BILL ANALYSIS Ó 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 "Ým]ore than 40 percent of the (more) AB 1407 (Committee on Judiciary) Page 2 of ? 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 "Ýa]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 AB 1407 (Committee on Judiciary) Page 3 of ? 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. AB 1407 (Committee on Judiciary) Page 4 of ? 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 AB 1407 (Committee on Judiciary) Page 5 of ? 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. AB 1407 (Committee on Judiciary) Page 6 of ? 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 ************** AB 1407 (Committee on Judiciary) Page 7 of ?