Dram Shop Immunity Extends to Non-Serving Entities and Limits Restatement §324A Liability

Introduction

Barnes v. Hooper and Harrington Raceway, Inc. d/b/a Harrington Raceway & Casino is a landmark Delaware Supreme Court decision issued on June 4, 2025. The plaintiffs, Gregory and Amber Barnes, sued Kevin Hooper—an intoxicated driver—and the raceway whose security briefly intervened but allowed Hooper to leave the premises. Mr. Barnes suffered catastrophic injuries when Hooper, driving off-premises, crossed into his motorcycle path on State Route 13. The core issues on appeal were (1) whether Delaware’s common-law “dram shop” immunity shields a business that did not serve alcohol and (2) whether Harrington Raceway’s security personnel assumed a duty under Restatement (Second) of Torts § 324A by waking an intoxicated patron and confiscating his alcohol but failing to prevent him from driving away.

Summary of the Judgment

The Supreme Court of Delaware affirmed the Superior Court’s dismissal of the Barneses’ complaint under Rule 12(b)(6). The Court held that:

Under Delaware common law, a business or social host enjoys broad immunity—not limited to those who serve alcohol—as a matter of public policy and in the absence of a statutory dram shop act.
Extending liability to a non-serving entity would be inconsistent with the underlying rationale of dram shop immunity.
Restatement § 324A imposes liability only when a defendant undertakes an affirmative duty to render services for the protection of third parties; mere failure to prevent an intoxicated patron from leaving does not satisfy that threshold.

Therefore, because Harrington Raceway did not owe a duty to Mr. Barnes under either theory, the complaint failed to state a viable claim.

Analysis

Precedents Cited

Oakes v. Megaw (1989), DiOssi v. Maroney (1988), Wright v. Moffitt (1981), Samson v. Smith (1989), Acker v. S.W. Cantinas (1991), Shea v. Matassa (2007) – foundational Delaware dram shop cases establishing that businesses serving alcohol are not liable for off-premises injuries caused by intoxicated patrons.
McCall v. Villa Pizza (1994) – applied dram shop immunity to a bar’s security guard who forcibly removed an intoxicated patron, holding that § 324A could not substitute for dram shop liability.
Connolly v. Theta Chi Fraternity (2018) – distinguished § 324A liability where a social host provided bus transportation, thus undertaking an affirmative duty to protect attendees.
Doe 30’s Mother v. Bradley (2012) – recognized that § 324A liability requires an “affirmative act” or undertaking to render protective services for a third party.

Legal Reasoning

The Court’s reasoning proceeded in two steps:

Dram Shop Immunity Applies Beyond Service of Alcohol. Traditionally, Delaware has rejected third-party liability for taverns or social hosts whose patrons injure others off the premises. The Barneses urged a new rule that would impose liability on entities that did not serve alcohol but nonetheless interfered or failed to intervene. The Court declined, noting that immunity was rooted in common-law policy judgments and legislative silence. Imposing liability on non-serving entities would produce an “illogical” asymmetry: servers would enjoy less protection than non-servers.
No Duty Under Restatement § 324A Without an Affirmative Undertaking. Section 324A requires that a defendant “undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person.” The Barneses argued that security’s act of waking Hooper and confiscating alcohol created a duty. The Court held those acts were remedial, not an assumption of an ongoing service obligation. Absent an affirmative commitment—such as offering transportation or supervision—there is no duty, no breach, and thus no negligence liability.

Impact

This decision reinforces two critical principles in Delaware tort law:

Scope of Dram Shop Immunity. Businesses and social hosts will not be second-guessed for patrons’ off-premises conduct, whether they served alcohol or merely encountered intoxicated individuals on their property.
Strict Limits on § 324A Undertakings. Plaintiffs must plead a clear, affirmative promise or service offered to protect a third party—mere passive actions or failures to act do not suffice. Future complaints invoking § 324A will need to specify the content and duration of the undertaken duty.

Lawyers should advise proprietors and security teams about these delineations: while a business must still exercise general premises safety, failing to stop an intoxicated patron from leaving does not automatically expose it to third-party negligence claims.

Complex Concepts Simplified

Dram Shop Immunity: A judicially created shield that prevents bars, restaurants, and private hosts from being sued for injuries caused by a patron’s intoxicated driving away from the premises.
Restatement § 324A: A legal doctrine that can impose liability when someone voluntarily takes on a duty (for pay or gratis) to protect another. It does not apply when a defendant merely fails to prevent harm or performs a one-time, non-ongoing act.
Rule 12(b)(6) Dismissal: A pretrial procedure dismissing cases that do not allege enough facts, taken as true, to establish a legally cognizable claim.

Conclusion

Barnes v. Hooper solidifies that Delaware’s dram shop immunity is not confined to those who serve alcoholic beverages and underscores that Restatement § 324A liability arises only from an explicit, affirmative undertaking to protect third parties. The ruling provides clarity and predictability for businesses, social hosts, and security personnel on the limits of negligence exposure when dealing with intoxicated individuals. Going forward, plaintiffs must either seek a statutory remedy or demonstrate a concrete assumption of duty to overcome these well-established immunities.