Manal KIRIAKOS v. Brandon PHILLIPS. Nancy Dankos, et al. v. Linda Stapf.
Nos. 20, Sept. Term, 2015, 55, Sept. Term, 2015.
Court of Appeals of Maryland.
July 5, 2016.
139 A.3d 1006
Adam P. Janet, Jason B. Penn (Janet, Jenner & Suggs, LLC, Baltimore, MD), on brief, for Petitioner in No. 20, Sept. Term, 2015.
Charles E. Wilson, III (Sherry A. Ballard, Wilson Forte, LLP, Hagerstown, MD), on brief, for Respondent in No. 20, Sept. Term, 2015.
Timothy F. Maloney (Matthew M. Bryant, Alyse L. Prawde, Joseph, Greenwald & Laake, P.A. of Greenbelt, MD), on brief in No. 55, Sept. Term, 2015.
Clifford A. Robinson (Lauren S. Capelle, H. Barritt Peterson, Jr. & Associates of Towson, MD), on brief in No. 55, Sept. Term, 2015.
Steven J. Kelly, Esq., Christopher J. Mincher, Esq., Silverman, Thompson, Slutkin
Argued before BARBERA, C.J., BATTAGLIA*, GREENE, ADKINS, MCDONALD, GLENN T. HARRELL, JR. (Retired, Specially Assigned), and ALAN M. WILNER (Retired, Specially Assigned), JJ.
ADKINS, J.
Although young people “are close to a lifelong peak of physical health, strength, and mental capacity,”1 they are still developing in profound ways suggesting that they, in contrast to adults, are not capable of handling the more dangerous elements this world offers. See Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85
Notre Dame L. Rev. 89, 100 (2009) (“[B]y the early 2000s neuroscience supported the notion that teen brains are structurally and functionally different from those of both children and adults.“). Prominent among these dangers, and front and center in these cases, is alcohol. Today we address to what extent adults who allow underage persons to drink alcohol on their property—in violation of
The harm that alcohol poses to youths is pernicious, pervasive, and deadly2 especially when motor vehicles are involved. See H.B. 299, Fiscal & Policy Note, 2009
Maryland established the minimum drinking age of 21 in 1982. See
The General Assembly targeted adults in the fight to protect youths from alcohol when, in 1996, it enacted
It is against this backdrop that we confront two cases with the dangerous common denominator of underage people drinking alcohol on an adult‘s property, and then leaving that property in a motor vehicle. With respect to both cases, the facts are as alleged by the Petitioners in their complaints, or in the Kiriakos case, in the Motion For Summary Judgment, Opposition, or attachments thereto. In both cases, the consumption of alcohol was done with the knowledge and consent of the adult property owner.
FACTS AND LEGAL PROCEEDINGS
Case No. 55: Dankos
17-year-old Steven Dankos (“Steven“) became intoxicated during a party at Linda Stapf‘s house on the evening of
November
When Stapf first came home during the party, she found a large crowd at her house.7 Stapf told her son Kevin that some people would have to leave, but she permitted him and some others to continue partying in the garage. Although Stapf knew some (like Kevin) were under 21 and some under 18, she allowed them to keep drinking.
During the party, Stapf sat in the kitchen near the garage and played solitaire. Alcohol was kept in the garage and made available to all guests. At least four times, she entered the garage to observe the goings-on. Although Stapf asked them to turn down the music, she did not ask or tell them to limit or stop drinking.
When Kelsey Erdman (“Kelsey“) approached Stapf in the kitchen to express her concerns about her brother driving while intoxicated, Stapf did nothing. Stapf did not tell Kelsey to drive Erdman home, nor call Erdman‘s parents, nor even check on his condition. Stapf also did not attempt to prevent any intoxicated guests from driving off her premises.
Erdman crashed shortly after leaving the party. Steven, who rode in the truck bed, was ejected and killed.8 The State charged Stapf with violating
In May 2013, Nancy Dankos, Steven‘s mother, filed an amended complaint (“Amended Complaint“), alleging various
claims against Stapf that sounded in negligence: common law social host liability; breach of duties arising out of Maryland criminal law statutes;10 breach of a duty to act;11 a wrongful death claim; and a survival action.9 Stapf filed a motion to dismiss for failure to state a claim, arguing principally that Dankos had failed to allege the breach of a legally cognizable duty. The Circuit Court for Howard County granted the motion in substantial part.12
Following her timely notice of appeal,13 the Court of Special Appeals affirmed. Davis v. Stapf, 224 Md.App. 393, 398, 120 A.3d 890, cert. granted sub nom. Dankos v. Stapf, 445 Md. 4, 122 A.3d 974 (2015).14 Although the intermediate appellate court concluded that Dankos properly alleged a duty, it still affirmed the dismissal for lack of proximate cause. Id. at 424-25, 120 A.3d 890. The court‘s conclusion about proximate cause was also fatal to Dankos‘s other claims of breach of a duty. Id. at 425-29, 120 A.3d 890.
Case No. 20: Kiriakos
Manal Kiriakos was walking her dogs on the sidewalk one morning when 18-year-old Shetmiyah Robinson, driving a
large sport utility vehicle, hit Kiriakos, causing her life-threatening injuries.15
The prior afternoon and evening, Robinson had been working with Brandon Phillips and another man at Phillips‘s house.16 They began drinking a bottle of vodka and some champagne around 10:00 p.m. Phillips himself mixed the vodka in Robinson‘s drink with orange juice. Phillips, age 26, knew that Robinson was 18, that Robinson had driven to Phillips‘s house and would have to drive to leave, and that Robinson had too much to drink. Because of the quantity Robinson consumed,17 Phillips told Robinson to “watch what he‘s drinking.” Phillips also offered to let Robinson sleep at his place, but said that Robinson could leave “whenever he was ready” if he “was sure that he was going to be able to drive.” Robinson decided to wait for the effects of the alcohol to wear off, and left around 4:00 or 5:00 a.m.
Robinson struck Kiriakos about one hour later. The officer who arrived at the scene detected “a strong odor” of alcohol on Robinson‘s breath. This officer also noticed that Robinson‘s eyes were bloodshot and that vomit was on his sweatshirt. Robinson consented to a preliminary breath test, which measured a BAC of .088. Based on the sobriety test, among
other things, the officer placed Robinson under arrest.18 At the precinct, Robinson consented to take a breath test, which measured a BAC of .08.
Kiriakos filed an amended complaint against multiple defendants,19 including
STANDARD OF REVIEW
We review for legal correctness a trial court‘s decision to grant a motion to dismiss for failure to state a claim. Rounds v. Md.-Nat‘l Capital Park & Planning Comm‘n, 441 Md. 621, 635-36, 109 A.3d 639 (2015). At this stage, we shall assume the truth of those facts and allegations in the complaint, and all inferences reasonably drawn therefrom. Id. at 636, 109 A.3d 639.
On appeal from the grant of summary judgment, we “independently review the record” to ascertain whether there is a genuine dispute of material fact and, “if not, whether the moving party is entitled to judgment as a matter of law.” Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007) (citation and internal quotation marks omitted). When, as here, we discern no genuine dispute of material fact,20 we must determine whether the trial court was legally correct in granting summary judgment, and accord the trial court‘s decision no deference. Id.
DISCUSSION
With respect to both cases, we hold that there exists a limited form of social host liability sounding in negligence—based on the strong public policy reflected in
Case No. 55: Dankos
We granted Dankos‘s Petition for Writ of Certiorari to address the following questions:21
- Where the Court of Special Appeals found Stapf owed a duty of care to Steven arising from her alleged violation of
CR § 10-117(b) , did it err in concluding that Petitioners couldnot, as a matter of law, establish Stapf was the proximate cause of Steven‘s injuries? - Where Petitioners alleged that a special relationship existed between the youth on Stapf‘s property and Stapf, did the Court of Special Appeals err when [it] failed to recognize a cause of action arising from this special relationship based on its conclusion that Petitioners could not, as a matter of law, establish that Stapf was a proximate cause of Steven‘s death?
Because we answer yes to the first question, we shall reverse without reaching the second question.
All of the counts in Dankos‘s complaint sounded in negligence. A plaintiff bringing a negligence claim must establish four elements: “a duty owed to him (or to a class of which he is a part), a breach of that duty, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages.” Jacques v. First Nat‘l Bank of Md., 307 Md. 527, 531, 515 A.2d 756 (1986). Dankos contends that
Duty
We have often explained that a statute or ordinance can prescribe a duty and that ““violation of the statute or ordinance is itself evidence of negligence.“” Blackburn Ltd. P‘ship v. Paul, 438 Md. 100, 111, 90 A.3d 464 (2014) (quoting Brooks v. Lewin Realty III, Inc., 378 Md. 70, 78, 835 A.2d 616 (2003)). Under this rule (“the Statute or Ordinance Rule“),23 Dankos must meet two prerequisites to establish a prima facie case in negligence: (1) show “the violation of a statute or ordinance designed to protect a specific class of persons [], and [(2)] that the violation proximately caused the injury complained of.” Id. at 112, 90 A.3d 464 (citations and internal quotation marks omitted). The Statute or Ordinance Rule is not a means to establishing negligence per se but only prima facie evidence of negligence. See id. at 126, 90 A.3d 464; Polakoff v. Turner, 385 Md. 467, 478, 869 A.2d 837 (2005); cf. W. Page Keeton et al., Prosser and Keeton on Torts § 36, at 230 (5th ed. 1984) (“A large number of courts have held that a violation is only evidence of negligence, or prima facie evidence thereof, which may be accepted or rejected according to all of the evidence.“).24
Assembly‘s concern with drinking and driving, a broad public problem. To resolve their dispute, we start with the cases discussing a doctrine we have called the Statute or Ordinance Rule—in aid of determining whether
In Brooks, 378 Md. at 78, 835 A.2d 616, the Court reviewed the history of the Statute or Ordinance Rule: “[a]lmost ninety years ago, our predecessors in Flaccomio v. Eysink, 129 Md. 367, 380 [100 A. 510] (1916), held that ‘the violation of a statute is itself sufficient to prove such a breach of duty as will sustain a private action for negligence, ... and that the true rule in such cases is that the violation is presumptive evidence of negligence.‘” (Citing cases spanning 50 years). This is a “well-settled Maryland common law rule [] long [] applied by this Court in negligence actions.” Id.
Brooks concerned a lead paint poisoning negligence action arising out of alleged violations of the Baltimore City Code, which mandated “removal of flaking, loose, or peeling paint.” Id. at 82, 835 A.2d 616. Applying the Statute or Ordinance Rule, the Brooks Court explained that the plaintiff, a boy, was “obviously within a class of persons which the Housing Code was designed to protect.” Id. at 81, 835 A.2d 616 (citing Brown v. Dermer, 357 Md. 344, 367, 744 A.2d 47 (2000)) (“Patently, by enacting §§ 702 and 703 of the Housing Code, the City Council sought to protect children from lead paint poisoning by putting landlords on notice of conditions which could enhance the risk of such injuries.“). Reasoning that because the boy‘s “injury, lead poisoning, is the kind of injury intended to be prevented by the Code,” we held that he had established a prima facie case in negligence. Id. at 89, 835 A.2d 616.
Blackburn is also instructive.25 In Blackburn, 438 Md. at 125-26, 90 A.3d 464, we held that Code of Maryland Regula-
tions (“COMAR“) 10.17.01.21—requiring fences with certain specifications be maintained around swimming pools—protected a specific class of persons, namely, children under the age of five. Although the petitioners argued that the regulatory provision did not name a specific protected class, we disagreed because COMAR incorporated a code which identified such a class: “children in the most at-risk age group, less than five (5) years of age.” Id. at 122-26, 90 A.3d 464 (emphasis omitted); see also Brooks, 378 Md. at 81, 835 A.2d 616 (“Patently, by enacting §§ 702 and 703 of the Housing Code, the City Council sought to protect children from lead paint poisoning by putting landlords on notice of conditions which could enhance the risk of such injuries.“) (quoting Brown, 357 Md. at 367, 744 A.2d 47).
In Warr v. JMGM Group, LLC, 433 Md. 170, 195-99, 70 A.3d 347 (2013), on the other hand, we held that the defendant tavern owners did not owe a duty to the plaintiffs under a criminal statute prohibiting
Relevant to this case,
(Emphasis added.) The law holds adults criminally responsible for underage drinking under specific circumstances. Like the regulation in Blackburn,
Other courts have determined that underage persons constituted a protected class in statutes similar to
In addition, Stapf points to out-of-state cases that do not give us pause because none of those cases are analogous in any meaningful way to this dispute. Coons v. Berry, 304 S.W.3d 215, 223 (Mo.Ct.App.2009) (refusing to determine whether the statute was intended to protect a class of persons because the revised statute was enacted several years after the plaintiff filed her petition and could not be applied retroactively);29 Pike v. Bugbee, 115 Conn.App. 820, 974 A.2d 743, 748-49 (2009) (refusing to impose parental liability based upon a statute because the plaintiff failed to allege that the defendant was a minor as required by the statute); Willis v. Omar, 954 A.2d 126, 132 (R.I.2008) (refusing to apply statute concerning “liquor licensees or their employees or agents” to other individuals); Farmers & Mech. Mut. Fire Ins. Co. of W. Va. v. Hutzler, 191 W.Va. 559, 447 S.E.2d 22, 24-25 (1994) (recognizing merely that the relevant statute was inapplicable to the appellants—owners of property where alcohol was served—because the statute only applied to sellers of alcohol); Canady v. McLeod, 116 N.C.App. 82, 446 S.E.2d 879, 881-82 (1994) (affirming summary judgment against the plaintiff because the plaintiff lacked evidence to satisfy the substantial certainty test to prevail under
In conclusion, we hold that
Statute or Ordinance Rule: Proximate Cause
Under the second prong of the Statute or Ordinance Rule, Dankos must show “that the violation proximately caused the injury complained of.” Blackburn, 438 Md. at 112, 90 A.3d 464 (citations and internal quotation marks omitted). To establish proximate cause in this context, Dankos must show that Steven “is within the class of persons sought to be protected [by the statute], and [that] the harm suffered is of a kind which the drafters intended the statute to prevent.” Id. (citations and internal quotation marks omitted). Dankos contends that Steven, a minor, is a member of the class that
Proximate Cause
We now consider whether she can survive the defense motion to dismiss on the issue of proximate cause. See Blackburn, 438 Md. at 126, 90 A.3d 464 (concluding, on review of motion for summary judgment, that there was a statutory duty, then noting that the plaintiff “must still produce facts that would allow a jury” to find causation). On this very contentious issue, the parties share one common view: a defendant‘s negligence is the proximate cause of a plaintiff‘s injury when the negligence is “(1) a cause in fact, and (2) a legally cognizable cause.” CR-RSC Tower I, LLC v. RSC Tower I, LLC, 429 Md. 387, 428-29, 56 A.3d 170 (2012) (quoting Pittway Corp. v. Collins, 409 Md. 218, 243-46, 973 A.2d 771 (2009)).
In Pittway, we discussed the proximate cause analysis at length. We noted that the first step, causation-in-fact, involves the determination of “who or what caused an action.” Pittway, 409 Md. at 244, 973 A.2d 771. When an injury arises from “two or more independent negligent acts,” as in this case, we apply the substantial factor test. Id. Thus we ask “if it is ‘more likely than not’ that the defendant‘s conduct was a substantial factor in producing the [plaintiff‘s] injuries.” Id. To determine what “substantial factor” means, we look to the Restatement (Second) of Torts, which we have adopted for this purpose. Id. at 244-45, 973 A.2d 771.
Under the second step, legally cognizable cause, we “consider whether the actual harm to a litigant falls within a general field [of danger] that the actor should have anticipated or expected.” Id. at 245, 973 A.2d 771. We have called legal causation “a policy-oriented doctrine” to limit liability to those instances where the actor deserves to be held liable. Id. In our consideration, we most often—but not exclusively—ask “whether the injuries were a foreseeable result of the negligent conduct.” Id. at 246, 973 A.2d 771.
The Common Law Rule in Hatfield
Stapf contends that, under Hatfield, “Maryland law is clear that the proximate cause of injury is the actor‘s decision to drink.” As Stapf reminds us, our appellate
The Court in Hatfield stated that “[h]uman beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.” Hatfield, 197 Md. at 254, 78 A.2d 754 (emphasis added). We recognize that the intoxicated person in Hatfield was, as Steven was, a minor. See Hatfield, 197 Md. at 251, 78 A.2d 754. But Hatfield was decided before the enactment of
In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54, 55, 58 (1988), the Supreme Court of Connecticut concluded that an underage person‘s consumption of alcohol at a house party did not immunize the hosts for the injuries that the underage person caused another guest. Among other things, state law criminalized furnishing alcohol to minors by social hosts. Id. at 57. This and other state laws, the court explained, constituted a “legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so.” Id. at 58. Because of this legislative framework, the Ely court distinguished the premise of the common law proximate cause rule with respect to underage persons: “The proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors.” Id. at 57 (emphasis added).
Many jurisdictions, in addition to Connecticut, agree that underage persons lack full adult capacity to handle alcohol. See Marcum, 643 S.E.2d at 89 (“While underage persons have full social and civil rights, we find the public policy of this State treats these individuals as lacking full adult capacity to make informed decisions concerning the ingestion of alcoholic beverages.“); Newsome, 710 So.2d at 185 (“The statute makes a violation of this provision a criminal offense, and is clearly designed to protect minors from the harm that could result from the consumption of alcohol or drugs by those who are too immature to appreciate the potential consequences.“); Hansen, 824 P.2d at 486 (“The Legislature believed that persons under 21 years of age are neither physically nor mentally equipped to handle the consumption of intoxicating liquor.“); DiOssi v. Maroney, 548 A.2d 1361, 1368 (Del.1988) (“The longstanding legislative restriction on the dispensing of alcoholic beverages to minors in Delaware attests to a settled public policy that minors are not deemed free agents in the decision to consume intoxicating beverages or, having done so, are not solely responsible for the harmful consequences of such overindulgence.“);33 Congini by Congini, 470 A.2d at 517 (“[O]ur legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol. . . . This legislative judgment compels a different result than Klein [v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983)], for here we are not dealing with ordinary able bodied men.“); cf. Sage, 437 N.W.2d at 584 (“A minor consumer of alcoholic beverages should not automatically be precluded from recovering damages resulting from the effects of alcohol” because such persons, “particularly those who are very young or immature, cannot be said to have been so negligent or to have assumed so much of the risk involved. . . .“).
We do not go so far as the courts reaching the bald conclusions that minors under the age of 21, as a group, are not “free agents,” or “are not legally competent to handle alcohol,” or that they “are incompetent to assimilate responsibly the effects of alcohol,” or that they “are neither physically nor mentally equipped to handle the consumption of intoxicating liquor.” We view
At least two conclusions relevant to the cases before us flow from that legislative recognition and determination. First, upon a finding that the social host defendant knowingly and willfully allowed a member of the protected class to consume alcohol on the host‘s premises in violation of the statute, in an action against the social host brought by or on behalf of the minor or, as in the Kiriakos case, by an injured third party, such conduct—if it substantially contributed to a diminution of the underaged person‘s ability to act in a reasonable manner, and thereby caused injury—can be found to be a substantial factor in bringing about the harm to the underage person himself or to a third party. See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208-09, 604 A.2d 445 (1992) (enunciating substantial-factor causation rule). This conclusion partakes both of the duty and proximate cause components of an action based on negligence. Second, contributory negligence is not a defense in an action by a protected class member against a social host defendant. That is as far as we need to go in these cases.
Other courts have ruled that a social host claim does not fail as a matter of law on the issue of proximate cause. See Estate of Hernandez by Hernandez-Wheeler, 866 P.2d at 1341 (“A minor is similar to an adult who has diminished judgment and capacity to control his alcohol consumption. . . . Nor are considerations of proximate causation a reason to conclude there is no liability as a matter of law in all cases.“); DiOssi, 548 A.2d at 1368 (determining the case on premises liability but also concluding that a minor‘s voluntary consumption of alcohol is not an intervening cause sufficient to relieve a social host of liability to a third party); Ely, 540 A.2d at 58 (“[L]ogic dictates that their [minors‘] consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.“); Longstreth, 377 N.W.2d at 813-14 (rejecting the traditional rule that the drinking of alcohol is the proximate cause of the injury); Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857, 859-61 (1985) (same), superseded by statute on other grounds, 1985 Wis. Sess. Laws 625,
We view
Causation-in-Fact
In examining causation-in-fact, we are mindful that proximate cause is ordinarily a jury question. Lashley v. Dawson, 162 Md. 549, 562, 160 A. 738 (1932) (“The true rule is that what is proximate cause of an injury is ordinarily a question for the jury.“); see also Pittway, 409 Md. at 253, 973 A.2d 771 (“It is well established that, ‘unless the facts admit of but one inference . . . the determination of proximate cause . . . is for the jury.’ “) (citation omitted).35
As we discussed, we engage here in the substantial factor inquiry that we adopted from the Restatement (Second) of Torts. See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208-09, 604 A.2d 445 (1992). The Second Restatement provides several factors that bear on the substantial factor inquiry:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor‘s conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces of which the actor is not responsible; (c) lapse of time.
Pittway, 409 Md. at 245, 973 A.2d 771 (quoting Section 433 of the Restatement (Second) of Torts (1965)).
Dankos alleged that Stapf came home to find more than a dozen cars on her property and a large crowd. When she requested that some people leave, the smaller group that Stapf permitted to remain proceeded to her garage. Entering the garage at least four times, Stapf observed guests, including underage persons, drinking throughout the evening. She knew that Steven and Erdman were intoxicated, and that they had driven to her home by car. Stapf later described Steven to the police as “not right, tired, like drunk.” Kelsey informed Stapf of her concern that Erdman would drive despite his state of intoxication. Stapf did nothing after Kelsey raised her concern, and Stapf made no attempt to prevent the intoxicated guests, including Erdman, from leaving by car. Erdman crashed his vehicle, with Steven in the truck bed, shortly after leaving Stapf‘s residence.
A jury, if it found these facts, could reasonably determine that Stapf, “created a force or series of forces which [we]re in continuous and active operation up to the time of the harm” to Steven. Pittway, 409 Md. at 245, 973 A.2d 771 (quoting Section 433 of the Restatement (Second) of Torts). In the words of Dankos‘s amended complaint, “By permitting and condoning the decedent‘s consumption of alcohol, Defendant Stapf prevented Steven Dankos from making an intelligent and informed decision about getting into a vehicle with a drunk driver, David Erdman, and riding in the bed of the truck.” A jury could reasonably conclude that it was “more likely than not” that Stapf‘s conduct was a substantial factor in causing Steven‘s death.36 Pittway, 409 Md. at 244, 973 A.2d 771.37
Legal Causation
In this step, we examine “whether the actual harm to a litigant falls within a general field that the actor should have anticipated or expected.” Pittway, 409 Md. at 245, 973 A.2d 771. In focusing on whether an actor should have anticipated or expected a harm, we concern ourselves primarily with whether the harm was foreseeable as a consequence of the actor‘s negligence. Id. at 246, 973 A.2d 771.
Rather we inquire, in a case where there are multiple alleged negligent actors, “whether a negligent defendant is relieved from liability by intervening negligent acts or omissions.” Pittway, 409 Md. at 247, 973 A.2d 771. If the intervening negligent act is unusual and extraordinary such that the original tortfeasor could not have anticipated the intervening act, then the act is a superseding cause, and the original tortfeasor may not be liable. Id. at 247, 249, 973 A.2d 771.
Taking the facts as Dankos has alleged them, we easily conclude that Erdman‘s act of driving drunk, and injuring Steven, both guests at Stapf‘s house, was foreseeable. Indeed, Stapf was told by Kelsey that she was concerned about Erdman driving after being intoxicated. Stapf knew that Steven and Erdman, among others, were drinking and became intoxicated at the party. She also knew that they had driven to the party and “could not make informed and intelligent decisions,” such as how to leave the party safely. Thus, a jury could conclude that Stapf “should have anticipated or expected” the harm that befell Steven. Pittway, 409 Md. at 245, 973 A.2d 771. Dankos has alleged sufficient facts to survive the motion to dismiss.
Contributory Negligence
For the benefit of the trial court on remand, we address whether contributory negligence is an available defense in these causes of action.38 Contributory negligence, normally a defense to negligence, is not available when a defendant
drawn carefully to limit criminal liability to a knowing and willful violation by the defendant, and we have so limited these civil causes of actions. For these reasons we conclude that negligent actions of the underage person in getting intoxicated cannot be the basis of a contributory negligence defense in an action against the person violating
In sum, Dankos may maintain her negligence claim arising out of
Case No. 20: Kiriakos
Common Law Duty
We granted Kiriakos‘s Petition for Writ of Certiorari to address the following questions:
- Assuming a duty existed, whether the acts of Phillips establish a prima facie claim of negligence under fundamental tort principles?
- Whether Maryland should recognize a narrowly tailored definition of social host liability when an adult directly provides massive amounts of alcohol to a teenager when the adult knows the teenager will soon drive?
Because we answer yes to both questions, we shall reverse.
Kiriakos sues in common law negligence, asking us to apply “traditional negligence principles,” and engage in an ordinary duty of care analysis. While acknowledging Maryland has not recognized social host liability to third persons, Kiriakos
Countering, Phillips avows: “labeling a theory that is clearly social host liability by a different name is still social host liability.” (Emphasis in original.) Relying on two decisions by the Court of Special Appeals,40 he proclaims Maryland social host liability cases are dispositive in his favor. Likewise, he views our reasoning in Warr v. JMGM Group, LLC, 433 Md. 170, 70 A.3d 347 (2013) as foreclosing Kiriakos‘s cause of action. Like Warr, Phillips maintains that the proper inquiry is whether he had a special relationship with Robinson that created a duty to control the latter‘s actions, to which he answers, resoundingly, no.
CR § 10-117(b)
We certainly do not overlook or discount our recent decision in Warr. What critically distinguishes Kiriakos‘s claim from the plaintiffs’ in Warr, however, is Robinson‘s age and the venue of his intoxication, both reflected in the strong public policy underlying
alcohol.“).45
Admittedly, the terms “knowing” and “willful” are not usually paired with negligence. But nothing prevents us from superimposing this requirement on a cause of action for social host liability sounding in negligence where an integral statute on which the negligence depends makes knowledge and willfulness pivotal for culpability. See Ghassemieh v. Schafer, 52 Md.App. 31, 40, 447 A.2d 84 (1982) (noting that “the presence of an intent to do an act does not preclude negligence” in a case involving the prank of yanking a chair out from under a person about to sit); Keeton et al., supra at § 34, at 212-13. Professor Keeton explains:
Lying between intent to do harm, which . . . includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary
negligence, there is a penumbra of what has been called “quasi-intent.” To this area the words “willful,” “wanton,” or “reckless,” are customarily applied; and sometimes, in a single sentence, all three. . . . [T]he three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit. They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. . . . They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended.
Keeton et al., supra at § 34, at 212-13 (footnotes omitted). Bearing in mind this “knowing and willful” requirement, we now turn to traditional negligence law to examine the basis from which social host liability to a third party can be formulated.
Negligent Entrustment
The doctrine of negligent entrustment, advanced by Kiriakos,46 is instructive as to whether Phillips owed Kiriakos, a third party, a duty when he enabled an underage person to consume alcohol on his property, drive away under the influence, and ultimately injure Kiriakos near a public motorway. We first applied the theory of negligent entrustment in Rounds v. Phillips, 166 Md. 151, 160-61, 170 A. 532 (1934). In Rounds, William Phillips negligently drove his parents’ car and crashed into a truck Rounds was driving. Id. at 157-58, 170 A. 532. Ruling for the plaintiff, a third party, the Court reasoned that sufficient evidence showed that Phillips‘s parents permitted him to drive their car even though they knew or should have known he was an incompetent driver. Id. at 166-67, 169, 170 A. 532.
The Rounds Court quoted Section 390 of the Restatement (First) of Torts (1934) to describe the tort of negligent entrustment as follows:
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or from facts known to him, should know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them.
Id. at 160-61, 170 A. 532 (emphasis added.) Discussing an analogy to a tort based on an “inherently dangerous instrumentality,” the Rounds Court reasoned:
There is ... a logical analogy when a potentially dangerous instrumentality is put into the hands of a reckless and incompetent operator, to be used in proximity to the traveling public. In other words, there is no analogy when the owner of an automobile permits it to be used by one not known to be incompetent and reckless, because under such
conditions it is not inherently dangerous; while on the other hand, if he loans his automobile to another who is known to the owner to be habitually reckless and operate an automobile under the influence of liquor, under such conditions the automobile, plus the incompetency of the person to whom it is entrusted, does create an inherently dangerous instrumentality.
Id. at 163, 170 A. 532. Rounds illustrates that negligent entrustment involves a duty to a third person—someone injured by the reckless driver. Citing Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003) and other cases, Phillips argues that we could only find him liable to a third party if there exists a special relationship between Phillips and Robinson or between Phillips and Kiriakos—such that Phillips had a duty to control Robinson‘s conduct.47 But Rounds shows that special relationships are not the exclusive means to justify imposition of duty to a third person.
Other courts have recognized a similarity between negligent entrustment of a car to a youth, as in Rounds,48 and the alleged circumstances before us, that is, allowing an underage person, who is likely to drive, to consume alcohol. In Estate of Hernandez by Hernandez-Wheeler v. Arizona Board of Regents, 177 Ariz. 244, 866 P.2d 1330, 1333 (1994), an underage fraternity member drove from a fraternity party where he had been drinking and caused severe injuries to another driver. The injured driver sued various defendants, including the fraternity and certain members. Id. The Supreme Court of Arizona concluded that furnishing alcohol to underage consumers “violates well-established common-law principles that recognize a duty to avoid furnishing dangerous items to those known to have diminished capacity to use them safely.” Id. at 1342. One such principle was negligent entrustment. Id. at 1340. After analyzing cases applying this and similar common law principles, the court stated: ”We perceive little difference in principle between liability for giving a car to an intoxicated youth and liability for giving drinks to a youth with a car.” Id. (emphasis added.) The point, the court emphasized, was not whether the item given a youth is “a loaded gun, a car, or alcohol,” but that the item is dangerous, and that the item is given to a “recipient [who] is known to be incompetent to receive [it].” Id. at 1340-41. See also Huston v. Konieczny, 52 Ohio St. 3d 214, 556 N.E.2d 505, 509 (1990) (finding relevant, in claim arising from a drunk driving accident, that “[p]arents may incur liability when they negligently entrust their child with an instrumentality (such as a gun or car) which, because of the child‘s immaturity or lack of experience, may become a source of danger to others“).
The doctrinal underpinnings of negligent entrustment are also subsumed within a broader tort theory that is set forth in the Restatement (Third) of Torts § 19. Although
Section 19 of the Restatement (Third) of Torts instructs that “[t]he conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.” Restatement (Third) of Torts § 19 (2010).49 Comment e describes pertinent cases as those “in which the defendant‘s conduct creates or increases the probability of harm caused by third-party misconduct.”
But, Phillips argues, he cannot owe a duty to Kiriakos based on the concept of creating a risk because the Court in Warr disposed of such a theory. He points us to that portion of the Warr opinion in which the Court examined Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012). The reasoning in Barclay, which the Court in Warr approved, derived in part from Hatfield. See Warr, 433 Md. at 185 n. 11, 70 A.3d 347.53 As Phillips reasons, the application of Hatfield to the circumstances in Barclay and Warr respectively is that an employee who works until exhaustion and drives, or a patron who drinks and drives, is “responsible for his or her own torts.” See Warr, 433 Md. at 185 n. 11, 70 A.3d
Neither are we persuaded by Phillips‘s assertion that “[s]erving alcohol to another, even if the other one is 18 years old like Robinson, does not in and of itself guarantee that an injury or death will occur.” Of course, there is no guarantee of injury or death. But tort law deals with risks, not certain outcomes. Keeton et al., supra at § 31, at 169 (“Negligence is a matter of risk—that is to say, of recognizable danger of injury. It has been defined as ‘conduct which involves an unreasonably great risk of causing damage,’ or, more fully, conduct ‘which falls below the standard established by law for the protection of others against unreasonable risk of harm.‘“). Enabling an underage person to drink alcohol under these circumstances increases the risk of harm, which undergirds the tort of negligent entrustment. See Estate of Hernandez by Hernandez-Wheeler, 866 P.2d at 1340-41 (“If the recipient is known to be incompetent to receive the dangerous instrument, it is irrelevant whether it is a loaded gun, a car, or alcohol.“); Dan B. Dobbs et al., The Law of Torts § 424, at 776 (2d ed. 2011) (“[T]he injured stranger is not a participant in the intoxication, only a victim, and for that reason might seem especially worthy of protection from the host‘s negligence.“); Nat‘l Inst. on Alcohol Abuse and Alcoholism, Underage Drinking: Fact Sheet at 1 (2016), available at http://pubs.niaaa.nih.gov/publications/UnderageDrinking/Underage_Fact.pdf [https://perma.cc/UT66-KNEJ] (“Alcohol is the most widely used substance of abuse among America‘s youth, and drinking by young people poses enormous health and safety risks.“).
For the reasons stated above, we conclude that Kiriakos can maintain a limited social host cause of action against Phillips through common law tort principles, like negligent entrustment, based on the strong public policy evident in
Our decision is consonant with the classic factors we use to decide questions of duty under the common law:
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant‘s conduct and the injury suffered, the moral blame attached to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences
to the community of imposing a duty to exercise reasonable care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Ashburn v. Anne Arundel Cnty., 306 Md. 617, 627, 510 A.2d 1078 (1986) (citation omitted).55 Cf. Eisel v. Bd. of Educ. of Montgomery Cnty., 324 Md. 376, 386-94, 597 A.2d 447 (1991) (recognizing a common law duty where legislation substantially influenced the multi-factor analysis). Although foreseeability is perhaps “most important” among these factors, it alone does not justify the imposition of a duty. Ashburn, 306 Md. at 628, 510 A.2d 1078. Performing our due diligence, we discuss each factor and address some of Phillips’ arguments in that context.
(i) Foreseeability of Harm
According to recent legislative history relating to
It is alleged that Phillips served Robinson alcohol, enough so that Phillips had two conversations with him about the extent of his drinking.56 Phillips knew that Robinson, who had driven to Phillips‘s house, likely was going to be driving after their get-together, especially when Robinson declined an invitation to stay at Phillips‘s house. Robinson left about an hour after refusing the invitation, and the accident occurred another hour later. Robinson struck Kiriakos, a pedestrian, while driving under the influence. The officer at the scene smelled “a strong odor” of alcohol on Robinson‘s breath and “noticed that his eyes were bloodshot.” Robinson‘s blood alcohol content measured at .088.57
Based on these allegations, and the universally understood risk of harm that underage drunk driving poses to the traveling public, Kiriakos‘s injuries were foreseeable. We disagree with Phillips that it is a “leap” to make this conclusion.
(ii) Degree of Certainty that the Plaintiff Suffered the Injury
Robinson pleaded guilty to “causing life-threatening injuries to” Kiriakos because he drove under the influence, and he reiterated in his deposition that his actions caused her injuries. This factor favors civil liability.
(iii) Closeness of the Connection Between Defendant‘s Conduct and the Injury Suffered
This factor is like a “proximate cause element” in that “[c]onsideration is given to whether, across the universe of
The nature of the risk at issue is also relevant here. We explained in Jacques v. First National Bank of Maryland, 307 Md. 527, 537, 515 A.2d 756 (1986) that, “[a]s the magnitude of the risk increases, the requirement of privity is relaxed—thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury.” Here, where the risk is death or personal injury, a close connection between Phillips and Kiriakos is not required. This factor favors civil liability.
(iv) Moral Blame Attached to the Defendant‘s Conduct
Under this factor, our standard is not evidence of “intent to cause harm.” Eisel, 324 Md. at 390, 597 A.2d 447. Rather, we consider “the reaction of persons in general to the circumstances.” Id. at 390-91, 597 A.2d 447.
In Eisel, the Court considered whether to impose a duty on school counselors “to attempt to prevent an adolescent‘s suicide, by reasonable means, including, in [that] case, by warning the parent.”58 Id. at 385, 597 A.2d 447. In holding that the counselors had such a duty, the Court explained that legislation requiring “youth suicide prevention programs” to raise awareness about “emotional warning signs” showed “a community sense that there should be intervention based on emotional indicia of suicide.” Id. at 391, 393, 597 A.2d 447.
Here, the General Assembly has created law to hold adults responsible for underage drinking on their property because of the risks associated with underage drinking. See
Because Phillips allegedly not only permitted but facilitated Robinson‘s drinking on his property to the point of intoxication, we conclude that the general public would consider Phillips‘s conduct blameworthy. Again, this factor favors liability.
As we noted in Matthews v. Amberwood Associates Ltd. Partnership, Inc., 351 Md. 544, 570, 719 A.2d 119 (1998):
The “prophylactic” factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with the compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.
(Quoting Keeton et al., supra at § 4, at 25-26).
Examining this factor in Eisel, 324 Md. at 387, 597 A.2d 447, we noted that pertinent legislation “made it quite clear that prevention of youth suicide is an important public policy, and that local schools should be at the forefront of the prevention effort.” We concluded that a duty “to prevent suicides when [school counselors] have evidence of a suicidal intent comports with the policy underlying this Act.” Id. at 389, 597 A.2d 447.
The General Assembly‘s decision to punish adults who furnish alcohol to underage persons or otherwise tolerate it, occurred in the wake of a report to combat drunk driving, and statistics attesting to the pervasive dangers of drunk driving. It is transparent that this legislative action and the impetus for it provide a “strong incentive to prevent the occurrence of the harm” that befell a victim like Kiriakos. See Matthews, 351 Md. at 570, 719 A.2d 119 (quoting Keeton et al., supra at § 4, at 25-26); cf.
(vi) Extent of the Burden on the Defendant and Consequences to the Community of Imposing a Duty
In Eisel, the Court concluded that the risk of harm greatly outweighed the extent of the burden to the defendant. See Eisel, 324 Md. at 391-92, 597 A.2d 447. “[T]he consequence of the risk [of teenage suicide] is so great that even a relatively remote possibility of a suicide may be enough to establish duty.” Id. at 391, 597 A.2d 447. The consequences of underage drinking are great—such that the burden on Phillips of denying youths access to alcohol hardly warrants discussion.59
The conduct at issue in Warr, 433 Md. at 175, 70 A.3d 347, provides an instructive contrast. The allegations in Warr were that the tavern served alcohol to an adult who was “visibly intoxicated,” an act prohibited by law. The point at which a patron becomes “visibly intoxicated” is a point about which reasonable minds could differ. When an underage person such as Robinson steps foot on Phillips‘s property, however, reasonable minds cannot differ as to what Phillips must do in light of
This factor also favors imposition of liability.
(vii) Cost and Prevalence of Insurance for the Risk Involved
Kiriakos avers that “[t]here is affordable insurance, available to every homeowner or renter, which would protect a defendant‘s personal assets in the event the defendant injured a third party by serving alcohol to an underage person.” But Kiriakos does not point to any evidence in the record to support her assertion. In the absence of such information, will not address the seventh factor.
Reviewing the six favorable factors, we deduce that this seven-pronged test supports our conclusion that a cognizable duty was adequately alleged.
Proximate Cause
Our two-step inquiry in determining proximate cause is whether Phillips‘s negligence was a “1) a cause in fact, and 2) a legally cognizable cause” of Kiriakos‘s injuries. Pittway Corp. v. Collins, 409 Md. 218, 243-46, 973 A.2d 771 (2009). Phillips focuses his proximate cause argument on the second prong—legal causation.
Phillips contends that Kiriakos cannot establish proximate cause because the critical event was Robinson‘s decision to drink. He avers that “responsibility rests on the individual who chooses to drink.” (Quoting Wright, 131 Md. App. at 476, 749 A.2d 241 (discussing Hatfield)). This plows already plowed ground. As we have said
Causation-in-Fact
As we earlier discussed, when an injury arises from “two or more independent negligent acts,” as it does here, we apply the substantial factor test. Pittway, 409 Md. at 244, 973 A.2d 771. That is, we must determine whether “it is ‘more likely than not’ that the defendant‘s conduct was a substantial factor in producing the injuries.” Id. We earlier discussed the criteria for a substantial factor inquiry. See Restatement (Second) of Torts supra.
The police officer concluded that Robinson‘s “blood alcohol level and lack of sleep caused him to not be able to control his vehicle in a safe manner.” Robinson began drinking around eight hours earlier when Phillips provided vodka and champagne.62 Phillips admitted Robinson
Legal Causation
Legal causation is an inquiry into “whether the actual harm to a litigant falls within a general field of danger that the actor should have anticipated or expected.” Pittway, 409 Md. at 245, 973 A.2d 771. We, then, are primarily concerned with whether the harm to Kiriakos was foreseeable by Phillips. Id. at 246, 973 A.2d 771. This analysis overlaps with our inquiry into duty, supra, in which we concluded that the harm to Kiriakos from Phillips‘s conduct was foreseeable.
Here, there are multiple instances of alleged negligent conduct, including Robinson‘s negligence in driving under the influence. Our inquiry then is “whether a negligent defendant is relieved from liability by intervening negligent acts or omissions.” Id. at 247, 973 A.2d 771. If Robinson‘s intervening negligent act is unusual and extraordinary such that Phillips “could not have anticipated” the intervening act, then the act is a superseding cause, and Phillips, as the original tortfeasor, may not be liable. Id. at 247, 249, 973 A.2d 771.63 That is a jury question. See Balt. Gas & Elec. Co. v. Lane, 338 Md. 34, 52-53, 656 A.2d 307 (1995) (“This foreseeability inquiry [on the issue of intervening-superseding causation] is ordinarily a question of fact to be decided by the finder of fact.“) (citation omitted), overruled on other grounds by Balt. Gas & Elec. Co. v. Flippo, 348 Md. 680, 705, A.2d 1144 (1998).
If the evidence supported the allegations, a reasonable jury could conclude: (1) Kiriakos‘s injuries were a result of Robinson‘s drunk driving; (2) Phillips could have anticipated Robinson‘s negligent act because both Robinson‘s substantial consumption of alcohol and the likelihood of his driving were apparent to Phillips; and (3) the accident occurred within an hour after Robinson left Phillips‘s house. These conclusions, if made by the jury, would render Phillips‘s conduct a legal cause of Kiriakos‘s injuries.64
Subject to exceptions noted in the statute, adults are responsible criminally for underage drinking on their property.
Although the reasoning differs in the two cases, the public policy underlying
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE NO. 55 REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY, AND TO REMAND TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE NO. 20 REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY, AND TO REMAND TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
Notes
- Duty imposed by statute—Was Steven an intended protectee of [CR] § 10-117(b), which prohibits adult property owners from allowing minors to consume alcoholic beverages on their premises?
- Duty imposed by special relationship—Does Maryland recognize a duty of care arising from the special relationship between a parent hosting an underage drinking party on her property and a minor attendee who the parent permitted to attend and consume excessive amounts of alcohol?
Macleary v. Hines, 817 F.2d 1081, 1084 (3d Cir.1987).There is evidence from which the jury could find that Farrell‘s conduct in hosting the party contributed substantially to [the minor plaintiff] Macleary‘s consumption of alcohol to the point of impairment. There is evidence from which the jury could find that Hines [the driver] was so obviously intoxicated that a reasonable person not impaired by alcohol, would not have accepted a ride with [Hines]. The facts in evidence obviously permit an inference of causation.
Although several jurisdictions have rejected negligence claims involving underage drinking and driving, those jurisdictions did not discuss any statute like
We discussed the meaning of “willful” at length in Deibler v. State, 365 Md. 185, 195, 776 A.2d 657 (2001), in which we explained that “[m]ost [] interpretations [of willful], although not all, have requir[ed] only that the act be committed intentionally, rather than through inadvertence.” In the absence of any statutory definition for “willful,” we will apply, as did the Deibler Court, this most common interpretation. E.g., Chen v. State, 370 Md. 99, 113-14, 803 A.2d 518 (2002).
a person may not furnish an alcoholic beverage to an individual if:
(1) the person furnishing the alcoholic beverage knows that the individual is under the age of 21 years; and
(2) the alcoholic beverage is furnished for the purpose of consumption by the individual under the age of 21 years.
Biscan v. Brown, 160 S.W.3d 462, 482 (Tenn. 2005).Given that underage drinking is illegal, we have little difficulty in concluding that there is minimal social utility, if any, in providing a forum for teenagers to consume alcohol. [The adult host] argues that “kids that chose to drink would find a way to do so,” and that he should not be penalized for permitting them to do what they would inevitably do regardless of his wishes. We strongly disagree. Our view is that even if that conduct were inevitable, it must not be condoned or encouraged.
Linn v. Rand, 140 N.J. Super. 212, 356 A.2d 15, 19 (Ct. App. Div. 1976).[A] jury might well determine that a social host who serves excessive amounts of alcoholic beverages to a visibly intoxicated minor, knowing the minor was about to drive a car on the public highways, could reasonably foresee or anticipate an accident or injury as a reasonably foreseeable consequence of his negligence in serving the minor. This becomes devastatingly apparent in view of the ever-increasing incidence of serious automobile accidents resulting from drunken driving.