Estate of Kelley v. Moguls Inc.

ESTATE_OF_KELLEY_V_MOGULS_INC.92-529; 160 Vt. 531; 632 A.2d 360


    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, 109 State Street, Montpelier, Vermont
    05609-0801 of any errors in order that corrections may be made before
    this opinion goes to press.


                                  No. 92-529


    Estate of Dean C. Kelley                     Supreme Court

                                                 On Appeal from
              v.                                 Windsor Superior Court

    Moguls, Inc.                                 May Term, 1993


    John P. Meaker, J.

    John J. Welch, Jr., Rutland, for plaintiff-appellant

    Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant-
      appellee


    PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


         ALLEN, C.J.   The question certified to this Court pursuant to
    V.R.A.P. 5(a) is whether a licensed vendor of alcoholic beverages may
    be liable for injuries to and the death of an imbiber resulting from
    the imbiber's driving a motor vehicle while intoxicated.  This
    liability would arise from the vendor's negligence in serving alcohol
    to someone who reasonably appeared to be under the influence of alcohol
    and who the vendor knew, or should have known, would soon be operating
    an automobile.  We hold that the vendor may be liable under the facts
    alleged.
         Plaintiff, the imbiber's estate, concedes that the Dram Shop Act,
    7 V.S.A. { 501, does not provide a remedy under the facts alleged.  See
    Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986) (Dram
    
 

    Shop Act provides cause of action only to third persons injured by
    intoxicated person).  Plaintiff, however, contends that a common-law
    cause of action exists that would permit recovery.
                                       I.
         The Dram Shop Act preempts those common-law negligence actions
    that come within its scope.  Winney v. Ransom & Hastings Inc., 149 Vt.
    213, 215-16, 542 A.2d 269, 270 (1988).  Defendant argues that
    plaintiff's claim is among the actions preempted, and that the specific
    language of recent amendments evidences legislative intent to allow a
    common-law remedy only against social hosts, not licensed vendors.  We
    disagree.
         In Langle, we held that a social host has a duty of care only in
    situations in which the host furnishes alcoholic beverages to someone
    visibly intoxicated and "it is foreseeable to the host that the guest
    will thereafter drive an automobile, or, where the social host
    furnishes alcoholic beverages to a minor."  146 Vt. at 521, 510 A.2d  at
    1306.  In the legislative session following Langle, the Act was
    extensively revised, including the adoption of subsection (g):
         Nothing in this section shall create a statutory cause of
         action against a social host for furnishing intoxicating
         liquor to any person without compensation or profit, if the
         social host is not a licensee or required to be a licensee
         under this title.  However, this subsection shall not be
         construed to limit or otherwise affect the liability of a
         social host for negligence at common law.
    7 V.S.A. { 501(g).  Defendant argues that this language implicitly
    forecloses all other common-law causes of action for furnishing
    intoxicating liquor because it explicitly preserves a common-law cause
    of action against a social host.

 

         As a general rule, we look to the plain language of the statute to
    determine the intent of the Legislature.  Furthermore, "rules of the
    common law are not to be changed by doubtful implication, nor
    overturned except by clear and unambiguous language."  E.B. & A.C.
    Whiting Co. v. City of Burlington, 106 Vt. 446, 464, 175 A. 35, 44
    (1934).  Because 7 V.S.A. { 501 does not expressly foreclose a common-
    law cause of action, we cannot conclude that the Legislature intended
    to preempt such an action.
         The legislative history of the 1987 amendments supports the view
    that there was no intent to preempt common-law remedies available to
    those not covered by the Act.  Originally, the Senate and House bills
    called for the amended act to be "the exclusive remedy against a
    defendant for claims for those suffering damages based on the
    defendant's furnishing of alcoholic beverages," and to abolish and "any
    common law action against a person who sells or furnishes intoxicating
    liquor."  House Jour. 778 (May 8, 1987, Vt., Bien. Sess.).  This
    language was eliminated from the amendments as finally enacted.
    Therefore, we conclude that the Legislature considered and rejected an
    expansion of the Dram Shop Act to preempt all common-law negligence
    actions for those suffering damages based on the furnishing or selling
    of alcoholic beverages.  The evident intent of 7 V.S.A. { 501(g) was
    to prevent recovery in strict liability against a social host under the
    Act's other provisions, but not to bar recovery in negligence.
    Defendant's suggestion that the amendments carved a lone exception to
    permit negligence actions against social hosts would make sense had the
    above language been enacted.  Absent such language, we cannot limit

 

    common law remedies.  We hold that a licensed vendor may be liable in
    negligence in addition to remedies provided under the Dram Shop Act.
                                      II.
         We turn next to the question of whether an imbiber has a cause of
    action against a licensed vendor.  This depends on the existence of a
    legally cognizable duty, "an obligation, to which the law will give
    recognition and effect, to conform to a particular standard of conduct
    toward another.'"  Smith v. Day, 148 Vt. 595, 597, 538 A.2d 157, 158
    (1987) (quoting W. Prosser & W. Keeton, The Law of Torts { 53, at 356
    (5th ed. 1984)).  In Langle, we declined to impose liability against a
    social host for injuries received by a guest because we could not find
    that a legal duty of care existed.  146 Vt. at 517-21, 510 A.2d  at
    1303-06.  The complaint in that case alleged that the defendant
    negligently and unlawfully served the plaintiff intoxicating liquor,
    that the plaintiff became intoxicated, and that as a proximate result
    of that intoxication the plaintiff was injured.  The certified question
    before us differs in one important respect:  here the imbiber was
    intoxicated when served.
         A duty may be established by safety statutes and regulations if
    they are intended, exclusively or in part,
              (a) to protect a class of persons which includes the one
         whose interest is invaded, and
              (b) to protect the particular interest which is invaded,
         and
              (c) to protect that interest against the kind of harm
         which has resulted, and
              (d) to protect that interest against the particular
         hazard from which the harm results.
    Restatement (Second) of Torts { 286 (1971).  See, e.g., Rule v.
    Johnson, 104 Vt. 486, 490, 162 A. 383, 385 (1932) (violation of motor
    vehicle regulation regarding number of passengers permitted to occupy

 

    front seat creates presumption of negligence); Porter Screen Mfg. Co.
    v. Central Vermont Ry., 92 Vt. 1, 8, 102 A. 44, 47 (1917) (Interstate
    Commerce Commission rules relating to transport of dangerous articles
    are material on issue of defendant's knowledge of hazardous condition).
         The laws relating to alcoholic beverages are intended to protect
    "the public welfare, good order, health, peace, safety and morals of
    the people of the state."  7 V.S.A. { 1.  The Liquor Control Board is
    empowered to promulgate regulations regarding the furnishing and
    selling of alcohol.  7 V.S.A. { 104(8).  In this case, the relevant
    rule is Department of Liquor Control Regulation 19, which states that
    "[n]o alcoholic liquor shall be sold or furnished to a person
    apparently under the influence of liquor."  Vt. Liquor Control Bd. Rev.
    Gen. Reg. 19 (1988).  Rule 19 satisfies criteria (b), (c), and (d) of
    the test outlined above.  In part, the regulation is intended to
    protect the public from dangers created by intoxicated persons,
    including the dangers of drunk driving.  Whether the regulation was
    intended to include the imbiber in the class of protected persons is
    not as clear.
         Common sense tells us that an imbiber is just as likely to be
    injured as third parties are.  Accordingly, other jurisdictions have
    included the imbiber in the class to be protected by rules similar to
    DLC General Regulation 19.  In Nazareno v. Urie, 638 P.2d 671, 674
    (Alaska 1981), the Alaska Supreme Court held that a vendor has a duty
    not to sell liquor where the sale creates a risk of harm to the
    customer or others.  Likewise, in Brannigan v. Raybuck, 667 P.2d 213,
    216 (Ariz. 1983), the Arizona Supreme Court stated that "modern
    authority has increasingly recognized that one who furnishes liquor to

 

    a minor or intoxicated patron breaches a common law duty owed both to
    innocent third parties who may be injured and to the patron himself."
    We think that Regulation 19 was intended to include the person served
    within the class of persons to be protected from the hazards of over-
    indulgence.
         Defendant argues, in effect, that recognizing a common-law
    negligence action by an imbiber against a licensed server will
    encourage drunk driving because the action would permit the individual
    to profit from his own wrongdoing.  Questions of relative fault,
    however, are better addressed under our comparative negligence statute,
    12 VSA { 1036.  The factfinder may decide where the incentive to
    consume arose and apportion the fault accordingly.
         Defendant also argues that the lack of causal relationship between
    the seller's act in supplying alcohol and the injury sustained is
    another reason for denying liability.  But this is no basis to deny a
    cause of action as a matter of law; causation is a fact question.  At
    one time, it was not considered a tort to serve liquor to an able-
    bodied person.  The courts reasoned that consuming rather than
    furnishing alcohol was the proximate cause of resulting injuries. See
    Nolan v. Morelli, 226 A.2d 383, 386 (Conn. 1967).  Under the modern
    view, consumption also may constitute proximate cause.  See Ely v.
    Murphy, 540 A.2d 54, 58 (Conn. 1988) (minor's consumption of alcohol
    not necessarily an intervening act breaking the chain of proximate
    causation).  There may be more than one proximate cause of an injury,
    Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 188, 583 A.2d 881, 886
    (1990), and both consumption and furnishing may be causative factors.
    Rappaport v. Nichols, 156 A.2d 1, 9 (N.J. 1959) (negligent operation of

 

    automobile due to intoxication was "normal incident of the risk"
    created by tavern keepers who furnished liquor).
         We conclude that a common-law action has not been preempted and
    that such an action may be maintained.
         The certified question is answered in the affirmative.
                                            FOR THE COURT:




                                            Chief Justice