A Fort Lauderdale, Fla., bar which served alcohol to twin brothers who were underage is not liable for injuries they suffered in the off-premises assault of a co-worker with whom they had been drinking, an appeals court has ruled.

Even though the Sawgrass Tavern may have violated Florida's Dram Shop Act when it served the twins, the 4th District Court of Appeal said, the bar had a valid defense because James and Jon Hetherly were injured “during the commission or attempted commission of a forcible felony.”

“The injuries to the twins were unquestionably inflicted while they were occupied in aggravatedly battering a man in his bedroom,” the opinion said. “Nothing in the Dram Shop Act conveys any intent to protect impaired minors while they burgle a house and beat a tenant with a deadly weapon.”

After leaving the tavern, the Hetherlys went to their co-worker's home, where they struck him with a beer bottle and he defended himself with a knife. They pleaded guilty to burglary and aggravated battery but sued the bar under the Dram Shop Act, which allows claims arising from the intoxication of minors.

“[O]ne may not plausibly characterize the Dram Shop Act as a strict liability statute,” the 4th District ruled, while the forcible felony defense “is both mandatory and quite unqualified.”

In another recent dram shop case, a New Jersey appeals court has ruled that a bar has a duty to prevent an intoxicated patron from driving even if there is no evidence it served the patron with alcohol. The decision allows the estate of a passenger killed in a drunk-driving accident to sue a Cape May, N.J., bar for negligent supervision of the driver.

New Jersey's Dram Shop Act does not preempt a negligent supervision claim "in a circumstance in which evidence is lacking of negligent service of alcoholic beverages by the business entity to the tortfeasor," the court said.

By Matthew Heller
3/21/08