Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

Exercise 34

FACTS Todd Friesenhahn, son of Nancy and Frederick Friesenhahn, held an ''open invitation'' party at his parents' home that encouraged guests to ''bring your own bottle.'' Sabrina Ryan attended the party, became intoxicated, and was involved in a fatal accident after she left the party. Sandra and Stephen Ryan, Sabrina's parents, sued the Friesenhahns for negligence, alleging that the Friesenhahns were aware of the underage drinking at the party and of Sabrina's condition when she left the party. The trial court granted summary judgment for the Friesenhahns.
DECISION Judgment reversed.
OPINION Rickhoff, J.
NEGLIGENCE PER SE Accepting the petition's allegations as true, the Friesenhahns were aware that minors possessed and consumed alcohol on their property and specifically allowed Sabrina to become intoxicated. The Texas Alcoholic Beverage Code provides that one commits an offense if, with criminal negligence, he ''makes available an alcoholic beverage to a minor.'' [Citation.] The exception for serving alcohol to a minor applies only to the minor's adult parent. [Citation.]
An unexcused violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute. [Citation.] The Alcoholic Beverage Code was designed to protect the general public and minors in particular and must be liberally construed. [Citation.] We conclude that Sabrina is a member of the class protected by the Code.
In viewing the Ryans' allegations in the light most favorable to them, we find that they stated a cause of action against the Friesenhahns for the violation of the Alcoholic Beverage Code.
COMMON LAW NEGLIGENCE
The elements of negligence include (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately caused by the breach. [Citation.] To determine whether a common law duty exists, we must consider several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the defendant. [Citation.] We may also consider whether one party has superior knowledge of the risk, and whether one party has the right to control the actor whose conduct precipitated the harm. [Citation.]
As the Supreme Court in [citation] explained, there are two practical reasons for not imposing a third-party duty on social hosts who provide alcohol to adult guests: first, the host cannot reasonably know the extent of his guests' alcohol consumption level; second, the host cannot reasonably be expected to control his guests' conduct. [Citation.] The Tyler court in [citation] relied on these principles in holding that a minor ''had no common law duty to avoid making alcohol available to an intoxicated guest [another minor] who he knew would be driving.'' [Citation.]
We disagree with the Tyler court because the rationale expressed [by the Supreme Court] in [citation] does not apply to the relationship between minors, or adults and minors. The adult social host need not estimate the extent of a minor's alcohol consumption because serving minors any amount of alcohol is a criminal offense. [Citation.] ***
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*** [S]erving minors alcohol creates a risk of injury or death. Under the pled facts, a jury could find that the Friesenhahns, as the adult social hosts, allowed open invitations to a beer bust at their house and they could foresee, or reasonably should have foreseen, that the only means of arriving at their property would be by privately operated vehicles; once there, the most likely means of departure would be by the same means. That adults have superior knowledge of the risk of drinking should be apparent from the legislature's decision to allow persons to become adults on their eighteenth birthday for all purposes but the consumption of alcohol. [Citations.]
While one adult has no general duty to control the behavior of another adult, one would hope that adults would exercise special diligence in supervising minors- even during a simple swimming pool party involving potentially dangerous but legal activities. We may have no special duty to watch one adult to be sure he can swim, but it would be ill-advised to turn loose young children without insuring they can swim. When the ''party'' is for the purpose of engaging in dangerous and illicit activity, the consumption of alcohol by minors, adults certainly have a greater duty of care. [Citation.]
*** In view of the legislature's determination that minors are not competent to understand the effects of alcohol, we find sufficient legislative intent to support our holding that, taken from the pleadings before us, a duty exists between the adult social host and the minor guest. Accordingly, we find that the Ryans' petition stated a common-law cause of action.
INTERPRETATION A violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute.
ETHICAL QUESTION When should a parent be held liable for her child's negligence? Explain.
CRITICAL THINKING QUESTION Should a court extend social host liability for providing alcohol to an adult guest? Explain?