~~Senate~~Senate ~~bill~~bill NO. ~~107~~107

INTRODUCED BY ~~S. Fitzpatrick~~S. Fitzpatrick

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING LAWS RELATING TO CIVIL LIABILITY FOR INJURIES INVOLVING ALCOHOL OVERCONSUMPTION; PROVIDING THAT STATUTORY LAW PRECLUDES A CLAIM UNDER ANY OTHER THEORY OF RECOVERY OR COMMON LAW CLAIM FOR INJURY OR DAMAGES INVOLVING THE ALCOHOL CONSUMER; CLARIFYING LAWS RELATED TO THE SERVING OF ALCOHOL CONSUMERS; PROVIDING CONSIDERATIONS REQUIRED OF A JURY OR TRIER OF FACT; PROHIBITING CERTAIN CONSIDERATIONS BY A JURY OR TRIER OF FACT; REVISING WHO MAY BRING A CIVIL ACTION; REVISING NOTICE REQUIREMENTS; REVISING PUNITIVE DAMAGE CONSIDERATIONS; AMENDING SECTION 27-1-710, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 27-1-710, MCA, is amended to read:

"27-1-710. Civil liability for injuries involving alcohol consumption. (1) The purpose of this section is to set statutory criteria governing the civil liability of a person or entity that furnishes an alcoholic beverage for injury or damage arising from an event involving the person who consumed the beverage.

(2) Except as provided in this section, a person or entity that furnishes alcoholic beverages may not be found civilly liable under any other statute, theory of recovery, or common law claim for injury or damages arising from an event involving the person who was served or who consumed the beverage.

(2)(3) Except as provided in 16-6-305, a A person or entity furnishing an alcoholic beverage may not be found civilly liable for injury or damage arising from an event involving the consumer wholly or partially on the basis of a licensing status under Title 16 or a provision or a violation of a provision of Title 16.

(3)(4) Furnishing a person with an alcoholic beverage is not a cause of, or grounds for finding the furnishing person or entity liable for, injury or damage wholly or partly arising from an event involving the person who consumed the beverage unless:

(a) the consumer was under the legal drinking age and the furnishing person knew that the consumer was underage or did not make a reasonable attempt to determine the consumer's age;

(b) the consumer was visibly intoxicated when furnished the alcoholic beverage; or

(4)(5) A jury or trier of fact may consider the consumption of an alcoholic beverage in addition to the sale, service, or provision of the alcoholic beverage in In determining the cause of injuries or damages inflicted upon on another by the consumer of an alcoholic beverage, in addition to other admissible evidence, a jury or trier of fact shall consider:

(a) the consumption of the alcoholic beverage;

(b) the actions of the consumer;

(d) the visible and audible intoxication indicators actually observed by the person furnishing the alcoholic beverage to the consumer, including but not limited to bloodshot eyes, loud and boisterous behavior, fighting behavior, stumbling, and slurred speech; and

(e) independent intervening cause or multiple causes.

(6) Because a furnishing person or entity can perceive only visual or audible indicators of intoxication, when determining liability under subsection (4)(b), a jury or trier of fact may not consider:

(a) a hypothetical blood alcohol level in any way to impute that the server observed visibly intoxicated behavior of the consumer prior to service;

(b) an actual blood alcohol level in any way to impute that the server observed visibly intoxicated behavior of the consumer prior to service;

(d) the conduct of the furnishing person or entity after the furnishing of the alcoholic beverage; or

(e) whether the furnishing person or entity holds special events, alcohol specials, happy hours, or similar events or activities.

(5)(7) A civil action may not be brought pursuant to subsection (3) (4) by:

(a) a passenger over 18 years of age in the consumer's car or by the passenger's estate, legal guardian, or dependent; or

(b) the consumer or by the consumer's estate, legal guardian, or dependent unless:

(a)(i) the consumer was under the legal age and the furnishing person knew or should have known that the consumer was under age underage; or

(b)(ii) the furnishing person forced or coerced the consumption or told the consumer that the beverage contained no alcohol while knowing that it did contain alcohol.

(6)(8) A civil action may not be commenced under this section against a person or entity who furnished alcohol to the consumer unless the person bringing the civil action provides notice of an intent to file the action to the person or entity who furnished the alcohol by certified mail within 180 days from the date of sale or service. The civil action must be commenced pursuant to this section within 2 years after the sale or service.

(9) Notice made pursuant to subsection (8) must include the date, time, and circumstances of the event involving the consumer along with the alleged visual or audible indicators of visible intoxication observed by the furnishing party prior to service to the consumer. The person providing the notice must have a reasonable basis in law and fact that an exception described in subsections (4)(a) through (4)(c) has occurred before sending the notice.

(7)(10) In any civil action brought pursuant to this section, the total liability for noneconomic damages for all claimants may not exceed $250,000 for each event.

(8)(11) In any civil action brought pursuant to this section, the total liability for punitive damages may not exceed $250,000. Service to a visibly intoxicated consumer is not enough to assess punitive damages against the person or entity furnishing the alcoholic beverage to the consumer. Conduct must be shown that meets the criteria in 27-1-221.

(9)(12) Evidence of intentional or criminal activity by a person causing injury in connection with any event or injury commenced pursuant to this part is admissible in any action brought pursuant to this section."

Section 2. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

Section 3. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

Section 4. Effective date. [This act] is effective on passage and approval.