*Bell v. Hutsell–Don’t Be A Good Samaritan If You Find Underage Kids Drinking In Your Home
July, 2011
by Melinda S. Kollross and Edward M. Kay
Bell v. Hutsell, 2011 WL 1886891 (Ill. 2011) arises out of a most tragic set of circumstances. Underage drinking, combined with the use of a motor vehicle, led to the death of plaintiff's decedent, Daniel Bell. The parents of the boy who gave the party which Daniel Bell attended knew and witnessed this underage drinking but took no action to stop it or actively prevent anyone from using their motor vehicles to drive home. That inaction, according to our Illinois Supreme Court, insulated the defendant parents from any civil liability arising from Bell's death.
Facts
The defendants, Jeffrey and Sara Hutsell ("Hutsells"), did not provide alcohol for underage consumption and had informed their son who gave the party both that alcohol consumption would not be tolerated and that they would monitor the party to see that underage partygoers did not possess or imbibe alcoholic beverages. The Hutsells were aware, however, of underage consumption of alcoholic beverages on their premises at prior parties. Their son had previously plead guilty to underage consumption. The Hutsells further knew that alcohol was brought to the party in question and underage guests drank excessively with their knowledge. In fact, in some instances underage guests drank excessively in the Hutsells' presence and they spoke to a number of underage partygoers who had been drinking alcohol, requesting that if they had been drinking at the party not to drive a vehicle when leaving. Plaintiff's decedent, Daniel Bell, drank alcohol in full and open view of the Hutsells. Bell later walked to his car, began driving and crashed his car into a tree, resulting in his death.
Plaintiff's Action
Plaintiff, Janet Bell, the mother of Daniel Bell, sued the Hutsells based upon a theory of a voluntary undertaking, contending that defendants voluntarily undertook the duty to prohibit underage drinking and possession of alcoholic beverages on their premises and to inspect, monitor and supervise partygoers under the age of 21. Defendants moved to dismiss on the basis that defendants owed Daniel no duty because there is no social host liability in Illinois and the voluntary undertaking theory was simply a way of trying to circumvent the rule against social host liability.
The Supreme Court Decision
The Illinois rule against social host liability is clear: Charles v. Seigfried, 165 Ill. 2d 482 (1995), noted that "few rules of law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the [Dram Shop] Act." The Supreme Court rejected, however, the Hutsells' argument that plaintiff's attempt to state a cause of action based on a voluntary undertaking is foreclosed by the rule against social host liability. The Court found that it was "clear enough" from even a casual reading of its prior jurisprudence that plaintiffs could make out a voluntary undertaking claim and the success of such a claim was not contingent upon defendants' status as social hosts. But in reviewing the facts of this case, the Supreme Court held that to succeed on a voluntary undertaking claim, there must be specific facts alleged supporting an inference that defendants had commenced substantive performance of their intended undertaking.
There Is A Significant Distinction Between "Malfeasance And Nonfeasance"
In reviewing the facts of this case, the Supreme Court held that the Hutsells could not be liable because of their inaction. The Hutsells' intent to monitor alone was not sufficient. The Court stated:
Given the facts alleged by plaintiff [monitoring] was not even a substantial step in the undertaking. Plaintiff alleges that defendants were aware of underage drinking, and took no action. Given these facts, for there to be a substantial step in pursuit of the alleged undertaking, there must have been some affirmative action taken in an attempt to prohibit possession and consumption of alcohol, the ultimate objective of the undertaking. No affirmative action is alleged here. Defendants did not attempt to confiscate alcoholic beverages in the possession of underage partygoers; they did not ask offenders to leave; they did not call a halt to the party – they did nothing.
The Court went on to say that it would be illogical and unsound policy to hold that the Hutsells could be liable for doing nothing:
Illogical, because defendants' failure to act on their stated intention did not in any way affect the events as they would have unfolded had the intent to act not been verbalized; unsound policy because the imposition of a duty and liability in this situation would only serve as a deterrent to those who would consider volunteering assistance to others, in effect punishing people for thinking out loud. At most, the allegations of plaintiff's complaint suggest that defendants failed to follow through on an expressed intent to act that might have protected Daniel.
The Court concluded its analysis by stating that there is a "continuing significance of a distinction" between "malfeasance and nonfeasance." In certain cases involving highly intoxicated individuals, a defendant's affirmative conduct can amount to an assertion of control over an inebriated and significantly impaired person, increasing the risk of harm to that person or creating a risk of harm to others. In those situations involving malfeasance, there will be liability. But where, as here, the Hutsells simply failed to act and were guilty of, at most, nonfeasance, there will be no liability.
Learning Points
The theory of liability involving a voluntary undertaking remains alive in Illinois. However, as the Supreme Court's decision in Bell v. Hutsell shows, defendant must have taken some affirmative acts – just expressing an intent to do something is not sufficient. Moreover, the Court made clear that even where a person aids another, that does not necessarily require him to continue his services. He can abandon his aid and not be held liable – the exception being where by giving aid, he has put the other person in a worse position than before the person attempted to aid him. With respect to parents discovering underage drinking in their home, the best thing those parents may want to consider doing is absolutely nothing, otherwise they may face civil liability – unlike the Hutsells in the case before the Supreme Court.
Back to CM Report of Recent Decisions (2011v2) 2011 Volume 2 Table of Contents
