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By Stephen A. Adelman,
Esq.
On Saturday, April 28, 2007, the St. Louis Cardinals played a day game
against the Chicago Cubs at Busch Stadium. Josh Hancock, a Cardinals
reliever, pitched three innings in an 8-1 loss. Several hours after the
game, a group of about 10 people went to Mike Shannon’s, a restaurant near
the stadium. They arrived between 8:30 and 9 p.m.
Just before 11 that night, a teammate paid for 27
drinks. At 12:01 a.m., Josh Hancock paid for four more, then got into his
rented Ford Explorer and headed west on Interstate 64. Just two days
earlier, he had wrecked his own SUV leaving a nightclub at 5:30 a.m.
Josh Hancock knew not to drink and drive. The
Cardinals’ manager, Tony LaRussa, had lectured the team about alcohol
several times, most recently after LaRussa himself was arrested on a DUI
charge during Spring Training.
Further west on I-64, a Geo Prizm was cut off by
another car near the Forest Park/Grand exit. The Geo hit the center median
and was disabled in the far left lane. At 12:34 a.m., a flatbed tow truck
parked behind the Geo. The driver put on the tow truck’s yellow roof lights
and flashing red lights. He called the police. Then he began loading the car
onto his flatbed.
At 12:48 a.m., Josh Hancock approached the Forest
Park/Grand exit on westbound I-64. He was talking on his cell phone, making
plans to meet a woman at a bar in Clayton, about five miles away. He was
driving 68 miles per hour in a 55 mph zone. After studying the tire imprints
on the pavement, accident reconstructionists determined that although Josh
Hancock did not brake at all, he did swerve right at the last moment before
impact.
Josh Hancock died of a severe head injury. The medical
examiner found his blood alcohol concentration to be 0.157, almost twice
Missouri’s limit of 0.8. A glass pipe and 8.55 grams of marijuana were found
in the SUV, enough for a misdemeanor, but toxicology results showed that he
was not under the influence of marijuana when he died.
A few days after the accident, the St. Louis Cardinals
banned alcohol from their clubhouse, bringing the list of Major League
Baseball teams that do not provide alcohol to about a dozen. By contrast,
the National Football League has sweeping league-wide prohibitions on
alcohol, and the National Collegiate Athletic Association bans alcohol sales
at sanctioned events.
What it Means to You
All of this is interesting to people who closely follow professional sports,
which is why this journeyman pitcher’s death was so widely reported. But the
debate about alcohol in baseball clubhouses is both off-topic generally and
irrelevant to facility managers in particular. It is off-topic because there
is no evidence Josh Hancock drank at Busch Stadium that day. It is
irrelevant because MLB lets each franchise to make its own alcohol policy,
so whatever anyone else thinks, it is still each team’s own decision.
For people who see this as a story about responsibility
and judgment rather than sports, however, Josh Hancock’s death raises an
important legal issue: the hidden costs of alcohol sales.
Venues obviously sell alcohol because patrons want to
drink and alcohol sales are very profitable. Crusades against the sale of
alcohol run headlong into simple economics: Alcohol can be big money. The
dangers of alcohol are equally well known. According to the latest data from
the National Highway Traffic Safety Administration, there were 17,941
alcohol-related traffic fatalities in 2006.1 Mothers Against Drunk Driving
claims that there are 1.4 million drunk driving arrests in the United States
every year.2
From a legal standpoint, the duty of public assembly
facilities regarding alcohol sales is clear. To behave like a “reasonable
person in the same or similar circumstances,” which is what the law
requires, facility managers should periodically address the following
questions:
• How much is our alcohol revenue?
• What is the likelihood that an alcohol-related injury
will lead to a lawsuit against
our building or a vendor who we are
contractually obligated to indemnify?
• How costly would a reasonably foreseeable verdict or
settlement be?
After answering these questions, you might calculate
that the alcohol revenue is greater than the cost of paying a damages award.
The law does not require one answer versus another, only that you make a
reasonable decision based on reasonably available information.
Next Steps
Assuming you decide to continue selling alcohol, the next step in the legal
analysis is to ask if you use enough of the alcohol revenue to make your
facility as safe as reasonably possible under the circumstances. Again,
there is no one right answer. The legal duty is to consider the alternatives
and make reasonable decisions.
Finally, once you have conducted a reasonable risk
assessment, you should record your decision-making process. Lawyers thrive
on paper, so keep copies of things that make you look thorough and
thoughtful. Unless you can produce meeting minutes or a trail of emails
documenting your deliberations, it is as if they never happened.
If Josh Hancock’s death proves anything, it is that
some lawyer will be willing to sue virtually anyone about anything. A month
after his son died, Noel Hancock sued the restaurant, the tow company and
its driver, and the driver of the stalled car the tow truck operator was
helping.3 The legal process will now determine who really paid for Josh
Hancock’s last round.
While there is time to determine your true cost of
serving alcohol, do it — or a plaintiff’s lawyer will gladly do it for you.
fm
Steven A. Adelman is an attorney practicing in the
areas of venue safety and entertainment law in Phoenix. He is a frequent
writer and speaker on risk management in public assembly facilities, and is
on the faculty of the Academy for Venue Safety & Security. He can be reached
at sadelman@rcdmlaw.com.
Footnotes
1Fatality Analysis Reporting System,
National Highway
Traffic Safety
Administration, preliminary 2006 data, released May, 2007.
2“Accident Related Deaths Highest in
Fifteen Years,” Glynn R. Birch,
Mothers
Against Drunk Driving,
http://www.madd.org/news/11774.
3Hancock v. SM Corp.,
et al., Cause No.
0722-CC01721, Missouri Circuit Court,
Twenty-Second
Judicial District.
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