Davis v. Stapf

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2533
September Term, 2013
NANCY DAVIS, ET AL.
v.
LINDA STAPF, ET AL.
Krauser, C.J.
Graeff,
Nazarian,
JJ.
Opinion by Graeff, J.
Concurring opinion by Nazarian, J.
Filed: August 26, 2015
It is a criminal offense for an adult to knowingly or willfully allow an unrelated person
under the age of 21 to consume alcohol for nonreligious purposes at a residence the adult
owns or leases. Md. Code (2014 Supp.) § 10-117(b) of the Criminal Law Article (“CL”).
The question raised in this case is whether a person who violates this statute has a duty of
care that can result in civil liability when an intoxicated minor subsequently is injured.
On November 28, 2009, 17-year-old Steven Dankos was drinking at a party. He was
killed when the truck in which he was riding, driven by another intoxicated partygoer,
crashed. Nancy Davis, individually, as Mother and Next Friend of Steven Dankos, decedent,
and as Personal Representative of the Estate of Steven Dankos, appellants (collectively “Ms.
Davis”), filed suit against Linda Stapf, appellee, in the Circuit Court for Howard County.
Ms. Stapf filed a motion to dismiss the complaint, arguing that she owed no duty of care to
Steven under Maryland law, and therefore, the complaint failed to state a claim upon which
relief could be granted. After a hearing, the court granted Ms. Stapf’s motion to dismiss.
On appeal, Ms. Davis presents three questions for our review, which we have
consolidated and rephrased, as follows:
1. Did Ms. Stapf have a statutory duty to Steven pursuant to CL § 10-
117(b), which prohibits adult property owners from allowing minors to
consume alcoholic beverages on their premises?
2. Did Ms. Stapf have a duty of care to Steven based on a special
relationship that was created when she hosted an underage drinking
party on her property and knowingly permitted Steven to consume
alcohol?
3. Did Ms. Stapf assume a duty to prevent harm to Steven, where she
knew he and other minors were consuming alcohol on her property,
exercised control over the people who were present at her house, and
controlled the flow of alcohol?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal involves the propriety of the circuit court’s ruling granting a
motion to dismiss, we look to the facts alleged in the complaint. The facts alleged in Ms.
Davis’ first amended complaint are as follows.
In 2009, Steven was a senior at River Hill High School in Clarksville, Maryland,
where he played on the football team. Ms. Stapf had a son, Kevin, then 19 years old, who
had attended River Hill. Ms. Stapf’s residence was known among River Hill students as a
“party house,” due to Ms. Stapf’s willingness to “permit and condone underage drinking.”
With Ms. Stapf’s approval, express or tacit, her residence was used “virtually every
weekend” for parties where alcohol was consumed by underage persons.
On November 28, 2009, a party was held at Ms. Stapf’s residence. Two days prior
to the party, Ms. Stapf purchased approximately $115 worth of alcohol. Kevin also illegally
purchased alcohol. The alcohol was kept, maintained, and cooled in Ms. Stapf’s garage.
At approximately 10:00 p.m., Ms. Stapf, who had been next door, returned to her
residence. At that time, there were approximately 20 vehicles parked in her driveway and
on the street adjacent to her house. Several young people were walking down the street to
her house, and there was a large crowd of people on her property congregating in the garage.
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Due to the size of the party, and that she did not know a number of the people who
were at the party, Ms. Stapf asked Kevin to make some of the people leave. Ms. Stapf also
made a judgment call as to which individuals could stay, including David Erdman, who had
been drinking for several hours and was “obviously intoxicated.” Mr. Erdman was 22 years
old at the time.
Ms. Stapf requested that one of Kevin’s friends move her truck to block the driveway
to discourage additional people from parking in the driveway. As a result of Ms. Stapf’s
intervention, a number of people left the party, and a smaller group of Kevin’s friends and
acquaintances stayed in the garage, with Ms. Stapf’s permission.
Ms. Stapf, who appeared at least four times at the garage party, observed numerous
underage individuals drinking alcohol. Despite her actual knowledge that underage persons
were consuming alcohol at her house, and her ability to control, prohibit, and limit the
consumption of alcohol at her residence, Ms. Stapf did not tell anyone to stop drinking
alcohol, nor did she take any steps to prevent intoxication.
While the party continued in the garage, Ms. Stapf played solitaire in the kitchen, in
close proximity to the garage. At approximately 1:30 a.m., Ms. Stapf asked that the music
be turned down. At some point in the early morning hours, Kelsey Erdman, Mr. Erdman’s
younger sister, came into the kitchen and told Ms. Stapf that she was concerned about Mr.
Erdman driving his truck home. She stated that Mr. Erdman was embarrassing her, and she
asked Ms. Stapf if she should drive him home. Ms. Stapf had seen Mr. Erdman consume
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alcohol throughout the evening, and she knew that Kelsey was concerned about his level of
intoxication. Nevertheless, Ms. Stapf did not recommend that Kelsey drive Mr. Erdman
home or do anything else in response to Kelsey’s request for assistance. She did not call Mr.
Erdman’s parents regarding his condition and inability to drive. Nor did she check Mr.
Erdman’s condition, attempt to take his keys, or ask Mr. Erdman to stay at her residence until
he was sober.
Ms. Stapf knew that Steven, Mr. Erdman, and Mr. Erdman’s 18-year-old brother,
Thomas Erdman, consumed alcohol at her residence and were intoxicated as a result. She
observed that Steven and Thomas were “not right, tired, like drunk.” Ms. Stapf knew or
should have known that, by the early morning hours of November 28, Mr. Erdman was so
intoxicated that he could not stand without assistance. Nevertheless, she did not call any
parent to inform them that their children were illegally consuming alcohol, were intoxicated,
and could not drive safely home. She also did not intervene and refuse to permit any
intoxicated drivers from leaving her residence by car, despite knowing that they were
intoxicated and unable to safely and legally operate a vehicle.
At approximately 2:48 a.m. on November 29, Mr. Erdman left the party with Thomas
and Steven. Mr. Erdman drove his parents’ 1994 GMC pickup truck. Thomas sat in the
front passenger seat, and Steven rode in the bed of the truck. Shortly after leaving
Ms. Stapf’s residence, Mr. Erdman crashed the truck on Folly Quarter Road. Steven was
ejected from the truck and killed. Mr. Erdman’s blood alcohol concentration at the time of
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the accident was .21 grams per 100 milliliters of blood; more than 2.5 times the legal limit.
Steven’s blood alcohol concentration was between .21 to .30 grams per 100 milliliters of
blood.
On October 28, 2010, Ms. Stapf was charged with allowing underage persons to drink
alcohol in violation of CL § 10-117(b). The State ultimately placed the charge on the stet
docket.
On January 20, 2010, Mr. Erdman was charged with, inter alia, committing a
homicide with a motor vehicle while under the influence of alcohol. He entered a guilty plea,
and the court sentenced him to five years of incarceration, all but 18 months suspended.
On November 27, 2012, Ms. Davis filed the Complaint. On May 22, 2013, she filed
the First Amended Complaint. In Count I, social host liability, she alleged that Ms. Stapf,
as the host of the party, owed a “duty to ensure that alcohol was consumed with care and
refrain from allowing intoxicated persons such as [Mr.] Erdman from continuing to consume
alcohol,” and she “also owed a duty to all who travel on the roadways to refrain from
allowing intoxicated individuals to drive a vehicle while intoxicated.” Ms. Davis alleged that
Ms. Stapf breached this duty when she permitted Mr. Erdman to continue consuming alcohol
while he was intoxicated and failed to stop Mr. Erdman from driving, despite knowing that
he was unable to drive due to his level of intoxication. As a direct and proximate cause of
Ms. Stapf’s breach of duty, Mr. Erdman crashed the truck, resulting in Steven’s death.
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In Count II, “Negligence – Duty to Person in Class Statute was Designed to Protect,”
Ms. Davis alleged that Ms. Stapf owed a duty to Steven, who was a member of the class of
people meant to be protected by criminal statute CL § 10-117(b), which “prohibits an adult
from knowingly and willfully allowing an individual under 21 years of age to possess or
consume an alcoholic beverage at a residence or within the curtilage of a residence that the
adult owns and in which the adult resides.”1 Ms. Davis alleged that Ms. Stapf breached that
duty when she permitted a party to occur at her residence knowing that underage persons,
including Steven, were illegally consuming alcohol. She asserted that Ms. Stapf knew or
should have known that Steven was intoxicated and unable to care for himself, and Ms.
Stapf’s actions were “a direct and proximate cause of [Steven’s death] because [his] degree
of intoxication prevented him from making an intelligent and informed decision about getting
into a vehicle with a drunk driver” and climbing into the back of a pickup truck without using
a seatbelt.
In Count III, Negligence - Duty to Act, Ms. Davis alleged that Ms. Stapf, standing in
loco parentis to Steven and other minors on her property, assumed a duty of care to protect
them from harm resulting from her illegal actions, including preventing Steven, who was
unable to make informed and intelligent decisions, from riding in the bed of truck driven by
1
In the complaint, Ms. Davis asserted that Steven was a member of the class intended
to be protected by two other criminal statutes in addition to Md. Code (2014 Supp.) § 10-
117(b) of the Criminal Law Article (“CL”): CL § 3-602.1 and CL § 3-204. On appeal, Ms.
Davis asserts only that Steven was an intended protectee of CL § 10-117(b). Therefore, we
will address only the arguments raised in the pleadings relating to CL § 10-117(b).
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a drunk driver. Ms. Davis alleged that Ms. Stapf breached her duty to Steven by failing to:
prevent him from getting into the vehicle driven by a drunk driver, confiscate the keys of any
individuals drinking at her house, contact Steven’s parents to inform them of the situation,
make sure Steven remained at her house until he could make an informed and intelligent
decision, prevent Mr. Erdman from leaving her property after Kelsey told her that she was
concerned about him driving due to intoxication, and locate a sober driver to take Steven
home.
Counts IV and V asserted claims for wrongful death and survival based on Ms. Stapf’s
negligence.
Ms. Stapf moved to dismiss the complaint on four grounds. Specifically, she asserted:
(1) “Maryland does not recognize social host liability or dram shop liability”; (2) Ms. Stapf’s
alleged violation of a nonprescriptive criminal statute did not establish tort liability; (3)
Ms. Stapf did not stand in loco parentis to Steven; and (4) Ms. Stapf “did not assume a legal
duty by permitting a party to occur.”
In Ms. Davis’ opposition, she argued that the court should deny Ms. Stapf’s motion
to dismiss for several reasons. First, she argued that Ms. Stapf owed a duty to protect her
underage guests on her property based on a “special relationship” that “existed between her
and these guests as the sole authority figure that monitored the actions of the party goers
based on the doctrine of in loco parentis.” Second, she asserted that Ms. Stapf owed a duty
of care to Steven, a minor, pursuant to CL § 10-117(b), which prohibits adults from
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permitting unrelated minors to consume alcohol in their homes. Ms. Davis asserted that
Steven was in the class of individuals CL § 10-117(b) was designed to protect, i.e., underage
drinkers, and the harm suffered by Steven was the type of harm against which the statute was
designed to protect.
Third, Ms. Davis argued that Ms. Stapf assumed a duty to Steven when she permitted
the party to occur in her garage where underage persons were illegally consuming alcohol.
She asserted that Ms. Stapf assumed a duty to protect the minors when she monitored the
party and permitted the underage drinking.
At the hearing on the motion to dismiss, the parties reiterated the arguments presented
in the written filings. Counsel for Ms. Davis, however, did expound on the argument that
there was a “special relationship” creating a duty. Counsel stated that the facts supported
a basis for the existence of such a relationship, which “[w]e’ve characterized . . . as in loco
parentis relationship, which is one recognized under Maryland law.” Counsel cited Biscan
v. Brown, 160 S.W.3d 462 (Tenn. 2005), arguing that the “crux and the nature of the special
relationship is one of exercising control” and asserting that Ms. “Stapf owed a duty . . . based
on her actions of monitoring the party, exercising judgment and control over who could be
there, taking steps to have someone move a vehicle to obstruct the driveway.” Those facts,
counsel asserted, “establish[] a special relationship.”
At the conclusion of the hearing, the court made oral findings. With respect to the
issue of social host liability, the court reviewed prior cases on this issue and stated that “there
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is in this state no social host liability to a party who is injured as a direct or indirect result of
the host having served alcohol to a tortfeasor.” The Court quoted Wright v. Sue & Charles,
Inc., 131 Md. App. 466, 478, cert. denied, 359 Md. 670 (2000), as follows: “Whether such
cause of action is necessary or desirable in our democratic scheme of things . . . is a decision
for the people themselves to make speaking through the properly accountable legislature
representatives.” Accordingly, the circuit court concluded that “it’s clear as a legal
proposition that we simply don’t recognize social host liability,” the court “would dismiss
as to that aspect of it.”
With respect to Count II, the violation of a statute, the court stated that the argument
“caught my attention.” It ultimately rejected that argument, however, stating that, in
Veytsman v. New York Palace, Inc., 170 Md. App. 104 (2006), this Court held that statutes
imposing criminal penalties for serving alcohol to intoxicated people and minors do not
create civil liability. The court further found that Steven was not a member of the class of
people that CL § 10-117 was designed to protect, recognizing, however, that this finding
“may be more of a sort of looking at the dots if you will a proximate cause aspect as opposed
to creating the conditions . . . . I mean, it’s a rather passive situation in the sense of
unfortunately the decedent was a passenger not the driver.”
With respect to Count III, which the court stated tracked the in loco parentis
argument, the court stated that “the status of in loco parentis arises only when one is willing
to assume . . . all the obligations, receive all the benefits associated with one standing as a
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natural parent,” and the court did not find that “in a social setting of a few hours.” The court
explained that it might be a different situation if Steven “was going to be a weekend guest
and there was communication with one set of parents and the [other] set of parents and . . .
assuming other responsibilities there might be a stronger argument.” It concluded:
But I just don’t find as it’s pled here that it creates a situation of in loco
parentis or . . . children who show up at a normal after football game season
or football or after prom type of party maybe after prom with the
understanding was they’re going to spend the night or something, it may be a
different situation. I just don’t see it here as falling into in loco parentis, so I
would dismiss on that basis also.
Finally, the court dismissed Counts IV and V, the wrongful death and the survival
action, “under the same logic as the social host argument.” On September 18, 2013, based
on its findings, the court issued an order dismissing the counts of Ms. Davis’ First Amended
Complaint seeking damages against Ms. Stapf.2
STANDARD OF REVIEW
This Court has explained the standard of review of a trial court’s order granting a
motion to dismiss for failure to state a claim upon which relief could be granted:
“A trial court may grant a motion to dismiss if, when assuming the truth
of all well-pled facts and allegations in the complaint and any inferences that
may be drawn, and viewing those facts in the light most favorable to the
non-moving party, ‘the allegations do not state a cause of action for which
relief may be granted.’” Latty v. St. Joseph’s Soc’y of the Sacred Heart, Inc.,
2
The court ordered that Count VI of the First Amended Complaint, which alleged an
uninsured motorist claim against Erie Insurance, remain open and active. On December 18,
2013, Ms. Davis dismissed the claim against Erie Insurance. On January 10, 2014, Ms.
Davis filed her Notice of Appeal to this Court.
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198 Md. App. 254, 262-63 (2011) (quoting RRC Northeast, LLC v. BAA Md.,
Inc., 413 Md. 638, 643 (2010)). The facts set forth in the complaint must be
“pleaded with sufficient specificity; bald assertions and conclusory statements
by the pleader will not suffice.” RRC, 413 Md. at 644.
“‘We review the grant of a motion to dismiss de novo.’” Unger v.
Berger, 214 Md. App. 426, 432 (2013) (quoting Reichs Ford Road Joint
Venture v. State Roads Comm’n, 388 Md. 500, 509 (2005)). Accord Kumar
v. Dhanda, 198 Md. App. 337, 342 (2011) (“We review the court’s decision
to grant the motion to dismiss for legal correctness.”), aff’d, 426 Md. 185(2012). We will affirm the circuit court’s judgment “‘on any ground
adequately shown by the record, even one upon which the circuit court has not
relied or one that the parties have not raised.’” Monarc Constr., Inc. v. Aris
Corp., 188 Md. App. 377, 385 (2009) (quoting Pope v. Bd. of Sch. Comm’rs,
106 Md. App. 578, 591 (1995)).
Advance Telecom Process LLC v. DSFederal, Inc., ___ Md. App. ___, No. 1371, Sept.
Term, 2014, slip op. at 7-8 (filed July 30, 2015).
DISCUSSION
Ms. Davis contends that the circuit court erred in granting Ms. Stapf’s motion to
dismiss on the ground that Ms. Stapf owed no duty of care to Steven. She asserts that Ms.
Stapf had a duty of care based on: (1) a statutory duty pursuant to CL § 10-117(b); (2) “a
special relationship between the adult social host and the minor on her property”; and (3) her
conduct, “which constituted an assumption of a duty of care.”
Ms. Stapf contends that Maryland does not recognize a cause of action for social host
liability. She asserts that the Maryland appellate courts consistently have held that a mere
social host owes a lesser duty to a guest than a liquor licensee owes to a business patron,
regardless of the age of the guest or patron, and accordingly, “in light of the recent decision
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in Warr v. JMGM Group, LLC, [433 Md. 170 (2013),] it would be incongruous to hold [her]
liable under a theory of social host liability.”
To prevail on a negligence claim, a plaintiff must show the following elements: “(1)
that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant
breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or
injury proximately resulted from the defendant’s breach of the duty.” Warr, 433 Md. at 181
(quoting Valentine v. On Target, Inc., 353 Md. 544, 549 (1999)). The motion to dismiss in
this case focused on the first element, the duty of care.
Analysis of whether a defendant owes a plaintiff a duty is a critical first step in a
negligence claim; without a legal duty, there can be no conduct that breaches a duty that
causes harm. Muthukumarana v. Montgomery County, 370 Md. 447, 457-58 (2002)
(“‘[N]egligence is a breach of a duty owed to one, and absent that duty, there can be no
negligence.’”) (quoting Ashburn v. Anne Arundel County, 306 Md. 617, 627 (1986)). “Duty”
has been defined as “‘an obligation, to which the law will give recognition and effect, to
conform to a particular standard of conduct toward another.’” Warr, 433 Md. at 181
(quoting Patton v. USA Rugby Football, 381 Md. 627, 636-37 (2004)). The existence of a
legal duty generally is a question of law for the court to decide. Veytsman, 170 Md. App. at
114.
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Because the motion to dismiss was based on the lack of a duty, and Ms. Davis’ brief
focuses on the element of duty, we will begin with this element of the claim. As explained,
below, however, that element is not dispositive in this case.
I.
Dram Shop/Social Host Liability
In assessing whether the circuit court erred in ruling, as a matter of law, that Ms.
Davis did not assert a valid cause of action against Ms. Stapf, we begin by noting that we do
not write on a clean slate. The Maryland appellate courts repeatedly have held that, under
the common law, civil liability does not attach to vendors of alcoholic beverages or social
hosts for the torts of inebriated patrons or guests. See, e.g., Warr, 433 Md. at 170; Wright,
131 Md. App. at 470-71.
In Wright, 131 Md. App. at 469, Judge Charles E. Moylan, Jr., writing for this Court,
discussed the evolution of the common law in this regard. In that case, 17-year-old Anthony
Wright, along with 18-year-old Jason Burch, purchased alcohol from a liquor store. They
then drove to the home of another friend, Bobby Foard, where they consumed the alcohol
they had purchased. Id. Mr. Wright subsequently drove away and was killed in a crash. Id.
Mr. Wright’s parents filed suit against the defendant owners/operators of the liquor store that
had sold him the alcohol, as well as against the parents of Mr. Foard. Id. The circuit court
granted motions to dismiss in favor of all defendants. Id.
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On appeal, this Court recounted the history of dram shop liability, beginning with
State v. Hatfield, 197 Md. 249, 254-55 (1951).3 In Hatfield, the Court of Appeals addressed
whether a tavern could be liable for injuries that Frank Love, a minor to whom the tavern
illegally served alcohol, caused to James Joyce.4 In holding that the tavern could not be held
liable, the Court noted that, although other jurisdictions had enacted civil damage statutes
creating rights of action for injuries against those who, by selling alcohol, “caused” the
intoxication of the person who caused the injury, no such statute had been enacted in
Maryland. Id. at 254. The Court stated:
Apart from statute, the common law knows no right of action against
a seller of intoxicating liquors, as such, for ‘causing’ intoxication of the person
whose negligent or wilful wrong has caused injury. Human beings, drunk or
sober, are responsible for their own torts. The law (apart from statute)
recognizes no relation of proximate cause between a sale of liquor and a tort
committed by a buyer who has drunk the liquor.
3
The Court of Appeals has explained the term “dram shop liability,” as follows:
The term “dram shop liability” refers to “[c]ivil liability of a
commercial seller of alcoholic beverages for personal injury caused by an
intoxicated customer.” B LACK’S L AW D ICTIONARY 568 (9th ed. 2009). “Dram
shop” is an archaic term for a bar or tavern. B LACK’S L AW D ICTIONARY 567.
The term “dram” is an antiquated unit of fluid measurement, equivalent to one
eighth of a liquid ounce, used by apothecaries; its use in the phrase “dram
shop” was a result of the fact that taverns often sold hard alcohol by the dram.
Warr v. JMGM Group, LLC, 433 Md. 170, 173 n.1 (2013).
4
Md. Code (1951) Art. 2B § 114 provided at the time that it was a misdemeanor to
sell alcohol to a person under 21 years of age or to a person visibly under the influence of an
alcoholic beverage. This provision currently is codified in Md. Code (2011 Repl. Vol.) Art.
2B § 12-108(a)(1).
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. . . “Under the common law it is not an actionable wrong either to sell or to
give intoxicating liquors to an able-bodied man.”
Id. at 254-55. The Court held that the tavern was not responsible for the actions of the
intoxicated patron because “‘[t]he common law rule holds the man who drank the liquor
liable and considers the act of selling it as too remote to be a proximate cause of an injury
caused by the negligent act of the purchaser of the drink.’” Id. at 255 (quoting Seibel v.
Leach, 288 N.W. 774, 775 (Wis. 1939)).
In Wright, Judge Moylan noted that there had been several attempts to change this
law, but the Court of Appeals had declined to do so, stating that the determination whether
to impose civil liability on vendors of alcoholic beverages for the torts of drunk patrons
“clearly impacts on the development of the law relating to the dispensing and consumption
of alcoholic beverages, a subject long pervasively regulated by the legislature.” Id. at 473(quoting Felder v. Butler, 292 Md. 174, 183-84 (1981)). If such a change should be made,
it should be done by the General Assembly. Wright, 131 Md. App. at 473. Accord Warr,
433 Md. at 252. After reviewing this history regarding dram shop liability, we held that Mr.
Wright’s parents could not maintain an action against the liquor store. Wright, 131 Md. App.
at 476.
The Court next turned to the action against Mr. Foard’s parents for negligently
permitting the deceased to consume alcohol at their residence. Id. at 477. We stated that this
Court’s prior decision in Hebb v. Walker, 73 Md. App. 655, cert. denied, 312 Md. 601(1988), was controlling.
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In Hebb, the Court addressed the liability of a 17-year-old social host and his parents.
The 17-year-old boy, while his parents were out-of-town, had a party, with nearly 400
persons, and one of the uninvited, intoxicated guests, 16-year-old Holly Walker, flipped her
car, killing the passenger, David Hebb. 73 Md. App. at 657-58. Characterizing the case as
“yet another attempt to import into Maryland a form of Dram Shop liability,” the Court stated
that it would be “illogical to hold a minor party host liable for injuries caused to a third
person by an intoxicated individual who was an interloper at the party” when a liquor
licensee would not be civilly liable. Id. at 658-59. The Court stated: “Surely a liquor
licensee must owe a business patron a higher duty of care than does a social host to a guest.
Yet, the liquor licensee, as we have seen, is not liable for the motor torts of his intoxicated
patrons.” Id. at 659.
The Court in Hebb rejected the argument that the violation of Md. Code, Art. 27 §
400A, which made it unlawful for a person under 21 years of age to possess an alcoholic
beverage, created civil liability. It noted that breach of a statutory duty is considered
evidence of negligence only if the following three requirements are met: (1) the plaintiff was
“‘a member of the class of persons the statute was designed to protect’”; (2) the “‘injury
suffered must be of the type the statute was designed to prevent’”; and (3) the plaintiff
presents “‘legally sufficient evidence to demonstrate that the statutory violation was the
proximate cause of the injury sustained.’” Id. at 660 (quoting Pahanish v. Western Trails,
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Inc., 69 Md. App. 342, 362 (1986)). The Court held that appellants failed this test for two
reasons:
1) Md. Ann. Code art. 27, § 400, et seq., was designed to protect minors
against the consumption of alcohol. The evidence was that Holly Walker
consumed alcohol at the home of the decedent. The alcohol she drank at
Johnson's was taken by her into the party; 2) Even if Johnson served or
provided alcohol to Ms. Walker, that factor was not the direct cause of the
death of [David] Hebb.
Id. at 661. The Court concluded by stating that, if social host liability were to be a valid
cause of action, it must be enacted by the legislature.
In Walker, 131 Md. App. at 478, this Court stated that the message in Hebb was clear:
“Maryland does not recognize a cause of action for social host liability.” The Court
concluded: “Whether such a cause of action is necessary or desirable is, in our democratic
scheme of things, a decision for the people themselves to make, speaking through their
properly accountable legislative representatives.” Id. at 478.
More recently, in Warr, the Court of Appeals revisited the issue whether a tavern
owner could be held liable for the actions of an intoxicated patron. In a four to three opinion,
the majority of the Court declined to recognize a cause of action against a commercial vendor
who sells alcohol to another person. 433 Md. at 199. The analysis in the majority opinion,
however, focused on the duty element of a cause of action for negligence, as opposed to the
element of proximate cause.
In Warr, a patron of Dogfish Head Alehouse (the “tavern”) consumed at least 17
drinks and then drove away and struck Mr. Warr’s vehicle, resulting in injuries to Mr. Warr
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and one of his daughters and the death of his second daughter. Id. at 173-74. Mr. and Mrs.
Warr sued the tavern, alleging that it “had breached its duty to ‘not furnish alcohol to
intoxicated persons,’ which caused their injuries.” Id. at 174. The Court declined to impose
dram shop liability on the tavern “in the absence of any duty owed by the tavern to the
Warrs.” Id. at 177.
The Court began by noting the general rule that “‘there is no duty to control a third
person’s conduct so as to prevent personal harm to another, unless a special relationship
exists either between the actor and the third person or between the actor and the person
injured.’” Id. at 183 (quoting Remsburg v. Montgomery, 376 Md. 568, 583 (2003)). It
adhered to the principle that “[h]uman beings, drunk or sober, are responsible for their own
torts,” id. at 190 (quoting Hatfield, 197 Md. at 254), and it held that a tavern owner does not
have a duty of care to members of the general public for harm caused by a patron, absent a
“special relationship.” Id. at 183-195. Because the Warrs did not “allege a special
relationship between themselves and the owners” of the tavern, the tavern “did not owe a
duty to the Warrs, as members of the general public.” Id. at 195, 199.
The Court of Appeals then discussed the Warrs’ argument that, “because there is a
criminal statute prohibiting the sale of alcohol to visibly intoxicated persons,” “the tavern
owners owed a duty to refuse to serve an intoxicated patron.”5 Id. at 195. In rejecting that
5
Maryland Code (2011 Repl. Vol.) Art. 2B § 12-108(a)(1) states that a licensed
vendor of alcohol may not sell alcohol: “(i) To a person under 21 years of age for the
(continued...)
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argument, the Court stated that, historically, it had “not extrapolated civil liability from
criminal statutes regulating the sale of alcohol,” noting that, in Felder, 292 Md. at 183-84,
the Court had rejected the argument that the existence of this criminal statute was sufficient
to establish civil liability because the legislature “had not enacted laws to impose civil
liability.” Id. at 197-98. The Court explained that, to impose civil liability on the basis of
a criminal statute, a party must show “‘(a) the violation of a statute or ordinance designed to
protect a specific class of persons which includes the plaintiff, and (b) that the violation
proximately caused the injury complained of.’” Id. at 198 (quoting Brooks, 378 Md. at 79).
The Court stated that the criminal statute relied on by the Warrs was not designed to protect
a specific class if persons. It explained:
The statutes regulating the sale of alcohol and prohibiting its provision to those
visibly intoxicated were enacted “for the protection, health, welfare and safety
of the people of this State.” Maryland Code (1957, 2011 Repl.Vol.), Article
2B, Section 1-101(a)(3). Our jurisprudence establishes that this general class
of individuals is not sufficient to create a tort duty because, “we have always
required the statute or ordinance allegedly violated to set forth mandatory acts
that are clearly for the protection of a particular class of persons and not
merely for the public as a whole.” . . . Thus, the existence of criminal statutes
prohibiting the sale of alcohol to intoxicated individuals is not sufficient to
support liability in the instant case, because the statute does not identify a
particular class of protectees.
Id. at 198-99 (quoting Weitzke v. Chesapeake Conference Ass’n, 421 Md. 355, 388 (2011)).
5
(...continued)
underage person’s own use or for the use of any other person; or (ii) To any person who, at
the time of the sale, or delivery, is visibly under the influence of any alcoholic beverage.”
-19-
Accordingly, the Court held that the tavern “did not owe a duty to the Warrs, as
members of the general public.” Id. at 199. The Court further stated that it agreed with the
words of the Supreme Court of Delaware that “the determination of whether to impose
liability on tavern owners for injuries caused by intoxicated patrons involves significant
public policy considerations and is best left to the General Assembly.” Id. at 199 (quoting
Shea v. Matassa, 918 A.2d 1090, 1094 (Del. 2007)).6
II.
Ms. Davis’ Contentions
Ms. Davis acknowledges the above precedent, and she does not argue that Ms. Stapf
had a duty to Steven under a theory of common law social host liability.7 She contends,
however, that Ms. Stapf had a statutory duty to Steven pursuant to CL § 10-117(b), which
“arises separate and apart from the common law” governing social host liability. She also
asserts that “social hosts that furnish and facilitate the illegal consumption of alcohol by
6
Judge Sally Adkins authored a dissent, in which Judges Harrell and McDonald
joined. With respect to the issue whether the tavern owed a duty of care to the Warrs, the
dissent stated that the “special relationship” doctrine “comes into play only when the actor’s
conduct is passive,” Warr, 433 Md. at 209, and because the Warrs alleged that the tavern, a
commercial vendor, actively created a risk of harm in serving a visibly intoxicated patron,
the Warrs stated a claim that the tavern had a duty of reasonable care. Id. at 220-237. The
dissent further indicated a willingness to overrule the precedent from State v. Hatfield, 197
Md. 249 (1951), and Felder v. Butler, 292 Md. 174 (1981) that, as a matter of law, providing
alcohol is not the proximate cause of injury occurring as a result of the intoxication of the
person served. Warr, 433 Md. at 237-253.
7
Ms. Davis does not contest, therefore, the circuit court’s dismissal of Count I, which
alleged negligence under the theory of common law social host liability.
-20-
minors owe a duty based on a special relationship to these minors.” Finally, she contends
that Ms. Stapf assumed a duty of care to prevent harm from occurring to Steven, stating that
Ms. “Stapf’s affirmative acts of permitting the party to occur in her house and by permitting
minors to consume massive amounts of alcohol triggered a duty of reasonable care.” We turn
to address these arguments.
A.
Statutory Duty
Ms. Davis argues that the general rule against social host liability is not applicable
here because, even in the absence of a common law duty, a statute may impose a duty of care
on a defendant. This principle, often referred to as “the Statute or Ordinance Rule,” provides
that, “where there is an applicable statutory scheme designed to protect a class of persons
which includes the plaintiff,” the “defendant’s duty ordinarily ‘is prescribed by the statute’
or ordinance,” and “violation of the statute or ordinance is itself evidence of negligence.”
Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 111 (2014) (quoting Brooks v. Lewin Realty
III, Inc., 378 Md. 70, 78 (2003)). For civil liability to be imposed on the basis of a statute,
a party must show the following:
(a) the violation of a statute or ordinance designed to protect a specific class
of persons which includes the plaintiff, and (b) that the violation proximately
caused the injury complained of. “Proximate cause is established by
determining whether the plaintiff is within the class of persons sought to be
protected, and the harm suffered is of a kind which the drafters intended the
statute to prevent. * * * It is the existence of this cause and effect relationship
that makes the violation of a statute prima facie evidence of negligence.”
-21-
Id. at 112 (quoting Brooks, 378 Md. at 79). Accord Warr, 433 Md. at 198.
1.
Protection of a Particular Class of Persons
In Blackburn, 438 Md. at 125, the Court made clear that “the Statute or Ordinance
Rule” is limited; it applies only when the statute is designed to protect a particular class of
persons and “not merely the public at large.” In that case, three-year-old Christopher
suffered a severe brain injury after he nearly drowned in an apartment complex pool. Id. at
104. Christopher’s mother filed suit against the owner of the apartment complex, and others,
who argued that they were entitled to summary judgment because, inter alia, Christopher was
a trespasser, and therefore, they owed only a limited duty to him. Id. at 105-06. The Court
addressed whether, in addition to the limited duty imposed by the common law, petitioners
had a duty pursuant to regulations set forth in the Code of Maryland Regulations
(“COMAR”) regarding pool barriers. Id. at 118-22.
The Court first looked to see who the regulations were enacted to protect. It
concluded that they were enacted to protect the health and safety of individuals at pools, and
in particular, the regulations identified a particular class to be protected, i.e., children under
the age of five. Id. at 125. Because Christopher was three years old at the time of the
accident, he was a member of the protected class. Id. at 126. Accordingly, pursuant to the
Statute or Ordinance Rule, because Christopher was a member of the class of persons
identified in the regulations, and he allegedly sustained injuries that the statute was intended
-22-
to prevent, a reasonable trier of fact could find that the alleged violation of the COMAR
requirements showed a breach of a duty that petitioners owed Christopher. Id. The Court
held that the “the common-law rule that a landowner owes a limited duty to trespassers was
trumped by the Statute or Ordinance Rule.” Id. at 115.
In Warr, 433 Md. at 198-99, as indicated, the Court similarly noted that a criminal
statute will create a tort duty only if it is enacted for the protection of a particular class of
persons. In that case, the Court held that Art. 2B § 12-108(a)(1), preventing the sale of
alcohol to visibly intoxicated persons, did not satisfy this requirement because the statute was
enacted for the protection of “the people of this State,” a general class of individuals.
With that background in mind, we assess Ms. Davis’ argument that the Statute or
Ordinance Rule applies here. CL § 10-117 provides as follows:
(a) Furnishing alcohol. — Except as provided in subsection (c) of this
section, a person may not furnish an alcoholic beverage to an individual if:
(1) the person furnishing the alcoholic beverage knows that the
individual is under the age of 21 years; and
(2) the alcoholic beverage is furnished for the purpose of consumption
by the individual under the age of 21 years.
(b) Allowing possession or consumption of alcohol. — Except as provided
in subsection (c) of this section, an adult may not knowingly and willfully
allow an individual under the age of 21 years actually to possess or consume
an alcoholic beverage at a residence, or within the curtilage of a residence that
the adult owns or leases and in which the adult resides.
(c) Exceptions. — (1) The prohibition set forth in subsection (a) of this
section does not apply if the person furnishing the alcoholic beverage and the
individual to whom the alcoholic beverage is furnished:
(i) are members of the same immediate family, and the alcoholic
beverage is furnished and consumed in a private residence or within the
curtilage of the residence; or
(ii) are participants in a religious ceremony.
-23-
(2) The prohibition set forth in subsection (b) of this section does not
apply if the adult allowing the possession or consumption of the alcoholic
beverage and the individual under the age of 21 years who possesses or
consumes the alcoholic beverage:
(i) are members of the same immediate family, and the alcoholic
beverage is possessed and consumed in a private residence, or within the
curtilage of the residence, of the adult; or
(ii) are participants in a religious ceremony.
An adult who violates CL § 10-117 “is guilty of a misdemeanor and on conviction is subject
to: (1) a fine not exceeding $2,500 for a first offense; or (2) a fine not exceeding $5,000 for
a second or subsequent offense.” CL § 10-121(b).8
Ms. Davis argues that CL § 10-117(b) meets the first requirement of the Statute or
Ordinance Rule because it was “‘designed to protect a specific class of persons which
includes the plaintiff.’” Blackburn, 438 Md. at 116 (quoting Warr, 433 Md. at 198). In
support she states:
The legislative histories leave no doubt about the purpose of this enactment:
to protect minors from being served alcohol at homes other than their own. Its
enactment was motivated by the prevalence of house parties where adult
parents permitted minors to come into their homes and drink alcohol, often
resulting in serious injury or death.
8
In 1988, the legislature enacted subsection (a) of what is now CL § 10-117,
prohibiting a person from furnishing alcohol to persons under the legal drinking age. 1988
Md. Laws ch. 403, 3120. The purpose of this statute was to close a loophole in the law
where licensed sellers of alcoholic beverages were guilty of a misdemeanor for selling to a
person under 21, but a person could purchase the liquor for the under-21 person and not be
held accountable. See Senate Judicial Proceedings Committee Floor Report, 1988 Leg. 410th
Sess. (Md. 1988). In 1996, what is currently subsection (b) of CL § 10-117 was enacted,
prohibiting an adult from knowingly allowing a person under 21 years of age to possess or
consume an alcoholic beverage in the residence in which the adult resides. 1996 Md. Laws
ch. 441, 2748.
-24-
Ms. Davis asserts that 17-year-old Steven was within the class of protectees, i.e., individuals
under 21 years of age at the home of a unrelated adult.
Ms. Stapf disagrees. She contends that “CL § 10-117(b) was not enacted to protect
a specific class of persons, but instead to promote the general welfare of the people of
Maryland and accordingly, civil liability may not be imposed on the basis of a violation of
this statute.” She argues that “statutes regulating the provision of alcohol to minors or
intoxicated individuals are meant to protect the public as a whole from the various dangers
associated with alcohol consumption by irresponsible individuals.” She cites Warr, 443 Md.
at 198-99, for the proposition that, “[w]here a statute is enacted for the benefit of the general
public, Maryland precedent dictates that violation of the statute cannot be used to establish
civil liability.”
In assessing the legislative intent and purpose in enacting CL § 10-117(b), we look
first to the language of the statute. See Mummert v. Alizadeh, 435 Md. 207, 213 (2013) (“To
ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the
language of the statute.”). Here, the plain language of the statute suggests that the purpose
of CL § 10-117(b) was to protect persons under the age of 21, who are deemed to be too
immature to appreciate the consequences of drinking. See Congini v. Portersville Valve Co.,
470 A.2d 515, 517 (Pa. 1983) (legislature has deemed persons under 21 to be “incompetent
to handle the affects of alcohol”).
-25-
Because the language, however, is not clear and unambiguous regarding the purpose
of enacting CL § 10-117(b), we look to the legislative history. See Allstate Lien & Recovery
Corp. v. Stansbury, 219 Md. App. 575, 585 (2014), cert. granted, 441 Md. 217 (2015). A
review of this legislative history reveals that the statute was designed to protect a specific
class of persons, i.e., persons under the age of 21 who knowingly are permitted to drink at
the home of an unrelated adult for nonreligious purposes.
The bill file for HB 267 reflects that the 1996 enactment of CL § 10-117(b) was
related to the tragic death of 15-year-old Tiffany Fouts, who, after drinking and becoming
semiconscious, was raped and ultimately died.9 Gail H. Ewing, President of the Montgomery
County Council, submitted a letter in support of HB 267, stating that “[t]he tragic story
involving Tiffany Fouts, who was drunk, raped and left outside to die, shows the
9
The Court of Appeals summarized the facts surrounding her death in a subsequent
civil case involving the response of the 911 operations center. It stated that, on November
11, 1995, Tiffany Fouts and a friend went to Eric F.’s house, where three other boys were
present, along with Eric’s mother, Ms. Tresa F. Muthukumarana v. Montgomery County, 370
Md. 447, 457-58 (2002). This Court explained:
Shortly after Tiffany and Melanie arrived, “alcoholic beverages were
made available and consumed by all of” the minors at the home. Within one
hour, Tiffany began to vomit and “became semiconscious.” At that time,
“certain guests engaged in nonconsensual sexual acts with Tiffany,” dropped
“heavy objects” on her head, and “urinated upon her.” In an effort to conceal
Tiffany’s condition, Eric F. and Donte W. dragged her outside of the home
through the basement. They “left Tiffany, wearing only a tee shirt, skirt,
socks, and shoes, in an area of woods located directly behind the townhome.”
Id.-26-
consequences of adults who ignore underage drinking in their homes. By making adults
legally responsible for allowing minors to possess or consume alcohol, this bill serves as a
deterrent to underage drinking.” Letter from Gail H. Ewing, President, Montgomery County
Council, to Hon. Joseph F. Vallario, Jr., Chairman, House Judiciary Comm. (Feb 14, 1996)
(on file Legislative Services Bill File HB 267 (Md. 1996)). The bill file also refers to a
Baltimore Sun newspaper article titled “Teen’s death provides impetus for drinking bill.”
Sherrie Ruhl, Teen’s death provides impetus for drinking bill, B ALT. S UN, Jan. 7, 1996, at 3B
(http://perma.cc/U4MD-CH43). Moreover, a letter from the American Academy of
Pediatrics supporting the bill noted that underage drinking endangered teens. Letter from
Melvin Stern, MD, Chair, Legislative Committee of the Maryland Chap. of the American
Academy of Pediatrics to Hon. Joseph F. Vallario, Jr., Chairman, House Judiciary Comm.
(Jan. 30, 1996) (on file Legislative Services Bill File HB 267 (Md. 1996)). A more general
concern with protecting young people is reflected in a letter from the Maryland Underage
Drinking Prevention Coalition, which stated: “Coalition members feel strongly that this bill
will serve a great purpose by reducing the number of adult sanctioned underage drinking
parties and the resulting often deadly consequences to our young people.” Letter from
Bonnie M. Holmes, Exec. Dir. of the Maryland Underage Drinking Prevention Coalition to
Hon. Joseph F. Vallario, Jr., Chairman, House Judiciary Comm. (Feb. 7, 1996) (on file
Legislative Services Bill File HB 267 (Md. 1996)).
-27-
Based on this legislative history, we conclude that the impetus for CL § 10-117(b) was
to protect young people under the age of 21, who are deemed to be too immature to
appreciate the consequences of drinking, from the dangers relating to drinking. The
legislators sought to do this by discouraging adults from knowingly allowing other people’s
children to drink alcohol in their homes. As such, CL § 10-117 was designed to protect a
specific class of persons, i.e., persons under the age of 21 who knowingly are permitted to
drink at the home of an unrelated adult for nonreligious purposes.
CL § 10-117 is significantly more limited than the statutes involved in Hatfield and
Warr, which regulated the sale of alcohol by commercial vendors and were enacted for the
purpose of protecting the “people of the State.” Md. Code (2011 Repl. Vol.) Art. 2B, § 1-
101(a); Warr, 433 Md. at 198. Because CL § 10-117 was designed to protect a specific class
of persons, and Steven was a member of this protected class, the first prong of the Statute and
Ordinance Rule is satisfied.
The District Court of Appeal of Florida applied a similar analysis in Newsome v.
Haffner, 710 So.2d 184 (Fla. Dist. Ct. App. 1998). In that case, the estate of a minor injured
by a self-inflicted gunshot wound brought a civil suit against a residential social host. The
circuit court dismissed the complaint, ruling that it failed to state a cause of action. The
appellate court reversed, holding that a claim for negligence was properly made based upon
a violation of the “open house party” statute. This statute made it a crime for an adult having
control of a residence to
-28-
“allow an open house party to take place at said residence if any alcoholic
beverage or drug is possessed or consumed at said residence by any minor
where the adult knows that an alcoholic beverage or drug is in the possession
of or being consumed by a minor at said residence and where the adult fails to
take reasonable steps to prevent the possession or consumption of the alcoholic
beverage or drug.”
Id. at 185 (quoting Fla. Stat. § 856.15 (1997)).
The court stated that this statute was “clearly designed to protect minors from the
harm that could result from the consumption of alcohol or drugs by those who are too
immature to appreciate the potential consequences.” Id. It held that, by enacting the statute,
“the legislature has therefore imposed a duty of care on social hosts and created a civil cause
of action for a statutory violation.” Id. at 186.
Other courts similarly have held that a statute prohibiting furnishing alcoholic
beverages to a person under 21 years of age was meant to protect a specific class of persons
“against a particular hazard, i.e., the dangerous effects of intoxication of those” under 21.
See, e.g., Longstreth v. Gensel, 377 N.W.2d 804, 812-13 (Mich. 1985). Accord Hanson v.
Friend, 824 P.2d 483, 456 (Wash. 1992) (statute prohibiting furnishing liquor to any person
under 21 years of age, which protects a minor’s health and safety interest from the minor’s
own inability to drink responsibly, imposes a duty of care on social hosts not to serve liquor
to minors).
Having found that the first prong of the Statute or Ordinance Rule was satisfied, we
turn to the second prong of the rule, i.e., that the harm suffered by Steven is the kind that the
General Assembly intended the statute to prevent.
-29-
2.
Proximate Cause
The second prong of the Statute or Ordinance Rule requires a showing that the
violation of the statute was the proximate cause of the injury. As the Court of Appeals has
explained:
“Proximate cause is established by determining whether the plaintiff is within
the class of persons sought to be protected, and the harm suffered is of a kind
which the drafters intended the statute to prevent * * * It is the existence of
this cause and effect relationship that makes the violation of a statute prima
facie evidence of negligence.”
Blackburn, 438 Md. at 126 (quoting Brooks, 378 Md. at 79). As explained below, we
conclude that the harm suffered here is the kind that the drafters intended to prevent.
As indicated, the legislative history shows that the purpose of the statute was to
protect minors, who are too immature to handle the affects of alcohol, from danger and risky
behavior associated with intoxication. Here, Steven’s intoxication exposed him to danger
that, tragically, was fatal. The harm to Steven, which is alleged to have resulted from
Steven’s impaired judgment due to intoxication, was the kind that the drafters intended to
prevent. As Ms. Davis states in her brief, Steven’s intoxication placed him in a position of
unreasonable peril:
Steven was prevented from making an intelligent and informed decision about
leaving the party that night. Indeed, had Steven not been intoxicated, he would
not have ridden in a truck with a driver that was so intoxicated he could barely
stand. He certainly would not have climbed into the back of a pickup truck,
fallen asleep, and allowed an intoxicated driver to later drive the truck away
-30-
at a high rate of speed while he lay unprotected in the rear of the truck, a
position of great peril.
Given our conclusion that Steven was a member of a particular class of persons sought
to be protected, the harm suffered was the kind that the drafters of the statute intended to
prevent, and that Ms. Davis alleged that Ms. Stapf knew that Steven and other unrelated
minors were drinking at her home for non-religious reasons, we concluded that Ms. Davis
properly alleged that Ms. Stapf had a duty under CL § 10-117(b) to exercise reasonable care
to stop the underage drinking and protect those minors. We make clear, however, that a duty
pursuant to CL § 10-117(b) will be found only when an adult knowingly and willfully allows
an unrelated individual under the age of 21 to drink alcohol at his or her residence. The
Statute or Ordinance Rule does not apply to impose a duty on an adult when persons under
21 drink alcohol in a residence without the adult’s knowledge.
Ordinarily, based on this analysis, we would find that Ms. Davis has set forth a prima
facie case of negligence sufficient to prevail against a motion to dismiss and it was for the
trier of fact to determine: (1) if Ms. Stapf violated the duty imposed by statute; and (2) if so,
whether the violation was a proximate cause of Steven’s injuries. See Pittway Corp. v.
Collins, 409 Md. 218, 253 (2009) (“It is well established that, ‘unless the facts admit of but
one inference . . . the determination of proximate cause . . . is for the jury.’”) (quoting
Caroline v. Reicher, 269 Md. 125, 133 (1973)); Macleary v. Hines, 817 F.2d 1081, 1084-85
(3d Cir. 1987) (whether social host’s conduct was cause of injury, where minor alleged that
his impaired condition caused him to create an unreasonable risk of harm to himself by
-31-
accepting a ride with a person so obviously intoxicated that a reasonable person would not
have accepted a ride, was a question for the jury). This Court has made clear, however, that
the principle that a violation of a statute is evidence of negligence is a rule of evidence, not
the creation of a substantive cause of action. Joseph v. Bozzuto Mgmt. Co., 173 Md. App.
305, 325 (2007). Because the Court of Appeals has held that there is no cause of action for
social host liability, we cannot conclude that Ms. Davis has stated a cause of action.
The Court of Appeals has held, as a matter of law, that “the man who drank the liquor
is liable” and the act of providing it is “too remote to be a proximate cause of an injury.”
Hatfield, 197 Md. at 255. Accord Warr, 433 Md. at 202-03 (Adkins, J., dissenting) (common
law precluding dram shop liability “‘was predicated on the theory that the drinking rather
than the serving of alcohol was the proximate cause of intoxication,’” and “‘the chain of legal
causation between the negligent serving of an alcoholic beverage and the injury was severed
by the customer’s voluntary act in drinking the alcohol.’”) (quoting F RANK A. S LOAN ET AL.,
D RINKERS, D RIVERS, A ND B ARTENDERS: B ALANCING P RIVATE C HOICES AND P UBLIC
A CCOUNTABILITY 118 (2000)); Hebb, 73 Md. App. at 661 (providing alcohol to minor driver
-32-
not direct cause of death of passenger).10 Pursuant to this precedent, Ms. Davis, as a matter
of law, has not shown the element of proximate cause to support her negligence claim.
One could argue that this precedent, holding that, when dealing with an “ordinary able
bodied [person], it is the consumption of alcohol rather than the furnishing thereof, that is the
proximate cause of any subsequent damage” is distinguishable when dealing with persons
under the age of 21. Given that the General Assembly has determined these persons to be
“incompetent to handle the affects of alcohol,” Congini, 470 A.2d at 517, it could be argued
that persons under 21 do not qualify as “ordinary able bodied” persons. This Court is not
able to make that distinction in this case, however, given that the person served the alcohol
in Hatfield was a minor. To the extent such a distinction should be made, it must be made
by the Court of Appeals or the General Assembly.
Accordingly, although this Court holds that CL § 10-117(b) imposed a duty on
Ms. Stapf, and the complaint sufficiently alleged a violation of this duty, given the Court of
10
In Hatfield, the tort was committed by the intoxicated patron of the tavern. That
Mr. Erdman was the driver here, as opposed to Steven, is not significant to the analysis. As
the Supreme Court of Delaware has explained:
Using similar reasoning (that is, consumption of the alcohol and not the
sale thereof is the proximate cause of any resulting injuries), a majority of
jurisdictions has determined that a patron who is injured as a result of his
voluntary intoxication does not have a cause of action against the tavern
operator at common law.
Wright v. Moffitt, 437 A.2d 554, 555 (Del. 1981). Accord Miller v. Gastronomy, Inc., 110
P.3d 144, 147 (Utah Ct. App. 2005).
-33-
Appeals precedent regarding the issue of proximate cause, we cannot say that Ms. Davis
stated a cause of action based on CL § 117(b). The circuit court properly dismissed Count
II, alleging negligence based on the violation of a statutory duty.
B.
Special Relationship
Ms. Davis next argues that Ms. Stapf had a duty of care to Steven based on a “special
relationship” she established when she hosted a party at her residence and permitted minors
and underage individuals to consume alcohol. She asserts that this duty required Ms. Stapf
“to exercise reasonable care to protect Steven and the other minors in her residence from
harm,” including “contacting [Ms. Davis] or the other parents of the children at the Stapf
house that night.” Ms. Stapf contends that Ms. Davis failed to preserve her claim that there
was a “special relationship” because Ms. Davis’ argument in the circuit court was based on
the doctrine of in loco parentis.
To be sure, the focus of the complaint was that Ms. Stapf “owed a special duty”
because she “stood in an in loco parentis relationship with Steven.” At the hearing on the
motion to dismiss, however, counsel for Ms. Davis expounded on the argument, stating that
there was a “special relationship,” which “[w]e’ve characterized . . . as in loco parentis
relationship, which is one recognized under Maryland law.” Counsel cited Biscan, 160
S.W.3d at 462, which addresses whether an adult allowing a minor to drink alcohol has a
duty to the minor based on a special relationship, and he argued that the facts in this case
-34-
“establish[] a special relationship.” The issue of a duty based on a special relationship was
sufficiently preserved our review.
The general rule is that a person “‘is under no special duty to protect another from . . .
acts by a third person, in the absence of statutes, or a special relationship.’” Pace v. State,
425 Md. 145, 156 (2012) (quoting Horridge v. St. Mary’s County Dep’t of Soc. Servs., 382
Md. 170, 183 (2004)). “[T]he creation of a ‘special duty’ by virtue of a ‘special relationship’
can be “established by either (1) the inherent nature of the relationship between the parties;
or (2) by one party undertaking to protect or assist the other party, and thus often inducing
reliance upon the conduct of the acting party.” Patton v. United States of America Rugby
Football, 381 Md. 627, 639 (2004) (quoting Remsburg, 376 Md. at 589-90). With respect
to the first prong, the inherent nature of the relationship, a “special relationship” that can give
rise to liability for actions of a third party includes: (1) a special relationship between the
actor and the third person, “which imposes a duty upon the actor to control the third person’s
conduct”; or (2) a special relationship between the actor and the person injured, which
creates a duty on the actor to protect the third party. Pendleton v. State, 398 Md. 447, 473
(2007) (quoting Lamb v. Hopkins, 303 Md. 236, 242 (1985)).
Here, Ms. Davis does not assert that Ms. Stapf had a special relationship with Steven.
Rather, she asserts that Ms. Stapf had a duty of care to Steven based on her special
relationship with him. She asserts that “[a]n adult social host that serve[s], permits, or
facilitates the illegal consumption of alcohol on the adult’s property creates a special
-35-
relationship to the minors who come onto the property, and the adult property owner owes
these minors a duty of care.”
In support of her argument that Ms. Stapf had a special relationship with Steven that
imposed a duty on her to protect Steven, Ms. Davis cites cases in other jurisdictions that have
held that an adult social host had a duty of care to minors who were permitted to drink
illegally on their property based on a special relationship between the social host and the
minor. For example, in Biscan, 160 S.W.3d at 466-67, 16-year-old Jennifer Biscan was
injured in a single-car automobile accident after leaving a party hosted by an adult, Paul
Worley, at Worley’s home. Id. In finding that Worley had a special duty to protect minors
at the party the Supreme Court of Tennessee stated that, “because of their immaturity and
inexperience, a duty may exist towards minors where it might not exist towards adults.” Id.
at 480.
The court evaluated several factors – public policy, foreseeability, and means and
ability to control the third party – in determining whether Worley had a sufficient relationship
to his minor guests, including Biscan, such that he owed her a duty. Id. With respect to
public policy, the court found that, because minors generally are prohibited from consuming
alcohol, and public policy considerations favor imposing a duty to act for the protection of
minors where such a duty might be absent when dealing with adults, that factor weighed in
favor of finding a special relationship. Id. at 480-81. With respect to foreseeability, the court
concluded that, because it was foreseeable that guests would drink and drive, it also was
-36-
foreseeable that guests would ride with drivers who had been drinking; thus, that factor
weighed in favor of finding a special relationship. Id. at 481. With respect to means and
ability to control the third party, the court concluded that, Worley, an adult host who was “in
charge” of a party held for minors, “certainly has some ability to control the conduct of his
guests,” which may have included preventing access to their cars or contacting the parents
of intoxicated guests. Id. at 481-82. Concluding that these factors supported a finding of a
special relationship, the court held that, because Worley “knowingly permitted and facilitated
the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise
reasonable care to prevent his guests from harming third persons or from befalling harm
themselves.” Id. at 482. Accord Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005) (“As
a party host who is alleged to have made alcohol illegally available to underage guests,
defendant owed plaintiff ‘the duty of exercising reasonable care to protect [him] from harm
and criminal attack at the hands of fellow [guests] or other third persons.’”) (quoting 2
S TUART M. S PEISER ET AL., T HE A MERICAN L AW OF T ORTS § 9:20, at 1125 (1985)) (footnote
omitted).
The argument presented here, that an adult who knowingly allows an unrelated person
under 21 to drink alcohol in his or her home assumes a special relationship with that person
that imposes a duty of care, is an intriguing one. We need not, however, resolve the issue
because, similar to the previous argument, even if there was a duty, the Court of Appeals has
held, as a matter of law, that the drinking is the proximate cause of any subsequent injury,
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not the furnishing (or allowing consumption) of the alcohol. Accordingly, the circuit court
properly dismissed Count III, asserting that Ms. Stapf assumed a duty of care based on a
special relationship, which Ms. Davis characterized as an in loco parentis argument.
C.
Assumption Of Duty
Ms. Davis’ final argument is that Ms. Stapf owed Steven a duty of care because she
“assumed a duty to protect the minors in her care when she knowingly permitted minors and
underage individuals, including Steven, to enter her property and consume large amounts of
alcohol in her garage.” In support of her argument, Ms. Davis again cites Biscan for the
proposition that, by her affirmative actions of permitting the party to occur in her house and
permitting minors to consume “massive amounts of alcohol,” a duty of reasonable care was
“triggered.” Moreover, because Ms. Stapf “specifically exercised control over the
consumption of alcohol and who was permitted to be on her property,” she owed “these
minors a duty of care.”
Ms. Stapf does not dispute the general proposition that, when a person acts for the
benefit of another, he must act carefully. She contends, however, that Ms. Stapf’s
acquiescence to underage drinking was not an act by which she “assumed a duty of care, and
to hold otherwise would abrogate the common law rule that Maryland does not recognize
social host liability.”
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Although there generally is no duty to act for the benefit of another person, generally
“when one does indeed act for the benefit of another, he [or she] must act in a reasonable
manner.” Muthukumarana, 370 Md. at 487. A duty to act reasonably, however, is
conditioned upon an affirmative act being taken. Id. at 499. For example, where a tavern
owner places an unconscious patron in a sleigh and starts the horses, he has undertaken a
duty to the injured third party by actually placing the patron in the transport and starting it
home. Warr, 433 Md. 182.
Here, Ms. Stapf did not affirmatively act to protect Steven from death. Rather, she
acquiesced to underage persons drinking alcohol at her home. That acquiescence does not
equate to the assumption of duty. For this reason, as well as the lack of proximate cause, as
previously discussed, Ms. Davis states no cause of action against Ms. Stapf on this ground.
III.
Conclusion
Precedent precludes a conclusion that Ms. Davis stated a cause of action against Ms.
Stapf for negligence. The circuit court properly granted Ms. Stapf’s motion to dismiss the
complaint.
JUDGMENT AFFIRMED. COSTS TO
B E PAID BY APPELLEES.
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REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2533
September Term, 2013
_________________________
NANCY DAVIS, ET AL.
v.
LINDA STAPF, ET AL.
_________________________
Krauser, C.J.,
Graeff,
Nazarian,
JJ.
_________________________
Concurring Opinion by Nazarian, J.
_________________________
Filed: August 26, 2015
I join the Court’s opinion, and write solely to express a slightly different view about
where this opinion leaves the state of the law going forward. In my view, and in a break with
the majority’s, see slip op. at 33 n.10, the fact that Mr. Erdman was the driver is significant
to the analysis of this case because that is the fact that breaks the proximate-causal chain.
Our holding here, and the source of the duty we have identified, distinguishes this situation
from the typical dram shop or social host case in a way that could matter in another case with
slightly different facts.
In the dram shop and social host liability cases the majority correctly discusses, the
analytical path between a duty and the injury at issue is interrupted by an intervening
decision, almost always the drinker’s decision to drive. In Warr v. JMGM Group, LLC, 433
Md. 170 (2013), to cite only the most recent example, the Court of Appeals “decline[d] to
impose dram shop liability on Dogfish Head [Alehouse] in the absence of any duty owed to
the Warrs,” the survivors of the driver the Alehouse’s customer hit and killed on his way
home. Id. at 177. The Court held–reiterated, really–that “[a] tavern owner who provides
alcohol to an intoxicated patron does not exercise control over the conduct of the patron, in
driving or walking, for example,” and that “regardless of any foreseeability, a duty does not
exist to the general public, with respect to harm caused by a third party, absent the existence
of a special relationship between the person sued and the injured party or the person sued and
the third party.” Id. at 183-84. These principles are nothing new, and our courts have
applied them consistently in both the dram shop, see, e.g., State v. Hatfield, 197 Md. 249,
254-55 (1951); Wright v. Sue & Charles, Inc., 131 Md. App. 466, 478 (2000), and social
host contexts. See, e.g., Hebb v. Walker, 73 Md. App. 655, 658-59 (1988).
Unlike the typical dram shop or social host case, however, this case does not fail for
lack of a duty. To the contrary, we now have held, and I wholeheartedly agree, that Steven
Dankos1 was a member of the class the General Assembly intended Md. Code (2002, 2012
Repl. Vol.), § 10-117 of the Criminal Law Article (“CL”) to protect, and that the Statute or
Ordinance Rule imposed a duty of care on Ms. Stapf. Slip op. at 22-29. Ms. Stapf had a duty
not to serve him alcohol knowingly in her home, and she indisputably breached that duty.
Nor was that duty vitiated, in my view, by Steven’s decision to drink. Steven was a minor,
and a minor to whom Ms. Stapf owed a duty, grounded in statute, not to serve him in the first
place. So again, to the extent that the historic dram shop analysis severs the analysis at the
drinker’s decision to drink, see slip op. at 31-32, the source and nature of the duty we have
recognized here flowed from Ms. Stapf to Steven precisely because he drank alcohol in her
house with her knowledge. And in light of the specific scope of CL § 10-117 and the narrow
class it protects, the General Assembly has already distinguished this case from Hatfield in
that regard. See slip op. at 33.
It is not enough, though, just to find a duty. This case fails because Ms. Stapf’s
breach of her duty to Steven was not the proximate cause of his death. Instead, the proximate
1
I will follow the majority’s pattern of referring to Steven by his first name.
2
cause of his death was the intervening decision by Mr. Erdman–an adult, to whom Ms. Stapf
did not owe the same duty–to drive drunk with Steven in the bed of his truck. But in another
case–if, for example, a minor drank to the point of alcohol poisoning, or perhaps was injured
in a drunken fall in the server’s house–the causal connection between the service of alcohol
and the minor’s injuries might justify a different result. That case obviously must await
another day, but I understand our opinion in this case to leave open that possibility within this
narrow analytical space.
3