Hinegardner v. Marcor Resorts, L.P.V., 22764

• Decision Date: 22 December 1992
• Docket Number: No. 22764,22764
• Citation: 108 Nev. 1091,844 P.2d 800
• Court: Nevada Supreme Court
• Parties: Forrest Dean HINEGARDNER, Appellant, v. MARCOR RESORTS, L.P. V., a Nevada Limited Partnership d/b/a Rio Suite Hotel & Casino; Rio Suite Hotel & Casino; The Mirage Casino-Hotel, a Nevada Corporation d/b/a The Mirage Casino-Hotel; The Mirage Casino-Hotel; P & W, Inc., d/b/a Eddie's; and Eddies, Respondents.

Page 800

844 P.2d 800

108 Nev. 1091

Forrest Dean HINEGARDNER, Appellant, v. MARCOR RESORTS, L.P. V., a Nevada Limited Partnership d/b/a

Rio Suite Hotel & Casino; Rio Suite Hotel & Casino; The

Mirage Casino-Hotel, a Nevada Corporation d/b/a The Mirage

Casino-Hotel; The Mirage Casino-Hotel; P & W, Inc., d/b/a

Eddie's; and Eddies, Respondents.

No. 22764.

Supreme Court of Nevada.

Dec. 22, 1992.

Rehearing Denied March 19, 1993.

Brent A. Leavitt, Las Vegas, for appellant.

Vargas & Bartlett, and Christopher Kaempfer, Las Vegas, for respondents Marcor and L.P. V.

Carolyn Ellsworth and William Werner, Las Vegas, for respondent Mirage.

Barker, Gillock, Koning, Brown & Earley, and Bruce S. Dickinson, Las Vegas, for respondents P & W and Eddies.

OPINION

YOUNG, Justice:

THE FACTS

On the evening of February 24, 1990, Lyndon J. Thomason ("Thomason"), a minor, consumed alcohol at respondents' establishments--The Mirage Casino-Hotel; Rio Suite Hotel & Casino, and Eddie's, a bar. Appellant, Forrest Dean Hinegardner ("Hinegardner"), alleged that respondents, Marcor Resorts, L.P. V., A Nevada Limited Partnership d/b/a Rio Suite Hotel & Casino; Rio Suite Hotel & Casino; The Mirage Casino-Hotel, A Nevada Corporation d/b/a The Mirage Casino-Hotel; The Mirage Casino-Hotel; P & W, Inc., d/b/a Eddie's; and Eddies ("Vendors") allowed Thomason to loiter, occupy and remain in their establishments and that Vendors' employees served Thomason alcohol without asking him for a valid identification.

Thereafter, Thomason, under the influence of alcohol, drove his car on U.S. Highway 95 in Las Vegas. Near the intersection of Rainbow Boulevard, Thomason's car collided with a car in which Hinegardner was a passenger. The accident injured Hinegardner and several others.

On June 11, 1991, Hinegardner filed an amended complaint alleging negligence and negligence per se claims against Vendors. In the amended complaint, Hinegardner alleged that shortly before the accident, Vendors negligently sold or offered alcoholic beverages to Thomason, a minor. Hinegardner maintains that as a result of Vendors' illegal and negligent acts, Thomason drove his car while intoxicated and, thus, caused the automobile accident.

Vendors filed a motion to dismiss pursuant to NRCP 12(b)(5) on the grounds that Nevada case law provided no redress against sellers or furnishers of alcoholic beverages for resulting injuries or damages caused by the acts of intoxicated persons. The district court, without writing an opinion, granted the 12(b)(5) motion. Hinegardner appealed.

The issue on appeal is whether this court should change existing Nevada case law to

recognize a claim for relief against one furnishing liquor to a minor in favor of those injured as a consequence of the minor's intoxication.

DISCUSSION

At common law, courts refused to recognize a cause of action arising out of the sale or furnishing of intoxicating beverages. The rationale underlying this refusal was that individuals, drunk or sober, were responsible for their own torts. The courts held that drinking the intoxicant, not furnishing it, was the proximate cause of the injury. In other words, the common law considers the act of selling the intoxicating beverage as too remote to serve as the proximate cause of an injury resulting from the negligent conduct of the purchaser of the drink. Nevada subscribes to the common law rule.

In 1969, we addressed this issue in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969). In Hamm, heirs of pedestrians who were killed by a drunken driver brought an action against the alcohol provider. We affirmed the district court's summary judgment in favor of the alcohol provider.

In Hamm we adopted the common law rule of non-liability after carefully considering the law in other jurisdictions, the arguments on both sides and the serious social policy concerns inherent in this issue. Id. at 100-02, 450 P.2d at 359-60. This court concluded that if civil liability were to be imposed upon commercial alcohol vendors, it should be accomplished by "legislative act after appropriate surveys, hearings, and investigations." Id. at 101, 450 P.2d at 359. In Hamm, we also rejected the argument that the violation of penal statute NRS 202.055, regulating the sale of alcohol to minors, constituted negligence per se. Id. at 102, 450 P.2d at 360.

We reaffirmed Hamm in Yoscovitch v. Wasson, 98 Nev. 250, 645 P.2d 975 (1982); Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 (1982); Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414, 633 P.2d 1220 (1981); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979); Mills v. Continental Parking Corp., 86 Nev. 724, 475 P.2d 673 (1970).

On appeal, Hinegardner forwards several arguments to support his contention that this court should no longer adhere to the common law rule of non-liability for commercial alcohol vendors.

First, Hinegardner argues that the "modern trend" in other jurisdictions is to allow an injured party to assert a claim against a vendor. Hinegardner also produces a laundry list of eighteen cases representing fifteen different jurisdictions that purportedly adopted the "modern trend."

Second, Hinegardner argues that the "modern trend of authorities also recognize [sic] a negligence per se claim" against a vendor for violation of penal statutes regulating the sale of alcohol to minors. He states that Vendors violated a penal statute when they furnished Thomason with alcohol. Hinegardner further contends that violation of the penal statute constituted negligence per se. Hinegardner then provides another list of twenty-four cases representing twenty different jurisdictions that allegedly provide a negligence per se cause of action for violations of penal statutes prohibiting the sale of alcohol to minors.

Third, Hinegardner contends that the change in Nevada case law can be accomplished by this court, rather than the legislature because the common law rule was court created.

Vendors counter with several arguments to persuade the court to adhere to the common law rule.

First, Vendors reject the argument that a "new trend" favoring vendor liability has emerged in other jurisdictions. Vendors state that of all the jurisdictions Hinegardner cites as representing the new trend, seventeen of those jurisdictions reached decisions prior to 1982. Thus, Vendors conclude that this court was "cognizant of each of these decisions when Yoscovitch was handed down and [the court] declined to follow them."

Second, Vendors assert that we should not create a negligence per se action because this court in Hamm, Davies, Bell and Yoscovitch, continually declined to recognize the violation of a penal statute as negligence per se.

Third, Vendors assert that the issue of commercial alcohol vendor liability is better left to the legislature. The legislature, Vendors maintain, is more suitably equipped to discuss, debate and analyze the political, economic and social concerns inherent in this topic.

After an independent evaluation of the law, we feel constrained to affirm the district court's ruling. We are not convinced by Hinegardner's "new trend" argument.

First, Hinegardner's "new trend" analysis is somewhat overstated. An independent examination of the cases that Hinegardner includes in his "new trend" analysis demonstrates that only Arizona, Colorado, North Carolina, Oklahoma, Pennsylvania, Wisconsin, and Wyoming abandoned the common law position after 1982. ¹ All of the other cases Hinegardner cites were either decided before 1982, reaffirmed pre-1982 precedent, or applied civil liability statutes. ² As Vendors correctly point out, a number of states such as Alabama, Arkansas, Delaware, Kansas, Maryland, Nebraska, and Virginia still continue to adhere to the common law rule.

Therefore, we conclude that although a majority of jurisdictions no longer follows the common law rule, Nevada's status as a minority jurisdiction does not constitute a rational basis to overturn a long line of Nevada Supreme Court precedent. Indeed, the fact that other jurisdictions continue to follow the common law reminds us of the observation we made in Hamm: "Whatever choice we make for Nevada is supportable by case authority elsewhere." Hamm, 85 Nev. at 100, 450 P.2d at 359.

Second, we note that in the absence of evidence of legislative intent to impose civil liability, a violation of a penal statute is not negligence per se. Bell v. Alpha Tau Omega, 98 Nev. 109, 642 P.2d 161 (1982). In 1987, the legislature amended the penal statute which Vendors allegedly violated, NRS 202.055. As Vendors properly assert, in 1987 the legislature could have added a civil liability component to NRS 202.055. We infer from the legislature's inaction that it did not intend to impose civil liability for violations of this penal statute.

Third, we will also continue to follow the Hamm rule--only legislative mandate should create civil liability for vendors who serve alcohol to minors. Clearly, a decision whether to abrogate such a fundamental rule as the one under consideration is the function of the legislative, not the judicial, branch of government. Where, as here, the issue involves many competing societal, economic, and policy considerations, the legislative procedures and safeguards are well equipped to the task of fashioning an appropriate change, if any, to the settled rule. See Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d 494 (1987).

Indeed, in an effort to annul this common law rule, we are confronted with numerous issues that this court admittedly may be ill-equipped to address at this time. For example, should casinos, tavern owners and other commercial vendors alone be subject to liability or should social hosts be liable too? If social hosts are liable, will minors be accountable as well? Should the intoxicated purchaser also have a cause of action against the vendor or social host? Must the injured plaintiff prove that the...