Anderson v. Moulder

Decision Date18 May 1990
Docket NumberNo. 19246,19246
Citation394 S.E.2d 61,183 W.Va. 77
CourtWest Virginia Supreme Court
PartiesDavid S. ANDERSON, Administrator of the Estate of Sean David Anderson, Deceased, Plaintiff, v. David Scott MOULDER, Mercer Wholesale Company, a West Virginia Corporation, and William R. Keesee, III, Defendants. and David S. ANDERSON, Administrator of the Estate of Sean David Anderson, Deceased, Plaintiff, v. David Scott MOULDER, Defendant and Third-Party Plaintiff, v. MERCER WHOLESALE COMPANY, a West Virginia Corporation, Third-Party Defendant.

Syllabus by the Court

1. Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury.

2. The sale of beer to a person under twenty-one years of age in violation of W. Va.Code, 11-16-18(a)(3), gives rise to a cause of action against the licensee in favor of a purchaser or a third party injured as a proximate result of the unlawful sale.

3. " 'A prima facie case of actionable negligence is that state of facts which will support a jury finding that the defendant was guilty of negligence which was the proximate cause of plaintiff's injuries, that is, it is a case that has proceeded upon sufficient proof to the stage where it must be submitted to a jury and not decided against the plaintiff as a matter of law.' Pt. 6, syllabus, Morris v. City of Wheeling, 140 W.Va. 78 [82 S.E.2d 536 (1954) ]." Syllabus Point 2, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960).

4. A licensee who sells beer to one not of legal drinking age in violation of W.Va. Code, 11-16-18(a)(3), may rebut the prima facie showing of negligence arising from the unlawful sale by demonstrating that the purchaser appeared to be of age and that the vendor used reasonable means of identification to ascertain his age. Whether the licensee was negligent in making the sale is a question of fact that ordinarily must be resolved by a jury.

5. " 'In a certified case, this Court will not consider certified questions not necessary to a decision of the case.' Syllabus Point 6, West Virginia Water Serv. Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957)." Syllabus Point 7, Shell v. Metropolitan Life Ins. Co., 181 W.Va. 16, 380 S.E.2d 183 (1989).

6. The doctrine of complicity may be stated as follows: One who actively contributes to the intoxication of another is barred from recovering damages under a dramshop act for injuries caused by such intoxication.

7. The doctrine of complicity does not bar an injured minor's civil action against a licensee for selling beer to such minor in violation of W.Va. Code, 11-16-18(a)(3). However, an underage purchaser's contributory negligence, if proven to be a proximate cause of his injuries, may be taken into consideration at the trial of such action.

8. "A passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met: (1) the driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party's injuries, and (2) the passenger's conduct substantially encouraged or assisted the driver's alcohol or drug impairment." Syllabus Point 12, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380, 64 A.L.R.4th 255 (1987).

9. Where an automobile passenger is injured as a result of the driver's intoxication and sues a commercial vendor for negligently providing intoxicating beverages to the driver, the vendor may assert at trial that the passenger was contributorily negligent in substantially assisting, encouraging, or contributing to the driver's intoxication.

10. Whether and to what extent the plaintiff in a civil action was contributorily negligent are ordinarily questions of fact to be resolved by the jury.

11. " 'To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.' Syl. Pt. 3, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954)." Syllabus Point 4, faddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986).

12. " 'A person is not liable for damages which result from an event which was not expected and could not reasonably have been anticipated by an ordinarily prudent person.' Syl. Pt. 6, Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145 (1954)." Syllabus Point 5, Haddox v. Suburban Lanes, Inc., 176 W.Va. 744, 349 S.E.2d 910 (1986).

13. A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.

14. "Where two or more persons are guilty of separate acts of negligence which in point of time and place concur, and together proximately cause injury to another, they are guilty of concurrent negligence for which they may be held jointly and severally liable in an action by the injured person or, in case death results therefrom, by his personal representative." Syllabus Point 1, Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961).

15. In appropriate circumstances, one who sells beer or alcoholic beverages to a minor may reasonably be expected to foresee that the underage purchaser will share such beverages with others not of legal drinking age, who will, in turn, become intoxicated and cause injury to themselves or others.

16. Factors to be considered in determining whether a vendor of alcoholic beverages might reasonably foresee that someone other than an underage purchaser would consume the beverages include (1) the quantity and character of the beverages purchased; (2) the time of day of the sale; (3) the vendor's observation of other persons on the premises or in a vehicle with the underage purchaser; (4) statements made by the purchaser; and (5) any other relevant circumstances of the sale or of the vendor's knowledge.

17. " 'Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.' Syl. pt. 1, Ratlief v. Yokum , 280 S.E.2d 584 (W.Va.1981), quoting, syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).

Anthony R. Veneri, Princeton, for David S. Anderson.

Ben B. White, III, Princeton, for David Scott Moulder.

David L. White, Sanders, Watson & White, David Katz, Bluefield, for William R. Keesee, III and Mercer Wholesale Co.

MILLER, Justice:

This case comes before us upon certified questions from the Circuit Court of Mercer County pursuant to W.Va. Code, 58-5-2 (1967) and Rule 3(b) of the West Virginia Rules of Appellate Procedure. The principal issue is whether the sale of beer to a minor by a licensed vendor gives rise to a civil action against such vendor for injuries suffered by the underage purchaser as a result of his own or another's intoxication. We conclude that such a cause of action does exist and that damages may be recovered from the vendor where the purchaser's injuries are a proximate result of the sale.


The stipulated facts are rather brief. On September 1, 1988, and again on September 2, 1988, William R. Keesee, III, an employee and agent of Mercer Wholesale Company, a licensed beer distributorship, allegedly sold a keg of beer to seventeen-year-old Sean David Anderson. On September 5, 1988, Anderson died in an automobile accident while a passenger in a vehicle driven by eighteen-year-old David Scott Moulder. Both Anderson and Moulder were allegedly intoxicated at the time of the accident due to their consumption of the beer Anderson purchased from Keesee.

Anderson's estate instituted a wrongful death action in the Circuit Court of Mercer County against Moulder, Mercer Wholesale Company, and Keesee. 1 In April, 1989, Mercer Wholesale Company and Keesee (the licensees) moved to dismiss the claims against them on the ground that the pleadings failed to state a claim upon which relief could be granted. W.Va.R.Civ.P. 12(b)(6).

The circuit court subsequently certified to us the following questions: (1) whether the sale of beer to Anderson in violation of the Nonintoxicating Beer Act, 2 W.Va. Code, 11-16-1, et seq., gave rise to a cause of action against the licensees; (2) whether the sale of beer to Anderson gave rise to a common law negligence action against the licensees; (3) whether the doctrine of complicity precludes recovery by Anderson's estate; and (4) whether the sale of the beer to Anderson could have been found to have been the proximate cause of his death. 3 The circuit court answered all of the questions, except (3), in the affirmative. We will address these questions in the order posed.

II. Breach of Statutory Duty

At common law, it was recognized that the sale of liquor to ordinary able-bodied men did not give rise to any civil liability against the vendor for injuries caused by intoxication, the reason being that the drinking of the liquor, and not the selling of it, was viewed as the proximate cause of any subsequent injury. E.g., Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976); Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969). See generally 45 Am.Jur. 2d Intoxicating Liquors § 553 (1969); 48A C.J.S. Intoxicating Liquors § 428 (1981); Annot., 98 A.L.R.3d 1230 (1980); Annot., 97 A.L.R.3d 528 (1980).

To ameliorate this hardship in the common law, many jurisdictions enacted statutes, common known as "civil damage acts" or "dramshop acts," which...

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