July 2011 • Volume 99 • Number 7 • Page 330
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Hutsell: Parents not liable for death of underage DUI driver
The high court held that parents who hosted a party did not voluntarily undertake the duty to prevent underage drinking.
Though every case litigated has a nominal winner and loser, sometimes the underlying facts show that everyone loses. Witness the sad case of Bell v Hutsell, No 110724, 2011 WL 1886891 (Ill Sup Ct).
The facts of Hutsell
On homecoming weekend for Deerfield High School in October 2006, Daniel Bell, an 18-year-old Deerfield High student, crashed the car he was driving into a tree after leaving a party organized and hosted by his friend, Jonathan Hutsell, also an 18-year-old DHS student, at the home of Hutsell's parents, Jeffrey and Sara Hutsell. Bell had been drinking at the party, at which Jeffrey and Sara Hutsell were present, and, according to press reports, had a blood alcohol level that exceeded .08. He and an 18-year-old friend and classmate died in the accident.
After the crash, both Hutsell parents were convicted of misdemeanors on charges arising out of the party at their house at which minors consumed alcohol. Additionally, Bell's mother, Janet Bell, filed suit against them in the circuit court of Lake County seeking damages as a result of her son's death.
Among other matters, Bell alleged that the Hutsells told their son that they would not tolerate alcohol consumption at his party and that they would "monitor" the party to make sure that guests who were minors did not drink. She also alleged that notwithstanding their admonitions to their son, the Hutsells were aware that there was alcohol at the party and that underage guests, including her son, drank, even excessively, with their knowledge and even in their presence, without their objecting.
Before the supreme court was Hutsell's appeal of the appellate court's reversal of three counts of Bell's second amended complaint. In those counts, which Bell based on a theory of voluntary undertaking, she alleged that the Hutsells voluntarily undertook the duty to prohibit underage drinking and possession of alcoholic beverages at their home and, to that end, to inspect, monitor, and supervise those under the age of 21 who attended the party.
On moving to dismiss, and before the appellate and supreme courts, the Hutsells argued with respect to those counts that they owed Daniel no duty because Illinois does not recognize social host liability. They also argued that Bell's voluntary undertaking theory was simply a way of trying to circumvent that rule.
The supreme court began by referring to the Restatement (Second) of Torts to define and explain the voluntary undertaking concept. Section 323 of the Restatement, the court said, provides that one who, either gratituitously or for consideration, undertakes to render services to another which he should recognize as necessary for the other's protection is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if 1) his failure to exercise such care increases the risk of harm or 2) the harm results because of the other's reliance upon the undertaking.
Section 324A provides for liability to a third person. Courts will impose the duty of care only to the extent of the defendants' voluntary undertaking, the court said, and will construe the theory narrowly.
Examining the complaint's factual allegations, the court said that merely undertaking to "monitor and supervise" the party "to ensure that none of the party guests who were under the age of 21 would consume alcoholic beverages" and communicating that intent to their son but no one else did not suffice to establish an undertaking. "Monitoring alone obviously did nothing to ensure" the safety of others, the court said, and was neither the duty nor, under the facts alleged, even a substantial step in the undertaking.
For it to find an undertaking, the court said that some affirmative action in an attempt to prohibit the possession and consumption of alcohol by minors was necessary. But the plaintiff, the court said, had alleged no such affirmative action. Rather, it observed, the defendants did essentially nothing.
Therefore, the facts alleged supported neither an undertaking nor any inference of reliance on any undertaking nor any increased risk of harm to Daniel Bell or other partygoers, the court said.
The court rejected the defendants' argument that the plaintiff's attempt to state a cause of action based on a voluntary undertaking was foreclosed by the rule against social host liability. However, it commented that under the facts alleged, it would be illogical and unsound policy to hold that they might be liable, for their inaction had no effect on the party's events and was, in essence, simply thinking out loud.
The case inspired the general assembly to amend section 6-16 of the Liquor Control Act, 235 ILCS 5/6-16, by enacting PA 95-0563, which makes it unlawful for parents or guardians to knowingly permit their home to be used for the consumption of alcohol by invitees under the age of 21. Violation of that provision is now a class 4 felony if it results in death or great bodily harm to any person.