Busby v. Quail Creek Golf and Country Club

Busby v. Quail Creek Golf and Country Club
1994 OK 63
885 P.2d 1326
5 OBJ 1945
Case Number: 82074
Decided: 06/07/1994
Supreme Court of Oklahoma

 
PATRICIA M. BUSBY, PLAINTIFF,
v.
QUAIL CREEK GOLF AND COUNTRY CLUB, DEFENDANT.

Certified Question of Law From the United States District Court, Western District of Oklahoma; Robin J. Cauthron, Judge.

¶0 Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1991 § 1601 et seq., the United States District Court for the Western District of Oklahoma certified the following question:

May an 18-year-old person who consumed 3.2% beer on-premises state a cause of action against the vendor for her subsequent on-premises alcohol-related injuries, when both the vendor and purchaser presumably violated the provisions of state law prohibiting the sale or purchase of beer by or to persons under 21 years of age?

QUESTION ANSWERED.

A commercial vendor is prohibited by statute from selling beer to minors. If the minor is injured as the result of the vendor's negligence after consuming beer purchased from the vendor, the minor may have a cause of action against the vendor.

G. Neal Rogers, Oklahoma City, for plaintiff.

Reggie N. Whitten, Glynis C. Edgar, Tom L. King, Jeff R. Beeler, Oklahoma City, for defendant.

KAUGER, Justice.

[885 P.2d 1327]

¶1 The issue presented by the question certified is whether a cause of action exists against a commercial vendor who negligently sells beer to a minor1 if the minor suffers alcohol-related injuries after drinking the beer. We find that a commercial vendor is prohibited by statute from selling beer to minors. If the minor is injured as the result of the vendor's negligence after consuming beer purchased from the vendor, the minor may have a cause of action against the vendor.

FACTS

¶2 On July 22, 1990,2 Patricia M. Busby (Busby/minor), an eighteen-year-old North Carolina resident, attended a party at the Quail [885 P.2d 1328] Creek Golf and Country (country club). The party was composed almost exclusively of people under the age of twenty-one. The sponsors of the party contracted with the country club to provide food and beverages, including wine and beer. The attendees were checked for identification upon entering the country club, and those who were twenty-one were marked with an "X" on the back of the hand. Busby neither presented identification nor received an "X" on the back of the hand when she arrived at the party. However, an unauthorized marker was passed around at some point in the evening; and Busby may have received a mark on the back of her hand.

¶3 The country club served beer and wine from opens, unrestricted tables throughout the evening in violation of 37 O.S.Supp. 1990 § 241 .3 Busby, after drinking beer from the tables, in violation of 37 O.S.Supp. 1990 § 246 ,4 stepped backwards and fell over a second floor balcony railing to the marble floor below.5 Upon arrival at the hospital, Busby had a .21 blood alcohol level.6

¶4 On June 16, 1992, Busby filed a complaint against the country club in the United States District Court of the Western District of Oklahoma. Busby alleged that she negligently was served beer which resulted in her injuries. She further alleged that the country club was negligent per se because it violated both local ordinances and state law which prohibit serving beer to a minor. The country club filed a motion for summary judgment requesting that the trial court find that it was entitled to judgment as a matter of law because: 1) Busby's voluntary intoxication prevented any civil liability; 2) any dangerous condition of the country club was open and obvious; and 3) not only did the balcony railing comply with all applicable building codes, there was no defect in the condition of the railing. Finding no Oklahoma precedent to resolve the questions of law, the trial court certified the question to this Court pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1991 § 1601 et seq.

A COMMERCIAL VENDOR IS PROHIBITED BY STATUTE FROM SELLING BEER TO MINORS. IF THE MINOR IS INJURED AS THE RESULT

¶5 Busby argues that an injured minor has a right to bring an action against a commercial vendor who wrongfully and negligently provides beer to a minor. The country club contends that when the consumer-inebriate is the injured person, the minor's voluntary intoxication relieves the country club from any liability.

¶6 Courts may recognize a cause of action where they conclude that a defendant owes a duty of care to the plaintiff. In such cases, the standard of conduct is that of a reasonably prudent person under the same or similar circumstances.7 If, however, there are criminal or regulatory statutes which delineate the defendants conduct, courts may adopt the conduct required by the statutes as that which would be expected of a reasonably prudent person - providing courts believe the statutorily required conduct is appropriate for establishing civil liability.8 When courts adopt the statutory standard for a cause of action for negligence, the violation of the statute is said to be negligence per se.9 The violation of a statute constitutes negligence per se if the other elements of negligence are present. To establish negligence per se on the basis of a statutory violation the party must establish that: 1) the injury was caused by the violation; 2) the injury was of a type intended to be prevented by the statute; and 3) the injured party was of the class meant to be protected by the statute.10

¶7 In Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, 304 (Okla. 1986), we held that a vendor who sold intoxicating beverages to a minor for on-the-premises consumption was under a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person who later injured a third person.11 We also held that even if a breach of duty occurred, a plaintiff was required to show that the illegal sale of alcohol led to the impairment of the ability of the driver and that the impairment was a proximate cause of the injury.

¶8 Five years later, in Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508, 512 (Okla. 1991), this Court refused to extend Brigance to an adult consumer who was injured in a one-car accident after having been served alcohol at a bar. The adult brought suit against the bar alleging that the tavern served him alcoholic [885 P.2d 1330] beverages although he was noticeably intoxicated in violation of 37 O.S. 1991 § 537 .12 Following the reasoning of the majority of states, we refused to extend the duty of the tavern owner to the adult customer who voluntarily consumed intoxicants and injured himself. Left open by Todd, was the question of whether we would recognize a cause of action against the vendor had the consumer-inebriate been a minor, rather than an adult.

¶9 Last year, we revisited the issue of sale of beer to minors to address the question of whether the holding in Brigance extended to commercial vendors who sold beer to a minor for off-the-premises consumption. In Tomlinson v. Love's Country Stores, Inc. 854 P.2d 910 (Okla. 1993), a convenience store vendor, who apparently knew that the minors intended to drink while driving, sold beer to three minors. The vehicle crashed and one of the minors, a passenger, was killed. Citing cases which support the holding of Brigance, we found that vendors who illegally sell beer to minors could be found liable regardless of whether consumption was on-or off-the-premises of the vendor. Based on the reasoning in Brigance, we held in Tomlinson, that commercial vendors have a duty not to sell beer to persons under the age of twenty-one.13

¶10 Although we have held that the sale of beer to a minor which results in injury to a third person is actionable, we have not previously addressed the issue of whether this duty would extend to a minor who violates the law in purchasing or consuming beer, voluntarily consumes intoxicants, and injures himself/herself. Other jurisdictions have addressed the issue of whether a commercial vendor has a duty to a minor who violates the law in purchasing and consuming beer and is later injured. A few jurisdictions have not abrogated the common law rule of nonliability. They refuse to find a commercial vendor liable for selling alcohol or beer to a minor who is injured after drinking beer.14 However, the majority of states allow a cause of action against a commercial vendor on behalf of a minor who voluntarily drinks to the point of intoxication and is thereby injured.15 Most of these jurisdictions do not [885 P.2d 1331] distinguish between injured minor passengers and minors who purchase alcohol or who are served alcohol and later injure themselves.16

¶11 The states which have recognized the imposition of the duty to protect minors from the effects of alcohol have generally concluded, as a matter of public policy, that minors as a class are incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol. A statutory duty is imposed because legislatures, when enacting statutes prohibiting the sale of beer to minors and prohibiting minors from purchasing or passing beer seek to protect, in part, the minors from the effects of alcohol. The fact that minors violate statutes when purchasing or consuming beer does not preclude a cause of action - because as between the seller and the minor - it is the seller who is the responsible party in the action. The vendor can facilitate the protection of minors by attempting to determine the age of the consumer and by refusing to sell to minors. Here, we are not faced with a social host situation. The public regulates and licenses commercial vendors to sell and distribute alcohol for profit. The public has a right to demand that a commercial vendor act more prudently and with greater duty toward minors than is asked of a private person who hosts a party.

¶12 We agree with jurisdictions which allow a cause of action against a commercial vendor on behalf of a minor who voluntarily drinks to the point of intoxication and is thereby injured, regardless of whether the minor violated statutes in attempting to purchase or to consume beer. The Legislature, recognizing the foreseeable danger to both third parties and to minors who injure themselves, has taken specific steps to treat minors from consuming and possessing [885 P.2d 1332] alcohol.17 We believe that 37 O.S. 1991 § 241 ,18 which prohibits selling beer to a minor and 37 O.S. 1991 § 246 ,19 which prohibits minors from consuming and possessing beer, constitute legislative recognition of the foreseeable danger to both third parties and to minors who injure themselves. As a matter of public policy, minors as a class are incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.

¶13 In Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508, 512 (Okla. 1991), we addressed whether a violation of 37 O.S. 1991 § 537 20 amounted to negligence per se. We found that: 1) the purpose behind section 537(A)(2) was to protect innocent third parties who were injured by intoxicated persons; 2) the intoxicated adult was excluded from the class of persons meant to be protected by the statute; and 3) the violation of the section was not negligence per se. However, Todd involved an adult rather than a minor. In Todd, we found nothing in the statutes regulating the sale of alcohol, which indicated that the legislature intended to protect the intoxicated adult who, by his/her own actions injured himself/herself. Here, in finding a cause of action under the facts presented we recognize that the legislature has taken precautions to treat minors differently than adults and to prevent minors from obtaining alcohol.21

¶14 In Tomlinson v. Love's Country Stores, Inc., 854 P.2d 910, 917 (Okla. 1993) we recognized that the minor in Brigance was a passenger who had been drinking, yet under Todd he was an innocent third party. We noted that a jury could conclude that even if the minor in Tomlinson had also been drinking as a passenger, he was an innocent third party subject to negligence defenses. The holding in Tomlinson indicates that the harm to be prevented by 37 O.S. 1991 § 241 22 includes injuries from accidents caused by the minor's intoxication whether the injury was to himself/herself or third parties.

¶15 Analysis of the majority of cases which allow a cause of action against a commercial vendor who sells beer or alcohol to a minor when the minor is injured after drinking the beer, reveals that these cases recognize that statutes prohibiting the sale of beer to minors and prohibiting minors from purchasing or possessing beer seek to protect the minor as well as innocent third parties. Accordingly, we find that minors are within the class of persons that 37 O.S. 1991 § 241 is intended to protect and that injury to a minor as the result of drinking beer is exactly what was intended to be prevented by the statute. Violation of this statute constitutes negligence per se.

¶16 However, if the statutory standard of conduct were applied rigidly, a vendor selling alcohol or beer to a minor might be held to have breached the duty even though the minor produced false identification. While a vendor is not relieved of the duty because the minor violated the law in attempting to purchase beer, in Tomlinson v. Love's Country Stores, Inc., 854 P.2d 910, [885 P.2d 1333] 915 (Okla. 1993) we held that a prima facie showing of the breach of duty may be rebutted by demonstrating that the purchaser appeared to be of age and that the vendor used reasonable means of identification to ascertain the minor's age. Similarly, under the negligence per se doctrine, unless a statute is construed to impose an absolute duty, its violation may be excused when the defendant was unable after reasonable diligence to comply.23 A vendor may be able to show such a violation is excusable if it can establish that the purchaser appeared to be of age and that the vendor used reasonable means of identification to ascertain the minors age. Accordingly, we hold that where negligence exists as a matter of law if a commercial vendor violates 37 O.S. 1991 § 241 ,24 under proper facts a jury may find the violation excusable.25

¶17 The public policy of protecting minors from alcohol requires that the Brigance and Tomlinson teachings be recognized to extend vendor liability under the facts presented. In Brigance, we recognized that the development of the law of torts is peculiarly a function of the judiciary. Because duty and liability are matters of public policy, they are subject to the changing needs of society.26 Accordingly, we find that a commercial vendor is prohibited by statute from negligently selling beer to minors. This principle is consistent with legislative attempts to prevent intoxicated persons from driving.27

¶18 The statutory duty of refraining from selling or furnishing liquor to persons - who by reason of immaturity or previous overindulgence - may lack full capacity of self-control and may therefore injure themselves is imposed on a commercial vendor. If beer is negligently sold to a person under the age of twenty-one, the vendor has breached this duty. If the minor, after consuming the beer negligently sold by the vendor is injured as a result thereof, the minor has an actionable claim against the vendor. Nevertheless, where a defendant breaches a duty imposed by statute, the plaintiff is required to show that the violation of the statute was the direct cause of the injury.28

¶19 The question of causation in a negligent tort case is one of fact for the jury. It becomes one of law only when there is no evidence from which the jury could reasonably find a casual link between the negligent act and the injury or where the fact are undisputed.29 A jury could find that the injury from the breach of the duty is [885 P.2d 1334] reasonably foreseeable and the direct cause of the injury. A vendor is not relieved of the duty because the minor violated the law in attempting to purchase beer. However, a jury may also conclude that the minor was also at fault by attempting to purchase or by consuming beer in violation of the law.30

CONCLUSION

¶20 Under the facts presented and Oklahoma law, a commercial vendor is under a duty established by statute to refrain from negligently selling beer to minors.31 This duty is consistent with jurisdictions which recognize that minors are treated differently than adults. As a matter of public policy, minors as a class are incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol. The Legislature, when enacting statutes prohibiting the sale of beer to minors and prohibiting minors from purchasing or possessing beer seek to protect, in part, the minors from the effects of alcohol. The fact that the minor violated the law when purchasing or consuming beer does not prevent a cause of action because as between the seller and the minor, it is the seller who is the responsible party in the action. The vendor can facilitate the protection of minors by attempting to determine the age of the consumer and by refusing to sell to minors.

Question Answered,

¶21 LAVENDER, V.C.J., and SIMMS, OPALA, ALMA WILSON and WATT, JJ., concur.

¶22 HARGRAVE, J., concurs in result.

¶23 HODGES, C.J., and SUMMERS, J., concurs in part, dissents in part.

Footnotes:

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"A. It shall be unlawful for any person to sell, barter, or give to any person under twenty-one (21) years of age any nonintoxicating beverage, as defined in Section 163.2 of this title.
B. It shall be unlawful for any person who holds a license to sell and dispense nonintoxicating beverages for consumption on the premises . . . to permit any person under twenty-one (21) years of age to be admitted to or remain in a separate or enclosed bar area of the licensed premises . . .
C. Any person violating the provisions of subsection A or B of this section shall upon conviction be guilty of a misdemeanor."

Section 241 was amended effective Sept. 1, 1991. The new statute remains identical except that it is now a misdemeanor for license holders to permit underage persons to consume nonintoxicating beverages on the licensed premises. Title 37 O.S.Supp. 1990 § 163.2 provides in pertinent part:

"(a) `Nonintoxicating beverages' means and includes beverages containing more than one-half of one percent (3.2 of %) alcohol by volume, and not more than three and two-tenths percent (3.2%) alcohol by weight, including but not limited to beer . . .".

The 1991 version remains unchanged.

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"A. No person under twenty-one (21) years of age shall (1) consume or (2) possess with intent to consume nonintoxicating beverages, as defined in Section 163.2 of this title, in any public place. It shall be unlawful for any person under twenty-one (21) years of age to purchase or attempt to purchase nonintoxicating beverages, as defined in Section 163.2 of this title, except under supervision of law enforcement officers. Any person violating any of the provisions of this section shall be guilty, upon conviction, of a misdemeanor and punished by a fine not to exceed One Hundred Dollars ($100.00) or by appropriate community service not to exceed twenty (20) hours. . . ."

The 1991 version remains unchanged. Title 37 O.S.Supp. 1990 § 163.2 , see note 3, supra.

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"A. No person shall: 1. Knowingly sell, deliver, or furnish alcoholic beverages to any person under twenty-one (21) years of age: 2. Sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person or to any person who has been adjudged insane or mentally deficient. . . ."

Title 37 O.S.Supp. 1985 § 506 provides in pertinent part:

". . . 3. `Alcoholic beverage' means alcohol, spirits, beer, and wine as those terms are defined herein and also included every liquid or solid, patented or not, containing alcohol, spirits, wine or beer and not capable of being consumed as beverages by human beings, but does not include nonintoxicating beverages as that term is defined in Section 163.2 of this title.
4. `Beer' means any beverage containing more than three and two-tenths percent (3.2%) of alcohol by weight. . . ."

Title 37 O.S.Supp. 1985 §§ 537 and 506 were amended effective June 15, 1991, and July 1, 1990, respectively; however the pertinent parts remain the same as the 1991 version. Title 37 O.S.Supp. 1990 § 163.2 see note 3, supra. In Sanders v. Cross town Market, Inc., 850 P.2d 1061, 1063 (Okla. 1993), we recognized that while 37 O.S. 1991 § 537 prohibits the sale of alcoholic beverages to minors, the section did not apply to 3.2% beer because 3.2% beer is not defined as an alcoholic beverage. Instead, 37 O.S. 1991 § 241 , see note 3, supra, applies when 3.2% beer is involved.

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"(1) An excused violation of a legislative enactment or an administrative regulation is not negligence.
(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when . . .
(c) he [the actor] is unable after reasonable diligence or care to comply. . . ."

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