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Sobering Advice

By Ryan O’Hara


Hosted any parties recently? Hosting any in the weeks ahead? Whether you’re running a business and throwing a holiday shindig for your employees, having some folks over for a festive dinner party, or watching with friends as our new-look New England Patriots win the Super Bowl (why not this year?), it’s worth pausing to consider how you might avoid the risk of liability for any guests who might have a little too much fun.

I know, I know — maybe not the most pleasant thought, but what should you expect when you invite a litigator to the function? Like it or not, when hosting any get-together where guests may imbibe, a responsible host must take a moment to consider their legal obligations.

“You don’t want to be an innovator, so erring on the side of doing what you can to make sure your guests consume alcohol responsibly, and trying to make sure everyone has safe transport home, is the best practice.”

You’re likely familiar with the concept that, under Massachusetts law, bars, restaurants, and the like can be held civilly liable for damages caused by service of alcohol to an individual whom the establishment knew (or should have known) to be intoxicated. In practical terms, when an establishment serves someone showing recognizable signs of intoxication, and that person subsequently drives drunk, gets into an accident, and hurts someone, the establishment is held responsible for those damages.

“Good, sound policy,” you note as you sagely nod along. Agreed! But what you may not be aware of is that you — yes, you — are subject to the same obligations if you host an event and choose to serve your guests alcohol. This legal concept is known as ‘social host liability,’ and has been the law of the Commonwealth since 1986, via the Supreme Judicial Court’s decision in McGuiggan v. New Eng. Tel. & Tel. Co., 398 Mass. 152 (1986).

Social host liability provides that, where a private individual serves alcohol, or makes alcohol available while effectively controlling the supply, and that alcohol is served to a person the host knew (or should have reasonably known) to be intoxicated, the host is liable for any harm caused by that guest’s ensuing drunkenness. In essence, if you choose to provide guests with alcohol, you take on the duties (and potential liability) of a bartender. So, just as in the commercial context, if you serve a drink to somebody you already know is half in the bag, and that person then drives drunk and causes harm to people or property, you may be held responsible.

So, how can you be sure to avoid this kind of harm as a host? Since McGuiggan, Massachusetts courts have examined the scope of this liability, and some guiding principles have emerged. First, you should keep a close eye on your guests’ behavior if serving alcohol. Case law has largely limited liability to service of guests showing tangible signs of intoxication — slurred or loud speech, imbalance, inappropriate behavior, and the like. As a simple rule, if you notice a guest appears drunk, you shouldn’t provide them any more alcohol and should make sure they don’t drive. This will protect the public at large, protect you, and maybe even leave a happier guest the next morning.

Second, you can make sure your party is BYOB. Case law to date strongly suggests that you cannot incur any liability for guests who consume their own alcohol, even if it’s at your house or other premises, and even if you provide the atmosphere for a wild party. As long as you’re not providing the intoxicant, you’re probably not on the hook if something bad happens. If you are going to serve your own alcohol, try to stick to single-service amounts and control the supply, so that you can gauge a guest when they take it. Providing guests with carte blanche access to an open bar or leaving out a boozy self-serve punch bowl may make for a raucous time, but it’s also the riskiest approach.

This area of the law remains relatively new and undeveloped. You don’t want to be an innovator, so erring on the side of doing what you can to make sure your guests consume alcohol responsibly, and trying to make sure everyone has safe transport home, is the best practice.

If you plan on offering cannabis to your guests, you should know that no case law exists on service of cannabis products. However, you can reasonably anticipate that cannabis will be treated under a similar analysis. The issue could be complicated by varying tolerances and delayed onset of intoxicating effects, as well as differing impact if combined with alcohol. So, be extremely cautious if providing cannabis products (particularly edibles), especially to guests who have been drinking, or in any way appear intoxicated.

In short, a mindful, practical approach to alcohol service at private functions is good practice, period. No one wants to be a buzzkill; however, a little restraint and consideration makes for a great host — and a great guest, too. Most importantly, it will avert avoidable harm to your guests and the public, and any liability for yourself.

Note: this article is not intended to convey specific legal advice or to create an attorney-client relationship, and is provided for informational purposes only.

And, with that, cheers to a new year!


Ryan O’Hara is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. His legal practice encompasses virtually all aspects of litigation, including contract and business matters, landlord-tenant issues, land-use and real-estate litigation, and accidents and injuries; (413) 781-0560;
[email protected]