Aanenson v. Bastien, No. 880313

CourtUnited States State Supreme Court of North Dakota
Citation438 N.W.2d 151
Decision Date21 March 1989
Docket NumberNo. 880313
PartiesJon B. AANENSON, Plaintiff and Appellant, v. James E. BASTIEN, and Terry Kopp Bastien, d/b/a The Lower 48, Defendants and Appellees. Civ.

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438 N.W.2d 151
Jon B. AANENSON, Plaintiff and Appellant,
James E. BASTIEN, and Terry Kopp Bastien, d/b/a The Lower
48, Defendants and Appellees.
Civ. No. 880313.
Supreme Court of North Dakota.
March 21, 1989.

Stefanson, Landberg & Plambeck, Moorhead, Minn., for plaintiff and appellant; argued by Dan D. Plambeck.

Jeffries, Olson & Flom, Moorhead, Minn., for defendants and appellees; argued by Erik J. Askegaard.

ERICKSTAD, Chief Justice.

Jon B. Aanenson commenced a dram shop action against James E. Bastien and Terry Kopp Bastien, d/b/a The Lower 48, to recover damages for injuries he sustained in a motorcycle accident that occurred on October 26, 1985. Aanenson alleged that The Lower 48 served alcoholic beverages to Brian Wolfgram when he was already obviously intoxicated and that after Wolfgram left The Lower 48, he drove his motorcycle east on Cass County 14 and collided with the motorcycle operated by Aanenson which was stopped at or near the intersection of Highway 81.

This action was venued in the District Court for Cass County, East Central Judicial District, North Dakota, and was duly assigned to a district court judge. Upon defendant's motion for summary judgment, the court entered an order dismissing plaintiff's action and a judgment was entered accordingly. The court reasoned that "complicity" was a defense to a dram shop action in North Dakota. As Aanenson had purchased drinks for Wolfgram, he actively participated in Wolfgram's intoxication and was, therefore, a non-innocent party and precluded, as a matter of law, from recovery under North Dakota's Dram Shop Act. Aanenson has appealed from the judgment dismissing his complaint. We reverse and remand.

The issues on appeal are asserted to be:

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1. Whether or not "complicity" is a defense to Aanenson's dram shop action; and

2. Whether or not Aanenson's conduct in purchasing rounds for the intoxicated person constituted complicity so as to bar recovery under the Dram Shop Act.

Neither party disputes the facts pertinent to this appeal. Early in the afternoon on October 26, 1985, Aanenson and Wolfgram met at Rick's Bar in Fargo, North Dakota. They remained together until the accident occurred at approximately 7:30 p.m. It was apparently a pleasant fall day and the two decided to drive around on their motorcycles. Along the way, they stopped at four additional bars, namely: Kirby's Bar and Ralph's Corner, both in Moorhead, Minnesota, the Knickerbocker Liquor Locker in Hickson, North Dakota, and The Lower 48 near Wild Rice, North Dakota. At Rick's, Kirby's, and Ralph's, Aanenson and Wolfgram, together with a mutual friend, Randy Winroth, took turns paying for the drinks they ordered. At the bar in Hickson and at The Lower 48, Aanenson and Wolfgram continued that practice.

Aanenson and Wolfgram left The Lower 48 at approximately the same time, with Aanenson driving his motorcycle in the lead. Wolfgram was having a bit of trouble with his motorcycle and Aanenson pulled ahead. Aanenson stopped at the stop sign at the intersection of County Road 14 and Highway 81. Wolfgram collided with him from behind.

As a result of his injuries, Aanenson brought a dram shop action against The Lower 48. The parties stipulated that The Lower 48 could commence "a Third-Party impleader action pursuant to Rule 14" of the North Dakota Rules of Civil Procedure, against the Knickerbocker Liquor Locker and Ralph's Corner.

At the time of the accident which occurred on October 26, 1985, North Dakota's dram shop statute was codified in section 5-01-06 of the North Dakota Century Code as follows:

"Recovery of damages resulting from intoxication. Every spouse, child, parent, guardian, employer, or other person who is injured by any intoxicated person, or in consequence of intoxication, has a claim for relief against any person who caused such intoxication by disposing, selling, bartering, or giving away alcoholic beverages contrary to statute for all damages sustained, and in the event death ensues, the survivors of the decedent are entitled to damages defined in section 32-21-02." 1

The "contrary to statute" requirement is fulfilled by violation of section 5-01-09, N.D.C.C., which reads:

"DELIVERY TO CERTAIN PERSONS UNLAWFUL. Any person delivering alcoholic beverages to a person under twenty-one years of age, an habitual drunkard, an incompetent, or an intoxicated person is guilty of a class A misdemeanor, subject to the provisions of section 5-01-08, 5-01-08.1 and 5-01-08.2."

The question of whether or not complicity constitutes a defense to a dram shop action is one of first impression in North Dakota. In states that apply the rule of complicity, it has been held that: "[O]ne who actively contributes to or procures the intoxication of the inebriate is precluded from recovery." Nelson v. Araiza, 69 Ill.2d 534, 14 Ill.Dec. 441, 445, 372 N.E.2d 637, 641 (1977).

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The interpretation of a statute is a question of law, fully reviewable by the Court. Ladish Malting Co. v. Stutsman County, 351 N.W.2d 712 (N.D.1984). In determining whether or not complicity bars recovery under section 5-01-06, N.D.C.C., we look first to the language of the statute. Milbank Mut. Ins. Co. v. Dairyland Ins. Co., 373 N.W.2d 888 (N.D.1985). "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears." Wills v. Schroeder Aviation, Inc., 390 N.W.2d 544, 545 (N.D.1986); section 1-02-02, N.D.C.C. An objective reading of section 5-01-06, N.D.C.C., does not plainly indicate that complicity bars recovery.

"If a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the Legislative intent is presumed clear from the face of the statute." Milbank, supra, 373 N.W.2d at 891; section 1-02-05, N.D.C.C. Section 5-01-06, N.D.C.C., clearly allows "[e]very spouse, child, parent, guardian, employer, or other person" to bring a claim for relief and unambiguously provides two grounds for recovery of damages: (1) injury "by an intoxicated person"; or (2) injury "in consequence of intoxication." Meshefski v. Shirnan Corp., 385 N.W.2d 474 (N.D.1986). In Iszler v. Jorda, 80 N.W.2d 665, 667 (N.D.1957), this Court said:

"The statute authorizes an award of damages not only for certain injuries by an intoxicated person but also for injuries in consequence of the intoxication of any person."

When the wording of the statute is clear and free of all ambiguity, we have said that it is improper for the courts to attempt to construe the provisions so as to legislate additional requirements or proscriptions which the words of the provisions do not themselves provide. Haggard v. Meier, 368 N.W.2d 539 (N.D.1985); section 1-02-05, N.D.C.C. The legislature made no exception for complicity in section 5-01-06, N.D.C.C.

A statute must be construed to fulfill the objective and intent of the legislature. Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D.1986). "We believe the Legislature intended to fix liability on the maker of an illegal sale where such sale causes the intoxication of the person doing the damage." Fladeland v. Mayer, 102 N.W.2d 121, 123 (N.D.1960).

In Iszler v. Jorda, 80 N.W.2d at 667-668, we said:

"The liability created by the Civil Damage Act has no relation to any common law liability, or to any theory of tort. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law. The act is remedial in character and should be construed to suppress the mischief and advance the remedy. It clearly gives a cause of action to every person who is injured in person, property or means of support as the result of the intoxication of any person when the intoxication was caused by the use of alcoholic beverages sold or given away in violation of law." [Cites omitted.]

While this is the first time this Court has been asked to consider whether or not complicity is a defense to a dram shop action, we have previously determined that comparative negligence provides no defense to such claim. In Feuerherm v. Ertelt, 286 N.W.2d 509, 511 (N.D.1979), we said:

"This statute is sui generis. It creates an entirely new cause of action unrelated to and different from any other. Iszler v. Jorda, supra. By enacting this statute it was the intention of our Legislature to create liability in a class of cases where no liability existed under common law. This liability is imposed not upon finding fault in the sense of any wrongful intent or negligent conduct on the part of the defendant, but upon finding a violation of Section 5-01-09, N.D.C.C., which prohibits the sale of alcoholic beverages to an intoxicated person, among others. Because liability was imposed upon the Nu-Bar for violating Section 5-01-09, N.D.C.C., without regard to wrongful intent or negligent conduct on its part, there can be no defense based upon the alleged negligent conduct of the

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plaintiff, Ernest Feuerherm. We therefore hold that the North Dakota Comparative Negligence Law, Section 9-10-07, N.D.C.C., does not apply to actions brought under the Dram Shop Act. By so holding we are in accord with other jurisdictions that have held that contributory negligence, comparative negligence, or assumption of risk are not defenses to a dram-shop action. Turk v. Long Branch Saloon, Inc., 280 Minn. 438, 159 N.W.2d 903 (1968); Overocker v. Retoff, 93 Ill.App.2d 11, 234 N.E.2d 820 (1968); Genesee Merchants Bank & Trust Co. v. Bourrie, 375 Mich. 383, 134 N.W.2d 713 (1965)."

The negligent conduct alleged to have been committed by Feuerherm was that he and the intoxicated person were involved in an altercation at a bar, rendering Feuerherm permanently and totally disabled from working at his trade as a brick mason. Feuerherm, 286 N.W.2d at 510. The complicitous conduct alleged to have been committed by Aanenson in this case was that...

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