Ulwick v. DeChristopher

Decision Date16 December 1991
PartiesWayne R. ULWICK v. Matthew DeCHRISTOPHER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James N. Esdaile, Jr., Boston, for plaintiff.

James J. Ronan, Boston, for defendant.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

This case raises the issue whether a social host may be held liable in tort for injuries caused to a third person by an intoxicated guest at the host's party where it appears that the host neither served nor provided liquor to the guest. A judge of the Superior Court concluded, as matter of law, that there was no liability on the part of the social host, the defendant, Matthew DeChristopher, and granted the defendant's motion for summary judgment. 1 The plaintiff appealed, and we transferred the case to this court on our own motion. We affirm the judgment.

The relevant facts established for summary judgment purposes by statements, affidavits, depositions and other materials in the record are as follows. In setting out the facts, we resolve any conflicts in the summary judgment materials, and we make all logically permissible inferences, in the plaintiff's favor. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17, 445 N.E.2d 136 (1983).

In the early evening of September 26, 1986, Jeffrey Salvatore and two of his friends, all under the age of twenty-one, started drinking vodka at the Melrose home of one of the friends. Salvatore had at least one drink of vodka. The three traveled to a liquor store where they paid $5 to a passerby to purchase a bottle of vodka for their consumption. They then drove to a party at the home of the defendant (then age eighteen), who had informed some of his friends (although not Salvatore) that he planned to have a party that evening.

The party was by-and-large a "B.Y.O.B." ("Bring Your Own Booze") drinking party. It was not a dancing party, but hard rock music was playing in the background. The defendant was the sole host. His mother and stepfather were out of town, and no one else had been requested to supervise the defendant during his parents' absence. Many of the guests came to the party by automobile and parked their cars in the defendant's driveway and on the street in front of his home.

At least forty to fifty people attended the party, many of them underage students or recent graduates of Melrose High School. The guests drank and played drinking games in the defendant's living room. During the party the defendant left the door to his house open so that others could enter without having to knock or ring. According to an affidavit in the record: "The kids went to these private drinking parties to avoid the risk of being arrested by police for drinking in the park and the golf course. Private parties were a safe place to drink."

The defendant also made space available in his kitchen refrigerator for beer brought by his guests. The refrigerator contained juice for mixing drinks, including pineapple juice, trays of ice and purchased bags of ice. Bottles of rum and vodka stood on the kitchen counter. Glasses were available in the kitchen cabinets. By 9 P.M., there were empty bottles and beer cans scattered all over the kitchen and living room. According to one account, approximately one-third of the people who came to the party were intoxicated.

Salvatore brought his own vodka to the kitchen, mixed it with juice, and drank at least one glass of vodka, at the party. The defendant did not serve or provide any alcohol to Salvatore, and the parties stipulated, for purposes of the present summary judgment motion, "that the only alcohol ... Salvatore consumed [at] the [defendant's] home was alcohol that Salvatore, or others who were with him, brought to the home." Indeed, the liquor in the defendant's home was kept in a locked cabinet which was never unlocked during the evening.

The defendant circulated throughout the house during the party, beer in hand, socializing with his guests including Salvatore. He did not tell anyone to stop drinking. The defendant spoke briefly with Salvatore in the kitchen, while Salvatore was stirring a pitcher of vodka with a little pineapple juice. The two young men had gone to the same high school and knew of one another, but they were not friends. Salvatore was unsteady on his feet and visibly intoxicated, but the defendant said nothing to Salvatore about his drinking or his ability to drive.

Salvatore stayed at the party for up to an hour and a half before leaving in his Chevrolet Camaro Iroc Z-28 automobile at about 10 P.M. Salvatore accelerated to over sixty miles per hour, crossed the center line, entered the oncoming lane, and hit the plaintiff, an on-duty police officer operating a police motorcycle in an area which was known for teenage drinking and driving. As a result of the collision, the plaintiff suffered severe and permanent physical injuries.

1. The plaintiff claims that these circumstances impose a common law duty in negligence on the defendant for the protection of travelers on the highways. The question whether the defendant owed a duty to travelers who might be injured by the negligent driving of an intoxicated guest who had been at the defendant's party presents "a question of law [which is] to be determined by reference to existing social values and customs and appropriate social policy." Wallace v. Wilson, 411 Mass. 8, 12, 575 N.E.2d 1134 (1991), and cases cited. As both parties recognize, our decision in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986), has direct relevance to whether a duty should be imposed in this case. We disagree with the plaintiff (as did the judge below) that McGuiggan provides a basis to establish such a duty.

In McGuiggan, adult hosts held a graduation party for their son. The hosts furnished alcoholic beverages which were both served directly to the guests and made available so guests could serve themselves. An eighteen year old male guest at the party became intoxicated, and, subsequently, as a result of his intoxication, negligently operated a car causing a death. 2 McGuiggan, supra at 153-155, 496 N.E.2d 141. We upheld the allowance of summary judgment for the hosts (on an issue not involved in this case), because there was no indication that the hosts knew the guest was intoxicated while at their home, or that he was intoxicated at any relevant time. Id. at 161-162, 496 N.E.2d 141.

In deciding McGuiggan, we took the opportunity to review and discuss the existing law elsewhere pertaining to the liability of adult social hosts to third parties injured by the negligent operation of a vehicle by an intoxicated guest who had been at the hosts' party. Id. at 155-161, 496 N.E.2d 141. The decisional authority discussed in McGuiggan involved situations in which the social hosts had furnished alcoholic beverages directly to an adult or minor guest who the hosts knew or should have known was intoxicated. Consistent with our review of the existing state of the law, we indicated in McGuiggan, that "[w]e would recognize a social host's liability to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person's injury" (emphasis added). Id. at 162, 496 N.E.2d 141.

The plaintiff relies on the italicized language above and argues that it should be applied to impose liability in a case like this where a social host stands by while an intoxicated guest continues drinking. It is clear, however, from the facts and discussion in McGuiggan that the italicized language refers solely to a situation where a social host makes the host's liquor available to an intoxicated guest so the guest can continue to serve himself. Here, the defendant did not serve or make any alcohol available to Salvatore. The McGuiggan decision, therefore, does not afford a basis for the imposition of a common law duty on this defendant.

The plaintiff argues, nevertheless, that a common law duty should be found to exist in this case because the defendant negligently encouraged underage drinking in his home. By providing premises where minors might drink to excess, and tolerating them in doing so, the plaintiff contends that the defendant should be held as culpable as if he had served the drinks himself. We disagree.

As discussed in the McGuiggan case supra, the decisions that have recognized social host liability under a common law theory of negligence have done so only in circumstances where the host has served or provided liquor to an intoxicated guest. As stated in one of the earliest of those decisions, such a theory of liability "proceeds from the duty of care that accompanies control of the liquor supply." Kelly v. Gwinnell, 96 N.J. 538, 548, 476 A.2d 1219 (1984). See Dickinson v. Edwards, 105 Wash.2d 457, 466, 716 P.2d 814 (1986) ("The relevant inquiry [in determining negligence] is who had the authority to deny further service of alcohol when intoxication became apparent"). We think the factor of control should continue to be the dominant consideration in a case of this type.

Policy considerations support the imposition of a duty only in cases where the host can control and therefore regulate the supply of liquor. A host who furnishes liquor at a social gathering can deter a guest from becoming intoxicated. Because the alcohol being consumed belongs to the host, the host is like a bartender at a commercial establishment who can "shut off" a patron who is showing signs of excessive drinking. Society may fairly expect that in such circumstances, a host will deny additional liquor to an intoxicated guest.

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