Alioto v. Marnell
Alioto v. Marnell
Opinion of the Court
The plaintiff appeals from a Superior Court judge’s entry of summary judgment in favor of the defendants Richard and Ellen Mamell. We granted the plaintiff’s application for direct appellate review, and now affirm.
The defendants are the parents of Michael J. Mamell, the driver of an automobile which collided with an automobile driven by the plaintiff’s intestate, Robert J. Alioto, killing him. The plaintiff alleged that the defendants were negligent in failing to supervise a party given by Michael earlier that evening in their home and with their consent; in failing to prevent Michael, who was below the legal drinking age, from obtaining and consuming alcoholic beverages at the party; and in failing to prevent Michael from driving after he became intoxicated.
We summarize the facts as asserted in the parties’ affidavits and depositions, viewed in the light most favorable to the plaintiff. See, e.g., Coveney v. President of the College of the Holy Cross, 388 Mass. 16, 17 (1983), and case cited. Some time prior to November 10, 1982, the defendants’ son Michael asked them for permission to hold a party for his fellow employees in the Mamell home. At that time, Michael was nineteen years of age, below the legal drinking age. See G. L. c. 138, § 34A, as amended through St. 1979, c. 15, § 7. The defendants knew that Michael previously had been involved in incidents involving his abuse of alcoholic beverages, that at one time he had lost his driver’s license for operating a motor vehicle while under the influence of alcohol, and that there would be alcoholic beverages at the party. They did not tell Michael not to consume alcohol, but conditioned their consent to the party on his stipulation that he would not drive his automobile that evening. Michael agreed not to drive the automobile that evening, and told the defendants that in fact there would be no need for him to drive, as all his guests had their own means of transportation to and from the party. The automobile was registered and insured in the name of Richard Mamell; how
The party was held on the evening of November 10, in the basement recreation room of the Mamell home. The defendants spent most of the evening in the upstairs family room. At some time prior to midnight, Michael left the Mamell home and drove away. The defendants did not see him leave the house. They first, became aware of his departure when they heard and saw his automobile pulling out of the driveway.
This is not a case involving social host liability. The defendants did not furnish Michael with alcoholic beverages. Cf. McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986). The gravamen of the plaintiff ’ s action is the defendants’ allegedly negligent failure to supervise and control their son Michael’s actions. A parent has a duty to exercise reasonable care to prevent his minor child from intentionally or negligently inflicting harm on others, where the parent knows or should know of the child’s propensity for a particular type of harmful conduct and has the opportunity to take reasonable corrective measures. Caldwell v. Zaher, 344 Mass. 590, 592 (1962). The plaintiff asks us to extend the rationale of Caldwell to this case. We decline to do so.
In Caldwell, the plaintiff stated a good cause of action by alleging that the defendants knew or should have known of their minor child’s propensity to assault other children, but did nothing to restrain such propensity. Id. at 591-592. Here, there were assertions that the defendants knew or should have known of their son’s propensity to drink and drive, because he previously had been involved in incidents involving drinking, and had lost his driver’s license for operating a motor vehicle while under the influence of alcohol. Unlike the child in Caldwell, however, at the time of this incident, Michael Mamell, although below the legal drinking age, was not a
The plaintiff further argues that the defendants are liable for Michael’s actions because, having conditioned their consent to Michael’s holding a party in their home on the stipulation that he would not drive his automobile that night, they voluntarily undertook a duty to supervise the party, which duty they negligently violated. This argument is not persuasive. The Mamells did not undertake to supervise the party; they prudently imposed a condition on their grant of permission to use their premises. We are not willing to say, in the circumstances of this case, that such action gave rise to an affirmative duty to supervise the use thus made. To do so would be counterproductive. It would provide a disincentive to the taking of reasonable corrective measures, if doing so might lead to the imposition of liability where it would not otherwise exist.
Finally, the plaintiff argues that the defendants are liable because the automobile which Michael drove was registered to Richard Mamell, and because Richard, having the right to control Michael’s use of the automobile, failed to take effective
We conclude that the judge was correct to grant summary judgment in favor of the defendants. In the circumstances of this case, the defendants were, as a matter of law, under no duty to protect the plaintiff’s decedent from the actions of their emancipated adult son.
Judgment affirmed.
The legal drinking age is relevant in social host liability cases because the serving of alcoholic drinks to persons under that age generally is thought to be wrong, and often also is unlawful. A duty of care quite properly can be imposed based on the violation of these standards. In the case before us, however, the legal drinking age has little importance. What is important is that Michael was an adult for all purposes (except as to the legal drinking age), that the defendants did not serve or make alcoholic beverages available to him, and that they violated no statute. The imposition of liability for failure to supervise a competent adult child is unwarranted on the facts of this case.
Dissenting Opinion
(dissenting). The legal drinking age
In November, 1982, Michael Mamell was under the legal drinking age and lived with his parents. Michael’s parents knew about his party, and agreed to let him hold it in their home. His parents also knew that alcohol would be available at the party. In these circumstances, the fact that Michael was over the age of eighteen should not automatically foreclose parental liability. Instead, because the threat of harm to the motoring public is so analogous to the threat of harm in social host cases, I would use the legal drinking age to determine whether the parents had a duty to supervise their son.
If the legal drinking age is used to determine duty, then, based on the evidence, at least two factual questions arise, and the grant of summary judgment was error. The first question is whether the parents knew or should have known “of the child’s propensity for the type of harmful conduct complained of, and ha[d] an opportunity to take reasonable corrective measures.” Caldwell v. Zaher, 344 Mass. 590, 592 (1962). The defendants knew that Michael had a history of alcohol abuse. They knew he had been disciplined in school for drinking. They knew he had been arrested at age sixteen when he was found with alcohol in an automobile. They also knew he had been arrested in January, 1982, for driving while under the influence of intoxicating liquor and, as a result, that he was
Michael’s parents clearly were concerned about his drinking and driving. They made Michael stipulate, as a condition of holding the party, that he not drive.
In my view, this case presents questions of material fact, and the motion for summary judgment should have been denied. I dissent.
The legal drinking age at the relevant time in this case was twenty. See G. L. c. 138, §§ 34, 34A, as amended through St. 1979, c. 15, §§ 7, 8. The legal drinking age is now twenty-one. See G. L. c. 138, §§ 34, 34A, as amended through St. 1984, c. 312, §§ 5, 6.
This is not to say that parents automatically become liable when their underage children drink and, as a result, cause harm to third persons. The parents in this case did not serve any liquor and did not violate any statutes. Nevertheless, the legal drinking age should be the appropriate consideration for determining whether the parents were subject to a duty of care. The parents knew that their son was under the legal age to drink, had a problem with alcohol, and likely would drink at the party. In these circumstances, whether the parents violated a duty is a question of fact which should not be determined by summary judgment.
I completely agree with the court that the stipulation did not constitute the parents’ undertaking to supervise the party, and did not impose any extra duty on the parents. To conclude otherwise would deter parents from ever taking any corrective measures. At the same time, I think it is clear that the stipulation, combined with Michael’s history of alcohol abuse, stands as evidence of the parents’ knowledge of Michael’s “propensity for the type of harmful conduct complained of.” Caldwell v. Zaher, supra. The stipulation also may be viewed as evidence that the parents had an “opportunity to take reasonable corrective measures.” Id.
Our cases are clear and unequivocal that driving while under the influence of intoxicating liquor creates an extreme risk of harm to third persons. Irwin v. Ware, 392 Mass. 745, 756, 762 (1984). Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968). See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6 (1983); Cimino v. Milford Keg, Inc., 385 Mass. 323 (1982). The life-threatening danger to third persons caused by driving while under the influence of alcohol, along with Michael’s driving record, constitutes sufficient evidence of a dangerous propensity to send to a jury the question of parental liability. See Gudziewski v. Stemplesky, 263 Mass. 103, 105-106 (1928) (evidence of child’s indiscriminate use of air gun sufficient); Sousa v. Irome, 219 Mass. 273, 276-277 (1914) (child’s reputation for carelessness with rifle sufficient). Cf. DePasquale v. Dello Russo, 349 Mass. 655, 658-659 (1965) (two incidents of misuse of nonlethal firecrackers insufficient).
Reference
- Full Case Name
- William J. Alioto, Administrator, vs. Richard J. Marnell & Others
- Cited By
- 69 cases
- Status
- Published