Voluntary Undertaking Valid Basis For Social Host Liability

In common law, a plaintiff had no cause of action against a seller or provider of alcoholic beverages for injuries caused to or by the intoxicated person.  Charles v. Seigfried, 165 Ill.2d 482, 486 (1995).  The rationale was simple: “the drinking of the intoxicant, not the furnishing of it, is the proximate cause of the intoxication and the resulting injury.”  Charles, 165 Ill.2d at 486, citing Cunningham v. Brown, 22, Ill.2d 23, 29-30 (1961).   
   
During the Temperance Movement, Illinois, like many states, enacted a limited statutory cause of action imposing liability on dramshops for selling or giving intoxicating liquors to those persons who subsequently injure or kill themselves or third parties.  Charles, 165 Ill.2d at 487, citing Laws of 1871-82, at 552-56).  Initially passed in 1872, Illinois’ Liquor Control Act (commonly referred to as the “Dramshop Act”), imposes “no-fault” liability upon those dramshops.  Nelson v. Araiza, 69 Ill.2d 534, 538-39 (1978). 

The Illinois Supreme Court has found that the Dramshop Act excludes “social hosts” from its reach and has stood firm despite attempts by plaintiffs over the decades to convince the court otherwise.  See e.g., Cruse v. Aden, 127 Ill. 231 (1889); Howlett v. Doglio, 402 Ill. 311 (1949); Cunningham v. Brown, 22 Ill.2d 23 (1961); Wimmer v. Koenigseder, 108 Ill.2d 435 (1985); Charles, 165 Ill.2d at 490 (“few rules of law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the Dramshop Act”); Wakulich v. Mraz, 203 Ill.2d 223 (2003).

While legislative attempts to impose liability on social hosts have stalled (see Charles, 165 Ill.2d at 499-501 (listing failed bills introduced by members of both houses of the General Assembly to impose various forms of social host liability)), some limited “exceptions” to the general rule against social host liability have been recognized.  For instance, courts have imposed liability on college clubs like fraternities and sororities for alcohol-related injuries under the theory that the plaintiff was required by the membership to drink in order to become a member and that such conduct violated the hazing statute specifically enacted to prevent it.  See Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill.App.3d 231 (1987); Haben v. Anderson, 232 Ill.App.3d 260 (1992) (lacrosse club); Goodknight v. Piraino, 197 Ill.App.3d 319 (1990) (refusing to extend this exception beyond a college hazing scenario).  Notably, this exception, while discussed at length by the court in Wakulich, has never been formally blessed by the court.  See Wakulich, 203 Ill.2d at 241 (finding that the analysis in Quinn and Haben, “assuming their continuing viability,” was inapplicable to the facts of the case before it).

And some “social hosts” are expressly encompassed within the Dramshop Act.  For instance, a cause of action exists against an adult who pays for a facility that he knows will be used by underage persons to consume alcohol.  See 235 ILCS 5/6-21(a) (West 2008).

Another exception to the general rule is based upon the doctrine of voluntary undertaking.  See e.g., Wakulick v. Mraz, 203 Ill.2d 223, 242 (2003) (the defendants placed highly intoxicated individual in a room, monitored her breathing and refused to let anyone attempt to help her); Simmons v. Homatas, 236 Ill.2d 459 (2010) (employees of club ejected highly intoxicated individual, placed him in his vehicle and directed him to drive away).  But, as the Wakulick court noted, that doctrine does not really qualify as an “exception” at all: 

“The liability of defendants, if any, is not contingent on their status as social hosts.  Indeed, it is irrelevant for purposes of plaintiff’s voluntary undertaking counts whether defendants were acting as social hosts on the evening of June 15, 1997, and supplied the alcohol which Elizabeth consumed.  Rather, based on the allegations in the complaint, defendants’ liability arises by virtue of their voluntary assumption of a duty to care for Elizabeth after she became unconscious, irrespective of the circumstances leading up to that point.  Thus, plaintiff’s voluntary undertaking theory does not circumvent the rule against social host liability.” Wakulick, 203 Ill.2d at 242.

The voluntary undertaking doctrine provides a basis for liability because it does not matter whether the defendants are social hosts or not or whether alcohol was even involved in the occurrence.

Recently, our supreme court considered whether that “exception” applied.  See Bell v. Hutsell, No. 110724, slip op. (May 19, 2011).  In Bell, the plaintiff’s son was killed in a single-car accident after consuming alcohol at a party at the defendants’ home.  The plaintiff filed suit, alleging that the defendants had “‘voluntarily undertook the duty’ to prohibit underage drinking and possession of alcoholic beverages on their premises and to inspect, monitor, and supervise partygoers under the age of 21 to those ends.”  Bell, at 2. 

According to the complaint, the defendants had only communicated this “no drinking” rule to their son.  Despite that rule, alcohol was brought to the party and consumed with the knowledge of the defendants and - sometimes - in their presence (including the plaintiff’s son in particular) without objection or consequence.  Bell, at 2.  One of the defendants had even spoken to a number of underage partygoers “‘on multiple occasions’” and “‘requested that if they had been drinking at the party not to drive a vehicle when leaving.’” Bell, at 2.    

After reviewing the applicable sections of the Restatement (Second) of Torts relating to the voluntary undertaking doctrine (i.e., sections 323 and 324A), the court reaffirmed the notion that social hosts like defendants can be liable based upon this doctrine despite the general rule against social host liability for alcohol-related injuries.  Bell, at 7 (“We acknowledge - and reject - defendants’ persistent argument that plaintiff’s attempt to state a cause of action based on a voluntary undertaking is foreclosed by the rule against social liability.  It is clear enough, from even a casual reading of this court’s decision in Wakulick, that such a contention is meritless”). 

But the victory for the plaintiff was short lived.  The court found that she had not adequately pled facts to support the voluntary undertaking doctrine.  For one thing, the defendants had not communicated their “no drinking” rule to anyone except their own son.  Bell, at 9.  So that made it impossible for the plaintiff to claim that she or her son relied on the defendants’ intent to their detriment.

Nor did defendants take any actions to enforce that rule.  That, of course, was the problem as the plaintiff saw it - the defendants knew these kids were drinking but did nothing to stop it.  But that was also the problem with the plaintiff’s voluntary undertaking theory.  Because the defendants took no affirmative conduct that would constitute a “substantial step in the undertaking” or “substantive performance of their intended undertaking,” they had not assumed any duty to the plaintiff’s son.  Bell, at 11.  And even if they had, they abandoned their intent to perform the alleged undertaking by doing nothing.  Bell, at 11. 

Finally, the court found that the defendants’ conduct did not increase the risk of harm to the plaintiff’s son or the other partygoers.  Bell, at 11.  According to the court, “[a]t most, the allegations of [the] plaintiff’s complaint suggest that [the] defendants failed to follow through on an expressed intent to act that might have protected [her son] - who was legally underage for the consumption of alcohol, but an adult for most other purposes - against his own volitional acts, or that defendants simply abandoned their original undertaking, whether it was intended for their own protection from the perceived potential liability or a genuine concern for the safety of [the plaintiff’s son] and other partygoers.  Bell, at 13 (emphasis in original).    

The court found that the facts alleged were not similar to those in Wakulick or Simmons because, in those cases, the defendants’ “affirmative conduct, amounting to an assertion of control over an inebriated and significantly impaired person, increased the risk of harm to that person and/or created a risk of harm to others.”  Bell, at 13.  Here, the defendants owed no duty to the plaintiff’s son “to prohibit his voluntary possession or consumption of alcohol and took no action to do so pursuant to their verbalized intent, which was communicated only to their son.”  Bell, at 13. 

So even though the facts did not support a voluntary undertaking theory of liability, the court made clear that social hosts do not have absolute immunity from lawsuits stemming from alcohol-related injuries or deaths.