Social Host Immunity: A New Paradigm to Foster Responsibility

• Author: Lee A. Coppock
• Position: Trial Advocacy Fellow at the Stetson University College of Law
• Pages: 19-40

SOCIAL HOST IMMUNITY: A NEW PARADIGM TO

FOSTER RESPONSIBILITY

LEE A. COPPOCK1

I. INTRODUCTION

Although there have been ef forts over the yea rs to address t he

incalculable lo sses caused by drunk drivers on our roadways , the continued

rate of incidents is stagg ering.1 In the United States, thirty-six peopl e die

each day i n crashes involving alcohol-impai red drivers .2 In 2000, alco hol-

involved crashes resulted in 16,792 fatalit ies, 513,000 nonfatal injuries,

and a cost of close to $51 bil lion.3 “Today alcohol is involved in 40% of

traffic deaths.”4

People involved in crashes with impaired drivers often pay with their

lives, health, an d emotion al, physical, and financial well-being. This is not

to say the impaired drivers suffer no co nsequences. In fact, civil and

Copyright © 2009, Lee Cop pock

1 Lee Coppock is a Trial Advocacy Fellow at the Stetson University College of Law.

Professor Coppo ck received his J.D. at the Stetson Unive rsity College of Law and his B.A.

from the University o f South Florida. The author thank s Stetson University College o f Law

and Dean Darby Dicker son for their research support, and Vilma M artinez and Brian

Dettman for research assist ance.

1 See NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITED STATES

DEPARTMENT OF TRANSPORTATION, TRAFFIC SAFETY FACTS 2006 DATA: ALCOHOL-

IMPAIRED DRIVING, FAT AL CRASHES AND FAT ALITIES INVOLVING ALCOHOL-IMPAIRED

DRIVERS 1 (Mar. 2008), available at http://www-nrd.nht sa. dot.gov/Pubs/81080 1.PDF (“In

2006, 13 ,470 people were killed in alcohol-impaired-driving crashes. These a lcohol-

impaired-driving fatalities accounted for 32 percent of the total m otor vehicle traffic

fatalities in the United St ates.”).

2 NATIONAL CENTER FOR INJURY PREVENTION AND CONTROL, CENTERS FOR DISEASE

CONTROL AND PREVENTION, IMPAIRED DRIVING, http://www.cdc.gov/ MotorVehicleSafety/

Impaired_Driving/impair ed-drv_factsheet.html (last visited Sept. 17, 20 09).

3 NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNITE D STATES DEPARTMENT

OF TRANSPORTATION, THE ECONOMIC IMPACT OF MOTOR VEHICLE CRASHES 2000 2 (May

2002), a vailable at http://ww w-nrd.nhtsa.dot.gov/Pubs/ 80944 6.PDF. Alcohol-related

crashes accounted for approx imately 22% of all crash-related costs in the y ear 2000. Id.

4 NATIONAL INSTITUTES OF HEALTH, UNITED STATES DEPARTMENT OF HEALTH &

HUMAN SERVICES, FACT SHEET: ALCOHOL-RELATED TRAFFIC DEATHS, http://www.nih.gov/

about/researchresultsforthep ublic/AlcoholRelatedTrafficDeaths.pdf (last vi sited Sept. 17,

2009).

20 CAPITAL UNIV ERSITY LAW REVIEW [38:19

criminal sanctions have long been in place.5 However, these sanctions

clearly have not had th e desired effect of significantly red ucing the

incidents of impaired drivin g,6 and additionally, they often fail to

adequately compensate victims—and society—fo r the losses t hat occur.

To that end, some juri sdictions have moved to recognize a c ause of action

in tort by injured parties against those who provide alcohol to the imp aired

driver.7 The movement away from the com mon law doctrine of immunity

for those who serve alcohol now includes p eople who serve in a

commercial context, but only in a very few jurisdict ions are those who

serve in a social s etting exposed to sanctions of any kind.8

Traditionally, exp osure to liability is bel ieved to modify behavior.9

This belief is th e lynchpin of mos t tort l aw liability theory an d is often

viewed as the “great equalizer,” the mechanism for allocating risk among

those who engage i n an ente rprise, benefit from it, and are s ituated in t he

best position to recompens e those who suffer from the ill effects of that

enterprise.10 This article argu es that the provider of alcohol, in a purely

social context, should be ex posed to liability, under limit ed and defined

circumstances, for subsequent causally-related damages. Before

discussing this need, Part II of this p aper provid es a h istorical back drop of

social host li ability, beginning with a brief ex amination of liq uor liability at

common law and en ding with the g radual extension of liability to

5 Traffic Safety Cen ter at the University of Ca lifornia-Berkeley, A History of the

Science and Law Behind DUI, ONLINE NEWSLETTER, Summer 2003, at 4, http://www.

tsc.berkeley.edu/newslett er/Summer03/TSCNewsletter_Summer03.pdf (“In 1939, Indiana

became the first state to enact a law th at used bloo d alcohol conc entration as a trigger for

sanctions.”).

6 See H. Laurence Ross, Soc ial Con trol Throu gh Deterr ence: Dr inking-and-Driving

Laws, 10 ANN. REV. SOCIOL. 21, 32 (1984).

7 See, e.g., ALA. CODE § 6-5-71 (2005) (pro viding a cause of action for a wife, child,

parent, or person injured ag ainst individual w ho furnished the alcohol); CONN. GEN. STAT.

ANN. § 30-102 (We st 2003) (holding a seller of liquor liabl e for selling to an intoxicated

person who subsequently in jures another).

8 See M arc E. Odier, Note, Social Hos t Liability: Opening a Pandora’s Box, 61 IND.

L.J. 85, 85–86 (1985).

9 See, e.g. , Margo S chlanger, Second Best Damag e Action Deterrence, 55 DEPAUL L.

REV. 517, 517–18 (2006) (“Potential litigation can ind uce poten tial defend ants to favor

more cognizable or demons trable care, and less cognizable or demon strable harm.”).

10 See Brian L. Ch urch, Not e, Balancing Correct ive Justic e and Deterrence: Injury

Requirements and the N egligent Infliction o f Emotional Distress, 60 ALA. L. REV. 697,

701–02 (2009).