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

• Decision Date: 19 January 1993
• Citation: Cook By and Through Uithoven v. Spinnaker's of Rivergate, Inc., 846 S.W.2d 810 (Tenn. 1993)
• 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 810

846 S.W.2d 810

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.

Supreme Court of Tennessee at Nashville.

Jan. 19, 1993.

Thomas Pinckney, Howell, Fisher & Branham, Nashville, for defendants-appellants.

William C. Moody, Michael M. Castellarian, Moody, Whitfield & Castellarian, Nashville, for plaintiffs-appellees.

OPINION

DROWOTA, Justice.

We granted the Defendants' application for permission to appeal in order to determine, inter alia, whether the doctrine of comparative fault is applicable to this appeal. We have been asked to clarify Section VI of our opinion in McIntyre v. Ballentine, 833 S.W.2d 52, 58 (Tenn.1992), which concerns the transition rule. We have expedited our decision on this narrow issue by suspending the requirements of further briefing and oral argument pursuant to Rule 2, Tennessee Rules of Appellate Procedure, because similar issues have been raised in other cases presently pending before the intermediate courts.

The remaining issues on appeal are, (1) whether all motor vehicle operators are governed by an adult standard of care, regardless of age, and (2) whether a minor who injures herself while operating a motor vehicle in an intoxicated condition on a public highway is guilty of gross contributory negligence as a matter of law. These two issues will be briefed in accordance with Rule 11(f), Tennessee Rules of Appellate Procedure (with Plaintiffs filing their brief first, followed by Defendants' brief) and set for oral argument as requested by Plaintiffs.

The Plaintiff, Christy C. Cook, was severely injured in a one-car accident in Sumner County, that occurred shortly after midnight on January 19, 1991. At the time of this accident, the Plaintiff was 17 years old. She had been drinking alcoholic beverages at the Defendant's restaurant in Davidson County.

The Plaintiffs' fourth amended complaint included the following:

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.

11. At approximately 12:30 a.m. on January 19, 1991, after leaving Spinnaker's Restaurant, the plaintiff while operating her motor vehicle as a licensed driver on a public road in Sumner County, Tennessee, was involved in a one-car accident in Sumner which was caused by her intoxication in which she suffered severe and permanent injuries including multiple compound fractures and severe brain injury.

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

On March 26, 1992, the Defendants filed a motion to dismiss which stated in part:

The ground for this motion is that plaintiffs' complaint establishes that as a matter of law, Cook was contributorially negligent per se and guilty of gross contributory negligence. Because Cook was operating an automobile on the public highways when she was injured, she is held to an adult's standard of care. Because plaintiffs admit that Cook was driving while intoxicated when the accident occurred, Cook was guilty of contributory negligence per se and gross contributory negligence.

In response to this motion, the Plaintiffs did not raise an issue regarding whether the doctrine of comparative negligence, rather than contributory negligence, should apply, nor had they raised this issue previously. On April 6, 1992, the trial court entered an Order in which it granted the Defendants' motion to dismiss for failure to state a claim upon which relief could be granted. On April 14, 1992, the Plaintiffs filed their notice of appeal.

On May 4, 1992, this Court filed its opinion in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn.1992). As of May 4, 1992, the Plaintiffs had not raised an issue regarding the applicability of the doctrine of comparative negligence. On ...