Cook By and Through Uithoven v. Spinnaker's of Rivergate, Inc.

• Decision Date: 07 March 1994
• Docket Number: No. 01S01-9212-CV-00147,01S01-9212-CV-00147
• Parties: Christy C. COOK, an incompetent, By and Through her next friend, Janice UITHOVEN, and Janice Uithoven, Individually, Plaintiffs-Appellees, v. SPINNAKER'S OF RIVERGATE, INC., and Tri-M Management, Inc., Defendants-Appellants.
• Court: Tennessee Supreme Court

Page 934

878 S.W.2d 934

Christy C. COOK, an incompetent, By and Through her next

friend, Janice UITHOVEN, and Janice Uithoven, Individually, Plaintiffs-Appellees, v. SPINNAKER'S OF RIVERGATE, INC., and Tri-M Management, Inc.,

Defendants-Appellants.

No. 01S01-9212-CV-00147.

Supreme Court of Tennessee,

at Nashville.

March 7, 1994.

Rehearing Denied June 13, 1994.

William C. Moody, Nashville, for plaintiffs-appellees.

Thomas Pinckney, Nashville, for defendants-appellants.

OPINION

REID, Chief Justice.

This case presents for review the decision of the Court of Appeals sustaining the defendants' Rule 12.06(6) Tennessee Rules of Civil Procedure motion to dismiss the complaint for personal injuries, for failure to state a cause of action. This Court finds that the complaint states a cause of action.

Christy C. Cook, a minor 17 years of age, and her mother, Janice Uithoven, sued Spinnaker's of Rivergate, Inc., et al. for injuries sustained by Cook when the automobile operated by her was involved in a single car accident near midnight on January 19, 1991. Shortly before the accident in which Cook was injured, she had been drinking alcoholic beverages served to her by the defendants at their restaurant and bar.

The complaint alleges that the defendants served alcoholic beverages to Cook in violation of T.C.A. § 57-4-203(b)(1), which makes it a misdemeanor to sell or furnish alcoholic beverages to persons under the age of 21, and T.C.A. § 57-4-203(c)(1), which makes it a misdemeanor to sell or furnish alcoholic beverages to anyone who is "visibly intoxicated." The complaint also alleges in pertinent part:

8. The defendants ... knew or through the exercise of ordinary care should have known that plaintiff was a minor not entitled to purchase alcoholic beverages and inexperienced with the use and effect of alcoholic beverages.

9. By serving alcoholic beverages to a minor ... in violation of the above referenced statutes, the defendants are negligent per se.

10. By failing to determine the age of a patron before serving alcoholic beverages and by continuing to serve alcoholic beverages to a minor, after said minor became intoxicated, the defendants are guilty of negligence and gross negligence.

* * * * * *

12. On and prior to January 18, 1991 defendants ... habitually and/or knowingly served alcohol to minors, negligently and/or willfully created an environment attracting young persons such as this minor plaintiff.

* * * * * *

19. The direct and proximate cause of plaintiff's injuries was the negligence and gross negligence of the defendants ... in serving alcohol to the minor plaintiff and in continuing to serve alcohol to the minor plaintiff until and so that she lacked the judgment to determine whether or not she was competent to operate an automobile.

Thus, the plaintiffs allege that the proximate cause of Cook's injuries was the negligence, negligence per se and gross negligence of the defendants in serving her alcoholic beverages.

In response to the complaint, the defendants filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted. The defendants contend in their motion to dismiss that Cook's acknowledged operation of the automobile on a public highway while intoxicated in violation of various statutes constitutes negligence per se which bars recovery. The trial court granted the defendants' motion to dismiss and the plaintiffs appealed.

The Court of Appeals reversed and remanded because it was unclear from the complaint whether Cook was operating the vehicle at the time of the accident or whether she was a passenger. Upon remand, the trial court again granted the defendants' motion to dismiss. When the case came before the Court of Appeals for the second time, that court ruled that Cook's conduct was to be measured by an adult standard of care because she was operating a motor vehicle on a public highway. The court also found that "Cook was guilty of negligence and negligence per se" for violating T.C.A. § 57-4-203(b)(2)(A), which makes it a misdemeanor for any person under the age of 21 to purchase or possess an alcoholic beverage. However, the Court of Appeals concluded that a remand was appropriate because of this Court's decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). This Court then granted the defendants' Rule 11 application and in an expedited opinion on one of the issues presented, held that McIntyre was not applicable because the issue of comparative fault had not been raised at an appropriate stage in the litigation. Cook v. Spinnaker's of Rivergate, 846 S.W.2d 810 (Tenn.1993). Consequently, the remaining issues presented on this appeal will be controlled by the law as it was prior to McIntyre, even though, upon remand, the case will be tried pursuant to the principles of comparative fault.

The plaintiffs claim on this appeal that the serving of the alcohol was the cause of the accident, as opposed to the manner in which Cook was driving her car. According to the plaintiffs, it was not Cook's driving, but her consumption of alcohol, that was the proximate cause of her injury. The plaintiffs assert that to bar their claim as a matter of law would undermine the policy of this state to protect inexperienced and imprudent minors from the folly of their own actions and, instead, immunize the liquor industry from civil liability even when there has been a violation of the statute prohibiting the sale of alcohol to minors.

The defendants respond by arguing that all drivers of motor vehicles, regardless of age, should be held to an adult standard of care, and that, measured by this standard, because Cook voluntarily consumed alcoholic beverages in violation of T.C.A. § 57-4-203(b)(2)(A), and then drove her automobile on a public highway while intoxicated, she is guilty of gross negligence as a matter of law.

The standard of conduct expected of a reasonable person may be prescribed in a statute and, consequently, a violation of the statute may be deemed to be negligence per se. See McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn.1992). "When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard of care ... from which it is negligence to deviate." Prosser and Keeton on Torts § 36, p. 220 (5th ed. 1984). In order to establish negligence per se, it must be shown that the statute violated was designed to impose a duty or prohibit an act for the benefit of a person or the public. Smith v. Owen, 841 S.W.2d 828, 831 (Tenn.Ct.App.1992) (citing Nevill v. City of Tullahoma, 756 S.W.2d 226 (Tenn.1988)). It must also be established that the injured party was within the class of persons that the statute was meant to protect. Smith, 841 S.W.2d at 831.

However, the law takes into account that minors generally do not have the same degree of experience, maturity and education as an adult and, therefore, lack the same capacity as an adult to understand or appreciate the consequences of their conduct. See Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn.1987). Therefore, in assessing a minor's negligence, the minor is generally not held to the same standard of care imposed on adults. Cardwell, 724 S.W.2d at 748; Arnold v. Hayslett, 655 S.W.2d 941, 947 (Tenn.1983). Instead, the minor is charged with such care as a reasonably prudent person of like age, capacity, knowledge and experience would be expected to exercise under the same circumstances. See Cardwell, supra. The plaintiffs insist that they are entitled to have Cook's conduct in this case judged by that standard.

Although the law is clear that a minor's conduct is generally not to be judged by an adult standard of care, the law is equally clear that where the minor is engaged in a dangerous activity normally undertaken only by adults, such as driving a car, no special allowance is made for the minor's limited experience or age and, therefore, the minor is held to an adult standard of care. Powell v. Hartford Accident & Indemnity Co., 217 Tenn. 503, 398 S.W.2d 727, 730 (1966) ("[w]e believe the better reasoned cases place the same duty of care upon all operators of motor driven vehicles regardless of age, that is, ordinary care"); Black v. Quinn, 646 S.W.2d 437 (Tenn.Ct.App.1982) (11-year-old driver held to an adult standard of care); Mize v. Skeen, 63 Tenn.App. 37, 468 S.W.2d 733 (Tenn.Ct.App.1971) (14-year-old driver held to an adult standard of care and thus not entitled to a jury charge on the presumption that he is incapable of negligence). In this regard, the plaintiffs' reliance on Brookins v. The Round Table, Inc., 624 S.W.2d 547 (Tenn.1981) is misplaced. The intoxicated minor in Brookins was a passenger, not the driver as was the minor in the present case.

The rule that all drivers of motor vehicles on public highways are held to an adult standard of care applies to driving while intoxicated. Driving while intoxicated on a public highway is gross negligence, or recklessness, given the significant risk of serious bodily injury or death, not only to the intoxicated driver, but to unsuspecting motorists and pedestrians. Rice Bros. Auto Co. v. Ely, 27 Tenn.App. 81, 178 S.W.2d 88 (1943) ("[d]riving while drunk is ... fraught with danger and evinces such entire want of care and indifference to results as to constitute wanton negligence"); Jordan v. The Krystal Co., 1986 WL 11218 (Tenn.Ct.App., October 7, 1986) (driving while intoxicated is gross, wanton and willful negligence as a matter of law). "Gross negligence indicates a conscious neglect of duty or a callous indifference to the consequences." Thomason v. Wayne County, 611 S.W.2d 585, 587 (Tenn.Ct.App.1990). An act which otherwise would be simple negligence, may amount to gross negligence if it involves a dangerous or lethal instrumentality. Phelps v. Magnavox Co., 497 S.W.2d 898, 906 (Tenn.Ct.App.1972). In the operation of the automobile, Cook is held to the...