CACI 422 Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code, § 25602.1)
California Civil Jury Instructions CACI
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/nonbinary pronoun] 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;]
[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];]
[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/nonbinary pronoun] 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/nonbinary pronoun] 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.
New September 2003; Revised December 2009, June 2014, December 2014, May 2020
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 the plaintiff’s 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 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.’ ” (Schaffield 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.” (Schaffield, 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 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.)