Graff v. Beard

858 S.W.2d 918, 1993 WL 165360

• Court: Texas Supreme Court
• Decided: September 10, 1993
• Docket: D-0756
• Status: Published

Opinions

Opinion

CORNYN, Justice.

We are asked in this case to impose a common-law duty on a social host who makes alcohol available to an intoxicated adult guest who the host knows will be driving. For the reasons given below, we decline to do so. Accordingly, we reverse the judgment of the court of appeals and render a take-nothing judgment.

Houston Moos consumed alcohol at a party hosted by the Graffs and Hausmons, and allegedly left in his vehicle in an intoxicated condition. En route from the party, Moos collided with a motorcycle, injuring Brett Beard. Beard sued both Moos and his hosts for his injuries. The trial court ultimately dismissed Beard’s claims against the hosts for failure to state a cause of action. An en banc divided court of appeals reversed the trial court’s judgment and remanded the case, holding for the first time in Texas jurisprudence that social hosts may be liable to third parties for the acts of their intoxicated adult guests. 801 S.W.2d 158.

Under the court of appeals’ standard, a social host violates a legal duty to third parties when the host makes an alcoholic beverage available to an adult guest who the host knows is intoxicated and will be driving. Id. In practical effect, this duty is twofold. The first aspect of the host’s duty is to prevent guests who will be driving from becoming intoxicated. If the host fails to do so, however, a second aspect of the duty comes into play — the host must prevent the intoxicated guest from driving.

The legislatures in most states, including Texas,¹ have enacted dram shop laws that impose a statutory duty to third parties on commercial providers under specified circumstances. We have recently held that when the legislature enacted the Texas dram shop statute it also imposed a duty on the provider that extends to the patron himself. Smith v. Sewell, 858 S.W.2d 350 (Tex.1993). Because the dram shop statute applies only to commercial providers, however, it does not govern the duty asserted in this case.

We think it significant in appraising Beard’s request to recognize common-law social host liability that the legislature has considered and declined to create such a duty. See Conf.Com.Rep. on H.B. 1652, 70th Leg. (1987). A version of the bill that eventually became our dram shop statute provided for social host liability. Although that version passed the Senate, the House rejected it. The Senate-House conference committee deleted social host liability from the bill the legislature eventually enacted. Id.

The highest courts in only four states have done what we are asked to do today: judicially impose a duty to third parties on social hosts who make alcohol available to adult guests.² See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986); Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985); Kelly v. Gwinnett, 96 N.J. 538, 476 A.2d 1219 (1984); Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978). In two of these states, California and Iowa, the legislatures subsequently abrogated the judicially-created duty. Cal.Civ.Code § 1714 (West 1993); Iowa Code § 123.49 (West 1992). Neither of the two remaining jurisdictions, Massachusetts and New Jersey, had dram shop statutes when their courts acted. Rather, their courts first imposed a common-law duty to third parties on commercial establishments and then extended the duty to social hosts. Compare Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 (1966) and Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920 (1982) with Kelly, 476 A.2d at 1224 and McGuiggan, 496 N.E.2d at 146.

It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1991). Historically, the law recognized no common-law duty to third parties on the part of a provider of alcohol — the rationale being that the consumption of alcohol, rather than the provision of it, proximately caused the injury. See El Chico Corp. v. Poole, 732 S.W.2d 306, 309 (Tex.1987). In El Chico this court created a common-law duty to injured third parties on the part of commercial providers, but that duty was almost simultaneously superseded by the legislature’s enactment of the dram shop statute. The statute became the exclusive basis for the civil liability of commercial providers of alcohol. Tex. Alco.Bev.Code § 2.03 (Supp.1993). The statutory duty established by the legislature also placed a less onerous burden on commercial providers and a correspondingly higher burden of proof on injured parties than the common-law duty created by the court: vendors were made legally accountable only when it was apparent at the time the patron was served that the patron was “obviously intoxicated to the extent that he presented a clear danger to himself and others.” Tex.Alco.Bev.Code § 2.02 (Supp. 1993). It is against this backdrop that we consider whether a common-law duty for social hosts should be recognized in Texas.

Deciding whether to impose a new common-law duty involves complex considerations of public policy. We have said that these considerations include “ ‘social, economic, and political questions,’ and their application to the particular facts at hand.” Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex.1990) (quoting 1 Texas Torts and Remedies § 1.03[2] (1989)). Among other factors, we consider the extent of the risk involved, “the foreseeability and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Greater Houston Transp. Co., 801 S.W.2d at 525. We have also emphasized other factors. For example, questions of duty have turned on whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists. See e.g., Seagrams v. McGuire, 814 S.W.2d 385 (Tex.1991) (declining to recognize a legal duty of an alcohol manufacturer to warn consumers against danger of alcoholism because the risk is common knowledge); Greater Houston Transp. Co., 801 S.W.2d at 525 (citing Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1984); RESTATEMENT (SECOND) OF TORTS § 315 (1965) (noting that no general duty exists to control the conduct of others)).

Following our decisions in Seagrams and Otis Engineering Corp., we deem it appropriate to focus on two tacit assumptions underlying the holding of the court of appeals: that the social host can reasonably know of the guest’s alcohol consumption and possible intoxication, and possesses the right to control the conduct of the guest. Under Texas law, in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1984); Greater Houston Transp. Co., 801 S.W.2d at 525; see also W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 56 (5th ed. Supp.1988). For example, in Otis Engineering Corp. we held that an employer breached a duty of care to the public when he directed an intoxicated employee to drive home and the employee caused a fatal car crash. While we noted that there is no general duty to control the conduct of another, we recognized a duty in that instance because of the employer’s authority over the employee. 668 S.W.2d at 309. As we later explained in Greater Houston Transportation Co., our decision in Otis was premised on “the employer’s negligent exercise of control over the employee,” rather than on a general duty to prevent intoxicated individuals from driving. 801 S.W.2d at 526 (emphasis in original).

Instead of focusing on the host’s right of control over the guest, the court of appeals conditioned a social host’s duty on the host’s “exclusive control” of the alcohol supply. 801 S.W.2d at 163. The court defined “exclusive control,” however, as nothing more than a degree of control “greater than that of the guest user.” Id. Under the court’s definition, at a barbecue, a wedding reception, a back-yard picnic, a pachanga, a Bar Mitzvah — or a variety of other common social settings — the host would always have exclusive control over the alcohol supply because the host chooses whether alcohol will be provided and the manner in which it will be provided. The duty imposed by the court of appeals would apparently attach in any social setting in which alcohol is available regardless of the host's right to control the guest. Thus, as a practical matter, the host has but one choice — whether to make alcohol available to guests at all.³

But should the host venture to make alcohol available to adult guests, the court of appeals’ standard would allow the host to avoid liability by cutting off the guest’s access to alcohol at some point before the guest becomes intoxicated. Implicit in that standard is the assumption that the reasonably careful host can accurately determine how much alcohol guests have consumed and when they have approached their limit. We believe, though, that it is far from clear that a social host can reliably recognize a guest’s level of intoxication. First, it is unlikely that a host can be expected to know how much alcohol, if any, a guest has consumed before the guest arrives on the host’s premises. Second, in many social settings, the total number of guests present may practically inhibit the host from discovering a guest’s approaching intoxication. Third, the condition may be apparent in some people but certainly not in all. The point at which intoxication is reached varies from person to person, as do the signs of intoxication. One national study, for instance, found that of the drivers with a blood alcohol concentration above 0.10%, the legal limit for driving in many states,⁴ only one half actually exhibited signs of intoxication. National Highway Traffic Safety Administration, Alcohol and Traffic Safety 1984: A Review of the State of the Knowledge 13 (1984). The guest, on the other hand, is in a far better position to know the amount of alcohol he has consumed, his state of sobriety, and the consequential risk he poses to the public.

This brings us to the second aspect of the duty implicit in the court of appeals’ standard: that should the guest become intoxicated, the host must prevent the guest from driving. Unlike the court of appeals, however, we cannot assume that guests will respond to a host’s attempts, verbal or physical, to prevent the guests from driving. Nor is it clear to us precisely what affirmative actions would discharge the host’s duty under the court of appeals’ standard. Would a simple request not to drive suffice? Or is more required? Is the host required to physically restrain the guests, take their car keys, or disable their vehicles? The problems inherent in this aspect of the court of appeals’ holding are obvious.⁵ The implications of these unaddressed questions demonstrate the frail foundation upon which the court of appeals has constructed social host liability.

Ideally, guests will drink responsibly, and hosts will monitor their social functions to reduce the likelihood of intoxication. Once a guest becomes impaired by alcohol to the point at which he becomes a threat to himself and others, we would hope that the host can persuade the guest to take public transportation, stay on the premises, or be transported home by an unimpaired driver. But we know that too often reality conflicts with ideal behavior. And, given the ultimate power of guests to control their own alcohol consumption and the absence of any legal right of the host to control the guest, we find the arguments for shifting legal responsibility from the guest to the host, who merely makes alcohol available at social gatherings, unconvincing. As the common law has long recognized, the imbiber maintains the ultimate power and thus the obligation to control his own behavior: to decide to drink or not to drink, to drive or not to drive. We therefore conclude that the common law’s focus should remain on the drinker as the person primarily responsible for his own behavior and best able to avoid the foreseeable risks of that behavior.

We accordingly reverse the judgment of the court of appeals and render judgment that Beard take nothing.

Dissenting opinion by GAMMAGE, J., joined by DOGGETT, J. SPECTOR, J., not sitting.

Sept. 10, 1993.

1 . See Jacob R. Pritcher, Jr., Is it Time to Turn Out the Lights? Social Host Liability Extended to Third Persons Injured by Intoxicated Adult Guests: Beard v. Graff, 801 S.W.2d 158 (Tex.App.-San Antonio 1990, writ granted), 22 TEX.TECH L.REV. 903, 904 (1991); TEX. ALCO.BEV.CODE §§ 2.01-2.03 (Supp.1993).

2 . The majority of cases cited by JUSTICE GAMMAGE address only liability imposed on adults for the acts of intoxicated minors. E.g., Wiener v. Gamma Phi Chapter of Alph Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971); Sorensen v. Jarvis, 350 M.W.2d 108 (Wis.1984). Provision of alcohol to minors is not involved in this case.

The other cases cited by JUSTICE GAMMAGE are also inapposite. For example, one court mentions a duty owed to adults, but does not actually impose that duty. Divecchio v. Mead Corp., 184 Ga.App. 447, 361 S.E.2d 850 (1987). Another case does not concern the duty owed to third parties, but rather the duty owed directly to guests. Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986).

3 . At oral argument Beard’s counsel contended that social host liability could attach even if the host did not make alcoholic beverages available to guests. When the guest himself brings alcoholic beverages on the host's premises, Beard argues, a fact question is presented under the court of appeals’ standard: “The beauty of the decision is that they have used the term exclusive control and you have for the jury a determination whether they have greater control than their guests. They ultimately open the door and let someone walk in with liquor...."

4 . E.g., Tex.Rev.Civ.Stat.Ann. art. 6701l-1(a)(2)(B) (Supp.1993).

5 . When these issues were raised in argument, Beard’s counsel responded:

COUNSEL: But I think that the question is if we are to utilize, for example, the common-law duty concept that was developed in the Otis Engineering case the question becomes "what is reasonable under the circumstances." Under the circumstances is it reasonable for me to attempt to hold back a 250-pound football player who is intoxicated from leaving my party? Perhaps not. Is it reasonable for me to attempt to hold back a 100-pound secretary who is trying to leave my party. Do I proceed to the point of false imprisonment? Those are questions that are, in fact, best suited for jury determination.

COURT: In all instances this will be ... ther e will be no summary judgments under this standard?

COUNSEL: I doubt it. There will always be fact questions.