Bartenders' moral responsibility for patron behavior

Moral Theory - Bartenders

THE VICARIOUS MORAL RESPONSIBILITY of BARTENDERS

The legal concept of vicarious liability applies to factual circumstances where a distant party is considered responsible for the actions of another that cause harm to a third party; it may arise in several different types of relationships, including parent-child, employer-employee, principal-agent, vendor-consumer, among others (Friedman 2005).

Criminals are considered to be criminally responsible for the actions of their collaborators, and business ventures are considered to be liable under civil law for damages caused by their improper actions or by their improper failure to act under circumstances where their improper action or non-action either caused or contributed to the causation of harms to third parties that were reasonably foreseeable in advance of that harm (Friedman 2005). In the case of business establishments serving alcohol, they operate under strictly enforced state liquor licensing requirements pertaining to serving underage patrons, but civil liability for harms caused by their intoxicated patrons varies from state to state.

Generally, the vicarious liability of the business for the actions of their patrons after leaving the establishment is based in negligence. Specifically, they are responsible for the negligent action of their bartenders for continuing to serve alcohol to patrons who are already intoxicated. Bartenders are also responsible for their own negligence, but as a practical matter, claims are usually brought against the employer or business owner, or against the owner and bartender, jointly. In many respects, the moral liability of bartenders and bar owners ("bartenders") is actually much broader than currently defined by enforceable legislation (Miller 1999).

Thesis Statement:

Bartenders are morally responsible for harms caused by the intoxication of their customers because they either know or should know that their professional conduct may contribute directly to increasing the likelihood of those potential harms. This moral duty extends far beyond the narrow definitions and standards expressed in civil vicarious liability laws and in penal laws regulating business establishments serving alcohol.

The Basis of Legal Liability:

In theory, the logical basis of negligence underlying the vicarious liability of bartenders is that bartenders maintain control over the amount of alcohol their customers consume and they are in a position where they are very aware of the condition of soberness or relative drunkenness of their customers. Similarly, the working environment of bartenders regularly exposes them to the noticeable indications of intoxication, making their continued serving of alcohol to intoxicated patrons negligent, particularly when they also know or have reason to know that those intoxicated patrons intend to drive after leaving the bar.

Bartender liability, (whether as defined by law or moral principle) does not extend so far as to include every type of harm attributed to drunkenness, such as for the actions of a patron who returns home by public transportation and then commits an act of domestic violence. Typically, bartender responsibility must be more directly linked and closely related to the specific harms caused by their intoxicated patrons, and the vast majority of criminal charges and civil claims against bartenders relate to the consequences of driving while intoxicated (Schmalleger 1997). Legal liability for driving while intoxicated is predicated on the belief that the likelihood of irresponsible driving increases only after an individual continues to consume alcohol beyond the point where intoxication becomes apparent to observers.

That is why, for example, state criminal laws define "intoxication" or "impairment" or "influence" of alcohol in relation to specific blood alcohol concentration (BAC) levels (Geeting 2004). Since bartenders work in an environment where they are in a unique position to learn to recognize the difference between soberness and intoxication, they have a duty to discontinue serving alcohol once they observe overt signs of intoxication.

Deficient Theory of Responsibility:

Our modern understanding of the effects of alcohol consumption on behavior and, specifically, of the effects of alcohol intoxication on driving suggests that the vicarious liability for harms caused by drunk driving should actually be much greater than that formally recognized at law. Whereas the external behavioral manifestations of alcohol intoxication usually do not become apparent until an individual is already too intoxicated to drive responsibly, the law imposes responsibility only beyond that point. Bartenders are legally responsible only for continuing to serve alcohol beyond the point of overt intoxication, rather than for serving alcohol to a driver.

Volumes of clinical research (Gerrig & Zimbardo 2005) have established that the physical impairment and compromised decision making associated with alcohol intoxication begin at a much lower level of intoxication than that recognized by law as constituting "intoxication." Driving skills and judgment begin to deteriorate substantially long before most individuals reach a BAC sufficient to trigger legal responsibility.

Therefore, the legal standards and definitions are insufficient to reflect the reality of the causation between alcohol and alcohol-related driving.

On some level, legal definitions already manifest that understanding because most states prohibit driving while drinking at all instead of only driving while under the mild influence of alcohol, such as where an individual consumes a single drink and then enters a vehicle with the intention of driving. In fact, the line between drinking responsibly and irresponsibly is so indefinite that most state laws prohibit passengers from drinking, because that situation is too likely to lead to driving under the influence of alcohol.

A more consistent legal approach would prohibit driving under the influence of any amount of alcohol because the relationship between alcohol consumption and impairment is more direct than the arbitrary BACs recognized by law. Likewise, moral responsibility is more appropriately linked to the act of serving (any) alcohol to any individual know to be driving immediately after leaving the establishment where he consumed alcohol.

Differentiating Moral Responsibility from Legal Responsibility:

In general, moral responsibility is a much broader concept than legal responsibility: most behaviors that are illegal are, in fact, also immoral, but the corollary that most immoral conduct is also illegal is true much less often (Taylor 1990). From the exclusive perspective of objective morality, one is morally responsible not only for the harms caused by his actions that are recognized, regulated, or prohibited by law, but also for a much broader class of conduct that, in fact, cause or contribute to foreseeable harms.

By their exposure to the effects of alcohol, bartenders have a moral duty not to profit from the sale of alcohol to any individual who they know or should know is driving after consuming the alcohol they provide. Current law does not absolutely prohibit drinking under the (actual if not statutory definition of the) "influence" of alcohol, but such a prohibition would not be unreasonable given the known relationship between even very low BAC levels and the erosion of fine motor skills, reaction time, and decision making abilities (Gerrig & Zimbardo 2005). In that respect, the inapplicability of legal consequences to genuinely immoral conduct is not unusual, but that suggests only that the realm of moral responsibility exceeds the realm of government legislative definitions and standards. Ample evidence of that concept is apparent in many aspects of modern social existence. For example, it is perfectly "legal" for a man to completely misrepresent his degree of interest in a woman by pretending to desire a meaningful relationship despite the fact that he does not, in fact, but engages in a duplicitous and purposely deceitful charade for the sole purpose of obtaining sexual consent. Provided he obtains sexual consent, even dishonestly by misrepresentation of his intentions, there is no recognized violation of law. The same is true (in most states) even where the man is actually married, and it is universally true (in all states) that there is absolutely no violation recognized by any law where the man is already in a committed long-term relationship other than marriage.

Similarly, it is perfectly "legal" for an individual who purchased a car for the purpose of reselling it at a profit from advertising it dishonestly as his deceased grandmother's vehicle. For that matter, it is not illegal for him to represent that the vehicle is a "great car" that "runs perfectly" when, in fact, he actually believes that it will soon require major engine work. Provided he does not fit the legal definition of a "car dealer" and as long as his statements do not meet the statutory definition of "fraud," it is not illegal for him to misrepresent certain elements of what he knows or believes about the car under a legal concept known in the context of private sales as "puffery." (Miller 1999).

Few would argue that any of the situations described above are morally acceptable, or that only conduct that is actually formally regulated or prohibited by law are susceptible to moral condemnation. Nevertheless, the realm of internal intentions is impossible to legislate without the state taking on the characteristics of a "police state" (Taylor 1990). Therefore, certain types of human conduct will never be addressed by formal laws and standards, despite the fact that they may be defined, objectively, as immoral.

However, where bartender liability is concerned, stricter legislation could very easily apply without crossing the line into excessive government involvement in private autonomous choice. Criminal laws absolutely prohibit furnishing alcohol to minors, even formally requiring bartenders to check the identification of any patron who appears even slightly older than the legal age for alcohol consumption (Schmalleger 1997). Conceivably, the same absolute standard could easily be applied to drinking in conjunction with driving. Furthermore, when it comes to protecting their own financial interests, bartenders often enforce standards beyond what it required by law: they may prohibit certain forms of attire associated with violent criminal gangs, and they often serve drinks in plastic cups, precisely because they are fully aware of the degree to which alcohol impairs good judgment and that glass bottles and glassware are capable of inflicting much more damage in situations where intoxicated patrons provoke physical altercations.

In fact, bartenders know or should know that the social culture of alcohol consumption, particularly among certain demographic groups, makes it the norm rather than the exception for patrons who consume alcohol to do so far beyond the point of sobriety. That fact, by itself, is sufficient to create any legal responsibility to discontinue serving alcohol to those patrons, but in practice, that standard is hardly ever enforced, primarily because it would reduce sales directly as well as indirectly if patrons chose to drink at less responsible establishments. However, aside from the legal definition of intoxication, bartenders also know or should know that many (and sometimes most) of their patrons intend to drive after drinking.

Irrespective of whether or not it is recognized by current law, that realization, combined with the bartender's awareness of the realities of intoxication in relation to the risks associated with driving under the influence of alcohol gives rise to an objective moral (if not legal) duty to prohibit driving after consuming alcohol without regard to relative degrees of intoxication defined by law. The law prohibits drinking while driving completely irrespective of relative sobriety or intoxication defined by BAC levels and by field sobriety tests (FST) administered by government authorities. In the same manner, bartenders have a moral responsibility to prohibit drivers from drinking at their establishments and then driving. Practices could easily be envisioned whereby bartenders maintained a mandatory requirement for drivers to surrender the keys to their vehicles on entry and to subject them to breathalyzer tests as a condition for the return of their keys.