Opinion
C.A. No. 06C-07-002.
Date Submitted: August 2, 2007.
Richard D. Abrams, Esquire, Mintzer, Sarowitz, Zeris, Ledva Meyers, Wilmington, Delaware.
Louis J. Rizzo, Jr., Esquire, Reger Rizzo Kavulich Darnall, LLP, Wilmington, Delaware.
Clayton E. Bunting, Esquire, Wilson, Halbrook Bayard, Georgetown, Delaware.
Dear Counsel:
Pending before the Court is Janice Brosnahan's Motion to Dismiss. The motion is granted for the reasons set forth herein.
Factual and Procedural Background
When testing a complaint for failure to state a claim, all well-pleaded allegations are accepted as true. Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). Applying that principle, the Court adopts the facts alleged in the Complaint and those facts are as follows. On July 3, 2004, Eric Brosnahan and several of his friends consumed alcohol and/or ingested illegal drugs at the residence of Janice and Bruce Brosnahan while the Brosnahans were present. Alana Kulp was an eighteen-year-old individual who attended the party at the Brosnahans' residence on July 3rd. She remained at the party until the early hours of July 4th. In the early morning hours of July 4th, Ms. Kulp drove her vehicle while under the influence of alcoholic beverages supplied by the Brosnahans and consumed at their residence. Jeffrey Zonko was an attendee at the party and a passenger in the vehicle operated by Ms. Kulp. Ms. Kulp lost control of her vehicle while under the influence of alcohol, collided with another motorist, and subsequently struck a tree. This accident, which took place on Vines Creek Road in Clarksville, Sussex County, Delaware, resulted in Ms. Kulp's death and serious and permanent personal injuries to Mr. Zonko.
Ms. Kulp's blood alcohol level was later determined to be .08.
On July 5, 2006, Mr. Zonko filed this lawsuit against the Brosnahans, alleging his injuries were proximately caused by the Brosnahans in that they engaged in various negligent and/or illegal activity, of which the primary allegation is that the Brosnahans improperly provided alcoholic beverages to persons under the age of twenty-one.
The caption of the Complaint was amended following the death of Mr. Brosnahan. Mrs. Brosnahan is now the sole named defendant, individually and also as administratrix for Mr. Brosnahan's estate.
To date, an Answer to the Complaint has not been filed. On March 1, 2007, Mrs. Brosnahan filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief may be granted on the grounds that social host liability is not a recognized cause of action in Delaware. At oral argu ment, the Cour t requested furth er br ief ing f rom the part ies . Mr. Zon ko's in sur ance company, Penn National Insurance Company, has actively contested Mrs. Brosnahan's Motion to Dismiss on behalf of Mr. Zonko. The parties have now thoroughly presented their respective arguments to the Court.
DISCUSSION Standard of Review
It is well-settled under Delaware law that a complaint will not be dismissed for failure to state a claim unless it appears reasonably certain "that a plaintiff would not be entitled to the relief sought under any set of facts which could be proven to support the action." Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Rabkin v. Philip A. Hunt Chem. Corp., 498 A.2d 1099, 1104 (Del. 1985). In considering the sufficiency of the complaint, all well-pleaded allegations are accepted as true, and all reasonable inferences are construed in favor of the plaintiff. Havens v. Attar, 1997 WL 55957, at *5 (Del.Ch. Jan. 30, 1997). "[A] complaint[,] attacked by a motion to dismiss for failure to state a claim[,] will not be dismissed unless it is clearly without merit, which may be either a matter of law or of fact." Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52, 58 (Del. 1970). In sum, the test for sufficiency is a broad one. It is measured by whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. Spence v. Funk, supra, at 968; Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952). If the plaintiff may recover, the motion must be denied.Having considered the sufficiency of the Complaint, accepting as true all of Mr. Zonko's well-pleaded allegations and drawing all reasonable inferences in favor of Mr. Zonko, the Court cannot conclude that Mr. Zonko would be entitled to the relief sought. Mrs. Brosnahan's Motion to Dismiss is granted.
Merits
Mr. Zonko alleges the Brosnahans should be liable for Mr. Zonko's injuries under a social host liability theory because they negligently served Ms. Kulp, a minor, alcoholic beverages at their home and then failed to prevent Ms. Kulp from operating a motor vehicle. Although the specific scenario presented by this case has not been considered by the Delaware courts previously, Delaware courts have considered the issues of social host liability and dram shop liability where a minor patron was involved. A careful review of that case law leads me to the conclusion that the policy questions raised by the situation presented in the case at bar are better presented to and considered by the General Assembly than this Court.
In 1981, the Delaware Supreme Court ruled that a patron does not have a cause of action against a tavern owner for injuries the patron sustains as a result of his own intoxication. Wright v. Moffitt, 437 A.2d 554 (Del. 1981). In so ruling, the Court observed the lack of a common law dram shop rule and the absence of statutory dram shop legislation. The Court summed up the reasons for rejecting a common law cause of action as follows:
In our opinion, the creation of a cause of action against one who is licensed to sell alcoholic beverages . . . involves public policy considerations which can best be considered by the General Assembly. We say this, not merely because the alcoholic beverage business has been traditionally governed by the Legislature, but also because the issue has many practical implications; for example: should any such liability extend to a hotel dining room or restaurant owner (or to a social host) as well as to a "tavern" owner? should it extend to assaults or other torts by an inebriated patron? to whom should such a cause of action accrue? should there be a special rule for minors? And, inevitably, if a cause of action were recognized under any of these circumstances, a commercial dispenser of alcoholic beverages (and, probably, a social host) would be a party to every suit in which an intoxicated person is alleged to have committed a tortious act.437 A.2d at 556 (footnote omitted) (emphasis added).
The Wright Court also concluded that a negligence per se claim must fail because the plaintiff was not a member of the class of people designed to be protected by the legislation.A negligence per se claim may be sustained only where (1) there is a causal connection between the statutory violation and the injury and (2) the plaintiff who invokes the statute is "a member of the class of persons for whose protection or benefit the statute was enacted." Id. at 557 (citation omitted). The Wright Court carefully tracked the legislative history of the Delaware Code provisions that prohibit the selling of alcoholic beverages to intoxicated patrons and concluded the purpose of the legislation was to protect the public in general and to prevent a breach of the public peace, not to protect one who has imbibed alcoholic beverages from the consequences of his own intoxication. Because the Court decided the plaintiff was not a member of the class of persons designed to be protected by the legislation and, thus, not entitled to pursue a negligence per se claim, it did not decide whether the casual element required for a negligence per se claim had been met.
Following Wright v. Moffitt, the Delaware Supreme Court had occasion to consider a situation in which a minor was served alcoholic beverages at a private party and that minor subsequently injured a third person, a parking valet. DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988). In that case, the Superior Court granted the motion for summary judgment filed by the social host of the party. The Superior Court reasoned that Wright required the court to find social hosts who serve alcohol to a minor who then injures a third person do not have a legal obligation to the person thus damaged. On appeal, the Supreme Court chided the Superior Court for reading too much into Wright. However, the Supreme Court limited its holding to the situation presented: that is, where the social hosts had reason to know that the minors were drinking, where the social hosts knew the minors were driving, and where the social hosts had a business duty to the injured third part y. The Court relied upon the tort principle of workplace safety to find the defendants liable and explicitly limited its holding under a business invitee analysis.
The term "minor", in the context of this opinion, refers to a person who has not reached the age of twenty-one, the legal age for consumption of alcoholic beverages in Delaware. 4 Del. C. § 708.
Shortly after DiOssi, the Delaware Supreme Court considered the case of Samson v. Smith, 560 A.2d 1024 (Del. 1989). In that case, the Court considered whether a third party injured by the actions of an intoxicated driver had a cause of action against a tavern owner for dispensing alcoholic beverages to the intoxicated driver. Relying upon the same reasoning employed in the Wright case, the Court concluded the third party did not have a cause of action against the tavern owner.
The Delaware Supreme Court next considered the case Oakes v. Megaw, 565 A.2d 914 (Del. 1989), which involved a tavern owner who served alcohol to a minor and the minor was subsequently involved in a motor vehicle accident that resulted in injury to the plaintiff. The Superior Court granted the tavern owner's motion to dismiss for failure to state a claim and the Supreme Court affirmed. In so doing, the Supreme Court cited its rulings in DiOssi and Samson in support of its decision not to recognize a cause of action merely because the person consuming the alcohol was a minor:
DiOssi does not support the [plaintiffs'] argument that an exception to the holding in Samson should be recognized for injuries that are caused to a third party by an intoxicated patron of a commercial establishment, who is a minor. If there is to be legal basis for imposing such liability in Delaware, its origin must be an act of the General Assembly.Oakes v. Megaw, 56 A.2d 914, 916-17 (Del. 1989). The Supreme Court also rejected the plaintiffs' argument that 4 Del. C. §§ 711 and 713 create a statutory standard of care, the violation of which forms the basis for a private cause of action against a tavern owner. The Court noted that it had rejected precisely this argument before and that there was no rationale for recognizing an exception to its previous statutory construction because of the age of the patron.
Subsequent to the Delaware Supreme Court's decision in Oakes, Judge Quillen of the Superior Court considered facts very similar to those presented in the case at bar. In Pipher v. Burr, 1998 WL 110135 (Del.Super. Jan. 29, 1998), application for interlocutory appeal to Supr. Ct. refused, 1998WL 109999 (Del.Super. Feb. 11, 1998), the plaintiffs brought suit against a private citizen who purchased and provided beer to a minor who subsequently caused an automobile accident that inju red the min or. Judge Quillen concluded that the plaintiffs were entitled to summary judgment on a theory of negligence per se. In so holding, the court found the general policy behind the enactment of 4 Del. C. § 904 (c) to be to protect minors; the court also determined the statute is "designed to protect the general public from accidents which arise from underage drinking and driving." Pipher, 1998 WL 110135, at * 8. The court concluded that the decedent was part of the general public and, therefore, the minor was included in the class of people sought to be protected by the legislation. As I will discuss further, infra, I do not agree with Judge Quillen's decision in this regard. Finally, the court held that a minor's voluntary consumption of alcohol is not an intervening act sufficient to "break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Id., at *9.
Most recently, the Delaware Supreme Court decided the case of Shea v. Matassa, 918 A.2d 1090 (Del. 2007). In that case, a motorist caused a fatal car crash after imbibing alcohol at a private residence and a tavern. The wife of the deceased filed suit against the owner of the private home and the owner of the tavern. The Supreme Court rejected the plaintiff's arguments and concluded:
[T]he General Assembly, not this Court, should decide whether to create a cause of action for dram sho p li abi lit y or social host liability. The General Assembly heavily regulates the sale and use of alcohol and by so doing has clearly announced its intent to occupy exclusively the field of policy making in that subject area. Furthermore, the parties raise controversial and competing public policy questions which the General Assembly can more effectively debate, consider and resolve through the legislative process.Id. at 1092 (emphases added). The Court reaffirmed its previous observation, made in DiOssi, that most courts that have faced the issue of social host liability have deferred to the legislative process for resolution. In so doing, the Court stated:
The rationale for not extending liability to a social host is that one who consumes alcohol is the sole proximate cause of any injury he causes to a third person. The inability of a social host to control a guest once the guest leaves the host's home can lead to "significant financial burdens." Furthermore, as we have consistently declined to create a common law dram shop cause of action, it would be anomalous for social hosts to have greater legal responsibility than trained, licensed and regulated bartenders.Shea, 918 A.2d at 1097 (internal citations omitted).
After reviewing all of these cases and the principles discussed therein, I conclude that Mr. Zonko does not have a cause of action against the Brosnahans based upon either common law or statutory law.
Common Law Basis for Liability
To the extent Mr. Zonko seeks to have the Court recognize a common law action against the the Brosnahans because they provided alcoholic beverages to minors, that request is without merit. As summarized above, the Delaware Supreme Court has consistently rejected a social host liability cause of action for numerous public policy reasons. Even accepting Judge Quillen's legal conclusion that a minor's act of drinking alcohol is not a sufficient intervening cause to break the chain of proximate causation, there are a number of policy reasons that support rejecting social host liability, in general, and also apply to those situations involving the provision of alcoholic beverages to minors. Specifically, the Supreme Court has noted a social host's inability to control the actions of a guest once that guest leaves the host's residence. Shea, 918 A.2d at 1097. Furthermore, the Court has been reluctant to place more responsibility on social hosts than on trained, licensed, and regulated bartenders. Id. The Court has been given the opportunity to impose dram shop liability upon tavern owners who serve alcoholic beverages to minors and has declined. See Oakes, 565 A.2d at 917. The Court has been given the opportunity to impose social host liability on hosts who serve alcoholic beverages to minors and has declined. See DiOssi, 548 A.2d at 1365; Oakes, 565 A.2d at 916. I likewise agree that many of the policy reasons for rejecting a general social host liability cause of action are also present when the guest is a minor. The summary of those issues provided in the Wright decision bears repeating:
In our opinion, the creation of a cause of action against one who is licensed to sell alcoholic beverages . . . involves public policy considerations which can best be considered by the General Assembly. We say this, not merely because the alcoholic beverage business has been traditionally governed by the Legislature, but also because the issue has many practical implications; for example: should any such liability extend to a hotel dining room or restaurant owner (or to a social host) as well as to a "tavern" owner? should it extend to assaults or other torts by an inebriated patron? to whom should such a cause of action accrue? should there be a special rule for minors? And, inevitably, if a cause of action were recognized under any of these circumstances, a com mercial di spenser of alcoholic beverag es (and, probably, a social host) would be a party to every suit in which an intoxicated person is alleged to have committed a tortious act.437 A.2d at 556 (footnote omitted) (emphasis added). Simply stated, the General Assembly is better equipped to hear debate and conduct research on underage drinking and decide what action, if any, the General Assembly should take to punish the provision of alcohol to minors who subsequently inflict injury upon third parties.
Statutory Basis for Liability
With regard to a statutory basis for a claim against the Brosnahans, I find that a violation of Section 904(c) does not constitute a basis for a civil cause of action, even under a negligence per se analysis. Section 904(c) reads:
Whoever purchas es, buys or gives alcoholic liquor for or to a person under the age of 21 years or knowingly allows a person under his or her supervision and under the age of 21 years to consume alcoholic liquor shall, in addition to the payment of costs, be fined for the first offense, not less than $100 nor more than $500, and may b e ordered by the court to perform community service for a period of 40 hours in such form and on such terms as the court shall deem appropriate under the circumstances and may be imprisoned for not more than 30 days; and for each subsequent like offense, shall be fined not less than $500 nor more than $1,000 and may be ordered by the court to perform community service for a period of 80 hours in such form and on such terms as the court shall deem appropriate under the circumstances and may be imprisoned for not more than 60 days. This subsection shall not apply to religious services or members of the same family within the private home of any of said members.
4 Del. C. § 904(c). This statute is a criminal statute. See Hopper v. F.W. Corridori Roofing Co., 305 A.2d 309, 310 n. ** (Del. 1973). Mr. Zonko argues he is entitled to recovery because the Brosnahans' violation of this statute constituted negligence per se. The question then becomes whether 4 Del. C. § 904(c) provides sufficient statutory basis for a civil cause of action. To address this question, the Court must examine the intent of the Legislature. Desmond v. Lucks, 1988 WL 90500, at *2 (Del.Super. Aug. 19, 1988). "A statute wholly penal in nature, of course, will not support a civil remedy." Id. The Delaware courts have adopted the test set out by the United States Supreme Court in Cort v. Ash, 422 U.S. 66 (1975), for determining whether the General Assembly intended to create a civil remedy in addition to a criminal penalty. That test is comprised of three elements:
1) Is the plaintiff one of the class for whose especial benefit the statute was enacted;
2) Is there any indication of legislative intent either to create or deny a civil remedy; and
3) Is it consistent with the underlying purposes of the legislative scheme to imply a civil remedy for the plaintiff?Desmond, 1988 WL 905000, at * 2. I find that Mr. Zonko is not a member of a class for whose especial benefit the statute was enacted and, thus, Mr. Zonko does not have a civil cause of action based upon a negligence per se argument. In this way, I disagree with the conclusion reached by Judge Quillen in Pipher. My reasoning is as follows.
As was the case in both Desmond and Brett v. Berkowitz, 1995 WL 270146 (Del.Super. Apr. 13, 1995), Section 904(c) is purely penal in nature. The purpose of the statute is to deter the serving of alcohol to minors:
[This purpose] would be aided by allowing civil recovery only to the extent that the recovery would impose an extra penalty on those committing . . . [this crime]. Since substantially all criminal penalties are deterrent in nature, this is a quality which would be shared by companion civil causes of action to any criminal statute, and thus is not helpful in determining legislative intent here.Desmond, 1988 WL 90500, at *2. Having found that the statute is a general criminal statute necessarily leads me to the conclusion that the statute is meant not to protect an especial class, but the public in general. Likewise, Judge Quillen concluded in Pipher that the deceased in that case "was part of the general public and therefore would be included in the class sought to be protected." Pipher, 1998 WL 110135, at *8. General criminal statutes designed to protect the public in general are not designed to protect any particular class. Desmond, 1988 WL 90500, at *3. Accordingly, 4 Del. C. § 904(c) does not provide for a civil cause of action.
Finally, I also observe that Section 904 was implicated in Oakes and the Supreme Court rejected the existence of any special standard of care due to minors in that case.
CONCLUSION
For the reasons set forth herein, Defendant's Motion to Dismiss is granted.IT IS SO ORDERED.