Cоlin A. SMITH and Al Smith, Petitioners, v. Margaret MERRITT, et al., Respondents.
No. 95-1286.
Supreme Court of Texas.
Argued April 17, 1996. Decided Feb. 28, 1997.
940 S.W.2d 602
The Texas court of appeals questioned whether Bellinger received a full hearing because the New York trial court excluded some evidence that Bellinger attempted to introduce. 914 S.W.2d at 632. However, regardless of whether that ruling was correct, it has no effect on the application of res judicata. See Statter v. Statter, 2 N.Y.2d 668, 163 N.Y.S.2d 13, 18, 143 N.E.2d 10 (1957) (holding that res judicata prohibits collateral attack on objections that could have been raised in the first action); accord Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983) (noting that the correctness of the former judgment does not affect the application of res judicata). To allow Bеllinger to challenge the New York judgment on the basis of alleged evidentiary errors during trial would constitute an impermissible collateral attack.
Bellinger failed to offer any summary judgment evidence that A.G.B.‘s interests were not adequately litigated in the New York proceeding. Thus, under New York law, Bellinger and A.G.B. were in privity in that proceeding, and the doctrine of res judicata bars the subsequent Texas suit.
We note that under Texas law, the Family Code provides a rebuttable presumption that “in a trial on the merits before a judge or jury ... the interests of the child will be adequately represented by the party bringing suit to establish parentage of the child.”
By a cross point of error, Bellinger alleges that section 160.003 of the Texas Family Code denies A.G.B. due process and equal protection under both the Texas and United States Constitutions. Bellinger‘s constitutional challenge is leveled at the Texas statute, which does not govern this case. Even were we to construe Bellinger‘s argument as attacking New York law, however, no violation of constitutional rights has occurred. A state has the right to impose reasonable parameters on suits to establish paternity. Cf. Reed v. Campbell, 476 U.S. 852, 855, 106 S.Ct. 2234, 2237, 90 L.Ed.2d 858 (1986) (declaring that the state‘s interest in orderly disposition of decedents’ estates would justify imposing requirements such as limitations on an illegitimate child who asserts inheritance rights from the father).
Our holding does not prevent a child from establishing paternity; it only prevents relitigation of pаternity when the child‘s interests were adequately pursued in a previous paternity action that resulted in a final judgment. The state has a legitimate interest in preserving the finality of final judgments. Therefore, our holding does not violate either the due process or the equal protection rights of A.G.B.
Accordingly, without hearing oral argument, we grant Purcell‘s application for writ of error, reverse the judgment of the court of appeals, and render judgment in favor of Purcell.
David B. Griffith, Robert D. Bennett, Gilmer, for petitioners.
Edward L. Merritt, Frank M. Masоn, Gregory P. Grajczyk, Longview, for respondents.
The issue in this case is whether a social host can be liable in negligence or negligence per se for injuries resulting from the host‘s provision of alcohol to a nineteen-year-old guest.1 Because the Legislature has estab-
I
Nineteen-year-old Robert Barbee hosted a party at a lake house owned by his parents, Marita and Bob Barbee, and his grandparents, Margaret and A.P. Merritt. There is no indication that the owners were present or even aware that Barbee hosted this party; however, there is evidence that the owners were aware that Barbee had previously hosted parties at the lake house.
Barbee brought two kegs of beer to the lake house and provided them to thе party guests.2 Nineteen-year-old Robert Hale and eighteen-year-old Colin Smith were two of the guests. After drinking two or three cups of beer, Hale left the party in his car with Smith as a passenger. Soon thereafter, Hale collided head-on with a truck, seriously injuring Smith. Summary judgment evidence showed that Hale may have been driving too fast on the narrow, winding, poorly lit road. A medical report revealed that Hale‘s blood alcohol concentration was .069 grams per deciliter.
Colin Smith and his father Al Smith sued Robert Barbee and the lаke house owners for Colin‘s injuries. The Smiths alleged that the defendants were negligent and negligent per se for providing Hale with alcohol in violation of liquor control laws and with knowledge that Hale would be driving. The trial court granted the owners’ and Robert Barbee‘s collective motion for summary judgment.
The court of appeals affirmed in part, holding that neither Robert Barbee nor the owners owed any common-law duty to the Smiths to prevent Hale from drinking and driving. 929 S.W.2d 456. However, the appellate court reversed in part, holding that а fact question existed concerning whether Robert Barbee was negligent per se for violating section 106.06 of the Texas Alcoholic Beverage Code (TABC), which generally prohibits the provision of alcohol to persons under twenty-one. 929 S.W.2d at 459-60;
The Smiths filed an application for writ of error with this Court, reasserting their claims that the lake house owners and Robert Barbee were liable in negligence and negligence per se. Robert Barbee also filed an application, asserting that the negligence per se cause of action against him under section 106.06 is precluded by Chapter 2 of the TABC, the “Dram Shop Act,” which provides the exclusive cause of action for serving alcohol to a person eighteen years of age or older.
II
In determining whether a cause of action in negligence exists, the threshold inquiry is whether the defendants owed the plaintiffs a legal duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Deciding whether to impose a common-law duty involves complex social and economic policy considerations. Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). This is especially true in dеciding whether to impose a duty on a social host because of the competing societal concerns and public policy issues inherent in such a decision.3 When significant and di-
Historically, an alcohol provider owed no tort duty to third persons for injuries caused by the provision of alcohol. El Chico, 732 S.W.2d at 309. The consumрtion of alcohol, rather than the provision of it, was considered to be the sole proximate cause of injury to the third person. Id. In 1987, this Court created a common-law duty owed by commercial providers of alcohol to injured third parties in El Chico. During the week that opinion was issued, the Texas Legislature superceded the newly recognized common-law duty by amending the TABC to create the Dram Shop Act. See
The purpose of the legislative enactment is clear. Chapter 2 of the TABC is entitled “Civil Liabilities for Serving Bevеrages.” That chapter “provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.”
When enacting Chapter 2, the Legislature specifically considered and rejected the inclusion of civil liability for social hosts. See CONF. COMM. REP. ON H.B. 1652, 70th Leg. (1987); Graff, 858 S.W.2d at 919. Early versions of the bill created civil causes of action against both commercial establishments and social hosts. Graff, 858 S.W.2d at 919. However, the final version of the bill, and what is currently Chapter 2, creates a statutory cause of action against commercial providers only. Id.;
This Court has previously deferred to the Legislature on social host liability. In Graff, we relied heavily on Chapter 2 of the TABC and its legislative history in declining to create a common-law tort duty for a social host who makes alcohol available to an intoxicated adult guest who will be driving. We decided that, as between social hosts and adult guests, the focus of liability to third parties should remain on the drinker. Graff, 858 S.W.2d at 921-22. Absent a special relationship between the social host and the adult guest, the host has neither superior knowledge with which to foresee harm nor a legal right to control the guest. See id. at 920; Otis Eng‘g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).
Applying our holding in Graff and the dictates of TABC Chapter 2, we conclude that the defendants in this case did not owe a common-law tort duty to the Smiths to refrain from providing alcohol to Hale. Our holding does not leave the Smiths without a remedy, however. Nothing in the TABC or the common law prevents the Smiths from asserting a claim against Hale, the individual who made the choice to drink and drive.
III
The Smiths argue that Graff is distinguishable from this case because the Graff holding concerned adult guests of a sociаl host, and the guest in this case, Robert Hale, was a statutory minor according to TABC section 106.01. Section 106.01 provides: “In this code [the TABC], ‘minor’ means a person under 21 years of age.” Section 106.06 establishes a misdemeanor offense (with certain exceptions not applicable here) for anyone who “purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor.”
Because the guest in this case, Robert Hale, was nineteen and a minor under the TABC, the Smiths urge that two theoretical underpinnings of Graff—the inability of social hosts to know the extent of alcohol consumed by their guests and their inability to control their guests’ conduct—do not apply. The Smiths contend that social hosts have no need to monitor the alcohol consumption and control the behavior of intoxicated minors because alcohol cannot be legally provided to minors. Because Hale was classified as a “minor” under the Code, the Smiths urge that the reasoning supporting non-liability for a social host who serves alcohol to an intoxicated adult driver is inapplicable.
Robert Hale was an adult at the time of the accident. The fact that he was defined as a minor solely for purposes of TABC section 106.01 is not significant in our negligence analysis.
Since 1973, the age of majority in Texas has been eighteen, except to the extent that there is a conflict with the minimum age provisions of the TABC.
We recognize that section 106.01 does statutorily return persons aged eighteen to twenty to minority status for the purpose of the penal provisions in section 106.06. Nevertheless, the legislative history of Chapter 106 makes clear that the Legislature did not intend for minor status under section 106.01 to alter adult status elsewhere in the TABC or at common law. The Legislature raised the drinking age to twenty-one only for the express purpose of avoiding “the imposition of sanctions against the state and loss of federal highway funds” for failure to comply with a federal highway funding statute.
Moreover, allowing social host liability for merely serving alcohol to a person eighteen or over—as urged by the Smiths—would create the anomalous situation where social hosts could incur civil liability for conduct that the Legislature has expressly stated is insufficient to justify civil liability for commercial prоviders. Under Chapter 2, commercial providers who serve alcohol to persons aged eighteen to twenty may incur civil liability only if “at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others.”
Considered together, Chaрter 2 and Chapter 106 of the TABC reflect the Legislature‘s deliberate decision not to create a cause of action against social hosts for serving alcohol to persons eighteen years of age and older. We will not circumvent the Legislature‘s intentions by imposing a duty upon social hosts that the Legislature itself has rejected.5
IV
The Smiths also argue that the defendants were negligent per se because they violated section 106.06 of the TABC by providing beer to the nineteen-year-old Robert Hale. The court of appeals allowed the Smiths’ cause of action for negligence per se against Barbee, finding that Smith was within both the specific class of persons protected by section 106.06 (“minors” under age twenty-one) and the general class of persons protected by the TABC as a whole (the general public). 929 S.W.2d at 459 (citing El Chico, 732 S.W.2d at 312-13). We disagree with the court of appeals and hold that section 106.06 of the TABC does not create a negligence per se cause of action when a social host provides alcohol to a person eighteen years of age or older.
Negligence per se is a common-law doctrine in which a duty is imposed based on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims. See El Chico, 732 S.W.2d at 312; Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959). However, not every penal statute creates an appropriate standard of care for civil liability purposes; therefore, a court is not required to adopt the penal statute‘s standard. Carter, 584 S.W.2d at 278; Rudes, 324 S.W.2d at 205 (“As the power of adopting or rejecting standards rests with the civil courts, we may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for our purposes.“). In determining whether a penal statute creates an appropriate standard of care, we may consider whether the adoption of such a standard would be inconsistent with legislative intent.
Section 106.06 is located in Title 4 of the TABC, entitled “Regulatory and Penal Provisions,” and provides criminal penalties6 for providing an alcoholic beverage to a person
We also find significant the Legislature‘s expressed intention to preclude Chapter 106 from serving as a basis for negligence per se. Section 2.03 clearly states that Chaptеr 2 “provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.”
Nevertheless, the Smiths contend, аnd the court of appeals reasoned, that because Chapter 2 applies only to commercial providers, it does not preclude a negligence per se cause of action against a social host. 929 S.W.2d at 460 n. 3. We disagree for several reasons. First, the exclusivity provision in section 2.03 and the legislative history of Chapter 2 make clear that the Legislature has already considered and declined to create a social host duty for serving alcohol to a person eighteen yеars of age or older. See Graff, 858 S.W.2d at 919. Second, the legislative history of section 106.01 demonstrates that the express reason for elevating the age of majority status to age twenty-one was not to prevent injury to the class of persons such as the Smiths, but rather to “avoid the imposition of sanctions against the state and loss of federal highway funds.” Act of June 6, 1985, 69th Leg., R.S., ch. 285, §§ 1, 14, 15, Tex. Gen. Laws 1323, 1328-29; Act of June 11, 1985, 69th Leg., R.S., ch. 462, §§ 2, 15, 16, Tex. Gen. Laws 1625, 1629-30; Boyd, 795 S.W.2d at 275. Third, it is inconceivable that the Legislature would desire that the combination of Chapter 106 and Chapter 2 would result in negligence per se for social hosts but not for commercial providers for serving alcohol to persons aged eighteen to twenty.
We hold that providing alcohol to a person aged eighteen to twenty, in violation of section 106.06 of the TABC, is not sufficient to establish a negligence per se cause of action against a social host.7 To hold otherwise would ignore the intent and policies of the Legislature.
V
The Smiths urge two other points of error. First, they assert that the court of appeals erred by considering the issues of ownership and control of the lake house and whether the owners knew of the party because these two issues were not raised in the defendants’ motion for summary judgment. Second, the Smiths urge that the owners of the lake house had a duty under sections 318 and 377 of the Restatement (Second) of Torts. These provisions of the Restatement concern the duties of the possessor of land upon which tortious conduct is committed. We need not reach these issues because we conclude that the defendants оwed no tort duty to the Smiths.
VI
We affirm the court of appeals’ judgment for the defendants on the negligence issue. We reverse in part the judgment of the court of appeals and render judgment that the Smiths take nothing on their negligence per se cause of action.
HECHT, Justice, joined by OWEN, Justice, concurring.
I join in the Court‘s opinion and would add only that in several other states the judiciary has deferred to the legislature to determine social host liability. See, e.g., Bankston v. Brennan, 507 So.2d 1385, 1387 (Fla. 1987) (“[W]hen the legislature has actively en-
This is true for some courts even in the absence of legislative pronouncements on issues related to social host liability. See, e.g., Boutwell v. Sullivan, 469 So.2d 526, 529 (Miss.1985) (“We are of the opinion that this question, which involves strong public policy and change of the law, should be studied comprehensivеly and addressed by the [legislature].“); D‘Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 4, 518 N.E.2d 896, 899 (1987) (“[I]f there is to be a change in [imposing liability on non-seller alcohol providers] it should come from the legislature.“); Manning v. Andy, 454 Pa. 237, 310 A.2d 75, 76 (1973)(“[W]e feel that a decision of this monumental nature is best left to the legislature.“); Ferreira v. Strack, 652 A.2d 965, 968 (R.I.1995) (“[T]he creation of new causes of action [regarding social host liability] should be left to the Legislature.” (citations omitted)).
Some courts have gone so far as to hold that a legislature‘s activity in this area preempts a common-law cause of action. E.g., Charles v. Seigfried, 165 Ill.2d 482, 209 Ill.Dec. 226, 231, 651 N.E.2d 154, 159 (1995); Holmquist v. Miller, 367 N.W.2d 468, 471 (Minn.1985); Cole v. City of Spring Lake Park, 314 N.W.2d 836, 840 (Minn.1982).
In circumstances similar to those in this case, other jurisdictions have refused to recognize a cause of action for negligence per se. The Nevada Supreme Court has reasoned:
In other contexts we have recognized that a violation of a penal statute is negligence per se. We decline to so rule in this case since to do so would subvert the apparent legislative intention. The statute before us is but one of many in the statutory scheme regulating the sale of tobacco and intoxicating liquor to minors and drunkаrds. The section immediately preceding [the statute in question] does impose a limited civil liability upon the proprietor of a saloon who sells liquor to a minor. By providing for civil liability in one section and failing to do so in the section immediately following, the legislature has made its intention clear. Accordingly, we must conclude that a violation [of the statute in question] does not impose civil liability ..., nor is such a violation negligence per se.
Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358, 360 (1969) (citations omitted); see also Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65, 70 (1976) (agreeing with the court‘s conclusions in Hamm); cf. Kube v. Kube, 193 Neb. 559, 227 N.W.2d 860 (1975) (no cause of action for violation of a federal statute that prоvided no civil remedy).