Alioto v. Marnell

Abrams, J.

(dissenting). The legal drinking age1 should be applied in this case to determine whether the parents had a duty to supervise their son. In the social host context, we have held that “ [i]n deciding whether a guest [is] a minor or an adult, for purposes of determining the tort liability of a social host, the legal drinking age ... is the appropriate consideration.” McGuiggan v. New England Tel. & Tel. Co., 398 Mass. *41152, 159 n.7 (1986). Our conclusion in McGuiggan provides good reasons for drawing the same line as to age in this case.

In November, 1982, Michael Mamell was under the legal drinking age and lived with his parents. Michael’s parents knew about his party, and agreed to let him hold it in their home. His parents also knew that alcohol would be available at the party. In these circumstances, the fact that Michael was over the age of eighteen should not automatically foreclose parental liability. Instead, because the threat of harm to the motoring public is so analogous to the threat of harm in social host cases, I would use the legal drinking age to determine whether the parents had a duty to supervise their son.2 The court’s decision not to use the legal drinking age applies too narrowly the reasoning of McGuiggan and undermines the clear line this court has drawn as to the dangers of alcohol and driving. See note 4, infra.

If the legal drinking age is used to determine duty, then, based on the evidence, at least two factual questions arise, and the grant of summary judgment was error. The first question is whether the parents knew or should have known “of the child’s propensity for the type of harmful conduct complained of, and ha[d] an opportunity to take reasonable corrective measures.” Caldwell v. Zaher, 344 Mass. 590, 592 (1962). The defendants knew that Michael had a history of alcohol abuse. They knew he had been disciplined in school for drinking. They knew he had been arrested at age sixteen when he was found with alcohol in an automobile. They also knew he had been arrested in January, 1982, for driving while under the influence of intoxicating liquor and, as a result, that he was *42ordered to attend an Alcoholics Anonymous program and his driver’s license was suspended for two months.

Michael’s parents clearly were concerned about his drinking and driving. They made Michael stipulate, as a condition of holding the party, that he not drive.3 Michael’s father stated that the reason for the stipulation was concern that Michael would be “stopped along the road” by the police. A jury, however, could have determined that the parents were aware of, and concerned about, the tremendous danger to others caused by Michael’s driving while under the influence of intoxicating liquor.4 At the very least, the evidence establishes a “genuine issue as to [a] material fact,” which should not be resolved by summary judgment. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 368 (1985). DeVaux v. American Home Assurance Co., 387 Mass. 814, 816, 817 (1983). See 10A C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2734 (2d ed. 1983).

*43The second factual question is whether the parents exercised reasonable care to prevent Michael from driving while under the influence of intoxicating liquor. Instructing or warning a child to avoid dangerous activity can constitute reasonable care by parents. See DePasquale v. Dello Russo, 349 Mass. 655, 658-659 (1965). A jury therefore well may have concluded that Michael’s parents exercised reasonable care when they (a) made Michael promise not to drive, and (b) allowed him to give the party at home so that he would not have to drive. However, a jury also could conclude that the parents were under a duty to take some further action to prevent Michael from driving while under the influence of alcohol, perhaps insisting that he relinquish the keys to the car until the following morning.

In my view, this case presents questions of material fact, and the motion for summary judgment should have been denied. I dissent.

The legal drinking age at the relevant time in this case was twenty. See G. L. c. 138, §§ 34, 34A, as amended through St. 1979, c. 15, §§ 7, 8. The legal drinking age is now twenty-one. See G. L. c. 138, §§ 34, 34A, as amended through St. 1984, c. 312, §§ 5, 6.

This is not to say that parents automatically become liable when their underage children drink and, as a result, cause harm to third persons. The parents in this case did not serve any liquor and did not violate any statutes. Nevertheless, the legal drinking age should be the appropriate consideration for determining whether the parents were subject to a duty of care. The parents knew that their son was under the legal age to drink, had a problem with alcohol, and likely would drink at the party. In these circumstances, whether the parents violated a duty is a question of fact which should not be determined by summary judgment.

I completely agree with the court that the stipulation did not constitute the parents’ undertaking to supervise the party, and did not impose any extra duty on the parents. To conclude otherwise would deter parents from ever taking any corrective measures. At the same time, I think it is clear that the stipulation, combined with Michael’s history of alcohol abuse, stands as evidence of the parents’ knowledge of Michael’s “propensity for the type of harmful conduct complained of.” Caldwell v. Zaher, supra. The stipulation also may be viewed as evidence that the parents had an “opportunity to take reasonable corrective measures.” Id.

Our cases are clear and unequivocal that driving while under the influence of intoxicating liquor creates an extreme risk of harm to third persons. Irwin v. Ware, 392 Mass. 745, 756, 762 (1984). Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968). See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6 (1983); Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982). The life-threatening danger to third persons caused by driving while under the influence of alcohol, along with Michael’s driving record, constitutes sufficient evidence of a dangerous propensity to send to a jury the question of parental liability. See Gudziewski v. Stemplesky, 263 Mass. 103, 105-106 (1928) (evidence of child’s indiscriminate use of air gun sufficient); Sousa v. Irome, 219 Mass. 273, 276-277 (1914) (child’s reputation for carelessness with rifle sufficient). Cf. DePasquale v. Dello Russo, 349 Mass. 655, 658-659 (1965) (two incidents of misuse of nonlethal firecrackers insufficient).