accidents caused by intoxicated drivers, and many more suffer serious injuries. Alcohol-related fatalities make up ap- proximately 41 percent of the total traffic fatalities each year.35
Nevertheless,
Maryland is one of only three states in which there is no dram shop liability. This means that in Maryland, there is no cause of action against bar owners, restaurants or homeowners for negli- gently providing alcohol to individuals who later get behind the wheel and cause injuries to others.36 As practitioners, we need to be aware
that all of our neighboring jurisdictions have dram shop liability, and if the at- fault driver has inadequate insurance coverage, consideration should be given to whether the at-fault driver became intoxicated at an establishment located in a state other than Maryland. If so, a choice of law analysis of the state where the person became intoxicated should be done, and consideration should be given to filing suit against the entity that neg- ligently served the intoxicating beverage in that entity’s home state. Unfortu- nately, if suit is filed in Maryland, and the crash occurred in Maryland, then Maryland law will most likely apply and there will be no dram shop liability.37 The case of Zhou v. Jennifer Mall Res- taurant, Inc. is instructive.38
Mr. Zhou
and his wife were seriously injured in a car accident that occurred in Montgom- ery County, Maryland. Their vehicle was
35
These statistics were obtained from the Maryland Department of Transportation State Highway Administration Website at
www.sha.state.md.us/safety/alcohol_driv- ing_statistics.asp; and from the Mothers Against Drunk Driving’s Website at www.
madd.org/Drunk-Driving/Drunk-Driv- ing/
Statistics.aspx.
36
See Veytsman v. New York Palace, Inc., 170 Md. App. 104, 122, FN 11 906 A.2d 1028, 1038 (Md. App. 2006) (explaining that only Maryland, Nebraska and Nevada decline to impose dram shop liability) ; Wright v. Sue & Charles, 131 Md. App. 466, 749 A.2d 241 (Md. App. 2000) (declining to follow the number of jurisdictions that have departed from common law and im- posed civil liability on sellers of alcoholic beverages for damages caused by patrons; and stating that dram shop liability in Maryland will require legislative action).
Summer 2008 Trial Reporter 23
struck by a vehicle driven by a gentleman returning from a restaurant located in Washington, D.C. Employees of the restaurant unlawfully served alcohol to the Defendant driver after he became intoxicated, and after his intoxication was apparent. In his impaired condi- tion the defendant driver drove into Maryland and caused an accident. Suit was filed against the restaurant in the Superior Court for the District of Columbia. The District of Columbia uses a “governmental-interests analysis” to determine which jurisdiction’s law should apply. The District of Columbia Court of Appeals held that the District’s law applied “when a cause of action is cognizable under District of Columbia
37
See Erie Ins. Exchange v. Heffernan, 399 Md. 598, 620, 925 A.2d 636, 648 - 649 (Md. 2007) (explaining that where the events giving rise to a tort action occur in more than one State, we apply the law of the State where the injury, the last event re- quired to constitute the tort, occurred). 38 534 A.2d 1268 (D.C. 1987).
tort law on the basis of a violation within the District of Columbia of a District of Columbia statute or regulation, even though the injury occurs nearby in Maryland where a similar statute has been interpreted by Maryland’s highest Court as not supporting civil liability.” Not only did Mr. Zhou obtain the benefit of the District’s acceptance of dram shop liability, but he and his wife also benefit- ted because non-economic damages are uncapped in Washington, D.C., and violation of a statute in the District of Columbia is negligence per se.39 Although Maryland does not recognize
dram shop liability, when representing a catastrophically-injured client, one should consider whether suit can be filed in a different jurisdiction that recognizes dram shop liability. Our Legislature should consider joining the 47 other states that recognize that those who are negligent in supplying alcohol to minors
39
By contrast, Maryland has a statutory cap on non-economic damages and violation of a statute is merely evidence of negligence.
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