Alegria v. Payonk

• Citation: 101 Idaho 617,619 P.2d 135
• Decision Date: 26 September 1980
• Docket Number: No. 12858,12858
• Parties: Albert I. ALEGRIA, individually and as spouse, and Raymond A. Alegria, Joseph Alegria and Isabel Bunce, as the children and heirs at law of Marie Josephine Alegria, deceased, Plaintiffs-Appellants, v. Lawrence Paul PAYONK, John Forbis and Lorene Golling, individually and as joint-venturers, partners, or d/b/a John's Barn, John Doe 1, 2, 3, 4, 5, and XYZ Corporation, Bobby Catlett and Charles Gilbert, individually and as joint-venturers, partners, or d/b/a The Office, John Doe 6, 7, 8, 9, 10, and ABC Corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 135

619 P.2d 135

101 Idaho 617

Albert I. ALEGRIA, individually and as spouse, and Raymond A. Alegria, Joseph Alegria and Isabel Bunce, as the children and heirs at law of Marie Josephine Alegria, deceased, Plaintiffs-Appellants, v. Lawrence Paul PAYONK, John Forbis and Lorene Golling, individually and as joint-venturers, partners, or d/b/a John's Barn, John Doe 1, 2, 3, 4, 5, and XYZ Corporation, Bobby Catlett and Charles Gilbert, individually and as joint-venturers, partners, or d/b/a The Office, John Doe 6, 7, 8, 9, 10, and ABC Corporation, Defendants-Respondents.

No. 12858.

Supreme Court of Idaho.

Sept. 26, 1980.

Rehearing Denied Nov. 26, 1980.

Phillip M. Barber, of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for plaintiffs-appellants.

Perce E. Hall, of Hall & Friedly, Mountain Home, for defendants-respondents John Forbes and Lorene Golling.

Francis H. Hicks, of Hicks & Kevan, Mountain Home, for defendants-respondents Bobby Catlett and Charles Gilbert.

David D. Goss, of Risch, Goss & Insinger, Boise, for defendant-respondent Lawrence Paul Payonk.

DONALDSON, Chief Justice.

This case is before us on appeal from an order granting summary judgment against plaintiffs-appellants in favor of defendants-respondents liquor vendors.

On December 2, 1973, seventeen year old Lawrence Payonk consumed quantities of beer in taverns known as "John's Barn" and "The Office." Later in the evening, while driving in an allegedly intoxicated condition, Payonk collided with a car in which Marie Alegria was a passenger. Mrs. Alegria was killed in the accident and her husband, Albert Alegria, was injured. Albert Alegria and the children of decedent filed suit against Payonk and the owners and employees of the two taverns for the injuries sustained by Mr. Alegria and for the death of Marie Alegria. The material allegations of plaintiffs' complaint are, in substance, that defendants sold, served and dispensed alcoholic beverages to Payonk, notwithstanding that defendants knew or should have known that Payonk was under the legal drinking age of nineteen years and knew that he was actually, apparently and obviously intoxicated at the time so served; that the auto collision occurred as a result of the intoxication of Payonk, which intoxication resulted from consumption of the alcoholic beverages negligently served to him by defendants; and that the negligent acts of defendants were the actual and proximate cause of the death of decedent and the injuries and damages sustained by plaintiffs.

Pursuant to motion the district court ruled that the decision in Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), compelled the conclusion that as a matter of law the vending of intoxicants cannot be a proximate cause of damage to a third person and accordingly granted summary judgment against plaintiffs.

Construing the facts and all reasonable inferences from the evidence in favor of plaintiffs-appellants, as we must in reviewing an order of summary judgment entered in favor of defendants, Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978), the narrow issue presented is whether in this state the sale of alcoholic beverages by a licensed vendor of such beverages to an actually, apparently and obviously intoxicated person known to be a minor can be a contributing actual and proximate cause of the damage resulting to a third person from the subsequent negligent operation of an automobile by such intoxicated minor, thereby giving rise to a cause of action against such vendor.

In Meade v. Freeman, supra, this Court was first presented with the question whether the sale of intoxicants could, under any circumstances, visit upon the seller liability for injury tortiously caused by the consumer of such intoxicants. The question was answered by the Court in the negative:

"(Plaintiffs') theory runs squarely in the face of almost all authority. It is nearly universally held (citations omitted) that it is the consumption of intoxicants that constitutes the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer and that the vending of intoxicants is too remote to be considered a proximate cause." (emphasis added) 93 Idaho at 392, 462 P.2d at 57.

In the intervening decade since Meade was decided, four of the cases upon which the majority relied have been overruled. Cole v. Rush, 289 P.2d 450 (Cal.1955) and Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949) were overruled by the California Supreme Court in the unanimous decision handed down in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971). Lee v. Peerless Ins. Co., 183 So.2d 328 (La.1966) was overruled by the Louisiana Supreme Court in Pence v. Ketchum, 326 So.2d 831 (La.1976), and finally, in Lewis v. State, 256 N.W.2d 181 (Iowa 1977), the Iowa Supreme Court, also by a unanimous court, overruled Cowman v. Hansen, 250 Iowa 358, 92 N.W.2d 682 (1958).

Appellants contend the time has come for this Court to reexamine the wisdom of a rule which in all cases precludes the factfinder from considering the sale of intoxicants as a possible proximate cause of subsequent injury occasioned to others by the drunken consumer. In their view, the rule is anachronistic in an age where death and destruction occasioned by drunken driving is so tragically frequent. They urge that in the case of an already intoxicated minor, the progression of sale-consumption-aggravated drunkenness-driving-injury flows so logically as to make continued application of the rule indefensibly at odds with the well-settled principle that, where reasonable minds could draw differing inferences, questions of negligence and proximate cause are normally to be resolved by the trier of fact. See, e. g., Idaho State University v. Mitchell, 97 Idaho 724, 552 P.2d 776 (1976); Smith v. City of Preston, 97 Idaho 295, 543 P.2d 848 (1975); Fairchild v. Olsen, 96 Idaho 338, 528 P.2d 900 (1974). We agree.

The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injuries; and (4) actual loss or damage. Brizendine v. Nampa Meridian Irrigation Distr., 97 Idaho 580, 548 P.2d 80 (1976).

In general, it is held that "one owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury." (emphasis added) Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979). And in Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974), this Court stated:

" 'Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him, and to do his work, render services or use his property as to avoid such injury.' " 95 Idaho at 935, 523 P.2d at 538, quoting from Whitt v. Jarnagin, 91 Idaho 181, 188, 418 P.2d 278, 285 (1966).

In determining whether such duty has been breached by the allegedly negligent party, his conduct is measured against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965). We perceive no justification for excusing the licensed vendor of intoxicants from the above general duty which each person owes all others in our society.

We come now to the question whether the jury in the present case should have been allowed to determine whether respondents, engaged in the daily business of selling intoxicants for consumption on their premises, could reasonably have foreseen or anticipated that their sale of intoxicants to Payonk, whom they knew or should have known to be a minor and whom they knew or should have known to be actually, apparently and obviously intoxicated, might result in injury to appellants; and whether the conduct of respondents in so acting fell below that of a person of ordinary prudence acting under the same circumstances and conditions.

In Nagel v. Hammond, supra, it was held that

" 'where the evidence on material facts is conflicting, or where on undisputed facts reasonable and fairminded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence ... and proximate cause is one of fact to be submitted to the jury and not a question of law for the court; if, upon all the facts and circumstances, there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury.' " 90 Idaho 96, 102, 408 P.2d 468, 472 (1965), quoting from Stowers v. Union Pac. R. Co., 72 Idaho 87, 237 P.2d 1041 (1951).

The Oregon Supreme Court, faced with an appeal from a judgment of involuntary nonsuit in Kirby v. Sonville, supra, framed the central issue as

" 'whether plaintiff's injury and the manner of its occurrence (were) so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur.' " 594 P.2d at 822, quoting from Stewart v. Jefferson Plywood Co., 469 P.2d 783 (Or.1970).

In the present case, it is alleged (1) that respondents liquor vendors ¹ sold further intoxicants to a minor at a time when he was already actually, apparently and obviously intoxicated, with actual or constructive knowledge of the minor consumer's age and condition; and (2) that such conduct on the part of respondents constituted an actionable breach of the general duty owed appellants, as members of society, to use reasonable care to avoid injury to others in a situation in which injury was foreseeable should respondents fail to use such care.

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