Beard v. Graff

801 S.W.2d 158, 1990 Tex. App. LEXIS 3170, 1990 WL 255575

• Court: Court of Appeals of Texas
• Decided: November 7, 1990
• Docket: 04-89-00006-CV
• Status: Published

Opinions

ON APPELLANT’S MOTION FOR REHEARING

CARR, Justice.

The appellants’ motion for rehearing is granted and the following En Banc opinion is substituted for the panel opinion of October 31, 1989, as the opinion of this court.

This is an appeal from a judgment of dismissal in a negligence suit which presents us with an issue of first impression. The issue presented is whether, in any situation, a cause of action exists which imposes a duty on a social host to stop serving alcoholic beverages to an intoxicated guest who the host knows is intoxicated and also knows will thereafter operate a motor vehicle while intoxicated. Specifically, this court is asked to decide whether a social host owes a duty of care to innocent third parties of the general and motoring public who are injured by the acts of an intoxicated guest because of his intoxication while driving a motor vehicle.

Negligence, a common law doctrine, consists of three essential elements — a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). Duty is the threshold issue. An individual seeking to recover must prove the existence and violation of a duty owed to him by the defendant to establish liability in tort. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). Therefore, the initial question before this court is whether appellees owe such a duty to appellants. For the reasons set out in this opinion, we answer the issue in the affirmative.

Appellants, Brett Beard and his mother, Dorothy Beard, sued two couples, Royce and Debra Lynn Graff and Bobby and Betty Hausmon, for damages arising from personal injuries sustained by Brett Beard in a vehicular accident caused by the alleged negligence of Houston Edward Moos. Beard alleged that Moos was operating his vehicle on a public street while intoxicated. The negligence action against Moos has been severed from the suit against the appellees.

In this suit against appellees, Beard alleged the appellees were negligent in: serving alcoholic beverages to Moos when they knew or should have known of Moos’ intoxicated condition and that he would be operating a motor vehicle; allowing Moos to operate the vehicle when they knew or should have known of his intoxicated condition; providing the liquor to him; providing Moos with liquor when they knew or should have known that Moos would consume an intoxicating amount such that he would become intoxicated, and when they knew or should have known that his intoxicated condition would result in injury to a third person (Beard). Beard seeks to recover damages from appellees, the “social hosts” who served intoxicating liquor to Moos, the person with whom appellant was involved in a vehicular accident on a public street.

The trial court sustained appellees’ special exceptions and dismissed the suit for failure to state a cause of action. In one point of error, Beard claims the trial court’s dismissal was error. We agree and thus reverse and remand this cause.

From our research on the issue presented us, whether a social host owes a duty of care to innocent third parties of the general and motoring public who are injured by the acts of an intoxicated guest because of his intoxication while driving a motor vehicle, we find neither precedential authority in Texas nor persuasive authority in the majority position of our sister states.

First, there is nothing in Texas law to preclude a finding of social host liability under the circumstances of this case.1 Appellees’ reliance on Walker v. Children’s Services, Inc., 751 S.W.2d 717 (Tex.App.-Amarillo 1988, writ denied), as precedent for the instant case is misplaced for the reason that the facts of the Walker case are different from the facts in the present case. In Walker, the court stated:

[t]he question presented is whether a person who injures himself while driving an automobile under the influence of intoxicants may recover in tort from the individual who furnished him intoxicants in a social setting. We answer the question in the negative.

Walker v. Children’s Services, Inc., 751 S.W.2d at 718 (emphasis added). In addressing the threshold duty issue, the Walker court poses the question to itself:

Does a cause of action exist in Texas which imposes a duty on social hosts not to serve liquor to guests who are obviously intoxicated in order to prevent them from harming themselves or others?

Id. (emphasis added). The Walker court’s language reference to “or others” was not before the court and is dicta only. Furthermore, the social guest and injured party being one and the same in Walker, the reference to “or others” (in the context of the Walker court denying a civil remedy to the injured social guest himself) is superfluous because in the situation where a social guest injures “others,” any civil remedy would be sought by the injured party referenced in Walker’s “or others” language and not by the negligent social guest. Here, the injury is to innocent third parties. Since the Walker facts involve only injury to the intoxicated social guest himself, Walker’s holding is so limited. In any event, we do not find the Walker holding that applies to the social guest who injures himself as a result of his own intoxication, persuasive in regard to the issue of innocent third parties who are victims of drunken driving because the public (i.e., innocent third parties) requires greater protection by available remedy than the drunken driver himself.

Second, the common law, as declared by the courts of the several states, is the rule of decision in this State (and has been so by statute since January 20, 1840²), Houston Chronicle Pub. Co. v. Bergman, 128 S.W.2d 114, 116 (Tex.Civ.App.-Galveston 1939, writ dism’d judgmnt cor.), and we find that the common law of the other states is conflicting, presenting us with two lines of cases between which we must choose. Research reveals that a cause of action in negligence m favor of an injured third party has been recognized by courts in other jurisdictions against a social host serving alcoholic beverages to an intoxicated adult: California, Connecticut, Georgia, Iowa, Massachusetts, New Jersey and Washington.³ While other jurisdictions have considered the issue of social host liability and have been unwilling to extend liability to a social host who has served intoxicants to adult guests,⁴ they have generally done so on the basis that imposition of this new form of liability is “such a radical departure from prior law,” with such a substantial impact on the average citizen and on everyday social and family affairs, that the issue is best left to legislative determination. However, the present condition of Texas law on the subject being yet undecided, we fail to see a “radical departure from prior law” in Texas. In addition, in our view, the rights of innocent third parties of the general and motoring public who are annually injured in our state by the acts of intoxicated motorists far outweigh any resulting impact on society from the imposition of liability on the social host as provided herein. For the reasons set forth in this opinion, we are persuaded to follow the position favored by the minority of states.

In our opinion, the imposition of a social host duty in Texas, in the context of the facts of this case, is appropriate for several reasons.

Function of the Judiciary

We do not agree that the issue before us involving the injury to innocent third parties within the context of the facts of this case cannot be addressed and resolved by us without evidence of legislative policy, as expressed in Walker, 751 S.W.2d at 720, because the determination of the scope of duty in negligence eases has traditionally been a function of the judiciary, El Chico, 732 S.W.2d at 314; our courts have consistently made changes in the common law of torts as the need arose in a changing society, id. at 311; and, the judiciary has decided many significant issues without any pri- or legislative study. In fact, a judicial determination of the existence of a social host duty in the context of the facts of this case is within the competence of the judiciary and is in harmony with the strong legislative policy against drunken driving and for enforcement of our traffic laws. In any event, if the legislature differs with us on an issue of this kind, it is apparent it has a clear remedy.

Harmony with Public Policy and Competence of the Judiciary

At a time when the adverse effects of intoxicants on our society are in the very forefront of our local, state, and national public agenda and are accompanied by a public outcry for relief from those adverse effects, as evidenced by such private organizational efforts as Mothers Against Drunk Drivers and other such like organizations, we believe that a civil remedy in the form of an imposition of a social host duty in the context of the facts of this case is now needed, is supportive of a desirable public policy and is within the competence of the judiciary.

In Kelly v. Gwinnett, 96 N.J. 588, 476 A.2d 1219, 1222-25 (1984), the Supreme Court of New Jersey imposes a social host duty to third parties and, in powerful and persuasive language, addresses these policy considerations for judicial involvement in the following manner:

Unlike those cases in which the definition of desirable policy is the subject of intense controversy, here the imposition of a duty is both consistent with and supportive of a social goal — the reduction of drunken driving — that is practically unanimously accepted by society.

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We ... emphasize that the liability proceeds from the duty of care that accompanies control of the liquor supply. Whatever the motive behind making alcohol available to those who will subsequently drive, the provider has a duty to the public not to create foreseeable, unreasonable risks by this activity.

We therefore hold that a host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. We impose this duty on the host to the third party because we believe that the policy considerations served by its imposition far outweigh those asserted in opposition. While we recognize the concern that our ruling will interfere with accepted standards of social behavior; will intrude on and somewhat diminish the enjoyment, relaxation, and camaraderie that accompany social gatherings at which alcohol is served; and that such gatherings and social relationships are not simply tangential benefits of a civilized society but are regarded by many as important, we believe that the added assurance of just compensation to the victims of drunken driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values. Indeed, we believe that given society’s extreme concern about drunken driving, any change in social behavior resulting from the rule will be regarded ultimately as neutral at the very least, and not as a change for the worse; but that in any event if there be a loss, it is well worth the gain.

The liability we impose here is analogous to that traditionally imposed on owners of vehicles who lend their cars to persons they know to be intoxicated.⁵ (Citations omitted.) If, by lending a car to a drunk, a host becomes liable to third parties injured by the drunken driver’s negligence, the same liability should extend to a host who furnishes liquor to a visibly drunken guest who he knows will thereafter drive away.

Some fear has been expressed that the extent of the potential liability may be disproportionate to the fault of the host. A social judgment is therein implied to the effect that society does not regard as particularly serious the host’s actions in causing his guests to become drunk, even though he knows they will thereafter be driving their cars. We seriously question that value judgment; indeed, we do not believe that the liability is disproportionate when the host’s actions, so relatively easily corrected, may result in serious injury or death.

The New Jersey court explains that:

[i]n most cases the justice of imposing such a duty is so clear that the cause of action in negligence is assumed to exist simply on the basis of the actor’s creation of an unreasonable risk of foreseeable harm resulting in injury. In fact, however, more is needed, “more” being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care. (Citations omitted.) [T]his Court [has] explained that “whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” (Citations omitted.)

When the court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy. In a society where thousands of deaths are caused each year by drunken drivers, where the damage caused by such deaths is regarded increasingly as intolerable, where liquor licensees are prohibited from serving intoxicated adults, and where long-standing criminal sanctions against drunken driving have recently been significantly strengthened ... the imposition of such a duty by the judiciary seems both fair and fully in accord with the State’s policy.

Id. 476 A.2d at 1222.

Texas policy, like that of other states, is to prohibit drunken driving. See TEX. REV.CIV.STAT.ANN. art. 67011-1 (Vernon Supp.1990) (a person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place). And it seems evident that the purpose of this policy is to protect the people who are using a public place, a class to which appellant belongs. The offense of driving while intoxicated is composed of two elements: (1) intoxication and (2) driving a motor vehicle in a public place while in such a condition. In view of appellee’s alleged knowledge that the guest would be operating a motor vehicle while intoxicated, we see no difference between appellees (hosts) knowingly serving liquor to an intoxicated guest under the facts of this ease and appellees serving alcoholic beverages to an intoxicated driver in the motor vehicle while the intoxicated driver was actually driving the motor vehicle, which even the dissenters would refuse to defend.

In light of the universal knowledge of the potential dangers of a person driving a motor vehicle while intoxicated, which gives social hosts the practical ability to foresee the potential harm and consequences that reasonably result from an intoxicated motorist, we hold that when the host has the exclusive control⁶ of the alcohol supply and knowingly serves the guest from that supply when the host knows the guest is intoxicated and also knows will be operating a motor vehicle while intoxicated is sufficient to attach civil liability to the host for injuries to innocent third parties.

Conclusion

Since this case comes to our court for purposes, of ruling on the trial court’s sustaining of special exceptions and dismissal of appellants’ suit for failure to state a cause of action, this court must accept as true all of appellants’ pleaded allegations and evidence, indulging in every reasonable inference and resolving all doubts in appellant’s favor. El Chico, 732 S.W.2d at 315; Blanton v. Morgan, 681 S.W.2d 876, 877 (Tex.App.-El Paso 1984, writ ref’d n.r.e.).

In their trial pleadings, appellants alleged that the accident made the basis of this suit and their damages were caused by the negligence of Houston Edward Moos, who was operating his vehicle while under the influence of intoxicating alcoholic beverages at the time of the accident. Appellants further alleged that appellees were negligent in serving intoxicating alcoholic beverages to Houston Edward Moos when they knew or should have known that Moos was intoxicated and that he would subsequently operate a motor vehicle while intoxicated.

We hold that the trial court erred in sustaining appellee’s special exceptions and dismissing appellants’ suit for failure to state a cause of action because appellants have stated a cause of action under the allegations in appellants’ pleadings to the extent that appellants’ pleadings allege: (1) an injury to a third party, (2) that appellees had exclusive control of the alcohol supply, and (3) that appellees knowingly served the guest from that supply when appellees actually knew the guest was intoxicated and actually knew that he would thereafter operate a motor vehicle in a public place while intoxicated.

For the reasons stated, we grant appellant’s motion for rehearing; reverse the trial court’s sustaining of appellee’s special exceptions and dismissal order; and, remand this case to the trial court to resolve the fact questions alleged in appellants’ pleadings that are in accordance with this opinion.

1 . In El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987), the Supreme Court established a cause of action in Texas against an alcoholic beverage licensee who serves alcohol to patrons the licensee knows or should know are intoxicated. However, the court expressly stated that "[t]he duty, if any, of one who dispenses or serves liquor gratuitously, in absence of a license or permit, is not involved in this appeal.” Id. at 309 (emphasis added).

2 . Congressional Act of Jan. 20, 1840, 2 H. Gam-mel, Laws of Texas, 177 (1840) (codified at TEX.CIV.PRAC. & REM.CODE ANN. § 5.001 (Vernon 1986)).

3 . Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 577 P.2d 669, 145 Cal.Rptr. 534 (1978); Boehm v. Kish, 201 Conn. 385, 517 A.2d 624 (1986) (will impose social host liability where there is wanton and reckless misconduct); Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985) (a minor or noticeably intoxicated person); Divecchio v. Mead Corp., 184 Ga.App. 447, 361 S.E.2d 850 (1987); Clark v. Minks, 364 N.W.2d 226 (Iowa 1985); McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986); Dhimos v. Cormier, 400 Mass. 504, 509 N.E.2d 1199 (1987); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984); Halligan v. Pupo, 37 Wash.App. 84, 678 P.2d 1295 (1984). Note: (1) that the legislatures of both California and Iowa, since the pertinent holdings in their respective states, have exercised their prerogatives and expressly abrogated social host liability. See Cory v. Shierloh, 29 Cal.3d 430, 629 P.2d 8, 174 Cal.Rptr. 500 (1981); Fuhrman v. Total Petroleum, Inc., 398 N.W.2d 807 (Iowa 1987) and (2) the Washington Supreme Court in Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759 (1988) rejected social host liability after the 1984 Halligan decision.

4 . Cartwright v. Hyatt Corp., 460 F.Supp. 80 (D.C. 1978); Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972); DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988); Beeson v. Cadillac Corp., 506 So.2d 999 (Ala.1987); Bankson v. Brennan, 507 So.2d 1385 (Fla.1987); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 (1970); Cole v. City of Spring Lake Park, 314 N.W.2d 836 (Minn.1982); Boutwell v. Sullivan, 469 So.2d 526 (Miss. 1985); Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. 1987); Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979), overruled on other grounds, Nehring v. LaCounte, 219 Mont. 462, 712 P.2d 1329 (1986); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969); Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655 (1977); Gressman v. McClain, 40 Ohio St.3d 359, 533 N.E.2d 732 (1988) (will not impose social host liability in absence of a statutory violation); Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983); Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S.W. 746 (1940); Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178 (1979), overruled on other grounds, Sorensen by Kerscher v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984).

5 . Texas law also imposes liability for negligent entrustment. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595 (Tex.1987).

6 . As used in this opinion, "exclusive control” [of the alcohol supply] means that right of control greater than that of the guest user.