Baxter v. Noce
| Decision Date | 16 March 1988 |
| Docket Number | No. 17323,17323 |
| Citation | 1988 NMSC 24,107 N.M. 48,752 P.2d 240 |
| Parties | Joyce BAXTER, Personal Representative of the Estate of Wayne K. Baxter, Deceased, Petitioner, v. Fausto NOCE, Eugene Noce, d/b/a La Fiesta Night Club and Bar, Shady Grove Truck Stop and Cafe, Inc., Johnny Eddy and Ted Paulos, Respondents. |
| Court | New Mexico Supreme Court |
Joyce Baxter, as personal representative of the estate of decedent Wayne K. Baxter, brought a wrongful death action against Fausto and Eugene Noce d/b/a La Fiesta Night Club and Bar, Shady Grove Truck Stop and Cafe, Inc., Johnny Eddy, and Ted Paulos, alleging that the respondents sold or served alcoholic beverages to Baxter and Robert Reynolds, Jr. when it was reasonably apparent that they were intoxicated. Baxter and Reynolds, both adults, died as a result of an accident involving the vehicle that Reynolds drove and in which Baxter was a passenger. A few hours prior to their deaths, Baxter and Reynolds together had consumed alcoholic beverages at both of the named establishments. Baxter's blood alcohol content was tested at .21 percent before he died.
The Noces and La Fiesta moved for judgment on the pleadings, and Eddy, Paulos, and Shady Grove moved for summary judgment. The trial court denied all motions, noting that Baxter was a third party in relation to the respondents, that his death might have been the proximate result of Reynolds's operating a motor vehicle while intoxicated, and that the respondents might have served alcohol illegally to Reynolds. The respondents' applications for interlocutory appeal were granted and consolidated and the court of appeals reversed the trial court.
Relying on Trujillo v. Trujillo, 104 N.M. 379, 721 P.2d 1310 (Ct.App.), cert. denied, 104 N.M. 289, 720 P.2d 708 (1986), in concluding that Baxter had no cause of action, the majority of the court of appeals held that as a matter of law Baxter's voluntary intoxication, not the respondents' serving of alcohol to Reynolds, was the proximate cause of Baxter's death. Judge Garcia filed a special concurrence to express his opinion that proximate cause was not the issue. Judge Garcia's position was that respondents owed no duty to Baxter because "[p]ublic policy should not protect adults from their own conscious folly." Baxter v. Noce, Ct.App. Nos. 9877 and 9880 (Consolidated) (Filed Sept. 10, 1987). We granted certiorari, and we reverse the court of appeals.
The issue presented on interlocutory appeal was whether an intoxicated passenger of a vehicle has a cause of action against the taverns that served alcohol, allegedly in violation of NMSA 1978, Section 41-11-1 (Supp.1983), to both the passenger and the driver of a vehicle that subsequently was involved in an accident. In Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982), we overruled two earlier cases that had followed the common-law prohibition of dramshop liability, and held that a third-party who is injured by an intoxicated driver has a cause of action against the tavernkeeper who illegally has served alcohol to the intoxicated driver. We reasoned that the "central issue is one of duty," id. at 630, 651 P.2d at 1274, and concluded that the existence of a duty is established by showing violation of a state regulation that prohibited sale of alcoholic beverages to intoxicated persons. Further, we noted that the "breach of this duty may constitute negligence," and that the "sale or service of alcohol to an intoxicated automobile driver may be a proximate cause of injuries inflicted upon a third party * * *." Id. at 631, 651 P.2d at 1275 (emphasis in original); see Walker v. Key, 101 N.M. 631, 634, 686 P.2d 973, 976 (Ct.App.) (Lopez rejected contention that proximate cause of injury is buyer's drinking, not vendor's selling), cert. quashed sub nom. Hietpas v. Walker, 101 N.M. 555, 685 P.2d 963 (1984).
The Lopez analysis was applied in MRC Properties, Inc. v. Gries, 98 N.M. 710, 652 P.2d 732 (1982), which concerned a statute imposing a duty upon tavernkeepers not to sell or serve alcohol to minors. Again, we declared that the plaintiffs could show that a duty of care existed to the plaintiffs "by [enactment of a] state statute or * * * state regulation," and that if the breach of that duty was the proximate cause of their injuries, liability would be imposed. Id. at 711-12, 652 P.2d at 733. In Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149 (Ct.App.), cert. quashed, 100 N.M. 53, 665 P.2d 809 (1983), the court of appeals echoed what we said in Lopez and MRC by holding that if a plaintiff alleges and shows that a tavernkeeper owed him a duty of care, and that the breach of that duty was the proximate cause of his injury, the plaintiff states a cause of action against the tavernkeeper. Id. at 59, 665 P.2d at 1150. The court of appeals' decision in Porter is ostensibly apposite to the present case because it there held that the minor passengers of a vehicle had a cause of action for their injuries against a tavernkeeper who served alcohol to the minor driver as well as to the passengers who subsequently were involved in an accident. Id.
In Trujillo, however, the intermediate court concluded that the estate of an intoxicated adult patron had no cause of action for wrongful death against a tavernkeeper for injuries decedent sustained, not as a third party injured by an intoxicated patron, but as a result of his own intoxication. It held that the tavernkeeper owed no direct duty to the intoxicated patron because NMSA 1978, Section 60-7A-16 (Repl.Pamp.1981), was aimed at " 'a broader public policy for the protection of the public at large,' " not to an adult who "voluntarily created the vulnerability that is the problem." 104 N.M. at 382, 721 P.2d at 1313. In Trujillo, the intoxicated adult patron left a bar, walked into the path of an oncoming vehicle, and was struck and killed by that vehicle. Id. at 380, 721 P.2d at 1311.
Statutorily, a cause of action now exists under NMSA 1978, Section 41-11-1(B) (Repl.Pamp.1986), against a tavernkeeper and in favor of a person "who was sold or served alcoholic beverages while intoxicated" when that person shows that the tavernkeeper "acted with gross negligence or reckless disregard" for his safety, and if:
(1) [the licensee] sold or served alcohol to a person who was intoxicated;
(2) it was reasonably apparent to the licensee that the person buying or apparently receiving service of alcoholic beverages was intoxicated; and
(3) the licensee knew from the circumstances that the person buying or receiving service of alcoholic beverages was intoxicated.
Section 41-11-1(A). Hence, in Subsection B, the legislature recognized and imposed a duty on tavernkeepers to exercise care in serving alcohol to their patrons that did not exist at common law and was not as broadly established in Lopez. Trujillo, 104 N.M. at 384, 721 P.2d at 1315. Subsection B first appeared in the 1985 amendment to Section 41-11-1. See id. at 383, 721 P.2d at 1314-15 (). That amendment became effective June 14, 1985. See NMSA 1978, Sec. 41-11-1 (Repl.Pamp.1986). It was not applicable to Trujillo. The original 1983 version of Section 41-11-1, which did not recognize a direct cause of action for patrons against tavernkeepers, therefore, is likewise the applicable law in this case, because Baxter's cause of action arose on April 5, 1985. See Trujillo, 104 N.M. at 382, 721 P.2d at 1313 (), also decided under earlier statutory law.
Because Baxter would have had no direct cause of action as a patron, the estate must establish that Baxter was an injured third party in relation to the respondents before it can recover under Lopez and the original Section 41-11-1. The enactment of Section 41-11-1 in 1983 did not create or abolish a cause of action; instead it narrowed the liability of tavernkeepers, exempted social hosts from liability, and set out the elements which would constitute a breach of the duty established in Lopez. See Trujillo, 104 N.M. at 383, 721 P.2d at 1313-14; Walker, 101 N.M. at 636, 686 P.2d at 978. To recover, therefore, the estate must demonstrate that the respondents served alcohol in violation of Section 41-11-1(A) to Reynolds when it was reasonably apparent that Reynolds was drunk, that the respondents knew Reynolds was drunk, and that the illegal sale of alcohol to Reynolds was a proximate cause of Baxter's death.
The respondents' position is, however, that although public policy supports dramshop liability, it also favors limiting the liability of tavernkeepers, and they urge that liability should be denied when the claimant wilfully and voluntarily has participated to any material degree in the drinking which led to the intoxication of the driver. Some jurisdictions have recognized the defense of complicity, which bars recovery under a dramshop act to anyone who actively contributes to, procures, participates in, or encourages the intoxication of the inebriated driver. See, e.g., Kindt v. Kauffman, 57 Cal.App.3d 845, 856, 129 Cal.Rptr. 603, 610 (1976); Akin v. J.R.'s Lounge, Inc., 158 Ill.App.3d 834, 836-37, 111 Ill.Dec. 226, 227, 512 N.E.2d 130, 131 (1987); Martin v. Heddinger, 373 N.W.2d 486, 488 (Iowa 1985); Plamondon v. Matthews, 148 Mich.App. 737, 740, 385 N.W.2d 273, 275 (1985); Herrly v. Muzik, 374 N.W.2d 275, 279 (Minn.1985); Allen v. County of Westchester, 109 A.D.2d 475, 479, 492 N.Y.S.2d 772, 774, cert. denied, 66 N.Y.2d 915, 498 N.Y.S.2d 1027, 489 N.E.2d 773 (1985). We believe that the theory of complicity probably was the real basis of the court of appeals' reversal of the trial court's rulings.
We are concerned, however, that (as Baxter claims) ...
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