We are asked to enlarge the scope of social host liability under our common law by extending a duty of care to an underage host who does not supply alcohol to underage guests, but provides a location where they are permitted to consume it. For the reasons stated herein, we decline to do so, and reaffirm that liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol.
1. Background. Sixteen year old Rachel Juliano suffered serious injuries when the automobile in which she was a passenger struck a utility pole. She and the driver of the automobile, nineteen year old Christian Dunbar, had just left a party hosted by the defendant, nineteen year old Jessica A. Simpson, where Dunbar consumed alcoholic beverages he had obtained earlier that evening and brought to Jessica's house. Jessica's father, Peter Simpson, was not home at the time of the party, leaving Jessica in sole control of the premises.
Juliano and her parents filed a complaint in the Superior Court, initially naming only Dunbar and Peter Simpson as defendants but later adding others, including Jessica Simpson.
2. Standard of review. In dismissing the claims now before us, the Superior Court judge relied on the record that had been the basis for her earlier summary judgment. Because her memorandum of decision considers facts beyond those in the pleadings, we treat the order of dismissal as one for summary judgment. See, e.g., Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 292 (1985).
We review a grant of summary judgment de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of
3. Facts. We set forth the relevant facts drawn from the summary judgment record, viewed in the light most favorable to the nonmoving party, here the plaintiffs.
On July 2, 2007, Jessica invited several friends, including Dunbar, to a party at her home while her father was away. Dunbar attended with Juliano, his then girl friend. On their way to the party, Dunbar obtained a "thirty-pack" of beer and a bottle of rum at a package store.
Over the course of the evening, Dunbar consumed one or two mixed drinks and six or seven of the cans of beer that he had brought to the party. Jessica drank beer as well, from a supply that she had obtained earlier. Although there were some alcoholic beverages belonging to Peter in the house, Jessica neither consumed those beverages nor offered them to her guests. Jessica stayed in the company of her guests throughout the evening. At one point, an uninvited attendee began to engage in antagonistic behavior toward her, pouring beer onto the floor inside the house; Jessica ordered him to leave, and he did.
Sometime before 11 P.M., Dunbar and Juliano began to argue outside the house. They were loud enough to draw the attention of several guests, as well as Jessica, who went out to investigate. Juliano pushed Dunbar, and a friend of his intervened, removing Dunbar to another part of the property while Jessica spoke alone with Juliano. Soon afterward, Juliano and Dunbar prepared to leave the party. Concerned that Dunbar was still upset from the argument and that Juliano had consumed too much alcohol to drive, Jessica proposed that she drive the two home. Juliano
4. Discussion. The plaintiffs argue that common-law social host liability should attach in these circumstances. They rely primarily on the Legislature's enactment of G. L. c. 138, § 34, which proscribes the "furnish[ing]" of alcohol to a person under the age of twenty-one, and defines furnishing as "knowingly or intentionally supply[ing], giv[ing], or provid[ing] to or allow[ing] a person . . . to possess alcoholic beverages on premises or property owned or controlled by the person charged."
As an initial matter, we note that the statute neither expressly nor implicitly establishes a tort claim for social host liability. The statute is criminal on its face, providing that a violation is punishable by up to one year in prison and a $2,000 fine. Where, as here, a statute makes no express provision for a private right of action, legislative intent determines whether a private right may be inferred. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998). No intent to create a private right of action appears either in the text of the statute or in its legislative history. Indeed, the preamble to the 2000 amendment adding the relevant language declared that the purpose of that act was "to strengthen forthwith the criminal laws relative to the sale of alcoholic beverages to minors," St. 2000, c. 175, with no reference to civil liability.
Nor can a social host's liability be established merely by
Because a violation of G. L. c. 138, § 34, would not itself establish that Jessica committed a breach of a duty of care, the plaintiffs' claims may proceed only if a social host's duty under our common law encompasses her conduct: knowingly allowing underage guests to possess alcohol in her home. The extent of that duty "is a question of law . . . to be determined by reference to existing social values and customs and appropriate social policy" (citations omitted). Wallace v. Wilson, 411 Mass. 8, 12 (1991).
To provide the context in which the claims before us arise, we begin by reviewing the development of social host liability in the Commonwealth. We first recognized that common-law tort liability may be imposed on social hosts in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986) (McGuiggan). In subsequent decisions, we have exercised caution when asked to expand on the duty we identified in that case, and consistently have found a duty only where a host either serves alcohol to guests or effectively controls the supply of alcohol.
We held in McGuiggan that a social host, who had served alcoholic beverages to guests at a party, was not liable for injuries sustained in a drunk driving accident caused by a guest, where there was no evidence that the guest had exhibited signs of intoxication when he was served drinks at the party. Id. at 161-162. However, we stated, for the first time:
Id. at 162. In reaching that conclusion, we expressly rejected a common-law rule that an intoxicated person's negligent operation of a motor vehicle while intoxicated is the sole proximate cause of subsequent injury, which in many jurisdictions had foreclosed claims against social hosts. Id. at 160.
On the same day that we announced our decision in McGuiggan, we decided Langemann v. Davis, 398 Mass. 166 (1986) (Langemann). The defendant mother had allowed her minor daughter to host an unsupervised party at the family home. Id. at 166. We held that the mother owed no duty to a third party injured in an automobile accident caused by a partygoer who had consumed alcohol supplied by a fellow guest, even if she "knew or reasonably should have known that alcoholic beverages would be available." Id. at 168. The mother did not keep alcohol on the premises, and there was none present when she left. Id. at 166-167. Key to our decision was the fact that the mother "did not serve or make available any alcoholic beverage" to the driver. Id. at 168. We said that the defendant's conduct in those circumstances "did not create a risk of injury to the plaintiff for which we are prepared to say the common law should provide a remedy."
Read together, McGuiggan and Langemann recognized a common-law cause of action based on a new duty of social hosts, while also putting limitations on the potential scope of liability: a social host could be held liable for injury to third parties caused by the drunk driving of a guest only in cases where the host had actually served alcohol or made it available.
In subsequent decisions, while clarifying the common-law duty of social hosts, we have continued to rely on the rule set forth in McGuiggan and Langemann. In Alioto v. Marnell, 402 Mass. 36
In Ulwick v. DeChristopher, supra, we addressed whether an underage host could be held liable in tort for the conduct of his intoxicated guests. The defendant, an eighteen year old whose parents were out of town, hosted a "bring your own booze" party for several underage friends. Id. at 402. An intoxicated guest drove away from the party and crashed into a motorcycle, causing the rider permanent injury. Id. at 404. We held that, where a social host lacked control over the supply of liquor to guests, the common law did not provide a remedy to third parties injured by those guests. Id. at 407. That rule flowed from McGuiggan's holding that, for liability to attach, a host must actually serve or make the host's own liquor available; and from the line of cases, starting with Langemann, in which we declined to extend liability to persons who merely owned or controlled property where drinking occurred. Id. at 406-407.
Those considerations also informed our decision in Cremins v. Clancy, supra. The defendant was a seventeen year old host who had allowed an underage guest to consume his own beer in the host's house, and again while riding in the host's vehicle as they drove to another person's residence. Id. at 290-291. Someone subsequently transported the guest back to the defendant's house, and from there the guest drove home, causing an accident that injured third parties. Id. We rejected the argument that
In reaching these decisions, we have been mindful of policy considerations, examining them most thoroughly in Ulwick v. DeChristopher, supra at 406-407. In that case we expressed doubt that a social host can effectively prevent a guest from drinking the guest's own supply of alcohol, in contrast to the host who furnishes liquor to guests. The latter host, we said, is like a bartender in a licensed establishment who is well situated to "shut off" guests who should not be drinking because of age or intoxication, and we noted that "[s]ociety may fairly expect" a host in the latter situation to take such action. Id. at 406. We acknowledged also that there were "a number of practical difficulties" inherent in imposing on social hosts a duty "to police the conduct of guests who drink their own liquor." Id. Among those difficulties we noted the unpleasant — and potentially counterproductive — enforcement methods available to hosts,
Relying on "strong arguments of public policy," our appellate courts have identified "a limited number of circumstances in which, while all other legal requirements of negligence are satisfied, the imposition of a duty has been determined to be inappropriate or unworkable." Doe v. Moe, 63 Mass.App.Ct. 516, 519-520 (2005), quoting Lewis v. Lewis, 370 Mass. 619, 629 (1976). In light of the foregoing public policy considerations, we conclude that the proposed expansion of social host liability under our common law continues to be inadvisable. Cf. Remy v. MacDonald, 440 Mass. 675, 677 (2004).
We note as well the uncertain scope of liability under the proposed expansion. We have adhered consistently to the principle set forth in McGuiggan, requiring actual or constructive alcohol service or effective control of the alcohol supply, on the ground that it furnishes "practical limits of potential liability." Ulwick v.
Moreover, we are reluctant to impose a duty of care in the absence of "clear existing social values and customs" supporting such a step. See Remy v. MacDonald, supra. The plaintiffs point to the imposition of criminal liability under the statute as evidence that the Commonwealth embraces such clear values. However, the Legislature's subsequent refusals to add a civil liability component to the statute challenge that view, suggesting rather that there is not a "community consensus" regarding the proposed expansion of social host liability.
The plaintiffs make a compelling argument that underage drinking and driving is a persistent and widespread societal problem. The Legislature's decision to deter and punish those who facilitate such conduct by the imposition of jail sentences and financial penalties, along with the stigma of a permanent
5. Conclusion. For the foregoing reasons, we decline to expand the common-law duty of social hosts. Therefore, counts five and six of the plaintiffs' fifth amended complaint were properly dismissed. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.
Judgment affirmed.
BOTSFORD, J. (concurring in the judgment).
I concur in the judgment of the court. I respectfully disagree, however, with the principal reasons that the court gives for its decision not to expand social host liability to apply to situations where an adult who does not furnish alcohol to underage guests nonetheless knowingly makes her home available to them to drink alcohol.
The court identifies "public policy considerations" and an absence of "clear existing social values and customs" as the bases for its decision not to expand social host liability.
With respect to the "policy considerations" referenced by the court as reasons not to expand our rule on social host liability, they seem to be those discussed in Ulwick v. DeChristopher,
Turning to the "clear existing social values and customs" that the court finds absent in this area, I believe that there clearly exists today a widespread social consensus that (1) underage drinking, especially when combined with driving, is a social problem of enormous significance
This court has long been willing to consider changes to the common law of tort liability in recognition of the problems of drunk driving, and we have recognized that the justification for doing so may well be stronger when a minor is involved. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 161-162 (1986). The breadth of the legislative response to underage drinking and driving offers specific support for the position that we can and should be prepared to expand our common-law rule of social host liability to include a case where an adult knowingly makes available her home or other location under her control for underage drinking. See Biscan v. Brown, 160 S.W.3d 462, 480-481 (Tenn. 2005) (in concluding that adult who hosted party for minors knowing that alcohol would be served had owed them duty of care, court relied in part on legislative policy determinations proscribing drunk driving and consumption of alcohol by minors).
Nevertheless, I would not expand the scope of social host liability at this time. My reason relates to the Legislature. Alcohol consumption and the alcohol industry have always been subject to comprehensive regulation by the Legislature. See generally G. L. c. 138. As the court notes, a number of bills have been filed over recent years seeking to add a civil liability provision to G. L. c. 138, § 34, itself. See ante at 537 n.18. These bills have been rejected to date, but they reflect legislative interest in regulating the very issue we consider here. Knowing of the Legislature's involvement in and concern about the regulation of alcohol consumption by minors in particular, and in recognition of the fact that, as pointed out by the court, ante at n.17,
GANTS, J. (concurring in the judgment, with whom Ireland, C.J., joins).
I agree with the court that where, as here, an underage social host knowingly allows underage guests to use her home to drink alcohol, but does not herself supply the alcohol, we should decline to impose social host liability on the underage host. I differ with the court in that I would limit our holding to an underage host, and would wait until we are presented with a case where a social host who has reached legal drinking age knowingly allows underage guests to use his or her home to drink alcohol before we decide whether to extend our holding to all social hosts.
I believe that such restraint is the more prudent course here for two related reasons. First, it is not difficult to imagine egregious circumstances where an adult of legal drinking age encourages underage guests to "bring your own beer or booze" to get drunk at his or her house, one of whom later kills or cripples someone while driving home, that might cause us to
Under the court's decision today, if similar tragic facts again arose, a social host who has reached the legal drinking age would not be liable in tort if he or she did not provide the alcohol for the party, even if the underage guest had killed a pedestrian, passenger, or another motorist while driving home. I am not yet convinced that this is the correct result under the common law where the social host is not himself or herself underage. Therefore, I think it wiser to limit our holding to underage social hosts, and wait for a case where the defendant social host is legally allowed to drink alcohol before extending our holding beyond the facts presented here.
Second, I am not yet persuaded that the policy reasons articulated by the court for denying social host liability apply with equal force where the social host is twenty-one years of age or older rather than underage. While I join the court in concluding that the underage defendant in this case is not liable in tort as a social host for knowingly allowing the underage drunk driver to drink alcohol in her home, I do so because of the "practical difficulties" identified by the court in Ulwick v. DeChristopher, 411 Mass. 401, 406 (1991) (Ulwick): "Hosts in
Nor am I persuaded by some of the court's reasons for its broad holding. The court declares that "we are reluctant to impose a duty of care in the absence of `clear existing social values and customs' supporting such a step," ante at 537, quoting Remy v. MacDonald, 440 Mass. 675, 678 (2004), and claims there is no "`community consensus' regarding the proposed expansion of social host liability." Ante at 537, quoting Schofield v. Merrill, 386 Mass. 244, 248 (1982). As best I can tell, there exists a "clear existing social value[]" that parents not allow the underage guests of their children to drink alcoholic beverages at
We have long recognized the need to be wary of any supposed inference based on legislative nonaction, especially where, as here, "the Legislature's subsequent refusals" are nothing more than bills failing to emerge from the committee where they were filed. See, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 247 (1985) ("postenactment history is not ordinarily considered as showing legislative disapproval of the rejected amendments"). In the 2003-2004 legislative session, one senator submitted a bill proposing that any person violating the criminal statute would be liable in tort where an underage driver under the influence of alcohol causes injury or death. The bill was referred to committee where it remained with an order for further study. See 2003 Senate Doc. No. 1100, 2003 Senate J. at 93A; 2004 Senate Doc. No. 2288. For the next three sessions, the same senator reintroduced the identical bill and each bill again remained in committee without triggering debate or further legislative action. See 2005 Senate Doc. No. 1020; 2006 Senate Doc. No. 2633; 2007 Senate Doc. No. 968; 2007 Senate J. at 81A; 2009 Senate Doc. No. 1775. There was no discussion or vote by the Legislature on the proposal.
The "fallacy" in the court's reasoning is that "no one knows why the legislature did not pass the proposed measures.... The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation." Franklin v. Albert, 381 Mass. 611, 615-616 (1980), quoting Berry v. Branner, 245 Or. 307, 311 (1966). Even if there were a policy reason why these bills did not emerge from committee, we cannot know whether the reason was a legislative judgment that these matters of civil liability should be left to the courts to decide
The court also appears to fear what it characterizes as "[p]otentially vast consequences to liability insurance" if social hosts who violate G. L. c. 138, § 34, by allowing underage guests to consume alcohol in their home were subject to civil liability. Ante at 537 n.17. This fear is probably overstated because liability insurance policies often exclude criminal acts from coverage. See 7A G. Couch, Insurance § 103:40 (3d ed. 2005). But even if an expansion of social host liability were to result in an increase in liability insurance claims, that is not a sufficient reason to rule against such an expansion where the common-law rules of liability need to be changed. See, e.g., Papadopoulos v. Target Corp., 457 Mass. 368, 369 (2010) (abolishing distinction between natural and unnatural accumulations of snow and ice). Nor can I accept the court's suggestion that the Legislature's regulation of insurance coverage somehow affects whether we should revise a common-law duty of care, because any change in the common-law duty of care will likely have consequences for liability insurers and policy holders. If we were to conclude that we should defer to the Legislature regarding a common-law duty of care where it will affect insurance coverage, we would frustrate the necessary evolution of the common law of tort liability.
Finally, the court professes concern about "the difficulties," which it contends are "manifold," that judges and juries would
Therefore, I concur in the judgment, but would limit the holding to underage hosts, and wait for a case where the host was at least twenty-one years of age before establishing a rule that would protect all social hosts from civil liability for allowing their homes to be used by underage guests for "bring your own beer or booze" parties.
G. L. c. 138, § 34 (statute). Although Jessica was not prosecuted under the statute, it was conceded at oral argument that she "potentially could have been."
We have applied that holding also to claims of social host liability for the self-inflicted injuries of intoxicated adult guests who have not reached the age of twenty-one. See Hamilton v. Ganias, 417 Mass. 666, 667 (1994) (reasoning in Manning v. Nobile, supra, applies to nineteen year old plaintiff because, "although an underage drinker, [he] was a [legal] adult . . . who was responsible for his own conduct"). See also Panagakos v. Walsh, 434 Mass. 353, 354-355 (2001); Sampson v. MacDougall, 60 Mass.App.Ct. 394, 397-398 (2004).