Burke v. Superior Court

• Decision Date: 08 March 1982
• Citation: 181 Cal.Rptr. 149,129 Cal.App.3d 570
• Court: California Court of Appeals Court of Appeals
• Parties: Doris BURKE, individually and dba San Marcos Liquor, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; Holly HIGGINS, Kevin Voeltner, and Carol Hoopingarner, Real Parties in Interest. Civ. 26430.

Page 149

181 Cal.Rptr. 149

129 Cal.App.3d 570

Doris BURKE, individually and dba San Marcos Liquor, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent Holly HIGGINS, Kevin Voeltner, and Carol Hoopingarner, Real Parties in Interest.

Civ. 26430.

Court of Appeal, Fourth District, Division 1, California.

March 8, 1982.

Hearing Denied May 12, 1982.

Nickoloff & Distel and Thomas O. Nickoloff, San Diego, for petitioner.

No appearance for respondent.

Ludecke, McGrath & Denton and Steven R. Denton, San Diego, for real parties in interest.

GERALD BROWN, Presiding Justice.

Petitioner, Doris Burke, defendant in an automobile personal injury action, seeks a writ of mandate to compel the trial court to sustain a demurrer to real parties' complaint. The issue is whether a licensed liquor seller such as petitioner, who sells liquor to a sober person under 21 years of age, may be liable to injured third parties when the buyer becomes intoxicated and injures them by his drunk driving. We conclude the newly enacted statutes limiting liability for the furnishing of alcoholic beverages do not exempt persons in petitioner's position from liability as a matter of law, hence we deny the petition for a writ of mandate.

The alleged facts are: On March 15, 1981, defendant Mark James Wyatt, then aged 19, bought alcoholic beverages from Doris Burke, owner of San Marcos Liquor Store, a licensed seller of such wares. Wyatt went to the beach with four other young persons and became drunk. He drove from the beach at La Jolla Shores in a reckless manner at speeds ranging from 60 to 80 miles per hour and lost control of the vehicle, which flew into the air and crashed upside down. Passenger Ramer was killed. Three other passengers, Higgins, Hoopingarner and Voeltner were personally injured and have brought this lawsuit against Wyatt for negligence and against Burke, dba San Marcos Liquor Store, for intentionally or negligently selling alcohol to an underage person. The trial court has refused to sustain Burke's demurrer to the fourth and fifth causes of action of the complaint which allege liability of Burke for the injuries based on illegal sale of alcohol in violation of Business and Professions Code section 25658, proximately resulting in the automobile crash and ensuing injuries. The fourth cause of action states Burke was negligent in selling to the underage person, and the fifth cause states she knew or should have known he was less than 21 and he would drink, become intoxicated, and drive, and the sale to him was with conscious disregard for the safety of the plaintiffs and of members of the public.

Burke's demurrer is based on the following recent laws affecting liability for furnishing alcoholic beverages: first Business and Professions Code section 25602 states it is a misdemeanor to sell or furnish liquor to a habitual or common drunkard or obviously intoxicated person, but such furnishing is not a basis of civil liability for injuries resulting from that intoxication. The statute expressly declares a legislative intent to abrogate the judicial decisions in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151; Bernhard v. Harrah's Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719; and Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669. Those cases stated various bases for liability for third party injuries proximately resulting from furnishing alcoholic beverages.

Next, Business and Professions Code section 25602.1 states one exception to the latter statute (§ 25602): licensed sellers of liquor to "any obviously intoxicated minor" remain civilly liable to injured third parties where the furnishing is the proximate cause of injury.

Finally, Civil Code section 1714 now provides, as a qualification to its statement of general negligence liability, that Vesely, Bernhard, and Coulter, supra, are abrogated, and the earlier judicial theory is reinstated which held furnishing alcoholic beverages is not the proximate cause of injuries resulting from the intoxication. Consumption is the cause. Further, subsection (c) of 1714 says no social host who furnishes alcoholic beverages to any person is legally accountable to the person or any third party, for damages resulting from the consumption.

The California Supreme Court in Cory v. Shierloh, 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8, held these statutes are constitutional. The facts there dealt with furnishing liquor by a nonlicensed person to an obviously intoxicated "minor" (age not specified); the court found immunity from liability under the new statutes.

Also relevant is a statute predating this controversy, Business and Professions Code section 25658, which says persons selling liquor to anyone under 21 years old are guilty of misdemeanors. The statute enforces California Constitution, article XX, section 22 prohibiting the sale or furnishing of any alcoholic beverage to any person under the age of 21 years.

In liquor furnishing situations, early cases assumed the proximate cause of injuries was the drinking, not the furnishing, hence no civil liability could be based on the furnishing (Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450; Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530). Then the California Supreme Court "applied common sense to a segment of the California tort law where this commodity was noticeably lacking" (Brockett v. Kitchen Boyd Motor Co., 24 Cal.App.3d 87, 93, 100 Cal.Rptr. 752) and held the furnishing could be the proximate cause (Vesely v. Sager, supra, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151; Coulter v. Superior Court, supra, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669). That new reasoning was applied to find liability when an employer furnished liquor to "an intoxicated minor of the age of 19 years" in Brockett v. Kitchen Boyd Motor Co., supra, 24 Cal.App.3d 87, 88, 100 Cal.Rptr. 752. The last chapter of the history is the recent statutes quoted above removing the "applied common sense" and abrogating the proximate cause basis for liability in furnishing alcoholic beverages, except in the situation of licensed furnishing to an obviously intoxicated "minor".

Furnishing to a sober underage person was not specifically addressed at all.

The recent decision in Cantor v. Anderson, 126 Cal.App.3d 124, 178 Cal.Rptr. 540, found liability could be based on furnishing liquor to a developmentally disabled person with knowledge of his condition. The court regarded the host's knowledge of the peculiar disabilities as a basis for liability to an injured third party not precluded by the host immunity provisions of Civil Code section 1714, supra. The case used the same reasoning found in the "special relationship" tort cases where liability for failure to warn or exercise special protective measures is premised on a particular relationship between plaintiff and defendant causing dependence of the plaintiff on defendant and raising a corresponding quasi-fiduciary obligation. (E.g., Tarasoff v. Regents of University of California, 17 Cal.3d 425, 436, 131 Cal.Rptr. 14, 551 P.2d 334; Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675; Johnson v. State of California, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352; Clemente v. State of California, 101 Cal.App.3d 374, 161 Cal.Rptr. 799.) The court pointed out the doctrine of Cole v. Rush, supra, 45 Cal.2d 345, 289 P.2d 450, precluded liability only for providing liquor to a competent person (Cantor v. Anderson, supra, 126 Cal.App.3d 124, 130, 178 Cal.Rptr. 540).

We are unpersuaded by the argument when the Legislature expressly overruled Vesely v. Sager, supra, Bernhard v. Harrah's Club, supra, and Coulter v. Superior Court, supra, it intended to restore a state of common law precluding any liability to third parties when liquor was furnished to an underage person. No such clearcut state of common law precedent has ever existed. None of the three expressly overruled cases involved furnishing or sales to underage persons. Such "common law," meaning prestatutory, precedent as does exist differs regarding liability when a person under 21 is furnished liquor, drinks, and injures third parties. (See Annot. (1980) 97 A.L.R.3d 528.) Cases finding no third party liability include Alsup v. Garvin-Wienke, Inc. (8th Cir. 1978), 579 F.2d 461 (Missouri law); Parsons v. Jow (Wyo.1971) 480 P.2d 396; Stanage v. Bilbo (Fla.1980) 382 So.2d 423 [drunk "minor" got friend drunk who stumbled and shot third friend]; see also Collier v. Stamatis (1945) 63 Ariz. 285, 162 P.2d 125. On the other hand, liability to injured third parties was found, without any necessary statutory basis, in the California decision in Brockett v. Kitchen Boyd Motor Co., 264 Cal.App.2d 69, 70 Cal.Rptr. 136 [special relationship of employer to 19-year old employee and foreseeability employee would drive after drinking]; Davis v. Shiappacossee (Fla.1963) 155 So.2d 365; Elder v. Fisher (1966) 247 Ind. 598, 217 N.E.2d 847; Rappaport v. Nichols (1959) 31 N.J. 188, 156 A.2d 1; Wiener v. Gamma Phi Chapter of Alpah Tau Omega Fraternity (1971) 258 Ore. 632, 485 P.2d 18 [host furnishing to "minor" at party, foreseeable he would drive after drinking]; and see allegations in Waynick v. Chicago's Last Dept. Store (7th Cir. 1959) 269 F.2d 322.) Cole v. Rush, supra, the very case establishing nonliability in most instances, pointed out the common law immunity applied to sales to an "ordinary" or "able bodied" man, and exceptions had always existed based on particular vulnerability of the person to whom the liquor was sold (45 Cal.2d at pp. 353-354, 289 P.2d 450). The rationale of Cole v. Rush --lack of proximate cause because of the independent, intervening voluntary act of consumption--presumes the wholly voluntary nature of the drinking of the liquor, and is ipso facto inapplicable when that act is less voluntary and therefore more foreseeable because of the drinker's mental or physical condition. Youth and...