DELFINO V. GRIFFO, 2011-NMSC-015, 150
N.M. 97, 257 P.3d 917
GINA DELFINO, individually and as
personal representative of the ESTATE OF MANUEL DELFINO and as parent and next
friend of DOMINIC S. and GABRIEL D., minors, Plaintiffs-Appellants,
v.
DON GRIFFO, et al., Defendants-Appellees,
and
KRAFFTY, L.L.C., a New Mexico limited liability company
d/b/a UPTOWN SPORTS BAR & GRILL, UPTOWN SQUARE VENTURE, a New Mexico
general partnership, JOHN WHISENANT, and RONALD NELSON, Defendants-Appellants,
and
CUE INC., a New Mexico corporation, et al., Defendants.
SUPREME COURT OF NEW MEXICO
2011-NMSC-015, 150 N.M. 97, 257 P.3d 917
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS, Nan
G. Nash, District Judge.
Released for Publication May 10, 2011.
Aguilar & Aguilar, P.C., Esteban A.
Aguilar, Sr., Albuquerque, NM, Robles, Rael & Anaya, P.C., Brian S. Colon,
Albuquerque, NM, for Appellant Gina Delfino.
Riley & Shane. P.A., Mark J. Riley,
Kristen J. Dalton, Albuquerque, NM, for Appellants Kraffty, L.L.C., Uptown
Square Venture, John Whisenant, and Ronald Nelson.
Yenson, Lynn, Allen & Wosick, P.C,
Terrance P. Yenson, Michael S. Jahner, Albuquerque, NM, for Appellee Don
Griffo.
O’Brien & Padilla, P.C., Daniel J. O’Brien,
Albuquerque, NM, for Appellee Tom Gonzales.
Modrall, Sperling, Roehl, Harris &
Sisk, P.A., Douglas G. Schneebeck, Megan A. Muirhead, Albuquerque, NM,
Bannerman & Johnson, P.A., Thomas P. Gulley, Rebecca Avitia, Albuquerque,
NM, Baker & Botts L.L.P., Travis J. Sales, Houston, TX, for Appellees James
Paz and Merck & Company.
Keleher & McLeod, P.A., Thomas C.
Bird, Kathleen Wilson, Albuquerque, NM, for Appellee Michael Donahue.
The Roehl Law Firm, P.C., Jerrald Joseph
Roehl, Albuquerque, NM, Ashe, Raguse and Hill, L.L.P., William B. Hill, Jr.,
Joshua D. Jewkes, Atlanta, GA, for Appellee Abbott Laboratories, Inc.
PATRICIO M. SERNA, Justice. WE CONCUR:
CHARLES W. DANIELS, Chief Justice, PETRA JIMENEZ MAES, Justice, RICHARD C.
BOSSON, Justice, EDWARD L. CHÁVEZ, Justice.
AUTHOR: PATRICIO M. SERNA.
{1} Who is liable for
injuries caused by an individual for whom alcohol was purchased and served in a
public establishment? The events precipitating this lawsuit began with a
luncheon and ended in tragedy. Plaintiff Gina Delfino was struck by a drunk
driver, resulting in the death of Plaintiff’s minor son and injuries to herself
and the other passengers in her car. The driver, Alicia Gonzales, recently had
left the company of the individual Defendants in this appeal, pharmaceutical
representatives who were acquainted with Ms. Gonzales through her employment in
a doctor’s office, following approximately eight hours of consuming alcohol.
Plaintiff filed a wrongful death suit against the establishments that served
Ms. Gonzales and against the pharmaceutical representatives and their
employers, Don Griffo, Tom Gonzales, James Paz, Mike Donahue, Merck &
Company, Inc., Schering Corporation, and Abbott Laboratories, Inc. (collectively,
Pharmaceutical Defendants).
{2} The Second Judicial
District Court granted Pharmaceutical Defendants’ motion to dismiss under Rule
1-012(B)(6) NMRA, concluding Pharmaceutical Defendants owed Plaintiff no legal
duty under our common law or the Liquor Liability Act, NMSA 1978, Section
41-11-1(E) (1986). Plaintiff appealed, and the Court of Appeals certified the
question to this Court because it presents a unique legal issue of substantial
public interest. We accepted certification and exercise jurisdiction under NMSA
1978, Section
34-5-14(C)(2) (1972). We conclude that the district court erred
by granting Pharmaceutical Defendants’ motion to dismiss for failure to state a
claim upon which relief can be granted because Plaintiff properly characterized
Pharmaceutical Defendants as social hosts under the Liquor Liability Act. The
district court is hereby reversed, and this case is remanded for further
proceedings.
{3} This appeal is
before us after being dismissed by the district court for failure to state a
claim upon which relief can be granted, and therefore “we accept all
well-pleaded factual allegations in the complaint as true.”
Valdez v. State,
2002-NMSC-028, ¶ 4,
132 N.M. 667,
54 P.3d 71. The following recitation of
events are derived from the allegations set forth in Plaintiff’s Third Amended
Complaint.
{4} On April 29, 2005,
Plaintiff was in an automobile accident caused by Ms. Gonzales, who was
speeding and had a blood alcohol content level of more than twice the legal
limit. Plaintiff’s minor son was killed, and Plaintiff and her passengers
suffered grave injuries.
{5} Ms. Gonzales had
spent the hours prior to the accident with the individual pharmaceutical
representatives: Griffo and Gonzales, employees of Schering; Donahue, an employee
of Abbot; and Paz, an employee of Merck. The pharmaceutical representatives
hosted an out-of-office business luncheon for Ms. Gonzales and her colleagues
from Dr. David Leech’s
1
office. The employers of the pharmaceutical representatives had policies that
authorized the entertainment of physicians and their staff, through the
purchase of food and alcohol, to further the business interests of the
companies. The pharmaceutical representatives were working within the scope of
their employment during the luncheon.
{6} The luncheon began
at Chili’s Restaurant. After consuming multiple alcoholic beverages over the
course of several hours, Ms. Gonzales drove to Uptown Bar & Grill with
Griffo as her passenger. At Uptown, Ms. Gonzales, Griffo, and Donahue consumed
more alcohol, and then Ms. Gonzales drove to Doc & Eddy’s, again with
Griffo in her car. After one and one half hours of drinking at Doc &
Eddy’s, Ms. Gonzales, obviously intoxicated, departed in her vehicle. The fatal
accident occurred approximately 14 minutes later. Griffo purchased alcoholic
beverages for Ms. Gonzales at all three bars; Gonzales, Donahue, and Paz
purchased alcohol for Ms. Gonzales in at least one bar.
{7} Plaintiff filed a
wrongful death suit against Pharmaceutical Defendants and the owners and
operators of the various bars and restaurants where Ms. Gonzales had consumed
alcohol that evening (collectively, Bar Defendants).
2
Plaintiff’s complaint included 21 counts against the various Defendants. The
counts at issue in this appeal are those alleging common-law negligence against
the individual pharmaceutical representatives for purchasing alcohol for Ms.
Gonzales and permitting her to drive, recklessness for the same actions under
the Liquor Liability Act, and against their employers under respondeat superior
(Counts 7-9); negligent hiring, retention and training against the
pharmaceutical companies (Counts 13-15); and prima facie tort, negligent
infliction of emotional distress, intentional infliction of emotional distress,
and loss of consortium against all Defendants (Counts 16-18). The theories
underlying the claims asserting liability against Pharmaceutical Defendants are
that they owed a common-law duty to prevent Ms. Gonzales from driving while
intoxicated; that Pharmaceutical Defendants were aiding and abetting Ms.
Gonzales in committing a tortious action under Restatement (Second) of Torts
Section 876(B) (1977); and that Pharmaceutical Defendants are social hosts who
acted recklessly and thus liable under the Liquor Liability Act.
{8} Each of the
Pharmaceutical Defendants filed a motion to dismiss under Rule 1-012(B)(6).
3 The district court granted
Pharmaceutical Defendants’ motions to dismiss filed under Rule 1-012(B)(6); the
letter explaining the reasons for granting the initial motion to dismiss is
referenced in the orders dismissing all other Pharmaceutical Defendants. The
district court concluded that Pharmaceutical Defendants were not social hosts
under the Liquor Liability Act; that the Liquor Liability Act precludes any
common-law cause of action that may have existed against Pharmaceutical
Defendants; and that the complaint states no cause of action under the
Restatement. Donahue’s motion to dismiss for improper service also was denied.
{9} The question
presented by this appeal is whether the district court erred in granting the
Pharmaceutical Defendants’ motions to dismiss under Rule 1-012(B)(6) for
failure to state a claim under which relief can be granted. Dismissals under
Rule 1-012(B)(6) are proper when the claim asserted is legally deficient. “A
district court’s decision to dismiss a case for failure to state a claim under
Rule 1-012(B)(6) is reviewed de novo.”
Valdez,
2002-NMSC-028, ¶ 4. “In
reviewing a district court’s decision to dismiss for failure to state a claim,
we accept all well-pleaded factual allegations in the complaint as true and
resolve all doubts in favor of sufficiency of the complaint.”
Id.
{10} Plaintiff and Abbot
suggest that our review should convert the Rule 1-012(B)(6) motions to motions
for summary judgment under Rule
1-056 NMRA. We review motions to dismiss as
motions for summary judgment when the district court considered matters outside
the pleadings in making its ruling.
See Rule 1-012(B);
V.P. Clarence
Co. v. Colgate,
115 N.M. 471, 472,
853 P.2d 722, 723 (1993). As with
motions to dismiss, we review rulings on motions for summary judgment de novo.
See
Montgomery v. Lomos Altos, Inc.,
2007-NMSC-002, ¶ 16,
141 N.M. 21,
150 P.3d
971. The difference in the review is that evidentiary information submitted to
the district court is considered when determining whether summary judgment was
proper.
Id. “Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of
law.”
Id.
{11} Our review of the
record proper and the transcripts of the hearings on the motions to dismiss indicate
the district court did not rely on matters outside the pleadings in granting
Pharmaceutical Defendants’ motions to dismiss. Indeed, certain of the
Pharmaceutical Defendants were dismissed before any exhibits or affidavits were
submitted to the district court, and all Pharmaceutical Defendants that were
later dismissed were dismissed in reference to the initial ruling. The district
court dismissed Pharmaceutical Defendants under Rule 12-012(b)(6), and thus our
review is de novo, taking as true the facts pled in the complaint and resolving
all doubts in favor of sufficiency of the complaint.
{12} “Dismissal on
12(B)(6) grounds is appropriate only if [the plaintiff is] not entitled to
recover under any theory of the facts alleged in their complaint.”
Callahan
v. N.M. Fed’n of Teachers-TVI,
2006-NMSC-010, ¶ 4,
139 N.M. 201,
131 P.3d
51. The existence of a legal duty is a question of law for the courts.
See
Edward C. v. City of Albuquerque,
2010-NMSC-043, ¶ 14,
148 N.M. 646,
241
P.3d 1086. We must decide whether Plaintiff’s complaint stated a legally
sufficient claim, a task which requires construing the Liquor Liability Act to
determine if Pharmaceutical Defendants had a legal duty to Plaintiff, a
question of law we undertake de novo.
See State v. Marquez,
2008-NMSC-055, ¶ 7,
145 N.M. 1,
193 P.3d 548.
In construing a statute, our charge
is to determine and give effect to the Legislature’s intent. In discerning the
Legislature’s intent, we are aided by classic canons of statutory construction,
and [w]e look first to the plain language of the statute, giving the words
their ordinary meaning, unless the Legislature indicates a different one was
intended.
Marbob Energy Corp. v. N.M. Oil Conservation Comm’n,
2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135 (alteration in original)
(internal quotation marks and citation omitted). If the Legislature is silent
on an issue, we look at the overall structure and function of the statute, as
well as the public policy embodied in the statute. See N.M. Dep’t of Health
v. Compton, 2001-NMSC-032, ¶ 18, 131 N.M. 204, 34 P.3d 593; see also
State v. Rivera, 2004-NMSC-001, ¶¶ 13-14, 134 N.M. 768, 82 P.3d 939
(stating that statutory construction includes looking at a statute’s structure,
function, history, and policy implications).
B. The
Liquor Liability Act Imposes a Duty on All Social Hosts.
{13} The Liquor Liability
Act provides for the tort liability of liquor licensees and social hosts who
sell, serve, or provide alcohol. The Act was passed in 1983, in response to
Lopez
v. Maez, in which this Court recognized a common-law cause of action
against a tavern that had furnished alcoholic beverages to an intoxicated
individual who later caused injury to a third party.
98 N.M. 625, 632,
651 P.2d
1269, 1276 (1982) (“In light of the use of automobiles and the increasing
frequency of accidents involving drunk drivers, we hold that the consequences
of serving liquor to an intoxicated person whom the server knows or could have
known is driving a car is reasonably foreseeable.” (footnote omitted));
see
also Baxter v. Noce,
107 N.M. 48, 50,
752 P.2d 240, 242 (1988) (discussing
the transition from a common-law dram shop action to the Liquor Liability Act
after
Lopez). The Liquor Liability Act imposes liability based on
varying relationships between plaintiffs and defendants. For a suit by an
injured third party against a licensee, the plaintiff must show that the
licensee was negligent—that it was “reasonably apparent” that the person being
served was intoxicated. Section 41-11-1(A)(2). For a suit against a licensee by
a patron, the plaintiff must show “gross negligence and reckless disregard for
the safety of the person who purchased or was served the alcoholic beverages.”
Section 41-11-1(B). For a suit against a gratuitous provider, or social host,
the plaintiff must show that the host provided alcoholic beverages “recklessly
in disregard of the rights of others, including the social guest.” Section
41-11-1(E).
{14} With the social host
provision of Liquor Liability Act, “the legislature intended to limit the
rights of third parties to recover against social hosts who provided alcoholic
beverages to intoxicated guests who negligently injure a third party.”
Walker
v. Key,
101 N.M. 631, 636,
686 P.2d 973, 978 (Ct. App. 1984). The social
host provision of the Liquor Liability Act states:
No person who has gratuitously
provided alcoholic beverages to a guest in a social setting may be held liable
in damages to any person for bodily injury, death or property damage arising
from the intoxication of the social guest unless the alcoholic beverages were
provided recklessly in disregard of the rights of others, including the social
guest.
Section 41-11-1(E). The statute does not further define
social host, nor does the applicable uniform jury instruction, UJI 13-1643
NMRA, which tracks the statute. The use note to the jury instruction states
that the “instruction should be given when the plaintiff claims injury
resulting from the conduct of a person who became intoxicated in a private
setting.” (Emphasis added.)
1. The
Liquor Liability Act does not limit social host liability to private settings.
{15} The district court
ruled that “the pharmaceutical representatives were not social hosts.” In
reaching this conclusion, the district court relied on the language of the use
note to UJI 13-1643 requiring a “private setting” and quoted the Court of
Appeals opinion in
Chavez v. Desert Eagle Distributing Co. of New Mexico,
2007-NMCA-018, ¶ 32,
141 N.M. 116,
151 P.3d 77, for the proposition that
liability under Section 41-11-1 is limited “to those who actually exercised
some degree of control over the service or consumption of alcohol.” The
district court reasoned that the individual pharmaceutical representatives,
though they may have paid for at least some of the alcoholic beverages consumed
by Ms. Gonzales, “did not exercise control over the service and provision of
alcohol: the licensees did.” Bar Defendants, according to the district court’s
ruling, had the sole duty to halt service of alcohol to Ms. Gonzales. The
district court concluded that “[b]ecause the Pharmaceutical Defendants were not
licensees or social hosts, the Liquor Liability Act does not apply.”
{16} Plaintiff argues
that the district court erred in concluding that social host liability is limited
to private settings where there is no licensed liquor provider who has an
explicit statutory duty under the Liquor Liability Act. Rather, according to
Plaintiff, social host liability should exist in this case because alcohol was
consumed at a “business lunch” pursuant to a “corporate policy” of purchasing
alcohol for potential clients. The setting gave the individual pharmaceutical
representatives “special control over their targeted business- related guest,
control [over] the flow of liquor to that person by their purchase of the
drinks—all with a singular business motive.”
{17} Pharmaceutical
Defendants assert that imposing social host liability beyond a private setting
would extend a duty to mere “co-patron[s] and social companion[s]” or to
“individual[s] who buy[] drinks for colleagues or friends.” Doing so, they
argue, would be contrary to the Liquor Liability Act’s imposition of liability
on licensed establishments or servers.
{18} As discussed above,
the Liquor Liability Act imposes a duty to not act recklessly on one “who has
gratuitously provided alcoholic beverages to a guest in a social setting[.]”
Section 41-11-1(E). The plain language of the statute does not indicate a
legislative intent to limit social host liability to
private settings; rather,
a social host is one who provides his or her guest with gratuitous alcohol in a
social setting. The Liquor Liability Act is silent on whether the duty
imposed on social hosts is limited to
only those who are entertaining in
their homes, or whether it is extended to individuals who host events, and
otherwise provide alcohol, in public spaces, including when the actual service
of alcoholic beverages is performed by licensed servers. As such, we turn to
other tools of statutory construction. Prior to doing so, we will consider the
authorities used by the district court.
{19} The district court
relied on the use note to the applicable jury instruction to conclude that
“social setting” was synonymous with “private setting.” The use note to UJI
13-1643 states that the jury “should be” instructed on social host liability
when the alcohol provision occurred in a private setting. Use notes, though not
part of the statute or jury instruction, are adopted by this Court and binding
on district courts.
See State v. Barber,
2004-NMSC-019, ¶ 10 n.1,
135
N.M. 621,
92 P.3d 633. In
Barber, this Court concluded that the refusal
of the district court to instruct the jury with the definition of possession,
when the use note said the instruction “should be given if possession is in
issue[,]” would have been reversible error if the instruction had been
requested, as possession was at issue in that case.
2004-NMSC-019, ¶¶ 10, 12.
Stating that an instruction “should be given” under a particular factual
scenario, however, is not the same as stating that an instruction be given only
under that scenario.
See State v. Doe,
100 N.M. 481, 483,
672 P.2d 654,
656 (1983) (“The language in a Use Note . . . cannot elevate a jury instruction
to the status of an
essential element.”). The use note does not embody
any prior conclusion by this Court that the Legislature intended to preclude
social host liability when the hosting occurs in a public setting.
4
{20} The district court
also relied on the Court of Appeals’ discussion of the Liquor Liability Act in
Chavez
for the proposition that Pharmaceutical Defendants cannot be held liable in
this case because they did not exercise the requisite control over the liquor
supply.
2007-NMCA-018. We are not persuaded that
Chavez provides the
Legislature’s definition of social host. In
Chavez, the plaintiffs
brought suit against liquor distributors who sold alcohol to a casino,
allegedly with the knowledge that the casino would sell alcohol for a 24-hour
period.
Id. ¶ 2. The Court of Appeals held that the district court did
not err in dismissing the claim under Rule 1-012(B)(6) because the liquor
distributors did not owe a statutory duty to casino patrons or those whom they injure.
2007-NMCA-018, ¶¶ 13-14. The Court also held that no common-law duty from
defendant to plaintiff existed because the accident was not a foreseeable
result of the sale of liquor to the casino,
id. ¶ 23, and public policy
did not support the imposition of a duty on a liquor distributor who had no
degree of “control or supervision” over the actual “service or consumption of
alcohol[,]”
id. ¶¶ 30- 31.
{21} While
Chavez
cites the Liquor Liability Act in support of its public policy analysis, it did
so for the purpose of showing the public policy of imposing liability on third
parties for alcohol-related accidents is limited in scope.
Id. ¶ 31
(citing Section 41-11-1 (A), (B), (H)). The Court stated that the exclusivity
and standard of care provisions of the Liquor Liability Act “indicate[] that
our legislature wanted to limit liability for alcohol-related injuries and
deaths resulting from the sale or service of alcohol to those who actually
exercised some degree of control over the service or consumption of alcohol.”
Id.
We agree that the Liquor Liability Act only imposes a duty on individuals
exercising
some degree of control over the service or consumption of
liquor. Control is implicit in the Legislature’s choice to define social host
as one who gratuitously “provided” liquor to a guest, and who “provided” liquor
in a reckless manner.
{22} Turning to the
structure of the Liquor Liability Act, we do not find evidence that the
Legislature intended to limit social host liability to instances in which no
licensed alcohol server was involved in providing the alcohol. Most subsections
of the Act describe the duty on licensees based on different relationships;
Subsection (E), discussed above, sets forth the duty on social hosts. The only
subsection of the Act that discusses both licensees and social hosts is
Subsection (H), the exclusivity provision, which states that the Act is the
exclusive remedy for injuries proximately caused by the sale or service of
alcohol,
not that a suit against one class of liquor providers is
exclusive of a suit against another. The absence of any language expressly
precluding social host liability when alcohol is consumed in a licensed
establishment indicates the intent of the Legislature to permit concurrent
social host and licensee liability.
{23} Construing the term
social host to include those who host in bars is consistent both with our
comparative fault system in torts and with the regulations applicable to
licensed establishments. This Court adopted a comparative fault system in 1981.
See Scott v. Rizzo,
96 N.M. 682,
634 P.2d 1234 (1981),
superseded
by statute as stated in Reichert v. Atler,
117 N.M. 628,
875 P.2d 384
(1992). When the Liquor Liability Act was enacted, therefore, it was done so in
a tort environment in which each liable party was apportioned his or her share
of the damages. In regulations promulgated by the Alcohol and Gaming Division
of the New Mexico Regulation and Licensing Department, we find further support
for the Liquor Liability Act placing a duty on both a social host and licensee
for the same event.
See City of Albuquerque v. N.M. Pub. Reg. Comm’n,
2003-NMSC-028, ¶ 16,
134 N.M. 472,
79 P.3d 297 (stating that agency regulations
should be formulated “in a reasonable manner consistent with legislative
intent”). Regulation
15.10.51.12(A), (B), (E) NMAC expressly permits licensees
to allow private parties, in which the host of the party provides all the
alcohol, on the licensed premises, so long as the alcohol is served by licensed
servers during the times the licensee is authorized to serve alcohol. This
regulatory law seems to contemplate concurrent duties on the social hosts and
licensees.
{24} We conclude that the
Liquor Liability Act permits a cause of action against a social host who recklessly
provides alcohol to a guest when the alcohol is consumed in a licensed
establishment.
2. Social
hosts are those who exercise control over the alcohol service.
{25} Having concluded
that the Legislature contemplated suits against a liquor licensee and a social
host for the same events under the Liquor Liability Act, we turn to the
question of who may be considered a social host. Social host liability under
the Liquor Liability Act, as indicated in
Chavez, requires “some degree
of control over the service or consumption of alcohol.”
2007-NMCA-018, ¶ 31. As
discussed above, control is implicit in the statutory language, applicable to a
social host “who has gratuitously provided” alcohol. This Legislative choice of
language is reflected in case law from other jurisdictions, where courts have
imposed social host liability only when the social host had performed some sort
of affirmative act in the service or provision of alcohol.
See,
e.g.,
Knight v. Rower, 742 A.2d 1237, 1241 (Vt. 1999) (stating that a social
host must furnish alcohol through “some affirmative act or active part in the
provision of alcohol”);
Alumni Ass’n v. Sullivan, 572 A.2d 1209, 1213
(Pa. 1990) (finding that social host liability did not exist where “there are
no allegations that either the fraternity or the University was involved in the
planning of these events or the serving, supplying, or purchasing of liquor”).
{26} Courts in our sister
states have considered the question of social host liability when the alcohol
consumption occurred in a licensed establishment and, though not always under
the same duty of care as required by the Liquor Liability Act, we find their
interpretations generally consistent with the our Legislature’s choice to
provide for social host liability.
5
In
Born v. Mayers, the Supreme Court of North Dakota construed that
state’s dram shop statute to permit a claim against a company representative
who purchased alcohol for an individual in a bar in order to promote “business
good will” in the community. 514 N.W.2d 687, 689-90 (N.D. 1994) (construing
N.D.C.C. Section 5-01-06.1, which permits a cause of action “against any person
who knowingly disposes, sells, barters, or gives away alcoholic beverages to .
. . an obviously intoxicated person”). The
Born court concluded that the
statute imposes a duty upon those who purchase alcohol in a bar because “‘no
reason occurs to us why those who furnish liquor to others, even on social
occasions, should not be responsible for protecting innocent third persons from
the potential dangers of indiscriminately furnishing such hospitality.’”
Id.
at 690 (quoting
Ross v. Ross, 200 N.W.2d 149, 153 (Minn. 1972),
superseded
by statute as stated in Urban v. Am. Legion Dept. of Minn., 723 N.W.2d 1, 6
(Minn. 2006)).
{27} The Court of Appeals
of Indiana construed that state’s dram shop act, which prohibits “furnishing”
alcohol to a visibly intoxicated individual, to impose a duty on a “gratuitous
server” who orders and pays for drinks for another in a licensed bar because
the gratuitous server controlled at least some of the drinks served.
Vanderhoek
v. Willy, 728 N.E.2d 213, 216-18 (Ind. Ct. App. 2000) (discussing Indiana
Code Section 7.1-5-10-15 and -15.5 and concluding that the plaintiff properly
stated a claim under the dram shop act against both the bar and the individual
who purchased the drinks at the bar);
see also Ashlock v. Norris, 475
N.E.2d 1167, 1169 (Ind. Ct. App. 1985) (concluding that the legislature
intended to extend liability “to family, friend or acquaintance who merely
furnishes ‘one more drink’ to an intoxicated person”).
{28} The Massachusetts
courts recognize a common-law cause of action against social hosts.
See
McGuiggan v. New Eng. Tel. & Tel. Co., 496 N.E.2d 141, 146 (Mass.
1986). In
Makynen v. Mustakangas, the Massachusetts Appeals Court
reversed summary judgment granted in favor of an uncle who permitted his nephew
to consume multiple beers at his house and then purchased more beers for the
nephew at a bar. 655 N.E.2d 1284, 1286-87 (Mass. App. Ct. 1995).
Makynen
stated that “[b]y being at the bar drinking with his nephew and paying for the
drinks and food, [the uncle], the jury could find, made the beer available to
[the nephew] at a time when he knew or should have known [that the nephew] was
intoxicated.”
Id. at 1287 (citing
Solberg v. Johnson, 760 P.2d
867, 870 (Or. 1988)). In
Dube v. Lanphear, however, the court ruled that
social host liability was not available against the three friends of an
individual who drove drunk and caused an accident because a group of “drinking
buddies,” who shared the bill evenly, were not social hosts. 868 N.E.2d 619,
623 (Mass. App. Ct. 2007). Important to the
Dube holding was the fact
that the friends had no ability to cut off the flow of alcohol to the
individual who later drove, evidenced by the fact that the individual continued
to purchase drinks for himself after the group bill had been settled.
Id.
at 624 (distinguishing
Makynen due to the “relationship between the
uncle and the nephew, including the fact that the nephew did not share in the
payment”);
see also Lev v. Beverly Enter.-Mass., Inc., 929 N.E.2d
303, 311 (Mass. 2010) (refusing to distinguish between employer-hosts and other
sorts of social hosts, concluding that “employer-host liability is predicated
on control of the alcohol, not control of the person who consumes it”).
{29} In
Solberg,
the Supreme Court of Oregon defined social host as “one who receives guests,
whether friends or associates, in a social or commercial setting, in which the
host serves or directs the serving of alcohol to guests.” 760 P.2d at 870
(construing O.R.S. § 471.565, formally OR ST § 30.950). The court explained:
The typical example of a social
host . . . is where a host invites associates to participate in a social
gathering, in a private setting, and furnishes and serves alcohol to a guest.
But not every host entertains guests at home. Many entertain at hotels, clubs
or resorts. Hosting at taverns is not uncommon. . . . One may . . . ante up per
drink at a tavern and still be a host.
Id. (holding that the
defendant tavern properly stated a contribution claim against the stepfather
who purchased the alcohol for his stepson in the tavern); see also Grady v.
Cedar Side Inn, Inc., 997 P.2d 197, 200 (Or. 2000) (holding that plaintiff
was not barred from recovery from defendant tavern even though it was possible
that the fact finder could determine that the plaintiff was the drunk driver’s
“social host” because the plaintiff purchased alcohol from the tavern for the
driver, his social companion). As discussed later in this Opinion, we do not
believe our Legislature necessarily would agree with the definition of social
host employed by the Oregon courts.
{30} We perceive the
following common themes in these well-reasoned cases that are instructive in
determining what our Legislature envisioned when it statutorily enacted social
host liability. Social hosting need not occur in a home; one may host in a bar
or restaurant where the actual delivery of alcoholic beverages to the guests is
performed by a licensed server. Factors that are key to determining whether one
is a social host in a public establishment are whether the alleged social host
exercised control over the alcohol consumed by the guests; whether the alleged
social host convened the gathering for a specific purpose or benefit to the
alleged social host, such as promoting business good will; and whether the
alleged host intended to act as a “host” of the event, meaning arrange for the
service of and full payment for all food and beverages served to the guests.
{31} None of these
factors is determinative, and this Opinion will not attempt to capture the
myriad host/guest relationships that may exist. The presence of a business
incentive, as corroborated by a corporate policy of encouraging entertainment
to foster a business relationship, is evidence which could persuade a jury that
a guest/host relationship exists. However, it is equally apparent that this
kind of business atmosphere is not essential, and factors indicating whether
one is acting as a social host, and thereby assuming some responsibility for
the service of alcohol to guests, may be present in a purely social setting.
{32} In our view, the
guest/host relationship implies a certain degree of control by the host over
the guest and the provision of alcohol. The host creates the environment and
has the power to change it. It is the degree of control and responsibility
envisioned by the Legislature in its careful choice of wording that
distinguishes the present case, and others like it, from the more casual social
arrangement in which each individual is responsible for herself or himself.
Unless the social arrangement fits within the guest/host paradigm, the
Legislature has not imposed a duty of care. Friends sharing drinks, regardless
of who pays, normally would not rise to a guest/host relationship. When one is
put in a position of being another’s guest, it is implied that the host will be
in the position of some responsibility, albeit only a responsibility not to be
reckless in providing gratuitous alcohol.
3. The
recklessness standard limits social host liability.
{33} Our construction of
social host to include individuals and companies who host in licensed
establishments does not, contrary to Pharmaceutical Defendants’ predictions,
create a slippery slope leading to the creation of a duty to the whole world
or, at least, to the whole bar. We think this characterization is unrealistic
under the Liquor Liability Act. “As a general rule, an individual has no duty
to protect another from harm.”
Edward C.,
2010-NMSC-043, ¶ 16. A duty to
act under a specific standard of care towards a specific group of people may be
imposed, however, by statute or common law,
see id. ¶ 15; in this case
the Liquor Liability Act imposes a duty on social hosts not to act recklessly
in the service of alcohol beverages to their guest, Section 41-11-1(E).
Recklessness, as defined by the Uniform Jury Instructions for liquor liability,
is “the intentional doing of an act with utter indifference to or conscious
disregard for a person’s [rights or safety].” UJI
13-1641(4) NMRA. A plaintiff,
therefore, has two sizeable hurdles to be successful in a suit under a social
host liability theory: to establish facts from which a well-instructed jury
could identify a guest/host relationship, and to prove reckless misconduct
resulting from that relationship.
{34} The Liquor Liability
Act’s recklessness standard for social hosts indicates that the Legislature did
not intend to impose on “social host” a meaning as broad as that attributed to
the phrase by
Solberg, where an individual who “antes up” at a tavern
may be liable as a social host. 760 P.2d at 870. We agree with
Dube that
[a]pplying existing social values
and customs, it cannot reasonably be argued that the common practice of
patronizing eating and drinking establishments with companions, each
participant paying a fair share of the charges, imposes social host liability
on each member of the group in the event one individual visibly drinks to
excess and causes damage afterward.
868 N.E.2d at 623 (internal quotation marks and citation
omitted). The Liquor Liability Act’s statutory limitation on the duty “act[s]
as [a] safeguard[] against indiscriminately imposing liability upon a person
who gives someone else an alcoholic beverage.” Born, 514 N.W.2d at 690.
The mere presence of an individual in a bar is not enough to impose a duty on
her or him; nor is merely purchasing a round for friends, or even a stranger. Cf.
State v. Marquez, 2010-NMCA-064, ¶ 18, 148 N.M. 511, 238 P.3d 880, cert.
quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182 (holding that a
passenger in a car could be charged with aiding and abetting crimes committed
by a driver who drove intoxicated).
{35} In creating the
Liquor Liability Act, our Legislature endorsed a public policy that an
individual or company who hosts a party where alcohol is gratuitously served,
whether at a bar or in a private home, can be expected to refrain from reckless
activity in association with providing alcohol to guests. The following may
reflect the reasoning of the Legislature in imposing liability on social hosts
for the reckless service of alcohol:
[W]e believe that given society’s
extreme concern about drunken driving, any change in social behavior resulting
from the rule will be regarded ultimately as neutral at the very least, and not
as a change for the worse; but that in any event if there be a loss, it is well
worth the gain.
Kelly v. Gwinnell, 476 A.2d 1219, 1224 (N.J. 1984).
When individuals split a check, purchase a drink for a friend, or engage in
other socially acceptable practices, such action, alone, does not create a
guest/host relationship and is not “reckless” under the Liquor Liability Act.
In the Act, the Legislature limited liability only to those actions of a social
host that are considered reckless under our contemporaneous social values and
customs.
4. Pharmaceutical
Defendants were social hosts.
{36} Plaintiff’s
complaint properly characterized Pharmaceutical Defendants as social hosts, and
pleaded facts that raise the question of recklessness, thus stating a cause of
action against them under the Liquor Liability Act. The individual
pharmaceutical representatives invited Ms. Gonzales and her co-workers to a
business luncheon, organized for business purposes under corporate policies of
“wining and dining” medical office personnel in order to develop business
goodwill and eventually increase sales to that office. The representatives
arranged the business luncheon, paid for all of Ms. Gonzales’ many alcoholic
beverages at multiple licensed establishments, accompanied her at and between
the multiple establishments, and escorted her to her car at the end of the
evening.
6
Pharmaceutical Defendants’ business motive in organizing the
luncheon weighs in favor of the conclusion that they were acting as hosts for
Ms. Gonzales and her work colleagues. As discussed above, the fact that the
hosting took place in licensed bars and restaurants, as opposed to a private
home or office, is not determinative. Under the facts alleged in the complaint,
Pharmaceutical Defendants were social hosts in a licensed establishment. We
reverse the district court’s order granting the motion to dismiss for failure
to state a claim, and hold that Plaintiff stated a claim against Pharmaceutical
Defendants as social hosts under the Liquor Liability Act.
{37} We need not reach
Plaintiff’s argument that Pharmaceutical Defendants owed her a common-law tort
duty or that a duty was stated under the Restatement, because the Liquor
Liability Act is the exclusive remedy for injuries caused by social hosts. The
plain language of the Act needs no interpretation: “No person may seek relief
in a civil claim against a licensee or a social host for injury or death or
damage to property which was proximately caused by the sale, service or
provision of alcoholic beverages
except as provided in this section.”
Section 41-11-1(H) (emphasis added);
see also Chavez,
2007-NMCA-018, ¶
31 (discussing the exclusivity of the Liquor Liability Act when it applies).
C. Donahue’s
Motion to Dismiss for Untimely Service
{38} Donahue raises an
issue unique from the other Pharmaceutical Defendants: that the district court
erred by not dismissing the claims against him due to untimely service based on
Plaintiff’s lack of diligence under Rule
1-004(C)(2) NMRA. The district court
order denying Donahue’s motion to dismiss for untimely service did so without
explanation. At the hearing on Donahue’s motion to dismiss, Donahue indicated
he wanted a ruling for preservation purposes on the service issue in the event
this Court reversed the district court on the Rule 1-012(B)(6) motion. While
the district court did hear from both Donahue and Plaintiff on the issue, it
did not make any oral or written findings on the service issue, but, as it had
indicated it would do before hearing arguments, granted Donahue’s motion to
dismiss under Rule 1-012(B)(6) and denied the motion to dismiss for untimely
service. As it appears to us that the district court’s treatment of the motion
to dismiss for untimely service was perfunctory and performed solely to permit
Donahue to preserve the issue, on remand we direct the district court to
reconsider the motion and rule on its merits with a reasoned order that will be
suitable for review if, or when, this case reaches the appellate courts again.
{39} We reverse the
district court’s dismissal of Pharmaceutical Defendants on the ground that the
complaint failed to state a claim under which relief could be granted and hold
that Plaintiff properly stated a claim against Pharmaceutical Defendants as
social hosts under the Liquor Liability Act. We remand to the district court to
proceed in a manner consistent with this Opinion.
PATRICIO M. SERNA, Justice
CHARLES W. DANIELS, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for Delfino v. Griffo, et al., Docket
No. 32,372
GV-LI Liquor Liability Act
ST-RC Rules of
Construction
TR-TK Tavernkeeper’s and Social
Host’s Liability