Washington high court finds state university can be held liable for hazing death at fraternity

 A split Washington Supreme Court on Thursday found that Washington State University owed a duty to protect a freshman who died from alcohol poisoning during a fraternity hazing ritual in 2019.  You can read the opinion here and more on the story here (on the Court of Appeals decision) and here (on the Supreme Court decision).

Short article on fraternity houses and hazing

Almost a year ago I reported that the Illinois Supreme Court had granted review on a case that asked whether the officers, pledge board members of a fraternity or the fraternity itself should be liable for the death of a student who died while participating in a social event at a college fraternity.  Since then other similar incidents have been reported in other states.  

I am coming back to this topic today because I just saw that Prof. Gregory Parks (Wake Forest) has a short article in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing.

Thanks to the TortsProf blog for the link.

IL Supreme Court to decide whether fraternity should be liable for injuries to student sufferes injuries after becoming intoxicated at fraternity event

Should the officers, pledge board members of a fraternity or the fraternity itself be liable for the death of a student who becomes intoxicated, loses consciousness, and ultimately dies while participating in a social event at a college fraternity? 

The Illinois Supreme Court has agreed to decide the question as presented in a case called Bogenberger v. Pi Kappa Alpha Corporation.

Like most states, Illinois does not recognize "social host liability" in most cases, but it does recognize possible liability under a statute called the Anti-Hazing Act which recognizes possible liability when the victim is required to drink to intoxication to become a member of a club or organization.

For more details on the case and the issues presented, go to The Appellate Strategist.

California Supreme Court to decide case on possible social host liability

A few years ago I posted a series of stories on an important case in Illinois that presented the opportunity to address questions left open by past cases on the possible liability of social hosts for serving alcohol to their guests.  That case involved the question of whether the conduct of a commercial establishment that allowed people to bring their own booze should be analyzed under principles that apply to commercial establishments that sell alcohol or the principles that apply to social (non commercial) hosts who provide free alcohol.  The court avoided the question altogether by approaching the issue in a different way (one that I argued was absurd, but that is a different story you can read about here.)

The new case in California presents a mirror image of the Illinois case.  The case involves a social host who asked the guests to pay a fee to defer the costs of the alcohol.  While Illinois was dealing with a commercial host that did not sell alcohol, California is dealing with a social host who charges money to help pay for the alcohol.  Granted, the social host was not "selling" the alcohol to any individual guest, but was using the money to pay for the alcohol that was available to all the guests.

California does not recognize social host liability unless the host, licensed or not, sells alcohol. The question in  this new case is whether a "cover charge" (which in this case was $3 to $5 and which is common at college student parties) to cover the cost of the liquor, constituted a "sale of alcohol." If so, the defendant could be held liable for the wrongful death of the plaintiff's son who was killed by the drunk guest.

The Los Angeles Times has more on the story here.

UPDATE (3/23/14):  The Appellate Strategist has a more on the story here.

Simmons v Homatas and the possible liability of one who encourages another to drink and drive

I finally had a chance to read the Illinois Supreme Court’s decision in Simmons v Homatas, a case I have been following since I read the appeals court decision over a year ago. (go here, here and here).

In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own liquor, but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to drink heavily. When one of them got sick in the bathroom, employees of the establishment escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head-on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C.

The defendant argued that the plaintiffs did not have the right to a cause of action because Illinois does not recognize social host liability and, since it was not authorized to sell alcohol, it could not be held liable under the Illinois Dramshop Act either. Based on this argument, the issue for the court was essentially whether a business with no dramshop liability could be found liable for the injuries caused by a patron that the business encouraged to consume alcohol.

Given that the answer to that question would probably have to be NO unless the Court created a new view of the doctrine regarding the possible liability of someone who provides alcohol under circumstances where the Dramshop Act does not apply, the Supreme Court approached the case from a different perspective. In the process, however, it may have opened the door to stronger attacks on the doctrine that protects social hosts from liability.

The Court first reaffirmed its position that Illinois does not recognize a cause of action against a person who provides or sells alcohol to another who later harms a third party while intoxicated unless the claim is recognized under the Dramshop Act. For this reason, the defendant was correct in arguing it should not be liable for its conduct of providing alcohol to the driver. The defendant was not subject to dramshop liability because it was not a licensed seller of alcohol and it was not subject to social host liability because Illinois does not recognize that basis of liability.

If the Court was going to recognize a cause of action in this case, thus, it had to find a different way to justify it. And it did so by approaching the facts of the case from a different perspective. It held that the relevant conduct upon which the claim was based was not providing alcohol but encouraging or assisting another in tortious conduct. In fact, for this approach, the conduct of providing alcohol is irrelevant. It is the conduct of getting the car for the driver, placing the driver in the car and encouraging him to drive away that matters.

The defendant, however, had a good argument against this view too. It cited a number of cases that hold that helping someone get into his or her car and “allowing” him or her to drive away intoxicated is not enough to impose liability. In response, the Court distinguished those cases suggesting a distinction between cases where the defendant “allows” an intoxicated person to drive – in which case there is no liability - and cases where the defendant “assists” an intoxicated person – in which case there could be liability.

To support this distinction, the Court cites section 876 of the Restatement (Second) of Torts which requires that the defendant give “substantial assistance or encouragement” in committing the tort. But the Court holds that merely failing to prevent another’s tortious conduct is not enough to show “substantial assistance or encouragement.”

The Court then concludes that the allegations that the defendant directed the driver to leave the club, brought his car to him, opened the door for him and directed him to leave were enough to support a claim. I think there are serious problems with the Court’s decision in this case.

First of all, the conclusion that the case is distinguishable from the other cases discussed in the opinion is simply not persuasive. The conduct involved in this case is not any different than that of the defendants in the other cases in which the Court had failed to impose liability. (Interestingly, the Court does not mention the fact that part of the defendant's business operation depended on encouraging heavy drinking. I think this would have helped the Court's position, but it chose not to take it into account.)

Second, given the similarities in the facts of these cases, the distinction between “allowing someone to drive drunk” and “assisting someone to drive drunk” is tenuous at best. Is there really that much of a difference between helping an intoxicated person drive by taking him to his car and letting him get behind the wheel and bringing the car to him and telling him to get in it?

Finally, and most importantly, these deficiencies open the door to claims against a social host. Although the Court was clear that “social host liability” is not recognized, it was also clear that this refers only to the conduct related to providing alcohol. Assume a social host (a private person hosting a party in his home) notices a friend is drunk and disruptive and asks him to leave. Instead of arranging for transportation, the host helps the friend out to his car and encourages him to go home. Wouldn’t that satisfy the requirements set out by the court in Simmons?

I think Justice Freeman would agree with me. In a separate opinion, he essentially argued that the Court needed to clarify the distinction between “allowing” and “substantially assisting or encouraging” tortious conduct. He argued that the Court should have found that there can be liability for "assisting" but that the allegations in this case were insufficient to support it. I think the Court here felt it would be unjust to find that the plaintiff had no remedy and simply tried to find a way to justify recognizing some kind of liability. Unfortunately, in doing it, it actually may have weakened the doctrine that protects social hosts from liability.

IL Supreme Court decides case on possible liability for alcohol related injury

A few days ago, I posted a reminder that the Illinois Supreme Court was about to decide an important case on the possible liability of a commercial establishment that allowed (and encouraged) its customers to drink their own alcohol for injuries caused by patrons who later left the premises under the influence. The Court DID decide the case and it is available here. I will post my thoughts on it as soon as I get a chance to read it carefully.

Illinois Supreme Court to announce important case on Thursday; maybe?

On December 2008, I reported on what I thought was one of the most interesting cases of that year - a case called Simmons v Homatas. In that case, the Illinois Court of Appeals considered the possible liability of a third party for damages caused by a drunk driver. Typically, cases that present that issue fall into one of two categories: cases where the defendant is a commercial establishment whose liability is covered by a Dram Shop Act or cases where the defendant is a social host - a private individual who provides alcohol to someone else at home and whose conduct is evaluated under general principles of negligence. Usually, liability is imposed in the first type of case and not recognized in the second. What was interesting about Simmons was that it involved a commercial establishment that encouraged its patrons to drink alcohol while not actually selling it to them. I am writing this little note to remind you of this case today because I just heard that the Illinois Supreme Court is expected to issue its decision on the appeal on Thursday. I am very curious to see how the Court will deal with the issue. Now to refresh your memory.... In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C. The issue in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The Court of Appeals said yes. The opinion is available here. The court decided the case based on a relatively straighforward analysis of the elements of the cause of action. In the end, the question was whether the injury was a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct was facilitating the consumption of alcohol and then encouraging someone who was known to be intoxicated to drive. Once argued this way, it was easy to conclude that the injuries are a foreseeable consequence. In its petition for review before the Illinois Supreme Court, the defendant argued that "...the Appellate Court failed to recognize the need for judicial restraint when considering liability as a result of alcohol-related injuries'' and that ''[p]roviding the plaintiffs with a new remedy for alcohol-related injury when the legislature has declined to do so … puts the law into a state of flux because it forces courts to resolve these issues in a confusing and haphazard case-by-case manner.'' In other words, the defendant apparently argued that because the plaintiffs' claims are alcohol-related, any cause of action must emanate from the legislature or not at all. To this I replied on this blog by asking: "Why should the courts exercise restraint when considering alcohol related injuries? . . . There is nothing unusual about courts recognizing possible liability for damages caused by conduct related to the use of alcohol. The defendant in this case seems to be arguing that the Legislature preempted the claims by enacting the Dram Shop Act, while at the same time arguing they are not covered by the Act because, in fact, they did not serve the alcohol in question in the case. You can't have it both ways." I think the decision in this case is going to be very interesting regardless of what it decides. The Court is faced with an argument that asks for the Court to exercise judicial restraint when judicial action is not only common but a good idea. Yet, recognizing the cause of action without distinguishing the facts of the case from those typically found in a social host type case could have unintended consequences for a whole different category of possible defendants. I think the court should recognize the claim by recognizing a new category of defendants - neither a commercial host nor a social host, but something in between. Stay tuned....

Liability for allowing friend to drive drunk?

Here is a link to the disturbing story of a woman who killed a child while driving drunk a few days ago. According to the story, a 31 year old woman got drunk at a party and then drove away with seven little girls in the car. She crashed the car, took her own daughter out of the car and ran away leaving the other six girls to fend for themselves. One of them, an 11 year old, died on the side of the road. The driver had more than one and half times the legal limit in her blood stream. The torts issue arises out of the fact that reportedly, more than one person at the party confronted the woman about driving in her condition but aparently noone tried to actually stop her. The story states that one of the woman's friends told her boyfriend that she was not fit to drive. The boyfriend confronted her and when she insisted on driving, he pulled his 14-month-old boy out of the car. Obviously, the driver should be liable for her conduct. In fact, a torts claim may be the least of her worries as she will be charged with manslaughter. But should the other people in the party who knew she was drunk and intended to drive a car full of kids be liabile in tort? Usually, courts do not impose liability on social hosts for allowing friends to drive drunk, but this is so, at least in part, because it is assumed that social hosts are not experts at determining when someone is intoxicated or incapable of driving. In a case like this one, when the evidence shows those people did know enough to confront the driver, shouldn't the court allow the case to survive a motion to dismiss and give a chance to the plaintiff to bring their case before a jury? Or, should we limit the possible liability to that of the driver? According to the story, the district attorney is considering bringing criminal charges against the bystanders who did not stop the woman from driving. If their conduct is in fact a violation of a criminal statute, doesn't that provide support for a claim in tort law? On the other hand, there is this question, raised by someone else, "what if the adults at the party took away [the woman's] keys or otherwise prevented her from driving, and she turned not to be legally intoxicated, would she have a claim against them?" Go here for the disturbing details of the story (I have left out some details that make the woman's conduct even more reprehensible) and here for some commentary and links to more information. This has been an interesting year for stories related to issues of liability for alcohol related injuries. For the other stories I have discussed on this issue go here. Thanks to Prof. Jonathan Turley for this story.

Dram Shop/Social Host Liability?

I have discussed elsewhere issues related to possible liability for injuries casused by intoxicated persons, including the question of whether there should liability on social hosts. See here for a list of posts on these issues. As is widely known, most jurisdictions do not recognize a cause of action against a social host for the injuries caused by guests who leave the hosts' house intoxicated. Many courts have stated that, in part, this result is justified by the fact that social hosts are not experts at determining who is intoxicated. Should this be left to be decided on a case by case basis? Would you be inclined to impose liability on a social host who allowed the guy in the video below to drive away from their parties?

Should the person who provides beer to teenagers for a party be liable when one of the teenagers hurts another during the party?

The Washington Court of Appeals has decided an interesting case that asks whether civil liability should be imposed upon those who plan and furnish beer for a high school graduation keg party where criminal violence erupts. The appellant was the mother of a boy who died as a result of being assaulted at the party. She argued that the assault was a foreseeable result of providing unlimited beer to teenagers in a remote location without supervision. The Court, however, found that the trial court did not err in dismissing the case on summary judgment. The opinion is available here. Thanks to the Legal Profession Blog for the tip.

More on the case against BYOB club for injuries caused by intoxicated patron

Last December I reported on a decision by the Illinois Appellate Court holding that a commercial establishment could be liable for injuries caused by a patron who left the establishment under the influence of alcohol. Today, the Chicago Daily Law Bulletin reports that the establishment has filed a petition for leave to appeal at the Illinois Supreme Court. I have not read the petition itself, but according to the CDLB, the defendant is arguing that ''In this case, both the Circuit Court and the Appellate Court failed to recognize the need for judicial restraint when considering liability as a result of alcohol-related injuries'' and that ''[p]roviding the plaintiffs with a new remedy for alcohol-related injury when the legislature has declined to do so … puts the law into a state of flux because it forces courts to resolve these issues in a confusing and haphazard case-by-case manner.'' Why should the courts exercise restraint when considering alcohol related injuries? The defendant apparently is arguing that ''Because the plaintiffs' cases are undeniably alcohol-related, any cause of action . . . must emanate from the legislature or not at all.'' Why that would be so, I don't know. There is nothing unusual about courts recognizing possible liability for damages caused by conduct related to the use of alcohol. The defendant in this case seems to be arguing that the Legislature preempted the claims by enacting the Dram Shop Act, while at the same time arguing they are not covered by the Act because, in fact, they did not serve the alcohol in question in the case. You can't have it both ways. What makes this case so interesting to me is that it involves a commercial establishment that encourages its patrons to drink alcohol while not actually selling it to them. The facts and issue are also very much like those in a case of a social host. I hope the Supreme Court takes the case. I will be an interesting decision. Stay tuned.

Settlement in case re social host liability

Some time ago, I posted a comment regarding a case that imposed liability on an establishment with no liquor license for the injuries caused by someone who got drunk there. I argued that at some point the same reasoning would be used in a social host type case. Today I saw a report of another interesting development in this area of the law, although it will not set any kind of legal precedent. The Chicago Tribune is reporting that a Lake Forest (a suburb of Chicago) woman's homeowners insurance will pay $2.5 million to settle a lawsuit brought by a plaintiff who was paralyzed in a crash that occurred after an underage drinking party in her home. In this case, some teenage girls invited some friends over to their house (presumably while the parents were away). The girls provided alcohol to their guests. To go home, the plaintiff got a ride from another boy who was drunk. It is not clear from the report whether the plaintiff was drunk too. On the way, the driver lost control of the car and crashed causing the plaintiff's injuries. It is interesting that the parent here did not buy the alcohol for the teens or knew they were drinking in her home. I suppose the insurance policy somehow covers conduct by the children -- otherwise, I am sure the insurance company would have challenged coverage. Also, I wonder if the defendant argued that the plaintiff was negligent himself in deciding to get in the car in the first place -- assuming the driver was visibly intoxicated. The plaintiff also sued the kid who was driving the car. That defendant has not settled and the trial is scheduled to begin in March.

Government liability for death of someone under the influence?

In a case with facts very similar to those of Deucer v. Vecera, a case familiar to anyone using the Prosser on Torts casebook, the Illinois Appellate Court has decided that the city of Herrin, Ill. does not have immunity in a case brought by the parents of a teenager who died after the police released her even though she was clearly intoxicated. Interestingly, the Illinois Court reaches the opposite conclusion than that of the Court in Deucer. According to a report in today's Chicago Daily Law Bulletin, a police officer arrested an 18 year old around 3:30 a.m. for underage drinking. At the time, she was said to be ''incoherent'' and had a blood-alcohol level of 0.18 percent. The police detained the teenager, but later released her before someone arrived to pick her up. About 20 minutes later, the teenager was killed in a traffic accident while walking on a nearby street. The question for the court was whether the city has absolute immunity under section 4-102 of the Governmental and Governmental Employees Tort Immunity Act or whether the complaint fits within the exception for willful and wanton misconduct provided by section 2-202. Section 4-102 of the Tort Immunity Act provides, in pertinent part that "neither a local public entity nor a public employee is liable … if police protection service is provided, for failure to provide adequate police protection or service." This provision provides immunity for discretionary conduct and essentially protects the right of the government to decide how to best allocate its resources. Likewise, section 4-107 of the Tort Immunity Act provides that "neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." Section 2-202, on the other hand, provides that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." Thus, the key is whether the police officers acted in the process of executing or enforcing any law and the Court held that they did. Thus it concluded that section 2-202 applies and that the complaint created triable issues of fact concerning liability for willful and wanton acts of the police.

Liability of establishment with no liquor license for injury caused by someone who gets drunk with own booze?

The Illinois Appellate Court announced today its decision in an interesting case on the issue of liability of a third party for damages caused by a drunk driver. In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with a car driven by an 81/2 month pregnant woman. She died. John C. also died. The more interesting question in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The court says yes. First, the court concludes that "encouraging and facilitating [the driver's] drinking, ejecting him from the club, and placing him behind the wheel with the requirement that he drive his car away . . . and onto the public roadways" constitute substantial assistance under section 876 of the Restatement (liability when a person gives substantial assistance or encouragement to another knowing that the other's conduct constitutes a breach of duty). Then the court concludes that the conduct of the defendant was a proximate cause of the injuries. The proximate cause analysis is correct in my opinion. In the end, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct is facilitating the consumption of alcohol and then encouraging someone who is known to be intoxicated to drive. Once argued this way, it is easy to argue that the injuries are a foreseeable consequence. All of this, however, is just a preamble to my point here. This case could be important for something it does not talk about. At some point, someone will make the exact same argument the court uses in a case involving a social host -- friends and neighbors who do provide alcohol at their private parties. The opinion is available here.