Lawyers Journal

On Feb. 21, 2012, the Supreme Judicial Court issued its decision in Juliano v. Simpson, a so-called "social host liability" case involving an illegal underage drinking party that produced a catastrophically brain-injured 16-year-old girl.¹

That the drinking party was illegal was not open to dispute. The lawyer for Simpson admitted at oral argument that his client could have been charged with committing a crime for hosting a party at her premises with full knowledge (and indeed frank approval) that underage guests under her dominion and control were consuming alcohol.

In his responses to the Court, Simpson's lawyer likewise admitted that, if convicted, his client could have been imprisoned for up to a year in jail and fined up to $2,000. So, in Juliano, the SJC had the opportunity to correct a patently ridiculous anomaly in the law, viz.; a person in control of a premise has a duty of care under the criminal law to prevent underage drinking parties on her watch, but she has no corresponding duty of care under the common law to prevent injuries and deaths that so predictably flow from her conduct.

In maintaining that irreconcilable disparity between a Massachusetts citizen's criminal law and common law responsibility for facilitating underage drinking, the SJC opted to take a myopic view of an endemic problem, rendered a great disservice to the people and made us less safe.

A baseball metaphor may be inexact but it makes the point. The SJC's decision in Juliano is the judicial equivalent of Bill Buckner's fielding of Mookie Wilson's grounder in the sixth game of the 1986 World Series against the Mets. The SJC could have been a champion of safe homes and healthy lifestyles for underage persons. They just had to make the play.

Because the Court dropped the ball, we can predict with near certainty that illegal underage drinking parties at private homes will begin anew as prom season gets underway and graduations follow. The illegal parties will be hosted by muddled thinking parents who hope to be popular with their children and their children's friends. Or they will be hosted by underage adults or minors in charge of their family homes while their parents are away. Underage adults and minors will travel to the illegal drinking parties in motor vehicles. Alcohol will be brought into the premises openly; it will be shared communally in drinking games and otherwise; and the underage partygoers will consume alcohol rapidly in huge quantities with the specific goal of getting drunk.

Now fully risk averse, they will engage in reckless behavior, not the least of which will involve driving motor vehicles while drunk. In all probability, by the time that Labor Day rolls around and the new school year is at hand, the commonwealth will have experienced yet again needless waste of human life, suffering from catastrophic injury or death, and families on all sides of the incidents torn apart.

There should be no safe harbor in the common law from the duty of reasonable care that everyone owes to every person. That is particularly true for someone committing a crime by providing a venue for illegal drinking by underage persons.

The majority on the Court founded their decision on two grounds:

1. "The absence of 'clear existing social values and customs' supporting such a step;"² and

2. "The difficulties facing judges and juries charged with ascertaining the limits of liability."

In one sentence of her concurring opinion, Associate Justice Margaret G. Botsford makes short shrift of the first ground:

There clearly exists today a widespread social consensus that (1) underage drinking, especially when combined with driving, is a social problem of enormous significance; … and (2) we as a society are committed to preventing or limiting its occurrence in whatever ways we can.³

The assertion that judges and juries would find difficulty in applying a common law duty of reasonable care is just flat out preposterous. Justice Gants, in his concurring opinion, describes this putative "'difficulty' [as] not so dire. … If civil liability were to mirror criminal liability, courts would need to determine when a person 'controlled' a premises, which courts routinely do in other matters of common law." Juries daily decide vastly more complex cases involving mechanical engineering, physics, epidemiology, toxicology, neurosurgery and more.

In T. J. Hooper (an oft cited case in jury instructions), Learned Hand posited that juries can reject standard practice among all members of an industry as falling short of reasonable care. Indeed, here in the commonwealth, juries have the power to decide that a perfectly constructed product is so lacking in social utility that it should not be made or sold. But forget the fact that the practice of the Superior Court belies the majority's handwringing concern for "ascertaining the limits of liability."

District Court judges and juries are already deciding precisely the same social host cases on the criminal side without problem. In similar fashion, the Appeals Court had little difficulty in affirming a jail sentence for an underage adult party host in Knerman.⁴

So "duty" is a function of two interconnected factors. First, existing social values and customs warrant the imposition of a duty of care. Show me a person who thinks it is just hunky dory for a neighbor to run underage drinking parties and I will show you a fool. Second, the harm flowing from the conduct must be reasonably foreseeable. Even that aforesaid fool knows that very bad things follow from underage drinking. The SJC has repeatedly recognized the risk of harm to minors, underage adults and the general public from illegal underage drinking.

In 1983 in Michnik, the SJC wrote about "the very special susceptibilities and the intensification of the otherwise inherent dangers when persons lacking in maturity and responsibility partake of alcoholic beverages." In 2005 in Nunez, then Superior Court Judge Gants authored a decision reporting that "anyone under 21 is "peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations" and "do not yet have the maturity and judgment to drink alcohol responsibly."

The fundamental truth is that underage drinkers are not properly compared to mature adults who, legally, consume alcohol in private house parties. Mature adults do not funnel alcohol through an open gullet; they do not play drinking games with a purpose of getting drunk as quickly as possible. Mature adults, typically, do not drive drunk. The same cannot be said for underage drinkers.

In 1969 in Carey, the SJC held that furnishing "hard liquor, particularly to one already drunk … may well make the individual unreasonably aggressive, and enhance a condition in which it is foreseeable that almost any irrational act is foreseeable."

In amending the social host criminal statute in 2000, the Legislature declared the act to be "an emergency law, necessary for the immediate preservation of the public health, safety and convenience." The precise consequence of that prohibited conduct, a motor vehicle crash into a fixed object that resulted in tragic waste and human carnage, was recognized by the people of the commonwealth through their elected representatives as "a matter of public health and safety" that required emergency action and was just plain unacceptable.

The Legislature purposefully chose to focus on control of the premises, as well as on control of the alcohol. Indeed, power over the venue is power over the alcohol and the unacceptable conduct. Outside the privacy of a house, apartment or similar venue, an underage drinking party is less likely to go unnoticed and therefore less likely to take place. Control of the premises gives effective control of the underage guests. Exercising control over the premises is easy, simple and required by Mass. G.L. c. 138, § 34. Underage persons are neither physically provided with alcohol, nor allowed access to the premises if they have alcohol, and removed from the premises on knowledge of alcohol possession.

The Rhode Island Supreme Court got it right in Martin v. Marciano, a 2005 decision where an underage drinking party resulted in serious brain damage to a guest who was struck in the head with a baseball bat after a fight broke out.

… We reject the notion that imposing a duty on defendant and other similarly irresponsible parents and hosts to protect their guests from harm causally related to the consumption of alcohol by underage drinkers creates an unreasonable burden. To avoid assuming a duty of protection, the adult property owner must simply comply with existing law and refuse to provide alcohol or condone underage drinking on his or her property. Therefore, the consequences of imposing such a duty in cases such as this are not 'economically and socially staggering;' in fact, they are negligible.

Sadly, the SJC got it wrong in Juliano.

¹A declaration of personal bias is in order. I have devoted many years and thousands of hours of pro bono work to help educate my fellow citizens about the perils of facilitating underage drinking parties. Further, my firm and I took on the job of representing Rachel Juliano and her parents after the Superior Court entered summary judgment, pursued direct appellate review, and argued the appeal before the SJC. All of our work was done without any expectation of compensation as Ms. Simpson's insurer had denied coverage under an automobile exclusion.

²The majority stake out that ground while also serving as the apostles of the obvious: "The plaintiffs make a compelling argument that underage drinking and driving is a persistent and widespread societal problem. The Legislature's decision to deter and punish those who facilitate such conduct by the imposition of jail sentences and financial penalties, along with the stigma of a permanent criminal record, lends support to that argument."

³Justice Gants (joined by Chief Justice Ireland) makes the same observation: "As best I can tell, there exists a 'clear existing social value [ ]' that parents not allow the underage guests of their children to drink alcoholic beverages at their home."

⁴Billy White, Brendan Knerman's guest, drove off from the party drunk and crashed into two high school students who were walking aside the street. Trista Zink, age 16, was killed. Neil Bornstein was seriously injured.