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South Carolina & Dram Shop Actions

This week it was reported that Tiger Woods, along with Erica Herman and the Woods Jupiter restaurant, have been sued for violating Florida Statute 768.125. This Florida statute makes it illegal to knowingly serve a person who is habitually addicted to alcoholic beverages. Immesberger’s family, through an estate, would use a finding that the three defendants violated this statute to prove that the defendants engaged in negligent conduct. Such a finding would help to establish that Woods is at least partly responsible for Immesberger’s death.

Is Tiger Woods legally responsible for the death of a man who worked at his restaurant and who, while intoxicated, died in a car crash after leaving the restaurant?  The Estate of Immesberger says yes, but the State of South Carolina would say no.

Here are the facts – you be the jury:

Immesberger was employed as a bartender at Woods Jupiter last year. On Monday, Dec. 10, 2018, Immesberger finished his shift at 3 p.m. The complaint indicates that he remained at the bar and was served alcoholic beverages, apparently for about two and a half hours to three hours.

Immesberger then left Woods Jupiter and drove his 1999 Chevrolet Corvette. While driving home on SE Federal Highway in Marin County, Immesberger lost control of his car and drove it across the northbound lanes. The Corvette continued to travel across the paved shoulder onto a grass divider adjacent to the highway. The car then traveled over a grass embankment and into a culvert. From there, the car then went airborne and, after landing, crashed into a sign and a utility trailer. By the end of its tumultuous journey, Immesberger’s Corvette had been flipped over so that its right side was on the ground.

Immesberger, who was 24 years old, suffered fatal injuries. His blood-alcohol level was .256—which is 3.2 times the legal limit in Florida and which, according to American Addiction Centers, is associated with the following symptoms:  “All physical, mental, emotional, and sensory processing functions are impaired. You will feel numb on many levels, and you are at a high risk of choking on vomit, falling and severely hurting yourself, or killing yourself unintentionally.”

The complaint depicts both Woods and Herman—the restaurant manager and also Woods’ girlfriend—as being keenly aware of Immesberger’s struggles with alcohol and yet callously indifferent towards them. Woods, according to the complaint, “knew Immesberger personally” and had also discussed Immesberger’s drinking with Herman. Despite this alleged knowledge, “Woods and Herman [had drinks] with Immesberger at The Woods bar only a few nights before the fatal car crash.”

The complaint also contends that Woods and Herman are responsible for permitting, if not exacerbating, a dangerous workplace culture that promoted excessive drinking. “Employees and management,” the complaint charges, “not only promoted drinking alcohol by its employees, including Immesberger, but it also allowed employees to drink on and off the job.”

Immesberger, the complaint insists, was especially harmed by this culture. The complaint maintains that employees and management had “direct knowledge that Immesberger had a habitual problem with alcohol,” including the knowledge that he “attended Alcoholic Anonymous meetings prior to the night of the crash and was attempting to treat his disease.” Further, “on numerous occasions,” the restaurant allegedly served Immesberger “so much alcohol that he was unable to function properly and had to be taken from the bar by family members and friends to be driven home.”

As noted above, the lawsuit is premised on the contention that Woods, Herman and the restaurant violated Florida Statute 768.125. Here is the language of the statute:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

The relevant portion of the statute is where the law makes it illegal to “knowingly serve a person habitually addicted to the use of any or all alcoholic beverages.” The statute also imposes civil liability for any “injury or damage caused by or resulting from the intoxication.”

This type of statute is sometimes called a “dram shop” act in that it contemplates liability on the part of a person or business that knowingly serves drinks to an alcoholic. Alternatively, the Florida statute could be described as a “reverse dram shop” act since it generally removes liability except in very limited circumstances (one circumstance being knowingly serving an alcoholic). Either moniker conveys the same general point: It is an illegal act to knowingly serve alcoholic drinks to someone who is habitually addicted to alcohol.

Legal arguments Woods will likely raise in his defense

In answering the complaint, expect attorneys for Woods and his co-defendants to raise a number of points.

First, Woods will likely dispute the facts that have been alleged in the complaint. Woods, for example, might quarrel over the claim that Immesberger was served alcohol. Woods might instead argue that, as a bartender, Immesberger served himself.

Woods will probably also reject Goldenfarb’s damning insinuation that Woods and his colleagues partook in the spoliation of evidence—which is a crime—by supposedly “destroying” alleged video of Immesberger being served drinks in the bar. To the extent Woods can prove that no such video ever existed or that it is no longer available due to regular business activities (such as a store policy to preserve surveillance videos for only a certain number of days), the stronger the defense for Woods.

Also, Woods and Herman will emphasize that they are not mentioned in the complaint as serving Immesberger on the day of the crash. It appears that Woods was not in the restaurant that day. Although Woods could still be held liable on grounds that he worsened Immesberger’s condition over a period of time, the estate can’t directly tie Woods to Immesberger’s consumption on the day of the crash. That disconnect should aid Woods in his defense.

Attorneys for Woods also know that Woods’s restaurant is an incorporated corporation under Florida law. Incorporated businesses generally shield their owners from the risk of personal liability in the event the business breaks the law. While that shield can be “pierced” in certain instances, Woods would likely limit his personal exposure if Immesberger’s estate only proves that the restaurant—and not Woods personally—is responsible.

On a separate front, Woods might also deny awareness of Immesberger suffering from such a severe drinking problem. Perhaps Woods could provide testimony, or offer emails or texts, that suggest Woods genuinely didn’t know the extent of Immesberger’s addiction. Likewise, Woods might reject the complaint’s depiction of a restaurant workplace where employees are routinely drinking on the job. Corroborating testimony by other workers at the restaurant could be advantageous to Woods.

As another line of defense, Woods could maintain that Immesberger did not qualify as a person who is “habitually addicted” to alcohol. The complaint asserts that Immesberger attended AA meetings, but it doesn’t mention whether Immesberger has a track record for receiving hospital or clinic treatment related to alcohol abuse or whether he has a history of alcohol-related driving infractions (there is no claim that his driver’s license had been suspended at the time of the crash). Even if Immesberger was habitually addicted, perhaps Woods can insist that neither he nor others who worked at the restaurant were in a position to know such information.

Finally, if Immesberger did not pay for the drinks then could it be argued that he either violated his terms of employment or skipped out on his bill and stole the beverages.  It could be a counter – claim for conversion, however that cause of action would never be asserted due to appearing insensitive to the passing of the plaintiff.  It still could be a defense to the action.

You as the Jury, here is the Law.

Dram Shop Law in South Carolina

South Carolina does not have a specific dram shop statute. Instead, our state courts have allowed injured victims to pursue recovery from alcohol-related accidents by referring to our state’s criminal statutes concerning the sale of alcohol. For example, S.C. Code Ann. §61-4-580(1) prohibits the sale of alcohol persons under the age of 21 and S.C. Code Ann. § 61-4-580(2) prohibits the sale of the sale alcohol to an intoxicated person.

Using alcohol-related criminal statutes and South Carolina’s common law of negligence, our courts have held restaurants, bars, social hosts, and others accountable for the injuries caused by an over-served driver (or boat operator). For example, in one of the first cases involving a dram shop claim (Jamison v. The Pantry, Inc.), the Pantry convenience store sold an underage driver a case of beer. About an hour later, the young driver, whose blood-alcohol level was above the legal limit, wrecked into another car causing death and serious injuries. Our Supreme Court allowed the injured persons to bring a dram shop claim against The Pantry stating:

“It was reasonably foreseeable that a nineteen-year-old who was sold a case of beer by a convenience store in violation of statutes would consume a portion of the beer, would become intoxicated, would drive an automobile, would collide with another vehicle, and would injure or kill someone.”

In another case (Hartfield v. The Getaway Lounge and Grill, Inc.), South Carolina’s Supreme Court extended dram shop claims for injuries resulting from any business, such as a bar, that violates the statute against serving alcohol to a visibly intoxicated adult or someone they should have known was intoxicated. Overall, our courts consistently try to give legal protection to persons who have suffered injuries caused by a driver under the influence.

Unfortunately, although our courts offer legal protection for injuries caused by drunk drivers, oftentimes these drivers don’t have enough insurance coverage to pay for a victim’s injuries. Specifically, in South Carolina, many drivers have the minimum coverage limits of $25,000.00. However, South Carolina now requires a person licensed to sell alcoholic beverages for on-premises consumption to maintain liability insurance in an amount not less than $1,000,000. Because of the differences in insurance coverage, in drunk driving accident claims, our lawyers investigate whether there is another party responsible for the accident such as a bar or restaurant that may have over-served the driver.

Social Host Liability in South Carolina for Adult Guests

Many states hold social hosts accountable if they provide alcohol to a guest who then injures someone else. However, South Carolina does not recognize social host liability for intoxicated adult guests. In one South Carolina case, a driver consumed too much alcohol at a party and later drove over a highway’s center line and collided head-on with another vehicle thereby injuring the other driver. South Carolina’s Supreme Court ruled that the social host could not be held liable even if it was “reasonably foreseeable” that serving alcohol to a driver might result in a drunk-driving crash.

Social Host Liability in South Carolina for Minors

If a social host intentionally serves or allows to be served a person under 21 years old, the host is liable to the minor and to any third person who is harmed due to the minor’s intoxication. The law in South Carolina is unclear whether a host who negligently serves alcohol or allows to be served a person under 21 years old would be liable for any injuries caused by the minor. As a side note, providing alcohol to an underage person is a crime. For example, S.C. Code Ann. § 45-2-40 makes it a misdemeanor to violate the state’s underage drinking law in a rented hotel room or similar lodging. Therefore, you should never serve alcohol to someone you know is or may be under the age of 21.

First Party v. Third Party Liability

The Supreme Court in South Carolina stated that “our alcohol control statutes do not create a first party cause of action for an intoxicated adult patron, but that they do permit a third party action.”  A first party action involves the actual intoxicated person bringing a lawsuit.  A third party action involves a person injured by the intoxicated person as a result of the “over-serving” by the supplier of the alcohol.

A large part of this separation is due to the lack of a clear Dram Shop Statute, but also one of self-responsibility.  The person hit by a drunk-driver did not contribute to that person’s intoxicated state, however the drunk driver themselves, should they have a claim or are they also at fault?   Maybe both?

If that drunk driver is a minor should they have a claim?  If that drunk driver is mentally disabled?  If that drunk driver is a habitual drunk should they have a claim?   There really is no clear answer, but maybe they should.

A defense can always be asserted of comparative or contributory negligence.  Maybe even assumption of the risk?  What if every drink was served with a waiver – that would really be getting into the American spirit.   But for now, at least in South Carolina, Tiger Woods would not be guilty for a 1st party dram shop action and he could have shown up for the PGA Championship.

If you ever need to learn more about dram shop actions or how to keep your business from having one, please let us know.

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