No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 February 2021
In 1984, the New Jersey Supreme Court became the first high court to impose liability successfully upon social hosts for the torts of their intoxicated adult guests. The wisdom or folly of that decision, and its social ramifications, have become subjects of widespread discussion. This Case Comment argues that social host liability, in its present form, is an unwise extension of common law principles. Through an examination of the elements of the cause of action proposed, the standards of proof employed, and the public policies weighed by the court, this Comment concludes that social host liability is ill-adapted to furthering the court’s stated goal of reducing drunken driving.
1 96 N.J. 538, 476 A.2d 1219 (1984).
2 N.Y. Times, June 28, 1984, at Al, col. 1; Silas, Drunk Driver: New Jersey Host Liable, 70 A.B.A.J. 31 (Sept. 1984).
3 Kelly, 96 N.J. at 548, 476 A.2d at 1224.
4 Kelly v. Gwinnell, 190 N.J. Super. 320, 321, 463 A.2d 387, 388 (App. Div. 1983).
5 Kelly, 96 N.J. at 541, 476 A.2d at 388.
6 Kelly, 190 N.J. Super, at 321, 463 A.2d at 388.
7 Id.
8 Id.
9 Id.
10 Id. at 323,463 A.2d at 389.
11 Id. at 326, 463 A.2d at 390-91.
12 Id. at 323, 463 A.2d at 389 (“Our research has failed to disclose any jurisdiction in the United States that allows the precise cause of action urged by appellant.”).
13 Id. at 324-25, 463 A.2d at 390.
14 Id. at 326, 463 A.2d at 390-91.
15 The case was later settled out of court. See N.Y. Times, Feb. 21, 1985, at Al, col. 1.
16 Kelly, 96 N.J. at 559, 476 A.2d at 1230.
17 Id at 548-49 n.8, 559, 476 A.2d at 1224 n.8, 1230.
18 N.J. Stat. Ann. §§ 2A: 15-5.1 to 5.3 (West 1952 & Supp. 1985). The New Jersey statute provides:
[§5.1:] Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, or was not greater than the combined negligence of the persons against whom recovery is sought. Any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering. . . . [§ 5.3:] The party so recovering, may recover the full amount of the molded verdict from any party against whom such recovering party is not barred from recovery. Any party who is so compelled to pay more than such party’s percentage share may seek contribution from the other joint tortfeasors.
19 Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). In Rappaport, the complaint alleged that a minor was served alcoholic beverages at a tavern, contributing to his negligent operation of a motor vehicle and consequent injury of a third party. The court held that the minor’s negligent driving was a foreseeable consequence of serving the liquor, and therefore the complaint stated a cause of action in common law negligence against the tavernkeeper.
20 Linn v. Rand, 140 N.J. Super. 212, 356 A.2d 15(1976). In Linn, the court extended the principles of Rappaport, and held that a social host who furnishes excessive amounts of liquor to a minor, knowing that the minor was about to drive, may be liable in common law negligence for injuries to third parties arising from the intoxicated minor’s acts.
21 Kelly, 96 N.J. at 556, 476 A.2d at 1228.
22 Notwithstanding this explicit limitation, it is unlikely that host liability would be limited to these circumstances. For a post-Kelly case extending the court’s rationale to a business host, see Davis v. Sam Goody, Inc., 195 N.J. Super. 423, 425, 480 A.2d 212, 213 (1984) (“It is abundantly clear to us that liability in this State depends not on the nature or character of the supplier of the alcoholic beverage nor on whether the tort-feasor is a minor or an adult.”).
23 Kelly, 96 N.J. at 542-43 n.2, 476 A.2d at 1221 n.2.
24 Id. at 548, 476 A.2d at 1224.
25 Id. at 549-50, 476 A.2d at 1225.
26 Id. at 548, 476 A.2d at 1224.
27 Id. at 549-50, 476 A.2d at 1225.
28 Id. at 560, 476 A.2d at 1230 (Garibaldi, J., dissenting).
29 Id. at 564, 476 A.2d at 1232-33.
30 Id. at 570, 476 A.2d at 1235-36. A discussion of whether the extension of liability to social hosts is a proper function of the judiciary, or whether courts should defer to legislatures to balance public policies, is beyond the scope of this Comment. For a discussion of this aspect of the case, see Comment, Kelly v. Gwinnell: The Social Host and His Visibly Intoxicated Guest: Joint Liability for Injuries to Third Parties and Proper Evidentiary Tests, 60 Notre Dame L. Rev. 191, 196-202 (1984).
31 Kelly, 96 N.J. at 561, 476 A.2d at 1231 (“Many other states have considered the problem before us today but no judicial decision establishing a cause of action against a social host for serving liquor to an adult social guest is currently in force.”).
32 Id. at 561-63, 476 A.2d at 1231-32.
33 Id. at 560-61, 476 A.2d at 1230-31.
34 Id. at 568, 476 A.2d at 1234-35.
35 Id. at 565-66, 476 A.2d at 1233-34.
36 Id. at 566-67, 476 A.2d at 1234.
37 Id. at 567, 476 A.2d at 1234.
38 Id.
39 Id. at 567-68, 476 A.2d at 1234.
40 Id. at 569-70, 476 A.2d at 1235 (“I believe that an in depth review of this problem by the Legislature will result in a solution that will further the goals of reducing injuries related to drunk driving and adequately compensating the injured party, while imposing a more limited liability on the social host . . . [such as] funding a remedy for the injured party by contributions from the parties most responsible for the harm caused, the intoxicated motorists; making the social host secondarily liable by requiring a judgment against the drunken driver as a prerequisite to suit against the host; limiting the amount that could be recovered from a social host; and requiring a finding of wanton and reckless conduct before holding the social host liable.”).
41 Id. at 548, 476 A.2d at 1224.
42 Whether a duty should be imposed is a preliminary question of law for the court; whether the duty has been breached by the specific conduct of the defendant, and whether the defendant was the proximate cause of the harm, are generally questions of fact for the jury. See W. Prosser & W. Keeton, The Law of Torts § 37, at 235-38 (5th ed. 1984).
43 Kelly, 96 N.J. at 544, 476 A.2d at 1222.
44 Id.
45 Dooley, Alcohol and Legal Negligence, 7 Contemp. Drug Prob. 145, 157 (1978).
46 A typical dram shop act provides that: “Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, or incurs other pecuniary loss by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling or bartering intoxicating liquors . . . caused the intoxication of that person, for all damages sustained. . . .” Minn. Stat. § 340.95 (1982).
47 Mosher, , Dram Shop Liability and the Prevention of Alcohol-Related Problems, 40 J. Stud. Alcohol 773, 773-74 (1979)CrossRefGoogle ScholarPubMed; Dooley, supra note 45, at 158.
48 W. Prosser & W. Keeton, supra note 42, at 581. See generally supra note 47.
49 See Mosher, supra note 47, at 775 n.6.
50 See Note, Social Host Liability for Injuries Caused by the Acts of an Intoxicated Guest, 59 N.D.L. Rev. 445, 447 n.2 (1983). Specific provisions of such criminal statutes differ; compare N.J. Admin. Code tit. 13, §§ 2-23.1 (1984) (“(a) No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person under the legal age to purchase or consume alcoholic beverages, or allow, permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises, (b) No licensee shall sell, serve or deliver or allow, permit or suffer the sale, service or delivery of any alcoholic beverage, directly or indirectly, to any person actually or apparently intoxicated, or permit or suffer the consumption of any alcoholic beverage by any such person in or upon the licensed premises.”) with Minn. Stat. § 340.14 subd. la (1982) (“No intoxicating liquor shall be sold, furnished or delivered for any purpose to any minor or to any person obviously intoxicated or to any of the persons to whom sale is prohibited by statute.”).
51 See Dooley, supra note 45, at 161-65. Until recently, it was generally held that the dram shop act was the exclusive remedy for alcohol-related injuries in those jurisdictions retaining their dram shop statutes. See, e.g., Heldt v. Brei, 118 Ill. App. 3d 798,455 N.E.2d 842 (1983). Courts which had previously construed their dram shop acts to apply only to commercial providers of liquor, however, have shown a new willingness to consider a negligence cause of action based upon their liquor control acts. See, e.g., Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985). But see Holmquist v. Miller, 367 N.W.2d 468 (Minn. 1985) (dram shop act preempts common law cause of action against social hosts for negligently serving alcohol to adult or minor guest who subsequently injures a third party).
52 W. Prosser & W. Keeton, supra note 42, at 582.
53 See Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), abrogated by Minn. Stat. § 340.95 (1982). In Ross, the Minnesota Supreme Court construed the state’s dram shop act to permit a cause of action against a non-commercial liquor provider “who, by illegally selling, bartering, or giving intoxicating liquors . . . caused the intoxication of that person” (emphasis added). The Minnesota Legislature, in 1977, amended its dram shop act (see supra note 46 for present version) to delete “or giving” from the statute. In Cole v. Spring Lake Park, 314 N.W.2d 836, 840 (Minn. 1982), the court stated that “removal of the word ‘giving’ is legislative activity which we interpret here as intent to preempt a Civil Damages Act or common law remedy against social hosts.” See also Williams v. Klemesrud, 197 N.W.2d 614 (Iowa 1972), abrogated by Iowa Code § 123.92 (1972).
54 See supra notes 50-51 and accompanying text.
55 See Kelly v. Gwinnell (Garibaldi, J., dissenting), 96 N.J. at 561 n.l, 476 A.2d at 1230-31 n.l; Walker v. Key, 101 N.M. 631, 635, 686 P.2d 973, 977 (Ct. App. 1984) (“Youth and inexperience make misuse of alcohol . . . more foreseeable. . . . [T]he legislature has determined that minors fall within a special class, and that public policy dictates that the minors and the public are entitled to be protected from those who would illegally furnish liquor to underaged persons.”).
56 See Congini v. Portersville Valve Co., 504 Pa. 157, 161, 470 A.2d 515, 517 (1983) (“[O]ur legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol.”); Holmquist v. Miller, 352 N.W.2d 47, 52 (Minn. Ct. App. 1984), rev’d, 367 N.W.2d 468 (Minn. 1985) (“The social ills from intoxication are grossly aggravated when minors are involved because of their documented inability to cope properly with intoxicating liquor. Imposing civil liability . . . serves to promote our strong public policy of preventing our youth from causing senseless damage to themselves and the public”).
57 See Mosher, supra note 47, at 783.
58 Id. at 781. But see Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6,453 N.E.2d 430 (1983) (a liquor store operator’s mistake of fact, based upon reasonable reliance on a driver’s license, may be a defense against a claim of negligence in selling liquors to a minor).
59 See, e.g., Halvorson v. Birchfield Boiler, Inc., 76 Wash. 2d 759, 458 P.2d 897 (1969) (employer who provided liquor to adult employee had no common law duty to third party injured by employee); Weinke v. Champaign County Grain Assn., 113 Ill. App. 3d 1005, 447 N.E.2d 1388 (1983) (fellow employees who provided liquor to adult and drove him to his car had no duty to third parties).
60 See, e.g., Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983) (consumption of alcohol by adult guest is proximate cause of subsequent occurrences); Heldt v. Brei, 188 III. App. 3d 798, 455 N.E.2d 842 (1983) (drinking liquor, rather than its sale by party host, is proximate cause of intoxication; no common law cause of action lies against social host who gives or sells liquor to an ordinary person).
61 See, e.g., Coulter v. Superior Court of San Mateo County, 21 Cal. 3d 144, 577 P.2d 669, 145 Cal. Rptr. 534 (1978), abrogated by Cal. Civ. Code § 1714 & Cal. Bus. & Prof. Code § 25602 (West 1978) (§ 1714(b): “It is the intent of the Legislature to abrogate the holdings in cases such as . . . Coulter v. Superior Court [citation omitted] and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person, (c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”). The California statute immunizing social hosts from civil liability was subsequently upheld against constitutional challenge. Cory v. Shierloh, 29 Cal. 3d 430, 629 P.2d 8, 174 Cal. Rptr. 500 (1982). See also Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971) restricted by Or. Rev. Stat. §§ 30.955-960 (1983).
62 Kelly, 96 N.J. at 548, 476 A.2d at 1224. For a discussion of duty in the alcohol context generally, see Mosher, supra note 47, at 779-81 (“To determine a server’s duty, the court must make a decision concerning the scope of the server’s social responsibility based on the foreseeability of the harm that occurred and the fairness of requiring servers to take specific actions to avoid it.”).
63 Kelly, 96 N.J. at 547-48, 476 A.2d at 1224.
64 Id. at 550 n.9, 476 A.2d at 1225 n.9.
65 Id.
66 Id. at 549-51, 476 A.2d at 1225.
67 See Mosher, supra note 47, at 789-90.
68 Id. at 791; National Safety Council, Alcohol and the Impaired Driver: A Manual on the Medicolegal Aspects of Chemical Tests for Intoxication 6 (1976).
69 Mosher, supra note 47, at 791-92, 794-96.
70 Id. at 791-92.
71 Id.
72 Id. at 794-96. Other risk-reduction mechanisms noted by Mosher include: publicizing dangers of drinking and driving; providing regular transportation to and from taverns; expanding employee training; and providing attractive foods and non-alcoholic drinks.
73 See generally F. Scott Fitzgerald, the Great Gatsby passim (1925).
74 See generally R. Colinvaux, the Law of Insurance 378 n.3 (4th ed. 1979) (“There is . . . nothing comprehensive certainly against all risks in a normal ‘householder’s comprehensive’ policy.”).
75 See Mosher, supra note 47, at 791. Mosher notes that annual insurance premiums for small chains of commercial establishments may reach $100,000. Moreover, many insurance companies now refuse to sell liability insurance to commercial licensees. Some state legislatures have even attempted to establish insurance mechanisms for those tavernkeepers who cannot secure conventional liability insurance. See, e.g., Act of July 31, 1985, ch. 223 1985 Mass. Acts 811. Although the risk of liability for social hosts (who serve liquor infrequently) would likely be lower than the risk for commercial establishments, damage awards to victims of drunk drivers would probably be equivalent. Thus, premiums for liability insurance to cover the risk of alcohol-related injuries could be quite large. See also J. Birds, Modern Insurance Law 3-4 (1982) (“[I]n general[,] third party [liability] insurance is much more expensive and less efficient than first party [property] insurance.”).
76 See generally W. Prosser & W. Keeton, supra note 42, at 597 (“Even in fields where liability insurance is most prevalent, there are still many defendants who do not have it. Moreover, the uninsured are, as a group, those who are least responsible financially, and so unlikely to be able to pay a judgment. . . . It is, in short, those who are unable to pay for the harm they do, who are most likely to do harm.”).
77 Kelly v. Gwinnell, 96 N.J. at 568, 476 A.2d at 1235 (Garibaldi, J., dissenting) (“[M]any homeowners and apartment renters may not even have homeowner’s insurance and probably cannot afford it.”).
78 Kelly, 96 N.J. at 551,476 A.2d at 1226 (“While the rule in this case will tend also to deter drunken driving, there is no assurance that it will have any significant effect.”).
79 See N.Y. Times, Dec. 30, 1984, at 16, col. 2 (“In a recent survey of 75 companies in the state, the Employers Association of New Jersey found that 60 percent had devised new rules for their holiday office parties, including limits or outright bans on alcohol. Six percent of those surveyed had decided to forgo office parties altogether.”).
80 See generally Reed, Reducing the Costs of Drinking and Driving in Alcohol and Public Policy: Beyond the Shadow of Prohibition 336, 346 (1981). Reed analyzes the effect of legislative measures to reduce drunken driving on general deterrence and concludes that the risk of punishment initially deters drunk drivers, especially when the proposed measures are well-publicized. As time goes on, however, drivers realize that the threatened punishment is unlikely to occur. “This realization cause[s] an ‘evaporation’ of the act’s deterrent effect.” Id. at 343-44. In regard to severity of punishment, Reed notes that “people’s behavior is relatively insensitive to changes in the seriousness of an adverse outcome that is viewed as very unlikely to occur.” Id. at 348.
81 Kelly, 96 N.J. at 561, 476 A.2d at 1231 (Garibaldi, J., dissenting). The dissent maintained that a public policy decision with such far-reaching social effects is properly a province of the legislature, rather than the courts.
82 National Safety Council, supra note 68, at 7.
83 Id. at 6.
84 See Panel on Alternative Policies Affecting the Prevention of Alcohol Abuse and Alcoholism, Alcohol and Public Policy: Beyond the Shadow of Prohibition 10-14 (1981). The authors note that the United States has fostered three distinct historical views of drinking: (1) the “colonial view,” in which drinking is a valued social custom and overindulgence is a sign of moral weakness; (2) the “temperance view,” in which drinking is a public hazard that may only be controlled by restricting or banning alcohol use; and (3) the “alcoholism view,” in which drinking may have serious consequences for those persons susceptible to the disease of alcoholism, and societal resources should be devoted to treating those who are vulnerable to the condition. The temperance view is no longer widely accepted, due in large part to the failure of the Prohibition experiment of the 1920s and ‘30s. For a brief overview of the lessons of Prohibition, see Howland & Howland, 200 Years of Drinking in the United States: Evolution of the Disease Concept in Drinking: Alcohol in American Society—Issues and Current Research 39-60 (1978). For a more detailed discussion, see Aaron & Musto, Temperance and Prohibition in America: A Historical Overview in Alcohol and Public Policy: Beyond the Shadow of Prohibition 127-81 (1981).
85 This possibility is suggested by Walker v. Kennedy, 338 N.W.2d 254 (Minn. 1983) (minor daughter hosted party at parents’ home but did not provide liquor to guest; no social host liability where guest is not furnished with alcohol, and no special relationship exists between host and guest sufficient to impose a duty to control drinker’s actions).
86 See Mosher, supra note 47, at 792. See also Reed, supra note 80, at 356 (“One would hope that third-party liability would cause those liable . . . to take steps to prevent drunk driving by patrons. Unfortunately, the criteria by which liability is judged do not encourage servers to take precautions.”).
87 The Kelly court explicitly declined to address the apportionment of damages between joint tortfeasors. If damages are to be apportioned on the basis of comparative fault, the larger portion may well fall upon a judgment-proof driver, defeating the court’s goal of better compensation of injured victims. For dram shop cases permitting comparative fault allocations see Herrly v. Muzik, 355 N.W.2d 452 (Minn. Ct. App. 1984); Lyman v. Bavar Co., 136 Mich. App. 407, 356 N.W.2d 28 (1984). On the other hand, if liability between tortfeasors is joint and several, it is conceivable that hosts will be responsible for the full extent of the injury. See generally W. Prosser & W. Keeton, supra note 42, at 327-28. See also supra note 18.
88 See supra notes 68-72 and accompanying text.
89 See supra notes 55-57 and accompanying text.
90 Kelly, 96 N.J. at 559, 476 A.2d at 1230.
91 See, e.g., Strand v. Village of Watson, 245 Minn. 414, 422, 72 N.W.2d 609, 615 (1955) (“the seller, using his usual and reasonable powers of observation, sees or should see that the buyer is intoxicated”); People v. Johnson, 81 Cal. App. 2d Supp. 973, 975-76, 185 P.2d 105, 106 (1947) (“The use of intoxicating liquor by the average person in such quantity as to produce intoxication causes many commonly known outward manifestations which are ‘plain’ and ‘easily seen or discovered.’ If such outward manifestations exist and the seller still serves the customer so affected he has violated the law, whether this was because he failed to observe what was plain and easily seen or discovered, or because, having observed, he ignored that which was apparent.”). See also Mosher, supra note 47, at 790-91.
92 See, e.g., Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St. 3d 123, 464 N.E.2d 521 (1984) (constructive knowledge of intoxication is not a basis for civil liability); Dickinson v. Edwards, 37 Wash. App. 834, 839, 682 P.2d 971, 973 (1984) (“[A] person’s sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal.”)
93 Kelly, 96 N.J. at 543-44, 476 A.2d at 1221-22.
94 See, e.g., Cartwright v. Hyatt Corp., 460 F.Supp. 80 (D.D.C. 1978) (an expert opinion as to probable intoxication based upon a blood alcohol level is mere conjecture and does not create a genuine issue for trial); Seeley v. Sobczak, 281 N.W.2d 368 (Minn. 1979) (a blood alcohol concentration of 0.269% is not obvious intoxication as a matter of law); Dickinson v. Edwards, 37 Wash. App. 834, 682 P.2d 971 (1984) (driver’s admission of number of drinks consumed, measured blood alcohol level of 0.17%, and signs of intoxication observed by investigating patrolman after accident do not raise material question of fact as to obvious intoxication at time driver was served).
95 Most criminal statutes state that a blood alcohol reading of 0.10% (100 mg. alcohol to 100 ml. blood) is sufficient for conviction of driving while intoxicated. See, e.g., Mass. Gen. Laws Ann. ch. 90, § 24(e) (West Supp. 1985) (“In any prosecution for [driving under the influence of intoxicating liquor] . . ., evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor. . . . [I]f such evidence is that such percentage was ten one-hundredths or more, there shall be a presumption that such defendant was under the influence of intoxicating liquor.”). Studies indicate that concentrations of alcohol below 0.05% are usually inconsequential, but that levels in excess of 0.08%-0.10% dangerously affect the driving skills of most individuals. Havard, , Alcohol and Road Accidents in Alcoholism: New Knowledge and New Responses 251, 251-54 (1976)Google Scholar. For civil liability to be imposed, a higher standard—”obvious intoxication”—is generally required.
96 American Medical Association, Manual on Alcoholism at vii-viii (1968); Havard, supra note 95, at 251-54; F. Hofmann, A Handbook On Drug and Alcohol Abuse: The Biomedical Aspects 101-03 (1975); Mello, , Clinical Aspects of Alcohol Dependence in 45 Handbook of Experimental Pharmacology 617 (1977)Google Scholar.
97 National Safety Council, supra note 68, at 9.
98 American Medical Association, supra note 96, at viii; F. Hofmann, supra note 96, at 101-03.
99 See generally F. Hofmann, supra note 96, at 101-09.
100 National Safety Council, supra note 68, at 143-44. Symptoms which may support a finding of obvious intoxication include: (1) odor of the breath; (2) flushed appearance; (3) lack of muscular coordination; (4) speech difficulties; (5) disorderly or unusual conduct; (6) mental disturbance; (7) visual disorders; (8) sleepiness; (9) muscular tremors; (10) dizziness; and (11) nausea.
101 See Dickinson v. Edwards, 37 Wash. App. 834, 682 P.2d 971 (1984) (blood alcohol level, absent indicia of visible intoxication, did not present material question of fact as to obvious intoxication of guest).
102 Of course, independent of liability for furnishing liquor, a person ordinarily has no duty to prevent an intoxicated friend from driving in the absence of a special relationship between the parties. See Ashlock v. Norris, 475 N.E.2d 1167, 1171 (Ind. Ct. App. 1985).
103 See Mosher, supra note 47, at 798.
104 On one hand, “[a] jury is likely to believe that a patron must have been obviously intoxicated when served because of subsequent events rather than observations made when the patron was served.” Mosher, supra note 47, at 790-91. On the other hand, “[m]any jurors would probably be reluctant to hold social hosts liable for acts which the jurors themselves engage in on a regular basis.” Note, Tort Liability for Suppliers of Alcohol, 44 Mo. L. Rev. 757, 771 (1979).
105 See generally W. Prosser & W. Keeton, supra note 42, at 263-80.
106 See Dooley, supra note 45, at 148-49.
107 Kelly, 96 N.J. at 543, 476 A.2d at 1221.
108 See, e.g., Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507, 510 (1983) (“[T]he great weight of authority supports the view that in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.”).
109 See, e.g., Figuly v. Knoll, 185 N.J. Super. 477, 449 A.2d 564 (1982) (host who was former commercial bartender, knew guest from work, characterized him as “alcoholic or close to it,” and served guest approximately one dozen vodka tonics in five hours, may be liable to injured third parties).
110 See, e.g., Garcia v. Jennings, 427 So.2d 1329 (La. Ct. App. 1983) (adults who purchased alcohol, served it to minor, and expelled minor from car where minor fell into bayou and drowned had statutory duty not to provide liquor and, once provided, to exercise control over minor).
111 W. Prosser & W. Keeton, supra note 42, at 178.
112 One court has recently imposed liability in just such a case. See Ashlock v. Norris, 475 N.E.2d 1167 (Ind. Ct. App. 1985) (friend who provided liquor to intoxicated companion in tavern may be liable to injured third party).
113 See supra note 85 and accompanying text.
114 A related question is the scope of the guest’s potential conduct for which a social host may be responsible. See Clark v. Mincks, 364 N.W.2d 226, 234 (Iowa 1985) (McGiverin, J., dissenting) (“It would be no great leap from the majority’s holding to make the social host civilly responsible for the injury done by his or her intoxicated guest in assaults, sexual abuse, or other criminal acts that might occur after the guest has left the hospitality of the social host.”)