Cadillac Cowboy, Inc. v. Jackson

• Decision Date: 14 March 2002
• Docket Number: No. 00-1243.,00-1243.
• Citation: 69 S.W.3d 383,347 Ark. 963
• Parties: CADILLAC COWBOY, INC., v. Pamela Sue JACKSON.
• Court: Arkansas Supreme Court

69 S.W.3d 383

347 Ark. 963

CADILLAC COWBOY, INC., v. Pamela Sue JACKSON.

No. 00-1243.

Supreme Court of Arkansas.

March 14, 2002.

Mercy, Carter & Elliott, L.L.P., by: W. David Carter, Texarkana, for appellant.

Crisp, Boyd & Poff, L.L.P., by: Bill Schubert, Texarkana, for appellee.

ANNABELLE CLINTON IMBER, Justice.

This is the second appeal in this case. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) ("Jackson I"). The appellant, Cadillac Cowboy, Inc., appeals from a jury verdict in Howard County Circuit Court in favor of Pamela Sue Jackson, individually and as the administratrix of the estate of James C. Jackson, deceased. The jury found that both Cadillac Cowboy and Kevin Holliday were liable for the death of James C. Jackson, awarding total damages of $916,363.70. Cadillac Cowboy raises three points on appeal: (1) the trial court erred in refusing to apply the Arkansas Dramshop Act, Ark.Code Ann. § 16-126-101, et seq. (Supp.2001), which was enacted after this court's decision in Jackson I; (2) the trial court erred in denying Cadillac Cowboy's motion for judgment notwithstanding the verdict; and (3) the trial court erred in instructing the jury to apportion fault between separate defendants Cadillac Cowboy and Kevin Holliday. We conclude that the points raised are without merit, and we affirm.

Mr. Jackson was killed after his automobile was struck by a pickup truck driven by separate defendant Kevin Holliday. Prior to the accident, Mr. Holliday had been drinking at a club owned by the appellant called the Sundowners Club. In her complaint, Mrs. Jackson alleged that on August 31 and September 1, 1994, Cadillac Cowboy, by and through its owners and employees, served alcoholic beverages to Mr. Holliday, who they knew or should have known was extremely intoxicated and intended to drive his vehicle while in an intoxicated state.

The trial court dismissed the complaint pursuant to Ark. R. Civ. P. 12(b)(6) based upon our holding in Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), that the consumption of alcohol was the sole proximate cause in situations where vendors, licensed by the state to sell alcoholic beverages, sell alcohol to intoxicated persons who later injure third parties. In the first appeal from the trial court's dismissal order, we examined the reasoning expressed in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), particularly with respect to our legislature's enactment of statutes imposing a high duty of care on vendors licensed to sell alcohol in Arkansas. Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999). We recognized that vendor liability extended not only to the sale of alcohol to minors, but also to the sale of alcohol to intoxicated persons. Id. Our respective holdings in Shannon and Jackson I relied upon the legislature's expression of state policy in effect at the time appeal was taken to this court.

In Shannon, we concluded that the General Assembly had assigned a high duty of care to licensed alcohol vendors as set forth in the affirmative requirements of statutory provisions. Shannon v. Wilson, supra. Similarly, in Jackson I, we turned again to Act 695 of 1989, which stated in pertinent part:

(a) It is the specifically declared policy of the General Assembly of the State of Arkansas that all licenses issued to establishments for the sale or dispensing of alcoholic beverages are privilege licenses, and the holder of such privilege license is to be held to a high duty of care in the operation of the licensed establishment.

(b) It is the duty of every holder of an alcoholic beverage permit issued by the State of Arkansas to operate the business wherein alcoholic beverages are sold or dispensed in a manner which is in the public interest, and does not endanger the public health, welfare, or safety. Failure to maintain this duty of care shall be a violation of this act and grounds for administrative sanctions being taken against the holder of such permit or permits.

1989 Ark. Acts 695 (codified at Ark.Code Ann. § 3-3-218(a) & (b) (Repl.1996)). Noting further that the General Assembly had deemed the sale of alcohol "to a habitual drunkard or an intoxicated person" to be a misdemeanor, Ark.Code Ann. § 3-3-209 (Repl.1996), we determined that the "weighty responsibility" placed by our state upon licensed vendors of alcohol established a duty of care which extended to civil liability. Jackson v. Cadillac Cowboy, 337 Ark. 24, 29, 986 S.W.2d 410, 413 (1999).

In reversing the dismissal order and remanding the case to the trial court, we reiterated the duty of care set forth in the statutes that existed at the time of our decision. Moreover, we held that "evidence of the sale of alcohol by a licensed vendor to an intoxicated person is some evidence of negligence," and we overruled Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). Jackson I, 337 Ark. at 33-34, 986 S.W.2d at 415. Upon remand, the trial court instructed the jury based upon the standard of care announced in our mandate in Jackson I.

After our decision in Jackson I, but prior to the trial on remand, the General Assembly passed Act 1596 of 1999, which stated in pertinent part:

SECTION 1. The General Assembly finds and determines that it needs to clarify and establish its legislative intent regarding the sale of alcoholic beverages as addressed by the Supreme Court of Arkansas in "Shannon v. Wilson, et. al" (96-762: June 23, 1997) and "Jackson v. Cadillac Cowboy, et. al." (98-574: March 18, 1999).

SECTION 2. The General Assembly finds and determines that the knowing sale of alcoholic beverages by a retailer to a minor is contrary to the public policy of the State of Arkansas.

SECTION 3. In cases where it has been proven that an alcoholic beverage retailer knowingly sold alcoholic beverages to a minor, or sold under circumstances where such retailer reasonably should have known such purchaser was a minor, a civil jury may determine whether or not such knowing sale constituted the proximate cause of any injury to such minor, or to a third person, caused by such minor.

SECTION 4. In cases where it has been proven that an alcoholic beverage retailer knowingly sold alcoholic beverages to a person who was clearly intoxicated at the time of such sale or sold under circumstances where such retailer reasonably should have known such person was clearly intoxicated at the time of such sale, a civil jury may determine whether or not such sale constitutes a proximate cause of any subsequent injury to other persons. For purposes of this Act, a person is considered clearly intoxicated when such person is so obviously intoxicated to the extent that, at the time of such sale, he presents a clear danger to others. It shall be an affirmative defense to civil liability under this section that an alcoholic beverage retailer had a reasonable belief that the person was not clearly intoxicated at the time of such sale or that the person would not be operating a motor vehicle while in the impaired state.

SECTION 5. Except in the knowing sale of alcohol to a minor or to a clearly intoxicated person, the General Assembly hereby finds and declares that the consumption of any alcoholic beverage, rather than the furnishing of any alcoholic beverage, is the proximate cause of injuries or property damage inflicted upon persons or property by a legally intoxicated person.

1999 Ark. Acts 1596 (codified at Ark.Code Ann. § 16-126-101 et seq. (Supp.2001)("Dramshop Act")). In this appeal, Cadillac Cowboy contends that the Dramshop Act should have controlled the disposition of this case upon remand; that is, sections 16-126-101 et seq. should have been incorporated into the jury instructions given at trial. As previously stated, the trial court instructed the jury in accordance with the standard of care set forth in Jackson I.

Standard of Care

Cadillac Cowboy argues that the General Assembly clearly intended for the standard of care set forth in the Dramshop Act to apply to the instant case upon remand. As support for this proposition, Cadillac Cowboy points to the following language found in the Dramshop Act's proposed emergency clause: "[t]his act should go into effect as soon as possible in order that subsequent litigation be subject to this act." See 1999 Ark. Acts 1596, § 10. The emergency clause, however, was not adopted by the General Assembly and was erroneously included in the codification of Act 1596. See Ark Code Ann. 16-126-101 et seq.¹ Thus, we need not address the meaning of "subsequent litigation" as used in the proposed emergency clause, nor should we attempt to use the failed clause to attempt to illuminate the intent of the legislature.

Cadillac Cowboy also relies upon our decisions in Treiber v. Hess, 301 Ark. 97, 782 S.W.2d 43 (1990), and Van Hook v. McNeil Monument Co., 107 Ark. 292, 155 S.W. 110 (1913), for the proposition that the trial court was obligated to apply the Dramshop Act to the case upon remand. In both Treiber v. Hess and VanHook v. McNeil, we applied legislation that had taken effect subsequent to the trial below but before the respective cases came to this court on a first appeal. Thus, the procedural posture in Treiber and Van Hook is inapposite to the instant case. Moreover, in Treiber, supra, we followed an express provision of the act which stated that the abolition of the cause of action for alienation of affection did "not apply to litigation pending before the effective date of [the] act." Treiber v. Hess, 301 Ark. at 97, 782 S.W.2d at 43 (construing section 8 of Act 46 of 1989). Cadillac Cowboy cites no authority, and we aware of none, in which this court has affirmed a trial court that ignored our mandate and applied a statute enacted after our remand of a case.

In Jackson I, we conclusively set forth the standard of the duty of care as contained in the statutes that existed at the time of our decision. We held:

the General Assembly has spoken...