Andres v. Alpha Kappa Lambda Fraternity

• Decision Date: 19 May 1987
• Docket Number: No. 68633,68633
• Citation: 730 S.W.2d 547
• Parties: 40 Ed. Law Rep. 521 Frank ANDRES and Joan Andres, Plaintiffs-Respondents, v. ALPHA KAPPA LAMBDA FRATERNITY (National Fraternity), and Alpha Kappa Lambda Fraternity (Local Chapter), Defendants-Appellants.
• Court: Missouri Supreme Court

Page 547

730 S.W.2d 547

40 Ed. Law Rep. 521

Frank ANDRES and Joan Andres, Plaintiffs-Respondents, v. ALPHA KAPPA LAMBDA FRATERNITY (National Fraternity), and Alpha Kappa Lambda Fraternity (Local Chapter),

Defendants-Appellants.

No. 68633.

Supreme Court of Missouri,

En Banc.

May 19, 1987.

Rehearing Denied June 16, 1987.

Tom Oswald, Kirksville, for AKL Local Chapter.

Hamp Ford, Columbia, for AKL National.

Donald L. Schlaprizzi, C. Dennis Barbour, St. Louis, for respondents.

RENDLEN, Justice.

Joan and Frank Andres (respondents) seek damages in this wrongful death action, § 537.080, ¹ against Xi Chapter of the Alpha Kappa Lambda Fraternity (Local) and The Fraternity of Alpha Kappa Lambda (National) for the death of their son, David Andres (decedent) while a student at Northeast Missouri State University. ²

Almost twenty years of age at the time of his death, decedent was a member of both the Local and National fraternities and resided in the fraternity house owned by a group of Xi Chapter alumni.

During the evening of December 11, 1979, and the early morning hours of December 12, the Local sponsored a "mixer" at its house with the Delta Zeta Sorority at which alcoholic beverages were furnished to members of the Local as well as the Sorority without restriction as to age. The Local's social committee chairman estimated that approximately 60 or 70 percent of the Local's membership was under the age of twenty-one years and the evidence disclosed that neither the Local nor the National had an established policy governing alcohol consumption at fraternity functions by individuals under the lawful age (twenty-one) for consumption of alcohol. ³ Though the National had adopted a policy against "hazing" and required compliance with that directive, the National did not participate in the day-to-day management of the Local. Further, the National neither disciplined nor took corrective action when it came to its attention that a local chapter furnished alcoholic beverages to those under the lawful age because such measures were considered impractical. While alcoholic beverages were available to those attending social events, at "mixers" the practice of the Local was to provide hard liquor in mixed drinks for sorority guests but it was not to be served in straight shots and members were expected to drink only beer which also was furnished.

Decedent, who was known to have maintained his own supply of liquor at the house was observed drinking before and following the "mixer" ⁴ and during the early morning hours of December 12, 1979, was sitting on the bar, matching straight shots from a bottle of whiskey with his fraternity brother, Tom Baatz. After watching this sorry display for some time, another member, Greg Broerman took the bottle from the "contestants" and placed it in a whiskey case behind the bar. Immediately decedent went behind the bar and "pressure[d]" Broerman into returning the bottle and decedent took one final shot of whiskey. Broerman then convinced decedent to stop drinking and with another fraternity brother, assisted decedent into the television room after the "brothers" decided decedent could not be safely taken to his bed because of the risk of negotiating a set of stairs and the difficulty of getting him into his top bunk. A pillow and blanket were obtained and decedent, who frequently spent the night in other rooms of the house, was left to sleep on the television room floor.

At about 10:00 a.m. on December 12, decedent could not be wakened and he was taken to a local hospital where emergency treatment was administered but he could not be revived. In the ensuing autopsy decedent's blood alcohol level measured .43% and the cause of death was determined as "acute alcohol intoxication with aspiration."

Respondents brought this action alleging that both the Local and the National had "negligently and carelessly allowed, permitted and condoned the serving of alcoholic beverages to minors on [fraternity] premises and negligently and carelessly failed to supervise the consumption of alcohol on [fraternity] premises," praying damages of $250,000. The jury returned a verdict against each defendant in the amount of $250,000, reduced to $181,250 on the following apportionment of fault: David Andres--27.5%; National--27.5%; Local--45%. In the Court of Appeals, Western District, the majority reversed the judgment as to both defendants while Kennedy, J. in dissent would have only reversed as to the National and certified the cause in the belief that the majority's opinion stood in conflict with Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983) and Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1980).

Addressing first the Local's liability for furnishing alcoholic beverages to decedent, the legislature, by § 311.310, ⁵ has proscribed as a misdemeanor the selling, giving or supplying by "[a]ny licensee" or "any person" (with exceptions not relevant here) of "intoxicating liquor" to those under twenty-one years of age. An unincorporated association, ⁶ may be considered a "person" under § 1.020(10), ⁷ and because the Local only functions through the acts of its members we conclude that it is a person as that term is employed in § 311.310 and thus it was unlawful for the Local to provide alcoholic beverages to those under twenty-one years of age who attended the "mixer."

While it was unlawful for the Local to furnish alcoholic beverages to those under age, respondents were required to establish: 1) a civil duty not to furnish decedent with intoxicating liquor; 2) breach of that duty; and 3) the furnishing of alcoholic beverages to decedent was the proximate cause of his death. See Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881, 886 (Mo. banc 1983). In all this it does not necessarily follow that civil liability can be imposed though there may have been a violation of the criminal statute.

The earliest reported Missouri case addressing the problem of furnishing alcoholic beverages and concomitant injury which our research discloses is Skinner v. Hughes, 13 Mo. 440, 441 (Mo.1850). There the owners of a store furnished alcoholic beverages to a slave who ultimately died of alcohol poisoning. In 1850 such sale to a slave was prohibited by Chapter 72 § 7, RSMo 1845 ⁸ and this Court concluded the owner of the slave was entitled to recover damages because the proximate cause of the slave's death was the "providing" of the alcoholic beverage. Skinner, 13 Mo. at 443. Although, the existence of a duty not to furnish alcohol to the slave was not explicitly discussed, it can be assumed the statutory prohibition must have been considered when establishing such duty.

More recently, the Western District Court of Appeals held that the parents of an individual under twenty-one years of age who was served alcoholic beverages in two taverns and later was killed when his pickup truck overturned, stated a cause of action for wrongful death against the taverns. Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333, 337 (Mo.App.1981). A duty not to furnish alcoholic beverages to the decedent was found to exist because the purpose of § 311.310 was viewed as including not only the regulation of the liquor industry but also the protection of those under twenty-one years of age. Id. Relying upon its Sampson analysis, the Western District in Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981), held that a passenger in a car driven by an eighteen year old companion who had been served alcoholic beverages in a tavern could state a cause of action against the tavern for injuries she sustained when the two were involved in an automobile accident.

Consistent with Sampson and Nesbitt is the decision of the Eastern District Court of Appeals in Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983). The Carver plaintiffs were found to have stated a cause of action against a tavern owner for allegedly serving alcoholic beverages to an intoxicated individual who subsequently struck and killed their pedestrian family member. Id. at 575. While the Eastern District in Carver, unlike the Western District in Sampson and Nesbitt, relied on the application of general principles of common law negligence rather than a violation of § 311.310 to find the existence of a duty not to serve someone who was allegedly intoxicated, the court did look to § 311.310 as "indicative of Missouri public policy" in making its determination that the tavern owner had a duty not to supply an intoxicated individual. Id.

Though the preceding cases all involve commercial vendors of liquor by the drink, not social hosts, it is argued that by logical extension they support the respondents' position that the Local, a social host, had a duty either pursuant to § 311.310 or the common law not to furnish alcoholic beverages to the decedent. The Local contends, however, that the terms of recently enacted § 537.053 ⁹ (effective September 28 1985) bar any claim which respondents would otherwise be entitled to pursue in as much as § 537.053 explicitly "abrogate[s]" the latter three cases discussed above. It is maintained by the Local that the legislature made a policy choice in § 537.053 that the proximate cause of injuries connected with the providing of alcoholic beverages in both commercial and social settings is the consumption rather than the furnishing of the intoxicating substances. Contending that even if it (the Local) owed a duty to decedent, respondents' have failed to state a claim for relief because § 537.053 mandates finding an absence of proximate cause.

Section 537.053.1 provides that "[s]ince the repeal of the Missouri Dram Shop Act in 1934 ... it has been and continues to be the policy of this state ... to prohibit dram shop liability" ¹⁰ because the "furnishing [of] alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons." The Local's reliance upon § 537.053.1 is misplaced as the terms of § 537.053.1...