Arant v. G.H., Inc.

• Decision Date: 09 September 1988
• Docket Number: No. 87-094,87-094
• Citation: 428 N.W.2d 631,229 Neb. 729
• Parties: Steven J. ARANT, Appellant, v. G.H., INC., doing business as Senor Matias Restaurant and Lounge, Appellee.
• Court: Nebraska Supreme Court

Page 631

428 N.W.2d 631

229 Neb. 729

Steven J. ARANT, Appellant, v. G.H., INC., doing business as Senor Matias Restaurant and Lounge, Appellee.

No. 87-094.

Supreme Court of Nebraska.

Sept. 9, 1988.

Syllabus by the Court

Legislature: Supreme Court: Public Policy. When the Legislature has spoken on a particular issue, generally it is not up to this court to disagree with its decisions on a purely policy basis.

Ronald L. Brown, of Brown Law Offices, P.C., Omaha, for appellant.

Gary L. Hoffman and Michael A. Fortune, of Erickson & Sederstrom, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

The plaintiff has appealed the judgment of the district court which dismissed his petition after sustaining the defendant's demurrer. Plaintiff asks that we impose dramshop liability by judicial fiat.

Plaintiff's amended petition alleged that on March 13, 1986, he was involved in an automobile accident in which a Robert Wondra suddenly swerved his oncoming vehicle into the path of plaintiff's automobile, resulting in a collision and injuries to the plaintiff. It was further alleged that Wondra was intoxicated at the time of the collision and that the defendant, doing business as Senor Matias Restaurant and Lounge, caused and contributed to Wondra's intoxication by selling him alcohol when defendant knew or should have known that Wondra was intoxicated and would pose an unreasonable risk to other drivers and pedestrians.

This court considered the issue of dramshop liability in Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976). In that case, the court specifically declined to judicially create dramshop liability in Nebraska:

[I]n the final analysis, the controlling considerations are public policy and whether the court or the Legislature should declare it. We believe that the decision should be left to the Legislature. The Legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interest of specific sectors.

Id. at 505, 244 N.W.2d at 70. To date, the Legislature has not adopted liability for tavern owners, nor has this court changed its position on the issue since Holmes was decided in 1976. See, e.g., Strong v. K & K Investments, 216 Neb. 370, 343 N.W.2d 912 (1984).

Plaintiff raises several important considerations and excellent policy reasons in support of dramshop liability. He further argues that for the court to impose dramshop liability would be no different from our decision to abolish governmental immunity for tort liability, which was accomplished without the intervention of the Legislature. See Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968). The same may be said for negligent entrustment, Deck v. Sherlock, 162 Neb. 86, 75 N.W.2d 99 (1956), and the abolishment of interspousal tort immunity, Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979). However, the Legislature previously had not addressed those issues.

That is not true as to dramshop liability. A dramshop act was enacted by the Legislature in 1881 and appeared as Rev.Stat. §§ 3859 through 3863 (1913). It was repealed in 1917 and replaced with wholly new dramshop provisions. See 1917 Neb.Laws, ch. 187, § 52, p. 448. In 1935, another new act, the Nebraska Liquor Control Act, Comp.Stat. §§ 53-301 to 53-3,107 (Supp.1935), was passed, which, among other things, repealed the provisions of the statutes relating to dramshop liability. The Legislature has not seen fit to reenact such provisions. When the Legislature has spoken, it is not up to this court to disagree with its decision on a purely policy basis.

The judgment of the district court is affirmed.

AFFIRMED.

GRANT, Justice, concurring.

I concur in the result reached by the majority because I believe the trial court properly sustained defendant's demurrer on the grounds the amended petition does not state a cause of action.

Plaintiff's amended petition alleges that Robert Wondra was the operator of an automobile which "suddenly swerved from the westbound traffic lanes" and struck plaintiff's car. What Wondra did is not alleged. Cf. Bourke v. Watts, 223 Neb. 511, 391 N.W.2d 552 (1986).

With regard to the intoxication issue, plaintiff alleges that defendant's "bartender caused and contributed to the intoxication of Wondra by selling intoxicating alcoholic beverages to Wondra" when the bartender knew or should have known that Wondra was intoxicated. Plaintiff does not allege that defendant's agent sold such beverages to Wondra and that the beverages were consumed at a time leading to the accident in question by directly causing or increasing the level of Wondra's intoxication. The sale could be of unopened containers placed unused in Wondra's car, or of sales constituting " 'pouring alcohol into [the drunken customer]....' " Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981).

Plaintiff recognizes this problem when he improperly sets out in his brief facts which, if alleged, might constitute a common-law action for negligence. Without any reference to any record before us, plaintiff states, "Investigation revealed that Robert Wondra had been drinking beer and shots of tequila at the bar," and "Plaintiff alleges that the Defendant's bartender was negligent in continuing to serve an intoxicated patron...." Brief for appellant at 2. No such factual allegations were set out in the petition.

Plaintiff argues that "[t]he time has come for judicial adoption of dramshop liability...." Brief for appellant at 8. Plaintiff appears to want this court to readopt the provisions of Comp.Stat. § 53-147 (1929). I do not think that is our function. Viewed strictly as a petition in law, plaintiff's petition does not set out facts, as distinguished from conclusions, which, in my opinion, state a cause of action, unless one wants to apply the strictest theories of absolute liability to the question before us.

SHANAHAN, Justice, dissenting.

The majority quite obviously feels that legislative policy and some prior decisions of this court dispose of Arant's appeal. Actually, the inescapable conclusion embodied in today's disposition is this court's indecision in failing to carry out a judicial duty toward the common law under the Nebraska Constitution.

Before addressing the constitutional considerations contained implicitly in the majority's rejection of dramshop liability, one must first analyze the majority's thesis: "When the Legislature has spoken, it is not up to this court to disagree with its decision on a purely policy basis." As a paraphrase, the Legislature has spoken; therefore, this court must be silent. The majority's premise is predicated on the repeal of the dramshop act in 1935, when the Legislature enacted the Nebraska Liquor Control Act. Thus, the majority of this court posits that the Legislature has voiced disapproval of dramshop liability based on common-law negligence. The nature of the particular dramshop act, Comp.Stat. § 53-147 (1929), supplies an interesting insight into the consequence of the 1935 repeal of the act:

Any person who may be or shall be injured in any manner, whether in his person, property, means of support, health, loss of companionship, care or attention, or in any other manner whatever, by reason of the sale or traffic in intoxicating liquors or by reason of his own or another's intoxication, or by reason of any illegal use of intoxicating liquor which directly or indirectly causes or contributes to such injury, shall have a right of action against any persons, association or corporation who by himself, his agent or servant illegally sold, supplied or in any way furnished the intoxicating liquor that caused or contributed to such injury, for all damages sustained....

§ 53-147.

Nebraska's dramshop act, reflected in § 53-147 above, statutorily imposed liability irrespective of fault, such as negligence. In 1935, without any qualifying language or other explanation for the repealing statute, the Legislature repealed the dramshop act. As this court noted in Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976), the 1935 repeal of the dramshop act eliminated statutory strict liability for injury proximately caused by selling liquor to an intoxicated person. Consequently, in 1935 strict dramshop liability, in the form of a statutory dinosaur, became legislatively extinct. However, as this court views the scene today, anything that looks like dramshop liability and walks like dramshop liability is a dinosaur, extinct since 1935. From the premise that the Legislature has abolished strict liability which had existed under a dramshop act, the majority infers that the Legislature has precluded dramshop liability based on common-law negligence. If there is a distinction between strict liability and negligence, the majority's conclusion is an absolute legal non sequitur. The Legislature's abolition of the dramshop act, as a part of dramshop liability, does not constitute legislative denunciation of all dramshop liability, which includes liability based on common-law principles pertaining to negligence. Hence, the Legislature has not "spoken" on the question of dramshop liability for negligence. It appears, however, that the distinction between statutory strict liability and common-law liability for negligence may no longer exist in Nebraska.

On the other hand, if statutory strict liability under a dramshop act is distinguishable from liability based on common-law negligence, there is ample Nebraska precedent to impose liability in Arant's case. As a preface to such precedent, we must bear in mind:

For actionable negligence there must be a defendant's legal duty to protect the plaintiff from injury, a failure to discharge that duty, and damage...