Juliano v. Simpson

• Citation: 962 N.E.2d 175,461 Mass. 527
• Decision Date: 21 February 2012
• Docket Number: SJC–10843.
• Parties: Mark JULIANO & others 1 v. Peter SIMPSON & another.2
• Court: United States State Supreme Judicial Court of Massachusetts

461 Mass. 527

962 N.E.2d 175

Mark JULIANO & others 1

v.Peter SIMPSON & another.2

SJC–10843.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted Sept. 6, 2011.Decided Feb. 21, 2012.

Richard P. Campbell, Boston, for the plaintiffs.

Robert P. Powers (Andre A. Sansoucy & Christopher D. George with him), Boston, for the defendants.

The following submitted briefs for amici curiae:Andrew M. Abraham, Boston, Thomas J. Carey, Jr., & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys.Mark W. Shaughnessy, Nicholas B. Kosiavelon, Boston, & Jeffrey E. Dolan for Matthew Dusseault.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

We are asked to enlarge the scope of social host liability under our common law by extending a duty of care to an underage host who does not supply alcohol to underage guests, but provides a location where they are permitted to consume it. For the reasons stated herein, we decline to do so, and reaffirm that liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol.³

1. Background. Sixteen year old Rachel Juliano suffered serious injuries when the automobile in which she was a passenger struck a utility pole. She and the driver of the automobile, nineteen year old Christian Dunbar, had just left a party hosted by the defendant, nineteen year old Jessica A. Simpson, where Dunbar consumed alcoholic beverages he had obtained earlier that evening and brought to Jessica's house. Jessica's father, Peter Simpson, was not home at the time of the party, leaving Jessica in sole control of the premises. ⁴

Juliano and her parents filed a complaint in the Superior Court, initially naming only Dunbar and Peter Simpson as defendants but later adding others, including Jessica Simpson.⁵ The plaintiffs asserted that the defendants were liable on various claims under principles of common-law negligence.⁶ After a majority of counts against the Simpsons were dismissed on summary judgment, the plaintiffs amended their complaint to assert additional claims against Peter and Jessica. In relevant part, the plaintiffs alleged that Jessica was negligent for knowingly allowing Dunbar and other underage persons to possess alcohol on property under her control—conduct that the plaintiffs claimed violated G.L. c. 138, § 34 (statute). ⁷ The Superior Court judge who had earlier granted the Simpsons' motion for summary judgment ruled, sua sponte, that the plaintiffs had presented insufficient evidence to support their allegations of social host liability. The judge dismissed the new claims and ordered entry of separate and final judgment on them, permitting this appeal to proceed while the claims against other defendants remain pending. See Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). We granted the plaintiffs' application for direct appellate review of the dismissed social host liability claims against Jessica.⁸

2. Standard of review. In dismissing the claims now before us, the Superior Court judge relied on the record that had been the basis for her earlier summary judgment. Because her memorandum of decision considers facts beyond those in the pleadings, we treat the order of dismissal as one for summary judgment. See, e.g., Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 292, 475 N.E.2d 727 (1985).

We review a grant of summary judgment de novo to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991).

3. Facts. We set forth the relevant facts drawn from the summary judgment record, viewed in the light most favorable to the nonmoving party, here the plaintiffs.⁹ See Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006).

On July 2, 2007, Jessica invited several friends, including Dunbar, to a party at her home while her father was away. Dunbar attended with Juliano, his then girl friend. On their way to the party, Dunbar obtained a “thirty-pack” of beer and a bottle of rum at a package store.¹⁰ They arrived at the Simpson residence between 6 p.m. and 8 p.m.,¹¹ and Dunbar brought the alcohol that he had procured into the house.

Over the course of the evening, Dunbar consumed one or two mixed drinks and six or seven of the cans of beer that he had brought to the party. Jessica drank beer as well, from a supply that she had obtained earlier. Although there were some alcoholic beverages belonging to Peter in the house, Jessica neither consumed those beverages nor offered them to her guests. Jessica stayed in the company of her guests throughout the evening. At one point, an uninvited attendee began to engage in antagonistic behavior toward her, pouring beer onto the floor inside the house; Jessica ordered him to leave, and he did.

Sometime before 11 p.m., Dunbar and Juliano began to argue outside the house. They were loud enough to draw the attention of several guests, as well as Jessica, who went out to investigate. Juliano pushed Dunbar, and a friend of his intervened, removing Dunbar to another part of the property while Jessica spoke alone with Juliano. Soon afterward, Juliano and Dunbar prepared to leave the party. Concerned that Dunbar was still upset from the argument and that Juliano had consumed too much alcohol to drive, Jessica proposed that she drive the two home. Juliano agreed not to drive herself, but Dunbar insisted that he take Juliano home. At approximately 11 p.m., Dunbar and Juliano left the Simpson residence with Dunbar driving. Shortly thereafter, the automobile struck a utility pole, causing injuries to both Dunbar and Juliano.¹²

4. Discussion. The plaintiffs argue that common-law social host liability should attach in these circumstances. They rely primarily on the Legislature's enactment of G.L. c. 138, § 34, which proscribes the “furnish [ing]” of alcohol to a person under the age of twenty-one, and defines furnishing as “knowingly or intentionally supply[ing], giv[ing], or provid[ing] to or allow[ing] a person ... to possess alcoholic beverages on premises or property owned or controlled by the person charged.”

As an initial matter, we note that the statute neither expressly nor implicitly establishes a tort claim for social host liability. The statute is criminal on its face, providing that a violation is punishable by up to one year in prison and a $2,000 fine. Where, as here, a statute makes no express provision for a private right of action, legislative intent determines whether a private right may be inferred. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543, 689 N.E.2d 799 (1998). No intent to create a private right of action appears either in the text of the statute or in its legislative history. Indeed, the preamble to the 2000 amendment adding the relevant language declared that the purpose of that act was “to strengthen forthwith the criminal laws relative to the sale of alcoholic beverages to minors,” St.2000, c. 175, with no reference to civil liability.¹³

Nor can a social host's liability be established merely by proving that a defendant's conduct violated G.L. c. 138, § 34. The Commonwealth does not follow the doctrine of negligence per se, whereby the standard of lawful conduct in a criminal statute also sets a standard of care for tort actions and thus violation of a statute, without more, may establish a breach of duty. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358–359, 557 N.E.2d 1166 (1990). “Rather, violation of a statute ... is only ‘some evidence’ of the defendant's negligence as to all consequences the statute was intended to prevent.” Id. at 359, 557 N.E.2d 1166, quoting Cimino v. Milford Keg, Inc., 385 Mass. 323, 327, 431 N.E.2d 920 (1982). A duty of care must already exist before a plaintiff can use a defendant's statutory violation to support a claim of tort liability. See, e.g., Cremins v. Clancy, 415 Mass. 289, 295, 612 N.E.2d 1183 (1993); Ulwick v. DeChristopher, 411 Mass. 401, 408, 582 N.E.2d 954 (1991).

Because a violation of G.L. c. 138, § 34, would not itself establish that Jessica committed a breach of a duty of care, the plaintiffs' claims may proceed only if a social host's duty under our common law encompasses her conduct: knowingly allowing underage guests to possess alcohol in her home. The extent of that duty “is a question of law ... to be determined by reference to existing social values and customs and appropriate social policy” (citations omitted). Wallace v. Wilson, 411 Mass. 8, 12, 575 N.E.2d 1134 (1991).

To provide the context in which the claims before us arise, we begin by reviewing the development of social host liability in the Commonwealth. We first recognized that common-law tort liability may be imposed on social hosts in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986) ( McGuiggan ). In subsequent decisions, we have exercised caution when asked to expand on the duty we identified in that case, and consistently have found a duty only where a host either serves alcohol to guests or effectively controls the supply of alcohol.

We held in McGuiggan that a social host, who had served alcoholic beverages to guests at a party, was not liable for injuries sustained in a drunk driving accident caused by a guest, where there was no evidence that the guest had exhibited signs of intoxication when he was served drinks at the party. Id. at 161–162, 496 N.E.2d 141. However, we stated, for the first time:

“We would recognize a social host's liability to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his...