Carver v. Schafer

• Decision Date: 08 February 1983
• Docket Number: No. 44983,44983
• Citation: 647 S.W.2d 570
• Parties: Sue Ann CARVER, Individually and James Richard Reifschneider, a minor, Michael Edward Reifschneider, a minor, and Kim Marie Reifschneider, a minor, by Sue Ann Carver, Natural Parent and Guardian, Plaintiffs-Appellants, v. William Michael SCHAFER, and Michael G. Mehiols, Defendants, and Frances C. Roberts, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 570

647 S.W.2d 570

Sue Ann CARVER, Individually and James Richard Reifschneider, a minor, Michael Edward Reifschneider, a minor, and Kim Marie Reifschneider, a minor, by Sue Ann Carver, Natural Parent and Guardian, Plaintiffs-Appellants, v. William Michael SCHAFER, and Michael G. Mehiols, Defendants and Frances C. Roberts, Defendant-Respondent.

No. 44983.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 8, 1983.

James B. Herd, Michael F. Heavey, St. Louis, for plaintiffs-appellants.

Edward P. Harrison, St. Louis, for defendant-respondent.

SNYDER, Judge.

This is an appeal from a judgment of the Circuit Court of the County of St. Louis, which dismissed appellants' petition for failure to state a cause of action. The petition sought damages for a wrongful death from a tavern keeper who appellants alleged sold drinks to an already intoxicated person, who caused the death of appellants' decedent. In Count III, plaintiffs-appellants relied on the Illinois Dram Shop Act, Ill.Ann.Stat., ch. 43, § 135 (Smith-Hurd 1944, 1982-83 Cum Supp.), and in Count V they asked the court to hold the tavern keeper liable under Missouri common law. The judgment is reversed and remanded in part and affirmed in part.

Appellants alleged that William M. Schafer was liable to appellant for the negligent operation of his motor vehicle which resulted in the wrongful death of James R. Reifschneider, and that defendants Frances C. Roberts and Michael G. Mehiols were also liable for the wrongful death of Mr. Reifschneider because Mr. Schafer, shortly before the accident, had consumed intoxicating beverages served at taverns owned by Ms. Roberts and Mr. Mehiols, when Mr. Schafer was already intoxicated. Mr. Reifschneider was the spouse of appellant Sue Ann Carver and the father of the minor children who are also appellants. Service of process was never obtained on Mr. Mehiols and he was dismissed from the lawsuit. Appellant reached a settlement with Mr. Schafer. Thus, the only remaining defendant is respondent Roberts, who has not filed a brief with this court.

Appellants charge the trial court erred in dismissing the petition because appellants stated a cause of action under both the Illinois Dram Shop Act and the Missouri common law.

The scope of review of a motion to dismiss requires an appellate court to treat all facts alleged by the petition as true, to construe the allegations favorably to appellants and to determine whether, upon that basis, the petition invokes principles of substantive law. McCoy v. Liberty Foundry Co., 635 S.W.2d 60, 61-62[2, 3] (Mo.App.1982). "A pleading should not be adjudged insufficient ... if the averments of the petition, accorded every reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle [appellants] to relief." Kersey v. Harbin, 591 S.W.2d 745, 749 (Mo.App.1979).

The facts as alleged in appellant's petition may be briefly stated. On the date in question, Schafer, who is a resident of Missouri, drove his automobile into the State of Illinois. While in Illinois, Schafer patronized two taverns where he was served intoxicating liquors. The taverns were known as The Little Dover Inn and The Ten Pin Lounge, owned and operated by respondent Roberts and Michael G. Mehiols, respectively. The service of the intoxicating liquors led to the intoxication of Schafer or added to his previously existing state of intoxication. After imbibing the intoxicating liquors, Schafer returned to the State of Missouri, operating his automobile under the influence of the intoxicating liquors. Appellants' decedent, James R. Reifschneider, a police officer employed by St. Louis County, was struck and killed by the automobile operated by Schafer as Officer Reifschneider was standing on the shoulder of Interstate Highway 270 issuing a traffic violation summons to another motorist.

The only issue is whether appellants have a cause of action for negligence against respondent Roberts. This court holds that they do.

Actionable negligence consists of three elements: a duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, and an injury to the plaintiff which is caused by the breach of the duty. Nichols v. Blake, 418 S.W.2d 188, 191[5, 6] (Mo.1967).

The first question is whether Roberts, a tavern owner, owed a duty to prevent the death of appellants' decedent. Here the tavern owner, according to the petition, sold alcoholic beverages to a person the tavern owner knew or should have known to be intoxicated. The tavern owner's patron subsequently caused the death of the decedent.

The common law rule was that a tavern owner could not be held liable for injuries to third persons which were caused by an intoxicated patron. The reason usually given was that the injuries were proximately caused by the imbibing of the intoxicating liquor by the patron and not by the sale of the beverages. Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656, 657 (Ark.1965); Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566, 568 (Wis.1970); Parsons v. Jow, 480 P.2d 396, 397 (Wyo.1971); 45 Am.Jur.2d, Intoxicating Liquors § 553 (1969); 130 A.L.R. 352, 366 (1941).

In the context of the present case, to say that the decedent's death was not proximately caused by the sale of the intoxicating liquor would be the functional equivalent of stating that the tavern owner owed no duty to the decedent. See W.L. Prosser, Law of Torts § 42 (4th Ed.1971). Although stating the issue in terms of duty rather than proximate cause does not resolve the issue, "... it does serve to direct attention to the policy issues which determine the extent of the original obligation ..." Id.

In some states, the common law rule has been abrogated by so called "dram shop acts." ¹ On the other hand, some jurisdictions have declined invitations to hold a tavern owner liable for injuries to a third person caused by an intoxicated patron. ²

Missouri has no dram shop act. ³ The question is whether this court will judicially recognize that a tavern owner owes a duty to third parties to refuse to sell liquor to an intoxicated person.

"The law enjoins upon each individual, in all human activities, the duty to exercise ordinary care ... for the safety of others, and this degree of care appertains to every human act, unless a different degree of care is prescribed by statute." Ward v. City of Portageville, 106 S.W.2d 497, 503[23, 24] (Mo.App.1937). Ordinary care requires the exercise of such precautions as are commensurate with the dangers reasonably to be anticipated under the circumstances. De Mariano v. St. Louis Public Service Co., 340 S.W.2d 735, 743[7-10] (Mo.1960). "The standard of care exacted by the law is an external and objective one ..." Fancher v. Southwest Missouri Truck Center, Inc., 618 S.W.2d 271, 274[3, 4] (Mo.App.1981).

Under the circumstances of the case under review, the question is to what extent is it reasonably to be anticipated that an intoxicated person who is served alcoholic beverages at a tavern will leave there, drive a motor vehicle while still intoxicated, and cause an accident? Travelling by car to and from a tavern is commonplace in current times. Rappaport v. Nichols, supra at 8[7, 8].

Drunken drivers are involved in a large percentage of the fatal automobile accidents in this country. "Drinking is indicated to be a factor in at least half of the fatal motor-vehicle accidents ..." National Safety Council, "Accident Facts," at 52 (1981 edition). Statistics in Missouri also lend credence to the view that the drunken driver is a factor in more than his fair share of the fatal accidents. "In 1981, of the 95,331 accident involved drivers, 10% were reportedly drinking and of the 1,135 fatal accident involved drivers, 20% were reportedly drinking." Mo. Highway and Transportation Department, Division of Maintenance and Traffic, "Missouri State Highway System Traffic Accident Statistics," at 27 (1981 edition).

Indeed, one would have to be a hermit to be unaware of the carnage caused by drunken motorists. The problem was aptly described nearly twenty years ago:

Our highway safety problems have greatly increased. Death and destruction stalk our roads. The peaceful Sunday afternoon family drive through the hills has been abandoned by many as the result of brushes with near death at the hands of half-baked morons drunkenly weaving in and out of traffic at 80 or 90 miles per hour.

Crull v. Gleb, 382 S.W.2d 17, 23 (Mo.App.1964).

Thus, it is foreseeable that a patron of a tavern would drive an automobile to and from the tavern. It is also foreseeable that a drunken driver would be more likely to be involved in an accident than a sober driver.

Despite the foreseeable consequences of selling intoxicating liquors to an intoxicated purchaser, many jurisdictions refuse to impose upon the tavern owner a common law duty not to sell liquor to a customer who is intoxicated.

One reason for courts refusing to do so is the legislature's failure to alter the old common law rule barring a tavern owner's liability when the legislature has had ample time to consider the question. Felder v. Butler, supra at 499. In Felder v. Butler, the Maryland Court of Appeals noted that thirty years had passed since the common law rule had been stated and that the state legislature had done nothing to change the rule. Id.; see also State v. Hatfield, 197 Md. 249, 78 A.2d 754 (Md.App.1951).

The old common law rule which imposed no duty on the tavern keeper has never been stated in Missouri. Cf. Skinner v. Hughes, 13 Mo. 440 (1850).

Another reason given for denying a cause of action against a tavern owner is that holding the tavern owner liable would shift the burden of the loss from the intoxicated driver to the dispenser, which result "... is contrary to sound public policy." Olsen v. Copeland, supra at 181. However, the burden would not necessarily shift from the intoxicated...