Host Liability in Minnesota
With the upcoming holidays, many people will be hosting parties where they may serve alcoholic beverages to their guests. Could those party hosts become liable as “social hosts” for their guests’ drinking behavior? Does it matter whether the person consuming alcohol is over or under the legal drinking age? Does the age of the host matter? And who can actually be a plaintiff? Could being a social host to underage drinkers even put a host in jail?
While social host liability has been somewhat tortured in Minnesota’s legal history, there is no question that there are now circumstances where hosts can be not only civilly, but also criminally liable for allowing underage drinking to occur on the host’s premises. This article will examine the current status of social host liability in Minnesota and answer the many questions the civil law has generated over the years. Further, it will examine the emerging landscape of criminal social host liability.
Genesis of Social Host Liability
Under the current state of Minnesota law, liability as a social host generally applies only to hosts who have served underage drinkers. But the law took time to mature. One court has described the development of social host law as being the result of a “duet” in which the courts noted an omission in the law and the Minnesota Legislature responded.1
In 1985, the Minnesota Supreme Court held that “a social host is not liable in a common-law action for negligently serving alcohol to a minor,” and that only the Legislature could create social-host liability.2 At that time, the Civil Damages Act—Minnesota Statute section 340A.801—preempted any action against social hosts who gave alcohol to guests because the statute provided for action against only those who illegally sold alcoholic beverages. In apparent response to the Court’s invitation, the Legislature enacted an amendment to the Civil Damages Act in 1990, adding subdivision 6, which opened the door for common-law negligence claims:
As the Minnesota Court of Appeals subsequently noted, the amendment “did not overtly create a statutory cause of action, but merely permitted common law tort claims.”4
For five years, the appellate courts remained silent on the effect the amendment to the Civil Damages Act would have on social-host liability. Then, in 1995, the Minnesota Court of Appeals addressed the issue in Van Wagner v. Mattison.5 The court concluded that by enacting the statute, the Legislature intended to allow claims against social hosts who have knowingly furnished alcohol to a person under the age of 21, but only if the host was at least 21 years old.6 Despite Van Wagner’s holding, several subsequent unpublished appellate court decisions, which analyzed various factual scenarios seeking to impose common-law liability on social hosts under the Civil Damages Act, all decided to protect the social host from liability.7 In fact, because common law had not previously recognized a tort claim against a person who provided alcohol to a minor, the courts continued to be reluctant to allow such claims to proceed.8
The Minnesota Supreme Court appeared to have put the final nail in social host liability under the Civil Damages Act and at common law in the 1999 case of Koehnen v. Dufuor. There, the Court specifically noted that while the Minnesota Legislature might decide to amend the Civil Damages Act to allow for specific actions against social hosts under section 340A.801, the Court would not recognize such an action at common law. Accordingly, the Civil Damages Act still preempted any claims against social hosts.
Since Koehnen, the appellate courts have addressed the Civil Damages Act in the context of social host liability in only two other circumstances—Snilsberg v. Lake Washington Club and Wollan v. Jahnz.9 While in both cases the plaintiffs sought relief from defendants as social hosts under section 340A.801, subdivision 6, neither case addressed whether the facts even supported such a claim.
The Social Host Liability Act
Not surprisingly, in response to Koehnen, the Minnesota Legislature amended the Liquor Act in 2000, by creating a statutory cause of action in favor of persons injured by, or as a result of, the intoxication of a minor caused by a social host. This provision, known as the “Social Host Liability Act”—Minnesota Statute section 340A.90—provides a cause of action to a spouse, child, parent, guardian, employer, or other person injured by an intoxicated person, or by the intoxication of another person under 21 years of age. Plaintiffs under the Social Host Liability Act have a right of action in their own name against a person who is 21 years or older who:
The intoxicated person under the age of 21 who caused the injury has no right to a cause of action under the statute,11 nor does any plaintiff whose suit might be a “derivative” of the intoxicated minor’s, as more fully explored in the 2006 Minnesota Court of Appeals decision in Sinn v. Gerving.12 In an unpublished opinion, the Court of Appeals held that a wrongful-death trustee had no cause of action based on section 340A.90 because the deceased minor could not have maintained a wrongful-death action against the defendant.
Sinn v. Gerving
In Sinn, respondent Merianne Gerving held a birthday party for her 16-year-old daughter. Gerving left the party to pick up some videotapes, and in her absence, some teen-aged attendees brought alcohol to the party. Twelve-year-old Sherri DeWald, one of the guests, consumed alcohol. When Gerving returned, she asked the party attendees to leave her home, including DeWald, who was struck and killed by a train while walking home. DeWald’s trustee brought a wrongful-death claim against Gerving, alleging negligent supervision and negligent eviction. The Court of Appeals held that the district court properly granted summary judgment for Gerving because the trustee’s claims were based on the illegal furnishing of alcohol and were therefore preempted by the Civil Damages Act. The court held that Gerving was not liable under section 340A.801, subdivision 6, because she did not “knowingly” furnish or provide the alcohol to DeWald.
Moreover, the trustee’s claim was based on the wrongful-death statute, which grants a right of action to the personal representative of a decedent provided the decedent could have maintained the action had he or she lived. The court concluded that DeWald could not have maintained an action against Gerving under the Social Host Liability Act, and therefore, neither could DeWald’s trustee. Why the court concluded that DeWald did not have a cause of action is unclear. It may be because section 340A.90, subdivision 1(c), prohibits an intoxicated person under the age of 21 who caused the injury from having a right of action; more likely, the court concluded that DeWald would not have been able to prove that Gerving “knowingly or recklessly” permitted her to consume alcohol at the birthday party. Sinn is one of only two cases to address the Social Host Liability Act and the only one that addresses the merits of such a claim.
Statutes of Limitations
While few Minnesota cases specifically have dealt with the application of section 340A.90 to particular fact patterns, earlier this year the Court of Appeals addressed what statute of limitations would apply to claims asserted under the Social Host Liability Act in Christiansen v. University of Minnesota Board of Regents.13
Ken Christiansen, a minor, attended a party held at a residence appellant Wesley Omer controlled. Later that night, after consuming alcohol and becoming intoxicated, Christiansen attempted to walk home, fell in a creek, and died. Four years later, Christiansen’s heirs commenced an action against Omer under section 340A.90. The Minnesota Court of Appeals considered the certified question of whether claims under section 340A.90 are governed by the six-year statute of limitations specified under Minnesota Statute section 641.05, subdivision 1(2), which governs liabilities created by statute. Because this was a wrongful-death claim, Omer sought to have the court apply the three-year limitation for wrongful-death actions prescribed under Minnesota Statute section 573.02.
Even though Christiansen was a case of first impression, the appellate court’s decision in Wollan v. Jahnz guided its conclusion that the six-year statute of limitations applied.14 In Wollan, the plaintiff was injured in a snowmobile accident caused by an intoxicated minor. Four years later, she sought to bring a claim under the Civil Damages Act against the bar that employed and provided the alcohol to the intoxicated minor. The bar argued, and the district court agreed, that Minnesota Statute section 541.07(1), which set a two-year limitation for an action for a “tort resulting in personal injury,” barred the action. On appeal, the Minnesota Court of Appeals reversed, concluding that because providing alcoholic beverages to a minor is not a tort at common law, section 541.07(1) did not apply. Rather, the court applied the six-year statute of limitations under section 541.05, subdivision 1(5) for an action “for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.”
Similarly, the court in Christiansen concluded that just as the claim in Wollan was not a tort claim, the plaintiffs’ claim was not a wrongful-death claim. Instead, the claim was brought by the decedent’s father and sisters, in their own names, as persons “injured … by the intoxication of another person under 21 years of age” pursuant to section 340A.90, subdivision 1. And because the Legislature did not include a specific limitation period in the statute, the six-year limitation for actions for other injuries, prescribed by section 541.05, applied. Accordingly, unless the Minnesota Legislature continues its “duet” with the courts, any party commencing an action under the Social Host Liability Act must do so within six years.
Emerging Social Host Law
While the civil social host law appears to be well-established, Minnesota cities and counties are now considering whether to extend that liability to the criminal arena. In fact several cities and counties have passed criminal social-host laws, and even more are debating the possibility of enacting such laws. The reason for criminal social-host laws is to extend criminal liability beyond those who sell or distribute alcohol to minors to embrace those who provide a location for a party and know that underage drinking is taking place.
What appears to be the first ordinance of its kind in Minnesota was passed in Kandiyohi County on August 7, 2007. Ordinance Number 3 makes it illegal for any person to “congregate at, participate in, or knowingly permit any party or gathering of people” where minors are in possession of or consuming alcohol.15 In contrast to the civil Social Host Liability Act, which allows a right of action against a social host who is 21 years of age or older, the Kandiyohi ordinance makes it illegal for any person to host a gathering where underage drinking is taking place. Moreover, once an individual in lawful possession of the premises (e.g., the property owner, renter, or tenant) becomes aware that minors there are in possession of or consuming alcohol, he or she has a legal obligation to stop the unlawful drinking. Hosts who violate this ordinance are guilty of a misdemeanor.
The city of Chaska passed a similar ordinance that became effective on October 11, 2007.16 The biggest difference with this ordinance is that it made it illegal for a host to allow an event or gathering when the person knows or reasonably should know that someone under the age of 21 will consume or possess with the intent to consume alcohol. Under the ordinance, an “event or gathering” means any group of three or more persons who have assembled or gathered for a social occasion or other activity. And criminal liability can attach even if the “host” is not present at the event or gathering.
Some exceptions typically apply under criminal social host laws. Many of the criminal laws have exceptions for religious gatherings and, in some instances, for drinking solely involving an underage person and his or her parents while in the household of one or both parents.17
To be sure, criminal social host laws have not been enacted without concern or debate. Recently, the Carver County board rejected, by a 3-2 vote, an ordinance nearly identical to that passed in the city of Chaska.18 In a similarly close vote that swung the other way, the Red Wing City Council voted 4-3 to pass a criminal social host ordinance identical to Chaska’s.19 Other municipalities are considering similar laws.
Criticism surrounding a law that imposes a negligence standard, such as the Chaska and Red Wing ordinances, centers primarily on their breadth.20 Many situations can arise that will “fit the seams” of the law. For example, cases where parents keep alcohol in the house and their minor children have access to it. Under the Chaska law, parents in such circumstances can be criminally liable if their child hosts two friends at the parents’ home and they have access to the liquor cabinet, even if the parents are out watching a movie. The critical question is whether the parents reasonably should have known that their underage child and friends would consume alcohol. A similar question arises when an individual has a party with the intent to serve alcohol to only those guests who are over 21, but minors are also served. Is it reasonable for the host to check the identification of all party attendees? These are scenarios that laws such as Chaska’s will most certainly face and the courts will need to address in the future.
While social host liability has been slow to ripen in Minnesota, the Legislature has taken its cues from the courts’ observation that it is a creature of statute and not common law. Civil social host liability appears to have finally cemented, holding only those over the age of 21 responsible for serving to those under the age of 21, pursuant to Minnesota Statute section 340A.90. The courts have held that both the Civil Damages Act and the Social Host Liability Act will preempt any attempt to commence a common law action for damages against a host relating to underage drinking. Moreover, the statute of limitations for such claims is six years, pursuant to Minnesota Statute section 541.05.
The area of social host law experiencing the most growth at this time is in the criminal context. Given the controversy surrounding such laws, it may be some time before there is a uniform state law that covers all situations. In the interim, cities and counties will pass their own ordinances to prevent any person from hosting events where underage drinking occurs. The courts will likely consider these laws, their breadth, and their specificity as this area of social host law expands.
2 Holmquist v. Miller, 367 N.W.2d 468, 471-72 (Minn. 1985).
3 Minn. Stat. §340A.801, subd. 6 (2007).
4 Wollan, 656 N.W.2d at 418.
5 See Van Wagner v. Mattison, 533 N.W.2d 75 (Minn. App. 1995).
6 Id. at 77.
7 See Stillman v. Tulenchik, 1995 WL 6426 (Minn. App. 1995); Opay v. Howard Lake Liquor Store, 1995 WL 34838 at *1 (Minn. App. 1995), rev’d in part on other grounds, 531 N.W.2d 845 (Minn. 1995); Frisch v. Bassett, 1996 WL 104770 at *1 (Minn. App. 1996).
8 Koehnen v. Dufuor, 590 N.W.2d 107, 109-12 (Minn. 1999).
9 Snilsberg v. Lake Washington Club, 614 N.W.2d 738 (Minn. App. 2000); Wollan v. Janz, 656 N.W.2d 416 (Minn. App. 2003).
10 Minn. Stat. §340A.90, subd. 1.
11 Minn. Stat. §340A.90, subd. 1(c).
12 Sinn v. Gerving, 2006 WL 2531239, *2 (Minn. App. 2006).
13 Christiansen v. University of Minnesota Bd. of Regents, 733 N.W.2d 156 (Minn. App. 2007), review denied (Minn. 08/21/07).
14 Wollan, 656 N.W.2d 418-20.
15 Kandiyohi County, Minn., Ordinance 3, Regulating Parties and Gatherings (08/07/07).
16 City of Chaska, Minn., Ordinance 809, Social Host Ordinance (10/11/07).
17 See e.g., City of Chaska, Minn., Ordinance 809, subd. 5.
18 “Carver County rejects ‘social host’ ordinance,” Shakopee Valley News, 11/06/07.
19 “Council makes host liable for underage drinking,” Post-Bulletin Southeast Minnesota Digest, 11/09/07; City of Red Wing, Minn., Ordinance 432, Social Host Ordinance (11/05/07).
20 Cf. Michael K. Steenson, “With the Legislature’s Permission and the Supreme Court’s Consent, Common Law Social Host Liability Returns to Minnesota,” 21 Wm. Mitchell L. Rev. 45, 95 (Fall 1995).
JENNIFER E. AMPULSKIis a partner at the Minneapolis law firm of Meagher & Geer, PLLP. She practices primarily in the areas of products-liability and commercial litigation, as well as general insurance defense.