13-1642. Liquor licensee liability.

            To establish the claim against defendant __________________ (name of licensee) for violation of the New Mexico liquor control laws, plaintiff has the burden of proving the following elements:

            [1.       Defendant was a licensee;]

            2.         Defendant or defendant's [agent(s)] or [employee(s)] sold or served alcoholic beverages to ____________________ while [he] [she] was intoxicated;

            3.         Defendant or defendant's [agent(s)] or [employee(s)] knew from the circumstances and from what was reasonably apparent to defendant that the person [buying] or [receiving service] of the alcoholic beverages was intoxicated;

            [4.       Defendant or defendant's [agent(s)] or [employee(s)] acted with gross negligence or reckless disregard for the safety of the plaintiff.]

            In addition, plaintiff has the burden of proving that plaintiff's damages were caused by defendant's sale or service of alcoholic beverages.

DIRECTIONS FOR USE

            This is the basic instruction for a licensee's violation of New Mexico's liquor control laws. The instruction should be given in conjunction with the appropriate definitions contained in UJI 13-1641 NMRA. The Committee recommends that the name of defendant or defendant's agent or employee be inserted into the instruction at the appropriate points. The bracketed element number one should only be given if the court determines there is a factual issue regarding the status of defendant as a licensee. The bracketed element number four should be given only when the plaintiff was the patron of the licensee.

COMMITTEE COMMENT

            The statute creating tort liability for the sale of alcoholic beverages, Section 41-11-1 NMSA 1978, limits liability for violation of the Liquor Control Act to the licensee. Section 41-11-1(D)(1) NMSA 1978 defines "licensee" as "a person licensed under the provisions of the Liquor Control Act and the agents or servants of the licensee". The legislature's definition of "licensee" evidences an intent to impose vicarious liability on an absent licensee for the acts and omissions of the licensee's agents and employees. The New Mexico Supreme Court has confirmed that a licensee's liability extends to the acts of agents and employees. See Buffet v. Vargas, 121 N.M. 507, 914 P.2d 1004 (1996).

            Section 41-11-1 NMSA 1978 also specifically provides that a licensee may not be charged with "knowledge of previous acts by which a person becomes intoxicated at other locations unknown to the licensee". The trial court should address this provision of the statute as an evidentiary matter, rather than by way of instruction to the jury.

            The Committee has been unable to resolve from the language of the Liquor Control Act or from appellate opinions the question whether the cause element requires a showing that the alcoholic beverages sold or served by defendant was a cause of plaintiff's injuries or if it is sufficient to establish that the defendant served or sold alcoholic beverages and that the person's general intoxication was a cause of plaintiff's injuries and damages. Therefore, this issue will not be addressed specifically in the cause language until decided on a case by case basis.

            Comparative fault principles apply to an action brought pursuant to Section 41-11-1 NMSA 1978. Baxter v. Noce, 107 N.M. 48, 51-52, 752 P.2d 240, 243-44 (1988); Reichart v. Atler, 117 N.M. 623, 626, 875 P.2d 379, 382 (1994).