Orner v. Mallick

• Decision Date: 02 June 1987
• Citation: 515 Pa. 132,527 A.2d 521
• Parties: , 40 Ed. Law Rep. 354 Robert C. ORNER, Appellant, v. Roy MALLICK and Theodora Mallick, h/w, and the Media Regency Corporation t/a the Regency Hotel, and Edward Esslinger and Ann Esslinger, and Elizabeth Bonsall, Appellees. 02835 Phila. 1983
• Court: Pennsylvania Supreme Court

Page 521

527 A.2d 521

515 Pa. 132, 40 Ed. Law Rep. 354

Robert C. ORNER, Appellant, v. Roy MALLICK and Theodora Mallick, h/w, and the Media Regency Corporation t/a the Regency Hotel, and Edward Esslinger and Ann Esslinger, and Elizabeth Bonsall, Appellees.

02835 Phila. 1983

Supreme Court of Pennsylvania.

Argued Oct. 21, 1986.

Decided June 2, 1987.

Avram G. Adler, Philadelphia, for appellant.

Donald J.P. Sweeney, Philadelphia, for Mallick & Regency.

Charles P. Menszak, Jr., Philadelphia, for Edward & Ann Esslinger.

Richard A. Mitchell, Philadelphia, for Elizabeth Bonsall.

Francis A. Allen, Philadelphia, for Paul Restall Co., Inc.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

This case arose from the following facts. Appellant, Robert C. Orner, was a guest at a series of high school graduation parties which took place during the night of June 12, 1981, and the early morning hours of June 13, 1981. At that time Mr. Orner was approximately nineteen and one half years old. Mr. Orner attended at least three parties. The first party took place at the home of Edward and Ann Esslinger where Mr. Orner was allegedly served intoxicating beverages. The second party took place at the home of Elizabeth Bonsall where Mr. Orner was also allegedly served intoxicating beverages. The third place was at the Regency Hotel where Mr. Orner was again allegedly served intoxicating beverages. ¹ At this last site Mr. Orner, who was allegedly intoxicated at the time, fell over a second floor railing and sustained serious head injuries.

Mr. Orner instituted suit against the hosts of all three parties in September, 1982. In May, 1983, after some procedural steps not here relevant Ms. Bonsall, the host of the second party, filed preliminary objections in the nature of a demurrer. The Honorable William R. Toal Jr., of the Court of Common Pleas of Delaware County, sustained the demurrer and dismissed Mr. Orner's action against Ms. Bonsall. The actions of Judge Toal were based upon the then prevailing law in this Commonwealth that no social host liability existed, even for service to a minor. See Congini v. Portersville Valve Company, 312 Pa.Super. 461, 458 A.2d 1384 (1983).

Mr. Orner appealed the common pleas' decision, and while his case was on appeal, this Court reversed the Congini decision, Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983), and held that social host liability could exist for service of intoxicants to minors. Nevertheless the Superior Court affirmed the order of the lower court in this case, finding that even under our decision in Congini, id., Mr. Orner had failed to state a cause of action against Ms. Bonsall. Mr. Orner then sought allowance of appeal, raisingtwo issues: whether the Superior Court correctly interpreted our decision in Congini; and whether the Superior Court abused its discretion in refusing to allow him to amend his complaint.

We granted Mr. Orner's request for allowance of appeal, and we now reverse the order of the Superior Court.

The fundamental question in this case concerns the extent of social host liability for service of intoxicating beverages to a minor; specifically, at what point will the actions of a social host subject him to potential liability.

In analyzing this problem we must first bear in mind the procedural posture of this case. As remarked above, the defendant, Ms. Bonsall, filed preliminary objections in the nature of a demurrer. As such, for purposes of considering the instant appeal, the facts as stated in plaintiff's complaint are accepted as true. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979). In addition, fact-based defenses, even those which might ultimately inure to the defendant's benefit, e.g., the plaintiff's contributory or comparative negligence, are not relevant on demurrer. Thus, the only relevant inquiry is whether the facts as pleaded state an actionable claim of negligence on the part of the defendant. International Union of Operating Engineers v. Linesville Construction Company, 457 Pa. 220, 233, 322 A.2d 353 (1974).

The elements necessary to plead an action in negligence are: the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant's breach and the resulting injury; and actual loss or damage suffered by the complainant. See Morena v. South Hills Health System, 501 Pa. 634, 642 fn. 5, 462 A.2d 680, 684 fn. 5 (1983).

Prior to our opinion in Congini a social host was not responsible to anyone for injury resulting from the service of intoxicants at a social occasion, and no action alleging such grounds could survive preliminary objection.

In Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983), following the great weight of authority in the United States, we held that a social host was not at law the keeper of ordinary able-bodied men; that it was the consumption rather than the furnishing of alcohol that is the proximate cause of any subsequent occurrence. The consequences of accepting intoxicants were left to the personal responsibility of the guest, and the host was not required to answer for their effect. The adult guest who drank more than he should answered alone to himself and to all others for whatever injury followed his acceptance of intoxicants.

In Congini, delivered as a companion to Klein, we were faced with the service of intoxicants to a minor by a social host. Because the law in general seeks to protect minors where it can from their own indiscretions, and in specific prohibits the service of alcohol to minors, we felt compelled to sanction in the civil law what the criminal prohibits. Thus, in Congini we held that a social host "was negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and that they can be held liable for injuries proximately resulting from the minor's intoxication." Id. at 163, 470 A.2d at 518. In arriving at this conclusion we emphasized that in Pennsylvania "our legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol," id. at 161, 470 A.2d at 517; and we accepted that legislative judgment as defining a duty of care on the part of adults vis-a-vis their minor guests. See § 286 Restatement of Torts, Second.

In the present case the Superior Court narrowly interpreted Congini, so as to require an averment that the social host served alcohol to a minor "to the point of intoxication"; and held that since the complaint in this case failed to make such an averment, no cause of action was stated. Unfortunately, the Superior Court misapprehended the underlying rationale of our decision in Congini, and as a result erred in its decision.

What we established in Congini was that adults owe a duty of care to their minor guests, and it is a breach of that duty to serve such guests alcohol in contravention of the clear proscriptions of the Crimes Code. It is important to emphasize that the breach occurs with the service of any alcohol to a minor, not just an amount sufficient to intoxicate the minor. See Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985); Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985).

We readily acknowledge that the question of whether an adult defendant is responsible for a minor's intoxication is a relevant one. However, it is a question which goes to the issue of causation, not to the question of whether a defendant had a duty and/or breached a duty to the plaintiff. ² Since in the present case the issue of causation is a pleaded fact, an inquiry into whether the actions of Ms. Bonsall caused plaintiff's injuries is not required at this juncture. ³

Accordingly, the Order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas of Delaware County for proceeding consistent with this opinion. ⁴

HUTCHINSON, J., concurs, in the result.

NIX, C.J., and ZAPPALA, J., file dissenting opinions.

NI...