Babcock v. Casey's Mgmt., DA 20-0480

CitationDA 20-0480
Case DateAugust 31, 2021
CourtUnited States State Supreme Court of Montana

2021 MT 215

KYLE R. BABCOCK, Plaintiff and Appellant,

CASEY'S MANAGEMENT, LLC, Defendant and Appellee.

No. DA 20-0480

Supreme Court of Montana

August 31, 2021

Submitted on Briefs: April 28, 2021

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-15-2019-75 Honorable Dan Wilson, Presiding Judge

For Appellant: Quentin M. Rhoades, Nicole L. Siefert, Rhoades Siefert & Erickson PLLC, Missoula, Montana

For Appellee: Reid J. Perkins, Worden Thane P.C., Missoula, Montana



¶1 Kyle R. Babcock appeals the July 2020 judgment of the Montana Eleventh Judicial District Court, Flathead County, granting defendant, Casey's Management, LLC (Casey's), summary judgment on his asserted "negligence (liquor liability)" and "negligence (premises liability)" claims. We address the following dispositive issue:

Whether the District Court erroneously concluded that Babcock's co-pled "negligence (premises liability)" claim was subject to the two-year Montana Dram Shop Act statute of limitations?

We reverse and remand for further proceedings.


¶2 On the night of January 19th into the early morning of January 20, 2017, Babcock attended a music concert at Casey's, a regulated establishment in Whitefish, Montana, licensed to sell alcoholic beverages under §§ 16-1-101 through -104, 16-3-101, and 16-6-301, MCA, et seq. (Montana Alcoholic Beverage Code). While Babcock danced with friends near the stage, Brendan Windauer and a female companion pushed their way through the crowd toward the stage, resulting in a brief shoving match between he and Babcock. After they had disengaged, Windauer allegedly turned around and unexpectedly sucker-punched Babcock in the face, resulting in facial bone fractures requiring medical care. At the time, Windauer was under the legal drinking age (age 21) and had allegedly consumed one or more alcoholic beverages served or provided by Casey's. On May 18, 2017, through counsel, Babcock served Casey's with written notice pursuant to § 27-1-710, MCA (commonly known as the Montana Dram Shop Act) of his intent to sue for damages resulting from the Windauer assault at the bar in January. Babcock did not ultimately follow up with a district court complaint, however, until January 28, 2019, two years and eight days after the assault.

¶3 Along with a derivative punitive damages claim, Babcock pled two base tort claims against Casey's-a "negligence (liquor liability)" claim and a separate "negligence (premises liability)" claim. In essence, the "negligence (liquor liability)" claim asserted that Casey's negligently provided the underage Windauer with alcohol, either with, as referenced in § 27-1-710(3)(a), MCA, knowledge that he was underage or without making a reasonable attempt to determine his age. The separately pled "negligence (premises liability)" claim preliminarily "reallege[d] each preceding paragraph" of the complaint, including all common factual averments and the previously pled "negligence (liquor liability)" claim. The second negligence claim then further distinctly alleged, inter alia, that Casey's: (1) knew that Windauer was an "obstreperous person" with a "propensity for fighting"; (2) nonetheless served or provided him with alcohol despite reason to believe that he was underage and without "reasonable attempt to determine [his] age" and (3) then allowed him to remain on the premises despite knowledge or reason to believe that his "obstreperous and aggressive" conduct "endangered others." In essence, the "negligence (premises liability)" claim asserted that Casey's breached its common law duty of reasonable care by "fail[ing] to provide a staff adequate to police its premises," allowing a dangerous man (Windauer) to remain on the premises, "failing to take suitable measures" to protect Babcock from Windauer, and "fail[ing] to [sooner] intervene in [their] altercation." In its amended answer, Casey's: (1) generally denied all essential claim allegations; (2) asserted various affirmative defenses; (3) asserted various third-party tort claims against Windauer; and (4) asserted a negligence-based statutory contribution claim against any other unnamed third parties "that may have served" alcohol to Windauer prior to his arrival at Casey's and or who "failed to . . . [report] the shoving match," the "threat" posed by Windauer, or otherwise "failed to intervene."

¶4 On the asserted grounds that § 27-1-710(6), MCA (two-year Dram Shop Act statute of limitations), time-barred Babcock's base tort claims, and that the derivative punitive damages claim thus failed in turn due to lack of a requisite compensatory damages predicate, Casey's moved for summary judgment on all claims pursuant to M. R. Civ. P. 56. Tacitly acknowledging without concession that his "negligence (liquor liability)" claim was subject to the two-year Dram Shop Act statute of limitations, Babcock asserted that his separate "negligence (premises liability)" claim was based on an independent theory of negligence not subject to the Act because it was not based or dependent on a causative link between the furnishing and consumption of alcohol and the related harm subsequently caused by the consumer (but rather the alleged breach of the independent common law duty of tavern owners and agents to use reasonable care to protect fellow patrons from obstreperous and violent persons).[1] He thus asserted that his separate "negligence (premises liability)" claim was exclusively governed by the general three-year tort statute of limitations.[2] Finding no genuine issue of material fact on the Rule 56 record that the alleged negligence and resulting harm occurred more than two years before the filing of the subject complaint, [3] the District Court concluded that both of Babcock's base tort claims were, as referenced in § 27-1-710, MCA, claims for "injury or damage arising from an event involving the person who consumed" an alcoholic beverage allegedly furnished by Casey's, and thus time-barred by the two-year Dram Shop Act statute of limitations. Babcock timely appeals.


¶5 We reviews grants or denials of summary judgment de novo for conformance with M. R. Civ. P. 56. Wendell v. State Farm Mut. Auto. Ins. Co., 1999 MT 17, ¶ 9, 293 Mont. 140, 974 P.2d 623. Summary judgment is proper only when the pleadings, discovery and disclosure materials, and affidavits of record manifest "no genuine issue as to any material fact" and a party "is entitled to judgment as a matter of law." M. R. Civ. P 56(c)(3). A genuine issue of material fact is "an issue of inconsistent fact, material to the elements of a claim or defense at issue," and thus "not amenable to judgment as a matter of law." Davis v. Westphal, 2017 MT 276, ¶ 12, 389 Mont. 251, 405 P.3d 73 (internal citations omitted).[4] Whether a genuine issue of material fact exists or whether a party is entitled to judgment as a matter of law are conclusions of law reviewed de novo for correctness. Davidson v. Barstad, 2019 MT 48, ¶ 17, 395 Mont. 1, 435 P.3d 640.

¶6 Our role in construing the meaning or effect of statutes is to simply "ascertain and declare what is in terms or in substance contained therein," not "insert what has been omitted" or "omit what has been inserted." Section 1-2-101, MCA. We must, to the extent possible, effect the manifest intent of the Legislature in accordance with the clear and unambiguous language of its enactments in context, without resort to other means of construction. Larson v. State, 2019 MT 28, ¶ 28, 394 Mont. 167, 434 P.3d 241 (citing Mont. Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499). We must do so by first attempting to construe the subject term or provision in accordance with the plain meaning of its express language, in context of the statute as a whole, and in furtherance of the manifest purpose of the statutory provision and the larger statutory scheme in which it is included. Mountain Water Co. v. Mont. Dep't of Revenue, 2020 MT 194, ¶ 27, 400 Mont. 484, 469 P.3d 136 (citing § 1-2-106, MCA, and Giacomelli v. Scottsdale Ins. Co., 2009 MT 418, ¶ 18, 354 Mont. 15, 221 P.3d 666); City of Bozeman v. Lehrer, 2020 MT 55, ¶ 11, 399 Mont. 166, 459 P.3d 850 (citing State v. Heath, 2004 MT 126, ¶ 24, 321 Mont. 280, 90 P.3d 426 and S.L.H. v. State Comp. Mut. Ins. Fund, 2000 MT 362, ¶ 16, 303 Mont. 364, 15 P.3d 948); In re Marriage of McMichael, 2006 MT 237, ¶ 14, 333 Mont. 517, 143 P.3d 439. In similar regard, except where in conflict with our constitution and resulting statutory law, the common law is an integral part of the law of this state. See §§ 1-1-105 and -107 through -109, MCA. The Legislature is thus presumed to act with full knowledge of the pertinent common law at the time of new enactments. Sampson v. Nat'l Farmers Union Prop. & Cas. Co., 2006 MT 241, ¶ 20, 333 Mont. 541, 144 P.3d 797. In attempting to discern and effect the manifest intent of the Legislature, we must therefore construe statutes in relation to the pertinent common law as part of the overall and uniform system of laws of which our constitution, statutes, and non-conflicting common law rules are constituent parts. See Sampson, ¶ 20; Gaustad v. City of Columbus, 265 Mont. 379, 382, 877 P.2d 470, 472 (1994); Swanson v. Hartford Ins. Co. of the Midwest, 2002 MT 81, ¶ 22, 309 Mont. 269, 46 P.3d 584; In re Adoption of Voss, 550 P.2d 481, 486 (Wyo. 1976); 2B Sutherland Statutory Construction § 50:1, Interpretation with reference to the common law (7th ed. 2021). Where "technical words and phrases . . . have acquired a peculiar" or special legal meaning, we must construe them in accordance with that meaning, rather than their plain meaning in ordinary usage. Section 1-2-106, MCA. In construing several statutory "provisions or particulars," we must, to the extent possible,...

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