Garcia v. Hargrove

• Decision Date: 01 May 1970
• Docket Number: No. 205,205
• Citation: 46 Wis.2d 724,176 N.W.2d 566
• Parties: Gloria GARCIA, Plaintiff-Appellant, v. Charles HARGROVE et al., Defendants and Third-Party Plaintiffs, Joseph Urso d/b/a Urso's Satellite Lounge, Defendant-Respondent, Roberto GARCIA, Third-Party Defendant.
• Court: Wisconsin Supreme Court

Page 566

176 N.W.2d 566

46 Wis.2d 724

Gloria GARCIA, Plaintiff-Appellant, v. Charles HARGROVE et al., Defendants and Third-Party Plaintiffs, Joseph Urso d/b/a Urso's Satellite Lounge, Defendant-Respondent, Roberto GARCIA, Third-Party Defendant.

No. 205.

Supreme Court of Wisconsin.

May 1, 1970.

This is an appeal by Gloria Garcia (hereinafter plaintiff), from an order sustaining the demurrer of Joseph Urso d/b/a Urso's Satellite Lounge (hereinafter defendant), to plaintiff's complaint for failure to state a cause of action.

The allegations of the complaint, admitted by the demurrer, are substantially as follows: The plaintiff is a resident of the city of Madison, Dane county, Wisconsin; the defendant sells and serves intoxicating beverages and fermented malt beverages; Urso's Satellite Lounge is so located that the defendant and his servants and agents knew or should have known that invitees usually come to his establishment by automobile; on the evening of September 8, 1968, one Roberto Garcia was a business invitee of the defendant, arriving at said establishment by driving his automobile; at that time the defendant and his servants and agents unlawfully, negligently and wrongfully sold and served intoxicating beverages and fermented malt beverages to Roberto Garcia in such amount that the defendant and his servants and agents, because of Roberto Garcia's apparent condition, knew or should have known would affect his physical and mental condition so as to make him unfit and incompetent to operate a motor vehicle safely and with reasonable care; shortly after leaving Urso's Satellite Lounge at or about 9:50 p.m. on the evening of September 8, 1968, Roberto Garcia's physical and mental condition was so affected by the intoxicating beverages and fermented malt beverages served to him as above described, as to cause said Roberto Garcia to unsafely and unreasonably drive his automobile so as to be a substantial factor in causing a collision with an automobile driven by one Charles Hargrove at or near the intersection of West Broadway and Falcon Circle, in the city of Monona, Dane county, Wisconsin; plaintiff was a guest passenger in the automobile driven by Roberto Garcia, and as a direct and proximate result of the above-described negligence of the defendant, the plaintiff sustained serious personal injuries. No claim is made that any criminal statute applies to the facts in this case.

Richard A. Heilprin, Madison, for appellant.

Robert J. Mueller, Madison, for respondent.

Paul E. Jorgensen, Racine, Ray T. McCann, Milwaukee, for Tavern League of Wis., Inc., Fox & Hack, Milwaukee, for Wis. Restaurant Assn. and Wis. State Hotel Assn., Everett J. Stats, Milwaukee, for State Brewers Assn., Schetter & Burbach, Milwaukee, for Wis. Tavern Keepers Assn., Kaftan, Kaftan, Kaftan & Kuehne, Green Bay, amici curiae.

CONNOR T. HANSEN, Justice.

The issue on this appeal is whether this court is now going to abrogate the common-law rule that it is not a tort to sell intoxicating liquor to able-bodied men, reverse prior case law of this court founded on this rule, and now hold that a seller of intoxicating liquor can be found liable, under principles of common-law negligence. We look upon this as a policy decision and we are not persuaded to reverse the position previously taken by this court.

The common-law rule referred to is set forth in 48 C.J.S. Intoxicating Liquors § 430, p. 716:

'At common law, and apart from statute, no redress exists against persons selling, giving, or furnishing intoxicating liquor, or their sureties, for resulting injuries or damages due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constitutes a direct wrong or constitutes actionable negligence, and, there being no remedy in favor of the person injured, no remedy may be asserted by his surviving spouse. This rule is based on the theory that the proximate cause of the injury is the act of the purchaser in drinking the liquor and not the act of the vendor in selling it. * * *'

See 45 Am.Jur.2d, Intoxicating Liquors, p. 852, sec. 552.

Plaintiff concedes the law of this state bars her cause of action since there is no common-law liability with respect to vendors of intoxicating liquors. Dillon v. Linder (1874), 36 Wis. 344; Demge v. Feierstein (1936), 222 Wis. 199, 268 N.W. 210; Seibel v. Leach (1939), 233 Wis. 66, 288 N.W. 774; Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis.2d 344, 117 N.W.2d 347.

The present Wisconsin law was stated in Seibel v. Leach, supra, 233 Wis. at 67, 68, 288 N.W. at 774, 775:

'The injury to the plaintiff was the result of an act of the defendant Leach and the responsibility for that act under the law is not visited upon Landerman or his surety. Under the common law it is not an actionable wrong either to sell or to give intoxicating liquors to an able-bodied man. * * *

'* * * Courts may in proper instances apply old rules to newly created conditions, but they cannot create new rules for conditions already regulated. The common law rule holds the man who drank the liquor liable, and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink. The decision in Demge v. Feierstein, supra, sets forth the law controlling in the case at bar.'

In Farmers Mut. Automobile Ins. Co. v. Gast, supra, this court reaffirmed the decisions of Demge and Seibel and said that to hold plaintiff's complaint stated a cause of action in common-law negligence would require the overruling of previous decisions which this court then declined to do. So to the decisions of Dillon v. Linder, supra, Demge v. Feierstein, supra, and Seibel v. Leach, supra, is added the recent decision of Gast.

The plaintiff suggests that in Farmers Mut. Automobile Ins. Co. v. Gast, supra, this court indicated a willingness to change the rule adhered to in Seibel. We do not take issue with this observation. In Gast the action was brought by an automobile liability insurer against the vendor for damages paid in settlement of a claim for injuries received by a third person in an automobile accident in which the intoxicated minor was driving the insured's automobile. In effect, the claim of the insurance carrier was in the nature of subrogation. Regardless of who might receive the money, the facts giving rise to the damages in Gast present a stronger case for abandoning the common-law rule than do the facts in the present case. In Gast, the defendant vendor had sold the intoxicating liquor to the minor and was subsequently convicted of this statutory offense, while in this case liability would be premised on the fact defendant and his agents knew or should have known that serving Roberto Garcia would make him unfit and incompetent to safely operate a motor vehicle.

Counsel for both parties and the several briefs of amicus curiae have presented a most helpful review of the recent case law throughout the country. We have examined and considered the authorities cited. The landmark cases in which states have abrogated the common-law rule are Waynick v. Chicago's Last Dept. Store (7th Cir. 1959), 269 F.2d 322, 77 A.L.R.2d 1260; Rappaport v. Nichols (1959), 31 N.J. 188, 156 A.2d 1. Both of these cases were decided prior to Farmers Mut. Automobile Ins. Co. v. Gast, supra. Although Gast indicates approval of the rationale in Rappaport, it was found not to be sufficiently persuasive to result in overruling the previous decisions of this court. Since Waynick and Rappaport, several states have developed their case law on the rationale of those cases and a lesser number of states have decided to abide by the common-law rule.

In considering the case law of other states it is difficult to make a comparable analysis with the situation we find in Wisconsin. Some have dramshop laws, in some they have been repealed, others have never had them, and we find a variety of civil damage statutes. To the best of our knowledge none have comparative negligence. In some states, the problem is considered and deferred to the legislature, and many approach from the standpoint of 'proximate cause.' Whatever choice we make for Wisconsin is supportable by case authority elsewhere. See 75 A.L.R.2d 833, 73--78 A.L.R.2d Later Case Service (1968).

The rationale of the common-law, i.e., that the drinking was the proximate cause of injury, not the sale, was the basis for the holding in Seibel; however, as pointed out in Gast, this reasoning has been heavily criticized.

'It may be urged that apart from statute the vendor should be held responsible, if found negligent, under the theories expressed by the court itself in its opinion. The particular precedents mentioned which were developed in the horse and buggy days are not controlling today. It is well settled negligence law that one who acts must do so with reasonable care. The grave danger connected with the operation of automobiles by drunken drivers under modern traffic conditions is a matter of common knowledge. The vital point of inquiry would seem to be whether the vendor knew or ought to have known that the vendee would drive on the public highways in an intoxicated condition. If he has such actual or constructive knowledge, it would seem that we have strong, if not conclusive, evidence of negligence. It would require a gross distortion of public policy to limit this liability by the proximate cause doctrine * * *' Campbell, Work of the * * *' Campbell, Work of the 110, 117.

In addition, this court, subsequent to Seibel removed the element of foreseeability from causation and grounded that element of negligence entirely upon the acts complained of being a substantial factor in causing the harm.

'If it be kept in mind that foreseeability under our law as it now stands applies only to the question of negligence or the failure to exercise ordinary care and not to limit the liability for the consequences...