§43.5 Provision of Alcohol (Non-Sale) to Minor Who is Later Injured in Motor Vehicle Wreck

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

The Basic Facts: Plaintiff was injured in a car wreck after a party at defendant Worley's house. Plaintiff was a minor and was under the influence of alcohol. She sued the driver of the car (Brown) and Worley. Plaintiff's sister supplied alcohol to Plaintiff.

The Bottom Line:

• "We next address the defendants' argument that the trial court erred in directing a verdict for the plaintiffs as to the fault of Dana Biscan. Prior to trial, the plaintiffs filed for partial summary judgment seeking to preclude apportionment of fault to Dana for illegally purchasing and providing the beer to minors, arguing that pursuant to Tennessee Code Annotated sections 57-10-101 and -102, one who merely furnishes alcohol to another cannot be at fault. The trial court denied the plaintiffs' motion, but at the close of proof, the trial court reconsidered the issue and granted a directed verdict. The jury was instructed that it could not apportion fault to Dana Biscan." 160 S.W.3d at 470.
• "On appeal, the defendants argue that the statute applies only in commercial settings and thus cannot shield Dana Biscan, an individual, for illegally providing alcohol to minor Hughes Brown. They argue that Dana was negligent in providing alcohol to Brown and that she was negligent per se in providing alcohol to a minor. The plaintiffs argue that the defendants have waived appellate review of this issue. In the alternative, they argue that the statute shields Dana as a person who 'furnished' alcohol to another." Id.
• "In interpreting a statute, we begin with the words of the statute itself, applying their 'ordinary and plain meaning.' Blankenship v. Estate of Bain, 5 S.W.3d 647, 651 (Tenn. 1999). The first section of the statute provides:

  The general assembly hereby finds and declares that the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person."

  Id . at 472.
• "Tenn. Code Ann. § 57-10-101 (2002) ('section 101'). The effect of section 101 is to make it impossible for one who has been injured by an intoxicated person to state a claim for negligence against the person or entity who furnished the alcoholic beverage or beer because the statute removes, as a matter of law, the required element of legal causation. See, e.g., Turner v. Jordan, [957 S.W.2d 815, 818 (Tenn. 1997)] (a claim for negligence requires a duty of care owed by the defendant to the plaintiff; a breach of that duty; an injury or loss; causation in fact; and legal, or proximate, causation). In other words, there can be no cause of action resting on the allegation that one person 'furnished' alcohol to another because it is impossible to prove proximate cause. The statute does not merely provide immunity from suit where one has furnished alcohol to another; rather, the statute constitutes the legislative determination that persons who furnish alcohol are not at fault for injuries inflicted by an intoxicated person." Id.
• "The second part of the statute carves out an exception to the first part. It provides that a seller of alcohol may be liable to a third party for injuries if the seller sold alcohol to a minor or if the seller sold alcohol to an obviously intoxicated person and the sale was a proximate cause ^FN3 of the injuries suffered by the third party:

  Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:
  
  (1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or
  
  (2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as a direct result of the consumption of the alcoholic beverage or beer so sold.

  Tenn. Code Ann. § 57-10-102 (2002) ("section 102").

  FN3 We note that although section 57-10-101 uses the term 'the proximate cause,' our decisions recognize that there may be more than one party who is 'a proximate cause' of the injuries or damages to a plaintiff. See McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn. 1992) (emphases added)."

  Id .
• "We agree with the trial court and with the Court of Appeals that the plain language of section 101 precludes allocation of fault to Dana Biscan. Section 101 clearly states that the furnishing of alcohol or beer is not a proximate cause of injuries inflicted by an intoxicated person. Moreover, the only exceptions to section 101 are for sales of alcohol under the circumstances set forth in section 102." Id. at 472-73.
• "As we explained when we first had occasion to interpret this statute, ''[w]hen the words of a statute are plain and unambiguous, the assumption is that the legislature intended what it wrote and meant what it said. The pertinent language must be applied without any forced or subtle construction extending its import.'' Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996) (quoting McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn. 1992) (alterations omitted)). The clear language of the statute admits of only one conclusion: that the legislature intended to shield persons such as Dana who 'furnish' alcohol in a social setting." Id. at 473.
• "Although the defendants argue strenuously that the statute is intended to apply only to traditional 'dram shop' defendants, i.e., commercial sellers, their argument turns the statute on its head. Section 101, which comes first, sets forth the general rule; section 102, which comes second, creates two narrow exceptions applicable only to sellers. The specific exceptions to the general rule, however, must be confined to their terms and cannot be read to somehow limit the broad rule stated in section 101. 'Where a general rule has been established by statute, with exceptions, the court will not curtail the former nor add to the latter by implication.' Burns v. City of Nashville, 178 S.W. 1053, 1054 (Tenn. 1915). Section 101 applies without limitation to the "furnishing" of alcoholic beverages or beer. Had the legislature intended section 101 to apply only to the sale of alcoholic beverages or beer, it would most certainly have chosen the word 'sale' over the word 'furnish,' as it did in section 102." Id.
• "Moreover, as the Court of Appeals discussed, the legislative history of sections 101 and 102 reveals that the statute was intended to codify the common-law rule that an individual who furnishes alcohol to another is not liable for any damages resulting from the other's intoxication, even if those damages are foreseeable. See, e.g., Cecil, 575 S.W.2d at 271. Thus, although the legislative history reflects much debate and concern over the extent to which sellers of alcoholic beverages and beers should be covered, the starting point was that the mere furnishing of alcohol, whether gratuitously or for commercial gain, is not a basis for liability. See Worley v. Weigels, 919 S.W.2d at 593-94." Id.
• "Defendant Brown argues that Dana Biscan should not be protected by section 101 because she was not a social host and because she collected money from the other minors to cover the cost of the beer. There is nothing in section 101, however, limiting its scope to one who hosts a social function. In Cecil, for example, a passenger furnished alcohol to a driver. The driver became intoxicated and struck and killed a bicyclist. We held that the passenger was not liable under the common-law rule. 575 S.W.2d at 271. There, as here, the defendant did not 'host' anything." Id.
• "Similarly, the mere fact that the other minors reimbursed Dana for the beer she purchased for them is not sufficient to make her a seller to whom section 102 of the statute applies. She did not 'sell' the beer to the other minors; she merely performed an errand (albeit an illegal errand) on their behalf. See, e.g., Childress v. Sams, 736 S.W.2d 48 (Mo. 1987) (holding one does not lose one's position as a social host if merely repaid for an alcohol purchase rather than having a commercial motive); accord Elizondo v. Ramirez, 753 N.E.2d 1123, 1130 (Ill. App. Ct. 2001), and Koehnen v. Dufuor, 590 N.W.2d 107, 112-13 (Minn. 1999). Moreover, there is simply no statutory language that indicates section 102 applies under such circumstances." Id. at 473-74.
• "In sum, we hold that Dana's conduct in furnishing beer to the defendant Brown did not proximately cause Jennifer Biscan's injuries under the explicit terms of section 101. Dana did not sell alcohol to Brown within the meaning of section 102, so the exceptions contained in that part do not apply. Because the statute mandates the conclusion that Dana was not a proximate cause of Jennifer's injuries, the trial court was correct in directing a verdict. Since Dana cannot, as a matter of law, be at fault for Jennifer's injuries, it would have been error to allow the jury to apportion fault to her." Id. at 474.
• "We note that this result would be different if Dana were protected by a statute making her immune from suit. Under our system of comparative fault, a jury may apportion fault to an immune party notwithstanding the party's immunity from liability. Carroll v. Whitney, 29 S.W.3d 14, 19 (Tenn. 2000). We have also held that a jury may apportion fault to persons who are 'effectively immune,' such as those protected by a statute of repose. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000). However, in enacting Tennessee Code Annotated section 101, the legislature did not make persons or entities who furnish alcohol immune from suit; rather, the legislature determined that furnishing alcohol is not a proximate cause of injuries inflicted by an intoxicated person. Thus, the effect of the provision is not merely to restrict the remedy for a cause of action, but to remove that cause of action entirely, making a person or entity who furnishes alcohol immune from fault as well as immune from liability. Although we held in Carroll that the attribution of fault was not limited 'to persons against whom the plaintiff has a cause of action in tort,' 29 S.W.3d at 18, that holding referred to a plaintiff's ability to prosecute a suit, not to the very existence of a cause of action based on the underlying conduct." Id.
• "Finally, the defendants argue that the trial court erred in directing a verdict as to Dana's fault because Dana was negligent per se in providing alcohol to Brown, a minor, in violation of Tennessee Code Annotated sections 39-15-404(a)(2) (2003) and 57-3-412(a)(4) (2002). These statutes make it illegal to furnish alcohol to a minor under any circumstances. We agree with the plaintiffs and with the Court of Appeals that because the allegation of negligence per se is founded on the conduct of furnishing alcohol to defendant Brown, Dana cannot be negligent per se as a matter of law pursuant to Tennessee Code Annotated section 57-10-101." Id. at 475.
• "Although violation of a statute constitutes negligence per se, the violation is evidence only of conduct falling below the reasonable standard of care. Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994); see also McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn. 1992). Violation of a statute does not establish the element of proximate cause. Thus, 'a jury may not base its verdict on th[e] per se negligence unless it affirmatively appears that the statutory violation was a proximate cause of the injury for which recovery is sought.' McIntyre, 833 S.W.2d at 59 (citing Brookins, 624 S.W.2d at 550, and Barr v. Charley, 387 S.W.2d 614, 617 (1964)). Because the defendants assert that Dana's negligence per se is based on the conduct of furnishing alcohol, and because that conduct has been legislatively determined not to be a proximate cause of Jennifer's injuries, Dana cannot be liable on a theory of negligence per se. As we explained in Worley v. Weigels,

  [w]ith the enactment of [Tennessee Code Annotated §§ 57-10-101 and -102], the legislature made a definite distinction between the basis for civil liability and the basis for criminal liability incident to the sale of alcoholic beverages. These statutes, rather than the duties imposed by criminal statutes, determine the civil liability of the [defendant].

  919 S.W.2d at 593 (emphasis added)." Id. at 475-76.
• "In sum, although we hold that the defendants have not waived appeal of the trial court's grant of a directed verdict as to Dana Biscan's fault, we affirm the trial court's decision. The plain language of the statute provides that one who furnishes alcohol, as Dana did here, does not proximately cause the injuries inflicted by an intoxicated person. Under the express terms of the statute, Dana Biscan cannot be found to be at fault for Jennifer Biscan's injuries. Similarly, she cannot be found at fault under a theory of negligence per se, because the required element of causation has been legislatively removed. The decision of the trial court is affirmed." Id. at 476.

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