The Suit Against Coors Brewing for a Drunk Driving Accident:
Is There a Basis for It?

By ANTHONY J. SEBOK


anthony.sebok@brooklaw.edu
----
Tuesday, Apr. 20, 2004

Recently, in Nevada, nineteen-year-old Ryan Pisco drank beer at a party, got drunk, drove his car into a pole, and died. Now Ryan's mother, Jodie, is suing Coors Brewing Co. for allegedly causing Ryan's death.

Pisco alleges that Coors "promotes" underage drinking, and by doing so, breached a duty to protect Ryan from drinking and driving.

Like the "Big Fat" lawsuit against Burger King, about which I wrote in a previous column, Pisco's lawsuit is interesting from both a legal and a social point of view. In the end, it may turn out to be frivolous. Yet it's possible that even "frivolous" lawsuits serve a useful purpose in the messy world of American tort law.

Is There a Legal Basis for Pisco's Lawsuit? Probably Not.

I have not read Pisco's complaint, but based on media accounts of her case, it seems that she is, at a minimum, on very thin ice legally. Coors has a number of duties, under tort law, to the public -- but they probably do not include the duty for which Pisco is arguing.

To begin, Coors was not the seller or server of the beer Ryan drank -- so it does not have the duties that a bar or, in some states, a party host, has. (I discussed some of these duties in a prior column.)

As a manufacturer, Coors has a duty to produce a defect-free product -- one that is not adulterated, for instance. But Pisco is not saying Coors's beer was defective.

In addition, if there were an unusual aspect of Coors's product that might lead to injury, Coors would have a duty to warn the public. (For instance, the manufacturers of Pop Tarts were sued on the theory that microwaved Pop-Tarts are allegedly deceptively cool on the outside, leading consumers to burn their mouths.)

But Pisco does not seem to be saying that Coors failed to adequately warn Ryan about the effect its beer has on driving skills.

Moreover, any such failure to warn was probably harmless, in the sense that teenagers typically know, from high school health classes and the like, about the effects of alcohol and the reasons one should not drive drunk. As a licensed driver, in addition, Ryan was likely educated on this subject as a prerequisite for getting his license.

Can Pisco Argue That Coors's Advertising Was Unreasonable?

Is there any legal basis, then, for Pisco's suit? Possibly -- but it would have to come from Coors's advertising, not its beer. Pisco may try to predicate her suit on Coors's advertising -- on one of two theories.

The first is that a message in the advertising created an unreasonable risk to Pisco, and that this unreasonable risk was foreseeable to Coors. The argument, I suppose, is that the message Coors's advertising might have been reasonably safe for adults, but not for minors such as Ryan.

What facts might support this argument? If evidence were to show that Coors knew that its advertising--especially print ads in magazines with under-21 readers --would get minors interested in drinking Coors beer, that might be helpful to Pisco's case. (The U.S. government is making a similar argument, based on similar evidence, in its current racketeering suit against the tobacco industry.)

But making this argument will be an uphill battle. Coors, like all businesses, has a First Amendment right to advertise. And advertisers can, at times, be held liable under tort -- but only in limited circumstances.

Proof that Coors's ads increased underage drinking would not be enough. More proof would be required: First, Pisco would need proof that the advertising was unreasonable. Second, she would need proof that the aspect of it that was unreasonable caused Ryan's death.

Was Coors's advertising unreasonable? Or, put another way, is it unreasonable to expose minors to the message that drinking beer is fun, or associated with other traits desired by young adults (such as sex)?

Probably not. Unlike in the case of tobacco, there's nothing inherently or directly harmful in drinking beer. What is harmful is the risk that one will drive afterwards, and get into an accident. And Coors's ads don't endorse or encourage drunk driving.

Can Pisco Argue That Coors's Advertising Was Deceptive?

Alternatively, Pisco could argue that the advertising by Coors was deceptive.

To succeed on this theory, Pisco would not have to show that Coors created an unreasonable and foreseeable risk. Instead, she would simply have to show that Coors's advertising was false or misleading in some way, and that the false or misleading aspect of the advertisement played a causal role in the plaintiff's injury.

Plaintiffs in cases against "Big Tobacco" have used just this type of consumer fraud claim in a number of contexts. They have alleged, for instance, that advertisements misled youth into thinking that smoking was healthy -- and that advertisements misled smokers into believing that "light" cigarettes were less harmful than normal "full flavor" cigarettes.

What similar theory could Pisco use? The alleged misrepresentation would have to connected to drinking and driving -- the direct cause of Ryan's death.

If Pisco could show that Coors's advertisements misled Ryan into believing that he could drive while intoxicated, that proof might work. Alternatively, if Pisco could show that the advertisements misled Ryan into believing that driving while intoxicated was not dangerous, that proof might also work.

But unless a Coors advertisement actually showed, say, an adept drunk driver, such proof would probably be impossible to come by.

Could An Attack on "Glamorizing" Advertising Work?

What if Pisco suggested, instead, that Coors advertisements were misleading and deceptive in that they glamorized drinking, and made drinkers seem powerful and invulnerable -- a message to which Ryan, as a teenager, was especially vulnerable?

This theory, too, is weak. But there is one precedent that supports it.

In 1983, in Committee on Children's Television, Inc. v. General Foods, the California Supreme Court allowed a consumer fraud suit to go forward based on similarly vague, general allegations. There, the plaintiff argued that General Foods -- through advertisements shown between Saturday morning cartoons -- misled children into believing, for instance, that "breakfast [cereals] inherently possess and/or impart to those ingesting them magical powers."

General Foods argued that since the harm alleged was the cost of the cereal, and parents -- the cereal purchasers -- would not be misled by such claims, that should be the end of the matter. But the court disagreed.

This California decision, however, is unusual. Most courts would only let a consumer fraud suit proceed based on specific allegations directly connecting an aspect of the advertising at issue, to the harm the plaintiff suffered. And Pisco, it seems, will probably not be able to make this type of allegation closely connecting particular aspects of Coors's advertising with her son's death.

Even a "Frivolous" Suit May Have a Useful Purpose

So why do I still think that Pisco suit against Coors serves a useful purpose?

It is because suits like this remind us that contemporary advertising is a powerful and potentially destructive force in society. I have no doubt that many advertisements are causally related to a wide range of outcomes which I deplore--from smoking, to the consumption of fast food, to the purchase and use of gas-guzzling SUVs.

But tort law, with its strict rules about individual responsibility and causation, is not the right way to correct advertising's ills. Some things have to be confronted politically, through collective action and regulation.

The bottom line is this: If Jodie Pisco doesn't like the effects of advertising on minors, she should seek out her Congressperson, not her lawyer.


Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. His earlier columns on torts issues may be found in the archive of his columns on this site.

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