California Civil Jury Instructions (CACI) (2017)

422. Sale of Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code, § 25602.1)

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422.Providing Alcoholic Beverages to Obviously Intoxicated
Minors (Bus. & Prof. Code, § 25602.1)
[Name of plaintiff] claims [name of defendant] is responsible for [his/her]
harm because [name of defendant] [sold/gave] alcoholic beverages to
[name of alleged minor], a minor who was already obviously intoxicated.
To establish this claim, [name of plaintiff] must prove all of the
following:
1. [That [name of defendant] was [required to be] [licensed to sell
alcoholic beverages;]
1. [or]
1. [That [name of defendant] was authorized by the federal
government to sell alcoholic beverages on a military base or
other federal enclave;]
2. [That [name of defendant] [sold/gave] alcoholic beverages to [name
of alleged minor];]
2. [or]
2. [That [name of defendant] caused alcoholic beverages to be [sold/
given away] to [name of alleged minor];]
3. That [name of alleged minor] was less than 21 years old at the
time;
4. That when [name of defendant] provided the alcoholic beverages,
[name of alleged minor] displayed symptoms that would lead a
reasonable person to conclude that [he/she] was obviously
intoxicated;
5. That [name of alleged minor] harmed [name of plaintiff]; and
6. That [name of defendant]’s [selling/giving] alcoholic beverages to
[name of alleged minor] was a substantial factor in causing [name
of plaintiff]’s harm.
In deciding whether [name of alleged minor] was obviously intoxicated,
you may consider whether [he/she] displayed one or more of the
following symptoms to [name of defendant] before the alcoholic
beverages were provided: impaired judgment; alcoholic breath;
incoherent or slurred speech; poor muscular coordination; staggering or
unsteady walk or loss of balance; loud, boisterous, or argumentative
conduct; flushed face; or other symptoms of intoxication. The mere fact
that [name of alleged minor] had been drinking is not enough.
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New September 2003; Revised December 2009, June 2014, December 2014
Directions for Use
Business and Professions Code section 25602.1 imposes potential liability on those
who have or are required to have a liquor license for the selling, furnishing, or
giving away of alcoholic beverages to an obviously intoxicated minor. It also
imposes potential liability on a person who is not required to be licensed who sells
alcohol to an obviously intoxicated minor. (See Ennabe v. Manosa (2014) 58
Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].) In this latter case, omit
element 1, select “sold” in the opening paragraph and in element 2, and select
“selling” in element 6.
If the plaintiff is the minor who is suing for his or her own injuries (see Chalup v.
Aspen Mine Co. (1985) 175 Cal.App.3d 973, 974 [221 Cal.Rptr. 97]), modify the
instruction by substituting the appropriate pronoun for “[name of alleged minor]”
throughout.
For purposes of this instruction, a “minor” is someone under the age of 21. (Rogers
v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60].)
Sources and Authority
• Liability for Providing Alcohol to Minors. Business and Professions Code
section 25602.1.
• Sales Under the Alcoholic Beverage Control Act. Business and Professions
Code section 23025.
• “In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of
the plaintiff’s injuries or death, section 25602.1—the applicable statute in this
case—permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to sell
alcoholic beverages in certain places, and the defendant sold, furnished, or gave
the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was ‘any other person’ (i.e., neither licensed nor required to
be licensed), and he or she sold alcohol to the minor or caused it to be sold.
Whereas licensees (and those required to be licensed) may be liable if they
merely furnish or give an alcoholic beverage away, a nonlicensee may be liable
only if a sale occurs; that is, a nonlicensee, such as a social host, who merely
furnishes or gives drinks away—even to an obviously intoxicated
minor—retains his or her statutory immunity.” (Ennabe, supra, 58 Cal.4th at pp.
709–710, original italics.)
• “[W]e conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
by the Department of ABC, those without licenses but who are nevertheless
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required to be licensed, and those authorized to sell alcohol by the federal
government—are for the most part engaged in some commercial enterprise. The
final category of persons addressed by section 25602.1 is more of a catchall:
‘any other person’ who sells alcohol. Consistent with the plain meaning of the
statutory language and the views of the Department of ABC, we find this final
category includes private persons and ostensible social hosts who, for whatever
reason, charge money for alcoholic drinks.” (Ennabe, supra, 58 Cal.4th at p.
711.)
• “[Business and Professions Code] Section 23025’s broad definition of a sale
shows the Legislature intended the law to cover a wide range of transactions
involving alcoholic beverages: a qualifying sale includes ‘any transaction’ in
which title to an alcoholic beverage is passed for ‘any consideration.’ (Italics
added.) Use of the term ‘any’ to modify the words ‘transaction’ and
‘consideration’ demonstrates the Legislature intended the law to have a broad
sweep and thus include both indirect as well as direct transactions.” (Ennabe,
supra, 58 Cal.4th at p. 714, original italics.)
• “ ‘The use of intoxicating liquor by the average person in such quantity as to
produce intoxication causes many commonly known outward manifestations
which are “plain” and “easily seen or discovered.” If such outward
manifestations exist and the seller still serves the customer so affected, he has
violated the law, whether this was because he failed to observe what was plain
and easily seen or discovered, or because, having observed, he ignored that
which was apparent.’ ” (Schaffıeld v. Abboud (1993) 15 Cal.App.4th 1133, 1140
[19 Cal.Rptr.2d 205], original italics.)
• “[T]he standard for determining ‘obvious intoxication’ is measured by that of a
reasonable person.” (Schaffıeld, supra, 15 Cal.App.4th at p. 1140.)
• “We shall make no effort to state definitively the meaning of the word
‘furnishes’ . . . . As used in a similar context the word ‘furnish’ has been said
to mean: ‘ “To supply; to offer for use, to give, to hand.” ’ It has also been said
the word ‘furnish’ is synonymous with the words ‘supply’ or ‘provide.’ In
relation to a physical object or substance, the word ‘furnish’ connotes
possession or control over the thing furnished by the one who furnishes it. The
word ‘furnish’ implies some type of affirmative action on the part of the
furnisher; failure to protest or attempt to stop another from imbibing an
alcoholic beverage does not constitute ‘furnishing.’ ” (Bennett v. Letterly (1977)
74 Cal.App.3d 901, 904–905 [141 Cal.Rptr. 682], internal citations omitted.)
• “As used in liquor laws, ‘furnish’ means to provide in any way, and includes
giving as well as selling. . . . [¶] California courts have interpreted the terms
‘furnish’ and ‘furnished’ as requiring an affirmative act by the purported
furnisher to supply the alcoholic beverage to the drinker.” (Fiorini v. City
Brewing Co., LLC (2014) 231 Cal.App.4th 306, 320–321 [179 Cal.Rptr.3d 827]
[beverage manufacturer does not “furnish” beverage to the consumer], footnote
and internal citation omitted.)
• “As instructed by the court, the jury was told to consider several outward
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manifestations of obvious intoxication, which included incontinence, unkempt
appearance, alcoholic breath, loud or boisterous conduct, bloodshot or glassy
eyes, incoherent or slurred speech, flushed face, poor muscular coordination or
unsteady walking, loss of balance, impaired judgment, or argumentative
behavior. This instruction was correct.” (Jones v. Toyota Motor Co. (1988) 198
Cal.App.3d 364, 370 [243 Cal.Rptr. 611], internal citation omitted.)
• “[S]ection 25602.1’s phrase ‘causes to be sold’ requires an affirmative act
directly related to the sale of alcohol which necessarily brings about the
resultant action to which the statute is directed, i.e., the furnishing of alcohol to
an obviously intoxicated minor.” (Hernandez v. Modesto Portuguese Pentecost
Assn. (1995) 40 Cal.App.4th 1274, 1276 [48 Cal.Rptr.2d 229].)
• “The undisputed evidence shows [defendant]’s checker sold beer to Spitzer and
that Spitzer later gave some of that beer to Morse. As in Salem [Salem v.
Superior Court (1989) 211 Cal.App.3d 595, 600 [259 Cal.Rptr. 447]], we
conclude defendant cannot be held liable because the person to whom it sold
alcohol was not the person whose negligence allegedly caused the injury at
issue.” (Ruiz v. Safeway, Inc. (2013) 209 Cal.App.4th 1455, 1462 [147
Cal.Rptr.3d 809].)
• “[O]bviously intoxicated minors who are served alcohol by a licensed purveyor
of liquor, may bring a cause of action for negligence against the purveyor for
[their own] subsequent injuries.” (Chalup, supra, 175 Cal.App.3d at p. 979.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1072
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.63
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-L, Liability For
Providing Alcoholic Beverages, ¶ 2:2101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.21
(Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 19, Alcoholic Beverages: Civil
Liability, §§ 19.12, 19.52, 19.75 (Matthew Bender)
1 California Points and Authorities, Ch. 15A, Alcoholic Beverages: Civil Liability
for Furnishing, § 15A.21 et seq. (Matthew Bender)
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