Are you planning a holiday party for your employees that will include serving alcohol? What if you offer the alcohol but through a cash bar instead of gratuitously? Is there any risk of liability against you as the employer for any injuries sustained by attendees or others if they leave the party having over-imbibed? What sort of protections should an employer implement?
South Carolina was one of the early states to recognize liability to a person or entity that provides alcohol in violation of South Carolina’s laws. Alcohol Liability in South Carolina: A Host of Legal Issues, South Carolina Lawyer, January 2006, Keven Eberle. Over the years, the laws have developed and, today, there are generally two avenues an injured third party can follow to recover for injuries he or she suffered from an overly intoxicated person. Mr. Eberle’s article provides a good summary of the current state of South Carolina’s laws on this issue and how the laws have developed over time.
The legal standard applied to the analysis of whether an employer is liable to third parties injured by an inebriated employee is negligence. In case you are wondering, if your employee who is overly intoxicated suffers injuries, he cannot sue you (the employer) for these injuries. The South Carolina Supreme Court expressly held this in Tobias vs. Sports Club, Inc., 332 S.C. 90, 92 (1998). The court found that public policy was not served for allowing an intoxicated adult patron to maintain a suit for injuries that resulted from his own conduct. Negligence requires proof of a duty of care, breach of that duty, and damages proximately caused by the breach. Negligence per se (meaning damages are presumed and the plaintiff need only prove the first two elements of negligence) is established by violation of a state statute. South Carolina’s current relevant statutory law prohibits commercial entities from serving alcohol to a known intoxicated adult (or someone they should have known was intoxicated). It also prohibits serving alcohol to minors regardless of whether the server is commercial or a social host.
The take away for employers desiring to avoid liability for serving alcohol to its employees is threefold:
- do not continue to serve an obviously inebriated employee or guest;
- do not serve minors; and
- do not charge for the beverages.
This approach is the least likely to result in employer liability under the current state of the law.
Employers can also implement preventative measures although those measures will not automatically shield the employer from liability. Employers should consider adding policies to their handbooks regarding consumption of alcoholic beverages at company events. Employers could require their employees to execute a release of liability, although that would not be binding on minors. Employers could provide transportation to and from the events. Employers could assign people to observe and step in when an employee has over-imbibed. Typically, worker’s compensation claims are not payable for attendance at an employer- sponsored event (unless attendance is mandatory or within the scope and course of employee’s duties), and policies in handbook that so state are advisable. Regardless of what steps an employer takes preventatively, the employer acting as host to its employees should also ensure that it complies with South Carolina’s common law guidance by refusing to serve a minor or an intoxicated adult, and should consider offering any alcohol gratuitously.