Dram shop

From Wikipedia, the free encyclopedia

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (April 2009)

Dram shop or dramshop is a legal term in the United States referring to a bar, tavern or the like where alcoholic beverages are sold. Traditionally, it referred to a shop where spirits were sold by the dram, a small unit of liquid.

Dram shop liability refers to the body of law governing the liability of taverns, liquor stores and other commercial establishments that serve alcoholic beverages. Generally, dram shop laws establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third-parties (those not having a relationship to the bar) as a result of alcohol-related car crashes and other accidents.

The laws are intended to protect the general public from the hazards of serving alcohol to minors and intoxicated patrons. Groups such as Mothers Against Drunk Driving (MADD) have advocated for the enforcement and enactment of dram shop laws across the United States as well as in theUnited Kingdom, Canada, New Zealand and Australia. The earliest dram shop laws date from the 19th century temperance movement.

The laws have drawn criticism by those who claim they downplay the role of personal responsibility.

Contents   [hide]  1 Differences among U.S. state laws 2 Effectiveness 3 References 4 External links

Differences among U.S. state laws [edit]

Serving alcohol to minors is illegal in all 50 states. Many states impose liability on bars for serving minors who subsequently injure themselves or others; deterring minors from being served alcohol. Thus in states like Texas and New Jersey, minors can sue a drinking establishment for their own injuries sustained while intoxicated. In other states, dram shop liability only extends to serving the "habitually intoxicated."

The majority of states allow for recovery when the defendant knew (or should have known) the customer was intoxicated. Some states have attempted to address this problem through more exacting tests. Missouri's recently revised dram shop law requires proof that the party demonstrates "significantly uncoordinated physical action or significant physical dysfunction." In Texas, a patron must be so obviously intoxicated that he presents a clear danger to himself and others.

On the other hand, in Massachusetts, the state's highest court has held that a bar could be sued where a patron exhibiting "drunk, loud and vulgar" behavior was determined to be "visibly intoxicated," Cimino v. The Milford Keg, Inc., 385 Mass. 323 (1981). In Cimino, evidence showed that the intoxicated patron had been served six or more White Russians by the Milford Keg bar. The patron left the bar, arriving at another bar about fifteen minutes later "totally drunk," holding a White Russian. The next bar that he went to refused to serve him. Shortly thereafter, the intoxicated patron lost control of his car, drove on a sidewalk, and killed a pedestrian.

Under Illinois' dram shop law, plaintiffs can recover after demonstrating that:

1. alcohol was sold to the patron by the defendant;
2. damages were sustained by the plaintiff;
3. the sale of alcohol was the proximate cause of the intoxication; and
4. intoxication was at least one cause of the plaintiff's damages.

Proximate cause includes the requirement that the dram shop must have been able to foresee that its actions could cause injuries to third parties, but this is true for any establishment that serves (sells) alcohol. One Illinois court allowed a lawsuit against a company that dropped off self-serve barrels of beer at a union picnic.^[1][2]

Some states (such as New Jersey) impose liability on social hosts as well as commercial establishments. This related area of the law is known as social host liability.

Different states' dram shop acts also differ as to whether a person who becomes intoxicated and injures themselves has a cause of action against the establishment that served them. Some states, such as New Jersey, will allow such a cause of action but will instruct the jury to take the intoxicated person's own negligence into account. Other states, such as New York, will not allow a person who injures themselves to bring a lawsuit against the bar that served them, but if that person dies will allow such a person's children to sue the drinking establishment for loss of parental consortium.^[3]

Effectiveness [edit]

According to a 2004 comparison by YAERD^{[citation needed]}, a U.S. organization that studies alcohol use among youth, Michigan and Alaska, whose dram shop laws are considerably narrower than MADD proposes, have drunk-driving fatality rates below the national average, while Illinois is above the national average despite having one of the broadest dram shop laws. Comparisons between a rural state like Alaska, with the lowest population density in the United States, with that of Illinois, which includes the Chicago metropolitan area and other major cities, may not be scientifically valid because of the existence of confounding variables. A 1993 study from the National Bureau of Economic Research found some reduction in alcohol-related fatalities from the implementation of dram shop laws though it did not control for the special cases of Utah and Nevada, which may have distorted the results.^[4]

References [edit]

1. ^ Peterson v. Jack Donelson Sales Co., 4 Ill.App.3d 792 (2nd Dist. 1972)
2. ^ http://www.leagle.com/xmlResult.aspx?xmldoc=19727964IllApp3d792_1614.xml&docbase=CSLWAR1-1950-1985
3. ^ http://kreppein.blogspot.com/2008/10/lil-bit-olaw-dram-shop-act.html
4. ^ [1]

External links [edit]

• "Blame It On The Bars"

Categories: 

• Tort law

WEIGHT AND MEASURES1
UNIT	ABBREVIATION OR SYMBOL
EQUIVALENTS IN OTHER UNITS OF SAME SYSTEM	METRIC EQUIVALENT
WEIGHT
Avoirdupois2
ton
short ton		20 short hundredweight, 2000 pounds	0.907 metric ton
long ton		20 long hundredweight, 2240 pounds	1.016 metric ton
hundredweight	cwt
short hundredweight		100 pounds, 0.05 short tons	45.359 kilograms
long hundredweight		112 pounds, 0.05 long ton	50.802 kilograms
pound	lb or lb avdp also #	16 ounces, 7000 grains	0.454 kilogram
ounce	oz or oz avdp	16 drams, 437.5 grains, 0.0625 pound	28.350 grams
dram	dr or dr avdp	27.344 grains, 0.0625 ounce	1.772 grams
grain	gr	0.037 dram, 0.002286 ounce	0.0648 gram
Troy
pound	lb t	12 ounces, 240 pennyweight, 5760 grains	0.373 kilogram
ounce	oz t	20 pennyweight, 480 grains, 0.083 pound	31.103 grams
pennyweight	dwt also pwt	24 grains, 0.05 ounce	1.555 grams
grain	gr	0.042 pennyweight, 0.002083 ounce	0.0648 gram
Apothecaries'
pound	lb ap	12 ounces, 5760 grains	0.373 kilogram
ounce	oz ap	8 drams, 480 grains, 0.083 pound	31.103 grams
dram	dr ap	3 scruples, 60 grains	3.888 grams
scruple	s ap	20 grains, 0.333 dram	1.296 grams
grain	gr	0.05 scruple, 0.002083 ounce, 0.0166 dram	0.0648 gram
CAPACITY
U.S. liquid measure
gallon	gal	4 quarts (231 cubic inches)	3.785 liters
quart	qt	2 pints (57.75 cubic inches)	0.946 liter
pint	pt	4 gills (28.875 cubic inches	473.176 milliliters
gill	gi	4 fluid ounces (7.219 cubic inches)	118.294 milliliters
fluid ounce	fl oz	8 fluid drams (1.805) cub inches)	29.573 milliliters
fluid dram	fl dr	60 minims (0.226 cubic inch)	3.697 milliliters
minim	min	1/60 fluid dram (0.003760 cubic inch)	0.061610 milliliter
U.S. dry measure
bushel	bu	4 pecks (2150.42 cubic inches)	35.239 liters
peck	pk	8 quarts (537.605 cubic inches)	8.810 liters
quart	qt	2 pints (67.201 cubic inches)	1.101 liters
pint	pt	½ quart (33.600 cubic inches)	0.551 liter
British imperial liquid and dry measure
bushel	bu	4 pecks (2219.36 cubic inches)	36.369 liters
peck	pk	2 gallons (554.84 cubic inches)	9.092 liters
gallon	gal	4 quarts (277.420 cubic inches)	4.546 liters
quart	qt	2 pints (69.355 cubic inches)	1.136 liters
pint	pt	4 gills (34.678 cubic inches)	568.26 milliliters
gill	gi	5 fluid ounces (8.669 cubic inches)	142.066 milliliters
fluid ounce	fl oz	8 fluid drams (1.7339 cubic inches)	28.412 milliliters
fluid dram	fl dr	60 minims (0.216734 cubic inch)	3.5516 milliliters
minim	min	1/60 fluid dram (0.003612 cubic inch)	0.059194 milliliter
LENGTH
mile	mi	5280 feet, 1760 yards, 320 rods	1.609 kilometers
rod	rd	5.50 yards, 16.5 feet	5.029 meters
yard	yd	3 feet, 36 inches	0.9144 meter
foot	ft or '	12 inches, 0.333 yard	30.48 centimeters
inch	in or "	0.083 foot, 0.028 yard	2.54 centimeters
AREA
square mile	sq mi or mi2	640 acres, 102,400 square rods	2.590 square kilometers
acre		4840 square yards, 43,560 square feet	0.405 hectare, 4047 square meters
square rod	sq rd or rd2	30.25 square yards, 0.00625 acre	25.293 square meters
square yard	sq yd or yd2	1296 square inches, 9 square feet	0.836 square meter
square foot	sq ft or ft2	144 square inches, 0.111 square yard	0.093 square meter
square inch	sq in or in2	0.0069 square foot, 0.00077 square yard	6.452 square centimeters
VOLUME
cubic yard	cu yd or yd3	27 cubic feet, 46,656 cubic inches	0.765 cubic meter
cubic foot	cu ft or ft3	1728 cubic inches, 0.0370 cubic yard	0.028 cubic meter
cubic inch	cu in or in3	0.00058 cubic foot, 0.000021 cubic yard	16.387 cubic centimeters

¹For U.S. equivalents of the metric unit see Metric System table.
²The U.S. uses the avoirdupois units as a common system of measuring weight.

Gertz v. Robert Welch, Inc.

From Wikipedia, the free encyclopedia

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (August 2008)

Gertz v. Robert Welch, Inc.
Supreme Court of the United States
Argued November 14, 1973 Decided June 25, 1974
Full case name	Elmer Gertz v. Robert Welch, Incorporated
Citations	418 U.S. 323 (more) 94 S. Ct. 2997; 41 L. Ed. 2d 789; 1974 U.S. LEXIS 88; 1 Media L. Rep. 1633
Prior history	Motion to dismiss denied, 306 F. Supp. 310 (N.D. Ill. 1969); judgment for plaintiff, N.D. Ill.; judgment set aside, judgment for defendant, 322 F. Supp. 997 (N.D. Ill. 1970); affirmed, 471 F.2d 801 (7th Cir. 1972); rehearing denied, 7th Circuit, 9-7-72; cert. granted, 410 U.S. 925 (1973)
Subsequent history	Retrial on remand, judgment for plaintiff, N.D. Ill.; affirmed, 680 F.2d 527 (7th Cir. 1982); certiorari denied, 459 U.S. 1226 (1983)
Holding
The First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault. Seventh Circuit reversed.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan, Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell, Jr. · William Rehnquist
Case opinions
Majority	Powell, joined by Stewart, Marshall, Blackmun, Rehnquist
Concurrence	Blackmun
Dissent	Burger
Dissent	Brennan
Dissent	Douglas
Dissent	White
Laws applied
U.S. Const. amend. I

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),^[1] was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower thanactual malice, the standard applying to public figures, then only actual damages may be awarded.

The consequence is that strict liability for defamation is unconstitutional in the United States; the plaintiff must be able to show that the defendant acted negligently or with an even higher level of mens rea. In many other common law countries, strict liability for defamation is still the rule.

Contents   [hide]  1 Background of the case 2 Lower court proceedings 3 The Court's decision 3.1 Majority opinion 3.2 Dissenting opinions 4 Disposition 5 Subsequent jurisprudence 6 See also 7 References 8 External links 9 Further reading

Background of the case [edit]

In 1968, a Chicago police officer named Richard Nuccio shot and killed a young man (Ronald Nelson). After the officer was convicted of second-degree murder, the victim's family retained a local lawyer named Elmer Gertz to represent them in a civil action against the officer.

A year later, American Opinion, a publication of the John Birch Society, ran a series of articles alleging the existence of a Communist conspiracy to discredit local police agencies and thus facilitate their replacement by a single national force that could more effectively implement the dictatorship they planned to impose on the country. One of those touched on the Nuccio case, claiming that the officer had been framed at his criminal trial and making strong allegations about Gertz. It claimed that he had orchestrated Nuccio's conviction and that he was a member of various communist front organizations. It further implied that he had a lengthy criminal record himself and used various anti-communist terms of abuse ("Leninist", "Communist-fronter") to describe him.

Lower court proceedings [edit]

Gertz filed suit in federal court against Robert Welch, Inc. (the John Birch Society's legal name), claiming its article had defamed and injured his reputation as a lawyer. The John Birch Society moved for summary judgment, arguing that Gertz was a public figure under the recently enunciated Curtis Publishing Co. v. Butts standard, which applied the New York Times Co. v. Sullivan standard to anyone who was sufficiently public, not just government officials. Thus, it was argued, their statements about him were specially privileged and the plaintiff would have to demonstrate actual malice. However, the magazine's editor admitted in an affidavit filed with the motion that he had made no independent effort to verify the claims in the article and had simply relied on the author's reputation and previous work.

The court denied the motion, suggesting that Gertz might only need to prove reckless disregard for the truth. After trial, however, the court determined that he was neither a public figure nor a public official, and instructed the jury to consider only damages. Gertz was awarded $50,000.

Gertz appealed to contest the applicability of the New York Times standard to this case. The Seventh Circuit expressed some misgivings about the trial court's finding that Gertz was not a public figure but did not overturn the decision. It noted, however, that he had not demonstrated actual malice either but suggested that since the article concerned a subject of public interest, that standard could be held to apply without regard to the status of the individual or individuals alleging libel. Citing precedent, it said that Gertz also could not prove reckless disregard on the basis of failure to investigate alone unless he could also prove that the respondents had good cause to believe the article might be false. Yet, it affirmed the trial court's verdict.

The Court's decision [edit]

The Supreme Court decided the case in a 5-4 majority opinion delivered by Lewis Franklin Powell, Jr., with a separate concurrence by Harry Blackmun. All four dissenting justices filed separate opinions.

Majority opinion [edit]

After reviewing the case history and prior decisions, Powell began with a reminder that "Under the First Amendment there is no such thing as a false idea ... (it) requires that we protect some falsehood in order to protect speech that matters."

However, he rejected the idea that the mere public interest of the subject should outweigh any consideration of Gertz's status as a private or public figure. The latter, he noted, have access to more ways of counteracting allegations about them than private figures do, and thus they deserved a lower standard to prove libel. He also highly doubted that one could involuntarily become a public figure.

Gertz "had achieved no general fame or notoriety in the community," despite some public service in his past, and therefore did not meet the Sullivan or Curtis tests. "He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome."

"For these reasons, we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual," Powell said.

However, in the one aspect of the decision that was favorable to the appellees, the Court also ruled that states could not impose a strict liability standard for defamation (i.e., plaintiffs had to be able to show fault of some kind) and that juries could not be allowed to award punitive damages, such as the $50,000 Gertz had received, absent any showing of actual malice, since juries could use that power to punish unpopular opinions. A new trial was ordered.

Blackmun's short concurrence praised his brethren for clarifying an issue he had felt was left undecided in Rosenbloom v. Metromedia Inc., one of the earlier defamation cases. He also scoffed at fears expressed by dissenters that the press was now too unconstrained: "What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism."

Dissenting opinions [edit]

The minority chose a variety of grounds for its disagreement. In the longest, Byron White accused his colleagues of overreaching, a common theme of his dissents. "The Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States," he said. "There are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves... It is an ill-considered exercise of the power entrusted to this Court."

William O. Douglas, on the other hand, felt that libel laws were too strict even as it was, and that leaving liability standards for private figures up to the states was too capricious:

This of course leaves the simple negligence standard as an option with the jury free to impose damages upon a finding that the publisher failed to act as "a reasonable man." With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.

William Brennan joined him in fearing that the press in some states could be too easily restricted and practice self-censorship in reporting on public affairs as a result. Warren Burger's short dissent worried that the decision might make it less likely that lawyers would be willing to take the cases of unpopular clients.

Disposition [edit]

Gertz won the retrial, and the verdict was sustained on appeal. 680 F.2d 527 (7th Cir. 1982). The case finally ended when the Court denied the John Birch Society certiorari in 1983. 459 U.S. 1226 (1983). Gertz died in 2000.

Subsequent jurisprudence [edit]

Since the majority opinion emphatically stated that there was "no such thing as a false idea," observers and libel law experts expected the court to define an opinion privilege against libel the next time an appropriate case came up. It took sixteen years, and they were surprised and disappointed by Milkovich v. Lorain Journal Co., which explicitly rejected the idea, saying that existing protections it had recognized were sufficient to meet the requirements of the First Amendment. Only in New York, where state courts have ruled all statements of opinion are protected as long as they do not allege illegal conduct, does the privilege exist.

See also [edit]

• Hustler Magazine v. Falwell (1988) parody of a public figure is not libel. Public figures must prove actual malice to receive damages for intentional infliction of emotional distress.
• List of United States Supreme Court cases, volume 418

References [edit]

1. ^ Text of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) is available from: Justia · Findlaw

External links [edit]

• First Amendment Library entry on Gertz
• Summary of case from OYEZ

Further reading [edit]

• Gertz, Elmer, Gertz v. Robert Welch, Inc.: The Story of the Landmark Libel Case, Southern Illinois University Press, 1992. ISBN 0-8093-1813-X.

[hide] v   t   e United States First Amendment case law [show]  Establishment Clause [show]  Free Exercise Clause [show]  Freedom of speech (portal) [hide]  Freedom of the press Prior restraints and censorship Near v. Minnesota (1931)   Lovell v. City of Griffin (1938)   Hannegan v. Esquire (1946)   New York Times Co. v. United States (1971)   Miami Herald Publishing Co. v. Tornillo (1974)   Nebraska Press Assn. v. Stuart (1976) Taxation and privileges Grosjean v. American Press Co. (1936)   Branzburg v. Hayes (1972)   Minneapolis Star Tribune Company v. Commissioner (1983) Defamation New York Times Co. v. Sullivan (1964)   Curtis Publishing Co. v. Butts (1967)   Gertz v. Robert Welch, Inc. (1974)   Bose Corp. v. Consumers Union of United States, Inc. (1984)   Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)   McDonald v. Smith (1985)   Hustler Magazine v. Falwell (1988) Harte-Hanks Communications v. Connaughton (1989)   Milkovich v. Lorain Journal Co. (1990) Broadcast media Red Lion Broadcasting Co. v. FCC (1969)   FCC v. Pacifica Foundation (1978)   Turner Broadcasting v. FCC (1994)   Bartnicki v. Vopper (2001) [show]