Burkhart v. Harrod

755 P.2d 759, 110 Wash. 2d 381

• Court: Washington Supreme Court
• Decided: May 5, 1988
• Docket: 52839-0
• Status: Published

Opinions

Durham, J.

Under this state's common law, commercial furnishers of alcohol who serve "obviously intoxicated" customers can be held liable for damages caused by that intoxication. We are asked to extend this principle to impose liability on hosts of social parties who provide alcohol for their guests. We decline to do so. If social host liability is to be imposed in Washington, it should be done through the Legislature which has greater ability to fully explore the spectrum of competing societal interests.

I

Michael Burkhart was to have been the best man at the wedding of Charles and Denise Bonfante. On July 21, 1985, Burkhart participated in a wedding rehearsal and then attended the dinner party that followed. The party was held at the house of the groom's sister and brother-in-law, Suzanne and Gary Harrod. Burkart arrived with the other guests between 2 and 2:30 p.m. For the first half hour, Gary Harrod mixed drinks for the guests, and thereafter the bar was open for guests to mix their own drinks. Available at the bar were wine, beer, scotch, bourbon, vodka and assorted nonalcoholic beverages. According to all seven affidavits filed by members of the groom's family, Burkhart consumed "a few" alcoholic drinks during the day, but he never appeared intoxicated. Dinner was served at 4:30 p.m. Most of the guests left at 6:30, but Burkhart stayed to watch the opening of wedding gifts and to help clean up. Burkhart drank at least one beer during the cleanup.

Around 9 p.m., the bride and groom left the party and drove to the groom's house. Burkhart followed them part of the way on his motorcycle, but then stopped at a store while the bride and groom continued on. A motorist later noticed that Burkhart was operating his motorcycle aggressively and erratically. A short time later, around 10 p.m., Burkhart's motorcycle left the roadway and struck a power pole, killing him instantly. At the time of the accident, Burkhart's blood alcohol content was .16 percent.

Linda Sue Burkhart, Michael's wife, brought a wrongful death action against the Harrods for negligently furnishing alcohol to an obviously intoxicated person. The trial judge granted summary judgment to the Harrods, holding that there is no social host liability in this state. We affirm.

II

This court has adopted the common law rule that furnishers of alcohol are not liable for damages caused by the intoxication of the persons they serve. Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969). The common law rule, however, has exceptions, so that an action will still lie if alcohol is furnished to a person who is obviously intoxicated, helpless, or in a special relationship to the furnisher of the alcohol. Young v. Caravan Corp., 99 Wn.2d 655, 658, 663 P.2d 834, 672 P.2d 1267 (1983); Wilson v. Steinbach, 98 Wn.2d 434, 438, 656 P.2d 1030 (1982). These principles recently have been reaffirmed. Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986).

Liability has been imposed under these rules to commercial hosts (see, e.g., Purchase v. Meyer, 108 Wn.2d 220, 228-29, 737 P.2d 661 (1987); Young v. Caravan Corp., supra) and to quasi-commercial hosts, i.e., those who did not sell alcohol but who otherwise had business interests in furnishing alcohol to their guests. See Dickinson v. Edwards, supra. However, this court never has held that a purely social host can be liable for furnishing alcohol.¹ See Dickinson, at 471 (Utter, J., concurring).

There are strong arguments both for and against social host liability. Proponents point first of all to the need to compensate victims injured by drunk drivers. See Kelly v. Gwinnell, 96 N.J. 538, 551, 476 A.2d 1219 (1984). Additionally, social host liability arguably could reduce the frequency of drunk driving by requiring hosts to use greater care in serving alcohol at social gatherings. See Kelly, at 551-52.

On the other hand, opponents stress the potentially substantial financial liability that social hosts would face, as well as the heavy burden that would be placed on social hosts to regulate guests' alcohol consumption. This duty to regulate the drinking of others would raise a series of problematic questions for social hosts. How is a social host, inexperienced at judging the extent to which others have become intoxicated, to decide the course of his own actions? Must the host determine if a guest has been drinking before arriving at the party? Can the host determine if a guest is drinking on an empty stomach? What if a guest is taking prescribed medication or using illegal drugs? Must the host count the number of drinks that each guest consumes? Is it necessary to gauge a guest's weight and height in order to determine allowable amounts of alcohol? May guests be allowed to mix their own drinks, or should the host tend the bar himself to monitor consumption? Must the host refrain from drinking in order to better supervise the guests? Must the host determine which of its guests will be driving home? Before guests depart, should the host conduct sobriety tests, asking them to recite the alphabet or walk a straight line? If an intoxicated guest insists on driving home, how far can the host go in preventing him from doing so? Must he offer to pay for a taxi or put the guest up for the night? As one court has noted, the implications of social host liability are "almost limitless". Edgar v. Kajet, 84 Misc. 2d 100, 103, 375 N.Y.S.2d 548 (1975), aff'd, 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976).

The nature of the judicial role prevents us from capably deciding the relative merits of social host liability. Evaluating the overall merits of social host liability, with its wide sweeping implications, requires a balancing of the costs and benefits for society as a whole, not just the parties of any one case. Yet because judicial decisionmaking is limited to resolving only the issues before the court in any given case, judges are limited in their abilities to obtain the input necessary to make informed decisions on issues of broad societal impact like social host liability. In this regard, we fully concur in the statement that "'of the three branches of government, the judiciary is the least capable of receiving public input and resolving broad public policy questions based on a societal consensus.'" Bankston v. Brennan, 507 So. 2d 1385, 1387 (Fla. 1987) (quoting Shands Teaching Hosp. & Clinics, Inc. v. Smith, 497 So. 2d 644, 646 (Fla. 1986)). It is for this very reason that public policy usually is declared by the Legislature, and not by the courts. See Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494 (1981).

The Legislature is uniquely able to hold hearings, gather crucial information, and learn the full extent of the competing societal interests. It can balance the relative importance of compensating the victims of drunk drivers with the burdens that liability would place on social hosts. Time can be taken to investigate a whole range of issues that are not before the court in any given case, such as the amount of damage caused by drunk drivers, the percentage of that damage for which a social host was at some point involved, the extent to which automobile insurance of all types already provides a remedy to victims, the effect that the added liability would have on homeowners' and renters' insurance rates, the possibilities of alternative remedies such as having drunk drivers contribute to a statewide fund for victims, the possibilities of limiting the host's liability, and proscribing standards of conduct for social hosts. If substantial financial liability is to be attached to the hosting of a social gathering, heretofore considered an innocuous act, it should only be done after careful consideration of all the effects on society and it should be imposed as a comprehensive measure. The Legislature can do this, we cannot.

Ill

We cannot simply hand this case off to the Legislature, however. We must involve ourselves to some degree in the debate on social host liability, recognizing that our decision here effectively will add fuel to one side's fire. There is good reason to withhold common law liability for social hosts even though such liability already exists for commercial and quasi-commercial hosts. Social hosts are not as capable of handling the responsibilities of monitoring their guests' alcohol consumption as are their commercial and quasi-commercial counterparts. In this regard, we agree with the reasoning of the Ohio Supreme Court:

We find merit in appellee's assertion that a social provider of intoxicating beverages should not be held to the same duty of care that a commercial proprietor is subject to under [Ohio case law]. As the appellee points out, the commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (non-commercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so.

Settlemyer v. Wilmington Veterans Post 49, Am. Legion, Inc., 11 Ohio St. 3d 123, 127, 464 N.E.2d 521 (1984).

Additionally, the implications of social host liability are so much more wide sweeping and unpredictable in nature than are the implications of commercial host liability. While liability for commercial providers affects only a narrow slice of our population, social host liability would touch most adults in the state on a frequent basis. Because social hosts are generally unaccustomed to the pressures involved in taking responsibility for the intoxication of their guests, we cannot predict how well social hosts would respond when the scope of their duties would be so ill defined. It is also difficult to estimate the effect that social host liability would have on personal relationships. Indeed, judicial restraint is appropriate when the proposed doctrine, as here, has implications that are "far beyond the perception of the court asked to declare it." See Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 101, 450 P.2d 358 (1969). Along these same lines, another court has stated:

[W]e are unable to reasonably measure the widespread repercussions from extending "dramshop" liability to the social host, thus compelling our conclusion that a legislative response rather than a judicial response is the more appropriate answer under these circumstances.

Harriman v. Smith, 697 S.W.2d 219, 222 (Mo. Ct. App. 1985).

Finally, the only indication we have of legislative intent reveals a disinclination to impose social host liability. The Legislature long ago enacted a dramshop act which imposed civil liability in some situations on persons who had furnished alcohol to individuals who then became involved in a traffic accident. Laws of 1905, ch. 62, § 1, p. 120.² However, this act was repealed in 1955, thereby indicating a disapproval of social host liability. Moreover, the Legislature has imposed penalties on those who sell liquor to intoxicated persons, but not on those who give it to intoxicated persons. See RCW 66.44.200. This distinction implies that the Legislature intends to treat commercial hosts differently than social hosts. See generally Dickinson v. Edwards, 105 Wn.2d 457, 486-99, 716 P.2d 814 (1986) (Durham, J., dissenting).

For all these reasons, we decline to extend common law liability to social hosts. This is not to say, however, that social host liability is necessarily an inappropriate reaction to the problem of drunk driving. Rather, we hold only that the judiciary is ill equipped to impose such a remedy.

IV

We note that our decision to defer the issue of social host liability to the Legislature is fully supported by precedent both within and without this state. In Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969), after noting a distinction between commercial and social hosts, we concluded as follows:

It may be that the social and economic consequences of "mixing gasoline and liquor" should lead to a rule of accountability by those who furnish intoxicants to one who becomes a tort-feasor by reason of intoxication, but such a policy decision should be made by the legislature after full investigation, debate and examination of the relative merits of the conflicting positions.

Halvorson, at 765. The same statement has been reiterated in more recent opinions issued by courts in this state. See Wilson v. Steinbach, 98 Wn.2d 434, 441-42, 656 P.2d 1030 (1982); Hulse v. Driver, 11 Wn. App. 509, 513-14, 524 P.2d 255, review denied, 84 Wn.2d 1011 (1974). Courts in other states also have deferred to their legislatures on the issue of social hosts liability. E.g., Bankston v. Brennan, 507 So. 2d 1385, 1387 (Fla. 1987); Miller v. Moran, 96 Ill. App. 2d 596, 601, 421 N.E.2d 1046 (1981); Boutwell v. Sullivan, 469 So. 2d 526, 529 (Miss. 1985); Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547, 553 (Mo. 1987) (adopting analysis of Harriman v. Smith, 697 S.W.2d 219, 221-22 (Mo. Ct. App. 1985)); Conigliaro v. Franco, 122 A.D.2d 15, 504 N.Y.S.2d 186 (1986); Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct. App. 1986); Settlemyer v. Wilmington Veterans Post 49, Am. Legion, Inc., supra.3

It has been argued that when the Legislature has ignored an area of tort law, the courts should not defer to legislative judgment, but should instead use the common law to in effect legislate new tort law. See, e.g., Peck, Comments on Judicial Creativity, 69 Iowa L. Rev. 1 (1983-84); Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (1963); Dickinson v. Edwards, supra at 481 (Utter, J., concurring). More specifically, Professor Peck argues that " [i]t is in areas of legislative inactivity that the judiciary may safely perform a creative role." Peck, 69 Iowa L. Rev. at 9. However the Legislature has been anything but inactive with respect to drunk driving issues. Only recently we recognized that the Legislature is continually updating its statutes on drunk driving. Purchase v. Meyer, 108 Wn.2d 220, 223 n.1, 737 P.2d 661 (1987). We note also the recent enactment of RCW 5.40-.060,⁴ establishing a new defense in tort actions involving intoxication issues:

It is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault. . . .

The Legislature also considered numerous bills relating to drunk driving in its most recent session.⁵ Accordingly, there is no reason for the judiciary to take on a more creative role in usurping powers of legislation. In this regard, we echo the statements of the Ohio Supreme Court:

We are mindful of the fact that since the ratification of the Twenty-First Amendment to the United States Constitution, virtually every aspect involved in the manufacture, sale and distribution of alcoholic beverages has been regulated by the General Assembly. Thus, we are of the opinion that any policy modifications which are designed to encompass the potential liability of social providers of intoxicating beverages should perhaps be deferred to the sound discretion of the legislature.

Settlemyer v. Wilmington Veterans Post 49, Am. Legion, Inc., 11 Ohio St. 3d 123, 127, 464 N.E.2d 521 (1984).

V

In summary, we decline to hold social hosts to the same standards that the common law requires of commercial hosts. If social host liability is to be imposed in Washington, it should be done through the legislative process. Accordingly, we affirm the trial court's dismissal of Burk-hart's complaint by summary judgment.

Dolliver, Dore, Andersen, Callow, and Goodloe, JJ., and Skimas, J. Pro Tern., concur.

1 In Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982), this court held that summary judgment was properly granted in favor of a social host because there was no genuine issue of material fact as to obvious intoxication or either of the other two Halvorson exceptions. Wilson, at 439-40. Therefore, we did not have to reach the issue of social host liability.

2 The dramshop act provided as follows:

"Every husband, wife, child, parent, guardian, employe, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication of such person, for all damages sustained, and the same may be recovered in a civil action in any court of competent jurisdiction. On the trial of such action, the plaintiff or plaintiffs must prove that such intoxicating liquors were sold under circumstances sufficient to lead a man or ordinary intelligence to believe that such sale would probably result in intoxication. ..." Laws of 1905, ch. 62, § 1, p. 120.

3 We note that some jurisdictions have proceeded to decide the merits of social host liability. Of these jurisdictions, most have rejected social host liability because of the principle that it is the consumption of alcohol, not the furnishing of it, that proximately causes the victim's injuries. E.g., Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983); Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972); Whittaker v. Jet-Way, Inc., 152 Mich. App. 795, 394 N.W.2d 111 (1986). However, we have already rejected this analysis. Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986). Other courts have imposed social host liability as part of the common law. E.g., Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984); Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985). For the reasons discussed above, we decline to follow their lead.

4 This statute has no bearing on the present case because it is applicable only to claims filed on or after August 1, 1986. Laws of 1986, ch. 305, § 910, p. 1367.

5 Several bills addressed drunk driving, including the following: the intoxication defense statute quoted above (Senate Bill 6048, enacted as Laws of 1987, ch. 212, § 1001, p. 792); a proposal that the traffic safety commission develop a statewide comprehensive program to address the problem of drinking and driving (Proposed Senate Bill 5843, 50th Legislature (1987), at § 3); a proposed ban on the concurrent sale of gasoline and alcohol (Proposed House Bill 438, Proposed Senate Bill 5397, 50th Legislature (1987)); a proposed schedule of civil fines for drunk driving infractions (Proposed Senate Bill 5700, 50th Legislature (1987)); a proposal for installation of ignition interlock devices on cars driven by habitual drunk drivers (Proposed House Bill 852, Proposed Senate Bill 5233, 50th Legislature (1987)); a proposal to allow the confiscation of DWI offenders' vehicles (Proposed House Bill 890, 50th Legislature (1987)); and a proposal allowing police to confiscate drivers' licenses of intoxicated drivers involved in vehicular assaults or homicides (Proposed House Bill 335, 50th Legislature (1987)).