Brockett v. Kitchen Boyd Motor Co.

Decision Date16 March 1972
Citation493 P.2d 880,24 Cal.App.3d 87,100 Cal.Rptr. 752
CourtCalifornia Court of Appeals Court of Appeals
PartiesTerry BROCKETT et al., Plaintiffs and Appellants, v. KITCHEN BOYD MOTOR COMPANY, Defendant and Respondent. Civ. 1407.

GARGANO, Associate Justice.

For the second time, this case is before us; this time in a different posture and in a different climate. We now are called upon to decide, squarely, whether the umbrella of social drinking, in an era in which social drinking is a way of life for many, shields from civil liability, the actor who knowingly and wilfully plies a minor with intoxicating liquor with the knowledge that the minor is going to drive an automobile on the public highways.

The chronology follows:

Plaintiffs instituted this action in the court below against Kitchen Boyd Motor Company, a co-partnership, to recover damages for personal injuries sustained in an automobile accident. The complaint, inter alia, alleged that plaintiffs were injured when the automobile in which they were riding was struck by a Ford Thunderbird driven by Jimmie Leon Huff, an intoxicated minor of the age of 19 years; that Huff was an employee of the defendant partnership; that his intoxication was induced by the employer as the result of a Christmas party at which defendant served the minor with copious amounts of liquor; and that defendant placed Huff in his automobile and directed him to drive the vehicle through traffic to his home.

The defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action; the demurrer was sustained on that ground without leave to amend; there followed a judgment of dismissal. Plaintiffs appealed.

We reversed the judgment primarily because plaintiffs' complaint alleged that defendant placed the minor in his automobile while he was in a grossly intoxicated condition and directed him to drive the car through traffic to his home. (Brockett v. Kitchen Boyd Motor Co., 264 Cal.App.2d 69, 70 Cal.Rptr. 136.) We concluded that those allegations removed the complaint from within the pale of Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530, and its progeny; the Fleckner case embraced the common law proposition that a person injured as the result of another's intoxication has no recourse against the supplier of the alcoholic beverage because it is the consumption of the beverage, not the furnishing, that is the proximate cause of the injury. (45 Am.Jur.2d, Intoxicating Liquors, § 554, p. 853.) As we said at pages 72 and 73 of the Brockett opinion, 70 Cal.Rptr. at page 139 Supra:

'. . . and more important and persuasive still we have the action of the defendant in guiding the incompetent minor to his automobile, placing him in the car, and directing him to drive home through city traffic. Obviously, far more is alleged here than in a simple complaint where an attempt is made to hold a bartender responsible for what a drunken patron may do after consuming the liquor sold to him. The relationship of Huff to Kitchen Boyd Motor Company has thus been modified by the voluntary relationship assumed by Kitchen Boyd Motor Company, and we further have its participation in activating the tort against the plaintiffs.'

Following the reversal, plaintiffs, who sought a repudiation of Fleckner v. Dionne, Supra, 94 Cal.App.2d 246, 210 P.2d 530, voluntarily amended their complaint and deleted the allegations on which the Brockett opinion had focused. Defendant again interposed a general demurrer, and, as before, the demurrer was sustained without leave to amend. For the second time, plaintiffs appealed from the judgment entered on the order of dismissal.

The common law rule, immunizing the furnisher of liquor from civil liability, has been picturesquely described as a 'backeddy running counter to the mainstream of modern tort doctrine.' (Fuller v. Standard Stations, Inc., 250 Cal.App.2d 687, 691, 58 Cal.Rptr. 792, 794.) In some states the rule has been partially eliminated by statutes, known as 'Dram Shop Acts;' these statutes impose liability on vendors of intoxicating beverages for injuries caused by the intoxication of persons to whom the beverages are sold. In other states, the specious reasoning of the common law has been modified by judicial fiat; liability is imposed when, in contravention of a statute, liquor is sold to intoxicated persons or to a minor. (45 Am.Jur.2d, Intoxicating Liquors, § 555, p. 854.) Until recently California rejected the enlightened viewpoint. (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; Fleckner v. Dionne, Supra, 94 Cal.App.2d 246, 210 P.2d 530; Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952).

In June 1971 the California Supreme Court unmasked the common law fiction; it declared that the real question to be decided in each case is one not of probable cause but rather whether the defendant is guilty of a breach of duty to the injured party. The high court, in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, held that a commercial supplier, who in violation of Business and Professions Code, section 25602, furnishes liquor to an intoxicated person, breaches a duty to anyone who is injured as a result of the intoxication. Because this landmark decision will have a profound effect on judicial thinking, we quote at length from pages 164 to 167, 95 Cal.Rptr. pages 631 to 632, 486 P.2d pages 159 to 160 of the opinion:

'A duty of care, and the attendant standard of conduct required of a reasonable man, may of course be found in a legislative enactment which does not provide for civil liability. (See Richards v. Stanley (1954) 43 Cal.2d 60, 63, 271 P.2d 23; Routh v. Quinn (1942) 20 Cal.2d 488, 492, 127 P.2d 1; 149 A.L.R. 215; 2 Witkin, Summary of Cal. Law (1960) Torts, § 234.) In this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. (Alarid v. Vanier (1958) 50 Cal.2d 617, 327 P.2d 897; Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 177 P.2d 279.) The Legislature has recently codified this presumption with the adoption of Evidence Code section 669: 'The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.' (Subd. (a).)

'In the instant case a duty of care is imposed upon defendant Sager by Business and Professions Code section 25602, which provides: 'Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.' This provision was enacted as part of the Alcoholic Beverage Control Act of 1935 (Stats. 1935, ch. 330, § 62, at p. 1151) and was adopted for the purpose of protecting members of the general public from injuries to person and damage to property resulting from the excessive use of intoxicating liquor.

'Our conclusion concerning the legislative purpose in adopting section 25602 is compelled by Business and Professions Code section 23001, which states that one of the purposes of the Alcoholic Beverage Control Act is to protect the safety of the people of this state. Moreover, our interpretation of section 25602 finds support in the decisions of those jurisdictions in which similar statutes, and statutes prohibiting the sale of alcoholic beverages to minors, have been found to have been enacted for the purpose of protecting members of the general public against injuries resulting from intoxication. (See Waynick v. Chicago's Last Department Store, Supra, 269 F.2d 322, at p. 325; Deeds v. United States, Supra, 306 F.Supp. 348, at p. 359; Davis v. Shippacossee, Supra, 155 So.2d 365, at p. 367; Elder v. Fisher, Supra, 247 Ind. 598, at p. 603, 217 N.E.2d 847; Rappaport v. Nichols, Supra, 31 N.J. 188, at p. 202, 156 A.2d 1.)

'From the facts alleged in the complaint it appears that plaintiff is within the class of persons for whose protection section 25602 was enacted and that the injuries he suffered resulted from an occurrence that the statute was designed to prevent. Accordingly, if these two elements are proved at trial, and if it is established that Sager violated section 25602 and that the violation proximately caused plaintiff's injuries, a presumption will arise that Sager was negligent in furnishing alcoholic beverages to O'Connell. (See Evid. Code, § 669.)

'Defendant Sager maintains, however, that a change in the common law rule governing the liability of a tavern keeper to an injured third person is unwarranted and that if there is to be a change in the rule, it should be made by the Legislature, not by the courts. As to the first part of his argument, defendant contends that imposition of civil liability upon tavern keepers would not alter the extent to which the consumption of intoxicants contributes to automobile accidents and that such liability would not be an adequate deterrent to the...

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