Klein v. Raysinger , 504 Pa. 141 ( 1983 )

OPINION OF THE COURT

McDermott, justice.

This appeal involves the consolidated cases of Klein v. Raysinger, et al.,¹ 44 Eastern District Appeal Docket 1982; and Myron Klein, Phillip Klein, and Myron Klein, Administrator of the Estate of Klein v. Raysinger et al.,² 94 Eastern District Appeal Docket 1982.

Appellant in No. 44, Michael Klein, filed a personal injury action against Mark Raysinger and others, as a result of an automobile accident. Appellants in No. 94, Myron and Phillip Klein, filed personal injury actions against Mark Raysinger and others (including Michael Klein, as the driver of the vehicle in which they were travelling); and Myron Klein as the Administrator of the Estate of Shirley M. Klein, filed a personal injury action, a wrongful death action, and a survivors action against Mark Raysinger and others (including Michael Klein, as the driver of the vehicle in which Shirley M. Klein was travelling). As part of these actions the Kleins instituted suit against Mr. and Mrs. William Gilligan and their son Michael Gilligan, who were charged with negligence in serving one or more alcoholic beverages to Raysinger at a time when the latter was visibly intoxicated.³

In each case the Gilligans filed preliminary objections in the nature of a demurrer. In both instances the preliminary objections were sustained by the Court of Common Pleas of Montgomery County. On appeal the Superior Court affirmed.⁴ Petitions for allowance of appeal were filed and granted, and the cases were consolidated for our review.⁵

Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979). Given this standard we are confronted with the following facts: On or about May 8, 1978, Michael Klein and his family were driving on the Pennsylvania Turnpike when they were struck in the rear by a vehicle which was driven by Mark Raysinger. Prior to the collision Raysinger had been a patron of the Neptune Inn, where he had consumed an undisclosed amount of alcohol. Prior thereto, Mr. Raysinger had been served beer and other alcoholic beverages at the home of the Gilligans. It is alleged that Raysinger was visibly intoxicated at the time he was served by the Gilligans, and that it was known at the time that Raysinger would be driving. As a consequence, appellants’ claim that the Gilligans are liable in negligence for the injuries they sustained in the accident.

Although the lower courts relied in part on Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), this case is in reality one of first impression in this jurisdiction.⁶ Appellants are requesting this Court to recognize a new cause of action in negligence, against a social host who serves alcohol to a visibly intoxicated person, whom the host knows, or should know, intends to drive a motor vehicle.

A number of other jurisdictions have considered this issue, and our research, aided by the able briefs of counsel for both appellants and appellees, reveal only two jurisdictions in which a cause of action in negligence has actually been recognized against a social host serving alcoholic beverages to a person past the legal drinking age: California and New Jersey.

In Coulter v. Superior Court of San Mateo, 21 Cal.3rd 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1979) the California Supreme Court held that under modern negligence law “a social host who furnishes alcoholic beverages to an obviously intoxicated person, under circumstances which create a reasonably foreseeable risk of harm to others, may be held legally accountable to those third parties who are injured when that harm occurs.” Id. at 147, 145 Cal.Rptr. at 535, 577 P.2d at 670. However, this cause of action was very short lived, as the California Legislature expressly abrogated this holding by enacting Section 1714 of the California Civil Code.⁷ See Cory v. Shierloh, 29 Cal.3d 430, 174 CaLRptr. 500, 629 P.2d 8 (1981) (upholding the validity of § 1714 against a constitutional challenge).⁸

In New Jersey, a trial court in ruling on a motion for summary judgment, ignored the California Legislature’s actions and relied upon Coulter, supra, in holding that a social host was liable for furnishing alcoholic beverages to an obviously intoxicated person. Figuly v. Knoll, 185 N.J.Super., 477, 449 A.2d 564 (1982). However, the case was never appealed, and the issue has yet to be addressed by an appellate court in that jurisdiction. Cf. Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (App.Div.1976) (imposing social host liability for service of a minor).

A third jurisdiction, Oregon, has in the past, indicated a willingness to entertain a cause of action in negligence. See Weiner v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1981).⁹ However, the facts of that case involved the service of a minor, a fact which we find significant.¹⁰

In this regard, we note that there are no reported Oregon cases finding common law social host liability in the situation where an adult guest was the consumer of alcohol. Also, similar to the California Legislature, the Oregon legislative body took the issue out of the hands of the Courts, by legislatively defining the possible cause of actions.¹¹ See Note. Chapter 801: Commercial and Social Host Liability for Dispensing Alcoholic Beverages, 16 Williamette L.Rev. 191 (1980).

While it is true that some other jurisdictions have recognized a common law action against a social host, they have done so only in the limited situations where an adult host has served intoxicants to a minor; Burke v. Superior Court, 129 Cal.App.3d 570, 181 Cal.Rptr. 149 (1980); Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974); Thaut v. Finley, 50 Mich.App. 611, 213 N.W.2d 820 (1973); or the individual served was under a special disability,¹² Cantor v. Anderson, 126 Cal.App.3d 124, 178 Cal.Rptr. 540 (1982).

But for the above noted exceptions no other jurisdiction has been willing to extend liability to the social host who has served intoxicants to his adult guests. See Chastain v. Litton Systems, Inc., 527 F.Supp. 527 (W.D.N.C.1981) vacated on other grounds, 694 F.2d 957 (4th Cir.1982), cert, denied, — U.S. —, 103 S.Ct. 2454, 77 L.Ed.2d 1334 (1983); Cartwright v. Hyatt Corp., 460 F.Supp. 80 (D.C.D.C.1978); Fruit v. Schreiner, Alaska, 502 P.2d 133 (1972); Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 (1970); Cole v. City of Spring Lake Park, Minn., 314 N.W.2d 836 (1982); Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (1977); Edgar v. Kajet, 84 Misc. 100, 375 N.Y.S.2d 548 (1975) aff'd 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746 (1940); Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969).

Thus, the great weight of authority supports the view that in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence. This is in accord with the recognized rule at common law. See Anno.: Damage from Sale or Gift of Liquor or Drug. 97 A.L.R.3d 528 § 2 at 533 (1980); 45 Am.Jur.2d. Intoxicating Liquor § 553. We agree with this common law view, and consequently hold that there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.

Therefore, we affirm the order of the Superior Court and remand this case to the Court of Common Pleas of Montgomery County for proceedings not inconsistent with this opinion.

ROBERTS, C.J., files a dissenting opinion. LARSEN, J., files a dissenting opinion.

1 . Superior Court’s decision in this case is reported at 298 Pa.Super. 246, 444 A.2d 753 (1982).

2 . The Superior Court’s decision in this case is reported at 302 Pa.Super. 248, 448 A.2d 620 (1982).

3 . The relevant allegations of the complaints read as follows:

a. Negligently and carelessly serving alcoholic and intoxicating beverages to defendant, Raysinger, who was visibly intoxicated;

b. Failing to recognize the danger of allowing the defendant, Raysinger, to drive a motor vehicle on the highway after serving him alcoholic and intoxicating beverages;

c. Negligence at law.

4 . See fn. 1 and fn. 2, supra.

5 . A third case, Congini et al. v. Portersville Valve Co., No. 53 Western District Appeal Dkt. 1983, was also consolidated with these cases. However, Congini, involves a distinct fact pattern, necessitating a separate opinion.

6 . In Manning we held only that Section 493(1) of the Liquor Code, 47 P.S. 4-493(1), did not create a cause of action against non-licensed persons who furnish intoxicants for no renumeration. We did not decide the issue of whether a non-licensed host could be subject to a cause of action in negligence. See Concurring Opinion of Mr. Justice Pomeroy. Id., 454 Pa. at 240, 310 A.2d at 76.

7 . Section 1714 of the California Civil Code provides:

Civil Code section 1714 (as amended by Stats. 1978, ch. 929, § 2, p. 2904) provides:

(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.

(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager, (5 Cal.3d 153), [95 Cal.Rptr. 623, 486 P.2d 151], Bernhard v. Harrah’s Club, (16 Cal.3d 313), [128 Cal.Rptr. 215, 546 P.2d 719], and Coulter v. Superior Court, ([21] Cal.3d [144]), [145 Cal.Rptr. 534, 577 P.2d 669] and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.

8 . Similar action was taken by the Minnesota Legislature, see Minn. Stat. § 340.95; Cole v. City of Spring Lake Park, Minn., 314 N.W.2d 836 (1982); as well as the Iowa Legislature. See Iowa Code § 123.92. Cf. Williams v. Klemesrud, Iowa, 197 N.W.2d 614 (1972) (finding non-licensee liability under prior Dram Shop Act).

9 . In dicta the Court stated:

Ordinarily, a host who makes available intoxicating liquors to an adult guest is not liable for injuries to third persons resulting from the guest’s intoxication. There might be circumstances in which the host would have a duty to deny his guest further access to alcohol. This would be the case where the host “has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things.” Such persons could include those already severely intoxicated, or those whose behavior the host knows to be unusually affected by alcohol. Also included might be young people, if their ages were such that they could be expected, by virtue of their youth alone or in connection with other circumstances, to behave in a dangerous fashion under the influence of alcohol.

Wiener, supra, at 639, 485 P.2d at 21.

10 . See Congini et al. v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983).

11 . 1979 Oregon Laws ch. 801 § 2 provides:

Section 1. No licensee or permittee is liable for damages incurred or caused by intoxicated patrons off the licensee’s or permittee’s business premises unless the licensee or permittee has served or provided the patron alcoholic beverages when such patron was visibly intoxicated.

Section 2. No private host is liable for damages incurred or caused by an intoxicated social guest unless the private host has served or provided alcoholic beverages to a social guest when such guest was visibly intoxicated.

Section 3. Notwithstanding ORS 471.130 and sections 1 and 2 of this Act, no licensee, permittee or social host shall be liable to third persons injured by or through persons not having reached 21 years of age who obtained alcoholic beverages from the licensee, permit-tee or social host unless it is demonstrated that a reasonable person would have determined that identification should have been requested or that the identification exhibited was altered or did not accurately describe the person to whom the alcoholic liquor was sold or served.

12 . Arguably, the New Jersey decision can be explained as falling within this latter exception, since the defendant there served his guest liquor despite the fact that he knew his guest was "an alcoholic or close to it.” Figully v. Knoll, supra, 185 N.J.Super. at 479, 449 A.2d at 564.