BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 1407 (Committee on Judiciary)
          As Amended June 27, 2011
          Hearing Date: July 5, 2011
          Fiscal: No
          Urgency: No
          SK:rm
                    

                                        SUBJECT
                                           
            Social Host Liability: Furnishing Alcohol to Underage Persons

                                      DESCRIPTION  

          This bill would clarify California's social host liability 
          statute which provides that a claim may be brought against an 
          adult who knowingly furnishes alcohol at his or her residence to 
          a person under 21 years of age.  This bill would specifically 
          provide that the adult know, or should have known, that the 
          person served alcohol was under age 21.  The bill would also 
          specify that a claim under the statute could be brought by, or 
          on behalf of, a minor or a person who was harmed by that minor.

                                      BACKGROUND  

          According to the National Institute on Alcohol Abuse and 
          Alcoholism (NIAAA), approximately 5,000 people under the age of 
          21 die every year as a result of underage drinking.  This number 
          includes 1,900 deaths from car accidents, 1,600 homicides, 300 
          suicides, and hundreds of deaths from other injuries such as 
          falls, burns, and drownings.  Children who drink alcohol can 
          also face significant health risks, particularly with respect to 
          alcohol's effect on the liver and the developing brain, muscles, 
          and bones.  NIAAA also reports that research shows that serious 
          drinking problems in adulthood, such as alcoholism, often "begin 
          to appear much earlier, during young adulthood and even 
          adolescence."

          In June 2008, the Substance Abuse and Mental Health Services 
          Administration (SAMHSA) within the U.S. Department of Health and 
          Human Services reported that "m]ore than 40 percent of the 
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          nation's estimated 10.8 million underage current drinkers 
          (persons aged 12 to 20 who drank in the past 30 days) were 
          provided free alcohol by adults 21 or older  . . .  The study 
          also indicates that one in 16 underage drinkers (6.4 percent or 
          650,000) was given alcoholic beverages by their parents in the 
          past month."  The report also found that "a]n average of 3.5 
          million people aged 12 to 20 each year (9.4 percent) meet the 
          diagnostic criteria for having an alcohol use disorder 
          (dependence or abuse).  About one in five people in this age 
          group (7.2 million people) have engaged in binge 
          drinking-consuming five or more drinks on at least one occasion 
          in the past month."

          Last year, in an effort to help discourage underage drinking and 
          hold adults legally responsible when they knowingly provide 
          alcohol to minors, the Legislature passed and the Governor 
          signed AB 2486 (Feuer, Ch. 154, Stats. 2010).  That measure 
          provided that a parent, guardian, or other adult could be held 
          liable if he or she knowingly furnishes alcoholic beverages at 
          his or her residence to a person under 21 years of age.  This 
          bill is a clean-up measure and would clarify that the adult 
          know, or should have known, that the person served alcohol was 
          under age 21.  The bill would also specify that a claim could be 
          brought by, or on behalf of, a person under 21 years of age or 
          an individual who was harmed by the underage person.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that everyone is responsible, not only for 
          the result of his or her willful acts, but also for an injury 
          occasioned to another by his or her want of ordinary care or 
          skill in the management of his or her property or person, except 
          so far as the latter has, willfully or by want of ordinary care, 
          brought the injury upon himself or herself.  (Civ. Code Sec. 
          1714(a).)

           Existing law  provides that it is the intent of the Legislature 
          to abrogate the holdings in cases such as Vesely v. Sager (1971) 
          5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 
          and Coulter v. Superior Court (1978) 21 Cal.3d 144 and to 
          reinstate the prior judicial interpretation of Civil Code 
          Section 1714 as it relates to the 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 
                                                                      



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          is the proximate cause of injuries inflicted upon another by an 
          intoxicated person.  (Civ. Code Sec. 1714(b).)
           
          Existing law  provides that a social host who furnishes alcoholic 
          beverages to any person is not liable for damages suffered by 
          that person, or for injury to the person or property of, or 
          death of, any third person, resulting from the consumption of 
          those beverages.  (Civ. Code Sec. 1714(c).) 

           Existing law  provides an exception to the above, allowing 
          liability against a parent, guardian, or another adult who 
          knowingly furnishes alcoholic beverages at his or her residence 
          to a person under 21 years of age.  Existing law provides that 
          the furnishing of the alcoholic beverage may be found to be the 
          proximate cause of resulting injuries or death.  (Civ. Code Sec. 
          1714(d).)

          This bill  would require that the adult know, or should have 
          known, that the person served alcohol was under age 21.  
           This bill  would also specify that a claim under the statute 
          could be brought by, or on behalf of, the person under 21 years 
          of age or an individual who was harmed by that person.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes that the intent of this measure is to "reduce 
          uncertainty in the implementation of California's new social 
          host act" and notes that the bill would:   
          
          1.Clarify what is meant when the statute says "knowingly 
            furnishes." The proposed standard is that an adult can be 
            found to have knowingly furnished alcohol to persons under 21 
            years of age by either being shown to actually know the 
            persons being provided the alcohol were under 21, or being 
            shown to "should have known" that the persons were under 21 
            (by facts surrounding the incident).  Thus, in the absence of 
            actual knowledge, the jury will be asked to determine whether 
            the adult nevertheless should have known that the person was a 
            minor (by being a contemporary of their daughter's class in 
            high school, for example.)  This clarifies that purposeful 
            lack of knowledge of the age of the minors is not an automatic 
            shield from liability if the adults should have known they 
            were minors.

                                                                      



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          2.Clarify that the minor himself or herself may bring an action 
            under this subsection for his or her own harm caused by having 
            been furnished alcohol, as well as third parties (those 
            injured by the minor's conduct, for example) being able to 
            bring such suits.

          Supporter Consumer Attorneys of California (CAOC) writes that 
          this bill is intended to clarify the scope of AB 2486, a 
          CAOC-sponsored bill.  CAOC writes: 

            Last year, CAOC and MADD co-sponsored AB 2486, designed to be 
            one more important tool in the fight against underage 
            drinking.  Shockingly, prior to our bill, there was complete 
            "social host" immunity in the civil courts in instances where 
            someone, in his or her home, provided alcohol to anyone, 
            including a minor.  Although the social host may be criminally 
            prosecuted, the law was absolute that no one could bring a 
            civil action.  After AB 2486 was signed into law, the Judicial 
            Council committee that develops jury instructions was confused 
            about some of the language, so CAOC worked with all parties 
            (the defense counsel and others) to clarify its application.  
            AB 1407 is the result of those discussions and the language 
            has been vetted and agreed to by all interested parties.
           



           2.  Bill would clarify what it means to "knowingly furnish" 
            alcohol under California's social host liability statute  
          
          Prior to the enactment of California's social host liability 
          statute last year, there was no civil liability for a parent, 
          legal guardian, or other adult who knowingly provided alcohol to 
          underage persons.  In fact, up until that time, California's 
          "social host liability" statute expressly barred such an action, 
          providing that a social host who furnishes alcoholic beverages 
          to any person is not liable for damages suffered by that person, 
          or for injury to the person or property of, or death of, any 
          third person, resulting from the consumption of those beverages. 
           

          AB 2486 carved out an exception to that immunity by providing 
          that a parent, guardian, or other adult could be held civilly 
          liable if he or she knowingly furnishes alcoholic beverages at 
          his or her residence to a person under 21 years of age.  After 
          the statute was enacted, questions arose about the section's 
                                                                      



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          terminology and, specifically, what it meant to "knowingly 
          furnish" alcoholic beverages to a person under age 21 and 
          whether the adult had to know that the person to whom he or she 
          was furnishing alcohol was under 21 years old.  This bill would 
          provide liability for the adult when he or she serves alcohol at 
          home to a person "whom he or she knows, or should have known to 
          be under 21 years of age."

          That standard is intended to provide for liability when the 
          adult knows that the person served alcohol was under 21 years 
          old, or when the adult should have known that to be the case.  
          The author argues that this makes clear that the adult cannot 
          purposely ignore a person's age.  For example, it could be the 
          case that an adult should have known that an individual was 
          under 21 years old if he or she is a classmate of the parent's 
          high school age child.

          Staff notes that under this bill, and existing law, a plaintiff 
          bringing an action under the social host statute would still 
          need to meet all of the elements of a negligence action: duty, 
          breach, causation, and damages.  With respect to causation, 
          Civil Code Section 1714(b) provides 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.  

          AB 2486 created an exception to this provision by specifying 
          that a parent, guardian, or adult could be held civilly liable 
          if he or she knowingly furnishes alcoholic beverages at his or 
          her residence to an underage person.  As a result, AB 2486 
          provided that proximate cause may be found in this instance.  
          When AB 2486 was considered by the Legislature, the author noted 
          that "the general 'proximate cause' rule barring suits against 
          the providers of alcohol clearly should not apply.  . . .  the 
          very narrow circumstances covered by this measure strike at the 
          heart of adult responsibility for children.  Allowing adults to 
          be potentially held accountable for the injuries that can result 
          to children-too often tragically including death-when they 
          knowingly provide alcoholic beverages to children is not only 
          reasonable, it is imperative to protect the health and safety of 
          our children."  As a result, the intent of last year's changes 
          to social host liability were to provide that the furnishing of 
          alcoholic beverages in these instances can be the proximate 
          cause of injuries sustained by a third party.  

                                                                      



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          3.  Clarifying who may bring a claim  
          
          This bill would specify that a claim under the statute could be 
          brought by, or on behalf of, the person under 21 years of age or 
          an individual who was harmed by that person.  This provision is 
          meant to clarify who may bring a claim under the social host 
          statute so that, for example, the adult who furnished the 
          alcoholic beverages to the minor could be liable to that minor 
          for his or her injuries.  In addition, an individual who was 
          harmed by that minor could also bring a claim against the adult 
          furnisher.  The provision is thus intended to provide guidance 
          to the courts in applying the statute.     

          4.  Civil liability when adults knowingly provide alcohol to 
            minors: other states  
          
          Last year, California joined number of other states to impose 
          civil liability upon adults when they knowingly provide alcohol 
          to minors.  According to the author's office, the following 
          states permit such liability: Alabama, Alaska, Arizona, 
          Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, 
          Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, 
          Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New 
          Hampshire, New Jersey, New Mexico, New York, North Carolina, 
          North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, 
          Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and 
          Wyoming.  
           

          Support  :  Consumer Attorneys of California 
           
          Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author 

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

           Prior Vote  :  Not Relevant 


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