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self-study / Torts

Mar. 12, 2024

A refresher on Dram Shop liability

Reza Torkzadeh

Founder and CEO, The Torkzadeh Law Firm

18650 MacArthur Blvd. Suite 300
Irvine , CA 92612

Phone: (888) 222-8286


Thomas Jefferson SOL; San Diego CA

Reza's latest book is "The Lawyer as CEO."

Allen P. Wilkinson


Allen is a retired lawyer, with many years of experience involving personal injury and medical malpractice cases

Prior to the 1970s, California followed the common law rule that the sale or furnishing of alcoholic beverages to an intoxicated person was not the proximate cause of injury or death caused by the intoxicated person. Rather, the consumption of the alcoholic beverage was considered the proximate cause. (See, e.g., Lammers v. Pacific Elec. Ry. Co. (1921) 186 Cal. 379; Fleckner v. Dionne (1949) 94 Cal. App. 2d 246.) As the Supreme Court stated in the 1955 case of Cole v Rush, “It is the voluntary consumption not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use.” (45 Cal. 2d 345, 356.) The Court observed that “[t]here may be sales without intoxication, but no intoxication without drinking.” Thus, a person who was injured, e.g, in an automobile caused by an intoxicated driver could not sue the person or establishment that sold or furnished the intoxicated driver the alcoholic beverages.

Then in the 1970s in a string of cases, the California Supreme Court ruled that the consumption of the alcoholic beverage rather than the sale or furnishing thereof was the proximate cause of any harm to or death of the person or third persons due to intoxication.

In the 1971 case of Vesely v. Sager ((1971) 5 Cal. 3rd 153.), a scant 15 years after it had decided Cole, the Supreme Court overruled Cole and held that the sale or furnishing of an alcoholic beverage to any obviously intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person. Vesely relied primarily upon section 25602 of the Business and Professions Code, which provides the sale or furnishing of alcoholic beverages to any habitual or common drunkard, or any obviously intoxicated person constitutes a misdemeanor. Consistent with long-established law, the high court recognized that a presumption of negligence on the part of the seller or furnisher of the drink would arise whenever section 25602 was violated.

Five years later, in Bernhard v. Harrah’s Club ((1976) 16 Cal. 3rd 313), the Supreme Court stated that although Vesely relied upon section 25602 of the Business and Professions Code to support its holding, nevertheless the clear import of that decision was that there was no bar to civil liability under modern negligence law. (16 Cal. 3rd 313, 325).

In 1978, in Coulter v. Superior Court ((1978) 31 Cal. 3rd 144.), the Supreme Court ruled: “We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway. … Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care. (21 Cal. 3d 144, 152-53.)

The legislature’s response to this line of cases was swift. Five months after Coulter was decided, the Legislature enacted Civil Code sections 1714 subds (b) and (c) and Business and Professions Code section 25602 subds. (7b) and (c). Civil Code section 1714 subd. (b) expressly abrogated the holdings in Vesely, Bernhard, and Coulter. In their place the legislature reinstated “the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” (Civil Code sec. 1714 subd. (b)).

The Legislature also enacted Civil Code sec. 1714 subd. (c) to provide that no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of any third person, resulting from the consumption of that beverage.

In that same piece of legislation, the legislature added Business and Professions Code section 25602 subds. (b) and (c). Subd. (b) States that no person who sells or furnishes any alcoholic beverage to another is civilly liable for injuries as a result of that person’s intoxication.

Bus. and Prof. Code section 25602 subd. (c) essentially mirrors Civil Code sec. 1714 subd. (b), and abrogates the holdings in Vesely, Bernhard, and Coulter in favor of prior judicial interpretation finding that consumption of alcoholic beverages rather than the serving of such beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

Despite being criticized as “hardly models of draftsmanship,” and “a patchwork of apparent inconsistencies,” the California Supreme Court nevertheless upheld the constitutionality of the legislation. (Cory v. Shierloh (1981) 29 Cal. 3rd 430.)

Obviously intoxicated minors

Business and Professions Code section 25658 makes it a misdemeanor for anyone to sell or furnish an alcoholic beverage to a minor. However, this statute does not give rise to a civil cause of action for injury or death caused by the minor after partaking of the alcoholic beverage.

Where a parent, guardian, or other adult who knowingly furnishes alcoholic beverages at his residence to a person he knows, or should have known, was under 21 years of age, such furnishing of alcoholic beverages may be found to be the proximate cause of resulting injury or death. (Civil Code sec. 1714 subd. (d)(1).) A claim under sec. 1714 subd. (d) may be brought by, or on behalf of, the person under 21 years of age or by any person who was harmed by the person under 21 years of age. (Civil Code sec. 1714 subd. (d)(2).)

Although it is a crime (Bus. And Prof. Code sec. 25658), no civil liability is imposed where the alcoholic beverage is sold or furnished to a sober minor who subsequently drinks the alcoholic beverage, becomes intoxicated, and causes injury or death to himself or third parties. (Strang v. Cabrol (1984) 37 Cal. 3rd 720; Rogers v. Alvas (1984) 160 Cal. App. 3rd 997).

When a person is licensed or required to be licensed pursuant to Bus. & Prof. Code section 23300, a cause of action may be brought by or on behalf of any person who has suffered injury or death against the licensee that sells, furnishes, gives, or causes to be sold an alcoholic beverage to an obviously intoxicated minor who then injures or kills a person. The licensee is civilly (as well as criminally) liable for the injuries or death where the furnishing, sale, or giving of that alcoholic beverage to the obviously intoxicated minor is the proximate cause of the personal injury or death sustained by that person. (Bus. & Prof. Code section 25602.1.)

Although section 6500 of the Family Code defines a minor as a person under the age of 18, a “minor” as used in Bus. & Prof. Code section 25602.1 is defined as a person under the age of 21. (Chalup v. Aspen Mine Co. (1985) 175 Cal. App 3rd 973; Rogers v. Alvas (1984) 160 Cal. App. 3rd 997, 1004).

The immunity applies to one who furnished alcoholic beverages to the individual who drinks them. “Furnish” requires the person to have some control of the alcohol and to take an affirmative step to supply it to the consumer. (Fiorini v. City Brewing Co. LLC. (2014) 231 Cal. App. 4th 306.)

In Ruiz v. Safeway, Inc. ((2021) 209 Cal. App. 4th 1455), two underage college students – Spitzer and Morse - had been drinking alcoholic beverages and went to the defendant’s store to purchase more. At the checkout station, Spitzer put the beer on the conveyor belt and gave the checker a forged driver’s license. After the purchase of the beer was completed, Spitzer picked up the container holding the beer and walked out of the store carrying the beer. During all of this time, Morse walked or stood next to Spitzer but did not contribute any money to the purchase nor did he carry the beer at any time. When they reached their vehicle Spitzer put the beer behind the seat. Morse was driving the vehicle with Spitzer in the front passenger seat, and another student in the back seat. While driving, Spitzer gave Morse a bottle of beer of which Morse drank half by the time he caused the accident. Morse and Spitzer were seriously injured in the accident and the passenger in the back seat was killed. A suit was filed against inter alia, the Safeway store on behalf of Spitzer and Morse under Bus. and Prof. Code section 25602.1. The court held that section 25602.1 did not apply to Morse’s case, as the store had not sold or furnished the alcohol to Morse, nor did the store cause the beer to be furnished to Morse.

The court stated that the evidence showed that Safeway’s checker sold beer to Spitzer, but nothing about that sale constituted an affirmative act directly related to a sale to Morse, or an act that necessarily would have resulted in Spitzer furnishing or giving that beer to Morse. Therefore, the court concluded there was no evidence that Safeway caused beer to be furnished or given to Morse; hence Safeway could not be held liable to Morse under section 25602.1.

Ordinary person

A return to the rule of Cole is also a return to the limitations of the rule. (Strang v. Cabrol (1984) 37 Cal. 3rd 720; Cantor v. Anderson (1981) 126 Cal. App. 3rd 124, 130.) In Cole, the Supreme Court ruled that there was no remedy for injury or death following the mere sale of liquor to the ordinary man. Further, as to a competent person, it is voluntary consumption, not the sale or gift of intoxicating liquor which is the proximate cause of injury from its use if the person was not incompetent or incapable of voluntary action. The Cole definition of an ordinary man who voluntarily consumes liquor extends to a minor engaging in the same conduct, absent some additional showing that the minor was incompetent, incapable of voluntary action, or otherwise suffered from some peculiar mental disability. (Strang v. Cabrol, supra, 37 Cal. 3rd 720, 726; Cantor v. Anderson, supra, 126 Cal. App. 3rd 124, 130.)

In Cantor v. Anderson ((1981) 126 Cal. App. 3d 124), the court held that where a social host knows his guest is one who, because of some “exceptional physical or mental condition,” should not be served alcoholic beverages and is or should be aware of the risks included in providing such person with alcohol, the host is not protected by statutory immunity. (126 Cal. App. 3d at 132.)

Ten years later in Cardinal v. Santee Pita, Inc. ((1991) 234 Cal App. 3rd 1676), the appellate court stated: “Because the mentally infirm, incompetent or retarded range from those whose disability is not immediately evident to those requiring constant care, we leave it to the Legislature, guided by qualified professionals, to determine whether this large and diversified group is to be treated similarly to minors for purposes of the exclusion under section [Business and Professionals Code] section 25602.1.” (234 Cal. App. 3rd 1676, 1683.)


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