Andres v. Alpha Kappa Lambda Fraternity

the court’s orders. To hold otherwise Respondent R.M.D.’s

would allow to sever

parental rights unilaterally. holding

We find no conflict our between the facts in result reached on To the extent that

Shanks. Shanks in child interpreted to have held that

custody and visitation cases sanction of contempt imposed upon will not be

party his unless disobedience willful

intentional, opin- conflicts with this Shanks

ion and should not be followed. to the circuit

We reverse remand

court.

All concur.

Frank Andres, ANDRES and Joan

Plaintiffs-Respondents,

ALPHA KAPPA LAMBDA FRATERNI- (National TY Fraternity), Alpha (Local Kappa Fraternity Lambda Chap- ter), Defendants-Appellants.

No. 68633.

Supreme Missouri, Court of

En Banc.

May

Rehearing Denied June

Almost twenty years age at the time death, of his decedent was a member of both the Local National fraternities and resided in the fraternity house owned group Chapter of Xi alumni. During the evening of December early morning and the hours of De- sponsored cember the Local a “mixer” at its house Sorority with the Delta Zeta at beverages which alcoholic were furnished members the Local as well as the Sorority without age. restriction as to Local’s social committee chairman estimat- ed that approximately percent 60 or 70 the Local’s membership was age under the and the evidence dis- closed that neither the Local nor the Na- tional had an policy governing established consumption alcohol fraternity at functions (twen- age individuals under the lawful ty-one) alcohol.3 Though the adopted National had against “hazing” required compliance directive, with that the National did not participate in the day-to-day management Further, of the Local. the National neither disciplined nor took corrective action when Oswald, Kirksville, Tom for AKL Local it came to its attention chapter that a local Chapter. beverages furnished to those un- Ford, Hamp Columbia, for AKL Nation- der the lawful because such measures al. impractical. were considered While alco- Schlaprizzi, Donald L. C. Dennis Barb- holic were available to those at- our, Louis, respondents. St. tending events, social at prac- “mixers” the RENDLEN, Justice. tice of the Local provide liquor was to hard guests in mixed sorority drinks for Joan and Frank but (respondents) Andres straight' was not to damages wrongful seek in this be served shots and death ac- tion, 537.080,1against expected were Chapter Xi of the members to drink beer Alpha Kappa (Local) which also Fraternity Lambda was furnished. Fraternity Alpha Kappa Decedent,

and The Lamb- known to main- who was have (National) son, da for the death of their supply liquor his tained own at (decedent) David Andres while a student at drinking house was observed before and University.2 Northeast Missouri State following during “mixer”4 the ear- 4.Respondents’ objections testimony 1. Unless otherwise indicated references are both Missouri Revised Statutes they defendants’ witnesses that observed dece- drinking during the "mixer” were sustained dent University origi- 2. Northeast Missouri State was ground on the the defendants failed to defendant, however, nally named as a its mo- furnish their names as individuals who were grounds tion to dismiss was sustained on the Thus, present ap- at the "mixer.” we are not governmental immunity. That dismissal has prised any, if con- of the extent that decedent challenged not been and is not an issue in this during party. sumed alcohol appeal. prohibits providing Section 311.310 the sale or of alcoholic to individuals under twenty-one years old. See note 5. infra ly morning hours of 12, 1979, “negligently allowed, December carelessly per was sitting bar, straight serving mitted matching and condoned the of alcohol shots from ic on [fraternity] bottle of to minors whiskey with his brother, fraternity premises and negligently carelessly and Tom Baatz. After supervise watching failed to the of alco sorry this display time, for some [fraternity] premises,” praying hol on dam member, another Greg Broerman took the $250,000. returned a ages jury of The bottle from the “contestants” placed and in the each defendant verdict in a whiskey case behind the bar. Immedi- $181,250 $250,000, to on amount of reduced ately decedent went behind the bar and following apportionment of fault: returning the “pressure[d]” into the Broerman 27.5%; 27.5%; took one of David and decedent final shot bottle National — Andres — Appeals, dece- In of whiskey. Broerman then convinced the Court Local—45%. drinking District, stop dent to another majority with the reversed the Western fraternity brother, assisted into decedent judgment as to both while Ken defendants the television room after the “brothers” only in have nedy, J. dissent would re safely taken decided decedent could be versed as to the National and certified the negotiat- to his of the risk of bed because majority’s opin cause in the belief that the ing difficulty of a set of stairs and the ion conflict with stood Carver Schaf getting top pillow him his A into bunk. er, (Mo.App.1983) and 647 S.W.2d 570 decedent, blanket obtained and were Inc., 611 Sampson Enterprises, v. W.F. other frequently spent night who (Mo.App.1980). house, sleep rooms was left of the to Addressing first the Local’s liabil television room floor. ity to for At about 10:00 a.m. on December 311.310,5 decedent, legislature, by § be he was decedent could not wakened and the sell proscribed has as a misdemeanor hospital emergency taken to a where local ing, giving supplying by “[a]ny licensee” could treatment was administered but he (with exceptions not “any person” rele autopsy ensuing In the not be revived. here) liquor” “intoxicating of to those vant decedent’s alcohol mea- blood level twenty-one years age. An under of unin sured and the cause of death was .43% association,6 be considered corporated may determined as “acute alcohol intoxication 1.020(10),7 “person” under and because aspiration.” with § Respondents only through brought functions the acts Local this alleging action that both that it is of its we Local and the members conclude National had provides: 5. Section 311.310 party the deceased would been have entitled to bring personal injuries an action for had he persons, Sale to minor —certain other misde- injuries. his survived That decedent meanor-exceptions. Any as a licensee under — chapter, sell, employee, unincorporated this member of this or his association who shall vend, give away personal have supply any or otherwise could not maintained a claim for intox- icating liquor any quantity injuries to because whatsoever such an action would have any person age twenty-one years, under been tantamount to a suit himself. of any person or to appearing Thus, intoxicated or to respondents, the Local concludes that intoxication, be in a state of or to a habitual representatives, decedent’s failed have to state a drunkard, person any except whomsoever granted. upon which claim relief can be It parent guardian pro- his or her who shall unnecessary for us to merits reach the of this sell, for, give away cure supply or otherwise argument duty question as our treatment of the intoxicating liquor any person age to under the favorably Logs is resolved for the Local. See twenty-one years, any per- or to intoxicated of Duncan, (Mo.1956) don v. 293 S.W.2d any person appearing son or to be in a state ("only questions necessary those essential to a intoxication, drunkard, or to a habitual appeal determination in this court [an] will misdemeanor; guilty pro- shall be deemed a considered”). vided, however, this section shall not (10) provides following 1.020 7.Section defi- apply supplying intoxicating liquor to the “person" as nition for the term "used in the person age twenty-one years to a under statutory laws of this state”: purposes only, for medical or to the adminis- “person" tering ap- intoxicating liquor any per- and be of said word extend by duly physician. plied politic corporate, son (Emphasis bodies and to licensed added.) partnerships unincorporated and other associ- (Bold original. argues damages wrongful Emphasis 6. The Local ations. added.) face in may only death be recovered in a case in which person as the decedent that term is was found to exist employed in because 311.- § 310 and thus it was unlawful the purpose for the Local 311.310 was viewed as provide alcoholic beverages including regulation those un- of the der twenty-one years liquor who industry attended protection but also the the “mixer.” those under age. Id. Relying upon

While it Sampson was unlawful the Local to its analysis, the furnish alcoholic to those under Western District Westport Nesbitt v. age, respondents required Square, Ltd., were to estab- 624 S.W.2d 519 (Mo.App. 1) duty lish: 1981), a civil not to furnish decedent held passenger that a in a car driven 2) intoxicating liquor; with breach of that eighteen year companion old who had 3) duty; and the of alcoholic been beverages served alcoholic in a tavern beverages proximate to the decedent was could state against a cause of action the cause of his Virginia death. See D. v. tavern injuries she sustained when the Corp., Madesco Investment 648 S.W.2d two were involved in an automobile acci 881, (Mo. 1983). 886 banc In all this it does dent. necessarily not follow that civil can Sampson Consistent with is Nesbitt imposed though be there have been a the decision of the Eastern District Court violation of the criminal statute. Appeals of in Schafer, Carver v. 647 reported Missouri case ad- earliest (Mo.App.1983). S.W.2d 570 The Carver dressing problem furnishing of alcohol- the plaintiffs were found to have stated a beverages injury ic and concomitant which cause of action a tavern owner for our research discloses is Skinner allegedly serving beverages alcoholic to an 440, (Mo.1860). 441 There Hughes, 13 Mo. intoxicated subsequently individual who of a store furnished alcoholic the owners pedestrian family struck and killed their beverages ultimately died of to a slave who member. Id. at 575. the While Eastern poisoning. In sale to a alcohol 1850 such Carver, District in unlike the Western Dis- 7, prohibited by Chapter 72 slave was § Nesbitt, Sampson trict in relied on the 8 concluded RSMo 1845 and this Court the application general principles of of common owner of the slave was entitled to recover negligence law rather than a violation of damages proximate the cause of because duty 311.310 to find the existence § “providing”

the slave’s death was the not to allegedly serve someone who was Skinner, beverage. the 13 Mo. at alcoholic intoxicated, the court did look to 311.310 § Although, duty the existence of a not public policy” as “indicative of in Missouri to furnish alcohol to the slave was not making its determination that the tavern discussed, the explicitly it can be assumed duty owner had a supply not to an intoxi- con- statutory prohibition must have been cated individual. Id. establishing duty. sidered when such Though cases all involve preceding the recently, More the Western District drink, liquor the vendors of commercial Appeals parents Court of held that the hosts, by logical argued that not it is social an individual under po- support respondents’ they extension the who was served alcoholic in host, Local, a social had sition that the two taverns and later was killed when his 311.310 or duty pursuant either to overturned, pickup § truck stated a cause of furnish alcoholic bever- common law not to wrongful action for death the tav- contends, The Local ages to the decedent. Inc., Sampson Enterprises, erns. v. W.F. however, recently enact- the terms of that (Mo.App.1981). 611 337 A (effective September ed 537.0539 duty furnish § not to provides: 537.053 9. Section Chapter provided: RSMo 1845 § shall, beverage proximate Sale of alcoholic not grocer dram-shop keeper No di- personal injuries excep- cause of rectly indirectly, any intoxicating sell li- death — slave, law). requirements—(dram shop quor any any or drink of kind to with- —1. tions — Since the master, permission, writing, repeal Shop the Missouri Dram out owner, in from the 1933-34, session, (Laws Act in or overseer of such slave. extra 77), page it has been and continues to be 1985) any misplaced claim respondents bar which is as terms of 537.053.1 § applicable would pursue explicitly otherwise entitled to as are 537.053.1 § “abrogate[s]” (i.e. vendors) much explicitly shops as 537.053 dram commercial § the latter three cases It discussed above. social host such the Local. Moreover, legisla- interpretation maintained Local our is bolstered that ture made a choice in to the re- 537.053 the reference 537.053.1 § § proximate cause injuries peal Shop Act which connected of The Missouri Dram actions with providing arising had from authorized both commercial settings social selling intoxicating liquor is the illegal consumption rather supra the activities of social See hosts. than the intoxicating of the Contending repeal substances. note 10. When the to the reference (the Local) if duty even Shop owed a of the Dram Act is Missouri viewed decedent, respondents’ have to state language prohibit failed with the “to context a claim shop for relief because liability” 537.053 man- dram we must conclude that finding dates proximate absence of legislature intended to address the cause. question of liability relating to commercial in vendors 537.053.1 particularly and § provides Section 537.053.1 that “[s]ince falling in those the class described as repeal the Shop of the Missouri Dram Act shop” operators. “dram in 1934 has ... been and to continues be the of this state prohibit Similarly, ... to dram prohibits imposi- 537.053.2 § 10 shop liability” “furnishing because liability the upon tion of certain commercial proxi- alcoholic by is not the stating holdings [of] vendors that “the in Sampson, injuries mate cause of by Nesbitt Car- inflicted intoxicat- cases as” such and ver,11 persons.” ed upon taverns, Local’s involving reliance “abrogat- are be to policy of state the Missouri, this to follow the son in common law state be of shall who 1.010, England, person of injured property as or of declared in in or means section RSMo, by any per- liability support or otherwise intoxicated prohibit shop and to to dram selling intoxicating furnishing by law son reason of the the common rule that of follow proximate provisions liquors alcoholic is not the cause in violation of the of this by injuries persons. chapter, right intoxicated action in his or shall have the of inflicted of legislature hereby against corpo- 2. The that this any person, declares firm or her name interpreted shall, be the hold illegal selling section shall ings so that by who such of ration Schafer, such 647 in cases as Carver v. liquors, have contributed to such caused or (Mo.App.1983); Sampson v. W.F. S.W.2d 570 person persons, or or the intoxication of said Inc., (Mo.App. Enterprises, 611 S.W.2d 333 any to have caused or contributed such who Ltd., 1980); Westport Square, and Nesbitt v. any by injury; given this section and in action abrogated (Mo.App.1981) 624 S.W.2d 519 be in right plaintiff to recover the shall have the judicial finding prior interpretation exemplary favor damages. of In case and actual beverages, consumption the rath right party, or the death of either the action beverages, er than the of alcoholic given by to this section shall survive action proximate injuries to be the upon cause of inflicted against his or her executor or administra- and tor_ by person. an another intoxicated Notwithstanding and 2 of 3. subsections 1 Act, added.) (Emphasis noted in § This as 537.- section, brought cause this by of action be 6, 21, 22, repealed by of C.S.S.B. § 053.1 was 23, 44 any person has suf- or on behalf who Extra Session and 25. Laws of Missouri 24 injury any personal fered or death at 1933-34 liquor by intoxicating person to sell licensed premises the drink for Kennedy Judge case at bar be- certified the RSMo, who, 311.310, pursuant to section has majority the cause he viewed the decision of convicted, suspended been imposition conviction, or has received a being contrary to the in Carver v. decisions arising the sentence from the (Mo.App.1983) Schafer, 647 and S.W.2d 570 intoxicating liquor the sale of Inc., Sampson Enterprises, 611 v. W.F. S.W.2d years person twenty-one the or under (Mo.App.1980). expressed He the view that 333 person obviously sale of intoxicated if the among keeper, no difference tavern "there is intoxicating liquor proximate such is the occupier intermediate social host of some personal injury sus- cause of or death the recognize We that such [the Local].” status like reasoning added.) by person. (Emphasis tained such majority’s necessarily results in Act, 4487, Shop being contrary RSMo opinion 10. The Missouri Dram § viewed as to Carver and part: provided Judge Kennedy, 1929 in relevant Sampson. Unlike we feel that wife, support finding the Local was a Right damages. Every facts of action — child, husband, per- acknowledging parent, guardian, and that the existence social host or other

ed” because the consuming rather than from what legislature we think the intend the furnishing say ed inadvertently say.” failed to Wallace, proximate Gray (Mo. deemed the injuries cause of in- 1958). Having upon flicted found no persons, ambiguity others intoxicated 537.053 support which would a wide “abrogated” § those cases 537.- § ranging urged by construction appellants, 053.2 dealt with the of alcoholic we conclude legislature only in beverages by selling liquor by taverns particular tended to shield a class of com drink not social hosts.12 mercial vendors13 of alcoholic beverages Finally, exceptions 537.053.3creates § and not social hosts from liability. the rules of non-liability established Were we to assume that through its 537.053.2, 537.053.1 and provides § § legislature enactment of 537.053 the in § that a cause of may, action notwithstand- tended to insulate social hosts from civil ing subsections 1 be stated liability, nevertheless the statute cannot be person licensed to intoxicating sell “[a] employed as liability a device to avoid liquor by the drink consumption on this Constitution, instance. The Missouri premises” specified in two circumstanc- 13, prohibits Article I “retrospective” § added.) (Emphasis es. supra See note 9. application legislat of laws enacted Again, quoted language demonstrates “ ure,14 such a law is one which ‘take[s] an intent to address of a away impair[s] rights acquired vested particular class commercial vendors. laws, under existing a new create[s] While it might argued 537.053 obligation, impose[s] duty, a new or at should be somehow construed as applying disability respect new taches] to social hosts in legis order to achieve the transactions or considerations already ” purpose lative precluding liability past.’ Morris, Barbieri v. 315 S.W.2d purveyors for all beverages, alcoholic 711, (Mo.1958)(emphasis added)(quot 714 scrutiny close of its subsections reveals no ing 1078, 1084, Murphy, Lucas v. 348 Mo. ambiguity which could be construed as 686, (1941)). 156 S.W.2d 690 See also Will demonstrating legislative a intention that Rathburn, 1208, 1217, hite 332 Mo. 61 permits of such respon construction. Our 708, (1933) (laws S.W.2d may 711 not be sibility legislative is to “determine the in applied retrospectively they when would tent legislature from what the said and not past “affect ... transactions to the sub only injects of an "intermediate status” explicitly unneces- cases enumerated and therefore the sary confusion increasingly into an ever com- appear rationale of Skinner likewise would plex body generally addressing of law the liabili- longer be no viable. ty purveyors See, beverages. e.g. of alcoholic Note, Liability: My Social Host Am I Brother’s “dramshop 13. The most recent definition of a Keeper?, 351, Eng.L.Rev. (Ap- 21 New 392-397 disclosed, keeper,” pro- which our research has A-E) pendices (1985-1986). These comments vided: way constituting should in no be construed as a dramshop keeper person permitted by A is a Judge Kennedy's condemnation of utilization of law, being according provi- licensed to the process the certification since this is not a case chapter, intoxicating sions of this to sell li- dissenting judge “certifyfing] of the a case to us quors any quantity, either at retail or in the conflicting simply because he differs with his original package, exceeding gallons. ten Alexander, colleagues about the result.” State v. 6498, Chapter express §52 RSMo 1919. We no (Mo. 1986)(quoting 706 S.W.2d banc dis- opinion prior as to whether this definition of a Blackmar, J.). sent of "dramshop keeper" would foreclose a commer- vendor, beverages cial who furnishes alcoholic 12.Although (Mo. Hughes, Skinner v. 13 Mo. 440 gallons, invoking pro- in excess of ten from 1850) explicitly was not referenced the statute tection afforded § 537.053. though injury it did not involve inflicted individual, upon others an intoxicated but Const, I, provides: 14. Mo. art. 13§ "property per instead a loss" as it was then law, post impairing That no ex facto nor law ceived under the since discredited institution of contracts, obligation slavery, retrospective we believe that because it also involved legislature operation, making any through grant a commercial its vendor the irrevocable as," immunities, phrase special use privileges of the “cases such intended that can be scope added.) (Emphasis § 537.053.2 not be limited to those enacted. parties interested”) prejudice Lastly, stantial commercial vendors are able to in- added). (emphasis Respondents’ cause of sure themselves the risks of fur- action accrued with the death their son nishing pro- while such 12, 1979, on December their first amended presently tection is available to social petition 9,1981 was filed December and the hosts. Id. Persuaded of the correctness 537.053, May trial had in of 1985. Section holding of the in Harriman we conclude September became on respondents have failed a effective to state years respon more than five after claim for relief the Local. dents’ claim accrued and more than three We respondents’ now turn to the years filing after its and it not consti argument negligent National was tutionally given retrospective appli through adopt policy its failure to which urged by appellants. cation prohibited furnishing of alcoholic bever reported The most recent decision deal ages by chapters local to those individuals ing with the issue of civil for the age who are under consump the lawful for of alcoholic is Harri tion. The National contends that it did not (Mo.App. man v. Smith 697 duty owe a promulgate decedent to 1985). presented The facts in Harriman policy serving which forbad the of alcoholic closely analogous are more to those of the beverages by chapters local to those mem judice case any occurring sub than in the age permitted by bers under the law. previously cases discussed which have been It impose duty would be anomalous to “abrogated” by enactment of 537.053. on Moreover, the National to find establish a analysis we in Harri forbid- compelling ding the adopt man disposi tion of chapters this cause. local to members under the age lawful while the Local The defendants in Harriman were which actually alcoholic bever- social furnished hosts who furnished alcoholic bever ages to those under twenty-one years in ages individual, to an under the this duty cause had no civil at law to re- consumption. lawful Id. at 220. Plaintiffs practice. frain from such The National did were the survivors of an individual who was participate not day-to-day manage- riding killed while passenger as a in a car chapters ment of its and thus was more driven underage that consumer. Id. remote than the Local from the events The Eastern Appeals District Court of held surrounding the death of respondents’ son. plaintiffs that failed to state a claim for Having found no civil part relief and that neither 311.310 nor the Local, similarly we must principles find that negligence common law im National, entity posed even further re- duty upon the defendants to ab moved than the Local from stain from the sad events leading tragedy, civilly to an individual to this is not under liable age. failing Id. at opined policy prohibiting 221-23. The court to establish a imposing liability upon social beverages by hosts would service of alcoholic local have “a impact everyday substantial on chapters ... age permitted to those under the family social and affairs” and therefore the by law.

parameters any duty imposed on social discussed, For judgment the reasons hosts should legisla be determined of the trial court is reversed and the cause Moreover, ture. Id. at 221. unlike com entry is remanded judgment in favor vendors, mercial social hosts do not realize appellants. of both any pecuniary gain from the and for this reason HIGGINS, C.J., BILLINGS, they likewise have no incentive to encour DONNELLY, WELLIVER and consumption. excessive Id. In addi ROBERTSON, JJ., concur. tion, typical exper social host lacks the required BLACKMAR, J.,

tise quantity evaluate the separate concurs in guest safely alcohol a can opinion consume. Id. filed.

BLACKMAN, Judge, concurring. ant to sections 557.036.4 and 558.016 RSMo 1986. I concur. There a number of are reasons

why plaintiffs should be allowed to 30.25(b). Affirmed. Rule recover shown on the facts this record. willingly participated The deceased in a

drinking died party and as a result of his indulgence. plaintiffs’

own attempt

personalize fraternity the national local

organizations to indict them as the agents tragedy

causative in the highly are

artificial and do mask the fact year simply old decedent drank himself Missouri, Respondent, STATE of to death. I believe that do not the tort v. system provide remedy should a civil under FRENTZEL, these circumstances. Appellant. John WD 38325.

No. Appeals, Missouri Court District. Western 7, April 1987. Rehearing Motion for and/or Transfer Supreme Denied June Court 1987. Missouri, Respondent, STATE of BRAULT, Appellant. Ronald G.

No. 37873. WD Appeals,

Missouri Court

Western District.

March Rehearing

Motion for and/or Transfer

Supreme Denied June Court Kollias, Columbia,

Lew appellant. Webster, Gen., Atty.

William L. Jefferson Gen.,

City, Philip Atty. Asst. Koppe, M. City, respondent.

Kansas PRITCHARD, P.J.,

Before BERREY,

MANFORD and JJ.

ORDER

PER CURIAM.

Appeal passing from conviction a bad

check in of section 570.120.6 violation years

RSMo im- and sentence ten

prisonment persistent pursu- as a offender

Case Details

Case Name: Andres v. Alpha Kappa Lambda Fraternity

Court Name: Supreme Court of Missouri

Date Published: May 19, 1987

Citation: 730 S.W.2d 547

Docket Number: 68633

Court Abbreviation: Mo.