On Feb. 21, 2012, the Supreme Judicial Court issued its decision
in Juliano v. Simpson, a so-called "social host liability"
case involving an illegal underage drinking party that produced a
catastrophically brain-injured 16-year-old girl.1
That the drinking party was illegal was not open to dispute. The
lawyer for Simpson admitted at oral argument that his client could
have been charged with committing a crime for hosting a party at
her premises with full knowledge (and indeed frank approval) that
underage guests under her dominion and control were consuming
In his responses to the Court, Simpson's lawyer likewise admitted
that, if convicted, his client could have been imprisoned for up to
a year in jail and fined up to $2,000. So, in Juliano, the
SJC had the opportunity to correct a patently ridiculous anomaly in
the law, viz.; a person in control of a premise has a duty of care
under the criminal law to prevent underage drinking parties on her
watch, but she has no corresponding duty of care under the common
law to prevent injuries and deaths that so predictably flow from
In maintaining that irreconcilable disparity between a
Massachusetts citizen's criminal law and common law responsibility
for facilitating underage drinking, the SJC opted to take a myopic
view of an endemic problem, rendered a great disservice to the
people and made us less safe.
A baseball metaphor may be inexact but it makes the point. The
SJC's decision in Juliano is the judicial equivalent of
Bill Buckner's fielding of Mookie Wilson's grounder in the sixth
game of the 1986 World Series against the Mets. The SJC could have
been a champion of safe homes and healthy lifestyles for underage
persons. They just had to make the play.
Because the Court dropped the ball, we can predict with near
certainty that illegal underage drinking parties at private homes
will begin anew as prom season gets underway and graduations
follow. The illegal parties will be hosted by muddled thinking
parents who hope to be popular with their children and their
children's friends. Or they will be hosted by underage adults or
minors in charge of their family homes while their parents are
away. Underage adults and minors will travel to the illegal
drinking parties in motor vehicles. Alcohol will be brought into
the premises openly; it will be shared communally in drinking games
and otherwise; and the underage partygoers will consume alcohol
rapidly in huge quantities with the specific goal of getting
Now fully risk averse, they will engage in reckless behavior, not
the least of which will involve driving motor vehicles while drunk.
In all probability, by the time that Labor Day rolls around and the
new school year is at hand, the commonwealth will have experienced
yet again needless waste of human life, suffering from catastrophic
injury or death, and families on all sides of the incidents torn
There should be no safe harbor in the common law from the
duty of reasonable care that everyone owes to every person. That is
particularly true for someone committing a crime by providing a
venue for illegal drinking by underage persons.
The majority on the Court founded their decision on two
1. "The absence of 'clear existing social values and customs'
supporting such a step;"2 and
2. "The difficulties facing judges and juries charged with
ascertaining the limits of liability."
In one sentence of her concurring opinion, Associate Justice
Margaret G. Botsford makes short shrift of the first ground:
There clearly exists today a widespread social
consensus that (1) underage drinking, especially when combined with
driving, is a social problem of enormous significance; … and (2) we
as a society are committed to preventing or limiting its occurrence
in whatever ways we can.3
The assertion that judges and juries would find difficulty in
applying a common law duty of reasonable care is just flat out
preposterous. Justice Gants, in his concurring opinion, describes
this putative "'difficulty' [as] not so dire. … If civil liability
were to mirror criminal liability, courts would need to determine
when a person 'controlled' a premises, which courts routinely do in
other matters of common law." Juries daily decide vastly more
complex cases involving mechanical engineering, physics,
epidemiology, toxicology, neurosurgery and more.
In T. J. Hooper (an oft cited case in jury instructions),
Learned Hand posited that juries can reject standard practice among
all members of an industry as falling short of reasonable care.
Indeed, here in the commonwealth, juries have the power to decide
that a perfectly constructed product is so lacking in social
utility that it should not be made or sold. But forget the fact
that the practice of the Superior Court belies the majority's
handwringing concern for "ascertaining the limits of
District Court judges and juries are already deciding precisely
the same social host cases on the criminal side without problem. In
similar fashion, the Appeals Court had little difficulty in
affirming a jail sentence for an underage adult party host in
So "duty" is a function of two interconnected factors. First,
existing social values and customs warrant the imposition of a duty
of care. Show me a person who thinks it is just hunky dory for a
neighbor to run underage drinking parties and I will show you a
fool. Second, the harm flowing from the conduct must be reasonably
foreseeable. Even that aforesaid fool knows that very bad things
follow from underage drinking. The SJC has repeatedly recognized
the risk of harm to minors, underage adults and the general public
from illegal underage drinking.
In 1983 in Michnik, the SJC wrote about "the very special
susceptibilities and the intensification of the otherwise inherent
dangers when persons lacking in maturity and responsibility partake
of alcoholic beverages." In 2005 in Nunez, then Superior
Court Judge Gants authored a decision reporting that "anyone under
21 is "peculiarly susceptible to the effects of alcohol and less
able to make decisions about what amount of alcohol they may safely
consume in various situations" and "do not yet have the maturity
and judgment to drink alcohol responsibly."
The fundamental truth is that underage drinkers are not properly
compared to mature adults who, legally, consume alcohol in private
house parties. Mature adults do not funnel alcohol through an open
gullet; they do not play drinking games with a purpose of getting
drunk as quickly as possible. Mature adults, typically, do not
drive drunk. The same cannot be said for underage drinkers.
In 1969 in Carey, the SJC held that furnishing "hard
liquor, particularly to one already drunk … may well make the
individual unreasonably aggressive, and enhance a condition in
which it is foreseeable that almost any irrational act is
In amending the social host criminal statute in 2000, the
Legislature declared the act to be "an emergency law, necessary for
the immediate preservation of the public health, safety and
convenience." The precise consequence of that prohibited conduct, a
motor vehicle crash into a fixed object that resulted in tragic
waste and human carnage, was recognized by the people of the
commonwealth through their elected representatives as "a matter of
public health and safety" that required emergency action and was
just plain unacceptable.
The Legislature purposefully chose to focus on control of the
premises, as well as on control of the alcohol. Indeed, power over
the venue is power over the alcohol and the unacceptable conduct.
Outside the privacy of a house, apartment or similar venue, an
underage drinking party is less likely to go unnoticed and
therefore less likely to take place. Control of the premises gives
effective control of the underage guests. Exercising control over
the premises is easy, simple and required by Mass. G.L. c. 138, §
34. Underage persons are neither physically provided with alcohol,
nor allowed access to the premises if they have alcohol, and
removed from the premises on knowledge of alcohol possession.
The Rhode Island Supreme Court got it right in Martin v.
Marciano, a 2005 decision where an underage drinking party
resulted in serious brain damage to a guest who was struck in the
head with a baseball bat after a fight broke out.
… We reject the notion that imposing a duty on
defendant and other similarly irresponsible parents and hosts to
protect their guests from harm causally related to the consumption
of alcohol by underage drinkers creates an unreasonable burden. To
avoid assuming a duty of protection, the adult property owner must
simply comply with existing law and refuse to provide alcohol or
condone underage drinking on his or her property. Therefore, the
consequences of imposing such a duty in cases such as this are not
'economically and socially staggering;' in fact, they are
Sadly, the SJC got it wrong in Juliano.
1A declaration of personal bias is in order. I have
devoted many years and thousands of hours of pro bono work to help
educate my fellow citizens about the perils of facilitating
underage drinking parties. Further, my firm and I took on the job
of representing Rachel Juliano and her parents after the Superior
Court entered summary judgment, pursued direct appellate review,
and argued the appeal before the SJC. All of our work was done
without any expectation of compensation as Ms. Simpson's insurer
had denied coverage under an automobile exclusion.
2The majority stake out that ground while also serving
as the apostles of the obvious: "The plaintiffs make a compelling
argument that underage drinking and driving is a persistent and
widespread societal problem. The Legislature's decision to deter
and punish those who facilitate such conduct by the imposition of
jail sentences and financial penalties, along with the stigma of a
permanent criminal record, lends support to that argument."
3Justice Gants (joined by Chief Justice Ireland) makes
the same observation: "As best I can tell, there exists a 'clear
existing social value [ ]' that parents not allow the underage
guests of their children to drink alcoholic beverages at their
4Billy White, Brendan Knerman's guest, drove off from
the party drunk and crashed into two high school students who were
walking aside the street. Trista Zink, age 16, was killed. Neil
Bornstein was seriously injured.