This is an appeal from a take-nothing summary judgment granted the defendants in a social host liability case. Appellants’ seventeen-year-old daughter was killed in a single-car accident after leaving appellees’ party in an intoxicated condition. While we hold that the appellants were denied an opportunity to amend their pleadings, we also find that their pleadings stated a cause of action for negligence and negligence per se. We reverse and remand.

   Todd Friesenhahn, son of Nancy and Frederick Friesenhahn, held an ‘‘open invitation’’ party at his parents’ home that encouraged guests to ‘‘bring your own bottle.’’ Sabrina Ryan attended the party, became intoxicated, and was involved in a fatal accident after she left the event. According to the Ryans’ petition, Nancy and Frederick Friesenhahn were aware of this activity and of Sabrina’s condition.

   Sandra and Stephen Ryan, acting in their individual and representative capacities, sued the Friesenhahns for wrongful death, negligence, and gross negligence. * * *

   a. The Petition The Ryans pled, in their third amended petition, that Todd Friesenhahn planned a ‘‘beer bust’’ that was advertised by posting general invitations in the community for a party to be held on the ‘‘Friesenhahn Property.’’ The invitation was open and general and invited persons to ‘‘B.Y.O.B.’’ (bring your own bottle). According to the petition, the Friesenhahns had actual or constructive notice of the party and the conduct of the minors in ‘‘possessing, exchanging, and consuming alcoholic beverages.’’

   The Ryans alleged that the Friesenhahns were negligent in (1) allowing the party to be held on the Friesenhahn property; (2) directly or indirectly inviting Sabrina to the party; (3) allowing the party to continue on their property ‘‘after they knew that minors were in fact possessing, exchanging, and consuming alcohol’’; (4) failing ‘‘to provide for the proper conduct at the party’’; (5) allowing Sabrina to become intoxicated and failing to ‘‘secure proper attention and treatment’’; (6) and allowing Sabrina to leave the Friesenhahn property while driving a motor vehicle in an intoxicated state. * * *

   b. Negligence Per Se Accepting the petition’s allegations as true, the Friesenhahns were aware that minors possessed and consumed alcohol on their property and specifically allowed Sabrina to become intoxicated. The Texas Alcoholic Beverage Code provides that one commits an offense if, with criminal negligence, he ‘‘makes available an alcoholic beverage to a minor.’’ [Citation.] The exception for serving alcohol to a minor applies only to the minor’s adult parent. [Citation.]

   c. Common Law Negligence The elements of negligence include (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately caused by the breach. [Citation.] To determine whether a common law duty exists, we must consider several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the defendant. [Citation.] We may also consider whether one party has superior knowledge of the risk, and whether one party has the right to control the actor whose conduct precipitated the harm. [Citation.]

   As the Supreme Court in [citation] explained, there are two practical reasons for not imposing a third-party duty on social hosts who provide alcohol to adult guests: first, the host cannot reasonably know the extent of his guests’ alcohol consumption level; second, the host cannot reasonably be expected to control his guests’ conduct. [Citation.] The Tyler court in [citation] relied on these principles in holding that a minor ‘‘had no common law duty to avoid making alcohol available to an intoxicated guest [another minor] who he knew would be driving.’’ [Citation.]

   We disagree with the Tyler court because the rationale expressed [by the Supreme Court] in [citation] does not apply to the relationship between minors, or adults and minors. The adult social host need not estimate the extent of a minor’s alcohol consumption because serving minors any amount of alcohol is a criminal offense. [Citation.] Furthermore, the social host may control the minor, with whom there is a special relationship, analogous to that of parentchild. [Citation.]

   As this case demonstrates, serving minors alcohol creates a risk of injury or death. Under the pled facts, a jury could find that the Friesenhahns, as the adult social hosts, allowed open invitations to a beer bust at their house and they could foresee, or reasonably should have foreseen, that the only means of arriving at their property would be by privately operated vehicles; once there, the most likely means of departure would be by the same means. That adults have superior knowledge of the risk of drinking should be apparent from the legislature’s decision to allow persons to become adults on their eighteenth birthday for all purposes but the consumption of alcohol. [Citations.]

   While one adult has no general duty to control the behavior of another adult, one would hope that adults would exercise special diligence in supervising minors—even during a simple swimming pool party involving potentially dangerous but legal activities. We may have no special duty to watch one adult to be sure he can swim, but it would be ill-advised to turn loose young children without insuring they can swim. When the ‘‘party’’ is for the purpose of engaging in dangerous and illicit activity, the consumption of alcohol by minors, adults certainly have a greater duty of care. [Citation.]

    * * * Accordingly, we find that the Ryans’ petition stated a common-law cause of action.

* * *

    We reverse and remand the trial court’s summary judgment.

Brief of Ryan v. Friesenhahn

I. Facts
Todd Friesenhahn, son of Nancy and Frederick Friesenhahn, held an open invitation party at his parents’ home that encouraged guests to bring their own bottle. Sabrina Ryan attended the party, became intoxicated, and was involved in a fatal accident after she left the party. Sandra and Stephen Ryan, Sabrina’s parents, sued the Friesenhahns for negligence, alleging that the Friesenhahns were aware of underage drinking at the party and of Sabrina’s condition when she left the party. The trial court granted summary judgment for the Friesenhahns.

II. Issue
Is a social host who serves alcoholic beverages to a minor liable in negligence for harm suffered by the minor as a result of the minor’s intoxication?

III. Decision
In favor of the Ryans. Summary judgment reversed and case remanded to the trial court.

IV. Reasons
Accepting the Ryans’ allegations as true, the Friesenhahns were aware that minors possessed and consumed alcohol on their property and specifically allowed Sabrina to become intoxicated. The Texas Alcoholic Beverage Code provides that a person commits an offense if, with criminal negligence, he ‘‘makes available an alcoholic beverage to a minor.’’ A violation of a statute constitutes negligence per se if the injured party is a member of the class protected by the statute. Since the Alcoholic Beverage Code was designed to protect the general public and minors in particular, Sabrina is a member of the class protected by the Code. Therefore, we find that the Ryans stated a cause of action against the Friesenhahns for the violation of the Alcoholic Beverage Code.

   In considering common-law negligence as a basis for social host liability, the Texas Supreme Court has held that there are two practical reasons for not imposing a thirdparty duty on social hosts who provide alcohol to adult guests: first, the host cannot reasonably know the extent of his guests’ alcohol consumption level; second, the host cannot reasonably be expected to control his guests’ conduct. However, this rationale does not apply where the guest is a minor. The adult social host need not estimate the extent of a minor’s alcohol consumption because serving minors any amount of alcohol is a criminal offense. Furthermore, the social host may control the minor, with whom there is a special relationship, analogous to that of parent-child.