*1 A.2d 1115 HERR, Benjamin A. Administrator Estate Eric B. Herr, Benjamin Herr, A. Herr and Cornelia R. In Right, Appellants,
their Own BOOTEN, Raymer, Aspril, Paul John Robb Jr. an d Orolyn, Appellees. Alex
Superior Pennsylvania. Court of
Argued May 8, 1990. Sept. 25,
Filed *2 Hall, Lampeter, appellants. Thomas W. Parker, Lebanon,
Wiley appellee. P. for Aspril, CAVANAUGH, ROWLEY, McEWEN, Before SOLE, OLSZEWSKI, MONTEMURO, JOHNSON, DEL ELLIOTT, and FORD JJ. HUDOCK MONTEMURO, Judge: based appeal tragic
This the sad and death of a man, Eric B. Herr. At the very young death, time of his Eric student at college the West Chester University. Eric born on January 1963. On January college Eric’s roommates entered his bedroom and discover- ed Eric died during night. had The cause of his death was acute ethanol A poisoning. subsequent autopsy revealed Eric’s blood alcohol content at the time .64% autopsy.1 litigation
This commenced in March of by 1986 Eric’s parents father, in their own right, and Eric’s Benjamin Herr, A. as Administrator the Estate of Eric B. Herr. *3 The college defendants include Eric’s roommates: Paul Booten, Raymer, John and Jr. Aspril, Robb The fourth defendant, Alex Orolyn, did not reside with Eric at college college but he a acquaintance. 16,
It
undisputed
1984,
is
that in the afternoon of January
Eric and his three roommates
buy
decided to
beer to cele-
brate Eric’s impending twenty-first birthday. All four of
the young men
money
purchase
contributed
toward
of
the beer. Defendant
Eric
a beer
Raymer drove
to
distribu-
torship where several
of
purchased.
cases
beer were
The
drinking
roommates
began
apartment
the beer
their
16,
late
Later in
January
afternoon
the eve-
ning,
Eric,
defendant Orolyn
along
arrived.
with Orolyn
and
then left
Raymer,
apartment
and attended a party
at a fellow student’s house where they consumed more
They later left
party
stop
apart-
this
to
at Orolyn’s
beer.
operate
1. We
a
note that it is
criminal
to
a
offense
motor vehicle in
this
weight
Commonwealth while
the amount
alcohol
in the
greater.
3731(a)(4);
blood of
driver is 0.10% or
See 75 Pa. C.S.A. §
336,
Yapsuga,
Pa.Super.
(1987).
Commonwealth v.
We
with
trial
present
cause of action can
battery
be established
light
when the evidence is viewed in the
most
even
“As
non-moving party.
traditionally
stat-
favorable
ed, the elements of the tort of battery are ‘a harmful or
offensive
person,
contact with a
resulting from an act
intended to
plaintiff
cause the
or a third person to suffer
contact,
such a
or apprehension that such a contact is
Keeton,
imminent.’ Prosser
Torts,
(5th
&
Law
at 39
ed.
1984).”
Souser,
Levenson v.
“A bodily contact is offensive if it offends a reasonable sense of personal (Second) Restatement dignity." of Torts added). 19 (emphasis Implicit the tort of is the battery § recognition that an right individual has a to be free from unwanted and or harmful offensive intrusions upon his own body. battery tort of has been em- traditionally ployed to redress precise grievance. this The essence of the tort “consists in the offense to the dignity involved unpermitted and intentional invasion of the inviolability plaintiff’s] person____” (Second) See RESTATEMENT [the Thus, OF TORTS Comment c. the Restatement rec- ognizes that an intrusion upon plaintiff’s physical or personal dignity does occur where the defendant “throws a substance, water, such as upon the [plaintiff] or if [the sets a him” dog upon even though the defendant defendant] and the plaintiff not physically have touched each other. Additionally, Id. “if the actor daubs with filth a towel which he expects another to in wiping use his face with the expectation that the other will smear his face with it and so, the other does the actor is liable as as fully though he had directly thrown the filth in the other’s face or had otherwise smeared his face with it.” Id. Although the of alcohol to supplying person may improper or con- to the trary law because the person or, is a minor perhaps, because he is intoxicated, already visibly it is not an act impinges which upon that individual’s sense physical *5 an of the dignity inviolability. expansion Such tradition- has been sanctioned battery by al notion of never courts affirm the Consequently, entry of this Commonwealth. we in of the defendants as to the summary judgment favor cause of action. battery
In
in
of the
entering summary judgment
favor
defendants
claims,
trial court first determined
negligence
as to the
age,
B.
and thus an
twenty-one years
that Eric Herr was
adult,
participated
time the defendants
the distri-
at the
to him. This is a critical determination.
bution
alcohol
The
Court in
Pennsylvania Supreme
Raysinger,
Klein
(1983),
141,
On or about
Michael
on
driving
Pennsylvania Turnpike
they
were
when
by
were struck in the rear
a vehicle which was driven
by
Raysinger
Mark
Prior to the collision
had
Raysinger.
Inn,
Neptune
of the
where he had con-
patron
been
thereto,
Prior
sumed an undisclosed amount
alcohol.
Mr.
had
served
and other alcoholic
Raysinger
been
beer
Gilligans.
alleged
at the home of the
It is
beverages
intoxicated at the time he was
Raysinger
visibly
Gilligans,
served
and that it
known at the time
by
driving.
consequence,
would be
As a
Raysinger
negli-
appellants’
Gilligans
claim that
are liable
in the accident.
gence
injuries they
for the
sustained
Id.,
Pennsylvania
rendered on the same Pennsylvania Supreme Court day: 504 Pa. Congini Company, v. Portersville Valve eighteen year In an old Congini, Company (“Portersville”) of Portersville Valve employee when, condition, injured an intoxicated he drove his *6 vehicle into the rear of another Prior to the acci- vehicle. dent, employee party had attended a Christmas held he alcoholic beverages. Portersville where was served The Congini depart from the compelled Court was common Klein, rule it had relied upon recognizing law that: legislature legislative “... our has made a judgment under of are persons twenty-one years age incompetent to handle alcohol. Under Section 6308 of the Crimes 6308, person Code 18 Pa.C.S. a “less than 21 of years § if age” summary “attempts commits a offense he consumes, purchase, purchases, possesses or transports alcohol, any liquor beverages.” or malt or Fur- brewed thermore, Code, 306 of the Section Crimes 18 Pa. 306, liquor C.S.A. an adult who furnishes to a minor § accomplice would be liable as an to the same extent as the offending minor.
Congini, supra, 161,
Pa.
at
In determining that Eric Herr twenty-one years preceding age during the day twenty-first birthday, trial court upon general relied a rule of common law this jurisdiction provides which that a is deemed to attain person given age day on the before his or her birthday. See v.
Firing
Kephart,
(1976);
Pa.
It is axiomatic that legislative intent is polestar statutory construction. In drafting criminal statutes at bar, issue in the case at we are Legisla- convinced that the cognizant ture was of this commonly understood and prac- ticed rule for determining legal age purchase for the and consumption of alcohol. Pursuant 1 to Pa.C.S.A. 1921, we are bound to presume that the General Assem- § 174 absurd, impossible “intend a result did not
bly Further, permitted we are execution or unreasonable.” particular interpre- of a consequences practical examine the Stewart, v. tation.” Commonwealth Pa.Super. omitted). (citations Legislature Our (1984) in a interpreted 6308 to be intend 18 Pa. C.S.A. did not § contravenes, the com- indeed ignores, and manner which determining method for accepted practiced and monly consumption of alcohol. legal age purchase rule that one is deemed the common law Although has birthday been age day on the before given attain circumstances, it is not in relevant controlling other found 6308. As of 18 Pa. C.S.A. proper in the construction § statutory enact particular to construe a are bound courts common Legislature, of the intent light ment intent of the reasonable employed cannot override law the trial a statute. This was Legislature enacting judice. the case sub note that our We error court’s Iafrate, Commonwealth recent decision — Pa.-, granted, allacatur (1989) A.2d 1244 Iafrate, In (1990) distinguishable. is clearly A.2d 109 construe 42 Pa. common law rule to relied we states, “if to the court 6322(a), appears it which C.S.A. murder, that the defendant other than proceeding a criminal immediately shall child, Act], Juvenile chapter is a this [the child, A for the of the Juve- purposes applicable.” become Act, eighteen years age. nile is an individual who is *8 bar, See at in Unlike the case 42 Pa. C.S.A. Iafrate, regard- accepted usage common and there was no for the age eighteen attained the an individual ing when the Legisla- the Act of which Juvenile specific purposes 42 enacting aware when presumably have been ture would cor- 6322(a). quite this Court Consequently, Pa. C.S.A. § the statute construing employed the common law rectly however, axiomatic, that each It is at issue Iafrate. intent and circum- unique, legislative and that the statute unique. is also statute each statute underlying stances no relation to the statutes construed has Iafrate
175 present case, consideration the which were enacted to prevent “furnishing of intoxicants to a class of persons legislatively determined to incompetent to handle its effects.” Congini v. Portersville Valve Company, Pa. 157, 161, 515, 470 A.2d upon
Based our view of the correct statutory con struction of Section Code, the Crimes as well as 6310.1, Section we are firmly convinced that an individual 17, 1963, born on January such as Herr, Eric B. could not legally purchased have or consumed 16, alcohol on January 1984; but he could legally have done so on the following day, day birth, of his Thus, January 17. the furnishing of alcohol to Eric B. Herr on January 1983, amounted to negligence per se as a matter of law.
In vacating the summary judgment which was en
tered in favor of the
defendants in this
express
we
no
opinion concerning the ultimate finding of
A
liability.
social
may assert,
host
defense,
as a
the minor’s contributory
negligence. Questions of accusation as between the appel
lees and as between the appellees vis-a-vis Eric Herr must
be resolved in the trial court
by
finder of fact. Conse
quently,
summary judgment
entered
favor
defendants as to the cause of
in negligence
action
furnishing alcohol to Eric Herr is vacated and reversed.2
reject appellants’
2. We
claim
negligence
that a cause of action in
is set
by
allegations
forth
appellees urged
challenged
Eric Herr
to consume the
ultimately
alcohol which
caused
only
his death. The
authority
relied
Bigan,
this cause of action is Yania v.
(1959),
Pa.
operator
wherein an
strip-mining
adult coal
jumped
had
into a
mining
water-filled trench at a
site and
died
alleged
had
as a result.
wrongful
It was
in the
death and
survivor action
Bigan,
that followed
employ-
that the defendant
cajolery,
ment of
impact
caused such a mental
on the decedent that he
lost his freedom of choice
compulsion, jumped
and under a
to his
death. The
alleged
Court held that such
conduct would not
negligence
constitute actionable
when
posses-
directed to an adult in
sion of all his mental faculties. The Court also stated that if the
decedent “had
years
been a child
person mentally
of tender
or a
deficient then
taunting
it is conceivable that
and enticement could
negligence
Id.,
constitute actionable
if it resulted in harm.”
397 Pa. at
unwilling,
Further, argue that that recognize appellees we the Eric the of an excessive amount drinking Herr assumed risk that under alcohol, Pennsylva of and “it is-well-established to the element of plaintiff duty nia law that a fails establish case of where the prima negligence essential to a facie the condition was dangerous evidence demonstrates Appellees Brief for at plaintiff.” known or obvious the (if Milie, 141, (1987) Pa. A.2d 59 v. 517 535 See Ferencz avoidable, parking ice lot was and patch hospital obvious the no plaintiff duty would have owed hospital doctrine); assumption of of the risk remove it because (1983) (a 120 Fitterer, Pa. 469 A.2d v. 503 Carrender risk assumed is in cases holding many that a has been that, law, to a determination as a matter tantamount plaintiff duty); no by owed Johnson Johnson defendant (1988); 302, 545 947 Walker, Pa.Super. 376 A.2d Malin Co., der v. Elevator Machine Jenkins & (the (1988) (en banc) consequences of legal the risk to relieve the defen plaintiffs assumption of was duty plaintiff). Appellees’ dants of claim any towards risk not in a that Eric Herr assumed the does result that the Eric Herr appellees duty determination owed no negligent law. The are se appellees per as matter of decision, it is as a matter presumed under the thus Congini and, to Eric appellees duty of law that had a care Herr present years child of It is clear that Eric Herr was not a tender case. mentally in that he did not suffer from mental was not deficient contrary, college Eric was a retardation or mental disease. On years age. twenty-one Even and he was about to turn student though degree some before he Eric Herr no doubt intoxicated to whiskey, of himself and consumed the bottle he in control regarding alcohol he would made decisions what and how much Walters, Pa. consume. Accord Commonwealth v. (1968) A.2d 757 seriously (although appellant at the of the intoxicated time stabbing, appellant’s for murder will not be lowered to conviction course, homicide). voluntary Of whether Eric’s decisions on the negligent evening death to have is a matter of his will be found been Congini Under in the trial court remand. determination se, decision, they per appellees negligent are because alco- furnished remand, Upon questions to the cause Eric’s hol to Eric Herr. as fact, questions death trier of and these will will be considered surrounding undoubtedly involve review of all circumstances large quantity Eric Herr such a of alcohol in a which consumed relatively period short of time. further, appellees duty breached this of care. Given *10 this, the cannot appellees employ assumption an of the risk analysis to defeat an the plaintiffs prima element of facie case which is established at the outset as a matter of law.3
Finally, we must address appellants’ claim that the trial in entering court erred summary judgment favor the appellees brought as to the claim under the following (Second) section of the RESTATEMENT OF TORTS: If the actor knows or has reason to know that his by conduct, innocent, whether tortious or he has caused such bodily harm to another as to make him helpless and in harm, danger of further the actor is under a to duty exercise prevent reasonable care to such further harm. (Second) RESTATEMENT OF TORTS 322. The appel- § Bigan, Yania v. rely again upon lants 397 Pa. 155 A.2d (1959), 343 wherein it alleged should liability lie because Bigan the defendant had steps failed to take to rescue Yania from Supreme the water. The Court stated:
The mere fact that Bigan saw
in a
position
peril
Yania
in the
imposed
water
him no
upon
legal, although a
moral, obligation
go
or
to
to his
duty
Bigan
rescue unless
arguments
by
appellees
3. Much of the
advanced
with reference to
assumption
theory
undoubtedly
their
of the risk
will
be relevant
during
alleged
the determination of the issue of Eric Herr's
contrib-
utory negligence upon
precedent
remand of this matter. There is
jurisdiction
support
this
viability, despite
the continued
the enact-
Comparative Negligence
ment of
despite
recognition
Act and
defense,
arguments
of forceful
for the abolition of the
of what has
assumption
opposed
been termed the "defense of
of the risk” as
to the
duty” theory
"no
assumption
employed
Roll, Inc.,
of the risk which has been
appellees
in the instant case. In Berman v. Radnor
(1988), panel
of this Court stated
care,
that even
duty
may
if a defendant owed a
of reasonable
he
"
duty
plaintiff
relieved of
‘fully
where the
understands’ the
risk,
it,
specific
‘voluntarily chooses’ to encounter
‘under circum-
”,
willingness
accept
stances that
assuming
manifest a
it’
thus
Id.,
Pa.Superior
(citations
risk.
Ct. at
Affirmed Jurisdic- Opinion. this consistent with proceedings further relinquished. tion is ELLIOTT, McEWEN, and
CAVANAUGH, FORD OLSZEWSKI, JJ., joined. opinion joined by SOLE, J., dissenting files a
DEL HUDOCK, JJ. ROWLEY, and JOHNSON SOLE, Judge, dissenting: DEL no cause of that conclusion agree majority’s I with case. present in the battery for action can be established negligent found Also, may that be agree persons I the doctrine enunciated minor under furnishing alcohol to a 157, Pa. 504 Company, Portersville Valve Congini v. However, Appel not (1983). agree I can A.2d 515 470 Herr, Eric because alcohol to providing negligent lees are drinking place, took excessive not a minor when his he was birthday. twenty-first day on before determine, Section 322 of for the trier of fact to 4. It will remain TORTS, (Second) care what was reasonable OF the RESTATEMENT under the circumstances was a breach whether there of this by appellees herein. duty care of that of reasonable
179 I realize according popular usage, While an indi- not age vidual is considered to be twenty-one years of until twenty-first his or her is birthday, “It well at established common law that one deemed attain given age is to to on birthday.” before his 466 day Kephart, v. Pa. Firing 560, 833, A.2d (1976), 353 n. 5 836 citing, Daly, Gerson (1940); 11 337 Pa. A.2d 148 Howe, Commonwealth v. 35 554 Pennsylvania in- statutes negligence volved se establishing per for the service of intoxicating liquors to minors no express criteria for deter- mining person when age years. attains twenty-one that, It is well our change established in case law “A from presumed; the common law be it cannot must appear meant, will have been or it be held not to have made.” been Lithograph Co., Central v. Eatmor Co. Chocolate Pa. A. (1935). Therefore, the common law rule must apply determining person when a twenty-one years old purposes these statutes.
The Pennsylvania Supreme Court recently reaffirmed application Stout, In Common Law Rule. In Re: (1989) Pa. Court faced question with the of whether Madame Justice Stout would required V, 16(b) retire under Article the Consti- tution Commonwealth. While the court deter- mining whether there a difference between appointed *12 judges retirement, or purposes elected for the of mandatory the court stated as follows: the
Reading
provisions in
related
connection
one
with
we
another
conclude their proper meaning was that a
of
Pennsylvania
member
the
judiciary reaches his
her
seventieth year, according to
rule of
the
the Common
Law,
is on
day
date, (See
that
the
before
her
his or
birth
Gerson
Pa. 346 11
Daly,
(1940))
A.2d 148
that
and
jurist
when a
the age
seventy
reaches
of
or her
years his
expires.
term
In the instant Therefore the birthday. Eric Herr’s day preceding adult, an controlling, and Eric Herr was rule is common law at the twenty-one years age,” not “less than and was to him. alcohol supplied defendants time intent is the legislative that majority agree I with construction, and that are bound we statutory polestar not intend a result Assembly did that the General presume execution or unreasonable. absurd, impossible is that that the drafters of However, presume must also we law, if of the common and were aware question statutes it, so from have derogate they would intended they specified. that the trial support seeks to its view majority if this court stating that holding improper by
court’s Rule, liquor then a store or Law to follow the Common were day on the before sold alcohol to an individual tavern which not be violation birthday, would twenty-first at (Majority Opinion minors. sales to prohibiting statute unreasonable 173) analysis this would be I fail to see how Pennsylvania Court of the fact that the light day age officers attain their that judicial has determined person’s date of their birth. On anniversary before twenty- their person beginning birthday twenty-first unreasonable, Therefore, as it is not of life. year second on alcohol purchase to allow to suggest, would Majority the cus- birthday. While twenty-first their day before day, on that liquor licensees will not serve tom be that may doing so. of a crime have been convicted they never in Common- position affirmed this recently This court 561 A.2d Iafrate, wealth v. tried in entitled to be he was Appellant claimed Iafrate day the crime the Court, he committed Juvenile because a “child.” legally eighteenth birthday, his before pur- statute stated Pennsylvania The relevant Court, person a child was a of trial Juvenile poses Appellant held that because eighteen years age. We eighteenth birth- the day preceding committed the crime
181 adult, he deemed to be an and should day, was be tried as an adult. attempts distinguish
The the majority’s present case The unavailing. from are states that there majority Iafrate is, usage “no common and an accepted regarding when age eighteen individual the specific attain[s] 174) of the Juvenile Act” purposes Opinion at (Majority is patently This The or popular unreasonable. common given of when a understanding person age attains a does change age specified competency not because than eighteen, rather twenty-one. and in Iafrate, the relevant
In the instant were ages terms, in similar “less expressed than and years age,” years age,” “under respectively, neither statute determining person stated the criteria for when reaches given age. we, As we stated Iafrate, as an interme- appellate court, change diate can not decide to established precedent. only It is Supreme Court Pennsylvania and the General Assembly which may overturn estab- lished rule for computing age for the purpose given of a statute.
Since it is clear that Eric Herr an adult at the time he supplied beverages, with alcoholic I would hold that the defendants can not be liable as social hosts rationale of Klein v. Raysinger, supra.
I Appellants’ further claim reject that a cause of action negligence is set forth allegations that appellees urged challenged Eric Herr consume the alcohol which ultimately caused his death. only authority relied for this action is Yania v. cause of Bigan, 397 Pa. (1959), A.2d 343 where an adult coal strip-mining operator jumped had into a water-filled trench at mining site and died had as a result. It alleged wrongful death followed, and survivor Bigan, action that that the defendant by the employment verbal coercion caused such a mental on impact the decedent that he lost his freedom of choice and under a compulsion, to his jumped death. The held Court that such alleged conduct would not constitute *14 in posses- when directed to an adult negligence actionable also that of all mental faculties. Court stated sion his years “had a child tender or a if the decedent been of deficient then it is conceivable that taunt- mentally person if negligence enticement could constitute actionable ing and it resulted harm.” cited from Yania language to extend the unwilling
I am a action for the “chal- Appellees’ alleged to find cause of Moreover, in the it is clear conduct” case. lenging present years Eric not a child of tender not Herr was he did suffer from mental mentally deficient not Herr contrary, or mental disease. On the Eric retardation college he year Although a old student. twenty-one intoxicated at the time the other students may have been whiskey, him to drink we have held challenged a bottle adult, it is the visibly that even in the case intoxicated than the of alcohol that is consumption furnishing rather occurrence. Orner subsequent proximate any cause Mallick, A.2d supra, Pa. at 521. in the court’s to Finally, I find no error trial decision on the judgment Appellees enter in favor of the summary (Second) under the RESTATEMENT OF brought claim states: TORTS 322. This section § If the knows or has reason to know that actor conduct, innocent, he has tortious or caused such whether helpless to him and in bodily harm to another as make harm, under to danger duty of further the actor is prevent exercise reasonable care to further harm. Yania, This section of the Restatement was addressed in decision, supra, at 155 A.2d In that Pa. 343. duty help court had no Mr. noted that defendant responsible Yania legally unless the defendant were If, however, he position. placing perilous victim the position in a then voluntarily placed danger, himself there no one blame but himself. time,
Because Eric Herr was an adult at the
the other
him in a
responsible
placing
students were not
legally
situation,
dangerous
which was
this case his state of
Rather,
Orner,
inebriation.
supreme
our
court held
that,
guest
“the adult
who drank more than he should
answered
to himself
alone
and to all others for whatever
injury
acceptance
followed his
Orner,
intoxicants.”
su-
pra,
Accordingly, find no merit any of Appellants’ claims, I dissent and would affirm the judgment of the trial court. ROWLEY,
Joined by HUDOCK, JOHNSON and JJ.
M.C., Appellant, (Two Cases) R.W., Appellee.
Superior Pennsylvania. Court of
Argued Aug. 1990. Sept. Filed