I’ve complained to you (all 14 of you) for years about Maryland’s ridiculous refusal to adopt dram shop laws to allow lawsuits against bars and restaurants who knowingly serve drunk people who then go out and hurt of kill someone. A divided Court of Appeals says the Legislature should take the first step. The legislature bows to the National Resturant Association lobbyists because there is no dead kids lobbying group that contributes money to Maryland General Assembly elections (except for MADD which does an outstanding job with few resources).
The court took a baby step in the right direction this month when it issued an opinion in two cases involving underage drinking that creates a path for victims and their families to bring civil lawsuits against adults who serve children alcohol.
This is a big step forward. The Maryland Court of Appeals has previously found that social host liability is a near relative of a Dram Shop liability. So it is not hard to imagine the court extending the reasoning of these cases as a logical move towards dram shop laws. It is also noteworthy that Judge Sally D. Adkins wrote the opinion. Judge Adkins wrote an amazing dissent in the last big dram shop case that came before the court, arguing that the law had to be changed because too many Marylanders were unnecessarily dying because drunk people are being over-served in our bars and our restaurants. It could just be me, but I think this is a sign that Judge Adkins’ thinking will soon carry the day.
Adults Serving Minors
In 1996, the General Assembly enacted a statute addressing adults serving minors to alcohol in a social setting. It states that “an adult may not knowingly and willfully allow an individual under the age of 21 years actually to possess or consume an alcoholic beverage at a residence, or within the curtilage of a residence that the adult owns or leases and in which the adult resides.” CR § 10-117(b). I always assumed this was the law when I was a kid.
Despite this law, Maryland has not historically recognized social liability for adults who allow underage individuals to drink on their property. In the two cases discussed in this opinion, the lower courts ruled that there was no legal duty owed. In one of these cases, the Howard County trial judge probably correctly concluded: “I’m bound by the law as it exists in present day and Maryland simply has consistently refused for other reasons to extend liability that far.” Trial judges bound by dumb law. I get it.
How have defendants gotten around this statute? The defense argument in these cases, which I would have predicted would have been successful again, is that CR § 10-117 was drafted to protect young people under the age of 21, who are deemed to be too immature to appreciate the consequences of drinking. Because the victims in these cases do not fall within the protected class, the statute was trying to protect, the argument goes, civil claims by third parties could not be brought under the statute.
Kiriakos v. Phillips; Dankos v. Staph
These two cases presented issues concerning underage individuals drinking alcohol on an adult’s property and then driving away from that property. The significance of the outcome in these Court of Appeals of Maryland cases is that a limited form of social host liability regarding negligence is recognized for the first time when the adults act knowingly and willfully.
Dankos
The allegations in Dankos is the classic negligent parent case. A 17-year old boy is drinking at her friend’s mom’s house. There was a big party in the garage. Mom was cool with it. She visited the garage multiple times throughout the night but never asked the underage partiers to stop drinking. She did not prevent any intoxicated individuals from leaving, nor call any parents. Early the following morning, Steven left the party, riding in the bed of a 22-year-old’s pickup truck that crashed, killing him.
Kirakos
An 18-year-old is drinking with a 26-year-old work colleague at the 26-year-old’s house. (It is awkward to write this way sometimes. But I rarely like naming names on this blog.) After work one day, they began drinking vodka and champagne. The 26-year-old allegedly makes drinks for the 18-year-old. While he invites the young man to sleep it off at his house, instead, the young man drives and kills an innocent person out walking their dog. The boy’s breath test measured a BAC of .088. In Maryland, it is illegal for anyone under 21 to consume alcohol, and for those over 21, the legal driving level is below .08.
What Strikes Me About These Cases
What amazes me about these cases is they are not classic great facts cases. In the last big Maryland Court of Appeals dram shop case in 2013 involved a high-speed crash on I-270 by a guy who had been served 20 drinks and killed a ten-year-old. Pure unambiguous tragedy. In Dankos, we have a kid who gets in the car with a 22-year-old driver and the case is about his choice of riding with someone who is drunk. That is a tough case and will still be a tough case at trial. In Kirakos, the facts are also low on the “ole my goodness” scale. The “minor” is an adult. His BAC was not so high that you could say that any reasonable person would know the boy was drunk. These are not slam dunk cases at trial. This tells me the court feels pretty strongly about the premise of liability in these cases.
How the Court Ruled
In Dankos, the Court of Appeals finds that Dankos could establish that the mom was a proximate cause of the boy’s injuries after concluding that the mom owed a duty of care to the boy under CR § 10-117. All the counts in Dankos’s complaint meet the requirements for establishing a negligence claim, and Dankos contends that CR § 10-117 creates a duty for the mom to prevent a minor from consuming alcohol on her premises. The court reviews a history of cases in Maryland that discuss if CR § 10-117 is a statute or ordinance rule and finds that it protects a class of persons—those under 21. The next step is that Dankos must show that “the violation proximately caused the injury complained of.” More specifically that the boy was within the class of persons sought to be protected by the statute and that the harm is one that the drafters of the statute intended to prevent. The court finds that Dankos pleads this sufficiently. Further, the court holds that CR § 10-117 means that “children under 21 are less able to make responsible decisions regarding consuming alcohol and therefore are more susceptible to harm when presented with the opportunity to excessively drink in a social/peer-pressured setting.”
In Kiriakos, the issues presented to the Court of Appeals include that assuming a duty existed, if the acts of the older friend establish a prima facie claim for negligence under fundamental tort principles and if Maryland should recognize a narrowly tailored definition of social host liability when an adult provides excessive amounts of alcohol to a teenager, knowing he will soon drive.
The court distinguishes the case from the 2013 decision in Warr v. JMGM Group that I mentioned above based on Robinson’s age and venue of intoxication which are under CR § 10-117. Accordingly, the court finds that Kirakos can maintain a limited social host cause of action against Phillips through negligent entrustment based on the public policy in CR § 10-117.
The older friend, in this case, argued that the victim cannot establish proximate cause because the most critical event in the chain of events was the younger friend’s decision to drink. However, the court holds that this decision does not disrupt the ‘causal chain’ and does not destroy the claim against Phillips. The court also finds that the harm to the victim was foreseeable based on the facts surrounding the incident. Of course, it is entirely foreseeable that giving an 18-year-old alcohol and letting him drive will get someone killed.
I know the court is trying to reconcile this case with the Warr opinion which explicitly ruled that there is no dram shop liability in Maryland. But I think these cases are the first step towards a new era of holding bars and restaurants responsible when they knowingly over-serve people who kill someone while on the road. This would be a good thing for Maryland and justice.