Barnes v. Hooper and Harrington Raceway and Casino

On the evening of June 16, 2022, security personnel of the Harrington Raceway and Casino discovered an intoxicated individual in the casino parking lot in the driver’s seat his car. There is no evidence the driver ever entered the casino that day. The casino employee confiscated the alcohol in the vehicle and instructed the driver to leave the premises. As the driver exited the parking lot, he struck Mr. Barnes, who was riding his motorcycle on the public roadway immediately in front of the casino, causing significant injury. Mr. Barnes and his wife filed suit against the driver and the casino. The Plaintiffs did not allege that the Defendant driver consumed or purchased alcohol at the casino. Instead, they asserted that the raceway had been negligent in instructing the driver to leave the premises, knowing that he would be driving while under the influence of alcohol.

The casino argued that they were not liable as Delaware does not recognize Dram Shop Liability. Plaintiffs argued it was not a Dram Shop case because the casino did not serve the alcohol. Instead, they argued that the casino was negligent in rendering a service and should, therefore, be liable for foreseeable consequences of driving while intoxicated. The Superior Court granted the casino’s Motion to Dismiss, and the Plaintiffs appealed.

The Delaware Supreme Court has, at various times, interpreted the applicability of Dram Shop cases, consistently ruling that no such cause of action exists at common law as such a cause of action can only be created by statute. This case represents the Court’s most recent statement on the doctrine.

In affirming the Superior Court dismissal, the Court reasoned that, first, “it would be illogical for a dram shop to receive greater protections when it serves alcohol to a patron than when it didn’t serve alcohol to the patron.” Second, the Supreme Court held that even if the dram shop liability exception does not extend to businesses that do not serve alcohol, the Plaintiffs did not allege breach of duty to the Plaintiff: “Pleading an undertaking or assumption of a duty is a necessary first step under section 324A of the Restatement (Second) of Torts. The duty must arise from the assumption of a responsibility or obligation, not a failure to undertake a duty.” Therefore, the raceway did not breach a duty of care as it was never undertaken.

To read the full order, click here.