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finding relevant, in claim arising from a drunk driving accident, that “[p]arents may incur liability when they negligently entrust their child with an instrumentality (such as a gun or car) which, because of the child's immaturity or lack of experience, may become a source of danger to others”
Summary of this case from Kiriakos v. DankosOpinion
No. 89-834
Submitted April 11, 1990 —
Decided July 11, 1990.
Torts — Parents liable for damages caused by a child's wrongful conduct, when.
O.Jur 3d Family Law § 839.
O.Jur 3d Intoxicating Liquors §§ 390, 397.
At common law, a parent is not ordinarily liable for damages caused by a child's wrongful conduct. However, liability can attach when the injury committed by the child is the foreseeable consequence of a parent's negligent act. In those circumstances, liability arises from the conduct of the parent.
APPEAL from the Court of Appeals for Ottawa County, No. OT-87-40.
On the evening of December 31, 1983, Ronald Cordell, Harry Cordell, Jr. and Robert Chio held a New Year's Eve party at the home of their parents, Harry Cordell, Sr. and Linda Cordell. The parents had given their children permission to invite a few friends to the house that evening. The parents knew that the children "probably would have some beer." For this reason, the parents apparently instructed their children to invite their friends to spend the night. At the time of the party, the parents had gone out of town.
Approximately twenty people attended the party; most were under the legal drinking age of nineteen. Some guests apparently brought their own beer. One guest, Ernest Goodsite, purchased a pony keg of beer which was placed in the bathtub, along with various cans and bottles of beer. Robert Huston, Matthew Bodnar and Lowell Rouanzoin brought the remainder of a twelve-pack of beer.
At the time of Huston's injuries, no one was permitted to furnish beer to anyone under the age of nineteen. R.C. 4301.69 (139 Ohio Laws, Part II, 2508, 2521).
After several hours, Huston left the party as a passenger in the back seat of his car. Bodnar drove and Rouanzoin sat beside him in the passenger seat.
In the amended complaint, it is alleged that Huston's car veered off State Route 163 and struck a tree. It then apparently slid back onto the icy road. Plaintiffs further alleged that Carl Konieczny drove his car into Huston's. Huston was the sole occupant of the car at the time of the second collision. He suffered injuries.
Huston and his parents sued Harry Cordell, Sr., Linda Cordell, Ronald Cordell, Robert Chio, Harry Cordell, Jr., Matthew Bodnar, Bodnar's parents, Lowell Rouanzoin, Rouanzoin's parents and Ernest Goodsite, among others. The Hustons alleged that the Cordell parents negligently sponsored a party at which minors were allowed to consume alcohol. Plaintiffs further alleged that the Cordell children negligently acquired alcohol and provided it to minors.
Plaintiffs also claimed that Bodnar or Rouanzoin was driving at the time the car veered off the road and that the two left the semiconscious Huston in the car to make it appear that Huston had been driving at the time of the accident. In a videotaped affidavit, Huston identified Bodnar as the driver of the vehicle when the accident occurred.
Unfortunately, neither a copy nor a transcript of the videotape has been submitted to us. However, the opinion by the court of appeals indicates that this tape was part of the record presented to the trial court. Further, the parties do not dispute that in the tape, Bodnar was named by Huston as the driver. Thus we assume, for the purpose of evaluating the summary judgment granted by the trial court, that the tape was before the trial court.
All defendants filed motions for summary judgment and/or dismissal. This appeal arises out of the trial court's orders granting summary judgment in favor of the Cordell family and Goodsite. The court of appeals reversed those orders because it found genuine issues of disputed material fact.
The cause is before the court pursuant to the allowance of motions to certify the record.
Murray Murray Co., L.P.A., W. Patrick Murray, William H. Bartle and Steven C. Bechtel, for appellees Robert Huston, Roger Huston and Joyce Huston.
Eastman Smith, Richard E. Antonini and Joseph A. Gregg, for appellant Goodsite.
Schuller Bennett and James L. Schuller, for appellants Ronald Cordell, Harry Cordell, Sr., Linda Cordell, Harry Cordell, Jr. and Robert Chio.
Manahan, Pietrykowski, Bamman DeLaney and Cormac B. DeLaney, for appellee Bodnar.
Sauter Hohenberger and Wayne P. Hohenberger, for appellees Lowell Rouanzoin, William Rouanzoin and Frances Rouanzoin.
Pursuant to Civ. R. 56(C), we must determine whether appellants were entitled to summary judgment. We find that they are not, because genuine issues of material fact exist; we affirm the decision of the court of appeals.
Our analysis of the issues requires three steps. First, we must determine whether the driver of the car was intoxicated. If the evidence supports an affirmative finding, we must resolve two additional issues. We must decide whether liability can lie against the parents who authorized the party at which the driver became intoxicated. Finally, we must determine the responsibility of those who furnished the intoxicants which caused the driver to become intoxicated.
I
Our threshold inquiry is: Was the driver of the car intoxicated? Huston claimed that Bodnar was driving at the time of the accident. Bodnar disagreed, claiming that he drove the car to his own home where he exited the vehicle, leaving Rouanzoin and Huston to drive to their homes. Rouanzoin confirmed Bodnar's version of the facts. Thus, the evidence is conflicting as to the identity of the driver.
However, the appeal is before us on motions for summary judgment and we must construe the evidence most strongly in the non-moving parties' favor. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O. 2d 311, 309 N.E.2d 924. Thus, for purposes of this appeal, we accept plaintiffs' evidence that Bodnar was driving.
Bodnar claims that he drank only soft drinks on the night of the incident. None of the parties herein claimed that anyone at the party saw Bodnar drink alcoholic beverages.
Plaintiffs produced a deposition by Ann Fizer, who stated she had a conversation with Bodnar as she was arriving at the party and he was leaving. During the conversation, Bodnar told Fizer that he and the others were drunk.
Fizer's statement contradicts the trial court's finding that no evidence existed that Bodnar drank intoxicants at the party. It may be inferred from Fizer's statement (when construed in a light most favorable to plaintiffs) that Bodnar consumed alcoholic beverages at the Cordell party, since Bodnar says he consumed no alcoholic beverages before arriving at the party. The conflict in the evidence should not be resolved on a motion for summary judgment.
Thus we assume, for the sole purpose of evaluating the summary judgment, that Bodnar was the driver of the car in which plaintiff suffered injury and that Bodnar became intoxicated at the party.
II
We next consider whether the Cordell parents can be held liable for Bodnar's intoxication. In tort law, whether a defendant owes a duty to a plaintiff depends upon the relationship between them. Commerce Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188, 1192. Whether a duty exists depends on the foreseeability of injury. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 39, 41 O.O. 117, 121, 90 N.E.2d 859, 863.
Once the existence of a duty is found, a defendant must exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 270; Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 47 O.O. 2d 282, 283, 247 N.E.2d 732, 734; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338, 190 N.E. 924, 925; Bellefontaine Ry. Co. v. Snyder (1874), 24 Ohio St. 670, 676.
The complaint alleges that the Cordell children negligently acquired and served alcoholic beverages to underage persons at the party. At the time of Huston's injury, R.C. 4301.69 stated in part:
Whether plaintiffs have made out a cause of action against the Cordell children for allegedly furnishing beer to underage persons in violation of former R.C. 4301.69 is not before us.
"No person shall * * * buy beer for or furnish it to a person under the age of nineteen, unless given by a physician in the regular line of his practice, or by a parent or legal guardian." 139 Ohio Laws, Part II, 2508, 2521.
We have held that one who furnishes alcoholic beverages to an underage person may be held liable for injuries to a third person resulting from that wrongful conduct. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798.
The Cordell parents, however, argue that they would be liable only if they personally gave beer to Bodnar. At common law, a parent is not ordinarily liable for damages caused by a child's wrongful conduct. Elms v. Flick (1919), 100 Ohio St. 186, 126 N.E. 66, paragraph four of the syllabus; Prosser Keeton, Law of Torts (5 Ed. 1984), Section 123. However, liability can attach when the injury committed by the child is the foreseeable consequence of a parent's negligent act. Kuhns v. Brugger (Pa. 1957), 135 A.2d 395, 404, fn. 14. In those circumstances, liability arises from the conduct of the parent. Bankert v. Threshermen's Mut. Ins. Co. (Wis. 1983), 329 N.W.2d 150, 153. Applying these principles, courts have held parents liable for the acts of their children in several ways which are relevant to the issue here.
Parents may incur liability when they negligently entrust their child with an instrumentality (such as a gun or car) which, because of the child's immaturity or lack of experience, may become a source of danger to others. See, e.g., Davis v. Mack (C.P. 1939), 29 Ohio Law Abs. 210, 15 O.O. 4, and Bankert, supra.
A parent may also be held responsible for failure to exercise reasonable control over the child when the parent knows, or should know, that injury to another is a probable consequence. See, e.g., Cashman v. Reider's Stop-N-Shop Supermarket (1986), 29 Ohio App.3d 142, 29 OBR 158, 504 N.E.2d 487; Landis v. Condon (1952), 95 Ohio App. 28, 52 O.O. 371, 116 N.E.2d 602; Parsons v. Smithey (Ariz. 1973), 504 P.2d 1272; Gissen v. Goodwill (Fla. 1955), 80 So.2d 701; see, also, 2 Restatement of the Law 2d, Torts (1965), Section 316.
Finally, when parents know of the child's wrongdoing and consent to it, direct it or sanction it, they may be held liable. Wery v. Seff (1940), 136 Ohio St. 307, 16 O.O. 445, 25 N.E.2d 692 (parent incurred liability for third person's injuries because parent consented to his fifteen-year-old son's driving the family car, in violation of city ordinance); Bankert, supra; Southern American Fire Ins. Co. v. Maxwell (Fla.App. 1973), 274 So.2d 579.
In the present case, when the evidence is viewed most favorably to plaintiffs, it can be concluded that: (1) the parents authorized the use of their home for a teenage party at which intoxicants would be consumed, (2) the parents knew or should have known that their children would furnish alcohol to underage guests, and (3) the parents were out of state and knew that there would be no parental or other supervision at the party.
These conclusions, taken most favorably to plaintiffs, demonstrate an authorization by the Cordell parents to their children to furnish intoxicants to others in violation of Ohio statutory law, as well as an abdication of parental responsibility. It does not stretch the established law of torts to say that such conduct fails to meet the standard of ordinary care expected of parents under the same or similar circumstances. Nor does resolution of this case require us to adopt the so-called "social host" theory of liability which some of the parties have invited us to consider.
III
The final issue centers on the absence of proof with respect to who, if anyone, specifically furnished intoxicants to Bodnar. Furnishing beer to underage persons violates R.C. 4301.69 and is negligence per se. See Mitseff v. Wheeler, supra; Gressman v. McClain (1988), 40 Ohio St.3d 359, 361, 533 N.E.2d 732, 735. However, appellants plausibly contend that there are several equally likely sources of Bodnar's alleged intoxication, and so plaintiffs failed to carry their burden of proof that appellants' alleged tortious conduct caused Huston's injuries.
The fact situation presented to us is addressed in 2 Restatement of the Law 2d, Torts (1965), Section 433B(3). Subsection (3) states: "Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm."
Comment f to subsection (3), supra, states that the reason for the exception is the unfairness of permitting tortfeasors to escape liability simply because the nature of their conduct and of the resulting injury has made it difficult or impossible to prove which of them caused the harm. Id. at 446. The exception applies when each of two or more actors has acted tortiously and the harm has resulted from the conduct of one or more of them. 2 Restatement of the Law 2d, Torts (1965), Section 433B, Comment g.
We adopted 2 Restatement of the Law 2d, Torts, Section 433B(3) in Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199. We followed Minnich in Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691, wherein we held that "[u]nder alternative liability theory, plaintiff must prove (1) that two or more defendants committed tortious acts, and (2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants." Id. at paragraph one of the syllabus.
In order for the burden of proof to shift from the plaintiffs under 2 Restatement of the Law 2d, Torts, Section 433B(3), all tortfeasors should be before the court, if possible. See Comment h to Section 433B(3) ("The cases thus far decided in which the rule stated in Subsection [3] has been applied all have been cases in which all of the actors involved have been joined as defendants."); Sindell v. Abbott Laboratories (Cal. 1980), 607 P.2d 924, 930-931; Summers v. Tice (Cal. 1948), 199 P.2d 1.
Applying these principles to the present case, plaintiffs must show: (1) that the beer furnished to underage persons came from the Cordells, Goodsite or the other named defendants, and (2) that Huston was injured as a proximate result of the wrongdoing of at least one of these defendants.
In the present case it is possible that Bodnar could have become intoxicated by beer furnished by other partygoers. However, the evidence, when taken in plaintiffs' favor, does not compel that conclusion. The trial court erred when it granted summary judgment on the basis that plaintiffs failed to prove the specific source of the beer consumed by Bodnar.
It is apparent from the record before us that the defendants may ultimately prevail as the result of findings in their favor on one or more of the disputed issues of fact. The record, however, is not sufficient to support the disposition of the claim against the Cordells and Goodsite by summary judgment.
We affirm the decision of the court of appeals and remand the cause to the court of common pleas for further proceedings consistent with our decision.
Judgment affirmed and cause remanded.
MOYER, C.J., DOUGLAS, WRIGHT and RESNICK, JJ., concur.
SWEENEY, J., concurs in judgment only.
HOLMES, J., dissents.
The broad language of the syllabus law of this opinion, supported by the content of the opinion, means that if parents provide their home for a group of teenagers who get together for a party, and are aware that the teenagers "probably will have some beer," even though not furnished by the parents, they (the parents) may be liable for injuries resulting from their children "chipping in" to buy some of the beer for the party. Under the stance of this case, liability may ensue, without any evidence that these parents' children were the providers of such alcohol to the tortfeasor.
The majority opinion here concludes among other things that "the parents knew or should have known that their children would furnish alcohol to underage guests * * *." Nowhere in this record before the trial court upon summary judgment is there evidence that the parents knew or should have known that their children were going to buy beer for the group — or even that they knew their children were going to "chip in" to buy the keg of beer.
Because there were several equally likely sources of Bodnar's alleged intoxication, some of which the defendants could not arguably be held responsible for, and because the plaintiffs have failed upon summary judgment to produce any evidence either demonstrating that the defendants' alleged negligence was the proximate cause of the plaintiffs' injuries, or eliminating the effectiveness of other causes of Bodnar's alleged intoxication for which the defendants are not legally responsible, summary judgment was properly entered for the Cordells and Goodsite by the trial court.