Overbaugh v. McCutcheon
| Decision Date | 11 July 1990 |
| Docket Number | No. 19195,19195 |
| Citation | 183 W.Va. 386,396 S.E.2d 153 |
| Parties | Franklin D. OVERBAUGH, Administrator of the Estate of Elizabeth Ann Overbaugh, Franklin Overbaugh, Tony Overbaugh, Stacey Overbaugh and Kevin Overbaugh, Infants Who Sue By and Through Their Father and Next Friend, Franklin D. Overbaugh, and Franklin D. Overbaugh, Individually, Plaintiffs v. Pricilla McCUTCHEON, Executrix of the Estate of Donald J. McCutcheon, Brady Cline Coal Company, a Corporation, Margaret Peerless Coal Company, Gauley Coal Sales Company, Holly Coal Company; and Jack Cline, Defendants. |
| Court | West Virginia Supreme Court |
James M. Barber, DiTrapano & Jackson, Charleston, for Franklin D. Overbaugh et al.
Timothy R. Ruckman, Summersville, for Pricilla McCutcheon.
Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, for Coal Companies.
This action is before the Court upon certified questions from the Circuit Court of Nicholas County. The questions certified by the lower court include:
(1) Whether a host who gratuitously serves liquor to an adult social guest knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by intoxication?
(2) Whether an employer who gratuitously serves liquor to an adult employee at an employer sponsored party and thereafter, due to the employee's incapacitation, exercises control over the employee, has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from operating a motor vehicle, causing an unreasonable risk or harm to others?
The lower court answered both the questions in the affirmative. Upon review of the arguments of the parties and all the matters of record submitted before the Court, we disagree with the lower court's answers to both certified questions.
This action involves an automobile accident which occurred on December 19, 1985, on U.S. Route 19 near Summersville, West Virginia. Donald J. McCutcheon was operating a 1985 Chevrolet pickup truck southbound on U.S. 19, and Elizabeth Ann Overbaugh was operating a 1981 Oldsmobile Cutlass northbound on U.S. Route 19. The truck driven by McCutcheon allegedly swerved across the center line of the road and struck the vehicle driven by Overbaugh. As a result of the accident, McCutcheon and Overbaugh died. Additionally, the plaintiffs, Franklin Overbaugh, Jr., Tony Overbaugh, Stacey Overbaugh and Kevin Overbaugh, all passengers in Elizabeth Overbaugh's vehicle, received personal injuries.
Prior to the accident on December 19, Brady Cline Coal Company, Gauley Coal Sales Company and Holly Coal Company hosted a Christmas party for employees and friends at the corporate offices located near Summersville, West Virginia. It is undisputed that alcohol was served, but it was neither sold nor served by a bartender to any of the persons attending the party, rather it was available on a self-serve basis.
Donald McCutcheon did attend the company Christmas party, but it is disputed by the parties whether he was an employee of any of the companies involved on the date of the accident. 1 That issue, however, is not before this Court.
It was alleged that McCutcheon did consume alcohol while at the party and was apparently noticeably drunk. It was further stipulated between the parties for the purposes of summary judgment that the defendant, Jack Cline, knew that Donald McCutcheon was intoxicated and knew McCutcheon intended to operate a motor vehicle. In fact, Jack Cline testified during a pre-trial deposition that he told McCutcheon not to drive but to stay put until either Cline or one of his sons could drive him home. Cline then left McCutcheon and went back to work at a different site. According to Cline's deposition, both he and his son again spoke with McCutcheon on the telephone while they were still at the work site and requested of McCutcheon that he wait for them at the party so that Cline or his son could take him home. McCutcheon told Cline that he would wait; however, when Cline returned to the party, everyone (including McCutcheon) had left. After leaving the party on his own volition, McCutcheon was involved in the accident. His blood alcohol level was determined to be .22% at the time of his death.
Plaintiffs brought action for wrongful death and personal injuries against the defendants. The defendant coal companies and Jack Cline filed a motion for summary judgment, claiming that they owed no duty to the plaintiffs and were not responsible for McCutcheon's conduct. The circuit court denied defendants' motion, holding that there were certain duties imposed on defendants, the breach of which could result in liability on the part of the defendants to the plaintiffs.
The first certified question to be addressed is whether an injured third party can recover against a social host who gratuitously serves liquor to a social guest knowing not only that the guest is intoxicated but also that he intends to operate a motor vehicle when the third party's injuries occur as a result of the negligent operation of the vehicle by the guest while intoxicated. The plaintiffs contend that the trial court was correct in ruling that a social host could be liable for the negligent conduct of a guest who becomes intoxicated at the host's party and then causes injury while driving. The defendants, on the other hand, contend that a host who gratuitously serves or permits alcoholic beverages to be consumed by an adult social guest is not subject to "dram shop" type liability in West Virginia and further, that in the absence of legislation, a clear majority of jurisdictions which have been faced with this same issue have refused to impose liability on a social host based upon principles of common law negligence.
There are two primary theories under which courts have imposed social host liability. The first is in upholding a statute enacted by the legislature and the second is in finding liability under common law negligence principles.
Currently, in West Virginia there is no "dram shop" 2 or social host liability Alcoholic liquors shall not be sold to a person who is:
[183 W.Va. 389] legislation. 3 As a matter of fact, the only statute found in West Virginia even arguably pertinent to this case involves the sale of alcohol by a vendor. Specifically, W.Va.Code § 60-3-22 (1986) provides that
(1) Less than twenty-one years of age;
(2) An habitual drunkard;
(3) Intoxicated;
(4) Addicted to the use of any controlled substance as defined by any of the provisions of chapter sixty-a [§ 60A-1-101 et seq.] of this code; or
(5) Mentally incompetent.
Clearly, the legislature did not intend for this statute to apply to anyone except sellers of alcoholic beverages. 4
Consequently, in the absence of legislation, the only other way to impose social host liability would be by utilizing a common law negligence approach. The plaintiffs argue that this Court should establish a new cause of action under our analysis in Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987) and using the logic of the holding of the New Jersey Supreme Court in Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984). The defendants, however, argue that we should follow the majority of jurisdictions in refusing to impose social host liability based on principles of common law negligence. 5
This Court has previously held even prior to Price that Syl.Pt. 10, Price, 355 S.E.2d at 382. In Price, based on this principle established in [a] passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met: (1) the driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party's injuries, and (2) the passenger's conduct substantially encouraged or assisted the driver's alcohol or drug impairment.
robertson,[183 W.Va. 390] a new negligence cause of action was recognized when passengers of a vehicle who were consuming alcohol and smoking marijuana not only provided the substances to the driver of the car, but encouraged him to use the substances even though he was visibly intoxicated. The driver ultimately lost control of the vehicle colliding head on with another vehicle while attempting to pass. The driver of the other vehicle was killed. We held that
Just as this Court recognized liability of passengers to third parties in Price...
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