Tyler REEDER, Petitioner, v. Andrew Paul DANIEL, Respondent, 61 S.W.3d 359

Justice ENOCH delivered the opinion of the Court, in which Justice HECHT, Justice OWEN, Justice BAKER, Justice JEFFERSON, and Justice RODRIGUEZ join. Seventeen-year-old Jeff Lawson struck and injured Andrew Daniel after drinking beer at a party that Tom and Pam Reeder’s teenage son Tyler hosted. We must decide whether Daniel may recover against Tyler, as a social host, for injuries Lawson caused. The court of appeals recognized a negligence per se civil cause of action where one violates the criminal statute that prohibits furnishing alcohol to minors.

But the Legislature has not expressly created a civil cause of action against social hosts for violating this statute. Twice previously, we deferred to the Legislature and declined to recognize social-host liability: (1) for serving intoxicated adult guests; and (2) for serving guests from ages eighteen to twenty. We now conclude that the Texas Alcoholic Beverage Code (“Code”), as well, precludes us from recognizing a social-host civil cause of action for making alcohol available to guests under age eighteen.

Accordingly, we reverse the court of appeals’ judgment against Tyler Reeder and render judgment that Daniel take nothing. I. FACTS On August 26, 1995, Tyler Reeder hosted a party at his parents’ home, when his parents were out of town. There is no evidence that Tyler purchased any alcohol himself. But Jeff Lawson testified that he and another underage friend bought several cases of beer and brought them to the Reeder home at seven o’clock that evening. Lawson further stated that Tyler helped them load the beer into a refrigerator and several coolers for the party that began shortly thereafter.

Around midnight, Daniel arrived uninvited at the Reeder home. Apparently, there had been an ongoing feud between Daniel’s friends and Lawson’s friends. Tyler told Daniel to leave, but Daniel ignored him. Lawson then struck Daniel in the face, causing serious injury. Lawson testified that he consumed at least twelve beers before striking Daniel. Daniel sued Lawson for battery. He also sued Tom and Pam Reeder for negligence per se, ordinary negligence, and gross negligence for allowing Lawson, who was seventeen, to consume alcohol at their home.

As well, Daniel sued Tyler for negligence per se, ordinary negligence, and gross negligence for hosting the party and “making alcohol available” to Lawson. While there is no evidence that Tyler paid for any alcohol, Daniel claimed that Tyler nonetheless “made alcohol available” by knowingly allowing Lawson to consume alcohol in his home and by helping to place alcohol where he knew Lawson could obtain it. Daniel eventually settled his claims against Lawson. Shortly thereafter, the Reeders moved for

summary judgment on two grounds. First, they contended that Texas does not recognize a civil cause of action for social-host liability. Second, they argued there was no evidence that any of them actually “made alcohol available” to Lawson. The trial court granted

summary judgment for the Reeders on Daniel’s claims against them, ruling that Texas does not recognize social-host civil liability. The court of appeals affirmed the

summary judgment for Tom and Pam Reeder, finding no evidence that they knew alcohol would be made available to' minors at their home. But the court of appeals reversed the

summary judgment for Tyler. The court observed that making alcohol available to minors violates

section 106.06 of the Code. The court concluded that Tyler’s violating this statute constituted negligence per se and that a fact issue existed about whether Tyler “made alcohol available” to Lawson within the statute’s meaning. Accordingly, the court remanded this issue for trial. The issue before us is whether Daniel may recover against Tyler as a social host. Because we are not permitted to recognize a cause of action against social hosts under Texas law, we reverse the judgment of the court of appeals. Further, because of our holding, we do not decide whether Tyler actually “made alcohol available” to Lawson.

II. DISCUSSION Negligence per se is a common-law doctrine that allows courts to rely on a penal statute to define a reasonably prudent person’s standard of care. Here, Daniel asserts that Tyler’s conduct was negligent per se because it violated Title 4,

Chapter 106,

section 106.06 of the Code, which makes it a criminal offense to make alcohol available to persons under twenty-one. But it is well established that criminal statutes do not always represent a standard for civil liability. Further, the fact that the Legislature enacts a criminal statute does not necessarily mean that this Court may recognize a civil cause of action predicated upon that statute. In determining whether a penal statute provides the basis for a civil cause of action, we must consider whether recognizing such an accompanying civil action would be inconsistent with legislative intent. In Smith v. Merritt, we held that, by enacting

Chapter 106,

section 106.06, prohibiting making alcohol available to minors, the Legislature did not intend to provide a negligence per se action against social hosts for serving alcohol to persons age eighteen to twenty. We stated that Title 1,

Chapter 2 of the Code, which is known as the Dram Shop Act, “provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.” We also observed that the Dram Shop Act only creates one civil cause of action — an action against commercial providers for serving obviously intoxicated persons — and does not create civil liability for serving alcohol to minors. Under these statutes, we held it “inconceivable that the Legislature would desire that the combination of

Chapter 106 and

Chapter 2 would result in negligence per se for social hosts but not for commercial providers” for serving alcohol to persons aged eighteen to twenty. Thus, we declined to recognize a per se civil action based on

Chapter 106,

section 106.06 for serving persons aged eighteen to twenty. At that time, we did not reach the question of whether a per se cause of action may exist for making alcohol available to persons under eighteen. Daniel now urges us to recognize such a cause of action. He asserts that the Dram Shop Act’s exclusivity provision applies only to persons aged eighteen and older. According to Daniel, this demonstrates a legislative intent to preserve other possible claims, including negligence per se claims, against those who make alcohol available to persons under eighteen.

Daniel further contends that the state’s public policy against underage drinking supports recognizing a negligence per se action against social hosts who make alcohol available to persons under eighteen. We disagree with Daniel’s position. As we stated in Smith, the Legislature divided the Alcoholic Beverage Code into separate criminal and civil liability sections. The criminal statute at issue here,

section 106.06, appears in Title 4, entitled “Regulatory and Penal Provisions,” under

Chapter 106, “Provisions Relating to Age.” By contrast, the Dram Shop Act, establishing civil liability for serving alcohol, appears in Title 1, “General Provisions,” under

Chapter 2, “Civil Liabilities for Serving Beverages.” Thus, the Legislature established a bifurcated criminal and civil liability scheme. Moreover, in enacting the Dram Shop Act, the Legislature specifically considered and rejected providing for a civil cause of action against social hosts. The bill’s earlier versions created civil causes of action against both commercial providers and social hosts. But the legislative conference committee eventually deleted social-host liability from the bill’s final version, imposing liability only on commercial providers.

As well, we note that courts in other jurisdictions have been reluctant to recognize a social-host cause of action when the state legislature has been active in regulating alcoholic beverages. During the 1980s, in response to growing concerns over drunk driving, several jurisdictions recognized civil causes of action against alcohol providers for violating a criminal statute by serving alcohol to minors. But more recently other courts have been hesitant to recognize civil liability for social hosts when there is no statute specifically authorizing such liability.

For example, the Washington Supreme Court declined to recognize per se liability for a social host who provided a minor alcohol, though this conduct violated a criminal statute.

The court observed that Washington law treated social hosts more leniently than commercial vendors, and it further reasoned that “[sjocial hosts are not as capable of handling the responsibilities of monitoring their guests’ alcohol consumption as are their commercial and quasi-commercial counterparts.” These and other concerns persuaded the court to determine that in the absence of statutorily-created civil liability, “the judiciary is ill equipped to impose social host liability.” The Illinois Supreme Court also declined to recognize social-host liability for serving alcohol to minors, out of deference to the legislature.

And in cases involving commercial providers who sold alcohol to minors, the Kansas and Nebraska Supreme Courts determined that the civil liability issue is a public policy question best left to the legislative branch. Further, the Nevada Supreme Court declined to recognize a civil cause of action based on a criminal statute that prohibited selling alcohol to intoxicated persons because: The statute before us is but one of many in the statutory scheme regulating the sale of tobacco and intoxicating liquor to minors and drunkards. The

section immediately preceding [the statute in question] does impose a limited civil liability upon the proprietor of a saloon who sells liquor to a minor. By providing for civil liability in one

section and faffing to do so in the

section immediately following, the legislature has made its intention clear. Accordingly, we must conclude that a violation of [the statute in question] does not impose civil liability upon one in charge of a saloon or bar, nor is such a violation negligence per se.

The Nevada Supreme Court reaffirmed this holding in 1994, noting that creating such an action would “flood our courts with a multitude of questions that are better addressed by the legislature.” Additionally, the Pennsylvania Supreme Court, which had previously recognized a negligence per se cause of action for adults who illegally serve minors, later observed that further decisions about “imposing civil liability on nonhcensed persons who furnish intoxicants without remuneration” are “best left to the General Assembly.” As a result, the Pennsylvania Supreme Court refused to recognize a civil cause of action for a minor who served another minor.

Similarly, the Texas Legislature’s enactments in this area caution us against recognizing a new common-law cause of action against social hosts for violating the Code’s prohibition against serving alcohol to minors. Not only do the Legislature’s actions demonstrate an intent to treat criminal liability separately from civil liability and an intent to treat commercial providers differently from social hosts, but the Legislature has been especially active in this area. The Code now includes over 200 chapters regulating the production, sale, furnishing, consumption, and storage of alcoholic beverages.

Notably, the last time we recognized a common-law cause of action against alcohol providers — in that case, against licensed commercial providers for selling alcohol to intoxicated patrons — the Legislature preempted our holding by enacting the Dram Shop Act. In sum, the Legislature has actively regulated alcoholic beverage consumption, separated the Texas Alcoholic Beverage Code into criminal and civil sections, and declined to include social hosts in the Dram Shop Act’s civil liability scheme.

Accordingly, we will not disturb the Legislature’s regulatory scheme by judicially recognizing a cause of action against social hosts who “make alcohol available” to guests under age eighteen. As an alternative to per se liability, Daniel invites us to recognize an ordinary negligence cause of action against social hosts for making alcohol available to minors. It is fundamental, however, that a legal duty must exist before a defendant is held liable for negligence. Historically, an alcohol provider owed no duty to third persons for injuries intoxicated persons caused.

In deciding whether to recognize a new duty, we give careful consideration to legislative actions reflecting the adoption of a particular public policy. Here, based on the same legislative actions that persuade us to reject a negligence per se civil cause of action, we likewise decline to recognize a new social-host duty not to make alcohol available to minors. III. CONCLUSION The Legislature’s comprehensive action in this area precludes us from recognizing a social-host civil cause of action for serving alcohol to persons under age eighteen.

We therefore do not decide whether there is evidence that Tyler made alcohol available to Lawson. Accordingly, we reverse the court of appeals’ judgment against Tyler Reeder and render judgment that Daniel take nothing. Chief Justice PHILLIPS filed a concurring opinion, in which Justice HANKINSON and Justice O’NEILL join. . Tex. Alco. Bev.Code § 106.06. . Graff v. Beard, 858 S.W.2d 918 (Tex.1993). . Smith v. Merritt, 940 S.W.2d 602, 608 (Tex.1997). . Tex. Alco. Bev.Code §§ 1-251. .16 S.W.3d491, 495. .Id. at 494. .Id. at 494-95. . Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979). . Tex.

Alco Bev.Code § 106.06. . Carter, 584 S.W.2d at 278. . Smith, 940 S.W.2d at 607. . Id. at 608. . Id. (quoting Tex. Alco. Bev.Code § 2.03). . Id. at 607. . Id. at 608. . Id. . See id. . Id. at 607-08. . Id. at 605. . Id. . Id. . See, e.g., Ely v. Murphy, 207 Conn. 88, 540 A.2d 54, 58 (1988); Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804, 812-13 (1985); Walker v. Key, 101 N.M. 631, 686 P.2d 973, 976-77 (N.M.Ct.App.1984); Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798, 800 (1988); Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 518 (1983); Koback v.

Crook, 123 Wis.2d 259, 366 N.W.2d 857, 865 (1985). . Reynolds v. Hicks, 134 Wash.2d 491, 951 P.2d 761, 765 (1998). . Id. at 764 (citation omitted). . Id. at 765 (internal quotes and citation omitted). . Charles v. Seigfried, 165 Ill.2d 482, 209 Ill.Dec. 226, 651 N.E.2d 154, 161 (1995). . See Mills v. Overland Park, 251 Kan. 434, 837 P.2d 370, 377 (1992); Pelzek v. American Legion, 236 Neb. 608, 463 N.W.2d 321, 324 (1990). . Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358, 360 (1969). . Snyder v. Viani, 110 Nev. 1339, 885 P.2d 610, 613 (1994). . Congini, 470 A.2d at 518. . Alumni Ass’n v.

Sullivan, 524 Pa. 356, 572 A.2d 1209, 1211 (1990). . Kapres v. Heller, 536 Pa. 551, 640 A.2d 888, 889 (1994). . See El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987). . Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.1995). . Smith, 940 S.W.2d at 605. . Id. at 604-05.