Harriman v. Smith, 48357
| Decision Date | 28 June 1985 |
| Docket Number | No. 48357,48357 |
| Citation | 697 S.W.2d 219 |
| Parties | William HARRIMAN, Appellant, v. Frank S. SMITH, et al., Respondents. |
| Court | Missouri Court of Appeals |
Devereaux & Stokes, P.C., Michael D. Stokes, St. Louis, for appellant.
Sullivan & Watkins, Inc., Hiram W. Watkins, Clayton, for respondents.
Frank Smith, Margaret Smith, and Chris Smith, respondents herein, filed an amended motion to dismiss the amended petition of William Harriman, appellant, on the grounds that: (1) no claim for relief exists in Missouri entitling appellant to recover under a social host "dramshop" theory; (2) a judgment in a prior lawsuit with its subsequent acknowledgment and satisfaction of judgment barred appellant's cause of action; and (3) no authority supports appellant's claim for punitive damages in a wrongful death action. Based on respondents' motion, the trial court dismissed Harriman's amended petition with prejudice. Harriman appeals the court's dismissal. We affirm.
John Harriman, appellant's son, was killed in an automobile collision while he was a passenger in a car driven by Paul Morard, a minor. Appellant filed a two count wrongful death action against the respondents alleging, in pertinent paragraphs, in Count I: (1) respondents' actions of causing, allowing, and permitting alcohol to be served to obviously intoxicated persons and minor persons, which categories included Morard, were negligent and the direct and proximate cause of the collision; (2) respondents had a history of such activities in permitting alcoholic beverages to be served to minors and that minors living in the neighborhood and area were aware of these activities; and (3) respondents negligently, in violation of § 311.310 RSMo 1978, caused, allowed, and permitted alcoholic beverages to be served to minors, including Morard, and that these violations directly caused the death of appellant's son. In Count II, appellant sought punitive damages, alleging that respondents' actions were willful, wanton, malicious, and in conscious disregard of the safety of his son.
Prior to the commencement of this lawsuit, appellant and his wife Margaret Harriman had filed a wrongful death action arising out of the same automobile collision against Morard, the driver of the automobile. A settlement was entered in the action against Morard in the amount of $25,000.00; pursuant to § 537.095 RSMo 1978, the court entered a judgment memorandum for damages. Appellant and Margaret Harriman then executed an acknowledgment and satisfaction of judgment for the damages awarded pursuant to § 537.095 RSMo 1978. (All further references shall be to RSMo 1978 unless otherwise indicated.)
Appellant's first point raises error in the trial court's dismissal of his petition for failure to state a claim for relief. He contends his petition stated a claim for relief based upon: (1) a theory of common law negligence by his allegations that respondents negligently permitted intoxicating liquor to be served to an obviously intoxicated minor whose intoxicated condition caused injury to appellant's son, and (2) a theory of actionable negligence by his allegation that respondents violated § 311.310 in permitting intoxicating liquor to be served to a minor.
In reviewing the trial court's dismissal of appellant's petition for failure to state a claim upon which relief can be granted, the sole issue to be decided is whether, after giving the pleading its broadest intendment, treating all facts alleged as true, and construing all allegations favorably to plaintiffs, the averments invoke principles of substantive law entitling appellant to relief. Lowrey v. Horvath, 689 S.W.2d 625 (Mo.banc 1985).
At the onset, we note that appellant's argument for imposition of liability upon a social host for serving alcohol to an intoxicated guest who subsequently injures a third party presents a case of first impression in Missouri. Neither appellant nor our research has disclosed any Missouri cases directly on point.
Appellant seeks to extend the holding in Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983) to include social hosts. In Carver, this court held that a common law negligence action exists against a tavern owner for negligently serving liquor to an intoxicated person who subsequently causes injury to a third person. 647 S.W.2d at 575. Appellant argues that the same rationale underlying our holding in Carver applies to the liability of a social host who serves alcohol to a guest in his home. We disagree.
Carver made clear that this court was not precluded from changing the common law doctrine shielding vendors from liability. At common law, no cause of action existed against one who furnished, by sale or gift, intoxicating liquor to a person who became voluntarily intoxicated and consequently injured another. Id. at 572. The notion was at common law that the consumption of the alcohol, and not its furnishing, was the proximate cause of an injury. Id. Becaue Missouri had no dramshop act, unlike some of its sister states, this court recognized that tort law issues under certain circumstances are proper aspects for judicial reform. Id. at 573. In so doing, we were aware in Carver of numerous other states which had considered the issue of a tavern owner's negligence in serving liquor to a visibly intoxicated patron and recognized common law negligence actions under similar facts. Id. at 572 n. 1. Since our legislature had not responded to a compelling issue by enacting a dramshop act, this court was constrained in Carver to fashion a remedy to correct the injustices being visited upon an innocent victim. In so doing, we acknowledged that additional arguments, notwithstanding public policy, might weigh in favor of not imposing liability on "the host of a social gathering." Id. at 574.
To accept appellant's view would place upon a social host a duty owed business invitees. As a social guest, appellant's son occupied the status of a licensee, not a business invitee. Wells v. Goforth, 443 S.W.2d 155, 156 (Mo.banc 1969). The operator of a place of a public resort, such as a tavern owner, has a higher duty of care. Guests, that is customers of a tavern owner, are business invitees. See Gregorc v. Londoff Cocktail Lounge, 314 S.W.2d 704, 707[5-7] (Mo.1958).
While differences between invitees, licensees, and trespassers with respect to the duty owed them by the possessor of land largely disappears once the presence of the visitor is known and a uniform duty, that of reasonable care, is owed to each as to the activities on the premises, Penberthy v. Penberthy, 505 S.W.2d 122, 126 (Mo.App.1973), distinctions based on status still remain. See Restatement (Second) of Torts §§ 341, 341A; W. Prosser and W. Keeton, Prosser and Keeton on the Law of Torts §§ 60, 61 (5th Ed.1984).
The rationale underlying the imposition of liability on a business dispenser of liquor substantially differs from imposition of liability on a non-business dispenser, the social host. Tavern owners, and other similarly situated business dispensers, realize a profit from dispensing alcoholic beverages to the public who frequent their place of business. They also insure against risk of loss as a cost of doing business. In contrast, the social host generally realizes no pecuniary gain from serving alcoholic beverages to a guest. Additionally, a tavern owner profits from his patrons' individual capacities to consume alcoholic beverages. The social host derives no particular benefit from the amount of alcoholic beverage consumed.
Another distinction between licensed vendors and social hosts is based on the governmental interest which supports the statutory requirement that business vendors of alcohol be licensed. The element of control exercised by a licensed vendor concomitant with his expertise in determining intoxication is vastly superior to the social host's control and expertise.
There is, and should be, a legitimate concern for the problem of drunken driving but the extension of liability to a social host opens the door to areas of the law yet unexplored having a substantial impact on a person's everyday social and family affairs. We recognize that under this fact pattern, principles of common law negligence could be extended to impose a duty on the social host. At this time, however, we conclude that the legislature should be the determinant of any such duty and its parameters. The legislature is better equipped to deal with myriad considerations. The...
To continue reading
Request your trial
-
Hansen v. Friend
...Ill.App.3d 496, 53 Ill.Dec. 919, 424 N.E.2d 710, cert. denied, 85 Ill.2d 578, 62 Ill.Dec. 171, 435 N.E.2d 1143 (1981); Harriman v. Smith, 697 S.W.2d 219 (Mo.App.1985). It has also been held that no liability can lie against a social host for injuries to the minor consumer. See Martin v. Pal......
-
Burkhart v. Harrod
...a legislative response rather than a judicial response is the more appropriate answer under these circumstances. Harriman v. Smith, 697 S.W.2d 219, 222 (Mo.Ct.App.1985). Finally, the only indication we have of legislative intent reveals a disinclination to impose social host liability. The ......
-
McGuiggan v. New England Tel. & Tel. Co.
...various differences sufficient to justify imposing a duty on licensed vendors but not on social hosts. See, e.g., Harriman v. Smith, 697 S.W.2d 219, 221 (Mo.Ct.App.1985); i Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St.3d 123, 127, 464 N.E.2d 521 (1984). Others have considered t......
-
Hickingbotham v. Burke
...host. Social hosts, unlike licensees, lack pecuniary motives in their decisions to serve alcohol to guests. See Harriman v. Smith, 697 S.W.2d 219, 221 (Mo.Ct.App.1985). In addition, commercial vendors generally can monitor more closely, and are better trained at monitoring, consumption by t......
-
Grab a drink and pass the blame: an argument against social host liability.
...to come to his rescue."). (98) 912 P.2d 1248, 1249-50 (Alaska 1996). (99) Id. at 1254. (100) Id. (101) See generally, Harriman v. Smith, 697 S.W.2d 219, 221 (Mo. Ct. App. 1985) ("[T]he extension of liability to a social host opens the door to areas of the law yet unexplored having a substan......