Grab a drink and pass the blame: an argument against social host liability.

• Author: Scherer, Richard M., Jr.

UNDERAGE DRINKING in the United States remains an endemic problem. While every state has set a minimum drinking age of twenty-one, underage persons continue to drink. (1) Alcohol is the most widely used substance of abuse among America's youth, more than both tobacco and illicit drugs. (2) While the notion of underage drinking is neither new nor novel, the statistics are nonetheless surprising. Underage drinkers are responsible for over sixteen percent of all alcohol consumed in the United States, (3) and underage students consume nearly half of all of the alcohol consumed by students attending four-year colleges and universities. (4) Furthermore, statistics show that underage drinking is often reckless and extremely dangerous. In a 2001 college survey, approximately forty-four percent of college students reported that they had engaged in binge drinking, (5) which is usually defined as five or more drinks in a row for men and four or more drinks in a row for women. (6) Each year, drinking by college students, ages eighteen to twenty-four, contributes to an estimated 1,700 student deaths, almost 600,000 injuries, nearly 700,000 assaults, and about 100,000 instances of alcohol related sexual assault or date rape. (7) Looking at underage drinkers as a whole, the U.S. Surgeon General has estimated that approximately 5,000 persons under the age of twenty-one die each year from alcohol-related injuries involving underage drinking. (8)

Minimum-age laws have not prevented those under the age of twenty-one from drinking, let alone from drinking in excess. In the face of national campaigns, resolutions by both houses of Congress, initiatives by the U.S. Surgeon General, and multimillion-dollar campaigns, (9) the amount of underage drinking has been virtually unchanged. (10) As minimum-age laws fail to prevent underage drinking, more and more states have turned to imposing civil liability on those that provide alcohol to underage drinkers. In a report issued by the National Academies Institute of Medicine, states and localities are urged to enact a comprehensive set of strategies to reduce underage alcohol consumption, including strengthening social host liability laws. (11)

Social host liability "imposes, by statute or court decision, a civil duty on social hosts across the relevant state that can be enforced through litigation brought by injured private parties seeking monetary damages against the host." (12) Social host liability is similar to, but not the same as dram shop acts, which allow third parties to recover from those that sell alcohol to an individual. (13) Instead, social host liability allows anyone who furnishes alcohol to a guest to be held liable for the actions of that drinker. Unlike dram shop acts, which target commercial vendors such as bars and restaurants, a social host is an individual, and can be anyone who hosts a social gathering where alcohol is served, including private individuals, employers, and organizations. (14)

This article evaluates social host liability, paying special attention to case law and statutory authority that specifically targets social hosts who furnish alcohol to individuals who are between the ages of eighteen and of twenty-one. This article argues that social host liability is not the proper way to address the problems associated with underage drinking, as it simply shifts blame without addressing underlying problems that lead to irresponsible drinking behaviors. In addition, this article provides alternative, more effective, strategies to combat irresponsible drinking behavior among college-age individuals.

1. Common Law Social Host Liability

   Social host liability occurs in three forms. (15) First, courts have extended the application of dram shop acts to social hosts. (16) While dram shop acts, as explained above, impose liability on commercial ventures for the intoxication of their patrons, in some jurisdictions plaintiffs have successfully argued that dram shop acts not only create a cause of action against a bar owner but a social host as well. (17) Social host liability has also been found based on a social host's violation of a beverage control act setting the legal drinking age at twenty-one. (18) Courts have ruled that in violating these types of laws, the social host is negligent per se for the actions of the guest. Social host liability has been found rooted within ordinary negligence, (19) where the social host breaches a duty by continuing to serve either an already intoxicated guest or an underage guest. In doing this, the social host creates an unreasonable and foreseeable risk of harm to the public.

   Social host liability in the college setting began in the 1980s when courts began to impose liability on fraternities for alcohol created risks. (20) "These cases constituted a shift away from notions of exclusive student personal responsibility for high-risk drinking injuries." (21) A representative early case is Fassett v. Delta Kappa Epsilon. (22) In Fassett, after attending a fraternity party, seventeen-year-old Anne Fassett, nineteen-year-old Monica Buckley, and eighteen-year-old Corbin Evans were involved in a car crash where Evans, the driver, collided with a pickup truck. (23) As a result of the accident, Buckley was killed and Fassett was rendered quadriplegic. (24) Buckley's estate and Fassett brought negligence actions against the fraternity and various fraternity members. (25) The United States Court of Appeals for the Third Circuit held that a rule extending social host liability only to individuals who physically served alcohol to minors was unduly restrictive and held that civil liability could be imposed on any individual who intentionally and substantially aided minors in consuming alcohol. (26) The Fassett decision "enormously extended the range of host liability by defining an accomplice host as one who, in any way, cooperatively promotes or sponsors a party at which alcohol is consumed, even if he or she does not directly serve or furnish alcohol to guests." (27)

   In Jefferis v. Commonwealth, (28) Kurt Jefferis, an underage individual, was injured after he became intoxicated after attending a fraternity party. The Superior Court of Pennsylvania held that the defendant could be held liable as an entity for the injuries sustained by Jefferis, if it "intentionally rendered substantial assistance to [him] in his consumption of alcohol." (29) The court used the theory of accomplice liability, setting out the following three prong test to determine the fraternity's liability:

   (1) the defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor, and (2) the defendant must have acted in a way which did furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and (3) the defendant's act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor. (30) However, neither the court's test, which looked at three factors, all surrounding the fraternity's act of furnishing the alcohol to Jefferis, nor its analysis of social host liability analyzed plaintiff's decision to consume alcohol, focusing instead on the fact that fraternity provided him with alcohol that led to his intoxication and subsequent injury.

   Since the 1980s, cases involving fraternities have continued to be the focal point in the realm of social host liability. (31) In Pawlowski v. Delta Sigma Phi, (32) for example, the underage plaintiff attended a fraternity party at Quinnipiac University, where he was served beer and punch containing alcohol. (33) The plaintiff, after becoming intoxicated, left the party and was hit by a car while crossing the street, causing severe injuries that resulted in his death. (34) Pawlowski's estate brought a claim against the host and others, claiming both negligence and recklessness. (35) The party host moved for summary judgment, arguing "that he took particular and appropriate steps to prevent the service of alcohol to minors such as [plaintiff]." (36) The court denied defendant's motion for summary judgment, reasoning that the host procured the keg that minors drank from and knew that underage drinkers were drinking at the party. (37) The court held that it was therefore up to a jury to decide if Pawlowski was in fact served alcohol at the party and subsequently died as a result. (38) The court made no mention of Pawlowski's own voluntary decision to consume reckless amounts of alcohol. (39)

   While fraternities often find themselves involved in the most high profile of lawsuits involving social host liability, a great deal of underage drinking occurs absent the involvement of such organizations. In Herr v. Booten, (40) for example, Benjamin Herr and his three college roommates began drinking early in the afternoon of January 16, 1984, the day before Herr was set to turn twenty-one, to celebrate Herr's impending twenty-first birthday. That evening, Herr died from alcohol poisoning after consuming a nearly full bottle of Jack Daniel's whiskey by himself. (41) An autopsy revealed that his blood alcohol content was 0.64. (42) Herr's estate brought an action against Herr's friends, alleging that they were negligent in causing Herr's death. (43) In finding Herr's roommates negligent, the court reasoned:

   Herr, could not have legally purchased or consumed alcohol on January 16, 1984; but he could have legally done so on the following day, the day of his birth, January 17. Thus, the furnishing of alcohol to Eric B. Herr on January 16, 198[4], amounted to negligence per se as a matter of law. (44) Because Herr's death was a result of his consumption of alcohol hours before he was twenty-one, the defendants were unable to succeed on their summary judgment motion, as the per se finding of negligence made their claim of assumption of risk moot. (45)

   In Rust v. Reyer (46), the leading case on social host...