Is Ms. Williams civilly liable under MA law for the injuries that her intoxicated guest, Mr. Malouf, inflicted on a third party, Ms. Patel, after leaving the party that Ms. Williams was hosting?
Ms. Patel likely cannot claim that Ms. Williams is civilly liable for the injuries inflicted by Mr. Malouf because Ms. Williams did not serve the alcohol that was consumed by the guest to the point of intoxication, even though she should have had reasonable knowledge that her guest was intoxicated.
Ms. Williams hosted a dinner party where she provided alcohol for her guests. Mr. Malouf, who was in attendance, brought a small case of beer and stored it separately from the drinks that Ms. Williams provided. Mr. Malouf proceeded to consume the small case of beer by himself over the course of the dinner party and went on to take a beer from Ms. Williams’s fridge without her permission at the end of the night. Ms. Williams stated in her interview with the firm that she was uncertain as to whether Mr. Malouf was intoxicated when he left her apartment. After leaving, Mr. Malouf rode his bicycle home and collided with Ms. Patel, who received injuries to her face, her head, her arm, and her ribs. Mr. Malouf took a Preliminary Breath Test that produced a blood alcohol level of 0.21%.
Our client, Ms. Williams, likely will not face social host liability because she did not provide Mr. Malouf with the alcohol that he consumed to the point of intoxication even though she should have had reasonable knowledge of his intoxication as the host of the dinner party. In order for a social host to be liable for the injury of a third party by an intoxicated houseguest, the social host must (1) control the alcohol by providing, serving, or allowing the alcohol to be served to the guest and (2) they must know or should know that the guest is intoxicated at the time they left the party. McGuiggan v. New England Tel. and Tel. Co. , 496 N.E.2d 141 (Mass. 1986); Ulwick v. DeChristopher, 582 N.E.2d 954 (Mass. 1991). Ms. Williams will not meet the first element of social host liability because although she did provide alcohol to her guests, she did not provide the alcohol that Mr. Malouf consumed to cause him to reach the level of intoxication and was therefore not able to reasonably control the amount that he consumed. However, the second element will likely be met because although Ms. Williams was unaware that Mr. Malouf was intoxicated when he left her party, a judge will likely rule that she should have known because of the way that he was acting, which was evident to other guests in attendance.
Ms. Williams did not have reasonable control over the alcohol that was being consumed by Mr. Malouf. In order for a social host to have control over the alcohol that is being consumed by the guest, the host should be the supplier of that alcohol and should maintain the ability to serve and cut-off that alcohol from being consumed by the guests. Ulwick, 582 N.E.2d 954 (Mass. 1991); Cremins v. Clancy, 612 N.E.2d 1183 (Mass. 1993); Juliano v. Simpson, 962 N.E.2d 175 (Mass. 2012). Social hosts do not have control over alcohol that is co-owned by numerous people. Cremins, 612 N.E.2d at 1186.
The host should be the owner and supplier of the alcohol that is being consumed by the guest because such ownership will allow the social host to regulate and control the supply of liquor at the party. Ulwick, 582 N.E.2d at 957. For example, in Ulwick, a guest of a “BYOB” party became intoxicated off of the alcohol that he brought to the party and got into an accident with a police officer on his way home from the event. Id. at 957. The court ruled that the host of the party did not have social host liability because he did not provide the alcohol that the guest consumed to the point of intoxication. Id. at 957. They reasoned that when a host provides the alcohol for the guest, the host is able to assume the role of a bartender and can “effectively control” the guests consumption without risk of embarrassment or violence. Id.
Furthermore, in Juliano, where the social host did not provide the alcohol but was aware that her guest was intoxicated when he left her party, the court was asked to expand the scope of control to include alcohol that was not furnished by the social host. Juliano, 962 N.E.2d at 177, 182-83. The court decided that the scope of control for social host liability should not be expanded because there would be numerous difficulties that would arise with the practice of hosts policing the consumption of alcohol that belonged to the guest. Id. at 182. Similarly, a social host cannot reasonably control the consumption of alcohol that is co-owned by a social host and their guests. Cremins, 612 N.E.2d at 1186. For example, in Cremins, where alcohol was brought by the guest to the host’s house and was shared among multiple parties, the court ruled that there were no effective means nor obligations for the host to control and consequently halt his guest from drinking the alcohol. Id. They reasoned that without the ability or right to properly control the consumption of alcohol, the host did not owe a duty to his guest or to any additional third parties. Id.
Here, Ms. Williams did not supply or furnish the alcohol that caused Mr. Malouf to become intoxicated because he primarily drank the small case of beer that he brought to the dinner party. Like in Ulwick, where the host had guests bring their own alcohol, Mr. Malouf brought his own case of beer to be consumed by himself. Although Mr. Malouf did not explicitly state this, Ms. Williams was able to make that inference because Mr. Malouf did not like the alcohol which she was providing to accompany the dinner that she had made and he placed the case of beer in the kitchen, away from the rest of the party. However, unlike in Ulwick, where the party was meant to be “BYOB”, Ms. Williams did provide a few bottles of wine for her guests, but Mr. Malouf simply chose to drink his own. However, a judge would likely rule that even though she would have been able to monitor and control the wine that Ms. Williams provided, she would not have been able to reasonably regulate the beer that Mr. Malouf brought.
Moreover, as in Juliano, where the court did not want to expand the scope of control to include alcohol that was not furnished by the social host out of concern for the social difficulties that could cause, Mr. Malouf became aggressive and used profanity towards Ms. Williams when she tried to stop him from taking the beer from her fridge. However, the court in Juliano ruled on alcohol that did not belong to the social host, whereas Ms. Williams was attempting to stop Mr. Malouf from drinking her personal beer from the fridge and did not make any attempts to stop him from drinking over the course of the night. Regardless, a judge would likely rule that Mr. Malouf’s response was precisely the type of social embarrassment that the court was trying to protect the host from in their ruling in Juliano.
Additionally, like in Cremins, where the host and the guests were sharing the alcohol brought by the guests as co-owners, an argument could be made that by Ms. Williams providing bottles of wine for her guests and by Mr. Malouf bringing the case of beer and drinking the beer out of Ms. Williams’s fridge, the alcohol at the dinner party was shared and co-owned. Unlike in Cremins, however, where there was an agreement among the parties to share the alcohol, there was no such agreement among Ms. Williams and Mr. Malouf. Even if a judge found that the alcohol was meant to be shared or that Mr. Malouf intended to drink it all by himself, they would likely find that Ms. Williams did not have reasonable control over the alcohol that caused Mr. Malouf to become intoxicated. This would likely exclude the beer that was owned by Ms. Williams because that beer alone would not have caused Mr. Malouf to become intoxicated.
Ms. Williams did not have reasonable knowledge that Mr. Malouf was intoxicated when he left her dinner party, but she likely should have known. A social host has or should have knowledge of their guest’s intoxication when the host can reasonably foresee that there would be a risk to the safety of that guest and others if they were to continue drinking and if they were acting in such a manner that it was outwardly obvious to the host that they were intoxicated. McGuiggan, 496 N.E.2d at 145; Kirby v. Le Disco, Inc., 614 N.E.2d 1016 (Mass. App. Ct. 1993); O’Hanley v. Ninety-Nine, Inc., 421 N.E.2d 1217 (Mass. App. Ct. 1981); Makynen v. Mustakangas, 655 N.E.2d 1284 (Mass. App. Ct. 1995).
A social host may be liable for the damages of their guest onto a third party if said host continues to furnish alcohol to their guest despite the fact that their guest is obviously intoxicated, and the further consumption of alcohol might reasonably pose the possibility of damage or risk to a third party. McGuiggan, 496 N.E.2d at 145; Makynen, 655 N.E.2d at 1287. For example, in McGuiggan, a guest had consumed “four or five rum-cokes” over the course of the party but appeared to be “perfectly normal” by the hosts. Id. The court ruled that the hosts did not meet the social host liability standards because there was no evidence to support that any of the hosts had any reasonable knowledge the guest was intoxicated. Id. The court reasoned that although the guest’s BAC was past the legal limit, that fact alone was not enough to support actual knowledge. Id. Additionally, they reasoned that there was no evidence among the guest’s actions to support an inference of a reasonably foreseeable risk in serving the guest additional alcohol. Id.
Additionally, in Makynen, a guest took five or six beers out of his uncle’s, the host, fridge over the period of a few hours. Makynen, 655 N.E.2d at 1287. The court ruled that merely drinking five or six beers alone was not enough to put the social host on notice that his guest was intoxicated. Id. They reasoned that it would take a large amount of alcohol, an amount that would allow a person to assume intoxication, to require a social host to have reasonable knowledge. Id. The court went on to state that there could be a level of alcohol consumption that would allow reasonable knowledge of intoxication to become a jury question. Id.
Furthermore, in O’Hanley, the question of what reasonable knowledge might look like was raised when a patron sued the bar for overserving him after becoming intoxicated and injured himself after falling off the bar. O’Hanley, 421 N.E.2d at 1218. The court ruled that the bar patron had showed some “outward manifestation of intoxication” far prior to ordering his last drink. Id. They reasoned that if the patron’s drinking companions reasonably concluded that he was intoxicated, so could the bartender. Id. Similarly, the court in Kirby, where a bar patron assaulted two women outside of the bar after being served to the point of intoxication, ruled that the bar patron was not acting in a manner that was “aggressive, troublesome, or even loud and vulgar”. Kirby, 614 N.E.2d at 1018. They further reasoned that such behavior would be conduct that is requisite of an outward manifestation of intoxication. Id.
In this case, Ms. Williams said that she was uncertain if Mr. Malouf was intoxicated because although he had drunk a lot, he was a larger man. However, it is possible that she should have known due to the way that he was acting at the dinner party. Like in McGuiggan, where the hosts did not think that the guest was intoxicated even though his BAC was above the legal limit, Ms. Williams did not suspect that Mr. Malouf was intoxicated when he left the dinner party. Both the hosts in McGuiggan and Ms. Williams believed that their guests were “fine” at the time they left the respective parties. Using the rationale from McGuiggan, a judge would likely find that a BAC over the legal limit by itself is not enough to require a social host to have knowledge that their guest is intoxicated. Similarly, like in Makynen, where the mere act of drinking five or six beers did not put the host on notice, Ms. Williams was not on notice by the end of the night as well. However, it is estimated that Mr. Malouf consumed more than ten beers that night whereas the court decided that it would become a jury question once the guest in Makynen had reached that level. Consequently, the judge would likely frame whether or not Ms. Williams should have known that he was intoxicated as a jury question.
Additionally, like in O’Hanley, where a bar patron became so intoxicated that he began to show an outward manifestation of intoxication, it was known by the other guests at the dinner party that Mr. Malouf was intoxicated. This was depicted with two beer “emojis” in a conversation between two guests after the dinner party, where one of the guests described his behavior that night as “obnoxious”. A court would likely rule that like in O’Hanley, where the bartender should have known that the patron was drunk since the patron’s drinking companions were aware that he was drunk, Ms. Williams should have been aware that Mr. Malouf was drunk since the other guests were aware that Mr. Malouf was noticeable intoxicated. It is unclear in the language of the court, however, to what extent a social host is expected to have the same reasonable knowledge relative to that of a bartender.
Finally, unlike in Kirby, where the bar patron did not meet the requisite level of acting in a way that was an outward manifestation of intoxication by neither being “aggressive, troublesome, or even loud and vulgar”, Mr. Malouf was acting “obnoxious”, rude, and vulgar towards both Ms. Williams and other guests. This is supported in both Ms. Williams’s interview where she cited the vulgar language that he used towards her and in the text messages between the other guests when they described him his behavior as obnoxious and “worse than usual”. A judge would likely rule that given Mr. Malouf’s aggressive, troublesome, and vulgar language, Ms. Williams should have known that he was intoxicated when he left the dinner party.
The court will likely rule that Ms. Williams will not have social host liability because both elements of social host liability have not been met. Although she likely should have had knowledge that Mr. Malouf was intoxicated when he left her dinner party due to his obnoxious behavior, Ms. Williams did not furnish or serve the alcohol that Mr. Malouf consumed to the point of intoxication.