Cause of Action: Social host liability for intoxicated guest?

From Wilkerson v. Williams, COA, NOT to be Published, 2/18/2011

The Kentucky Supreme Court rendered its opinion in Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), which addressed whether a national fraternal organization had a duty to exercise reasonable care to control one of its local chapters so as to prevent the death of a minor who was killed in a car accident after consuming alcohol served on the premises of the local chapter. Although the Carneyhan court did not rule directly on the issue of social host liability, its analysis is directly pertinent to the existence of a duty on Jeffrey’s part.

The Court began by citing the general rule that “an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another.” Carneyhan, 169 S.W.3d at 849. It then acknowledged that there was an exception to the rule and that a duty could arise to exercise reasonable care to prevent harm by controlling a third person’s conduct where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Id. (citations omitted.) The Court observed that in order for liability to attach, “the defendant’s ability to control the person who caused the harm must be real and not fictional and, if exercised, would meaningfully reduce the risk of the harm that actually occurred.” Id. at 851. The Court then surveyed cases where courts have found that such a special relationship exists, including a Supreme Court of Texas opinion which addressed a social host’s liability for harm caused by an intoxicated guest. See Graff v. Beard, 858 S.W.2d 918 (Tex. 1993).

The [Texas] court held that the social hosts had no duty to prevent their guest from consuming alcohol or later driving, in part because the hosts had no means of effective control over the guest: “we cannot assume that guests will respond to a host’s attempts, verbal or physical, to prevent the guests from driving.” Carneyhan, 169 S.W.3d at 853 citing Graff, 858 S.W.2d at 921-22.

Similarly, in this case, Jeffrey had no effective means of control over Aaron, an adult guest, to prevent him from driving, much less from assaulting another guest.

Furthermore, “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Norris v. Corrections Corp. of America, 521 F.Supp.2d 586, 588 (W.D.Ky. 2007). “The most important factor in determining whether a duty exists is foreseeability.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003)(citation omitted). “[C]ourts have held that, except under extraordinary circumstances, individuals are generally entitled to assume that third parties will not commit intentional criminal acts.” James v. Meow Media, Inc. 300 F.3d 683, 693 (6th Cir.2002).

The system of criminal liability has concentrated responsibility for an intentional criminal act in the primary actor, his accomplices, and his co-conspirators. By imposing liability on those who did not endeavor to accomplish the intentional criminal undertaking, tort liability would diminish the responsibility placed on the criminal defendant. The normative message of tort law in these situations would be that the defendant is not entirely responsible for his intentional criminal act.
Id. at 694.

Even though physical assaults would appear to be more foreseeable in bars than in parties at private homes, Kentucky courts have refused to impose liability on bar owners for such assaults. See Murphy v. Second Street Corp., 48 S.W.3d 571; Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999). “Whether the defendant owed a duty is a question of law for the court to decide.” Lee v. Farmer’s Rural Elec. Co- op Corp., 245 S.W.3d 209, 212 (Ky.App. 2007). In light of the foregoing case law, the trial court did not err as a matter of law in dismissing Jeffrey as a defendant.


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