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26035 - Marcum v. Mayon

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Linda Gail Marcum, as Personal Representative of the Estate of Justin Michael Parks,     Appellant,

v.

Donald Mayon Bowden, Gloria J. Bowden, and Utility Service Agency, Inc.    Respondents.


Appeal From Richland County
James R. Barber, III, Circuit Court Judge


Opinion No. 26035
Heard May 4, 2005 - Filed August 29, 2005


REVERSED


Robert L. Widener and Celeste T. Jones, of McNair Law Firm, P.A., of Columbia, and Gayla S. L. McSwain, of McNair Law Firm, P.A., of Greenville, for appellant.

Eric G. Fosmire, of Collins & Lacy, P.C., of Columbia; Karl S. Brehmer and J. Austin Hood, of Brown & Brehmer, of Columbia, for respondents.


JUSTICE MOORE:  The trial court granted respondents’ motion for summary judgment in appellant’s wrongful death action.  In this case, we are asked to determine whether a social host should be subject to liability when the host has provided alcohol to a person less than 21 years of age and that person is subsequently injured or dies.

FACTS

Linda Marcum, as Personal Representative of the estate of Justin Michael Parks (Parks),[1] brought this wrongful death action that arose from a one-car accident in which her son was killed.  Parks, who was 19 years old, had consumed alcohol before the accident and, at the time of his death, had a blood alcohol content of 0.291%.  An expert witness testified Parks’ blood alcohol content indicated he was seriously intoxicated and that he would have been visibly drunk, have trouble walking, and have slurred speech.

Prior to the accident, Parks attended a cookout held at the home of respondents, Donald and Gloria Bowden (hereinafter “the Bowdens”).  The cookout was held for social and business promotional purposes.  Mr. Bowden gave a general invitation to the cookout to a group of people he saw while at Shealy Electrical’s office.

Parks, who was employed by Shealy Electrical, rode to the cookout with his supervisor, Timothy Hensley (Mr. Hensley).  At the party, the Bowdens placed soft drinks and beer in a “washtub” on the deck and expected their guests to help themselves to the beverage of their choice.  Respondent Utility Service Agency, Inc. reimbursed Mr. Bowden for the cost of food and drinks, including liquor.  The Bowdens did not take any precautions to ensure those who were drinking alcohol were over 21 years of age.  No one from Shealy Electrical informed the Bowdens that Parks was under 21 and could not legally drink alcohol.  Mr. Bowden assumed Parks was at least 21 years old because of his employment, because he had seen him drinking at a bar before, and because he had overheard him in Shealy Electrical’s office talking about drinking shots in bars.[2]

At the cookout, Parks drank beer and several tequila shots.  Jim Woods, a co-worker of Parks who did not know Parks’ age, asked Parks what he was doing after seeing him take at least three shots of tequila within ten minutes.  Parks replied he was “just trying to get a buzz.”  Mr. Bowden did not remember seeing Parks drink but he assumed he was drinking.

Mr. Hensley and the Bowdens testified that, upon leaving the party to ride home with the Hensleys, Parks did not have trouble walking and his speech was not slurred.  Mrs. Bowden testified that when Parks left, he hugged her and thanked her for allowing him to come to the cookout.  She felt his condition was fine.  However, Mrs. Hensley, who drove Mr. Hensley and Parks from the party to their house, testified that when Parks left the party, he was walking fine, but his speech was slurred.  Mrs. Hensley did not consume any alcohol that night.

Once arriving to the Hensley home, Mr. Hensley detained Parks because he wanted Parks to sober up before going to another party.  He stated he did not serve Parks alcohol; however, Parks attempted to drink one minibottle, which Mr. Hensley poured out after Parks had taken one sip.  As soon as Mr. Hensley poured the first minibottle out, Parks pulled another minibottle out of his pocket and drank it down at once.  Parks continued to attempt to leave, but Mr. Hensley continued to delay him because he did not want Parks to drive.  Finally, Mr. Hensley did not feel he could further prevent Parks from driving away and Parks left.[3]

Before trial on Parks’ wrongful death action, respondents’ motion for summary judgment was granted.  The court found Parks’ first-party action was precluded because he was a voluntarily intoxicated first party and was an adult for all other purposes and was prevented from consuming alcohol only by statutory authority.  The court also found Parks’ negligence exceeded that of respondents because he voluntarily became intoxicated and none of the defendants knew he was under 21 years of age.

ISSUES

  1. Did the trial court err by finding an underage person possesses full social and civil rights?

  2. Do underage persons, injured as a result of being provided alcohol, have a first-party claim against the social hosts who provide them alcohol?

  3. Did the trial court err by finding Parks is barred from recovery pursuant to the doctrine of comparative negligence?

DISCUSSION

Scope of Review

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Cunningham ex rel. Grice v. Helping Hands, Inc., 352 S.C. 485, 575 S.E.2d 549 (2003).  In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all the inferences that can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.  Id.

I

Parks argues the trial court erred by finding he was not a legal minor and was not under a legal disability.  The court based its finding on the following constitutional provision:

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one.

S.C. Const. Art. XVII, § 14.  The court stated this provision allows for the restriction of the sale of alcoholic beverages to persons under age 21, but it does not remove legal rights and responsibilities from persons between the ages of 18 and 21, nor does it deem those persons disabled.  The court concluded Parks possessed full social and civil rights.

While persons aged 18 to 20 are deemed minors for purposes of the laws regarding alcoholic beverages, those persons are not minors in other respects.  See S.C. Code Ann. § 15-1-320(a) (2005) (all references to minors in law of this State shall be deemed to mean persons under age of eighteen years except in laws relating to sale of alcoholic beverages).  See also Norton v. Opening Break of Aiken, Inc., 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994), aff’d, 319 S.C. 469, 462 S.E.2d 861 (1995) (while drinkers aged eighteen to twenty are sui juris in all other respects, meaning they are legally presumed to have adult mental and judgmental capacity, and need less protection from harming themselves than younger drinkers, their drinking still poses a high risk of harm to others).  Accordingly, the trial court did not err by finding Parks possessed full social and civil rights.

II

The overriding issue in this case is whether a social host should be subject to liability when the host has provided alcohol to a person less than 21 years of age and that person is subsequently injured or dies.

Background of South Carolina Case Law

In the commercial vendor setting, we have held there is no first-party cause of action against a tavern owner by an intoxicated adult predicated on a statutory violation.  Tobias v. Sports Club, Inc., 332 S.C. 90, 504 S.E.2d 318 (1998).  In Tobias, we stated the right of injured third parties to maintain a negligence suit against a tavern owner based upon statutory violations is retained and we also stated that “[w]e leave for another day the issue whether we will recognize a first-party action brought by a minor.”  See also Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991) (statutory prohibitions against selling alcohol to underage person creates private right of action if third-party plaintiff can establish negligence per se and causation); Norton v. Opening Break of Aiken, Inc., 313 S.C. 508, 443 S.E.2d 406 (Ct. App. 1994), aff’d, 319 S.C. 469, 462 S.E.2d 861 (1995) (alcoholic beverage licensee had duty not to allow persons less than 21 years of age to possess or consume alcohol on its premises; duty runs to third parties who could be injured by intoxicated underage drivers).

In the social host setting, the appellate courts of this state have stated that a social host is not liable at common law for service of alcohol to an intoxicated adult who subsequently injures a third party.  See Carson v. Adgar, 326 S.C. 212, 219, n.4, 486 S.E.2d 3, 6, n.4 (1997); Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct. App. 1986).[4]

The question whether an underage person may recover for injuries he sustained after being “served or furnished” alcohol by a social host has not been answered in this state.

Applicable South Carolina Statutory Law

South Carolina Code Ann. § 61-4-90 (Supp. 2004) provides:

It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption beer or wine at any place in the State.  A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.  A person found guilty of a violation of Section 61-6-4070[5] and this section may not be sentenced under both sections for the same offense.

The provisions of this section do not apply to a spouse over the age of twenty-one giving beer or wine to his spouse under the age of twenty-one in their home; to a parent or guardian over the age of twenty-one giving beer or wine to his children or wards under the age of twenty-one in their home; or to a person giving beer or wine to another person under the age of twenty-one in conjunction with a religious ceremony or purpose if the beer or wine was lawfully purchased.

The provisions of this section do not apply to a person who gives, serves, or permits to be served any beer, ale, porter, wine, or other similar malt or fermented beverage to a student under the age of twenty-one [and above the age of eighteen] if [the alcoholic beverage is to be used in the classroom setting.]

There is no statute in South Carolina regarding civil liability for a person who sells or gives alcohol to an underage person.

Persuasive Authority

The question of whether a social host should be civilly liable for “serving or furnishing” alcohol to an underage person has been addressed in other states with varying results.

Some courts have found that any change in the law governing alcohol-related liability should only be made by the state legislature.  See, e.g., Wakulich v. Mraz, 785 N.E.2d 843 (Ill. 2003) (judicial restraint in this area is appropriate and any decision to expand civil liability of social hosts should be made by legislature); Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001) (Texas court has deferred to Legislature and declined to recognize social-host liability for serving guests from ages eighteen to twenty and for guests under age eighteen).  At least one court has not imposed liability based on a specific statute stating that a person who provides alcohol to another is not civilly liable for any resulting damages.  See, e.g., Chokwak v. Worley, 912 P.2d 1248 (Alaska 1996) (statute conferring upon “person who provides alcoholic beverages” to another civil immunity from liability for injuries resulting from intoxication of that person encompasses social hosts who provide alcohol to minors).

“Most of the courts that have found a social host potentially liable for the alcohol-related injuries or death of a minor to whom he or she furnished alcohol have done so on the basis that the host violated a state statute providing that the sale or gift of alcohol to a minor is a criminal misdemeanor,” such as S.C. Code Ann. § 61-4-90.  Diane Schmauder Kane, Annotation, Social Host’s Liability for Death or Injuries Incurred by Person to Whom Alcohol was Served, 54 A.L.R.5th 313 (1997).  The Annotation explains that “[t]he rationale of these courts has been that the violation of such a penal statute constitutes either evidence of negligence or negligence per se on the part of the alcohol provider.”  See Hansen v. Friend, 824 P.2d 483 (Wash. 1992) (statute making it criminal act for “any person” to give liquor to minor imposes duty of care on social hosts not to serve liquor to minors); Longstreth v. Gensel, 377 N.W.2d 804 (Mich. 1985) (social host liability imposed based on statute stating person who knowingly furnishes liquor to person less than 21 years of age or fails to make diligent inquiry regarding person’s age is guilty of misdemeanor); Congini by Congini v. Portersville Valve Company, 470 A.2d 515 (Pa. 1983) (social host negligent per se in serving alcohol to point of intoxication to person less than 21 years of age).  But see Hickingbotham v. Burke, 662 A.2d 297 (N.H. 1995) (statute barring licensee, salesperson, or “any other person” from providing alcohol to underage person did not grant civil right of action on which guest could base personal injury claim against hosts; however, underage person who is injured as result of social host’s service of alcohol may maintain action against host based on reckless service of alcohol).

From a perusal of persuasive authority, we find no clear statement of a majority rule on this issue.

Public Policy Arguments in Favor of Finding a Duty

One public policy argument in favor of finding a social host liable for furnishing alcohol to an underage guest who subsequently injures himself is the basic goal of deterring the consumption of alcohol by underage persons.  See Batten by Batten v. Bobo, 528 A.2d 572 (N.J. Super. 1986) (New Jersey has recognized a clearly-stated policy that it opposes drinking by minors; acknowledging minor’s cause of action against social host who violates law by providing minor with alcoholic beverages would have deterrent effect Legislature desires).  If social hosts are aware they can potentially be found liable for the injuries sustained by an underage guest, then social hosts will be more vigilant about who is consuming alcohol at their social gatherings.  A vigilant host would greatly decrease the ability of an underage person to consume alcohol at a social gathering.

Another policy reason for imposing a duty to protect underage persons from the effects of alcohol is that minors, as a class, are incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.  Cf. Norton v. Opening Break of Aiken, Inc., supra (purpose of alcoholic beverage regulation is to prevent consumption of alcohol by youthful drinkers so as to protect them from their own immature judgment).  See Busby v. Quail Creek Golf and Country Club, 885 P.2d 1326 (Okla. 1994) (states which have recognized the imposition of the duty to protect minors from alcohol’s effects on commercial vendors have generally concluded that minors as a class are incompetent by reason of youth and inexperience to deal responsibly with the effects of alcohol); Congini by Congini v. Portersville Valve Company, 470 A.2d 515 (Pa. 1983) (Pennsylvania legislature has made judgment that persons under twenty-one years of age are incompetent to handle alcohol); Richard Smith, Note, A Comparative Analysis of Dramshop Liability and a Proposal for a Uniform Legislation, 25 J. Corp. L. 553, 560 (2000) (Congress and the legislatures of all fifty states have decided that, as a class, persons under the age of twenty-one are not mature enough to consume alcohol responsibly).

Analysis and Conclusion

After reviewing the above authority and public policy arguments, we conclude that social host liability should be imposed in the first-party underage person claim situation.  This is consistent with our holding in Tobias.  While Tobias involved a commercial vendor, we recognized that underage persons should be treated differently than adults who become intoxicated and injure themselves.  Further, this decision is consistent with the purpose behind sections 61-4-90 and 61-6-4070, which make it unlawful for a person to transfer or give alcohol to a person under twenty-one years of age.  Those statutes are designed to prevent harm to the minor who purchased the alcohol.  See also Whitlaw v. Kroger Co., supra (statutes involving unlawfulness of selling alcohol to person less than twenty-one years of age are designed to prevent harm to underage person who purchased the alcohol).

Additionally, Parks meets the test to determine when a duty created by a statute will support an action for negligence.  Under Whitlaw v. Kroger Co., supra, the plaintiff must show two things:  (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.  Clearly, the essential purpose of statutes prohibiting a person from giving or transferring alcohol to an underage person is to protect the underage person from harm, including injuries sustained or death, after imbibing alcohol provided by such person.  Parks, therefore, meets the first requirement.  He also meets the second requirement because he is less than twenty-one years of age and he is a member of the class sought to be protected by §§ 61-4-90 and 61-6-4070.

In conclusion, finding a duty on the part of a social host in this situation is a natural progression of our case law.  The imposition of liability is based on the fact that the host violated state statutes providing that the transfer or gift of alcohol to an underage person is a criminal misdemeanor.  A finding of social host liability is supported by other jurisdictions and is supported by public policy arguments regarding the incompetency and immaturity of minors and the effort to deter minors from consuming alcohol.

Although we impose a duty on social hosts that previously did not exist, minor plaintiffs are still required to prove their social hosts breached that duty and that the hosts’ alleged breach caused the minor’s injuries.  If Parks can show that the Bowdens breached their duty to him by violating the statute, then he will have established negligence per seSee Whitlaw v. Kroger Co., supra (once plaintiff shows statute created duty to plaintiff and that defendant breached that duty by violating statute, then plaintiff has established negligence per se).  However, Parks will then still have to establish a causal connection between the Bowdens’ alleged negligence and his death.  Whitlaw, supra (once he has shown negligence per se, plaintiff must then show causal connection between defendant’s negligence and plaintiff’s injury before plaintiff is entitled to damages; violation of statute is not conclusive of liability); Scott v. Greenville Pharmacy, Inc., 212 S.C. 485, 48 S.E.2d 324 (1948) (violation of statute, while negligence per se, does not support recovery of damages because violation was not proximate cause of injury); Steele v. Rogers, 306 S.C. 546, 413 S.E.2d 329 (Ct. App. 1992) (sale of alcoholic beverages to minor does not render vendor strictly liable for every ensuing act; even if sale constitutes negligence per se, plaintiff must still show causal connection between defendant’s negligence and his own injury to recover damages).

III

Parks argues the trial court erred by finding he is barred from recovery because he was voluntarily intoxicated and his negligence exceeded that, if any, of the Bowdens.

Under South Carolina’s doctrine of comparative negligence, a plaintiff may recover damages only if his own negligence is not greater than that of the defendant.  Bloom v. Ravoira, 339 S.C. 417, 529 S.E.2d 710 (2000).  Ordinarily, comparison of the plaintiff’s negligence with that of the defendant is a question of fact for the jury to decide.  Id.  In a comparative negligence case, the trial court should determine judgment as a matter of law only if the sole reasonable inference that may be drawn from the evidence is that the plaintiff’s negligence exceeded fifty percent.  Id.

Comparative negligence principles are applicable in the social host liability setting.  Finding a social host negligent per se for serving alcohol to a minor and finding the social host may be liable for injuries proximately resulting from the minor’s intoxication does not end the inquiry. There still exists the factor that the minor plaintiff was not simply an unwitting third party to the actor’s negligence.  Congini by Congini v. Portersville Valve Co., 470 A.2d 515, 518 (Penn. 1983).  Although “an eighteen-year-old minor may state a cause of action against an adult social host who has knowingly served him intoxicants, the social host in turn may assert as a defense the minor’s [comparative] negligence.”  Id.  See also Batten by Batten v. Bobo, 528 A.2d 572 (N.J. Super. 1986) (intoxicated minor guest’s comparative negligence can properly be considered by jury in action against social host who provided cause of intoxication).

In the instant case, the trial court found, as a matter of law, that Parks’ comparative negligence outweighed the Bowdens’ alleged negligence.  He based this ruling on the facts that Parks was “voluntarily intoxicated” and that the Bowdens were not aware that Parks was underage.  We disagree with these findings.  A jury should decide the comparative negligence of the parties because there is conflicting evidence.  See Cunningham ex rel. Grice v. Helping Hands, Inc., supra (summary judgment appropriate only if no genuine issue of material fact); Bloom v. Ravoira, supra (in comparative negligence case, trial court should determine judgment as matter of law only if sole reasonable inference which may be drawn from evidence is that plaintiff’s negligence exceeded fifty percent).

We take this opportunity to distinguish our decision in Lydia v. Horton, 355 S.C. 36, 583 S.E.2d 750 (2003).  In Lydia, we held an intoxicated adult plaintiff (Lydia) could not recover on a first-party negligent entrustment cause of action against another adult (Horton) who had allowed Lydia to drive his car.  We stated Lydia’s admission that he was “appreciably impaired” and that he lost control of the vehicle supported only one conclusion, that Lydia’s negligence exceeded Horton’s.

The trial court relied on Lydia in the instant case and stated the only conclusion that can be drawn from the facts is that Parks’ negligence exceeded that of the Bowdens due to Parks’ admission he was intoxicated and that he later “got into his car and drove away in a highly intoxicated state.”

We find the instant case distinguishable from Lydia.  Parks was underage at the time of the accident and our General Assembly has deemed those persons less than twenty-one years of age to be incompetent to make decisions regarding the consumption of alcohol.  Unlike the situation in Lydia, it is possible that a social host could be more than fifty percent negligent when an underage guest has become intoxicated and subsequently injures himself.  Therefore, we reverse the trial court’s finding that Parks is barred from recovery based on comparative negligence.

CONCLUSION

We find the trial court did not err by finding Parks, as a nineteen-year-old, possessed full social and civil rights.  However, although Parks was an adult for other purposes, he was considered a minor under the alcoholic beverage statutes.  We further find that a social host is subject to liability when that host has provided alcohol to an underage person who is subsequently injured or dies as a result of being provided that alcohol.  Finally, we find comparative negligence principles applicable in the social host setting.  Therefore, the decision of the trial court is

REVERSED.

TOAL, C.J., WALLER BURNETT and PLEICONES, JJ., concur.


[1]When referring to appellant, the name “Parks” will be used.

[2]Mrs. Bowden testified in her deposition that when she read about Parks’ death in the paper, Mr. Bowden told her it could not be the Parks that had attended the party because he was sure Parks was older than 19 years of age.

[3]Mr. Hensley had heard Parks would drink excessively and then drive, even though other people would try to take his keys away from him.  Parks’ roommate and the roommate’s brother confirmed Parks drank excessively and would drive drunk.  The roommate stated he would often have to argue with Parks to get the keys from him and that, one time, he had tackled Parks to the ground for the keys.

[4]The Court of Appeals, however, has found a question of negligence was presented where an adult, as a fraternity pledge, was pressured to consume excessive amounts of alcohol by the fraternity.  Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct. App. 1986).  The Ballou case was distinguishable from Garren on the basis Ballou was pressured to consume an excessive amount of alcohol and he was abandoned after being found unconscious and unresponsive.

[5]S.C. Code Ann. § 61-6-4070 (Supp. 2004) is the statute dealing with the transfer of alcoholic liquors to a person under the age of twenty-one years.  The wording of the statute is the same as § 61-4-90.