In first year torts, every law student learns about the “attractive nuisance” doctrine.
Basically, if you have a trampoline on your property and a kid trespasses on your land to use said trampoline and gets injured – you’re on the hook. See Wikipedia.
It looked like this, except with many more lights. -Image from Wikipedia
A few weeks ago, I was in a bar that had a breathalyzer machine. For those of you on the fence about going to law school be advised this is what happens to your brain. Instead of seeing people having fun in a bar – the only thing I could see were liability issues and this was after I had a pint or four.
People were competing on said machine. Rumor has it that a .55 was blown.
For a small fee, one gets a straw and blows into the breathalyzer machine. It provides the user with his BAC. The machine serves 2 purposes: (1) to let a user know it’s time to call a cab; and (2) to encourage drinking as users compete to see who can blow the highest number.
At the bar, the breathalyzer was placed out of sight of the bartenders (near the restrooms). I suspect this is intentional. Do bar owners really want their bartenders knowing the exact BAC of their patrons? I think not.
In my opinion, this machine is an adult trampoline. Instead of youth rendering a person unable to appreciate risk it’s intoxication. There’s very little utility to having such a machine in a bar. If a person is questioning his BAC – he shouldn’t drive. The bar owner makes money by the fees generated from the machine and by selling more drinks. This machine encourages alcohol consumption.
If you were representing a bar, would the presence of a breathalyzer machine make you nervous?
As a lawyer, you should also know the rules about using pictures that are 1) not yours, and 2) depict a third party’s persona without his or her consent for commercial purposes.
The wiki creative commons license lets me use images, like the one posted above, with proper attribution.
Yes, it would worry me somewhat in that the possibility that a bartender sees someone blow anything above the legal limit, continues to serve that person alcohol and that person then gets behind the wheel and kills somebody. In defending a dram shop suit, I would be concerned that my client had provided plaintiffs with evidence of intoxication. Of course, the key issue in such a case is whether the bartender/bar employees knew that the patron was intoxicated and continued serving alcohol. Blowing a breathalyzer in full view could pretty much settle the first element.
But, then I would think that there would be significant issues re the calibration of the machine, lack of expert administering the test, etc. Without any legal research on the matter, my hunch is that plaintiff’s counsel would have a very tough time getting the results of the breathalyzer and any resultant evidence/testimony in front of a jury.
But, it would create an issue to be dealt with, and that fact alone makes it ill-advised to have such a machine.