Legal: Assessing Continued Service

Do Not Focus on Conduct Alone

By David Samuels, senior litigation partner at Michelman & Robinson, LLP

This situation could have happened in any restaurant and bar located within a hotel.

In most social circles, the patron was a “professional,” an accomplished drinker who started by having several drinks in the hotel restaurant with a meal. The patron drank approximately half a dozen drinks with the meal, and the server noted that there were no apparent changes in the patron’s speech or behavior. Next, the patron closed out the restaurant tab at the end of the meal, and started a new tab in the bar – which coincided with the end of the server’s shift. The patron had paid with cash; hence, there was no opportunity for name recognition by the bartender when the new tab was opened. Further, because of the patron’s high tolerance, which did not manifest itself in any form of visible inebriation, the bartender was not aware of the patron’s intoxication level when the patron first “bellied up” to the bar. Even after another half dozen drinks, no real outward signs of intoxication were on display.

It was only after the proverbial one-too-many that the patron suddenly started acting inappropriately. At that point, the patron was directed back to their hotel room to “sleep it off.” Unfortunately, the patron died a few hours later by choking on vomit.

Of course, responsibility for how much one consumes rests with an individual. However, this situation highlights a potential service issue. In terms of assessing appropriateness for continued service, restaurant and bar staff normally almost exclusively focus on a patron’s conduct. However, when dealing with a patron who has a high tolerance level, reliance on conduct alone is frequently insufficient.

As a best practice, service staff should be trained to strongly consider the cumulative amount of alcohol that has been served in addition to the patron’s behavior. Further, the service staff need to know that the management team has their backs when it comes to cutting off customers strictly because they have already had too many drinks over a certain time period.

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