PREMISES LIABILITY AND LIQUOR LIABILITY OVERVIEW DESK REFERENCE

Transcription

1 PREMISES LIABILITY AND LIQUOR LIABILITY OVERVIEW DESK REFERENCE NEW ENGLAND, NEW JERSEY & NEW YORK Scott R. Behman H. Charles Hambelton Sharmili P. Das Daniel J. Shanahan Mark R. Cramer William M. Boyle Katherine A. Nickerson Kevin H. O Neill [email protected] MASSACHUSETTS 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (800) TEL: (781) FAX: (781) NEW YORK 305 Broadway, 7 th Floor New York, NY TEL: (212) FAX: (212) CONNECTICUT 10 Alexander Drive Wallingford, CT TEL: (860) FAX: (860) RHODE ISLAND 91 Friendship Street, Suite 1 Providence, RI TEL: (401) FAX: (401) Also active offices and/or practicing attorneys in the following states and Courts: Florida, Maine, New Hampshire, New Jersey, Vermont, and the Mohegan Nation Gaming Tribal Courts (Casinos).

2 DESK REFERENCE PREMISES & LIQUOR LIABILITY About Behman Hambelton LLP Behman Hambelton LLP is a mid-sized, regional litigation firm representing clients throughout New England, New Jersey, and New York. While we approach all client matters with an eye for opportunities to obtain as prompt a favorable resolution as is possible, we also design a litigation plan for each matter to prepare it for trial, if ultimately necessary. We have found that having a trial game plan for each litigated matter right from the outset actually serves to expose the weaknesses in the opposing party s claims and leads, in many cases, to the settlement of such claims upon terms that are very favorable to our clients. Should resolution by settlement not be possible, we are nevertheless fully prepared to take the matter to verdict. Our experienced trial attorneys have developed a reputation for excellence in litigating matters in both State and Federal Courts on behalf of insureds, insurers and self-insureds, as well as individuals and businesses, concerning an array of complex legal issues. Contents: Connecticut Maine Massachusetts New Hampshire New Jersey New York Rhode Island Vermont Dedication to serving the needs of its clients is the backbone of Behman Hambelton LLP. Behman Hambelton prides itself on providing progressive and economical solutions to the needs of clients in all areas of the firm's practice. We take a macro view of our clients' needs to address root causes of issues and to formulate plans to avoid future problems. Our proven litigation track record and our ability to analyze trends in the legal community provide confidence to our clients and has allowed us to develop a reputation as zealous advocates. We strive to excel in all areas of our practice with client satisfaction, as always, our paramount goal. Behman Hambelton LLP Desk Reference We hope that you find the information in this Desk Reference useful. You should be aware that the information provided in the Desk Reference is presented in a general format and is not a comprehensive summary of all the issues that may be applicable. Furthermore, laws and regulations are constantly changing. These changes may not be incorporated into this version of the Desk Reference. With these factors in mind, it is important that you do not rely solely on the information provided. We would be pleased to help you review all pertinent information and can assist you in developing a comprehensive litigation strategy. For More Information If you have any questions, please contact: 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (781) FAX: (781)

3 DESK REFERENCE PREMISES & LIQUOR LIABILITY Table of Contents CONNECTICUT Premises Liability Law Synopsis...1 Liquor Liability Law Synopsis...5 MAINE Premises Liability Law Synopsis...11 Liquor Liability Law Synopsis...15 MASSACHUSETTS Premises Liability Law Synopsis...22 Liquor Liability Law Synopsis...26 NEW HAMPSHIRE Premises Liability Law Synopsis...33 Liquor Liability Law Synopsis...36 NEW JERSEY Premises Liability Law Synopsis...42 Liquor Liability Law Synopsis...46 NEW YORK Premises Liability Law Synopsis...53 Liquor Liability Law Synopsis...56 RHODE ISLAND Premises Liability Law Synopsis...61 Liquor Liability Law Synopsis...64 VERMONT Premises Liability Law Synopsis...69 Liquor Liability Law Synopsis...72

4 CONNECTICUT PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Two years. CONN. GEN. STAT (2014). B. PREMISES LIABILITY 1. Slip and Fall In general, there is an ascending amount of duty owed by the possessor of land to the following classes of persons: trespassers; licensees; and invitees. The common law distinctions regarding increasing standards of care owed to trespassers, licensees and invitees are recognized. A social invitee is entitled to the same standard of care as a business invitee. CONN. GEN. STAT a (2014). An individual s status is generally a question of fact. Roberts v. Rosenblatt, 146 Conn. 110, 112 (1959). 2. Snow and Ice Connecticut courts apply a negligence standard grounded on whether a landowner knew, or in the exercise of a reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it. Reardon v. Shimelman, 102 Conn. 383, 389 (1925). An accumulation of ice or snow upon a common approach to a tenement house is a dangerous condition for which a landlord may be liable for injuries caused by it if the aforementioned negligence standard is met. Id. Significantly, under the leading Connecticut case of Kraus v. Newton, a landowner is not liable for falls occurring during an ongoing snowstorm. 211 Conn. 191, (1989). Nevertheless, in Kraus, the Court held that liability could arise during an ongoing storm if the 1

5 fall resulted from a dangerous or defective condition that existed prior to the storm. Id. at 198. Thus, there could be liability if a plaintiff slipped on an old patch of ice under newly fallen snow during an ongoing storm. Id. 3. Negligent Security The proprietor of a place of public amusement has a duty to maintain order on his or her premises and may be held liable for injuries resulting from the dangerous activities of a third person, whether such acts are accidental, negligent, or intentional, if he or she does nothing to restrain or control such conduct after he or she knows, or in the exercise of reasonable care could have known, of it. The proprietor must exercise due care to protect his patrons from assaults by other patrons, at least if the proprietor had knowledge of conduct which would naturally result in an injury, or if he might reasonably have anticipated an assault. Where there has been a more or less sudden, direct attack, liability generally is not imposed, for the reason that the proprietor could not reasonably have anticipated the occurrence. 27 AM. JUR. 2D Entertainment and Sports Law 57 (2001). See Hopkins v. Conn. Sports Plex, LLC, 2006 Conn. Super. LEXIS 1710 at *7-8 (2006). Courts will also consider an insufficiency in the number of security personnel, security personnel s improper conduct under the circumstances, and other failures to adequately warn and protect patrons in cases where the owner or operator of property is held liable for negligence arising from an assault. Id. at *12. See also Restatement (Second) of Torts 344, cmt. f (1965). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Each joint tortfeasor is liable for his proportionate share of the plaintiff s total damages in accordance with the degree of negligence found against him. CONN. GEN. STAT h(c) (2014). 2

6 D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff s recovery is barred if his negligence is greater than the defendant s. CONN. GEN. STAT h(b) (2014). Otherwise, the plaintiff s recovery is reduced by the degree of his fault. Id. E. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest There is no pre-judgment interest absent the filing of a statutory offer of compromise in Connecticut. CONN. GEN. STAT a(c) (2014). 2. Offer of Compromise A defendant has thirty days to accept an offer of compromise; in the event that a plaintiff's offer of compromise is not accepted and he thereafter recovers an amount equal to or greater than the sum stated in the offer, the court must add eight percent interest from the date of filing of the complaint to the date of the judgment, assuming the offer of compromise was filed within eighteen months after the date the complaint was filed. CONN. GEN. STAT a(c) (2014). F. SETTLEMENT PRACTICES The settling defendant shall tender all sums due no later than thirty days after receipt of a duly executed release and a withdrawal discontinuing any court action. CONN. GEN. STAT c (2014). If the insurer fails to promptly pay all sums, a default judgment will be entered against such insurance company twenty days after the filing of a motion for default judgment with the court and service upon the representative of the insured with whom settlement was reached or the defendant with whom settlement was reached. Id. If the 3

7 insurer fails to tender settlement proceeds within the time limits, interest shall be computed at a rate of twelve percent per year from the date such time limit expired. Id Behman Hambelton LLP. 4

8 CONNECTICUT LIQUOR LIABILITY LAW SYNOPSIS Connecticut Dram Shop Law is predominately statutory. CONN. GEN. STAT (2014). A. PROCEDURAL LAW 1. Time to Respond to Complaint Thirty days from the return date to file initial responsive pleading, which is not necessarily an answer. Practice Book 10-8 (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant An action is commenced by service of process, and process shall be returned to the Superior Court at least six days prior to the return date on the complaint. CONN. GEN. STAT a and 52-46a (2014). 3. Notice/Statute of Limitations Written notice to the seller of the alcohol must be made by the plaintiff within 120 days of such injury. CONN. GEN. STAT (2014). For matters that result in death or incapacity, notice to the seller of the alcohol must be made by the plaintiff within 180 days of such injury. Id. The statute of limitations to file an action pursuant to CONN. GEN. STAT is one year. Reckless service of alcohol does not have a notice requirement and has a two-year statute of limitations. 4. Joint Tortfeasors/Joint and Several Liability If damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party s proportionate share of the recoverable economic damages and the 5

9 recoverable noneconomic damages, except upon finding by a court that a defendant s proportionate share of damages are uncollectible. CONN. GEN. STAT h (2014). 5. Caps on Liability The Dram Shop Act limits liability to $250,000 per person and $250,000 per incident. CONN. GEN. STAT (2014). It also prohibits causes of action for the negligent sale of alcohol to persons twenty-one years of age or older (i.e., negligent service of alcohol to a minor is a recognized common law cause of action). Nevertheless, Connecticut s dram shop statute has been held to be non-exclusive. Kowal v. Hofher, 181 Conn. 355, 362 (1980). Accordingly, a plaintiff can assert a common law cause of action for the reckless, willful and wanton sale of alcohol to an obviously intoxicated person regardless of his age. Id. Thus, the $250,000 limits of liability would not apply to a wilful and wanton sale of alcohol to an obviously intoxicated person. B. LIABILITY To prevail on a claim brought under the Dram Shop Act, a plaintiff must prove that there was a: (1) sale of intoxicating liquor; (2) to an intoxicated person; (3) who, in consequence of such intoxication, caused injury to person or property of another. Kelehear v. Larcon, Inc., 22 Conn. App. 384, 387 (1990). For the purpose of determining intoxication in actions commenced pursuant to the Dram Shop Act, intoxicated means visible or perceivable intoxication at the time of service. O Dell v. Kozee, et al., 307 Conn. 231, (2012). To be intoxicated is something more than to be merely under the influence of, or affected by, alcohol. Rather, intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors or a visible excitation of the passions and impairment of the judgment 6

10 or physical functions and energies. Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349 (1985). Absent visible or perceived intoxication, a jury is permitted to consider excessive number of drinks on the issue of notice. A jury reasonably could find that imbibing to such excess is a visible sign of impaired judgment due to alcohol consumption, one example of competent evidence of intoxication identified in Sanders. O Dell, 307 Conn. at 270 (concluding that if a bartender serves a patron twelve alcoholic beverages over the course of an evening, even if there are no visible signs of intoxication, it would be reasonably imprudent to serve the patron a thirteenth alcoholic beverage as the bartender should be on notice that the patron was very likely intoxicated before the thirteenth drink, even if he exhibited no visible signs of intoxication). C. TOLLING PROVISIONS The statute of limitations is not suspended by the infancy of a plaintiff. Lametta v. Connecticut Light and Power Co., 139 Conn. 218, 223 (1952). D. SUBSTANTIVE LAW 1. Minors Connecticut recognizes a common law action based on negligence in serving alcohol to minors who were known to be or should have been known to be intoxicated. Ely v. Murphy, 207 Conn. 88, 92 (1988). Thus, the $250,000 limit of liability would not apply to the sale of alcohol to a minor. 2. Imbibers Under the Dram Shop Act, imbibers do not have a cause of action versus a tavern because the injuries must be to another. CONN. GEN. STAT (2014). 7

11 3. Assault and Battery Involving Drunken Patrons Connecticut adopted the totality of circumstances approach in assessing a tavern keeper s liability for assault and battery claims. In Merhi v. Becker, the court found the evidence clearly supported a jury verdict for a plaintiff injured by another guest at a picnic sponsored by a local chapter of a union. 164 Conn. 516, 523 (1973). The admission fee entitled the guests to all the food and beer they wanted. One guest, who had had more than five beers, became involved in two fights, which were witnessed by a treasurer of the defendant union local. Id. at 519. About a half hour after the fight, the guest went to his car, drove the car into the area of the picnickers, and aimed and steered his car in the direction of his adversary in the fight, but instead struck and injured the plaintiff. Id. The Court said the jury could reasonably have found that the injury constituted an instance of the general kind of harm that the union s negligence would cause, which was harm to patrons from inadequately deterred raucous, violent conduct. Id. at 520. The Court added that, even assuming that the assailant s acts constituted an intervening force, that would not in itself relieve the defendant union of liability, because the harm caused to the plaintiff was within the scope of the risk created by the defendant union s conduct. Id. at E. SPECIAL DEFENSES In a dram shop cause of action, contributory negligence is not a valid defense. Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 352 (1985); Pont v. Barker, 2006 Conn. Super. LEXIS 1673 at *5 (2006). While there have been no appellate level decisions on the issue, the Superior Courts are split as to whether participation and assumption of the risk are available defenses to a 8

12 dram shop action. Those in support of the defense reason that the Dram Shop Act is primarily remedial in nature and is intended to limit recovery to innocent third parties. Those courts that have not allowed the participation and assumption of the risk defenses reason that the Dram Shop Act protection is not limited to innocent third parties, but rather is intended to protect the public in general. Blondin v. Meshack, 2008 Conn. Super. LEXIS 2512 at *6-7 (2008); Pont v. Barker, 2006 Conn. Super. LEXIS 1673 at *5 (2006); Sego v. Debco, Inc., 1994 Conn. Super. LEXIS 2292 at *3 (1994); Dimmock v. South Peking Rest., Ltd., 1991 Conn. Super. LEXIS 2580 at *3 (1991). F. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest There is no pre-judgment interest absent an Offer of Judgment in Connecticut. Rather, interest of ten percent may accrue from the date of judgment. CONN. GEN. STAT (2014). 2. Offer of Compromise A defendant has thirty days to accept an offer of compromise; in the event that a plaintiff s offer of compromise is not accepted and he thereafter recovers an amount equal to or greater than the sum stated in the offer, the court must add interest from the date of filing of the complaint to the date of the judgment, assuming the offer of compromise was filed within eighteen months after the date the complaint was filed. CONN. GEN. STAT a (2014). G. SETTLEMENT PRACTICES The settling defendant shall tender all sums due not later than thirty days after receipt of a duly executed release and a withdrawal discontinuing any court action. CONN. GEN. 9

13 STAT c (2014). If the insurer fails to promptly pay all sums, a default judgment will be entered against such insurance company twenty days after the filing of a motion for default judgment with the court and service upon the representative of the insured with whom settlement was reached or the defendant with whom settlement was reached. Id. If the insurer fails to tender settlement proceeds within the time limits, interest shall be computed at a rate of twelve percent per year from the date such time limit expired. Id Behman Hambelton LLP. 10

14 MAINE PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Six years. ME. REV. STAT. tit. 14, 752 (2014). B. PREMISES LIABILITY 1. Slip and Fall An owner or occupier of land owes the same duty of reasonable care under the circumstances to all persons lawfully on his land. Poulin v. Colby Coll., 402 A.2d 846, 851 (Me. 1979). An owner or occupier is not an insurer of the safety of his lawful visitors. Id. at 848; Orr v. First Nat. Stores, 280 A.2d 785, 792 (Me. 1971). The standard of care owed to a social invitee is the same standard of care owed to a business invitee. ME. REV. STAT. tit. 14, 159 (2014). Maine does not follow the mode of operation rule which in essence infers notice of potentially dangerous conditions to self-service store operators based upon prior experience that customers, while self-serving, can create hazardous conditions in the premises. Dumont v. Shaw s Supermarkets, Inc., 664 A.2d 846, 848 (Me. 1995). However, a store owner who is aware of the existence of a recurrent condition that poses a potential danger to invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger of the likelihood of a recurrence of the condition. Id. at 849. The only duty owed to trespassers is to refrain from wanton, wilful, or reckless conduct. Cogswell v. Warren Bros. Road Co., 229 A.2d 215, 218 (Me. 1967). 2. Snow and Ice The discharge of the duty to remedy slippery conditions caused by accumulations of snow or ice rests upon the owner or occupier of the land to exercise reasonable care for the 11

15 safety of his business invitees and carries with it the necessary implication that the owner or occupier shall have reasonable notice of the need for, and a reasonable opportunity to take corrective action for the safety of his invitees. Isaacson v. Husson Coll., 297 A.2d 98, 105 (Me. 1972). An invitee who slips on a foreign substance on the floor may prove the premises owner s or operator s negligence by establishing one of three things: 1) owner or operator caused the substance to be there; 2) owner or operator had actual knowledge of the existence of the substance; or 3) the substance was on the floor for such length of time that the owner or operator should have discovered and remedied it. Ottinger v. Shaw s Supermarkets, Inc., 635 A.2d 948, 949 (Me. 1993). The plaintiff has the duty of proving that the defendant had notice of the risk. Currier v. Toys R Us, 680 A.2d 453, 455 (Me. 1996). 3. Negligent Security The law of Maine is that the owner of premises owes a legal duty to his business invitees to protect them from those dangers reasonably to be foreseen. Schultz v. Gould Acad., 332 A.2d 368, 371 (Me. 1975). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY All defendants are jointly and severally liable for the full amount of plaintiff s damages. ME. REV. STAT. tit. 14, 156 (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Plaintiffs are barred from recovery if their negligence is equal to or exceeds that of the defendant(s). ME. REV. STAT. tit. 14, 156 (2014). Otherwise, damages recoverable shall be reduced to the extent the jury finding is just and equitable having regard to the plaintiff s share of responsibility for damages. Id. 12

16 E. PRE-JUDGMENT INTEREST Currently 3.13%. Pre-Judgment interest in Maine is the one-year U.S. Treasury Bill rate plus three percent for the year prior to which pre-judgment interest began to accrue. ME. REV. STAT. tit. 14, 1602-B (2014). Notice of the claim initiates accruement of interest. Id. F. SETTLEMENT PRACTICES The court system in Maine provides procedures under which opposing parties may attempt to settle certain types of civil cases with the help of a mediator. In most civil cases, mediation is required. Mediation is generally an informal procedure where the parties and their lawyers work with a neutral party (i.e., a mediator) toward an agreement. A mediator is selected from a pool of trained individuals who have been placed on a mediator roster by the Court Alternative Dispute Resolution Service. If a mutually satisfactory agreement can be reached, it is signed and submitted to the judge for approval. If the parties cannot come to terms, their case is scheduled for trial. If an individual seeks recovery for injury or property damage caused by more than one person, the settlement with or release of one or more of the people who caused the injury is not a bar to a subsequent action against the other person(s) who also caused the injury. ME. REV. STAT. tit. 14, 163 (2014). If such a settlement or release occurs, a trial judge will reduce any verdict for the plaintiff by an amount equal to the settlement of the other person(s). Id. With regard to a settlement in which the plaintiff has entered into an agreement that precludes the plaintiff from collecting against remaining parties that portion of any damages attributable to the settling defendant s share of responsibility, the judge shall reduce the plaintiff s judgment by either the amount determined at trial to be attributable to the settling defendant s share of responsibility, if any was found, or, it no 13

17 such finding is made, by the value of the consideration given to the plaintiff for the settlement. Id Behman Hambelton LLP. 14

18 MAINE LIQUOR LIABILITY LAW SYNOPSIS Maine Dram Shop Law is predominately statutory. The Maine Liquor Liability Act makes a person liable for injuries that result from his negligent or reckless service of alcohol to a minor or an individual that a reasonably prudent person would conclude was intoxicated. ME. REV. STAT. tit. 28-A, (2014). Damages may be awarded for property damage, bodily injury, or death caused by the consumption of liquor served by the defendant. This Act is the exclusive remedy against servers, who may be made defendants under 2505, for claims by those suffering damages based on servers service of liquor. ME. REV. STAT. tit. 28-A, 2511 (2014). A. PROCEDURAL LAW 12 (2014). 1. Time to Respond to Complaint Twenty days from the date of service to file initial responsive pleading. M.R. Civ. P. 2. Time for Plaintiff to Perfect Service of Process Upon Defendant An action is commenced by service of process. M.R. Civ. P. 3 (2014). Proof of service of process shall be returned to the Superior Court within the time in which the defendant is allowed to answer. M.R. Civ. P. 4(h) (2014). 3. Notice/Statute of Limitations Every plaintiff seeking damages under this Act must give written notice to all defendants within 180 days of the date of the server s conduct creating liability under this Act. The notice must specify the time, place and circumstances of the server s conduct creating liability under this Act and the time, place and circumstances of any resulting damages. No error or omission in the notice voids the effect of the notice, if otherwise valid, unless the error or omission is substantially 15

19 material. Failure to give written notice within the time specified is grounds for dismissal of a claim, unless the plaintiff provides written notice within the limits of section 2514 and shows good cause why notice could not have reasonably been filed within the 180-day limit. ME. REV. STAT. tit. 28-A, 2513 (2014). Any action under the Maine Liquor Liability Act against a server alleging negligent or reckless conduct must be brought within two years after the cause of action accrues. ME. REV. STAT. tit. 28-A, 2514 (2014). No action against a server may be maintained unless the minor, the intoxicated individual or the estate of the minor or intoxicated individual is named as a defendant in the action and is retained in the action until the litigation is concluded by trial or settlement. ME. REV. STAT. tit. 28-A, 2512(1) (2014). 4. Joint Tortfeasors/Joint and Several Liability The intoxicated individual and any server, as described in section 2505, are each severally liable and not jointly liable for that percentage of the plaintiff s damages which corresponds to each defendant s percentage of fault as determined by the court or a jury. ME. REV. STAT. tit. 28-A, 2512(2) (2014). 5. Caps on Liability An award of damages may not exceed $350,000 for all losses under the Maine Liquor Liability Act, except expenses for medical care and treatment, which includes devices and aids, against both a server and the server s employees and agents. ME. REV. STAT. tit. 28-A, 2509(1) (2014). When the amount for all losses, except expenses for medical care and treatment, awarded to or settled for multiple claimants exceeds the limit imposed, any party may apply to the Superior Court for the county where the server is located to allocate each claimant his 16

20 equitable share of the total. ME. REV. STAT. tit. 28-A, 2509(2) (2014). Any award by the court in excess of the maximum liability limit is automatically abated to the maximum limit of liability. ME. REV. STAT. tit. 28-A, 2509(2)(A) (2014). B. LIABILITY Under the Maine Liquor Liability Act a plaintiff may allege either negligent service of alcohol or reckless service of alcohol. A plaintiff may prevail on a negligent service claim by proving a server negligently provided liquor to a minor or negligently served liquor to a visibly intoxicated individual. ME. REV. STAT. tit. 28-A, 2506(1)-(2) (2014). In both instances, the server is liable for damages proximately caused by the individual s consumption of the liquor. ME. REV. STAT. tit. 28-A, 2506(1)-(2) (2014). Service of liquor to a minor or to an intoxicated individual is negligent if the server knows or if a reasonable and prudent person in similar circumstances would know that the individual being served is a minor or is visibly intoxicated. ME. REV. STAT. tit. 28-A, 2506(3) (2014). However, a server is not chargeable with knowledge of an individual s consumption of liquor or other drugs off the server s premises, unless the individual s appearance and behavior, or other facts known to the server, would put a reasonable and prudent person on notice of such consumption. ME. REV. STAT. tit. 28-A, 2506(4) (2014). Service of liquor is reckless if a server intentionally serves liquor to an individual whom the server knows is a minor or is visibly intoxicated, and the server consciously disregards an obvious and substantial risk that serving the individual will cause physical harm to him or others. ME. REV. STAT. tit. 28-A, 2507(3) (2014). Specific serving practices that are admissible as evidence of reckless conduct include, but are not limited to, the following: A. Active encouragement of intoxicated individuals to consume substantial amounts of liquor; 17

21 B. Service of liquor to an individual who is under 18 years of age when the server has actual or constructive knowledge of the individual s age; and C. Service of liquor to an individual that is so continuous and excessive that it creates substantial risk of death by alcohol poisoning. ME. REV. STAT. tit. 28-A, 2507(4) (2014). Intoxication means a substantial impairment of an individual s mental or physical faculties as a result of drug or liquor use. ME. REV. STAT. tit. 28-A, 2503(2) (2014). Visibly intoxicated means a state of intoxication accompanied by a perceptible act, a series of acts or the appearance of an individual which clearly demonstrates a state of intoxication. ME. REV. STAT. tit. 28-A, 2503(7) (2014). If a plaintiff proves reckless service, the server or establishment is liable for damages proximately caused by the visibly intoxicated or minor drinker s consumption of the liquor. ME. REV. STAT. tit. 28-A, 2507(1)-(2) (2014). C. TOLLING PROVISIONS An individual who, when a right of action first accrues, is a minor, mentally ill, imprisoned, or absent from the United States, may bring the action at any time within 10 years after such disability is removed, notwithstanding 20 years have expired. ME. REV. STAT. tit. 14, 807 (2014). D. SUBSTANTIVE LAW 1. Minors A server who negligently serves liquor to a minor is liable for damages proximately caused by that minor s consumption of the liquor. ME. REV. STAT. tit. 28-A, 2506 (2014). It is a civil violation for any person under the age of twenty-one to possess liquor or imitation liquor except if it is within the scope of their employment or in their home in the 18

22 presence of their parent. ME. REV. STAT. tit. 28-A, 2051 (2014). Fines are imposed for illegal possession. Id. Any person who furnishes liquor to a minor, or allows a minor under that person s control or in any place under that person s control, to possess or consume liquor, may be fined not less than $500 and up to $2,000, and/or sentenced up to one year in prison. ME. REV. STAT. tit. 28-A, 2081 (2014). If the minor is less than eighteen years of age, none of those sentences may be suspended. Id. If the violation is a second offense within six years, the minimum penalty is a $1,000 fine and up to six months incarceration. Id. 2. Imbibers Under the Maine Liquor Liability Act, imbibers of age eighteen or greater, or their estates, do not have a negligence cause of action against the tavern for injuries to themselves because the injuries must be to another. ME. REV. STAT. tit. 28-A, 2504 (2014). 3. Assault and Battery Involving Drunken Patrons The owner of property owes a legal duty to his business invitees to protect them from reasonably foreseeable dangers, including criminal acts by third parties, such as assault, against those invitees. Schultz v. Gould Acad., 332 A.2d 368, 371 (Me. 1975). E. SPECIAL DEFENSES Proof of a server s responsible serving practices is admissible as evidence that the server did not act negligently or recklessly. ME. REV. STAT. tit. 28-A, 2515(1) (2014). Responsible serving practices include, but are not limited to: A. The server s and server s employees attendance at an approved server education training course; and B. The server s implementation, at the time of service, of responsible management policies, procedures and actions. Id. Proof or disproof that the server adhered to responsible serving practices does 19

23 not by itself prove or disprove negligence or recklessness. ME. REV. STAT. tit. 28-A, 2515(2) (2014). All defenses in Maine applicable to tort actions based on negligence and recklessness in the State may be asserted in defending actions brought under the Maine Liquor and Liability Act. ME. REV. STAT. tit. 28-A, 2510 (2014). F. PRE-JUDGEMENT INTEREST Currently 3.13%. Pre-Judgment interest in Maine is the one-year U.S. Treasury Bill rate plus three percent for the year prior to which pre-judgment interest began to accrue. ME. REV. STAT. tit. 14, 1602-B (2014). Notice of the claim initiates accruement of interest. Id. G. SETTLEMENT PRACTICES The court system in Main provides procedures under which opposing parties may attempt to settle certain types of civil cases with the help of a mediator. In most civil cases, mediation is required. Mediation is generally an informal procedure where the parties and their lawyers work with a neutral party (i.e., a mediator) toward an agreement. A mediator is selected from a pool of trained individuals who have been placed on a mediator roster by the Court Alternative Dispute Resolution Service. If a mutually satisfactory agreement can be reached, it is signed and submitted to the judge for approval. If the parties cannot come to terms, their case is scheduled for trial. If an individual seeks recovery for injury or property damage caused by more than one person, the settlement with or release of one or more of the people who caused the injury is not a bar to a subsequent action against the other person(s) who also caused the injury. ME. REV. STAT. tit. 14, 163 (2014). If such a settlement or release occurs, a trial judge will reduce any verdict for the plaintiff by an amount equal to the settlement of the other person(s). Id. 20

24 With regard to a settlement in which the plaintiff has entered into an agreement that precludes the plaintiff from collecting against remaining parties that portion of any damages attributable to the settling defendant s share of responsibility, the judge shall reduce the plaintiff s judgment by either the amount determined at trial to be attributable to the settling defendant s share of responsibility, if any was found, or, it no such finding is made, by the value of the consideration given to the plaintiff for the settlement. Id Behman Hambelton LLP. 21

25 MASSACHUSETTS PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. MASS. GEN. LAWS ch. 260, 2A (2014). B. PREMISES LIABILITY 1. Slip and Fall A premises owner or operator is obligated to maintain its establishment in a reasonably safe condition under the circumstances. Mounsey v. Ellard, 363 Mass. 693, (1973). The defendant is not required to supply a place of maximum safety under all circumstances. Toubiana v. Priestly, 402 Mass. 84, 88 (1988). To recover, the plaintiff must show by direct or circumstantial evidence that, in the case of a foreign substance, the substance had been at the location of the incident for so long that in the exercise of reasonable care, the defendant s employees should have discovered and removed it. Uchman v. Polish Nat. Home, Inc., 330 Mass. 563, 565 (1953). Under, the leading case of Oliveri v. Massachusetts Bay Transp. Auth., if the evidence in the form of a physical description of the object, does not permit a reasonable inference as to how long it had been at its location, the plaintiff s case is fatally flawed. 363 Mass. 165, 166 (1973). Moreover, the defendant is permitted a reasonable opportunity to discover any such object or foreign substance and to remove it before liability may attach. Id. Of significance, however, is that a different rule applies in the context of self-service areas made available to patrons by store owners. Under such circumstances, those operating the premises are considered to be constructively on notice that items presented for selfservice will find their way to the floor through the carelessness of patrons and, therefore, 22

26 create slipping hazards. Reasonable precautions must be taken, such as placing a mat on the floor, to reduce the risk of such harm to patrons in a self-service environment. Francis Sheehan v. Roche Bros. Supermarkets, Inc. et al., 448 Mass. 780, 792 (2007). 2. Snow and Ice In a recent major change to Massachusetts law pertaining to liability for injuries sustained due to hazards created by snow and ice, a Massachusetts landowner now owes the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards the same reasonable care standard enunciated in Mounsey and described above. In 2010, the Massachusetts Supreme Judicial Court abandoned the natural/unnatural accumulation standard in snow and ice cases. Papadopoulos v. Target Corp. 2, 457 Mass. 368, 369 (2010). Massachusetts now follows the so-called Connecticut Rule in snow and ice cases (i.e., all accumulations of snow and ice are treated as any other property defect). Liability in such cases now turns on the typical elements of notice, reasonable opportunity to discover and remedy, and the reasonableness of the steps taken to remedy the condition. 3. Negligent Security In Massachusetts, courts focus on whether the harm caused was foreseeable in reviewing a negligent security claim. McKinney-Vareschi v. Paley, 42 Mass. App. Ct. 953, 955 (1997). Specific factors supporting liability for failure to protect a lawful visitor from foreseeable injury inflicted by a third party include: a history of prior criminal episodes [at or around the premises]... the unruly behavior or drunkenness of one or more persons on or just off the premises... a display of weapons... failure to provide adequate lighting in secluded areas of the premises... or a failure to provide security, such as guards, locks, alarms, or surveillance, in places where such precautions are the norm. Westerback v. Harold F. LeClair Co., 50 Mass. App. Ct. 144, (2000). 23

27 C. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff is barred from recovery if his or her own negligence exceeds that of defendant(s). MASS. GEN. LAWS ch. 231, 85 (2014). Otherwise, plaintiff s recovery is diminished in accordance with his or her degree of fault. Id. D. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Massachusetts follows the so-called one-percent rule. Each joint tortfeasor is liable for a pro rata share of the plaintiff s damages. MASS. GEN. LAWS ch. 231B, 2 (2014). For example, if the plaintiff is not comparatively at fault, two joint tortfeasors would each be liable for fifty percent of plaintiff s damages; three would each be liable for thirty-three percent, etc. However, the plaintiff can choose to collect the entire judgment from any one joint tortfeasor or from more than one joint tortfeasor. MASS. GEN. LAWS ch. 231B, 1(b) (2014). In that case, a joint tortfeasor who has paid more than its pro rata share of the plaintiff s damages has a right in contribution against any other joint tortfeasor who has not paid its pro rata share. Id. E. PRE-JUDGMENT INTEREST Twelve percent per annum from the date the complaint is filed. MASS. GEN. LAWS ch. 231, 6B (2014). F. SETTLEMENT PRACTICES Massachusetts General Laws Chapters 93A and 176D (commonly referred to simply as 93A and 176D ) are the consumer protection laws that regulate the personal injury claims and settlement practices of insurance companies in Massachusetts. Chapter 176D defines the insurance practices that are statutorily unfair while ch. 93A provides the 24

28 mechanism for filing claims for violations of ch. 176D and sets forth the awardable damages arising from such unfair practices Behman Hambelton LLP. 25

29 MASSACHUSETTS LIQUOR LIABILITY LAW SYNOPSIS Massachusetts is predominately a common law dram shop jurisdiction. A. PROCEDURAL LAW 1. Time to Respond to Complaint Twenty days from date of service of process. Mass. R. Civ. P. 12(a)(1) (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant Ninety days from the date of filing the complaint. Mass. R. Civ. P. 4(j) (2015). The plaintiff is also required to file an affidavit with the complaint, or within ninety days thereafter, setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry. MASS. GEN. LAWS ch. 231, 60J (2014). 3. Notice/Statute of Limitations Except as otherwise provided, actions of tort, action of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues. MASS. GEN. LAWS ch. 260, 2A (2014). 4. Joint Tortfeasors/Joint and Several Liability Massachusetts law recognizes joint and several liability, meaning that if the plaintiff prevails and more than one defendant is held responsible for the plaintiff s injuries, all defendants are responsible for the entire amount of the plaintiff s awarded damages, regardless of the apportionment of fault amongst defendants. MASS. GEN. LAWS ch. 231B, 1 (2014). 5. Caps on Liability None. 26

30 B. LIABILITY The foundation of liquor liability law in Massachusetts was first established in Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982). In Cimino, the Supreme Judicial Court articulated the elements for a cause of action for civil liquor liability involving a motor vehicle accident. The plaintiff bears the burden of establishing the following by a preponderance of the evidence: (1) the tortfeasor was a patron/social guest on the premises; (2) was served intoxicating liquors; (3) defendant served the patron while the patron was intoxicated; (4) and under circumstances from which the defendant knew or reasonably should have known that he was intoxicated when served; (5) operates a motor vehicle while intoxicated; (6) such operation was reasonably foreseeable by the defendant; (7) and a person of ordinary prudence would have refrained from serving liquor to that patron in the same or similar circumstances; and (8) such operation caused the plaintiff s death or injury and was within the scope of the foreseeable risk. Id. at 334 n.9. Accordingly, a tavern keeper does not owe a duty to refuse to serve liquor to an intoxicated person unless the tavern keeper knew or reasonably should have known that the patron was intoxicated. Id. at In Kirby v. Le Disco, Inc., the Appeals Court held that absent evidence of some outward manifestation of intoxication when a patron is served his last alcoholic beverage, the trier of fact is not permitted to infer that the tavern was on notice that it was serving alcohol to an intoxicated person. 34 Mass. App. Ct. 630, (1993). The plaintiffs offered no evidence of the physical condition of the tortfeasor while the tortfeasor was at the defendant s establishment. Id. at 632. There was no evidence that he had been loud, boisterous, aggressive, vulgar or troublesome while at the defendant s bar. Id. Nonetheless, the plaintiffs argued that a jury should be allowed to infer from the amount of alcohol the 27

31 tortfeasor consumed (approximately eight beers) that he had outwardly manifested symptoms of intoxication which an experienced bartender would have recognized. Id. at 631. The court maintained, however, that the plaintiffs must introduce some evidence that the defendant was on notice that the tortfeasor was intoxicated when served alcoholic beverages. Id. at 632. In a recent Massachusetts Appeals Court case, the Court determined it was a question for the jury whether a bar was on notice that it was serving an intoxicated person based solely upon the fact that the patron consumed fourteen drinks over a two hour period. Rivera v. Club Caravan, 77 Mass. App. Ct. 17, 21 (2010). Evidence of a person s intoxication at the scene of the accident can be used only when there is some other evidence of excessive consumption or negligent service. Vickowski v. Polish Am. Citizens Club of the Town of Deerfield, Inc., 422 Mass. 606, 610 (1996). When evidence of excessive consumption by a patron of the establishment serving alcohol is lacking, as a matter of common sense and experience, the inference that the patron would have displaced obvious outward signs of intoxication while continuing to receive service from the establishment, as required for the establishment to be liable for harm caused by the patron, may not be drawn. 45 AM. JUR. 2D Intoxicating Liquors 53 (1999); see also Vickowski, 422 Mass. at 610. Although the Supreme Judicial Court agreed that other forms of circumstantial evidence might create a jury question of whether a licensee had served alcoholic beverages to a patron displaying obvious signs or intoxication, the Court has been reluctant to accept evidence of subsequent, obvious intoxication as a surrogate for evidence of a patron s demeanor at the relevant time. Id. at 612. In McGuiggan v. New England Tel. & Tel. Co., 28

32 the Court held that an affidavit that may have proven a guest s obvious intoxication before he left the host s premises was not sufficient to support liability on the part of the host. 398 Mass. 152, 162 (1986). The Supreme Judicial Court further expounded that in the absence of other evidence of obvious intoxication, expert testimony based on the results of a breathalyzer analysis, has no bearing on what the [alleged tortfeasor s] apparent condition was at the time he took his last drink. Id. at 162; see also Vickowski, 422 Mass. at 612. C. TOLLING PROVISIONS The statute of limitations does not commence for a minor until the minor reaches the age of majority, which is eighteen. The statute of limitations is three years thereafter. MASS. GEN. LAWS ch. 260, 7 (2014). The same provision applies for individuals who are incapacitated by reason of mental illness when a right to bring an action first accrues. Id. The action may be commenced within three years of removal of the disability. Id. D. SUBSTANTIVE LAW 1. Minors Massachusetts prohibits the sale of alcohol to persons under twenty-one years of age. MASS. GEN. LAWS ch. 138, 34 (2014). A violation of this statute is punishable as a criminal offense but does not, in and of itself, give rise to a tort cause of action to recover damages. Nonetheless, a breach of this statute constitutes evidence of negligence, even if the person is not automatically intoxicated at the time of the transaction. A server of alcohol owes a duty of care to refrain from making alcohol available to minors. Tobin v. Norwood Country Club, 422 Mass. 126, (1996). Service is not limited to the hand-to-hand selling or serving of alcohol. Rather, the duty can also be breached when an establishment 29

33 knew or reasonably should have known that it was furnishing alcohol in circumstances where there was a likelihood that the liquor would ultimately be consumed by minors. Id. at 135. Additionally, Massachusetts case law holds that when the duty that is breached is the duty owed to a minor not to serve him or her alcohol, an action for personal injuries is not caused by or does not arise out of the negligent serving of alcohol to an intoxicated person, but is caused by and arises out of the negligent serving of alcohol to a minor. Indeed, this negligence may cause personal injury even if the amount of alcohol consumed does not make the minor an intoxicated person, provided it is sufficient to constitute a substantial contributing cause of his or her injury. 2. Imbibers An intoxicated plaintiff may recover against a licensed vendor for personal injuries, property damage or consequential damages only if that vendor acted in a willful, wanton or reckless manner in serving the patron alcohol. MASS. GEN. LAWS ch. 231, 85T (2014); Manning v. Nobile, 411 Mass. 382, (1991). The Supreme Judicial Court defined willful, wanton or reckless as: Id. at Intentional conduct by way of either a commission or omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Two characteristics of willful, wanton or reckless conduct distinguish it from negligence. First, the defendant must knowingly or intentionally disregard an unreasonable risk. Second, the risk viewed prospectively must entail a high degree of probability that substantial harm would result to the plaintiff. 3. Assault and Battery Involving Drunken Patrons Generally, a third person s act in committing an intentional tort, such as assault or battery, constitutes a superseding cause of harm relieving of liability an actor who created the 30

34 situation that presented the third person with an opportunity to commit a tort or crime. Gidwani v. Wasserman, 373 Mass. 162, 166 (1977). However, liability will be imposed where the actor realized, or should have realized the likelihood that such a situation might be created, and that a third person might avail himself to the opportunity to commit a crime. Id. The specific kind of harm imposed does not need to be foreseeable as long as it was foreseeable that violence toward others would occur. Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969). Two major groups of cases exist where criminal or tortious behavior is held to be sufficiently foreseeable as to warrant imposing liability on entities serving alcohol. The first group is where a drunken patron inflicts injuries on others by negligent driving upon leaving a bar. Westerback v. Harold F. LeClair Co., 50 Mass. App. Ct. 144, 146 (2000) (citing Cimino v. Milford Keg, Inc., 385 Mass. 323, (1982)). The second group is where injuries result from the acts of drunken patrons on the premises, whether the drunk inflicts the injuries... or is himself the injured party. Id. (citing Wood v. Ray-Al Café, 349 Mass. 766, 766 (1965) (finding liability on part of defendant where patron was obviously intoxicated, continued to be served, imposed himself on other patrons, was not ejected from premises, and ultimately assaulted plaintiff patron)). E. SPECIAL DEFENSES Since Massachusetts dram shop actions are grounded in common law and not an enumerated statute like other states, ordinary defenses to tort claims generally apply. However, one special liquor liability defense is recognized. In a negligence action for the distribution, sale, or serving of alcoholic beverages to a minor or an intoxicated person, which must be commenced in the superior court, the plaintiff must file with his complaint, or 31

35 within 90 days thereafter, an affidavit setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry. MASS. GEN. LAWS ch. 231, 60J (2014). If the plaintiff does not timely file the affidavit, the defendant may make a motion for summary judgment grounded on that failure. Id. F. PRE-JUDGMENT INTEREST Twelve percent per annum from the date of commencement of the action. MASS. GEN. LAWS ch. 231, 6B (2014). G. SETTLEMENT PRACTICES Massachusetts does not have any statutes regulating the enforcement of settlements. By custom and practice, however, once a case is reported settled to the court, the court will enter either a thirty or sixty day nisi order, depending on the case. Under Massachusetts law, a settlement agreement is enforceable as a contract. During the nisi period, the parties need to file a stipulation dismissing the case or an agreement for judgment. When a case is reported as settled and made subject to an order for judgment of dismissal nisi, if no stipulation of dismissal or agreement for judgment is filed with the court during this nisi period, the court will dismiss the case on its own terms. The paying insurer has a reasonable amount of time to issue the settlement proceeds. The circumstances of each individual case dictate the length of the nisi period, which is usually held to be a reasonable time period in an uncomplicated case Behman Hambelton LLP. 32

36 NEW HAMPSHIRE PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. N.H. REV. STAT. ANN. 508:4 (2014). B. PREMISES LIABILITY 1. Slip and Fall New Hampshire owners and occupiers of land [are] governed by the test of reasonable care under all of the circumstances in the maintenance and operation of their property. Oulette v. Blanchard, 116 N.H. 552, 557 (1976). If the Defendant could not reasonably foresee any injury as a result of his act, or if his conduct was reasonable in light of what he could anticipate, there is no negligence, and no liability. Id. (citing William L. Prosser, TORTS, 43 (4th ed. 1971)). Generally, persons will not be found negligent if they cannot reasonably foresee that their conduct would result in an injury to another or if their conduct was reasonable in light of the anticipated risks. Kellner v. Lowney, 145 N.H. 195, 198 (2000). 2. Snow and Ice Landowners have a duty to use reasonable care to ensure that property under their control is reasonably safe. Dubreuil v. Dubreuil, et al., 107 N.H. 519, 522 (1967). They can be found liable for injuries resulting from a breach of said duty. Id. Pursuant to this duty, landowners must remove natural accumulations of snow and ice, or take other reasonable precautions to make the premises reasonably safe. Id. 33

37 3. Negligent Security A duty exists on the part of a landowner when it is foreseeable that an injury might occur as a result of the landowner s actions or inactions. Generally persons will not be found negligent if they could not reasonably foresee that their conduct [or the conduct of others] would result in an injury to another or if their conduct was reasonable in light of the anticipated risks. Thus, duty and foreseeability are inextricably bound together. Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304 (1992). Limited exceptions to the rule arise where a land owner creates or is responsible for a physical defect on the premises that foreseeably enhances the risk of criminal attack or undertakes to provide security and does so in a negligent manner. Ward v. Inishmaan Assocs., 156 N.H. 22 (2007). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Judgment shall be entered against each party liable on the basis of the rules of joint and several liability... except that if any party shall be less than 50% at fault, then that party s liability shall be several and not joint and he shall be liable only for the damages attributable to him. N.H. REV. STAT. ANN. 507:7-e I(b) (2014). However, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, [judgment shall be granted] against all such parties on the basis of the rules of joint and several liability. N.H. REV. STAT. ANN. 507:7-e I(e) (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff s legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate 34

38 if recovery is allowed against more than one defendant, but the damages recovered shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. E. PRE-JUDGMENT INTEREST The rate of interest, which begins accruing from the date the complaint is filed, is determined by the state treasurer on December 1 of each year as the prevailing discount rate of interest on twenty-six-week U.S. Treasury Bills at the last auction thereof preceding the last day of September in each year, plus two percent. N.H. REV. STAT. ANN. 336:1 (2014). F. SETTLEMENT PRACTICES Failing to acknowledge with reasonable promptness pertinent communications with respect to claims and failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims constitute unfair claim settlement practices. N.H. REV. STAT. ANN. 417:4 (2014). Unless otherwise provided by law, every insurer shall pay any amount finally agreed upon in settlement of all or part of a claim not later than five working days from the date of the agreement or the performance of all conditions which are set forth in the agreement by the insured, claimant, or authorized representative of either of all conditions set forth in such agreement. N.H. CODE ADMIN. R. ANN. Rules of the Insurance Commissioner (h) (2014). New Hampshire also recognizes a right to pursue a claim for negligent failure to settle against an insurer by its insured and upon assignment to the injured plaintiff. Dumas v. State Farm Mut. Auto. Ins. Co., 111 N.H. 43 (1971) Behman Hambelton LLP. 35

39 NEW HAMPSHIRE LIQUOR LIABILITY LAW SYNOPSIS New Hampshire dram shop law is purely statutory. N.H. REV. STAT. ANN. 507-F (2014). The statue is the exclusive remedy against the defendant for claims by those suffering damages based upon the defendant s service of alcoholic beverages. N.H. REV. STAT. ANN. 507-F:8 (2014). A. PROCEDURAL LAW 1. Time to Respond to Complaint Within thirty days of being served with the complaint and summons. N.H. Super. Ct. R. 4(e) (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant Upon receipt of a plaintiff s complaint and filing fee, the Court will process the action and provide the plaintiff with a summons for service on the defendant(s). N.H. Super. Ct. R. 4(c) (2015). The summons will identify the court-ordered deadline for service. Id. Service of the summons and complaint is made upon a defendant in accordance with N.H. REV. STAT. ANN. 510 (2014). 3. Notice/Statute of Limitations Three years for personal injury and property damage. N.H. REV. STAT. ANN. 508:4 (2014). 4. Joint Tortfeasors/Joint and Several Liability Judgment shall be entered against each liable party in accordance with the rules of joint and several liability, except that if any party shall be less than 50% at fault, then that party s liability shall be several and not joint and he shall be liable only for the damages 36

40 attributable to him. N.H. REV. STAT. ANN. 507:7-e (2014). However, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, [judgment shall be granted] against all such parties on the basis of the rules of joint and several liability. N.H. REV. STAT. ANN. 507:7-e I(c) (2014). In addition, no later than sixty days after the final judgment is entered, a motion must be filed to determine whether all or part of defendant s proportionate share of the obligation is uncollectible. N.H. REV. STAT. ANN. 507:7-e III (2014). If the court finds that a defendant s proportionate share of the obligation is uncollectible, the court must reallocate any uncollectible amount among the other defendants according to their proportionate shares. Id. 5. Caps on Liability None. B. LIABILITY Service of alcoholic beverages to a minor or to an intoxicated person is negligent if the defendant knows or if a reasonably prudent person in like circumstances would know that the person being served is a minor or is intoxicated. N.H. REV. STAT. ANN. 507-F:4 II (2014). Proof of service of alcoholic beverages to a minor without request for proof of age as required by N.H. REV. STAT. ANN. 179:8 is admissible as evidence of negligence. N.H. REV. STAT. ANN. 507-F:4 III (2014). Service of alcoholic beverages by a defendant to an adult person who subsequently serves a minor off the premises or who is legally permitted to serve a minor does not constitute service to the minor unless a reasonably prudent person in like circumstances would know that such subsequent service is reasonably likely to occur and is illegal. N.H. REV. STAT. ANN. 507-F:4 IV (2014). A defendant does not have a duty to 37

41 investigate whether a person being served alcoholic beverages intends to serve the alcoholic beverages to other persons off the premises. N.H. REV. STAT. ANN. 507-F:4 V (2014). A defendant is not chargeable with knowledge of a person s consumption of alcoholic beverages or other drugs off the defendant s premises, when the person misrepresents such consumption or the amount of such consumption, unless the defendant s service to such person qualifies as reckless under N.H. REV. STAT. ANN. 507-F:5. N.H. REV. STAT. ANN. 507-F:4 VI (2014). A defendant is not under a duty to recognize signs of a person s intoxication other than those normally associated with the consumption of alcoholic beverages except for intoxication resulting in whole or in part from other drugs consumed on defendant s premises with defendant s actual or constructive knowledge. N.H. REV. STAT. ANN. 507-F:4 VII (2014). A person who becomes intoxicated may bring an action against a defendant for serving alcoholic beverages recklessly. N.H. REV. STAT. ANN. 507-F:5(I) (2014). Service is reckless when a defendant intentionally serves alcoholic beverages to an individual when the server knows, or a reasonable person in his position should have known, that such service creates an unreasonable risk of physical harm to the drinker or to others that is substantially greater than that which is necessary to make his conduct negligent. Id. A defendant who is reckless in serving alcoholic beverages is liable for resulting damages. N.H. REV. STAT. ANN. 507-F:5(II) (2014). Specific serving practices that are admissible as evidence of reckless conduct include, but are not limited to, the following: (a) Active encouragement of intoxicated persons to consume substantial amounts of alcoholic beverages. (b) Service of alcoholic beverages to a person, 16 years of age or under, when the server knows or should reasonably know the patron s age. 38

42 (c) Service of alcoholic beverages to a patron that is so continuous and excessive that it creates a substantial risk of death by alcohol poisoning. (d) The active assistance by a defendant of a patron into a motor vehicle when the patron is so intoxicated that such assistance is required, and the defendant knows or should know that the intoxicated person intends to operate the motor vehicle. N.H. REV. STAT. ANN. 507-F:5(III) (2014). C. TOLLING PROVISIONS The statute of limitations does not commence for a minor until the age of eighteen. A minor has two years after reaching the age of majority to file an action (the same applies to insane persons). N.H. REV. STAT. ANN. 508:8 (2014). D. SUBSTANTIVE LAW 1. Minors Generally, service of alcoholic beverages to a minor is negligent if the defendant knows, or if a reasonably prudent person under like circumstances would know, that the person being served is a minor. N.H. REV. STAT. ANN. 507 F:4(II) (2014). However, service of alcoholic beverages to an adult who subsequently serves a minor off the premises or who is legally permitted to serve a minor does not constitute service to a minor, unless a reasonably prudent person in like circumstances would know that such subsequent service is reasonably likely to occur and is illegal. N.H. REV. STAT. ANN. 507-F:4(IV) (2014). 2. Imbibers An imbiber may not bring an action for negligent service of alcoholic beverages against a person or entity that served him the beverages unless he can demonstrate that the service of the beverages was reckless, as explained in the section concerning reckless service of alcohol, set forth above, and as codified in N.H. REV. STAT. ANN. 507-F:5 (2014). 39

43 3. Assault and Battery Involving Drunken Patrons With limited exceptions, New Hampshire generally follows a restrictive no duty interpretation of a property owner s duty to protect against intentional tortfeasors. However, at least one court has recognized a duty of a restaurant owner to protect patrons from assault by teenagers open and obvious unruly behavior that created an unreasonable risk of injury. Iannelli v. Burger King Corp., 145 N.H. 190, 194 (2001). It was also suggested in the Iannelli case that some of the teenagers were intoxicated at the time of the assault. Id. E. SPECIAL DEFENSES The New Hampshire Dram Shop Statute also sets forth a statutory defense that may be invoked by defendants in dram shop cases. Service of alcoholic beverages is not negligent or reckless if the defendant, at the time of the service, is adhering to responsible business practices. N.H. REV. STAT. ANN. 507-F:6(I) (2014). Therefore, pursuant to this defense, a dram shop defendant may present evidence to the jury that, at the time of the service alleged in the complaint, the defendant was following responsible business practices in its service of alcohol to patrons. The New Hampshire Dram Shop Statute specifically defines responsible business practices as those business policies, procedures, and actions which an ordinarily prudent person would follow in like circumstances. Id. The Statute also contains a non-inclusive list of the types of practices and procedures considered responsible in the service of alcohol, including: encouraging persons not to become intoxicated; promoting the availability of non-alcoholic beverages and food, promoting alternative transportation, implementing comprehensive training procedures, and maintaining an adequate number of employees. N.H. REV. STAT. ANN. 507-F:6(V) (2014). Although this defense sounds strict 40

44 in its wording, it is tempered by 507-F:6(VII), which states that proof of the defense shall be based upon the totality of the circumstances.... Therefore, pursuant to the responsible business practice defense, a dram shop defendant is allowed to offer evidence of its responsible practices that in an ordinary negligence action would be inadmissible as irrelevant to the facts of the case at hand. F. PRE-JUDGMENT INTEREST The rate of interest, which begins accruing from the date the complaint is filed, is determined by the state treasurer on December 1 of each year as the prevailing discount rate of interest on twenty-six-week U.S. Treasury Bills at the last auction thereof preceding the last day of September in each year, plus two percent. N.H. REV. STAT. ANN. 336:1 (2014). G. SETTLEMENT PRACTICES Failing to acknowledge with reasonable promptness pertinent communications with respect to claims and failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims constitute unfair claim settlement practices. N.H. REV. STAT. ANN. 417:4 (2014). Unless otherwise provided by law, every insurer shall pay any amount finally agreed upon in settlement of all or part of a claim not later than five working days from the date of the agreement or the performance of all conditions which are set forth in the agreement by the insured, claimant, or authorized representative of either of all conditions set forth in such agreement. N.H. CODE ADMIN. R. ANN. Rules of the Insurance Commissioner (h) (2014). New Hampshire also recognizes a right to pursue a claim for negligent failure to settle against an insurer. Dumas v. State Farm Mut. Auto. Ins. Co., 111 N.H. 43 (1971) Behman Hambelton LLP. 41

45 NEW JERSEY PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Two years. N.J. STAT. ANN. 2A:14-2 (2014). B. PREMISES LIABILITY 1. Slip and Fall A proprietor of premises to which the public is invited to do business is under a duty to use reasonable care to maintain the premises in a condition reasonably safe for the business invitee s use. Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300, 306 (App. Div. 1958). In order to establish liability of a proprietor of premises to which the public is invited, for injuries sustained by a business invitee because of the condition of premises, the business invitee must show that the condition of the premises was unsafe. Bohn v. Hudson and Manhattan R. Co., 16 N.J. 180, 185 (1954). The invitee must also show that the proprietor was at fault in failing to remedy the situation after having knowledge of the condition or after existence of the condition for such length of time as reasonably to have resulted in knowledge and correction had the proprietor been reasonably diligent. Id. at Snow and Ice A business owner owes its business invitee a duty of exercising reasonable care to maintain the parking lot in reasonably safe condition, and, as part of that general obligation, is under a duty to exercise reasonable care to keep the lot free of ice and snow. Bates v. Valley Fair Enters., Inc., 86 N.J. Super. 1, 6 (1964). 42

46 3. Negligent Security In negligent security cases, it is not necessary that the particular consequences of the negligent act be foreseen so long as it is foreseeable that some injury may ensue. Instead, proximate cause may be established by demonstrating that according to the common experience of mankind, the resulting injury was a reasonably foreseeable consequence of the negligent act. Nebel v. Avichal Enters., Inc., 704 F.Supp. 570, (1989) (citing Chomatopoulos v. Roma DeNotte Soc. Club, 212 N.J. Super. 447, (1985)) (holding that failure of illegal gambling establishment to provide private security force that would deter and/or control foreseeable altercations among its patrons was a proximate cause of gambler s injury). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Each tortfeasor is liable for his proportionate share of damages according to his own degree of fault. N.J. STAT. ANN. 2A:53A-3 (2014). When any one joint tortfeasor pays a judgment in whole or in part, he is entitled to recover contribution from the other joint tortfeasor(s) for the excess paid over his share. Id. D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Under New Jersey s comparative negligence doctrine, a plaintiff may recover if his negligence contributed to the damages provided his negligence was not greater than the party or parties against whom recovery is sought (i.e., less than or equal to fifty percent). However, the damages to which an injured party would be entitled will be diminished by the percentage of negligence attributable to the recovering party. N.J. STAT. ANN. 2A: et. seq. (2014). 43

47 E. PRE-JUDGMENT INTEREST Pursuant to Rule 4:42-11(b) of the Rules Governing the Courts of the State of New Jersey, pre-judgment interest rates in tort actions are the same as the post-judgment interest rates. The annual pre-judgment and post-judgment interest rate is equal to the average rate of return for the State of New Jersey Cash Management Fund for the preceding fiscal year, rounded off to the nearest one-half percent. F. SETTLEMENT PRACTICES Initially in the litigation, settlement proceedings take the form of a court ordered, non-binding mandatory mediation, a process by which the parties appear before a private, neutral mediator, who assists them in attempting to resolve their dispute by voluntary agreement. Both sides present their case and are awarded a few hours of free mediation. If the parties believe the mediation could be helpful and beneficial, they are free to continue the mediation at cost to the parties. Towards the end of the litigation and post discovery, a mandatory, non-binding Arbitration is scheduled by the Court. A neutral Arbitrator (usually an experienced attorney in the venued County) renders a decision based upon the statements, facts and informal testimony presented by both parties. The Arbitration award is usually a means of getting the parties to discuss settlement. All parties, if dissatisfied with the Arbitration award, have thirty days to file a trial de novo which rejects the Arbitration award and requests a trial of the issues. The trial de novo filing must be served on all parties and if it is not so served, the judgment is entered. If no party files a trial de novo, judgment is entered against the defendant for the amount awarded. Rejection of the arbitrator s award makes one liable for 44

48 reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 45

49 NEW JERSEY LIQUOR LIABILITY LAW SYNOPSIS A. PROCEDURAL LAW 1. Time to Respond to Complaint A defendant shall serve an answer, including therein any counterclaim, within thirtyfive days after being served the summons and complaint. R. 4:6-1 (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant Rules for service may vary based upon the court in which the action was filed. R. 4:4 (2015). If the action is filed in the Law Division, and the process is to be served in state, the clerk of court will mail the process via certified and ordinary mail within twelve days of the complaint being filed. Id. 3. Statute of Limitations Two years. N.J. STAT. ANN. 2A:14-2 (2014). 4. Joint Tortfeasors/Joint and Several Liability Each tortfeasor is liable for his proportionate share of damages according to his own degree of fault. N.J. STAT. ANN. 2A:53A-3 (2014). When any one joint tortfeasor pays a judgment in whole or in part, he is entitled to recover contribution from the other joint tortfeasor(s) for the excess paid over his share. Id. 5. Caps on Liability The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act is the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. However, nothing contained in the Act shall be deemed to limit the criminal, quasi-criminal, or regulatory 46

50 penalties which may be imposed upon a licensed alcoholic beverage server by any other statute, rule or regulation. N.J. STAT. ANN. 2A:22A-4 (2014). B. LIABILITY A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor. N.J. STAT. ANN. 2A:22A-5 (2014). C. TOLLING PROVISIONS The statute of limitations does not commence for a minor until the minor reaches the age of majority, eighteen. Although N.J. STAT. ANN. 2A:14-21 continues to expressly provide for tolling for those under age twenty-one, 9:17B-1 lowered the age of majority from twenty-one to eighteen, which the New Jersey Supreme Court upheld as the statutory age for tolling in Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 598 (1992). As such, the minor would have two years after reaching the age of majority. See id. D. SUBSTANTIVE LAW 1. Minors A licensed alcoholic beverage server is deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor. N.J. STAT. ANN. 2A:22A-5 (2014). 47

51 2. Imbibers An imbiber may sue for his own injuries. Voss v. Tranquilino, 206 N.J. 93, 96 (2011) (holding that a driver who was injured after a drunk driving accident was able to sue under dram shop for service while visibly intoxicated). 3. Assault and Battery Involving Drunken Patrons New Jersey follows an expansive version of the totality of circumstances approach in assessing a tavern keeper s liability for assault and battery claims. Kuehn v. Pub Zone, 364 N.J. Super. 301, 312 (App. Div. 2003). A tavern keeper owes a duty to take reasonable precautions to protect against intentional tortfeasors. Id. at 313. In Kuehn, the totality of the circumstances gave rise to a duty owed by the defendant tavern to a patron who was attacked in the men s room by members of a motorcycle gang. Id. at Where the gang was collectively known to a proprietor of the tavern to engage in random violence, the Court found the tavern had a duty to take reasonable safety precautions against danger posed by the gang as a group. Id. at 313. This duty was in place despite the fact that the proprietor had no reason to suspect any particular member of the gang of violent conduct and violence was not to be expected from the gang at any particular time or in any particular circumstance. Id. A distinction was drawn, however, with respect to individual patrons. In Ivins v. Town Tavern, the Court found that even though tavern employees knew the aggressor had a potentially violent nature, and the employees may have been aware of the friction between the aggressor and plaintiff s friend, there was no evidence of any events occurring inside the tavern that night that should have put the tavern employees on notice that a possible fight was in the works. 335 N.J. Super. 188, 197 (App. Div. 2000). Had such evidence existed, it 48

52 would have triggered a duty on the part of the tavern employees to take preventive measures. Id. E. SPECIAL DEFENSES A comparative negligence defense is available to a tavern owner under the Alcoholic Beverage Servers Liability Act against a patron who brings suit for injuries suffered as a result of her own intoxication. N.J. STAT. ANN. 2A:22A-1 et seq. (2014).; McGovern v. Koza s Bar & Grill, 254 N.J. Super. 723, 728 (Law Div. 1991). The New Jersey Dram Shop Act, N.J. STAT. ANN. 2A:22A-5 (2014), requires the application of the Comparative Negligence Act at N.J. STAT. ANN. 2A:22A-6 (2014). The Dram Shop Act also requires the consideration of foreseeability and causation in apportioning fault, requiring the jury to consider all the relevant circumstances in apportioning fault in cases. Showalter v. Barilari, Inc., 312 N.J. Super. 494 (App. Div. 1998). F. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest Pre-judgment interest rates in tort actions are the same as the post-judgment interest rates. R. 4:42-11(b) (2015). The annual pre-judgment and post-judgment interest rate is equal to the average rate of return for the State of New Jersey Cash Management Fund for the preceding fiscal year, rounded off to the nearest one-half percent. Id. 2. Offer of Compromise At any time more than twenty days before the actual trial date, any party may, without prejudice, serve on any adverse party and file with the court, an offer to take a monetary judgment in the offeror s favor, or as the case may be, to allow judgment to be 49

53 taken against the offeror, for a sum stated therein (including costs). R. 4:58-1(a) (2015). This only applies when the relief sought is exclusively monetary. Id. Should the offer be accepted at least ten days before the actual trial date, the offeree must serve on the offeror and file with the court a notice of acceptance. R. 4:58-1(b) (2015). The making of a further offer shall constitute a withdrawal of all previous offers made by that party. An offer shall not, however, be deemed withdrawn upon the making of a counteroffer by an adverse party but shall remain open until accepted or withdrawn as is herein provided. Id. The offer expires if it is not accepted within ten days of the trial date or within ninety days of its service. Id. R. 4:58-2(a) (2015). If the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later, but only to the extent that such prejudgment interest exceeds the interest prescribed by R. 4:42-11(b), which also shall be allowable; and (3) a reasonable attorney s fee for such subsequent services as are compelled by the non-acceptance. If the offer of a non-claimant party is not accepted, and the claimant obtains a monetary judgment favorable to the offeror, the offeror is permitted the allowances described above in addition to the costs of suit. R. 4:58-3(a) (2015). A favorable determination qualifying for such allowances is a money judgment in an amount, excluding allowable prejudgment interest and counsel fees, equaling eighty percent of the offer or less. R. 4:58-3(b) (2015). 50

54 No allowances will be granted if the claimant s claim is dismissed, a no cause verdict is returned, only nominal damages are awarded, a fee allowance would conflict with the policies underlying a fee-shifting statute or rule of court, or an allowance would impose an undue hardship. R. 4:58-3(c) (2015). However, if an undue hardship may be avoided by reducing the allowance to a lower sum, the court will reduce accordingly. Id. Applications for allowances must be made within twenty days after entry of final judgment. R. 4:58-6 (2015). A party who is awarded counsel fees, costs, or interest as a prevailing party pursuant to a fee-shifting statute, rule of court, contractual provision, or decisional law shall not be allowed to recover duplicative fees, costs, or interest under this rule. Id. G. SETTLEMENT PRACTICES Initially in the litigation, settlement proceedings take the form of a court ordered, non-binding mandatory mediation, a process by which the parties appear before a private, neutral mediator, who assists them in attempting to resolve their dispute by voluntary agreement. Both sides present their case and are awarded a few hours of free mediation. If the parties believe the mediation could be helpful and beneficial, they are free to continue the mediation at cost to the parties. Towards the end of the litigation and post discovery, a mandatory, non-binding Arbitration is scheduled by the Court. A neutral Arbitrator (usually an experienced attorney in the venued County) renders a decision based upon the statements, facts and informal testimony presented by both parties. The Arbitration award is usually a means of getting the parties to discuss settlement. All parties, if dissatisfied with the Arbitration award, have thirty days to file a trial de novo which rejects the Arbitration award and requests a trial of 51

55 the issues. The trial de novo filing must be served on all parties and if it is not so served, the judgment is entered. If no party files a trial de novo, judgment is entered against the defendant for the amount awarded. Rejection of the arbitrator s award makes one liable for reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 52

56 NEW YORK PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. CPLR 215 (2014). B. PREMISES LIABILITY 1. Slip and Fall New York applies a single standard of reasonable care under circumstances whereby foreseeability is the measure of liability. Basso v. Miller, 40 N.Y.2d 233, 241 (1976); Quinlan v. Cechini, 41 N.Y.2d 686, 689 (1977). The duty owed is that of reasonable care for safety of all persons reasonably to be expected upon owner possessor s land. Farkas v. Cedarhurst Natural Food Shoppe, Inc., 41 N.Y.2d 1041, (1977). With respect to a foreign substance on the floor of a business that invites customers, such as a supermarket or store, proof of notice of the substance is essential to recovery by a customer who slipped and fell as a result of the substance. Cameron v. Bohack, 27 A.D.2d 362, 364 (1967). 2. Snow and Ice Landowners are not responsible for failure to remove snow and ice until a reasonable amount of time elapsed after cessation of the storm (i.e., there can be no liability for failure to remove snow and ice where a snowstorm is still in progress at the time of the slip and fall). Cerra v. Perk Dev., 602 N.Y.S.2d 277, 277 (1993). A building owner is not liable in tort for injuries sustained by a pedestrian who slips and falls on snow and ice which naturally accumulated on a sidewalk in front of its premises because the landlord owes no duty to the public to remove naturally accumulated snow and ice. Gerber v. City of New York, 719 N.Y.S.2d 650, 651 (2001). 53

57 An out-of-possession landlord may incur liability in tort for injuries sustained by a pedestrian who slips and falls on snow and ice that naturally accumulates on the sidewalk in front of the premises if the landlord attempted to remove snow and ice and made the condition more hazardous. Id. An owner must be notified of the icy condition, evidence must be adduced as the origin of the icy patch on which the pedestrian allegedly slipped and the owner must have sufficient time to remedy the dangerous condition. Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972, 973 (1994). 3. Negligent Security New York also focuses on the foreseeability of the injuries sustained in a negligent security claim and does not impose a requirement that a business be a guarantor of its invitees safety. Where a person was assaulted during a robbery attempt on the grounds of the defendant s apartment complex, the Court found that there was no duty to protect against such incidents beyond the security force patrols provided by the defendant. Leyva v. Riverbay Corp., 620 N.Y.S.2d 333, 337 (1995). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff s recovery damages are reduced in accordance with his degree of fault. Id. 54

58 E. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest Nine percent per annum. CPLR 5004 (2014). 2. Offer of Compromise A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant s costs as of that time. Id. F. SETTLEMENT PRACTICES In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial Behman Hambelton LLP. 55

59 NEW YORK LIQUOR LIABILITY LAW SYNOPSIS A. PROCEDURAL LAW 1. Time to Respond to Complaint Contingent on the method of service the shortest time period to respond is twenty days from the return date to file the initial responsive pleading. CPLR 320 (2014). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant An action is commenced by filing a summons and complaint. CPLR 304 (2014). Service of the summons and complaint must be made within 120 days after commencement of the action. CPLR 306-b (2014). Process shall be returned to the Supreme Court within the time in which the defendant is allowed to answer. CPLR 306-a(a) (2014). 3. Notice/Statute of Limitations An action to recover damages for a personal injury must be commenced within three years. CPLR 214 (2014). 4. Joint Tortfeasors/Joint and Several Liability A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014). 5. Caps on Liability None. B. LIABILITY No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to: Any visibly intoxicated person; Any 56

60 habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages. N.Y. ALCO. BEV. CONT. LAW 65 (2014). C. TOLLING PROVISIONS CPLR 208 (2014). If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. D. SUBSTANTIVE LAW 1. Minors No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to: 1. Any person, actually or apparently, under the age of twenty-one years.... N.Y. ALCO. BEV. CONT. LAW 65 (2014). To find that a liquor licensee caused or permitted the service or delivery of alcoholic beverages to a minor in violation of the Alcoholic Beverage Control Law, conduct must be open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented. Park II Villa Corp. v. New York State Liquor Auth., 529 N.Y.S.2d 370, 371 (1988) (citing 4373 Tavern Corp. v. New York State Liquor Auth., 377 N.Y.S.2d 135, 136 (1975)). 57

61 2. Imbibers In Donato v. McLaughlin, the Court held that a tavern could not be held liable, under the Dram Shop Act, to the victim of an automobile accident caused by the tavern s patron absent evidence that the patron was visibly intoxicated when he was served alcohol at the tavern and thus that any illegal sale took place. 599 N.Y.S.2d 754, 756 (1993). In order to sustain a claim under the Dram Shop Act, the plaintiff must show that the defendant vendor unlawfully sold alcoholic beverages to an intoxicated patron and the plaintiff must offer evidence that the party to whom liquor was sold acted or appeared to be intoxicated at time of sale. Nehme v. Joseph, 554 N.Y.S.2d 642, 643 (1990). 3. Assault and Battery Involving Drunken Patrons In New York, a duty to protect one s patrons arises once it is shown that the owner or business proprietor had reason to know of the likelihood of a criminal act occurring upon his property. Stevens v. Kirby, 450 N.Y.S.2d 607, 610 (1982). The test in New York for determining whether a landholder had reason to know of a criminal act is an expansive version of the prior similar incidents approach. Id. The owner of a public establishment has no duty to protect patrons from unforeseeable and unexpected assaults. Rishty v. DOM, Inc., 888 N.Y.S.2d 151, 152 (2009). In Tyrrell v. Quigley, the Court stated the defendant was bound to use reasonable care to protect his patrons from injury at the hands of a vicious individual whom the tavern knowingly permitted to be in and about the tavern. 60 N.Y.S.2d 821, 822 (1946). The plaintiff alleged he had been assaulted by a female patron in the defendant s bar, and that such patron had been served intoxicating beverages by the defendant to the extent that she 58

62 became boisterous and prone to violent action, and that the defendant was aware of the patron s reaction to intoxicating beverages. Id. However, a bar patron who was injured as a result of a sudden and unexpected assault by unidentified assailants was not entitled to recover against the bar because the bar owner could not have reasonably anticipated or prevented the assault, and thus the owner could not be held liable for the patron s injuries. Katekis v. Naut, Inc., 875 N.Y.S.2d 212, 214 (2009). Similarly, even if an anticipated presence of large crowds of young people consuming alcohol at a club in early morning hours made a criminal attack on a patron by another patron foreseeable, so as to impose a duty on the club owner to take reasonable security measures to minimize danger, the plaintiff failed to prove that the defendant bar owner breached that duty where the owner took security measures against criminal attacks involving weapons (i.e., hiring state licensed security guards who were present throughout the club in significant numbers, conducting pat downs, and operating metal detectors at the club s entrance). Djurkovic v. Three Goodfellows, Inc., 767 N.Y.S.2d 108, 109 (2003). E. SPECIAL DEFENSES New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff s recovery damages are reduced in accordance with his degree of fault. Id. F. PRE-JUDGMENT INTEREST/ RESOLUTIONS 1. Pre-Judgment Interest Nine percent per annum. NY CPLR 5004 (2014). 59

63 2. Offer of Compromise A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant s costs as of that time. Id. G. SETTLEMENT PRACTICES In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial Behman Hambelton LLP. 60

64 RHODE ISLAND PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. R.I. GEN. LAWS (b) (2014). B. PREMISES LIABILITY 1. Slip and Fall The common law distinctions between an invitee, licensee, and trespasser, have been abolished insofar as the degree of care owed by a landowner. In lieu thereof, it must be determined whether a landowner has used reasonable care for the safety of all persons reasonably expected to be upon the premises. Mariorenzi v. DiPonte, 114 R.I. 294, 307 (1975). Landowners owe trespassers, who are not expected to be on the premises, no duty except to refrain from wilful or wanton conduct. Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994); but cf. King v. Narragansett Elec. Co., 1995 WL (R.I. Super. 1995). An injured party must prove that a defective condition existed for a period sufficient to give the premises owner or occupier reasonable notice (actual or constructive) and that despite such notice, the owner or occupier failed to remove the condition or warn of its existence. Pandozzi v. Providence Lodge No. 14, 496 A.2d 928, 930 (R.I. 1985); Lombardi v. Dryden Corp., 114 R.I. 202, 203 (1975). Notice of a defect or dangerous condition on the premises imposes a duty on a defendant-owner to remedy the condition or to warn the plaintiff-customer of the danger. Fisher v. Almac s, Inc., 117 R.I. 244, 245 (1976). 61

65 2. Snow and Ice The so-called Connecticut Rule, which permits a landlord to wait a reasonable time after the end of a storm to clear snow and ice before liability attaches, has been adopted in Rhode Island. Terry v. Cent. Auto Radiators, Inc., 732 A. 2d 713, (R.I. 1999). that there is: 3. Negligent Security In Gillogly v. New England Transp. Co., the Supreme Court of Rhode Island stressed no liability when injury is inflicted as the result of natural causes or of the negligence of a third party which directly and exclusively create a situation not preventable by any reasonable foresight. In such a situation the accident resulting in injury is unavoidable. But the rule is otherwise where the [defendant] contributes in creating a condition that could have been avoided by the exercise of due care. 73 R.I. 456, 465 (1948). A person who owes a legal duty to another is bound to foresee that which is probable, that is, what according to the usual experience of mankind is likely to happen. Id. As a general rule, a landowner has no duty to protect another from the harm caused by the dangerous or illegal acts of a third party. Martin v Marciano, 871 A.2d 911, 915 (R.I. 2005). Such acts generally sever the chain of foreseeability. C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY A successful plaintiff may seek to recover his damages from any defendant found liable. If that defendant pays more than his proportionate share as determined by the jury s percentage of fault, then that defendant would have a right of contribution from the other joint tortfeasors to recover the amount of damages in excess of his proportionate share that he has paid to the plaintiff. R.I. GEN. LAWS (2014). 62

66 D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Rhode Island is a pure comparative state. R.I. GEN. LAWS (2014). A plaintiff can recover as long as he is not 100% at fault. Id. A plaintiff s recovery of damages is reduced in accordance with his degree of fault. Id. Under Rhode Island law, where a person voluntarily and knowingly accepts a dangerous situation, he absolves a defendant s liability for having created an unreasonable risk of harm. Filosa v. Courtois Sand & Gravel Co., 590 A.2d 100, 103 (R.I. 1991) (citing Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 76 (1977)). Assumption of the risk may be raised by a defendant as an affirmative defense to a negligence claim. Consequently, assumption of the risk, if it applies, terminates the duty of care that the defendant owes to the plaintiff. Filosa, 590 A.2d at 103. E. PRE-JUDGMENT INTEREST Twelve percent per annum from the date of injury. R.I. GEN. LAWS (2014). F. SETTLEMENT PRACTICES Whenever a claim is settled, the insurance company responsible for paying the settlement must make payment within thirty days from the date the claimant or his attorney sends the release. R.I. GEN. LAWS (2014). Failure to make payment within thirty days raises a presumption that the failure was a wilful and wanton disregard of the rights of the claimant. Id. Additionally, the payor is liable to the claimant in a separate cause of action for punitive damages and interest computed at twelve percent per annum from the date of the cause of action giving rise to the settlement until judgment on the claim is entered. Id Behman Hambelton LLP. 63

67 RHODE ISLAND LIQUOR LIABILITY LAW SYNOPSIS Rhode Island Dram Shop Law is statutory. R.I. GEN. LAWS 3-14 (2014). However, common law claims and defenses applicable to negligence and recklessness actions are not limited by the Rhode Island Liquor Liability Act. R.I. GEN. LAWS (2014). A. PROCEDURAL LAW 1. Time to Respond to Complaint Twenty days. R.I. SUPER. CT. R. CIV. P. 12(a)(1)(A) (2015). If service of the summons was waived by the defendant on request under Superior Court Rule of Civil Procedure 4(d), the defendant has sixty days to respond from the date when the request for waiver was sent. R.I. SUPER. CT. R. CIV. P. 12(a)(1)(B) (2015). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant One hundred twenty days. R.I. SUPER. CT. R. CIV. P. 4(l) (2105). 3. Notice/Statute of Limitations Any action under the Rhode Island Liquor Liability Act must be brought within three years after the cause of action accrues. R.I. GEN. LAWS (2014). 4. Joint Tortfeasors/Joint and Several Liability Liability is joint and several, vis-a-vis injured third parties, with the intoxicated tortfeasor. R.I. GEN. LAWS (c) (2014). In cases where the intoxicated individual is negligent and the server is reckless, liability toward the intoxicated individual (or his estate) is also joint and several. DePasquale v. Venus Pizza, Inc., 727 A.2d 683, (R.I. 1999). In cases involving reckless conduct, non-reckless defendants have a right of contribution or 64

68 indemnity; in the case of negligent conduct only, all defendants have a right of contribution only. R.I. GEN. LAWS (d)-(e) (2014). 5. Caps on Liability None. Punitive damages may be awarded in all actions based on reckless conduct, but may not be awarded for actions based on negligent conduct. R.I. GEN. LAWS (b) (2014). Also, the Rhode Island Wrongful Death Statute provides a minimum recovery of $250, R.I. GEN. LAWS (2014). B. LIABILITY The Liquor Liability Act provides that the sale of liquor to a minor or visibly intoxicated person is negligent if the defendant knew, or if a reasonable person in similar circumstances would have known, that the individual being served is a minor or is visibly intoxicated. R.I. GEN LAWS 3-14 (2014). [A] server cannot be expected to make a determination of sobriety unless the server is familiar with the drinker s previous level of alcohol consumption or unless the drinker manifests such telltale signs of intoxication as swaying or slurred speech. Embrey v. Ortiz, 538 A.2d 1002, 1005 (R.I. 1988). However, a jury may draw an inference that an individual was visibly intoxicated based upon a breathalyzer reading taken shortly after service of alcohol. Maciszewski v. Flatley, 705 A.2d 171, 173 (R.I. 1998). C. TOLLING PROVISIONS The statute of limitations does not commence for a minor until the minor reaches the age of majority, eighteen, plus three years. R.I. GEN. LAWS (2014). The statute is also tolled as to persons under a mental disability or who are beyond the limits of the United 65

69 States. Id. There is no tolling for imprisoned individuals, since they have access to the courts despite incarceration. Id. D. SUBSTANTIVE LAW 1. Minors The Liquor Liability Act specifically requires a showing of negligence or reckless sale of liquor to minors in order to establish the liability of a liquor licensee. R.I. GEN. LAWS (2014). Proof of service of alcoholic beverages to a minor without a request for identification creates a rebuttable presumption of negligence. R.I. GEN. LAWS (2014). 2. Imbibers Neither an imbiber, his estate, nor anyone with claims arising out of his injuries (i.e., derivative claims) may sue a tavern unless the service of alcohol to the imbiber was reckless. R.I. GEN. LAWS (2014). Reckless conduct must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation. R.I. GEN. LAWS (2014). The following specific serving practices are admissible as evidence of reckless conduct: (1) Active encouragement of intoxicated individuals to consume substantial amounts of liquor; (2) Service of liquor to an individual who is under twenty-one years old when the server has actual or constructive knowledge of an individual s age; and (3) Service of liquor to an individual that is so continuous and excessive that it creates a substantial risk of death by alcohol poisoning. R.I. GEN. LAWS (d) (2014). 66

70 3. Assault and Battery Involving Drunken Patrons In determining the existence of a legal duty, Rhode Island courts consider the relationship between the parties, the scope and burden of the obligation to be imposed upon the defendant, and public policy considerations, as well the foreseeability of harm. Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005). As a general rule, a landowner has no duty to protect another from harm caused by the dangerous of illegal acts of a third party. An exception to this rule exists, however, when a plaintiff and a defendant bear a special relationship to each other. A special relationship, when derived from common law, is predicated on a plaintiff s reasonable expectations and reliance that a defendant will anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm. One such relationship exists between those who provide intoxicants and those whom they serve. Id. (citing Luoni v. Berube, 431 Mass. 729, 731 (2000) and Stuart M. Speiser et al., The American Law of Torts, 9:20 at 1125 (1985). E. SPECIAL DEFENSES Rhode Island is a pure comparative state. R.I. GEN. LAWS (2014). A plaintiff can recover as long as he is not 100% at fault. Id. A plaintiff s recovery of damages is reduced in accordance with his degree of fault. Id. F. PRE-JUDGMENT INTEREST/RESOLUTIONS Twelve percent per annum from the date of injury. R.I. GEN. LAWS (2014). G. SETTLEMENT PRACTICES Whenever any claim is settled, the insurance company responsible for paying the settlement must make payment within thirty days from the date the claimant or his attorney sends the release. R.I. GEN. LAWS (2014). Failure to make payment within thirty days raises a presumption that the failure was a wilful and wanton disregard of the rights of 67

71 the claimant. Id. Additionally, the payor is liable to the claimant in a separate cause of action for punitive damages and interest computed at twelve percent per annum from the date of the cause of action giving rise to the settlement until judgment on the claim is entered. Id Behman Hambelton LLP. 68

72 VERMONT PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. VT. STAT. ANN. tit. 2, 512(4) (2014). B. PREMISES LIABILITY 1. Slip and Fall A duty is owed to a business visitor or other invitee to keep premises reasonably safe. Mortiboys v. St. Michael s Coll., 478 F.2d 196, 197 (1973). A landowner generally has no duty of care to protect trespassers from injury caused by unsafe and dangerous conditions on the premises. Buzzell v. Jones, 151 Vt. 4, 6 (1989). 2. Snow and Ice A defendant owes a plaintiff a duty to use reasonable care to keep its premises in safe and suitable condition in light of the fact that winter weather is a reality of life and that slippery conditions cannot be wholly prevented but are foreseeable. Wakefield v. Tygate Motel Corp., 161 Vt. 395, 398 (1994). 3. Negligent Security Vermont common law does not hold property owners or operators liable in negligence for consequences that a reasonably prudent person could not have foreseen or anticipated under the circumstances. Edson v. Barre Supervisory Union, 182 Vt. 157, 161 (2007). In general, crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for liability. Id. at 162 (citing Estate of Sumner v. Dep t of Soc. & Rehab. Servs., 162 Vt. 628, 629 (1994) (mem.)); Smith v. Day, 69

73 148 Vt. 595, 598 (1987) (finding university was not liable for student s unforeseeable criminal acts). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Vermont is a pure several liability state, meaning each defendant is only liable for his assigned portion of the damages based on his percentage of fault. VT. STAT. ANN. tit. 2, 512(4) (2014). No right of contribution among joint tortfeasors exists in Vermont. Murray v. J & B Int l Trucks, 146 Vt. 458, 468 (1986). A right of indemnity exists only by an express agreement or undertaking by one joint tortfeasor to indemnify the other, or if the law implies such an undertaking given the circumstances. Id. at 467. D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff may recover so long as his negligence is less than or equal to the combined negligence of all the defendants. VT. STAT. ANN. tit. 12, 1036 (2014). However, a plaintiff s damages are diminished by general verdict in proportion to the amount of negligence attributable to him. Id. E. PRE-JUDGMENT INTEREST Pre-judgment interest in Vermont is twelve percent per annum from the date of injury. VT. STAT. ANN. tit. 9, 41a(a). It may be awarded as a matter of right where damages are liquidated or reasonably ascertainable as of the date of the tort. Turcotte v. Estate of La Rose, 153 Vt. 196, 199 (1989) (excluding punitive damages). F. SETTLEMENT PRACTICES All payments of claims under policies of insurance are made, unless another statute specifically provides otherwise, within thirty days of settlement between the insurer and beneficiary. VT. STAT. ANN. tit. 8, 3665(c) (2014). In the event judgment is entered for a 70

74 beneficiary, or a settlement agreement between the insurer and the beneficiary is executed, interest accrues from thirty days after the beneficiary files a properly executed proof of loss. VT. STAT. ANN. tit. 8, 3665(d) (2014). The interest rate imposed on the insurer is the judgment rate allowed by law. Id Behman Hambelton LLP. 71

75 VERMONT LIQUOR LIABILITY LAW SYNOPSIS Vermont Dram Shop Law is a combination of statutory and common law. An action can be brought against all servers of liquor except social hosts, unless social hosts serve alcohol to minors. VT. STAT. ANN. tit. 7, 501 (2014). Where the particular facts of a case fall within in the scope of the Dram Shop Act, the Act affords the plaintiff s exclusive remedy. Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 216 (1988). However, the Dram Shop Act does not preempt common law negligence against a person who has voluntarily become intoxicated and injures another person. Plante v. Johnson, 152 Vt. 270, 274 (1989). A. PROCEDURAL LAW 1. Time to Respond to Complaint Twenty days. VT. STAT. ANN. tit. 4, 1105(b) (2014). 2. Time for Plaintiff to Perfect Service of Process Upon Defendant An action is commenced by filing a complaint or by service of a summons and a complaint on the defendant(s). V. R. C. P. 3 (2014). When an action is commenced by filing with the appropriate court, a summons and a copy of the complaint must be served on the defendant(s) within sixty days of the filing. Id. When an action is commenced by service, the plaintiff must file the complaint with the appropriate court within twenty days after completion of service upon the first defendant served. Id. 3. Notice/Statute of Limitations A claim that falls within the scope of the Dram Shop Act must be brought within two years. VT. STAT. ANN. tit. 7, 501(d) (2014). However, a common law negligence claim 72

76 against a person who voluntarily becomes intoxicated and injures another is subject to a three year statute of limitations. VT. STAT. ANN. tit. 12, 512 (2014). 4. Joint Tortfeasors/Joint and Several Liability Vermont is a pure several liability state, meaning each defendant is only liable for his assigned portion of the damages based on his percentage of responsibility. VT. STAT. ANN. tit. 2, 512(4) (2014). Unlike other tortious actions in Vermont, a defendant in a dram shop action has a right of contribution from any other responsible party, which may be enforced in a separate action brought for that purpose. VT. STAT. ANN. tit. 7, 501(f) (2014). None. 5. Caps on Liability B. LIABILITY A spouse, child, guardian, employer or other person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action in his or her own name, jointly or severally, against any person or persons who have caused in whole or in part such intoxication by selling or furnishing intoxicating liquor: (1) to a minor as defined in this title; (2) to a person apparently under the influence of intoxicating liquor; (3) to a person after legal serving hours; or (4) to a person whom it would be reasonable to expect would be under the influence of intoxicating liquor as a result of the amount of liquor served by the defendant to that person. VT. STAT. ANN. tit. 7, 501(a)(1) (2014). Apparently under the influence of intoxicating liquor means a state of intoxication accompanied by a perceptible act or series of actions which present signs of intoxication. Id. 73

77 C. TOLLING PROVISIONS When a person entitled to bring a dram shop action is a minor, insane or imprisoned at the time the cause of action accrues, such person may bring such action within the statute of limitations, after the disability is removed. VT. STAT. ANN. tit. 12, 551 (2014). D. SUBSTANTIVE LAW 1. Minors An individual injured by an intoxicated person who is a minor shall have a cause of action against the tavern. VT. STAT. ANN. tit. 7, 501(a)(1) (2014). In addition, a minor shall have a cause of action against a social host, if the social host knew, or a reasonable person in the same circumstances would have known, that the person who received the intoxicating liquor was a minor. Id. 2. Imbibers The Dram Shop Act provides no statutory remedy to an imbiber, but does not foreclose an action by the imbiber against the tavern in common law negligence. Langle v. Kurkul, 146 Vt. 513, 516 (1993). As such, a common law negligence action by an imbiber against a licensed vendor is not preempted by the Dram Shop Act. Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 536 (1993). Also, the law was intended to prevent recovery in strict liability against a social host, but not to bar recovery in common law negligence. Id. at Assault and Battery Involving Drunken Patrons A liquor licensee has a duty to control the conduct of its patrons at all times. Department of Liquor Control General Regulation 36 (2014). All licensees must ensure the safety of individuals entering, leaving, or remaining on the licensed premises. No licensee 74

78 shall permit or suffer any disturbances, brawls, fighting, or illegal activity upon the licensed premises. Id. The Board may find, that a licensee suffered a disturbance, brawl, fight, or illegal activity upon the licensed premises or upon the streets, sidewalks, parking lots or highways adjacent thereto if any individual engaged in such conduct had been allowed to stay on the licensed premises while displaying signs of intoxication from alcohol, drugs, or other substances, and/or if it would be reasonable to expect that such individual would be intoxicated as a result of the amount of alcohol served to that individual. Under such facts, the Board may conclude that any such individual s conduct should have been anticipated. Department of Liquor Control General Regulation 36(a) (2014). If an altercation or fight occurs inside the licensed premises, the licensee must take appropriate affirmative action. See In re Con-Elec. Corp., 168 Vt. 576, 578 (1998). In Con- Elec. Corp., a bar owner permitted both men who engaged in a physical altercation to remain at the bar. Id. Only after a second fight inside the bar did the owner eject one of the men. Id. At that point, however, he did nothing to prevent the other man from following his combatant outside or to prevent the fight from resuming outside. Id. at Such inaction by the bar owner qualifies as a clear violation of a licensee s duty to control the conduct of its patrons. Id. at 579. E. SPECIAL DEFENSES Landlords may be joined as defendants if the intoxicating liquor was sold or furnished in a rented building. VT. STAT. ANN. tit. 7, 501(c) (2014). Judgment may be rendered against the owner, or in the case of a corporation, its agent, if he knew or had reason to know that intoxicating liquor was sold or furnished by the tenant in violation of the statute. VT. STAT. ANN. tit. 7, 501(c) (2014). However, defendant parents and property owners are not liable for injuries allegedly caused by the consumption of alcohol on their property where 75

79 they were not present, did not furnish the alcohol and did not control the alcohol consumed. Knight v. Rower, 170 Vt. 96, (1999). The Dram Shop Act permits admissibility of evidence of responsible actions taken or not taken, such as: instruction of servers as to laws governing the sale of alcohol; training of servers to deal with intoxicated customers; and inquiry as to age or degree of intoxication. VT. STAT. ANN. tit. 7, 501(e) (2014). A plaintiff may recover so long as his negligence is less than or equal to the combined negligence of all the defendants. VT. STAT. ANN. tit. 12, 1036 (2014). However, a plaintiff s damages are diminished by general verdict in proportion to the amount of negligence attributable to him. Id. F. PRE-JUDGMENT INTEREST Pre-judgment interest in Vermont is twelve percent per annum from the date of injury. VT. STAT. ANN. tit. 9, 41a(a). It may be awarded as a matter of right where damages are liquidated or reasonably ascertainable as of the date of the tort. Turcotte v. Estate of La Rose, 153 Vt. 196, 199 (1989) (excluding punitive damages). G. SETTLEMENT PRACTICES All payments of claims under policies of insurance are made, unless another statute specifically provides otherwise, within thirty days of settlement between the insurer and the beneficiary. VT. STAT. ANN. tit. 8, 3665(c) (2014). In the event judgment is entered for a beneficiary, or a settlement agreement between the insurer and the beneficiary is executed, interest accrues from thirty days after the beneficiary files proof of loss. VT. STAT. ANN. tit. 8, 3665(d) (2014). The interest rate imposed is the judgment rate allowed by law. Id Behman Hambelton LLP. 76