GRAFF v. BEARD

Opinion

GAMMAGE, Justice, dissenting.

The prior dissenting opinion is withdrawn and the following substituted.

I respectfully dissent. The majority errs in holding that the legislature must "create" the duty for social hosts not to send intoxicated guests driving in our streets to maim and kill. Logic, legal experience and this court's own earlier decisions dictate a contrary result. The legislature may enact a statute that creates a duty. But the legislature's failure to act does not "uncreate" an existing duty. A duty created by the common law continues to exist unless and until the legislature changes it, and such an existing common law duty applies to the defendants here.

Consider what earlier relevant Texas cases hold. First and foremost is El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987). Poole recognizes the common law duty of commercial vendors of alcoholic beverages not to serve patrons alcoholic beverages when the liquor licensee knew or should have known that the patron was intoxicated and was going to drive a motor vehicle. It is true the Poole opinion expressly states, "The 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. The court's declining to address a question that was not before it, however, does not mean the common law of Texas as to such "social host" liability may not be reasonably deduced from Poole 's language.

The majority fails to acknowledge Poole 's rationale that the most important factor in recognizing a duty under the common law of negligence is the foreseeability of the risk; the majority does, however, repeatedly cite Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991), which did recognize the importance of this rationale in Poole. 858 S.W.2d at 919, 920. Probably the most quotable line from Poole suggests the foreseeability here is analogous to letting a rattlesnake loose on an unsuspecting public: "The risk and likelihood of injury from serving alcohol to an intoxicated person whom the licensee knows will probably drive a car is as readily foreseen as injury resulting from setting loose a live rattlesnake in a shopping mall." Poole, 732 S.W.2d at 311. If we substitute "social host" for "licensee," the statement remains equally true. Moreover, in Poole, this court addressed the foreseeability and public policy considerations that numerous accidents, including substantial percentages which were serious or fatal, involved driving while intoxicated. Id. When the court invokes this rationale, with an appropriate emphasis on foreseeability of the risk, there remains "no reasonable or logical basis" for limiting the duty to "commercial vendors" and excluding social hosts. Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 537, 577 P.2d 669, 672 (1978). In addressing the victims of DWI, it is clear the Poole analysis applies with equal strength to social hosts who engage in such dangerous conduct. Indeed,

it is small comfort to the widow whose husband has been killed in an accident involving an intoxicated driver to learn that the driver received his drinks from a hospitable social host rather than by purchase at a bar. The danger of ultimate harm is as equally foreseeable to the reasonably perceptive host as to the bartender. The danger and risk to the potential victim on the highway is equally as great, regardless of the source of the liquor.

Id. 145 Cal.Rptr.2d at 539, 577 P.2d at 674.

Once the court adopted the rationale stated in Poole, the clear logical recognition of the duty in social hosts necessarily followed. See generally Coulter, 145 Cal.Rptr. at 538-39, 577 P.2d at 673-74; Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985); McGuiggan v. New England Tel. Tel. Co., 398 Mass. 152, 496 N.E.2d 141, 145-46 (1986); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219, 1222-23 (1984).

The only difference between the commercial vendor and the social host is the relationship to the intoxicated driver. The risk and foreseeability of harm to the general public is the same. Balancing the relationship factor, in determining whether a duty exists, must tip in favor of the public interest. See Coulter, 145 Cal.Rptr. at 540, 577 P.2d at 675; Kelly, 476 A.2d at 1222-25. The only other relevant Texas case, Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983), supports this conclusion. In Otis Engineering, the employer, knowing the employee was intoxicated, sent him home knowing he was going to drive while intoxicated. The majority dismisses Otis Engineering on the ground it was "the employer's negligent exercise of control over the employee" that distinguishes the situation from the social host's position. 858 S.W.2d at 920 [quoting Greater Houston Transp. Co., 801 S.W.2d at 526 (emphasis in original) ]. The position of the social host is somewhat different, in that the host is serving alcohol to an intoxicated person knowing he will drive. In Otis Engineering the control was over the sending (or driving), whereas for the social host the control is over the furnishing of the intoxicating beverage. In either case the risk is knowingly letting that rattlesnake loose on the public streets and highways.

Doubtless, the spectre of civil liability may temper the spirit of conviviality at some social occasions, especially when reasonably observant hosts decline to serve further alcoholic beverages to those guests who are obviously intoxicated and perhaps becoming hostile. Nonetheless, in this context, we must surely balance any resulting moderation of hospitality with the serious hazard to the lives, limbs, and property of the public at large, and the great potential for human suffering which attends the presence on the highways of intoxicated drivers. . . . [W]e need not ignore the appalling, perhaps incalculable, cost of torn and broken lives incident to alcohol abuse, in the area of automobile accidents alone.

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. . . . 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. (Emphasis added; intervening discussion omitted.)

Quoting and citing Poole, this court in Greater Houston Transportation Co. set forth the factors for determining whether to impose a duty and thereby recognize a negligence tort action: "the risk, 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," acknowledging "foreseeability of the risk is 'the foremost and dominant consideration.' " Greater Houston Transp. Co., 801 S.W.2d at 525. The majority opinion ignores the risk to an endangered public. Instead of weighing all factors with an appropriate emphasis on this risk and its foreseeability, the majority selects two lesser factors favoring its desired result, and more or less dismisses the rest. Once again, both the legislature and the Poole decision have provided the answer. Does the social utility of a host's providing liquor to an obviously intoxicated driver outweigh the foreseeability of risk? No, as both the Poole holding and the legislature's enactment of a dram shop act demonstrate. The majority addresses the difficulty of guarding against injury, but it ignores the fact that the injury is a consequence of the intoxication. It is not significantly more difficult for the social host to refuse to serve alcoholic beverages to the intoxicated guest than it is for the bartender to refuse to sell to the drunken patron. Moreover, when the dram shop law addresses liability in the commercial context, but fails to address social host liability, the duty imposed upon this court to fill the illogical and unjust void in the law is even greater, as a decision expressly recognizing social host liability despite its omission in another state's dram shop act states:

the injustice of the present jurisprudence places upon this court the imperative duty to rectify that injustice through reevaluation of our current legal precedent.

Cravens v. Inman, 223 Ill. App.3d 1059, 166 Ill. Dec. 409, 418, 586 N.E.2d 367, 376 (1991), appeal dism'd, ___ Ill.2d ___, 168 Ill. Dec. 19, 589 N.E.2d 133 (1992).

On this question I must address the inconsistent treatment the majority gives authorities from other jurisdictions. I freely admit that different statutes and factual distinctions make difficult any comprehensive analysis of decisions from other states. But what the majority offers is distinctions without a difference and arbitrary declarations rather than legal analysis.

The majority claims that only four states recognized social host liability as a matter of common law. It then suggests that in two of those states, the legislatures "overruled" the court decisions by rapid statutory enactment, suggesting deference to the legislature's inaction. The majority asserts that most cases I cite "address only a duty owed to minors." 858 S.W.2d at 919 n. 2. The other cases, we are told, are "inapposite" because, for example, "one court mentions a duty owed to adults but does not actually impose" it, and another "does not concern the duty owed to third parties, but rather the duty owed directly to guests." Id. These supposed "distinctions" make no substantive difference.

It is true that the McGuiggan and Kelly cases recognized social host liability as part of the common law, holding there is a duty to third parties. It is also true that, to the best of our understanding and research capabilities, the legislatures in Massachusetts and New Jersey, respectively, have not enacted statutes to overturn those decisions.

It is likewise true that Coulter and Clark v. Mincks held there was a common law duty on social hosts, and that the legislatures in California and Iowa, respectively, promptly overturned by statute each respective decision.

That two-to-two analysis does not tell the whole story. The majority is wrong when it states the four decisions it chooses to discuss are the "only" ones. The majority dismisses what is perhaps the earliest social host common law duty holding in Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18, 23 (1971), as one of the "only a duty owed to minors" case. The Gamma Phi Chapter case did involve intoxication of a minor, but it was immaterial whether the third party who was injured in the accident, and to whom the duty was owed, was injured by a minor or by an adult drunk. In fact, on a foreseeability analysis, it is just as foreseeable that an intoxicated adult driving a vehicle will cause third party injury as it is for an intoxicated minor. If the majority raises this "minor" distinction, it should tell us why it should make a difference and whether it will, or will not, impose third party liability if the intoxicated guest is a minor. A rattlesnake is just as deadly, its bite just as lethal, whether it is a young "adolescent" rattlesnake or an older more mature rattlesnake. The duty to the driver on the highway to not set the venomous snake loose is the same.

In reality, common law social host liability is a non-issue in many jurisdictions because statutes regulating alcoholic beverage distribution either expressly or by (even occasionally strained) judicial construction impose liability on social hosts. But perhaps social host liability encountered in "judicial construction" cases doesn't count.

See, e.g., Nehring v. LaCounte, 219 Mont. 462, 712 P.2d 1329 (1986); Mont. Code Ann. Secs. 16-6-305, 27-1-710 (1900); Walker v. Key, 101 N.M. 631, 686 P.2d 973 (App. 1984); N.M.Stat.Ann. Sec. 41-11-1 (Michie 1991).

Another case the majority makes a rather disingenuous distinction of is Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301, 1306 (1986), wherein the Vermont Supreme Court held there is a common law legal duty "where the social host furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile, or, where the social host furnishes alcoholic beverages to a minor." In Langle the plurality opinion went out of its way to state as a "holding" that social host liability to injured third parties was adopted as the law, but denied recovery because it declined to "extend" that liability to the injured guest herself. The dissenting justices agreed with the "holding" that social host liability applied to third party injuries, but would also have extended it to the intoxicated guest. A concurring justice urged that since there was no duty to the guest, the "holding" that there was a duty to third parties was "dicta." The majority's so-called distinction here is no more than the position of the lone writing justice on the Vermont court — that it "does not concern the duty owed to third parties, but rather the duty owed directly to guests." 858 S.W.2d at 919 n. 2. The Langle opinion states recognition of social host liability as a holding, and all but one of the justices of the Vermont court expressly agreed it is the law, but here this court's majority dismisses the case as "inapposite" and denies it adopts the rule it plainly states. Would a practitioner in Vermont so cavalierly dismiss the opinion? At their own peril, I think.

The majority further ignores as "dicta" Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985), which admittedly involved a sale to a minor by a licensed commercial vendor. The Sutter court stated that sale to a minor or a noticeably intoxicated person would create liability. The opinion cited with approval and quoted at length from Kelly and Coulter, which the majority concedes are third-party social host liability holdings it cannot distinguish. Sutter, 327 S.E.2d at 717-18. But the majority denies that the rule laid down by Sutter applies equally to adults. When an intermediate Georgia court subsequently applied this holding to a case involving a noticeably intoxicated adult, Divecchio v. Mead Corp., 184 Ga. App. 447, 361 S.E.2d 850, 851 (1987), that state's Supreme Court declined to grant review. Because the Divecchio court held causation questions dispositive, the majority asserts it did not "apply" the rule to adults. 858 S.W.2d at 919 n. 2. Once again, by fabricating distinctions that courts from other jurisdictions have found immaterial, the majority here avoids addressing a common law rule contrary to its desired result.

The majority likewise misplaces its rationale of pure deference to the legislature. That inaction on commercial host liability did not demonstrate the legislature's intent that there be none was an express holding in Poole, 732 S.W.2d at 314, that applies equally to the legislature's failure to include a social host liability provision in the dram shop law it enacted. Social host liability is appropriate for judicial resolution as part of our organic common law.

In 1977, 1979, and 1983, legislation creating a civil remedy was introduced but never voted on by the legislature as a body or by any committee. Failure to report a bill from committee or inaction by the legislature, however, does not conclusively establish legislative intent. See Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983). Accord Ontiveros v. Borak, 136 Ariz. 500, 512, 667 P.2d 200, 212 (1983) (unable to find expression of intent in absence of legislative action); Sorensen, 350 N.W.2d at 112 (non-passage of dramshop bill not reliable evidence of legislative intent). While failure to enact a bill may arguably be some evidence of intent, other reasons are equally inferable. Lack of time for consideration, opposition by a particular member or committee chair, efforts of special interest groups, or any other unidentified extraneous factor may, standing alone or combined together, act to defeat a legislative proposal regardless of the legislature's collective view of the bill's merits. Ontiveros; Sorensen.

The majority attempts leave the impression that pure deference to the legislature — by which I mean refusing to fulfill the court's duty to recognize a common law duty because only the legislature should weigh the factors — is either the position of a majority of states or the trend of decisions. Nothing could be further from the truth.

One of the early cases expressing deference to the legislature rather than recognizing the evolving common law is Olsen v. Copeland, 90 Wis.2d 483, 280 N.W.2d 178, 181 (1979), which states that weighing competing interests in whether to impose social host liability was "analysis . . . best conducted by the legislature." The subsequent history of the Olsen case itself best illustrates why the majority's holding is wrong. The Wisconsin Supreme Court expressly overruled the Olsen deference to the legislature holding in Sorensen by Kerscher v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984). In Sorensen, the Wisconsin court concluded the legislature's inaction was not evidence of intent, and that it should decide the issue as part of the evolving common law. This is the same Sorensen opinion cited in Poole. Sorensen dealt with commercial vendor liability, but the Wisconsin court subsequently extended its common law liability holding to social hosts in Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857, 861 (1985), and Harmann v. Hadley, 128 Wis.2d 371, 382 N.W.2d 673, 676 (1986). As that court stated in Harmann, "We went on to conclude in Koback that there was no overriding public policy reason to shield persons who were not commercial vendors from liability when their negligent serving" of liquor violated the standard. Harmann, 382 N.W.2d at 675. In a five-to-four decision by the Iowa Supreme Court, in which that court declined to change its position relying on legislative inaction, the dissent expressly points out that Wisconsin changed its position. Fuhrman v. Total Petroleum, Inc., 398 N.W.2d 807, 813 (Iowa 1987) (Schultz, J., dissenting).

See quotation in note 4, supra.

Other than Sorensen, perhaps the case most strongly rejecting the deference-to-the-legislature position the majority advocates here is the Vermont case, Langle v. Kurkul. The Vermont legislature had enacted a dram shop law, but had failed to include social host liability. The Vermont Supreme Court expressly rejected the dram-shop-law preemption argument. Langle, 510 A.2d at 1303. The majority here would hold, to the contrary, that the legislature's enactment of a dram shop law almost "simultaneously superseded" the common law principles declared in Poole, and because the dram shop law did not address social hosts there should be no social host liability. That is not the position of our sister states. In fact, a host of other jurisdictions have rejected the statutory preemption doctrine. See, e.g., Lyons v. Nasby, 770 P.2d 1250, 1253 (Colo. 1989); Largo Corp. v. Crespin, 727 P.2d 1098, 1107 (Col. 1986); Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1, 2 (1980); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847, 853 (1966); Klingerman v. SOL Corp., 505 A.2d 474, 477 (Me. 1986); Dynarski v. U-Crest Fire Dist., 112 Misc.2d 344, 447 N.Y.S.2d 86, 87-88 (1981); Mason v. Roberts, 33 Ohio St.2d 29, 294 N.E.2d 884, 887 (1973). And this court, as it did in Poole, should again decline to abdicate to a non-existent statutory preemption.

Crespin is cited with approval in Poole, 732 S.W.2d at 310 n. 1.

The majority confuses issues of proof with issues of whether to recognize the tort duty. The majority is concerned that the social host might not be able to persuade or control his intoxicated guest to keep him or her from driving. The host, however, clearly does control whether alcohol is being served, and in what quantities and form. The answer to the "duty" question is that the host should not let the driving guest have the alcohol in intoxicating quantities. If the guest becomes inebriated, however, just as with any other dangerous situation one helps create, the host has the duty to make every reasonable effort to keep the dangerously intoxicated guest from driving. If the guest resists those efforts, then there is a question for the factfinder to resolve whether the host's efforts were all that reasonably could be done under the circumstances.

The majority expresses concern that "the reasonably careful host" may not be able to detect when some guests are intoxicated. 858 S.W.2d at 921. If that is so, then the factfinder should have no difficulty determining that the host did not serve them while they were "obviously intoxicated." The majority further asserts, without citation to authority, that the "guest . . . is in a far better position to know the amount of alcohol he has consumed" than the host. 858 S.W.2d at 921. This assertion defies common sense, because from personal observation we know that most persons, as they become intoxicated, along with losing their dexterity and responsive mental faculties, gradually become less and less cognizant of how much they've had and how badly intoxicated they are. Even if the host is also intoxicated, as a third party viewing the guest, the host is probably in a better position to evaluate the guest's intoxication. Intoxicated guests need someone to tell them not to drive. It bears repeating that, if the guest did not appear intoxicated, the factfinder should have no trouble concluding that the host did not serve alcohol to an obviously intoxicated person.

If circumstances do not permit the social host to adequately monitor and control the quantity of alcoholic beverages a guest consumes, the host still retains absolute control over whether alcoholic beverages should be served at all. Lest there be some fear that recognizing social host liability will impair the celebrity of every backyard barbecue in Texas, it should not, and its effect should be salubrious. Moreover, it should be remembered that the innocent and sober guest en route to the party is entitled to the same legal protection from a drunken and dangerous departing guest as any other member of the driving public.

The majority closes with its expression of hope that hosts will act responsibly even though its opinion insulates them from liability. The majority wants to return to that discredited common law doctrine — "[a]s the common law has long recognized" — that the decision to drink is the only proximate cause of the harm, and it so states in its penultimate paragraph. 858 S.W.2d at 921. The majority seeks to repudiate the principle articulated in Poole and stop the evolving common law dead in its tracks. Virtually all jurisdictions have discarded that obsolete "drinker's fault only" rationale and provided meaningful doctrines to protect the public from rattlesnakes in its midst, as this court did in Poole.

This court should reach the holding logically compelled by Poole and Otis Engineering to keep both sets of rattlesnakes — those created by commercial vendors, and those created by social hosts — off our public streets and highways. The drunk who causes the accident is not excused from liability because the social host who intoxicated him is also responsible. All culpable parties should be liable — the social host who knowingly intoxicated the guest and the guest who drunkenly caused the accident. I am persuaded that both should be liable to the extent of their responsibility for the accident. The television commercial says, "Friends don't let friends drive drunk." That is sound public policy. But today the majority says, "Intoxicate your friends and send them out upon the public streets and highways to drive drunk. Don't worry, you won't be liable." That is, in the kindest term I can muster, unsound policy. It is contrary to this court's earlier opinions, contrary to the sound opinions and decisions from other states, and contrary to the public interest recognized and policy declared by those opinions. For these reasons, I dissent.

DOGGETT, J., joins this dissent.

SPECTOR, J., not sitting.