Knight v. Rower

Annotate this Case

Knight v. Rower (98-400 & 98-485); 170 Vt. 96; 742 A.2d 1237

[Filed 29-Oct-1999]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

Nos. 98-400 & 98-485

Naomi "Sukie" Knight, Administrator of Supreme Court
the Estate of David Woodward, Naomi
"Sukie" Knight, Individually, and
Timothy N. Woodward
On Appeal from
v. Orange Superior Court

Jacob Rower, Kenneth Rower, Leslie S.
Rower, Heather Pierson, Gidget Rollins, May Term, 1999
Sally Spear, Donald Leete, Duncan Leete
and Geraldine Leete

Shireen Avis Fisher, J. (98-400)
John P. Meaker, J. (98-485)

David F. Kelley, Orleans, and John F. Evers of Langrock, Sperry and
Wool, Middlebury, for Plaintiffs-Appellants.

Duncan Frey Kilmartin of Rexford & Kilmartin, Newport, for
Defendant-Appellee Spear.

James C. Gallagher of Downs, Rachlin & Martin, PLLC, St. Johnsbury,
for Defendants-Appellees Leete.

PRESENT: Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.)(FN1) Specially Assigned.

JOHNSON, J. Plaintiffs appeal from two superior court decisions
dismissing their negligence action against defendants for failure to state
a claim upon which relief can be granted. David Woodward and Jacob Rower
visited two separate properties, one owned by defendants Duncan and
Geraldine Leete and the second owned by defendant Sally Spear. They
consumed alcohol on defendants' lands. Woodward was a passenger in Rower's
car as

they left Spear's property and Rower caused an accident. Woodward died as
a result of the crash. Plaintiffs are Woodward's mother, individually and
as the administrator of his estate, and his father. In both cases, the
court held that landowners do not owe a legal duty to individuals injured
by minors attending social gatherings on their land if the landowners are
neither present nor furnish the alcohol consumed. We affirm.

In reviewing the granting of a judgment on the pleadings pursuant to
V.R.C.P 12(c), this Court takes as true all well-pleaded factual
allegations in the nonmovant's pleadings and all reasonable inferences to
be drawn from them, and takes as false all contravening assertions in the
movant's pleadings. See Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122,
1126 (1990). We will affirm a judgment on the pleadings if the movant's
pleadings contain no allegations that, if proved, would permit recovery.
See id.

Plaintiffs allege the following events. On the date in question,
Jacob Rower was nineteen years old and David Woodward was seventeen. On
July 4, 1996, Heather Pierson purchased alcohol for Rower and Woodward.
In the afternoon of July 5th, Rower and Woodward went to a camp site on
Hall's Lake in Newbury that was owned by defendants Duncan and Geraldine
Leete, who were not there. Rower consumed alcohol and gave alcohol to
Donald Leete, age forty-five, the son of Duncan and Geraldine Leete. Jacob
Rower's car was parked in view of Donald Leete and Donald knew or should
have known that Rower intended to drive the car. Donald Leete had
previously held various parties on his parents' property at which minors
consumed alcohol. Plaintiffs also allege that Donald's parents knew that
he had held large gatherings on their property where alcohol was consumed
and that they knew that Donald regularly held a Fourth of July party where
alcohol was present. Finally, plaintiffs claim that Duncan and Geraldine
Leete knew or should have known that alcohol would be furnished to minors
at the party on July 5, 1996.

Plaintiffs do not allege that Donald had ever held a party previous to
July 5, 1996, at which minors were furnished with alcohol. They do not
allege that Donald Leete knew that

either Rower or Woodward was under the legal drinking age. Plaintiffs fail
to allege that on July 5, 1996, Donald Leete furnished any alcohol to
either Rower or Woodward. Plaintiffs do not allege that Duncan and
Geraldine Leete were present at the party, nor do they allege that the
elder Leetes provided any of the alcohol consumed there. They do not even
allege that the elder Leetes knew of the party on July 5, 1996, only that
they knew of other July Fourth parties in preceding years.

With regard to defendant Sally Spear, plaintiffs allege the following
facts. On July 5, 1996, Rower and Woodward visited a mobile home in
Newbury, Vermont occupied by Gidget Rollins, aged nineteen. The home was
owned by defendant Sally Spear, Gidget Rollins's mother. Gidget Rollins
knew or should have known that Rower and Woodward were under twenty-one.
Rower and Woodward consumed alcohol on the Spear premises. They allege
that Spear knew or should have known that her home was sometimes used by
her daughter and other minors as a place to consume alcoholic beverages.

The pleadings do not allege that Gidget Rollins invited Rower and
Woodward to come to the mobile home. They do not allege that Rollins
furnished alcohol to Rower and Woodward. They fail to allege that Rower's
car was present or visible from the Spear premises or that Rollins had any
reason to know Rower intended to drive a car. Plaintiffs do not allege
that Sally Spear was present on July 5, 1996. There is no allegation that
Spear supplied any alcohol that was consumed on the premises. Nor do they
allege that Spear had arranged the gathering in any way. Indeed, it is
not clear from the pleadings whether Spear lived in the mobile home with
her daughter or lived elsewhere. There is no allegation that Spear knew or
should have known that minors would consume alcohol on her premises on July
5, 1996, only that she should have known that minors had consumed alcohol
there "at various times."

Plaintiffs brought actions for negligent operation of a motor vehicle,
negligent entrustment, and negligent supervision against Jacob Rower, the
driver, and his parents,

Kenneth and Leslie Rower. They also include as defendants Heather Pierson,
who is alleged to have purchased alcohol for Rower and Woodward on July 4,
Gidget Rollins and Donald Leete, who were present while the alcohol was
consumed. Lastly, plaintiffs sued Sally Spear and Duncan and Geraldine
Leete, the owners of property where Rower consumed alcohol. Gidget
Rollins and Sally Spear moved for judgment on the pleadings and/or summary
judgment; Duncan and Geraldine Leete moved for judgment on the pleadings.
The trial court granted both motions for judgment on the pleadings,
holding that property owners do not owe a duty to individuals injured by
minors attending social gatherings on their property if the owners are
neither present nor furnish the alcohol consumed. Because plaintiffs never
alleged that Spear or the elder Leetes were present on July 5, 1996, or
furnished the alcohol consumed, we agree that defendant-parents were
entitled to judgment on the pleadings.

Plaintiffs propose to extend social host liability to unprecedented
reaches. Although social host liability evolved in response to the
well-documented tragedies of drunk-driving accidents, we cannot justify
expanding the meaning of "host" to encompass all property owners, at all
times, regardless of whether they were present on their property and
regardless of whether they had any opportunity for control.

The case usually cited as the origin of such a claim recognized the
potential for social host liability only in dicta. See Langle v. Kurkul,
146 Vt. 513, 510 A.2d 1301 (1986). There, William Langle attended a party
hosted by Walter Kurkul, Sr. and drank alcohol. Langle then went to Gary
Kurkul's home to swim in his pool. While the plaintiff was preparing to
dive from the railing of the pool, the railing broke and Langle fell
headfirst into the pool. The accident broke Langle's neck and left him a
quadriplegic. The plaintiff sued the Kurkuls and the parties settled all
claims except one for negligent serving of liquor. The remaining
defendant, Walter Kurkul, Sr., moved to dismiss for failure to state a
claim upon which relief can be granted under either the Dram Shop Act, or
common law negligence. The trial court granted the motion and

we affirmed. See id. at 515, 510 A.2d at 1302.

We interpreted the unambiguous language of the Dram Shop Act, 7 V.S.A.
§ 501, to provide a remedy only for third parties injured by drunk
driving, not a remedy for the drunk person against the person who served
the alcohol. See 146 Vt. at 515-16, 510 A.2d at 1303. We rejected the
holdings of some other jurisdictions that dram shop acts preempted common
law remedies, see id. at 516, 510 A.2d at 1303 (citing Cunningham v.
Brown, 174 N.E.2d 153 (Ill. 1961); Snyder v. Davenport, 323 N.W.2d 225
(Iowa 1982); and Browder v. International Fidelity Ins. Co., 321 N.W.2d 668 (Mich. 1982)).

Second, we addressed the common law negligence action and found a
social host had no duty under common law negligence to an intoxicated
adult guest in factual situations not involving drunk driving. See Langle,
146 Vt. at 517-20, 510 A.2d at 1303-04. Without compelling policy reasons
offered, we declined to impose a new duty of care on social hosts, "absent
a situation where the social host furnishes alcoholic beverages to one who
is visibly intoxicated and it is foreseeable to the host that the guest
will thereafter drive an automobile, or, where the social host furnishes
alcoholic beverages to a minor." Id. at 521, 510 A.2d at 1306. Plaintiffs
would have us extend this dictum referring to the duty of a social host to
not furnish alcohol to minors, to all property owners on whose property
minors might consume alcohol they have acquired by themselves.

The language of "furnishing" used in Langle derives from the Dram Shop
Act and, therefore, to understand the cause of action we outlined in the
dictum in Langle, we must turn to the interpretation of 7 V.S.A. § 501.
To bring the facts in the instant case within the common law cause of
action contemplated in Langle, plaintiffs would have show that defendants
(1) were social hosts who (2) "furnished" alcohol to Jacob Rower.

We need not answer the question of what is meant by "social host"
because plaintiffs' claim fails to show that defendants "furnished"
alcohol. We examined the meaning of "furnish" in Carrick v. Franchise
Associates, Inc., 164 Vt. 418, 671 A.2d 1243 (1995). There, we held

that "furnishing" as used in the Dram Shop Act "connotes possession or
control of the alcoholic beverage by the furnisher." Id. at 420, 671 A.2d
at 1244. We relied on the interpretation by several other courts that
"furnishing" requires some affirmative act or active part in the provision
of alcohol. See id. (citing Bennett v. Letterly, 141 Cal. Rptr. 682, 684
(Cal. Ct. App. 1977); Lather v. Berg, 519 N.E.2d 755, 761 (Ind. Ct. App.
1988)). See also, Alumni Ass'n v. Sullivan, 672 A.2d 1209 (Pa. 1990)
(rejecting standard of "knew or should have known" for social host
liability and requiring serving, supplying or purchasing of liquor for
liability). In Carrick itself, because the plaintiff-franchisees had
failed to allege that the defendant-franchisers ever had possession, and
failed to show that the defendants had control of the alcoholic beverages
at issue, we affirmed the trial court's grant of summary judgment. See 164
Vt. at 421, 671 A.2d at 1245.

Using this understanding of "furnishing," plaintiffs in this case must
allege that defendants had either possession or control over the alcohol
consumed by Jacob Rower. Plaintiffs have never contended that defendants
were present on the night of July 5, 1996; therefore they cannot argue,
and indeed have not argued, that defendants possessed the alcohol that
Rower consumed. They are therefore left with "control" of the alcohol to
satisfy the interpretation of "furnish."

Plaintiffs have similarly failed to allege defendants had control of
the alcohol consumed on July 5, 1996. Given that defendants were not
present, had not supplied the alcohol, nor arranged the parties, it is
difficult to see how defendants could have obtained control over the
alcohol. Plaintiffs would have us hold that control over land is the same
as control over alcohol that is consumed on that land. The most that can
be said is that defendants could have forbidden their adult children to
use the land.

Other states that have considered similar situations have required
that in addition to controlling access to land, the defendants must have
had actual control over the alcohol in some way. See Ulwick v.
DeChristopher, 582 N.E.2d 954, 957 (Mass. 1991) ("We think the factor

of control should continue to be the dominant consideration in a
[negligence action against a social host]."); Dickinson v. Edwards, 716 P.2d 814, 819 (Wash. 1986) ("The relevant inquiry [in determining
negligence] is who had the authority to deny further service of alcohol
when intoxication became apparent."). In the instant case, defendants
were not present at the time that Rower consumed his own alcohol. Cf.
Ulwick, 582 N.E.2d at 957 ("the ability effectively to control a guest's
excessive drinking is not present when the liquor belongs to the guest").
We hold that landowners are not liable for injuries caused by the
consumption of alcohol on their property where they were not present, did
not furnish the alcohol, and did not control the alcohol consumed.

II.

Plaintiffs have alleged that Spear and the Leetes negligently
entrusted real property to their adult children, Gidget Rollins and Donald
Leete. Assuming, arguendo, that ownership of real property could be
equated with control of alcohol consumed but not provided on that
property, plaintiffs must then meet the requirements of a common law
negligence claim. The elements of common law negligence are: (1)
defendants owed a legal duty to protect plaintiff from an unreasonable
risk of harm; (2) defendants breached that duty; (3) defendants' conduct
was the proximate cause of plaintiffs' injuries; and (4) plaintiffs
suffered actual damage. See Langle, 146 Vt. at 517, 510 A.2d at 1304
(citing W. Prosser and W. Keeton, The Law of Torts § 30 at 164-65 (5th ed.
1984).

Therefore, plaintiffs must first satisfactorily allege that defendants
owed them a legal duty to conform to a certain standard of conduct.
Although a duty often arises from the ability to control and therefore the
legal analysis overlaps somewhat with the analysis of "furnishing," the
analysis is not co-extensive.

The general rule is stated in § 315 of the Restatement (Second) of
Torts. "There is no duty so to control the conduct of a third person as
to prevent him from causing physical harm to another unless (a) a special
relation exists between the actor and third person . . ., or (b) a

special relation exists between the actor and the other . . . ."
Restatement (Second) of Torts § 315 (1965). Examples of the first kind of
special relation are master-servant and parent-minor child. See id. §§
316, 317. Examples of the second relation are common carriers, innkeepers,
or custodians. See id. §§ 314A, 320. Plaintiffs must therefore show that
the instant circumstances gave rise to a duty, under an exception to the
general rule that there is no duty.

To show a duty, plaintiffs cite §§ 308, 318, 319 and 379 of the
Restatement (Second) of Torts as creating a duty to protect. Plaintiffs
have not, however, alleged the necessary elements of any of the
circumstances outlined by the Restatement and therefore have not shown that
a duty existed on the part of the property owners to conform their conduct
to a certain standard.

Plaintiffs rely primarily on § 318 of the Restatement (Second) of
Torts, entitled Duty of Possessor of Lands or Chattels to Control Conduct
of Licensee. Under § 318, property ownership alone is not sufficient to
produce liability for the activities of a licensee. It reads:

If the actor permits a third person to use land or chattels in his
possession otherwise than as a servant, he is, if present, under a
duty to exercise reasonable care so to control the conduct of the
third person as to prevent him from intentionally harming others or
from so conducting himself as to create an unreasonable risk of
bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to
control the third person, and
(b) knows or should know of the necessity and opportunity
for exercising such control.

Id. § 318 (emphasis added). Liability under § 318 flows from control over
a person. Contrary to what plaintiffs assert, "presence" is central to
the principle of liability articulated in § 318. The owner's presence
when the activity occurs is a prerequisite for the owner's ability and
opportunity to exercise control over the person engaging in the activity.

In the caveat, although the drafters suggest that actual presence may
not be required in all cases, they are quick to note that the owner must
still be "in the vicinity" and "informed of the necessity and opportunity
of exercising . . . control [over the conduct of the third person]."

Id. Thus, property owners must already be in a position to exercise actual
control over a licensee's conduct before they have a legal duty to control
the licensee. To have a duty to control the activities of a licensee,
landowners must either be in a position to exert direct control over those
activities or must have so facilitated the activities of the licensee such
that they have taken on the duty. Plaintiffs have failed to allege either
of these circumstances and therefore are outside the scope of § 318.

Plaintiffs also make reference to § 308, entitled Permitting Improper
Persons to Use Things or Engage in Activities. Section 308 provides:

It is negligence to permit a third person to use a thing or to engage
in an activity which is under the control of the actor, if the actor
knows or should know that such person intends or is likely to use the
thing or to conduct himself in the activity in such a manner as to
create an unreasonable risk of harm to others.

Id. § 308 (emphasis added). Plaintiffs claim that this section is
applicable because the parent-landowners controlled their real property,
which they label "a thing" under § 308. They assert that the thing, the
land, was a location for underage drinking that created an unreasonable
risk of harm to others.

Although § 308 was intended to encompass negligent entrustment of a
car to a drunk person and thus might be relevant to plaintiffs' claim
against Rower's parents, it was explicitly intended to exclude ownership
of real property. Comment (d) directs us to § 318, rather than § 308, for
the factors determining liability for permitting another person to use
property. See id. § 308, cmt. d. Plaintiffs present no case law applying
§ 308 that would justify reading out of it a factor central to its
application. Mere ownership of property is not, as discussed above, the
same as control over the activities occurring on that property.

As for the cases applying § 318 on which plaintiffs rely, both are
consistent with the principle that control over the licensee's activities
is needed in addition to legal control over the property. See Morgan v.
Perlowski, 508 N.W.2d 724, 727-28 (Iowa 1993) (social host who was present
had duty under § 318 to take steps to exercise control over guests who
fought when host

knew of such danger and had opportunity to exercise control over them),
overruled on other grounds, Sheets v. Ritt, 581 N.W.2d 602 (1998);
Karadanis v. Newcomb, 698 P.2d 872, 874-75 (Nev. 1985) (foreman of
contracting company who directed that man-lift be installed in violation
of safety regulations and maintained it in unsafe condition could be held
personally liable under § 318 to worker who fell from lift because foreman
was partner in entity that leased property).

Plaintiffs' reliance upon employer-employee and landlord-tenant law to
show a similarity between their proposed rule and the principles governing
the duties of a property owner with respect to the activities of a
licensee is misplaced. The liability of an employer for the actions of an
employee on his property is based upon the control engendered by the
master-servant relationship, not upon the employer's ownership of the land
where the employee works. See Bradley v. H.A. Manosh Corp., 157 Vt. 477,
481, 601 A.2d 978, 981-82 (1991) (holding garage owner liable for
mechanic's off-duty negligence where owner-employer had control over
servant, knew of risk and failed to act). With respect to landlord-tenant
law, plaintiffs cite only § 379 of the Restatement (Second) of Torts as
supporting their argument. This section applies when a landlord transfers
possession of land to a tenant which he knows or should know is already in
a dangerous condition. See Restatement (Second) of Torts § 379. The basis
for liability under § 379 is control over the condition of the land, not
legal ownership of it, which is entirely consistent with the requirements
of control in §§ 308 and 318.

Furthermore, examination of the Restatement (Second) of Property
presents a different picture than that sketched by plaintiffs. Landlord
liability for real property turns on the landlord's control of the
property (or part of the property) and the landlord's knowledge of a
dangerous condition. See, e.g., Restatement (Second) of Property §17.3
(1977) (landlords leasing part of property and retaining control of part
may be subject to liability for part that they control and for conditions
of which they have knowledge). See also R. Powell, Powell on Real
Property § 16B.08 [5] (1999) (where general rule of no duty to protect does
not apply, "duty of protection exists because of the allocation of control
and the power to act as between the

parties.").

Plaintiffs have not alleged defendants had control of the alcohol on
July 5, 1996 sufficient to bring their cause of action within § 318 of the
Restatement, nor can § 308 create a duty of care where the Restatement
itself indicates it does not apply to the use of real property.

Plaintiffs also assert that defendant Spear lived with her daughter
and can be held liable under § 319 of the Restatement (Second) of Torts
because she should have known that her daughter is prone to hosting social
gatherings for underage persons where alcohol is available. Section 319
places a duty upon a person who takes charge of another to take reasonable
care to control that person from causing harm to others. See Restatement
(Second) of Torts, § 319. This section, however, covers circumstances
utterly different from the one at issue here. It applies, for example,
where the person controlled is infirm in such a way that any uncontrolled
social contact would pose a dangerous risk to others and an institution has
been charged with caring for that person. See id. § 319, illus. 1, 2
(mentioning hospitals for contagious diseases and institutions guarding
insane people). Foreign cases that have allowed recovery under § 319 have
usually involved inmates in prisons, county juvenile halls, and ex-inmates
living in halfway houses. See, e.g., Davis v. Fulton County, Ark., 884 F. Supp. 1245, 1255 (E.D. Ark. 1995) (holding deputy sheriff who granted
pretrial detainee unsupervised release from detention owed plaintiff duty
of care); C.J.W. By and Through L.W. v. Kansas, 853 P.2d 4, 10-12 (Kan.
1993) (holding state owed third parties duty of taking reasonable steps to
prevent rapes of inmates at county juvenile hall by violent and sexually
deviant juveniles). In the case of prisoners and involuntarily committed
mental patients, the institution is expected to exercise a greater degree
of control over the third person than a parent is expected to exercise
over an autonomous, adult child.

Furthermore, other jurisdictions have considered and rejected
liability under § 319 in cases involving drunk driving. See Mulvihill v.
Union Oil Co., 859 P.2d 1310, 1312 (Alaska

1993) (affirming grant of summary judgment for defendant employer and
co-employee who had driven drunk driver home before drunk driver returned
to highway and caused accident); Landis v. Rockdale County, 445 S.E.2d 264, 265-68 (Ga. Ct. App. 1994) (county, sheriff and deputy sheriff had no
duty to arrest drunk driver whom they had stopped shortly before he crashed
into plaintiff's decedent's car). Plaintiffs' claim does not survive even
the first prong of the common-law negligence analysis. As defendants owed
no duty, we need not discuss negligence further.

III.

As a last resort, plaintiffs argue that we may "expand the margins of
social host liability" in Vermont. We will not "recognize a new cause of
action or enlarge an existing one without first determining whether there
is a compelling public policy reason for the change." Langle, 146 Vt. at
520, 510 A.2d at 1306. We agree that the costs of underage drinking are
high and that the circumstances of this particular case are tragic. We
cannot agree, however, that imposing a duty upon all owners of real
property to control the activities of all licensees on the basis of mere
ownership would be either fair to the owners or in the best interests of
public policy.

Social hosts are quite distinct from commercial proprietors.
Commercial proprietors have a pecuniary interest and profit motive for
their actions, providing both a motive and the "financial wherewithal" to
control patrons and supervise alcohol consumption. See Burkhardt v.
Harrod, 755 P.2d 759, 760-61 (Wash. 1988). In addition, commercial
proprietors are often better able to judge intoxication based on their
professional experience. See Hickingbotham v. Burke, 662 A.2d 297, 300,
301 (N.H. 1995) (recognizing cause of action for reckless service of
alcohol but noting distinctions between social hosts and licensees).

We have not found any decision that extends social host liability to
the lengths advocated by plaintiffs. The courts that have considered a
situation where parents were neither present, nor supplied the alcohol in
any way, have consistently refused to impose a duty on those parents. See
Kovar v. Kramptitz, 941 S.W.2d 249 (Tex. Ct. App. 1996) (grandfather who
owned farm

where grandson had party was not liable to eighteen-year-old who got
alcohol from another guest and died while driving intoxicated); Martin v.
Watts, 508 So. 2d 1136 (Ala. 1987) (father who owned cabin where party was
held was not liable for injuries caused by intoxicated minor guest);
Langemann v. Davis, 495 N.E.2d 847 (Mass. 1986) (parent of social host who
did not provide or make available alcohol was not liable for injuries
caused by minor guest who got alcohol from another guest).

A number of courts have observed, as the Massachusetts Supreme
Judicial Court did, that "the problems and implications of imposing
liability [on social hosts] are extensive." See McGuiggan v. New England
Telephone & Telegraph Co., 496 N.E.2d 141, 146 (Mass. 1986). The
Washington Supreme Court noted "social host liability would touch most
adults in the state on a frequent basis." Burkhardt, 755 P.2d at 761.
Imposing liability on property owners as social hosts would affect an even
larger proportion of the state's population. We decline to do so on the
facts of this case.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. Allen, C.J. (Ret.) was present for oral argument, but did not participate
in the decision.

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