VIII. Social Host Liability
A. In General
§5.44 Social host liability is the potential liability of a person or an entity other than a retail licensee for the unlawful furnishing of alcoholic beverages. The liability of a social host in Michigan has been recognized only in the case of providing alcohol to a minor. Longstreth v Gensel, 423 Mich 675, 377 NW2d 804 (1985); see also Kuehn v Edward Rose & Sons, 189 Mich App 288, 472 NW2d 59 (1991).
In other jurisdictions, there is a split of authority on the viability of a social host cause of action for providing alcohol to an adult. Those states that have recognized a cause of action have based it on common-law principles, public policy, or specific statutory provisions.
Because of the pervasiveness of alcohol-related injuries in our society, continual efforts are being made to expand the liability of social hosts for providing alcohol to adults. At any one time, there are many cases in the lower courts as well as the court of appeals attempting to create a judicial recognition of such a cause of action. The court in Longstreth stated that a change in the present state of the law should be made only by the legislature or the supreme court on the basis of public policy. It is, therefore, unlikely that Michigan law will change unless either the supreme court accepts an application for leave to appeal on this issue and expands the liability of social hosts or the legislature creates a cause of action by statute.
Any potential action against a retail licensee is governed exclusively by the dramshop act. See §5.38.
For a discussion of the potential liability of an employer who furnishes alcoholic beverages, see Mark W. Cherry, Employer’s Liability as a Social Host, 70 Mich B J 1324 (1991).
B. Elements of the Cause of Action
§5.45 In Longstreth v Gensel, 423 Mich 675, 377 NW2d 804 (1985), the supreme court based the social host cause of action on MCL 436.33 (now MCL 436.1701), which prohibits the furnishing of alcohol to a person who is not at least 21 years old: “a person who knowingly sells or furnishes alcoholic liquor to a minor, or who fails to make diligent inquiry as to whether the person is a minor, is guilty of a misdemeanor.” Under MCL 436.1109(4), a minor for purposes of the Liquor Control Code is an individual who is less than 21 years of age.
Social host liability under Longstreth is based on negligence principles for violation of the statute. The defendant must knowingly provide alcoholic beverages to a minor or have failed to diligently inquire whether the individual was less than 21 years old. This language would seem to require, at a minimum, that the potential defendant knew that the minor was being furnished alcoholic beverages, even if the host did not know the individual was a minor.
The court of appeals has held that the social host must actually provide the alcoholic beverages and not just the setting in which the alcohol is consumed. Reinert v Dolezel, 147 Mich App 149, 383 NW2d 148 (1985). However, the Reinert court suggested that the result might be different if the imbibers were under age 18 because the parents would then have a duty to supervise their minor children.
In Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 478 NW2d 914 (1991), the court of appeals held that a company that held a Christmas party at a banquet hall could have social host liability notwithstanding the fact that the banquet hall was a liquor licensee that furnished the alcohol. The court held that where there is evidence that the social host retained some control over or actively participated in supplying a minor with alcohol, the social host can be jointly liable with the liquor licensee that furnished the alcohol.
In Brown v Jones, 200 Mich App 212, 503 NW2d 735 (1993), the court of appeals in a split decision held that persons who contributed money that went toward the purchase of alcohol to be consumed by a minor did not furnish alcohol to the minor under the Liquor Control Code. As a consequence, the court in Brown held that no liability could attach under MCL 436.33 (now MCL 436.1701) to one who contributes money to the joint purchase of alcohol when the purchase was actually made and delivered to the minor by another. The dissent in Brown argued that the jury should decide whether the act of contributing to the purchase of alcohol knowing that it is to be shared by the minor constitutes furnishing of alcohol to the minor in violation of the statute.
In Rogalski v Tavernier, 208 Mich App 302, 527 NW2d 73 (1995), the court of appeals held that criminal or violent acts are not the foreseeable results of serving alcohol to minors and consequently may not create a cause of action for social host liability. In Rogalski, the conduct at issue was an assault and murder committed by a minor who had been served alcohol by the social host. The Rogalski court found that the reasoning of Longstreth was limited to circumstances, such as automobile accidents, that are foreseeable results of alcohol intoxication.
C. Comparative Negligence
§5.46 Comparative negligence is available as a defense in an action for social host liability because the action is based on common-law principles. In recognizing the social host cause of action in the case of furnishing alcohol to minors, the supreme court specifically noted that comparative negligence should be applied if the facts support the defense. Longstreth v Gensel, 423 Mich 675, 698, 377 NW2d 804 (1985).
Under MCL 600.2955a(1), a defendant has an absolute defense if the injured person had an impaired ability to function due to the influence of alcohol or a controlled substance and, as a result of that impaired ability, was 50 percent or more the cause of the accident. If the person was less than 50 percent the cause of the accident, his or her damages will be reduced by that percentage. This statute does not violate either due process or equal protection considerations. Wysocki v Kivi, 248 Mich App 346, 639 NW2d 572 (2001).
If a plaintiff chooses to drink and become intoxicated and then chooses to ride with an intoxicated driver, the plaintiff is 50 percent or more the cause of any accident that occurs and the defendant is entitled to the absolute defense provided by MCL 600.2955a(1). See Piccalo v Nix (On Remand), 252 Mich App 675, 653 NW2d 447 (2002) (impairment defense applied in social host case where underage plaintiff became intoxicated at party and accepted ride home from intoxicated driver in van without back seats or seat belts).
See §1.35 for further discussion of comparative negligence and MCL 600.2955a(1).
D. The Noninnocent Party Doctrine
§5.47 There is a split of authority in the court of appeals on whether the noninnocent party doctrine applies to actions for social host liability. Arbelius v Poletti, 188 Mich App 14, 469 NW2d 436 (1991); Pollard v Village of Ovid, 180 Mich App 1, 446 NW2d 574 (1989). The court in Pollard held that one who contributes to the intoxication of a minor by furnishing alcohol to the minor is not within the scope of protection intended by MCL 436.1701, and therefore has no cause of action. The Arbelius panel held that the noninnocent party doctrine is unique to actions against liquor licensees and does not apply to social host liability. Under MCR 7.215(J), Arbelius is controlling.