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Social
Host Liability in Minnesota While
social host liability has been somewhat tortured in Minnesota’s legal
history, there is no question that there are now circumstances where
hosts can be not only civilly, but also criminally liable for allowing
underage drinking to occur on the host’s premises.
This article will examine the current status of social host
liability in Minnesota and answer the many questions the civil law
has generated over the years. Further, it will examine the emerging landscape
of criminal social host liability. Genesis of Social Host Liability Under
the current state of Minnesota law, liability as a social host generally
applies only to hosts who have served underage drinkers. But the law took time to mature. One court has described the development of social
host law as being the result of a “duet” in which the courts noted
an omission in the law and the Minnesota Legislature responded.1 In
1985, the Minnesota Supreme Court held that “a social host is not
liable in a common-law action for negligently serving alcohol to a
minor,” and that only the Legislature could create social-host liability.2 At that time, the Civil Damages Act—Minnesota
Statute section 340A.801—preempted any action against social hosts
who gave alcohol to guests because the statute provided for action
against only those who illegally sold
alcoholic beverages. In apparent
response to the Court’s invitation, the Legislature enacted an amendment
to the Civil Damages Act in 1990, adding subdivision 6, which opened
the door for common-law negligence claims:
For
five years, the appellate courts remained silent on the effect the
amendment to the Civil Damages Act would have on social-host liability. Then, in 1995, the Minnesota Court of Appeals
addressed the issue in Van Wagner
v. Mattison.5 The court
concluded that by enacting the statute, the Legislature intended to
allow claims against social hosts who have knowingly furnished alcohol
to a person under the age of 21, but only if the
host was at least 21 years old.6
Despite Van Wagner’s holding, several subsequent
unpublished appellate court decisions, which analyzed various factual
scenarios seeking to impose common-law liability on social hosts under
the Civil Damages Act, all decided to protect the social host from
liability.7 In fact, because common law had not previously
recognized a tort claim against a person who provided alcohol to a
minor, the courts continued to be reluctant to allow such claims to
proceed.8 The
Minnesota Supreme Court appeared to have put the final nail in social
host liability under the Civil Damages Act and at common law in the
1999 case of Koehnen v. Dufuor. There, the Court specifically noted that while
the Minnesota Legislature might decide to amend the Civil Damages
Act to allow for specific actions against social hosts under section
340A.801, the Court would not recognize such an action at common law. Accordingly, the Civil Damages Act still preempted
any claims against social hosts. Since
Koehnen,
the appellate courts have addressed the Civil Damages Act in the context
of social host liability in only two other circumstances—Snilsberg v. Lake Washington Club and
Wollan v. Jahnz.9 While in both
cases the plaintiffs sought relief from defendants as social hosts
under section 340A.801, subdivision 6, neither case addressed whether
the facts even supported such a claim. The Social Host Liability Act Not
surprisingly, in response to Koehnen, the Minnesota Legislature amended the Liquor Act in
2000, by creating a statutory cause of action in favor of persons
injured by, or as a result of, the intoxication of a minor caused
by a social host. This provision, known as the “Social Host Liability
Act”—Minnesota Statute section 340A.90—provides a cause of action
to a spouse, child, parent, guardian, employer, or other person injured
by an intoxicated person, or by the intoxication of another person
under 21 years of age. Plaintiffs
under the Social Host Liability Act have a right of action in their
own name against a person who is 21 years or older who:
The
intoxicated person under the age of 21 who caused the injury has no
right to a cause of action under the statute,11 nor does any plaintiff
whose suit might be a “derivative” of the intoxicated minor’s, as
more fully explored in the 2006 Minnesota Court of Appeals decision
in Sinn v. Gerving.12
In an unpublished opinion, the Court of Appeals held that a
wrongful-death trustee had no cause of action based on section 340A.90
because the deceased minor could not have maintained a wrongful-death
action against the defendant. Sinn v. Gerving In
Sinn, respondent Merianne
Gerving held a birthday party for her 16-year-old
daughter. Gerving
left the party to pick up some videotapes, and in her absence, some
teen-aged attendees brought alcohol to the party.
Twelve-year-old Sherri DeWald, one
of the guests, consumed alcohol. When
Gerving returned, she asked the party attendees to leave her
home, including DeWald, who was struck and
killed by a train while walking home.
DeWald’s trustee brought a wrongful-death claim against Gerving, alleging negligent supervision and negligent eviction.
The Court of Appeals held that the district court properly
granted summary judgment for Gerving because
the trustee’s claims were based on the illegal furnishing of alcohol
and were therefore preempted by the Civil Damages Act. The court held that Gerving
was not liable under section 340A.801, subdivision 6, because she
did not “knowingly” furnish or provide the alcohol to DeWald. Moreover,
the trustee’s claim was based on the wrongful-death statute, which
grants a right of action to the personal representative of a decedent
provided the decedent could have maintained the action had he or she
lived. The court concluded that DeWald
could not have maintained an action against Gerving
under the Social Host Liability Act, and therefore, neither could
DeWald’s trustee. Why
the court concluded that DeWald did not
have a cause of action is unclear.
It may be because section 340A.90, subdivision 1(c), prohibits
an intoxicated person under the age of 21 who caused the injury from
having a right of action; more likely, the court concluded that DeWald
would not have been able to prove that Gerving
“knowingly or recklessly” permitted her to consume alcohol at the
birthday party. Sinn
is one of only two cases to address the Social Host Liability Act
and the only one that addresses the merits of such a claim. Statutes of Limitations While
few Minnesota cases specifically have dealt with the application of
section 340A.90 to particular fact patterns, earlier this year the
Court of Appeals addressed what statute of limitations would apply
to claims asserted under the Social Host Liability Act in
Christiansen v. University of Minnesota Board of Regents.13 Ken
Christiansen, a minor, attended a party held at a residence appellant
Wesley Omer controlled. Later
that night, after consuming alcohol and becoming intoxicated, Christiansen
attempted to walk home, fell in a creek, and died.
Four years later, Christiansen’s heirs commenced an action
against Omer under section 340A.90.
The Minnesota Court of Appeals considered the certified question
of whether claims under section 340A.90 are governed by the six-year
statute of limitations specified under Minnesota Statute section 641.05,
subdivision 1(2), which governs liabilities created by statute.
Because this was a wrongful-death claim, Omer sought to have
the court apply the three-year limitation for wrongful-death actions
prescribed under Minnesota Statute section 573.02. Even
though Christiansen was
a case of first impression, the appellate court’s decision in Wollan v. Jahnz guided its conclusion that the
six-year statute of limitations applied.14 In Wollan, the plaintiff was injured
in a snowmobile accident caused by an intoxicated minor. Four years later, she sought to bring a claim
under the Civil Damages Act against the bar that employed and provided
the alcohol to the intoxicated minor.
The bar argued, and the district court agreed, that Minnesota
Statute section 541.07(1), which set a two-year limitation for an
action for a “tort resulting in personal injury,” barred the action.
On appeal, the Minnesota Court of Appeals reversed, concluding
that because providing alcoholic beverages to a minor is not a tort
at common law, section 541.07(1) did not apply. Rather, the court applied the six-year statute
of limitations under section 541.05, subdivision 1(5) for an action
“for any other injury to the person or rights of another, not arising
on contract, and not hereinafter enumerated.”
Similarly,
the court in Christiansen
concluded that just as the claim in Wollan was not a tort claim, the plaintiffs’
claim was not a wrongful-death claim. Instead, the claim was brought by the decedent’s
father and sisters, in their own names, as persons “injured … by the
intoxication of another person under 21 years of age” pursuant to
section 340A.90, subdivision 1. And
because the Legislature did not include a specific limitation period
in the statute, the six-year limitation for actions for other injuries,
prescribed by section 541.05, applied.
Accordingly, unless the Minnesota Legislature continues its
“duet” with the courts, any party commencing an action under the Social
Host Liability Act must do so within six years. Emerging Social Host Law While
the civil social host law appears to be well-established, Minnesota
cities and counties are now considering whether to extend that liability
to the criminal arena. In fact
several cities and counties have passed criminal social-host laws,
and even more are debating the possibility of enacting such laws.
The reason for criminal social-host laws is to extend criminal
liability beyond those who sell or distribute alcohol to minors to
embrace those who provide a location for a party and know that underage
drinking is taking place. What
appears to be the first ordinance of its kind in Minnesota was passed
in Kandiyohi County on August 7, 2007.
Ordinance Number 3 makes it illegal for any person to “congregate
at, participate in, or knowingly permit any party or gathering of
people” where minors are in possession of or consuming alcohol.15 In contrast to the civil Social Host
Liability Act, which allows a right of action against a social host
who is 21 years of age or older, the Kandiyohi ordinance makes it
illegal for any person to host a gathering where underage
drinking is taking place. Moreover,
once an individual in lawful possession of the premises (e.g., the property owner, renter, or tenant)
becomes aware that minors there are in possession of or consuming
alcohol, he or she has a legal obligation to stop the unlawful drinking. Hosts who violate this ordinance are guilty
of a misdemeanor. The
city of Chaska passed a similar ordinance that became effective on
October 11, 2007.16 The biggest
difference with this ordinance is that it made it illegal for a host
to allow an event or gathering when the person knows or reasonably should know that someone under the age of 21 will consume
or possess with the intent to consume alcohol. Under the ordinance, an “event or gathering”
means any group of three or more persons who have assembled or gathered
for a social occasion or other activity.
And criminal liability can attach even if the “host” is not
present at the event or gathering.
Some
exceptions typically apply under criminal social host laws. Many of the criminal laws have exceptions for
religious gatherings and, in some instances, for drinking solely involving
an underage person and his or her parents while in the household of
one or both parents.17 To
be sure, criminal social host laws have not been enacted without concern
or debate. Recently, the Carver
County board rejected, by a 3-2 vote, an ordinance nearly identical
to that passed in the city of Chaska.18
In a similarly close vote that swung the other way, the Red
Wing City Council voted 4-3 to pass a criminal social host ordinance
identical to Chaska’s.19 Other municipalities are considering similar
laws. Criminal Negligence Criticism
surrounding a law that imposes a negligence standard, such as the
Chaska and Red Wing ordinances, centers primarily on their breadth.20 Many situations can arise that will “fit the
seams” of the law. For example,
cases where parents keep alcohol in the house and their minor children
have access to it. Under the
Chaska law, parents in such circumstances can be criminally liable
if their child hosts two friends at the parents’ home and they have
access to the liquor cabinet, even if the parents are out watching
a movie. The critical question
is whether the parents reasonably should have known that their underage
child and friends would consume alcohol. A similar question arises when an individual
has a party with the intent to serve alcohol to only those guests
who are over 21, but minors are also served.
Is it reasonable for the host to check the identification of
all party attendees? These
are scenarios that laws such as Chaska’s will most certainly face
and the courts will need to address in the future. Conclusion While
social host liability has been slow to ripen in Minnesota, the Legislature
has taken its cues from the courts’ observation that it is a creature
of statute and not common law. Civil
social host liability appears to have finally cemented, holding only
those over the age of 21 responsible for serving to those under the
age of 21, pursuant to Minnesota Statute section 340A.90.
The courts have held that both the Civil Damages Act and the
Social Host Liability Act will preempt any attempt to commence a common
law action for damages against a host relating to underage drinking.
Moreover, the statute of limitations for such claims is six
years, pursuant to Minnesota Statute section 541.05. The
area of social host law experiencing the most growth at this time
is in the criminal context. Given
the controversy surrounding such laws, it may be some time before
there is a uniform state law that covers all situations.
In the interim, cities and counties will pass their own ordinances
to prevent any person from hosting events where underage drinking
occurs. The courts will likely consider these laws,
their breadth, and their specificity as this area of social host law
expands. Notes 2 Holmquist v. Miller, 367 N.W.2d 468,
471-72 (Minn. 1985). 3 Minn. Stat. §340A.801, subd. 6 (2007). 4 Wollan, 656 N.W.2d at 418. 5 See Van Wagner
v. Mattison, 533 N.W.2d
75 (Minn. App. 1995). 6 Id. at 77. 7 See Stillman
v. Tulenchik, 1995 WL 6426 (Minn. App. 1995); Opay v. Howard Lake Liquor Store, 1995 WL 34838
at *1 (Minn. App. 1995), rev’d in part on other
grounds, 531 N.W.2d 845 (Minn. 1995); Frisch
v. Bassett, 1996 WL 104770 at *1 (Minn. App. 1996). 8 Koehnen v. Dufuor, 590
N.W.2d 107, 109-12 (Minn. 1999). 9 Snilsberg v. Lake Washington Club,
614 N.W.2d 738 (Minn. App. 2000); Wollan v. Janz, 656
N.W.2d 416 (Minn. App. 2003). 10 Minn. Stat. §340A.90, subd. 1. 11 Minn. Stat. §340A.90, subd. 1(c). 12 Sinn v. Gerving, 2006 WL 2531239, *2 (Minn.
App. 2006). 13 Christiansen
v. University of Minnesota Bd. of Regents, 733 N.W.2d 156 (Minn.
App. 2007), review denied
(Minn. 08/21/07). 14 Wollan, 656 N.W.2d 418-20. 15 Kandiyohi County, Minn., Ordinance 3, Regulating Parties
and Gatherings (08/07/07). 16 City of Chaska, Minn., Ordinance 809, Social Host
Ordinance (10/11/07). 17 See e.g.,
City of Chaska, Minn., Ordinance 809, subd.
5. 18 “Carver County rejects ‘social host’ ordinance,” Shakopee Valley News, 11/06/07. 19 “Council makes host liable for underage drinking,”
Post-Bulletin Southeast Minnesota Digest,
11/09/07; City of Red Wing, Minn., Ordinance 432, Social Host Ordinance
(11/05/07). 20 Cf. Michael
K. Steenson, “With the Legislature’s Permission
and the Supreme Court’s Consent, Common Law Social Host Liability
Returns to Minnesota,” 21 Wm.
Mitchell L. Rev. 45, 95 (Fall 1995). |
