McGuiggan v. New England Tel. & Tel. Co.

• Decision Date: 06 August 1986
• Citation: 496 N.E.2d 141,398 Mass. 152
• Parties: , 55 USLW 2129 Daniel E. McGUIGGAN, Administrator, 1 v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY; City of Peabody et al., 2 third-party defendants.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

496 N.E.2d 141

398 Mass. 152, 55 USLW 2129

Daniel E. McGUIGGAN, Administrator, ¹ v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY City of Peabody et al., ² third-party defendants.

Supreme Judicial Court of Massachusetts Essex.

Argued April 8, 1986.

Decided Aug. 6, 1986.

Bartlett Leber Thomas, Boston, for New England Tel. & Tel. Co.

Deirdre H. Harris (Richard L. Neumeier and John J. Mahoney, Boston, with her), for Daniel E. McGuiggan & another, third-party defendants.

Before WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We consider, on direct appellate review, whether a social host who furnished alcoholic beverages to an adult guest may be liable for a death caused shortly thereafter by that guest's negligent operation of a motor vehicle while under the influence of alcohol. We conclude that, although in certain circumstances liability properly could be imposed on such a social host, on the facts presented on the social hosts' motion for summary judgment, they are not liable. We, therefore, affirm the separate judgment (see Mass.R.Civ.P. 53[b], 365 Mass. 820 [1974] ) entered in favor of the McGuiggans.

The McGuiggans held a high school graduation party for their eighteen year old son Daniel on June 11, 1978. Perhaps thirty people were present, most of whom were relatives considerably older than Daniel. Four of his contemporaries, including eighteen year old James Magee, were also present. Several people acted as bartender serving alcoholic beverages provided by the McGuiggans at a bar in the cellar playroom, and guests also served themselves. Mr. McGuiggan testified on deposition that he may have given Magee one drink when he arrived, but thereafter did not see him drinking and did not know how many drinks Magee had. He claimed that Magee seemed perfectly normal just before he left their home. Mrs. McGuiggan testified on deposition that she had spoken to Magee before he left with her son and the three other young guests to drive David Doherty home. She knew Magee was driving and would have said something to him if she had believed him incapable of driving. Other passengers in the vehicle confirmed that Magee seemed sober. ³ Magee, however, admitted that he had had four or five rum-cokes that evening and that he was "pretty sure" he later pleaded guilty to a charge of operating under the influence.

While traveling with his friends in the vehicle driven by Magee on Lowell Street in Peabody, shortly after leaving the party, Daniel McGuiggan became sick to his stomach and leaned his head and upper body out of a window of the vehicle. Daniel's head apparently struck a cement post which the defendant telephone company maintained inside the curb to mark the location of an underground conduit. Daniel died at a local hospital about four hours later. ⁴

Approximately three hours after Magee left the party, a breathalyzer test administered to Magee recorded a value of .140. According to an affidavit of a physician submitted on the summary judgment motion, in the circumstances, a person who registered a .140 value on a breathalyzer test three hours after his last drink would have had a blood alcohol content of between .185 and .215 three hours earlier. Unless tolerant to alcohol, a person with a blood alcohol content over .10 would be recognizably intoxicated, and one with a blood alcohol content of between .185 and .215 would be unmistakably intoxicated. No evidence indicated when Magee ate his dinner or when he took his last drink or how strong it was.

The claim against the McGuiggans is based on common law principles and does not rely in any respect on a statutory violation. Under traditional common law tort analysis, our inquiry is whether a social host violated a duty to an injured third person by serving an alcoholic beverage to a guest whose negligent operation of a motor vehicle, while adversely affected by the alcohol, caused injury to a third person. Such an inquiry would require us to consider whether the social host unreasonably created a risk of injury to a person who the social host should reasonably have foreseen might be injured as a result of the guest's intoxication. If a social host acted negligently in serving an alcoholic beverage to a guest when there was such a foreseeable risk of injury to another and injury resulted from the guest's negligence caused by his intoxication, the law would ordinarily impose liability in tort on the social host, barring some statutory restriction or consideration of public policy weighing against the imposition of a duty in the circumstances.

Although this court has never announced a common law rule on the issue, the traditional view supported by the weight of authority has been that the drinker's voluntary consumption alone is the "proximate" cause of the third party's injury and that a person who sold or gave liquor to an intoxicated adult drinker is not liable for subsequent injuries caused by his intoxication. See Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507 (1983), where cases are collected. See also DeLoach v. Mayer Elec. Supply Co., 378 So.2d 733, 735 (Ala.1979). Contra Nehring v. LaCounte, 712 P.2d 1329, 1335 (Mont.1986) (abandoning its adherence to this view, court described its past position as a "Neanderthal approach to causation"). Other courts have concluded simply as a matter of policy that the subject of tort liability is best determined by the legislature. See Boutwell v. Sullivan, 469 So.2d 526, 529 (Miss.1985); Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St.3d 123, 127, 464 N.E.2d 521 (1984). Cf. Holmquist v. Miller, 367 N.W.2d 468, 471-472 (Minn.1985) (legislative action rendering ineffective prior decisions imposing liability on social hosts requires conclusion that social host not liable at common law). ⁵

In the case of licensed vendors, neither the "proximate cause theory" nor the concept of deference to the Legislature has attracted this court's favor. This court has held that a licensed commercial vendor of alcoholic beverages owes a duty to a third person who is injured in a motor vehicle accident caused by the negligence of a customer to whom the vendor sold a drink when he knew or reasonably should have known the customer was intoxicated. Cimino v. Milford Keg, Inc., 385 Mass. 323, 327, 431 N.E.2d 920 (1982). In Adamian v. Three Sons, Inc., 353 Mass. 498, 500, 233 N.E.2d 18 (1968), the court rejected arguments that liability could be imposed only by statute and that the drinker alone would be responsible for the consequences of his intoxication. Grounding liability on common law negligence (see Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 275, 257 N.E.2d 774 [1970] ), we held that injury to another on the highways was within "the foreseeable risk created by the sale of liquor to an already intoxicated individual." Adamian v. Three Sons, Inc., supra, 353 Mass. at 501, 233 N.E.2d 18. Although the plaintiff must show that the vendor defendant was on notice that the consumer was intoxicated (Cimino v. Milford Keg, Inc., supra, 385 Mass. at 328, 431 N.E.2d 920), we do not require specific proof that the vendor knew or reasonably should have known that the intoxicated customer would drive a motor vehicle. Id. at 330-331, 431 N.E.2d 920. The question for the trier of fact is whether the vendor failed "to exercise that degree of care for the safety of travelers that ought to be exercised by a tavern keeper of ordinary prudence in the same or similar circumstances." Id. at 331, 431 N.E.2d 920.

There are, of course, differences between the operation of a commercial establishment selling alcoholic beverages for consumption on the premises and the furnishing of alcoholic beverages to guests in one's home. Balancing these differences, courts have found it easier to impose a duty of care on the licensed operator than on the social host. The threat of tort liability may serve the public purpose of offsetting the commercial operator's financial incentive to encourage drinking. The means of serving beverages in a bar, tavern, or restaurant normally permits closer control and monitoring of customers and their consumption than is typically possible in private gatherings. The commercial vendor may generally (but certainly not always) have more experience in identifying intoxicated drinkers than would social hosts and would be better able to "shut off" consumption without the embarrassment that a social host would suffer. It has also been suggested that licensed operators can be expected to have insurance against loss whereas a private individual would not. Some courts have regarded these 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 the distinctions insignificant in assessing whether a duty should be imposed, although the differences might have a bearing on whether particular conduct was negligent. See Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 155, 145 Cal.Rptr. 534, 577 P.2d 669 (1978); Kelly v. Gwinnell, 96 N.J. 538, 547-548, 476 A.2d 1219 (1984); Koback v. Crook, 123 Wis.2d 259, 267-268, 366 N.W.2d 857 (1985). See also Note, Common Law Negligence Theory of Social Host Liability for Serving Alcohol to Obviously Intoxicated Guests, 26 B.C.L.Rev. 1249, 1271-1272 (1985).

A line of cases, most of which rely on statutory violations, imposes social host liability for the adverse consequences of serving alcoholic beverages to a minor. See, e.g., Sutter v. Hutchings, 254 Ga. 194, 198, 327 S.E.2d 716 (1985) (common law claim stated against social hosts who furnished beer to noticeably intoxicated seventeen year old); Brattain v. Herron, 159 Ind.App. 663, 676, 309 N.E.2d 150 (1974) (violation of statute in knowingly giving...