Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1988)
Annotate this CaseNo. 87-2730.
United States Court of Appeals, Ninth Circuit.
Before FLETCHER and BEEZER, Circuit Judges, and JOHN C. COUGHENOUR,* District Judge.
MEMORANDUM**
This is a Federal Tort Claims Act case in which Anacleta Pena asserts that the United States government is responsible for her son's death. Pena's son was hit and killed by a vehicle driven by Navy serviceman Richard Lee Brown who had previously been drinking beer at an all-day picnic at a naval installation. After a court trial on stipulated facts, the district court concluded that the United States was not liable for the accident because it did not serve the beer Brown drank at the picnic. Pena appealed the district court's judgment. We affirm.
Pena's theory of liability is based on Cantor v. Anderson, 126 Cal. App. 3d 124, 178 Cal. Rptr. 540 (1981). In Cantor, the California Court of Appeal created a narrow exception to the "sweeping immunity" from liability California statutes1 provide to purveyors of alcoholic beverages. Strang v. Cabrol, 37 Cal. 3d 720, 725, 209 Cal. Rptr. 347, 350 (1984). Cantor held that such immunity does not protect a host from liability for injuries caused by an intoxicated guest who consumed alcohol served by the host if the host served the alcohol knowing that his guest "is one who because of some exceptional physical or mental condition should not be served alcoholic beverages and is or should have been aware of the risks included in providing such person with alcohol." 126 Cal. App. 3d at 132, 178 Cal. Rptr. at 546.
At trial, Pena produced no evidence that the United States actually served alcohol to Brown. Based on this failure of proof, the district court concluded that Pena had not presented facts sufficient to establish liability under Cantor. Pena challenges this conclusion, arguing that it is irrelevant whether she established that Navy personnel served Brown beer.2 In essence, she asks us to conclude that Cantor burdened the Navy with an affirmative duty to prevent Brown from consuming alcohol.
Pena cites no California authority supporting her position, and we have found none. Cantor itself did not establish such a duty. Liability under Cantor must be premised on an individual's purposeful service of alcoholic beverages to a specific person who should not consume alcohol, and the server must know about the consumer's special condition. To accept Pena's position would be to extend liability beyond these clear bounds. Several reasons prevent us from doing so. First, the Cantor court itself stated, " [o]ur decision is a narrow one." 126 Cal. App. 3d at 132, 178 Cal. Rptr. at 546. Second, no California court has followed Cantor, although several have considered and rejected its application. See, e.g., Hepe v. Paknad, 199 Cal. App. 3d 412, 244 Cal. Rptr. 823 (1988), Bass v. Pratt, 177 Cal. App. 3d 129, 222 Cal. Rptr. 723 (1986), Andre v. Ingram, 164 Cal. App. 3d 206, 210 Cal. Rptr. 150 (1985).3 Finally, as the Hepe court emphasized, Cantor is not based upon firm legal reasoning. 199 Cal.App.3d at ----, 244 Cal. Rptr. at 827-28. Accordingly, the district court correctly determined that the United States cannot be held liable for the death of the Pena's son.
AFFIRMED.
FLETCHER, Circuit Judge, concurring:
I concur in the above result.
The Honorable John C. Coughenour, United States District Judge for the Western District of Washington, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
The relevant statutes are California Civil Code Sec. 1714 and California Business & Professions Code Sec. 25602. Section 1714, as amended in 1978, provides in pertinent part:
(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah's Club (16 Cal.3d 313), and Coulter v. Superior Court (--- Cal.3d ----) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.
Section 25602 contains similar language which the legislature added by amendment in 1978.
Pena also offers a number of arguments supporting a different proposition--that she need not prove "the identity of the person who handed Brown beer." These arguments are irrelevant, however, for they assume the existence of the very fact Pena failed to prove, i.e., that Navy personnel actually served Brown beer. Thus, as far as this case is concerned, it makes no difference whether a plaintiff need not establish the identity of the particular person who committed the wrongful act, or whether knowledge of agents who commit acts may be imputed to principals. These arguments mean nothing without proof that some person actually committed a wrongful act
In the most recent case, Hepe v. Paknad, 199 Cal. App. 3d 412, 244 Cal. Rptr. 823 (1988), the court observed that the California Supreme Court held in Strang v. Cabrol, 37 Cal. 3d 720, 209 Cal. Rptr. 347 (1984), that the only exception to immunity for alcohol providers after the 1978 amendments to California Civil Code Sec. 1714 and Business & Professions Code Sec. 25602 is for sale of alcohol to obviously intoxicated minors, an exception that was expressly created by the legislature. Id. at 725, 209 Cal. Rptr. at 350. Therefore, the Hepe court questioned the continuing validity of Cantor and refused to apply it to the facts before the court. Hepe, 199 Cal.App.3d at ---, 244 Cal. Rptr. at 827-28. ("We are disinclined to expand the Cantor decision, which does not have a sound statutory basis.") California courts, not this court, should be the first to extend Cantor
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