Civil Extending Social Host Liability: Chapter 154 Seeks to Hold

Civil
Extending Social Host Liability: Chapter 154 Seeks to Hold
Adults Accountable for Serving Alcohol to Minors
Joseph Fabel
Code Section Affected
Civil Code § 1714 (amended).
AB 2486 (Feuer); 2010 STAT. Ch. 154.
I. INTRODUCTION
Early on the morning of December 20, 2008, Sean Walker Jordan was
1
driving eastbound on State Road 76, south of Fallbrook, California. Witnesses
reported he was driving erratically, even before his truck swerved into the
2
opposite lane of traffic and up an embankment. Sean, who was not wearing a
seat belt, was ejected from his vehicle and died from head injuries when he hit
3
4
the pavement. The police found an open container of alcohol in the truck and
5
later determined that the accident was the result of driver intoxication. Earlier
that night, Sean attended two parties where adults allowed minors to drink
6
7
alcohol. Sean was nineteen years old.
8
In California, a majority of high school age minors have consumed alcohol.
Underage drinking is a leading cause of death for those under twenty-one years
of age; it increases the likelihood of future alcohol dependency and is linked to
1. Andrea Verdin, 19-Year-Old Fatally Injured in SR76 Crash, FALLBROOK BONSALL VILLAGE NEWS,
Dec. 25, 2008, available at http://www.thevillagenews.com/story/34873 (on file with the McGeorge Law
Review).
2. See id. (reporting witness observations that Sean was “weaving side-to-side and traveling at speeds
varying between 15 and 45 mph”).
3. Id.
4. Id.
5. Kristina Davis & Karen Kucher, Host of Underage-Drinking Party Pleads Guilty, SAN DIEGO UNIONTRIB., Feb. 18, 2010, available at http://www.signonsandiego.com/news/2010/feb/18/host-underage-drinkingparty-pleads-guilty (on file with the McGeorge Law Review).
6. Sarah Gordon, Fallbrook: Mom Pleads Guilty to Violating Social Host Ordinance, NORTH COUNTY
TIMES, Mar. 30, 2010, available at http://www.nctimes.com/news/local/fallbrook/article_5a9dfc94-10f0-543cb3be-b254ee58b5ed.html (on file with the McGeorge Law Review).
7. Id.
8. See LLOYD D. JOHNSTON ET AL., MONITORING THE FUTURE: NATIONAL RESULTS ON ADOLESCENT
DRUG USE 8 (2008), available at http://www.monitoringthefuture.org/ pubs/monographs/overview2008.pdf (on
file with the McGeorge Law Review) (“Nearly three-quarters of students (72%) have consumed alcohol (more
than just a few sips) by the end of high school . . . .”); see also MICHAEL R. PEMBERTON ET AL., UNDERAGE
ALCOHOL USE: FINDINGS FROM THE 2002-2006 NATIONAL SURVEY ON DRUG USE AND HEALTH 98, Tbl.3.10B
(2008), available at http://www.oas.samhsa.gov/underage2k8/underage.pdf (on file with the McGeorge Law
Review) (reporting that from 2002-2006 in California, on average 51.5% of all persons between the ages of
twelve and twenty had tried alcohol and 16.2% had engaged in binge drinking).
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9
violent youth crime. Alcohol is readily available to many minors; they can easily
10
get it from their own parents, a friend’s parents, or other adults. Various
communities across California have enacted laws to curb underage drinking by
authorizing fines and criminal penalties for adults who serve alcohol to minors or
11
allow minors access to alcohol. Chapter 154 places civil liability on adults who
12
knowingly allow minors to drink in their home. The California Legislature
believes that if adults are civilly liable for the harm caused by serving alcohol to
13
minors, they will be less inclined to tolerate underage drinking.
II. LEGAL BACKGROUND
After Sean’s death, two adults were fined and sentenced to community
14
service for hosting the two parties Sean attended. At the time, California law did
not hold adults civilly liable for harm done to minors or any third party as a result
15
16
of providing alcohol. Social hosts were statutorily immune against civil suits,
17
regardless of who they provided alcohol to or the harm that resulted. The legal
recourse against those serving alcohol to minors was criminal prosecution under
18
local ordinances.
9. See generally NAT’L INST. OF HEALTH, UNDERAGE DRINKING FACT SHEET 1 (2007), available at
http://www.nih.gov/about/researchresultsforthepublic/UnderageDrinking.pdf (on file with the McGeorge Law
Review) (summarizing the negative effects of underage drinking, including risky sexual behavior, assault,
alcohol dependency, and death).
10. AM. MED. ASS’N, TEENAGE DRINKING KEY FINDINGS (2005), available at http://www.amaassn.org/ama1/pub/upload/mm/388/keyfindings.pdf (on file with the McGeorge Law Review) (summarizing
results of a survey of teenagers showing “one in four teens [have] attended a party where minors were drinking
alcohol in front of parents” and two out of five teens say “it is easy to get alcohol from a friend’s parents”).
11. See News Archive, SOCIALHOSTLIABILITY.ORG, http://www.socialhostliability.org/news (last visited
Mar. 16, 2011) (on file with the McGeorge Law Review) (linking to stories reporting that Santa Barbara,
Carlsbad, Pomona, Mission Viejo, Marin County, Ceres, Palo Alto and other California municipalities are
enacting or broadening social host ordinances).
12. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (Apr. 14, 2010).
13. Id. at 4.
14. Gordon, supra note 6.
15. CAL. CIV. CODE § 1714(c) (West 2009) (“No social host who furnishes alcoholic beverages to any
person 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.”).
16. See Lee A. Coppock, Social Host Immunity: A New Paradigm to Foster Responsibility, 38 CAP. U.
L. REV. 19, 28 (2009) (providing an example of a social host as “the homeowners who provide alcohol to their
guests at a dinner party or to friends at a backyard barbecue”).
17. 1978 Cal. Stat. ch. 929, § 2, at 2904 (amending CAL. CIV. CODE § 1714) (“No social host who
furnishes alcoholic beverages to any person 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.”) (emphasis added).
18. See, e.g., BENICIA, CAL., MUN. CODE, §§ 9.02.010-9.02.050 (codifying criminal penalties of $750
for the first social host violation, $1,500 for the second, and $2,500 for three or more violations).
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A. Traditional Common Law
Traditionally, a commercial vendor of alcohol could not be held civilly liable
for harm caused by customers to themselves or third parties by the consumption
19
of alcohol. Courts reasoned that the customer’s voluntary consumption of
alcohol was the proximate cause of the harm, as opposed to the act of supplying
20
alcohol by the vendor. California case law extended the vendor liability shield
21
to private social hosts serving alcohol in their homes.
In 1971, the California Supreme Court, in Vesely v. Sager, created an
22
exception to commercial vendor liability. Vesely held that a violation of section
23
25602 of the Business and Professional Code created a presumption of
24
negligence and gave a private right of action to the plaintiff. The court further
held, consistent with modern principles of negligence, that serving alcohol may
be a proximate cause of injury because the “resulting intoxication[] and injury25
producing conduct are foreseeable intervening causes . . . .”
In 1976, the California Supreme Court, in Bernhard v. Harrah’s Club,
expanded commercial liquor liability by allowing actions against out-of-state
26
vendors, and in Coulter v. Superior Court, removed civil immunity from social
hosts who violated Business and Professional Code section 25602, vastly
27
expanding liability for residents.
19. 6 B.E. WITKIN, SUMMARY OF CALIFORNIA LAW, Torts § 1066 (10th ed. 2005).
20. Id.; see also Cole v. Rush, 45 Cal. 2d 345, 356, 289 P.2d 450, 457 (1955) (“[I]t is the voluntary
consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use.”).
21. See, e.g., Cole, 45 Cal. 2d at 366, 289 P.2d at 462 (Carter, J., dissenting) (implying that any
voluntary alcohol consumption creates contributory negligence); Fleckner v. Dionne, 94 Cal. App. 2d 246, 24849, 210 P.2d 530, 532 (1st Dist. 1949) (stating that absent a statute saying otherwise, providing an intoxicated
person with alcohol is not the proximate cause of his or her injuries regardless if served by a business or
individual).
22. See Vesely v. Sager, 5 Cal. 3d. 153, 157, 95 Cal. Rptr. 623, 625 (1971) (relating the case to involve a
tavern owner who after serving copious amounts of alcohol over many hours to a customer, allowed the
customer to drive while visibly intoxicated down what the owner knew as a steep and windy road. The customer
hit the plaintiff causing harm; the plaintiff sued that tavern owner).
23. See 1953 Cal. Stat. ch. 152, § 1, at 1020 (enacting CAL. BUS. & PROF. CODE § 25602) (reading, in
relevant part, that “[e]very person who sells, furnishes, gives or causes to be sold, furnished, or given away, any
alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a
misdemeanor.”); see also CAL. EVID. CODE § 669(a) (West 1995) (establishing a presumption of failure to
exercise due care if a person violates a statute or ordinance, that violation proximately causes harm, the harm
was such that the statute was intended to prevent, and the person harmed was of a class of persons the statute
was enacted for).
24. Vesely, 5 Cal. 3d. at 164-65, 95 Cal. Rptr. at 631 (1971).
25. Id. at 164, 95 Cal. Rptr. at 631.
26. See generally Bernhard v. Harrah’s Club, 16 Cal. 3d 313, 128 Cal. Rptr. 215 (1976) (holding that
even though a commercial alcohol vendor in Nevada could not be charged under Business and Professional
Code section 25602, the plaintiff harmed by the alcohol could still sue under a right of action).
27. See Coulter v. Superior Court, 21 Cal. 3d 144, 145 Cal. Rptr. 534 (Cal. 1978) (expanding the scope
of section 25602 to create a duty of care for both commercial and social host providers of alcohol).
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B. The Legislature Restores Social Host Immunity
In 1978, the California Legislature responded to judicial expansion of both
28
commercial and social host civil liability by enacting Chapters 929 and 930.
The chapters abrogated the holdings of Vesely, Bernhard, and Coulter,
reinstating the prior common law rule that consumption of alcohol, not service, is
29
the proximate cause of any resulting harm. Although the amendments restored
social host and commercial vendor civil immunity, Chapter 930 created a cause
of action for licensed sellers of alcohol who sell to “obviously intoxicated”
30
minors.
C. Sanctions for Serving Alcohol to Minors
The California Legislature has a demonstrated policy of keeping minors
31
away from alcohol. In California, “[e]very person who sells, furnishes, [or]
gives . . . any alcoholic beverage to any person under the age of 21 years is guilty
32
of a misdemeanor.” Further, if a minor either harms him or herself or a third
33
party due to the service of that alcohol, the server is guilty of a misdemeanor.
However, Chapters 929 and 930 show clear legislative intent to shield violators
34
of anti-minor drinking laws from civil liability. Prior to the enactment of
Chapter 154, section 25602.1 of the Business and Professions Code allowed a
cause of action only against licensed sellers, or those required to be licensed, who
35
served an obviously intoxicated minor. This limited exception carried no
liability for social hosts who served alcohol to minors, even where the minor was
36
obviously intoxicated.
28. Torts; Civil Liability for Furnishing Alcohol, 10 PAC. L.J. 591, 591 (1978).
29. Id. at 591-92.
30. CAL. BUS. & PROF. CODE §25602.1 (West 1997).
31. See generally Kelly B. Dick, Minor Drinking and Driving: California’s Inconsistent and Inequitable
Statutory Scheme of Social Host Immunity, 25 U.C. DAVIS L. REV. 463, 471 (1992) (demonstrating that the
creation of a minimum drinking age and penalties for drinking show the Legislature’s interest in keeping minors
away from alcohol).
32. CAL. BUS. & PROF. CODE § 25658(a) (West 1997).
33. Id. § 25658(c) (West Supp. 2010).
34. Cory v. Shierloh, 29 Cal. 3d 430, 433, 436, 174 Cal. Rptr. 500, 504-05 (1981) (holding that a minor
who was served alcohol and was later injured in a vehicle accident had no civil recourse for the harm resulting
from service of alcohol); id. at 439 (“[T]he Legislature possesses a broad authority both to establish and to
abolish tort causes of action.”).
35. CAL. BUS. & PROF. CODE § 25602.1.
36. For one common law exception to social host immunity see Bass v. Pratt, 177 Cal. App. 3d 129, 129,
222 Cal. Rptr. 723, 723 (1st Dist. 1986) (noting that an adult can be liable if they serve alcohol to one “who is
unable to voluntarily resist its consumption because of some exceptional physical or mental condition and that
youth, by itself, does not create such a condition”).
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III. CHAPTER 154
Chapter 154, known as the “Teen Alcohol Safety Act of 2010,” creates an
exception to the rule that social hosts who serve alcohol to minors are immune
37
from civil liability for all harm resulting from the consumption of that alcohol.
Chapter 154 amends the Civil Code by adding that, despite social host immunity,
“[n]othing . . . shall preclude a claim against a parent, guardian, or another adult
who knowingly furnishes alcoholic beverages at his or her residence to a person
38
under 21 years of age[.]” Notwithstanding existing notions of proximate cause,
“the furnishing of the alcoholic beverage may be found to be the proximate cause
39
of resulting injuries or death.” This amendment allows adult social hosts who,
while in their homes, knowingly serve alcohol to minors to be held civilly liable
for any harm to the minor or to third parties as a result of the minor’s alcohol
40
consumption.
IV. ANALYSIS
Chapter 154 adds California “to the large preponderance of states who
impose potential ‘social host’ liability on [those] adults who knowingly [furnish]
41
alcohol to minors . . . .” However, important questions about how courts will
define the scope of liability arise because other states have defined “knowingly
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furnishes” in different ways. The prohibitive effect of Chapter 154 on underage
drinking will depend on how California defines “knowingly furnishes” and
43
whether service to minors will be considered a willful act.
A. The Scope of “Knowingly Furnishes”
Because Chapter 154 does not define “knowingly,” how the term is
interpreted in the context of social host liability will determine Chapter 154’s
44
prohibitive effect on under-age drinking. Supporters of Chapter 154 contend
that the amendment “is extremely limited as it only applies to social hosts who
37. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010).
38. CAL. CIV. CODE § 1714(d) (enacted by Chapter 154).
39. Id.
40. Id.
41. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 1 (June 29, 2010).
42. See infra Part IV.A (examining the scope of “knowingly furnishes”).
43. See infra Part IV.B (examining whether “willfully” equals “knowingly”).
44. See ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010) (“[Chapter 154]
would add California to the large preponderance of states who impose potential ‘social host’ liability on those
adults who knowingly provide alcohol to minors”); see also infra notes 49-52 (surveying alternative state
interpretations of “knowingly”).
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knowingly [furnish] alcohol to minors.” The interpretation has varied and it
becomes important to evaluate the term as used in other jurisdictions with laws
46
similar to Chapter 154.
Black’s Law Dictionary defines “knowingly” as “[h]aving or showing
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awareness or understanding.” Many states modify the definition of knowingly
48
by adding a “furnish” requirement. Under this modified requirement, to trigger
a cause of action, adults must have knowledge that minors are drinking in their
49
home and affirmatively provide the alcohol. In the context of social host service
to minors, the Vermont Legislature has defined “knowingly” to include situations
where “the social host knew, or a reasonable person in the same circumstances
would have known, that the person who received the intoxicating liquor was a
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minor.” New York and Florida have similar statutes, requiring that the host
51
specifically know they are serving minors. Minnesota, which has a statute much
like Chapter 154, passed a law in 2000 based on Colorado’s approach defining
“knowingly” as an adult simply knowing that they are providing a place for
minors to drink, or permitting alcohol consumption on a property they control,
52
even when the adult does not furnish the alcohol.
45. Letter from Christopher B. Dolan, President, & John A. Montevideo, President-Elect, Consumer
Att’ys of Cal., to Mike Feuer, Assembly Member, Cal. State Assembly (Mar. 15, 2010) (on file with the
McGeorge Law Review).
46. VT. STAT. ANN. tit. 7, § 501 (West 1999 & Supp. 2003), N.Y. GEN. OBLIG. LAW § 11-100
(McKinney 2010), FLA. STAT. ANN. § 768.125 (West 2005), MINN. STAT. ANN. § 340A.801 (West 2004).
47. BLACK’S LAW DICTIONARY 403 (3d. Pocket ed. 2006).
48. See, e.g., CAL. BUS. & PROF. CODE § 4026 (West 2003) (“‘Furnish’ means to supply by any means,
by sale or otherwise.”).
49. See MacGilvray v. Denino, 540 N.Y.S.2d. 449, 451, 149 A.D.2d 571, 572 (N.Y. App. Div. 1989)
(holding that mere knowledge that minors are consuming alcohol does not satisfy the furnish requirement for
liability); see also Sherman v. Robinson, 591 N.Y.S.2d 974, 977, 80 N.Y.2d 483, 487 (N.Y. 1992) (holding that
liability exists only where an adult furnishes or actively “assists in the procurement of alcohol” to minors).
50. VT. STAT. ANN. tit. 7, § 501(g)(2).
51. See N.Y. GEN. OBLIG. LAW § 11-100(1) (“Any person who shall be injured in person, property,
means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the
age of twenty-one years . . . shall have a right of action to recover actual damages.”); FLA. Stat. Ann. § 768.125
(“a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful
drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages
may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.").
52. See COLO. REV. STAT. ANN. § 12-47-801 (West 2010) (allowing liability even without an adult
knowingly providing alcohol to a minor); id. § (3)-(4)(a)(I) (“It is proven that the social host knowingly served
any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the
person under the age of twenty-one a place to consume an alcoholic beverage.” Damages are capped under this
section at $150,000 and adjusts the amount annually for inflation); see also MINN. STAT. ANN. § 340A.801 (a
law nearly identical to Chapter 154); id. § 340A.90 (allowing liability where an adult “had control over the
premises and, being in a reasonable position to prevent the consumption of alcoholic beverages by that person,
knowingly or recklessly permitted that consumption and the consumption caused the intoxication of that
person.” Minnesota only allows injured third parties and not injured minors to sue the adult); Jennifer E.
Ampulski & Eric E. Holman, Social Host Liability in Minnesota, 64 BENCH & B. OF MINN. 19, 19-20 (2007)
(suggesting that both laws serve a purpose in Minnesota, in cases where an adult furnished alcohol, the minor
who was served can seek relief under section 340A.801. For the cases where the adult just provided a home to
drink without furnishing section 340A.90 allows third parties a cause of action).
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Regardless of how California interprets “knowingly furnishes,” the scope of
liability under Chapter 154 may be quite limited. For example, in New York,
parents were not liable because they were away from home and unaware of the
53
underage drinking. In Minnesota, prior to section 340A.90, an adult who
allowed his underage son to have a party with alcohol was not liable because the
54
adult stayed in his room the entire time and did not furnish the alcohol.
California courts, looking to legislative history, may not find a clear picture
of how “knowingly furnishes” should be applied. According to the final assembly
analysis, Chapter 154 will encompass “[t]he most shocking episodes involv[ing]
parents or other adults who knowingly provide alcohol to underage minors—and
55
this bill only targets those most egregious situations.” The author of Chapter
154 stresses that the bill does not place “automatic liability” on hosts; “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 . . . breached his or her
responsibility[,] . . . knowingly provided alcohol to the child, and injuries or
56
death thereby resulted . . . .”
The incident attributed by the author of Chapter 154 and referenced as the
inspiration in every legislative analysis is one in which adults, while at home, did
57
not affirmatively furnish alcohol. Under the facts known, if a court applied the
58
stricter New York definition of “knowingly furnish,” plaintiffs would not
recover because the minor child affirmatively supplied the alcohol. If, however,
59
the broader interpretation of Minnesota or Colorado applies, plaintiffs could
raise facts showing that the adults may have been aware of a propensity to drink
and, therefore, a duty existed to ensure the minors had not been furnished with
60
alcohol that they would later drink. The author of Chapter 154 states there
53. See MacGilvray, 540 N.Y.S.2d. at 451, 149 A.D.2d at 572 (requiring more than mere knowledge of
consumption).
54. See Frisch v. Bassett, No. C9-95-2043, 1996 WL 104770, at *2 (Minn. Ct. App. Mar. 12, 1996)
(holding that an adult who stayed in his room during the duration of a party could not have “furnished alcohol”
to minors).
55. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010) (emphasis added).
56. Id.
57. See Scott Mobley, Shelby Allen’s Death Caused by Alcohol Poisoning; Parents Launch Educational
Campaign, REC. SEARCHLIGHT (Redding, CA), Jan. 14, 2009, available at http://www.redding.com/news/
2009/jan/14/shelby-allens-death-caused-by-alcohol-poisoning (on file with the McGeorge Law Review) (noting
the story of Shelby Allen, a minor who died from alcohol poisoning while drinking at her friend’s house). Her
friend’s parents were home, although they allegedly “warned the girls . . . there was to be no drinking . . . .” Id.;
see also Jim Schultz, Teen Charged with Manslaughter in Shelby Lyn Allen’s Death, REC. SEARCHLIGHT
(Redding, CA), May 27, 2009, available at http://www.redding.com/news/2009/may/27/teen-chargedmanslaughter-shelby-lyn-allens-death (on file with the McGeorge Law Review) (reporting that the minor
daughter of the parents whose home Shelby Allen died at is being charged for allegedly furnishing the alcohol
leading to Shelby’s death; however “[T]here are simply not enough facts to support bringing charges against the
parents”).
58. See supra note 48 and accompanying text.
59. See supra note 51-52 and accompanying text.
60. Mobley, supra note 57.
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should not be “‘automatic liability’ on any adult who may have inadvertently
61
provided access to alcohol by a minor.” This raises the question of whether a
plaintiff can try to prove the adult unintentionally, although negligently, provided
alcohol to minors. For example, does recklessly or negligently leaving alcohol in
the kitchen or in an unlocked cabinet equate with “knowingly furnished”? The
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Legislature is silent on this point.
B. Whether “Knowingly” Equates with “Willfully”
Chapter 154 is not explicit as to whether “knowingly” providing alcohol to
minors is considered “willful.” This is important in the context of homeowners’
insurance, because under section 533 of the Insurance Code, “[a]n insurer is not
63
liable for a loss caused by the willful act of the insured[.]” Early legislative
hearings for Chapter 154 linked a cause of action under section 1714(d) of the
64
Civil Code with section 533 of the Insurance Code. If the act of knowingly
providing alcohol is considered willful under section 533, then adults sued under
Chapter 154 could not rely on their homeowners’ insurance policy for liability
65
protection. Further, primary and third-party victims may be undercompensated
66
if the wrongdoer does not have sufficient assets to compensate for harm.
“Willful” is not defined within section 533 of the Insurance Code. The
California Supreme Court has held that willfulness exists where one acts “with a
67
‘preconceived design to inflict injury.’” A court could find that the California
Legislature, by establishing a policy to keep minors away from alcohol, has
68
determined drinking to be injurious to minors. However, in the absence of
statutory guidance, courts will determine if adults who knowingly serve alcohol
61. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010) (emphasis added).
62. CAL. CIV. CODE § 1714(d) (enacted by Chapter 154).
63. CAL. INS. CODE § 533 (West 2010).
64. See ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010) (listing section 533
of the Insurance Code under existing law related to Chapter 154); see also ASSEMBLY REPUBLICAN BILL
ANALYSIS: AB 2486, at 25 (on file with the McGeorge Law Review) (suggesting that “[i]n order to remove
possible doubt,” the following amendment be added to Chapter 154: “For purposes of Section 533 of the
Insurance Code, a social host who acts within the scope of subdivision (d) is deemed to have acted willfully”)
(emphasis added).
65. See James A. Fischer, The Exclusion from Insurance Coverage of Losses Caused by the Intentional
Acts of the Insured: A Policy in Search of a Justification, 30 SANTA CLARA L. REV. 95, 99 (1990) (stating that
due to the increase of intentional torts and willful misbehavior of home owners, insurance companies rely more
and more on intentional act policy exclusions).
66. See id. at 112-13 (arguing that the policy underlying section 533 of the Insurance Code is based on
an erroneous assumption that indemnifying the intentional acts of the insured is a boon to the tortfeasor; instead,
the primary benefit derives from compensating the victim of the harm in full).
67. Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 887, 151 Cal. Rptr. 285, 297 (1978) (quoting Walters
v. American Ins. Co, 185 Cal. App. 2d 776, 783, 8 Cal. Rptr. 665 (1960)).
68. See Dick, supra note 31, at 471 (demonstrating that the creation of a minimum drinking age and
penalties for drinking show the legislature’s interest in keeping minors away from alcohol).
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to minors are also designing to inflict injury, and are thus acting willfully under
69
section 533 of the Insurance Code.
Regardless of whether section 533 is applicable, the potential liability for an
70
adult would likely make them think twice before serving alcohol to minors.
Under California law, a joint-tortfeasor can be held severally liable for his
71
portion of the economic harm. This means that even if a minor was mostly to
blame for an injury to a third party, an adult who knowingly served the minor any
72
amount of alcohol earlier can be held fully liable for their contribution. If
section 533 applies, the adult providing alcohol would have to bear the cost of
both a legal defense and potential judgment with his or her own assets, likely
putting major investments such as a home at risk. This perceived risk of loss may
73
dissuade adults from serving alcohol to minors.
V. CONCLUSION
Under Chapter 154, California permits plaintiffs to bring civil suits for harm
caused by social hosts who, while in their residence, knowingly serve alcohol to
74
minors. The sponsors and supporters of this bill hope that Chapter 154 will save
young lives by holding parents and other adults responsible for the harm caused
75
by serving alcohol to minors. Civil liability will greatly enhance the penalties
76
adults face under existing ordinances. However, courts will play a role in
defining an adult’s duty, and whether the scope of “knowingly furnished” is
77
limited strictly to situations where adults actively provide alcohol. Courts will
also have to decide whether “knowingly” under Chapter 154 equates with
willfully, which would invalidate liability protections under an adult’s
69. See Fischer, supra note 65, at 99.
70. See generally What is a Social Host?, MOTHERS AGAINST DRUNK DRIVING, http://www.madd.org/
underage-drinking/social-host/ (last visited Sept. 10, 2010) (on file with the McGeorge Law Review) (discussing
the consequences of serving alcohol to minors).
71. CAL. CODE CIV. PROC. § 875 (West 2010).
72. Id.
73. See Legal Issues, SOCIALHOSTLIABILITY.ORG, http://www.socialhostliability.org/legalissues (last
visited Feb. 21, 2011) [hereinafter Legal Issues] (on file with the McGeorge Law Review) (providing an
example of a Massachusetts case where a minor caused an automobile accident resulting in a jury award in
excess of $8 million).
74. CAL. CIV. CODE § 1714(d) (enacted by Chapter 154).
75. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (Apr. 14, 2010) (“It is a measure
designed to save young lives by acting as a long needed disincentive to irresponsible adults who knowingly
provide underage teens with alcohol in their homes.”).
76. Compare BENICIA, CAL., MUN. CODE, § 9.02.010 (codifying criminal monetary criminal penalties),
with Legal Issues, supra note 73 (reporting a potential civil penalty over $8 million).
77. See MacGilvray v. Denino, 540 N.Y.S.2d. 449, 451, 149 A.D.2d 571, 572 (N.Y. App. Div. 1989)
(showing limitations on the “knowing” requirement).
507
2011 / Civil
78
homeowners’ insurance. The potential of losing all of one’s assets in a judgment
79
will hopefully cause adults to think twice before serving alcohol to minors.
78. See Fischer, supra note 65, at 112-13.
79. See ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF AB 2486, at 2 (June 29, 2010) (claiming that the
addition of civil liability will be a “long-needed disincentive to irresponsible adults”).
508
Chapter 20: The Shirt Heard ‘Round the World
Colin Sullivan
Code Section Affected
Civil Code § 3344.1 (amended).
AB 585 (Cook); 2010 STAT. Ch. 20.
I. INTRODUCTION
Dan Frazier runs a small Internet business selling political bumper stickers
1
and other paraphernalia. To protest the war in Iraq, he began selling large
bumper stickers listing the names of soldiers who had died with the words “Bush
2
Lied” superimposed over the names. After those bumper stickers sold out and
Frazier realized he could no longer fit all of the fallen soldiers’ names onto a
3
bumper sticker, he decided to transfer his design onto a shirt. On a black shirt,
Frazier printed the names in small white text on the front and back, with the
words “Bush Lied” superimposed in large red letters over the front and “They
4
Died” over the back.
After the initial run of 100 shirts did not sell well, Frazier considered
5
donating the shirts to Goodwill. However, in early 2006, Louisiana and
6
Oklahoma introduced laws to stop the sale of the shirts. Ironically, the laws
intended to prevent the shirts from being sold actually resulted in increased
7
sales. Because of the media attention the laws attracted, sales picked up and
8
Frazier sold over 4,000 shirts by 2008.
1. See CarryaBigSticker, http://www.carryabigsticker.com/ (last visited Mar. 16, 2010) (on file with the
McGeorge Law Review) (showing the online storefront for Dan Frazier’s business).
2. Dan Frazier, Speech to the ACLU Board of Directors, Arizona Chapter (Sept. 20, 2008), available at
http://www.carryabigsticker.com/bush_lied_shirt.htm#speech (on file with the McGeorge Law Review) (“The
shirt actually was an outgrowth of a large bumper sticker that had listed 500 fallen troops. The sticker had just
said ‘Bush Lied.’”).
3. Id. (“But by the time we ran out of those stickers, a thousand more American soldiers had died in Iraq.
I could not see how we were going to fit that many more names on a bumper sticker. Then I hit on the idea of
doing a T-shirt.”).
4. See CarryaBigSticker, Bush Lied They Died T-Shirt, http://www.carryabigsticker.com/bush_
lied_shirt.htm (last visited Apr. 10, 2010) (on file with the McGeorge Law Review) (portraying the front and
back of the shirt in question).
5. Frazier, supra note 2 (“Months went by and we kept marking down the price to try to get rid of them.
We had dropped the shirts from $18 to $10 and we still had a lot of shirts on the shelf. I thought I might have to
give some shirts to Goodwill.”).
6. LA. REV. STAT. ANN. § 14:102.21 (West 2006); OKLA STAT. tit. 21, § 839.1A (West 2006); see
CarryaBigSticker, Bush Lied They Died T-Shirt, supra note 4 (“In early 2006, at the urging of certain family
members who lost loved ones in Iraq, legislators in Oklahoma and Louisiana introduced legislation intended to
stop the sale of the shirts.”).
7. See The Streisand Effect, http://www.thestreisandeffect.com/about/ (last visited July 31, 2010) (on
file with the McGeorge Law Review) (explaining that an attempt to censor information which actually leads to
the information becoming more widespread is known as the “Streisand Effect”).
8. Frazier, supra note 2 (“It turned out that the publicity about the various efforts to stop my shirt sales
509
2011 / Civil
II. LEGAL BACKGROUND
A. “When the fall is all there is, it matters.”
9
10
Many family members of fallen soldiers oppose the sale of Frazier’s shirts
11
because they feel the shirts dishonor those who died in service to their country.
As a result, several state legislatures have passed laws to stop the sale of the
12
shirts. Congress also considered passing a law to stop their sale at the national
13
level.
B. Intermediate or Strict Scrutiny?
In 2008, Dan Frazier challenged Arizona’s law banning the shirt sales in
14
federal court. In Frazier v. Boomsma, the Arizona District Court granted
15
summary judgment in his favor. The main issue the court addressed in Frazier
was which class of speech the shirts fell under—commercial speech or political
16
speech.
17
Restrictions on commercial speech are subject to intermediate scrutiny. This
standard requires the method of restriction to directly advance a substantial
18
government interest no more extensively than necessary to serve that interest.
was good for business. . . . We have sold more than 4,000 shirts since then, and they keep selling.”).
9. THE LION IN WINTER (Avco Embassy Pictures 1968) (waiting for retribution at the hands of their
father Henry II, Prince Geoffrey chastises his brother Prince Richard for being chivalrous in the face of death
and Richard replies with this quote).
10. CarryaBigSticker, Bush Lied They Died T-Shirt, supra note 4; see also Frazier, supra note 2 (“In
early 2006, at the urging of certain family members who lost loved ones in Iraq, legislators in Oklahoma and
Louisiana introduced legislation intended to stop the sale of the shirts.”).
11. See CarryaBigSticker, Bush Lied They Died T-Shirt, supra note 4 (“Some have said that I should not
be degrading the sacrifices of the troops”).
12. Frazier, supra note 2 (“Five states have passed legislation aimed at outlawing the sale of these shirts
[Texas, Florida, Oklahoma, Louisiana, and Arizona].”); TEX. BUS & COM. CODE ANN. § 35.64 (Vernon 2007)
(since replaced by TEX. BUS & COM. CODE ANN. § 721.001 (Vernon 2009)); FLA. STAT. § 540.08 (West 2007);
OKLA STAT. tit. 21, § 839.1A (West 2006); LA. REV. STAT. ANN. § 14:102.21 (West 2006); ARIZ. REV. STAT.
ANN §§ 13-3726, 12-761 (West 2007).
13. Soldiers Targeted by Offensive Profiteering Act of 2006, H.R. 5755, 109th Cong. § 987 (2006)
(prohibiting the use of names or images of soldiers for certain commercial uses, but the bill died in the
Subcommittee on Military Personnel).
14. Frazier v. Boomsma, No. 07-CV-8040-PHX-NVW, 2008 WL 3982985, at *4 (D. Ariz. Aug. 20,
2008).
15. Id. (granting summary judgment to Frazier).
16. See id. at *3 (“Distinguishing commercial speech from political speech can be difficult, especially
when the speech at issue proposes a commercial transaction and contains discussion of important public
issues.”).
17. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 573 (1980)
(Blackmun, J., concurring) (applying “an intermediate level of scrutiny” to commercial speech).
18. See, e.g., id. at 566 (explaining the analysis used to determine if a restriction on commercial speech
is constitutional).
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McGeorge Law Review / Vol. 42
19
Restrictions on political speech, however, must withstand strict scrutiny. This
standard requires that the method of restriction be narrowly tailored to achieve a
20
compelling government interest.
In Frazier, the court determined the shirts constituted political speech and
held the Arizona law was unconstitutional as applied to the shirts because it
21
could not withstand strict scrutiny.
22
C. “Once more unto the breach . . .”
With Chapter 20, California now joins five other states that have passed laws
23
to prevent the sale of Frazier’s shirts. Although Chapter 20 is similar to the law
passed in Arizona, the Assembly Committee on Judiciary’s analysis of Chapter
24
20 predicts that it is distinguishable.
D. The Right of Publicity
Section 3344.1 of the Civil Code provides a cause of action for the use of a
25
deceased personality for commercial purposes. Prior law defined a deceased
personality as “any natural person whose name, voice, signature, photograph, or
26
likeness has commercial value at the time of his or her death.” This creates a
property right in the deceased personality’s name, voice, signature, photograph,
or likeness, and allows the deceased personality’s heirs, or whomever owns the
27
property right, to bring suit against infringers.
19. See Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007) (“Because [the
restricting statute] burdens political speech, it is subject to strict scrutiny.”).
20. Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 45 (1983) (“For the state to enforce
a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end.”).
21. See Frazier, 2008 WL 3982985, at *4 (holding that “[i]t is impossible to separate the political from
the commercial aspects of that display,” and as a result, the law cannot withstand the strict scrutiny used to
evaluate restrictions on political speech).
22. WILLIAM SHAKESPEARE, HENRY V Act III (1598).
23. See ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 1 (Apr. 14, 2009)
(“This bill is a response to Internet websites selling T-shirts and other political paraphernalia that list the names
of the Iraqi war dead as a means of expressing opposition to the war in Iraq and, presumably, to make a profit as
well.”).
24. See id. at 5 (“However, it should be pointed out that the California law is different from the Arizona
law in two important respects: first, it does not impose a criminal penalty; and second, it is an amendment to an
existing “right of publicity” statute that has withstood constitutional scrutiny.”).
25. See CAL. CIV. CODE § 3344.1(a)(1) (West 2010) (“Any person who uses a deceased personality’s
name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for
purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services”).
26. Id. § 3344.1(h).
27. Id.
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2011 / Civil
III. CHAPTER 20
Chapter 20 amends section 3344.1 of the Civil Code by expanding the
definition of a “deceased personality” to include a natural person who gains
commercial value “because of his or her death,” and not just a natural person
28
who had commercial value “at the time of his or her death.”
IV. ANALYSIS
29
A. “[F]ew would quarrel with the sentiment behind this bill . . .”
Groups who want to prevent the exploitation of United States troops after
30
death strongly support Chapter 20. While the sentiment of these groups is
understandable, Chapter 20 may not be constitutional as applied to the shirts, if
31
the shirts are classified as political, rather than commercial speech.
This debate boils down to a question of what courts consider to be
32
commercial speech. If future courts to consider this issue follow the reasoning
in Frazier v. Boomsma, Chapter 20 will likely be held unconstitutional as applied
33
to the shirts. While the Assembly Committee on Judiciary’s analysis of Chapter
20 indicates that Chapter 20 is almost certainly constitutional on its face, the
committedd nonetheless acknowledged that it could potentially raise issues under
34
the First Amendment, as applied.
28. CAL. CIV. CODE § 3344.1(h) (amended by Chapter 20).
29. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr.13, 2009).
30. See id. at 6.
The American Legion supports this bill because it will expand the definition of deceased
personality to include deceased soldiers. “With some anti-war groups creating T-shirts listing
our fallen soldier’s names of them,” the American Legion concludes, “we agree that these fallen
heroes and their families need protection from having their names or images used by others.”
The Vietnam Veterans of America, California State Council supports this bill for substantially
the same reasons.
Id.
31. See Frazier v. Boomsma, No. 07-CV-8040-PHX-NVW, 2008 WL 3982985, at *3 (D. Ariz. Aug. 20,
2008) (“Distinguishing commercial speech from political speech can be difficult, especially when the speech at
issue proposes a commercial transaction and contains discussion of important public issues.”).
32. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr.13, 2009) (“[I]t
is possible that the bill could be unconstitutional as applied, depending, in part, upon whether a court were to
find if the selling of the T-shirts with the soldiers’ names is better characterized as commercial or political
speech.”).
33. See Frazier, 2008 WL 3982985, at *4 (holding that the statute is unconstitutional as applied to
Frazier’s sale of shirts, which were considered political speech).
34. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr. 14, 2009)
(“Certainly the bill is not facially unconstitutional, given that it merely adds another category of deceased
persons to already existing law.”).
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McGeorge Law Review / Vol. 42
B. Commercial or Political Speech?
Supporters of Chapter 20 argue that putting a deceased soldier’s name on a
shirt sold for profit is commercial speech, which is entitled to less protection than
35
political speech under the First Amendment.
“Indeed, protecting the publicity rights of deceased soldiers may deserve
even more protection, since unlike the celebrities anticipated in the original
legislation, these soldiers did not choose to thrust themselves into the limelight
36
. . . .” Additionally, in Comedy III Productions v. Saderup, the California
Supreme Court held that an individual’s right of publicity may trump an
37
advertiser’s right to use a celebrity’s image, in certain circumstances.
Opponents of Chapter 20 argue that political speech can appear in a
38
commercial context. Selling shirts for profit does not automatically disqualify
39
them as political speech. The court in Frazier v. Boomsma used this reasoning
to find that the shirts were protected by strict scrutiny, and that the law
40
preventing their sale in Arizona was unconstitutional.
C. “They die An equal death—The idler and the man Of mighty deeds.”
41
One aspect of Chapter 20 to not receive much attention is its effect on non42
soldiers. Application of Chapter 20 is not limited to soldiers, and it is possible
43
for the heirs of deceased civilians to use Chapter 20 under its plain language.
35. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980)
(citing Ohralik v. Ohio Bar Ass’n, 436 U.S. 447, 456 (1978)) (“[O]ur decisions have recognized ‘the
“commonsense” distinction between speech proposing a commercial transaction, which occurs in an area
traditionally subject to government regulation, and other varieties of speech.’”).
36. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr. 14, 2009).
37. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 397-98, 21 P.3d 797, 807-08 (2001).
But see ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr. 14, 2009)
(“Because only a handful of states have enacted laws attempting to prohibit the sale of T-shirts . . . with the
names of dead soldiers on them . . . there is not a substantial body of case law to say with certainty how a court
would interpret the application of this proposed bill to its intended target.”).
38. See SENATE JUDICIARY COMMITTEE, COMMITTEE ANALYSIS OF AB 585, at 7 (June 23, 2009)
(repeating a statement by the California Newspaper Publishers Association: “Without judging a particular
factual situation, there is strong argument that the creation and distribution of T-shirts with the names of
deceased soldiers is political speech that is protected by the First Amendment and the California Constitution,
even if the shirts are sold for a profit”).
39. See Frazier v. Boomsma, No. 07-CV-8040-PHX-NVW, 2008 WL 3982985, at *4 (D. Ariz. Aug. 20,
2008) (“Frazier’s T-shirts are themselves core political speech fully protected by the First Amendment,
notwithstanding the fact that he offers them for sale.”).
40. See id. (holding that the statute is unconstitutional as applied to Frazier’s sale of shirts, which was
found to be political speech).
41. HOMER, THE ILIAD 234 (William Cullen Bryant trans., The Riverside Press 1916) (1870).
42. See SENATE JUDICIARY COMMITTEE, COMMITTEE ANALYSIS OF AB 585, at 6 (June 23, 2009)
(providing a few examples of non-soldiers who could make use of this law, but very little analysis on the issue).
43. See id. (“This bill is not limited to protection of names, voices, photographs, or likenesses of soldiers
who died in the service of the country, whether in Iraq or elsewhere.”).
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2011 / Civil
44
While the manner of death has propelled some civilians to fame, there are no
45
clear examples of commercial exploitation of the death of a civilian.
V. CONCLUSION
Chapter 20 may not be constitutional as applied to its intended target—
46
products like the “Bush Lied, They Died” shirts developed by Dan Frazier. The
constitutionality of Chapter 20 hinges on whether the courts find the shirts to
constitute commercial or political speech, as this crucial inquiry establishes the
47
appropriate level of scrutiny for a court to apply. It remains to be seen whether a
name, voice, signature, photograph, or likeness of a person who becomes famous
in death will be used in a way that constitutes commercial speech.
44. See id. (listing Lacey Peterson and Ron Goldman as two famous murder victims that would be
protected by Chapter 20).
45. But see Darwin Awards, http://www.darwinawards.com (last visited July 24, 2010) (on file with the
McGeorge Law Review) (selling merchandise related to real life stories of humiliating deaths, this website is a
likely target but not a clear example).
46. See Frazier v. Boomsma, No. 07-CV-8040-PHX-NVW, 2008 WL 3982985, at *4 (D. Ariz. Aug. 20,
2008) (holding that a similar statute in Arizona is unconstitutional as applied to Frazier’s sale of shirts); see also
supra note 23 and accompanying text.
47. See ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 585, at 4 (Apr. 14, 2009)
(“However, while the bill may not be facially unconstitutional, it is possible that the bill could be
unconstitutional as applied, depending, in part, upon whether a court were to find if the selling of the T-shirts
with the soldiers’ names is better characterized as commercial or political speech.”).
514