Social host liability and the distribution of alcohol and narcotics: a survey and guide.

• Author: Slepchuk, Peter A.

1. INTRODUCTION

   Social host liability law is an area of tort law governing the duties owed by social hosts to both their guests and the general public. (1) It originated as a common-law negligence doctrine, but has been heavily codified by almost every state legislature in recent years. (2) Under the common law, a social host who provided alcohol to a guest was never liable to the guest or a third party for damages resulting from the guest's intoxication. (3) With the passage of time and the changing of societal values, customs, and public policy, however, both courts and legislatures across the United States have felt it necessary to expand the scope of social host liability. (4) Today, many jurisdictions allow recovery against social hosts who distribute alcohol to minors and visibly intoxicated persons. (5)

   In recent years, courts in some jurisdictions have been presented with a new and interesting problem concerning social host liability: how to deal with social hosts who distribute not alcohol, but narcotics, to their guests. (6) Surprisingly, the vast majority of jurisdictions are silent on this issue. (7) Whatever the reason for this dearth of case law and statutes, it is an issue that begs to be resolved in order to fully define the rights and responsibilities of social hosts, their guests, and injured third parties. (8)

   This Note begins by providing a brief history of social host liability law in the United States. (9) It then provides a comprehensive survey of the current social host liability laws of each state, analyzing the various approaches and the legal theories supporting them. (10) Next, this Note proposes an approach to social host liability that best benefits society, taking into account both the need to deter irresponsible behavior and to protect innocent parties from harm. (11) Finally, this Note argues that a social host who distributes narcotics to a guest violates the duty of reasonable care and should be liable for injuries resulting from the guest's intoxication. (12)

2. HISTORY

   "Social host liability" is a phrase that describes the civil liability of a person who provides an intoxicant to another without remuneration. (13) When a plaintiff seeks to sue a social host for injuries sustained as a result of his or someone else's intoxication, the cause of action is the tort of negligence. (14) The plaintiff has the burden of proving the elements of an ordinary negligence claim: a recognized legal duty, a breach of that duty, causation in fact, proximate causation, and actual harm. (15) When analyzing a negligence claim brought against a social host, courts must determine whether the social host owed his intoxicated guest a duty, and whether the provision of the intoxicant is the proximate cause of the injury. (16)

   1. Social Host Liability Under the Common Law

      At common law, a licensed vendor of alcoholic beverages could not be held liable for selling alcoholic beverages to a person who, after voluntarily becoming intoxicated, injured himself or a third party. (17) Similarly, a social host who served intoxicating liquors to a guest could not be found liable for injuries resulting from the guest's voluntary intoxication. (18) The rationale for shielding both licensed vendors and social hosts from civil liability lay in the legal fiction of proximate causation. (19) It was believed that the voluntary consumption of an intoxicant, rather than its dissemination, served as the sole proximate cause of any resulting injuries. (20)

   2. Legislative and Judicial Abrogation of the Common-Law Rule

      With the advent of new transportation technologies in the twentieth century--namely the invention and widespread use of the automobile--society's views regarding the liabilities of licensed vendors of alcoholic beverages and social hosts began to change. (21) In contrast to the horse-and-buggy days during which the common law developed, the age of the automobile presented new and startling dangers to travelers on the roads and highways of the United States. (22) As society began to appreciate the dangerous and often deadly results of drunk driving, both state legislatures and courts began to rethink the public policy behind exempting licensed vendors and social hosts from liability. (23)

      1. Legislative Enactments in the Realm of Social Host Liability Law

         In order to provide the public with a right of recovery for injuries suffered as a result of the negligent provision of alcohol, many state legislatures adopted what are known as dram shop statutes. (24) Dram shop statutes, although varying in scope from state to state, abrogated the common-law rule of nonliability in particular circumstances. (25) Initially, state legislatures were more inclined to hold licensed vendors of alcoholic beverages liable for injuries resulting from the negligent sale of alcohol than to hold social hosts liable. (26) The rationale behind this disparate treatment was that social hosts are not in as good a position to protect the public from intoxicated persons as are licensed vendors. (27) As our society has grown more conscious of the hazards associated with drunk driving, however, some state legislatures have extended liability to social hosts as well. (28)

      2. Judicial Modification of the Common-Law Rule

         Courts have often been reluctant to make substantive changes to the common-law rule where the state legislature has already defined the liabilities of commercial vendors and social hosts. (29) Some of these courts have reasoned that where a state legislature has spoken on an issue, it is the legislature's sole prerogative to make any further alterations to the law. (30) Other courts have gone even further, declaring that they no longer have the authority to amend the common law. (31) In Wright v. Sue & Charles, Inc., (32) Justice Moylan eloquently remarked:

         Time was, of course, when common law courts actually made or changed substantive law, but that practice is no longer a valid precedent.... The rationale for such authority in the common law courts was that the primary source of law was not the people, speaking through a legislative branch, but the King. The courts were simply an arm of the King, as the very extension of the word "court" ... demonstrates. That law-making prerogative was forever curtailed when American constitution makers, state and federal, designed a radically different governmental scheme incorporating Montesquieu's concept of three coordinate branches of government and the careful allocation of separate powers among those separate branches. If the judicial branch today occasionally strays beyond its assigned turf, it is either an inadvertent lapse or a stealthy usurpation of a power that properly belongs somewhere else. (33) It should be noted, however, that not all courts are in accord with Justice Moylan's views about the role of the judiciary in writing the common law. (34) Many courts have chosen to modify the common-law rule governing the liabilities of social hosts. (35) These courts maintain that when the public policies supporting a particular common-law rule become outdated, it is the duty of the judiciary to rewrite the law to more accurately reflect the values and concerns of society. (36) Courts that have extended liability to social hosts have done so based upon either traditional negligence principles or upon the theory of negligence per se. (37) Several state courts have altered the common-law rules of social host liability despite the existence of concurrent dram shop legislation. (38) In some instances, state legislatures have elected to prevent judicial interference in the realm of social host liability law by adopting so-called anti-dram shop statutes, which specifically immunize social hosts from any liability arising out of the intoxication of a guest. (39)

   3. Fifty State Survey of Social-Host Liability Law

      1. Alabama

         Alabama has never recognized a common-law cause of action against a social host for the negligent provision of alcohol to a guest. (40) Alabama courts have adhered to the common-law rationale that it is the consumption of the alcohol, rather than its provision, which is the proximate cause of any resulting injuries. (41) In 1909, the Alabama legislature adopted a dram shop statute that created a civil cause of action against a purveyor of alcoholic beverages in favor of a third party injured or killed by an intoxicated person when the purveyor dispensed beverages causing the intoxication "contrary to the provisions of law." (42) Alabama courts have interpreted this statute to apply solely to the commercial sale of alcohol. (43) Therefore, a cause of action may not lie against a social host for negligently dispensing alcohol where no sale is involved and where the alcohol was not dispensed contrary to law. (44)

      2. Alaska

         Alaska's dram shop statute creates civil liability only for licensed vendors of alcohol when the injuries at issue result from a recipient's intoxication. (45) Thus, the statute implicitly absolves social hosts from civil liability for harm resulting from the intoxication of their guests. (46) In Chokwak v. Worley, (47) the Supreme Court of Alaska upheld Alaska's dram shop statute as constitutional. (48) The court applied a rational basis analysis and concluded that "immunizing social hosts from liability caused by their guests' conduct can rationally be based on a view that it is an undesirable interference with normal hospitality to require a social host to monitor guests' alcohol consumption" and "the primary actor responsible for harm caused by a drunken person is the drunken person." (49)

      3. Arizona

         The Arizona legislature has adopted a statute that immunizes social hosts who furnish alcohol to persons of legal drinking age from liability. (50) In Estate of Hernandez v. Arizona Board of Regents, (51) the Supreme Court of Arizona assessed the liabilities of social hosts who negligently furnish alcohol to persons under the legal drinking age...