Gilger v. Hernandez, 980031.

• Decision Date: 28 January 2000
• Docket Number: No. 980031.,980031.
• Citation: 997 P.2d 305,2000 UT 23
• Parties: Brandon GILGER and Robert J. Montoya, Plaintiffs and Appellants, v. Melissa HERNANDEZ, Defendant and Appellee.
• Court: Utah Supreme Court

997 P.2d 305

2000 UT 23

Brandon GILGER and Robert J. Montoya, Plaintiffs and Appellants, v. Melissa HERNANDEZ, Defendant and Appellee.

No. 980031.

Supreme Court of Utah.

January 28, 2000.

David R. Maddox, Sandy, for plaintiffs.

Lewis B. Quigley, Clifford J. Payne, Salt Lake City, for defendant.

ZIMMERMAN, Justice:

¶ 1 Plaintiffs Brandon Gilger and Robert Montoya appeal the trial court's order dismissing their complaint for failure to state a claim upon which relief may be granted. In their complaint, Gilger and Montoya alleged that Melissa Hernandez, the defendant, was negligent "per se" for serving alcohol to minors, including Jason Martinez, in violation of Utah Code Ann. § 32A-12-203. They also allege that as a direct consequence of Hernandez's negligence, Martinez injured both plaintiffs. Gilger and Montoya further allege that defendant Hernandez had a "special relationship" with her guests, including plaintiffs, that imposed a tort duty of reasonable care on her which she breached by: (i) failing to properly supervise the party; (ii) refusing to call police when Martinez threatened other guests with physical violence; (iii) refusing to summon an ambulance after Martinez stabbed the plaintiffs; and (iv) preventing other guests from summoning emergency aid. We affirm the trial court on all counts, except that we reverse and remand on the negligence claims arising out of Hernandez's refusal to summon aid after Gilger and Montoya were stabbed and her prevention of another guest from summoning assistance.

¶ 2 On appeal from an order dismissing a complaint for failure to state a claim upon which relief can be granted, we assume all the facts alleged to be true and draw all reasonable inferences from those facts in a light most favorable to the plaintiff. See Richardson v. Matador Steak House, Inc., 948 P.2d 347, 348 (Utah 1997)

(citing Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990)); St. Pierre v. Edmonds, 645 P.2d 615, 616-17 (Utah 1982) (citing Barrus v. Wilkinson, 16 Utah 2d 204, 398 P.2d 207, 208 (1965)). In September of 1995, Hernandez hosted a party at her residence. She charged her guests five dollars for all the beer they wished to drink. During the course of the party she served beer to inebriated guests, including twenty-year-old Martinez. In the course of the evening, Martinez threatened to injure other guests with a gun or knife he claimed to possess. Nevertheless, Hernandez continued to provide him with beer and refused to call the police, even though other guests urged Hernandez to do so. As the evening wore on, some of Hernandez's guests escorted Martinez out of Hernandez's home, where Martinez stabbed and seriously wounded guests Gilger and Montoya. Although Hernandez knew of the stabbing, she refused to call for emergency aid to assist Gilger and Montoya and even grabbed the phone from a party guest who was attempting to call for help. Eventually guests were able to use a neighbor's phone to summon an ambulance.

¶ 3 Gilger and Montoya each filed an action against Hernandez seeking damages based on (i) negligence claiming that they had a special relationship with Hernandez and that she breached the duty she owed them and (ii) negligence per se based on Hernandez's serving alcohol to Martinez, who was a minor, in violation of section 32A-12-203 of the Code. Hernandez filed a motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted Hernandez's motion finding that "the law in Utah imposes no duty on a social host to protect a guest within the context of the facts in this case." The trial court made no findings regarding the negligence per se claim. On appeal, we review for correctness the trial court's decision that the plaintiffs alleged no facts that would support a claim. See Richardson, 948 P.2d at 348

(citing Russell v. Standard Corp., 898 P.2d 263, 264 (Utah 1995)); Barnard v. Wassermann, 855 P.2d 243, 246 (Utah 1993) (citing St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991)).

¶ 4 We first address the negligence claim based on service of alcohol to a minor. We will then address the negligence claim based on breach of a duty said to arise out of a special relationship between the parties. ¶ 5 There is no question that under the allegations of the complaint, Hernandez violated Utah criminal law, section 32A-12-203(2) by providing beer to a minor. The plaintiffs would use that violation as a premise for asserting a common law negligence action against Hernandez grounded on the negligence per se doctrine. See, e.g., Child v. Gonda, 972 P.2d 425, 432 (Utah 1998)

(explaining negligence per se). Hernandez asserts that the Utah Dramshop Act preempts any common law claims. We now address that issue.

¶ 6 The Dramshop Act was initially passed in 1981. See Utah Code Ann. § 32-11-1 (Supp.1981). It has been amended numerous times. See id. § 32A-14-1 (Supp.1985); id. § 32A-14-1 (Supp.1986); id. § 32A-14-1 (Supp.1989); id. § 32A-14-101 (Supp.1996); id. § 32A-14-101 (Supp.1997). Both parties agree that under the version of the Dramshop Act in place in September of 1995, the time of the events at issue, the Act did not impose liability upon social hosts who serve beer to minors. It stated in relevant part:

(1) Any person who directly gives, sells, or otherwise provides liquor, or at a location allowing consumption on the premises, any alcoholic beverage, to the following persons, and by those actions causes the intoxication of that person, is liable for injuries in person, property, or means of support to any third person, or to the spouse, child, or parent of that third person, resulting from the intoxication:

(a) any person under the age of 21 years;

. . . .

(5) The total amount of damages that may be awarded to any person pursuant to a cause of action under this chapter that arises after July 1, 1985 is limited to $100,000 and the aggregate amount which may be awarded to all persons injured as a result of one occurrence is limited to $300,000.

. . . .

(7) Nothing in this chapter precludes any cause of action or additional recovery against the person causing the injury.

. . . .

Utah Code Ann. § 32A-14-101 (1994). In section 32A-1-105(24)(b), the Code defines "liquor" so as to exclude "any beverage defined as a beer, malt liquor, or malted beverage that has an alcohol content of less than 4% alcohol by volume." Id. 32A-1-105(24)(b) (1991).

¶ 7 Thus, paragraph (1) of section 32A-14-101 imposes social host liability for resulting injuries only on "[a]ny person who directly gives, sells, or otherwise provides liquor . . . to [any of] the following persons [including a minor]." Id. § 32A-14-101(1) (emphasis added). Because of section — 105(24)(b)'s narrow definition of "liquor" as excluding beer, there is no social host dramshop liability for serving beer to a minor. On the other hand, the Act imposes liability for resulting injuries on anyone who provides any "alcoholic beverage," which includes beer, to proscribed persons, including minors, only if it is provided at an establishment that sells alcohol for on-premises consumption. The term "location allowing consumption on the premises" does not include a private house.¹ We previously addressed this definition in Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997), where we noted the statutory distinction between "alcoholic beverages," which includes beer, and "liquor" which does not.

¶ 8 Gilger and Montoya argue that because the Act does not impose dramshop liability on social hosts who serve beer to minors, and because it does not purport to bar general negligence liability, it cannot preempt any preexisting common law liability. It appears that a majority of this court would hold that there was no preexisting common law liability for social hosts who serve alcohol to minors. In Reeves v. Gentile, 813 P.2d 111 (Utah 1991), this court stated that the Dramshop Act "provides for a cause of action, not available at common law." See id. at 116. However, a majority of this court has held that there is common law liability for commercial vendors selling beer to minors in violation of a statute. See Mackay v. 7-Eleven, 2000 UT 15, 995 P.2d 1233,

Rees v. Albertson's, Inc., 587 P.2d 130 (Utah 1978); Yost v. State, 640 P.2d 1044 (Utah 1981). Even if this court were to find that there was common law liability for social hosts who serve beer to minors, such liability would be preempted by the Dramshop Act.

¶ 9 Determining whether a particular statute preempts other law of inferior standing is essentially a question of legislative intent. See Richardson, 948 P.2d at 350

(citing Retherford v. AT & T Communications, 844 P.2d 949, 964-66 (Utah 1992)). Did the legislative body with the superior law-making power intend to exercise that power with respect to a particular subject in such a way as to exclude the coterminous exercise of law-making power by another? In the present situation, the legislature has the power to supersede court-made common law on the subject of negligence liability for providing alcohol to one who causes harm. The question is whether the legislative body intended to exercise that power and occupy the field by enacting the Dramshop Act. See Richardson, 948 P.2d at 350 (citing Retherford, 844 P.2d at 964-66); see also Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ("The question. . . is what the purpose of Congress was.").

¶ 10 Hernandez suggests that our analytical model for determining whether the Dramshop Act preempts any common law causes of action should be found in Retherford v. AT & T Communications, 844 P.2d 949 (Utah 1992). However, the Retherford preemption test only applies to a specific type of preemption: where the statute at issue offers a remedy for a specific type of injury caused by an act of ...