CAUSE OF ACTION: PARENTAL LIABILITY, SOCIAL HOST (MARTIN V. ELKINS, COA, PUB., 8/31/2012)

The question presented here is whether a social host owes a duty to underage guests who consume alcoholic beverages on the host’s property. This presents an issue of first impression as prior cases involving the Dram Shop Act are inapplicable to a social host serving (or allowing guests to consume) liquor in his own home.2 See, e.g., Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 335 (Ky. 1987); Estate of Vosnick v. RRJC, Inc., 225 F. Supp. 2d 737, 740 (E.D. Ky. 2002). Further, no cases in Kentucky discuss this particular issue with respect to minors. Wilkerson v. Williams, 336 S.W.3d 919 (Ky. App. 2011). We review this question of law de novo. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).

Social host liability is a fledgling area of the law in this jurisdiction. To date, there is only one state law case which addresses it (outside of the Dram Shop context). In 2002, the Sixth Circuit noted Kentucky’s lack of case law on social host liability, stating as follows:

Kentucky law on social host liability is nonexistent. The parties do not cite and the Court is unable to find a Kentucky case addressing the liability of social hosts to third parties for the negligent acts of intoxicated guests. To be clear, the Court is faced with a total dearth of precedent[.]

2 Despite Martin’s arguments to the contrary, KRS 244.085(3) is inapplicable to the present case as Elkins neither served nor assisted minors in obtaining alcohol. As stated above, the minors themselves brought alcohol to the party with them.

Given the vacuum of precedential authority, the Court is faced with the task of predicting how the Kentucky courts would rule. The Court is aided in this enterprise by a review of the law in other jurisdictions[.]

Judging from the academic scholarship, other jurisdictions handle the question of social host liability in one of three ways. First, a minority have refused to impose social host liability altogether. Examples include Minnesota, Mississippi, Ohio, Pennsylvania, and Vermont. Second, some have imposed liability by statute. Examples include Georgia and Oregon. Finally, the majority have imposed liability based on common law negligence principles. This final set is further subdivided into two groups—those that extend social host liability for the provision of alcohol to both minors and adults, and those that limit social host liability to the provision of alcohol to minors only. Among the former group are California, Indiana, Iowa, Massachusetts, and New Jersey. Among the latter group are Michigan, North Carolina, and Wisconsin.

Estate of Vosnick, 225 F. Supp. 2d at 740-41 (E.D. Ky. 2002) (internal citation and footnote omitted).

This Court was presented with the opportunity to address social host liability in 2011 in Wilkerson, 336 S.W.3d 919. In Wilkerson, we stated that,

[As a general rule,] “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. . . . [However,] 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[.]”

… .

[Nonetheless,] “[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).

Id. at 923. Unfortunately, Wilkerson is not directly on point, as it involved a tortfeasor of the age of majority.

Nevertheless, we noted in Wilkerson, that “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Id., quoting Norris, 521 F. Supp.2d at 588. In the present case, Elkins, an adult landowner who was aware that minors were imbibing in alcohol on his property, had a special relationship with those minors. Where minors and alcohol are concerned, the scope of foreseeability is expanded. Many ugly outcomes may be foreseeable when minors consume alcohol, including alcohol poisoning, drunk driving accidents, drowning, and other non-intentional torts.

However, the alleged tortious conduct in this case was an assault by Byrd on Martin, an act which occurred at another location and due to an automobile fender bender. This conduct was beyond the scope of reasonable foreseeability by Elkins. Wilkerson, 336 S.W.3d at 923. As previously stated, persons are generally entitled to assume that third parties will not commit intentional criminal acts. Id. Indeed, even the Dram Shop statutes, which are intended to be more stringent as they apply to businesses rather than individual social hosts, place the primary liability for injuries to third parties upon the intoxicated person rather than the business establishment. KRS 413.241(3); Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999).

In Wilkerson, this Court held that a social host could not foresee that a drunken party guest would punch another guest in the face. Wilkerson, 336 S.W.3d at 923. In Isaacs, the Supreme Court stated that, in the dram shop context, a night club owner could not foresee that a bar patron who got into a shouting match with another patron would later in the evening draw a weapon and shoot the other patron. Isaacs, 5 S.W.3d at 503. The law is clear that intentional torts against third parties, such as bar fights, assaults, and shootings, are not foreseeable to social hosts or bar owners. Thus, viewing the evidence in a light most favorable to Martin, Elkins is entitled to judgment as a matter of law. As the Supreme Court noted in Isaacs, although proximate cause is typically a question for the jury, “a duty applies only if the injury is foreseeable.” 5 S.W. 3d at 502. Without a duty, there can be no breach or causation.

Thus, the trial court was correct in granting summary judgment. As has oft been stated, the proper purpose of a summary judgment “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor[.]” Id. at 503.

Accordingly, we affirm the Jefferson Circuit Court.