Clymer v. Webster

Decision Date07 June 1991
Docket NumberNo. 88-631,88-631
PartiesAdam CLYMER, Administrator of the Estate of Jane E. Clymer, Adam Clymer, Individually, and Ann F. Clymer, v. Theron C. WEBSTER, James N. Wesson, Deborah S. Wesson, Wesson's Diner, Inc., Alydia Garand, Beem, Inc., d/b/a The Rotisserie, and J. Duguay.
CourtVermont Supreme Court

William B. Gray and Peter H. Zamore of Sheehey Brue Gray & Furlong, Burlington, for plaintiffs-appellants.

Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for defendants-appellees James Wesson and Alydia Garand.

Frank E. Talbott, Bret P. Powell and Chris O'Brien and M. Cecilia Whelan, Law Clerks, on the brief, of Wilson, Powell, Lang & Faris, Burlington, for defendants-appellees Beem, Inc. and Joseph Duguay.

Thomas J. Sherrer of Latham, Eastman, Schweyer & Tetzlaff, Burlington, for defendants-appellees Deborah Wesson and Wesson's Diner, Inc.

Before GIBSON, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

GIBSON, Justice.

This appeal concerns the remedies available to the parents and the administrator of the estate of Jane Clymer, an adult decedent, in an action against two commercial vendors that served alcohol to a patron who thereafter drove his car and struck and killed the decedent. Plaintiffs Adam and Ann Clymer, parents of decedent, and Adam Clymer, as administrator of the estate of the decedent, appeal from a superior court order dismissing with prejudice their action against the owners and certain employees of two commercial vendors that served alcohol to the man who drove the car that struck and killed their daughter. The dismissal of the suit was the culmination of a series of court orders construing the Dram Shop Act, the Wrongful Death Act, and the Survival Statute. We reverse and remand for further proceedings.


On September 14, 1985, after being served alcohol at The Rotisserie Restaurant and at Wesson's Diner, Theron Webster drove his car and struck Jane Clymer, an eighteen-year-old college student, while she was pushing her bicycle along the side of Route 116 in the town of Williston. Ms. Clymer suffered massive brain damage, but was kept alive until her parents arrived the next morning, when she was pronounced brain dead and allowed to expire. Theron Webster was charged with and pled guilty to DWI-death resulting.

In a complaint filed in July of 1986, plaintiffs alleged negligence against Theron Webster, and a Dram Shop Act violation against the commercial vendors and certain of the vendors' employees, seeking compensatory damages for medical and funeral expenses, emotional distress, loss of companionship, loss of future earnings, and loss of means of support. Plaintiffs also sought punitive damages against James Wesson, owner of Wesson's Diner, and Theron Webster; they later moved to amend their complaint to add a claim for punitive damages against The Rotisserie and one of its bartenders. Plaintiffs eventually settled with Theron Webster, and the court dismissed him from the action over the objections of the other defendants. After several rulings that limited the damages recoverable by plaintiffs "to medical and funeral expenses and lost services and guidance," the court dismissed the action with prejudice and entered judgment for the defendants on the ground that those damages did not exceed the $120,000 plaintiffs had already recovered from the negligent driver.

On appeal, plaintiffs argue that the trial court erred by denying their claims for (1) damages for deprivation of love, affection and society (loss of companionship) under the Dram Shop Act and the Wrongful Death Act; (2) damages for loss of future earnings under the Survival Statute; and (3) punitive damages under the Dram Shop Act and the Wrongful Death Act. Plaintiffs also contend that the cumulative effect of the court's rulings denied them an effective remedy for their injuries, as guaranteed by the Vermont Constitution. In their cross-appeal, defendants The Rotisserie and its bartender (J. Duguay) argue that (1) the trial court erred in dismissing Theron Webster; (2) the court should exclude expert evidence concerning what signs of intoxication would be exhibited by a person having a certain blood-alcohol level; (3) the Legislature has unconstitutionally delegated its authority to the Liquor Control Board; and (4) the Liquor Control Board regulation designating what constitutes an unlawful furnishing of alcohol is unconstitutionally vague.


We first consider the relationship between the Dram Shop Act (DSA) and the Wrongful Death Act (WDA). As we have noted elsewhere, the Legislature enacted the DSA to create a statutory cause of action where none had previously been available under the common law. Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 215, 542 A.2d 269, 270 (1988); Smith v. Wilcox, 47 Vt. 537, 544 (1875). As it existed in 1985, the DSA provided:

A ... person who is injured in person, property or means of support by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action ... against a person or persons, who, by selling or furnishing intoxicating liquor unlawfully, have caused in whole or in part such intoxication.

7 V.S.A. § 501. 1 The DSA further provides that "[u]pon the death of either party, the action and right of action shall survive to or against his executor or administrator." Id. The WDA (14 V.S.A. §§ 1491-1492), which predates the DSA, does not create a new cause of action, but rather a " 'new right of recovery' " or " 'new element of damages' " engrafted upon the already existing cause of action. See Whitchurch v. Perry, 137 Vt. 464, 469, 408 A.2d 627, 630 (1979) (quoting Desautels' Adm'r v. Mercure's Estate, 104 Vt. 211, 214, 158 A. 682, 683 (1932)). The WDA allows certain damages suffered by the next of kin of a person whose death resulted from the wrongful act, neglect or default of another and who would have been entitled to maintain an action had the victim survived.

Aside from out-of-pocket medical and funeral expenses, Jane Clymer's parents have not themselves been injured "in person, property or means of support" within the meaning of the DSA. Jane Clymer, however, was injured "in person" and would have been entitled to maintain an action under the DSA had she survived. 2 Therefore, we conclude that the administrator of Jane Clymer's estate has a cause of action pursuant to the DSA and that damages should be determined under the WDA.

Defendants point out that "Vermont's Dram Shop Act provides the exclusive remedy for cases falling within its scope, and preempts a cause of action in common law negligence." Winney v. Ransom & Hastings, Inc., 149 Vt. at 216, 542 A.2d at 270. We recognize this limitation, but do not agree with defendants that it precludes an award of damages under the WDA in all cases brought pursuant to the DSA. As we have noted, Vermont's WDA "does not create a new cause of action but merely permits the recovery of additional damages in the cause of action" already available. Whitchurch, 137 Vt. at 469 n. 3, 408 A.2d at 631 n. 3.

We are mindful that the DSA is a strict liability statute, see Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986), while wrongful death actions often involve negligent or intentional torts. See W. Keeton, Prosser and Keeton on the Law of Torts § 127, at 946 (5th ed. 1984). Indeed, some courts have refused to allow the recovery of wrongful death damages in dram shop actions. See, e.g., Robertson v. White, 11 Ill.App.2d 177, 185-86, 136 N.E.2d 550, 555 (1956) (citing differences in nature and purpose of dram shop act and wrongful death act, court refused to allow wrongful death damages in dram shop case where child was killed); Beck v. Groe, 245 Minn. 28, 35, 70 N.W.2d 886, 892 (1955) ("The wrongful death act and the civil damage act are wholly unrelated both as to scope and purpose."). More recent cases, however, have routinely considered wrongful death damages in actions brought under dram shop acts. 3 See, e.g., Gionfriddo v. Gartenhaus Cafe, 15 Conn.App. 392, 400-06, 546 A.2d 284, 287-92 (1988) (in action against dram shop, wrongful death damages not available against tavern only because they were the same as those collected against driver in prior wrongful death action), aff'd, 211 Conn. 67, 557 A.2d 540 (1989); Fraternal Order of Eagles v. Illinois Casualty Co., 364 N.W.2d 218, 219, 222 (Iowa 1985) (decedent had been "injured in person," thereby allowing administrator of his estate to recover damages under dram shop act).

Moreover, wrongful death actions are not necessarily based on negligent acts. Some courts have allowed wrongful death damages in strict liability cases involving abnormally dangerous activities and defective products. W. Keeton, supra, § 127, at 946. The Vermont WDA provides a remedy when death is caused "by the wrongful act, neglect or default" of another; thus, it is not limited to acts of negligence. The acts that trigger dram shop liability clearly fit within the broad scope of the term "wrongful act." See Bernier v. Raymark Industries, 516 A.2d 534, 540 (Me.1986) (under wrongful death statute, manufacturer commits "wrongful act" when it places defective or unreasonably dangerous product into stream of commerce; "wrongful act" need not result from neglect or fault).

In recent years, both the Iowa Supreme Court and the Rhode Island Supreme Court have held that the wrongful death of an individual constitutes "injury to person" under the DSA, allowing recovery thereunder. See Fraternal Order of Eagles, 364 N.W.2d at 222; Beaupre v. Boulevard Billiard Club, 510 A.2d 415, 416 (R.I.1986). We agree with their approach. The DSA allows a person to recover damages for personal injuries that result from a vendor's improper conduct under the Act. It would be anomalous, indeed, to deny recovery to that person's personal...

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