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filed: April 22, 1983.


No. 842 Pittsburgh 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Lawrence County, August Term, 1980 No. 1.


John E. Evans, Jr., Pittsburgh, for appellants.

Herman C. Kimpel, Pittsburgh, for appellee.

Price,*fn* Brosky and Montemuro, JJ. Montemuro, J., files a dissenting opinion.

Author: Price

[ 312 Pa. Super. Page 462]

This is an action in trespass for personal injuries sustained by Mark Congini on December 22, 1978 in an automobile accident. His parents instituted a suit on his behalf and on their own behalf in the Court of Common Pleas of Lawrence County, Pennsylvania against the Portersville Valve Company ("Portersville"). The Honorable William R. Ralph issued an order and opinion sustaining Portersville's preliminary objection in the nature of a demurrer and dismissed the Congini's complaint on August 18, 1980. The Conginis have appealed from this dismissal.

The following facts were pleaded and must be taken as true for the purposes of this appeal. At the time of the accident, Mark was eighteen years of age and an employee of Portersville. On December 22, 1978, Portersville held a Christmas party for its employees at its plant at which alcoholic beverages were served. Mark attended the party and became intoxicated.

[ 312 Pa. Super. Page 463]

Mark's car was at the plant and appellee Portersville had possession and custody of its keys. Although appellee was aware of Mark's intoxicated condition, the keys were given to Mark upon his request so that Mark could drive from the plant to his home.

While Mark was operating the car on the highway, he drove it into the rear of another vehicle which was proceeding in the same direction. As a result of this accident, Mark suffered multiple fractures and brain damage which have left him totally and permanently disabled.

Appellants allege several grounds of liability based upon negligence. The first argument is that appellee was negligent in providing Mark, a minor, with alcoholic beverages to the point that he was intoxicated and that this negligent action caused Mark to suffer injuries. The second allegation is that appellee was negligent in turning over the keys to Mark's car, in order that Mark could drive home when appellee was aware of Mark's intoxication.*fn1 Appellants have not alleged that appellee is a licensee of the Pennsylvania Liquor Control Board. The lower court held that this case was controlled by Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and sustained appellee's preliminary objections and dismissed the appellants' complaint.

Since this appeal is from the sustaining of preliminary objections in the nature of a demurrer, the facts before us are confined to appellant's complaint since the demurrer admits for present purposes every well pleaded material fact set forth in the complaint as well as the inferences reasonably deducible therefrom.

Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973). Only in cases which are clear and free

[ 312 Pa. Super. Page 464]

    from doubt should a complaint be dismissed.*fn2 In this case, we hold that even given the benefit of every reasonable inference, appellants have not pleaded a cause of action.

Appellants are asking that we find for the first time in Pennsylvania that a social host can be liable for injuries which occur to an intoxicated guest. Because they have phrased their complaint in terms of negligence instead of relying on the Pa.Liquor Code,*fn3 appellants urge that we make a distinction between the present case and the prior cases which have denied liability.*fn4 However, our supreme court has made it clear that under any theory, "only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties." Manning v. Andy, 454 Pa. 237, 239, 310 A.2d 75, 76 (1973). (Emphasis in original). In Klein v. Raysinger, 298 Pa. Superior Ct. 246, 249 n. 2, 444 A.2d 753, 754 n. 2 (1982), we held specifically that Manning rejected unconditionally the principle of imposing civil liability on unlicensed persons. Appellants argue, however, that in the instant case, the unique facts compel that we distinguish the prior cases and find that appellees are liable.

Appellants agree that potential liability should not rest on every social host who serves intoxicating beverages. However, appellants argue that there should not be a blanket exclusion for social hosts but rather that liability should be determined on a case by case basis. The distinguishing factor among the cases would be the duty of care owed to the guest, depending on the circumstances. For instance, in this case, appellants urge that we find there are extenuating circumstances which create a special duty which was

[ 312 Pa. Super. Page 465]

    violated by appellees. The facts appellant finds compelling include the handing over of the car keys to the intoxicated minor. We are not so persuaded.

The question of whether it is negligent to allow a guest to drive his own vehicle while intoxicated has already been decided by this court. In Klein v. Raysinger, 302 Pa. Superior Ct. 248, 252 n. 3, 448 A.2d 620, 623 n. 3 (1982), we declined to create such a duty, recognizing that "indeed, a social host is not privileged to use force against or impose confinement upon another for the purpose of preventing the violation of a statute, i.e., driving while under the influence.

Nor does the fact that Mark was a minor at the time of the accident change the outcome in this particular case. In the case of Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir. 1979), the court reaffirmed that a non-licensee in Pennsylvania is not civilly liable for damages caused by serving intoxicating liquors to a social guest. The Bradshaw case specifically dealt with the issue of whether the fact that minors were involved created a special duty upon which liability could be based and the court held that under Pennsylvania law no such duty existed.*fn5

Thus it is clear that at the present time, there is no precedent for a finding of liability on the part of a social host. Although we recognize the seriousness of the problem of drunk driving and the resulting tragedies, we are bound to follow existing law. We agree with the Manning court which held that even though these types of claims may have some merit, "a decision of this monumental nature is best left to the legislature." Supra 454 Pa. at 239, 310 A.2d at 76.

Therefore, the trial court's order dismissing appellant's complaint is affirmed.

[ 312 Pa. Super. Page 466]

MONTEMURO, Judge, dissenting:

In recent years the public's attention and concern has been captured by the horrible realization that each year thousands of motorists are injured or killed by drunken drivers. The trauma experienced by the victims, both the motorists who are injured or killed and their relatives and loved ones, is exacerbated by the knowledge that the accidents were often preventable through the exercise of restraint and careful regard for the rights and lives of others. This state of affairs is more than a personal tragedy for the victim; it is a national tragedy that so many innocent motorists suffer disabling injuries, that so many lives are snuffed out, and that so many others are left to bear the emotional, and often horrendous financial, consequences of a chance encounter with a drunken driver. This concern is evidence of a deeper revelation; that such a chance encounter could happen to anyone, at anytime.

The response to the problem has been ambiguous. Many states, including Pennsylvania, have enacted new drunk driving laws imposing stringent and harsh penalties on those who flaunt common sense and the law by driving while intoxicated.*fn1 However, these laws merely punish, they do not compensate the victim or victims of the drunken driver.

There are methods by which these victims are compensated. One is an action for damages against the drunken driver based on his negligence. A second is an action against a person who, under the aegis of the Liquor Control Board, served intoxicating beverages to an already intoxicated person who, in turn, injures himself or a third party. This civil action against a licensed purveyor of intoxicants has long been recognized in this Commonwealth. Dramshop Act of May 8, 1854, P.L. 663 (repealed). Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 631, 198 A.2d 550, 553 (1964). It is based on the provisions of the Liquor Code; Act of April 12, 1951, P.L. 90, Art. IV § 493(1), as amended, 47 P.S. § 4-493(1); however, liability

[ 312 Pa. Super. Page 467]

    has been limited only to those persons licensed to sell intoxicants by the decisions of this court and our supreme court.

The majority carefully and analytically sets forth the precedents upon which its holding is based. I do not dispute that the majority's holding is in conformance with those precedents. But after close analysis of the cases in light of the general principles of negligence, I believe the majority is in error and that a plaintiff should have a cause of action against a social host who serves intoxicants to an already intoxicated guest and is injured as a result.

In the seminal case of Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), the supreme court refused to impose liability on non-licensed dispensers of intoxicants. The court upheld the dismissal of the plaintiff's complaint which alleged a theory of per se negligence under Sec. 4-493 of the Liquor Code, stating: "Only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties . . ." Id., 454 Pa. at 239, 310 A.2d at 76. (emphasis in original).

In addition to the per curiam opinion in Manning, Justice Pomeroy wrote a concurring opinion, and Justice Manderino wrote a dissenting opinion; in which Justice Roberts joined. Justice Pomeroy agreed that the plaintiff's complaint was properly dismissed inasmuch as it pleaded solely a cause of action based on a theory of per se negligence under the Liquor Code. However, he went on to state:

I hasten to add that in my view there is no reason in the nature of things why a private person should not be held liable if he serves liquor to one whom he knows to be intoxicated, and who he knows or should know is about to drive an automobile or engage in some other activity involving the potentiality of harm to himself or to others, with resulting damage. No legislative enactment is required to accomplish that result; it is ordinary tort law. (footnote omitted).

[ 312 Pa. Super. Page 468]

    of the Liquor Code, Manning v. Andy, supra, yet I see no reason to preclude an action based on common law negligence.

We all have a duty to exercise reasonable care. The parameters of this duty have been inextricably linked with the forseeability of risk. As this court has stated:

[T]he risk reasonably to be perceived defines the duty to be obeyed . . ." Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928). See e.g. Zilka v. Sanctis Construction, Inc., 409 Pa. 396, 186 A.2d 897 (1962), cert. denied, 374 U.S. 850, 83 S.Ct. 1915, 10 L.Ed.2d 1070 (1963); Hoover v. Sackett, 221 Pa. Super. 447, 292 A.2d 461 (1972). Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Palsgraf v. Long Island Railroad Co., supra.

Migyanko v. Thistlethwaite, 275 Pa. Super. 500, 505, 419 A.2d 12, 14 (1980) (emphasis added). I think it is abundantly clear that the service of intoxicants to an obviously intoxicated person by one who knows that the intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highways. As such I believe a duty exists in an unlicensed dispenser of intoxicants to use reasonable care in the performance of that function; including refraining from serving further intoxicants to an already intoxicated person. I think the same principals are applicable in determining whether a party is negligent in delivering automobile keys to an obviously intoxicated person.

I wish to make clear that I do not advocate the imposition of strict liability on a social host. My position is merely that it is incorrect to rule as a matter of law that no cause of action exists. I fully believe that the plaintiff herein has pleaded a proper cause of action in negligence, especially under the facts of this case because of the defendant's control of the automobile keys, and delivery of the same to

[ 312 Pa. Super. Page 471]

    the allegedly intoxicated plaintiff. I am not persuaded by the "lack of privilege" argument advocated originally in Klein v. Raysinger, 302 Pa. Super. 248 fn. 3, 448 A.2d 620 fn. 3 (1982), and reflected in the majority's opinion. The recognition of a privilege generally depends on a balancing of the benefits and detriments resolved in favor of the privilege. Here, the benefits to society must surely outweigh any detriment, real or imagined, to the individual.

*fn* The decision in this case was reached prior to the death of Judge PRICE.

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