{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 Plaintiffs 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 grantеd 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.
I. BACKGROUND
{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,
{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. Plaintiffs minor son was killed, and Plaintiff and her passengers suffered grave injuries.
{5} Ms. Gonzales had spent the hours pri- or 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 Pharmаceutical Defendants and the owners and operators of the various bars and restaurants where Ms. Gonzales had consumed alcohol that evening (collectively, Bar Defendants). 2 Plaintiffs 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).
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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 Pharmacеutical Defendants.
II. ANALYSIS
A. Standard of Review
{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 а claim under Rule 1-012(B)(6) is reviewed de novo.” Valdez,
{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,
{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 аppropriate 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,
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,
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.
{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,
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 nоt 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,
{16} Plaintiff argues that the district court erred in concluding that social host liability is
{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 “individuaos] 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 onе 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 aleohol provision occurred in а 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,
{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.
{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 thе 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,
{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.”
{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.
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In Bom v. Mayers, the Supreme Court of North Dakota construed that state’s dram shop statute to permit a claim against a company representative who purchаsed alcohol for an individual in a bar in order to promote “business good will” in the community.
{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,
{28} The Massachusetts courts recognize a common-law cause of action against social hosts. See McGuiggan v. New Eng. Tel. & Tel. Co.,
{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 аlcohol to guests.”
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.,
{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 establishmеnt 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 relatiоnship, 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
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 unreаlistic under the Liquor Liability Act. “As a general rule, an individual has no duty to protect another from harm.” Edward C.,
{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.
[ajpplying 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.
{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,
4. Pharmaceutical Defendants were social hosts.
{36} Plaintiffs 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 coworkers to a business luncheon, organized
{37} We need not reach Plaintiffs 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,
C. Donahue’s Motion to Dismiss for Untimely Service
{38} Donahue raisеs 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 Plaintiffs 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.
III. CONCLUSION
{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.
{40} IT IS SO ORDERED.
Notes
. Dr. Leech initially was a defendant in this case. The district court granted his motion for summary judgment on August 23, 2007.
. Motions to dismiss filed by Bar Defendants were granted in part and denied in part and are not part of this appeal.
. Certain of the Bar Defendants (Kraffty LLC, Uptown Square Venture, and Ronald Nelson, collectively Kraffty Defendants) filed a motion opposing the dismissal of Pharmaceutical Defendants to preserve a comparative fault defense. While Defendant Schering questions whether Kraffty Defendants have standing to file briefing in this appeal, we decline to address this contention, noting only that the arguments set forth in the briefs of Kraffty Defendants mirror those set forth by Plaintiff.
. We direct the UJI Committee to create a second use note consistent with this Opinion.
. It is appropriate in this case to consult the treatment of anаlogous liability standards in other states in discerning our own Legislature’s intent. In establishing our common-law dram shop act in Lopez, this Court relied on the development of liquor liability in our sister states.
. We recognize the ongoing dispute among the various Pharmaceutical Defendants as to who was with Ms. Gonzales, for how long, at what locations, and who purchased her beverages. Although in this Opinion we refer to Pharmaceutical Defendants collectively, we anticipate that such issues will be resolved in due course, perhaps at a subsequent motion for summary judgment, and this Opinion is without prejudice to any such subsequent efforts.