Macleary v. Hines

• Decision Date: 08 May 1987
• Docket Number: No. 86-1525,86-1525
• Citation: 817 F.2d 1081
• Parties: MACLEARY, Kevin, Appellant, v. HINES, Dennis and Farrell, Francis and Farrell, Mrs. Francis (Barbara) and Farrell, Miss Barbara v. RAMBLING BROOK APARTMENTS, INC. t/a Pau Pack Pub and Ritter, Harold.
• Court: U.S. Court of Appeals — Third Circuit

Page 1081

817 F.2d 1081

MACLEARY, Kevin, Appellant, v. HINES, Dennis and Farrell, Francis and Farrell, Mrs. Francis

(Barbara) and Farrell, Miss Barbara v. RAMBLING BROOK APARTMENTS, INC. t/a Pau Pack Pub and Ritter, Harold.

No. 86-1525.

United States Court of Appeals Third Circuit.

Argued March 17, 1987.

Decided May 8, 1987.

Jay Lambert (argued), Teresa Ficken Sachs, Duane, Morris & Heckscher, Philadelphia, Pa., for appellant.

William J. McKinley, Jr. (argued), Victor M. Berbeke, Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee Barbara Farrell.

Before HIGGINBOTHAM, MANSMANN, and ROSENN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

This is an appeal from the entry of a directed verdict for the defendant in a diversity action brought pursuant to 28 U.S.C. Sec. 1332 and seeking recovery for personal injuries. We have jurisdiction under 28 U.S.C. Sec. 1291. In accordance with our recent decision in Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (3d Cir.1986), we hold that under Pennsylvania law a defendant who knowingly and intentionally allows premises over which she has control to be used for the purpose of consumption of alcohol by minors has created an unreasonable risk of intoxication of the minor guests and may be liable for injuries resulting therefrom if the jury finds the use of the premises to be a substantial factor in bringing about the intoxication of the minor guest. We also hold that a social host may be liable when a minor becomes intoxicated as a guest and places himself in a position of unreasonable peril and is injured by a third party. Because the district court interpreted too restrictively the Pennsylvania standard for social host liability, we will vacate the judgment for the defendant and remand the case for further proceedings.

I.

On the evening of April 20, 1984, the plaintiff Kevin Macleary and the defendant Dennis Hines attended a party at the home of Barbara Farrell. The party was planned and guests were invited by Barbara Farrell, who was then 19 years old, and a few of her friends. The party was held at Farrell's home because her parents were out of town. Keith Wallace purchased a keg of beer with money contributed by four individuals including Barbara Farrell. Farrell and her friends made the keg of beer available for consumption by the party guests. No other form of alcoholic beverage was purchased or provided by Barbara Farrell or at her direction. Other alcoholic beverages were allegedly brought to the party by unidentified guests. There was no testimony that guests were invited to bring other liquor or beer.

Approximately 20 to 25 people ranging in age from nineteen to twenty-three years attended the party. Plaintiff Kevin Macleary, then nineteen years of age, arrived at the party at approximately 9:00 p.m. in an automobile driven by another guest. Several witnesses indicated that Macleary consumed several beers from the keg as well as whisky from the bottle being passed around.

Dennis Hines, who was then 17 years of age, arrived at the party at approximately 10:30 p.m. in the company of Donna McDevitt. Although Hines was not a licensed driver, he drove Donna McDevitt's car to the party. Hines testified that he drank no beer from the keg, and no other witness testified to seeing him do so. Macleary testified that he assumed Hines was drinking from the keg because he saw him drinking from a mug. Witnesses testified that Hines was seen holding an empty whisky bottle and drinking from another bottle of whisky which was being passed among four or five individuals.

Neither Macleary nor Hines had been specifically invited to the party by Farrell herself, but neither was told to leave or that he could not have beer from the keg which had been located on the porch in the expectation that guests would serve themselves.

Some 15 to 30 minutes after Hines' arrival he and Macleary left the party together. With Hines driving Donna McDevitt's car, they went to get some beer from the Pau Pac Pub which is located approximately one-half mile from the Farrell residence. At the Pau Pac Pub, Hines purchased two six-packs of Miller beer in bottles. Hines and Macleary then returned to the party where they consumed all but two or three bottles of the additional beer.

After drinking this bottled beer, Hines and Macleary again left the party and returned to the Pau Pac Pub. Hines was again driving Donna McDevitt's car. According to the defendant Barbara Farrell, when Hines and Macleary left the party together both appeared to be so intoxicated as to be unfit to operate a motor vehicle. Upon leaving the Pau Pac Pub for the second time, and with Hines again at the wheel, Hines and Macleary headed east in the direction of the Farrell home. The plaintiff was injured shortly thereafter when the automobile driven by Hines collided with a tree.

Macleary brought this action against Farrell under Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), which established that a cause of action exists against a social host in Pennsylvania for injuries caused by an intoxicated minor guest. The plaintiff's theory of recovery was that his injuries were caused by Farrell's negligence in serving or providing alcoholic beverages to persons she knew or should have known were minors.

Upon motion at the close of all the evidence, the trial judge entered an order pursuant to Fed.R.Civ.P. 50(a) for a directed verdict for the defendant Barbara Farrell. The trial judge concluded that Farrell was entitled to judgment as a matter of law because the plaintiff had produced no evidence that Farrell had physically handed alcoholic beverages to Hines or Macleary.

The district court order was entered on July 28, 1986. On December 5, 1986, during the pendency of this appeal we filed our opinion in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir.1986), wherein we predicted that the Pennsylvania Supreme Court would extend the social host liability law beyond "furnishers" of alcohol to individuals who violate the state's criminal laws by intentionally aiding minors to consume intoxicants. 807 F.2d at 1165.

The defendant now concedes that the district court applied an incorrect legal standard in directing a verdict based on the plaintiff's failure to introduce evidence of the defendant's hand-to-hand service of intoxicants. The defendant insists, however, that a directed verdict is still proper because one of the plaintiff's theories of recovery is untenable as a matter of law and the other is not supported by the evidence.

Macleary advanced two theories of recovery against Farrell. First, he argued that Farrell's negligence in aiding or encouraging Hines' consumption of alcohol was a substantial factor in bringing about his (Macleary's) subsequent injury by Hines. Second, Macleary argued that Farrell's negligence in aiding or encouraging Macleary's own consumption of alcohol caused him to become so impaired as to place himself in a perilous situation which he might otherwise have avoided. ¹

The defendant argues that a directed verdict is proper on either theory. First, he argues that no Pennsylvania case supports the proposition that social host liability may be imposed because an intoxicated guest made the decision to get into a car with an intoxicated driver. Second, he argues that there is no evidence that Farrell aided or encouraged Hines in his consumption of alcohol because there is no evidence that Hines consumed any alcohol provided or made available by Farrell.

A motion for a directed verdict under Fed.R.Civ.P. 50(a) should be granted only if, viewing the evidence in the light most favorable to the nonmoving party, there is no question of material fact for the jury and any verdict other than the one directed would be erroneous under the governing law. Indiana Coffee Corp. v. Procter & Gamble Co., 752 F.2d 891 (3d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 180, 88 L.Ed.2d 150 (1985); Flynn v. Bass Bros. Enterprises, Inc., 744 F.2d 978 (3d Cir.1984). Our review of a directed verdict is plenary. Id.

Our task is to determine whether the record contains evidence from which the jury could reasonably conclude under Pennsylvania law, that it is more likely than not that Barbara Farrell's conduct as a social host was a substantial factor in bringing about Macleary's injuries. We turn first to an analysis of Pennsylvania law.

II.

In Congini v. Portersville Valve Co. the Supreme Court of Pennsylvania held that a minor is negligent per se in consuming alcohol. The court held that an adult social host who furnishes alcohol to a minor is also negligent per se and that the minor guest's negligence in consuming the alcohol does not necessarily supersede the host's negligence as a cause of injuries to the minor guest or to third parties resulting from the minor guest's intoxication. 470 A.2d at 518.

In Fassett v. Delta Kappa Epsilon we concluded unequivocally that "Congini does apply to those circumstances in which minors serve alcohol to minors." 807 F.2d at 1160 (emphasis in original). Our analysis of Congini led us to the...