Clymer v. Webster

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-631


Adam Clymer, Administrator of the            Supreme Court
Estate of Jane E. Clymer, Adam
Clymer, Individually, and Ann F.             On Appeal from
Clymer                                       Chittenden Superior Court

     v.                                      February Term, 1990

Theron C. Webster, James N. Wesson,
Deborah S. Wesson, Wesson's Diner,
Inc., Alydia Garand, Beem, Inc.,
d/b/a The Rotisserie, and J. Duguay


David A. Jenkins, J.

William B. Gray and Peter H. Zamore of Sheehey Brue Gray & Furlong,
   Burlington, for plaintiffs-appellants

Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland,
   for defendants-appellees James Wesson and Alydia Garand

Frank E. Talbott and Bret P. Powell and Chris O'Brien and M. Cecilia Whelan,
   Law Clerks (On the Brief), of Wilson, Powell, Lang & Faris, Burlington,
   for defendants-appellees Beem, Inc. and Joseph Duguay

Thomas J. Sherrer of Latham, Eastman, Schweyer & Tetzlaff, Burlington, for
   defendants-appellees Deborah Wesson and Wesson's Diner, Inc.



PRESENT:  Gibson, Dooley and Morse, JJ., and Barney, C.J. (Ret.) and
          Springer, D.J. (Ret.), Specially Assigned


     GIBSON, J.   This appeal concerns the remedies available to the parents
and the administrator of the estate of Jane Clymer, an adult decedent, in an
action against two commercial vendors that served alcohol to a patron who
thereafter drove his car and struck and killed the decedent.  Plaintiffs
Adam and Ann Clymer, parents of decedent, and Adam Clymer, as administrator
of the estate of the decedent, appeal from a superior court order dismissing
with prejudice their action against the owners and certain employees of two
commercial vendors that served alcohol to the man who drove the car that
struck and killed their daughter.  The dismissal of the suit was the culmin-
ation of a series of court orders construing the Dram Shop Act, the Wrongful
Death Act, and the Survival Statute.  We reverse and remand for further
proceedings.
                                    I.
     On September 14, 1985, after being served alcohol at The Rotisserie
Restaurant and at Wesson's Diner, Theron Webster drove his car and struck
Jane Clymer, an eighteen-year-old college student, while she was pushing her
her bicycle along the side of Route 116 in the town of Williston.  Ms.
Clymer suffered massive brain damage, but was kept alive until her parents
arrived the next morning, when she was pronounced brain dead and allowed to
expire.  Theron Webster was charged with and pled guilty to DWI-death
resulting.
     In a complaint filed in July of 1986, plaintiffs alleged negligence
against Theron Webster, and a Dram Shop Act violation against the commercial
vendors and certain of the vendors' employees, seeking compensatory damages
for medical and funeral expenses, emotional distress, loss of companionship,
loss of future earnings, and loss of means of support.  Plaintiffs also
sought punitive damages against James Wesson, owner of Wesson's Diner, and
Theron Webster; they later moved to amend their complaint to add a claim for
punitive damages against The Rotisserie and one of its bartenders.
Plaintiffs eventually settled with Theron Webster, and the court dismissed
him from the action over the objections of the other defendants.  After
several rulings that limited the damages recoverable by plaintiffs "to
medical and funeral expenses and lost services and guidance," the court
dismissed the action with prejudice and entered judgment for the defendants
on the ground that those damages did not exceed the $120,000 plaintiffs had
already recovered from the negligent driver.
     On appeal, plaintiffs argue that the trial court erred by denying their
claims for (1) damages for deprivation of love, affection and society (loss
of companionship) under the Dram Shop Act and the Wrongful Death Act; (2)
damages for loss of future earnings under the Survival Statute; and (3)
punitive damages under the Dram Shop Act and the Wrongful Death Act.
Plaintiffs also contend that the cumulative effect of the court's rulings
denied them an effective remedy for their injuries, as guaranteed by the
Vermont Constitution.  In their cross-appeal, defendants The Rotisserie and
its bartender (J. Duguay) argue that (1) the trial court erred in dismissing
Theron Webster; (2) the court should exclude expert evidence concerning what
signs of intoxication would be exhibited by a person having a certain blood-
alcohol level; (3) the Legislature has unconstitutionally delegated its
authority to the Liquor Control Board; and (4) the Liquor Control Board
regulation designating what constitutes an unlawful furnishing of alcohol is
unconstitutionally vague.
                                    II.
     We first consider the relationship between the Dram Shop Act (DSA) and
the Wrongful Death Act (WDA).  As we have noted elsewhere, the Legislature
enacted the DSA to create a statutory cause of action where none had
previously been available under the common law.  Winney v. Ransom &
Hastings, Inc., 149 Vt. 213, 215, 542 A.2d 269, 270 (1988); Smith v. Wilcox,
47 Vt. 537, 544 (1875).  As it existed in 1985, the DSA provided:
               A . . . person who is injured in person, property
          or means of support by an intoxicated person, or in
          consequence of the intoxication of any person, shall
          have a right of action . . . against a person or
          persons, who, by selling or furnishing intoxicating
          liquor unlawfully, have caused in whole or in part such
          intoxication.
7 V.S.A. { 501. (FN1) The DSA further provides that "[u]pon the death of either
party, the action and right of action shall survive to or against his
executor or administrator."  Id.  The WDA (14 V.S.A. {{ 1491-1492), which
predates the DSA, does not create a new cause of action, but rather a "'new
right of recovery'" or "'new element of damages'" engrafted upon the already
existing cause of action.  See Whitchurch v. Perry, 137 Vt. 464, 469, 408 A.2d 627, 630 (1979) (quoting Desautels' Adm'r v. Mercure's Estate, 104 Vt.
211, 214, 158 A. 682, 683 (1932)).  The WDA allows certain damages suffered
by the next of kin of a person whose death resulted from the wrongful act,
neglect or default of another and who would have been entitled to maintain
an action had the victim survived.
     Aside from out-of-pocket medical and funeral expenses, Jane Clymer's
parents have not themselves been injured "in person, property or means of
support" within the meaning of the DSA.  Jane Clymer, however, was injured
"in person" and would have been entitled to maintain an action under the DSA
had she survived. (FN2) Therefore, we conclude that the administrator of Jane
Clymer's estate has a cause of action pursuant to the DSA and that damages
should be determined under the WDA.
     Defendants point out that "Vermont's Dram Shop Act provides the
exclusive remedy for cases falling within its scope, and preempts a cause of
action in common law negligence."  Winney v. Ransom & Hastings, Inc., 149
Vt. at 216, 542 A.2d  at 270.  We recognize this limitation, but do not agree
with defendants that it precludes an award of damages under the WDA in all
cases brought pursuant to the DSA.  As we have noted, Vermont's WDA "does
not create a new cause of action but merely permits the recovery of
additional damages in the cause of action" already available.  Whitchurch,
137 Vt. at 469 n.3, 408 A.2d  at 631 n.3 (1979).
     We are mindful that the DSA is a strict liability statute, see Langle
v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986), while wrongful
death actions often involve negligent or intentional torts.  See W. Keeton,
Prosser and Keeton on the Law of Torts { 127, at 946 (5th ed. 1984).
Indeed, some courts have refused to allow the recovery of wrongful death
damages in dram shop actions.  See, e.g., Robertson v. White, 11 Ill. App.
2d 237, 177, 185-86, 136 N.E.2d 550, 555 (1956) (citing differences in
nature and purpose of dram shop act and wrongful death act, court refused to
allow wrongful death damages in dram shop case where child was killed); Beck
v. Groe, 245 Minn. 28, 35, 70 N.W.2d 886, 892 (1955) ("The wrongful death
act and the civil damage act are wholly unrelated both as to scope and
purpose.").  More recent cases, however, have routinely considered wrongful
death damages in actions brought under dram shop acts. (FN3) See, e.g.,
Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 400-06, 546 A.2d 284, 287-
92 (1988) (in action against dram shop, wrongful death damages not
available against tavern only because they were the same as those collected
against driver in prior wrongful death action), aff'd, 211 Conn. 67, 557 A.2d 540 (1989); Fraternal Order of Eagles v. Illinois Casualty Co., 364 N.W.2d 218, 219, 222 (Iowa 1985) (decedent had been "injured in person,"
thereby allowing administrator of his estate to recover damages under dram
shop act).
     Moreover, wrongful death actions are not necessarily based on negligent
acts.  Some courts have allowed wrongful death damages in strict liability
cases involving abnormally dangerous activities and defective products.  W.
Keeton, supra, { 127 at 946.  The Vermont WDA provides a remedy when death
is caused "by the wrongful act, neglect or default" of another; thus, it is
not limited to acts of negligence.  The acts that trigger dram shop
liability clearly fit within the broad scope of the term "wrongful act."
See Bernier v. Raymark Industries, 516 A.2d 534, 540 (Me. 1986) (under
wrongful death statute, manufacturer commits "wrongful act" when it places
defective or unreasonably dangerous product into stream of commerce;
"wrongful act" need not result from neglect or fault).
     In recent years, both the Iowa Supreme Court and the Rhode Island
Supreme Court have held that the wrongful death of an individual constitutes
"injury to person" under the DSA, allowing recovery thereunder.  See
Fraternal Order of Eagles, 364 N.W.2d  at 222; Beaupre v. Boulevard Billiard
Club, 510 A.2d 415, 416 (R.I. 1986).  We agree with their approach.  The DSA
allows a person to recover damages for personal injuries that result from a
vendor's improper conduct under the Act.  It would be anomalous, indeed, to
deny recovery to that person's personal representative solely because the
injury was severe enough to cause the person's death when a lesser injury
would have been compensable.
     To sum up, we hold that Jane Clymer was "injured in person" within the
meaning of the DSA.  Because she would have been entitled to maintain an
action under the DSA had she survived, her parents may recover damages
available to them under the WDA.  Further, because this Court has never
recognized a common-law action for wrongful death, see Thayer v. Herdt, ___
Vt. ___, ___, 586 A.2d 1122, 1125 (1990); State v. Oliver, 151 Vt. 626, 629,
563 A.2d 1002, 1004 (1989), we must look to the WDA to determine what
damages are available for an injury to the person when the decedent's
personal representative brings an action under the DSA.
                                   III.
     The WDA allows the decedent's personal representative to recover "such
damages as are just, with reference to the pecuniary injuries resulting from
such death," on behalf of decedent's spouse and next of kin.  14 V.S.A. {
1492(b). (FN4) A 1976 amendment to { 1492(b) added a provision that "where the
decedent is a minor child, the term pecuniary injuries shall also include
the loss of love and companionship of the child and for destruction of the
parent-child relationship in such amount as under all the circumstances of
the case, may be just."  Because the WDA was "designed to allay the harsh
common law rule denying liability due to the death of the victim," it is
remedial in nature and must be construed liberally. (FN5) Oliver, 151 Vt. at
629, 563 A.2d  at 1004.
                                    A.
     The question confronting us herein is whether the WDA permits a parent
to recover damages for the loss of companionship resulting from the death of
an adult child.  The 1976 amendment recognizes a right of recovery for loss-
of-companionship damages when the decedent is a minor child, but it makes no
mention of adult children.  Although we cannot be certain as to the reason
for the omission, the legislative history of the amendment suggests that
the Legislature was more concerned with clarifying the scope of damages
available to the relatives of minor decedents than limiting the damages
available upon the death of an adult decedent.  See H. 58 (1975 Vt., Bien.
Sess.) (sponsor's statement of purpose: "the purpose of this bill [is] to
provide guidelines for the compensation to parents for the death of a minor
child"); cf. Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 25, 573 A.2d 296, 302 (1990) (a proviso may be added to an existing statute to
exclude a possible misunderstanding of its extent).
     In any case, the amendment neither expressly nor implicitly precludes a
plaintiff who is seeking compensation for the death of an adult child from
showing that, under the circumstances of a particular case, he or she is
entitled to loss-of-companionship damages.  In accordance with our analysis
hereinafter, we do not believe the statute should be narrowly construed to
foreclose the recovery of loss-of-companionship damages for parents of
decedent adult children. (FN6) As previously noted, the WDA is to be liberally
construed.  The negative inference that defendants would have us adopt --
that loss-of-companionship damages are not available to a parent of a
deceased adult child -- does not rise to the level of "plain meaning" so as
to require us to hold otherwise, and we decline to do so.  Cf. McAllister v.
Avemco Ins. Co., 148 Vt. 110, 112, 528 A.2d 758, 759 (1987) (Court will
expand plain meaning of statute by implication only when necessary to make
statute effective).
       At first glance, our rules of statutory construction seem to work in
favor of defendants.  For instance, normally "we must presume that all
language is inserted in a statute advisedly," State v. Racine, 133 Vt. 111,
114, 329 A.2d 651, 654 (1974); thus, one might argue that permitting
pecuniary damages for the death of both a minor and an adult child, in
effect, interprets the amendment as if the word "minor" were not there.
Moreover, the use of the word "also" in the amendment evidences a
recognition that pecuniary injuries did not formerly include what is
bestowed by the amendment.  See The Roseville, 11 F. Supp. 151, 153 (W.D.
Wash. 1935) ("The use of the word 'also' shows an intent to give something
which had not already been given.").  Perhaps defendants' strongest argument
is summed up in the Latin phrase "expressio unis est exclusio alterius" --
the expression of one thing is the exclusion of another.  That maxim applies
"when in the natural association of ideas in the mind of the reader that
which is expressed is so set over by way of strong contrast to that which is
omitted that the contrast enforces the affirmative inference that that which
is omitted must be intended to have opposite and contrary treatment."  Ford
v. United States, 273 U.S. 593, 611 (1927), quoted in In re Downer's Estate,
101 Vt. 167, 177, 142 A. 78, 82 (1928) (where statute specifically exempted
towns from paying inheritance tax on legacies "for cemetery purposes," tax
should apply to legacies for other purposes).  Pursuant to this maxim, the
inclusion of the term "a minor child" in the amendment evidences an
intention to exclude an adult child.  See Grenafege v. Department of
Employment Security, 134 Vt. 288, 290, 357 A.2d 118, 120 (1976).
     On the other hand, such canons are routinely discarded when they do not
further a statute's remedial purposes.  See Herman & MacLean v. Huddleston,
459 U.S. 375, 387 n.23 (1983); see also Hardesty v. Andro Corp., 555 P.2d 1030, 1036 (Okla. 1976) (expressio unius maxim is "to be applied with great
caution, is not of universal application, and is not conclusive as to the
meaning of a statute"); cf. State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) ("Rules of construction are not laws, hard and inflexible,
which must be applied in a given situation simply because it is possible to
do so.").  As noted, the Legislature passed the 1976 amendment, not to limit
the damages available to the relatives of adult decedents, but rather to
further the remedial purposes of the WDA by developing the definition of
pecuniary injuries.
     By 1976, in Vermont, as elsewhere, the case law concerning the nature
and extent of pecuniary loss available under the WDA was in a state of
gradual intermittent development.  Although no Vermont case had held that
relational damages available for the death of a parent or spouse were also
available for the death of a child, a parent could recover any reasonable
"financial loss which the evidence shows will probably be caused by the
death."  It had already long been established that pecuniary loss was not
restricted to loss of services, see Lazelle v. Town of Newfane, 70 Vt. 440,
445, 41 A. 511, 512 (1878) (pecuniary injury includes lost "intellectual and
moral training and proper nurture by a child"), and that damages resulting
from a child's death need not be restricted to damages accruing during the
decedent's minority.  D'Angelo v. Rutland Ry., Light & Power Co., 100 Vt.
135, 137-39, 135 A. 598, 599 (1927).
     We believe that rather than intending to restrict the development of
case law recognizing that pecuniary loss is more than loss of services, the
1976 amendment intended to further that development by ensuring that such
damages would be available for the death of a minor child.  Because the type
of damages available to adult decedents is not essential to the principal
remedial purpose of the amendment, we shall not adopt the negative
implication of the amendment argued by defendants.  See Pearson v.
Robinson, 318 N.W.2d 188, 191 (Iowa 1982) (despite failure of plaintiff to
comply with statutory requirement imposed by the word "shall," court refused
to dismiss complaint because statutory duty was not essential to main
purpose of legislation).  The amendment does not expressly restrict the
damages available under the WDA, which must be construed with its remedial
purposes in mind.  The following statement by Justice Cardozo, though made
in a different factual setting, is equally relevant here:
               Death statutes have their roots in dissatisfaction
          with the archaisms of the law. . . . It would be a
          misfortune if a narrow or grudging process of
          construction were to exemplify and perpetuate the very
          evils to be remedied.
Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51 (1937).
     Having concluded that the 1976 amendment did not foreclose an award of
loss-of-companionship damages to relatives of adult decedents, we now
consider whether such damages constitute "pecuniary injury."
     At common law, despite the fact that the courts allowed recovery for
wrongful injury, a civil action for wrongful death was not permitted.  See
Lazelle, 70 Vt. at 443, 41 A.  at 511-12  ("all actions for personal injuries
died with the person injured").  Lord Campbell's Act, the predecessor of the
American wrongful death acts, was adopted in England in the mid-nineteenth
century to correct this anomaly.  The act allowed the jury to award "Damages
as they may think proportioned to the Injury resulting from such Death."
Lord Campbell's Act, 1846, 9 & 10 Vict., ch. 93.  The English courts held,
however, that damages under the act must be based on pecuniary loss -- a
limitation imposed in many of the American wrongful death statutes,
including Vermont's.  1849, No. 8 (now codified at 14 V.S.A. { 1492(b),
(c)).
     Many early cases, reflecting nineteenth-century social conditions when
children were valued largely for their capacity to contribute to the family
income, resulted in minimal awards representing the monetary loss occasioned
by the parents' deprivation of their child's services.  See, e.g., Allen v.
Moore, 109 Vt. 405, 409, 199 A. 257, 258 (1938) ($200 verdict for wrongful
death of 17-year-old daughter not grossly inadequate); see also Sawyer v.
Claar, 115 Idaho 322, 327-28, 766 P.2d 792, 797-98 (Idaho App. 1988) (citing
many cases, court compared "notoriously small" wrongful death awards made a
half century ago with the more recent trend toward greater recoveries).
Nonetheless, early on, this Court approvingly cited language stating that
pecuniary damages should include "'all pecuniary loss of every kind which
the circumstances of the particular case establish with reasonable certainty
will be suffered by the beneficiary of the statute in the future.'"
D'Angelo, 100 Vt. at 138, 135 A.  at 599 (quoting Bond v. United Railroads,
159 Cal. 270, 277, 113 P. 366, 369 (1911)).  Further, as in most
jurisdictions, this Court did not always construe the term "pecuniary loss"
in its strictest sense.  See, e.g., Lazelle, 70 Vt. at 445, 41 A.  at 512
(citing with approval cases that allowed damages for a child's loss of
intellectual and moral training and proper nurture, as well as a widow's
loss of her husband's care and protection).
     By the early 1960s, some courts were rejecting the child-labor measure
of pecuniary loss, (FN7) and expanding its scope to include loss of
companionship.  See, e.g., Wycko v. Gnodtke, 361 Mich. 331, 340, 105 N.W.2d 118, 122-23 (1960) (the human companionship between individual family
members "has a definite, substantial, and ascertainable pecuniary value");
Fussner v. Andert, 261 Minn. 347, 352-54, 113 N.W.2d 355, 359 (1961)
(considering present-day needs and experience, pecuniary loss should include
loss within the broad definition of society and companionship).  In recent
years, a clear majority of jurisdictions with statutes limiting wrongful
death recovery to pecuniary loss have expanded the scope of such loss to
encompass loss of companionship of a child.  See, e.g., Bullard v. Barnes,
102 Ill. 2d 505, 512, 515, 468 N.E.2d 1228, 1232, 1234 (1984); Sanchez v.
Schindler, 651 S.W.2d 249, 252-53 (Tex. 1983).  Further, many courts have
refused to limit recovery for loss of companionship to situations where the
decedent is a minor child.  See, e.g., Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985) (Texas law allows parents to recover for loss
of companionship, and no distinction is made based on whether the decedent
is an adult or a minor child); Sawyer, 115 Idaho at 326, 766 P.2d  at 796
(parent may recover for wrongful death of adult child based solely on loss-
of-companionship damages); Ballweg v. City of Springfield, 114 Ill. 2d 107,
120, 499 N.E.2d 1373, 1379 (1986) (presumption of loss of society pertains
to cases where decedent is adult child); Ferguson v. Orr, 427 N.W.2d 732,
735-36 (Minn. App. 1988) (jury's zero damage award in wrongful death action
involving 57-year-old decedent overturned in the absence of sufficient
evidence of estrangement); cf. Frank v. Superior Court, 150 Ariz. 228, 231-
34, 722 P.2d 955, 958-61 (1986) (parents may maintain cause of action for
loss of consortium against third party who negligently injured their adult
child).
     This Court has recently reiterated that the "term 'pecuniary injuries'
does not limit recovery to purely economic losses."  Mobbs v. Central
Vermont Ry., 150 Vt. 311, 316, 553 A.2d 1092, 1095 (1988). (FN8) We now hold
that the loss of the comfort and companionship of an adult child is a real,
direct and personal loss that can be measured in pecuniary terms.  Children
have an intrinsic value to their parents regardless of who is supporting
whom at the time of death.  Whether the decedent child is an adult or a
minor, society recognizes the destruction of the parents' investment in
affection, guidance, security and love.  As the Arizona Supreme Court
observed:
          Surely nature recoils from the suggestion that the
          society, companionship and love which compose filial
          consortium automatically fade upon emancipation; while
          common sense and experience teach that the elements of
          consortium can never be commanded against a child's will
          at any age.  The filial relationship, admittedly
          intangible, is ill-defined by reference to the ages of
          the parties and ill-served by arbitrary distinctions.
          Some filial relationships will be blessed with mutual
          caring and love from infancy through death while others
          will always be bereft of those qualities.  Therefore, to
          suggest as a matter of law that compensable consortium
          begins at birth and ends at age eighteen is illogical
          and inconsistent with common sense and experience.
          Human relationships cannot and should not be so neatly
          boxed.
Frank, 150 Ariz. at 233, 722 P.2d  at 960; Cf. Ballweg, 114 Ill. 2d  at 120,
499 N.E.2d  at 1378-79 (expanding prior case law that presumed loss-of-
companionship damages upon death of minor child, Illinois Supreme Court
recognized presumption that pecuniary loss includes loss-of-companionship
damages upon wrongful death of an adult child).
     In some cases, the close, familial ties that unite a minor child with
his or her parents may dissipate as the child becomes an adult.  Nonethe-
less, the WDA does not preclude the parents of an adult child from showing
that the death of their child did in fact injure them by depriving them of
the society of that child.  Every case must stand upon its own facts and
circumstances.  In determining whether and what amount of damages are
appropriate for loss of companionship, the court or jury should consider the
physical, emotional, and psychological relationship between the parents and
the child.  Accordingly, among other things, the factfinder should examine
the living arrangements of the parties, the harmony of family relations, and
the commonality of interests and activities.  See Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986).  Prior cases contrary to our holding herein are
overruled.
                                    B.
     Next, we consider whether plaintiffs may obtain damages for future
earnings that would have accrued to the decedent.  Plaintiffs concede that,
under the facts of this case, they are unable to claim damages for loss of
economic support; however, they argue that the Survival Statutes, 14 V.S.A.
{{ 1451-1453, allow them to recover damages for loss of the decedent's
future earnings. (FN9) We disagree.  Because the DSA has its own survival
provision, {{ 1451-1453 are not applicable here.  Nevertheless, we see no
reason to construe the DSA survival provision differently from the Survival
Statutes, to which we look for guidance.  In Vermont, as in the majority of
jurisdictions, see W. Keeton, supra, { 126 at 943 n.9 and accompanying text,
actions under the Survival Statutes allow recovery for loss and suffering
from injuries endured by the decedent prior to the decedent's death.  Thayer
v. Herdt, ___ Vt. at ___, 586 A.2d  at 1126; Whitchurch v. Perry, 137 Vt.
464, 469, 408 A.2d 627, 630 (1979).  Damages for loss of future earnings are
thus not available under the Survival Statutes, and we conclude that the
same interpretation should be accorded the DSA survival provision.
                                    IV.
     We must also determine whether the trial court erred in excluding
plaintiffs' claims for punitive damages under the DSA.  Although the DSA
provides a "right of action" for those "injured in person, property or means
of support," it neither expressly allows nor expressly excludes punitive
damages.  Defendants argue that punitive damages are inappropriate because
the DSA is a strict liability statute, not requiring proof of proximate
cause or a particular mental state.  We conclude that the DSA does not
preclude such damages. (FN10)
     As a general rule, punitive damages are recoverable in any action for
damages based upon tortious acts, see, e.g., Pettengill v. Turo, 159 Me.
350, 362, 193 A.2d 367, 374 (1963), as long as the unlawful or wrongful acts
evinced personal ill will or showed a reckless or wanton disregard of
another's rights.  Shortle v. Central Vt. Pub. Serv. Corp., 137 Vt. 32, 33,
399 A.2d 517, 518 (1979).  The crucial inquiry is not the particular tort
committed, but rather the nature of the defendant's conduct in committing
it.  W. Keeton, supra, { 2 at 11.  A dram shop action is an action for
damages based on one or more tortious acts.  See Winney, 149 Vt. at 215, 542 A.2d  at 270 ("legislature created a new tort"); see also 7 V.S.A. { 504 ("A
judgment for plaintiff under section 501 of this title shall be treated as
rendered in an action founded on tort.").
     The fact that the DSA has been referred to as a strict liability
statute does not make punitive damages inappropriate in cases where the
plaintiff persuades the factfinder that the defendant acted, at a minimum,
with reckless disregard of another's rights.  Regardless of the mental state
required to obtain compensatory damages under the DSA, punitive damages
cannot be awarded absent a showing that the defendant acted recklessly.
Thus, punitive damages are not awarded on the basis of strict liability;
indeed, the defendant must be more than negligent -- he or she must act with
reckless disregard -- in order to incur punitive damages.
     Defendants insist, however, that punitive damages are inappropriate
because plaintiffs are not required to show that defendants' reckless
conduct proximately caused plaintiffs' injuries.  We disagree.  In the
broad sense of the term, "proximate cause," or "legal cause," assures that
there is some reasonable connection between the act or omission of the
defendant and the damages suffered by the plaintiff; it is the limitation,
based on justice and social policy, that courts place upon the actor's
responsibility for the consequences of his or her conduct.  As a practical
matter, the extent of one's responsibility for a given act depends on
whether the actor has a duty to protect the person injured from the
consequences of his or her act, which, in turn, often depends on the
foreseeability of those consequences.  See W. Keeton, supra { 42 at 273.
     Until the late 1950s, the courts unanimously held that a common-law
negligence action was not available against tavern owners who served
alcohol to intoxicated persons.  See Largo Corp. v. Crespin, 727 P.2d 1098,
1100 (Colo. 1986).  The rationale underlying this rule was that the conduct
of the intoxicated person was a superseding, intervening "proximate cause"
of the injury to the third party.  See id. at 1101.  In recent years,
however, many courts and state legislatures have recognized that, in this
day and age when travel by automobile is the norm, it is foreseeable that an
intoxicated person will cause injury to others; therefore, commercial
vendors have a duty to third parties to act with care when serving alcohol
to their patrons.  Id. at 1102.  By enacting the DSA, the Vermont
Legislature has imposed a duty on commercial vendors of alcohol to act with
care when serving intoxicated customers.
     Defendants rely heavily on Healey v. Cady, 104 Vt. 463, 466, 161 A. 151, 152 (1932) for the proposition that the DSA does not require the
furnishing of alcohol to be the proximate cause of the resulting injury.
What Healey actually stands for is that the plaintiff no longer need prove
that the server's action is a proximate cause because the Legislature has
presumed proximate cause when a dram shop sells liquor to an intoxicated
person.  See Winney, 149 Vt. at 215, 542 A.2d  at 270.  In other words, the
server cannot claim that the action of the patron in getting drunk or
driving was a superseding, intervening cause of the injury.  The plaintiff
must show, however, that the alcohol served by the dram shop led to the
driver's intoxication and that the injury was "in consequence of" the
driver's impairment.  See Healey, 104 Vt. at 466, 161 A.2d  at 152.
Accordingly, defendants are mistaken when they argue that plaintiffs are not
required to show that Theron Webster's intoxication caused the accident in
which their daughter died.
     We agree with the Oregon Court of Appeals that the circumstances that
give rise to the need for punitive damages may apply in a dram shop action,
and that dram shops should not be exempt as a matter of law from such
damages:
            We are not prepared to hold as a matter of law that
          serving a visibly intoxicated person cannot be as wanton
          and reckless an act as driving while intoxicated.  When
          the act of serving an intoxicated person is found to
          meet the requisite disregard of social obligations, an
          award of punitive damages may be appropriate.  We cannot
          say that punitive damages . . . will have any less of a
          deterrent effect on wanton and reckless conduct than in
          other types of cases in which punitive damages are
          traditionally approved by the courts.
Pfeifer v. Copperstone Restaurant and Lounge, Inc., 71 Or. App. 599, 608,
693 P.2d 644, 650 (1985).
     In Pfeifer, the court held that Oregon's dram shop statute, which makes
a vendor liable for "damages incurred or caused by intoxicated patrons," did
not preclude the imposition of punitive damages against a vendor that served
alcohol to a driver who later caused the death of a child.  Id. at 604-05,
693 P.2d  at 648.  Although the court supported its decision, in part, by
pointing out that the statute did not create a new cause of action but
rather codified a prior judicial decision, id. at 604, 693 P.2d  at 647, it
also noted that the statute evinced neither an intent to limit the type of
damages available nor a statutory scheme intended as a substitute for
punitive damages.  Id. at 605-06, 607, 693 P.2d  at 647, 649.  The Vermont
DSA does create a new statutory cause of action; however, like the Oregon
statute, it neither explicitly nor implicitly precludes the imposition of
punitive damages.  We decline to impose such a limitation.
     Defendants cite Nelson v. Restaurants of Iowa, Inc., 338 N.W.2d 881,
885 (Iowa 1983) and Coughlin v. Radosevich, 372 N.W.2d 817, 820-21 (Minn.
App. 1985) for the proposition that punitive damages are not available in a
dram shop action unless the statute expressly provides for them.  Nelson is
inapposite because the Iowa Legislature had amended the statute to delete
the express provision of punitive damages.  See 338 N.W.2d  at 884.  In
Coughlin, the court refused to allow punitive damages under its dram shop
act because the statute did not expressly authorize them, and the court was
unwilling to expand the statute beyond its explicit terms.  372 N.W.2d  at
820.  Since the Vermont DSA is to be construed liberally, and it does not
preclude punitive damages, we decline to follow the Minnesota appellate
court.
     The Rotisserie defendants also contend that an award of punitive
damages under the DSA would violate various constitutional guarantees.
Because there has been no award of punitive damages as of yet, and because
the issue has barely been briefed by the parties, these constitutional
arguments are premature.  Cf. Lane Construction Corp. v. Vermont Electric
Generation and Transmission Coop., 150 Vt. 419, 420-21, 553 A.2d 1096, 1098
(1988) (question of applicability of doctrine of legal impracticability was
premature because doctrine provided no basis for overturning judgment
appealed from).
                                    V.
     The Rotisserie defendants also raise four issues on cross-appeal.
First, they argue that the trial court should have granted their pretrial
motion to exclude expert evidence regarding the signs of intoxication that
would be exhibited by a person having a certain blood-alcohol content.  We
decline to review the court's preliminary evidentiary ruling at this
interlocutory stage of the proceedings before final consideration of the
issue in the context of the trial.  See In re Pyramid Co. of Burlington,
141 Vt. 294, 300-301, 449 A.2d 915, 918-19 (1982); State v. Karcz, 134 Vt.
187, 188, 352 A.2d 687, 688 (1976).
     Second, defendants argue that the trial court erred in dismissing
Theron Webster, the driver, as a defendant.  We agree with the superior
court that the real issue here concerns the apportionment of damages should
the jury find for plaintiffs, not whether a settling party should be kept in
the case, and that the trial judge should be the one to consider this issue
if it arises.  At this point, the issue is premature.
     Third, defendants argue that the Legislature's delegation of authority
to the Liquor Control Board to make rules concerning the furnishing of
alcohol is unconstitutional. (FN11) Defendants ask that we distinguish or
disregard Ackerman v. Kogut, 117 Vt. 40, 46-47, 84 A.2d 131, 136 (1951),
where, in an action for damages under the DSA, this Court held that a
statute giving the Liquor Control Board authority "'to prescribe such rules
and regulations . . . as may be necessary to carry out the provisions of
this chapter'" did not constitute an unconstitutional delegation of power.
We decline to disregard Ackerman and do not think it can be distinguished.
Chapter 5 of Title 7 sufficiently designates and delimits the areas of
administrative regulation permitted by the Department of Liquor Control;
therefore, it does not constitute an unconstitutional delegation of power.
See Vermont Home Mortgage Credit Agency v. Montpelier Nat'l Bank, 128 Vt.
272, 278-79, 262 A.2d 445, 449 (1970); State v. Auclair, 110 Vt. 147, 163, 4 A.2d 107, 114 (1939) (agency charged with duty of administering a statute
may be vested with wide, though not unrestrained, discretion).
     Fourth, defendants contend that General Regulation 19 of the Revised
Regulations Governing the Sale of Alcoholic Beverages, which makes it
unlawful to furnish alcohol to a person "apparently under the influence of
intoxicating liquor," (FN12) is unconstitutionally vague.  We disagree.
     Prior Vermont case law has adequately defined "apparently under the
influence."  In In re Tweer, 146 Vt. 36, 38, 498 A.2d 499, 500-01 (1985)
(citations omitted), we stated,
          The prohibition of sales to a person "apparently" under
          the influence of liquor requires that the purchaser's
          intoxication be observable.  Moreover, the observation
          must be made by the one selling the liquor.  It is not
          enough that the purchaser's intoxication was apparent
          to someone else.  The seller, of course, is not
          permitted to close his eyes to that which is apparent.
          The seller has a duty to observe that which is
          observable to a reasonable person.
We conclude that the regulation is "sufficiently clear to give a person of
ordinary intelligence a reasonable opportunity to know what is proscribed."
Brody v. Barasch, ___ Vt. ___, ___, 582 A.2d 132, 137 (1990); see Zucker v.
Vogt, 329 F.2d 426, 430 (2d Cir. 1964) (Connecticut Dram Shop Act not
unconstitutionally vague; the defendant's claim that he cannot tell with
reasonable certainty what intoxication is "has a hollow ring"); Largo Corp.,
727 P.2d  at 1102 (noting "visibly intoxicated" statutory language, court
held that "tavern owner can, in the exercise of reasonable judgment,
determine whether a person is fit to consume additional alcohol").  A
regulation need not define a given term or detail every nuance of its
meaning in order to comply with constitutional requirements; "[s]tatutory
language that conveys a definite warning as to proscribed conduct when
measured by common understanding and practices will satisfy due process."
Brody, ___ Vt. at ___, 582 A.2d  at 137.  That standard is met here.
     Reversed and remanded.


                              FOR THE COURT:


                              ______________________________________________
                               Associate Justice




FN1.    The Legislature amended the Dram Shop Act in 1987.  Among the
changes, the Legislature deleted the word "unlawfully" and, instead, stated
that persons liable under the act are those who furnish or sell
intoxicating liquor to minors, to persons apparently under the influence of
alcohol, to persons after legal-serving hours, and to persons who it would
be reasonable to expect would be intoxicated as a result of the amount of
alcohol already served them.  1987, No. 103, { 1.  Aside from The
Rotisserie defendants' unlawful-delegation and vagueness arguments in their
cross-appeal, the amendment does not affect the issues addressed in this
case.

FN2.    Apparently, Jane Clymer was in a coma from the time she was struck
by the car until her death the next day.  Therefore, the administrator of
the estate has, at best, a limited remedy under the DSA's survival
provision.  See Thayer v. Herdt, ___ Vt. ___, ___, 586 A.2d 1122, 1126
(1990) (under Vermont's Survival Statute, 14 V.S.A. {{ 1451-1453,
administrator may collect damages only for those injuries sustained by a
decedent prior to death); Whitchurch v. Perry, 137 Vt. 464, 469, 408 A.2d 627, 630 (1979) (same).

FN3.    Several jurisdictions have permitted contribution between a dram
shop and an intoxicated driver despite the lack of a common theory of
liability between those defendants.  See M. Minzer, J. Nates, C. Kimball &
D. Axelrod, Damages in Tort Actions { 49.31(2)(b), at 49-88 to 49-92 (1991);
see, e.g. Ayers v. Straight, 422 N.W.2d 643, 646-47 (Iowa 1988) (because
dram shop and intoxicated driver share liability to injured party, right of
contribution exists between them even though liability rests on separate
grounds of strict liability and common-law negligence); see also 7 V.S.A. {
501(f) (1987 amendment to DSA explicitly provides, among other things, for
contribution among responsible parties).  It is an open question whether
comparative negligence applies in dram shop cases.  Plante v. Johnson, 152
Vt. 270, 273, 565 A.2d 1346, 1348 (1989).

FN4.    The Survival Statutes, 14 V.S.A. {{ 1451-1453, allow a decedent's
estate to recover for injuries sustained by the decedent prior to his or her
death, see Whitchurch v. Perry, 137 Vt. 464, 469, 408 A.2d 627, 630 (1979);
the decedent's death need not result from the injury, as with wrongful death
actions.

FN5.    Defendants, however, argue that this action is brought under the
DSA, which is penal in nature.  Some courts have determined that the DSA is
penal in nature and must be construed narrowly.  See, e.g., Matusak v.
Chicago Transit Authority, 165 Ill. App. 3d 1032, 1037, 520 N.E.2d 925, 928
(1988) (although also remedial, Dram Shop Act is "penal in character and
should therefore be strictly construed"); Beck, 245 Minn. at 34, 70 N.W.2d 
at 891 (since civil damage law is highly penal in nature, it should be
strictly construed).  But most courts, including this Court, have recognized
that the DSA is primarily a remedial statute and must be construed
liberally.  See, e.g., Ackerman v. Kogut, 117 Vt. 40, 47, 84 A.2d 131, 136
(1951) (Dram Shop Act is to be liberally construed to accomplish its
purposes: to discourage intoxication and encourage temperance); Healey v.
Cady, 104 Vt. 463, 466, 161 A. 151, 152 (1932) (statute "created a remedy
for wrong" that had not previously existed, and should be "liberally
construed to effectuate its purpose"); Kowal v. Hofher, 181 Conn. 355, 366,
436 A.2d 1, 6 (1980) (Loiselle, J. dissenting) (in light of the remedial
nature of the dram shop statute, it will be liberally construed where it
applies); Wendelin v. Russell, 259 Iowa 1152, 1157, 147 N.W.2d 188, 192
(Iowa 1966) (dram shop act is primarily a compensatory law and should be
construed liberally), overruled on other grounds, Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977).

FN6.    Nor does our holding in Hartnett v. Union Mutual Fire Ins. Co., 153
Vt. 152, 569 A.2d 486 (1989) disturb this belief.  In Hartnett, the issue
was whether specific terms within the 1976 amendment -- "loss of love and
companionship of the child" and "destruction of the parent-child
relationship" -- encompass damages for grief and mental anguish.  Id. at
154, 569 A.2d  at 487.  We noted that the "statutory language of the 1976
amendment to { 1492(b) was taken from a Washington statute that, in all
respects material to [that] case, is identical to { 1492(b) as amended," and
that the Washington Supreme Court had interpreted the statute to permit
recovery for grief and anguish.  Id. at 154-55, 569 A.2d  at 487-88.  We then
adopted the Washington court's analysis, citing the rule of statutory
construction that presumes the Legislature of the adopting state adopts the
construction given the statute by the courts of the other state.  Id.
     The issue in this case, however, is whether the Vermont WDA permits
parents to collect loss-of-companionship damages for the death of an adult
child.  The Washington Supreme Court has held that parents cannot recover
damages under the Washington WDA unless the decedent child is a minor or the
parents are dependent on the child.  Warner v. McCaughan, 77 Wash. 2d 178,
184-86, 460 P.2d 272, 276-77 (1969).  The court arrived at this conclusion
based on its analysis of several sections of the Washington WDA that are
completely different from the Vermont WDA, not on the language that was
later adopted by the Vermont Legislature.  See id.  Indeed, the specific
language adopted by Vermont was never mentioned in the decision.  Because
the Washington court's holding was based on sections of the Washington WDA
that are not identical to the Vermont WDA, the reasoning in Hartnett does
not apply here.

FN7.    Under this approach, pecuniary loss consisted of the financial
burden upon the parents that resulted from loss of the child's services.

FN8.    In Hartnett, 153 Vt. at 154, 569 A.2d  at 487, we suggested that
damages for mental anguish and loss of companionship were nonpecuniary in
nature.  As noted, however, the issue in that case was whether specific
terms within the WDA encompass damages for grief and mental anguish.  Our
suggestion that loss-of-companionship damages are nonpecuniary in nature
was neither the result of legal analysis nor necessary to the holding of
that case.

FN9.    Under wrongful death statutes, survivors of the decedent may recover
for injury to themselves resulting from the death; under the survival
statutes, the representatives of the victim may recover for injury to the
victim.  J. Stein, Damages and Recovery: Personal Injury and Death Actions {
265 at 598 (1972).

FN10.     Because we conclude that punitive damages are available to
plaintiffs under the DSA, we need not address the issue of whether punitive
damages are available under the WDA.

FN11.     7 V.S.A. { 104(8) provides that the Liquor Control Board shall
"[m]ake rules and regulations concerning, and issue permits under such terms
and conditions as it may impose for the furnishing . . . of alcohol . . . ."
     As noted, in amending 7 V.S.A. { 501 in 1987, the Legislature replaced
the term "unlawful" with specific delineations of prohibited conduct.  See
n.1, supra.  The four types of prohibited conduct correspond with the
conduct proscribed by Liquor Control Board regulations promulgated prior to
the amendment.

FN12.     The 1987 amendment to 7 V.S.A. { 501 defines "apparently under the
influence of intoxicating liquor" as "a state of intoxication accompanied
by a perceptible act or series of actions which present signs of
intoxication."  7 V.S.A. { 501(h).