Knight v. Rower

• Decision Date: 29 October 1999
• Docket Number: No. 98-400, No. 98-485.
• Citation: 742 A.2d 1237
• Court: Vermont Supreme Court
• Parties: Naomi "Sukie" KNIGHT, Administrator of the Estate of David Woodward, Naomi "Sukie" Knight, Individually, and Timothy N. Woodward v. Jacob ROWER, Kenneth Rower, Leslie S. Rower, Heather Pierson, Gidget Rollins, Sally Spear, Donald Leete, Duncan Leete and Geraldine Leete.

742 A.2d 1237

Naomi "Sukie" KNIGHT, Administrator of the Estate of David Woodward, Naomi "Sukie" Knight, Individually, and Timothy N. Woodward v. Jacob ROWER, Kenneth Rower, Leslie S. Rower, Heather Pierson, Gidget Rollins, Sally Spear, Donald Leete, Duncan Leete and Geraldine Leete.

Nos. 98-400, 98-485.

Supreme Court of Vermont.

October 29, 1999.

David F. Kelley, Orleans, and John F. Evers of Langrock Sperry and Wool, Middlebury, for Plaintiffs-Appellants.

Duncan Frey Kilmartin of Rexford & Kilmartin, Newport, for Defendant-Appellee Spear.

James C. Gallagher of Downs Rachlin & Martin, PLLC, St. Johnsbury, for Defendants-Appellees Leete.

Present AMESTOY, C.J., MORSE, JOHNSON and SKOGLUND, JJ., and

ALLEN, C.J. (Ret.),¹ Specially Assigned.

JOHNSON, J.

Plaintiffs appeal from two superior court decisions dismissing their negligence action against defendants for failure to state a claim upon which relief can be granted. David Woodward and Jacob Rower visited two separate properties, one owned by defendants Duncan and Geraldine Leete and the second owned by defendant Sally Spear. They consumed alcohol on defendants' lands. Woodward was a passenger in Rower's car as they left Spear's property and Rower caused an accident. Woodward died as a result of the crash. Plaintiffs are Woodward's mother, individually and as the administrator of his estate, and his father. In both cases, the court held that landowners do not owe a legal duty to individuals injured by minors attending social gatherings on their land if the landowners are neither present nor furnish the alcohol consumed. We affirm.

In reviewing the granting of a judgment on the pleadings pursuant to V.R.C.P. 12(c), this Court takes as true all well-pleaded factual allegations in the nonmovant's pleadings and all reasonable inferences to be drawn from them, and takes as false all contravening assertions in the movant's pleadings. See Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990). We will affirm a judgment on the pleadings if the movant's pleadings contain no allegations that, if proved, would permit recovery. See id.

Plaintiffs allege the following events. On the date in question, Jacob Rower was nineteen years old and David Woodward was seventeen. On July 4, 1996, Heather Pierson purchased alcohol for Rower and Woodward. In the afternoon of July 5th, Rower and Woodward went to a camp site on Hall's Lake in Newbury that was owned by defendants Duncan and Geraldine Leete, who were not there. Rower consumed alcohol and gave alcohol to Donald Leete, age forty-five, the son of Duncan and Geraldine Leete. Jacob Rower's car was parked in view of Donald Leete, and Donald knew or should have known that Rower intended to drive the car. Donald Leete had previously held various parties on his parents' property at which minors consumed alcohol. Plaintiffs also allege that Donald's parents knew that he had held large gatherings on their property where alcohol was consumed and that they knew that Donald regularly held a Fourth of July party where alcohol was present. Finally, plaintiffs claim that Duncan and Geraldine Leete knew or should have known that alcohol would be furnished to minors at the party on July 5, 1996.

Plaintiffs do not allege that Donald had ever held a party previous to July 5, 1996, at which minors were furnished with alcohol. They do not allege that Donald Leete knew that either Rower or Woodward was under the legal drinking age. Plaintiffs fail to allege that on July 5, 1996, Donald Leete furnished any alcohol to either Rower or Woodward. Plaintiffs do not allege that Duncan and Geraldine Leete were present at the party, nor do they allege that the elder Leetes provided any of the alcohol consumed there. They do not even allege that the elder Leetes knew of the party on July 5, 1996, only that they knew of other July Fourth parties in preceding years.

With regard to defendant Sally Spear, plaintiffs allege the following facts. On July 5, 1996, Rower and Woodward visited a mobile home in Newbury, Vermont occupied by Gidget Rollins, aged nineteen. The home was owned by defendant Sally Spear, Gidget Rollins's mother. Gidget Rollins knew or should have known that Rower and Woodward were under twenty-one. Rower and Woodward consumed alcohol on the Spear premises. They allege that Spear knew or should have known that her home was sometimes used by her daughter and other minors as a place to consume alcoholic beverages.

The pleadings do not allege that Gidget Rollins invited Rower and Woodward to come to the mobile home. They do not allege that Rollins furnished alcohol to Rower and Woodward. They fail to allege that Rower's car was present or visible from the Spear premises or that Rollins had any reason to know Rower intended to drive a car. Plaintiffs do not allege that Sally Spear was present on July 5, 1996. There is no allegation that Spear supplied any alcohol that was consumed on the premises. Nor do they allege that Spear had arranged the gathering in any way. Indeed, it is not clear from the pleadings whether Spear lived in the mobile home with her daughter or lived elsewhere. There is no allegation that Spear knew or should have known that minors would consume alcohol on her premises on July 5, 1996, only that she should have known that minors had consumed alcohol there "at various times."

Plaintiffs brought actions for negligent operation of a motor vehicle, negligent entrustment, and negligent supervision against Jacob Rower, the driver, and his parents, Kenneth and Leslie Rower. They also include as defendants Heather Pierson, who is alleged to have purchased alcohol for Rower and Woodward on July 4, Gidget Rollins and Donald Leete, who were present while the alcohol was consumed. Lastly, plaintiffs sued Sally Spear and Duncan and Geraldine Leete, the owners of property where Rower consumed alcohol. Gidget Rollins and Sally Spear moved for judgment on the pleadings and/or summary judgment; Duncan and Geraldine Leete moved for judgment on the pleadings. The trial court granted both motions for judgment on the pleadings, holding that property owners do not owe a duty to individuals injured by minors attending social gatherings on their property if the owners are neither present nor furnish the alcohol consumed. Because plaintiffs never alleged that Spear or the elder Leetes were present on July 5, 1996, or furnished the alcohol consumed, we agree that defendant-parents were entitled to judgment on the pleadings.

I.

Plaintiffs propose to extend social host liability to unprecedented reaches. Although social host liability evolved in response to the well-documented tragedies of drunk-driving accidents, we cannot justify expanding the meaning of "host" to encompass all property owners, at all times, regardless of whether they were present on their property and regardless of whether they had any opportunity for control.

The case usually cited as the origin of such a claim recognized the potential for social host liability only in dicta. See Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986). There, William Langle attended a party hosted by Walter Kurkul, Sr. and drank alcohol. Langle then went to Gary Kurkul's home to swim in his pool. While the plaintiff was preparing to dive from the railing of the pool, the railing broke and Langle fell headfirst into the pool. The accident broke Langle's neck and left him a quadriplegic. The plaintiff sued the Kurkuls, and the parties settled all claims except one for negligent serving of liquor. The remaining defendant, Walter Kurkul, Sr., moved to dismiss for failure to state a claim upon which relief can be granted under either the Dram Shop Act, or common law negligence. The trial court granted the motion and we affirmed. See id. at 515, 510 A.2d at 1302.

We interpreted the unambiguous language of the Dram Shop Act, 7 V.S.A. § 501, to provide a remedy only for third parties injured by drunk driving, not a remedy for the drunk person against the person who served the alcohol. See 146 Vt. at 515-16,510 A.2d at 1303. We rejected the holdings of some other jurisdictions that dram shop acts preempted common law remedies, see id. at 516, 510 A.2d at 1303 (citing Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153 (1961); Snyder v. Davenport, 323 N.W.2d 225 (Iowa 1982); and Browder v. International Fidelity Ins. Co., 413 Mich. 603, 321 N.W.2d 668 (1982)).

Second, we addressed the common law negligence action and found a social host had no duty under common law negligence to an intoxicated adult guest in factual situations not involving drunk driving. See Langle, 146 Vt. at 517-20, 510 A.2d at 1303-04. Without compelling policy reasons offered, we declined to impose a new duty of care on social hosts, "absent a situation where the social host furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile, or, where the social host furnishes alcoholic beverages to a minor." Id. at 521, 510 A.2d at 1306. Plaintiffs would have us extend this dictum referring to the duty of a social host to not furnish alcohol to minors, to all property owners on whose property minors might consume alcohol they have acquired by themselves.

The language of "furnishing" used in Langle derives from the Dram Shop Act and, therefore, to understand the cause of action we outlined in the dictum in Langle, we must turn to the interpretation of 7 V.S.A. § 501. To bring the facts in the instant case within the common law cause of action contemplated in Langle, plaintiffs would have to show that defendants (1) were social hosts who (2) "furnished" alcohol to Jacob Rower.

We need not answer the question of what is meant by "social host" because plaintiffs' claim fails to show that defendants "furnished" alcohol. We examined the meaning of "furnish" in Carrick v. Franchise Associates, Inc., 164 Vt. 418, 671 A.2d 1243 (1995). T...