Burkhart v. Harrod

• Decision Date: 05 May 1988
• Docket Number: No. 52839-0,52839-0
• Citation: 110 Wn.2d 381,755 P.2d 759
• Parties: , 56 USLW 2655 Linda Sue BURKHART, Personal Representative of the Estate of Michael Burkhart, deceased; and Heather Noell Burkhart and Holly Ann Burkhart, minors, by and through their Guardian ad Litem, Linda Sue Burkhart, Appellants, v. Gary HARROD and Jane Doe Harrod, husband and wife, and the marital community composed thereof, Respondents.
• Court: Washington Supreme Court

Page 381

110 Wn.2d 381

755 P.2d 759, 56 USLW 2655

Linda Sue BURKHART, Personal Representative of the Estate of Michael Burkhart, deceased; and Heather Noell Burkhart and Holly Ann Burkhart, minors, by and through their Guardian ad Litem, Linda Sue Burkhart, Appellants, v. Gary HARROD and Jane Doe Harrod, husband and wife, and the marital community composed thereof, Respondents.

No. 52839-0.

Supreme Court of Washington En Banc.

May 5, 1988.

Royce A. Ferguson, Jr., Everett, for appellants.

Reed, McClure, Moceri, Thonn & Moriarty, William R. Hickman, Pamela A. Okano, Karin L. Nyrop, Seattle, for respondents.

DURHAM, Justice.

Under this state's common law, commercial furnishers of alcohol who serve "obviously intoxicated" customers can be held liable for damages caused by that intoxication. We are asked to extend this principle to impose liability on hosts of social parties who provide alcohol for their guests. We decline to do so. If social host liability is to be imposed in Washington, it should be done through the Legislature which has greater ability to fully explore the spectrum of competing societal interests.

I

Michael Burkhart was to have been the best man at the wedding of Charles and Denise Bonfante. On July 21, 1985, Burkhart participated in a wedding rehearsal and then attended the dinner party that followed. The party was held at the house of the groom's sister and brother-in-law, Suzanne and Gary Harrod. Burkhart arrived with the other guests between 2 and 2:30 p.m. For the first half hour, Gary Harrod mixed drinks for the guests, and thereafter the bar was open for guests to mix their own drinks. Available at the bar were wine, beer, scotch, bourbon, vodka and assorted nonalcoholic beverages. According to all seven affidavits filed by members of the groom's family, Burkhart consumed "a few" alcoholic drinks during the day, but he never appeared intoxicated. Dinner was served at 4:30 p.m. Most of the guests left at 6:30, but Burkhart stayed to watch the opening of wedding gifts and to help clean up. Burkhart drank at least one beer during the cleanup.

Around 9 p.m., the bride and groom left the party and drove to the groom's house. Burkhart followed them part of the way on his motorcycle, but then stopped at a store while the bride and groom continued on. A motorist later noticed that Burkhart was operating his motorcycle aggressively and erratically. A short time later, around 10 p.m., Burkhart's motorcycle left the roadway and struck a power pole, killing him instantly. At the time of the accident, Burkhart's blood alcohol content was .16 percent.

Linda Sue Burkhart, Michael's wife, brought a wrongful death action against the Harrods for negligently furnishing alcohol to an obviously intoxicated person. The trial judge granted summary judgment to the Harrods, holding that there is no social host liability in this state. We affirm.

II

This court has adopted the common law rule that furnishers of alcohol are not liable for damages caused by the intoxication of the persons they serve. Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969). The common law rule, however, has exceptions, so that an action will still lie if alcohol is furnished to a person who is obviously intoxicated, helpless, or in a special relationship to the furnisher of the alcohol. Young v. Caravan Corp., 99 Wash.2d 655, 658, 663 P.2d 834, 672 P.2d 1267 (1983); Wilson v. Steinbach, 98 Wash.2d 434, 438, 656 P.2d 1030 (1982). These principles recently have been reaffirmed. Dickinson v. Edwards, 105 Wash.2d 457, 461, 716 P.2d 814 (1986).

Liability has been imposed under these rules to commercial hosts ( see, e.g., Purchase v. Meyer, 108 Wash.2d 220, 228-29, 737 P.2d 661 (1987); Young v. Caravan Corp., supra ) and to quasicommercial hosts, i.e., those who did not sell alcohol but who otherwise had business interests in furnishing alcohol to their guests. See Dickinson v. Edwards. However, this court never has held that a purely social host can be liable for furnishing alcohol. ¹ See Dickinson, at 471, 716 P.2d 814 (Utter, J., concurring).

There are strong arguments both for and against social host liability. Proponents point first of all to the need to compensate victims injured by drunk drivers. See Kelly v. Gwinnell, 96 N.J. 538, 551, 476 A.2d 1219 (1984). Additionally, social host liability arguably could reduce the frequency of drunk driving by requiring hosts to use greater care in serving alcohol at social gatherings. See Kelly, at 551-52, 476 A.2d 1219.

On the other hand, opponents stress the potentially substantial financial liability that social hosts would face, as well as the heavy burden that would be placed on social hosts to regulate guests' alcohol consumption. This duty to regulate the drinking of others would raise a series of problematic questions for social hosts. How is a social host, inexperienced at judging the extent to which others have become intoxicated, to decide the course of his own actions? Must the host determine if a guest has been drinking before arriving at the party? Can the host determine if a guest is drinking on an empty stomach? What if a guest is taking prescribed medication or using illegal drugs? Must the host count the number of drinks that each guest consumes? Is it necessary to gauge a guest's weight and height in order to determine allowable amounts of alcohol? May guests be allowed to mix their own drinks, or should the host tend the bar himself to monitor consumption? Must the host refrain from drinking in order to better supervise the guests? Must the host determine which of its guests will be driving home? Before guests depart, should the host conduct sobriety tests, asking them to recite the alphabet or walk a straight line? If an intoxicated guest insists on driving home, how far can the host go in preventing him from doing so? Must he offer to pay for a taxi or put the guest up for the night? As one court has noted, the implications of social host liability are "almost limitless". Edgar v. Kajet, 84 Misc.2d 100, 103, 375 N.Y.S.2d 548 (1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976).

The nature of the judicial role prevents us from capably deciding the relative merits of social host liability. Evaluating the overall merits of social host liability, with its wide sweeping implications, requires a balancing of the costs and benefits for society as a whole, not just the parties of any one case. Yet because judicial decisionmaking is limited to resolving only the issues before the court in any given case, judges are limited in their abilities to obtain the input necessary to make informed decisions on issues of broad societal impact like social host liability. In this regard, we fully concur in the statement that " 'of the three branches of government, the judiciary is the least capable of receiving public input and resolving broad public policy questions based on a societal consensus.' " Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla.1987) (quoting Shands Teaching Hosp. & Clinics, Inc. v. Smith, 497 So.2d 644, 646 (Fla.1986)). It is for this very reason that public policy usually is declared by the Legislature, and not by the courts. See Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494 (1981).

The Legislature is uniquely able to hold hearings, gather crucial information, and learn the full extent of the competing societal interests. It can balance the relative importance of compensating the victims of drunk drivers with the burdens that liability would place on social hosts. Time can be taken to investigate a whole range of issues that are not before the court in any given case, such as the amount of damage caused by drunk drivers, the percentage of that damage for which a social host was at some point involved the extent to which automobile insurance of all types already provides a remedy to victims, the effect that the added liability would have on homeowners' and renters'insurance rates, the possibilities of alternative remedies such as having drunk drivers contribute to a statewide fund for victims, the possibilities of limiting the host's liability, and proscribing standards of conduct for social hosts. If substantial financial liability is to be attached to the hosting of a social gathering, heretofore considered an innocuous act, it should only be done after careful consideration of all the effects on society and it should be imposed as a comprehensive measure. The Legislature can do this, we cannot.

III

We cannot simply hand this case off to the Legislature, however. We must involve ourselves to some degree in the debate on social host liability, recognizing that our decision here effectively will add fuel to one side's fire. There is good reason to withhold common law liability for social hosts even though such liability already exists for commercial and quasi-commercial hosts. Social hosts are not as capable of handling the responsibilities of monitoring their guests' alcohol consumption as are their commercial and quasi-commercial counterparts. In this regard, we agree with the reasoning of the Ohio Supreme Court:

We find merit in appellee's assertion that a social provider of intoxicating beverages should not be held to the same duty of care that a commercial proprietor is subject to under [Ohio case law]. As the appellee points out, the commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (non-commercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so.

Settlemyer v. Wilmington Veterans Post 49, Am. Legion, Inc., 11 Ohio St.3d 123, 127, 464 N.E.2d 521 (1984).

Additionally, the implications of social host liability are so much more wide sweeping and unpredictable in nature than are the implications of commercial host...