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26036 - Barnes v. Cohen Dry Wall, Inc.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Rudolph Barnes, as Personal Representative of the Estate of Doris Ann Barnes,        Respondent,

v.

Cohen Dry Wall Inc., and Aelina Martin, as Personal Representative of the Estate of Orin Tilman Feagin,        Defendants,

Of whom Cohen Dry Wall Inc. is the        Petitioner.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From Berkeley County
Clifton Newman, Circuit Court Judge


Opinion No. 26036
Heard May 18, 2005 - Filed August 29, 2005


AFFIRMED


N. Heyward Clarkson, III, Charles F. Turner, Jr., and Sean A. Scoopmire, all of Clarkson, Walsh, Rheney & Turner, PA, of Greenville, for Petitioner.

George J. Kefalos, of Charleston, for Respondent.


JUSTICE PLEICONES:  We granted certiorari to consider a Court of Appeals’ decision imposing liability on a social host for damages to an individual killed when a nineteen-year-old guest who had consumed alcohol provided by the host caused an automobile accident.  Barnes v. Cohen Dry Wall, Inc., 357 S.C. 280, 592 S.E.2d 311 (Ct. App. 2003).   The sole issue is whether we will impose third party liability on a social host who knowingly and intentionally serves alcohol to guests aged eighteen, nineteen, and twenty, that is, persons who are minors for purposes of alcoholic beverage control laws.  Following our decision to impose first party liability on social hosts under these circumstances, see Marcum v. Bowden, Op. No. 26035 (S.C. Sup. Ct. filed August 29, 2005) Shearouse Adv. Sh. No. 34, we affirm.

FACTS

Orin Feagin was a nineteen-year-old employee of petitioner Cohen Dry Wall, Inc. (Company) when he attended the Company’s 1998 Christmas party.  There was evidence that, despite Company’s pre-party warning that Feagin would not be served at the party and its attempt to enforce this decision at the party, Feagin in fact consumed Company-supplied alcohol while there.  Although Feagin exited the party with a group of people including a designated driver, he drove himself to his girlfriend’s place of employment, then drove to his girlfriend’s mother’s home, and finally returned to visit his girlfriend.  After leaving his girlfriend’s work for the second time Feagin was involved in a two-car accident, which killed him and the passenger in the other car.

The passenger’s personal representative (Respondent) sued both Company and Feagin’s estate, and the estate cross-claimed against Company alleging negligence per se and gross negligence.  The jury returned a verdict for Company on this cross-claim.  The jury returned a $750,000 verdict for actual damages against Company and Feagin’s estate, finding Company 20% responsible and Feagin 80% responsible.[1]  On Company’s post-trial motion, the judge ordered an off-set against the verdict to the extent of Feagin’s liability insurance.

On appeal, the Court of Appeals held that the purpose of statutes[2] prohibiting a social host from serving alcohol to persons under 21 is to prevent harm to the minor, and to the members of the public harmed by the minor’s alcohol consumption.  Barnes v. Cohen Dry Wall, Inc., supra.  We affirm.

ISSUE

Whether the Court of Appeals erred in finding that social hosts who knowingly and intentionally serve alcoholic beverages to a guest aged eighteen to twenty owe a duty to a third party injured or killed by the guest in an alcohol-related accident?

ANALYSIS

In Marcum v. Bowden, supra, we held that social hosts may be liable to a guest under twenty-one who suffered an alcohol-related injury or death after consuming alcoholic beverages knowingly and intentionally provided by the host.  We based our decision both on our conclusion that S.C. Code Ann. §§ 61-4-90 and -4070 (Supp. 2004) create a private cause of action in favor of such a guest, and on public policy grounds.  We find the same considerations compel our decision today to extend liability to third parties.

In Whitlaw v. Kroger, 306 S.C. 51, 410 S.E.2d 251 (1991), we held that the purpose of alcoholic beverage control statutes prohibiting the sale of alcoholic beverages to persons under the age of twenty-one was to protect persons harmed by the minors who consumed the alcohol, as well as the minors themselves.  In Marcum v. Bowden, we held that the statutes prohibiting the transfer or giving of alcoholic beverages to minors were enacted for the benefit of those minors.  We hold today that  §§ 61-4-90 and -4070 were also enacted for the protection of members of the public from harm done by persons under twenty-one who have consumed alcohol in violation of the statutes. [3] 

In South Carolina, persons under twenty-one “are incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.”  Id.  Imposing liability on social hosts encourages them to “be more vigilant about who is consuming alcohol at their social gatherings,” Id., and thus promotes our public policy which prohibits the use of alcohol by incompetent and inexperienced youth.  We find that this policy is served by the extension of social host liability to third parties injured or killed in an alcohol-related accident by a guest under twenty-one years of age who has consumed alcohol knowingly and intentionally provided to him by the host.  Before the injured person can recover damages from the social host, he must present evidence not only that the host knowingly and intentionally provided the minor with alcoholic beverages, but must also establish a causal connection between the alcohol consumption and his injuries.  Marcum v. Bowden, supra.

CONCLUSION

The decision of the Court of Appeals holding that a social host may be liable to a third party injured by an underage guest who has consumed alcohol provided by the host is

AFFIRMED.

MOORE, A.C.J., WALLER, BURNETT, JJ., and Acting Justice James W. Johnson, Jr., concur.


[1] The jury also awarded Respondent $1.4 million in punitive damages against Feagin’s estate only.  Neither this award nor the cross-claim are challenged on appeal or certiorari.

[2] See S.C. Code Ann. §§ 61-4-90 and 61-4-4070 (Supp. 2004).

[3] It would be unusual at best were we to find that the young person who consumed the beverages could maintain a suit against the host but deny relief to an innocent third party harmed by that minor.  Cf., Tobias v. Sports Club Inc., 332 S.C. 90, 504 S.E.2d 318 (1998) (statutes prohibiting sale of alcohol by tavern owner to intoxicated person create third party but not first party liability).