David Randolph Smith

Social Host Liability for Alcohol-Related Injuries

In Biscan v. Brown, No. M2001-02766-COA-R3-CV - Filed December 15, 2003, the Tennessee Court of Appeals affirmed a judgment against a social host (15% liability) after a jury verdict awarding damages to Jennifer Biscan (with 15% fault attributed to her) and her father, Robert Biscan, for serious brain injuries Jennifer incurred in an automobile accident, which injuries left her permanently impaired. Jennifer, 16 at the time, was riding as a passenger in the car driven by Hughes Brown (found 70% at fault), then 17, who was intoxicated. The accident occurred after Jennifer and Hughes left a party at the home of Paul Worley, where some guests had consumed beer. It was uncontested that Hughes Brown’s negligent operation of the car while intoxicated was the cause of the accident. The Worleys did not serve alcohol or make it available at the party. Although many attendees did not drink, a number brought alcohol, primarily beer, to the party and drank it there. Mr. Worley fully expected that the minor guests would both bring and consume beer on his property. He intended that a rule he had implemented in previous parties given by his son would apply: that is, that any guest who chose to drink alcohol would be required to turn over car keys and spend the night rather than drive home. First the court held that the person who furnished the beer (Jennifer's sister) could not be held liable (or have any percentage of fault) because Tenn. Code Ann. § 57-10-101 ("The general assembly hereby finds and declares that the consumption of anyalcoholic 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.) The court held the law applied to someone who merely provides alcohol and thus the sister (and social hosts) who furnish alcohol have no liability. The court cited Downen v. Testa, 2003 WL 2002411, at *3 which reached the same no liability result for a social host.

But, here the parent who hosted the party--but provided no alcohol -- was nevertheless held liable. This was the evidence: "Mr. Worley hosted the party for his daughter Ashley’s eighteenth birthday at his residence. No written invitations were sent; Ashley Worley personally invited friends. Other students heard about the party by word-of mouth. Everyone who showed up at the Worley home on the night of the party was welcomed by the Worleys. Mr. Worley did not intend to serve any alcoholic beverages, and did not. However, he was aware that some of the minors attending the party would bring beer and drink it at the party. He expected that to occur. Mr. Worley told Ashley prior to the party that if any of the guests consumed alcoholic beverages they would not be permitted to leave the party and would be required to stay the night. The court found that Worley owed a duty of care to Jennifer Biscan: "Imposing a duty to act reasonably to prevent driving by an intoxicated minor in a situation where the adult defendant has the authority and opportunity to take non-onerous action to preclude that driving furthers such public policy.20 We find Mr. Worley owed a duty of reasonable care under the circumstances to Jennifer Biscan. . .We recognize an apparent anomaly if an adult host who served alcohol to a minor could not be liable because of the Dram Shop Act, but a host who acted with good intentions as Mr. Worley did could face liability. We simply note that the case before us does not involve a defendant who served alcohol to minors, and we are not called upon to address that situation. Further, allowing an intoxicated minor to drive when it could have been prevented is a cause of the injury separate from and additional to the intoxication." The court also found Mr. Worley assumed a duty of care. "Nonetheless, his own deposition testimony established his undertaking and intent with regard to safeguarding the guests and the general public. Consequently, the evidence before the court at the summary judgment stage was sufficient for it to conclude that Mr. Worley voluntarily assumed a duty to ensure that minors who had been drinking did not leave the party by driving." The court stated the " question of whether Mr. Worley owed a duty to Jennifer Biscan to prevent Hughes Brown from driving in an intoxicated state after having consumed beer at the party, with or without a passenger, or to prevent Jennifer from riding in the car with Hughes Brown must be answered by balancing the degree of foreseeability of harm against the burden upon Mr. Worley to avoid the harm by acting differently. Id. at 901. The degree of foreseeability of harm and the magnitude of that potential harm must be balanced against the onerousness of the burden involved in alternative conduct. “Of course, a duty of care is dependent upon foreseeability.” Pittman v. Upjohn, 890 S.W.2d 425, 431 (Tenn. 1994). Applying the relevant factors to the circumstances presented in this case, it is clear that it was foreseeable that a minor guest who drank at the party would become intoxicated and that if an intoxicated minor drove a car, there would be an accident." So what did the duty require? The court stated, "On the other side of the equation, the burden placed on Mr. Worley to prevent the harm caused by an intoxicated minor driver leaving Mr. Worley’s home was not onerous. He himself devised a plan which merely required him to enforce the rule he attempted to impose. He only had to retrieve car keys or make the cars inaccessible. Of course, he also could have banned alcohol or refused to have the party." (emphasis supplied).