Given the transient nature of Alaska's population, the key to handling any claim or potential claim in this area is an early and aggressive investigation. Locking in the witnesses is vital. Once that is done, the insurer or self-insured can take somewhat of a "wait and see" approach until suit is filed. This is an area where experience in this type of litigation pays off.
Statutory liability for providing alcoholic beverages to an intoxicated person or to a minor is limited to the holders of a liquor license. AS 04.21.020 . While common law liability may exist, there is no statutory prohibition which controls the activities of a private citizen involved in such distribution.
AS 04.21.030 imposes a duty of "reasonable care" upon the seller of alcoholic beverages to ensure that the business is "lawfully conducted."
AS 04.16.030 states that a "licensee, an agent, or employee may not with criminal negligence "
1) Sell or give alcoholic beverages to a drunken person ;
2) Allow a drunken person to enter and remain on licensed premises;
3) Allow a drunken person to consume alcoholic beverages on licensed premises; or
4) Permit a drunken person to sell or serve alcoholic beverages.
AS 04.16.051 and AS 04.16.052 create the same criminal negligence standard with regard to selling alcoholic beverages to persons under 21 years of age, the legal age for drinking in Alaska. Proof of age may be required. AS 04.21.050.
There are two definitions found in AS 04.21.080 which are very important. They are:
(1) a person acts with " criminal negligence " with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
(2) " drunken person " means a person whose physical or mental conduct is substantially impaired as a result of the introduction of an alcoholic beverage into the person's body and who exhibits those plain and easily observed or discovered outward manifestations of behavior commonly known to be produced by the over consumption of alcoholic beverages.
There are, among others, two additional relevant definitions found in AS 04.21.080 . These are:
(1) a person acts " knowingly " with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the person's conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had the person not been intoxicated acts knowingly with respect to that conduct or circumstance.
(2) a person acts " recklessly " with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had the person not been intoxicated acts recklessly with respect to that risk.
There are Supreme Court decisions interpreting various provisions.
1) Violation of the statute regarding sale to minors which results in an accident where there is injury to others is negligence per se. Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983) . Note: This was decided under the earlier repealed statute. There have been no subsequent Supreme Court cases testing this principle. If the evidence shows that the seller did not, in good faith, obtain proof that the purchaser was of legal age, the strict liability standard will probably be applied by the trial court.
2) Insofar as proximate cause is concerned, it is neither unforeseeable nor extraordinary that a sale of alcoholic beverages to a minor would result in his sharing that with other minors resulting in an accident. Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983) .
3) A jury's conclusion that defendant did not with criminal negligence sell to a drunken person means that defendant was immune under the statute for all unlawful providing claims. The focus of the jury's attention should be whether the seller responded as a reasonable person would to the appearance and outward behavior manifestations of the person to whom the alcoholic beverage was sold, not on any specialized training the seller should have had as an aid to recognizing when a person is intoxicated. Gonzales v. Safeway Stores, Inc., 882 P.2d 389 (Alaska 1994).
