BILL ANALYSIS AB 2486 Page 1 Date of Hearing: March 23, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 2486 (Feuer) - As Introduced: February 19, 2010 As Proposed to Be Amended SUBJECT : SOCIAL HOST PARENTAL RESPONSIBILITY: KNOWINGLY PROVIDING ALCOHOL TO MINORS KEY ISSUE : SHOULD CALIFORNIA HOLD ADULTS LEGALLY RESPONSIBLE FOR UNDERAGE DRINKING AT THEIR HOMES WHEN THEY KNOWINGLY PROVIDE THE ALCOHOL TO THE MINORS WHO ARE SUBSEQUENTLY INJURED OR KILLED? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This non-controversial parental responsibility bill seeks to enact the Teen Alcohol Safety Act of 2010, which seeks to add California to the large preponderance of states that impose potential "social host" liability on adults who knowingly provide alcohol to minors who are subsequently injured or killed as a result of the underage drinking. Currently, unlike the approach of the great majority of states, a social host in California who provides alcoholic beverages to any person, including even minors, may never be held legally responsible for any damages suffered by that person or by any third person resulting from consumption of those beverages - even if serious injuries or deaths result to underage drinking minors. This bill seeks to take away the liability shield given to parental social hosts in California and instead holds adults legally accountable only when they knowingly provide alcohol to minors who are subsequently injured or killed. In support of the bill, proponents, who include the devastated family members of minors who have died from binge drinking as well as both the plaintiffs and defense bar and a host of law enforcement and public safety groups, state that underage drinking is a widespread and increasingly dangerous problem which has devastating consequences for minors and their families and friends. They note that targeted social host liability has proved itself in many other states as one potential way to help discourage AB 2486 Page 2 underage drinking. Proponents also believe firmly that holding adults legally responsible when they knowingly provide alcohol to minors will help reduce access to alcohol for minors and in turn help reduce the number of preventable alcohol-related childhood deaths and injuries. There is no known opposition to this public health measure. SUMMARY : Seeks to enact the Teen Alcohol Safety Act of 2010, adding California to the large preponderance of states that impose potential "social host" liability on adults who knowingly provide alcohol to minors who are subsequently injured or killed as a result of this lack of parental care. Specifically, this bill: 1)Provides that a social host, as narrowly defined, who is 21 years of age or older and who knowingly furnishes alcoholic beverages to a person under 21 years of age may be held legally accountable for damages suffered by that person, or for injury to the person or property, or death of, any third person resulting from the consumption of those beverages. 2)Carefully limits the measure's scope, pursuant to Author's Amendments described more fully below, by defining a "social host" as only those adults who provide alcohol to guests at their residence with no motive for pecuniary gain who are not licensed or commercial vendors of alcohol or anyone who is required to obtain a license to provide alcohol for a social function. EXISTING LAW : 1)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. (Civil Code section 1714(a). Hereafter, all references are to that code unless otherwise noted.) 2)States 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 this section as AB 2486 Page 3 it relates to 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 is the proximate cause of injuries inflicted upon another by an intoxicated person. (Section 1714(b).) 3)Provides (unlike the approach of the great majority of states) that no social host in California who furnishes alcoholic beverages to any person, including minors, may be held legally accountable 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. (Section 1714(c).) 4)Provides that a social host may be found criminally liable if, "A parent or legal guardian who knowingly permits his or his child, or a person in the company of the child, or both, who are under the age of 18 years, to consume an alcoholic beverage or use a controlled substance at the home of the parent or legal guardian" under specified conditions. (Business and Professions Code section 25658.2.) 5)Provides that an insurer is not liable for a loss caused by the willful act of the insured. (Insurance Code section 533.) COMMENTS : This non-controversial parental responsibility bill seeks to enact the Teen Alcohol Safety Act of 2010, which seeks to add California to the large preponderance of states who impose potential "social host" liability on those adults who knowingly provide alcohol to minors who are subsequently injured or killed as a result of this lack of parental responsibility. Currently, unlike the approach of the great majority of states, a social host in California who provides alcoholic beverages to any person, including even minors, may never be held legally responsible for any damages suffered by that person or by any third person resulting from consumption of those beverages - even if serious injuries or deaths result to minors. In support of this measure the author states: The Teen Alcohol Safety Act of 2010 is all about parental responsibility. It is a measure designed to save young lives by acting as a long-needed disincentive to AB 2486 Page 4 irresponsible adults who knowingly provide underage teens with alcohol in their homes. California has seen a spate of heart-wrenching tragedies in recent years, including the preventable recent death of Shelby Allen, as teens have increasingly engaged in bouts of binge drinking that have led to hospitalizations and deaths. The most shocking episodes involved parents or other adults who knowingly provide alcohol to underage minors - and this bill only targets those most egregious situations. Although it is a crime under state law to supply alcohol to a minor, California is one of only a small handful of states that do not provide for parental responsibility in such shocking cases. In order to augment appropriate parental responsibility and bolster the deterrence sought in the preponderance of states across the country, this targeted measure seeks to correct that glaring restriction in our law by ensuring that a civil action can be brought only against an adult "social host" who knowingly provides alcohol to minors at the front end of such tragedies, in order to appropriately assist families and their minors who are harmed by this irresponsible misconduct. It is truly not a clich? to note that if this measure saves only one child from a binge drinking death, it will be well worth it. In support of the narrow approach taken in the bill, the author underscores the measure is not about somehow imposing "automatic liability" on any adult who may have inadvertently provided access to alcohol by a minor. The bill simply removes the absolute bar to any potential liability in any situations for adult social hosts who knowingly provide alcohol to minors. Under the bill, the families of a minor injured or killed by alcohol will still need to prove in court all the elements of negligence - that an adult social host, as narrowly defined below, breached his or her responsibility to uphold the law, knowingly provided alcohol to the child, and injuries or death thereby resulted from this action. States That Currently Permit Parental Responsibility in Their Social Host Laws : After an extensive survey conducted by Committee counsel, it appears that the following approximately 80% (39) of the fifty states permit social host civil liability when adults knowingly provide alcohol to minors: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida, AB 2486 Page 5 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. Other states have used statutory language describing social host liability in a manner that has allowed the courts to develop social host liability under common law when social hosts provide alcohol to minors. The Problem of Underage Drinking : According to the National Institutes of Health, underage alcohol use remains a pervasive and persistent problem with serious health and safety consequences to minors. Alcohol is literally the drug of choice for most young people in the United States, and it is still used by more young people than tobacco or illegal drugs. Indeed, underage alcohol use actually kills more young people than all illegal drugs combined -- and alcohol is the leading contributor to death from injuries, which is the main cause of death for people under the age of twenty-one. Tragically, every year, roughly 5,000 young people under the age of twenty-one die from causes related to underage drinking. According to the Pacific Institute for Research and Evaluation ("PIRE"), in California alone, an estimated 136 traffic fatalities and 7,300 nonfatal traffic injuries involved an underage drinker in one recent year. In addition to traffic fatalities and injuries, PIRE reports that underage alcohol consumption is also connected to crimes and other risky behavior by minors. Underage drinking is also linked to future alcohol dependence. According to data from the National Epidemiologic Survey on Alcohol and Related Conditions, young people who began drinking under the age of fifteen-years old are four times more likely to develop alcohol dependence during their lifetime than those who began drinking at age twenty-one years old or later. (U.S. Department of Health and Human Services. The Surgeon General's Call to Action to Prevent and Reduce Underage Drinking. U.S. Department of Heath and Human Services, Office of the Surgeon General, 2007). The Shocking Statistics Showing A Remarkable Number of Parents Are Knowingly Providing Alcohol to Minors : Based on the devastating consequences tied to underage drinking, it is useful to consider how minors obtain access to alcohol. According to a 2005 American Medical Association (AMA) survey, over half of the AB 2486 Page 6 teens surveyed reported they obtained alcohol. Amazingly, one-third of these teens responded that it was easy to get alcohol from their own consenting parents, and almost half responded that it was easy to get alcohol from a friend's parents. In addition, one in four teens has attended a party where minors were drinking directly in the presence of parents. According to a US Surgeon General's "Call for Action" report, social gatherings are a common way for underage drinkers to gain access to alcohol. This is especially problematic because such settings, where many drinkers are involved, often lead to binge drinking by youth and much greater risk of injuries or death. The Allen Family's Terrible Recent Tragedy : The recent tragedy of Shelby Allen has helped inspire this measure. In December of 2008, Shelby Allen, a 17-year-old high school student, died of acute alcohol poisoning the morning after an overnight gathering with other teenagers at a friend's house. Shelby became violently ill and lapsed into a semiconscious state during the night, and when she was discovered the next morning, this very promising teenager passed away. Though the friend's parents were home that night, the facts of the case remain unclear. Shelby's parents considered using the California civil courts in an attempt to gain answers about this tragedy, but were shocked to discover, as many other parents have, that unlike most other states, California's current law continues to grant all social hosts complete and unqualified immunity from all legal responsibility, even in cases involving the deaths of minors. Shelby's tragic death is just one example of the devastating consequences that can follow underage drinking. As a result, many groups, such as the American Academy of Pediatrics and the PIRE Institute noted earlier, recommend our legal system should discourage parents from allowing underage drinking in the home, and they strongly support the establishment and enforcement of targeted social host laws like the one proffered in this measure to reduce access to alcohol by underage youth. Proponents of the bill believe imposing potential civil liability on adult social hosts who knowingly provide alcohol to minors will not only enable families of victims to have a possible reasonable civil recourse, but will also send a powerful message that providing alcohol to underage youth is morally reprehensible with potential serious legal consequences. Social Host Liability Generally : In its simplest form, social hosts are generally defined in many state laws as persons who AB 2486 Page 7 are not commercial vendors of alcohol or licensed to sell alcohol - though as noted below, this bill seeks to enact a much narrower definition of adults covered by the bill. Social host laws across the country have traditionally held social hosts liable for the drinking that occurs in their homes. There are two types of liability that can traditionally apply under social host laws: criminal liability and civil liability. Criminal social host liability involves a statutory prohibition that is imposed by the state through means of criminal prosecution. An increasing number of cities and counties throughout California and the country have focused on criminal liability approaches (see below). In contrast, civil social host liability imposes a duty on social hosts that can be enforced through civil actions brought by injured parties. In a typical civil action, an injured party would need to establish all the elements of a cause of action for negligence, including a duty of care, a breach of that duty, proximate and actual causation, and damages. Increasing Numbers of Local Social Host Criminal Approaches : As noted above, four out of five states across the country have adopted some form of social host liability. In addition, a recent trend has emerged where cities and counties are also adopting their own targeted social host ordinances which impose some form of liability on social hosts to prevent underage drinking parties. Under typical city or county criminal ordinances, social host liability is treated as an infraction or a misdemeanor, resulting in fines and/or jail time. Local social host laws generally focus on the venues in which underage drinking occurs, rather than on the furnishing of the alcohol by an adult. According to co-sponsor Mothers Against Drunk Driving, as of 2007, over forty California cities and counties have adopted some form of local social host laws. For example, Ventura County passed an ordinance that establishes that it is a civil violation and a public nuisance constituting an immediate threat to public health for any responsible person to allow a loud and unruly gathering at a private residence at which underage drinking occurs, and that a violation subjects social hosts to a penalty of one-thousand dollars in addition to any recovery of emergency response costs. Other localities take similar approaches. Legal Backdrop of Civil Social Host Liability in California : Until the 1970s, California generally followed the common law rule that it is the consumption, rather than the furnishing, of AB 2486 Page 8 alcohol that is the "proximate" cause of any subsequent harm caused by the intoxicated person. This was true even though California, like virtually all other states, had seemingly inconsistently, long had statutes making it a misdemeanor to serve alcohol to a minor. However in a series of cases in the 1970s, the California Supreme Court rejected the traditional common law reasoning barring parental responsibility for providing alcohol to others - at least in cases where the alcohol was furnished to someone who was a minor or an obviously intoxicated adult. In Vesely v. Sager (1971), the California Supreme Court determined that civil liability could be imposed upon a vendor of alcoholic beverages for providing drinks to a customer who, as a result of intoxication, injured a third person. Then the Court subsequently reiterated its rejection of the traditional common law rule in Bernhard v. Harrah's Club in 1976, finding a commercial vendor liable to an injured third party for serving alcohol to an obviously intoxicated patron who subsequently drove and veered across a dividing line into the plaintiff's vehicle. (16 Cal. 3d 313). Finally, in 1978, in Coulter v. Superior Court of San Mateo County (1978) 21 Cal. 3d 144, the Court expressly extended liability to "social hosts," or non-commercial furnishers of alcohol. The Court held that a social host who furnishes alcoholic beverages to an obviously intoxicated person, under circumstances which create a reasonably foreseeable risk of harm to others, could be held liable to third persons who were subsequently injured by the intoxicated guest. The Legislature Rejects the State Supreme Court's Social Host Responsibility Rule in 1978: Four months after the Supreme Court's landmark Coulter decision holding social hosts potentially legally responsible for their actions, the California Legislature in 1978 amended relevant sections of both the Business and Professions Code and the Civil Code in order to restore the traditional common law rule that had shielded social hosts from liability altogether. The legislation, subsequently signed into law by then-Governor Jerry Brown, stated the intent of the Legislature to abrogate the holdings of Vesely, Bernhard, and Coulter in order to completely shield social hosts in California from any potential legal responsibility, even in those cases involving the knowing provision of alcohol to minors. This bill therefore, thirty two years later - in response to the recent reports noted above showing that underage alcohol use AB 2486 Page 9 actually kills more young people than all illegal drugs combined - reverses this long-held liability shield in those narrow circumstances where an adult social host knowingly provides alcohol to minors who are subsequently injured or killed as a result of parental irresponsibility. Author's Clarifying Amendment : In order to clarify that the bill's parental responsibility provision is carefully targeted to only those situations where a parent or other adult knowingly provides alcohol to minors at his or her residence, the author wisely is amending the bill with the following narrow definition of who is a social host for purposes of the legislation: On page 2, after line 24, insert: (e) For purposed of this Act, a social host is one who provides alcohol to guests at his or her residence with no motive for pecuniary gain regardless whether some remuneration is given for the alcohol. A licensed or commercial vendor of alcohol, or anyone required to obtain a license to provide alcohol for a social function, is not a social host for purposes of this Act. Arguments In Support : As noted above, proponents assert social host liability has long proved itself in most states across the country to be a helpful deterrence to underage drinking. By holding adults potentially accountable for the harms that follow underage drinking facilitated by their knowingly providing alcohol to kids, adults will, proponents note, be much more hesitant to provide alcohol to minors-in turn, directly reducing the ability for minors to access alcohol. According to the measure's co-sponsor, Mothers Against Drunk Driving (MADD), social host laws encourage adults to be as vigilant as possible about underage consumption of alcohol. MADD further contends that some studies have shown that social host liability reduces binge drinking as well as drinking and driving by young drinkers. Ultimately, proponents contend the prevalence of underage drinking and its tragic consequences requires as many tools as possible to reduce underage drinking, including the use of potential civil liability. In support, the California Defense Counsel write that "AB 2486 is designed to make a common-sense correction to the 'social host' immunity presently contained in Civil Code Section 1714. The present general immunity for social hosts, founded on sound AB 2486 Page 10 social policy, should not operate to shield persons who knowingly furnish alcoholic beverages to minors. In contrast with the general principle, such an immunity is not sound social policy? Given the risks associated with underage drinking, it is unconscionable that the law would operate to shield from liability persons who knowingly break the law with respect to in-home social events. AB 2486 makes a narrow, targeted change to the social host immunity." In further support of the measure, co-sponsor Consumer Attorneys of California writes in part that: AB 2486 is designed to be one more important tool in the fight against underage drinking. Simply put, AB 2486 will prevent teen drinking tragedies and will bring California law into compliance with the majority of other states that have laws that protect their minors? Under AB 2486, the social host is not automatically liable for the injuries or deaths to the minor or any third party. AB 2486 simply removes an absolute legal impediment for the family to proceed. The family of the injured or killed would still need to prove in court all of the elements of negligence: A duty of care existed, a breach of that duty occurred, causation, and damages. Negligence, as a basis for social host liability, is not automatic. Each element must be proven in order to give rise to social host liability. And, AB 2486 is extremely limited as it only applies to social hosts who knowingly provide alcohol to minors? We think that if people knew they were not protected under the law and could be exposed to civil damages, conduct would change. We want to encourage people who have minor guests to NOT provide alcohol? REGISTERED SUPPORT / OPPOSITION : Support Mothers Against Drunk Driving (MADD, co-sponsor) Consumer Attorneys (CAOC, co-sponsor) Association for Los Angeles Deputy Sheriffs California Defense Counsel California PTA Consumer Federation of California Peace Officers Research Association of California Riverside Sheriffs' Association AB 2486 Page 11 Steve and Debbie Allen Opposition None on file Analysis Prepared by : Drew Liebert and Eunie Kim / JUD. / (916) 319-2334