Justice INDEGLIA, for the Court.
The plaintiff's appeal
Facts and Travel
The facts of this case are generally not in dispute. On the evening of August 12, 2005, defendant Joseph M. Clukey (Mr. Clukey) invited his friend Matthew J. Milner (Mr. Milner) to a party at the Hampton Inn in Warwick, Rhode Island. At the time, Mr. Clukey was nineteen years of age and a high school graduate; Mr. Milner was twenty years old and had graduated in 2003 from the same high school, a year before Mr. Clukey.
The record reveals that the hotel party, hosted by a seventeen-year-old minor in a single hotel room, was attended by eight to fifteen guests, including Mr. Clukey and Mr. Milner. During their stay at the party, the two men each consumed seven to eight cans of beer. According to Mr. Clukey, Mr. Milner became "a lot louder and more obnoxious" as he continued to drink the beers. At some point during the party, the attendees decided to relocate to the pool area of the hotel. The plaintiff contends that while at the pool, the hostess of the party expressed to Mr. Milner that she "hope[d] [he was] not driving," to which Mr. Clukey interposed that he would be doing the driving, not Mr. Milner.
Apparently, the pair's appearance at the gathering was short-lived—after less than an hour,
On August 26, 2005, plaintiff filed this wrongful-death action against Mr. Milner, his father William J. Milner (who owned the vehicle that Mr. Milner was driving), John Doe, and Allstate Insurance Company, the vehicle's insurer.
On June 3, 2009, Mr. Clukey filed a motion for summary judgment, contending that plaintiff had failed to allege a duty recognized under either Rhode Island precedential case law or statutory pronouncement. Mr. Clukey argued that the duty alleged by plaintiff—one that places an affirmative obligation on an adult individual
In opposing Mr. Clukey's summary judgment motion, plaintiff emphasized that she was not relying on a social-host-liability theory, but instead was grounding her contention on several alternate analyses by which the court could find a duty imposed upon Mr. Clukey. Primarily, plaintiff asked the hearing justice to perform the ad hoc approach set forth by this Court in Banks v. Bowen's Landing Corp., 522 A.2d 1222 (R.I.1987), to determine whether Mr. Clukey had a duty to take reasonable measures to control Mr. Miner's conduct. The plaintiff likewise asked the court to consider the alleged voluntary assumption of a duty by Mr. Clukey.
During the parties' oral arguments in Superior Court on August 11, 2009, the hearing justice expressed numerous concerns about imposing a duty upon Mr. Clukey based on the facts of the case. She commented particularly on the scope of the proposed duty, how such a duty would be performed to conclusion, and the extent to which a person in Mr. Clukey's position would be liable. She highlighted that both Mr. Clukey and Mr. Milner were adults, each of whom consumed alcohol that evening, albeit under the legal age to do so, and further noted that "Mr. Milner was the one in control of his actions, not Mr. Clukey." Troubled as to how this alleged duty would be delineated, the hearing justice also questioned the parties' attorneys on how a jury would be instructed should the matter proceed to trial. She specifically struggled with the policy implications stemming from an imposition of the duty, observing that plaintiff was asking the court to declare "a designated driver's duty as a matter of law," and stressing that "it should be the [L]egislature's duty to debate and to determine what the policy of the state needs to be."
After considering the parties' oral arguments and supporting memoranda, and viewing the facts in the light most favorable to plaintiff, the nonmoving party, the hearing justice issued a bench decision on Mr. Clukey's motion. Declining to impose a duty of care as urged by plaintiff, the hearing justice emphasized the uncertainty of the duty that would be placed on "friends, acquaintances, public transportation providers and other people who at some point in time drive around someone who is intoxicated." She deemed the issue presented by this case to be a "broad public policy decision" best left to the Legislature given the "serious implications" that were presented, citing this Court's deference to the General Assembly in social-host-liability cases as support for her judicial restraint. Accordingly, the hearing justice granted Mr. Clukey's motion for summary judgment based on the failure of plaintiff's negligence claim as a matter of law.
Final judgment in favor of Mr. Clukey was entered on September 3, 2009. The plaintiff timely filed her notice of appeal on September 17, 2009.
Issues on Appeal
On appeal, plaintiff challenges the hearing justice's determination that no duty existed under either Rhode Island case law or statutory law to impose liability upon Mr. Clukey in this case, consequently deferring to the Legislature's duty-creating authority. The plaintiff contends that a duty did indeed exist "under the common law theory of negligence," separate and apart from the duty (or lack of duty) imposed in social-host-liability cases. To support this contention, plaintiff presents what she perceives to be "four distinct theories of liability" in her appeal: (1) liability resulting from a cognizable duty ascertained from a consideration of the factors set forth in Banks, 522 A.2d at 1225, discussed infra; (2) liability based on a "special relationship" between Mr. Clukey and Mr. Milner as set forth in the Restatement (Second) Torts § 315 (1965) and Rhode Island case law; (3) consequent liability based on Mr. Clukey's purported assumption of a duty to prevent Mr. Milner from driving under the influence; and (4) liability stemming from Mr. Clukey's alleged "substantial assistance" of Mr. Miner's intoxicated operation of a motor vehicle. Based on these proposed avenues of liability, plaintiff urges this Court to unbridle the judicial restraint employed by the hearing justice in her decision and find a duty in this case as a matter of law.
In countering, Mr. Clukey avers that whether the facts of this case give rise to its classification as one involving social-host liability is immaterial to this Court's consideration of plaintiff's appeal. He notes that "social-host" cases fundamentally involve claims of negligence, which require that a plaintiff establish a recognized duty—a hurdle that Mr. Clukey contends plaintiff cannot surmount in this case based on existing authority. Although acknowledging that liability may be imposed in cases in which a "special relationship" is determined, Mr. Clukey maintains that no such special relationship existed between him and Mr. Milner. In seeking this Court's affirmance, Mr. Clukey also emphasizes the public policy concerns associated with imposing an obligation upon an adult to prevent another adult from operating a vehicle under the influence of alcohol, and particularly the difficulties in defining the scope and extent of such a duty.
Standard of Review
This Court reviews de novo a hearing justice's grant of a motion for summary judgment. Henderson v. Nationwide Insurance Co., 35 A.3d 902, 905 (R.I.2012) (citing Zanni v. Voccola, 13 A.3d 1068, 1070 (R.I.2011)). "We will affirm the grant of summary judgment only `[i]f we conclude, after viewing the evidence in the light most favorable to the nonmoving party, that there is no genuine issue of material fact to be decided and that the moving party is entitled to judgment as a matter of law * * *.'" Empire Acquisition Group, LLC v. Atlantic Mortgage Co., 35 A.3d 878, 882 (R.I.2012) (quoting Pereira v. Fitzgerald, 21 A.3d 369, 372 (R.I.2011)). "The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute." Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I.2009) (quoting Cullen v. Lincoln Town Council, 960 A.2d 246, 248 (R.I.2008)). Here, the question presently before this Court is purely one of law; "[t]his Court also uses a de novo standard to review a [hearing] justice's rulings on questions of law." Waterman v. Caprio, 983 A.2d 841, 844 (R.I.2009) (citing Hilley v. Lawrence, 972 A.2d 643, 649 (R.I.2009)).
Even in the face of tragic consequences, liability for alleged negligent conduct cannot attach to a defendant absent a recognized duty of care. See Selwyn v. Ward, 879 A.2d 882, 886 (R.I.2005). It is not until a legal duty is established that a plaintiff is entitled to a factual determination on the enduring elements of his or her negligence claim—breach of duty, proximate causation, and actual loss or damage. See id. (citing Terry v. Central Auto Radiators, Inc., 732 A.2d 713, 718 (R.I.1999)); see also Ouch v. Khea, 963 A.2d 630, 633 (R.I.2009) ("Only when a party properly overcomes the duty hurdle in a negligence action is he or she entitled to a factual determination on each of the remaining elements * * *."). "If the court finds that no duty exists, `the trier of fact has nothing to consider and a motion for summary judgment must be granted.'" Berardis v. Louangxay, 969 A.2d 1288, 1291 (R.I.2009) (quoting Banks, 522 A.2d at 1225).
It is well settled that in this jurisdiction the determination of "[w]hether a defendant is under a legal duty in a given case is a question of law" and, that the assessment of such is conducted on a "case-by-case basis." Willis v. Omar, 954 A.2d 126, 129, 130 (R.I.2008) (citing Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005)). In conducting this analysis, we examine "all relevant factors, including the relationship of the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations, and notions of fairness." Volpe v. Gallagher, 821 A.2d 699, 705 (R.I.2003) (quoting Hennessey v. Pyne, 694 A.2d 691, 697 (R.I.1997)); see also Banks, 522 A.2d at 1225 (As "[n]o clear-cut rule exists to determine whether a duty is in fact present in a particular case[,]" the Court considers several factors "to aid in that determination.").
Rhode Island Case Law
As acknowledged by both parties, in cases involving social hosts, "[w]e consistently have refused" to recognize a duty owed by a host to third parties for injuries caused by an intoxicated guest who consumed alcohol at the host's premises, absent "a duty-triggering special relationship." Willis, 954 A.2d at 130. Here, however, the circumstances of the action do not cleanly align with the factual template generally associated with social-host-liability cases. Despite the underlying facts concerning alcohol consumption in this case, Mr. Clukey was not socially hosting Mr. Milner at his premises. Nevertheless, the analyses and reasoning underpinning our line of social-host-liability cases provide invaluable guidance in ruminating and resolving the matter now before this Court. In a similar fashion, our past precedent addressing the implications of a special relationship between the parties in determining a duty illumines the path we now embark upon.
In 1995, this Court encountered the concept of social-host liability for the first time in Ferreira v. Strack, 652 A.2d 965 (R.I.1995). In Ferreira, two pedestrians injured by an intoxicated driver brought suit against the hosts of a party at which the driver had consumed alcohol on the night of the accident. The social hosts successfully moved for summary judgment in Superior Court on the theory that they owed no duty to the plaintiffs to prevent the intoxicated guest from operating his vehicle that evening. The plaintiffs appealed and contended that because the hosts actually or constructively knew that the driver was intoxicated and intended on operating a motor vehicle, they owed a duty of care to the general public to prevent him from doing so. Id. at 967.
We further emphasized that
Finding no duty owed to the plaintiffs by the defendant-hosts under the facts of that case, this Court affirmed the judgment of the Superior Court.
Ten years later, in Martin v. Marciano, 871 A.2d 911 (R.I.2005), this Court was presented with another alcohol consumption/premises liability case, this time involving injury to the plaintiff-guest at the hands of an assailant who showed up at the home of a social host.
Following our opinion in Martin, we were again petitioned to ponder a place for social-host liability within our jurisprudence in Willis. The negligence claim set forth by the injured plaintiff, Willis, arose from the alleged negligent service of alcohol by the defendant-hosts to Willis and her boyfriend, both of drinking age, while at the hosts' residence. Willis, 954 A.2d at 127-28. In Willis's view, this conduct led to the single-car collision later that evening in which she was injured as a passenger in her boyfriend's vehicle. Id. The defendant-hosts filed a successful motion for summary judgment premised on a lack-of-duty argument. Id. at 128-29. In granting the motion, the hearing justice emphasized "that Rhode Island ha[d] not embraced social-host liability for drunk-driving casualties, in the absence of an accompanying special relationship." Id. at 129 (citing Ferreira, 652 A.2d at 967).
In affirming the hearing justice's grant of summary judgment, we discerned no extant special relationship—requisite to a finding of duty—upon review of the record. Willis, 954 A.2d at 130. Likening Willis's case to that in Ferreira, and distinguishing it from special relationship cases, such as Martin, this Court declined to overturn settled precedent by adopting the general social-host theory of liability in furtherance of creating a new cause of action. Willis, 954 A.2d at 130-31. As in Ferreira, we underscored in Willis that "[t]he issue of liability vel non for social hosts whose guests cause harm is a matter that belongs in the Legislature." Willis, 954 A.2d at 131.
In Willis, 954 A.2d at 129-30, this Court turned to its opinions in both Martin and in Volpe, in conducting the special relationship inquiry. Volpe, while not a social-host case, did focus on premises liability. Volpe, 821 A.2d at 705. In Volpe, the defendant homeowner was sued based on allegations that she negligently allowed her adult son, who was mentally ill, to store guns and ammunition on her property. Id. at 702. The son used one of the firearms to shoot and kill his next-door neighbor while the neighbor trimmed a hedge along the property boundary. Id. at 703. Although a jury returned a verdict deeming the defendant to have been negligent by allowing her "mentally disturbed, paranoid, and delusional" son to store firearms and ammunition on her property, the trial justice ultimately granted the defendant's motion for a new trial. Id. at 704. In so doing, the trial justice reasoned that she had mistakenly permitted the case to go to the jury because, in her view, the defendant "owed no legal duty to the neighboring victim because she could not have foreseen that her son would use any of [the] firearms to murder him—at least without any evidence of similar previous
Upon review, a majority of this Court reversed the trial justice's grant of the new-trial motion, holding that, based on the circumstances at hand, the defendant property owner did indeed have "a duty to exercise reasonable care so to control [her son's] conduct * * * as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them[.]" Volpe, 821 A.2d at 709 (quoting Restatement (Second) Torts § 318 at 126-27 (1965)). In arriving at this conclusion, this Court relied on both "a landowner's traditional liability to visitors and to those outside the property for maintaining dangerous conditions on their land," id. at 706, as well as a land possessor's "`duty to exercise reasonable care for the protection of others'" that arises "`between the possessor of land and those allowed on the land because of the possessor's power of control over those allowed to enter.'" Id. (quoting Chavez v. Torres, 128 N.M. 171, 991 P.2d 1, 5 (Ct.App.1999)). The latter theory is based on the Restatement (Second) Torts § 318 at 126-27, entitled "Duty of Possessor of Land or Chattels to Control Conduct of Licensee," and reads as follows:
In adopting this theory of liability, we emphasized in Volpe that such a duty is conditional and "does not create strict liability for those possessors of property who permit third parties to conduct an activity on their property that creates an unreasonable risk of bodily harm to others * * *." Volpe, 821 A.2d at 706. Determining that the defendant in Volpe met these conditions, we held that a special relationship indeed existed between the defendant and her neighbor that imposed upon the defendant a duty to control the conduct of her adult son.
This Court next confronted the special-relationship question in Santana v. Rainbow Cleaners, Inc., 969 A.2d 653 (R.I. 2009), in which an injured plaintiff sued a mental health center, alleging that the center was negligent by not seeking to commit the mentally-disturbed patient who struck her with a crowbar. Id. at 654-55. The plaintiff maintained that the center was liable "because it knew or should have known that [the patient] was an individual whose continued unsupervised presence in the community would create an imminent
On appeal, this Court stated that, although "[t]here is ordinarily no duty to control a third party's conduct to prevent harm to another individual[,] [t]he law * * * has recognized an exception to this general rule when a defendant has a special relationship with either the person whose conduct needs to be controlled or with the intended victim of the conduct." Santana, 969 A.2d at 658. We noted that this exception is reflected in the Restatement (Second) Torts § 315 at 122, which states that
Gleaning no evidence from the record that would show that the center had the ability or opportunity to control the patient, we concluded that no special relationship between the two existed based on the facts before us. Santana, 969 A.2d at 655-56. Citing the lack of special relationship, in conjunction with foreseeability and public policy concerns, this Court found no duty on the part of the center and affirmed the grant of summary judgment. Id. at 666-67.
The foregoing authority illustrates the fact-specific and intricate scrutiny this Court must apply when encountered with cases involving a defendant's alleged failure to control the tortious conduct of a third party, particularly when the consumption of alcohol is involved. The matter presently before us poses a factual pattern that reflects certain circumstances and concerns considered in our prior social-host and special-relationship opinions in an almost hybrid fashion. In light of this, the parties rely on both types of cases to support their respective causes. Notably absent from this case, however, is the fundamental theme of premises liability present in cases like Martin and Volpe. Nevertheless, amid the fog of theories and principles proffered by the parties in this appeal, what is clear is that the finding of a duty in this case rests largely upon whether a special relationship existed between Mr. Clukey and Mr. Milner, between Mr. Clukey and Mr. Johnson, or neither at all.
As this Court has stated, "no clear-cut formula for creation of a duty exists that can be mechanically applied to each and every negligence case." Santana, 969 A.2d at 664 (quoting Kenney Manufacturing Co. v. Starkweather & Shepley, Inc., 643 A.2d 203, 206 (R.I.1994)). For that reason, we carry out "an ad hoc approach that `turns on the particular facts and circumstances of a given case[.]'" Ouch, 963 A.2d at 633 (quoting Benaski v. Weinberg, 899 A.2d 499, 502 (R.I.2006)). As discussed, this particularized practice encompasses the consideration of several factors, including "(1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered an injury, (3) the closeness of connection between the defendant's conduct and the injury suffered, (4) the policy of preventing future
Nature of the Relationship
As emphasized in Santana, there is generally no duty to control the conduct of a third party to prevent injury to another person unless "a defendant has a special relationship with either the person whose conduct needs to be controlled or with the intended victim of the conduct." Santana, 969 A.2d at 658; see also Restatement (Second) Torts § 315. In both Volpe and Martin, the existing special relationships emanated primarily from each defendant's status as a property owner—under § 318 of the Restatement (Second) Torts, "[a] special relationship * * * may arise between the possessor of land and those allowed on the land because of the possessor's power of control over those allowed to enter." Volpe, 821 A.2d at 706 (quoting Chavez, 991 P.2d at 5 and citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 57 at 392 (5th ed.1984)). Here, however, possession of land is not a factor. Cognizant of this circumstance, plaintiff maintains that a special relationship between Mr. Clukey and Mr. Milner instead arose from "[Mr.] Clukey's knowledge of [Mr.] Milner's practice of drinking to excess prior to[
After careful examination of the record, and viewing all evidence in favor of the plaintiff, we conclude that the facts of this case do not sufficiently give rise to a special relationship between Mr. Clukey and Mr. Milner. Despite Mr. Clukey's knowledge of both Mr. Milner's past social drinking habits and current intoxicated state on the evening in question, the facts do not indicate that Mr. Milner was under Mr. Clukey's charge or control. This case is distinguishable from Martin, in that Mr. Clukey, an underage drinker himself, was not an adult who furnished alcohol to Mr. Milner.
Despite the lack of a special relationship between Mr. Clukey and Mr. Milner, a duty to control the conduct of Mr. Milner may have been imposed upon Mr. Clukey if a special relationship existed between him and Mr. Johnson, giving Mr. Johnson "a right to protection." Restatement (Second) Torts § 315. As explained in comment, c. to § 315 of the restatement, "[t]he relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320." The Restatement (Second) Torts § 314A (1965) designates the following special relations giving rise to a duty to aid or protect: (1) common carrier/passenger; (2) innkeeper/guests; (3) possessor of land that holds the land open to the public/member of the public; and (4) legal or voluntary custodian/ward. These relations create a special responsibility and remove such cases from the general rule, set forth in the Restatement (Second) Torts § 314 at 116 (1965), that "[t]he fact that the actor realizes or should realize that action on his [or her] part is necessary for another's aid or protection does not of itself impose upon him [or her] a duty to take such action." See Restatement (Second) Torts § 315; see also § 314A cmt. b. Although this list is not intended to be exclusive, it is clear that any "relationship" between Mr. Clukey and Mr. Johnson is far removed from these categories. See Restatement (Second) Torts § 314A cmt. b.
Equally inapplicable is § 320, which addresses the duty of persons having custody of another to control the conduct of third persons. "[T]his Section is applicable to a sheriff or peace officer, a jailer or warden of a penal institution, officials in charge of a state [or private] asylum or hospital for the criminally insane, or to teachers or other persons in charge of a public [or private] school." Restatement (Second) Torts § 320 cmt. a. at 130 (1965). Based on these principles, this Court concludes that no special relationship existed between Mr. Clukey (the driver who brought Mr. Milner to his vehicle) and Mr. Johnson (the victim of Mr. Milner's tortious conduct).
Because no special relationship existed between the parties in this case to support a duty by Mr. Clukey to control Mr. Milner's conduct on August 12, 2005, to prevent physical harm to Mr. Johnson, plaintiff's argument based on this theory must fail.
Here, plaintiff maintains that, even if a special relationship is lacking in this case, Mr. Clukey voluntarily assumed the duty
Section 324A tracks the language of § 323 of the restatement, which the recipient of the undertaken services. See Restatement (Second) Torts § 323 (1965).
This Court has "recognized the doctrine that one who assumes a duty to perform an act must do so with reasonable care whether or not that person had an obligation to perform the act or repairs prior to assuming the duty." Izen v. Winoker, 589 A.2d 824, 828 (R.I.1991) (citing Therrien v. First National Stores, Inc., 63 R.I. 44, 51, 6 A.2d 731, 734 (1939)); see also Davis v. New England Pest Control Co., 576 A.2d 1240, 1242 (R.I.1990) ("Even one who assumes to act gratuitously, may become subject to the duty of acting carefully if he acts at all." (citing Security National Bank v. Lish, 311 A.2d 833, 834 (D.C.App.1973))). However, this Court has not adopted the more "relaxed" standards set forth in §§ 323 and 324 of the restatement, which speak also to the issue of proximate causation, and we decline to do so in the context of this appeal.
In Buszta v. Souther, 102 R.I. 609, 232 A.2d 396 (1967), this Court tackled the question of whether an automobile service-station operator who undertook an automobile inspection of an owner's vehicle had a duty to third parties whose injuries were attributable to negligently made repairs, notwithstanding a lack of privity between the injured third party and the inspector. Id. at 611-12, 232 A.2d at 397-98. In resolving this question, we held
We further reasoned that
The case at hand is distinguishable from that considered in Buszta in regard to the nature of the undertakings at issue. The performance of an inspection service by a certified inspection station, upon which inspections both vehicle owners and highway users rely, is not analogous to Mr. Clukey's personal transportation of Mr. Milner over the course of an evening. Moreover, the record reveals that Mr. Clukey completed the task that he undertook— shuttling Mr. Milner between locales and returning him to his vehicle at the end of the evening. Though Mr. Clukey had the alternative options of driving Mr. Milner to his residence or preventing him from operating his vehicle in some other fashion, such was not the obligation that Mr. Clukey agreed to perform. Therefore, we hold that the facts of this case do not support the imposition of a duty upon Mr. Clukey owed to Mr. Johnson, or public roadway users in general, based on the theory of negligent performance of a voluntarily-assumed duty.
We note that plaintiff has directed this Court to cases in other jurisdictions that have considered an alleged assumption of duty owed by a volunteering "designated driver" to the public. We further observe that jurisprudence concerning "designated driver" liability in this country is particularly limited. The most recent case cited by plaintiff is a trial court decision, White v. Sabatino, 415 F.Supp.2d 1163, 1177 (D.Haw.2006), in which the United States District Court for the District of Hawaii "conclude[d] that a designated driver undertakes a common law duty to a third party under the Section 324A framework [of the Restatement (Second) Torts]." However, that case limited the imposition of such a duty in the absence of any evidence indicating that performance of the "designated driver" duty had been undertaken, particularly in "circumstances where parties may have consumed alcohol."
Though mindful of these decisions, we emphasize that this Court has not adopted § 324A, and we conclude that our legal philosophy more appropriately aligns with that of jurisdictions declining to impose a duty upon drivers to prevent the tortious conduct of an intoxicated passenger, discussed infra.
In addition to the consideration of the relationships between the parties in this case, this Court contemplates other factors in its duty analysis, including the foreseeability of harm to Mr. Johnson based on Mr. Clukey's conduct. Here, plaintiff argues that the foreseeability of harm to Mr. Johnson was apparent based on Mr. Clukey's "failure to take reasonable measures to prevent [Mr.] Milner from operating a motor vehicle while intoxicated." The plaintiff contends that because Mr. Clukey "dropped off an intoxicated [Mr.] Milner at his automobile and essentially forced [him] to drive himself," the "risk to the public at large" was reasonably foreseeable and predictable.
"As it pertains to the determination of duty, the foreseeability inquiry considers generally whether `the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.'" Martin, 871 A.2d at 917 (quoting Banks, 522 A.2d at 1226-27). It would be imprudent to suggest that a driver would not reasonably perceive the risk of injury to other roadway users by returning an intoxicated individual to his or her motor vehicle. However, we have oft recognized "that foreseeability of injury does not, in and of itself, give rise to a duty." Ferreira v. Strack, 636 A.2d 682, 688 n. 4 (R.I.1994) (citing D'Ambra v. United States, 114 R.I. 643, 650-51, 338 A.2d 524, 528 (1975)); see also Santana, 969 A.2d at 666 ("Foreseeability alone does not create a duty * * *."). "[T]he question is not simply whether a[n] * * * event is foreseeable, but whether a duty exists to take measures to guard against it." Ferreira, 636 A.2d at 688 n. 4 (quoting Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 293 (1962)). Thus, we consider the foreseeability issue in tandem with all factors germane to the duty analysis.
Closeness of Connection
In considering the closeness of the connection between Mr. Clukey's alleged negligent conduct (not preventing Mr. Milner from operating his vehicle) and Mr. Johnson's untimely death, we are obliged to stress the voluntary and independent nature
Extent of Burden
As noted by the hearing justice in her bench decision, imposing a duty upon an adult driver to prevent the intoxicated adult that he or she has agreed to transport from operating a vehicle, or causing other injury, places an "uncertain duty" upon friends, co-workers, acquaintances and even public transportation providers. We agree with this astute observation by the hearing justice. Defining the scope of such a duty escapes practicality, particularly in light of the innumerable factual nuances pervading this species of circumstance. Undoubtedly, questions of duration, adequacy of action, and subjectivity arise in considering the imposition of such a duty. When does the duty conclude? How assertive an attempt must one make to prevent the subsequent injurious conduct of an intoxicated passenger upon drop-off? How is a driver to gauge the passenger's level of inebriation? These are mere examples of the myriad of consequent inquiries each member of the community would have to consider before extending a friendly offer of transportation to an individual who has consumed alcohol prior to the fulfillment of that overture. Accordingly, we construe the potential burden far too onerous to impose upon Mr. Clukey or others similarly situated.
Such concerns have been likewise expressed by courts in other jurisdictions that have declined to impose a duty upon a "designated driver" to control the conduct of his or her passenger to prevent injury to an innocent third party. See, e.g. Stephenson v. Universal Metrics, Inc., 251 Wis.2d 171, 641 N.W.2d 158, 169 (2002) ("Even if [the defendant] had assumed a duty to drive [the intoxicated motorist] home, [he] could not reasonably have been expected to maintain the amount of control over [the intoxicated motorist] necessary to prevent [him] from ever leaving on his own to drive.").
Public Policy Concerns
The public policy considerations associated with the practice of driving while intoxicated are all too familiar to this Court, the General Assembly, and the public at large. See Willis, 954 A.2d at 132 ("This Court frequently has recognized the public policy concerns surrounding drunk driving and the resulting carnage on our highways."). In response to these significant concerns, the General Assembly has made great efforts to ensure that the practice is curbed and that offenders are properly penalized.
In addition to legislative regulatory efforts and the judiciary's enforcement of such, the general public has likewise acknowledged the dangers of drunk driving and has furthered the policy against such conduct through the use of "designated drivers." As noted by the Supreme Court of Tennessee, "[d]esignated drivers offer a valuable, but limited service to those who become intoxicated." Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 824 (Tenn.2008). To impose a new duty upon such drivers—a duty to control inebriated adult passengers and prevent them from committing tortious, or even criminal acts—would certainly chill the courteous offers of transportation now made by "designated drivers." See Cardella v. Robinson, 903 So.2d 613, 618 (La.Ct.App.2005) (recognizing the potential "chilling effect" upon designated driving in declining to impose a duty upon a driver "to other motorists to physically prevent an insistent, intoxicated adult from exiting [the] vehicle"); see also Stephenson v. Ledbetter, 596 N.E.2d 1369, 1373 (Ind.1992) ("To hold a driver liable for the irresponsible actions of an intoxicated passenger would cut against this important social policy of encouraging the use of designated drivers."). Equally unsettling is the uncertain potential exposure to liability for common carriers—and, particularly, taxi operators. Such a duty could easily be extended to such carriers, who would then be charged with controlling the conduct of an intoxicated adult passenger upon exiting the vehicle. See Cardella, 903 So.2d at 618.
After carefully reviewing the record and considering all relevant factors in our ad hoc analysis of the duty issue, we must conclude that the factual circumstances presented in this case do not give rise to the imposition of a duty upon Mr. Clukey, an adult, for the protection of innocent third parties like Mr. Johnson, to prevent an intoxicated Mr. Milner, likewise an
To impose such a duty in this case would amount to the creation of a new cause of action—an election that must be effected, if at all, by the Legislature. See Ferreira, 652 A.2d at 968. This Court also gives significant weight to the pervasive and proactive legislative action undertaken by the General Assembly in regulating the arena of drunk driving and alcohol consumption. Although the matter before this Court is not one grounded in social-host-liability theory, the reasoning underlying this Court's deference to the law-crafting power of our legislative branch in those cases easily harmonizes with our decision to likewise defer to the Legislature here. See Willis, 954 A.2d at 129 ("Whether an injured party should be able to maintain a cause of action arising from social-host liability rests with the Legislature, not the Court."). Particularly relevant is this Court's reasoning in Ferreira, 652 A.2d at 968, in which we observed that
As is the case with social-host liability, the question of whether such a duty should be imposed upon the public—a duty that could arguably be considered as a "designated-driver" duty—is one that is appropriate for legislative research and community debate. Given the palpable issues in defining the scope and extent of such a duty, as evidenced in this case, we exercise judicial restraint and decline to impose such a duty on this occasion.
Because we conclude that no duty existed in this case as alleged by the plaintiff, her negligence claim against the defendant must fail as a matter of law. Summary judgment was properly granted by the hearing justice.
For the reasons stated in this opinion, we affirm the judgment of the Superior Court. The record shall be remanded to the Superior Court.
Upon review of the record, we do not discern the facts of this case to give rise to a claim of liability under this theory.