Host Liability

The host of a party at which alcohol or drugs are consumed by minors may be held civilly liable if the minors cause injury to others. Liability can be based on the common law concept of negligence or on statutory provisions. The host may also be held criminally liable.

I. Civil Liability

Common Law Negligence

Under the Common Law, three elements must be present to create liability; a duty, a breach of duty, and injury resulting from the breach. Traditionally there was no liability for the acts of an intoxicated guest either because no duty existed or because the serving of alcohol was not the proximate cause of the injury.

The New York State Legislature enacted General Obligations Law section 11-100 to impose liability in cases involving minors. (See Statutory Liability next column)

Statutory Liability under General Obligations Law section 11-100

"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, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one."

New York Penal Law

No.260.20 Unlawfully dealing with a child

A person is guilty of unlawfully dealing with a child when:

4. He gives or sells or causes to be given or sold any alcoholic beverages, as defined by section 3 of the alcohol beverage control law, to a person less than twenty-one years old...; except that this subdivision does not apply to the parent or guardian of such a person..."

Unlawfully dealing with a child is a class B misdemeanor. Class B misdemeanors carry a possible penalty of up to 90 days in prison and/or a fine of up to $500.

Alcoholic Beverage Control Law

1. Alcoholic Beverage Control Law 65-b(1)(c)

A court may impose a One Hundred ($100.00) dollar fine and/or community service and/or require the completion of an alcohol awareness program any person who attempts to obtain alcohol with fraudulent proof of age.

2. Alcoholic Beverage Control Law 65-b(3)

A court may suspend a person's drivers license for ninety (90) days if the license is altered to attempt to purchase alcohol.

3. Alcoholic Beverage Control Law 65-c

A person under the age of twenty-one who possesses an alcoholic beverage with the intent to consume such beverage will be subject to a $50 fine. In addition, the alcohol may be confiscated by a police officer or a peace officer. The law only allows for an appearance ticket to be issued. There is no authority to arrest the offender.

PARENT'S LIABILITY
Definition of "Minor" under New York Law

The definition of a "minor" varies depending on the circumstance of a particular case.

The General Obligations Law defines a "minor" or "infant" to be "a person who has not attained the age of eighteen years." A "child" is defined under the Social Services Law as "a person actually or apparently under the age of eighteen." The Alcoholic Beverage Control Law defines a minor as "any person actually or apparently, under the age of twenty-one years."

Social Services Law

The Social Services Law provides for the loss of custody by parents who neglect or abuse their children. The neglect provisions establish the minimum standard of care required of a parent or legal guardian in providing children with food, clothing, shelter, educational guidance and protection from physical harm. The Social Services Law defines a neglected child as one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.

Such failure can be based on the parents misusing a drug or drugs or alcoholic beverages.

Negligent Entrustment

"A parent may be held liable to others for negligently entrusting a child with a dangerous instrument (ALESSI v. ALESSI).

Case law generally holds that any instrument can become dangerous depending on the facts of a particular case. Therefore, it can be argued that a parent who knows, or has reason to know, that a child is drinking or under the influence of a drug can be liable for allowing or permitting that child to operate the parents automobile. (Note: this theory of liability does not require a parent/child relationship.)

General Obligations Law 3-112

Where a minor over ten and under eighteen commits burglary or causes damage through "willful, malicious or unlawful" acts, a parent or legal guardian can generally be held liable for restitution of up to Two Thousand Five Hundred ($2,500) dollars (see General Obligations Law section 3-112). This liability does not attach to the negligent acts of minors. The liability limit is increased to $5,000.00 in the case of destruction or change to religious articles or structures

General Obligations Law 11-105

Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:

a. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed $1,500.00; plus

b. a penalty not to exceed the greater of five times the retail price of the merchandise or $75.00; provided, however, that in no event shall such penalty exceed $500.00.