United States: How To Protect Your Brewing Business From Premises Liability Claims

Last Updated: January 13 2017
Article by Jeremy S. Scholtes

As brewers, distillers and vintners look for new and creative ways to expand their businesses from strictly production-side enterprises to production and service-side businesses that offer facility tours and food and beverage service, among other things, protection from tort liability (such as protection from "slip and fall" claims) becomes increasingly important. To that end, this article provides general guidance about the law for premises liability as it applies to a typical brewery, distillery or winery ("BDWs"), as well as some safety considerations that all owners should consider to protect their patrons, employees, and themselves.

Premises liability, as a subset of negligence tort law, is determined by statute and case law in each individual state jurisdiction. While it is impossible to explore the nuances for each individual state through a full 50-state survey in this article, the BDW owner generally has the legal duty to maintain the premises and a duty to warn others of dangerous conditions on the premises. The level of duty that BDWs owe to the person who comes to their property depends on the status of that visitor – invitee, licensee, or trespasser.

For purposes of this discussion, we will focus primarily on invitees — the definition of invitee in most jurisdictions is one who enters on the premises of another in response to an express or implied invitation to engage in the business conducted on the premises or to confer a business, commercial, or other tangible benefit on the owner or possessor. Invitees are likely to encompass most of those visiting a BDW. For example, invitees are those visiting a BDW to sample some of the newest libations onsite, to take a tour of the facility or to purchase products that he or she will carry out of the BDW.

The BDW owes the invitee a duty of reasonable care against known or reasonably discoverable or foreseeable dangers of which the BDW should be aware after a reasonable inspection. The definition of invitee might also include an employee in the performance of his or her duties where those duties are essential to the conduct of the BDW business and for the benefit of the BDW operations, although typically employees are required to file worker's compensation claims instead of lawsuits against their employer, and the legal duty owed to the employee may not be as high. For example, a BDW employee may spill some sort of ingredient on the floor and fail to clean it up. As a tour group proceeds through the work area, one of those invitees could slip and fall on the spilled ingredient. Had the spillage occurred five minutes prior to the accident, it may not be considered a reasonably discoverable danger. However, had the spill occurred five hours earlier, then hazard is one that was probably more reasonably discoverable and one which should have been addressed in order to protect employees and patrons.

A licensee, however, is on the BDW premises by permission only, instead of by invitation to conduct business, and the BDW and its agents generally only have the duty to refrain from willful, wanton, or reckless conduct that will or is likely to injure or endanger the safety of the licensee. A licensee in many states might include social guests of the BDW or perhaps the guest of an invitee who is not otherwise on the premises to conduct business. Typically these duties of care to both licensees and invitees are non-delegable and therefore cannot be passed along to any other entity or individual.

With these general standards of care in mind, BDWs should consider those safety measures which are appropriate for their business. These could include:

  • Establish and maintain routine inspections of the premises, perhaps as frequently as everyday immediately prior to opening for access or operations or immediately after closing, in order to identify and repair reasonably discoverable dangers. Designate and formally train specific employees who will conduct these inspections.
  • Establish and enforce a minimum age for any person on the premises so as to protect against the potential greater duty of care owed to children because of their age, immaturity, and lack of life experience.
  • Put all invitees, employees, contractors, subcontractors, and other potential visitors on clear notice through the use of signs, videos, pamphlets, signed disclaimers, and other notice methods of the danger of moving automobiles and the assumption of risk by any individual who enters the premises.
  • Post signs and distribute policies and disclaimers that describe all of the safety measures in place at the BDW and attendee obligations to comply with the safety measures.
  • Install, inspect, and maintain clearly and consistently marked areas where invitees or licensees may enter unescorted, escorted or not at all.
  • Install, inspect, and maintain visual signals (e.g., flashing lights) and audio signals (e.g., localized tone or horn) for particularly dangerous acts, such as when bottling conveyer belts are moving, forklifts are backing or an emergency is imminent.
  • Prohibit or strictly limit participation by non-employees in any activities conducted in the "behind the scenes" or production areas of the premises (e.g., activities observed during a tour).
  • Limit, to the extent possible, trip and fall obstacles throughout the premises but in particular in the vicinity of machinery, moving vehicles or other dangerous areas.
  • Install, clearly mark, inspect, and maintain first aid supplies throughout the premises.
  • Establish emergency response plans for designated internal emergency personnel, crowd control and accident site preservation, and contacting/coordinating external emergency responders, equipment, and vehicles to and from accident sites.
  • Develop a handbook that outlines rules and responsibilities for employees, contractors, and subcontractors, and implement a system to ensure that all individuals acknowledge that they: receive the book, read and understand the book, received training on the procedures therein, and will comply with the rules therein.

While the above-mentioned policies, warnings, systems, and procedures certainly cannot guarantee an accident-free environment, they can help to protect all individuals on the premises and limit the BDW owner or possessor's liability should the unthinkable happen.

One thing every BDW should consider is a periodic review of its safety practices with its insurance agent to ensure that the BDW is doing what its insurer recommends to minimize risk. The insurer may provide a health and safety inspector specialist to conduct a walk-through to identify any risks that the BDW may have missed during its own internal inspections. BDWs should also review insurance coverage to assess that it is sufficiently covered and that it is in compliance with all limiting provisions as we live in a litigious world and one can take nothing for granted. Finally, for legal advice specific to a BDW's jurisdiction and individual circumstances, all BDWs should consult with legal counsel about the particularities of the law of its state.

At the end of the day it is no doubt the goal of every owner or operator of a brewery, distillery or winery to provide its employees with a safe place to work and its patrons with a safe and enjoyable environment. Proper planning and risk mitigation will help to reduce liability and allow BDWs to stay focused on what each BDW does best – imagine and craft fine wines, delicious brews and amazing spirits!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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