Cynthia L. Martin, Judge.
Sabrina Zeller ("Zeller"), plaintiff ad litem for her deceased son Cody Turner ("Turner"), appeals from the trial court's judgment dismissing her petition against Cameron Scafe ("Scafe"). Kristen Kantner ("Kantner") appeals from the trial court's judgment dismissing her cross-petition against Scafe. Zeller and Kantner (collectively "Appellants") argue on appeal that the trial court's dismissal of their claims against Scafe was erroneous because each stated a claim for negligence per se given Scafe's violation of section 311.310.
Factual and Procedural History
When reviewing the dismissal of a petition for failure to state a claim, we treat the facts alleged in the petition as true and construe those facts liberally in favor of the plaintiff. Gordon v. City of Kansas City, 450 S.W.3d 793, 795 n. 1 (Mo.App.
On May 12, 2012, Turner attended a "keg party" at Scafe's house in Oak Grove. Brian Beebe, Jr. ("Beebe"), Amy Greenstreet ("Greenstreet"), and Kantner were also at the party. Scafe knowingly allowed Beebe and other minors in attendance to consume intoxicating liquor and knowingly failed to stop Beebe and other minors from consuming intoxicating liquor, a class B misdemeanor pursuant to section 311.310.2.
At approximately 6:30 a.m., Beebe, Kantner, and Turner left the party in a Jeep Wrangler loaned to them by Greenstreet. Turner initially drove the vehicle but became fatigued. Turner moved to the console of the vehicle, and Beebe took over driving the vehicle. At approximately 7:30 a.m., Beebe failed to negotiate a curve. The vehicle skidded off the roadway, struck an embankment, and overturned. Beebe panicked and fled the scene on foot. Beebe contacted his grandfather, Jerry Nussbaum ("Nussbaum"), and asked Nussbaum to pick him up.
Turner was thrown from the vehicle. Turner suffered a head injury, multiple skull fractures, and epidural and subdural hematomas, but was alive immediately following the accident. Kantner was trapped by her seatbelt in the vehicle. Despite her injuries, Kantner was able to call emergency services and run to a nearby residence for help. Turner was air transported to a nearby hospital, where he was pronounced dead.
Zeller, as plaintiff ad litem for Turner, filed a petition for damages arising from Turner's death and then later filed a first amended petition ("Petition").
Kantner filed a cross-petition and then an amended cross-petition ("Cross-Petition").
Scafe filed motions to dismiss Zeller's and Kantner's claims against him for failure to state a claim upon which relief can be granted, arguing that Missouri law does not recognize a cause of action, by legislation or at common law, against social hosts who provide alcoholic beverages to minors. Kantner filed a motion to dismiss Zeller's claims against her because Missouri law does not impose a duty on passengers to prevent the operation of a motor vehicle by another.
The trial court granted Kantner's motion to dismiss Zeller's claims against her. The trial court also granted Scafe's motions
Zeller appealed. We dismissed the appeal for want of a final judgment because Kantner's claim against Turner remained pending before the trial court. See Zeller v. Scafe, 455 S.W.3d 503 (Mo.App.W.D.2015). Kantner then voluntarily dismissed the claim against Turner.
Zeller and Kantner appeal the trial court's judgment dismissing their claims against Scafe.
Standard of Review
We review the trial court's grant of a motion to dismiss de novo. Davison v. Dairy Farmers of Am., Inc., 449 S.W.3d 81, 83 (Mo.App.W.D.2014).
Coons v. Berry, 304 S.W.3d 215, 217 (Mo. App.W.D.2009). "[T]o avoid dismissal, the petition must invoke substantive principles of law entitling the plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial." Id. at 217-18.
Zeller and Kantner urge the same point on appeal. The Appellants assert that the trial court erred in dismissing their negligence per se claims against Scafe because the factual allegations in the Petition and Cross-Petition establish that Scafe violated section 311.310.2 which imposes criminal liability on an owner or occupier of property who allows a person under the age of twenty-one years to drink, or fails to stop said person from drinking, intoxicating liquor on the property. We agree that the factual allegations in the Petition and Cross-Petition, taken as true, establish that Scafe violated section 311.310.2. However, the issue presented is whether these factual allegations invoke substantive principles of law entitling the Appellants to relief. More specifically stated, we must determine whether Scafe's violation of section 311.310.2 supports civil liability based on the theory of negligence per se.
Appellants concede that it has been long settled under Missouri law that a social host who furnishes alcohol to an intoxicated guest or a minor has no civil liability to the intoxicated guest, the minor, or to an injured third party. See Coons, 304 S.W.3d at 218-22 (summarizing the historical development of the law foreclosing civil liability for social hosts based on theories of both common law negligence and negligence per se). The issue of social host liability was addressed as a matter of first impression in Harriman v. Smith, 697 S.W.2d 219, 220 (Mo.App.E.D.1985), in which the court considered: (1) whether common law negligence supports a cause of action against a social host; and (2) whether a social host's violation of section 311.310 constitutes negligence per se.
With respect to the theory of common law negligence, the Harriman court relied on the difference between a social guest who occupies the status of a licensee and a business invitee. Id. at 221. "While differences between invitees, licensees, and trespassers
The Harriman court also considered whether section 311.310 (RSMo 1978), a statute imposing criminal penalties on "any licensee" and "any person" who sells, vends, gives away, or otherwise supplies intoxicating liquor to minors or intoxicated persons, provides a statutory standard of care for social hosts supporting a theory of negligence per se. Id. at 222-23. The court held:
Id. at 223.
Two years later, in Andres v. Alpha Kappa Lambda Fraternity, our Supreme Court considered whether a local fraternity chapter could be held liable for furnishing intoxicating beverages to a minor who later died as a result of acute alcohol intoxication. 730 S.W.2d 547, 549 (Mo.banc 1987). The Court concluded that the local fraternity chapter occupied the status of social host and relied on Harriman to conclude that the deceased minor's parents failed to state a claim. Id. at 553. In particular, the Court stated that it "[found] the analysis in Harriman compelling and adopt[ed] it in the disposition of this cause." Id.
On appeal, the Appellants have abandoned their dismissed claims against Scafe on a theory of common law negligence. They accept, therefore, as found in Harriman and endorsed by Andres, that any extension of common law negligence principles to impose a duty on social hosts must be undertaken by the legislature. Andres, 730 S.W.2d at 553; Harriman, 697 S.W.2d at 221. Here, the Appellants urge only that their claims of negligence per se based on a violation of section 311.310 should not have been dismissed. The Appellants acknowledge Andres but argue the decision is no longer controlling because section 311.310 was amended in 2005, reflecting the legislature's intent to abrogate Andres by imposing a standard of care on social hosts that will support a civil remedy. We disagree.
When Andres was decided, section 311.310 (enacted in 1947) read as follows:
(Emphasis added.) The emphasized language in section 311.310 was addressed in Harriman, and again by our Supreme Court in Andres, and was found not sufficient to establish a standard of care for social hosts which would support civil liability on a theory of negligence per se. 730 S.W.2d at 549-50, 553.
In 2005, the legislature amended section 311.310. The aforesaid highlighted content of section 311.310 was not materially changed, save to be numbered as subsection 1.
The Appellants argue that newly added subsection 2 reflects the legislature's intent to abrogate Andres with respect to social hosts who own, occupy, or have exclusive use of property. There are several flaws in this argument.
First, the argument ignores that the statutory language construed by Andres as insufficient to support social host civil liability on a theory of negligence per se remained in section 311.310.1 following the 2005 amendment. "The legislature is presumed to have acted with a full awareness and complete knowledge of the present state of the law, including judicial and legislative precedent," when it amended section 311.310. Kolar v. First Student, Inc., 470 S.W.3d 770, 777 (Mo.App.E.D. 2015). The Appellants do not explain why the legislature would have left untouched language deemed insufficient to create civil liability for social hosts who give or supply intoxicating liquor to underage persons, while intending to create civil liability for social hosts who allow or fail to stop underage drinking or possession of intoxicating liquor on property the social host owns, occupies, or exclusively controls. Were we to adopt the Appellant's argument that the legislature intended to create social host civil liability for a violation of section 311.310.2, though not for section 311.310.1, we would be left with the prospect of anomalous and incongruent results. An owner or occupier of property who gives intoxicating liquor to a person under the age of twenty-one years will have violated both section 311.310.1 (prohibiting "any
Second, although section 311.310.2 plainly extends criminal liability to include a new category of persons, "a statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent." Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 126 (Mo.banc 1956). Here, Appellants concede that section 311.310.2 makes no provision for civil liability. The legislature is deemed to have known when it amended section 311.310 that Andres foreclosed social host liability for any violation of section 311.310, and that unexpressed civil liability will not be implied by an expansion of criminal liability. Kolar, 470 S.W.3d at 777. There is nothing in the language of section 311.310 as amended, in the historical development of the statute, or from any other source to indicate that the legislature intended section 311.310.2 to abrogate the rationale of Andres.
In fact, and to the contrary, when the legislature has desired to abrogate Missouri case law addressing the subject of civil liability for furnishing alcohol in violation of section 311.310, it has no difficulty doing so in plain and clear terms. In response to Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.W.D.1980), Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.W.D.1981), and Carver v. Schafer, 647 S.W.2d 570 (Mo.App. E.D.1983), each of which imposed civil dram shop liability on licensees who sold alcohol in violation of section 311.310, the legislature enacted section 537.053, effective September 28, 1985. Section 537.053.2 (RSMo 1986) expressly abrogated the Sampson, Nesbitt, and Carver, and plainly expressed that it is the policy of the State of Missouri "to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons." Section 537.053.1 (RSMo 1986). Though applicable by its plain terms only to dram shop liability, and not to social host liability, Andres, 730 S.W.2d at 551, section 537.053 (RSMo 1986) nonetheless demonstrates the legislature's capacity to unambiguously abrogate settled decisional law when that is its intent. The legislature cannot be said to have impliedly abrogated Andres in 2005 when section 311.310.2 is absolutely silent on the subject of civil liability for social hosts. Christy, 295 S.W.2d at 126.
The Eastern District reached the same conclusion in Otte v. Edwards, 370 S.W.3d 898 (Mo.App.E.D.2012). There, the parents of a minor who consumed alcoholic beverages at a party and who later died after wandering onto a highway sued the hosts of the party. Id. at 899-900. The
The Appellants argue that we should disregard Otte. They argue that section 311.310.2 "eliminated, in large part, many of the concerns raised by the Court in Harriman." [Kantner's Brief, p. 24] We disagree. The Appellants argue that section 311.310.2 establishes a standard of care for social host's independent of licensees who furnish intoxicating liquor, an argument which presumes that section 311.310.2 is limited in its application to social hosts. However, section 311.310.2's reference to "[a]ny owner, occupant, or other person or legal entity with a lawful right to the exclusive use and enjoyment of any property" is not limited to social hosts, and could easily include licensees and commercial or business settings within its scope. Demonstrative of this point is newly added section 311.310.3(1)-(3), which specifies a defense to any prosecution under section 311.310 of
As our Supreme Court has observed, "imposing liability upon social hosts would have a `substantial impact on everyday social and family affairs' and therefore the parameters of any duty imposed on social hosts should be determined by the legislature." Andres, 730 S.W.2d at 553 (quoting Harriman, 697 S.W.2d at 221). Nothing in the legislature's 2005 amendment of section 311.310 indicates that the legislature intended section 311.310.2 to dramatically alter Missouris longstanding prohibition against the imposition of civil liability on social hosts who furnish intoxicating beverages to minors. See Coons, 304 S.W.3d at 223 (noting that, if section 311.310.2 prescribes a statutory duty for social hosts to abstain from furnishing intoxicating beverages to minors, the statute would represent a dramatic shift in public policy). If
The legislature has not expressed a similar intent with respect to social hosts. "In the absence of any indication of such intent, we are constrained to assume that had the legislature desired to provide for enforcement by civil action as well as by criminal prosecution, such a provision would have been incorporated therein." Otte, 370 S.W.3d at 903; see also Christy, 295 S.W.2d at 126 (holding that intent to impose civil liability will not be imposed where the legislature has in other respects made "careful provision for the rights and compensation" of those injured by a violation of a statute).
While we have the utmost sympathy for Zeller and Kantner given the tragic loss and injuries each has experienced, we cannot create a cause of action where none exists. The trial court did not err in dismissing Zeller's and Kantner's negligence per se claims against Scafe.
We affirm the trial court's judgment.
(Emphasis added.) The bold text remained essentially unchanged in the 1990 amendment of section 311.310. The italicized text added at the end of section 311.310 appears to have been the motivating factor for the 1990 amendment.