Hickingbotham v. Burke

• Decision Date: 24 July 1995
• Docket Number: No. 93-237,93-237
• Citation: 662 A.2d 297,140 N.H. 28
• Parties: Joseph HICKINGBOTHAM v. Bonnie BURKE and Mark Vemullan.
• Court: New Hampshire Supreme Court

Page 297

662 A.2d 297

140 N.H. 28

Joseph HICKINGBOTHAM v. Bonnie BURKE and Mark Vemullan.

No. 93-237.

Supreme Court of New Hampshire.

July 24, 1995.

Boutin & Solomon, P.A., Londonderry (Peter M. Solomon, orally and on the brief, and Thomas J. Corcoran, on the brief), for plaintiff.

Devine, Millimet & Branch, P.A., Manchester (Richard E. Mills, orally and on the brief, and Richard W. Head, on the brief), for defendant Bonnie Burke.

Mark Vemullan, pro se, filed no brief.

BROCK, Chief Justice.

The plaintiff, Joseph Hickingbotham, sued the defendants, Bonnie Burke and Mark Vemullan, alleging that they, as social hosts, were liable for injuries he suffered after they served him alcohol at a party held at their home. Hickingbotham appeals from the Superior Court's (Lynn, J.) grant of defendant Burke's motion to dismiss the plaintiff's claim for failure to state a cause of action. Vemullan is in default. We affirm in part, reverse in part and remand.

In October 1990, Burke and Vemullan hosted a Halloween party at their residence in Windham. Hickingbotham's writ alleges that the defendants offered him intoxicating beverages during the party, including beer from a keg, and continued to provide him with alcohol throughout the evening, even though they knew or should have known that he was under the age of twenty-one and becoming increasingly intoxicated. The writ further alleges that after he became intoxicated, Hickingbotham left the party in a motor vehicle and was involved in an accident. He asserts that he is entitled to damages based on the defendants' violation of a statutory duty of care imposed by RSA 179:5 (1994). He also contends that he is entitled to damages because the defendants owed a common law duty of care to monitor prudently his consumption of alcohol and their failure to meet that duty directly, foreseeably, and proximately caused his motor vehicle accident.

When we review the superior court's decision on a motion to dismiss, our standard of review is "whether the [plaintiff's] allegations ... are reasonably susceptible of a construction that would permit recovery." Thompson v. Forest, 136 N.H. 215, 216, 614 A.2d 1064, 1065 (1992) (quotation omitted). We "assume the truth of the plaintiff's well pleaded allegations of fact and ... construe all reasonable inferences from them most favorably to the plaintiff." Island Shores Estates Condo. Assoc. v. City of Concord, 136 N.H. 300, 303, 615 A.2d 629, 631 (1992).

I. Statutory Cause of Action under RSA 179:5

Hickingbotham argues that RSA 179:5 imposes a statutory duty on the defendants for the breach of which they may be held liable to respond in damages. RSA 179:5 states that "[n]o licensee, sales person, nor any other person, shall sell or give away or cause or allow or procure to be sold, delivered or given away any liquor or beverage to a person under the age of 21 or to a person under the influence of liquor or beverage." (Emphasis added.) This section prohibits the conduct that Hickingbotham alleges. See State v. Small, 99 N.H. 349, 351, 111 A.2d 201, 202-03 (1955) (construing RL 170:39, the precursor to RSA 179:5).

Nothing in RSA chapter 179 or in New Hampshire's comprehensive statutory framework for controlling the production and distribution of intoxicating liquors authorizes this type of claim, however. The only penalties imposed by RSA chapter 179 are the suspension of liquor licenses, forfeiture, administrative fines, and criminal penalties. See, e.g., RSA 179:57 (Supp.1994) (authorizing suspension or revocation of license, administrative fines for violation of RSA chapter 179); RSA 179:58, I (1994) (providing criminal penalty for violation of RSA 179:5).

In Ramsey v. Anctil, 106 N.H. 375, 376, 211 A.2d 900, 901 (1965), we allowed an injured patron to proceed with a common law negligence action for injuries received as a result of being served additional liquor, while intoxicated, by a liquor licensee. After noting that the statutory provision provided criminal penalties for its violation, we declined to authorize an implicit, statutory right of action based on the same violation, holding instead that violation of the statute was "evidence of negligence." Id.; see also Elks Lodge v. Hanover Ins. Co., 110 N.H. 324, 326, 266 A.2d 846, 847 (1970) (The precursor to RSA 179:5 did not "impose civil liability, although a violation [of the statute was] evidence of negligence."). But see Weldy v. Town of Kingston, 128 N.H. 325, 331, 514 A.2d 1257, 1260 (1986) (finding that former RSA 180:2, now codified at RSA 179:2 (1994), imposes a statutory duty of care upon police officers to arrest teenagers discovered illegally transporting alcohol). The statute we considered in Ramsey and in Elks Lodge, RSA 175:6 (1990), was virtually identical to RSA 179:5. We see no reason to reach a different result today than we did in those cases. Accordingly, we hold that RSA 179:5 grants no civil right of action based on its violation.

II. Common Law Negligence Cause of Action

Whether this court should recognize social host liability based upon common law negligence principles is an issue of first impression in New Hampshire. Most jurisdictions that have considered the issue of social host liability, whether to an injured intoxicated guest or an injured innocent third party, have decided the question in favor of the social host. 1 J. Lee & B. Lindahl, Modern Tort Law § 3.12 (rev. ed. 1990).

The prevailing rule at common law was "that there [could] be no cause of action ... against one furnishing liquor in favor of those injured by the intoxication of the person so furnished." Elks Lodge, 110 N.H. at 325, 266 A.2d at 847. The reason for this rule was "that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the ... donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it." Ely v. Murphy, 207 Conn. 88, 540 A.2d 54, 56-57 (1988) (quotation omitted); see also Elks Lodge, 110 N.H. at 326, 266 A.2d at 847 (noting that another reason supporting the common law rule is that the consumption of alcohol is the proximate cause of the injury ). The act of drinking the liquor was thus viewed as an intervening cause that shielded a defendant from liability. See Restatement (Second) of Torts §§ 440, 441 (1964).

In response to this apparent absence of a remedy for injury caused by intoxication, in 1870 the New Hampshire General Court enacted a statute "relating to the sale of spirituous liquors." Laws 1870, ch. 3. This civil damage statute imposed upon providers of alcohol strict liability for injuries caused by persons in "a state of intoxication." Id.; see Elks Lodge, 110 N.H. at 326, 266 A.2d at 847; Hoyt v. Tilton, 81 N.H. 477, 480, 128 A. 688, 689 (1925).

In response to the repeal of Prohibition, see U.S. CONST. amend. XXI, § 1, New Hampshire repealed the civil damage law in 1934 and replaced it with a comprehensive web of regulations covering every aspect of the traffic and consumption of alcohol. Laws 1934, ch. 3. The prohibition against giving or selling alcohol to minors or intoxicated people found in the 1934 enactment has remained virtually unchanged. Compare id. § 31 with RSA 179:5 (1994).

In Ramsey, 106 N.H. at 376, 211 A.2d at 901, we held that the 1934 repeal of our civil damage statute did not abrogate common law negligence principles. After stating that violation of the precursor to RSA 179:5 was evidence of negligence, we held that a plaintiff could maintain a common law negligence action for injuries received as a result of being served additional liquor, while intoxicated, by a liquor licensee. Id.; see also Burns v. Bradley, 120 N.H. 542, 544, 419 A.2d 1069, 1071 (1980). We have recognized a common law action against dram shops for both the injured intoxicated patron, see Ramsey, 106 N.H. at 376, 211 A.2d at 901, and those third parties who have been injured by the intoxicated patron, see Elks Lodge, 110 N.H. at 326, 266 A.2d at 847.

We have never addressed whether a plaintiff may proceed against a social host, rather than a person or organization licensed under the New Hampshire statutes. In Ramsey, we approved of the reasoning of several cases from other jurisdictions, including Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), when we authorized a common law negligence action against licensees. Ramsey, 106 N.H. at 376, 211 A.2d at 901. The Rappaport court made it clear that it considered important the distinction between "persons ... engaged in the liquor business" and persons not so engaged. Rappaport, 156 A.2d at 10.

Since the repeal of Prohibition, "virtually every aspect of the manufacture, sale and distribution of alcoholic beverages has been regulated by the legislature." Overbaugh v. McCutcheon, 183 W.Va. 386, 396 S.E.2d 153, 158 (1990). Social hosts and licensees alike are subject to criminal penalty for violation of New Hampshire's liquor control statutes, although our legislature has chosen to treat social hosts and licensees differently in the context of penalties for violation of the statutes: RSA 179:58 provides that a violation of chapter 179's provisions constitutes a felony if the actor is a licensee, but a misdemeanor if the actor is any other person.

When the legislature enacted comprehensive tort reform measures in 1986, it included RSA chapter 507-F, a dram shop act which preempted the common law right of action against licensees. Laws 1986, ch. 227; RSA 507-F:8 (Supp.1994). No provision is made in the act for an action against a social host. See RSA 507-F:3 (Supp.1994) (defining a "defendant" under the chapter as "any person licensed or required to be licensed" pursuant to RSA 178:1, I, and any employees of such person). On the other hand, because we had not recognized explicitly a common law right of action against a social host, there was no action to preempt. Cf. RSA 507...