The Maine Liquor Liability Act, 28-A M.R.S.A. §§ 2501-2520 (MLLA), provides for recovery of damages against anyone who negligently or recklessly “serves” alcohol to a minor.1 However, there are social gatherings where minors drink, some of which are even hosted by parents or other adults—so-called BYOB parties—at which no one “serves” the alcohol. When an intoxicated minor guest at such a gathering goes out and causes injuries, the question of the liability of the social host arises. In addition to criminal penalties,2 sound public policy provides a basis, outside the MLLA, for Maine courts to impose civil liability on social hosts who permit underage drinking to take place on premises within their control. Lawyers representing victims should be prepared to press for recognition of this common law cause of action.
Liability for injuries caused by an intoxicated minor is governed, for those who are “servers” of the alcohol, by the MLLA, the latest of the so-called “dram shop” (liquor liability) statutes that have been in effect in Maine since the 1800s. The MLLA defines a “server” as anyone who “sells, gives or otherwise provides liquor.” 28-A M.R.S.A. § 2503(5). A “server” is liable for “negligent” or “reckless” conduct as those terms are defined by the statute. Under the statute, a “server” includes a social host (i.e., a person who is not licensed to sell alcohol), such as a party host or an employer at a company event. One type of “negligent” or “reckless” service is where a person provides liquor to a person she knows, or reasonably should know, is a minor. That person is liable for injuries caused by the minor’s intoxication3 and the MLLA is the exclusive remedy, i.e., the sole basis for a claim for damages, against those who are defined in the act as “servers.”
While there are no Maine cases directly on point, contrary to the widely shared assumption by many lawyers, the liability of non-servers, who are outside the scope of the MLLA’s exclusivity, has strong support in the common law principles of duty and proximate cause. In Klingerman v. SOL Corp. of Maine, 505 A.2d 474 (Me. 1986), the Law Court held that the Dram Shop Act, 17 M.R.S.A. § 2002, a predecessor to the MLLA, provided a damages remedy only to “third persons” injured by the intoxicated person (did not permit the intoxicated person to recover for his own injuries) but held that the intoxicated person could still bring suit outside the statute under familiar common law negligence principles:
In Maine, we have not authoritatively decided whether such an action exists at common law. We are therefore unwilling to conclude that the statute is an exclusive remedy in the absence of express language to that effect.... We refuse to encumber the law of proximate causation with an artificial limitation that precludes jury consideration of the causal relationship between the sale of intoxicating beverages and consequent harm.
Id. at 477 - 478 (citations omitted) (emphasis added) .4 While, as noted above, the MLLA contains an exclusivity provision, as the Court has held on numerous occasions, a legislative intent to displace the common law by statute must be explicit, and the terms of a statute in derogation of the common law must be strictly construed. Batchelder v. Realty Res. Hospitality, LLC, 2007 ME 17, ¶ 23, 914 A.2d 1116, 1124. Under these principles, the MLLA’s exclusivity provision cannot be interpreted to bar common law claims against a person who is not acting as a “server” as defined by the Act.
Indeed, other states have decided that a social host of a BYOB party attended by underage drinkers may be liable to those injured by an intoxicated minor. One often cited case rejecting the artificial limitations criticized by the Law Court in Klingerman is Mcleary v. Hines, 817 F.2d 1081 (3d Cir. 1987). There, a minor held a party at her home in her parents’ absence. There was no proof that the host provided alcohol to the intoxicated minor guest. Nevertheless, the court held that liability could be found “...if the jury finds the host’s deliberate creation of a hospitable environment to be a substantial factor in the minor’s consumption of alcohol.” Id., 817 F.2d at 1085 (emphasis added). See also, Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986) (college students sponsoring a party at their apartment, while not providing the alcohol, could be liable for providing “substantial assistance” to minors in becoming intoxicated); Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005) (adult who hosts a party for minors and knows in advance that alcohol will be consumed is liable even though he does not furnish any alcohol).
To be fair, some courts have placed artificial limits on liability and rejected such a cause of action. One recent example is Juliano v. Simpson, 461 Mass. 527, 962 N.E.2d 175 (2012) in which the Massachusetts Supreme Judicial Court, despite noting that nine states impose social host liability for injuries to third parties where a host merely provides a location for underage drinking, held that a minor host of a BYOB party at her absent parents’ home could not be held liable for the injuries caused by an underage attendee at the party because she did not serve the alcohol and did not “effectively control” the supply of alcohol brought to the party by the guests. Despite that holding, however, two concurring justices, although agreeing with the result, criticized the apparent broadness of the court’s holding, suggesting that liability might be appropriate in a case involving an adult host of a BYOB party where minors were permitted to consume alcohol. Id. at 547.
In view of its reliance on proximate cause, as in Klingerman, the Law Court, when faced with the issue, should, at least, in an appropriate case, adopt the reasoning of the concurring justices in Juliano and impose common law negligence liability on any adult host of a BYOB party for underage drinkers for injuries caused by an intoxicated minor guest. An even more sound jurisprudential approach, however, would be to leave open for the fact finder the determination of liability against any host of this type of party, including a minor, based on the principles of duty and proximate cause, free of any arbitrary limitations.
As attorneys representing injured persons, we should always advocate for the expansion of victims’ rights through creative and aggressive lawyering. Attorneys for those injured by underage drinkers should not assume that such claims are barred by statute, but instead press for recognition of broad liability based on Maine common law.
1 A person under the legal drinking age of 21 is called a “minor” for purposes of liquor liability.
2 It is a crime for a person to knowingly allow “a minor under that person’s control or in a place under that person’s control to possess or consume liquor,” although a limited exception is provided for “a person who serves liquor or imitation liquor to a minor in a home in the presence of the minor’s parent, guardian or custodian.”
3 The MLLA also provides liability for reckless service by a social host to a person the server knows is “visibly intoxicated,” regardless of age.
4 See also, Samson v. DiConzio, 669 A.2d 760, 762 (Me. 1996) (The MLLA and preexisting dram shop statutes are simply legislative codifications of common law liability).