2018 New Mexico Statutes
Chapter 41 - Torts
Article 11 - Alcoholic Licensees Liability
Section 41-11-1 - Tort liability for alcoholic liquor sales or service.
A. No civil liability shall be predicated upon the breach of Section 60-7A-16 NMSA 1978 by a licensee, except in the case of the licensee who:
(1) sold or served alcohol to a person who was intoxicated;
(2) it was reasonably apparent to the licensee that the person buying or apparently receiving service of alcoholic beverages was intoxicated; and
(3) the licensee knew from the circumstances that the person buying or receiving service of alcoholic beverages was intoxicated.
B. No person who was sold or served alcoholic beverages while intoxicated shall be entitled to collect any damages or obtain any other relief against the licensee who sold or served the alcoholic beverages unless the licensee is determined to have acted with gross negligence and reckless disregard for the safety of the person who purchased or was served the alcoholic beverages.
C. No licensee is chargeable with knowledge of previous acts by which a person becomes intoxicated at other locations unknown to the licensee.
D. As used in this section:
(1) "licensee" means a person licensed under the provisions of the Liquor Control Act [60-3A-1 NMSA 1978] and the agents or servants of the licensee; and
(2) "intoxicated" means the impairment of a person's mental and physical faculties as a result of alcoholic beverage use so as to substantially diminish that person's ability to think and act in a manner in which an ordinary [ordinarily] prudent person, in full possession of his faculties, would think and act under like circumstances.
E. No person who has gratuitously provided alcoholic beverages to a guest in a social setting may be held liable in damages to any person for bodily injury, death or property damage arising from the intoxication of the social guest unless the alcoholic beverages were provided recklessly in disregard of the rights of others, including the social guest.
F. A licensee may be civilly liable for the negligent violation of Sections 60-7B-1 and 60-7B-1.1 NMSA 1978. The fact-finder shall consider all the circumstances of the sale in determining whether there is negligence such as the representation used to obtain the alcoholic beverage. It shall not be negligence per se to violate Sections 60-7B-1 and 60-7B-1.1 NMSA 1978.
G. A licensee shall not be held civilly liable pursuant to the provisions of Subsection F of this section except when:
(1) it is demonstrated by the preponderance of the evidence that the licensee knew, or that a reasonable person in the same circumstances would have known, that the person who received the alcoholic beverages was a minor; and
(2) licensee's violation of Section 60-7B-1 or 60-7B-1.1 NMSA 1978 was a proximate cause of the plaintiff's injury, death or property damage.
H. No person may seek relief in a civil claim against a licensee or a social host for injury or death or damage to property which was proximately caused by the sale, service or provision of alcoholic beverages except as provided in this section.
I. Liability arising under this section shall not exceed fifty thousand dollars ($50,000) for bodily injury to or death of one person in each transaction or occurrence or, subject to that limitation for one person, one hundred thousand dollars ($100,000) for bodily injury to or death of two or more persons in each transaction or occurrence, and twenty thousand dollars ($20,000) for property damage in each transaction or occurrence.
History: Laws 1983, ch. 328, § 1; 1985, ch. 191, § 1; 1986, ch. 100, § 1.
Emergency clauses. — Laws 1986, ch. 100, § 2 contained an emergency clause and was approved March 5, 1986.
Constitutionality. — The damage limitation in Subsection I has no substantial relationship to a legitimate or important governmental purpose and is constitutionally invalid as violative of the Equal Protection Clause of the New Mexico Constitution. Richardson v. Carnegie Library Restaurant, Inc., 1988-NMSC-084, 107 N.M. 688, 763 P.2d 1153, overruling the adoption of intermediate scrutiny analysis, but approving the result, Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.
Subsection A not applied retroactively. — In a case against an absent owner-lessor of a liquor license, arising out of the lessee's service of alcohol to an intoxicated patron who injured third parties (the plaintiffs), Subsection A, enacted in 1983, under which the absent owner-lessor is liable for the acts of a lessee not in the employ of the licensee, was not applicable. At the time of the injury in 1982 the cause of action created by 60-3A-2 NMSA 1978 inured to the plaintiffs as a vested right, and the the court could not apply Subsection A retroactively against the plaintiffs and divest them of that right. Ashbaugh v. Williams, 1987-NMSC-120, 106 N.M. 598, 747 P.2d 244.
Subsection B. — Subsection B, effective June 14, 1985, creates a cause of action for a patron based upon the tavernkeeper's gross negligence or reckless disregard for the safety of the patron in the sale or service of alcohol. Trujillo v. Trujillo, 1986-NMCA-052, 104 N.M. 379, 721 P.2d 1310, cert. denied, 104 N.M. 289, 720 P.2d 708.
Subsection B does not limit the common law liability recognized in Baxter v. Noce, 1988-NMSC-024, 107 N.M. 48, 752 P.2d 240; Murphy v. Tomada Enters., Inc., 1991-NMCA-113, 112 N.M. 800, 819 P.2d 1358.
Subsection B was intended to expand upon common-law liability, not restrict it. Murphy v. Tomada Enters., Inc., 1991-NMCA-113, 112 N.M. 800, 819 P.2d 1358.
Subsection B relates only to injury to a patron to the extent that it is proximately caused by the patron's own intoxication, not by the intoxication of another patron. Murphy v. Tomada Enters., Inc., 1991-NMCA-113, 112 N.M. 800, 819 P.2d 1358.
Subsection E applies to all social hosts. — The Liquor Liability Act does not limit the liability of a social host to private settings, but permits a cause of action against a social host who recklessly provides alcohol to a guest when the alcohol is consumed in a licensed establishment. Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257 P.3d 917.
Liquor licensee and social host have concurrent liability. — The Liquor Liability Act permits a cause of action against a liquor licensee and a social host for the same events. Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257 P.3d 917.
Factors establishing a social host/guest relationship. — Social hosting need not occur in a home. One may host in a bar or restaurant where the actual delivery of the alcoholic beverages to guests is performed by a licensed server. Factors that determine whether one is a social host in a public establishment are whether the alleged social host exercised some control over the guests and the provision of the alcohol consumed by the guests, whether the alleged social host convened the gathering for a specific purpose or benefit to the social host, and whether the alleged social host intended to act as a host of the event by arranging for the service of and full payment of all food and beverages served to the guests. Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257 P.3d 917.
Defendants were acting as social hosts. — Where the representatives of individual pharmaceutical companies invited an employee of a doctor's office to a business luncheon that was organized for business purposes under the corporate policies of the pharmaceutical companies that authorized the representatives to entertain physicians and their staff through the purchase of food and alcohol in order to develop business goodwill and to increase sales; the representatives arranged the business luncheon, paid for all of the many alcohol beverages the employee consumed over an eight-hour period at multiple licensed establishments, accompanied the employee at and between the multiple establishments, and escorted the employee to the employee's car at the end of the evening; and the employee struck plaintiff's car shortly after leaving the representatives, the pharmaceutical companies were acting as social hosts. Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257 P.3d 917.
Selling or giving liquor to minors. — An allegation of a breach of 60-7B-1.1 NMSA 1978 (now 60-7B-1 NMSA 1978) which caused injury to plaintiffs states a claim for relief and that claim is not barred by the prospectivity rule stated in Lopez v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d 1269; Walker v. Key, 1984-NMCA-067, 101 N.M. 631, 686 P.2d 973.
Recovery by intoxicated passenger. — An intoxicated passenger of a vehicle has a cause of action against a tavern that served alcohol, in violation of this section, to both the passenger and the driver of a vehicle that subsequently was involved in an accident. The plaintiff's negligent conduct in voluntarily drinking does not bar plaintiff's recovery completely, but serves only to reduce the amount of recovery under the principles of comparative negligence. Baxter v. Noce, 1988-NMSC-024, 107 N.M. 48, 752 P.2d 240 (decided under facts existing prior to 1985 amendment).
Basis for liability. — A finding that a tavernkeeper acted with gross negligence and reckless disregard for the safety of a customer, who was killed while riding as a passenger in another customer's vehicle, was not necessary to establish liability. Liability of the tavernkeeper could be predicated on serving liquor to the customer who drove the vehicle. Murphy v. Tomada Enters., Inc., 1991-NMCA-113, 112 N.M. 800, 819 P.2d 1358.
Common law dram shop claims not preempted. — Section 41-11-1 NMSA 1978 does not preempt all common law claims against non-licensee tavernkeepers. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 258, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Types of common law dram shop claims. — The common law recognizes a third-party claim and a patron claim against non-licensee tavernkeepers for over service of alcohol. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 258, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Proof required to recover under common law dram shop claims. — A patron common law claim requires proof of gross negligence and reckless disregard for the safety of the patron. A third-party common law claim requires proof of simple negligence. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 285, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Suit by passenger of a motor vehicle sues as a third party. — A passenger sues as a third party, whether under 41-11-1 NMSA 1978 or common law, and must prove that the tavern was negligent and that the passenger's damages were proximately caused by the tavern. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 285, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Suit by driver of a motor vehicle sues as a patron. — An intoxicated driver sues as a patron, whether under 41-11-1 NMSA 1978 or common law, and must prove that the tavern acted with gross negligence and in reckless disregard for the driver's safety and that the driver's damages were proximately caused by the tavern. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 285, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Dram shop liability. — Where decedents attended a wedding reception at a Pueblo casino where decedents were served alcoholic beverages and became intoxicated; casino employees continued to serve alcohol to decedents despite their apparent intoxication; decedents left the casino and were killed when their vehicle left the road and rolled over; the casino was licensed to sell alcohol by the Pueblo; and the Pueblo liquor ordinance imposed a duty not to serve alcohol to an intoxicated person, plaintiffs could pursue third-party and patron common law dram shop causes of action against defendant. Mendoza v. Tamaya Enters., Inc., 2011-NMSC-030, 150 N.M. 285, 258 P.3d 1050, aff'g 2010-NMCA-074, 148 N.M. 534, 238 P.3d 903.
Proof of "reasonably apparent" intoxication. — The reasonably-apparent prong in the Dram Shop Liability Act creates an objective standard. Estate of Gutierrez v. Meteor Monument, LLC, 2012-NMSC-004, 268 P.3d 515.
Circumstantial evidence at a time other than the time of service may be sufficient to prove what was reasonably apparent to the server regarding the level of a patron's intoxication at the time the patron was served. Estate of Gutierrez v. Meteor Monument, LLC, 2012-NMSC-004, 268 P.3d 515.
Proof of the identity of the server who actually sold or served alcohol to the patron is not a prerequisite to proving dram shop liability. Estate of Gutierrez v. Meteor Monument, LLC, 2012-NMSC-004, 268 P.3d 515.
Sufficient evidence of "reasonably apparent" intoxication. — Where the decedent was killed in a collision with the driver's vehicle; the driver was a daily patron of defendant's business, worked at defendant's business, was usually visibly intoxicated by 3:00 p.m., and bought beer only at defendant's place of business; defendant's employees knew that the driver was an alcoholic, that the driver consumed alcohol while working, that defendant had been drinking all day on the day of the accident, and that the driver drove away from work after having consumed alcohol; on the day of the accident, the driver consumed seven twelve-ounce cans of beer and a twenty-four-ounce can of malt liquor at defendant's place of business; the collision occurred approximately one hour after the driver left defendant's place of business; at the accident scene, the driver appeared to be intoxicated, had slurred speech, blood shot eyes, and failed field sobriety tests; three and one-half hours after the accident, the driver's blood alcohol level was 0.09 gms/100ml.; and there was no evidence identifying the employee who served the driver alcohol at defendant's place of business, there was sufficient evidence to support a jury finding that the driver was intoxicated at the time defendant's employees sold the driver beer and that it was reasonably apparent that the driver was intoxicated. Estate of Gutierrez v. Meteor Monument, LLC, 2012-NMSC-004, 268 P.3d 515.
Law reviews. — For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).
For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988).
For note, "Tort Law - The Application of the Rescue Doctrine Under Comparative Negligence Principles: Govich v. North American Systems, Inc.," see 23 N.M.L. Rev. 349 (1993).
For article, "Bartlett Revisited: New Mexico Tort Law Twenty Years After the Abolition of Joint and Several Liability Part One," see 33 N.M.L. Rev. 1 (2003).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Intoxicating Liquors §§ 561 to 614.
Products liability: alcoholic beverages, 42 A.L.R.4th 253.
Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.
Tort liability of college or university for injury suffered by student as a result of own or fellow student's intoxication, 62 A.L.R.4th 81.
Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.
Social host's liability for death or injuries incurred by person to whom alcohol was served, 54 A.L.R.5th 313.
48 C.J.S. Intoxicating Liquors §§ 429, 430.