Thompson v. Dewey's South Royalton, Inc.
Thompson v. Dewey's South Royalton, Inc. (97-273); 169 Vt. 274; 733 A.2d 65
[Filed 21-May-1999]
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. 97-273
Ken Thompson, Annette Potwin and Supreme Court
Ashley and Tessa Thompson
On Appeal from
v. Orange Superior Court
Dewey's South Royalton, Inc., Erlina May Term, 1998
Gay Farrington, Merle Howe, Mark Nemeth,
So. Royalton House, Inc., Michael Brown
and Thomas Powers
David T. Suntag, J.
James A. Dumont of Keiner & Dumont P.C., Middlebury, for
Plaintiff-Appellant Thompson.
Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Brannen,
P.C., White River Junction, for Plaintiff-Appellant Potwin.
David H. Bradley and David R. Putnam of Stebbins, Bradley, Wood &
Harvey, P.A. Hanover, New Hampshire, for Defendant-Appellees Dewey's South
Royalton, Inc., Farrington, Howe and Nemeth.
Robert G. Cain and John G. Beiswenger of Paul, Frank & Collins, Inc.,
Burlington, for Defendants-Appellees South Royalton House, Inc. and Brown.
J. Christopher Callahan and Tracy Kelly of Richards and Brady, P.C.,
Springfield, for Defendant-Appellee Powers.
PRESENT: Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and
Corsones, D.J., Specially Assigned
MORSE, J. Plaintiffs instituted this action under the Dram Shop Act
(DSA), 7 V.S.A. § 501, against two licensed vendors of alcoholic
beverages, seeking damages resulting from an intoxicated person's death.
The trial court granted defendants' motion to dismiss, see V.R.C.P.
12(b)(6), ruling that plaintiffs, who were third persons injured as a
consequence of an imbiber's death, did not have a cause of action under
the DSA. We reverse.
The salient facts pled in the complaint are as follows. See Amiot v.
Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (allegations of nonmoving
party must be accepted as true in
reviewing motion to dismiss). Defendants are two South Royalton bars --
Dewey's South Royalton and South Royalton House -- their owners, and some
of their employees.(FN1) In June 1995, after spending the evening
drinking excessively at both of defendants' bars, Mickey Lee Thompson
(decedent) was injured in a car accident. He died three weeks later from
injuries sustained in the accident. Plaintiffs filed claims under the DSA
to recover for the injuries they suffered to their "person [and] means of
support" as a result of decedent's death "in consequence of [his]
intoxication." 7 V.S.A. § 501(a).
Plaintiffs include Annette Potwin, Ashley Thompson, Tessa Thompson,
and Ken Thompson. Decedent lived with his partner Annette Potwin (the two
were not married), and her daughter, Ashley, for over seven years, until
the time of his death. Although Ashley was not decedent's biological
daughter, she regarded decedent as her father and used his last name as her
own. Decedent provided financial support to both Annette and Ashley.
Tessa Thompson was born to decedent and Annette Potwin in February 1994.
Decedent provided physical, moral, and intellectual support and training
for both Tessa and Ashley. Ken Thompson is decedent's father. Father and
son planned to commence a woodworking business together later in the summer
of 1995.
All of the plaintiffs sought damages for loss of decedent's
companionship and loss of means of support. Annette Potwin and her two
children also sought damages for the loss of physical, moral, and
intellectual training. In addition to the instant action, Annette Potwin,
as the administrator of decedent's estate, filed a common law negligence
claim against the same defendants under the Wrongful Death Act. See 14
V.S.A. §§ 1491-1492.
In granting defendants' motion to dismiss plaintiffs' claims, the
court concluded, "Just
as [decedent] had no cause of action under the DSA, the DSA likewise does
not provide his relatives a remedy for their derivative claim." (Emphasis
added). This appeal followed.
I.
The issues on appeal concern questions of law, and thus our "review is
nondeferential and plenary." Godino v. Cleanthes, 163 Vt. 237, 239, 656
A.2d 991, 992 (1995). First, we address whether the DSA provides an
independent and direct right of recovery to third persons injured as a
consequence of an imbiber's death. Because we find that it does, we next
address whether plaintiffs here are within the class of claimants entitled
to recover under the DSA. Finally, we consider the range of damages
available to third persons injured as a consequence of an imbiber's death.
A.
Relying on a plain meaning interpretation of the DSA, plaintiffs
allege that the DSA provides them a direct cause of action against
defendants. The DSA states in pertinent part:
A spouse, child, guardian, employer or other 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 in his or her own name, jointly or severally, against
any person or persons who have caused in whole or in part such
intoxication by selling or furnishing intoxicating liquor:
. . . . to a person apparently under the influence of
intoxicating liquor; [or]
. . . . to a person whom it would be reasonable to expect would
be under the influence of intoxicating liquor as a result of the
amount of liquor served by the defendant to that person.
7 V.S.A. § 501(a). Plaintiffs contend that they have been injured "in
person [and] means of support . . . in consequence of the intoxication" of
decedent.
Defendants, on the other hand, contend that only third persons injured
by an intoxicated person may recover under the DSA. Their position is
predicated on this Court's holding in Langle v. Kurkul, 146 Vt. 513,
515-16, 510 A.2d 1301, 1303 (1986), where we held that an intoxicated
person who caused injury to himself could not recover damages against the
alcohol
supplier under the DSA. In reaching this result, we further explained that
"the [DSA] gives a cause of action only to third persons who are injured
by an intoxicated person." Id. at 516, 510 A.2d at 1303. Defendants
conclude, therefore, that because plaintiffs here were not injured by
Mickey Thompson, the intoxicated person, they are precluded from recovering
under the DSA. In addition, they argue that plaintiffs' cause of action is
derivative of decedent's, and because the decedent is barred from
recovering under the DSA, plaintiffs also are precluded from recovering.
We find, however, that defendants' argument does not square with the
plain meaning of the statute or with precedent. The statute itself has
two provisions, each providing a separate ground for relief. First,
persons who are injured "by an intoxicated person" have a right of action.
7 V.S.A. § 501(a). Second, persons who are injured "in consequence of the
intoxication of any person" have a cause of action. Id. Plaintiffs in
this case rest their claims on the latter provision; Langle concerned our
interpretation of the former and thus is not controlling here.
In recent years, this Court has not had occasion to address head-on
whether third parties related to an imbiber have a direct cause of action
for their injuries sustained "in consequence of" the imbiber's death. In
construing the same language in an earlier version of the statute, however,
we held that a wife could recover against a liquor vendor for the loss of
her means of support where her husband died as a consequence of his
intoxication. See Healey v. Cady, 104 Vt. 463, 466-67, 161 A. 151, 152
(1932) (interpreting 1917 G.L. § 6579).(FN2) This Court recognized in
Healy the two provisions of the statute -- "one giving a right of action
for injury
caused by an intoxicated person, and . . . one giving the right of action
for injury caused in consequence of the intoxication of any person" -- and
concluded that wife's claim (like the claims in the instant case) stood on
the latter provision. Id. at 468, 161 A. at 152.
Healy reflects a widely accepted policy that the relatives of an
injured or deceased imbiber may recover under dram shop laws because they,
unlike the imbiber, are considered innocent third parties who did nothing
to contribute to the injury. See, e.g., Valicenti v. Valenze, 499 N.E.2d
870, 871 (N.Y. 1986) (husband and minor children of intoxicated decedent
had cause of action for loss of "means of support" under dram shop act);
Matalavage v. Sadler, 432 N.Y.S.2d 103, 107 (N.Y. App. Div. 1980) (minor
child of intoxicated person who was killed by reason of his intoxication
has cause of action under dram shop act); cf. Hannah v. Chmielewski, Inc.,
323 N.W. 2d 781, 782-83 (Minn. 1982) (wife of police officer injured by
intoxicated person can recover under dram shop act even when "Fireman's
Rule" barred her husband from maintaining such action on his own behalf).
Defendants, on the other hand, contend that a more recent case
suggests that the relatives of an innocent person killed by an imbiber, as
well as the relatives of an intoxicated decedent, are not entitled to
recover under the DSA. In Clymer v. Webster, 156 Vt. 614, 620, 596 A.2d
905, 909 (1991), we noted that, aside from minor medical and funeral
bills, the parents of an adult child killed by a drunk driver were "not
themselves . . . injured `in person, property or means of support' within
the meaning of the DSA." The focus of that case, however, concerned the
remedies available when the decedent herself was injured "in person,"
unlike the decedent in Langle, and therefore would have been entitled to
maintain an action under the DSA had she survived. See Clymer, 156 Vt. at
620, 596 A.2d at 909. We concluded that the parents and decedent's estate
were entitled to recover wrongful death damages. Defendants infer from
Clymer that the relatives of a person killed by an imbiber have only a
derivative cause of action.
Defendants' interpretation of Clymer does not reflect the true context
of the issues on appeal in that case. A more accurate reading of Clymer
reveals that we simply did not address
whether the parents had a direct cause of action under the DSA. Given the
focus of our opinion, then, the more reasonable inference to be drawn from
Clymer is that the parents were not injured "in person, property or means
of support" as a result of their eighteen-year-old daughter's death.
Accordingly, we find that the plain language of the statute and our
previous decisions interpreting an earlier but similar version of the
statute support our holding that the relatives of a deceased imbiber have
an independent and direct right of recovery.
B.
Next, we address whether decedent's father, Ken Thompson, decedent's
unmarried partner Annette Potwin, and her child Ashley Thompson, are
within the potential class of claimants enumerated in the DSA. The Act
provides that "[a] spouse, child, guardian, employer or other person who
is injured . . . shall have a right of action." 7 V.S.A. § 501(a). It is
undisputed that Tessa Thompson, as decedent's biological child, is within
that class of protected claimants.(FN3) Plaintiffs (other than Tessa)
assert that they are also entitled to recover for "loss of means of
support" under the broad statutory catch-all of "other persons." They rely
on several sister-state decisions construing identical dram shop
provisions to mean any other person injured by the intoxication of
another. See Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 857 (Minn.
1998) (holding that injured party's fiancee and her daughter were included
within broad scope of "other person" under state's dram shop act);
Rodriguez v. Solar of Mich., Inc., 478 N.W.2d 914, 921 (Mich. Ct. App.
1991) (step-children and step-grandchildren were "other persons" entitled
to seek recovery under state dram shop act).
Defendants, in response, contend the the DSA limits the class of
persons entitled to recover to those legally entitled to financial support
from the injured person. Defendants rely
on Good v. Towns, 56 Vt. 410 (1883), which construed an earlier version of
the DSA that extended recovery to any "person who is in any manner
dependent" on the injured party. The Good court held that "dependant"
meant legally dependant, and therefore that the plaintiff and her
illegitimate daughter -- who had lived with the injured party as his wife
and daughter but could not prove a legal marriage -- were ineligible to
recover under the act. Id. at 415-16.
Since Good, amendments to the DSA have modified the language from any
person "who is in any manner dependent" on the injured party to "spouse,
child, guardian, employer or other person." Defendants note that in
Langle we applied the rule of ejusdem generis to this portion of the
statute, holding that the general term ("other person") should be construed
to include only "those terms similar in nature to the enumerated terms."
146 Vt. at 515, 510 A.2d at 1303; see also Vermont Baptist Convention v.
Burlington Zoning Bd., 159 Vt. 28, 30, 613 A.2d 710, 711 (1992) (when
construing enactment with series of terms, we apply rule of ejusdem generis
to include only those things similar in character to those specifically
defined). As we stated in Langle: "Since those persons listed in the Dram
Shop Act stand in some special relation to the intoxicated person, the use
of the term `other person' in the Act must mean someone who is similarly
situated." 146 Vt. at 515-16, 510 A.2d at 103.
Although Langle did not explore the precise nature of that "special
relation," defendants argue that the common denominator among the
enumerated terms is the existence of a relation of legal dependence upon
the injured party. Thus, although the express language of "dependence" on
which Good relied has been removed from the statute, defendants argue that
the effect remains the same. We note that there is authority for the
argument that some legally recognized right of support from the injured
party limits the general term "other person." See Ford v. Wagner, 395
N.W.2d 72, 74 (Mich. Ct. App. 1986) (holding that cohabitant not married to
injured party lacked standing under state dram shop act because he lacked
"legal relationship to the injured party").
In this case, however, we need not definitively determine whether a
legislatively
recognized right of support constitutes a prerequisite to recovery under
the Act. For even assuming, without deciding, that the more stringent
standard governs, we conclude that all of the plaintiffs here satisfy the
standard. With respect to decedent's father, the statute expressly
includes "guardians" among the list of persons entitled to recover. A
guardian is an individual charged with the legal duty of taking care of
the person and property of another who, because of age or mental status,
is incapable of doing so. See 14 V.S.A. §§ 2645, 3060. Parents are the
"joint guardians" of their children. See 14 V.S.A. § 2641. Furthermore,
although a parent or guardian does not have a civil right to the financial
support of a ward or child, the law provides that a child with sufficient
means who refuses to support a destitute parent may be subject to
imprisonment and monetary penalties for the support of the needy parent.
See 15 V.S.A. § 202. This reflects a legislative judgment that parents
have some legal right to the support of an adult child, and threfore meet
the more narrow standard for recovery under the DSA. Accordingly, we
conclude that Ken Thompson, decedent's father, had standing to bring suit
in this case. Of course, as explained more fully in the section which
follows, he must still prove at trial that he was actually deprived of
some "means of support" as a consequence of his son's death.
We conclude, similarly, that Annette Potwin, decedent's unmarried
partner, and her daughter Ashley, fall within the more narrow definition
of persons covered by the act. As noted, decedent lived with both Annette
and Ashley for over seven years, until his death, and provided both
financial and emotional support. Under 15 V.S.A. § 294, the mother of
minor children residing within the same household as a man unrelated to
her and not otherwise liable to provide financial support may,
nevertheless, seek support as though they were married. Whether this
statute confers a legally enforceable right or not, it plainly embodies a
legislative judgment that an individual in decedent's circumstances had an
obligation to support plaintiffs. See also 15 V.S.A. § 301 (setting forth
policy of state that legal obligations of parents be established for
benefit of all children).
Thus, we are satisfied that plaintiffs Annette Potwin and Ashley
Thompson meet the more narrow standard for recovery. Accordingly, we need
not decide whether the DSA broadly extends to "other persons" who have no
legally recognized right of support.
C.
Finally, we address the range of damages recoverable by third persons
under the DSA.(FN4) Plaintiffs contend that they are entitled to recover
under the DSA not only for the financial support they lost in consequence
of imbiber's death, but also for his lost comfort, companionship and
guidance. Defendants assert that plaintiffs' loss of companionship and
loss of parental guidance claims are not recoverable because they are not
available in a direct claim under the DSA. They assert that the range of
remedies available under the DSA are limited and do not include the full
range of damages available under the Wrongful Death Act (WDA). See 14
V.S.A. §§ 1491-1492.
We agree with defendants and conclude that third persons injured in
consequence of the death or injury of an imbiber are only entitled to
recover for their loss of means of support, if any, and not for loss of
companionship and loss of parental training and guidance. This
interpretation is consistent with the legislative history and purpose of
the statute.
Vermont's original Dram shop Act, 1880 R.L. tit. 30, ch. 169, § 3602,
was enacted in 1874. It manifests the Legislature's intention to
distinguish between the categories of statutory claimants and the types of
damages they are entitled to recover. The first category of plaintiffs
was comprised of those persons who are directly injured in person or
property by an intoxicated person:
When a person, by reason of intoxication, commits or causes an injury
upon the person or property of another, a person who by himself, clerk, or
servant, unlawfully sold or furnished any part of the liquor causing such
intoxication, shall be liable to the party injured for the damage
occasioned by the injury so done.
Id. (emphasis added). The second category of plaintiffs encompassed third
persons injured in means of support as a consequence of the death or
disability of either an innocent or an intoxicated person:
In case of the death or disability of a person, either from such
injury or in consequence of intoxication from the use of liquors so
unlawfully furnished, a person who is in any manner dependent on such
injured person for means of support, or a person on whom such injured
person is dependent, may recover from the person unlawfully selling or
furnishing any such liquor the damage or loss sustained in consequence of
such injury. Id.
Like other early dram shop laws, Vermont's original act reveals an
attempt "to correct the evils resulting from intemperate indulgence in
intoxicating liquors, such as impoverishment of families, injuries to
others, and the creation of public burdens." Matalavage, 432 N.Y.S.2d at
106 (citing Joyce, The Law Relative to Intoxicating Liquor 476 (1910)).
"One major purpose of this type of statute was to protect the wife and
children of an intoxicated person when they were deprived of their means
of support as a result of his intoxication." Id. (citing Joyce, supra, at
476). In other words, the goal of such legislation concerned economic
compensation and the preservation of financial stability within the
families of a deceased imbiber. The laws did not afford a remedy for loss
of companionship and parental guidance.
The Dram Shop Act was amended in 1902 to resemble more closely the
version currently in effect.(FN5) However, we cannot conclude from this
subsequent enactment that the Legislature intended to expand the scope of
damages recoverable by third persons against tavern keepers. Had the
Legislature intended to broaden the damages recoverable under dram shop
actions, it
could have included the phrase "pecuniary injuries" in the statute. See,
e.g., Lefto v. Hoggsbreath Enters., Inc., 567 N.W.2d 746, 750 (Minn. Ct.
App. 1997), aff'd, 581 N.W.2D 855 (Minn. 1998) (interpreting Minn. Stat. §
340A.801, subd. 1 (1992), which permits a cause of action to "other
person[s] injured in person, property, or means of support, or who incur[]
other pecuniary loss," as allowing recovery for loss of aid, advice,
comfort, and protection).
For example, Vermont's WDA permits damages for "pecuniary injuries,"
14 V.S.A. § 1492(b), which this Court has held does not limit recovery to
purely economic losses. See Mobbs v. Central Vt. Ry., 150 Vt. 311, 316,
553 A.2d 1092, 1095 (1988) ("[t]he term [pecuniary injuries] has been held
to contemplate compensation for lost intellectual, moral and physical
training, or the loss of care, nurture and protection.").
We conclude that it would be an impermissible judicial enlargement of
an existing cause of action if we construed the DSA to encompass
"pecuniary injuries." See Langle, 146 Vt. at 520, 510 A.2d at 130506
("Our Court should not recognize a new cause of action or enlarge an
existing one without first determining whether there is a compelling public
policy reason for the change."). We believe that this construction of the
DSA is supported by public policy and precedent.
Accordingly, we find that claimants here are entitled only to loss of
means of support, and that this is a matter to be determined by the
factfinder at trial. See Valicenti, 499 N.E.2d at 871 (holding that
husband and minor children of intoxicated decedent "are entitled to have
the jury weigh all the direct and inferential evidence relating to their
loss of `means of support'").
Reversed and remanded.
FOR THE COURT:
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Pursuant to V.R.C.P 41(a)(1)(ii), plaintiff Annette Potwin,
individually and in her capacity as guardian of the persons and property
of Ashley and Tessa Thompson, and in her capacity as administratrix of the
estate of Mickey Lee Thompson, stipulated to the dismissal with prejudice
of all claims against defendant Thomas Powers, owner of the property at
which Dewey's is located. Plaintiff Ken Thompson did not join this
stipulation of partial dismissal.
FN2. 1917 G.L. § 6579, the dram shop act in effect at that time, provided:
A husband, wife, child, guardian, employer or other 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 in his or her own name,
jointly or severally, against a person or persons, who, by selling
or furnishing intoxicating liquor, have caused in whole or in part
such intoxication.
FN3. Defendants argued that none of the plaintiffs have a direct
cause of action under the DSA; however, they conceded that if this Court
found otherwise, as we have done, then decedent's biological daughter is a
potential claimant because decedent had a legal duty to support her.
FN4. The scope of damages available to plaintiffs was not decided by
the court below and was not a subject of the motion to dismiss; however,
the issue is bound to arise, and because plaintiffs and defendants
addressed this issue on appeal, we decide it.
FN5. 1902, No. 90, § 84, provided in pertinent part:
A husband, wife, child, parent, guardian, employer or other person who
is injured in person, property or means of support by an intoxicated
person, or in consequence of the intoxication, habitual or otherwise, of
any person, shall have a right of action in his or her own name.
---------------------------------------------------------------------------
Dissenting
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. 97-273
Ken Thompson, Annette Potwin and Supreme Court
Ashley and Tessa Thompson
On Appeal from
v. Orange Superior Court
Dewey's South Royalton, Inc., Erlina May Term, 1998
Gay Farrington, Merle Howe, Mark Nemeth,
So. Royalton House, Inc., Michael Brown
and Thomas Powers
David T. Suntag, J.
James A. Dumont of Keiner & Dumont P.C., Middlebury, for
Plaintiff-Appellant Thompson.
Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Brannen,
P.C., White River Junction, for Plaintiff-Appellant Potwin.
David H. Bradley and David R. Putnam of Stebbins, Bradley, Wood &
Harvey, P.A. Hanover, New Hampshire, for Defendant-Appellees Dewey's South
Royalton, Inc., Farrington, Howe and Nemeth.
Robert G. Cain and John G. Beiswenger of Paul, Frank & Collins, Inc.,
Burlington, for Defendants-Appellees South Royalton House, Inc. and Brown.
J. Christopher Callahan and Tracy Kelly of Richards and Brady, P.C.,
Springfield, for Defendant-Appellee Powers.
PRESENT: Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and
Corsones, D.J., Specially Assigned
AMESTOY, C.J., dissenting. Because plaintiffs Ken Thompson, Annette
Potwin, and Ashley Thompson purportedly satisfy the "more rigorous"
standard urged by defendants, the
majority declines to decide whether a legal relation of financial
dependence is necessary to sue for loss of support under the Dram Shop Act
(DSA), 7 V.S.A. § 501. I am not persuaded that plaintiffs here satisfied
this standard. Indeed, there is so little support for a finding of legal
dependence in this case that it is difficult to conceive of any case where
the necessary statutory predicate, however attenuated, could not be found.
Accordingly, the warning sounded by this Court more than a century ago, on
facts strikingly similar to the case at bar, becomes relevant once again:
"There would seem to be no stopping-place short of including all possible
cases of actual dependency, whatever the relation of the parties, and
notwithstanding the absence of even a moral obligation to support." Good
v. Towns, 56 Vt. 410, 415 (1883). So broad an expansion of the benefitted
class under the DSA ought to be left to the governmental branch principally
responsible for its enactment and development, the Legislature. See Clymer
v. Webster, 156 Vt. 614, 619, 596 A.2d 905, 908 (1991) (Legislature
enacted DSA to create cause of action where none had previously been
available under common law). Therefore, I respectfully dissent.
The operative language in the DSA provides: "A spouse, child,
guardian, employer or other 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." 7 V.S.A. §
501(a). In Langle v. Kurkul, 146 Vt. 513, 515-16, 510 A.2d 1301, 1302-03
(1986), this Court concluded that the general term "other persons" must be
interpreted with reference to the specific list of persons that precedes
it, i.e., "spouse, child, guardian, employer." We held that the term
"other person" includes only those "similar in nature" to the persons
specifically listed. See Vermont Baptist Convention v. Burlington Zoning
Bd., 159 Vt. 28, 30, 613 A.2d 710, 711
(1992) (under principle of ejusdem generis, general term must be construed
to include only terms similar in nature to enumerated terms). As we
explained: "Since those persons listed in the Dram Shop Act stand in some
special relation to the intoxicated person, the use of the term `other
person' must mean someone who is similarly situated." Langle, 146 Vt. at
515-16, 613 A.2d at 1303 (emphasis added).
In light of the Court's holding in Langle, I cannot agree with the
majority that the meaning of "other person" remains an open question to be
reserved for another day. Although Langle did not explore the precise
nature of the requisite "special relation" to which it referred, it did, at
a minimum, foreclose the possibility that "other person" means any other
person who can demonstrate a loss of support. While other state courts
have, to be sure, construed their respective dram shop acts in this
open-ended fashion, see, e.g., Lefto v. Hoggsbreath Enters., 581 N.W.2d
855, 857 (Minn. 1998), this Court, at least, is on record as favoring a
more limited construction.
The actual meaning of the "special relation" referred to in Langle may
be traced to the statutory precursor of the current DSA, which this Court
definitively construed in Good. The version of the DSA at issue in that
case provided, in case of the death or injury of a person in consequence
of intoxication, a cause of action for any "person who is in any manner
dependent on such injured person for means of support, or a person on whom
such injured person is dependent." Good, 56 Vt. at 413 n.* (emphasis
added). The question in Good, as here, was whether a woman and her child
who had lived with but were not legally related to the injured person
could recover under the DSA.
The answer provided in Good was direct, clear, and compelling. "[W]e
think it should
be construed to mean a legal dependency only." Id. at 415. In so holding,
the Court noted that the alternative of allowing recovery to any person
"in any manner dependent" upon the injured party could encompass a
virtually unlimitable class. Id. Thus, the Court declined to read so
"latitudinarian a construction" into the statute. Id.
Although the language of the DSA has since evolved into its current
form, there is no evidence that the meaning ascribed to the statute in
Good has changed. All of the persons currently enumerated in the statute
enjoy an historically recognized legal relationship with the injured party
involving a level of dependence that would be directly impaired as a result
of the improper sale or furnishing of intoxicating liquor. See 15 V.S.A.
§§ 202, 291 (duty of married persons to support spouse); 15 V.S.A. §§ 202,
293, 294, 301 (duty of parents and stepparents to support minor child); 14
V.S.A. § 2653 (guardian's duty of care and maintenance of minor); see also
Ford v. Wagner, 395 N.W.2d 72, 74 (Mich. Ct. App. 1986) (holding that
"other person" under state dram shop act is limited to persons who, like
those specifically listed, have legal relationship with injured person).
Although not a familial bond, the employer-employee relationship has
similarly given rise to historically unique, reciprocal benefits and
obligations. See Lefto, 581 N.W.2d at 858 n.1 (Stringer, J., dissenting).
The majority's attempt to pigeon-hole the individual plaintiffs here
(with the exception of the decedent's biological daughter, Tessa) into the
class of legal dependents is unpersuasive. The law imposes no civil
obligation upon an adult child to support a parent, and 15 V.S.A. § 202
imposes criminal penalties for non-support only in the limited
circumstances where the parent is destitute and unable to support himself
or herself. Plaintiff Ken Thompson, decedent's father, has not shown that
he falls within this narrow exception. Accordingly, I would not
accord him standing under the Act. Similarly, there is no general legal
obligation so support an unmarried cohabitant or the children of an
unmarried cohabitant. Cf. 15 V.S.A. §§ 293, 296 (duty of stepparents to
support stepchild). The "man in the house" statute on which the majority
relies, 15 V.S.A. § 294, has never been held to create a legal duty of
support for an unmarried cohabitant or that person's child. Thus, it
falls well sort of the legal-dependency standard necessary for recovery
under the DSA.
Although the majority purports to leave for another day the question
of whether the DSA broadly extends to "other persons" who have no legally
recognized right of support, its holding this day provides a troublesome
answer. By significantly dimming the bright line of legal dependency, the
predictability essential to orderly application of the DSA is eroded.
Furthermore, far from benefitting the limited class of financial
dependents for whom the statute was clearly intended, the Court's
ambiguous expansion of claimants may dilute the potential judgment pool,
contrary to the interests of those the Legislature deemed most severely in
need.
Absent a clear legislative mandate expanding the definition of "other
persons" entitled to a cause of action under the DSA, I would --
consistent with the precedent of this Court -- limit the class of persons
entitled to recover under the DSA for loss of means of support to those who
were legally dependent on the injured party. The plaintiffs Ken Thompson,
Annette Potwin, and Ashley Thompson were not legally dependent on the
decedent. Therefore, I would affirm the judgment granting defendants'
motion to dismiss.
_______________________________________
Chief Justice
