No. 44 E.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court dated April 16, 1982, at No. 2749 Philadelphia, 1980 affirming the Order of the Court of Common Pleas of Montgomery County dated January 19, 1981 at No. 80-7334; No. 94 E.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court dated July 23, 1982 at No. 1170 Philadelphia 1981 affirming the Order of the Court of Common Pleas of Montgomery County dated April 20, 1980 at No. 80-7339
John Paul Curran, Philadelphia, for Michael Klein.
William R. Solvibile, Philadelphia, for Myron Klein, et al.
Dean B. Stewart, Jr., Norristown, for the Gilligans.
Charles J. Weiss, Ambler, for Raysinger.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a dissenting opinion. Larsen, J., files a dissenting opinion.
This appeal involves the consolidated cases of Klein v. Raysinger, et al.,*fn1 44 Eastern District Appeal Docket 1982; and Myron Klein, Phillip Klein, and Myron Klein, Administrator of the Estate of Klein v. Raysinger et al.,*fn2 94 Eastern District Appeal Docket 1982.
Appellant in No. 44, Michael Klein, filed a personal injury action against Mark Raysinger and others, as a result of an automobile accident. Appellants in No. 94, Myron and Phillip Klein, filed personal injury actions against Mark Raysinger and others (including Michael Klein, as the driver of the vehicle in which they were travelling); and Myron Klein as the Administrator of the Estate of Shirley M. Klein, filed a personal injury action, a wrongful death action, and a survivors action against Mark Raysinger and others (including Michael Klein, as the driver of the vehicle in which Shirley M. Klein was travelling). As part of these actions the Kleins instituted suit against Mr. and Mrs. William Gilligan and their son Michael Gilligan, who were charged with negligence in serving one or more alcoholic beverages to Raysinger at a time when the latter was visibly intoxicated.*fn3
In each case the Gilligans filed preliminary objections in the nature of a demurrer. In both instances the preliminary objections were sustained by the Court of Common Pleas of Montgomery County. On appeal the Superior Court affirmed.*fn4 Petitions for allowance of appeal were filed and granted, and the cases were consolidated for our review.*fn5
Upon demurrer, a reviewing court must regard as true all well pleaded facts and reasonable inferences deducible therefrom. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979). Given this standard we are confronted with the following facts: On or about May 8, 1978, Michael Klein and his family were driving on the Pennsylvania Turnpike when they were struck in the rear by a vehicle which was driven by Mark Raysinger. Prior to the collision Raysinger had been a patron of the Neptune Inn, where he had consumed an undisclosed amount of alcohol. Prior thereto, Mr. Raysinger had been served beer and other alcoholic beverages at the home of the Gilligans. It is alleged that Raysinger was visibly intoxicated at the time he was served by the Gilligans, and that it was known at the time that Raysinger would be driving. As a consequence, appellants' claim that the Gilligans are liable in negligence for the injuries they sustained in the accident.
Although the lower courts relied in part on Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), this case is in reality one of first impression in this jurisdiction.*fn6 Appellants are requesting this Court to recognize a new cause of action in
negligence, against a social host who serves alcohol to a visibly intoxicated person, whom the host knows, or should know, intends to drive a motor vehicle.
A number of other jurisdictions have considered this issue, and our research, aided by the able briefs of counsel for both appellants and appellees, reveal only two jurisdictions in which a cause of action in negligence has actually been recognized against a social host serving alcoholic beverages to a person past the legal drinking age: California and New Jersey.
In Coulter v. Superior Court of San Mateo, 21 Cal.3rd 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1979) the California Supreme Court held that under modern negligence law "a social host who furnishes alcoholic beverages to an obviously intoxicated person, under circumstances which create a reasonably foreseeable risk of harm to others, may be held legally accountable to those third parties who are injured when that harm occurs." Id. at 147, 145 Cal.Rptr. at 535, 577 P.2d at 670. However, this cause of action was very short lived, as the California Legislature expressly abrogated this holding by enacting Section 1714 of the California Civil Code.*fn7 See Cory v. Shierloh, 29 Cal.3d 430, 174
Cal.Rptr. 500, 629 P.2d 8 (1981) (upholding the validity of § 1714 against a constitutional challenge).*fn8
In New Jersey, a trial court in ruling on a motion for summary judgment, ignored the California Legislature's actions and relied upon Coulter, supra, in holding that a social host was liable for furnishing alcoholic beverages to an obviously intoxicated person. Figuly v. Knoll, 185 N.J.Super., 477, 449 A.2d 564 (1982). However, the case was never appealed, and the issue has yet to be addressed by an appellate court in that jurisdiction. Cf. Linn ...