The Supreme Court of Delaware issued its ruling today in Barnes v. Hooper and Harrington Raceway & Casino

(Read more: https://courts.delaware.gov/Opinions/Download.aspx?id=380580)

Gregory L. Barnes and Amber N. Barnes appealed a Superior Court judgment that dismissed their personal injury complaint against Harrington Raceway, Inc. Gregory Barnes was seriously injured while riding a motorcycle, when he was struck by impaired driver Kevin M. Hooper. The collision occurred on a public highway, State Route 13 in Delaware, after Hooper had left Harrington Raceway’s property.

Before the accident, security personnel had found Hooper passed out in his car in the parking lot at Harrington Raceway in Harrington, Delaware. They woke him, took an open bottle of vodka and a large empty beer can from his car, but did not call the police or prevent him from driving away. The Barneses sued both Hooper for driving while intoxicated and Harrington Raceway for negligence in not stopping Hooper.

The Superior Court dismissed the claim against Harrington Raceway, citing existing Delaware law that generally does not hold businesses serving alcohol (dram shops) liable for off-premises injuries caused by intoxicated patrons. The court also rejected the Barneses’ argument that Harrington Raceway had assumed a duty of care under the Restatement (Second) of Torts § 324A. Hooper did not defend the action, and a $10 million judgment was entered against him.

The Barneses appealed, arguing that the Superior Court wrongly extended dram shop immunity to situations where alcohol was not served, and that the court incorrectly rejected their other liability theories, including premises liability.

Court’s Analysis of Duty of Care: The Delaware Supreme Court upheld the Superior Court’s dismissal of the claim against Harrington Raceway. The Court’s analysis of the duty of care focused on two key aspects:

1. **Dram Shop Immunity:** The Court acknowledged that Delaware common law generally provides dram shop immunity to businesses and social hosts who sell or serve alcohol. While Harrington Raceway did not serve alcohol to Hooper, the Court was skeptical of creating an inconsistency where businesses that do serve alcohol would be more protected than those that do not. The Court noted that it had previously applied dram shop immunity to non-servers, like a bar bouncer removing a patron.

2. **Restatement (Second) of Torts § 324A:** The Barneses argued that Harrington Raceway assumed a duty of care when its security personnel interacted with Hooper. Section 324A states that if someone “undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person,” they can be liable for physical harm resulting from their failure to exercise reasonable care, especially if it increases the risk of harm.

* The Court found that Harrington Raceway did not “undertake… to render services” to Hooper. The security personnel’s actions, while they did confiscate alcohol, were considered a failure to act (i.e., failing to stop Hooper from driving) rather than an affirmative undertaking of a duty.
* The Court distinguished the case from others where an affirmative undertaking had occurred, such as providing transportation or assuring an investigation into misconduct.
* Therefore, since no duty of care was assumed under § 324A, there could be no breach of duty, and the claim against Harrington Raceway was properly dismissed.

In summary, the Court affirmed that Harrington Raceway did not have a duty of care towards Barnes under either dram shop immunity principles or the Restatement (Second) of Torts § 324A.