Case Limits Liability of Adults who Serve Kids Alcohol

Sixteen-year-old Elizabeth Wakulich was drinking at the home of two friends. The 18- and 21- year-old males "forced her to drink" to a point where she vomited, then passed out.

Instead of calling for help, they removed her soiled blouse, propped her on a pillow and left her there all night. By the next morning, the father of the males asked that she be "removed from the house."

Elizabeth died later that day. Her mother brought a civil cause of action against the three.

The trial court granted the defendants’ motion to dismiss for failure to state a cause of action. The Illinois Supreme Court affirmed the appellate court’s reversal of the counts against the social hosts based on the alleged negligent performance of a voluntary undertaking because the adults provided some help but did not follow through on their care of an unconscious minor, an affirmative act on the part of the social hosts, not merely a failure to act.

The balance of the counts were brought, however, under a common law theory that the social hosts negligently provided alcohol to a minor and induced her to drink to a dangerous level. The appellate court affirmed the dismissal of these counts, which the Supreme Court affirmed on the basis of stare decisis, citing Charles v. Seigfried, 165 Ill.2d 482, 651 N.E.2d 154 (1995).

The Illinois Supreme Court ruled that the legislature has spoken in this area to the point of preempting the field of alcohol-related liability, and such legislative preemption extends to social hosts who provide alcohol to another person, whether the person is an adult or a minor. Wakulich v. Mraz, 203 Ill.2 223, 785 N.E.2d 843 (2003).

Chief Justice Mary Ann McMorrow specially concurred with the majority, agreeing that liability for injuries caused by an adult providing alcohol to a minor, which plaintiff sough to impose, was too broad.

Justice McMorrow, however, pointed out that Charles v. Seigfried involved the more narrow issued of liability for social-host adults who serve alcohol to minors who are permitted to become intoxicated and then drive a car. Justice McMorrow, based upon her opinion in Charles, reaffirmed her views that there should be civil liability in similar situations.

In Charles, Justice McMorrow carefully elaborated her reasons for disagreeing with the majority’s decision, saying that the liquor-control laws were not meant to preempt to the entire field of alcohol liability. Certainly, the General Assembly did not mean to allow adults, who negligently provide alcohol to minors who then drive and cause injury or death, the right to hide behind the dram shop laws.

The laws, instead were meant only as the sole and exclusive remedy as it relates to the liability of tavern owners and operators, but not those who do so voluntarily and certainly not to neglect a protected class of people – minors.

Under the Illinois Dram Shop Act (235 ILCS 5/6-21(a) (2003)), licensed commercial vendors who cause the intoxication of a patron who subsequently causes injury are held strictly liable for such injuries. The law, however, does not purport to extend beyond those in the business of serving alcohol.

Therefore, since the laws express no opinion on social-host liability, recovery under common law negligence should not be precluded.

Legislatures across the country, as well as in this state, have distinguished adults from minors in various activities – from marrying to driving, voting, purchasing tobacco and other actions that may require a more reasoned or seasoned approach.

Such broad application of the laws result in the unwarranted protection of reckless adults who provide alcohol to minors allow them to get behind the wheel of a car, causing injury to themselves or others. Justice McMorrow realized this and stated: "In so ruling, the majority holds that such adults are wholly shielded and immune from any civil penalty for their actions. In my view, this result is an injustice and an outrage. It completely forsakes victims of teenage drunk driving and affords them no civil remedy whatsoever under the law from the adult social host who provided the alcohol and fostered the minor’s intoxication. In addition, the majority’s decision imposes on taxpayers the unwarranted and tremendous tax burden of covering much of the costs associated with injuries and deaths caused by teen age drunk driving."

It should also be noted that the majority’s decision, which states that the issued of social-host liability is better answered by the legislature, in effort sidesteps the statute in that it allows adults to purchase liquor and then provide it to minors – providing a layer of protection for those who sold them the alcohol. This is exactly what the dram shop laws are designed to prevent.

Section 6-16(b) of the Liquor Control Act prohibits a minor’s consumption of alcohol at a social gathering, and its violation constitutes a Class A misdemeanor. 235 ILCS 5/6-16 (2003). Under the Wakulich case, a civil action, however, apparently would not be upheld.

Although the facts of this incident may have been unusual, a more typical case involves a teem who had been drinking and driving. The newspapers particularly around prom time or homecoming, cover stories of parties going awry. Ribbons are tied around trees, and teddy bears lay testament to where the cars crashed with teens. Yet when adults are behind the tragedy, the courts are choosing to hide behind a statute which, as Justice McMorrow points out, was never meant to be read so broadly.

Most people in this country believe it is a breach of an adult social host’s duty of care to serve minor guests alcohol; the host should be held liable for injury or damages resulting from such breach of duty. Placing an added civil responsibility on adults who refuse to enforce the age restriction for teen drinking is the type of judicial intervention that is necessary given the state of the law, as well as the grim statistics recording the number of teenagers killed every year.

Tort liability against social hosts who provide alcohol to minors will help deter this public problem. Addressing this issue by the courts should not be considered judicial legislation; rather, it is up to the courts to work with the General Assembly to fill in the gaps and arrive at a decision that will, under the current law, be liberally construed to protect "the health, safety and welfare of the People of the State of Illinois." 235 ILCS 5/1-2 (2003).

Justice McMorrow recognized that "the rule of stare decisis is not so static that it deprives the court of all power to develop the law. The maintenance of stability in our legal concepts does not and should not occupy a preeminent position over the judiciary’s obligation to reconsider legal rules that have become inequitable in light of the changing needs of our society." Charles, 651 N.E.2d at 169 (McMorrow, dissenting).

I only hope it does not take the tragic deaths of more Illinois citizens before a majority of the court recognizes what so many others have across the country. A lessen from Wakulich indicates that plaintiffs’ lawyers need to be thoughtful and creative in crafting their complaints in such cases because common law negligence – not based upon Dram Shop laws – may be acceptable to the courts if the facts warrant such a reading.