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Reducing Underage Drinking: A Collective Responsibility
lishing statutory-based claims that typically supersede and extinguish a plaintiff’s right to sue under common law negligence principles. The general legislative trend has been to limit the scope of liability (Mosher, 2002; Holder et al., 1993). California, for example requires that the plaintiff show that the minor was obviously intoxicated at the time of sale (California Business and Professions Code § 25602.1). Other state legislatures have required proof of reckless, rather than negligent, conduct on the part of the retailer or have imposed caps on the amount of damages that can be collected (Mosher et al., 2002). Some states do not recognize dram shop liability at all, either because a court has ruled that common law negligence principles do not impose liability in this situation or because the legislature has overridden a judicial ruling finding retailers liable. Currently, 44 states permit dram shop liability suits (Mothers Against Drunk Driving [MADD], 2002b). However, a simple count does not adequately describe the wide variation in state approaches. Many state laws are so restrictive that they effectively preclude or severely limit plaintiffs’ right to sue (see Mosher et al., 2002).
Dram shop liability laws and common law rights of action are a potentially powerful tool for changing the environment in which alcohol is sold (Mosher, 1979; Holder et al., 1993). Research suggests that the threat of liability may lead to a significant increase in checking age identification and to greater care in service practices (e.g., Sloan et al., 2000). The available studies also suggest that dram shop liability laws can significantly reduce single vehicle nighttime crash deaths, alcohol-related traffic crash deaths, and total traffic crash deaths among minors (Chaloupka et al., 1993; Sloan et al., 1994, 2000). Other research indicates that such laws also reduce alcohol-related traffic crashes, total traffic crashes, homicides, and other unintentional injuries in the general population (Chaloupka et al., 1993; Sloan et al., 1994, 2000). Overall, dram shop liability has been estimated to reduce alcohol-related traffic fatalities among underage drivers by 3 to 4 percent (Chaloupka et al., 1993). The perceived likelihood of being successfully sued under dram shop liability statutes may be important. Thus, two highly publicized successful dram shop liability lawsuits in Texas were found to be related to decreases of 6.5 percent and 5.3 percent, respectively, in single vehicle nighttime crashes, which is a surrogate measure for drinking and driving (Wagenaar and Holder, 1991). These presumably occurred because owners, managers, and servers changed serving practices as a result of the suits and accompanying publicity.
Three states—Maine, New Hampshire, and Rhode Island—have passed key elements of the Model Alcoholic Beverage Retail Licensee Liability Act of 1985 (reprinted in Mosher et al., 2002), developed under a grant from the National Institute on Alcohol Abuse and Alcoholism. The model act includes a “responsible business practices” defense. This provision allows