Brigance v. Velvet Dove Restaurant, Inc.

Decision Date08 July 1986
Docket NumberNo. 62005,62005
Citation1986 OK 41,725 P.2d 300
PartiesShawn BRIGANCE, a minor, and Earle Brigance, his father, individually and as parent and natural guardian of Shawn Brigance, Appellants, v. The VELVET DOVE RESTAURANT, INC., Richard Stubbs, and Jerry Rimele, Appellees.
CourtOklahoma Supreme Court

Istook & Associates, P.C. by Ernest J. Istook, Jr., and Mark A. Wright, Oklahoma City, for appellants.

Huckaby, Fleming, Frailey, Chaffin & Darrah by Michael R. Chaffin, Chickasha, for appellees.

HODGES, Judge.

Shawn Brigance and Earle Brigance, Shawn's father, (appellants) brought an action against The Velvet Dove Restaurant, Inc., Richard Stubbs and Jerry Rimele (appellees) for negligence in serving alcoholic beverages to a noticeably intoxicated person, allegedly resulting in an automobile accident causing injuries to Shawn, a minor at the time of the injuries. The District Court of Oklahoma County dismissed the complaint for failure to state a claim upon which relief could be granted, and appellants perfected this appeal.

For purposes of this appeal, appellees concur in the statement of facts set forth in appellants' brief in chief. The uncontroverted facts are as follows: the Velvet Dove Restaurant, Inc. (Velvet Dove), by and through its president and principal stockholder, Richard Stubbs, and employee, Jerry Rimele, served intoxicating beverages to a group of minors, including one Jeff Johnson. Appellees knew Jeff Johnson drove the group to the restaurant as its employee assisted Johnson to his car upon the group's departure. Appellants allege beverages served by appellees caused Johnson to become intoxicated or increased his prior intoxication thereby causing a one-car accident in which Shawn was injured.

The issue before this Court is whether, absent statutory authority to the contrary, a third party passenger injured by an intoxicated driver has a civil action against a commercial vendor for on the premises consumption for the negligent sale of an intoxicating beverage to a person the vendor knew or should have known was noticeably intoxicated and whose consumption of alcohol was the alleged cause of injuries. The issue presented is one of considerable significance as the magnitude of intoxication-caused automobile accidents is well known.

The trial court, having no dram shop legislation or precedent in this jurisdiction on which to rely, dismissed appellants' complaint for failure to state a claim upon which relief could be granted. We find that, under the facts set out in appellants' pleadings, a cause of action for negligence against the vendor has been stated and reverse the judgment of the district court for the reasons to be stated below.

In 1959, the Oklahoma Legislature enacted the Oklahoma Alcoholic Beverage Control Act, 37 O.S. 1981 § 501 et seq., and repealed 37 O.S. 1951 §§ 1-7 and 9-131, as amended, and all laws or parts of laws in conflict with the Act.

Since the Legislature's repeal which included 37 O.S. 1951 § 121 (originally enacted in 1910), Oklahoma's dram shop act, there has been no occasion for this Court to consider the issue of whether a liquor vendor for on the premises consumption may be held civilly liable for injuries due to the acts of a noticeably intoxicated patron upon common law principles of negligence.

The elements of common law negligence have been summarized by this Court as "(1) the existence of a duty on part of defendant to protect plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom." Sloan v. Owen, 579 P.2d 812, 814 (Okla.1977).

At common law a tavern owner who furnishes alcoholic beverages to another is not civilly liable for a third person's injuries that are caused by the acts of an intoxicated patron. 1 Such rule is principally based upon concepts of causation that, as a matter of law, it is not the sale of liquor by the tavern owner, but the voluntary consumption by the intoxicated person, which is the proximate cause of resulting injuries, so that the tavern owner is therefore not liable for negligence in selling the liquor.

In recent years, many states have retreated from the common law rule of nonliability for a liquor vendor regarding it as antiquated and illogical. 2 Several states with dram shop laws have also recognized a new common law right of action against a vendor of liquor. 3 Many of the jurisdictions which now recognize a civil right of action do so on the theory enunciated in Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959):

"When alcoholic beverages are sold by a tavern keeper to a minor or to an intoxicated person, the unreasonable risk of harm ... to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent."

As shown by the modern trend, the old common law rule of nonliability has been changed by judicial opinion:

"Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others 'long dead and unaware of the problems of the age in which he lives do his thinking for him.' " 4

This Court has similarly followed the concept that the common law "is a dynamic and growing thing and its rules arise from the application of reason to the changing condition of society." 5 The common law is not static.

The development of the law of torts is peculiarly a function of the judiciary. Because duty and liability are matters of public policy they are subject to the changing attitudes and needs of society. 6 The instant case presents before us today the common law rule of nonliability for tavern owners and affords us the opportunity to reexamine the viability and efficacy of that rule in the State of Oklahoma.

Appellees assert that we are not free to change the common law because the Legislature has expressly spoken in this area by its 1959 repeal of Oklahoma's dram shop act and its failure to reenact such provision since that time. We are not persuaded by this argument. The dram shop act was not selectively repealed for it was repealed when intoxicants were legalized in 1959. Because the Legislature has failed to act to impose civil liability, for reasons unknown, does not unequivocally demonstrate legislative intent. To hold otherwise, would be indulging in a type of psychoanalysis of the Legislature. We simply cannot conclude that statutory silence is here indicative of legislative intent to bar the cause of action before us.

We also cannot accede to the view urged by appellees that this area of law is better dealt with by the Legislature. We find that on the basis of the clear trend in this area we are free to establish a civil cause of action by an injured third person against a commercial vendor of liquor for on the premises consumption. In rendering the opinion of Vanderpool v. State, 672 P.2d 1153, 1157 (Okla.1983), which modified the common law doctrine of governmental immunity, this Court stated in response to the oft-expressed view that if the doctrine is to be abrogated such should be done by the Legislature and not the courts of this State "But having come to the conclusions that the judicially recognized doctrine of governmental immunity in its present state under the case law is no longer supportable in reason, justice or in light of the overwhelming trend against its recognition, our duty is clear. Where the reason for the rule no longer exists, that alone should toll its death knell."

We believe the application of the old common law rule of a tavern owner's nonliability in today's automotive society is unrealistic, inconsistent with modern tort theories and is a complete anachronism within today's society.

The automobile is a constant reminder of a changed and changing America. It has made a tremendous impact on every segment of society, including the field of jurisprudence. In the "horse and buggy" days the common law may not have been significantly affected by the sale of liquor to an intoxicated person. The common law of nonliability was satisfactory. With today's car of steel and speed it becomes a lethal weapon in the hands of a drunken imbiber. The frequency of accidents involving drunk drivers are commonplace. Its affliction of bodily injury to an unsuspecting public is also of common knowledge. Under such circumstances we are compelled to widen the scope of the common law.

We, thus, hold that one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. It is not unreasonable to expect a commercial vendor who sells alcoholic beverages for on the premises consumption to a person he knows or should know from the circumstances is already intoxicated, to foresee the unreasonable risk of harm to others who may be injured by such person's impaired ability to operate an automobile.

In so concluding, we find the commercial vendor for on the premises consumption is under a duty, imposed both by statute and common law principles, to exercise reasonable care in selling or furnishing liquor to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle and who may subsequently injure a third party. A person owes a duty to others not to subject them to an unreasonable risk of harm. We also note that a breach of duty for which we impose civil liability by this opinion constitutes a public offense under 37 O.S.Supp.1985 § 537. 7

A commercial vendor for on the...

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