Illinois common law has long protected social hosts from liability arising out of the injury or death suffered by a guest on account of the social hosts’ provision of alcohol to that guest. The Illinois legislature, however, recently created an exception to the common law when the guest to whom alcohol is furnished is a minor and not an adult.
This article will examine that statute and the Illinois Supreme Court’s recent decision in Bell v Hutsell,1 where the plaintiffs argued that the defendants had voluntarily undertaken a duty to prohibit underage drinking. Though the court rejected the argument in that case, it did explain the circumstances under which the voluntary-undertaking theory might apply.
Supplying alcohol to a minor: the Impaired Minor Act
In 2003, the Illinois Supreme Court decision in Wakulich v Mraz,2 reaffirming the 1995 supreme court case Charles v Seigfried,3 ruled that social hosts could not be held liable for furnishing alcohol to guests, even though some of those guests might be minors. This decision rejected the claim advanced by the plaintiff that the social host defendants negligently supplied alcohol to a minor and induced her to drink to a dangerous level. (The Wakulich court did, however, find that the plaintiffs adequately pled the voluntary-undertaking theory, which is discussed below.)
In its ruling, the court opined that the legislature has preempted the field of regulating alcohol-related social-host liability.4In effect, the court left it to the legislature to redress any failure to adequately address such behavior.
In response to the Wakulich decision, the Illinois legislature passed the Drug or Alcohol Impaired Minor Responsibility Act (Impaired Minor Act),5 effective October 1, 2004, which significantly changed Illinois law on social host liability.
The Impaired Minor Act imposes civil liability on “any person at least 18 years of age who willfully supplies alcoholic liquor or illegal drugs to a person under 18 years of age,” which impairs the minor, causing injury or death to another person. Specifically, the Act allows minors who are injured, or parents of minors killed as a proximate result of a social host’s provision of alcohol to that minor, to bring a cause of action against all persons
(i) who, by willfully selling, giving, or delivering alcoholic liquor or illegal drugs, causes or contributes to the impairment of the person under the age of 18; or
(ii) who, by willfully permitting consumption of alcoholic liquor or illegal drugs on non-residential premises owned or controlled by the person over the age of 18, causes or contributes to the impairment of the person under the age of 18.6
No defense of contributory negligence or willful and wanton conduct on the part of the injured party is allowed under the Act. Both economic and non-economic damages are allowed under the Act, including damages for emotional distress, loss of companionship, disfigurement, and the cost of future medical care.
The Act also provides a mechanism for the recovery of reasonable attorney’s fees, trial expenses, and punitive damages. Those damages are aimed at punishing parents or other adults who provide alcohol to minors.
Liability under the Act is broad enough to cover loss suffered by others injured by an impaired minor who operates a motor vehicle. Any adult who facilitates underage drinking is a target under this Act. This law introduces, for the first time, a civil penalty for adults who negligently foster the intoxication of a minor. As for suing a residential adult social host who “willfully supplies” alcohol, some affirmative action on the part of the host is required under the Act to trigger liability.
Note that in a non-residential setting, merely “permitting” or facilitating alcoholic consumption can be a ground for liability. In addition, the Liquor Control Act prohibits a minor’s consumption of alcohol at a social gathering, and violation of the Act is a Class A misdemeanor.7 In short, if parents permit minors to drink alcohol in their home, they can be held criminally accountable. Most homeowner insurance policies now provide some coverage for social host liability claims.8
Social host liability for “voluntary undertakings”: the Restatement standard
The Impaired Minor Act does not apply if the social host did not “willful[ly] supply” alcohol. And as the following discussion shows, social hosts who simply turn a blind eye to underage drinking will not be held liable. But what about a social host who “voluntarily undertakes” to supervise a social gathering in his or her home where alcohol is consumed by minors? The Illinois Supreme Court’s Bell v Hutsell9 case helps define social host liability in such cases.
The Bell facts. In Bell, a mother sued on behalf of her 18-year-old son, who died in an automobile accident after he allegedly drank alcohol at a party his friend threw at his parents’ home. The plaintiff alleged the defendants (the friend’s parents) voluntarily undertook a duty to prohibit underage drinking and possession of alcoholic beverages on their premises and to inspect, monitor, and supervise underage partygoers to those ends. She further argued that they negligently performed that duty.
This intention was communicated to the defendants’ son, though nobody else. The plaintiff alleged that the defendants were present in the part of their house where the underage drinking was taking place but did not prevent it.
The voluntary-undertaking theory. The Bell court noted that despite the general rule immunizing social hosts from liability for providing alcohol, defendants have been held liable for an alcohol-related injury based upon a theory of voluntary undertaking. Although the court found that the plaintiff’s allegations did not trigger liability in that case, the analysis used by the court describes the law governing the voluntary-undertaking duty and its use in actions implicating the liability of social hosts.
In Bell, the Illinois Supreme Court relied on Sections 32310 and 324A11 of the Restatement (Second) of Torts. Specifically, these sections require affirmative acts to effect an expressed intention (in this case prohibiting underage drinking at defendants’ home). The court held that defendants took no such affirmative acts, nor did anyone rely on the defendants’ intentions or suffer from an increased risk of danger. Importantly, the court distinguished this case from one of misfeasance, holding that the defendants’ actions constituted nonfeasance instead.
The court contrasted Bell to cases like Wakulich, where the defendants’ affirmative conduct in asserting control over an impaired person increased that person’s risk of harm or created a risk of harm to others. The court observed that under a voluntary-undertaking theory of liability, the defendant’s duty of care is limited to the extent of the undertaking and is narrowly construed.12
The defendants argued that the plaintiff’s voluntary-undertaking theory was simply a way to circumvent the rule against social host liability set forth in Charles v Seigfried.13 But the court rejected this contention, basing its reasoning onWakulich.
In Wakulich, the plaintiff alleged that two minor brothers supplied alcohol to the plaintiff’s 16-year-old daughter at their home. As a result, the girl became intoxicated and lost consciousness. She began to vomit, so the hosts removed her soiled clothing and placed a pillow under her head to prevent aspiration. They provided no other assistance, and indeed prevented others at the home from getting the girl any medical attention. The girl died the next day as a result of alcohol poisoning, after the hosts’ father allegedly ordered them to remove her from the house.14
The Wakulich court rejected the defense argument that the “plaintiff’s voluntary undertaking theory [was] simply an attempt to circumvent the rule against social host liability set forth in Charles.”15 The court instead remanded the case to the trial court for further proceedings on the voluntary-undertaking theory.
In Bell, the court emphasized the necessity of reliance for the voluntary-undertaking duty to apply, repeating that “‘[u]nder Illinois law, a plaintiff’s reliance on the defendant’s promise is an independent, essential element in cases of nonfeasance.’”16 The court then cited comments to the Restatement, noting as follows:
The fact that the actor gratuitously starts in to aid another does not necessarily require him to continue his services. He is not required to continue them indefinitely, or even until he has done everything in his power to aid and protect the other. The actor may normally abandon his efforts at any time unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him.17
Indeed, though the Bell complaint alleged that the undertaking was communicated to the defendants’ son, there was no claim that the defendants’ intent was communicated to anyone else.
No voluntary undertaking. In Bell, the court opined that the defendants’ monitoring did nothing to ensure “the protection of the other’s person,” or “the protection of a third person,” pursuant to the requisites of sections 323 and 324A of the Restatement, and was not a substantial step in the alleged undertaking. The court reiterated that there must have been some affirmative action taken in an attempt to prohibit possession and consumption of alcohol, the objective of the undertaking, yet none was alleged. Significantly, the factual allegations in the plaintiff’s complaint were held not to support an inference that the defendants’ expressed intent and later inaction increased the risk of harm to the plaintiff’s son,18 nor did it evince reliance or change of position.
According to the Illinois Supreme Court, facts alleged in Bell were different than those in Wakulich or Simmons v Homatas, where the court considered a different section of the Restatement.19 In those cases, as in Bell, the court applied Restatement principles. However, in both of those cases, the defendants’ affirmative conduct was an assertion of control over an inebriated and significantly impaired person. The conduct thus increased the risk of harm to that person or created a risk of harm to others.
This was found not to be the case in Bell, where the defendants in no way asserted control over the plaintiffs’ son before he left the party inebriated and crashed his vehicle. Moreover, on broader policy grounds the court felt that imposing a duty and liability would only have deterred those who might volunteer assistance to others.
In essence, the Illinois Supreme Court held that the absence of social host liability in that situation meant that the parents could not be liable for merely hosting a party that served alcohol, even if the guests were minors. The promise to monitor was not enough to trigger liability. Ironically, an active attempt by the parents to intervene and, e.g., confiscate alcohol might have made them liable.
The Bell decision, where the defendants were found not to have owed the plaintiffs’ son a duty to prohibit his voluntary consumption of alcohol, was based on what the court characterized as nonfeasance, not malfeasance. The ruling confirms the continuing significance of the distinction between malfeasance and nonfeasance in social-host cases. It also demonstrates the clear pleading requirements required to establish the voluntary undertaking of a duty.
The decision leaves open an exceptionally narrow pathway for suing a social host on a voluntary-assumption-of-duty theory. Success for plaintiffs under that theory clearly requires that the social host took some affirmative act that the plaintiff relied on.
Supplying alcohol to an adult
The Illinois Supreme Court’s decision in Wakulich,20 which held that there is no liability for social hosts who furnish alcohol to guests absent a voluntary undertaking, remains correct for adult guests. However, under the 2003 Illinois Dram Shop Act,20 licensed commercial vendors who cause the intoxication of a patron who in turn causes injury are now strictly liable.
But this law comes with significant limitations, including low recovery limits (modified each year based on the consumer price index in Illinois) and a bar on recovery for someone who is “complicit” in the drinking. Thus, if a person becomes intoxicated at a bar and subsequently causes a wreck that injures his or her passenger, that passenger cannot recover against the bar if he or she was at the bar with the driver and contributed to the intoxication.
Conclusion
Social host liability encapsulates a broad range of cases and injuries, including not only auto accidents, but also slip-and-fall, fireworks-related, and wrongful death cases. The law of social host liability in Illinois for underage alcohol-related injuries is now largely governed by legislation, which provides clear rules.
As Bell demonstrates however, even where there is no “willful supply” of alcohol, the Second Restatement and the theory of voluntary undertaking offer another avenue of liability against social hosts in limited circumstances. The Bell opinion makes clear that the pleading requirements will be strictly construed. Evidence of affirmative acts by the defendant and reliance on those acts by the plaintiff are crucial in successfully adducing such a duty.
Marty Dolan
– Via The Illinois Bar Journal
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