Holmes v. Circo

• Decision Date: 14 July 1976
• Docket Number: No. 40442,40442
• Citation: 244 N.W.2d 65,196 Neb. 496
• Court: Nebraska Supreme Court
• Parties: Kimberly HOLMES, by her father and next friend, Milo C. Holmes, Appellant, v. Louis S. CIRCO, d/b/a Circo's Bar, and Theresa Ann Jones, Appellees.

Page 65

244 N.W.2d 65

196 Neb. 496

Kimberly HOLMES, by her father and next friend, Milo C. Holmes, Appellant, v. Louis S. CIRCO, d/b/a Circo's Bar, and Theresa Ann Jones, Appellees.

No. 40442.

Supreme Court of Nebraska.

July 14, 1976.

Syllabus by the Court

1. There is no longer a dram shop or civil liability act imposing strict liability for sale of liquor in Nebraska.

2. Section 53--180, R.R.S.1943, does not create a civil cause of action in favor of, or duty toward, third parties injured as a result of violations of section 53--180.

3. In the absence of legislation specifically so providing, a tavern owner or operator in Nebraska is not liable to third parties injured by intoxicated persons to whom the tavern owner has served liquor in violation of section 53--180, R.R.S.1943.

4. A violation of section 53--180, R.R.S.1943, does not constitute negligence, or evidence thereof, of which injured third parties may avail themselves in actions against a tavern owner or operator.

Warren C. Schrempp, Richard E. Shugrue of Schrempp, Dinsmore & McQuade, Omaha, for appellant.

Gross, Welch, Vinardi, Kauffman & Day, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

Kimberly Holmes, the plaintiff below, appeals from orders entered by the District Court sustaining defendants' motions to strike certain portions of her petition, and to dismiss the petition because of her failure to amend or plead further within the 10-day period granted to her by the court. The reason for the dismissal, as stated in the order of the court, was that the petition failed to state a cause of action. We affirm.

Plaintiff had instituted the action against Louis S. Circo, the owner of Circo's Bar, and Theresa Ann Jones, his employee, to recover damages for injuries sustained by her when a vehicle in which she was riding collided with an automobile driven by one George Allen Archer. Plaintiff's petition consisted of four separate causes of action, the first and third causes of action being based upon various specified negligent acts, including the violation of section 53--180, R.R.S.1943. The second and fourth causes of action were not grounded upon the theory of negligence, but merely alleged a violation by the defendants of section 53--180, with the further allegation that the acts of the respective defendants were the proximate cause of plaintiff's injuries. Other than the violation of the statute above referred to, the acts on which the allegations of negligence were predicated consisted of defendants serving alcoholic beverages to Archer on the day of the accident knowing that he was 'intoxicated and physically and mentally incapacitated by the consumption of alcoholic liquors and had at his disposal an automobile which he intended to operate upon leaving said premises.'

Defendants' motion to strike was based principally on the ground that there was neither common law nor statutory relief available to the plaintiff. In his memorandum sustaining the motion to strike, the trial judge stated: 'The Plaintiff, by the allegations in her Petition, seeks to have this Court impose Dram Shop Act liability on a tavern owner by construing certain alleged violations of criminal statutes in the Nebraska Liquor Control Act as constituting some evidence of negligence. * * * This would be a new legal doctrine in Nebraska.' The court subsequently dismissed the petition on the ground it did not state a cause of action, and plaintiff thereafter perfected her appeal to this court.

In this appeal, we must decide whether or not plaintiff's petition stated a cause of action against defendants either on the theory of negligence, or on a statutory cause of action created by section 53--180, R.R.S.1943; and whether the violation of such statute may be considered as evidence of negligence.

We first discuss the nature and effect of section 53--180, R.R.S.1943, relied upon by plaintiff as a basis of recovery. That section reads as follows: 'No person shall sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquors, to or for any minor, any person who is mentally incompetent, or any person who is physically or mentally incapacitated by the consumption of such liquors.' The penalty for violation of section 53--180, by a licensee or employee thereof, is set out in section 53--180.05(2), which makes the violation of the provisions of that section a misdemeanor, and further provides that upon conviction, the penalty shall be a fine of not less than $250 nor more than $500 or imprisonment in the county jail for 15 days, or both such fine and imprisonment. The Nebraska Liquor Control Act, originally adopted in 1935, does not contain provisions establishing strict liability, creating a civil cause of action in favor of injured parties, or imposing civil penalties, as was true under Nebraska's former dram shop or civil liability acts.

By way of historical background to aid in a better understanding of the problems involved in this appeal, we point out that the first Nebraska civil damage action statute, sometimes termed the dram shop act, was enacted in 1881, and appeared as sections 3859 to 3864, R.S.1913. It was broad in scope, and made liquor dispensers liable for all damages that 'the community or individuals may sustain in consequence of such (liquor) traffic.' With the advent of prohibition, the entire Chapter relating to and regulating the liquor business, including the dram shop provisions, were repealed in 1917; and an entirely new Chapter relating to intoxicating liquors was enacted. Laws 1917, chapter 187, section 52, page 448, contained wholly new dram shop provisions which were effective until repealed. That section, as amended, in ensuing years, appeared as section 53--147, C.S.1929. In 1935, another new act, the Nebraska Liquor Control Act, was passed, which, among other things, repealed Chapter 53 of C.S.1929, including the dram shop provisions of section 53--147, C.S.1929. This is the act, which with occasional amendments since that date, is currently in effect.

In enacting the Nebraska Liquor Control Act in 1935, the Legislature did not include new dram shop provisions, as did the prior acts. Nor has our Legislature subsequently added the same or similar provisions, although it could well have done so had it wished to impose strict liability upon owners and operators of bars, or desired to create a civil cause of action in favor of those injured as a result of a violation of the liquor laws. The present law prohibits the dispensing of intoxicating liquors to certain classes of persons, and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors.

There are cases from other jurisdictions holding that the purpose of a prohibitory statute, such as the above, is to regulate the business of selling intoxicants, and not to enlarge civil remedies. Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Lee v. Peerless Ins. Co., 248 La. 982, 183 So.2d 328 (1966). In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), the court held that a violation of a statute, similar to Nebraska's providing that the person in charge of a saloon or bar who sells intoxicating liquor to any person who is drunk is guilty of a misdemeanor does not impose civil liability on one in charge of the saloon or bar. We agree that statutes of this type do not create a civil remedy or impose a duty on the part of the bar or tavern operator toward injured third parties.

While not involving the liquor statute under consideration, the recent case of Kube v. Kube, 193 Neb. 559, 227 N.W.2d 860 (1975), is relevant. Kube was an action brought under the provisions of the federal Fair Labor Standards Act prohibiting employment of persons under the age of 16 in occupations that have been found and declared to be particularly hazardous for such persons, and involved the employment of a child under 16 years of age to operate a farm tractor of over 20 PTO horsepower. The petition there alleged that the employment of the plaintiff by the defendant was unlawful and in violation of the federal act and regulations, and that the violation of the law was the proximate cause of the accident and the injuries to the boy. The trial court sustained a general demurrer to the petition and dismissed the action. The federal act provided no civil remedy for violation of the act but prescribed criminal penalties, and the issue on appeal was whether a civil remedy might be implied. The court held it could not, basing its decision on the case of Breitwieser v. KMS Industries, Inc., 467 F.2d 1391, where the United States Court of Appeals, 5th Circuit, held the Fair Labor Standards Act did not create a private cause of action for the death of a 16-year-old boy who was operating a forklift truck in violation of the provisions of the act and the regulations. In discussing Breitwieser, this court noted: 'The Breitwieser case was decided upon the theory that the Fair Labor Standards Act contains a comprehensive enforcement scheme including substantial criminal penalties for violations of child labor law.' This court stated that the District Court had based its decision on the ground that Congress did not intend that private damage suits should be an available remedy under the child labor section because civil remedies were provided for certain violations of the act but only criminal sections were provided under the child labor section. We likewise conclude the Nebraska liquor statute before us does not create a new cause of action.

We next consider whether plaintiff's petition states a cause of action based upon common law negligence. At common law, and apart from statute, no redress existed against persons selling, giving, or furnishing intoxicating liquor, or their...