DAVID KLAR v. DAIRY FARMERS OF AMERICA, INC., A CORPORATION, AND ROGER J. WILLIAMS, AN INDIVIDUAL
No. 29 WAP 2022
IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
DECIDED: AUGUST 22, 2023
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
ARGUED: April 18, 2023; [J-14-2023]
OPINION
JUSTICE WECHT
In Pennsylvania, civil liability arising from the provision of alcohol to visibly intoxicated persons lies at an intersection of statutory and decisional law. This case calls upon us to revisit precedents that have prevailed for half a century and that impose such liability upon persons and entities licensed to engage in the commercial sale of alcohol while limiting the liability of non-licensees and “social hosts.” The lower courts applied these precedents to conclude that an organization which hosted an event at which alcohol was provided, but was not a liquor licensee, could not be held
I.
As the instant appeal arises from a grant of judgment on the pleadings, we take the relevant facts as alleged in the complaint filed by the injured party, David Klar. On August 17, 2014, Dairy Farmers of America, Inc. (“DFA“) sponsored a golf outing for its employees at Tanglewood Golf Course in Mercer County. As a condition of attendance, DFA required employees to provide a “monetary contribution to offset costs and expenses” associated with the event, which it used to pay for items such as “greens fees, food and alcohol.”1 One of DFA‘s employees, Roger Williams, made the contribution and attended the golf outing. According to Klar, DFA had reason to know that Williams was an alcoholic and that he previously had been arrested for driving under the influence of alcohol. At the event, Williams’ alcohol consumption was unsupervised, and he drank beyond the point of visible intoxication.
At about 5:45 p.m., with a blood alcohol concentration of approximately 0.23%—nearly three times the legal limit2 to drive in Pennsylvania—Williams departed the golf outing in his car. As he drove north along State Route 18, Williams encountered Klar, who was operating a motorcycle in the southbound lane. Williams swerved across the center line into Klar‘s path. The resulting collision caused Klar to suffer numerous and grievous injuries.
Klar sued both Williams and DFA, contending that they were jointly and severally liable for his injuries. Klar‘s cause of action against Williams was straightforward. As for DFA, Klar asserted that it should be held liable due to its acts of “furnishing, serving and providing Williams alcohol” when DFA “knew or should have known Williams was visibly intoxicated and/or a habitual drunkard.”3 Although Klar emphasized that DFA collected funds from its employees to pay for the event, he did not allege that DFA realized any profit from the sale of alcohol, nor that DFA intended to do so. Rather, Klar described a communal pooling of money, used collectively to purchase items to be shared among the event‘s attendees, including alcohol. DFA ultimately filed a motion for judgment on the pleadings, arguing that it could not be held liable for Klar‘s injuries because it was not a “licensee” for purposes of the Liquor Code,4 that it did not take on “licensee status” by virtue of the funds it collected to pay for the golf outing, and that it was instead merely a “social host” that was not responsible for the actions of its guest.
The trial court granted the motion and dismissed Klar‘s claims against DFA. With regard to the theory of negligence per se arising from a purported violation of Section 493(1) of the Liquor Code (“Section 493(1)” or the “Dram Shop Act“),5 the
Essentially, because DFA pooled its employees’ money to purchase alcohol that they all shared, the trial court concluded that the instant circumstance was more analogous to the hypothetical friends sharing a meal and a drink than to the unlicensed commercial sale of alcohol. This conclusion was bolstered by the “non-proportional distribution of the alcoholic beverages” at the golf outing, i.e., that there was no “relation between the amount of alcohol consumed at the event . . . and the amount to be paid in reimbursement of the cost of the alcohol.”10 That is, the alcohol was available to all of the attendees on a self-serve basis, and no one was accepting money on a per-drink basis, as one might expect from an enterprise engaged in the business of selling alcohol. In sum, the trial court reasoned:
For negligence per se under the Dram Shop Act, the Plaintiff bears the burden of showing the Defendant is either a licensee, or stepped into the shoes of a licensee. The payment of a fee in this case to [defray] the cost of the golf outing as a whole, with alcohol being only an incidental aspect of the fee which also provided for food and the golfing itself, without profit or other indicia
of commercial sale of liquor, does not satisfy the burden of the Plaintiff to meet all the elements of its cause of action.11
Apart from the theory of negligence per se derived from the asserted violation of the Dram Shop Act, the trial court further rejected any claim against DFA sounding in ordinary common-law negligence principles. On this score, the trial court reasoned that Klar‘s claim was foreclosed by this Court‘s decision in Klein v. Raysinger, which held that social hosts are not subject to liability in common-law negligence for the actions of their guests, because, “in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.”12 Because the trial court already had deemed DFA to be a social host rather than a de facto liquor licensee, and “given that no common law negligence action exists in Pennsylvania against a social host” per Klein,13 the court reasoned that Klar‘s claim was barred as a matter of law.
On Klar‘s appeal, the Superior Court affirmed.14 It agreed with the trial court‘s application of the above precedents in all material respects. In so doing, the Superior Court rejected certain arguments that Klar now reiterates before this Court. Principally, Klar emphasized that, this Court‘s decision in Manning notwithstanding, the language of the Dram Shop Act facially applies to a much broader range of persons and entities than just “licensees,” inasmuch as it prohibits “any licensee or the board,15 or any employe, servant or agent of such licensee or of the board, or any other person” from selling, furnishing, or giving alcohol to a visibly intoxicated person.16 Although DFA indisputably was not a “licensee,” Klar contended that it fell into the category of “any other person,” and thus was subject to the Dram Shop Act. As support, Klar cited the Superior Court‘s 1957 decision in Commonwealth v. Randall,17 which held that, at least in the criminal context, “any other person” includes non-licensees.
The Superior Court did not dispute Klar‘s characterization of Randall, but it emphasized that Randall was a criminal case. The instant case, like this Court‘s
As in the trial court, Klar sought to distinguish Manning on the basis that DFA collected money from its employees to pay for the alcohol at the golf outing. On Klar‘s account, this fact placed DFA outside the ambit of Manning‘s protection of non-licensees, inasmuch as Manning referred to non-licensees “who furnish intoxicants for no remuneration.”20 The Superior Court disagreed. The Superior Court reasoned that “the presence or absence of remuneration is neither relevant nor dispositive under the plain terms of Section 4-493(1): the statute clearly prohibits the selling, furnishing, or giving of liquor or beer ‘to any person visibly intoxicated.‘”21 That is, “selling” alcohol or receiving “remuneration” for it is not essential to a violation of the Dram Shop Act—“furnishing” or “giving” alcohol to a visibly intoxicated person also violates the statute, even if there is no exchange of money whatsoever. In the Superior Court‘s view, the dispositive consideration was whether DFA was a “licensee.” Because it undisputedly was not, the court concluded that DFA could not be held liable for a violation of the Dram Shop Act.
The Superior Court further rejected Klar‘s suggestion that DFA should be deemed to have assumed “licensee status” by virtue of its receipt of funds from its employees. Klar‘s sole authority for this proposition was a Court of Common Pleas decision, Hinebaugh v. Pennsylvania Snowseekers Snowmobile Club,22 in which the court concluded that a private club assumed “licensee status” by selling alcohol to its members on a per-drink basis. The Superior Court declined to follow the lead of Hinebaugh, noting that it was not bound by decisions of a Court of Common Pleas. In any event, the Superior Court explained, Hinebaugh relied upon the expansive definition of “any other person” that emanated from Randall, which was in tension with this Court‘s decision in Manning, at least in the civil context.23
Finally, the Superior Court rejected Klar‘s invocation of common-law negligence principles. Like the trial court, the Superior Court reasoned that such a claim was squarely foreclosed by this Court‘s holding in Klein that “there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.”24 Klar sought to parry this conclusion by reiterating that DFA received “remuneration” for the alcohol and, thus, was not truly a “social host.” The Superior Court opined that Klar‘s characterization was undermined by his own statement of the facts in the complaint, which described DFA as requiring the
In the Superior Court‘s view, the situation was analogous to decisions that involved the “collective purchase” of alcohol by a group, a scenario that courts have not viewed as a “sale” from one member of the group to the others. In the nineteenth-century case of Commonwealth v. Peters,26 three men split the cost of a bottle of whiskey that they proceeded to share. The Superior Court concluded that the man who made the purchase with the joint funds did not, in turn, “sell” the whiskey to the other two; rather, they all purchased it together.27 The same principle appeared almost exactly one hundred years later, in the Superior Court‘s decision in Brandjord v. Hopper.28 There, the Superior Court affirmed the dismissal of a suit against a group of individuals who purchased beer together for a tailgate party at a Philadelphia Eagles game,29 one of whom later drove drunk and caused a motor vehicle collision. The Superior Court applied this Court‘s decision in Klein to conclude that the drunk driver‘s companions were not liable for the resulting injuries by virtue of their collective purchase. Klein, the court stated, was not intended “merely to protect hosts of parties,” but rather embodied a principle that ordinary, competent adults are generally accountable for their own actions.30 The driver “chose to drink and chose to drive,” and that was the proximate cause of the injuries—not the mere fact that his friends also had chipped in to buy the beer.31
In the instant case, the Superior Court concluded that, in light of “collective purchase” decisions like Peters and Brandjord, “the presence of remuneration will not defeat the rule adopted by our Supreme Court in Klein, which holds that the conduct of a social host who furnishes alcohol to an adult is not the proximate cause of a subsequent occurrence.”32 Because Klar‘s own averments suggested that DFA collected funds only to “offset costs and expenses,” the Superior Court concluded that, under Manning and Klein, DFA was not the sort of entity upon which civil liability may be imposed, whether such liability is asserted under the Dram Shop Act or under a common-law negligence theory.
Klar petitioned this Court for review of the lower courts’ decisions. We granted allocatur on the question of whether, as a matter of law, Klar can state a viable claim against DFA.33 Because this appeal arises
II.
Although styled as a single issue, Klar‘s argument to this Court effectively divides into two claims: one premised upon the Dram Shop Act and decisions interpreting it, and one invoking common-law negligence principles. Klar‘s unifying theory is that everyone has a duty to avoid providing alcohol to visibly intoxicated individuals, regardless of one‘s status as a “licensee” under the Liquor Code. Klar emphasizes that this Court recognized such a duty, or at least suggested its existence, in a number of cases decided in the 1960s, particularly Corcoran v. McNeal36 and Jardine v. Upper Darby Lodge No. 1973, Inc.37 More recent decisions that limit the reach of potential liability were, according to Klar, wrongly decided.
In Klar‘s view, the Dram Shop Act imposes the asserted duty upon all persons, over and above common-law principles. He argues that the statute makes this clear by specifying that it applies to “any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person.”38 A “person” is defined as “a natural person, association or corporation.”39 Thus, Klar suggests, DFA is a “person” within the meaning of the Dram Shop Act. And although Klar acknowledges that a “sale” of alcohol or receipt of “remuneration” is not essential to a violation of the Dram Shop Act,40 he stresses that the statutory definition of “sale” includes “any transfer” of alcohol “for a consideration.”41 According to Klar, DFA‘s use of some portion of its employees’ pooled money to purchase alcohol means that it received consideration and, thus, that it unlawfully “sold” alcohol to the visibly intoxicated Williams.
Klar‘s assertion that DFA received “remuneration” for the provision of alcohol to its employees is also central to his argument that we should recognize a carveout from Manning‘s holding for entities that assume “licensee status” by engaging in the unlicensed sale of alcohol. As he did below, Klar supports this theory with the Court of Common Pleas’ decision in Hinebaugh.44 The purported “sale” in this case also, in Klar‘s view, distinguishes the matter from Peters and Brandjord, the “collective purchase” decisions upon which the Superior Court relied.45 Those lower court cases, according to Klar, involved group purchases of alcohol for purely social reasons. Here, Klar claims, DFA‘s motivations were not purely social, inasmuch as it also sought to advance its interests as a “commercial enterprise“—that is, to “ingratiate” itself with its employees.46
While Klar contends that his arguments about “remuneration” adequately distinguish Manning without the need to discard its holding, his attack on our decision in Klein is more direct. First, where Klein held that “social hosts” are immune from liability in common-law negligence, Klar yet again suggests that the asserted remuneration here excludes DFA from the scope of that protection. Regardless, Klar declares that ”Klein was wrongly decided.”47 We premised our holding in Klein upon the principle that competent adults are responsible for their own actions, and thus, non-licensee social hosts’ provision of alcohol to them is not the proximate cause of a subsequent injury. Klar contends that this conclusion reflects a misapprehension of proximate cause, principally because he believes that intoxication renders one incompetent to determine whether one is capable of safely consuming more alcohol.48 The responsibility to ensure that the intoxicated individual does not further indulge, according to Klar, lies with the host. Thus, Klar asserts that ”Klein should be revisited and overruled” to the extent that it would bar his recovery.49
Finally, as a matter of common-law negligence, Klar argues that this Court should recognize a duty on the part of all persons, or at least those in an employment
DFA differs with Klar in all material respects. It argues that the lower courts correctly applied existing precedent to conclude that DFA was immune from liability under both the Dram Shop Act and any common-law negligence theory. To the extent that the receipt of “remuneration” matters, DFA contends that there “was simply no remuneration” because it collected its employees’ money not for profit, but only to offset the shared expenses of the golf outing, thereby serving merely as a “pass-through” for funds paid by the attendees to the golf course and the food and beverage vendors.53 “DFA did not pay separately for the drinks, did not sell the drinks, did not receive compensation from the participants for the drinks, and did not serve the drinks.”54 This scenario, in DFA‘s view, was akin to the “collective purchase” decisions that the Superior Court cited, and did not reflect DFA‘s assumption of a de facto “licensee status.” Rather, DFA asserts, it remained a “social host” that cannot be held liable, regardless of whether the claim arises under the Dram Shop Act or under the common law of torts.
DFA suggests that, at bottom, Klar‘s argument is premised upon his assertion that our decisions addressing this area of law over the past half-century were all wrongly decided and must be summarily discarded. DFA discerns no deficiencies in our precedents, and suggests that abandoning them in favor of Klar‘s view would represent a “seismic shift” in expanding the scope of potential liability.55 Such a drastic change is particularly unwarranted, DFA argues, because the General Assembly has had ample time and opportunity to correct this Court‘s application of the law if it wished to do so. The fact that it has not made such a course correction, DFA argues, indicates that the prevailing cases were soundly decided.
We begin with the language of the Dram Shop Act and the relevant decisions that have interpreted and applied it. We then consider the viability of Klar‘s position under principles of common-law negligence. No matter which theory we apply, Klar‘s action against DFA cannot survive.
A.
Discerning the meaning of the Dram Shop Act is a question of statutory interpretation. As discussed throughout this opinion, however, we do not write upon a blank slate; the statutory language is the subject of longstanding and directly applicable precedent that has given the Dram Shop Act a particular meaning and scope. Still, as always when we interpret a statute, we begin with the text itself.56
The Dram Shop Act provides, in relevant part:
It shall be unlawful--
(1) Furnishing Liquor or Malt or Brewed Beverages to Certain Persons. For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated . . . .
As noted above, a central thrust of Klar‘s argument is that, notwithstanding the contrary holding of Manning, the Dram Shop Act‘s applicability to “any other person” must mean that a non-licensed entity such as DFA falls within its mandate. On the surface, the simplicity of this position has appeal, and we cannot say that Klar‘s interpretation is facially unreasonable. However, viewing the language in its full context, as we must,57 there are features of both Section 493(1) and other provisions in the Liquor Code that undercut Klar‘s suggested reading, and which militate against giving the phrase “any other person” its broadest possible construction.
First and foremost, the Dram Shop Act does not apply merely to “any person.” Rather, it imposes an obligation upon “any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person.”58 If the statute
The deficiencies in Klar‘s suggested interpretation become even more apparent when we consider the operative language in the broader context of the Liquor Code. The Dram Shop Act‘s wording is unique within the Liquor Code, as it is the only provision that features the precise formulation at issue, applying expressly to a list of specifically enumerated persons and entities, followed by “any other person.” By contrast, the Liquor Code contains numerous provisions that unmistakably apply to all persons, with no reference to specific members of that class. Just a few subsections below the language at issue, Section 493(4) provides that it is unlawful “[f]or any person, to hawk or peddle any liquor or malt or brewed beverages in this Commonwealth.”61 Section 491(1) makes it unlawful “[f]or any person” to sell or offer to sell liquor without a license.62 Sections 492(2) and 492(3) similarly declare it unlawful “[f]or any person” to sell malt or brewed beverages without a license, whether for on-site consumption or not.63 Section 492(1) states that it is unlawful “for any person” to manufacture malt or brewed beverages above a certain annual limit, absent a license to do so.64 This is
But if the Dram Shop Act does not apply to all persons, a question naturally arises: to whom does “any other person” refer? After all, in the same way that we cannot read the preceding list of persons and entities out of the statute, we also cannot disregard these words. The answer to that question follows from the observation that the Dram Shop Act provides a list of specific categories to which it applies—“any licensee or the board, or any employe, servant or agent of such licensee or of the board“—followed by a general category—“or any other person.” Under the doctrine of ejusdem generis (“of the same kind or class“), “where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to the persons or things of the same general kind or class as those specifically mentioned.”65 Ejusdem generis is an ideal tool for an instance such as this, where a general or “catch-all” term must be given effect, and where construing it in its broadest possible sense would run afoul of other interpretive principles. An ejusdem generis analysis suggests that, within the context of the Dram Shop Act, “any other person” encompasses persons who fall within the same general class as a “licensee,” the “board,” or an “employe, servant or agent” of a licensee or the board. All of those specifically listed persons and entities share an obvious common trait: they engage in the commercial sale of alcohol, whether through a tavern, restaurant, beer distributor, or state-run liquor store. It follows that the “other” persons mentioned immediately after these persons and entities are those who, notwithstanding their lack of a license, also engage in the business of selling alcohol.
This approach solves numerous problems posed by competing interpretations. Where Klar‘s expansive reading of “any other person” would turn the specifically listed categories into mere surplusage, our interpretation gives them each a distinct effect. But far from reading “any other person” out of the statute, our construction gives that language meaning, ensuring that it reaches any “other person” who shares the defining characteristics of those specified. It further accounts for the difference between the Dram Shop Act and the various provisions of the Liquor Code that apply generally to “any person,” thereby respecting the legislature‘s decision to treat this provision differently. And, as discussed below, it is consistent with our decision in Manning. Accordingly, we hold that “any other person,” as used in the Dram Shop Act, refers to persons and entities that fall into the same general category as a “licensee,” the “board,” or “any employe, servant or agent of such
servant or agent of such licensee or of the board“—to wit, non-licensed persons engaged in the commercial or quasi-commercial sale of alcohol, with the intent to profit thereby.66
Notably, Klar anticipates our interpretation with his alternative suggestion that DFA, by virtue of its collection of funds from its employees (and, perhaps, its receipt of “remuneration“) to pay for the golf outing, assumed a “licensee status” sufficient to justify application of the Dram Shop Act. Although we agree with Klar that this is a viable theory, for the reasons discussed below, we find that Klar‘s factual averments do not suffice to establish a basis for imposing liability upon DFA in this case. Before addressing Klar‘s argument regarding “remuneration,” however, we turn to our decision in Manning, to which much of that argument is directed.
In Manning, an employee drank beyond the point of visible intoxication at his employer‘s holiday party. A passenger in the intoxicated employee‘s vehicle, who was injured in a subsequent collision, sued the employer under the Dram Shop Act, contending that it was liable under the statute‘s “any other person” language. The trial court dismissed the complaint, finding that the employer was not the sort of entity to which Dram Shop liability may attach. The trial court noted that “there is no difficulty in finding ample case law to the effect that if one in the liquor business sells liquor to another when he is visibly intoxicated,” then he may be liable for resulting injuries.67 The question that vexed the trial court there was deciding “how far to extend the law,” because under the broadest possible reading of the Dram Shop Act, “every political picnic, every Christmas party and every other social activity will become a hazardous undertaking if the Liquor Code is applied to them.”68 Such expansive liability, the trial court reasoned, appeared to be “outside the contemplation of the legislature.”69
This Court affirmed in a brief, per curiam opinion. Albeit without substantial statutory analysis, we reasoned:
Only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties. Jardine v. Upper Darby Lodge No. 1973, 198 A.2d 550 (Pa. 1964). Appellant asks us to impose civil liability on nonlicensed persons like appellees, who furnish intoxicants for no remuneration. We decline to do so. While appellant‘s proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.70
Thus, to the extent that Klar asks us to interpret “any other person” to include all non-licensees in all circumstances, we reject his suggestion as inconsistent with Manning, and we decline to disturb Manning‘s holding in that regard. To the contrary, we conclude that Manning is entitled to significant precedential value. “The doctrine of stare decisis maintains that for purposes of certainty and stability in the law, ‘a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.‘”72 This is “a principle as old as the common law itself.”73 Without this commitment to precedent, “there would be no stability in our system of jurisprudence.”74 Of course, stare decisis is not absolute, and there are countless instances in which courts can and do break from precedent.75 But Klar does not convince us that such action is warranted here.
One particular consideration is worthy of mention in this regard. Manning will turn fifty years old this year, and over its five decades of life, the General Assembly has never amended the Dram Shop Act to extend its reach beyond the limits that Manning placed upon it, notwithstanding the legislature‘s amendment of other provisions of the Liquor Code. This state of affairs implicates a presumption that we call “legislative acquiescence,”76 a term of art for what courts have called the “special force” of stare decisis in matters of statutory construction, which follows from the fact that the legislature is
If the legislature truly sought to subject all persons in this Commonwealth to the strictures of the Dram Shop Act, regardless of whether they engage in commercial or quasi-commercial activity, then Manning reflected a drastic limitation that would have been difficult to overlook or ignore. Indeed, Manning expressly placed the proverbial ball in the General Assembly‘s court, noting that a universal expansion of potential liability was a decision of “monumental nature” that was “best left to the legislature.”80 The lawmakers did not take up our suggestion. Indeed, by our count, the General Assembly has amended the statutory section in which the Dram Shop Act appears—
Moreover, we note at this juncture our agreement with Manning‘s characterization
That said, we do not read Manning as foreclosing the possibility that liability may be imposed upon a non-licensed person who engages in the unlawful (i.e., unlicensed) sale of alcohol. This proposition closely aligns with Klar‘s alternative argument that DFA should be deemed to have assumed “licensee status,” or that it “stepped into the shoes” of a licensee.82 Our construction of “any other person,” via ejusdem generis, allows for such a theory. And while Manning refused to allow liability to be imposed upon “nonlicensed persons” who “furnish intoxicants for no remuneration,”83 that decision said nothing about persons who do furnish alcohol for remuneration.
This brings us to the centerpiece of Klar‘s argument—the suggestion that DFA, by collecting money from its employees to “offset costs and expenses”84 of the golf outing, “sold” alcohol without a license and received “remuneration” for it, thus triggering the Dram Shop Act. Before proceeding down this path, we must lay a few foundations. First, the word “remuneration” appears nowhere in the Dram Shop Act; it is a term that is relevant to this inquiry only through its use in case law, particularly Manning. Manning, moreover, did not make clear what conduct, precisely, it meant to capture with the word. Standing alone, the term “remuneration” is generally synonymous with “payment” or “compensation.”85 In this sense, any exchange of money for a good or service may constitute remuneration, even when no party seeks to profit. One who incurs substantial financial costs to host a party, for example, and receives a single dollar from an appreciative (but apparently stingy) guest may, strictly speaking, be said to have received remuneration. This is not, however, the sort of scenario that Manning envisioned. Rather, Manning drew a contrast between the persons that it exempted from liability and the typical class of potential defendants: “licensed persons engaged in the sale of intoxicants.”86
Manning, moreover, used “remuneration,” or rather its absence, as a litmus for determining whether a person is subject to the Dram Shop Act in the first place. This is significant because the “sale” of alcohol or receipt of “remuneration” is not essential to a violation of the Dram Shop Act—the statute makes it unlawful to “sell, furnish or give” alcohol to a visibly intoxicated person.87 Stated otherwise, the exchange of money is not the sine qua non of a violation of the Dram Shop Act. If a person is subject to the Dram Shop Act, then that person violates the statute by “furnishing” or “giving” alcohol to a visibly intoxicated person just as much as he or she does by “selling” the alcohol. Consider a bartender who gives free drinks to a visibly intoxicated patron—liability does not evaporate merely because the alcohol came free of charge. But bartenders are indisputably subject to the Dram Shop Act. As it concerns non-licensees, the question of whether there was a “sale” of alcohol or receipt of “remuneration” is relevant to determining whether the person is subject to the Dram Shop Act in the first place, i.e., whether the non-licensee‘s conduct placed him into the same category as licensees and the like, thereby constituting “any other person” within the meaning of the statute. Put simply, under both Manning and our reading of the statute, receiving remuneration for alcohol goes to the question of who is subject to the Dram Shop Act, not what action they took that serves as the basis for asserting liability. The specific act that would constitute a violation of the statute—including “furnishing” or “giving” alcohol—is immaterial if the actor is not subject to the statute in the first place.
Thus, we agree with Klar that a non-licensee can assume what he calls a “licensee status” by engaging in the unlawful commercial or quasi-commercial sale of alcohol. Under our interpretation, such conduct does not require a special name, but rather, by ejusdem generis, simply places the non-licensee into the category of “any other person” within the meaning of the Dram Shop Act. But Klar does not benefit from our agreement in principle, because the facts that he pleaded do not establish the sort of “remuneration” that Manning envisioned and that we conclude is necessary to subject a non-licensee to the requirements of the Dram Shop Act. Klar has never suggested that DFA collected the funds from its employees in
In effect, Klar asks us to conclude that a group of friends pitching in money to purchase a case of beer is legally indistinguishable from the operation of an unlicensed speakeasy. Under his view, a social host who collects a few dollars from his or her guests as reimbursement for the party‘s expenses is no different than a person who sets up a booth on a sidewalk to sell shots of liquor to passersby. There is a distinction, both in law and in common sense. That distinction is whether the person alleged to have violated the Dram Shop Act behaves in a manner befitting a liquor licensee, i.e., engaging in the commercial or quasi-commercial sale of alcohol, with the intent to obtain a profit.
For these reasons, the trial court was entirely correct to conclude that, in order to establish a basis for Dram Shop liability, the plaintiff must show that the defendant “is either a licensee, or stepped into the shoes of a licensee,” and that here, the absence of “profit or other indicia of commercial sale of liquor” renders the Dram Shop Act inapplicable to DFA.92 To be even more precise, we conclude that the absence of such indicia of commercial designs means that DFA does not fall into the category of a “licensee or the board, or any employe, servant or agent of such licensee or of the board,” or, by ejusdem generis, “any other person.”93 We further endorse the Superior Court‘s “collective purchase” rationale to the extent that it
In sum, we conclude that the Dram Shop Act is inapplicable to DFA. Consistent with Manning and the statutory text, the Dram Shop Act‘s applicability to “any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person” does not mean that every individual in this Commonwealth is exposed to Dram Shop liability regardless of the nature of his or her conduct. Rather, by ejusdem generis, the meaning of “any other person” is cabined by its context. The phrase refers to persons whose actions place them into the same category as the preceding entities, namely those who engage in the commercial or quasi-commercial sale of alcohol for profit. Those who do so thereby receive “remuneration” as understood in Manning. The mere pooling of money for a collective purchase of alcohol for shared consumption, absent any indicia of commercial sale or profit-seeking, does not rise to the level that implicates the Dram Shop Act.
B.
Should we conclude, as we have, that Klar is unable to resort to the Dram Shop Act in his action against DFA, he seeks recourse in the common law of negligence.95 He fares no better in that realm. At common law, Klar‘s position is foreclosed by longstanding and well-established precedent that we find no reason to disturb.
At the outset, it is worth understanding something of the history of the relationship between the Dram Shop Act and the common law. Dram shop acts, generally, are a vestige of a bygone era.96 They were a product of the temperance movement that grew throughout the nineteenth and early twentieth centuries97—the same
There are some courts in the modern era that have approved the application of ordinary negligence principles to impose civil liability upon non-licensees, or “social hosts,” without reference to a dram shop act.100 In the past, some Justices of this Court have expressed support for the proposition. In his Manning concurrence, Justice Pomeroy suggested that a non-licensee could be held liable for negligence in overserving a visibly intoxicated person who then causes an injury, adding that “no legislative enactment is required to accomplish that result; it is ordinary tort law.”101
This proposition echoed certain comments in this Court‘s decisions in Corcoran (1960) and Jardine (1964). In Corcoran, which involved an action against a tavern for injuries inflicted by a drunken customer, this Court stated that the “liability of a tavern proprietor for damage done a patron under the circumstances herein discussed does not depend on the [Dram Shop Act] or any statute.”102 Jardine, which likewise concerned a claim against a tavern for overserving a customer, included a suggestion: “The first prime requisite to de-intoxicate one who has, because of alcohol, lost control over his reflexes, judgment and sense of responsibility to others, is to stop pouring alcohol into him. This is a duty which everyone owes to society and to law entirely apart from any statute.”103
Because Corcoran and Jardine both involved actions against taverns—i.e., liquor licensees—that directly implicated the Dram Shop Act, these statements unquestionably
Thus, although some opinions of this Court throughout the 1960s and 1970s suggested the potential viability of common-law negligence claims against non-licensee social hosts, these suggestions appeared only in minority opinions and dicta. This is likely why, in our 1983 decision in Klein, we stated that the question of the common-law liability of social hosts was “in reality one of first impression in this jurisdiction.”105 The Klein Court, in a binding majority opinion, refused to extend common-law liability to social hosts.
Klein‘s analysis primarily consisted of a survey of the prevailing rules in other jurisdictions. Although a handful of courts had allowed social-host liability in common-law negligence, far more refused to impose such liability, at least where the intoxicated person was a competent adult.106 Thus, the Klein Court observed that “the great weight of authority supports the view that in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.”107 We added that this conclusion was “in accord with the recognized rule at common law.”108 The Klein Court was referring to the historical state of affairs prior to the adoption of dram shop acts around the nation, which, as discussed above, modified the common-law rule. Absent such legislative action, the common-law approach limited the liability of purveyors of alcohol.109 We made clear that “[w]e agree with this common law view,” and we consequently held that “there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.”110
Klein‘s commanding and precedential relevance to the instant case is obvious. Moreover, even if one accepts the questionable implications of Jardine‘s dictum, that statement was couched in terms of the first element of a negligence claim—a general
Klein unmistakably articulates the common-law approach to social host liability in Pennsylvania, and it places Klar‘s common-law theory in this case in obvious jeopardy. Acknowledging this, Klar seeks to distinguish Klein, like Manning before it, based upon the asserted presence of “remuneration” in this case. But for the same reasons that we found this argument lacking in the context of the Dram Shop Act, we similarly conclude that the facts averred in this case provide no basis to deviate from Klein. Anticipating this conclusion as well, Klar asks us simply to overrule Klein. We decline to do so.
Klar‘s principal objection to Klein is that he believes it to have misapplied the concept of proximate cause. Klar argues that an intoxicated person is not competent to determine whether to cease drinking, and that the responsibility to prevent such overindulgence therefore lies with the alcohol‘s provider. “It cannot be argued with a straight face,” Klar posits, “that a visibly intoxicated adult, including those who exercise poor judgment and those who are stricken with the disease of alcoholism, have the competency to determine if they can handle more alcohol without becoming a danger to others.”112 Common experience teaches otherwise. A great many people are perfectly capable of determining that they have “had a few too many,” and that they should not, for instance, drive an automobile. They need not rely wholly upon their companions to cut off their supply. Intoxication does not inexorably create a feedback loop of ever-greater intoxication. And seldom in the law does voluntary intoxication allow one to escape the consequences of one‘s own actions, or place the responsibility for that intoxication upon others. Furthermore, even allowing for the degree to which some dangerous behaviors may be compulsive for certain individuals, we do not make a habit of obligating their peers to step in on peril of ruinous liability. In short, Klar fails to provide a sufficient reason to discard Klein, which, like Manning, has provided stability and predictability to the law for decades. Klein remains the law of this Commonwealth.
We need not dwell upon Klar‘s final argument—that we should recognize a novel common-law duty of all persons, or at least all employers, to refuse to provide alcohol to visibly intoxicated persons. The effect of the proposition would be the same as the universal application of the Dram Shop Act; the ends would in this iteration be achieved through the common law rather than through statute. Moreover, it is questionable whether recognition of Klar‘s suggested duty would alleviate his Klein problem, given that Klein‘s holding was premised upon the element of proximate cause.
At all events, for reasons discussed above, the Althaus factors113 do not favor the “monumental” shift in approach that
As discussed above in the context of the Dram Shop Act, the expansion of potential civil liability to all persons in this Commonwealth who host a gathering involving alcohol would be a policy decision of vast magnitude, the consequences and costs of which would be significant, widespread, and not entirely predictable. Ordinary people do not undertake the legal duties and social obligations of liquor licensees merely by hosting a party, not even if they purchase alcohol together or reimburse each other for it. To the extent that Klar suggests that the proposed duty could be restricted to employers, and that an employment relationship imposes some increased obligation vis-à-vis the provision of alcohol, we find no common-law basis for such a distinction when neither employer nor employee are engaged in the business of selling alcohol.120 As such, we decline Klar‘s invitation to modify the common law of social host liability.
IV.
The lower courts did not err in concluding that DFA‘s act of purchasing and providing beer for the golf outing was insufficient, as a matter of law, to trigger civil liability exposure for the injuries caused by its intoxicated guest. This result is the same under both the Dram Shop Act and common-law negligence. As we did a half-century ago in Manning, we defer to the General Assembly, and remind that, if our interpretation of the Dram Shop Act is inconsistent with the legislature‘s intent, or if it wishes to supersede the approach that we apply under the common law, it may amend the statute accordingly.
The order of the Superior Court is affirmed.
Chief Justice Todd and Justices Donohue, Dougherty and Brobson join the opinion.
Justice Mundy did not participate in the decision of this matter.
Notes
Klar v. Dairy Farmers of America, Inc., 281 A.3d 299 (Pa. 2022) (per curiam).Whether the Superior Court of Pennsylvania, by extending the holdings in controlling authority, erred in holding that a non-licensed host who invites guests to an event for purposes that are not purely social, and requires those who wish to attend to pay a fee in exchange for alcohol that will be provided on a self-serve-drink all you want basis, is not liable to an innocent third party who is injured as the result of a guest who left the event and was provided alcohol while visibly intoxicated during the event?