Smith v. Merritt

• Citation: 940 S.W.2d 602
• Decision Date: 28 February 1997
• Docket Number: No. 95-1286,95-1286
• Parties: 40 Tex. Sup. Ct. J. 377 Colin A. SMITH and Al Smith, Petitioners, v. Margaret MERRITT, et al., Respondents.
• Court: Supreme Court of Texas

Page 602

940 S.W.2d 602

40 Tex. Sup. Ct. J. 377

Colin A. SMITH and Al Smith, Petitioners, v. Margaret MERRITT, et al., Respondents.

No. 95-1286.

Supreme Court of Texas.

Argued April 17, 1996.

Decided Feb. 28, 1997.

David B. Griffith, Robert D. Bennett, Gilmer, for petitioners.

Edward L. Merritt, Frank M. Mason, Gregory P. Grajczyk, Longview, for respondents.

ABBOTT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, CORNYN, ENOCH, SPECTOR and BAKER, Justices, join.

The issue in this case is whether a social host can be liable in negligence or negligence per se for injuries resulting from the host's provision of alcohol to a nineteen-year-old guest. ¹ Because the Legislature has established a policy against such causes of action, we decline to expand the common law to include those claims. Accordingly, the court of appeals' judgment is affirmed in part and reversed in part, and we render judgment that the Smiths take nothing.

I

Nineteen-year-old Robert Barbee hosted a party at a lake house owned by his parents, Marita and Bob Barbee, and his grandparents, Margaret and A.P. Merritt. There is no indication that the owners were present or even aware that Barbee hosted this party; however, there is evidence that the owners were aware that Barbee had previously hosted parties at the lake house.

Barbee brought two kegs of beer to the lake house and provided them to the party guests. ² Nineteen-year-old Robert Hale and eighteen-year-old Colin Smith were two of the guests. After drinking two or three cups of beer, Hale left the party in his car with Smith as a passenger. Soon thereafter, Hale collided head-on with a truck, seriously injuring Smith. Summary judgment evidence showed that Hale may have been driving too fast on the narrow, winding, poorly lit road. A medical report revealed that Hale's blood alcohol concentration was .069 grams per deciliter.

Colin Smith and his father Al Smith sued Robert Barbee and the lake house owners for Colin's injuries. The Smiths alleged that the defendants were negligent and negligent per se for providing Hale with alcohol in violation of liquor control laws and with knowledge that Hale would be driving. The trial court granted the owners' and Robert Barbee's collective motion for summary judgment. The court of appeals affirmed in part, holding that neither Robert Barbee nor the owners owed any common-law duty to the Smiths to prevent Hale from drinking and driving. 929 S.W.2d 456. However, the appellate court reversed in part, holding that a fact question existed concerning whether Robert Barbee was negligent per se for violating section 106.06 of the Texas Alcoholic Beverage Code (TABC), which generally prohibits the provision of alcohol to persons under twenty-one. 929 S.W.2d at 459-60; TEX. ALCO. BEV.CODE § 106.06.

The Smiths filed an application for writ of error with this Court, reasserting their claims that the lake house owners and Robert Barbee were liable in negligence and negligence per se. Robert Barbee also filed an application, asserting that the negligence per se cause of action against him under section 106.06 is precluded by Chapter 2 of the TABC, the "Dram Shop Act," which provides the exclusive cause of action for serving alcohol to a person eighteen years of age or older.

II

In determining whether a cause of action in negligence exists, the threshold inquiry is whether the defendants owed the plaintiffs a legal duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Deciding whether to impose a common-law duty involves complex social and economic policy considerations. Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). This is especially true in deciding whether to impose a duty on a social host because of the competing societal concerns and public policy issues inherent in such a decision. ³ When significant and diverse public policy concerns are implicated, careful consideration should be given to legislative pronouncements reflecting the adoption of a particular public policy. See Graff, 858 S.W.2d at 919.

Historically, an alcohol provider owed no tort duty to third persons for injuries caused by the provision of alcohol. El Chico, 732 S.W.2d at 309. The consumption of alcohol, rather than the provision of it, was considered to be the sole proximate cause of injury to the third person. Id. In 1987, this Court created a common-law duty owed by commercial providers of alcohol to injured third parties in El Chico. During the week that opinion was issued, the Texas Legislature superceded the newly recognized common-law duty by amending the TABC to create the Dram Shop Act. See TEX. ALCO. BEV.CODE §§ 2.01-2.03; Graff, 858 S.W.2d at 919.

The purpose of the legislative enactment is clear. Chapter 2 of the TABC is entitled "Civil Liabilities for Serving Beverages." That chapter "provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older." TEX. ALCO. BEV.CODE § 2.03 (emphasis added). Only "a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of [the TABC] or who otherwise sells an alcoholic beverage to an individual" can be liable under Chapter 2. Id. § 2.01.

When enacting Chapter 2, the Legislature specifically considered and rejected the inclusion of civil liability for social hosts. See CONF. COMM. REP. ON H.B B. 1652, 70th Leg. (1987); Graff, 858 S.W.2d at 919. Early versions of the bill created civil causes of action against both commercial establishments and social hosts. Graff, 858 S.W.2d at 919. However, the final version of the bill, and what is currently Chapter 2, creates a statutory cause of action against commercial providers only. Id.; TEX. ALCO. BEV.CODE § 2.02. The Legislature demonstrated its intent against the creation of common-law social host liability for serving persons eighteen years of age or older by including language in section 2.03 that liability under Chapter 2 "is in lieu of common law or other statutory law warranties and duties." TEX. ALCO. BEV.CODE § 2.03.

This Court has previously deferred to the Legislature on social host liability. In Graff, we relied heavily on Chapter 2 of the TABC and its legislative history in declining to create a common-law tort duty for a social host who makes alcohol available to an intoxicated adult guest who will be driving. We decided that, as between social hosts and adult guests, the focus of liability to third parties should remain on the drinker. Graff, 858 S.W.2d at 921-22. Absent a special relationship between the social host and the adult guest, the host has neither superior knowledge with which to foresee harm nor a legal right to control the guest. See id. at 920; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

Applying our holding in Graff and the dictates of TABC Chapter 2, we conclude that the defendants in this case did not owe a common-law tort duty to the Smiths to refrain from providing alcohol to Hale. Our holding does not leave the Smiths without a remedy, however. Nothing in the TABC or the common law prevents the Smiths from asserting a claim against Hale, the individual who made the choice to drink and drive.

III

The Smiths argue that Graff is distinguishable from this case because the Graff holding concerned adult guests of a social host, and the guest in this case, Robert Hale, was a statutory minor according to TABC section 106.01. Section 106.01 provides: "In this code [the TABC], 'minor' means a person under 21 years of age." Section 106.06 establishes a misdemeanor offense (with certain exceptions not applicable here) for anyone who "purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor." TEX. ALCO. BEV.CODE § 106.06(a) (as amended by Acts 1993, 73rd Leg., ch. 934, § 79). ⁴

Because the guest in this case, Robert Hale, was nineteen and a minor under the TABC, the Smiths urge that two theoretical underpinnings of Graff--the inability of social hosts to know the extent of alcohol consumed by their guests and their inability to control their guests' conduct--do not apply. The Smiths contend that social hosts have no need to monitor the alcohol consumption and control the behavior of intoxicated minors because alcohol cannot be legally provided to minors. Because Hale was classified as a "minor" under the Code, the Smiths urge that the reasoning supporting non-liability for a social host who serves alcohol to an intoxicated adult driver is inapplicable.

Robert Hale was an adult at the time of the accident. The fact that he was defined as a minor solely for purposes of TABC section 106.01 is not significant in our negligence analysis.

Since 1973, the age of majority in Texas has been eighteen, except to the extent that there is a conflict with the minimum age provisions of the TABC. TEX. CIV. PRAC. & REM.CODE §§ 129.001, 129.003. For purposes other than determining criminal liability under TABC Chapter 106, persons eighteen years of age or older are adults and have the right and corresponding responsibility to make their own choices. See TEX. CIV. PRAC. & REM.CODE § 129.001 (age of majority is eighteen); TEX. FAM.CODE § 1.51 (ability to marry at age eighteen); U.S. CONST. amend. XXVI (right to vote at age eighteen); TEX. ELEC.CODE § 11.002(1) (same); Kargar v. Sorrentino, 788 S.W.2d 189, 191 (Tex.App.--Houston [14th Dist.] 1990, no writ) (power to contract at age eighteen); see also TEX. FAM.CODE § 41.001(2) (parents no longer liable for torts of children when they reach age eighteen); TEX. PENAL CODE § 8.07(d) (may be put to death for penal violation at age seventeen); 50 U.S.C. app. §§ 453, 454 (must register with Selective Service at age eighteen and can enlist at age eighteen and six months). See generally Fuller v. Maxus Energy Corp., 841 S.W.2d 881, 885 (Tex.App.--Waco 1992, no writ) (stating that an...