§43.3 Claim by Third Person Against Social Host Where Alcohol was Available to Minors

The Case: Biscan v. Brown , 160 S.W.3d 462 (Tenn. 2005).

The Basic Facts: Jennifer Biscan, a minor, sustained serious personal injuries as a passenger involved a car wreck after leaving a party at the home of Worley. The driver of her car had also been at the party. Worley did not supply alcohol to the minors but was aware that it was being consumed and stated that it was his intention not to let anyone who was intoxicated drive away from the party.

The Bottom Line:

• "To determine whether Worley owed a duty to protect Jennifer from the harm caused by Brown, a third party, we must first inquire whether Worley stood in some special relationship to Jennifer or to Brown. The record reflects that Jennifer was not specifically invited to the party, but the Worleys permitted her and all of the other uninvited guests to stay at the party. Worley was aware that minors who were not specifically invited to the party might attend. Thus, whatever duty, if any, was owed to any of the minor guests was owed to all of them." 160 S.W.3d at 480.
• "We begin by considering whether public policy favors a determination that the adult host Worley had a sufficient relationship to all of his minor guests, including Jennifer and Brown, such that he had a duty of care to each of them." Id.
• "First, the legislature has made the public policy determination that minors are generally prohibited from consuming alcohol. See, e.g., Tenn. Code Ann. § 57-4-203(b) (2002) (making it illegal for minors to purchase alcohol and for any person to sell or furnish a minor with alcohol); Tenn. Code Ann. § 57-5-301(e)(1) (2002) (making it illegal for minors to possess beer 'for any purpose'). It is also the public policy of this state to prohibit persons under the influence of alcohol from driving. See, e.g., Tenn. Code Ann. §§ 55-10-401 to -416 (2002). In addition to these unambiguous legislative pronouncements, public policy considerations favor imposing a duty to act for the protection of minors where such a duty might be absent when dealing with adults. We have long recognized that, because of their immaturity and inexperience, a duty may exist towards minors where it might not exist towards adults. See Townsley v. Yellow Cab Co., 237 S.W. 58 (Tenn. 1922); see also Hawkins County v. Davis, 391 S.W.2d 658 (Tenn. 1965); Gritzner v. Michael R., 598 N.W.2d 282, 288 (Wis. Ct. App. 1999) ('it [is] self-evident that an adult who voluntarily takes on the supervision, custody or control, even on a temporary basis, of a visiting child . . . stands in a special relationship to such child . . .'). In sum, public policy considerations clearly favor finding that Worley had a special relationship to his minor guests such that he had a duty to ensure their safety, as well as to prevent them from driving while intoxicated." Id. at 480-81.
• "Next we consider whether the foreseeability of Jennifer's injuries and the manner in which she suffered them supports finding a special relationship. Worley himself recognized that it was entirely foreseeable that guests would become intoxicated and drive. As Worley stated in his deposition:

  I was concerned about if there was drinking, you know, that there would be the drinking and driving issue. I was worried about that happening. And so based upon that conversation and based upon my past experiences with the teenagers, I decided that the best thing - the safest thing I could do would be to ask the kids to spend the night so that whether or not they drank they would not then go off driving.

  As it was foreseeable that guests would drink and drive, it was also entirely foreseeable that guests would ride with drivers who had been drinking. We conclude that the foreseeability factor also supports finding that Worley had a special relationship to his minor guests." Id. at 481.
• "Worley points out that our appellate courts have required that, in order to find a special relationship as that term is defined by the [Restatement], the defendant must have the 'means and ability' to control the third party. See Lett v. Collis Foods, Inc., 60 S.W.3d 95, 100 (Tenn. Ct. App. 2001); see also Newton v. Tinsley, 970 S.W.2d 490, 493 (Tenn. Ct. App. 1997). Worley argues that he had neither the means nor the ability to control the guests. He argues that he had no actual knowledge that either Brown or Jennifer attended the party and that had he attempted to prevent Brown from leaving, he could have exposed himself to liability for false imprisonment, assault, or battery." Id.
• "We agree that in the total absence of the means or ability to control his guests Worley would not have a special relationship to them. An adult host who is 'in charge' of a party held for minors, however, certainly has some ability to control the conduct of his guests. Moreover, Worley's argument that he did not have the absolute right to control his guests misapprehends the standard of care owed. Worley did not have an absolute duty to control his guests; rather, he had an absolute duty to use ordinary care to control his guests and ensure their safety. See Coln, 966 S.W.2d at 39 (''Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending to the particular situation and is to be commensurate with the risk of injury.'' (quoting Doe, 845 S.W.2d at 178)); see also Frye v. Elkins, 122 S.W.2d 827, 829 (Tenn. Ct. App. 1938) (''Ordinary care is relative, and not absolute, and, being relative, is dependent upon the circumstances of each particular case.'')." Id.
• "Worley testified that at previous parties held for his teenage son, he had monitored guests and had 'corralled' all of the cars behind a fence to be able to control the departure of intoxicated guests. Indeed, after this accident happened Worley took a similar action, 'corralling' all the minor guests' cars to ensure no one else would leave. In communicating his 'rule' to his daughter, it was clearly his intention to prevent guests from leaving if they had been drinking. Worley's after-the-fact arguments as to why it might have been difficult to execute the duty are unavailing, particularly in light of the fact that he did not attempt to enforce the rule. Rather than continuing to patrol and monitor the guests, Worley fell asleep shortly before Brown and Jennifer left the party. In this case, the exercise of reasonable care might have included, in addition to the steps Worley took at previous parties, contacting the parents of intoxicated guests or even contacting the police. Reasonable care under the circumstances may not have included physically restraining his guests." Id. at 481-82.
• "Having determined that Worley had a special relationship to Brown and Jennifer as minor guests, we examine the remaining factors in the balancing test to determine whether Worley owed them a duty of care. First, the possible magnitude of the potential harm or injury was great, as Worley recognized and as Jennifer's injuries demonstrate. The remaining factors balance the importance, social value, and usefulness of the activity against the feasibility, safety, usefulness, costs, and burdens of alternative conduct. Thus, we must balance the importance, social value, and usefulness of hosting a party with the intention of providing a "safe" place for teenagers to consume alcohol against the feasibility, safety, usefulness, costs and burdens of declining to host such a party." Id. at 482.
• "Given that underage drinking is illegal, we have little difficulty in concluding that there is minimal social utility, if any, in providing a forum for teenagers to consume alcohol. Worley argues that 'kids that chose to drink would find a way to do so,' and that he should not be penalized for permitting them to do what they would inevitably do regardless of his wishes. We strongly disagree. Our view is that even if that conduct were inevitable, it must not be condoned or encouraged." Id.
• "Worley argues that this Court should hold that liability will only be imposed on a social host who either serves or furnishes alcohol to minor guests or who exercises affirmative conduct and control over the consumption of alcohol by minors. Worley argues strenuously that it is bad policy to hold him liable for trying to 'do the right thing,' whereas if he had actually furnished alcohol to the minors, he would be shielded by Tennessee Code Annotated section 57-10-101." Id.
• "We recognize, as did the Court of Appeals, the apparent tension between our holding that Worley owed a duty of care to protect his underage guests from harm and the legislative determination that one who furnishes alcohol cannot, as a matter of law, be a proximate cause of injury to a third person resulting from the consumption of alcohol. The duty of care Worley owed to his guests, however, lies separate and apart from furnishing alcohol. Because he knowingly permitted and facilitated the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise reasonable care to prevent his guests from harming third persons or from befalling harm themselves. Considering the facts in the light most favorable to the plaintiffs, we therefore affirm the trial court's denial of Worley's motion for summary judgment on this ground." Id.

Other Sources of Note: The Biscan Court also held that Worley assumed the duty to protect Jennifer Biscan from injury. This concept is discussed in the section titled "Duty - Duty Gratuitously Undertaken."

Recent Cases: Bailey v. Grooms , No. E2008-01520-COA-R3-CV, 2009 WL 3460654 (Tenn. Ct. App. Oct. 28, 2009) (affirming summary judgment for defendant property owner finding that hosting an adult party did not create legal duty to prevent adult attendees from becoming intoxicated and injuring each other and finding no special relationship arose out of being social host, finding risk of injury from a guest firing a gun not reasonably foreseeable, finding no assumption of duty, and finding plaintiff statutorily prevented from showing causation by Tenn. Code Ann. 57-10-101).