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Serve Responsibly

Take Me Home Tonight

April 1, 2009 By: David Denney Night Club and Bar Magazine


It’s 1:45 a.m. Some patrons are finishing their drinks. Some are heading for their cars. Some, however, may be too impaired to drive home safely. Rather than ask the bartender to call a cab, which can be expensive, they ask for a ride — from the bar itself. The bar manager gets a staffer to pull around the Monkey Truck or Disco Mobile or whatever cutesy-named vehicle the bar uses, and the bar employee drives the impaired patrons home. 

Many establishments across the country have embraced the practice of getting impaired customers home themselves. At first glance, the policy seems reasonable. The customer gets to spend more money in the bar, makes it home with his car (and without a DWI), and the bar builds customer loyalty. It’s perfect, right? Not necessarily.

A potential hornet’s nest of liability arising from various ride-home programs can come back to sting operators offering them.

Worry on Wheels
At The Barley Room Bar & Grill in Albuquerque, N.M., the employee doing the driving (male or female, customer’s choice) puts a foldable motorcycle in the trunk of the patron’s car, drives him or her home, then rides back to the bar on the motorcycle. The 5-Hole and Park Restaurants in Tupper Lake, N.Y. provide shuttle services for their customers. The Sunburnt Cow and Bondi Road restaurants in New York City pick up patrons in the “Moo Mobile” and drive them to the bar, where they can enjoy drinks before the cow-themed vehicle returns them home. The patrons are able to take advantage of the bar’s happy hour specials without fear of driving impaired.

But the Cow doesn’t advertise its happy hour specials to just those arriving in the Moo Mobile. It is in the business of selling happy hour drinks to everyone. So, while the patrons who show up in the van have a ride home, the rest of the patrons are left to their own — possibly impaired — judgment when the night finally ends. 

Here are a few frightening but important questions these programs raise:

If your bar has a program in place to give patrons rides, but someone who drinks at your bar instead drives and is involved in an accident that results in a dram shop lawsuit, a savvy plaintiff’s attorney will try to paint you as using the option of the ride home to sell too many drinks and over-serve patrons — as evidence of a pattern and practice that violates the law.
The argument, a litigant might proffer, is simple: (1) The bar is in the business of selling drinks; (2) it routinely sells so many drinks that it has established a program to get intoxicated customers home; (3) this customer did not ask to be taken home, electing instead to drive; (4) and he crashed into the school bus, injuring everyone. 

You might even face a negligence claim for failing to offer the customer a ride home when you have a perfectly good policy in place with which to do so.

When The Barley Room’s employee is driving the intoxicated guest home, what liability does it have in the event the guest is robbed, sexually assaulted, injured in an accident, etc.? Does the Barley Room conduct criminal background checks on its employees prior to authorizing them to drive patrons? If they do, it could be construed as the owner’s acknowledgement of the risk that such crime is possible, and if they do not, they are arguably negligent in putting non-screened employees in one-on-one situations with impaired strangers away from the bright lights of the bar. 

What happens if the Barley Room employee is involved in an accident in the customer’s car?  Whose liability insurance will be affected? If the Barley Room’s employee gets the guest home safely but is injured while returning to the restaurant on the motorcycle, what liability does the bar have to the employee? When 5-Hole shuttles guests around town, who bears the responsibility in the event the shuttle is involved in an accident? Does the bar have appropriate insurance? Will it be treated as a taxi service?

These are questions that many small, independent operators ignore, only to have to deal with them after an incident has occurred. Smart owners think ahead. After all, liability is all about foreseeability.

The owner of the Woodsmen’s Tavern in Tupper Lake, N.Y., actually started a taxi service, complete with the required permits and insurance, to avoid liability issues like these. If you offer a non-taxi shuttle service or other ride-home program, consider that depending on your local laws, if you accept payment or donations in return for a ride, you may be operating as an illegal cab company — which can create a whole new set of liability concerns.

Steer Clear
As a rule, these programs are a mistake. The myriad theories of liability which come into play when putting them into practice far outweigh the few dollars the bar can make by overselling to its customers. Any plaintiff’s attorney will tell you that these policies are in place to get away with encouraging patrons to over-consume, even if the bar’s goals are purely humanitarian.

A better idea is to enforce your state’s laws about over-serving and train your staff on how to comply with them. Encourage groups to utilize a designated driver or — most importantly — train your staff in how to avoid over-serving patrons.

Owners are always looking for ways to market themselves, especially in times of economic downturn. But remember, too, that in times of economic downturn people become more litigious. Do not open yourself up to that liability. NCB

HospitalityLawyer.com


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