and food.
12 (3) Promote safe transportation alternatives other than
13 driving while intoxicated.
14 (4) Prohibit employes and agents of defendant from consuming
15 alcoholic beverages while acting in their capacity as employe or
16 agent.
17 (5) Establish promotions and marketing efforts which
18 publicize responsible business practices to the defendant's
19 customers and community.
20 (6) Implement comprehensive training procedures.
21 (7) Maintain an adequate, trained number of employes and
22 agents for the type and size of defendant's business.
23 (8) Are written in a policy and procedures handbook, or
24 similar format, and made available to employes.
25 (9) Establish a standardized method for hiring qualified
26 employes.
27 (10) Reprimand employes who violate employer policies and
28 procedures.
29 (f) For the purposes of service to minors, evidence of
30 responsible business practices may include, but is not limited
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1 to, those listed in subsection (e) and the following:
2 (1) Management policies which are implemented at the time of
3 service and which insure the examination of proof of
4 identification for all persons seeking service of alcoholic
5 beverages who may reasonably be suspected to be minors.
6 (2) Comprehensive training of employes who are responsible
7 for such examination regarding the detection of false or altered
8 identification.
9 (g) Proof of responsible business practices shall be based
10 on the totality of the circumstances, including, but not limited
11 to, the availability of training programs and alternative public
12 transportation, the defendant's type and size of business, and
13 the defendant's previous contacts with the intoxicated person or
14 minor who is served. Proof of the existence or omission of one
15 or more elements of responsible business practices does not
16 constitute the proof or disproof of the responsible business
17 practices defense.
18 Section 410-A. Statute of Limitations.--Any action under
19 this act against a defendant alleging negligent service shall be
20 brought within two years of the conduct complained of. Any
21 action under this act against a defendant for reckless service
22 shall be brought within two years of the conduct complained of.
23 Section 411-A. Privileges.--(a) No defendant, as provided
24 in section 404-A, may be held civilly liable for damages
25 resulting from a good faith refusal to serve alcoholic beverages
26 to any person who:
27 (1) Fails to show proper identification of age.
28 (2) Reasonably appears to be a minor.
29 (3) Is refused service of alcoholic beverages by the
30 defendant in a good faith effort to prevent excessive
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1 consumption of alcohol by a person.
2 (b) No defendant, as provided in section 404-A, may be held
3 civilly liable for holding a person's identification documents
4 presented to the defendant as proof of the person's age for the
5 purposes of receiving alcoholic beverages, provided that:
6 (1) Such holding is for a reasonable length of time in a
7 good faith effort to determine whether the person is of legal
8 age or to summon law enforcement officers.
9 (2) The person whose identification is being held is
10 informed of the reason for the defendant's action.
11 (c) No defendant, as provided in section 404-A, may be held
12 civilly liable for using reasonable force to detain, for a
13 reasonable period of time necessary to summon law enforcement
14 officers, a person who, in the defendant's presence, is
15 committing or has committed a breach of the peace or felony or
16 is attempting to operate a motor vehicle while intoxicated.
17 (d) This section does not limit a defendant's rights to
18 assert any other defense to a civil liability claim otherwise
19 provided by law.
20 Section 412-A. Settlement; Release; Contribution;
21 Indemnity.--(a) A plaintiff's settlement and proper release of
22 either the intoxicated tortfeasor or a defendant, as defined in
23 section 404-A, will not bar potential claims against any other
24 defendant.
25 (b) The amount paid to a plaintiff in consideration for the
26 settlement and proper release of any defendant will be offset
27 against all other subsequent judgments received by the
28 plaintiff.
29 (c) The liability of the intoxicated tortfeasor and any
30 defendant, as defined in section 404-A, who served alcoholic
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1 beverages shall be joint and several.
2 (d) In cases of negligent conduct, the liability of the
3 intoxicated tortfeasor and any defendant who served alcoholic
4 beverages shall have the right of contribution and not a right
5 of indemnification.
6 (e) In cases of reckless conduct, nonreckless defendants
7 shall have a right of either indemnification or contribution
8 from any reckless defendants.
9 Section 413-A. Exclusive Remedy.--This act is the exclusive
10 remedy against defendants for claims for those suffering damages
11 based on the defendant's service of alcoholic beverages.
12 Section 414-A. Optional Notice Provision; Notice to
13 Defendant.--Every plaintiff seeking damages under this article
14 shall give written notice to all defendants within one hundred
15 twenty (120) days of the date of entering an attorney-client
16 relationship for the purpose of pursuing a claim under this
17 article. In the case of claims for contributions and indemnity,
18 notice shall be given within one hundred twenty (120) days of
19 receiving written notice under this article. The notice shall
20 contain a statement of the conduct complained of, and the time,
21 place and circumstances of any resulting damages. No error or
22 omission in the notice shall void the effect of the notice, if
23 otherwise valid, unless the error or omission is of
24 substantially material nature. Failure to give written notice
25 within the time specified shall be grounds for dismissal of a
26 claim and may only be waived by the court upon showing of
27 exceptional circumstances. Actual notice of sufficient facts to
28 reasonably put a defendant on notice of a possible claim shall
29 be construed to comply with the notice requirement herein.
30 Section 3. This act shall take effect in 60 days.
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