Alioto v. Marnell

• Decision Date: 29 March 1988
• Citation: 520 N.E.2d 1284,402 Mass. 36
• Parties: William J. ALIOTO, administrator, 1 v. Richard J. MARNELL et. al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1284

520 N.E.2d 1284

402 Mass. 36

William J. ALIOTO, administrator, ¹ v. Richard J. MARNELL et. al. ²

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 6, 1988.

Decided March 29, 1988.

Michael E. Mone (Patricia L. Kelly, Boston, with him), for plaintiff.

Stephen M.A. Woodworth, Brockton (Laurel L. Baker, with him), for defendants.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff appeals from a Superior Court judge's entry of summary judgment in favor of the defendants Richard and Ellen Marnell. We granted the plaintiff's application for direct appellate review, and now affirm.

The defendants are the parents of Michael J. Marnell, the driver of an automobile which collided with an automobile driven by the plaintiff's intestate, Robert J Alioto, killing him. The plaintiff alleged that the defendants were negligent in failing to supervise a party given by Michael earlier that evening in their home and with their consent; in failing to prevent Michael, who was below the legal drinking age, from obtaining and consuming alcoholic beverages at the party; and in failing to prevent Michael from driving after he became intoxicated.

We summarize the facts as asserted in the parties' affidavits and depositions, viewed in the light most favorable to the plaintiff. See, e.g., Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17, 445 N.E.2d 136 (1983), and case cited. Some time prior to November 10, 1982, the defendants' son Michael asked them for permission to hold a party for his fellow employees in the Marnell home. At that time, Michael was nineteen years of age; below the legal drinking age. See G.L. c. 138, § 34A, as amended through St.1979, c. 15, § 7. The defendants knew that Michael previously had been involved in incidents involving his abuse of alcoholic beverages, that at one time he had lost his driver's license for operating a motor vehicle while under the influence of alcohol, and that there would be alcoholic beverages at the party. They did not tell Michael not to consume alcohol, but conditioned their consent to the party on his stipulation that he would not drive his automobile that evening. Michael agreed not to drive the automobile that evening, and told the defendants that in fact there would be no need for him to drive, as all his guests had their own means of transportation to and from the party. The automobile was registered and insured in the name of Richard Marnell; however, Richard and Michael had a signed, written agreement whereby Michael would reimburse Richard for the purchase price by a series of payments made over a period of time. When Michael made his final payment, Richard was to transfer legal title to the automobile to him. Although Richard had a set of keys to the automobile, only Michael used the automobile on a regular basis.

The party was held on the evening of November 10, in the basement recreation room of the Marnell home. The defendants spent most of the evening in the upstairs family room. At some time prior to midnight, Michael left the Marnell home and drove away. The defendants did not see him leave the house. They first became aware of his departure when they heard and saw his automobile pulling out of the driveway.

This is not a case involving social host liability. The defendants did not furnish Michael with alcoholic beverages. Cf. McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986). The gravamen of the plaintiff's action is the defendants' allegedly negligent failure to supervise and control their son Michael's actions. A parent has a duty to exercise reasonable care to prevent his minor child from intentionally or negligently inflicting harm on others, where the parent knows or should know of the child's propensity for a particular type of harmful conduct and has the opportunity to take reasonable corrective measures. Caldwell v. Zaher, 344 Mass. 590, 592, 183 N.E.2d 706 (1962). The plaintiff asks us to extend the rationale of Caldwell to this case. We decline to do so.

In Caldwell, the plaintiff stated a good cause of action by alleging that the defendants knew or should have known of their minor child's propensity to assault other children, but did nothing to restrain such propensity. Id. at 591-592, 183 N.E.2d 706. Here, there were assertions that the defendants knew or should have known of their son's propensity to drink and drive, because he previously had been involved in incidents involving drinking, and had lost his driver's license for operating a motor vehicle while under the influence of alcohol. Unlike the child in Caldwell, however, at the time of this incident, Michael Marnell, although below the legal drinking age, was not a minor, but an adult. ³ See G.L c. 4, § 7, Forty-eighth & Fiftieth (1986 ed.) (defining the terms "Minor" and "Adult"). He had graduated from high school some seventeen months earlier, had been working full-time for at least fourteen months, and was in all relevant aspects emancipated from his parents. The fortuity of his living in their home does not create a duty where none otherwise exists; nor does their status as parents, without more, impose on the defendants the duty to supervise and control their emancipated adult son. See DePasquale v. Dello Russo, 349 Mass. 655, 659, 212 N.E.2d 237 (1965); Smith v. Jordan, 211 Mass. 269, 270, 97 N.E. 761 (1912).

The plaintiff further argues that the defendants are liable for Michael's actions because, having conditioned their consent to Michael's holding a party in their home on the stipulation that he would not drive his automobile that night, they voluntarily undertook a duty to supervise the party, which duty they negligently violated. This argument is not persuasive. The Marnells did not undertake to supervise the party; they prudently imposed a condition on their grant of permission to use their premises. We are not willing to say, in the circumstances of this case, that such action gave rise to an affirmative duty to supervise the use thus made. To do so would be counterproductive. It would provide a disincentive to the taking of reasonable corrective measures, if doing so might lead to the imposition of liability where it would not otherwise exist.

Finally, the plaintiff argues that the defendants are liable because the automobile which Michael drove was registered to Richard Marnell, and because Richard, having the right to control Michael's use of the automobile, failed to take effective action to prevent Michael from operating the automobile after drinking alcohol. We disagree. In order to prevail on a claim of negligent entrustment of an automobile, "it is necessary for the plaintiff to show, among other things, that the defendant owned or controlled the motor vehicle concerned, and that the defendant gave the driver permission to operate the vehicle." Leone v. Doran, 363 Mass. 1, 7, 292 N.E.2d 19 (1973). On the facts of this case, whether Richard or Michael was the true owner of the automobile may have been a jury question. See id. ("A conclusion may be warranted that someone other than the registered owner is the actual owner the vehicle"), and cases cited. But, even assuming arguendo that the plaintiff could have shown that Richard owned or controlled the automobile, he could not have shown that Richard "gave specific or general permission to [Michael] to drive the automobile," id., in light of Richard's admonition to Michael not to drive the automobile on the night of the party, and his conditioning his permission to use the Marnell premises on Michael's stipulation to this effect.

We conclude that the judge was correct to grant summary judgment in favor of the defendants. In the circumstances of this case, the defendants were, as a matter of law, under no duty to protect the plaintiff's decedent from the actions of their emancipated adult son.

Judgment affirmed.

ABRAMS, Justice (dissenting).

The legal drinking age ¹ should be applied in this case to determine whether the parents had a duty to supervise their son. In the social host context, we have held that "[i]n deciding whether a guest [is] a minor or an adult, for purposes of determining the tort liability of a social host, the legal drinking age ... is the appropriate consideration." McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 159 n. 7, 496 N.E.2d 141 (1986). Our conclusion in McGuiggan provides good reasons for drawing the same line as to age in this case.

In November, 1982, Michael Marnell was under the legal drinking age and lived with his parents. Michael's parents knew about his party, and agreed to let him hold it in their home. His parents also knew that alcohol would be available at the party. In these circumstances, the fact that Michael was over the age of eighteen should not automatically foreclose parental liability. Instead, because the threat of harm to the motoring public is so analogous to the threat of harm in social host cases, I would use the legal drinking age to determine whether the parents had a duty to supervise their son. ² The court's decision not to use the legal drinking age applies too narrowly the reasoning of McGuiggan and undermines the clear line this court has drawn as to the dangers of alcohol and driving. See note 4, infra.

If the legal drinking age is used to determine duty, then, based on the evidence, at least two factual questions arise, and the grant of summary judgment was error. The first question is whether the parents knew or should have...