Cantor v. Anderson

• Decision Date: 25 November 1981
• Citation: 126 Cal.App.3d 124,178 Cal.Rptr. 540
• Court: California Court of Appeals Court of Appeals
• Parties: Doris CANTOR, Plaintiff and Appellant, v. Michael J. ANDERSON et al., Defendants and Respondents. Civ. 20598.

Page 540

178 Cal.Rptr. 540

126 Cal.App.3d 124

Doris CANTOR, Plaintiff and Appellant, v. Michael J. ANDERSON et al., Defendants and Respondents.

Civ. 20598.

Court of Appeal, Third District, California.

Nov. 25, 1981.

Rehearing Denied Dec. 21, 1981.

Hearing Denied Jan. 20, 1982.

Jennings & Jenks and C. Breck Jones, Sacramento, for plaintiff and appellant.

Johnson & Hoffman and Dianna Z. Hoffman, Sacramento, for defendants and respondents.

BLEASE, Associate Justice.

Plaintiff, Doris Cantor, appeals from a judgment of dismissal entered after the trial court sustained defendants', Michael J. Anderson and Laureen Anderson, demurrer without leave to amend. We consider whether the recent amendments to Civil Code section 1714, ¹ which inter alia abrogate the rule of Coulter v. Superior Court (1978) 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669, preclude a common law action predicated upon injuries concurrently caused by the foreseeable effect of alcohol upon a person possessed of an exceptional mental or physical condition. We conclude that they do not. We reverse the trial court's decision which bars plaintiff from attempting to state a claim for liability not affected by the amendments.

FACTS

The facts alleged in the complaint, which we accept for purposes of the appeal, are as follows: Plaintiff, who maintains a home for developmentally disabled persons, was injured by Edward M., a developmentally disabled resident of the home, after he consumed alcoholic beverages and attacked her. Plaintiff alleges defendants, who are neighbors of plaintiff, served alcoholic beverages to Edward and did so with full knowledge of his disability. As a result of his consumption of alcohol, Edward fell into a seizure, lost consciousness, was rendered unable to control his actions, and subsequently became violent. Plaintiff attempted to render aid to Edward, but was injured when he grabbed her by the neck, threw her to the floor and struck her with his fists, causing injuries to her body and nervous system.

Defendants interposed a general demurrer to the complaint relying upon amendments to the Business and Professions Code and the Civil Code which declare that the consumption of alcoholic beverages, not the furnishing thereof, is the proximate cause of injuries resulting from intoxication. The trial court sustained the demurrer without leave to amend. For the reasons which follow, we find that while plaintiff's complaint in its present form fails to plead facts sufficient to constitute a cause of action, it may be possible for the complaint to be amended to state facts upon which relief may be granted. We, accordingly, reverse the judgment.

DISCUSSION

Prior to 1971, California adhered to the common law rule which denied recovery from a vendor of alcoholic beverages for injuries to a third person sustained following the vendor's furnishing of alcoholic beverages to an intoxicated person. (See Cole v. Rush (1955) 45 Cal.2d 345, 289 P.2d 450; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 563, pp. 2829-2831.) In Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 the California Supreme Court rejected the rule and held that civil liability results when a vendor furnishes alcoholic beverages to a person in violation of Business and Professions Code section 25602 which prohibits the service of alcoholic beverages to those who are habitual drunkards or obviously intoxicated. (Vesely, at pp. 164-167, 95 Cal.Rptr. 623, 486 P.2d 151.) Subsequently, in Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (cert. den. 429 U.S. 859, 97 S.Ct. 159, 50 L.Ed.2d 136), the court held that, while Vesely relied upon section 25602 of the Business and Professions Code section to support its holding, nevertheless, "the clear import of our decision was that there was no bar to civil liability under modern negligence law." (Bernhard, at p. 325, 128 Cal.Rptr. 215, 546 P.2d 719.) Finally, in Coulter v. Superior Court, supra, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669, the Vesely holding was extended to noncommercial providers, such as "social hosts," on the basis of both section 25602 and common law negligence principles. The court said: "We think it evident that the service of alcoholic beverages to an obviously intoxicated person by one who knows that such intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway.... Simply put, one who serves alcoholic beverages under such circumstances fails to exercise reasonable care." (Coulter, at pp. 152-153, 145 Cal.Rptr. 534, 577 P.2d 669.)

In 1978, legislation was enacted to abrogate these holdings. (See Cory v. Shierloh (1981) 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8.) Subdivisions (b) and (c) were added to section 1714 of the Civil Code ² to qualify the general principle (expressed in subd. (a)) that everyone is responsible for his own negligent or willful acts. They recite: "(b) It is the intent of the legislature to abrogate the holdings in cases such as Vesely v. Sager ..., Bernhard v. Harrah's Club ..., and Coulter v. Superior Court ... and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person. (P) (c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages." Similarly, Business and Professions Code section 25602 was limited by the addition of subdivisions (b) and (c), as qualified by Business and Professions Code section 25602.1. ³

Defendants, pointing to the language of section 1714, subdivision (c), and Business and Professions Code section 25602, subdivision (b), ⁴ that "(n)o social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by ... any third person ...." assert that "any person" encompasses all persons of whatever mental or physical condition. (Emphasis added.) We disagree.

The meaning of subdivision (c) is determined by the interpretative directions given by subdivision (b). It states the legislative intent to "reinstate the prior judicial interpretation ... as it relates to the proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person ...." We are thus directed to read subdivision (c) with reference to a specific common law rule. (See 2A Sutherland, Statutory Construction (4th ed. 1973) § 50.01, pp. 268-269.) Subdivision (b) identifies the rule as "the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person." This returns the law to the rule of Cole v. Rush, supra, 45 Cal.2d 345, 289 P.2d 450. "Before 1971, California case law had uniformly held that one who furnished alcoholic beverages to another person was not liable for damages resulting from the latter's intoxication. (E. g., Cole v. Rush (1955) 45 Cal.2d 345, 289 P.2d 450). Our courts reasoned that 'it is the voluntary consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use...." (Coulter v. Superior Court, supra, 21 Cal.3d at p. 149, 145 Cal.Rptr. 534, 577 P.2d 669.) Cole ⁵ said " 'that it is the consumption of the intoxicating liquor which is the proximate cause of any subsequent injury by reason of such intoxication rather than the sale of intoxicating liquor' ...." (Cole v. Rush, supra, 45 Cal.2d at p. 349, 289 P.2d 450; see also Lammers v. Pacific Electric Ry. Co. (1921) 186 Cal. 379, 383-384, 199 P. 523.) ⁶

But in returning to the rule of Cole, we also return to the limitations of the rule. As Cole said of the common law rule, there is " 'no remedy for injury or death following the mere sale of liquor to the ordinary man, either on the theory that it is a direct wrong or on the ground that it is negligence, which imposes a legal liability on the seller for damages resulting from the intoxication.' " (Emphasis added.) (Cole v. Rush, supra, 45 Cal.2d at p. 348, 289 P.2d 450 quoting 30 Am.Jur. 573, § 607; ⁷ see also 70 A.L.R.3d 633; 45 Am.Jur.2d, Intoxicating Liquors, §§ 553, 554, 555; Keenan, Liquor Law Liability in California (1973) 14 Santa Clara Law. 46) Cole further said "(1) that as to a competent person it is the voluntary consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use; (2) that the competent person voluntarily consuming intoxicating liquor contributed directly to any injury caused thereby ...." (Cole, at p. 356, 289 P.2d 450; cf. 57 Cal.L.Rev. 995, 1004.) (Emphasis added.)

Thus, the common law rule did not affect liability for the furnishing of alcoholic beverages to a person unable to voluntarily resist its consumption; e. g., one "who was in such a condition as to be deprived of his will power or responsibility for his behavior ...." (Fn. omitted.) (30 Am.Jur. § 520, p 821.) And Cole distinguished its facts from those in Pratt v. Daly (1940) 55 Ariz. 535, 104 P.2d 147, in which plaintiff wife was permitted to recover damages for loss of consortium resulting from defendants' sale of liquor to her husband with knowledge that he "was 'incapable of voluntary action.' " (Cole v. Rush, supra, 45 Cal.2d p. 354, 289 P.2d 450; see also Vesely v. Seger, supra, 5 Cal.3d at p. 159, fn. 3, 95 Cal.Rptr. 623, 486 P.2d 151;...