Opinion
C.A. No. 97C-07-050
Submitted: May 24, 2002
Decided: May 28, 2002
Upon Defendant's Motion in Limine. Granted in Part. Denied in Part.
Stephen A. Hampton, Esquire, of Grady Hampton, P.A., Dover, for the Plaintiff.
James P. Hall, Esquire, of Phillips, Goldman Spence, P.A., Wilmington, for the Defendant.
ORDER
This 28th day of May, 2002, it appears to the Court that:
1. The defendant has filed a Motion in Limine seeking to prohibit the introduction of any testimony at trial that minor patrons consumed or were served alcohol on defendant's premises. The basis for defendant's motion is that 4 Del. C. § 706, 708 (prohibiting service to intoxicated persons or minors) does not establish a standard of care under which a tavern owner can be held liable for negligence.
2. The plaintiff responds that Delaware law does not preclude the introduction of evidence showing the individuals who attacked him were minors drinking in defendant's tavern when they assaulted him. The plaintiff asserts that the basis for the submission of this evidence is not to establish liability for negligent serving of alcoholic beverages, but to establish liability for failure to supervise people like the assailants.
3. Sections 4 Del. C. § 706 and 4 Del. C. § 708 of Title 4, do not provide a private cause of action for negligence to a person injured as a result a violation of these sections; therefore, the plaintiff may not introduce any evidence regarding these statutes (i.e. that they establish an applicable standard of care; that defendant was prohibited from serving minors under them; and/or that defendant was negligent because it violated these provisions).
Wright v. Moffit, 437 A.2d 554 (Del. 1981).
4. Nonetheless, evidence that the assailant minors were drinking in defendant's tavern is admissible on the issue of forseeability under "a more narrow predicate for liability, one which arises from the common law duty of a property owner to a business invitee." Although this is an unsettled area of Delaware law, it appears that a commercial tavern owner owes "`a residual obligation of reasonable care to protect business invitees from the acts of third persons.'"
DiOssi v. Maroney, 548 A.2d 1361, 1365, 1369 (Del. 1988) (noting that, such claims might be assertable against a tavern owner under the authority of § 344 of the Restatement (Second) of Torts and Jardel Jardel Co. v. Hughes, 523 A.2d 518 (Del. 1987)).
Id. (citing Jardel at 525).
5. Under Delaware premises liability law, the factual issues for trial include: the forseeability of the harm which occurred on defendant's premises; the cause of the harm; and, thus, "the adequacy and effectiveness of the measures employed to limit underage drinking and its consequences," an alleged cause of the harm. Evidence regarding whether or not the assailants were minors drinking on defendant's premises (and how much they drank) is relevant to determining the reasonable level of supervision required to limit any foreseeable harm from underage drinking.
Id. at 1367.
6. The Court does not believe that the relevancy of this evidence is substantially outweighed by the danger of unfair prejudice, confusion or misleading of the jury under Delaware Rule of Evidence 403. The introduction of this limited evidence which does not inform the jury of the existence of 4 Del. C. § 706, 708, nor point to any negligence or liability thereunder, should not unduly prejudice the defendant under D.R.E. 403.
WHEREFORE, consistent with this Order, defendant's Motion in Limine is GRANTED in Part, and DENIED in Part.
IT IS SO ORDERED